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Strawn v. Farmers Ins. Co.

oregon

Oregon Supreme Court

Filed: May 19, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON MARK STRAWN,on his own behalf and as representative ofa class of similarly situated persons, Petitioner on Review/Respondent on Review, v. FARMERS INSURANCE COMPANY OF OREGON,an Oregon stock insurance company;MID-CENTURY INSURANCE COMPANY,a foreign corporation;and TRUCK INSURANCE EXCHANGE,a foreign corporation, Respondents on Review/Petitioners on Review, and FARMERS INSURANCE GROUP INC.,a foreign corporation, Defendant. (CC 9908-09080; CA A131605; SC S057520 (Control), S057629) On review from the Court of Appeals.* Argued and submitted March 2, 2010, at Lewis & Clark Law School, Portland, Oregon. Kathryn H. Clarke, Portland, argued the cause for petitioner on review/respondent on review Strawn. With her on the briefs were Richard S. Yugler, David N. Goulder, and Lisa T. Hunt, Landye Bennett Blumstein LLP, Portland. Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher LLP, Los Angeles, California, argued the cause for respondents on review/petitioners on review Farmers Insurance Company of Oregon et al. James N. Westwood, Stoel Rives LLP, Portland, filed the brief for respondents on review/petitioners on review Farmers Insurance Company of Oregon et al. With him on the brief were P.K. Runkles-Pearson, Theodore J. Boutrous, Jr. and Thomas H. Dupree, Jr., Gibson, Dunn & Crutcher LLP, Los Angles; and David L. Yohai and Gregory Silbert, Weil Gotshal Manges LLP, New York. Meagan A. Flynn, Portland, filed briefs in support of the petition for review on behalf of amicus curiae Oregon Trial Lawyers Association. Brian S. Campf, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. Andrew M. Schlesinger, West Lynn, filed a brief on behalf of amicus curiae United Policyholders. Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel. Brian T. Hodges, Bellevue, Washington, filed a brief on behalf of amicus curiae Pacific Legal Foundation. With him on the brief were Deborah J. La Fetra and Timothy Sandefur, Sacramento, California. Before De Muniz, Chief Justice, and Durham, Kistler, Balmer, Walters, and Linder, Justices.** LINDER, J. The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed. Balmer, J., dissented and filed an opinion. *Appeal from Multnomah County Circuit Court, Jerome E. LaBarre, Judge. 228 Or App 454, 209 P3d 357 (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. Plaintiff Mark Strawn filed a class action against defendants Farmers Insurance Company of Oregon, Mid-Century Insurance Company, and Truck Insurance Exchange (collectively, Farmers).(1) The complaint alleged that Farmers had breached its contractual obligations and committed fraud by instituting a claims handling process that arbitrarily reduced payments for reasonable medical benefits owed under its automobile insurance policies. A jury returned a verdict for plaintiffs. Based on that verdict and a post-verdict class claims administration process, the trial court entered a judgment against Farmers for approximately $900,000 in compensatory damages and $8 million in punitive damages. Farmers appealed. On appeal, the Court of Appeals concluded that the punitive damages award exceeded federal constitutional limits, but otherwise affirmed the judgment. Strawn v. Farmers Ins. Co., 228 Or App 454, 209 P3d 357 (2009). Both parties petitioned for review. In its petition, Farmers presented three issues. The first two raise challenges to the liability verdict entered against Farmers. The third issue challenges the punitive damages award, arguing that the Court of Appeals should have reduced the punitive damages award further. In plaintiffs' petition, they first contend that the Court of Appeals should not have reached the constitutionality of the punitive damages award for procedural reasons. Alternatively, plaintiffs contend that the full amount of punitive damages awarded by the jury was within constitutional limits. We allowed both petitions for review. As we will explain, we reject Farmers's arguments that seek to set aside the jury's liability determinations on plaintiffs' claims. On the punitive damages issues, we conclude that the Court of Appeals should not have reached Farmers's constitutional challenge to the amount of the punitive damages award. Consequently, we affirm in part and reverse in part the decision of the Court of Appeals, and we affirm the judgment of the trial court. I. FACTS AND PROCEDURAL BACKGROUND This case involves personal injury protection (PIP) benefits offered by insurance policies written by Farmers. Both by statute and by contract, Farmers was obligated to pay "[a]ll reasonable and necessary expenses of medical, hospital, dental, surgical, ambulance and prosthetic services incurred within one year after the date of the person's injury," up to a certain limit. ORS 742.524(1)(a).(2) Because the parties do not take issue with the summary of the facts provided by the Court of Appeals (which were set out in the light most favorable to plaintiffs, as the prevailing party), we quote that summary here: "Before 1998, Farmers processed requests for PIP benefits by having its claims adjusters review each medical bill to determine whether the bill was reasonable -- that is, whether it was both 'usual and customary.' In 1997, however, Farmers decided to change that process. In an effort to recover losses and regenerate its surplus after the 1994 Northridge, California earthquake, Farmers instituted its 'Bring Back a Billion' campaign. Farmers' corporate headquarters in Los Angeles alerted its regional offices of the 'increasing importance' of generating money without raising premiums. In June 1997, Farmers instructed its Portland office to reduce payment of PIP benefits to realize 'PIP dollar savings * * *[,] an untouched area.' "In an effort to reduce PIP payments, the Oregon PIP claims manager, Heatherington, contracted with Medical Management Online (MMO), a bill review vendor. MMO, in turn, licensed a 'cost containment software program' from Medata, a company that manages a database of roughly 100 million medical expenses. The software sorts those medical expenses by Current Procedural Terminology (CPT) codes, geographic region, and price. CPT codes, which are created by the American Medical Association, are used by medical providers to bill insurers. Geographic regions in the database are defined according to 'PSRO' areas, which are socio-demographic regions established by the federal government in 1980 for workers' compensation purposes. For Oregon, the federal government identified two PSRO areas: (1) the Portland-metro area and (2) the rest of the state. "The software allowed MMO's clients (mostly insurance companies and state agencies) to determine whether a bill from a medical provider was more expensive than a given percentage of the range of charges in other bills for the same CPT code in the provider's designated geographic area. Clients were able to select any percentile that they wished, and MMO then evaluated the bills that it received from the client to determine whether the bills exceeded that percentile. If a bill exceeded the preselected percentile, MMO generated an Explanation of Benefits (EOB) form that reduced payment with reference to 'reason code' 'RC40.' The EOB explained the code as follows: "'RC40: This procedure was reduced because the charges exceeded an amount that would appear reasonable when the charges are compared to the charges of other providers within the same geographic area.'[(3)] "The software was promoted as reducing medical provider payments by 26 percent. "Beginning in January 1998, Farmers implemented its new PIP handling process through MMO -- a process that, in Heatherington's words, represented 'a significant change in the way we handle our bills.' Farmers selected the eightieth percentile as the cutoff point for 'reasonable' expenses. That is, Farmers determined that any bills that exceeded the eightieth percentile in the MMO database would be deemed to exceed the 'reasonable' charge and would be 'reduced' to that eightieth percentile. The program worked as follows: After Farmers' insureds were treated for their injuries, their medical providers sent their bills directly to Farmers. Farmers then forwarded the bills to MMO, and MMO entered the bills into its database. If the bill was more than the charge that was at the eightieth percentile of the charges for that same CPT code in the designated region, MMO documented that fact on an EOB form with an RC40 code. "Although Farmers contended at trial (and still contends) that the EOB form constituted only a 'recommendation' from MMO as to reasonableness, claims adjusters were expected to follow the recommendation. The adjusters were downgraded if they departed from MMO's recommendations and were rewarded when they followed them. Thus, the 'recommendation' was, as a practical matter, the final determination of reasonableness. "Between January 26, 1998 and July 21, 1999 (the class period), Farmers reduced more than 60,000 individual bills by a total of approximately $750,000. The majority of the individual reductions were small: 90 percent were for $25 or less; more than one quarter were for $3 or less. Although Farmers offered medical providers an opportunity to justify the charges that exceeded the established percentile, it was generally not cost-effective for medical providers to pursue those avenues. The medical providers who took advantage of the opportunity to justify their charges rarely secured any additional payment from Farmers. When the providers were unable to secure full payment from Farmers, the insureds became responsible for the unpaid amounts. "As previously noted, Farmers selected the eightieth percentile as the cutoff point for payment of 'reasonable' charges. That cutoff point, though profitable for Farmers, also yielded an increase in customer complaints. The complaints were particularly problematic for Heatherington and Reinhardt, a regional claims manager, because customer service satisfaction was one of the components for measuring their performance and compensation. Together, Heatherington and Reinhardt decided that the percentile should be raised to see whether customer relations would improve, and, on May 21, 1999, Farmers raised the cutoff point to the ninetieth percentile. Three weeks before this class action case was filed, Farmers increased the cap to the ninety-ninth percentile. Reinhart reported to corporate headquarters that this was the right tack to take 'while the litigation is pending.'" Stra wn, 228 Or App at 458-61 (footnotes omitted). Plaintiff Strawn filed a class action against Farmers in August 1999. The trial court certified the class action in June 2000. Pursuant to the certification order, the class was declared to consist of "all persons who were entitled to PIP benefits from Farmers under Farmers's standard terms for PIP coverage, whose benefit payments were reduced by Farmers on the basis of codes RC40 or B2 during the period January 26, 1998 to July 21, 1999, and whose claims are not barred." Plaintiffs, alleging a total of approximately 8,000 class members, asserted four claims for relief against Farmers: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) declaratory judgment, and (4) fraud.(4) Plaintiffs sought punitive as well as compensatory damages. In a stipulated statement of the case that the trial court read to the jury at the outset of the trial, the parties summarized the underlying nature of the action: "Plaintiffs contend that Farmers failed to comply with the PIP law and Farmers' policy contract provisions by failing to pay all reasonable medical expenses it was required to pay. * * * Plaintiffs contend that this practice of Farmers of applying these percentile reductions, and without conducting an adequate review or appeal process of these reductions, was arbitrary and unreasonable and resulted in Farmers failing to pay all reasonable medical expenses. Plaintiffs['] First Claim contends this practice of Farmers breached its insurance policy contract to its policyholders. Plaintiffs' Second Claim contends that this practice of Farmers breached its implied duty of good faith and fair dealing with respect to performance of its insurance policy contract. Plaintiffs['] [Fourth] Claim contends that Farmers engaged in fraud toward the class members with respect to this practice and related non-disclosures to class members." The jury returned a verdict for plaintiffs on their claims for breach of contract, breach of the implied duty of good faith and fair dealing, and fraud,(5) awarding them $757,051.33 in compensatory damages and $742,948.67 in prejudgment interest.(6) The jury also awarded $8 million in punitive damages on plaintiffs' claim for fraud. Ultimately, as noted, the trial court entered judgment against Farmers for approximately $900,000 in compensatory damages and $8 million in punitive damages. Farmers appealed to the Court of Appeals, raising multiple issues bearing on liability as well as challenging the amount of the jury's punitive damages award. The Court of Appeals rejected all but one of Farmers's claims of error, agreeing only that the punitive damages award exceeded constitutional limits. 228 Or App at 457. The Court of Appeals granted relief accordingly. Id. at 488. As already noted, both plaintiffs and Farmers sought review of the Court of Appeals decision, and this court allowed both petitions. II. ISSUES ON REVIEW On review, the issues before us divide into two categories. The first are challenges that Farmers raises in connection with the merits of plaintiffs' various claims of liability. The second are challenges that both parties raise to the Court of Appeals' determination of the amount of punitive damages that constitutionally could be awarded against Farmers. We begin with the issues bearing on liability, which would include plaintiffs' fraud claim on which the jury awarded punitive damages. If we were to reverse the verdict on the fraud claim, that disposition would obviate the need to reach the punitive damages issues that the parties present. A. Whether Farmers was precluded from rebutting the reasonableness of plaintiffs' medical expenses with individualized evidence On review to this court, the first issue that Farmers raises is whether it was permitted to present a full defense to plaintiffs' claims. Specifically, Farmers asserts that the trial court did not permit Farmers to present evidence to the jury that would have rebutted the reasonableness of the medical charges submitted by individual class members for PIP reimbursement and, conversely, that would have established the reasonableness of Farmers's investigation of those individual PIP claims. Before turning more directly to that issue, it is helpful to describe, as context for our discussion, the relevant core theories on which the parties proceeded at trial. A key component of all of plaintiffs' claims -- including the fraud claim -- was the allegation that Farmers, by using their percentile-reduction claims handling process, had failed to pay the class members' "reasonable" medical charges. At trial, the parties took different positions on plaintiffs' burden to establish the "reasonableness" of the class members' medical charges. Farmers's position was that plaintiffs were required to present individualized proof as to the reasonableness of each class member's medical charges. Plaintiffs' position was that, under the statutory scheme governing PIP benefits, the amounts charged by medical providers, as presented by their bills, were presumed "reasonable." Thus, according to plaintiffs, once class members produced their medical bills, the burden shifted to Farmers to disprove the reasonableness of the billed medical charges. The trial court resolved that central dispute through summary judgment proceedings, concluding that plaintiffs were legally entitled to a presumption of reasonableness, based on the amounts that their medical providers charged. Consequently, in the trial court's view, once plaintiffs produced evidence of the medical bills for the individual class members, the burden shifted to Farmers to rebut the presumption that the amounts charged were reasonable. After the trial court's summary judgment ruling, Farmers continued to preserve its position on that question, as reflected in certain procedural motions that Farmers raised. For example, at the end of plaintiffs' case-in-chief, Farmers renewed its position by moving to decertify the class on that theory, among others, that plaintiffs' claims (including the fraud claim) were not conducive to class treatment, because plaintiffs were required to present individualized proof of the reasonableness of their medical charges. Likewise, Farmers moved for a directed verdict at that point, urging, inter alia, that plaintiffs had the burden to prove the reasonableness of the individual medical charges submitted for PIP reimbursement and that they had failed to sustain that burden. At each juncture, the trial court adhered to its ruling that plaintiffs' evidence of their medical bills presumptively established the reasonableness of the charges, and that the burden then shifted to Farmers to rebut reasonableness. On appeal to the Court of Appeals, Farmers assigned error to the trial court's rulings on that issue, arguing, among other points, that the reasonableness of the class members' medical expenses required individualized proof and should not be presumed based on their medical bills. Plaintiffs argued the converse. By the time the Court of Appeals issued its decision, this court had decided Ivanov v. Farmers Ins. Co., 344 Or 421, 185 P3d 417 (2008). Relying on Ivanov, the Court of Appeals rejected Farmers's position: "In our view, Ivanov defeats Farmers' contention that plaintiffs failed to offer sufficient proof of the reasonableness of their medical expenses. In this case, as in Ivanov, the 'gravamen of plaintiffs' complaint was that Farmers' review methodology was an impermissible one.' Id. at 430. Thus, plaintiffs were not required to offer any additional evidence that, at the time the bills were submitted, they were reasonable; the expenses were presumptively reasonable at that point. Instead, Farmers had the burden of establishing that 'the procedures it employed to deny plaintiffs' claims satisfied its statutory and common-law duties.' Id." Strawn, 228 Or App at 465. On review to this court, Farmers no longer maintains that plaintiffs had the burden to present individualized proof of the reasonableness of their medical expenses. Rather, given the holding in Ivanov, Farmers now accepts that the amounts of plaintiffs' medical bills presumptively established the reasonableness of their medical charges. Farmers further accepts that, once that presumption was in place, the burden shifted to Farmers to rebut that presumption by showing that its investigation and processing of the claims resulted in payment of plaintiffs' reasonable and necessary medical expenses, thus satisfying Farmers's legal obligation. What Farmers does dispute, however, is whether the trial court permitted Farmers to make that rebuttal showing. According to Farmers, the trial court cut off Farmers's ability to do so by excluding evidence relevant to whether Farmers reasonably investigated the individual claims and whether Farmers reimbursed plaintiffs in an amount that represented their reasonable medical expenses. Farmers urges that, by excluding such evidence, the trial court effectively made the presumption of the reasonableness of plaintiffs' medical charges "irrebuttable," which "was not the plan envisioned by Ivanov." Farmers also argues that the excluded evidence had relevance beyond the narrow question of whether Farmers reimbursed the individual plaintiff class members for their reasonable medical charges. Withholding that evidence from the jury, Farmers urges, also skewed the case in favor of a classwide finding of liability and a damages award by not permitting the jury to consider evidence relevant to the reprehensibility of Farmers's conduct. An essential problem with Farmers's arguments, however, is that they are not arguments that Farmers made to the trial court or to the Court of Appeals. To be sure, Farmers points to some items of evidence that the trial court ruled inadmissible before and during trial. But having reviewed the rulings that Farmers challenges, we agree with plaintiffs that the trial court did not foreclose Farmers from offering any evidence for the purpose that Farmers now asserts the evidence would have been relevant -- viz., to establish the reasonableness of Farmers's investigation of the individual claims or to show that the payments that Farmers made to the individual class members met Farmers's obligation to pay their reasonable medical expenses. In other words, Farmers did not present to the trial court the theories of admissibility that it advances now. Some specific rulings are illustrative.(7) Before trial, plaintiffs filed a motion in limine to exclude evidence that medical providers had written off the balances of the bills that Farmers had not paid under its percentile reduction procedure. Plaintiffs also filed a motion in limine to exclude evidence that some class members either had a right to be paid, or actually had been paid, by third-party tortfeasors for the amounts that Farmers had refused to pay under the percentile reduction program. Plaintiffs argued (among other things) that those categories of evidence either were not relevant, or that, if relevant, were inadmissible under OEC 403 because the evidence would unduly prejudice or confuse the jury. In response, Farmers argued a more narrow theory of relevancy than it now advances. With regard to provider write-offs, Farmers urged that the evidence showed that class members often did not become liable for the unpaid portions of the bills, which Farmers asserted was relevant both to damages and punitive damages. Similarly, Farmers urged that evidence of third-party tort liability was relevant to damages.(8) The trial court granted the motions in limine, concluding that the challenged evidence was inadmissible under OEC 403 (although the trial court later permitted evidence of third-party liability during the post-verdict claims administration phase of the case). Farmers did not argue to the trial court -- as it now does to this court -- that evidence of write-offs and third-party liability should be admitted to rebut the presumption that the class member plaintiffs' medical charges were reasonable. Rather, throughout trial, after losing the issue on summary judgment, Farmers held to its theory that plaintiffs had the burden to produce individual evidence of the reasonableness of their medical expenses and that Farmers had no burden in that regard. Farmers also asserts to this court that the trial court denied it the ability to present "individualized evidence" through what Farmers characterizes as a "blanket exclusion" that effectively required Farmers to present only collective evidence as to how Farmers treated PIP benefit claims. The ruling that Farmers cites, however, was again more narrow. Before plaintiff Strawn brought this class action against Farmers, Farmers had reduced reimbursement for one of Strawn's medical bills, because that bill exceeded Farmers's percentile cutoff. At trial, Farmers sought to introduce evidence that the bill was for medical services that had been unnecessary, which, Farmers believed, would support a conclusion that Farmers lawfully could have refused to pay the bill in its entirety. See ORS 742.524(1)(a) (PIP benefits cover medical expenses that are both "reasonable and necessary" (emphasis added)). The trial court sustained plaintiffs' objection to that evidence, reasoning that Farmers, having reduced reimbursement for the charge based only on its percentile cutoff, could not, at that point, shift its reasoning and claim that the entire charge was medically unnecessary. That ruling does not support Farmers's claim that the trial court made a broad or "blanket" ruling excluding evidence of how Farmers had reviewed and handled individual claims; the court merely refused to allow Farmers to present a new and after-the-fact reason for denying a particular bill. Nothing in that ruling prohibited Farmers from introducing individualized evidence about how it handled PIP benefit claims, and Farmers did not argue to the trial court that the evidence was relevant on that theory. As a final example, Farmers asserts that "the jury never learned that Farmers actually overrode RC40/B2 recommended reductions, paying submitted medical charges in full, in numerous individual cases." Farmers's argument in that regard, however, is telling. Farmers acknowledges that "[t]he focus of the trial here was not on the investigation but on the reasonableness of the underlying charges." (Emphasis in original.) In other words, the fight at trial was over whether plaintiffs' medical bills established a rebuttable presumption of reasonableness, not over whether Farmers had rebutted that presumption by showing the reasonableness of its investigation. That was the focus because, as Farmers concedes, the law on the point had not yet been settled by Ivanov. Despite conceding that the trial was so focused, Farmers urges that, "had individualized evidence been admitted, Farmers could have shown -- and did show during the claims administration process -- that it had a reasonable investigation process." In particular, Farmers urges that it "could have shown, for example," that it overrode the recommended percentile reductions in many cases or had other reasons why reimbursement was reduced. What Farmers now recognizes it could have shown with certain evidence is beside the point, however. The issue is whether the trial court prevented Farmers from placing evidence before the jury that was relevant to the reasonableness of its claims handling process and its PIP payments to plaintiffs. Farmers points to no place in the record where Farmers offered, and the trial court excluded, evidence that Farmers overrode the recommended reductions in individual cases. Farmers may appreciate now what it could have argued based on evidence that it either did not seek to place before the jury, or that it placed before the jury for other reasons.(9) But that hindsight appreciation establishes no error on the trial court's part or a fundamental denial of Farmers's right to defend against plaintiffs' fraud claim.(10) B. Whether plaintiffs failed to present evidence of class-wide reliance The second question that Farmers presents on review is whether it was entitled to a directed verdict on plaintiffs' fraud claim. Farmers argues that plaintiffs failed to present proof of reliance, as they were obligated to do, sufficient to support a conclusion that all members of the class detrimentally relied on Farmers's misrepresentation that they would pay reasonable medical expenses. To provide context for our discussion of Farmers's arguments, we begin by describing plaintiffs' fraud claim and the proof on which plaintiffs relied.(11) The essential elements of a common-law fraud claim are: the defendant made a material misrepresentation that was false; the defendant did so knowing that the representation was false; the defendant intended the plaintiff to rely on the misrepresentation; the plaintiff justifiably relied on the misrepresentation; and the plaintiff was damaged as a result of that reliance. See Handy v. Beck, 282 Or 653, 659, 581 P2d 68 (1978) (outlining elements); see generally Knepper v. Brown, 345 Or 320, 329, 329 n 5, 195 P3d 383 (2008) (noting older cases listing nine elements of common-law fraud, and more recent cases using a more abbreviated list of elements). In this case, in allegations common to all of plaintiffs' claims, plaintiffs set out the standard PIP terms of Farmers's no-fault automobile policy -- i.e., that Farmers would cover medical expenses for bodily injury to an insured arising out of the operation or use of an automobile, and defining medical expenses to mean "all reasonable and necessary expenses" of medical, hospital, and related health providers as required by Oregon law. Plaintiffs also alleged that Farmers was required by Oregon law to provide PIP benefits no less favorable than required by ORS 742.524(1), which the complaint quoted. Then, for the fraud claim specifically, plaintiffs alleged that Farmers intentionally represented to plaintiffs that it would pay all reasonable medical and hospital expenses incurred by policyholders due to an automobile accident; that plaintiffs relied on that representation and incurred medical and hospital charges at usual and customary rates; that Farmers's representation was knowingly false, in that Farmers did not disclose to plaintiffs its cost containment procedures for determining benefits and by misrepresenting, when it paid reduced benefits, how those benefits were calculated; that plaintiffs did not know that Farmers's representations were false; and that, as a direct result of Farmers's misrepresentations and omissions, plaintiffs incurred medical and hospital costs for which they were not reimbursed by Farmers. Farmers's motion for directed verdict raised several challenges to the adequacy of plaintiffs' evidence on their various claims. As to plaintiffs' fraud claim, Farmers's argument was not extensive, but it did directly take issue with whether plaintiffs had adequately proved reliance on the part of the class as a whole. Specifically, Farmers argued: "Plaintiffs' deceit [i.e., fraud] claims require proof that plaintiffs relied on a material misrepresentation or omission of defendants. Several class members testified about their expectations and understanding of the insurance policy and information received from Farmers about the claims process. However, there is no evidence common to the class which establishes that the absent class members relied upon any material misrepresentation or omission of the defendants." The trial court denied the motion, concluding that, viewed in the light most favorable to plaintiffs,(12) the evidence created a jury question on classwide reliance. On appeal, the Court of Appeals agreed, explaining that evidence of reliance by the absent class members need not be direct, but could be inferred: "[P]laintiffs offered evidence that, viewed in the light most favorable to plaintiffs, established that Farmers (1) promised to pay all reasonable and necessary medical expenses as part of its PIP coverage; (2) selected an arbitrary percentile cutoff that would increase its profits at the expense of insureds; and (3) continued to collect premiums from its insureds without informing them that it had decided not to pay all reasonable and necessary expenses. From that evidence, a reasonable trier of fact could conclude that the payment of reasonable and necessary PIP-related expenses was a material part (and, in fact, a statutorily required part) of the insurance policy and could therefore reasonably infer that plaintiffs relied on Farmers' misrepresentation that it would pay reasonable and necessary PIP-related expenses when they continued to pay their premiums. That is, on this record, a reasonable trier of fact could conclude that plaintiffs acted to their detriment in paying premiums for PIP coverage that Farmers never intended to provide." Strawn, 228 Or App at 470-71(citations omitted). On review, Farmers characterizes the Court of Appeals as having indulged a "presumption" of reliance, one that relieved plaintiffs of their burden to prove reliance on the part of each of the class members. Farmers argues that, as a matter of law, reliance in a fraud case "can never be presumed" and the obligation to prove reliance therefore poses a particular evidentiary challenge to a class action plaintiff. At a minimum, according to Farmers, a class action plaintiff must present "competent evidence from which a jury can conclude that class members were generally aware of a claimed misrepresentation and acted on the basis of that awareness." Farmers thus asserts that, in the context of this case, plaintiffs had to come forward with proof that each class member knew of the representation at issue, interpreted it to mean that Farmers would pay full billed charges, and relied on that representation. Here, Farmers maintains, plaintiffs presented absolutely "no evidence," either individualized by class member or common to the class, from which the jury could logically draw the necessary conclusion of reliance as to all class members. Plaintiffs, for their part, agree that they had to prove reliance for the class as a whole, rather than reliance only by plaintiff Strawn or isolated members of the class. But classwide reliance, they urge, does not require direct evidence of reliance by every individual class member. Instead, plaintiffs urge, such reliance can be inferred in a proper case, and this is such a case. Here, the evidence showed that the class members received insurance policies in Farmers's standard form, containing the same promise to pay PIP benefits in the form of reimbursement for "reasonable medical expenses," as defined by the policy and by statute. All class members, after being involved in an accident, made a claim for the contractually promised PIP benefits. All sought and received medical services, and all (subject to some variation shown during the individualized damages phase of the trial) received reduced payments based on Farmers's percentile reduction methodology. Plaintiffs argue that the evidence of the promise made and the actions that class members took is sufficiently common to the class to permit a jury to infer classwide reliance on Farmers's representation that it would pay their reasonable medical expenses. In making their respective arguments, the parties debate at some length the significance of our decision in Newman v. Tualatin Development Co. Inc., 287 Or 47, 54, 597 P2d 800 (1979). We agree that Newman provides guidance for this case. We therefore turn to the issue presented in that case and what this court held in resolving it. The plaintiffs in Newman were purchasers of townhouses built and sold by the defendant. They brought a class action on behalf of all such purchasers, seeking damages based on the defendant's use of galvanized, instead of copper, water pipes in the townhouses. The trial court had certified the class for purposes of the plaintiffs' negligence and implied warranty claims, but declined to certify it for the express warranty claim. Based on the particular evidence presented at the class certification stage of the proceeding, this court agreed that individual determinations of reliance would be necessary, with the result that "common questions of fact would not predominate over questions affecting individual members of the class." Id. The court explained: "Plaintiffs contend individual determinations will not be required because direct evidence of reliance is not necessary. All that is required is proof that the seller's statements were of a kind which naturally would induce the buyer to purchase the goods and that he did purchase the goods. "Plaintiffs contend that the warranty was made in a sales brochure given to all purchasers. Even if plaintiffs can prove the brochure was given to all members of the class in this case, that would not establish that every member of the class read, was aware of, and relied upon each of the representations in the brochure. The brochure made statements about many features of the townhouses, -- various floor plans, vaulted ceilings, color-matched kitchen appliances, brick-enclosed courtyards, etc. The water pipes and their composition is a relatively minor component." Id. (internal quotes and citations omitted). Citing Newman, Farmers asserts that reliance, whenever it is an element of a class action claim, must be established through direct evidence of each class member's individual reliance. But Newman, as the portion of the decision just quoted reveals, does not stand for that proposition. Newman expressly tied its holding to the weaknesses of the particular evidence submitted in support of class certification on the express warranty claim. Immediately after discussing those weaknesses, Newman expressly disavowed that individual evidence of reliance was required as a matter of law in all class actions: "We do not hold that an express warranty is never an appropriate subject for a class action adjudication or that the issue of reliance always requires individual determination. However, here, the alleged express warranty is such a small part of the item purchased and the representation is interspersed with many other descriptive statements." Newman, 287 Or at 54. Newman thus turned on its particular facts, while leaving other class actions requiring proof of reliance to do the same. And although Newman did not declare when reliance can be determined through common, rather than individualized evidence, it at least suggested an answer -- viz., when the same misrepresentation was made to all individual class members and was sufficiently material or central to the plaintiff's and the defendant's dealings that the individual class members naturally would have relied on the misrepresentation.(13) Such a standard for inferring classwide reliance from evidence common to the class accords with what we consider to be the better-considered authority in other jurisdictions. As many courts have concluded, whether classwide reliance can be inferred from evidence common to the class depends on the misrepresentation. A key consideration is whether the misrepresentation was uniformly made to all class members, as through standardized documents, or whether the evidence shows material variations in how the misrepresentation may have been communicated, as with oral representations made by different agents.(14) A second key consideration is the nature of the misrepresentation itself: how likely it is that class members would have uniformly relied on it and, conversely, the likelihood that their reliance would vary significantly from one class member to the next.(15) One particularly instructive case, with factual parallels to this one, is Klay v. Humana, Inc., 382 F3d 1241 (11th Cir 2004), cert den, 541 US 1081 (2005). Klay was a class action case brought by a large number of physicians against almost all major health maintenance organizations (HMOs) alleging, among other claims, fraud. The alleged misrepresentations that formed the basis for the fraud were that the HMOs agreed to reimburse physicians for all medically necessary services. The physicians alleged that the HMOs artificially and covertly underpaid them by using automated statistical and other criteria, rather than medical necessity, to calculate reimbursement amounts. Id. at 1247. In affirming the class certification on the fraud claim, the Eleventh Circuit agreed that the plaintiffs, to prove their case, had to establish reliance on the part of each class member. But the court concluded that, "based on the nature of the misrepresentations at issue, the circumstantial evidence that can be used to show reliance is common to the whole class." Id. at 1259. The court reasoned: "The alleged misrepresentations in the instant case are simply that the defendants repeatedly claimed that they would reimburse the plaintiffs for medically necessary services they provide to the defendants' insureds[.] * * * It does not strain credulity to conclude that each plaintiff, in entering into contracts with the defendants, relied upon the defendants' representations and assumed they would be paid the amounts they were due. A jury could quite reasonably infer that guarantees concerning physician pay -- the very consideration upon which those agreements are based -- go to the heart of these agreements, and that doctors based their assent upon them. * * * Consequently, while each plaintiff must prove reliance, he or she may do so through common evidence (that is, through legitimate inferences based on the nature of the alleged misrepresentations at issue)." Id. The rule adopted by the authorities that we have cited, and implicitly suggested in this court's decision in Newman, is sound. To prevail in a class action for fraud, the class plaintiff must prove reliance on the part of all class members. Direct evidence of reliance by each of the individual class members is not always necessary, however. Rather, reliance can, in an appropriate case, be inferred from circumstantial evidence. For that inference to arise in this context, the same misrepresentation must have been without material variation to the members of the class. In addition, the misrepresentation must be of a nature that the class members logically would have had a common understanding of the misrepresentation, and naturally would have relied on it to the same degree and in the same way. Not all fraud claims will lend themselves to common evidence of reliance, rather than individualized proof. Newman is a good example of a case that did not. As the decision in Newman emphasized, the representation at issue there was one of myriad statements made in a sales brochure for the townhouses, a brochure that the evidence did not establish had been given to every putative class member. Equally important, whether individual purchasers cared about the kind of water pipes in the townhouses -- which the court characterized as a "relatively minor component" (Newman, 287 Or at 54) -- as opposed to other features, could readily vary from one purchaser to the next and, on the evidence before the court, simply was not established. This case presents a more compelling basis for the inference of classwide reliance. The misrepresentation at issue here was in a uniform provision of a contract for motor vehicle insurance, not a sales brochure that may not even have ended up in the hands of all of the class members.(16) The fact that the promise was in a written and binding contract of insurance, rather than in a sales brochure, provides a stronger basis than in Newman to infer classwide reliance. Even so, contracts are often complex documents, ones that can incorporate a wide array of terms, many of which contain provisions that would not -- at least for purposes of a fraud claim -- be uniformly understood or relied on by any person who might enter into the contract. A motor vehicle liability policy, however, is distinctive, both in many of its terms and in the reasons for its purchase. As plaintiffs pleaded, and as was emphasized to the jury throughout the trial, PIP benefits are a statutorily mandated provision of motor vehicle insurance in Oregon. ORS 742.520(1) (mandating PIP coverage for "[e]very motor vehicle liability policy issued for delivery in this state" for private passenger motor vehicles). The terms of required PIP coverage are extensively controlled by statute as well. See ORS 742.524 (describing mandatory benefits); ORS 742.530 (describing permissive exclusions from benefits). An insurer may provide greater PIP coverage that the statutes require, but not less. Utah Home Fire Ins. Co. v. Colonial Ins., 300 Or 564, 568, 715 P2d 1112 (1986) (insurance policy cannot provide fewer PIP benefits than the law requires it to provide); ORS 742.532 (policy may provide more favorable personal injury protection benefits than required by law). Thus, although the policy is required to state the coverage that the policy provides (ORS 742.450(1)), the policy provides PIP benefits, regardless of whether it so declares. Persons insuring and driving motor vehicles licensed in Oregon have corresponding obligations. To register or renew a motor vehicle license in Oregon, the applicant must provide assurance of compliance with the financial responsibility laws.(17) ORS 803.370 (registration of motor vehicle); ORS 803.460 (registration renewal). Most people meet that obligation -- as the class members in this case did -- by purchasing a motor vehicle liability policy that satisfies the requirements of Oregon law. See ORS 806.060(2)(a) (specifying when policy of insurance will satisfy financial responsibility requirements); see generally OAR 735-050-0050 (1997) (identifying information to be presented as part of certificate of insurance). Finally, it is unlawful for a person to drive a vehicle in Oregon without meeting the financial responsibility requirements of Oregon law; doing so is a Class B traffic offense. ORS 806.010 (defining offense of driving uninsured). Against that extensive regulatory backdrop, a person who purchases a motor vehicle policy to meet the financial responsibility requirements of Oregon law does not need to read the policy to justifiably rely on its provisions. That person has no choice to buy a policy without PIP coverage. The insurer issuing the policy has no choice to issue it without PIP coverage. The entire scheme is structured to permit the purchasers of such insurance, as well as the state in its regulatory role, to have confidence that the policy provides all coverage, including PIP benefits, that is required to meet the financial responsibility laws. Given the statutory requirements for the contents of motor vehicle policies, and the responsibilities imposed on persons who are obligated to purchase such policies, an insured's reliance on the PIP coverage that the policy provides is inherent in the purchase of the insurance, or at least, a factfinder is entitled to infer as much.(18) For those reasons, a jury could infer from evidence common to the class that the individual class members relied on Farmers's misrepresentation that it would pay its insureds' reasonable medical expenses arising out of their automobile accidents; individualized evidence of the class members' reliance was not necessary to create a jury question on that element of plaintiffs' fraud claim. Consequently, the trial court properly denied Farmers's motion for directed verdict on that ground. C. Whether the Court of Appeals correctly resolved Farmers's challenge to the constitutionality of the punitive damages award The final issue before us is one that both parties raise on review: whether the Court of Appeals correctly determined that the amount of punitive damages awarded by the jury in this case was constitutionally excessive. Relying on its understanding of the applicable federal due process standards, the Court of Appeals concluded that the jury's award of $8 million in punitive damages was excessive, and that the highest amount that the jury could constitutionally award was four times the combined amount of plaintiff's compensatory damages and prejudgment interest. Strawn, 228 Or App at 485. The court therefore vacated the judgment with instructions to grant Farmers a new trial on the issue of punitive damages, unless plaintiffs on remand were to agree to a remitittur of the punitive damages award. Id. On review to this court, both parties assert that the Court of Appeals' 4:1 ratio is legally in error. Farmers contends that the ratio should be lower; plaintiffs contend that the ratio should be higher. Preliminarily, however, plaintiffs also contend that Farmers's challenge to the punitive damages award was not properly before the Court of Appeals and, therefore, the Court of Appeals should not have reached it at all. We turn to plaintiffs' argument in that regard because, as we will explain, it is dispositive. As context for our discussion, we begin by describing the parties' post-verdict positions on whether the trial court should have reduced the jury's punitive damages award, as advanced in the procedural motions and memoranda that the parties filed. After the jury returned its verdict, the parties filed a series of motions through which plaintiffs effectively asked the trial court to validate the amount of the jury's punitive damages award, while Farmers effectively asked the court to reduce that award. Plaintiffs filed the first of those motions, requesting that the trial court "affirm" the jury's punitive damages award under former ORS 18.537(2) (2001), renumbered as ORS 31.730 (2003) (requiring trial court to assess whether a punitive damages award is "within the range of damages that a rational juror would be entitled to award"). Farmers opposed that motion and also filed a motion for remittitur, urging in support of both motions that the punitive damages award exceeded federal due process standards as described in State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 123 S Ct 1513, 155 L Ed 2d 585 (2003), and BMW of North America, Inc. v. Gore, 517 US 559, 116 S Ct 1589, 134 L Ed 2d 809 (1996).(19) Plaintiffs opposed Farmers's motion for remittitur, asserting, among other reasons, that the motion was "procedurally defective" because Farmers had not conjoined it with a motion for new trial. The parties' positions and objections were renewed and revised through a series of further motions. For our purposes here, it is not important to describe that entire series. It suffices to observe that they culminated in: (1) Farmers's alternative motions for remittitur and new trial, seeking to reduce the punitive damages award; and (2) plaintiffs' opposition to those motions. What is important for our purposes is that Farmers's motions and plaintiffs' opposition to them framed two broad issues on which the parties disagreed. The parties not only disagreed on the merits of Farmers's motion (viz., whether the jury's punitive damages award comported with constitutional standards), they also disagreed about what procedures a defendant must follow to preserve a constitutional objection to the excessiveness of a jury's punitive damages award. In arguing that Farmers had failed to present its constitutional objections in a procedurally proper way, plaintiffs advanced several theories. One was waiver. In particular, plaintiffs asserted that Farmers should have taken any or all of a series of procedural steps during trial to ensure that the jury returned a punitive damages award consistent with due process standards. One such step, plaintiffs urged, was that Farmers should have sought to have the jury instructed that any punitive damages award it might make could not exceed whatever upper limit Farmers believed was constitutionally imposed. Plaintiffs also argued that, after the jury returned its verdict, Farmers should have objected to the discharge of the jury and requested that the jury be reinstructed to "deliberate further" to make sure that the punitive damages award did not exceed constitutional limits, citing Building Structures, Inc. v. Young, 328 Or 100, 968 P2d 1287 (1998) (party who fails to object to defective jury verdict before jury is discharged waives objection to the defect). In addition to those waiver arguments, plaintiffs urged that Farmers's motions suffered from other procedural defects as well. They included Farmers's failure, through a motion for directed verdict or some other procedural means, to move to strike plaintiffs' prayer for punitive damages on the ground that it exceeded whatever amount that Farmers believed was the constitutional maximum; Farmers's failure to move against plaintiffs' complaint or challenge the sufficiency of plaintiffs' evidence on that same theory; and Farmers's failure to condition its motions on a waiver of its right to appeal as to all other alleged errors during the trial (which plaintiffs urged was required at common law). Farmers responded to plaintiffs' waiver and other procedural objections by arguing that a defendant cannot challenge a verdict for punitive damages as excessive until after the jury renders its verdict. Farmers urged that alternative motions for remittitur or new trial were the appropriate procedural means for raising its federal due process objection to the punitive damages award, citing Parrott v. Carr Chevrolet, Inc., 331 Or 537, 558-59 n 14, 17 P3d 473 (2001) (party cannot challenge verdict for punitive damages as constitutionally excessive until after jury renders verdict; motion for new trial is among appropriate procedures for raising such challenge). In oral argument on the motions, plaintiffs responded to Farmers's reliance on Parrott by asserting the statements in that case were dicta and by contending that there were many "big questions raised" by Farmers's procedural choices. Ultimately, the trial court agreed with plaintiffs, both with their procedural position and with their position on the merits. In its oral ruling, the trial court found "at the outset" that "there's been waiver" by Farmers and that, in the court's view, "a finding of waiver is actually dispositive." The trial court also considered the merits of Farmers's challenge, stating expressly that it was doing so in the alternative, because of the possibility that an appellate court would not agree with the court's waiver determination. On the merits, the trial court concluded that the jury's punitive damages award was not constitutionally excessive. The written findings of fact and conclusions of law that the trial court later issued were consistent with its oral declaration, although more detailed. In them, the trial court concluded that Farmers had waived its constitutional objections, that its motions were procedurally defective in other regards, and that, on the merits, Farmers's challenge that the punitive damages award was excessive failed. On appeal to the Court of Appeals, Farmers's opening brief assigned error to the award of punitive damages, but did not specify the rulings being challenged.(20) The sole argument that Farmers made in support of its claim of error was that the trial court had erred in resolving the merits of the motion against Farmers. That is, Farmers argued at length that the jury's punitive damages award exceeded federal due process standards, and that the trial court had erred in concluding otherwise. Farmers made no mention of the trial court's procedural ruling that Farmers had waived its challenge or had otherwise not followed the proper procedural route to raise and preserve it. Instead, Farmers contended that the motion had been deemed denied on the expiration of the 55-day period prescribed by ORCP 64 F (which we will discuss shortly). In response to Farmers's argument, plaintiffs first urged that the Court of Appeals could not reach the issue of whether the award was excessive, because Farmers had not challenged the waiver and other procedural grounds on which the trial court ruling also rested. Plaintiffs then argued, in the alternative, that the trial court's resolution of Farmers's excessiveness challenge to the punitive damages award was correct. In its decision, the Court of Appeals resolved the Farmers's excessiveness challenge without acknowledging or addressing the waiver and procedural grounds on which the trial court had alternatively based its ruling. Strawn, 228 Or App at 476-85. On review, plaintiffs challenge the Court of Appeals' failure to affirm the trial court on the alternative procedural grounds that Farmers did not challenge. Farmers, for its part, does not question the proposition that, when a court's decision or ruling is premised on alternative grounds, a party challenging that ruling generally must take issue with all independent and alternative grounds on which it is based to obtain relief. Cf. State ex rel Juv. Dept. v. Charles, 299 Or 341, 343, 701 P2d 1052 (1985) (dismissing petition as improvidently granted, because Court of Appeals decision rested on an independent ground and state petitioned for review on one ground only; thus, this court would be required to affirm the Court of Appeals on the issue for which review was not sought). Neither does Farmers disagree that the trial court in fact did conclude that Farmers had waived and procedurally defaulted in bringing its challenge to the punitive damages award, as alternative grounds for resolving that award. And finally, Farmers does not dispute that, to preserve an issue on appeal, a party must make the issue the object of a proper assignment of error and supporting argument in the party's opening brief. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error * * * is assigned as error in the opening brief * * *." (Emphasis added.)). Farmers's principal response is that the trial court had lost its jurisdiction to articulate any reasons for denying the motion. Farmers contends that its motion for new trial was denied by operation of law before the trial court ruled on it, so the court's order was void. Under ORCP 64 F,(21) if a trial court has not "heard and determined" a motion for new trial within 55 days after entry of judgment, that motion is deemed denied by operation of law, and the trial court lacks jurisdiction to enter any order on the motion. McCollum v. Kmart Corporation, 347 Or 707, 711, 226 P3d 703 (2010). In this case, the trial court held the hearing on Farmers's motions on the last day of the 55-day period, orally ruled on the motion at that time, and signed a simple order denying the motions in open court before the hearing ended. The trial court did not, however, sign and enter its lengthier written findings and conclusions in support of its order until after that period had expired. Based on that, Farmers argues that the trial court's oral waiver ruling was ineffective, since it was not memorialized in writing until after Farmers's motions were denied by operation of law, at which point the trial court had no further jurisdiction over the motions. That analysis, however, overlooks the legal effect of the trial court's ruling at the time of the hearing. During the hearing, the trial court stated that it was denying Farmers's motions and briefly explained its reasons on the record, including its waiver determination. The court then signed -- in open court -- an order denying Farmers's motions, and expressly declared that it was doing so: "At this time I'm signing the order denying Farmers's motions which I've already identified. So that order is signed." Under ORS 3.070, the order became immediately effective, and thus took effect before Farmers's motion for new trial would have been deemed denied by operation of law.(22) For that reason, Farmers's jurisdictional argument is unavailing. Farmers makes a second, alternative argument, as well. It contends that the trial court should be deemed to have denied the motion for new trial without any explanation of its reasoning. Farmers contends that the trial court's oral statements of its reasoning were ineffective, because they were not memorialized in writing. Farmers further reasons that the written findings of fact and conclusions of law were ineffective, because they were filed and entered after the trial court had denied the motion for new trial. Based on those alleged defects of form and timing, Farmers effectively urges that a reviewing court is required to ignore the trial court's stated reasons for its decision. We find no merit to that contention. By its terms, ORCP 64 F requires a motion for new trial to be heard and determined within 55 days from entry of judgment, but it requires no written statement of reasons or other explanation in support of the ruling. Neither does it preclude a trial court from memorializing its reasoning after ruling on the motion in open court within the time allowed. Such written explanations and findings are generally very helpful to the appellate courts in meaningfully reviewing a trial court's ruling, and we are not inclined to foreclose their consideration unnecessarily. In this instance, the only mandate contained in ORCP 64F is that the motion for new trial be resolved within the prescribed period. Here, it was. The trial court ruled in open court; it briefly stated its reasoning orally; the written order denying the motion for new trial was signed in open court and specifically stated that future findings would be issued; and the findings themselves were signed, filed, and entered within two weeks, and before the filing of any notice of appeal. Farmers advances no persuasive reason why the trial court's written explanation of its timely determination of the motion should not be given full consideration by the appellate courts.(23) We therefore conclude that the Court of Appeals erred in reaching Farmers's challenge to the punitive damages award as excessive. The trial court articulated two alternative reasons for denying Farmers's motions (waiver and other procedural defects, as well as a conclusion on the merits that the award did not exceed constitutional limits). The trial court further expressly concluded that both bases on which it ruled were independently sufficient to support the trial court's ruling. Logically, that was true. On appeal, Farmers failed to preserve any challenge to the waiver and other procedural grounds on which the trial court's order was alternatively based. Any error by the trial court concerning the constitutionality of the punitive damages award therefore was necessarily harmless. The Court of Appeals should have affirmed the trial court's order denying the motion for new trial. See generally Jensen v. Medley, 336 Or 222, 239-40, 82 P3d 149 (2003) (affirming judgment, despite erroneous jury instruction on one of plaintiff's theories of liability, where defendant did not challenge another basis for liability). In so concluding, we emphasize that we do not decide whether the trial court's alternative grounds for its ruling were sound. The correctness of the trial court's waiver and other procedural analyses are not before us, just as those issues were not before the Court of Appeals. Indeed, it is precisely because the trial court's alternative grounds for ruling were not challenged by Farmers that the issue of the excessiveness of the punitive damages award was not before the Court of Appeals for its determination. Likewise, whether that award was constitutionally excessive is not before us. For that reason, the punitive damages award must be affirmed. III. CONCLUSION We reject Farmers's arguments on review that the trial court either committed evidentiary error or erred in denying Farmers's motion for directed verdict. We agree with plaintiffs that the Court of Appeals should not have reached the merits of Farmers's assertion that the punitive damages award exceeded constitutional limits. The decision of the Court of Appeals is reversed in that respect only. The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed. BALMER, J., dissenting. The majority labors long and faithfully to bring this tortured case, filed in the last century, to a conclusion, and I agree with important aspects of the majority's opinion.(1) However, because I believe the majority's discussion of the reliance element of plaintiffs' fraud claim is flawed, I must respectfully dissent. This was never a simple case, but it evolved into an unfortunately -- and unnecessarily -- complex proceeding. That complexity was, in part, the result of choices made by both parties (at trial and on appeal) and by the trial court, but it also arose from the statutory context of the claims (including the insurance code and the financial responsibility law), the overlay of class allegations, the shifting legal landscape created by appellate decisions issued during the decade that the case was pending (such as Ivanov v. Farmers Ins. Co., 207 Or App 305, 140 P3d 1189 (2006), rev'd, 344 Or 421, 185 P3d 412 (2008)), and the ever-changing procedural and substantive rules involving punitive damages. At the end of the day, that complexity created a variety of traps for the unwary, which, in large part, form the basis for the Court of Appeals' rejection of many of Farmers's arguments and this court's rejection of Farmers's argument regarding the amount of punitive damages. Some of those traps (to continue the metaphor) may have been set by Farmers itself, either inadvertently or for reasons of trial strategy, and I agree with the majority that established rules of preservation prevent Farmers from raising a variety of otherwise potentially meritorious arguments on appeal. However, for the reasons set out below, I disagree with the majority's conclusion that evidence in the record supported the jury's finding that plaintiffs and the class members that they represented relied on Farmers's alleged misrepresentations. The gravamen of plaintiffs' case was that Farmers had instituted a procedure for reviewing charges by medical providers that provided care to Farmers's insureds under the "personal injury protection" (PIP) coverage of their automobile insurance policies. Under the procedure, charges at or less than the eightieth percentile of charges for comparable procedures in the same geographic area would be considered by Farmers to be "reasonable" and paid.(2) Charges in excess of the eightieth percentile were considered excessive and were paid only in exceptional circumstances. Plaintiffs alleged that Farmers's procedure violated ORS 742.524(1)(a), which requires an insurer to pay all "reasonable and necessary" medical expenses for covered claims and that Farmers's conduct in implementing the procedure also constituted breach of contract and fraud. Plaintiffs' central argument on their fraud claim was that Farmers had falsely represented that they would pay "reasonable" medical expenses when they did not, in fact, intend to pay all reasonable charges. The jury found in favor of plaintiffs on the fraud claim; on the basis of that finding, the jury also was allowed to consider punitive damages, and it awarded substantial punitive damages to plaintiffs. The majority rejects Farmers's argument that the trial court erred in denying its motion for a directed verdict on the fraud claim, holding that plaintiffs introduced sufficient evidence for the jury to find that the class representatives and the class as a whole relied on misrepresentations that Farmers made to them. To put it bluntly, even if Farmers's insurance policies (or the insurance code) could be construed to constitute a representation to policyholders that Farmers would pay all "reasonable" charges, which representation was false because Farmers in fact intended to base its "reasonableness" determination on (and only to pay) all charges at or below the eightieth percentile, there is scant evidence that any plaintiff relied, to his or her detriment, on that representation. And there is virtually no evidence from which a jury could infer that the class of Farmers policyholders who made PIP claims relied on that representation. I first discuss the majority's reliance holding and then consider other ways in which reliance might be proved here. "Reliance," of course, is an element of fraud, and must be proved. See Gardner v. Meiling, 280 Or 665, 671, 572 P2d 1012 (1977) ("Implicit in the element of reliance is a requirement [that] the plaintiff prove a causal relationship between the representation and his entry into the bargain."). The majority appears to accept plaintiffs' argument that reliance need not be proved by "direct" evidence and that it can, instead, be "inferred," ___Or at ___ (slip op at 20), and in an appropriate case that might be true. But the majority goes on to hold that, because the class members were required by law to have insurance, bought policies from Farmers, "received" those policies (which included a statement that Farmers would pay "reasonable" PIP charges), and then made PIP claims, a jury could find that they "relied" on Farmers's misrepresentations. Id. at ___ - ___ (slip op at 27-30). The majority, without citation to any case or statute, then reaches the quite far-reaching conclusion that "an insured's reliance on the PIP coverage that the policy provides is inherent in the purchase of the insurance." Id. at ___ (slip op at 29) (emphasis added). Based on that understanding, it is but a small step for the majority to conclude that "a jury could infer from evidence common to the class that the individual class members relied on Farmers's misrepresentation that it would pay its insureds' reasonable medical expenses." Id. What is missing from the majority opinion, however, is a discussion of how the class representatives relied on Farmers's misrepresentations: what the plaintiffs did, or did not do, because of Farmers's misrepresentations. Ordinarily, in fraud cases, the plaintiff must prove that the misrepresentation "induced [the plaintiff] to make the agreement," Gardner, 280 Or at 671. Even in the rare case where this court has allowed a fraud claim to proceed in the absence of a direct misrepresentation conveyed to the plaintiff, we always have insisted that the plaintiff allege and prove reliance. See Handy v. Beck, 282 Or 653, 656, 581 P2d 68 (1978) (permitting fraud claim based on false drilling report filed with state engineer; plaintiffs "testified that they would not have purchased the property had they known the well did not meet state standards"). The majority's position, in contrast, seems to be that it doesn't really matter whether any of the named plaintiffs (or the class members) either received or relied upon any representations about Farmers's PIP coverage, either before or after they bought the policies, or before or after they submitted PIP claims.(3) That gap is bridged by the majority's assertion, quoted above, that reliance is "inherent in the purchase of the insurance." Although the majority suggests at one point that it was important that the representations were "uniform" and that all class members received "written and binding contract[s] of insurance," ___Or at___ (slip op at 26), the logic of the majority's position has nothing to do with those facts. Indeed, the majority's reasoning detaches "reliance" from any affirmative representation of any kind to a policyholder and from any action or omission by that policyholder, and makes it depend instead on the statutory requirements of the financial responsibility law and the insurance code. That analysis would seem to support including within the class any person who had a Farmers policy, whether or not they ever received a copy of it or had any idea of its terms. Indeed, although the class here included only persons who had PIP charges that exceeded Farmers's payment level, one can easily imagine a fraud claim on behalf of a class of all Farmers policyholders who assert that they overpaid for their policies because they were paying for (and thought that they had) policies that complied with ORS 742.524(1)(a), when in fact those policies did not comply. It is difficult to see why "misrepresentation," "reliance," and "loss" all could not be inferred on a classwide basis for such a class, given the majority's conclusion that "reliance * * * is inherent in the purchase of the insurance." ___ Or at ___ (slip op at 29). One case that the majority does cite is Klay v. Humana, 382 F3d 1241 (11th Cir 2004), cert den, 541 US 1081 (2005), which the majority states is instructive because it involved fraud claims by physicians against a group of HMOs alleging that the HMOs had agreed to reimburse the physicians for all medically necessary services when, in fact, the HMOs covertly underpaid the physicians by using undisclosed statistical criteria to calculate reimbursement amounts. Klay bears some similarities to this case, but does not support the majority on the issue where the majority and I part ways. Klay was only a case about class certification itself -- it concluded that a class of physicians making the allegations described above could be certified. Klay says nothing about what evidence of reliance would be sufficient for a jury to render a fraud verdict in favor of plaintiffs. Klay also reiterates the well-established rule that "each plaintiff must prove reliance" to make out a fraud claim, and also makes the point, with which I agree, that "'he or she may do so through common evidence (that is, through legitimate inferences based on the nature of the alleged misrepresentations * * *).'" ___ Or at ___ (slip op at 25), quoting Klay, 382 F3d at 1259. But Klay also emphasizes -- in a way that directly undercuts the majority's holding here -- that "reliance may not be presumed in fraud-based RICO actions; instead the evidence must demonstrate that each individual plaintiff actually relied upon the misrepresentations at issue." Klay, 382 F3d at 1257-58 (emphasis added). And the case that Klay relies upon for that proposition, Sikes v. Teleline, Inc., 281 F3d 1350, 1362 (11th Cir 2002) (emphasis added), makes the point even more forcefully: A plaintiff must demonstrate that he or she "relied on a misrepresentation made in furtherance of [a] fraudulent scheme" because "[i]t would be unjust to employ a presumption to relieve a party of its burden of production when that party has all the evidence regarding that element of the claim." (Emphasis added.) By holding that reliance, in this case, is inherent in the purchase of the insurance and thus that the jury could infer classwide reliance based on the existence of the insurance contracts, the majority creates the very presumption that Klay and Sikes caution against. Klay contrasts with this case in another way that demonstrates why the majority errs in allowing reliance to be presumed in this case because it is inherent in the purchase of insurance. There, the representation by the HMOs that they would reimburse the physicians for all medically necessary services went to the entire purpose of the agreement between the physicians and the HMOs. If reliance can be presumed from the nature of the representation, Klay might be a case were that would be permitted -- although, as noted, the court in Klay explicitly held that reliance could not be presumed. Here, in contrast, Farmers's misrepresentation was about a small part of the PIP coverage, which was itself a small part of the policy as a whole, because the policy also provided liability coverage, uninsured motorist coverage, underinsured motorist coverage, collision coverage, and comprehensive coverage. The particular method of PIP reimbursement was not significant enough to allow the jury to conclude that reliance was "inherent" when a policyholder purchased a Farmers policy or made a PIP claim.(4) In terms of the significance of the misrepresentation to any action that a plaintiff might take in reliance upon it, this case is far more like Newman v. Tualatin Development Co. Inc., 287 Or 47, 597 P2d 800 (1979), than Klay. In Newman¸ this court rejected an effort by plaintiffs in a class action to prove reliance based on an express representation to class members. We did so, not because reliance always must be proved by individual evidence from each class member -- as the majority notes, we expressly rejected that argument -- but because, in that case, "the alleged express warranty is such a small part of the item purchased and the representation is interspersed with many other descriptive statements." 287 Or at 54. "[R]eliance upon the express warranty," we concluded, "is not proved merely by evidence that the warranty was contained in a sales brochure given to all class members." Id. (emphasis added). For the same reasons, it is not appropriate in this case to permit the jury to infer that each class member, simply by buying a policy from Farmers, relied on Farmers's misrepresentations regarding "reasonable" medical expenses for PIP claims. There are, of course, cases where courts allow reliance to be proved without actual evidence that the plaintiff acted or failed to act based on the defendant's misrepresentation. Some securities fraud cases, such as Affiliated Ute Citizens of Utah v. United States, 406 US 128, 152-53, 92 S Ct 1456, 31 L Ed 2d 741 (1972), have permitted a presumption of reliance when the defendant had a specific duty to disclose information that it failed to disclose -- a circumstance not present here. Other cases have presumed reliance under a "fraud on the market" theory, where the defendant's misrepresentations affected the market price of the stock, even though the purchaser did not actually rely on the misstatements in purchasing the stock. See, e.g., Basic Inc. v. Levinson, 485 US 243, 247, 108 S Ct 978, 99 L Ed 2d 194 (1988). That doctrine, too, is unavailable to plaintiffs here. Having concluded that reliance on Farmers's representations cannot be presumed on these facts and is not "inherent" in the plaintiffs' purchase of insurance, I consider briefly what evidence might be sufficient to show reliance here and whether the record contains such evidence. The fraud cases discussed above tell us what ordinarily is required to prove reliance: in Gardner, that the misrepresentation "induced [plaintiff] to make the agreement," 280 Or at 671; in Handy, that plaintiffs "would not have purchased the property," absent the misrepresentation, 282 Or at 656. And that is the way reliance ordinarily is proved in cases ranging from common-law fraud to statutory class actions. Here, one would expect plaintiffs to prove reliance by testifying that, had they known the truth about Farmers's PIP reimbursement policy, they would not have bought the policy -- and that they would bolster those assertions by showing that, after they learned that Farmers had misrepresented its practices, they changed insurance companies. At the very least, a plaintiff would offer credible testimony that he or she was induced to take some action, or intentionally declined to take some action, because of Farmers's misrepresentations and that the action or omission caused harm to the plaintiff. The record contains virtually no such evidence. Most of the six plaintiffs who testified explained the representations that Farmers made to them in a way that was inconsistent with the allegations in the complaint (and with plaintiffs' theory of the case). Strawn, for example, believed that the policy would "pay for all the bills up to a year" and would pay "all [medical and hospital] expenses," even though a policy that complied with ORS 742.524(1)(a) -- the policy the majority says plaintiffs thought they had, because of Farmers's representations -- would only cover all "reasonable and necessary" expenses, rather than "all" expenses.(5) And Strawn certainly could not have relied upon those misrepresentations when he purchased his Farmers policy because he bought that policy in 1997, before Farmer instituted its eightieth percentile reimbursement plan. Strawn did testify that the PIP benefit amount actually stated in the policy looked like it would "not go very far." But when asked what he did in reliance on that observation, Strawn said that if he had known about Farmer's reduction plan, he would have "gotten more coverage" because he knew medical bills can add up quickly. Plaintiffs' theory in this case, however, was not that the total amount of PIP benefits was too low -- that amount was clearly set out in the policy and met statutory requirements -- but rather that Farmers promised to pay all reasonable and necessary expenses incurred, up to the amount stated in the policy, when in fact it did not intend to do so. So, even if the jury believed Strawn when he said he would have gotten "more coverage" than the basic PIP amount, that testimony supports no allegation in the complaint. Strawn's testimony simply does not show any reliance on Farmers's misrepresentation that it would pay "all reasonable and necessary" PIP expenses. Moreover, hard as it is to believe, even after some of Strawn's medical charges were denied because they exceeded the eightieth percentile, Strawn continued to maintain his Farmers automobile insurance policy and still was insured by Farmers at the time of trial. Similarly, plaintiff Weiss continued to be insured by Farmers, despite the fact that Farmers paid less for his PIP-related medical expenses than he thought they should. (Although several plaintiffs testified that they changed insurers after finding out about Farmers's reimbursement policy, the differing conduct of the named plaintiffs demonstrates that it was improper to allow the jury to infer reliance by all class members on the basis of that evidence.) The six plaintiffs who testified expressed various degrees of dissatisfaction with Farmers's PIP reimbursement policy and some testified to efforts made by medical providers to recover unpaid fees from them. But there was virtually no testimony from any plaintiff that he or she received and read Farmers's misrepresentations or that he or she took any particular action (or failed to take any particular action) in reliance on those misrepresentations. Much less was there any evidence from which a jury could infer that the entire class of Farmers policyholders who made PIP claims relied on any misrepresentation. Whatever the strength of plaintiffs' nonfraud claims -- and of the other elements of plaintiffs' fraud claim -- plaintiffs failed to offer sufficient evidence of reliance for the fraud claim to go to the jury.(6) I dissent. 1. The trial court and the Court of Appeals were not always consistent in how they referred to the parties in this case. The courts sometimes referred to "plaintiff" in the singular, and other times to "plaintiffs" collectively to indicate both Strawn and the other class members. Similarly, the courts below sometimes referred to defendants collectively as "Farmers" in the singular, and other times as "defendants" in the plural. For purposes of this opinion, we use "plaintiff Strawn" to indicate Strawn alone, "plaintiffs" to indicate Strawn and the class members, and "Farmers" in the singular to refer to all defendants. 2. During the class period, ORS 742.524(1)(a) (1997) provided, in part: "(1) Personal injury protection benefits as required by ORS 742.520 shall consist of the following payments for the injury or death of each person: "(a) All reasonable and necessary expenses of medical, hospital, dental, surgical, ambulance and prosthetic services incurred within one year after the date of the person's injury, but not more than $10,000 in the aggregate for all such expenses of the person. Expenses of medical, hospital, dental, surgical, ambulance and prosthetic services shall be presumed to be reasonable and necessary unless the provider is given notice of denial of the charges not more than 60 calendar days after the insurer receives from the provider notice of the claim for the services." The statute has since been amended to increase the policy limit to $15,000, a change that is inconsequential to this case. Or Laws 2003, ch 813, § 2. Other than that change, the quoted portions of the statute remain the same. All references to the statute in this opinion are to the 1997 version. 3. Other EOB forms used the reason code "B2." For purposes of our review, that code is essentially equivalent to an "RC40" reason code. 4. The parties generally refer to plaintiffs' claim as one for "fraud," but sometimes refer to that same claim as one for "deceit." For the sake of consistency, we refer to it throughout this opinion as plaintiffs' claim for fraud. 5. Plaintiffs also prevailed on their claim for declaratory judgment, which was tried to the court. 6. The trial was essentially bifurcated, however, as to the award of compensatory damages. The first step in assessing damages was to obtain the jury's verdict, which effectively set the maximum amount that could be awarded to the plaintiffs. Specifically, the jury was directed to calculate compensatory damages (if any) as the difference between the face amount of all class medical bills and the reduced amounts actually paid by Farmers on those bills (plus prejudgment interest). The second step in assessing damages was a claims adjustment process to refine downward any compensatory damages awarded by the jury. Because of the class action posture of the case, before the trial court could enter final judgment, it first had to offer class members the opportunity to file individual claims for damages. ORCP 32 F(2) (2002) (requiring class members entitled to individual recoveries to be given opportunity to submit a statement requesting affirmative relief). For any class member who failed to file a claim, Farmers would not be required to pay, and the class member would not be entitled to recover, individual damages. ORCP 32 F(2), (3) (2002). 7. Farmers's arguments weave together several different and sometimes unrelated evidentiary rulings by the trial court, not all of which may have been the subject of a proper assignment of error in the Court of Appeals. We need not decide whether all of the evidentiary issues that Farmers raises were adequately preserved at trial and presented to the Court of Appeals. We are satisfied that, even if they were, the theory of admissibility that Farmers advances to this court is not one Farmers preserved below. 8. At times, Farmers's arguments appear to potentially implicate that more narrow basis for the trial court's ruling. Farmers's petition for review did not present any challenge to the trial court's ruling on that ground, however. In the absence of a more focused and developed argument by Farmers as to why the Court of Appeals' resolution of the issue merits this court's review and was wrong, we decline to disturb that resolution. 9. Farmers stated in its Court of Appeals' brief that, "in most instances, Farmers followed the [recommended percentile reductions]." It also acknowledged that it "presented its own uncontested evidence that (1) its adjustors had the authority to override the recommended reductions, and (2) they sometimes did so." Farmers relied on that evidence in connection with a different point -- i.e., that plaintiffs had failed to carry their burden of proof to demonstrate the reasonableness of the medical charges that the class members submitted to Farmers, and that the trial court had improperly shifted the burden of proof on reasonableness to Farmers. Thus, Farmers's argument in that regard suggests that its pre-Ivanov theory of the relevancy of that evidence differed from its post-Ivanov understanding of how it could have used some of its own evidence to better advantage at trial. 10. Farmers also argues that the trial court erroneously excluded evidence of a 2003 legislative amendment (Oregon Laws 2003, chapter 813, section 4) to the PIP statutes. According to Farmers, that legislation would have been relevant to show that Farmers's percentile reduction process for reimbursement was reasonable. In response to a pretrial motion to exclude that evidence, the trial court concluded that it was inadmissible under OEC 403. Farmers did not assign error to that ruling in the Court of Appeals. See Strawn, 228 Or App at 474-75 (declining to consider certain arguments advanced by Farmers because of Farmers's failure to comply with ORAP 5.45 pertaining to the form and necessity of particularized assignments of error). The Court of Appeals considered the effect of that legislation only in connection with Farmers's contention that the trial court's declaratory ruling was rendered moot by the 2003 legislative change. Id. at 475-76. For those reasons, Farmers's challenge to the trial court's evidentiary ruling is not properly before us. See ORAP 9.20(2) (questions on review ordinarily limited to those questions "properly before the Court of Appeals"). 11. In its merits brief, Farmers begins its argument on this score by first urguing that plaintiffs never pleaded "a viable fraud claim in this case." Farmers points out that the purported misrepresentation that Farmers made was the provision in its PIP insurance policies stating that Farmers would pay reasonable and necessary medical expenses of its insured. According to Farmers, "a failure to fulfill such obligation, even if intentional, sounds only in contract, not tort." Farmers does not dispute that fraud will lie for inducing a contract through a promise of future performance if the promise is made with the intent not to perform (so-called "fraud in the inducement"). See, e.g., Jones v. Northside Ford Truck Sales, 276 Or 685, 556 P2d 117 (1976) (for fraud based on nonperformance of contractual obligation, intent not to perform future promise must exist when promise is made). But Farmers contends that plaintiffs did not plead that theory or adequately prove that Farmers had its cost containment procedures in place (and thus, intended not to perform its future promise) when plaintiffs obtained or renewed their insurance policies. We agree with the Court of Appeals that Farmers did not preserve a challenge to plaintiffs' pleadings on that theory. Strawn, 228 Or App at 468. Neither did Farmers challenge plaintiffs' evidence as insufficient to support the fraud claim on that basis. Thus, Farmers's arguments in that regard are not properly before us. 12. See Bolt v. Influence, Inc., 333 Or 572, 578, 43 P3d 425 (2002) (in deciding motion for directed verdict, a trial court must consider all the evidence, including reasonable inferences, in the light most favorable to the party opposing the motion). 13. Newman arose in a different procedural posture -- a dispute over class certification. The question of whether reliance must be shown by individualized evidence, or whether it can be inferred from evidence common to the class, is one that often arises in connection with the predicate determination of whether the case is appropriate for class treatment. See generally Mary J. Cavins, Annotation, Consumer Class Actions Based on Fraud or Misrepresentation, 53 ALR3d 534, 536-57 (1977) (collecting case law arising out of consumer class actions for fraud and misrepresentation). When individualized evidence is required, the individual issues are more likely to predominate in a way that precludes class treatment. Id. at 536. Class certification does not foreclose issues over the adequacy of a class plaintiff's proof of reliance, however. Here, in certifying the class, the trial court did not list reliance as one of the issues of law and fact common to the class. On the other hand, the trial court did not treat the list of common issues as exclusive either, and did not declare in advance that reliance would be determined through individual class member evidence. The issue was thus left to be determined based on plaintiffs' evidentiary showing at trial, which Farmers properly drew into question through its directed verdict motion. Although the parties spar to some extent over the significance of class certification in this case, whatever challenges Farmers may have raised to class certification have dropped from the case; none has been raised to this court on review. The only question is the adequacy of plaintiffs' proof, a question that certification, in and of itself, does not resolve. 14. Compare, e.g., Rohlfing v. Manor Care, Inc., 172 FRD 330, 338-39 (ND Ill 1997) (common evidence permitted inference of classwide reliance where all class members signed standardized contract and received specific written representations about pharmaceutical pricing) with Stout v. J.D. Byrider, 228 F3d 709, 718 (6th Cir 2000) (district court did not abuse discretion in determining that individualized reliance evidence was required, given variations in what documents customers reviewed, what representations agents made to customers, and whether customers selected extended service agreement). 15. See, e.g., Peterson v. H & R Block Tax Services, Inc., 174 FRD 78, 84-85 (ND Ill 1997) (all class members paid significant fee for tax refund loan that they did not qualify to receive; only logical explanation for doing so was reliance on misrepresentation as to availability of loan); Smith v. MCI Telecommunications Corp., 124 FRD 665, 678-79 (D Kan 1989) (implausible that, in accepting and continuing employment, sales employees would not have relied on written commission plans that they were required to sign). See generally FRCP 23(b)(3) Advisory Committee Note (1966) ("[A] fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action[.] * * * On the other hand, although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed."). 16. As plaintiffs pleaded in their complaint, the class certification was premised, in part, on the fact that plaintiff Strawn's claims were typical of those of the class because "[t]he class members and plaintiff [Strawn] were all persons having automobile policies with [Farmers] containing the same PIP language and subject to the same PIP statute[.]" Farmers does not dispute that the evidence established that the class members' contracts of insurance contained standardized PIP provisions that were, in all material ways, uniform for the class as a whole. 17. The financial responsibility laws basically require those who may be liable for damages arising out of the use of a motor vehicle to be able to pay damages up to certain specified amounts, either through insurance or by establishing their ability to pay through certain other means. See ORS 806.060 (specifying methods of compliance for financial responsibility requirements). 18. The dissent characterizes our holding as raising a presumption of reliance. E.g., ___ Or at ___ (Balmer, J., dissenting) (slip op at 7). We disagree. Our conclusion is only that, in this distinctive context, actual reliance can be inferred from the nature of the transaction involved. That context consists of a regulatory scheme that involves mutually reinforcing obligations for purchasers of motor vehicle liability policies and the insurers who issue those policies in Oregon. One of those obligations is that the purchaser must obtain, and the insurer must provide, the statutorily required minimum PIP coverage. Reliance is potentially "self-proving" from the nature of the transaction itself, in which case the transaction is circumstantial evidence of actual, not presumed, reliance. See, e.g., Chisolm v. TranSouth Financial Corp., 194 FRD 538, 560 n 24, 560-61 (ED Va 2000) (noting that reliance can be "self-proving" in certain kinds of transactions, and that what is involved is not so much "presumed reliance" as it is a showing of demonstrated reliance via circumstantial proof). That permissible inference of reliance is not altered by the fact these policies, as motor vehicle liability policies commonly do, contained several types of coverage in addition to the PIP coverage at issue. See ___ Or at ___ (Balmer, J., dissenting) (slip op at 7-8) (noting that policies at issue also provided liability coverage, uninsured and underinsured motorist coverage, collision coverage, and comprehensive coverage). Some of the other coverage is likewise mandatory. See ORS 742.502 (required uninsured and underinsured motorist coverage); ORS 742.504 (similar). Whether one coverage provision is mandatory for purchasers to obtain and insurers to provide, or three such provisions are, does not change the analysis. Our reliance analysis in this case would not extend, however, to coverage (such as collision) that is not statutorily required. 19. Farmers's motion for remittitur also took issue with other aspects of the jury's award, such as the amount of prejudgment interest that the jury awarded, but the issues before us do not implicate those disputes between Farmers and plaintiffs. 20. The actual assignment of error was less than precise as to the rulings that Farmers sought to challenge. Under the caption "Assignment of Error No. 7" the assigned error was only that "Punitive Damages Are Not Allowable. Alternatively, a Remittitur is Required." See ORAP 5.45(3) ("Each assignment of error shall indentify precisely the legal, procedural, factual, or other ruling that is being challenged."). 21. ORCP 64 F(I) provides, in part: "The motion [for new trial] shall be heard and determined by the court within 55 days from the time of the entry of the judgment, and not thereafter, and if not so heard and determined within said time, the motion shall conclusively be deemed denied." 22. ORS 3.070 provides, in part: "Any judge of a circuit court in any judicial district may, in chambers, grant and sign defaults, judgments, interlocutory orders and provisional remedies, make findings and decide motions, demurrers and other like matters relating to any judicial business coming before the judge from any judicial district in which the judge has presided in such matters. * * * The judge may exercise these powers as fully and effectively as though the motions, demurrers, matters or issues were granted, ordered, decided, heard and determined in open court in the county where they may be pending. If signed other than in open court, all such orders, findings and judgments issued, granted or rendered, other than orders not required to be filed and entered with the clerk before becoming effective, shall be transmitted by the judge to the clerk of the court within the county where the matters are pending. They shall be filed and entered upon receipt thereof and shall become effective from the date of entry in the register." Although ORS 3.070 does not explicitly address the effective date of orders made in open court, it does do so implicitly. Our cases involving orders signed outside of open court likewise have implicitly recognized that same proposition in the course of analyzing when those orders took effect. See, e.g., McCollum, 347 Or at 712 (since 1991, an order not signed in open court becomes effective only upon entry in the register); Ryerse v. Haddock, 337 Or 273, 281, 95 P3d 1120 (2004) (order denying motion for new trial did not become effective until entered in the register, because it was signed "other than in open court"). 23. Farmers makes two other abbreviated arguments that we also reject. First, Farmers asserts that it did challenge the "waiver" ruling in the Court of Appeals. Nothing in Farmers's opening brief even acknowledged the existence of the trial court's alternative reasons, however, much less notified the Court of Appeals that Farmers challenged those reasons. In its reply brief, Farmers did summarily contend that the trial court's waiver and procedural rulings were erroneous after plaintiffs, in their responding argument, argued that the Court of Appeals could not reach the issue because Farmers did not challenge the procedural grounds on which the trial court had ruled. But advancing such a new and different argument for the first time in a reply brief is not the proper way to preserve an argument in the Court of Appeals. See (ORAP 5.45(6) (supporting argument must follow assignment of error in opening brief); see generally Ailes v. Portland Meadows, Inc., 312 Or 376, 379-80, 826 P2d 956 (1991) (Court of Appeals should not have reached alternative waiver argument when that argument, in addition to not having been preserved in trial court, was not raised in opening brief on appeal and was instead presented for the first time in reply brief). Compare, e.g., Stanich v. Precision Body and Paint, Inc., 151 Or App 446, 456, 950 P2d 328 (1997) (new claim in reply would not be considered) with Estate of Michelle Schwarz v. Philip Morris Inc., 348 Or 442, 456-57, 235 P3d 668 (2010) (challenge to giving uniform instruction adequately preserved where opening brief, although it did not discretely assign error to such, raised an issue that presented the same legal question, identified the error in preservation section, and argued the point sufficiently to prompt responsive argument by opposing party). Second, Farmers asserts that the Court of Appeals necessarily considered and rejected the waiver and other procedural defects found by the trial court. We fail to see how that is so. Farmers had specifically argued to the Court of Appeals that the motion for new trial had been denied by operation of law, and so the trial court's reasoning was a nullity. The Court of Appeals may have simply accepted that argument. 1. In particular, I agree with the majority that Farmers failed to preserve objections to certain of the trial court's evidentiary rulings, although the issue is a close one. See ___Or at ___ - ___(slip op at 9-16). I also agree with the majority's rejection of Farmers's argument that reliance, when it is an element of a class action claim, always must be established through direct evidence of each class member's individual reliance. See id. at __ (slip op at 22). Rather, as the majority concludes, in an appropriate class action case, classwide reliance may be inferred from evidence common to the class; whether that evidence is sufficient in a particular case will depend on the nature of the misrepresentation, among other factors, and I disagree with the majority on whether the evidence was sufficient here. Finally, I agree with the majority's interpretation of ORCP 64 F and the majority's conclusion that the trial court order giving its reasons for denying defendant's motion for a new trial was valid, even though that order was not issued within 55 days after entry of judgment. See id. at ___ - ___ (slip op at 36-39). 2. Farmers later changed the eightieth percentile level to the ninetieth and then the ninety-ninth. 3. The majority states that a policyholder "does not need to read the policy to justifiably rely on its provisions." ___Or at ___ (slip op at 28). It follows logically that it does not matter whether the policyholder ever received a copy of the policy. 4. Even PIP medical expenses that exceeded the eightieth percentile -- those that Farmers declined to pay -- did so by only a modest amount. Ninety percent were for $25 or less; more than 25 percent were for $3 or less. 5. Similarly, Weiss testified that "[i]f I had known that my bills would not have been paid, I would not have gone to this doctor. I would have waited to find out if they were going to be paid * * *." Weiss, like Strawn, believed incorrectly that Farmers had promised to pay all PIP expenses in full. Weiss provided no evidence of any reliance on Farmers's misrepresentation as to how reasonable and necessary medical expenses would be calculated. 6. Presumably because of the paucity of evidence of reliance, the lower courts never discussed any actual reliance, but presumed that reliance could be found because there was evidence of misrepresentation. When Farmers moved for a directed verdict on the fraud claim, based in part on lack of proof of reliance, the trial court simply ignored that element of the claim. "[T]here are omissions and nondisclosures of material fact that are involved here," the court stated, and "[L]ooking at plaintiffs' evidence in the light most favorable to plaintiffs, there were half-truths involved here, again, using the same standard which the jury could choose to believe the evidence. So the defendant's motion fails on that ground." Similarly, the Court of Appeals stated that, based on evidence of Farmers's misrepresentations, a jury could "reasonably infer that plaintiffs relied on Farmers's misrepresentation that it would pay reasonable and necessary PIP-related expenses when they continued to pay their premiums." Strawn v. Farmers Ins. Co., 228 Or App 454, 471, 209 P3d 357 (2009). But the Court of Appeals pointed to no testimony or other evidence that any named plaintiffs, in fact, relied on Farmers's misrepresentation when they "continued to pay their premiums," and the court's holding -- that reliance could be "inferred" -- made such proof unnecessary. The majority's legal analysis is more plausible than that of the lower courts, but, for the reasons set out above, ultimately is not persuasive.

34de2166d7d01956cb447fbb8008bf0806901640765684233c264745f0202d76

2011-05-19T00:00:00Z

bad1327c-af89-4b6b-8197-9f92d45b8631

In re Oh

S058434

oregon

Oregon Supreme Court

Filed: April 7, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In re: complaint as to the Conduct of JOHN H. OH, Accused. (OSB No. 08118, 08119, 08120, 08156, 08157, 0927, 0970, 0971, 0988, 0989; SC S058434) En Banc On review from a decision of a trial panel of the Disciplinary Board. Submitted on the record August 24, 2010; resubmitted March 25, 2011. Linn D. Davis, Assistant Disciplinary Counsel, Tigard, submitted the brief for the Oregon State Bar. No appearance contra. PER CURIAM The accused is disbarred, commencing 60 days from the date of filing of this decision. The trial panel order imposing restitution is affirmed. PER CURIAM In this lawyer disciplinary proceeding, the Oregon State Bar charged John Oh (the accused) with numerous violations of the Rules of Professional Conduct (RPC) arising from his representation of several clients in immigration matters. When the accused did not answer the Bar's formal complaint, the Bar notified the accused that, if he did not answer the complaint, an order of default would be entered against him. The accused then requested and received an extension of time to file an answer. The accused did not file an answer, however. Nor did he otherwise appear in the proceeding. Consequently, the trial panel entered an order of default against the accused. See BR 5.8(a) (providing for default orders in such circumstances). In that order, the trial panel concluded that the accused had committed a total of 52 violations of the RPC in matters involving 12 different clients. As a sanction, the trial panel ordered that the accused be disbarred and that he pay restitution to specific former clients. See BR 6.1(a) (authorizing the Bar to order restitution in conjunction with another sanction). Although the accused has sought review of the trial panel's decision, he has not file an opening brief. The Bar did so, however. In that brief, the Bar has described the facts supporting the charges, as well as the appropriateness of the sanction of disbarment and the order of restitution. After the Bar filed its brief, the accused tendered a so-called "Form B" resignation pursuant to Bar Rule of Procedure 9.2. By letter, this court advised the accused that it would not accept his resignation unless the accused, within 60 days of that letter, provided adequately for the safekeeping of and access to the files of his former Oregon clients. See BR 12.7 (requiring, in Form B resignation, attorney to certify to same). The accused neither responded to that letter nor took the requested action with respect to his files. This court, accordingly, refused to accept the accused's resignation and reactivated his appeal, as it advised the accused it would do. The accused still has not tendered an opening brief in his appeal. As we noted in a recent lawyer disciplinary matter, although our review of these matters is de novo under ORS 9.536(2), the court is "free to circumscribe the extent of its review due to the absence of briefing or argumentation challenging the order on review." In re Hartfield, 349 Or 108, 111, 239 P3d 992 (2010). Thus, where review has been requested, but neither party has filed a brief, we ordinarily will affirm the order of the trial panel inasmuch as no party has raised an argument challenging the trial panel order. Id. at 112; see generally In re Paulson, 346 Or 676, 679 n 3, 216 P3d 859 (2009), adh'd to as modified on recons, 347 Or 529, 225 P3d 41 (2010) ("[O]rdinarily we will consider the issues for our review to be those framed by the parties' briefs and arguments."). We followed that course recently in In re Murphy, 349 Or 366, 369, 245 P3d 100 (2010). Here, the Bar filed its brief before Hartfield was decided. Thus, the Bar did so before this court had explained that the Bar, pursuant to ORAP 11.25(3)(b), may request by letter that the matter be submitted without briefing or argument when the accused does not file a brief. The Bar's brief in this case does not challenge any aspect of the trial panel order, but instead supports the violations found by the trial panel as well as the sanctions imposed. The accused, by failing to challenge any aspect of the trial panel's order, has pointlessly invoked the court's jurisdiction and unnecessarily consumed the resources of both this court and the Bar. Given the accused's failure to frame any challenge to the trial panel's order, the accused is not entitled to any different consideration by this court than had he not sought review at all. We therefore have determined that the trial panel order should be affirmed. The accused is disbarred, commencing 60 days from the date of the filing of this decision. The trial panel order imposing restitution is affirmed.

6d21835fa2644cad3da0fb9b77e09258878857da24d22112e68acae018f516b7

2011-04-07T00:00:00Z

792ce8a3-be3b-4c40-9231-58950a7c9828

Oregon v. Cloutier

S059039

oregon

Oregon Supreme Court

Filed: September 22, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. ADAM MICHAEL CLOUTIER, Respondent on Review. (CC D085162T; CA A143051; SC S059039) En Banc On review from the Court of Appeals.* Argued and submitted May 5, 2011. Jeremy C. Rice, 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. Erica Herb, Deputy Public Defender, Office of Public Defense Service, Salem, argued the cause for respondent on review. With her on the brief was Peter Gartlan, Chief Defender. LANDAU, J. The order of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for entry of an order dismissing the appeal. *Appeal from Order Denying Reconsideration dated November 3, 2010, David V. Brewer, Chief Judge. 1 LANDAU, J. 1 The issue in this criminal case is one of appellate jurisdiction: May a 2 defendant who has pleaded no contest to a misdemeanor offense appeal the judgment of 3 conviction to challenge his sentence on the ground that it violates the Due Process Clause 4 of the federal constitution? The Court of Appeals held that it had jurisdiction under ORS 5 138.050(1)(a), which provides that a defendant who has pleaded guilty may appeal after 6 making a colorable showing that the sentence "[e]xceeds the maximum allowable by 7 law." The state sought review, arguing that, because defendant's sentence is well within 8 the maximum allowable by applicable statutes, the case should be dismissed. Defendant 9 responds that, because the process by which the court arrived at his sentence was 10 unconstitutional, that sentence "exceeds the maximum allowable by law" in the sense that 11 any sentence arrived at by that process is unlawful. We conclude that the state is correct 12 that this appeal is not cognizable under ORS 138.050 and therefore reverse and remand 13 for entry of an order dismissing the appeal for lack of jurisdiction. 14 I. BACKGROUND 15 A. Facts 16 Defendant was charged with driving under the influence of intoxicants 17 (DUII). He pleaded no contest to one count of misdemeanor DUII and entered a DUII 18 diversion program. When defendant failed to complete the program, the trial court 19 terminated diversion, entered a judgment of conviction, and imposed a sentence, 20 including a fine. ORS 813.255. The mandatory minimum fine for misdemeanor DUII is 21 $1,000. ORS 813.010(6)(a). The maximum fine for a Class A misdemeanor, including 22 2 misdemeanor DUII, is $6,250. ORS 161.635(1)(a). In this case, the trial court imposed a 1 fine in the amount of $1,100. When defendant asked why the court had imposed more 2 than the mandatory minimum fine, the court explained that the $100 "was for his no 3 contest plea at the time of entering the diversion." 4 Defendant appealed, challenging the lawfulness of the fine. He argued that, 5 "[a]lthough the fine of $1,100 imposed in this case falls within [the] statutory range, the 6 trial court abused its discretion because it imposed a fine greater than the statutory 7 minimum simply because defendant exercised a statutory right" to plead no contest. 8 The state moved to dismiss defendant's appeal, asserting that the Court of 9 Appeals lacks jurisdiction to review the case. The state argued that, under ORS 138.050, 10 jurisdiction to review a sentence imposed after a defendant pleaded guilty is limited to 11 cases in which the defendant has made a colorable showing that the sentence imposed 12 either "exceeds the maximum allowable by law" or is unconstitutionally cruel and 13 unusual. In this case, the state argued, defendant made no argument that the sentence was 14 unconstitutionally cruel and unusual, and there can be no colorable claim that the 15 sentence "exceeds the maximum allowable by law," because it is well below the statutory 16 maximum for the offense. 17 Defendant asserted that the matter was appealable under ORS 18 138.050(1)(a) because the trial court failed to impose the sentence consistently with 19 statutory sentencing requirements, given that the court, in effect, punished him for 20 exercising his statutory right to plead no contest. That error, he argued, caused the 21 sentence to exceed the maximum allowable by law. 22 3 The Appellate Commissioner granted the state's motion, agreeing that the 1 court lacked jurisdiction. The commissioner explained: 2 "[Defendant] does not assert that his sentence was unconstitutionally 3 cruel and unusual, but he argues that the trial court abused its discretion 4 when it imposed a fine greater than the statutory minimum and therefore 5 the sentence was not 'imposed consistently with the statutory requirements.' 6 State v. Stubbs, 193 Or App 595, 606-07, 91 P3d 774 (2004). The fine 7 imposed falls well within the statutory limit. If the trial court took into 8 consideration that [defendant] pleaded no contest in establishing the 9 amount of the fine, that may raise a constitutional issue, State v. Qualey, 10 138 Or App 74, 76-77, 906 P2d 835 (1999) (under state and federal 11 constitutional right to jury trial provisions, judge may not base sentence in 12 part on defendant's exercise of that right). However, no statute bars the trial 13 court from doing so. It follows that the court lacks jurisdiction to review 14 the amount of the fine." 15 Defendant then moved for reconsideration, arguing that, in fact, he did 16 intend to assert that the trial court's imposition of the additional fine for exercising his 17 right to plead no contest raised a constitutional issue. Specifically, he asserted that the 18 trial court's imposition of the fine for exercising that right violated his right to due 19 process guaranteed under the federal constitution. Because the trial court "exceeded the 20 rules that govern its authority when it imposed the fine," he argued, "the sentence in this 21 case exceeded the maximum allowable by law, and this court has jurisdiction over the 22 case." 23 This time, the commissioner agreed with defendant. He concluded that, 24 because defendant 25 "made a colorable showing that the trial court imposed a fine in excess of 26 the minimum required by law solely because appellant pleaded no contest 27 and that, by doing so, the trial court imposed a sentence that exceeds the 28 maximum allowable by case law or under the state or United States 29 constitutions." 30 4 The state petitioned for reconsideration, asserting that, under ORS 1 138.050(1)(a), a sentence "exceeds the maximum allowable by law" only when it exceeds 2 limits imposed by statute or administrative rule. In this case, the state noted, defendant 3 cites no statute or administrative rule that the trial court violated in imposing the 4 challenged fine. To the contrary, his sole contention appears to be that the fine violates 5 the Due Process Clause of the federal constitution. The problem is, the state asserted, 6 ORS 138.050(1)(b) limits the sort of constitutional challenges to sentences imposed after 7 a guilty or no contest plea to claims that the sentences are "unconstitutionally cruel and 8 unusual." 9 The Chief Judge of the Court of Appeals denied the state's petition. The 10 state then petitioned this court for review. We granted review to resolve whether the 11 Court of Appeals has jurisdiction to review defendant's claim. 12 B. The Parties' Contentions 13 On review, the state reiterates its contention that, under ORS 138.050, a 14 sentence imposed after a defendant pleads no contest may be appealed on only one of two 15 narrow grounds. First, under ORS 138.050(1)(a), a defendant may appeal if there is a 16 colorable showing that the sentence "exceeds the maximum allowable by law." Second, 17 under ORS 138.050(1)(b), a defendant may appeal if there is a similar showing that the 18 sentence is "unconstitutionally cruel and unusual." According to the state, because 19 defendant does not assert that the fine at issue is unconstitutionally cruel and unusual, the 20 only issue is whether it "exceeds the maximum allowable by law" within the meaning of 21 ORS 138.050(1)(a). 22 5 The state argues that the plain meaning of the wording of that provision 1 defeats defendant's assertion of jurisdiction in this case. The state reasons that, under the 2 ordinary meaning of the statute's terms, a sentence "exceeds" a "maximum" only when it 3 goes beyond a quantitative limit established by "law." According to the state, defendant 4 fails to identify any quantitative limit established by any law that the fine exceeds in this 5 case. Aside from that, the state argues, the "law" to which ORS 138.050(1)(a) refers is a 6 statute or administrative rule. The state acknowledges that, in the abstract, the term "law" 7 can also embrace constitutions. It nevertheless contends that, in this context, if the word 8 were given that broader definition, that would render the separate ground for appeal 9 stated in ORS 138.050(1)(b) entirely superfluous. 10 The state argues that, even assuming that the bare wording of the statute 11 were ambiguous, the legislative history of ORS 138.050(1)(a) makes clear that the 12 legislature intended to permit an appeal of a sentence imposed following a guilty or no 13 contest plea only on the narrow grounds that the sentence exceeds a quantitative limit 14 established by statute or is unconstitutionally cruel and unusual. The state also contends 15 that prior versions of ORS 138.050, along with judicial interpretations of it, consistently 16 have emphasized that the statute was intended to authorize only limited appellate review 17 of sentences. Moreover, the state observes, the legislature, in adopting more recent 18 amendments to ORS 138.050, specifically considered and rejected a proposed 19 amendment that would have permitted constitutional challenges to a sentence other than 20 that it is cruel and unusual. 21 Defendant argues that the "plain text" of ORS 138.050(1)(a) makes clear 22 6 that "the legislature intended to authorize appellate review of all constitutional challenges 1 to dispositions following no contest and guilty pleas." A sentence "exceeds the 2 maximum allowable by law," he contends, when the trial court goes beyond its statutory 3 or constitutional authority in imposing it. 4 According to defendant, that ORS 138.050(1)(a) is not limited to 5 nonconstitutional challenges is borne out by the fact that, in a number of cases arising 6 under the parallel provision of ORS 138.040(1)(b)(A), this court has entertained 7 constitutional challenges other than assertions that the sentence is cruel and unusual. 8 ORS 138.050, he urges, should be interpreted in like fashion. 9 As for legislative history, defendant contends that the history of the 1985 10 amendments to the statutes "provide[s] definitive evidence that the legislature intended to 11 authorize appellate review of all constitutional challenges to dispositions following no 12 contest and guilty pleas." Defendant argues that we should ignore the legislative history 13 of the more recent amendments to the statute on which the state relies. 14 II. ANALYSIS 15 It is a well-settled principle that "[a] party does not have an inherent right to 16 appellate court review; the right to appeal is wholly statutory and an appellant must 17 establish that the decision from which the appeal is taken is appealable under some 18 statutory provision." Waybrant v. Bernstein, 294 Or 650, 653, 661 P2d 931 (1983). In 19 this case, both parties agree that the relevant statutory grant of appellate jurisdiction is 20 ORS 138.050, which provides that, subject to an exception not pertinent to this case, 21 "(1) * * * a defendant who has pleaded guilty or no contest may 22 7 take an appeal from a judgment or order described in ORS 138.053 [setting 1 out the form and content of an appealable judgment or order] only when the 2 defendant makes a colorable showing that the disposition: 3 "(a) Exceeds the maximum allowable by law; or 4 "(b) Is unconstitutionally cruel and unusual. 5 "* * * * * 6 "(3) On appeal under subsection (1) of this section, the appellate 7 court shall consider only whether the disposition: 8 "(a) Exceeds the maximum allowable by law; or 9 "(b) Is unconstitutionally cruel and unusual." 10 The focus of the parties' dispute is on the meaning of ORS 138.050(1)(a) and the scope of 11 its phrasing that a defendant who has pleaded guilty may appeal to assert that a 12 disposition "[e]xceeds the maximum allowable by law." 13 The issue is one of statutory construction, governed by familiar principles 14 that require us to ascertain the meaning of the statute most likely intended by the 15 legislature that adopted it. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). 16 We ascertain the legislature's intentions by examining the text of the statute in its context, 17 along with relevant legislative history, and, if necessary, canons of construction. Id. 18 As the nature of the parties' arguments makes clear, determination of what 19 the legislature most likely intended ORS 138.050(1)(a) to mean is a complex matter. To 20 begin with, some of the phrasing in the statute is intrinsically ambiguous. As Jerome 21 Frank observed, the term "law" fairly "drips with ambiguity." Jerome Frank, Courts on 22 Trial 66 (1950). Bryan Garner has identified no fewer than nine different senses in which 23 the word "law" is commonly used, including a broad reference to the aggregate of all 24 8 legislative, administrative, and judicial action, as well as a more narrow reference to 1 statutes alone. Bryan A. Garner, A Dictionary of Modern Legal Usage 503-04 (2d ed 2 1995). 3 Complicating matters is the fact that ORS 138.050 is but a part of a larger 4 statutory scheme involving appeal and review of sentencing and other dispositions in 5 criminal cases, a scheme that has been the subject of legislative amendment and judicial 6 interpretation, followed by further legislative amendment and further judicial 7 interpretation. 8 Consequently, to place the parties' arguments in this case in proper context, 9 we begin with a description of the origins of ORS 138.050 and how it relates to the larger 10 scheme of statutes of which it is a part before turning to an analysis of the statute's text 11 and intended meaning. The description is fairly detailed, but necessarily so. Both parties 12 tend to cherry-pick from the history of the relevant statutes and the cases construing 13 them, and only by providing a more complete account may we fairly assess their 14 arguments and identify the likely intentions of the legislature in enacting those statutes. 15 In brief, we conclude that, although defendant's proposed construction of 16 the bare wording of ORS 138.050 is not wholly implausible, that construction becomes 17 untenable when considered in the light of other indicia of legislative intent, in particular, 18 other parts of ORS 138.050, related sentencing statutes, and this court's prior construction 19 of the statute. Defendant's reliance on prior decisions of this court is misplaced; none 20 was decided under the version of ORS 138.050(1)(a) that is at issue in this case. His 21 reliance on legislative history is similarly misplaced. 22 9 A. The History of ORS 138.050 and Its Prior Interpretation 1 1. Historical Context 2 At common law, appellate review of criminal sentences did not exist; in 3 fact, there was no right to criminal appeal at all. See generally Lester B. Orfield, 4 Criminal Appeals in America 215-16 (1939). The Oregon legislature first conferred 5 appellate jurisdiction to review a judgment entered in a criminal case in 1864. General 6 Laws of Oregon, Crim Code, ch XXIII, § 226, p 480 (Deady 1845-1864). The statute 7 provided: 8 "An appeal to the supreme court may be taken by the defendant, 9 from a judgment on a conviction in a circuit court; and upon the appeal, any 10 actual decision of the court, in an intermediate order or proceeding forming 11 a part of the judgment roll, as prescribed by section 192, may be reviewed." 12 Like nearly all state statutes at the time, however, Oregon's said nothing about appellate 13 court review of sentences. 14 In 1905, the legislature adopted indeterminate sentencing laws. Under the 15 new legislation, when a defendant was convicted of a felony for which the maximum 16 punishment did not exceed 20 years' imprisonment, the court was authorized to exercise 17 discretion and sentence the defendant to an indeterminate period of incarceration, 18 provided that "such imprisonment shall not in any event exceed the maximum term 19 provided by law for the crime of which the prisoner was convicted and sentenced." 20 Lord's Oregon Laws, title XVIII, ch XI, § 1592 (1910). 21 In State v. Lewis, 113 Or 359, 230 P 543, on reh'g, 232 P 1013 (1925), this 22 court first addressed the authority of an appellate court to review a sentence imposed 23 10 under the indeterminate sentencing laws after a defendant pleaded guilty. The court 1 concluded that the legislature implicitly conferred such authority in the 1864 statute that 2 created a right of appellate review of "a judgment on a conviction," which the court held 3 included convictions based on guilty pleas. The court explained that the effect of a guilty 4 plea is to admit the facts as charged in the indictment; but that does not preclude a 5 defendant who has so pleaded from advancing purely legal challenges to the lawfulness 6 of the conviction or the sentence that resulted. Id. at 361-62. As an example, the court 7 cited the imposition of a sentence that exceeded the maximum provided by statute. If, the 8 court observed, "in pronouncing judgment, the court imposes a sentence in excess of that 9 provided for by statute, a legal wrong results to the defendant, which, if it could not be 10 corrected upon appeal, would leave the defendant remediless." Id. at 362. 11 In 1945, the legislature enacted a new statute that made explicit the right of 12 a defendant who pleaded guilty to appeal, but that also limited the nature of the issues 13 that could be the basis of such an appeal to the excessiveness of the sentence: 14 "An appeal may be taken by the defendant who has plead [sic] guilty 15 from a judgment on conviction, where the judgment of conviction imposes 16 an excessive fine, or imposes excessive, cruel or unusual punishment. * * * 17 On such appeal, the appellate court shall only consider the question as to 18 whether an excessive fine has been imposed, or excessive, cruel or unusual 19 punishment has been inflicted which is not proportionate to the offense. If, 20 in the judgment of the appellate court, the fine imposed or the punishment 21 inflicted is excessive, unusual or cruel and not proportionate to the offense, 22 it shall direct the court from which the appeal is taken to impose the 23 punishment which should be administered." 24 Or Laws 1945, ch 62, § 1, compiled at OCLA 26-1304a (1944-1947 Secondary Pocket 25 Part). 26 11 This court first addressed the purpose and effect of the 1945 legislation in 1 State v. Ridder, 185 Or 134, 202 P2d 482 (1949). In that case, the defendant pleaded 2 guilty to a charge of first-degree arson and was sentenced to a term of ten years' 3 incarceration. Id. at 136. Some months after sentencing, he filed a motion to set aside 4 the judgment of conviction on the ground that he was not guilty of the charge. Id. When 5 the motion was denied, the defendant appealed, invoking OCLA 26-1304a (1945) as the 6 basis for the appeal. This court rejected the appeal, explaining that 7 "[t]he obvious purpose of the statute * * * is to empower us to review the 8 discretion of the Circuit Court in passing sentence after a plea of guilty, 9 and, if we are of the opinion that the punishment is excessive, unusual or 10 cruel, and not proportionate to the offense, to determine what punishment 11 should have been imposed and to direct the court below to change the 12 sentence accordingly." 13 Id. at 137. The sole question, the court explained, was whether the sentence was 14 excessive, unusual, cruel, or not proportionate to the offense. Id. The court observed that 15 there was nothing before it to suggest that the sentence was cruel, unusual, or 16 disproportionate to the offense. Id. at 139. That left the question whether the sentence 17 was "excessive." On that matter, the court concluded that the fact that the sentence was 18 within the range permitted by statute was dispositive: 19 "We have nothing * * * upon which to act except the bare fact that the 20 defendant was sentenced to serve a term of not to exceed ten years in the 21 penitentiary on a plea of guilty to a crime which carries with it a minimum 22 penalty of not less than two years and a maximum penalty of not more than 23 twenty years. This, we need hardly say, does not warrant us in disturbing 24 the sentence." 25 Id. at 138 (citation omitted). 26 In 1953, when the legislature revised and codified existing statutes into the 27 12 Oregon Revised Statutes, both the original grant of jurisdiction over appeals of criminal 1 convictions generally and the 1945 statute authorizing appeals from judgments on guilty 2 pleas were still in force. The former was codified at ORS 138.040 (1953), with its 3 wording essentially unchanged from the original 1864 version. The latter was codified at 4 ORS 138.050 (1953), with its wording also essentially unchanged from its 1945 original. 5 In State v. Jairl, 229 Or 533, 368 P2d 323 (1962), the court addressed the 6 effect of the enactment of the 1945 statute, later recodified as ORS 138.050. The 7 defendant in Jairl had been charged with forgery. Id. at 534. He moved to dismiss the 8 charges, but later withdrew the motion. The defendant then pleaded guilty, and the trial 9 court sentenced him to a term of incarceration. Id. at 537. The defendant appealed, 10 arguing that, among other things, the trial court should have ruled on his motion to 11 dismiss the charges. This court, on its own motion, dismissed the appeal. Id. at 538. 12 The court explained that ORS 138.040 was the only statute "with language 13 broad enough to justify an appeal of the grounds submitted by the defendant." Id. at 539. 14 The court noted that its opinion in Lewis held that even a defendant who had pleaded 15 guilty could appeal a resulting judgment of conviction in a variety of purely legal 16 grounds, including the grounds raised by the defendant in Jairl. 229 Or at 540. The 17 problem, the court stated, was that, since Lewis, the legislature had enacted ORS 138.050. 18 The enactment of that statute, in effect, "overruled" Lewis: 19 "We believe that the legislature intended to prohibit appellate review 20 of convictions based upon a plea of guilty except to the limited extent 21 granted by ORS 138.050. The restrictive language of ORS 138.050 would 22 have no effect if a defendant could appeal alternatively under ORS 138.040 23 and [ORS] 138.050 or concurrently under both statutes. ORS 138.050 must 24 13 be held to overrule by implication the interpretation which this court placed 1 on ORS 138.040 in State v. Lewis." 2 Jairl, 229 Or at 541. The defendant's remedy, the court held, lay under the Post- 3 Conviction Hearing Act. "He is entitled to no more." Id. at 542. 4 2. The 1977 Amendments 5 In 1977, the legislature extensively revised Oregon's criminal sentencing 6 laws, adopting a new system that was something of a precursor to the sentencing 7 guidelines that it would adopt two decades later. HB 2013 (1977). Under the new law, 8 trial judges imposing a sentence of incarceration following a felony conviction were 9 required to receive a presentence report from the Corrections Division with the division's 10 recommendations as to an appropriate sentence. Former ORS 144.790 (1977), repealed 11 by Or Laws 1995, ch 520, § 3. The trial judge then was required to sentence the offender 12 to imprisonment "for an indeterminate period of time," but stating in the judgment "a 13 maximum term for the crime, which shall not exceed the maximum term of imprisonment 14 provided by law therefor." ORS 137.120(2) (1977). The statute required the trial court 15 to "state on the record the reasons for the sentence imposed." Id. Then, following the 16 offender's admission to a state penal or correctional institution, the Board of Parole was 17 required to determine an initial parole release date, based on the sentencing report, along 18 with a set of rules -- a "matrix" -- establishing ranges of duration of imprisonment based 19 primarily on the seriousness of the offender's conduct and criminal history. See generally 20 Hamel v. Johnson, 330 Or 180, 185-86, 998 P2d 661 (2000) (explaining matrix system). 21 As part of the changes to the state's sentencing laws, the legislature 22 14 amended ORS 138.050 to provide that a defendant who had pleaded guilty could appeal a 1 judgment that "imposes a sentence that is cruel, unusual or excessive in light of the nature 2 and background of the offender or the facts and circumstances of the offense." ORS 3 138.050 (1977). The legislature also, for the first time, substantially revised the statute 4 pertaining to appeal of a conviction entered after a trial, so that, under ORS 138.040, the 5 appealability of the sentence imposed was identical to that provided under ORS 138.050. 6 The legislative history of the enactment makes clear that the legislature 7 consciously determined that such "symmetry" between the two statutes was appropriate. 8 Minutes, House Committee on Judiciary, Apr 26, 1977, 13. The legislative history does 9 not, however, shed light on the intended scope of the appellate courts' authority to 10 entertain a challenge that a sentence is "cruel, unusual or excessive in light of the nature 11 and background of the offender or the facts and circumstances of the offense." ORS 12 138.050 (1977). There was a brief colloquy in a hearing before the House Judiciary 13 Committee, in which then-Representative Dave Frohnmayer asked about the meaning of 14 the reference to "cruel" and "unusual" sentences. Minutes, House Committee on 15 Judiciary, Apr 26, 1977, 12. Multnomah County Circuit Court Judge John Beatty, 16 speaking on behalf of the Oregon Judicial Conference, replied that the terms would likely 17 be interpreted to embrace the constitutional standard. Id. He speculated that nothing 18 within a statutory range would be considered unconstitutionally cruel and unusual, but 19 that the use of the term "excessive" he considered "open," apparently in reference to the 20 fact that the new law called for review of a sentence in terms of "the facts and 21 circumstances of the offense," and not just the statutory range. Id. The subject did not 22 15 resurface during the hearings. 1 The "maximum term of imprisonment," meanwhile, continued to be set out 2 by statute, as it had been for years. By now, however, the legislature employed phrasing 3 that explicitly referred to the limits of a court's sentencing authority in terms of a 4 "maximum term" of imprisonment. ORS 161.605 (1977), for example, provided that 5 "[t]he maximum term of an indeterminate sentence of imprisonment for a felony" was 20 6 years for a Class A felony, 10 years for a Class B felony, and 5 years for a Class C 7 felony. The maximum amount of fines also was set out by statute. ORS 161.625 (1977), 8 for example, provided that a fine imposed for a felony could not exceed $2,500. 9 The Court of Appeals addressed the 1977 version of ORS 138.050 in State 10 v. Dinkel, 34 Or App 375, 579 P2d 245 (1978), rev den, 285 Or 195 (1979). In that case, 11 the defendant pleaded guilty to multiple charges of kidnapping, robbery in the first 12 degree, burglary in the first degree, and unauthorized use of a motor vehicle. Id. at 378. 13 The sentence that the trial court imposed included a combination of concurrent and 14 consecutive terms of imprisonment. The defendant appealed, arguing that the 15 consecutive sentences were excessive under the circumstances and constituted cruel and 16 unusual punishment. Id. at 379. 17 The court began by noting that, under the pre-1977 version of ORS 18 138.050, "sentences reviewed under its purview were not found to be excessive as long as 19 they were within the statutory maximum allowed for any given offense." Id. at 384. The 20 court explained that the amended version of the statute, in contrast, authorized appellate 21 courts to engage in "substantive appellate review of a sentence." Id. at 385. The court 22 16 explained that the legislative history of the 1977 version "provides little guidance" as to 1 the scope of appellate court authority it entails. Id. But, based on the phrasing of the 2 amended law that permitted the appellate court to consider not just the statutory 3 maximum sentence but also "the nature and the background of the offender and the facts 4 and circumstances of the offense," the court concluded that the legislature apparently 5 intended to broaden the scope of appellate court authority to review sentences in criminal 6 cases. Id. at 385. 7 The court cautioned that ORS 138.050 (1977) did not authorize de novo 8 review and did not allow an appellate court to substitute its "notion of an appropriate 9 sentence for that of the trial court." Id. at 387. Instead, the court explained: 10 "We presently perceive of only two circumstances which would 11 authorize and require intervention by us in sentencing decisions. The first 12 would arise if a trial court failed to comply with its statutory duty under 13 ORS 144.790(1) by not considering a presentence report, or violated ORS 14 137.120(2) by failing to state on the record its reasons for the sentence 15 imposed. The second circumstance would arise only when we find that a 16 sentence imposed by a trial court is, as other jurisdictions with similar 17 sentence review statutes have stated, 'clearly mistaken' or a 'clear abuse of 18 discretion.'" 19 Id. at 387-88 (citations omitted). Applying that standard, the court concluded that the 20 trial court did not err in imposing 65 years' imprisonment because the sentence did not 21 violate a sentencing statute and did not represent a clear abuse of discretion. Id. at 389- 22 90. 23 A year later, in State v. Biles, 287 Or 63, 66-67, 597 P2d 808 (1979), this 24 court expressly adopted the reasoning of Dinkel and agreed that ORS 138.050 (1977), as 25 amended, broadened the authority of appellate courts to review sentences beyond the 26 17 question whether the sentences exceeded any applicable statutory maximums. In Biles, 1 the defendant pleaded no contest to a charge of unauthorized use of a motor vehicle. 287 2 Or at 65. The defendant then appealed, arguing that the sentence was unlawful because, 3 among other things, the trial court had failed to order a presentence report, as required 4 under the 1977 amendments to the state's sentencing statutes. Id. at 65-66. The Court of 5 Appeals had reversed and remanded the case for resentencing, in light of the trial court's 6 failure to order a presentence report. State v. Biles, 34 Or App 531, 533, 579 P2d 259 7 (1978), rev'd, 287 Or 63, 597 P2d 808 (1979). The state sought review, arguing that ORS 8 138.050 (1977) authorized a criminal defendant who pleaded guilty to challenge only the 9 excessiveness of his or her sentence. 10 On review, this court rejected the state's contention, explaining that, as the 11 Court of Appeals had correctly concluded in Dinkel, the amendments to the statute 12 broadened the authority of appellate courts to review sentences imposed following a 13 guilty plea. The court noted that the amendments require appellate courts to evaluate the 14 sentence "in light of the nature and background of the offender or the facts and 15 circumstances of the offense." Biles, 287 Or at 66 (quoting ORS 138.050 (1977)). It 16 follows, the court reasoned, that appellate courts "necessarily possess the power to 17 require trial court compliance with the procedural statutes that make performance of 18 those duties possible." Id. at 68. 19 In State v. Clevenger, 297 Or 234, 683 P2d 1360 (1984), however, this 20 court concluded that Biles should not be read to hold that all procedural errors were 21 appealable under ORS 138.050 (1977). The court explained that, under ORS 138.050, a 22 18 defendant who has pleaded guilty may appeal only when the trial court's errors make it 1 impossible for the appellate courts to determine whether the actual sentence imposed was 2 "excessiv[e]." Clevenger, 297 Or at 245-46. 3 3. The 1985 Amendments 4 In the meantime, the Court of Appeals found itself awash in appeals 5 involving defendants who had pleaded guilty or no contest, but then asked the appellate 6 court to review the excessiveness of the sentence "in light of the nature and background 7 of the offender or the facts and circumstances of the offense." ORS 138.050 (1977). The 8 court typically rejected such challenges, citing its opinion in Dinkel for the proposition 9 that it was authorized to review sentences only to the extent that the sentence was "clearly 10 mistaken" or a "clear abuse of discretion" in light of the statutes governing the imposition 11 of sentences in criminal cases. See, e.g., State v. Larsen, 44 Or App 769, 607 P2d 212, 12 rev den, 289 Or 275 (1980). 13 In 1985, the Court of Appeals asked the legislature to amend ORS 138.050 14 to narrow appellate court jurisdiction to review sentencing decisions. The bill to 15 accomplish that narrowing of appellate court jurisdiction was introduced as House Bill 16 (HB) 2126 (1985). That bill proposed to strike any reference to authorizing an appeal 17 when the sentence is excessive "in light of the nature and background of the offender or 18 the facts and circumstances of the offense." In place of the stricken phrase, the bill 19 proposed to substitute appellate court jurisdiction only when a sentence "exceeds the 20 maximum sentence allowable by law or is unconstitutionally cruel or unusual." On such 21 an appeal, the bill proposed, "the appellate court shall only consider the question whether 22 19 a sentence has been imposed that exceeds the maximum sentence allowable by law or is 1 unconstitutionally cruel or unusual." HB 2126 (1985). 2 On its face, the wording of the bill appeared to call for a return to the scope 3 of appellate court authority to review sentences to the pre-1977 limits, that is, appellate 4 courts would have authority to review only to determine whether the sentence exceeded 5 the statutory maximum or was otherwise unconstitutionally cruel and unusual. And, 6 indeed, that is how the bill was characterized at several junctures in its legislative history. 7 Unfortunately, the legislative history is not entirely consistent on the point. 8 At the initial hearing on the bill before the House Committee on Judiciary, 9 Chief Judge George Joseph submitted written testimony that explained that, "[u]p to 10 1977, a person convicted after trial or on a guilty plea could raise on appeal only the 11 issues of whether the sentence imposed exceeded that which was statutorily permitted or 12 violated the federal or state constitutional prohibitions against cruel and unusual 13 punishments." Testimony, House Committee on Judiciary, HB 2126, Feb 21, 1985, Ex G 14 (statement of Chief Judge Joseph). Chief Judge Joseph explained that, in 1977, the 15 legislature had broadened the authority of appellate courts to review sentences for 16 excessiveness "'in light of the nature and background of the offender or the facts and 17 circumstances of the offense.'" Id. (quoting ORS 138.050 (1977)). The Chief Judge 18 noted, however, that, despite the 1977 legislation, the appellate courts continued to 19 entertain challenges to criminal sentences only on very narrow grounds. Id. Referring to 20 the Court of Appeals decision in State v. Dinkel, the Chief Judge stated flatly that "we do 21 not ever set aside a sentence as 'excessive in light of the nature and background of the 22 20 offender or the facts and circumstances of the offense,'" as doing so puts the appellate 1 courts at odds with the Board of Parole, which the Chief Judge stated is more 2 appropriately responsible for making such determinations. Id. (underlining in original) 3 (quoting ORS 138.050 (1977)). According to Chief Judge Joseph, HB 2126 simply 4 reflected the reality of appellate court practice, and its passage -- while reducing the 5 workload of the Court of Appeals -- "will have absolutely no effect on the practical rights 6 of defendants." Id. (underlining omitted). 7 The Oregon Department of Justice supported the bill. Solicitor General 8 James Mountain explained: 9 "In its current form, HB 2126 would codify present practice in the 10 State of Oregon. Although the language of ORS 138.040 and 138.050 11 arguably can be read to provide for a more expansive appellate review of 12 criminal sentences, the Court of Appeals pragmatically and practically has 13 construed and applied the statutes narrowly. Presently, the Court of 14 Appeals reviews sentences based upon standards substantially similar to the 15 criteria which HB 2126 expressly would provide." 16 Testimony, House Committee on Judiciary, HB 2126, Feb 21, 1985, Ex H (statement of 17 Solicitor General James Mountain). The Solicitor General did suggest one amendment to 18 the bill. He explained that, while HB 2126 authorizes review of a sentence to determine 19 whether it is unconstitutionally "cruel or unusual," in the disjunctive, the actual phrasing 20 of the state and federal constitutions is in the conjunctive -- "cruel and unusual." Id. 21 (underlining in original). 22 At a second hearing before the House Committee on Judiciary, Chief Judge 23 Joseph again explained that the reason for the bill was one of workload control. "We 24 want out of the sentence review business," he explained. Tape Recording, House 25 21 Committee on Judiciary, Subcommittee 1, HB 2126, Mar 4, 1985, Tape 171, Side A 1 (statement of Chief Judge Joseph). He elaborated: 2 "We are not a sentencing court, we do not sentence people, we have no 3 basis to compare sentences, we have no basis to compare people that appear 4 before us. Unfortunately, as it stands, the [current] legislation is an 5 invitation to appeal, even though in State v. Dinkel, we said we have no 6 facility for doing it in the way the statute seems to describe and, frankly, we 7 said we wouldn't do it and we haven't done it." 8 Id. The Chief Judge hastened to add, however, that the legislature should "[p]lease keep 9 in mind we still continue to review sentences for unconstitutional cruelty or unusualness 10 and we will examine sentences for lawfulness within the statutory limits." Id. (emphasis 11 added). 12 At another hearing before the House Committee on Judiciary, then-Judge 13 W. Michael Gillette similarly explained that the purpose of HB 2126 was "to have the 14 law stay with [what the] present practice is before the Court of Appeals." Tape 15 Recording, House Committee on Judiciary, Subcommittee 1, HB 2126, May 20, 1985, 16 Tape 649, Side A (statement of Judge Gillette). At that same hearing, there was a motion 17 to amend the bill to make the correction in phrasing -- changing "cruel or unusual" to 18 "cruel and unusual" -- that the Solicitor General had suggested. The motion passed 19 without objection. Minutes, House Committee on Judiciary, May 20, 1985, 6. 20 The bill passed out of the House and was referred to the Senate Judiciary 21 Committee. At the initial hearing on the bill, Judge Gillette stated that the purpose of HB 22 2126 "is designed to conform the language of the law with what is, by and large, the 23 present practice in the Court of Appeals with respect to review of sentences." Minutes, 24 22 Senate Judiciary Committee, June 11, 1985, 16 (statement of Judge Gillette). He 1 explained that, under current appellate court practice, the court reviews criminal 2 sentences in only three ways: first, "to determine if the sentence is unconstitutional 3 because it is cruel and unusual"; second, to determine whether "it is illegal because it is in 4 excess of the maximum sentence which may be imposed by law"; and third, to determine 5 whether the sentence is "disproportionate" in the nonconstitutional sense that "it just isn't 6 fair." Id. The bill, Judge Gillette said, was designed to eliminate the third of those 7 practices. Id. 8 In response to a question from the Chair of the committee, however, Judge 9 Gillette suggested that the scope of appellate court authority under HB 2126 might be 10 broader. The Chair asked whether the bill would authorize appellate courts to review a 11 case in which a defendant convicted of aggravated murder were given a lesser sentence 12 than a defendant who had been convicted of "plain garden variety murder." Judge 13 Gillette replied that the Court of Appeals, "under this bill, [would still] have jurisdiction 14 over that kind of problem, because that problem is constitutional" given that the Chair's 15 hypothetical implicated the Equal Protection Clause of the Fourteenth Amendment and 16 the privileges and immunities clause of the state constitution. Tape Recording, Senate 17 Judiciary Committee, HB 2126, June 11, 1985, Tape 186, Side B (statement of Judge 18 Gillette). 19 At a later hearing before the Senate Judiciary Committee, Chief Judge 20 Joseph again explained that the purpose of the bill was "restricting the scope of review 21 and would take us out of what we refer [to] generally as 'the sentence review business,' 22 23 which the court has statutory authority to do, which we have not exercised in any general 1 way." Tape Recording, Senate Judiciary Committee, HB 2126, June 12, 1985, Tape 190, 2 Side B (statement of Chief Judge Joseph). Interestingly, Senator Ed Fadeley asked 3 whether, because the bill appeared to foreclose the authority of the appellate courts to 4 review constitutional challenges other than that the sentence is cruel and unusual, the bill 5 itself is unconstitutional. Id. (statement of Sen Fadeley). Chief Judge Joseph replied 6 simply that "[m]y primary issue in the bill is to attempt to reduce the impact of our 7 having to sit, or being required to sit, in judgment of sentences for which we have no 8 facility and for which those in other agencies are empowered." Id. (statement of Chief 9 Judge Joseph). Senator Margie Hendrickson then asked whether, in fact, it was true that 10 the bill would so restrict appellate authority, and Chief Judge Joseph replied, "That is 11 correct." Id. He then added that, under the current law, "I think it's fair to say, that we 12 have in fact said that we are not likely to set aside a sentence that is within the limits of 13 the law of the statute and is otherwise constitutionally sound under the statute." Id. 14 HB 2126 ultimately passed into law. Shortly after the passage of the bill, 15 this court had occasion to determine its effect in State v. Loyer, 303 Or 612, 740 P2d 177 16 (1987). In that case, the defendant pleaded guilty to assault in the third degree and 17 attempted kidnapping in the second degree. Id. at 614. The trial court ordered a 18 psychiatric examination in preparation for a hearing about whether the defendant should 19 be sentenced as a dangerous offender. ORS 161.735. At the hearing, the state introduced 20 an affidavit of the examining psychiatrist. The defendant asked the court to reset the 21 hearing so that the psychiatrist could be summoned to the hearing and be cross-examined. 22 24 The trial court denied the motion and sentenced the defendant as a dangerous offender, 1 imposing a 30-year sentence with a 10-year minimum. Loyer, 303 Or at 614-15. The 2 defendant appealed, arguing that the trial court erred in imposing a sentence without 3 permitting him to cross-examine the state's psychiatrist. Id. at 615. He asserted that the 4 failure of the sentencing court to permit him to cross-examine the witness violated ORS 5 161.735, as well as the confrontation guarantees of the state and federal constitutions and 6 the Due Process Clause of the Fourteenth Amendment. Petition for Review, Loyer, 303 7 Or 612 (S33447). The defendant argued that, under this court's prior decisions in Biles 8 and Clevenger, appellate courts have authority to review such matters involving the 9 lawfulness of procedures by which trial courts arrive at a sentence imposed after a guilty 10 plea. Loyer, 303 Or at 615. 11 This court rejected the defendant's reliance on Biles and Clevenger and 12 concluded that his contentions were beyond the authority of the court to consider.1 The 13 court explained that it was "significant" that Clevenger and Biles interpreted a different 14 version of ORS 138.050: 15 "The statute we interpreted in Clevenger and Biles directed us to review a 16 sentence 'in light of the nature and background of the offender or the facts 17 and circumstances of the offense.' We held this to require 'some 18 substantive review of sentences by appellate courts in Oregon' and hence 19 authority to review the process by which the sentence was derived. 20 1 The court described ORS 138.050 as a statute that limits the "scope of review" of appellate courts. That is not precisely correct, as that statute sets out the types of judgments that may be appealed. We do not understand that inaccurate phrasing to have made a difference in the reasoning of the court's analysis of the statute, however. 25 "In contrast, the current version of ORS 138.050 narrows 1 considerably our scope of review." 2 Loyer, 303 Or at 616 (citations omitted). In Loyer, the court stated, the defendant's sole 3 claim was that the trial court failed to follow the proper procedure in imposing a 4 sentence. The problem, the court said, was that the "defendant makes no claim that -- and 5 how -- the procedural flaw prevents us from determining upon appellate review whether 6 the sentence 'exceeds the maximum sentence allowable by law or is unconstitutionally 7 cruel and unusual.'" Id. at 617 (quoting ORS 138.050 (1985)). "Without more," the court 8 concluded, "his claim of procedural error is beyond our limited scope of review. Any 9 claim of cognizable error must be left to possible post-conviction relief * * *." Id. 10 4. The 1989 Amendments 11 In 1989, the legislature overhauled the state's sentencing law and adopted 12 what are known as the "sentencing guidelines." In brief, the new legislation provided 13 that, for felonies committed on or after November 1, 1989, trial courts must impose a 14 "presumptive sentence" determined by reference to rules of the Oregon Criminal Justice 15 Commission, unless the courts make certain findings that would justify a departure from 16 the presumptive sentence. Or Laws 1989, ch 790. See generally State v. Davis, 315 Or 17 484, 486-89, 847 P2d 834 (1993) (summarizing sentencing guidelines legislation). 18 As part of the package of legislation concerning the new sentencing law, 19 the legislature enacted what is now ORS 138.222, governing appeal and review of 20 sentences imposed for felonies committed on or after the effective date of the sentencing 21 guidelines law. The statute begins by authorizing appeals of judgments of conviction 22 26 based on a sentence for felonies committed on or after November 1, 1989. ORS 1 138.222(7). It then specifies the scope of review in such appeals with explicit reference 2 to ORS 138.040 and ORS 138.050. It states that "[n]otwithstanding the provisions of 3 ORS 138.040 and 138.050, a sentence imposed for a judgment of conviction entered for a 4 felony committed on or after November 1, 1989, may be reviewed only as provided by 5 this section." ORS 138.222(1). Among other things, the statute provides that the 6 appellate courts may not review a sentence "that is within the presumptive sentence 7 prescribed by the rules of the Oregon Criminal Justice Commission." ORS 8 138.222(2)(a). When a sentence does depart from the presumptive sentence, review is 9 limited to whether the sentencing court's findings of fact and reasons justifying a 10 departure "[a]re supported by the evidence in the record" and "[c]onstitute substantial and 11 compelling reasons for departure." ORS 138.222(3). What the appellate courts may 12 review are three types of error: 13 "(a) The sentencing court failed to comply with requirements of 14 law in imposing or failing to impose a sentence; 15 "(b) The sentencing court erred in ranking the crime seriousness 16 classification of the current crime or in determining the appropriate 17 classification of a prior conviction or juvenile adjudication for criminal 18 history purposes; or 19 "(c) The sentencing court erred in failing to impose a minimum 20 sentence that is prescribed [by statute]." 21 ORS 138.222(4). 22 In a nutshell, then, appeal and review of sentences imposed for felonies 23 committed after November 1, 1989, are governed by ORS 138.222. ORS 138.040 and 24 27 ORS 138.050 now apply only to appeal and review of sentences for misdemeanor 1 offenses. 2 Meanwhile, during the same 1989 session, the legislature amended ORS 3 138.040 and ORS 138.050 yet again. The amendments were prompted by uncertainty 4 about whether a term of probation was within the meaning of the "sentence" that a 5 defendant could challenge on appeal under ORS 138.040. In State v. Carmickle, 307 Or 6 1, 6-7, 762 P2d 290 (1988), this court concluded that, although an order of probation was 7 appealable on other grounds, it was not a "sentence" within the meaning of ORS 138.050. 8 House Bill (HB) 2470 (1989) was introduced in direct response to 9 Carmickle to make clear that probation is among the categories of sentencing decisions 10 that are subject to the appellate jurisdiction of the courts. Among other things, the bill 11 proposed to amend both ORS 138.040 and ORS 138.050 by replacing the word 12 "sentence" with the word "disposition." A new provision then specified that an 13 appealable disposition includes one that, 14 "(a) Imposes a sentence on conviction. 15 "(b) Suspends imposition or execution of sentence. 16 "(c) Places a defendant on probation. 17 "(d) Extends a period of probation. 18 "(e) Imposes or modifies a condition of probation or of sentence 19 suspension. 20 "(f) Imposes or executes a sentence upon revocation of probation or 21 sentence suspension." 22 Or Laws 1989, ch 849, § 3, codified as ORS 138.053(1). 23 28 The bill passed out of the House with little debate and was referred to the 1 Senate Judiciary Committee. During an initial hearing before the committee, Bradd 2 Swank, a representative from the Office of the State Court Administrator, explained that 3 the wording of the bill had been worked out by representatives of the Judicial Branch and 4 the Attorney General's Office. The goal, he explained, was to "clarify that probation can 5 be reviewed on appeal in the same manner as a sentence." Tape Recording, Senate 6 Committee on the Judiciary, HB 2470, May 24, 1989, Tape 195, Side A (statement of 7 Bradd Swank). 8 At the same hearing, David Fidanque, the associate director of the ACLU 9 of Oregon, testified in opposition to HB 2470, arguing that the court's jurisdiction, as 10 provided in HB 2470, was not broad enough. Tape Recording, Senate Committee on the 11 Judiciary, HB 2470, May 24, 1989, Tape 196, Side A (statements of David Fidanque). 12 Fidanque complained that, because the current law limits constitutional sentencing 13 challenges to claims that it is cruel and unusual, it precludes review of other important 14 constitutional issues. Changing the scope of the statutes to dispositions that more plainly 15 include probation decisions, he suggested, did nothing to allow review of the 16 constitutionality of those probation decisions -- specifically condition of probation 17 decisions -- on grounds other than those that are unconstitutionality cruel and unusual. 18 Fidanque suggested that HB 2470 should be modified to provide that the court had 19 jurisdiction over cases where the defendant alleges that the disposition "exceeds the 20 maximum allowable by law" or "is unconstitutional," deleting the restriction that only 21 provided review of allegations that a disposition was unconstitutionally "cruel and 22 29 unusual." Id. (statement of David Fidanque). 1 Senator Ron Grensky then asked Fidanque whether his concern was with 2 the federal or state constitution. Id. (statement of Sen Grensky). Fidanque replied that, 3 "[i]n fact, we are primarily concerned with the state constitution," specifically, "[t]he Bill 4 of Rights, Article I. Everything from freedom of expression to freedom from 5 unreasonable searches and seizures to protection against disproportionate punishment." 6 Id. (statement of David Fidanque). The hearing, however, adjourned with that issue left 7 for future discussion. 8 On May 30, 1989, Chief Judge Joseph submitted a letter to Senator Cohen 9 in response to the Senate Judiciary Committee's concerns regarding the review of 10 unconstitutional probation conditions. Chief Judge Joseph wrote that, by deleting "cruel 11 and unusual punishment," the ACLU was attempting to "broaden the scope of review in 12 some mysterious way, presumably to avoid the present limitation." Letter, Senate 13 Committee on the Judiciary, HB 2470, May 30, 1989, Ex L (statement of Chief Judge 14 Joseph). Chief Judge Joseph suggested that the ACLU was hoping to bring back the sort 15 of "proportionality review" that the legislature had abandoned in 1985. Id. He noted that 16 he had "previously spoken strongly against that scope of review, and [he] therefore 17 strongly oppose[d] the ACLU's proposed amendment." Id. 18 On that same day, the Senate Judiciary Committee held a hearing to discuss 19 the proposed ACLU amendments and Judge Joseph's letter. Dale Penn, a representative 20 from the Oregon District Attorneys Association, began by explaining how HB 2470 21 would affect the court's jurisdiction over claims relating to probation conditions. He 22 30 explained that HB 2470 would allow review of a probation condition as to whether it was 1 "unconstitutionally cruel and unusual" and "it also allows for an appeal of a probationary 2 sentence if it exceeds the maximum allowable by law." Tape Recording, Senate 3 Committee on the Judiciary, HB 2470, May 30, 1989, Tape 208, Side B (statement of 4 Dale Penn). Senator Bob Shoemaker asked Penn the difference between 5 "unconstitutional" and "unconstitutionally cruel and unusual." Id. (statement of Sen 6 Shoemaker). Penn responded that, under the former phrase, "any constitutional argument 7 may go forward whatever that argument is," not just an argument that the sentence is 8 cruel and unusual. Id. Penn explained that, under the current wording of the bill, a 9 defendant's challenge to a sentence "would have to relate to the constitutional provisions 10 about cruel and unusual punishment, either in the federal or the state constitution." Id. 11 After a brief discussion, Senator Dick Springer moved to amend HB 2470 12 to include the ACLU amendment. The committee, however, voted against the ACLU 13 amendment. Minutes, Senate Committee on the Judiciary, May 30, 1989, 8. 14 The legislature has amended ORS 138.050 several times since 1989, but 15 those changes are not relevant and do not bear on the issues in this case.2 In the 16 2 In 1995, the legislature amended ORS 138.050 to delete the reference to "district court." Or Laws 1995, ch 658, § 78. In 1999, the legislature amended ORS 138.050 to delete a reference to the city recorder's court, Or Laws 1999, ch 788, § 47, and to add a reference to conditional plea agreements under ORS 135.335. Or Laws 1999, ch 135, § 4. Last, in 2001, the legislature amended ORS 138.050 to include a requirement that "the defendant make[] a colorable showing" that the disposition in question met the jurisdictional requirements of ORS 138.050(1). Or Laws 2001, ch 644, § 1. 31 meantime, this court has not had occasion to determine the impact, if any, of the 1989 1 amendments to ORS 138.040 and ORS 138.050 on the appealability of dispositions in 2 misdemeanor cases and whether, in particular, those amendments were intended to 3 broaden the jurisdiction of the appellate courts beyond the limited authority that this court 4 had identified in Loyer. 5 B. Analysis of Current Version of ORS 138.050 in Context 6 With the foregoing background about the origins and prior interpretation of 7 ORS 138.050 in mind, we return to the specific issue in this case, viz., whether the statute 8 authorizes defendant to appeal a judgment of conviction on the ground that the process by 9 which his misdemeanor sentence was imposed violates the Due Process Clause of the 10 federal constitution. More specifically, the question is whether such a challenge is one 11 that the disposition "[e]xceeds the maximum allowable by law." Defendant argues that 12 his is such a challenge, in that any sentence having been entered in violation of the 13 federal constitution would exceed the maximum authority of the court allowable by law. 14 1. Textual Analysis 15 On the bare face of the statute itself, defendant's reading of the statute is not 16 wholly implausible. As we noted at the outset of the opinion, the term "law" is 17 notoriously flexible and may readily refer to both a broader sense that encompasses, 18 among other things, statutes and constitutions, and a narrower sense that refers solely to 19 statutory law. See Garner, A Dictionary of Modern Legal Usage at 503-04 (identifying 20 nine different definitions of "law"); Webster's Third New Int'l Dictionary 1279 21 (unabridged ed 1976) (defining "law" as, among other things, "a rule or mode of conduct 22 32 or action that is prescribed or formally recognized as binding by a supreme controlling 1 authority"); Black's Law Dictionary 884 (6th ed 1990) ("The 'law' of a state is to be found 2 in its statutory and constitutional enactments, as interpreted by its courts."). 3 The state insists that, although the term "law," in the abstract, may be given 4 the broad reading that defendant suggests, his proposed interpretation cannot be 5 reconciled with the ordinary meaning of other words in the statute, specifically, the 6 portion of it that refers to a disposition that "exceeds" a "maximum" that is allowable 7 under such law. According to the state, both terms suggest a quantitative limit. 8 The word "exceed" ordinarily means 9 "1 : to extend outside of or enlarge beyond * * * 2 a : to be greater than or 10 superior to * * * b : to be too much for * * * 3 : to go beyond a limit set by 11 (as an authority or privilege) : do more than is justified by or allowable 12 under (as a commission or order) * * *." 13 Webster's at 791. Similarly, the word "maximum" ordinarily refers to "the greatest 14 quantity or value attainable in a given case" or "an upper limit allowed by law or other 15 authority." Id. at 1396 (emphasis added). Thus, the state has a point in contending that to 16 say that the imposition of a sentence in violation of the Due Process Clause amounts to 17 "exceed[ing]" the "maximum" imposed by that clause is awkward, if for no other reason 18 than the Due Process Clause sets no "maximum" sentence in any ordinary sense of the 19 word. 20 Defendant insists that his appeal fits within the wording of the statute in 21 this sense: The trial court, in imposing the sentence in this case, "exceeded" the 22 "maximum" allowable by the Due Process Clause because the "court went beyond [the] 23 33 authority permitted" by that clause. 1 That reading is perhaps not the most natural reading of the bare wording of 2 the statute, which suggests what must "exceed" the "maximum" allowable by law is the 3 sentence, not the trial court's procedures in arriving at it. Still, it is at least possible to 4 read ORS 138.050(1)(a) to refer to a disposition that exceeds the court's authority, 5 whether the source of that authority is statutory or constitutional. 6 2. Contextual Analysis 7 In construing statutes, we do not simply consult dictionaries and interpret 8 words in a vacuum. Dictionaries, after all, do not tell us what words mean, only what 9 words can mean, depending on their context and the particular manner in which they are 10 used. See, e.g., State v. Fries, 344 Or 541, 546, 185 P3d 453 (2008) (context determines 11 which of multiple definitions is the one the legislature intended). Accordingly, we look 12 beyond the wording of ORS 138.050(1)(a) itself to its context. 13 a. Other Parts of ORS 138.050(1) 14 We begin with the immediate context, that is, the larger section within 15 which the disputed provision appears. Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 16 (2004) (context of a disputed statute includes "other provisions of the same statute, the 17 session laws, and related statutes"). What immediately comes to light is the fact that 18 defendant's interpretation introduces some obvious redundancy into the statute. As we 19 have noted, ORS 138.050 authorizes a defendant who has pleaded guilty to appeal and 20 challenge a disposition only upon making a colorable showing of one of two conditions -- 21 either that the disposition "[e]xceeds the maximum allowable by law" under subsection 22 34 (1)(a) or that the disposition "[i]s unconstitutionally cruel and unusual" under subsection 1 (1)(b). If, as defendant contends, a disposition "[e]xceeds the maximum allowable by 2 law" when it is unconstitutional on any basis, then the reference to "[i]s 3 unconstitutionally cruel and unusual" in subsection (1)(b) is unnecessary, for, under 4 defendant's reading of the statute, a sentence that is unconstitutionally cruel and unusual 5 is one that exceeds the maximum allowable by law. 6 In fact, defendant concedes the point. As he stated in his brief, 7 "[a]dmittedly, defendant's interpretation renders subsection (1)(b) of the statute 8 superfluous, a result this court assumes that the legislature endeavors to avoid." 9 According to defendant, the retention of that subsection "is most properly viewed as a 10 historical vestige rather than the legislature's intent to limit the type of constitutional 11 challenges that the appellate courts may consider." 12 The problem with defendant's contention is that it cannot be reconciled with 13 the history of the statute that we have recounted. The retention of the reference to 14 unconstitutionally cruel and unusual dispositions was not a legislative oversight 15 concerning a "historical vestige." Instead, it was a component of the statute that the 16 legislature consciously and repeatedly retained. 17 During the 1985 legislative session, for example, the legislature took the 18 trouble to alter the wording of subsection (1)(b) -- from "unconstitutionally cruel or 19 unusual" to "unconstitutionally cruel and unusual" to conform more accurately to the 20 wording of the state and federal constitutions. More to the point, during the same 21 session, there were discussions of the scope of the provision. Senator Fadeley even 22 35 questioned whether the fact that the statute appeared to limit constitutional challenges to 1 those asserting that a sentence is cruel and unusual was too constraining and, indeed, 2 caused the statute itself to be unconstitutional. In response, another legislator asked 3 Chief Judge Joseph if the bill that became ORS 138.050 actually was that limited, and he 4 replied, "That is correct." Under the circumstances, it can hardly be maintained that the 5 legislature's retention of ORS 138.050(1)(b) is an inadvertent "historical vestige." 6 We wish to be clear that the fact that a proposed interpretation of a statute 7 creates some measure of redundancy is not, by itself, necessarily fatal. Redundancy in 8 communication is a fact of life and of law. See, e.g., Riley Hill General Contractor v. 9 Tandy Corp., 303 Or 390, 396-97, 737 P2d 595 (1987) (noting that legal terminology 10 often is redundant, "sometimes for clarity, sometimes for emphasis"). In some cases, it 11 may be what the legislature intended. See, e.g., Thomas Creek Lumber and Log Co. v. 12 Dept. of Rev., 344 Or 131, 138, 178 P3d 217 (2008) ("[N]othing prohibits the legislature 13 from saying the same thing twice * * *."). 14 But, at the least, an interpretation that renders a statutory provision 15 meaningless should give us pause, both as a matter of respect for a coordinate branch of 16 government that took the trouble to enact the provision into law and as a matter of 17 complying with the interpretive principle that, if possible, we give a statute with multiple 18 parts a construction that "will give effect to all" of those parts. ORS 174.010; Vsetecka v. 19 Safeway Stores, Inc., 337 Or 502, 510, 98 P3d 1116 (2004) ("When, as in this case, a 20 statute contains multiple provisions, ORS 174.010 directs us to read those provisions, if 21 possible, in a way that will give effect to all of them."). 22 36 b. Other Related Statutes 1 Moving beyond the wording of ORS 138.050 itself, our account of the 2 genesis of that statute reveals that criminal statutes have referred to "maximum" 3 sentences for over a century, and the reference consistently has been understood to mean 4 the upper limit of a term of incarceration or amount of a fine established by statute. As 5 early as 1905, the first indeterminate sentencing statutes referred to a "maximum term 6 provided by law" for felony convictions, plainly referring to the maximum duration of 7 imprisonment set by statute. Current statutes explicitly refer to a "maximum term of an 8 indeterminate sentence" for various offenses. ORS 161.605 (setting "maximum" term of 9 imprisonment for various felonies). Others refer to "maximum limitations" on 10 misdemeanor sentences. ORS 161.615. Administrative rules implementing the current 11 sentencing guidelines similarly set presumptive sentences, but expressly provide that 12 sentences may not "exceed the statutory maximum indeterminate sentence." OAR 213- 13 008-0003(2). 14 Defendant's reading of ORS 138.050(1)(a) cannot be squared with such 15 references to "maximum" sentences in the related statutes and regulations. According to 16 defendant, the reference to a sentence that "exceeds the maximum allowable by law" 17 refers to one imposed in violation of any procedural -- statutory, constitutional, or 18 otherwise -- requirement. Adopting defendant's reading of the statute would require us to 19 conclude that the word "maximum" means one thing in ORS 138.050(1)(a) and another 20 thing entirely in all the other related sentencing statutes that we have mentioned. 21 Although, in the abstract, there is nothing that precludes the legislature from defining the 22 37 same terms to mean different things in the same or related statutes, in the absence of 1 evidence to the contrary, we ordinarily assume that the legislature uses terms in related 2 statutes consistently. See, e.g., Pete's Mountain Homeowners v. Ore. Water Resources, 3 236 Or App 507, 518, 238 P3d 395 (2010) ("It is a longstanding principle of statutory 4 construction that words may be assumed to be used consistently throughout a statute."). 5 In a related vein, we observe that, as amended in 1989, ORS 138.040 and 6 ORS 138.050 authorize a defendant to appeal a "disposition" instead of a "sentence." 7 ORS 138.053(1) then specifies the five types of "dispositions" that are appealable. The 8 first two of the five types of appealable dispositions are the imposition of a sentence, 9 ORS 138.053(1)(a), and the suspension of the imposition of any part of a sentence, ORS 10 138.053(1)(b). The latter three types of appealable dispositions concern imposing 11 conditions of probation, ORS 138.053(1)(c), extending a period of probation, ORS 12 138.053(1)(d), or imposing a sentence upon revocation of probation, ORS 138.053(1)(e). 13 On an appeal of a disposition of the first two types, the scope of the appellate court's 14 review authority is limited to whether the disposition "[e]xceeds the maximum allowable 15 by law" or "[i]s unconstitutionally cruel and unusual." ORS 138.050(3). 16 But, on an appeal of a disposition of the latter three types, 17 "[n]otwithstanding ORS 138.040 and [ORS] 138.050," the appellate court may review 18 more broadly for any "colorable claim of error in the proceeding from which the appeal is 19 taken." ORS 138.053(3) (emphasis added). If defendant were correct that a disposition 20 "exceeds the maximum allowable by law" because of any error in the proceeding in 21 which the disposition was imposed, then the expanded review authority that is specified 22 38 in ORS 138.053(3) becomes surplusage, as the appellate court would already possess 1 such authority under ORS 138.050. Indeed, defendant's proposed reading of the statute 2 makes the introductory phrase, "[n]otwithstanding ORS 138.040 and [ORS] 138.050" 3 meaningless. 4 c. Prior Judicial Construction 5 Our analysis of ORS 138.050(1)(a) is also informed by this court's prior 6 construction of that statute or its predecessors. Blacknall v. Board of Parole, 348 Or 131, 7 141-42, 229 P3d 595 (2010) ("As context, those [prior] cases may illuminate or explain 8 the meaning of the statutory text."); Mastriano v. Board of Parole, 342 Or 684, 693, 159 9 P3d 1151 (2007) ("[W]e generally presume that the legislature enacts statutes in light of 10 existing judicial decisions that have a direct bearing on those statutes."). 11 As our account of the historical development of the statute reveals, for 12 many years, this court has interpreted references to court authority to review sentences 13 for excessiveness in relation to a "maximum" as referring to the limited question whether 14 the sentence falls within the range allowed by statute. In this court's 1945 decision in 15 Ridder, for example, this court explained that, under the predecessor to ORS 138.050 -- 16 which authorized appeal of a judgment imposing a sentence that imposes "excessive, 17 cruel or unusual punishment" -- the only cognizable nonconstitutional challenge to a 18 sentence was whether the sentence was within the minimum and maximum terms of 19 imprisonment prescribed by statute. 185 Or at 138. 20 More to the point, however, is this court's more recent decision in Loyer. In 21 that case, the defendant appealed following the entry of judgment on a guilty plea, 22 39 arguing that the trial court erred in imposing a sentence without following proper 1 procedures in violation of, among other things, state and federal constitutional 2 confrontation guarantees and the Due Process Clause. This court concluded that the 1985 3 amendments to ORS 138.050 that introduced the phrasing at issue in this case "narrows 4 considerably our scope of review" and precludes the sort of challenge that the defendant 5 in that case advanced. Loyer, 303 Or at 616. 6 In this case, defendant makes no effort to distinguish Loyer. In fact, 7 defendant does not mention Loyer, either in his briefing to this court or in his brief to the 8 Court of Appeals. Instead, he points to other cases in which he contends this court 9 entertained constitutional challenges to sentences on grounds other than that the 10 sentences were cruel and unusual on appeals that he asserts were filed under the parallel 11 provisions of ORS 138.040. Defendant reasons that, given that the wording of ORS 12 138.040 and ORS 138.050 is identical in all relevant respects, we should construe both 13 provisions to permit appeals predicated on any constitutional challenges to sentences, not 14 just challenges that the sentences are cruel and unusual. In support of his contention, he 15 cites this court's decisions in State v. Sanders, 343 Or 35, 163 P3d 607 (2007), and State 16 v. Dilts, 337 Or 645, 103 P3d 95 (2004), as well as its earlier decision in State v. Wedge, 17 293 Or 598, 652 P2d 773 (1982). 18 Defendant's reliance on Sanders and Dilts is wholly misplaced. Both 19 involved appeals of judgments of convictions for felonies committed after the 1989 20 amendments, when the sentencing guidelines for such offenses were adopted. As we 21 have explained, appeal and review of dispositions under the sentencing guidelines is 22 40 governed by ORS 138.222(4), which expressly states that, "[n]otwithstanding ORS 1 138.040 and ORS 138.050," review of a sentence imposed on a judgment of conviction 2 for a felony committed after November 1, 1989, is much broader and includes authority 3 to review contentions that "[t]he sentencing court failed to comply with the requirements 4 of law in imposing or failing to impose a sentence." See State v. Hart, 329 Or 140, 144 n 5 2, 985 P2d 1260 (1999) ("[S]entences * * * imposed for felony convictions after 6 November 1, 1989, are subject to review under ORS 138.222," not ORS 138.040.). 7 Wedge, likewise, does not advance defendant's cause. That case was decided under the 8 broader 1977 version of ORS 138.040, before the legislature adopted the phrasing that is 9 at issue in this case. 10 3. Legislative History 11 There remain the parties' arguments about the legislative history. 12 Defendant places great reliance on the legislative history of the 1985 amendments to 13 ORS 138.040 and ORS 138.050 -- in particular, the testimony of Judge Gillette to the 14 effect that the amended statutes would permit review of all constitutional challenges to a 15 sentence, not just that the sentence is cruel and unusual. The state, for its part, relies 16 heavily on the legislative history of the 1989 amendments to those statutes -- in 17 particular, the legislature's explicit rejection of a proposed amendment to allow precisely 18 the kind of constitutional challenge that defendant is attempting to assert in this case. 19 We begin with the 1985 legislative history. There is no question but that 20 defendant correctly characterizes Judge Gillette's testimony, or, at least, part of it. The 21 problem is that, as we have noted, there is also legislative history to the contrary. To 22 41 begin with, Judge Gillette himself testified on other occasions that the proposed 1 amendments would have a different effect. He explained to the House Committee on 2 Judiciary, for example, that the 1985 amendments were intended "to have the law stay 3 with [what the] present practice is before the Court of Appeals." Chief Judge Joseph 4 similarly explained that the same bill restricted the appealability of sentences to 5 challenges requiring appellate courts to review whether the sentence was 6 unconstitutionally cruel and unusual or was "within statutory limits." In a similar vein, 7 Senator Fadeley raised a caution that the bill itself might be unconstitutional precisely 8 because it limited constitutional challenges to those asserting that a sentence is cruel and 9 unusual. Another legislator asked Chief Judge Joseph whether the statute was, in fact, so 10 limited, and the Chief Judge replied, "That is correct." 11 Not surprisingly, defendant seizes on the bit of legislative history that 12 advances his cause, and the state does likewise. The fact of the matter, however, is that 13 the legislative history of the 1985 amendments provides a little something for everyone 14 and does not clearly resolve the matter one way or the other. 15 We turn, then to the legislative history of the 1989 amendments. As we 16 have noted, during hearings before the Senate Judiciary Committee on amendments to 17 ORS 138.040 and ORS 138.050, Senator Dick Springer introduced a proposed 18 amendment to those statutes in response to concerns expressed by the ACLU that the 19 current law limits constitutional challenges to those that a sentence is cruel and unusual. 20 Springer's amendment would have eliminated that limitation by deleting the reference to 21 "cruel and unusual punishment" and expressly allowing constitutional challenges of any 22 42 sort. Chief Judge Joseph opposed the amendment, arguing that it represented an attempt 1 to "broaden the scope of review in some mysterious way, presumably to avoid the present 2 limitation." The committee apparently agreed and rejected the amendment. 3 Defendant insists that the 1989 legislative history -- especially the failed 4 amendment -- is irrelevant, because it merely represents the views that later legislators 5 expressed about the meaning of legislation adopted during an earlier session. In the 6 alternative, defendant suggests that the proposed amendment actually amounted to an 7 attempt merely to reintroduce nonconstitutional proportionality review of sentencing, as 8 the statutes permitted before the 1985 amendments. 9 Defendant's characterization of the 1989 legislative history is inaccurate. 10 As our earlier discussion of it makes clear, the ACLU's own characterization of the 11 proposed amendment, as well as the justification for it, was that current law limited 12 constitutional claims to ones asserting that a sentence is cruel and unusual. The 13 representative of the ACLU stated unequivocally that, in proposing the amendment, "we 14 are primarily concerned with the state constitution," specifically, the bill of rights. 15 Moreover, during Senate Judiciary Committee deliberations on the proposed amendment, 16 members of the committee expressly discussed whether the law should be amended to 17 permit challenges on broader constitutional grounds to include, among other things, 18 challenges brought under the Due Process Clause. 19 That said, the significance of the 1989 legislative history is debatable. This 20 court has stated that subsequent legislative history is irrelevant, see, e.g., Hilton v. MVD, 21 308 Or 150, 156, 775 P2d 1378 (1989) ("[A] later legislature's failure to change a 22 43 previously-enacted statute is not part of the legislative history of that statute * * *."), 1 although, on other occasions, the court has been less categorically dismissive. See, e.g., 2 Harris v. Board of Parole, 288 Or 495, 501-02, 605 P2d 1181 (1980) (consulting later 3 legislative history to determine whether the legislature's failure to enact legislation in 4 response to a Supreme Court decision was intended to signal legislative agreement with 5 the decision). In this case, the 1989 legislative history, at best, arguably confirms what 6 we have determined to be the intended meaning of ORS 138.050(1)(a) based on its text, 7 context, and earlier enactment history. Accordingly, we need not address the weight, if 8 any, to which the 1989 legislative history is entitled in this case. 9 III. CONCLUSION 10 The foregoing analysis makes clear that, although defendant's proposed 11 reading of ORS 138.050(1)(a) to permit an appeal of a criminal judgment following a no 12 contest or guilty plea to challenge a sentence on Due Process grounds may be a plausible 13 reading of the bare wording of that statute, it is ultimately untenable when other indicia of 14 legislative intent are taken into account. Specifically, adopting defendant's reading of the 15 statute would introduce unnecessary redundancy into ORS 138.050(1) itself, would 16 render meaningless significant portions of ORS 138.053, would contradict a century of 17 sentencing legislation and related case law that consistently refers to "maximum" 18 sentences in terms of statutory maximums, and would directly contradict this court's 19 opinion in Loyer. We conclude that the reference to a disposition that "[e]xceeds the 20 maximum allowable by law" in ORS 138.050(1)(a) does not refer to a sentence that was 21 imposed by means of procedures that violate the Due Process Clause of the federal 22 44 constitution. To the contrary, it refers to a disposition that exceeds a maximum expressed 1 by means of legislation, not the state or federal constitution. 2 Returning to the facts of this case, the result is apparent. The trial court 3 imposed a fine of $1,100. Defendant concedes that the amount is less than the statutory 4 maximum that could have been imposed for the crime for which he was convicted. Thus, 5 the Court of Appeals lacks jurisdiction under ORS 138.050(1)(a). As in Loyer, 6 defendant's claim of error in this case must be left to possible post-conviction relief. 303 7 Or at 617. We therefore do not reach the merits of defendant's contention that the trial 8 court in imposing the additional fine essentially punished him for exercising his statutory 9 right to plead no contest, and our opinion should not be understood to constitute implicit 10 approval of what the trial court did. 11 The order of the Court of Appeals is reversed, and the case is remanded to 12 the Court of Appeals for entry of an order dismissing the appeal. 13

68f63cb539a702513cb4c9e8fbbedbd832652e8936b38a922242c94ee0cd93f6

2011-09-22T00:00:00Z

eecf0618-814a-440a-bb07-1345c8df5803

Snyder v. Espino-Brown

S058520

oregon

Oregon Supreme Court

Filed: April 7, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON CAROL SNYDER, Respondent on Review, v. KATHLEEN ESPINO-BROWN, Petitioner on Review. (CC 0704-04750, CA A139175; SC S058520) En Banc On review from the Court of Appeals.* Argued and submitted January 14, 2011. Matthew J. Kalmanson, Hoffman, Hart & Wagner, LLP, Portland, argued the cause and filed brief for petitioner on review. With him on the brief was Janet M. Schroer. Gregory E. Price, Baumgartner, Nelson & Price, PLLC, Vancouver, Washington, argued the cause and filed the brief for respondent on review. 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. *Appeal from Multnomah County Circuit Court, Bruce C. Hamlin, Judge Pro Tempore. 235 Or App 82, 230 P3d 122 (2010). WALTERS, J. To prevent the tolling of the statute of limitations under ORS 12.155(2), a person who makes a payment to compensate for injury to or destruction of property, before legal liability for that damage has been determined, may give written notice of the date of the expiration of the statute of limitations to "each person entitled to recover damages for the * * * injury or destruction" within 30 days of the date of the payment. ORS 12.155(1).(1) The question presented by the stipulated facts in this case is whether the class of persons to whom any such notice must be given includes plaintiff, a co-owner of a car who did not file a property damage claim with defendant's insurer before that company made a payment to compensate for damage to the car. We conclude that it does; the class of persons described in ORS 12.155(1) includes each person who has a legal right to bring an action to recover damages for the injury to or destruction of the property for which an advance payment was made and, in this case, that class of persons included plaintiff. Because defendant's insurer did not give plaintiff timely notice of when the statute of limitations would expire, plaintiff's action was not time-barred, contrary to the decision of the trial court. We therefore affirm the decision of the Court of Appeals, which reversed the judgment of the trial court and remanded the case to the trial court for further proceedings. Plaintiff and her husband were injured in a collision with defendant on January 26, 2004. The Chevrolet Malibu that plaintiff and her husband co-owned also was damaged in that collision. On March 24, not quite two months after the collision and before liability for damages incurred in the collision had been determined, defendant's insurance company issued a check payable to plaintiff's husband in the amount of $410.34 to compensate for damage to the car.(2) The insurance company did not give written notice of the expiration of the statute of limitations to plaintiff or her husband within 30 days after the date of that payment. Both plaintiff and her husband filed claims with the insurance company seeking compensation for their personal injuries.(3) The insurance company corresponded with plaintiff and her husband about those claims, but did not resolve them.(4) The two-year statute of limitations that applies to personal injury actions expired on January 26, 2006, and, as of that date, neither plaintiff nor her husband had filed such an action against defendant. Within a month thereafter, on February 17, the insurance company sent plaintiff's husband a letter informing him that, ordinarily, his action for personal injuries would be time-barred because he had not filed it on or before January 26, but that the company's payment of $410.34 had "extended the statute of limitations in [his] case pursuant to ORS 12.155." As a result, the insurance company explained, plaintiff's husband had until January 3, 2008, to file an action for personal injuries. The insurance company did not send a similar letter to plaintiff or give her any other written notice of when the statute of limitations would expire. Plaintiff's husband did not file a personal injury action against defendant within the time permitted by the insurance company's letter, but plaintiff did. Plaintiff filed her complaint on April 26, 2007. Because that date was more than two years after the date of the collision, defendant moved for summary judgment on the ground that plaintiff's action was time-barred. Plaintiff opposed the motion, arguing that the statute of limitations was extended for her, as it had been for her husband, by virtue of the insurance company's advance payment and its failure to give her written notice of the expiration of the statute of limitations pursuant to ORS 12.155. The trial court granted defendant's motion, and plaintiff appealed to the Court of Appeals, which reversed the trial court. The Court of Appeals reasoned that, as a joint owner of the car, plaintiff was entitled to recover damages for its injury or destruction and was directly benefitted by the insurance company's advance payment to her husband. Snyder v. Espino-Brown, 235 Or App 82, 87, 230 P3d 122 (2010). As a result, the Court of Appeals concluded, the insurance company's failure to give plaintiff written notice of the expiration of the statute of limitations tolled the statute of limitations for her personal injury action. Id. We allowed defendant's petition for review. We begin our analysis with the text of ORS 12.155, which provides: "(1) If the person who makes an advance payment referred to in ORS 31.560 or 31.565 gives to each person entitled to recover damages for the death, injury or destruction, not later than 30 days after the date the first of such advance payments was made, written notice of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations, then the making of any such advance payment does not suspend the running of such period of limitation. * * * "(2) If the notice required by subsection (1) of this section is not given, the time between the date the first advance payment was made and the date a notice is actually given of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations is not part of the period limited for commencement of the action by the statute of limitations." ORS 12.155 does not require that a person who makes an "advance payment" give written notice of the expiration of the statute of limitations; rather, it imposes a consequence for failure to give that notice. Subsection (1) of that statute provides that, if a person makes an advance payment and gives written notice of the expiration of the applicable statute of limitations not later than 30 days after the date of the first advance payment, the advance payment does not suspend the statute of limitations as provided in subsection (2). Subsection (2) describes what happens when the written notice described in subsection (1) is not given -- the time between the date of the first advance payment and the date that the written notice is actually given is not counted in calculating the period for commencement of the action. A person who makes an "advance payment" under subsection (1) of ORS 12.155 and who wishes to prevent the tolling of the statute of limitations under ORS 12.155(2) must give the described notice to "each person entitled to recover damages for the * * * injury or destruction." Defendant contends that the quoted phrase is ambiguous and that the legislature intended it to mean "each person who made a claim 'for the * * * injury or destruction' that led to an advance payment."(5) For the reasons that follow, we agree with defendant that that phrase is capable of more than one meaning. However, we disagree that the legislature intended the interpretation for which defendant argues. Defendant rests her first argument that ORS 12.155(1) is ambiguous on the meaning of the terms "advance payment" and "entitled." To qualify as an "advance payment," as that term is defined in ORS 31.550, the payment must occur before any person has been determined to have a legal right to damages.(6) However, defendant notes, ORS 12.155(1) provides for notice to each person "entitled" to recover damages. Defendant, citing one dictionary definition, asserts that the word "entitled" means "give[n] a right or legal title to: qualif[ied] (one) for something: furnish[ed] with proper grounds for seeking or claiming something." Webster's Third New Int'l Dictionary 758 (unabridged ed 2002). Defendant therefore argues that, to be "entitled" to recover damages, a person must have a "legal right to damages at the time of the advance payment." Defendant contends that because no one has a legal right to damages at the time that an advance payment is made, ORS 12.155(1) appears to create a null set requiring notice to no one to prevent the tolling of the statute of limitations. But, as defendant acknowledges, the dictionary definition of the word "entitled" also encompasses a concept that is more consistent with the legislature's obvious intent. The word "entitled" may also mean "furnish[ed] with proper grounds for * * * claiming something." Webster's at 758. In other contexts, the legislature has used the word "entitled" to mean that a person has legal grounds to bring an action to recover damages rather than to mean an existing legal right to judgment for damages. See, e.g., ORS 133.739(1) (person whose communication is intercepted has claim for relief and is "entitled" to recover damages); ORS 646.140(1) (plaintiff in price discrimination action "entitled" to recover treble damages). If we interpret the word "entitled" as used in ORS 12.155(1) to have that meaning, then we avoid a nonsensical result. At the time of an advance payment, no person will have an established legal right to judgment for damages for injury or destruction, but one or more persons may have legal grounds to bring an action to recover such damages. We think that the legislature intended to describe the latter class of persons when it used the word "entitled" in the phrase "entitled to recover damages" in ORS 12.155(1). Defendant next asserts that ORS 12.155(1) is ambiguous because it provides for notice to those who are entitled to recover damages for "injury or destruction," but does not specify the "injury or destruction" to which it refers. With that argument, defendant hits the mark. The words "injury or destruction" have no clear referent. They could be understood to refer to the injury or destruction that was the subject of an advance payment, but they also could be understood to refer to the injury or destruction that was the subject of a particular person's claim for an advance payment. We must look further than the words "injury or destruction" to ascertain the legislature's intent. As noted, ORS 31.550 defines the term "advance payment" to mean "compensation for the * * * injury or destruction of property." Given that definition of "advance payment," ORS 12.155(1) provides, in effect, that, to prevent the tolling of the statute of limitations, a person who pays "compensation for the * * * injury or destruction of property" must give the described notice to each person who has legal grounds to bring an action to recover damages "for the * * * injury or destruction." The legislature's use of the same words to define the purpose of an advance payment and to describe the persons to whom notice must be given indicates an intent to link those concepts. A person who pays compensation for the injury or destruction of property must give the described notice to each person who has the right to bring an action to recover damages for "the" injury or destruction. The word "the" can be understood to refer to the injury or destruction of the property that was the subject of the advance payment. In contrast, ORS 12.155(1) does not indicate a legislative intent to link the class of persons to whom notice must be given with the filing of a claim for payment. The legislature did not define the term "advance payment" to mean compensation that is paid as a result of a claim for payment, nor did it define the class of persons to whom notice must be given in terms of those who filed claims for payment. Instead, the legislature defined that class in terms of those who have a certain legal right -- the legal right to bring an action to recover damages. That legal right does not depend on the prior filing of a claim for payment. Nevertheless, defendant asserts, ORS 12.155 includes other indicators of legislative intent that favor her interpretation. For instance, defendant argues, by selecting a 30-day period for giving notice, the legislature indicated an intent to limit the class of persons to whom notice must be given to those who have filed claims for compensation. A person who makes an advance payment will know the identity of those persons and can give the described notice within that tight time frame. If, defendant asserts, the payor were required to give notice to each person with legal grounds to bring an action to recover damages, including, for example, all of the owners of damaged property, the payor would be required to conduct a time-consuming investigation that the legislature, in imposing a 30-day window, could not have intended. What defendant neglects to recognize, however, is that neither ORS 12.155(1), nor any other statute, requires that an advance payment be made, much less that it be made within a specified period of time. A person who wishes to make an advance payment may wait to do so until after he or she has ascertained the identities of the persons to whom notice must be given, and, knowing those identities, will have little difficulty giving the described notice within 30 days after payment. Defendant also argues that, by using the word "such" in the phrases "such advance payment" and "such period of limitations," the legislature expressed an intent to link the described notice to the claim that led to the payment. We do not understand how the use of the word "such" in those phrases compels that conclusion. The use of the word "such" in conjunction with the terms "advance payment" and "period of limitations" is also consistent with a legislative intent to link the described notice to the injury or destruction for which the advance payment was made. Finally, defendant contends that ORS 31.565 provides that an advance payment for property damage is not an admission of liability unless the "parties to the payment" agree to the contrary in writing.(7) The "parties to the payment," defendant asserts, are the persons who made the payment and the persons whose claim led to the payment. In defendant's view, ORS 12.155 should be interpreted to require notice by and to those same "parties." We do not agree that the meaning of the phrase "parties to the payment," as used in ORS 31.565, is material to our interpretation of ORS 12.155. Even if defendant were correct that, as used in ORS 31.565, that phrase means the payor and the person whose claim led to the payment -- a question we do not decide -- that conclusion would not affect our interpretation of ORS 12.155. In ORS 31.565, the legislature used the term "parties to the payment" to delineate those persons whose agreement is necessary to render the fact of an advance payment admissible on the issue of liability. The legislature addressed a different issue in ORS 12.155 (the tolling of the statute of limitations) and required notice to "each person entitled to recover damages for the * * * injury or destruction," and not to the "parties to the payment." We presume that the legislature intended distinct meanings with the different terminology that it used in those two statutes. See Scott v. State Farm Mutual Auto. Ins., 345 Or 146, 155, 190 P3d 372 (2008) (legislature used two different terms indicating it intended two different meanings); State v. Guzek, 322 Or 245, 265, 906 P2d 272 (1995) ("When the legislature uses different terms in related statutes, we presume that the legislature intended different meanings."). More helpful as context for the phrase used in ORS 12.155(1) is ORS 31.555(1). ORS 31.555(1) requires that a judgment rendered in favor of a "party" for whose benefit an advance payment has been received must be reduced by the amount of the advance payment.(8) To be a "party" to and obtain a judgment in an action for injury to or destruction of property, a person must have the legal right to bring the action and to recover damages for that injury or destruction. If ORS 12.155 is interpreted to require that, to avoid tolling, a person who makes an advance payment must give notice of the expiration of the statute of limitations to each person with the legal right to bring an action to obtain a judgment, then all who could obtain judgments that would be reduced by an advance payment would receive that notice. If ORS 12.155 were instead interpreted as defendant proposes, only some of those who could obtain such judgments would receive that notice -- i.e., those who filed claims for payment with the payor before the payor made an advance payment. In Duncan v. Dubin, 276 Or 631, 636-37, 556 P2d 105 (1976), this court determined that the legislature's objective in enacting ORS 12.155 was to protect injured persons from being "lulled" into thinking that the person who made an advance payment had acknowledged responsibility for all damages incurred and that, as a result, limitation periods no longer applied.(9) The legislative history that the court reviewed in Duncan does not reveal a legislative intent to protect only those injured persons who file claims for payment before an advance payment is made. Given that the legislature neither required the filing of such claims nor referenced them, we do not believe that the legislature intended to narrow the class of persons to whom notice must be given to injured persons who file such claims and whose claims result in an advance payment. Considering the statute's text, context, and objective, we conclude that the legislature intended that, to prevent the tolling of the statute of limitations, a person who makes an advance payment must give the notice described in ORS 12.155 to each person who has a legal right to bring an action to recover damages for the injury to or destruction of the property for which the advance payment was made. Applying that interpretation of ORS 12.155 to the facts of this case, we conclude that, to prevent the tolling of the statute of limitations by its advance payment, the insurance company was required to give the described notice to plaintiff. The insurance company made an advance payment to compensate for injury to or destruction of the Chevrolet Malibu. Plaintiff was a co-owner of that car, and, as such, had a legal right to bring an action to recover damages for its injury or destruction. See Carte v. Flury Buick-Jeep, Inc, 264 Or 479, 488, 506 P2d 701 (1973) (owner of car has action for damages to car); Parker v. McCartney, 216 Or 283, 286, 338 P2d 371 (1959) (co-owners of car equal in status and ownership). Thus, to prevent the tolling of the statute of limitations, the insurance company was required to give plaintiff the written notice described in ORS 12.155. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. 1. The full text of ORS 12.155 is set forth infra. 2. The record does not expressly indicate that plaintiff's husband filed a claim with the insurance company seeking compensation for damage to the car or include such a document. The record does contain an "appraisal report" that identifies plaintiff's husband as the owner of the car. 3. The record does not contain the documents that plaintiff and her husband filed. 4. That correspondence included five letters to plaintiff requesting information about her injuries. 5. Defendant expressly declines to argue that ORS 12.155 requires notice to the person or persons to whom an advance payment for property damage is made payable. That is because, as defendant acknowledged at oral argument in this case, those who make advance payments for property damage often make advance payments payable to the entity that repairs the damaged property rather than to the owner or owners of the property. Defendant acknowledges that the legislature did not intend that those who make advance payments give the described notice to such payees. Defendant also does not argue that the insurance company's written notice to plaintiff's husband constituted notice to plaintiff by virtue of the relationship between them, either as co-owners of the car or as husband and wife. In this case, that argument would not advance defendant's position, because the insurance company's written notice to plaintiff's husband came too late to prevent the tolling of the statute of limitations. The insurance company did not give plaintiff's husband written notice of the expiration of the statute of limitations within thirty days of the date of its advance payment, and his statute of limitations was extended as described in the letter that the insurance company eventually sent to him. Plaintiff filed her action within the time permitted by that letter. Therefore, even if the insurance company's letter to plaintiff's husband constituted written notice to plaintiff, plaintiff's action was timely. Defendant does not ask us to decide, and we need not decide, whether, by virtue of the relationship between persons, written notice to one person may constitute written notice to another sufficient to satisfy the terms of ORS 12.155. 6. ORS 31.550 provides as follows: "As used in ORS 12.155 and 31.550 and 31.565, 'advance payment' means compensation for the injury or death of a person or the injury or destruction of property prior to the determination of legal liability therefor." 7. ORS 31.565 provides as follows: "Any advance payment made for damages arising from injury or destruction of property is not an admission of liability for the injury or destruction by the person making the payment unless the parties to the payment agree to the contrary in writing." 8. ORS 31.555(1) provides, in relevant part: "If judgment is entered against a party on whose behalf an advance payment referred to in ORS 31.560 or 31.565 has been made and in favor of a party for whose benefit any such advance payment has been received, the amount of the judgment shall be reduced by the amount of any such payments in the manner provided in subsection (3) of this section." 9. In Duncan, the plaintiff incurred both personal injuries and property damage as a result of a collision with the defendant. The defendant's insurer paid $306.75 to a repair shop to compensate the plaintiff for damage to the car but did not give the plaintiff written notice of the expiration of any statute of limitations. The plaintiff commenced an action seeking damages for her personal injuries, but arguably did not do so until seven days after the two-year personal injury statute of limitations had expired. 276 Or at 634. In response to the defendant's contention that her action was time-barred, the plaintiff argued that the personal injury limitations period was tolled by the insurer's failure to give written notice under ORS 12.155. The defendant countered that because the insurer's advance payment was for property damage, the insurer's failure to give written notice of the expiration of the statute of limitations tolled only the property damage, and not the personal injury, limitations period. 276 Or at 636. This court decided that the text of ORS 12.155 was ambiguous and turned to its legislative history for assistance. The court determined that the legislature had enacted ORS 12.155 to protect injured persons from being "lulled" into thinking that the payor had acknowledged responsibility for all damages incurred and that, as a result, limitation periods were no longer applicable. 276 Or at 636-37. In the court's view, had the legislature anticipated the question of whether a payor's failure to give written notice tolled all applicable statutes of limitations, it would have decided that question affirmatively. As a result, the court interpreted ORS 12.155 to toll the plaintiff's personal injury statute of limitations. The court reasoned that "[a] contrary holding would be at odds with the legislative intent that advance payment not mislead an injured party into believing that he need not diligently press his claim." 276 Or at 638.

4b83cb3ebdb41a10eaf5eaab41dcc57c116929cdff21e39de65fe48041c15793

2011-04-07T00:00:00Z

ccb76616-238b-4b60-bfe7-d42ecaa7b7da

State ex rel Engweiler v. Felton

S058311

oregon

Oregon Supreme Court

1 Filed: September 1, 2011 1 IN THE SUPREME COURT OF THE STATE OF OREGON 2 STATE ex rel CONRAD R. ENGWEILER, 3 Petitioner on Review, 4 v. 5 AARON FELTON, 6 Chairperson of the Board of Parole and Post-Prison Supervision, 7 8 Respondent on Review. 9 10 (CC 07C18859; CA A139059; SC S058311) 11 12 13 STATE ex rel SHANE I. SOPHER, 14 15 Petitioner on Review, 16 17 v. 18 19 MICHAEL WASHINGTON, 20 Chairperson of the Oregon Board of Parole and Post-Prison Supervision, 21 22 Respondent on Review. 23 24 (CC 06C14844; CA A134157; SC S058373) 25 26 27 SHANE I. SOPHER, 28 29 Petitioner on Review, 30 v. 31 32 BOARD OF PAROLE AND POST-PRISON SUPERVISION, 33 34 Respondent on Review. 35 36 (CA A128108; SC S058327) 37 38 2 On review from the Court of Appeals.* 1 2 Argued and submitted December 1, 2010. 3 4 Andy Simrin, Portland, argued the cause and filed the brief for petitioner on 5 review Conrad R. Engweiler. Kristina Hellman, Federal Public Defender - District of 6 Oregon, Portland, argued the cause and filed the briefs for petitioner on review Shane I. 7 Sopher. 8 9 Jeremy C. Rice, Assistant Attorney General, Salem argued the cause for 10 respondents on review Aaron Felton, Chairperson of the Board of Parole and Post-Prison 11 Supervision; Michael Washington, Chairperson of the Oregon Board of Parole and Post- 12 Prison Supervision; and Oregon Board of Parole and Post-Prison Supervision. With him 13 on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor 14 General. 15 16 Before, De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and 17 Linder, Justices.** 18 19 The decision of the Court of Appeals in Sopher v. Board of Parole, 233 Or App 20 178, 225 P3d 836 (2010) is reversed. The decision of the Court of Appeals in State ex rel 21 Engweiler v. Powers, 232 Or App 214, 221 P3d 818 (2009) is reversed and the trial 22 court's issuance of the writ is affirmed. The decision of the Court of Appeals in State ex 23 rel Sopher v. Washington, 233 Or App 228, 225 P3d 142 (2010) is affirmed in part and 24 vacated in part. 25 26 Linder, J., dissented and filed an opinion in which Kistler, J., joined. 27 28 29 30 *Appeal from Marion County Circuit Court, Paul J. Lipscomb, Judge. 232 Or App 31 214, 221 P3d 818 (2009). 32 33 Appeal from Marion County Circuit Court, Don A. Dickey, Judge. 233 Or App 34 228, 225 P3d 142 (2010). 35 36 Judicial Review of Permanent Rules Adopted by the Oregon Board of Parole and 37 Post-Prison Supervision. 233 Or App 178, 225 P3d 836 (2010). 38 39 **Gillette, J., retired December 31, 2010, and did not participate in the decision of 40 this case. Landau, J., did not participate in the consideration or decision of this case. 41 42 3 DE MUNIZ, C. J. 1 These three cases, which we have consolidated for purposes of argument 2 and opinion, involve one administrative rule challenge (ORS 183.400) and two 3 mandamus actions (ORS 34.110) brought by two prison inmates, each convicted of 4 aggravated murder that he committed when he was less than 17 years of age.1 5 In the rule challenge brought by petitioner Sopher, he contends that the 6 board exceeded its statutory authority when it promulgated administrative rules (the 7 juvenile aggravated murder, or JAM, rules) that provide for a parole review hearing 8 (rather than a parole hearing for the purpose of setting an initial parole release date) after 9 no fewer than 20 years of incarceration, at which time a person convicted of juvenile 10 aggravated murder may attempt to establish his or her suitability for eventual parole. In 11 Sopher's rule challenge case, the Court of Appeals concluded that the board did not 12 exceed its statutory authority in promulgating those rules, because ORS 144.110(2)(b) 13 and ORS 163.105(2) to (4)2 require the intermediate process established in the JAM 14 rules. Sopher v. Board of Parole, 233 Or App 178, 225 P3d 836 (2010) (Sopher II). 15 In the two mandamus cases, relators Engweiler and Sopher each contend 16 that the board was required under ORS 144.120(1) (1989) and ORS 144.120(1) (1991), 17 1 Throughout this opinion, we refer to inmates who committed aggravated murder when they were less than 17 years of age, collectively, as "juvenile aggravated murderers." 2 We set out the text of the pertinent statutes later in this opinion. 4 respectively, to conduct a parole hearing and set an initial parole release date for each of 1 them. In each case, the Court of Appeals held, among other things, that ORS 2 144.110(2)(b) and ORS 163.105(2) to (4) obviate any requirement in ORS 144.120(1) 3 (1989) or ORS 144.120(1) (1991) that the board conduct such a hearing or set an initial 4 release date for juvenile aggravated murderers. State ex rel Engweiler v. Powers, 232 Or 5 App 214, 221 P3d 818 (2009) (Engweiler VI);3 State ex rel Sopher v. Washington, 233 Or 6 App 228, 225 P3d 142 (2010) (Sopher III). 7 The common denominator in the three cases is the applicability to juvenile 8 3 As we discuss in more detail below, Engweiler has appeared before the Court of Appeals and this court multiple times since his incarceration in 1991, resulting in, as pertinent to this case, six separate judicial opinions. For convenience and for clarity, we set them all out here, with reference numbers based on their order of initial publication: 1. State v. Engweiler, 118 Or App 132, 846 P2d 1163, rev den, 317 Or 486 (1993) (Engweiler I). 2. Engweiler v. Board of Parole, 197 Or App 43, 103 P3d 1201 (2005) (Engweiler II). 3. Engweiler v. Board of Parole, 340 Or 361, 133 P3d 910 (2006) (Engweiler III). 4. State ex rel Engweiler v. Cook, 340 Or 373, 133 P3d 904 (2006) (Engweiler IV). 5. Engweiler v. Board of Parole, 343 Or 536, 175 P3d 408 (2007) (Engweiler V). 6. State ex rel Engweiler v. Powers, 232 Or App 214, 221 P3d 818 (2009) (Engweiler VI). After Engweiler filed his petition for review of the Court of Appeals decision in Engweiler VI, the Court of Appeals granted the board's motion to amend the case caption to reflect that Aaron Felton is now the board's chairman. 5 aggravated murderers of ORS 144.110(2)(b) and ORS 163.105(2) to (4). For the reasons 1 set forth below, we conclude that ORS 144.110(2)(b) and ORS 163.105(2) to (4) do not 2 apply to juvenile aggravated murderers. For that reason and others explained below, we 3 also conclude that the board exceeded its statutory authority when it promulgated rules 4 requiring juvenile aggravated murderers to undergo the intermediate review process 5 described in ORS 163.105(2) to (4) before the board makes parole release decisions 6 regarding them. Finally, we conclude that the legislature provided the board with 7 authority in ORS 144.120(1) (1989) and ORS 144.120(1) (1991) to determine initial 8 release on parole for inmates like these who are serving an indeterminate sentence of life 9 imprisonment with the possibility of parole. We also conclude that ORS 144.120(1) 10 (1989) imposed on the board a legal duty to conduct a parole hearing for Engweiler to set 11 an initial release date for him or explain why it chooses not to do so. As to Sopher, we 12 hold that ORS 144.120(1) (1999) entitles him to a hearing at some point to set an initial 13 parole release date, but that the board has no present legal duty to conduct such a hearing 14 and, therefore, Sopher does not have a remedy in mandamus. We therefore reverse the 15 Court of Appeals decision in Engweiler VI, reverse the Court of Appeals decision in 16 Sopher II, and affirm in part and vacate in part the Court of Appeals decision in Sopher 17 III.4 18 4 In a second claim for relief in Sopher's petition for writ of mandamus, Sopher alleged that the board's application of the JAM rules, as to him, was unlawful in various respects and that the board had a nondiscretionary duty to correct the errors. The trial court mischaracterized Sopher's argument as a contention that the board did not have 6 I. BACKGROUND 1 We briefly summarize the factual and procedural background of each of the 2 petitioners' cases. Engweiler committed aggravated murder in 1990, when he was 15 3 years old. He was tried as an adult, and, on his conviction, the trial court imposed a life 4 sentence with a 30-year mandatory minimum term of imprisonment under ORS 5 163.105(1)(c) (1989). Engweiler appealed, arguing, among other things, that the 6 sentence that the trial court imposed was unlawful, because ORS 161.620 (1989) 7 prohibited trial courts from imposing a mandatory minimum sentence on any person who 8 was remanded from the juvenile court and was under 17 years of age at the time that he 9 committed the crime for which he was remanded. The Court of Appeals agreed with that 10 argument and vacated the sentence. State v. Engweiler, 118 Or App 132, 136, 846 P2d 11 1163, rev den, 317 Or 486 (1993) (Engweiler I). In 1994, Engweiler was resentenced to 12 life in prison. 13 discretion to adopt the JAM rules, and it denied relief on the ground that mandamus "will not lie to challenge the Board's exercise of discretion." On appeal, the board conceded that the trial court erred in dismissing Sopher's claim on that ground, and the Court of Appeals accepted that concession. Sopher III, 233 Or App at 238. The Court of Appeals therefore reversed the trial court's dismissal of Sopher's second claim and remanded the case in part for reconsideration on that ground. Id. Neither Sopher nor the board addresses that issue in this court. However, because we hold that the board has a duty to conduct a parole release hearing on Sopher's behalf under ORS 144.120(1)(a) (1991), and that the board exceeded its statutory authority in promulgating the JAM rules, it is unnecessary to remand this case to the board for consideration of whether the board incorrectly applied the JAM rules to Sopher. For that reason, we vacate that part of the Court of Appeals decision reversing the trial court's dismissal of Sopher's second claim and remanding that claim to the board for reconsideration. 7 Sopher committed aggravated murder in 1992, when he was 16 years old. 1 He, too, was remanded from the juvenile court and tried as an adult. Upon his aggravated 2 murder conviction, the trial court imposed a sentence of life in prison. 3 In State ex rel Engweiler v. Cook, 340 Or 373, 380-81, 133 P3d 904 (2006) 4 (Engweiler IV), this court explained that, at the time Engweiler committed his crime, a 5 sentence of life in prison was: 6 "an indeterminate sentence [which] state[s] only a maximum term to be 7 served under the jurisdiction of the Department of Corrections. Such a 8 sentence did not establish the length of time that a defendant was to be 9 incarcerated." 10 And, with regard to an indeterminate sentence, the legislature had granted authority to the 11 Executive Branch to establish an inmate's actual duration of imprisonment, using a parole 12 matrix that the legislature directed the board to create. Id. at 381; Or Laws 1977, ch 372, 13 § 2. 14 Oregon had an indeterminate sentencing scheme before 1989 and used a 15 parole matrix system for establishing the actual term of imprisonment for most felony 16 offenders. 340 Or at 831. In 1989, the legislature replaced that scheme with a new 17 "guidelines" sentencing scheme, under which the Judicial Branch (judges) are required to 18 impose determinate sentences -- defined presumptive punishments, based on sentencing 19 guidelines that were created by the State Sentencing Guidelines Board and later approved 20 by the state legislature -- for most felony convictions. Under the guidelines scheme, 21 judges have little discretion to deviate from the guidelines ranges and criminal defendants 22 subject to guidelines sentencing are not eligible for release on parole. Id.; Engweiler v. 23 8 Board of Parole, 343 Or 536, 540-41, 175 P3d 408 (2007) (Engweiler V). 1 However, juvenile aggravated murderers like Engweiler and Sopher 2 continued to receive life sentences until 1995. Engweiler IV, 340 Or at 381-82 (inmates 3 who committed aggravated murder after November 1, 1989, but who were juveniles at 4 the time of their crimes continued to receive indeterminate sentences and the board set 5 their terms of incarceration); Engweiler V, 343 Or at 545 (juvenile aggravated murderers 6 are entitled to the possibility of parole). 7 Although juvenile aggravated murderers were entitled to the possibility of 8 parole after 1989, the board had no rules governing parole decisions for them. See 9 Engweiler V, 343 Or at 548 (board rules "contained a void" with respect to juvenile 10 aggravated murderers). In 1999, to address that situation, the board promulgated a set of 11 administrative rules to be applied to determine whether and when to grant parole release 12 to juvenile aggravated murderers. Those rules are known as the JAM rules. As this court 13 explained in Engweiler V, 14 "[T]he JAM rules require the board to hold an initial 'prison term hearing' 15 for juveniles convicted of murder who were under age 17 at the time of the 16 offense. OAR 255-032-0005(4) (1999). At that hearing, the board sets 'a 17 review date * * * rather than a projected parole release date.' Id. 18 Alternatively, the board may 'deny parole' altogether. OAR 255-032- 19 0011(2) (1999). If the board opts to set a review date, it does so based on a 20 parole release matrix that it adopted specifically for juvenile aggravated 21 murderers who are eligible for parole consideration. Id. (cross-referencing 22 Exhibit P-III). Essentially, that matrix establishes ranges of time periods 23 that dictate whether and when a juvenile aggravated murderer will be 24 reviewed for parole eligibility and will receive a parole release date. At the 25 low end, the matrix can result in a review date between 240 and 300 26 months. Id. At the high end, it can result in a 'life' term, which is a denial 27 of parole. Id. The review date then triggers a schedule for further board 28 review of the inmate's institutional conduct and rehabilitation efforts, after 29 9 which the board may establish a parole release date under the matrix or may 1 set another review date at which it will further review the inmate's conduct 2 and rehabilitation efforts. OAR 255-032-0011(6)-(7) (1999); see also State 3 ex rel Engweiler, 340 Or at 383 (so concluding). If the board denies parole, 4 the inmate is not totally foreclosed from future parole consideration. 5 Rather, after 480 months, the inmate may petition the board for further 6 review, and then may continue to do so periodically. OAR 255-032- 7 0011(5), (7) (1999)." 8 343 Or at 549. Pursuant to the JAM rules, the board conducted a prison term hearing for 9 Engweiler in June 1999 and set a review date for him in 2030, after 480 months (40 10 years) of incarceration. The board conducted a prison term hearing for Sopher in August 11 1999, and set a review date for him in 2025, after 400 months (33 years and 4 months) of 12 incarceration. 13 Subsequently, both Engweiler and Sopher petitioned for judicial review of 14 the board orders setting their review dates. In each case, the Court of Appeals held that 15 the board's order setting the review date was not subject to judicial review. Engweiler v. 16 Board of Parole, 197 Or App 43, 103 P3d 1201 (2005) (Engweiler II); Sopher v. Board 17 of Parole, 197 Or App 118, 103 P3d 683 (2005) (Sopher I). 18 Engweiler petitioned for review, and this court affirmed the Court of 19 Appeals decision in his case. Engweiler v. Board of Parole, 340 Or 361, 133 P3d 910 20 (2006) (Engweiler III). 21 Sopher took a different tack. In 2005, he initiated a rule challenge in the 22 Court of Appeals under ORS 183.400, which permits such actions but limits judicial 23 review to an examination of the rule under review, the statutory provisions authorizing 24 the rule, and the documents demonstrating compliance with applicable rulemaking 25 10 procedures.5 Sopher argued that, by requiring juvenile aggravated murderers to complete 1 an intermediate review process before the board considers them for parole eligibility, the 2 JAM rules impermissibly deprive juvenile aggravated murderers of the immediate parole 3 release eligibility that ORS 161.620 guarantees them. Specifically, he argued that the 4 board relied on ORS 144.110(2)(b) (1997), ORS 163.105(1) (1997), ORS 144.780 5 (1997), and ORS 161.620 (1994) in promulgating the JAM rules, but that none of those 6 5 As pertinent here, ORS 183.400 provides: "(1) The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when the petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court. "* * * * * "(3) Judicial review of a rule shall be limited to an examination of: "(a) The rule under review; "(b) The statutory provisions authorizing the rule; and "(c) Copies of all documents necessary to demonstrate compliance with applicable rulemaking procedures. "(4) The court shall declare the rule invalid only if it finds that the rule: "(a) Violates constitutional provisions; "(b) Exceeds the statutory authority of the agency; or "(c) Was adopted without compliance with applicable rulemaking procedures." 11 statutes authorized the board to require that intermediate review process for juvenile 1 aggravated murderers. 2 While that rule challenge was pending in the Court of Appeals, both 3 Engweiler and Sopher also brought the instant mandamus actions to compel the board to 4 conduct hearings and establish initial release dates for both of them under ORS 5 144.120(1)(a) (1989) (in Engweiler's case) and ORS 144.120(1)(a) (1991) (in Sopher's).6 6 In his mandamus action, Engweiler argued that ORS 144.120(1)(a) (1989) 7 required that process in his case. That statute provided: 8 "Within six months of the admission of a prisoner to any Department of 9 Corrections institution, with the exception of those prisoners sentenced to a 10 term of imprisonment for life or for more than five years, the board shall 11 conduct a parole hearing to interview the prisoner and set the initial date of 12 release on parole pursuant to subsection (2) of this section. For those 13 prisoners sentenced to a term of imprisonment for more than five years but 14 less than 15 years, the board shall conduct the parole hearing and set the 15 initial date of release within eight months following admission of the 16 prisoner to the institution. For those prisoners sentenced to a term of 17 imprisonment for life or for 15 years or more, the board shall conduct the 18 parole hearing, and shall set the initial release date, within one year 19 following admission of the prisoner to the institution. Release shall be 20 contingent upon satisfaction of the requirements of ORS 144.125." 21 (Emphasis added.) Engweiler argued that the wording in the foregoing statute is 22 mandatory and gave the board no discretion to decline to conduct a hearing and set an 23 6 In their petitions for writs of mandamus, Engweiler and Sopher alleged, among other things, that the board failed to perform its nondiscretionary, statutory duty to conduct an initial parole release hearing and set an initial parole release date, that the board had established a parole release date for other juvenile aggravated murderers, and that the board's failure to set an initial release date for them violated their constitutional rights in various respects. 12 initial release date. The board replied that, in 1991, ORS 144.120(1)(a) was amended to 1 exclude offenders who were sentenced for murder or aggravated murder,7 and that the 2 1991 version of the statute applied to Engweiler because he was resentenced in 1994. 3 Engweiler responded that application of the 1991 version of the statute to him would 4 violate constitutional ex post facto prohibitions. The board countered that the amendment 5 was procedural rather than substantive and, therefore, that the amended statute 6 constitutionally could be applied in Engweiler's case. The trial court rejected the board's 7 argument; it concluded that the 1989 version of the statute applied to Engweiler and that 8 that statute required the board to conduct a hearing and set an initial release date. 9 Accordingly, the trial court issued a writ directing the board to hold a hearing and set an 10 initial release date as provided in that statute. 11 The board appealed that ruling to the Court of Appeals. On appeal, the 12 board repeated its argument that the 1991 version of ORS 144.110(1)(a) applied in 13 Engweiler's case because he had been resentenced in 1994, and that that statute clearly 14 excluded those sentenced for aggravated murder from the hearing requirement. In 15 7 In 1991, the italicized sentence in ORS 144.120(1)(a) (1989), above, was amended to read as follows: "For those prisoners sentenced to a term of imprisonment for life or for 15 years or more, with the exception of those sentenced for aggravated murder, the board shall conduct the parole hearing, and shall set the initial release date, within one year following admission of the prisoner to the institution." Or Laws 1991, ch 126, § 6 (emphasis added). 13 addition, the board argued that, even if the 1991 version did not apply, the 1989 version 1 did not mandate a hearing in Engweiler's case, because ORS 144.120 is qualified by 2 another, related statute, ORS 144.110(2)(b), which provided that ORS 144.120 (1989) did 3 not apply to prisoners who had been convicted of aggravated murder. 4 The Court of Appeals reversed. That court did not address whether the 5 1991 or 1989 version of ORS 144.120 applied, because it agreed with the board's second 6 argument. The Court of Appeals observed that "ORS 144.110(2)(b) (1989) operated as 7 an exception to ORS 144.120(1)(a) (1989)." Engweiler VI, 232 Or App at 223. ORS 8 144.110(2)(b) (1989)8 provided: 9 "Notwithstanding the provisions of ORS 144.120 [relating to parole 10 hearings and the setting of initial parole release dates] and 144.780 11 [directing the board to promulgate rules establishing the parole matrix]: 12 "* * * * * 13 "(b) The board shall not release a prisoner on parole who has been 14 convicted of murder defined as aggravated murder under the provisions of 15 ORS 163.095, except as provided in ORS 163.105." 16 ORS 163.105 (1989)9 provided, in turn, as follows: 17 "Notwithstanding the provisions of ORS chapter 144 [relating 18 generally to parole and work release], ORS 421.165 [relating to temporary 19 leave] and ORS 421.450 to 421.490 [relating to forest and work camps]: 20 8 ORS 144.110 (1989) was identical in all material respects to ORS 144.110 (1991). For convenience, we refer at all times in this opinion to the 1989 version of ORS 144.110. 9 ORS 163.105 (1989) was identical in all material respects to ORS 163.105 (1991). For convenience, we refer at all times in this opinion to the 1989 version of ORS 163.105. 14 "(1) When a defendant is convicted of aggravated murder as defined 1 by ORS 163.095, the defendant shall be sentenced, pursuant to ORS 2 163.150, to death, life imprisonment without the possibility of release or 3 parole or life imprisonment. 4 "* * * * * 5 "(c) If sentenced to life imprisonment, the court shall order that the 6 defendant shall be confined for a minimum of 30 years without possibility 7 of parole, release on work release or any form of temporary leave or 8 employment at a forest or work camp. 9 "(2) At any time after 20 years from the date of imposition of a 10 minimum period of confinement pursuant to paragraph (c) of subsection (1) 11 of this section, the State Board of Parole and Post-Prison Supervision, upon 12 the petition of a prisoner so confined, shall hold a hearing to determine if 13 the prisoner is likely to be rehabilitated within a reasonable period of time. 14 The sole issue shall be whether or not the prisoner is likely to be 15 rehabilitated within a reasonable period of time. * * *. 16 "(3) If, upon hearing all of the evidence, the board, upon a 17 unanimous vote of all five members, finds that the prisoner is capable of 18 rehabilitation and that the terms of the prisoner's confinement should be 19 changed to life imprisonment with the possibility of parole, or work release, 20 it shall enter an order to that effect and the order shall convert the terms of 21 the prisoner's confinement to life imprisonment with the possibility of 22 parole or work release. Otherwise, the board shall deny the relief sought in 23 the petition. 24 "(4) Not less than two years after the denial of the relief sought in a 25 petition under this section, the prisoner may petition again for a change in 26 the terms of confinement. Further petitions for a change may be filed at 27 intervals of not less than two years thereafter." 28 The Court of Appeals noted that, on its face, ORS 144.110(2)(b) appeared directly 29 applicable to Engweiler. Engweiler VI, 232 Or App at 223. 30 However, the court acknowledged, ORS 161.620 (1989),10 which limited 31 10 The 1989 version of ORS 161.620 is identical to the version in effect in 15 courts' sentencing options for juvenile aggravated murderers, rendered parts of ORS 1 163.105 inapplicable to juvenile aggravated murderers. ORS 161.620 provided: 2 "Notwithstanding any other provision of law, a sentence imposed upon any 3 person remanded from the juvenile court under [former] ORS 419.533 4 [(1989)] shall not include any sentence of death or life imprisonment 5 without the possibility of release or parole nor imposition of any mandatory 6 minimum sentence except that a mandatory minimum sentence under ORS 7 163.105(1)(c) shall be imposed where the person was 17 years of age at the 8 time of the offense." 9 Engweiler had argued that that statute irreconcilably conflicted with the application of 10 ORS 144.110 and ORS 163.105 to juvenile aggravated murderers, because the 11 assumption underlying the latter two statutes -- that an aggravated murderer will be 12 sentenced to no less than a 30-year mandatory minimum term of imprisonment -- does 13 not apply to juveniles, and, therefore, the parole release process set out in ORS 14 163.105(2) to (4) cannot apply either. The Court of Appeals rejected that argument, 15 concluding that it was possible to harmonize all the applicable statutes. That court 16 reasoned that ORS 161.620 was a directive to the sentencing courts limiting the types of 17 sentences that may be imposed for the crime of aggravated murder when committed by a 18 juvenile under the age of 17: 19 "[That statute] said nothing, however, about the authority of the board to 20 implement the remaining portions of the statute concerning release 21 decisions, as set out in ORS 163.105(2) to (4) (1989). * * * In other words, 22 merely because a court may not impose a particular sentence mentioned in 23 ORS 163.105(1) does not necessarily require the conclusion that the board 24 1991, when Sopher committed his crime. For convenience, we refer at all times in this opinion to the 1989 version of ORS 161.620. 16 does not remain subject to the requirements of the balance of the statute 1 with respect to juvenile aggravated murderers." 2 Engweiler VI, 232 Or App at 227 (emphasis in original). According to the Court of 3 Appeals, the parts of ORS 163.105 -- subsections (2) and (3) -- that provide for the 4 conversion by the board of a 30-year mandatory minimum sentence for aggravated 5 murderers who have shown that they are capable of rehabilitation are not in conflict with 6 ORS 161.620, which merely states that trial courts cannot impose mandatory minimum 7 sentences on juvenile aggravated murderers. Id. at 227-28. 8 Finally, the Court of Appeals rejected Engweiler's argument that ORS 9 163.105(2) to (4) are inapplicable to his case because they provide for the "conversion" of 10 a mandatory minimum sentence to a sentence of life imprisonment, and he already is 11 serving such a sentence. The court disagreed, stating, 12 "An assumption implicit in [Engweiler's] argument is that the existence of 13 some measure of redundancy in one or more statutes necessarily establishes 14 an irreconcilable conflict between them. The assumption simply is not 15 consistent with relevant case law. * * * Particularly -- as in this case -- 16 when the alternative to accepting a measure of redundancy in legislation is 17 to hold that some portion of a statute simply does not mean what it says, the 18 courts routinely hold in favor of allowing for the redundancy." 19 Id. at 228. The Court of Appeals concluded that the focus of ORS 163.105(2) and (3) is 20 on the board's obligation to determine the prisoner's rehabilitation status, and the mandate 21 in those subsections for the board to "convert" the terms of the prisoner's confinement "is 22 insufficient to nullify that purpose and the relevant procedures." Id. at 229. 23 As noted, Sopher also sought a writ of mandamus to compel the board to 24 conduct a hearing and set an initial release date for him. In Sopher's case, the 1991 25 17 version of the statute clearly applied. The trial court in his case concluded that the board 1 had no duty under that statute to set a parole release date, because the 1991 version of the 2 statute expressly excluded offenders convicted of aggravated murder. Sopher appealed, 3 and the Court of Appeals affirmed the trial court's ruling. That court agreed that ORS 4 144.120(1)(a) (1991) did not require a hearing or parole release date for any person who 5 had been convicted of aggravated murder, and it noted that, in any event, in Engweiler 6 VI, it held that juvenile aggravated murderers were subject to the aggravated murder 7 review hearing process set out in ORS 144.110(2)(a) and ORS 163.105, and not the 8 initial parole hearing process set out in ORS 144.120(1)(a).11 Sopher III, 233 Or App at 9 236. 10 In Sopher's rule challenge, the Court of Appeals rejected Sopher's argument 11 that the board exceeded its statutory authority in promulgating the JAM rules, for the 12 same reasons that it rejected Engweiler's arguments in Engweiler VI. That is, the court 13 stated that it held in Engweiler VI that, "consistently with ORS 161.620, juvenile 14 aggravated murderers are subject to the standards and procedures described in ORS 15 11 As discussed in note 4, above, the Court of Appeals also accepted the state's concession that the trial court erred in dismissing Sopher's second claim for relief and reversed in part the trial court's ruling on that ground. In addition, Sopher made certain other arguments in the Court of Appeals revolving around a central claim that the board's refusal to give him a hearing under ORS 144.120(1)(a) (1991) violates various of his state and federal constitutional rights. The court rejected those arguments without extended discussion. Sopher II, 233 Or App at 180. In light of our holding that Sopher is entitled to a hearing under ORS 144.120(1)(a) (1991), we need not reach those issues. 18 144.110(2)(b) and ORS 163.105(2) to (4)." Sopher II, 233 Or App at 186. And, for that 1 reason, the court held, the JAM rules, which implemented those standards and 2 procedures, did not exceed the board's statutory authority under ORS 161.620. Id. 3 II. DISCUSSION 4 At the outset, we believe it is important to keep in mind, as we have set out 5 above, that this court is not writing on a clean slate. As noted, this court has addressed 6 issues regarding Engweiler's sentence and incarceration on three previous occasions. 7 Thus, with regard to Engweiler directly, and with regard to Sopher as a matter of 8 precedent, the following legal principles are already established. 9 First, in Engweiler IV, this court described Engweiler's sentence as "life 10 imprisonment with the possibility of release or parole" and observed that Engweiler was 11 in the same position as an inmate serving an indeterminate sentence before the adoption 12 of the guidelines sentencing scheme: The board is responsible for determining the actual 13 duration of his imprisonment. 340 Or at 383. 14 Second, in Engweiler V, this court concluded that the "[n]otwithstanding 15 any other provision of law" clause at the beginning of the text of ORS 161.620 (1989) 16 means 17 "that the terms of ORS 161.620 (1989) prevailed over 'any other provision 18 of law.' In other words, the notwithstanding clause 'ma[kes] it irrelevant 19 that ORS 144.110(2)(b) (1989) and ORS 163.105(1) (1989) each mandated 20 a minimum sentence of 30 years without the possibility of parole for any 21 person convicted of aggravated murder and made no exception for persons 22 who were juveniles under the age of 17 when they committed [aggravated 23 murder]." 24 343 Or at 544. 25 19 Third, in Engweiler V, the court also observed, as it had earlier in 1 Engweiler IV, that juvenile aggravated murderers are "a small class of inmates who 2 continued to receive indeterminate sentences," Engweiler IV, 340 Or at 381, and who are 3 entitled to parole consideration: 4 "ORS 161.620 (1989) trumped [ORS 144.110(2)(b) (1989) and ORS 5 163.105(1) (1989)] by precluding imposition of the 30-year mandatory 6 minimum sentence otherwise authorized by ORS 163.105(1) (1989) for 7 juveniles who were under age 17 when they committed aggravated murder. 8 Consequently, petitioners must be entitled to the possibility of parole." 9 Engweiler V, 343 Or at 545 (emphasis added). 10 Finally, in Engweiler V, this court observed that when Engweiler 11 committed his crime, "none of the board's existing rules provided either procedural or 12 substantive mechanisms to determine whether and when to parole juvenile aggravated 13 murderers." Id. at 546. 14 Based on the foregoing, to resolve the rule challenge and the mandamus 15 cases, this court must decide two questions with regard to each inmate: To what extent 16 has the legislature granted the board authority to make parole release decisions in the case 17 of juvenile aggravated murderers like these inmates? And, if the legislature has granted 18 the board authority to make parole release decisions in these cases, what release 19 procedures and criteria did the legislature intend for the board to apply with regard to 20 each inmate? 21 To answer those questions, we first examine ORS 163.105, which grants 22 the Executive Branch, through the board, release authority regarding inmates convicted 23 of aggravated murder and sentenced to life imprisonment with a minimum period of 24 20 confinement of 30 years without the possibility of parole. We begin with that statute 1 because the Court of Appeals concluded that ORS 163.105(2) to (4) apply to juvenile 2 aggravated murderers, and thus authorized the board to adopt the JAM rules 3 implementing release procedures that mirror, in many respects, the statutory requirements 4 set out in ORS 163.105. For convenience, we set out the pertinent parts of ORS 163.105 5 again here: 6 "Notwithstanding the provisions of ORS chapter 144 [relating to parole and 7 work release], ORS 421.165 [relating to temporary leave] and ORS 8 421.450 to 421.490 [relating to forest and work camps]: 9 "(1) When a defendant is convicted of aggravated murder as defined 10 by ORS 163.095, the defendant shall be sentenced, pursuant to ORS 11 163.150, to death, life imprisonment without the possibility of release or 12 parole or life imprisonment. 13 "* * * * * 14 "(c) If sentenced to life imprisonment, the court shall order that the 15 defendant shall be confined for a minimum of 30 years without possibility 16 of parole, release on work release or any form of temporary leave or 17 employment at a forest or work camp. 18 "(2) At any time after 20 years from the date of imposition of a 19 minimum period of confinement pursuant to paragraph (c) of subsection (1) 20 of this section, the State Board of Parole and Post-Prison Supervision, upon 21 the petition of a prisoner so confined, shall hold a hearing to determine if 22 the prisoner is likely to be rehabilitated within a reasonable period of time. 23 The sole issue shall be whether or not the prisoner is likely to be 24 rehabilitated within a reasonable period of time. * * *. 25 "(3) If, upon hearing all of the evidence, the board, upon a 26 unanimous vote of all five members, finds that the prisoner is capable of 27 rehabilitation and that the terms of the prisoner's confinement should be 28 changed to life imprisonment with the possibility of parole, or work release, 29 it shall enter an order to that effect and the order shall convert the terms of 30 the prisoner's confinement to life imprisonment with the possibility of 31 parole or work release. Otherwise, the board shall deny the relief sought in 32 the petition. 33 21 "(4) Not less than two years after the denial of the relief sought in a 1 petition under this section, the prisoner may petition again for a change in 2 the terms of confinement. Further petitions for a change may be filed at 3 intervals of not less than two years thereafter." 4 Subsection (1) of ORS 163.105 is a directive to the Judicial Branch 5 delineating three potential sentences that a trial court could impose for the crime of 6 aggravated murder: death, life imprisonment without the possibility of parole (known as 7 "true life"), and life imprisonment. For those defendants convicted of aggravated murder 8 and sentenced by the trial court to life imprisonment, ORS 163.105(1)(c) further requires 9 that the trial court order the defendant to serve a mandatory minimum sentence of 30 10 years without the possibility of parole or work release. 11 As we already have discussed, at the time that Engweiler and Sopher 12 committed their crimes, those sentencing options applied only to adult aggravated 13 murderers. That is so, because another statute, ORS 161.620, limited the trial courts' 14 sentencing options for juvenile offenders. Again, for convenience, we set out ORS 15 161.620 here: 16 "Notwithstanding any other provision of law, a sentence imposed upon any 17 person remanded from the juvenile court under [former] ORS 419.533 18 [(1989)] shall not include any sentence of death or life imprisonment 19 without the possibility of release or parole nor imposition of any mandatory 20 minimum sentence except that a mandatory minimum sentence under ORS 21 163.105(1)(c) shall be imposed where the person was 17 years of age at the 22 time of the offense." 23 (Emphasis added.) Also, as explained earlier, this court has stated that the 24 "notwithstanding" clause in that statute means that the terms of ORS 161.620 "prevail[] 25 'over any other provision of law,'" Engweiler V, 343 Or at 544, including, as relevant in 26 22 this case, ORS 163.105. ORS 161.620 provides that no juvenile can be sentenced to 1 death or true life. In addition, for those juveniles who were under the age of 17 when 2 they committed their crimes, ORS 161.620 prohibited the trial courts from imposing any 3 statutorily required minimum sentence. See State v. Jones, 315 Or 225, 230-31, 844 P2d 4 188 (1992) (so holding). Those provisions, taken together, meant that "the only 5 sentencing option available [to the trial court for juveniles convicted of aggravated 6 murder] was life imprisonment with the possibility of release or parole." Engweiler IV, 7 340 Or at 383. 8 The remaining subsections of ORS 163.105 provide a procedure under 9 which the board may override a 30-year mandatory minimum sentence imposed by the 10 trial court under subsection (1). See Janowski/Fleming v. Board of Parole, 349 Or 432, 11 446, 245 P3d 1270 (2010) (ORS 163.105 gave board authority to override 30-year 12 mandatory minimum sentence for aggravated murder and to consider releasing a prisoner 13 on parole after 20 years upon a finding that he is likely to be rehabilitated). Specifically, 14 subsection (2) provides that a prisoner serving a 30-year mandatory minimum sentence 15 for aggravated murder may seek a "hearing to determine if [he] is likely to be 16 rehabilitated within a reasonable period of time," and it describes the timing for such a 17 hearing: "any time after 20 years from the date of imposition of a minimum period of 18 confinement pursuant to paragraph (c) of subsection (1) of this section." If the board 19 unanimously finds that a prisoner is "capable of rehabilitation," then the board, pursuant 20 to subsection (3) "shall convert the terms of the prisoner's confinement to life 21 imprisonment with the possibility of parole." Finally, subsection (4) provides a 22 23 mechanism for a prisoner who was unsuccessful in persuading the board to convert his 1 mandatory minimum sentence to a sentence of life in prison with the possibility of parole 2 to petition again after two years for "a change in the terms of confinement." 3 As the wording of those subsections make plain, they have no applicability 4 to a prisoner who is not serving a mandatory minimum sentence. First, as this court 5 stated in Severy/Wilson v. Board of Parole, 349 Or 461, 475, 245 P3d 119 (2010): 6 "[u]nder the plain words of [ORS 163.105(2)], the trigger for the 7 rehabilitation hearing is the 'imposition' of [a] minimum period of 8 confinement. Only a court 'imposes' a sentence in a criminal case." 9 Thus, for juvenile aggravated murderers, the "trigger" for the rehabilitation hearing never 10 occurred; ORS 161.620 prohibited trial courts from imposing a minimum period of 11 confinement. Moreover, although the "sole issue" to be decided at the hearing described 12 in ORS 163.105(2) to (4) is "whether or not the prisoner is likely to be rehabilitated in a 13 reasonable period of time," ORS 163.105(2), the only authority that the legislature 14 granted to the board upon its finding that the prisoner was capable of rehabilitation was to 15 perform an act that is entirely unnecessary in the case of juvenile aggravated murderers: 16 to change the terms of the prisoner's confinement from a prohibition on eligibility for 17 parole to the possibility of parole. See Severy/Wilson, 349 Or at 477 (in requiring board 18 to convert terms of prisoner's confinement to life with the possibility of parole, ORS 19 163.105(3) required the board to convert prohibition on eligibility for parole to possibility 20 of parole). Juvenile aggravated murderers need no such change; they are "entitled to the 21 possibility of parole" from the time that the trial court imposed its sentence of life in 22 prison. See Engweiler V, 343 Or at 545 (juvenile aggravated murderers are "entitled to 23 24 the possibility of parole"). Finally, ORS 163.105(4) indicates that the very purpose of a 1 prisoner's petition for that hearing is to obtain that change from prohibition to eligibility 2 for parole: 3 "Not less than two years after the denial of the relief sought in a petition 4 under this section, the prisoner may petition again for a change in the terms 5 of confinement." 6 It is clear from the foregoing that the relief that the prisoner seeks in 7 demonstrating rehabilitation at a hearing under ORS 163.105(2) to (4) is the conversion 8 of the prisoner's mandatory minimum sentence to life with the possibility of parole. That 9 relief is pointless in the case of a prisoner already serving a sentence of life imprisonment 10 with the possibility of parole.12 It follows that ORS 163.105(2) to (4) are not applicable 11 12 The board argues that that conversion of the prisoner's sentence to life with the possibility of parole would not be pointless in the case of prisoners not serving a mandatory minimum sentence, because, in its view, a "life sentence" does not include the possibility of parole. Therefore, all prisoners serving "life sentences," including juvenile aggravated murderers, can be required to undergo a rehabilitation hearing before becoming eligible for parole. Further, the board argues, while it is true that juvenile aggravated murderers must have the eventual possibility of parole, that does not mean that the board is precluded from requiring whatever procedure it desires, on whatever timeline, before considering juvenile aggravated murderers for parole. We disagree. Prisoners with indeterminate sentences generally were eligible for parole consideration soon after their admission to prison. See ORS 144.120 (requiring the board to conduct parole hearings and set parole release dates for most prisoners within a year of their incarceration). And, as we observed in Janowski/Fleming, 349 Or at 449, aggravated murderers who have demonstrated that they are capable of rehabilitation and who have had their sentences converted to life with the possibility of parole are in the same position respecting parole eligibility as any other offender who was sentenced to life imprisonment by the trial court at the time of his conviction. That is, they are entitled to parole consideration at a parole hearing. Id. at 456. Juvenile aggravated murderers also serve indeterminate life sentences and, as we 25 to juvenile aggravated murderers.13 1 ORS 144.110(2)(b), which provides that the board "shall not release a 2 prisoner on parole who has been convicted of * * * aggravated murder * * * except as 3 provided in ORS 163.105" is not inconsistent with that conclusion. We acknowledge that 4 that paragraph appears, superficially, to support the notion that all aggravated murderers, 5 including juveniles, can be released on parole only in compliance with ORS 163.105. 6 However, when that paragraph is considered in context, it is clear that that paragraph 7 discuss in more detail below, they, too, are eligible for a parole hearing and parole consideration under ORS 144.120. 13 The Court of Appeals reached a contrary conclusion, determining that the references to converting the terms of the prisoners' confinement were "redundant," and concluding that accepting a measure of redundancy is preferable to "hold[ing] that some portion of a statute simply does not mean what it says." Engweiler VI, 232 Or App at 228. The Court of Appeals erred in two respects. First, redundancy is a (perhaps unnecessary) repetition of terms; it does not refer to terms that are inapplicable to a given situation. Thus, from the point of view of juvenile aggravated murderers who are serving sentences of life imprisonment with the possibility of parole, ORS 163.105 is not redundant when it refers to the conversion of the terms of a prisoner's confinement from a prohibition on eligibility for parole to the possibility of parole; rather, it is inapplicable. The Court of Appeals' second error was in viewing the principal focus of ORS 163.105(2) to (4) as on "the board's obligation to determine the offender's rehabilitation status," and the conversion of the terms of confinement as a "superfluity." Id. at 229. As we discuss in the text, the words of ORS 163.105(2) to (4) belie that interpretation. Although the issue to be decided at the rehabilitation hearing is the offender's rehabilitation, the board's obligation is to convert the terms of the prisoner's confinement. ORS 163.105(3) (if the board finds the prisoner to be capable of rehabilitation, the board "shall enter an order to that effect and the order shall convert the terms of the prisoner's confinement to life imprisonment with the possibility of parole or work release"). And, as we also discuss in the text, the fact that subsection (4) refers to the prisoner's right to petition again for a change in the terms of his confinement after two years if he is unsuccessful the first time demonstrates that the conversion of the sentence is not a superfluity; it is the purpose of the prisoner's petition. 26 bolsters, rather than undermines, our conclusion that ORS 163.105 is inapplicable to 1 juvenile aggravated murders. 2 ORS 144.110 provides as follows: 3 "(1) In any felony case, the court may impose a minimum term of 4 imprisonment of up to one-half of the sentence it imposes. 5 "(2) Notwithstanding the provisions of ORS 144.120 [dealing with 6 release on parole according to matrix] and 144.780 [directing board to 7 adopt rules establishing matrix]: 8 "(a) The board shall not release a prisoner on parole who has been 9 sentenced under subsection (1) of this section until the minimum term has 10 been served, except upon affirmative vote of at least four members of the 11 board. 12 "(b) The board shall not release a prisoner on parole who has been 13 convicted of murder defined as aggravated murder under the provisions of 14 ORS 163.095, except as provided in ORS 163.105." 15 That statute "deals with restrictions on paroling persons who have been sentenced to 16 minimum terms." Janowski/Fleming, 349 Or at 443. As this court explained in 17 Janowski/Fleming, ORS 144.110 has two parts. The first part grants trial courts 18 discretion to impose minimum periods of imprisonment for adults convicted of felonies 19 other than aggravated murder. Janowski/Fleming, 349 Or at 443. As noted, such 20 discretion generally is unnecessary for aggravated murderers; under ORS 163.105, the 21 trial court must impose a 30-year mandatory minimum sentence for aggravated murder (if 22 the defendant was not given the death penalty or true life). And, as this court further 23 explained in Janowski/Fleming, the second part 24 "set out two processes for effectively overriding those mandatory minimum 25 sentences. The processes were parallel, a fact demonstrated by their use of 26 identical wording in paragraphs (2)(a) and (2)(b), viz., 'The board shall not 27 release a prisoner on parole * * * except * * *.' Under paragraph (2)(a), in 28 27 cases in which the court had imposed mandatory minimum sentences for 1 felonies other than aggravated murder, the board had the authority to 2 override those mandatory minimum sentences if four of the five board 3 members agreed. Paragraph (2)(b), which prohibited the board from 4 releasing on parole a prisoner who had been convicted of aggravated 5 murder 'except as provided in ORS 163.105,' gave the board similar 6 authority, albeit with more onerous preconditions: In the case of prisoners 7 convicted of aggravated murder, the prisoner was not permitted to seek a 8 rehabilitation hearing that might lead to an override of the prisoner's 9 judicially imposed sentence until he already had been incarcerated for 20 10 years, the burden was on the prisoner to convince the board that he was 11 likely to be rehabilitated within a reasonable time, and the board was 12 required to agree with the prisoner unanimously rather than by a four-of- 13 five member vote. ORS 163.105(2), (3)." 14 Janowski/Fleming, 349 Or at 443-44 (footnote omitted). In context, and read together 15 with ORS 163.105, it is clear that ORS 144.110(2)(b) refers to a process for overriding 16 the mandatory minimum sentence required to be imposed for aggravated murder, parallel 17 to the process set out in subparagraph (2)(a) for overriding the mandatory minimum 18 sentence that the trial court, in its discretion, has imposed for other types of felonies. 19 Those parallel processes for overriding mandatory minimum sentences have no bearing 20 on the board's parole release decisions respecting prisoners who are not serving 21 mandatory minimum sentences. And because, under ORS 161.620, trial courts were not 22 permitted to impose minimum sentences on juveniles, it follows that the process referred 23 to in ORS 144.110(2)(b) has no applicability to juvenile aggravated murderers.14 24 14 The dissent disagrees with our conclusion that ORS 144.110(2)(b) and ORS 163.105 have no applicability to juvenile aggravated murderers. In the dissent's view, ORS 144.110(2)(b) is the "only * * * statute [that] serves as the potential source for the board's power to parole any aggravated murderer, adult or juvenile," __ Or __ (Linder, J., dissenting) (slip op at 3), because the board's general authority to parole inmates was 28 limited, under ORS 144.050, to inmates who committed their offenses prior to November 1, 1989. Id. at __ (slip op at 6). Therefore, according to the dissent, to the extent that we conclude that neither ORS 144.110 nor ORS 163.105 applies to juvenile aggravated murderers, we also must conclude that the board lacks authority to parole juvenile aggravated murderers at all. Id. at __ (slip op at 7). The dissent errs in two ways. First, ORS 144.110(2)(b) is not the only "potential source for the board's power to parole" juvenile aggravated murderers. The dissent reaches that erroneous conclusion because it reads in isolation, and therefore places too much emphasis on, one phrase in ORS 144.110(2)(b): "[t]he board shall not release a prisoner on parole * * * except" as provided in ORS 163.105. Context establishes that the legislature did not intend that phrase as a grant of authority to the board to release any prisoner on parole. Rather, as we discuss in the text, both ORS 144.110(2)(a) and ORS 144.110(2)(b) are merely restrictions on paroling persons who have been sentenced to minimum terms. ORS 144.110(2)(a) provides that, when a trial court has imposed a mandatory minimum sentence for a felony other than aggravated murder, a majority vote of the board is required to override that mandatory minimum. In a parallel fashion, ORS 144.110(2)(b) provides that, when the trial court has imposed a 30-year mandatory minimum sentence for aggravated murder, the board must follow the procedures set out in ORS 163.105 to override that mandatory minimum. Our conclusion that ORS 144.110(2)(b) is merely an override provision is bolstered by the fact that ORS 163.105 only addresses the conversion of a prisoner's 30- year mandatory minimum sentence to a sentence of life imprisonment with the possibility of parole; it does not authorize or provide a mechanism for the board to release any prisoner on parole. See Janowski/Fleming, 349 Or at 446 (ORS 163.105 silent with respect to how the board was expected to determine a prisoner's actual duration of confinement once board converted prisoner's term to life with the possibility of parole). And, as previously stated, juvenile aggravated murderers never were sentenced to minimum terms; therefore, no override under ORS 144.110 or conversion under ORS 163.105 is necessary. The fact that ORS 144.110 is not a source of the board's parole authority does not mean, however, that the board lacks authority to parole juvenile (or adult) aggravated murderers. It is true, as the dissent observes, that ORS 144.050 (1989) grants the board express authority to parole only those inmates who committed offenses prior to November 1, 1989. However, as we discuss in the text below, the legislative note following ORS 144.110 (enacted at the same time as the amendment to ORS 144.050 limiting the board's parole authority to offenders who committed crimes after November 1, 1989) explicitly provides that ORS 144.110, 144.120, and several other statutes, all governing the board's authority to release prisoners on parole, continue to apply to 29 Our conclusions respecting the applicability of ORS 163.105(2) to (4) and 1 ORS 144.110(2)(b) to juvenile aggravated murderers constitute the first step in the 2 resolution of Sopher's petition for review of the Court of Appeals decision in the rule 3 challenge case. That is, because we hold that ORS 144.110 and ORS 163.105 do not 4 apply to juvenile aggravated murderers, it necessarily follows that neither of those 5 statutes provide authority to the board to require, under the JAM rules, that a juvenile 6 aggravated murderer undergo an intermediate review process to demonstrate that he is 7 capable of rehabilitation before he is deemed eligible for parole consideration. Therefore, 8 before turning to the other issues presented in these cases, we complete our analysis in 9 the rule challenge.15 10 prisoners who have been convicted of aggravated murder, regardless of the date of their crimes. That legislative note, then, effectively operates as an exception to the date limitation in ORS 144.050 on the board's parole authority, permitting it to continue to exercise that authority over prisoners convicted of aggravated murder after November 1, 1989. In other words, notwithstanding its apparently limiting wording, ORS 144.050 continues to be the source of the board's parole authority over aggravated murderers. 15 As a preliminary matter, we acknowledge, as the board has pointed out, that this court considered, in Engweiler V, whether the board had exceeded its statutory authority in promulgating the JAM rules. In that case, Engweiler argued that the JAM rules exceed the board's authority because they ran afoul of ORS 144.780(1) (1997), which directed the board to "adopt rules establishing ranges of duration of imprisonment to be served for felony offenses prior to release on parole." Engweiler argued that that statute obligated the board to establish a "duration of imprisonment" at a juvenile aggravated murderer's initial prison term hearing, but the JAM rules do not permit setting an actual parole release date at a prison term hearing. This court held that Engweiler had misread ORS 144.780; that statute required only that the board adopt "ranges" of duration of imprisonment, which it did when it adopted the exhibits attached to the rules. Engweiler V, 343 Or at 550. It did not require the board to establish a particular duration of imprisonment for any particular prisoner. Accordingly, the court held, the JAM rules 30 As discussed above, in a rule challenge under ORS 183.400, judicial review 1 is 2 "limited to an examination of: (a) [t]he rule under review; (b) [t]he 3 statutory provisions authorizing the rule; and (c) [c]opies of all documents 4 necessary to demonstrate compliance with applicable rulemaking 5 procedures." 6 ORS 183.400(3). Moreover, a court may declare a rule invalid 7 "only if it finds that the rule: (a) [v]iolates constitutional provisions; (b) 8 [e]xceeds the statutory authority of the agency; or (c) [w]as adopted without 9 compliance with applicable rulemaking procedures." 10 ORS 183.400(4). Sopher has not challenged the JAM rules on the ground that the board 11 failed to comply with applicable rulemaking procedures. He does, however, challenge 12 the rules on the grounds that they exceeded the board's statutory authority and that they 13 violated certain constitutional provisions. Consistent with this court's preferred practice 14 in dealing with legal challenges to administrative rules under ORS 183.400, we consider 15 statutory questions before turning to constitutional issues. Oregon Newspaper Publishers 16 v. Dept. of Corrections, 329 Or 115, 119, 988 P2d 359 (1999) (so holding). 17 did not conflict with ORS 144.780(1) (1997), and the board, therefore, did not exceed its statutory authority in any way argued by Engweiler in that case. Id. at 551 ("ORS 144.780(1) (1997) is not offended by [the] procedural choice on the board's part [to conduct an intermediate hearing before setting a parole release date]."). In Engweiler V, this court was not asked to, and did not, address the precise issue that the court confronts today, viz., whether the board exceeded its statutory authority in adopting the JAM rules because no statute authorizes the board to require juvenile aggravated murderers to undergo an intermediate review process before the board considers them for parole eligibility and other statutes require the board to conduct parole hearings and set parole release dates for them. 31 The JAM rules consist of the 1999 amendments to OAR 255-032-0005, 1 OAR 255-032-0010, OAR 255-032-0015, and OAR 255-032-0020, as well as the then- 2 newly adopted OAR 255-032-0011 and certain exhibits setting out the matrix ranges for 3 juvenile aggravated murderers. OAR 255-032-0005, OAR 255-032-0010, OAR 255-032- 4 0015, and OAR 255-032-0020 were amended to add the word "adult" in various places, 5 to clarify when juveniles were excluded from the review process outlines in those rules. 6 In addition, OAR 255-032-0005 was amended to include the following: 7 "(4) Inmates, who were juveniles and waived to the adult court 8 pursuant to ORS 419C.340 through 419C.364, and were under the age of 9 17 years at the time of their crime(s), and were convicted of Aggravated 10 Murder, per ORS 163.095, and whose crimes were committed after October 11 31, 1989 and prior to April 1, 1995, shall receive a prison term hearing. At 12 the hearing, the Board shall set a review date consistent with the terms set 13 forth in OAR 255-032-0011, rather than a projected parole release date." 14 OAR 255-032-0011 provides: 15 "(1) The Board shall conduct a hearing pursuant to OAR 255-030- 16 0013, 255-030-0015, 255-030-0021, 255-030-0023 and 255-030-0025 17 through 255-030-0055. 18 "(2) The Board shall set a review date pursuant to Exhibit P-III, or 19 deny parole, pursuant to OAR 255-035-0030. 20 "(3) The method established by sections (1) to (3) of OAR 255-035- 21 0021 shall not apply to inmates described in 255-032-0005(4). To 22 determine the unified range for inmates described in OAR 255-032-0005(4) 23 with consecutive sentences for aggravated murder, the Board shall establish 24 the matrix range for each crime by using the inmate's history/risk score 25 pursuant to Exhibit P-III. The unified range shall be the sum of the ranges 26 established under this section. 27 "(4) The Board may depart from the appropriate matrix range for 28 inmates described in OAR 255-032-0005(4) only upon making a specific 29 finding that there is aggravation or mitigation which justifies departure 30 from the range pursuant to Exhibits E-1 and E-2. The Board shall clearly 31 state on the record the facts and specific reasons for its finding. The Board 32 32 may give items of aggravation and mitigation different weight and not 1 necessarily balance them one for one. Exhibit D does not apply to inmates 2 described in 255-032-0005(4). The Board cannot apply aggravating or 3 mitigating factors to adjust an inmate's matrix range more than one level up 4 or down. Mitigating factors cannot reduce an inmate's matrix range below 5 the lowest possible range on the matrix. 6 "(5) If the Board denies parole, the inmate may petition for review 7 after 480 months from the adjusted inception date. If the Board determines, 8 following a review of the inmate's petition and institutional record, there is 9 reasonable grounds to believe that rehabilitation may have occurred and 10 that the possibility of parole should be considered, a review hearing shall be 11 scheduled. 12 "(6) If the Board sets a review date pursuant to Exhibit P-III, the 13 Board shall conduct a progress review five years prior to the established 14 review date. The progress review does not require a hearing with the 15 inmate; however, the inmate may submit materials to be considered. The 16 purpose of the progress review is to determine the inmate's institutional 17 conduct and rehabilitation efforts since the prison term hearing. 18 "(7) The Board may determine a parole release date or future review 19 dates any time after the established review date. The Board may order a 20 psychological evaluation. Refusal to submit to an evaluation if one is 21 ordered will be grounds for automatic deferral of the hearing for up to five 22 years or a lesser time if deemed appropriate by the Board. If parole was 23 previously denied, that decision will remain in effect and further petitions 24 for review will not be considered at less than two (2) year intervals. 25 "(8) At the review hearing, the Board will consider, but is not limited 26 to, the following: 27 "[various indicia of rehabilitation] * * *. 28 "The decision for the Board shall be whether there are significant 29 indications of reformation and rehabilitation such that the offender does not 30 represent a risk to the community and that it is in the offender's and the 31 community's best interest that he/she be released to the community under 32 conditions of supervision. 33 "If the Board does not make the above finding, the Board shall set a 34 subsequent review hearing date not to exceed five (5) years from the 35 present review." 36 33 Exhibit P-III, referred to in the foregoing rule, sets out the juvenile aggravated murder 1 matrix. 2 Again as noted, in promulgating the JAM rules, the board cited four sources 3 of statutory authority: ORS 144.110(2)(b) (1997), ORS 163.105(1) (1997), 161.620 4 (1994), and ORS 144.780 (1997). Sopher argues that the board promulgated the JAM 5 rules based on a misunderstanding of the relevant laws and, as a consequence, it created 6 rules that "depart[] from the legal standard expressed or implied in the enabling 7 statute[s]," quoting Gilliam County v. Dept. of Environmental Quality, 316 Or 99, 106, 8 849 P2d 500 (1993), rev'd on other grounds sub nom Oregon Waste Sys. v. Department 9 of Environmental Quality, 511 US 93, 114 S Ct 1345, 128 L Ed 2d 13 (1994). 10 Specifically, Sopher argues that neither ORS 163.105(1), which provides three 11 sentencing options for adult aggravated murderers (none of which may be imposed on 12 juvenile aggravated murderers), nor any other part of ORS 163.105, gives the board 13 authority to impose the intermediate review procedure outlined ORS 163.105 to juvenile 14 aggravated murderers. Similarly, Sopher argues, ORS 144.110(2)(b) provides the board 15 with no such authority. As already discussed at length, we agree on both counts. 16 Sopher also argues that neither ORS 161.620 nor ORS 144.780 provides a 17 source of authority for requiring juvenile aggravated murderers to prove rehabilitation 18 before becoming eligible for parole release. We agree. As discussed above, ORS 19 161.620 is a limitation on the options available to the trial court in sentencing juvenile 20 felony offenders in general, and specifically, juvenile aggravated murderers under the age 21 of 17 at the time of their offense. That statute has no application to the authority of the 22 34 board (a separate branch of government) to make parole release decisions for juvenile 1 aggravated murderers. Likewise, ORS 144.780, which directs the board to "adopt rules 2 establishing ranges of duration of imprisonment to be served for felony offenses prior to 3 release on parole," cannot be read to authorize the board to require juvenile aggravated 4 murderers to undergo an intermediate review process before becoming eligible for parole 5 release.16 6 At the same time, Sopher argues, ORS 144.120(1)(a) requires the board to 7 conduct a parole hearing and set a parole release date, and the JAM rules, by setting 8 review dates rather than release dates, conflict with that statute. As discussed above, the 9 1989 version of ORS 144.120(1)(a) provided as follows: 10 "Within six months of the admission of a prisoner to any Department of 11 Corrections institution, with the exception of those prisoners sentenced to a 12 term of imprisonment for life or for more than five years, the board shall 13 conduct a parole hearing to interview the prisoner and set the initial date of 14 release on parole pursuant to subsection (2) of this section. For those 15 prisoners sentenced to a term of imprisonment for more than five years but 16 less than 15 years, the board shall conduct the parole hearing and set the 17 initial date of release within eight months following admission of the 18 prisoner to the institution. For those prisoners sentenced to a term of 19 imprisonment for life or for 15 years or more, the board shall conduct the 20 parole hearing, and shall set the initial release date, within one year 21 following admission of the prisoner to the institution. Release shall be 22 contingent upon satisfaction of the requirements of ORS 144.125." 23 (Emphasis added.) 24 We conclude that that statute required the board to conduct a parole hearing 25 16 Of course, as noted above in note 15, this court held in Engweiler V that ORS 144.780 also did not operate as an impediment to the promulgation of such rules. 35 for offenders sentenced to life in prison within one year after an offender's admission to 1 prison, even if the offender had been convicted of aggravated murder. The statute uses 2 the mandatory word "shall" and contains no exceptions depending on the nature of the 3 crime committed.17 Therefore, we conclude that the JAM rule requirement that a juvenile 4 aggravated murderer undergo an intermediate hearing no less than 20 years after his 5 admission to prison before he is eligible for parole consideration is in direct conflict with 6 ORS 144.120(1)(a) (1989). 7 However, in 1991, before Sopher committed his crime, the legislature 8 added a phrase to ORS 144.120, amending the wording in paragraph (1)(a) that is 9 italicized above to read as follows: 10 "For those prisoners sentenced to a term of imprisonment for life or for 15 11 years or more, with the exception of those sentenced for aggravated 12 murder, the board shall conduct the parole hearing, and shall set the initial 13 release date, within one year following admission of the prisoner to the 14 institution." 15 Or Laws 1991, ch 126, § 6 (emphasis added). As noted, the trial court in Sopher's 16 mandamus case, and the Court of Appeals in Sopher III, concluded that that wording 17 17 We recognize that another subsection of ORS 144.120 -- ORS 144.120(4) - - gives the board the authority to choose not to set a parole release date for, among others, prisoners "whose offense included particularly violent or otherwise dangerous criminal conduct." We need not decide today whether the board may invoke that subsection to choose not to set a parole release date for prisoners who committed juvenile aggravated murder, an offense that inherently "included particularly violent or otherwise dangerous criminal conduct." 36 meant that, after 1991, aggravated murderers were not entitled to a parole hearing.18 1 Sopher argues, to the contrary, that the exception for aggravated murderers 2 added to ORS 144.120(1)(a) in 1991 applies only to the timing of parole hearings, not to 3 the requirement that the board conduct such hearings at all. That is, Sopher argues, the 4 amendment removed the requirement that the board conduct parole hearings within one 5 year of an aggravated murderer's admission to prison, but ORS 144.120(1)(a) (1991) 6 continued to mandate that the board conduct such hearings for aggravated murderers at 7 some point.19 8 18 In Engweiler III, this court reached a similar conclusion. There, the court stated that, "under that [1991] version of ORS 144.120(1)(a) * * *, the board was not required to set an initial release date for prisoners who, like petitioner, had been sentenced to aggravated murder. * * * [N]o * * * statute required the board to set an initial release date for persons like petitioner." 340 Or at 368-69. Those statements in Engweiler III were dicta, because Engweiler had argued that the version that was in effect when he committed his crime -- the 1989 version -- was the version that applied in his case, and the board conceded that point for purposes of argument there. In summarizing ORS 144.120(1)(a) (1991) in the way that it did, this court did not analyze the context of that wording or consider its legislative history. As we explain below, we no longer agree with the court's statement -- at least as it implicitly suggests that ORS 144.120(1)(a) (1991) requires the board neither to conduct a parole hearing, nor to set a release date, for any prisoner convicted of juvenile aggravated murder. And, in light of the fact that the court's comments are dicta, we are not bound by them. 19 The board conceded Sopher's point in this regard at oral argument in this court. That is, the board has conceded that the exclusion for aggravated murderers that the legislature added to ORS 144.120(1)(a) in 1991 means only that the board need not conduct a parole hearing for aggravated murderers within one year of their admission to prison; ORS 144.120(1)(a) (1991) continued to require a parole hearing for all aggravated murderers, including juvenile aggravated murderers, at some point. In this 37 In interpreting a statute, our task is to attempt to discern the intent of the 1 legislature. State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (discerning the intent 2 of the legislature is the court's "paramount goal" in statutory interpretation). We begin by 3 considering the text and context of the statute. Id. We then turn to any pertinent 4 legislative history that the parties have offered. Id. at 172. 5 We agree that the text of ORS 144.120 is ambiguous and capable of two 6 plausible interpretations. It is not clear from the text alone whether the legislature 7 intended the 1991 addition of the words "with the exception of those sentenced for 8 aggravated murder" to exclude all aggravated murderers from a parole hearing, or merely 9 to except them from the requirement that the hearing be held within one year of the 10 prisoner's admission to prison. Context, however, suggests that the legislature intended 11 to except aggravated murderers from the timing requirement only. 12 The first contextual clue is in the legislative note that follows ORS 144.110, 13 which states that 14 "Section 28, chapter 790, Oregon Laws 1989 provides: 15 "Sec. 28. The provisions of ORS 144.110, 144.120, 144.122, 16 144.125, 144.130, 144.135, 144.185, 144.223, 144.245,144.270 and 17 144.305 apply only to offenders convicted of a crime committed prior to 18 November 1, 1989, and to offenders convicted of aggravated murder or 19 murder regardless of the date of the crime." 20 That note explicitly provides that ORS 144.120 continues to apply to prisoners who have 21 court, the board's only argument is that the board is required to conduct a rehabilitation hearing for all aggravated murderers, including all juvenile aggravated murderers, under ORS 163.105 before conducting the parole hearing required by ORS 144.120(1)(a). 38 been convicted of aggravated murder, "regardless of the date of the crime." That means 1 that ORS 144.120 (1991) applied to Sopher, who committed his crime in 1992. All parts 2 of ORS 144.120 (1991) deal with the prisoner's entitlement to a parole hearing and the 3 setting of initial release dates,20 and the only part of ORS 144.120 (1991) that specifically 4 20 ORS 144.120 (1991) provided: "(1)(a) Within six months of the admission of a prisoner to any Department of Corrections institution, with the exception of those prisoners sentenced to a term of imprisonment for life or for more than five years, the board shall conduct a parole hearing to interview the prisoner and set the initial date of release on parole pursuant to subsection (2) of this section. For those prisoners sentenced to a term of imprisonment for more than five years but less than 15 years, the board shall conduct the parole hearing and set the initial date of release within eight months following admission of the prisoner to the institution. For those prisoners sentenced to a term of imprisonment for life or for 15 years or more, with the exception of those sentenced for aggravated murder, the board shall conduct the parole hearing, and shall set the initial release date, within one year following admission of the prisoner to the institution. Release shall be contingent upon satisfaction of the requirements of ORS 144.125. "(b) Those prisoners sentenced to a term of imprisonment for less than 15 years for commission of an offense designated by rule by the board as a non person-to-person offense may waive their rights to the parole hearing. When a prisoner waives the parole hearing, the initial date of release on parole may be set administratively by the board pursuant to subsections (2) to (6) of this section. If the board is not satisfied that the waiver was made knowingly or intelligently or if it believes more information is necessary before making its decision, it may order a hearing. "(2) In setting the initial parole release date for a prisoner pursuant to subsection (1) of this section, the board shall apply the appropriate range established pursuant to ORS 144.780. Variations from the range shall be in accordance with ORS 144.785. "(3) In setting the initial parole release date for a prisoner pursuant to subsection (1) of this section, the board shall consider the presentence 39 investigation report specified in [former] ORS 144.790 or, if no such report has been prepared, a report of similar content prepared by the Department of Corrections. "(4) Notwithstanding subsection (1) of this section, in the case of a prisoner whose offense included particularly violent or otherwise dangerous criminal conduct or whose offense was preceded by two or more convictions for a Class A or Class B felony or whose record includes a psychiatric or psychological diagnosis of severe emotional disturbance such as to constitute a danger to the health or safety of the community, the board may choose not to set a parole date. "(5) After the expiration of six months after the admission of the prisoner to any Department of Corrections institution, the board may defer setting the initial parole release date for the prisoner for a period not to exceed 90 additional days pending receipt of psychiatric or psychological reports, criminal records or other information essential to formulating the release decision. "(6) When the board has set the initial parole release date for a prisoner, it shall inform the sentencing court of the date. "(7) The State Board of Parole and Post-Prison Supervision must attempt to notify the victim, if the victim requests to be notified and furnishes the board a current address, and the district attorney of the committing county at least 30 days before all hearings by sending written notice to the current addresses of both. The victim, personally or by counsel, and the district attorney from the committing jurisdiction shall have the right to appear at any hearing or, in their discretion, to submit a written statement adequately and reasonably expressing any views concerning the crime and the person responsible. The victim and the district attorney shall be given access to the information that the board or division will rely upon and shall be given adequate time to rebut the information. Both the victim and the district attorney may present information or evidence at any hearing, subject to such reasonable rules as may be imposed by the officers conducting the hearing. For the purpose of this subsection, 'victim' includes the actual victim, a representative selected by the victim, the victim's next of kin." 40 addresses aggravated murderers is the disputed provision in ORS 144.120(1)(a). An 1 interpretation of ORS 144.120(1)(a) (1991) that entirely exempts aggravated murders 2 from the hearing requirement would directly conflict with the legislative note. The only 3 way to give effect to both provisions is to read ORS 144.120(1)(a) as Sopher suggests: 4 the exception for those convicted of aggravated murder applies only to the timing of the 5 parole hearing; in the case of aggravated murderers, it need not be conducted within one 6 year of the prisoner's admission to prison. The exception does not mean that aggravated 7 murderers are not entitled to a parole hearing at all. That interpretation is consistent with 8 the directive in ORS 161.620, which, as this court stated in Engweiler V, requires that 9 juvenile aggravated murderers "must be entitled to the possibility of parole." 343 Or at 10 545. 11 Likewise, ORS 163.105 also provides relevant context. As we explained 12 above, that statute provides that adult aggravated murderers who have been sentenced to 13 life in prison with a 30-year mandatory minimum term of incarceration may have their 14 sentences converted after 20 years to life in prison with the possibility of parole if they 15 demonstrate to the board that they are capable of rehabilitation. And, as this court 16 recently held in Janowski/Fleming, prisoners whose sentences are so converted are then 17 immediately entitled to parole consideration. 349 Or at 456. If we were to read the 1991 18 amendments to wholly eliminate aggravated murder from the provisions of ORS 144.120, 19 41 then there is no statutory authority for the board to set an initial release date for 1 aggravated murderers entitled to parole consideration under ORS 163.105. That is so, 2 because ORS 163.105 does not authorize the board to take any action relating to a parole 3 release date; the board's sole directive in that statute is to "convert the terms of the 4 prisoner's confinement to life imprisonment with the possibility of parole or work 5 release." ORS 163.105(3). It is highly doubtful that the legislature intended to leave the 6 board without statutory authority to conduct parole hearings for aggravated murderers 7 whose mandatory minimum sentences have been converted to indeterminate sentences 8 and who become eligible for parole pursuant to ORS 163.105. 9 Finally, we find further contextual support for our interpretation of ORS 10 144.120(1)(a) (1991) in that there is no practical reason to have a parole hearing after one 11 year for most aggravated murderers, who are required, under ORS 163.105, to serve at 12 least 20 years in prison before becoming eligible for parole. Any requirement to conduct 13 a hearing and set an initial release date after only one year would be premature. 14 Legislative history suggests that the legislature contemplated that practical 15 concern when it adopted the 1991 amendment. That amendment was enacted from 16 House Bill 2603. When the House Subcommittee on Criminal Law and Corrections met 17 to consider that bill, Representative Rod Johnson asked the then-Chairman of the Board 18 of Parole, Vern Faatz, the purpose of the amendment. Faatz replied: 19 "There are three categories for aggravated murder: aggravated murder with 20 the death penalty (the Board has no function with that); aggravated murder 21 without parole (the Board has no function with that); and then aggravated 22 murder with parole. The Board has no real up front prison term setting 23 responsibility. We have, at the end of 20 years, a requirement of a review 24 42 and consideration of parole, if it's determined the person can be 1 rehabilitated at a future date[.]" 2 Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law and 3 Corrections, HB 2603, Mar 5, 1991, Tape 40, Side A (statement of Vern Faatz). That 4 statement suggests that the legislature viewed its purpose in amending ORS 5 144.120(1)(a) as an acknowledgement of the fact that there was no need to conduct a 6 parole hearing for aggravated murderers within one year of their admission to prison 7 when they would not be eligible for parole consideration for at least 20 years.21 8 Considering all of the foregoing together, we conclude that the legislature 9 intended that ORS 144.120(1)(a) (1991) apply to juvenile aggravated murderers and 10 required the board to conduct parole hearings for juvenile aggravated murderers. That is, 11 although it is possible to read the phrase as excluding aggravated murderers from the 12 parole hearing process set out in ORS 144.120, we are persuaded by context and 13 legislative history that the disputed phrase -- "with the exception of those sentenced for 14 aggravated murder" -- merely removes "those sentenced for aggravated murder" from the 15 requirement that a parole hearing be held within one year of the prisoners' admission to 16 prison, and that the legislature did not intend to eliminate the board's authority to conduct 17 a parole hearing for them altogether. 18 21 It is notable that juvenile aggravated murderers were not mentioned in the hearing, and the legislature apparently did not consider the possibility that ORS 163.105 did not apply to juveniles or that, under ORS 161.620, juvenile aggravated murderers were eligible for parole consideration immediately upon admission to prison. 43 To summarize, we find nothing in the statutes that the board has cited as 1 authority for the JAM rules that can be read to authorize the board to require juvenile 2 aggravated murderers to undergo an intermediate hearing process before they become 3 eligible for parole consideration. ORS 144.120 (1989) and ORS 144.120 (1991) required 4 parole hearings for all prisoners who are eligible for parole consideration. To the extent 5 that JAM rules require juvenile aggravated murderers to undergo an intermediate process 6 before they become eligible for parole consideration, they exceed the board's rulemaking 7 authority and are invalid, because they conflict with the statutes requiring the board to 8 conduct a parole hearing and set an initial release date for them, unless it declines to do 9 so under ORS 144.120(4). The Court of Appeals erred in concluding otherwise. 10 We turn now to the mandamus cases. A writ of mandamus may be issued 11 "to any inferior court, corporation, board, officer or person, to compel the performance of 12 an act which the law specifically enjoins, as a duty resulting from an office, trust, or 13 station * * *." ORS 34.110. As this court stated in State ex rel Dewberry v. Kulongoski, 14 346 Or 260, 274, 210 P3d 884 (2009), "[a] mandamus action is a special proceeding used 15 to compel a government official to perform a legal duty." The legal right to compel the 16 performance of the legal duty "must be plain and complete." Florey v. Coleman, 114 Or 17 1, 2, 234 P 286 (1925). That is, "no petitioner is entitled to the remedy of mandamus 18 unless he has a clear legal right to the performance of the particular duty sought to be 19 enforced and unless there is a plain legal duty on the part of the defendant to perform the 20 act." United States of America v. Cohn, 201 Or 680, 684, 272 P2d 982 (1954). 21 The question remaining to be answered in these mandamus cases is whether 22 44 ORS 144.120(1)(a) (1989) or ORS 144.120(1)(a) (1991) imposed on the board a legal 1 duty to conduct a parole hearing and set a parole release date for either Engweiler, or 2 Sopher, or both of them. 3 Engweiler committed his crime in 1989, although he was resentenced in 4 1994. Engweiler always has contended that the 1989 version of ORS 144.120(1)(a) 5 applied to his case. Below, the board contended that, on the contrary, the version in 6 effect at Engweiler's resentencing -- the 1991 version -- applied to Engweiler. In this 7 court, however, the board has abandoned that argument, confining itself to arguing that 8 ORS 144.110 and ORS 163.105, which apply "notwithstanding the provisions of ORS 9 144.120," mandate a different procedure for aggravated murderers. As we have 10 explained above, ORS 163.105 and ORS 144.110 are inapplicable to prisoners who are 11 not serving mandatory minimum sentences. That leaves ORS 144.120(1)(a) (1989). To 12 repeat, that statute provided, in part, 13 "For those prisoners sentenced to a term of imprisonment for life * * *, the 14 board shall conduct the parole hearing, and shall set the initial release date, 15 within one year following admission of the prisoner to the institution." 16 By its plain terms, ORS 144.120(1)(a) (1989) imposed a clear statutory 17 duty on the board to conduct a parole hearing within one year of Engweiler's 18 incarceration. The board did not do so. The board must now conduct a parole hearing 19 for Engweiler under ORS 144.120. 20 Engweiler also argues that the board must set a release date for him at that 21 hearing. However, ORS 144.120 did not impose a similar legal duty on the board to set a 22 release date, notwithstanding the apparent directive in ORS 144.120(1)(a) to do so -- the 23 45 board "shall set the release date." The board had no "plain" legal duty to set a release 1 date, because ORS 144.120(4) provided: 2 "Notwithstanding subsection (1) of this section, in the case of a prisoner 3 whose offense included particularly violent or otherwise dangerous 4 criminal conduct or whose offense was proceeded by two or more 5 convictions for a Class A or Class B felony or whose record includes a 6 diagnosis of severe emotional disturbance such as to constitute a danger to 7 the health or safety of the community, the board may choose not to set a 8 parole date." 9 Given the existence of subsection (4), we cannot say that Engweiler has a "plain and 10 complete" legal right to compel the board to set a release date for him. We can say, 11 however, that the board has a legal duty under ORS 144.120 either to set a parole release 12 date for Engweiler or to explain why it has chosen not to do so. The trial court was 13 correct to issue a peremptory writ of mandamus, and the Court of Appeals erred in 14 reversing and remanding with instructions to vacate it. 15 However, we reach a different conclusion with regard to Sopher. Sopher is 16 entitled to a parole hearing under ORS 144.120(1)(a) (1991). That statute provides: 17 "For those prisoners sentenced to a term of imprisonment for life or for 15 18 years or more, with the exception of those sentenced for aggravated murder, 19 the board shall conduct the parole hearing, and shall set the release date, 20 within one year following admission of the prisoner to the institution." 21 As we have explained, the foregoing means that prisoners sentenced for aggravated 22 murder are entitled to a parole hearing at which the board must either set a release date or 23 explain why it has chosen not to do so. The question in Sopher's case is when does that 24 legal duty on the board's part arise? In other words, does the board presently have a clear 25 legal duty to conduct a parole hearing in Sopher's case, such that the extraordinary 26 46 remedy of mandamus is warranted? 1 As we have explained, although Sopher was eligible for parole 2 consideration from the time he commenced serving his sentence, the board did not have 3 an obligation under ORS 144.120(1)(a) (1991) to conduct a parole hearing within one 4 year after Sopher's admission to prison, as it did for Engweiler. 5 Because no statute or rule directs the board to conduct a parole hearing for 6 Sopher at any particular time, the timing of the hearing is within the board's discretion. 7 Accordingly, the trial court and the Court of Appeals were correct in declining to issue a 8 peremptory writ of mandamus.22 9 In summary, we hold that the board exceeded its statutory authority when it 10 promulgated the JAM rules, requiring juvenile aggravated murderers to undergo the 11 intermediate review process described in ORS 163.105(2) to (4) before the board makes 12 parole release decisions respecting them. The Court of Appeals erred in holding 13 otherwise. Each inmate is serving an indeterminate sentence of life imprisonment with 14 the possibility of parole. The legislature provided the board with authority in ORS 15 144.120(1) to determine initial release on parole for inmates serving indeterminate 16 22 In light of our decision, it is, however, appropriate to ask: Where does that leave inmate Sopher? Given that Sopher has been eligible for parole consideration from the time he began serving his sentence, his situation is more like Engweiler's than like the adult aggravated murderers who must wait at least 20 years before becoming eligible for parole consideration. Because almost 20 years already has elapsed since Sopher began serving the sentence for his crime, the board should consider conducting a parole hearing consistent with ORS 144.120(1)(a) (1991), and either set a release date for Sopher or explain why it has chosen not to do so. 47 sentences. We also conclude that ORS 144.120(1) (1989) imposed on the board a legal 1 duty to conduct a parole hearing immediately for Engweiler and to set an initial release 2 date for him or explain why it chooses not to do so. As to Sopher, we hold only that ORS 3 144.201(1) (1991) entitles him to a hearing at some point to set an initial release date. 4 However, as we have explained, the board has authority under the statute to determine 5 when to hold that hearing. We conclude, therefore, that the Court of Appeals erred in 6 reversing the trial court's issuance of the writ of mandamus in Engweiler's mandamus 7 action; however, we affirm the Court of Appeals decision affirming the trial court's 8 dismissal of Sopher's mandamus action. 9 The decision of the Court of Appeals in Sopher v. Board of Parole, 233 Or 10 App 178, 225 P3d 836 (2010) is reversed. The decision of the Court of Appeals in State 11 ex rel Engweiler v. Powers, 232 Or App 214, 221 P3d 818 (2009) is reversed and the trial 12 court's issuance of the writ is affirmed. The decision of the Court of Appeals in State ex 13 rel Sopher v. Washington, 233 Or App 228, 225 P3d 142 (2010) is affirmed in part and 14 vacated in part. 15 1 LINDER, J., dissenting. 1 The issue in this case is a narrow one. It is not whether the State Board of 2 Parole and Post-Prison Supervision has general authority to adopt rules to determine 3 whether and when to parole juvenile aggravated murderers. Against an earlier challenge 4 by one of these petitioners, we have already determined that the board has authority to do 5 so. Engweiler v. Board of Parole, 343 Or 536, 548, 175 P3d 408 (2007). We also 6 determined that the board appropriately exercised that authority by promulgating special 7 rules for juvenile aggravated murderers, because the rules that the board promulgated for 8 adult aggravated murderers did not apply. Id. The challenge in these consolidated cases 9 is directed to only one aspect of the procedures that the board has adopted. Specifically, 10 that narrow issue is whether the board was legally obligated, shortly after these juvenile 11 aggravated murderers were sentenced to life imprisonment, to set an actual parole release 12 date for them, or whether the board has authority to choose instead to first determine if 13 the inmate is susceptible to rehabilitation in the foreseeable future, and set a binding 14 release date only if the board decides that the answer is yes. 15 To resolve that issue, we should first look to the board's powers and 16 responsibilities, and in particular the extent to which the legislature has delegated to the 17 board the responsibility to decide the policies and procedures for paroling juvenile 18 aggravated murderers. Like other executive branch agencies, the Board of Parole is a 19 creation of the legislature. The board has no general jurisdiction or inherent authority to 20 exercise any particular power of any kind. See Ochoco Const. v. DLCD, 295 Or 422, 21 426, 667 P2d 499 (1983) (agencies have no inherent power, but only power and authority 22 2 conferred on them by organic legislation); see generally Sunshine Dairy v. Peterson, 183 1 Or 305, 326-27, 193 P2d 543 (1948) (in construing statutes, agency power to act must be 2 expressly conferred by legislature). Instead, the board derives its authority from the 3 enabling legislation that mandates the board's functions and grants the board the powers 4 needed to carry out those functions. See 1000 Friends of Oregon v. LCDC, 301 Or 622, 5 627, 724 P2d 805 (1986) (unless constitutional provision establishes agency's function 6 and authority, executive branch agency derives authority principally from the enabling 7 legislation that mandates particular agency's function and grants it power). Thus, like 8 other executive agencies, the board's powers and responsibilities are limited to those that 9 the legislature has expressly authorized. The board can exercise implied authority only to 10 the extent that such authority is necessary to effectuate the board's expressly granted 11 powers. See Ochoco Const., 295 Or at 433-39 (court would not imply agency authority 12 except to effectuate expressly granted power, regardless of policy arguments in favor of 13 such implication); Cabell v. City of Cottage Grove, 170 Or 256, 272, 130 P2d 1013 14 (1943) (agency authority may be implied as "reasonably and necessarily incident to those 15 expressly granted"); Lee, Inc. v. Pac. Tel. & Tel. Co., 154 Or 272, 279, 59 P2d 683 16 (1936) (same principle applies to executive branch officials).1 17 1 This court has applied essentially the same general principle -- that an agency may exercise only expressly granted authority and any powers necessarily incident to that power -- to the board. See Severy v. Board of Parole, 318 Or 172, 176 n 7, 864 P2d 368 (1993) (where relevant statutes did not confer authority on board to take particular action, board could not confer such authority on itself through rulemaking). 3 Those principles are fundamental to resolving the issue before us. As we 1 have previously held, the power to parole an inmate does not inhere in the courts, the 2 governor, or any executive branch agency. See generally Anderson v. Alexander, 191 Or 3 409, 420-28, 229 P2d 633 (1951) (discussing parole power generally; citing authorities 4 with approval). Instead, it is for the legislature to decide whether any particular group or 5 class of inmates is eligible for parole before the expiration of their court-imposed 6 sentences and, if so, which branch of government will be responsible for making their 7 parole decisions and on what terms. Id. Any examination of the board's authority in this 8 case, consequently, should begin with the enabling legislation that confers authority on 9 the board to parole juvenile aggravated murderers. 10 Identifying that authority is not, however, a straightforward exercise. As I 11 will outline, only one statute serves as the potential source for the board's power to parole 12 any aggravated murderer, adult or juvenile. That statute is ORS 144.110(2)(b), which 13 provides that the board may not parole any person convicted of aggravated murder, 14 except pursuant to ORS 163.105. As the majority concludes, not all of the procedural 15 requirements of ORS 163.105 fit the circumstances of juveniles convicted of aggravated 16 murder. That conclusion, however, means only one thing: the board is required by that 17 statutory scheme to apply the procedural requirements of the statute to the degree 18 possible. If none apply, then the board has the authority to adopt appropriate procedures, 19 and the legislature has not confined the board's authority to do so. That conclusion does 20 not mean, as the majority concludes, that ORS 144.110(2)(b) and the procedural 21 requirements of ORS 163.105 are inapplicable to juvenile aggravated murderers. Any 22 4 such conclusion would require us to hold, as I will explain, that the board lacks authority 1 to parole juvenile aggravated murderers at all, because no other statute gives the board 2 such authority. 3 To provide some context for that analysis, it is helpful to briefly examine 4 the board's parole authority more generally, from past to present.2 The board's power to 5 grant parole, and to adopt the policies and procedures for doing so, is of relatively recent 6 vintage. That power did not reside in the board until approximately 1939. Before then, 7 although a state parole board existed, the power to parole persons committed to the 8 custody of the state prison system resided only in the governor and in the court that had 9 sentenced an inmate. See generally Anderson, 191 Or at 420-21 (describing former 10 scheme).3 The board's role in granting parole was investigatory and advisory -- it 11 provided information pertinent to the decision, and it could initiate a parole decision by 12 recommending that the governor parole an inmate. Id.; see also Fehl v. Martin, 155 Or 13 455, 455-56, 64 P2d 631 (1937) (quoting then-effective statutes providing for governor's 14 2 Throughout much of its history, the board was denominated the State Board of Parole and Probation, rather than the State Board of Parole and Post-Prison Supervision. See, e.g., ORS 144.010 (1959) (creating board of five members). References to the board in this opinion include the board as it has been variously denominated over the years. 3 E.g., OCLA 26-1230 (providing that all courts "shall have the power * * * to parole persons convicted" of crimes); OCLA 26-2301 (creating parole board); OCLA 26-2304 (empowering board to supervise persons placed on parole, to make investigations, and to prepare a case history record to determine if they should be paroled). 5 power to parole inmates on governor's motion, or on recommendation of parole board). 1 The board, however, had no parole power of its own. 2 The legislature dramatically changed that structure in 1939 when it created 3 a statewide parole and probation system. See generally Or Laws 1939, ch 266 (creating 4 state parole and probation system). With that change, the legislature vested authority in 5 the parole board to make parole release decisions and simultaneously divested sentencing 6 courts and the governor of that parole power. See generally Anderson, 191 Or at 420-21 7 (describing the legislative changes). In doing so, the legislature gave the board broad 8 general authority both to make parole release decisions and to promulgate rules 9 governing those decisions.4 Eventually, the board's general parole power was codified in 10 ORS 144.050. For 30 years, that statute changed little, except to alter the board's parole 11 authority over inmates confined in county jails. Compare, e.g., ORS 144.050 (1971) 12 (board authorized to parole inmates confined in any county jail for six months or more) 13 with ORS 144.050 (1987) (no board authority to parole county jail inmates). As to 14 inmates committed to state penal institutions, the board's authority remained constant 15 during that time: Subject to other applicable laws, the board had the power to parole 16 "any" inmate committed to the custody of the Department of Corrections and "to 17 4 Although the board's authority to determine parole policy and procedures was all but plenary for those inmates eligible for parole, many inmates were categorically ineligible for parole on any terms. They included habitual offenders and inmates serving a life sentence. See 21 Op Atty Gen 90, 92-93 (1942) (citing and discussing exclusions from board's parole authority). 6 establish rules applicable to parole." ORS 144.050 (1987). 1 In 1989, however, the board's authority again underwent dramatic change. 2 That year, the legislature adopted the so-called "sentencing guidelines" system, which 3 resulted in determinate sentences for most offenders, with no eligibility for parole. See 4 generally State ex rel Engweiler v. Cook, 340 Or 373, 380-82, 133 P3d 904 (2006) 5 (discussing former parole matrix system and current sentencing guidelines scheme). In 6 accord with that change, the legislature amended ORS 144.050 to limit the board's parole 7 release authority to persons who had committed a crime before November 1, 1989: 8 "Subject to applicable laws, the State Board of Parole and Post- 9 Prison Supervision may authorize any inmate, who is committed to the 10 legal and physical custody of the Department of Corrections for an offense 11 committed prior to November 1, 1989, to go upon parole subject to being 12 arrested and detained under written order of the board or as provided in 13 ORS 144.350. The state board may establish rules applicable to parole." 14 ORS 144.050 (1989) (emphasis added). Beginning with that amendment, and continuing 15 to today, the board has no general power to parole any inmate whose crime of conviction 16 was committed on or after November 1, 1989. For inmates that the board may parole, 17 however, the board retains broad rulemaking authority to establish policies and 18 procedures for its parole release decisions. 19 If there were no other source of board authority to release any group or 20 class of inmates on parole, this case would end with that statute. The conclusion would 21 have to be that, assuming that the legislature intended juvenile aggravated murderers to 22 be eligible for parole, and thus to not necessarily serve their entire life sentence, the 23 legislature had not yet provided for any entity to exercise parole release authority as to 24 7 that class of offenders. 1 But one other relevant statute does exist: ORS 144.110(2)(b). It provides, 2 as it has since 1977, that the board "shall not release a prisoner on parole who has been 3 convicted of murder defined as aggravated murder * * * except as provided in ORS 4 163.105." When the legislature enacted that statute, it was a restriction on the broad 5 parole authority granted to the board under ORS 144.050. Now, with the retraction of 6 parole release authority for any crime committed after November 1, 1989, ORS 7 144.110(2)(b) stands as the only statute that authorizes the board -- albeit in indirect 8 terms -- to parole anyone, adult or juvenile, convicted of aggravated murder, regardless of 9 the date of the offense. In that regard, ORS 144.110(2)(b) is both prohibition and 10 authorization. Expressly, it declares that the board "shall not release" an inmate 11 convicted of aggravated murder "except as provided in ORS 163.105." Under the terms 12 of that statute, then, a person convicted of aggravated murder can be released on parole 13 pursuant to ORS 163.105 or not at all.5 14 5 The majority expresses its disagreement with this analysis in a footnote. See ___ Or ___ at ___ n 14 (slip op at 26-27 n 14). As part of its response, the majority asserts that ORS 144.110(2)(b) and ORS 163.105, in combination, are not a grant of authority to parole aggravated murders, but are instead a restriction on that authority. I agree, as I acknowledge above, that those statutes are not the most satisfying source of authority to parole aggravated murderers, because of the indirect manner in which that grant of authority is expressed. But if ORS 144.110(2)(b) and ORS 163.105 are not such a grant, then there is none. The only statute that the majority points to as filling the void is ORS 144.050, which by its terms unambiguously grants the board authority to parole only those inmates whose crimes were committed before November 1, 1989. The majority reasons that the date limitation does not apply to aggravated murderers, because of a 1989 legislative "note" to ORS 144.110, which declared that certain statutes continue 8 The majority goes through the terms of ORS 163.105 at some length, 1 analyzing, correctly, that many of its terms do not, and cannot, apply to juveniles, 2 because juveniles are not subject to mandatory minimum sentences under ORS 161.620.6 3 The majority's observations about the procedural aspects of ORS 163.105 that do not fit 4 the circumstances of juvenile aggravated murderers are not wrong. But the majority's 5 conclusion that ORS 144.110(2)(b) and ORS 163.105 therefore have no application to 6 juvenile aggravated murderers proves too much. If those statutes do not apply, then the 7 board lacks the necessary legislative grant of authority to make parole release decisions 8 for that class of offender. There simply is no statute conferring authority on the board to 9 release juvenile aggravated murderers on any other terms, and the board is not an entity 10 that has inherent power of any kind. 11 I do not, however, agree that the misfit between the terms of ORS 163.105 12 and the circumstances of juvenile aggravated murderers renders that statute wholly 13 without force or effect as to that class of offenders. Instead, on that point, I agree with 14 to apply to aggravated murderers. The cross-referenced statutes (which are all procedural in nature) do not include ORS 144.050. Thus, the majority's strained conclusion that the note somehow "effectively operates" to create "an exception to the date limitation in ORS 144.050" (___ Or at ___ n 14 (slip op at 27 n 14)) contradicts not only the express terms of ORS 144.050, but also those of the very provision on which the majority relies. 6 Worth noting is that the legislature that enacted ORS 144.110(2)(b) would have intended it to apply equally to adults and juveniles convicted of aggravated murder. ORS 161.620, which precludes imposition of a life sentence without possibility of parole or mandatory minimum sentence on a juvenile offender tried as an adult, was not enacted until 1985. 9 the Court of Appeals: 1 "We agree with relator that the fit between all the relevant statutes is 2 not a comfortable one. See Engweiler IV, 343 Or [536,] 543, 543 n 7, [175 3 P3d 408 (2007)] (noting that, 'at least at first blush,' the 1989 versions of 4 ORS 144.110(2)(b), ORS 163.105(1), and ORS 161.620 were 'potentially 5 inconsistent'). Nevertheless, we conclude that he too quickly seizes on 6 apparent tensions between the statutes in reaching the conclusion that they 7 irreconcilably conflict, ignoring the obligation of the courts to search for a 8 construction that gives effect to all relevant provisions. See ORS 174.010 9 ('where there are several provisions or particulars such construction is, if 10 possible, to be adopted as will give effect to all'); Liles v. Damon Corp., 11 345 Or 420, 424, 198 P.3d 926 (2008) (noting obligation of the courts 'to 12 give meaning to all parts of those statutes' in issue). Such a harmonizing 13 construction is possible; the key, in our view, is discerning the difference 14 between the authority of a court to impose a sentence and the authority of 15 the board to implement it. 16 "As we have noted, ORS 161.620 (1989) precluded the 'imposition' 17 on juvenile aggravated murderers of a 30-year 'mandatory minimum 18 sentence,' that is, a 30-year term of confinement without possibility of 19 parole as provided in ORS 163.105(1)(c). Ordinarily, the terms 'imposition' 20 and 'mandatory minimum sentence' refer to those aspects of a criminal 21 offender's sanction that are effectuated by a sentencing court, as opposed to 22 those aspects of the sanction -- such as parole release -- that are 23 implemented by an administrative agency such as the board. See Engweiler 24 IV, 343 Or at 552-53 (explaining that the phrase 'mandatory minimum 25 sentence' in ORS 161.620 (1989) 'mean[s] a minimum period of 26 incarceration that a trial court, by statute, is required to impose as part of an 27 offender's sentence' (citing State v. Jones, 315 Or 225, 844 P2d 188 28 (1992))); see also Gaynor v. Board of Parole, 165 Or App 609, 614-15, 996 29 P2d 1020 (2000) (distinguishing between authority of sentencing court to 30 impose sentence and authority of Board of Parole and Post-Prison 31 Supervision under ORS chapter 144 to implement sentence). 32 "ORS 163.105 (1989) itself expressly recognizes that distinction by 33 prohibiting the board and DOC from paroling or releasing (for example, on 34 work release or other forms of temporary leave) an offender sentenced by a 35 trial court to life without possibility of parole, ORS 163.105(1)(b), and by 36 conferring on the board the authority to carry out procedures applicable to 37 persons sentenced to life with the possibility of parole. Indeed, in 38 Engweiler IV, in answering a certified question from the federal district 39 court -- whether the 1989 versions of ORS 144.110(2)(b), ORS 163.105(1), 40 10 and ORS 161.620 'combined to create a situation in which certain juveniles 1 * * * convicted of aggravated murder were not entitled to the possibility of 2 parole,' 343 Or at 543 (footnote omitted) -- the Supreme Court limited its 3 analysis entirely to the effect of ORS 161.620 (1989) on subsection (1) of 4 ORS 163.105 (1989) and did not so much as mention any other subsections 5 of the latter statute. 6 "Thus, when ORS 161.620 (1989) stated that 'the sentence imposed' 7 upon a juvenile convicted of aggravated murder may not include any 8 mandatory minimum sentence, that directive precluded a sentencing court 9 from imposing an aspect of the sentence set out in subsection (1)(c) of ORS 10 163.105 (1989). It said nothing, however, about the authority of the board 11 to implement the remaining portions of the statute concerning release 12 decisions, as set out in ORS 163.105(2) to (4) (1989). Cf. State v. Walker, 13 192 Or App 535, 547, 86 P3d 690, rev den, 337 Or 327 (2004) (where 14 numerous statutes demonstrated that the legislature knew how to refer to a 15 particular administrative agency, the fact that it did not do so in the statute 16 at issue made it unlikely that it intended the latter statute to encompass that 17 agency). In other words, merely because a court may not impose a 18 particular sentence mentioned in ORS 163.105(1) does not necessarily 19 require the conclusion that the board does not remain subject to the 20 requirements of the balance of the statute with respect to juvenile 21 aggravated murderers." 22 State ex rel Engweiler v. Powers, 232 Or App 214, 225-27, 221 P3d 818 (2009) (footnote 23 omitted) (emphasis in original). 24 In short, the inconsistencies that exist between the procedures required by 25 ORS 163.105 and the circumstances of juvenile aggravated murderers can be reconciled, 26 and should be. Any other conclusion leaves the parole board powerless to exercise parole 27 release authority as to that class of offender, because the legislature has not conferred that 28 authority on the board, and because ORS 144.050 and ORS 144.110(2)(b) expressly 29 would prohibit the exercise of release authority on any other terms. 30 For that reason, the board not only was authorized to promulgate the rules 31 that petitioner challenges, it arguably was obligated to do so. Under those rules, the 32 11 board holds a prison term hearing at which it determines a future date (no fewer than 20 1 years of incarceration) to review the juvenile offender's suitability for eventual parole; the 2 board does not, at that initial hearing, set a binding parole release date.7 OAR 255-032- 3 0005(4) (1999) (provision for "prison term hearing"); OAR 255-032-0011(2) (1999) 4 (board may set review date rather than projected release date at prison term hearing, or 5 may deny parole). At the future review, the board considers the inmate's institutional 6 conduct and rehabilitation efforts, after which the board may establish a parole release 7 date or may set another review date, at which it will further review the inmate's conduct 8 and rehabilitation efforts. OAR 255-032-011 (6)-(7) (1999). Those rules, and the 9 procedures they require, are entirely consonant with those procedures of ORS 163.105 10 that have application to juvenile aggravated murderers serving life sentences. Even if the 11 board was not obligated to promulgate those rules to best effectuate the terms of ORS 12 163.105, at the least, the board was entitled to exercise its broad rule-making authority 13 under ORS 144.050 to adopt those policies. Nothing in the statutory scheme precludes 14 the board from exercising its rulemaking discretion in that way.8 15 7 When the board sets an actual release date, it is legally obligated to release the inmate on that date, subject to limited exceptions. See ORS 144.245 (so providing); Hamel v. Johnson, 330 Or 180, 187, 998 P2d 661 (2000) (inmate who does not have an unexpired minimum term must be released on the scheduled release date). 8 The majority never grapples with this fundamental point about the statutory scheme. Much of the majority's analysis is devoted to why ORS 144.110(2)(b) and ORS 163.105 do not apply to juvenile aggravated murderers. I disagree with the majority's analysis in that regard, for the reasons I have described. But the majority's analysis is flawed for a second reason -- it establishes only that the board is not obligated to follow 12 Because the board's only authority to parole any person convicted of 1 aggravated murder (including a juvenile) arises under ORS 144.110(2)(b), which 2 incorporates the procedural requirements of ORS 163.105, the board was not obligated to 3 set a release date for petitioners shortly after they began serving their life sentences. 4 Instead, either because those statutes require the board to do so, or because the board has 5 discretion to do so in the exercise of its broad parole rulemaking authority, the board was 6 authorized to adopt a procedure whereby it first sets a future date to review the inmate's 7 conduct and rehabilitation efforts, and based on that review, sets a parole release date 8 only after determining that the inmate is susceptible to rehabilitation. Consequently, in 9 resolving the rule challenge brought by petitioner Sopher, I would conclude that the rules 10 are valid. For the mandamus cases brought by relators Engweiler and Sopher, I would 11 affirm the decisions of the Court of Appeals vacating the peremptory writ issued by the 12 circuit court and remanding for dismissal of the relators' petitions. 13 For the above reasons, I dissent. 14 Kistler, J., joins in this dissent. 15 the procedural dictates of ORS 163.105 to the extent that they can be applied to juveniles. That conclusion does not mean that the board is unable to exercise its broad rulemaking authority to the same end. Said another way, ORS 163.105 creates a duty for the board to make parole decisions in a particular way, one that limits the board's otherwise broad authority to make rules for parole decisions. Removing that duty, and thus that limitation, means only that the board's authority is unconstrained by the legislative policies that are in place for adult aggravated murderers. It does not mean that the board lacks authority to adopt parallel policies for juvenile aggravated murders sentenced to life imprisonment. 13 1

9c8ae05c95c5d33a74d1b3fcafd98b625033ff57b3c06e467e14ce4880c3ec18

2011-09-01T00:00:00Z

0dbec5c2-837d-46fc-8746-7871d9520d60

Hamlin v. Hampton Lumber Mills, Inc.

S056700

oregon

Oregon Supreme Court

FILED: January 6, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON KEN HAMLIN, Petitioner on Review, v. HAMPTON LUMBER MILLS, INC., an Oregon corporation, dba Willamina Lumber Company, Respondent on Review. (CC 040302235; CA A130213; SC S056700) On review from the Court of Appeals.* Argued and submitted September 18, 2009. Craig A. Crispin, Crispin Employment Lawyers, Portland, argued the cause and filed the brief for petitioner on review. Brenda K. Baumgart, Barran Liebman LLP, Portland, argued the cause and filed the brief for respondent of review.  With her on the brief was Edwin A. Harnden. Phil Goldsmith, Portland, filed the briefs for amicus curiae Oregon Trial Lawyers Association. Before De Muniz, Chief Justice, Durham, Balmer, Kistler, Walters, and Linder, Justices, and Gillette, Senior Judge, Justice pro tempore.** WALTERS, J. The decision of the Court of Appeals is reversed.  The judgment of the circuit court is affirmed.  Gillette, J. pro tempore, filed a dissenting opinion in which Balmer, J., joined. *Appeal from the Multnomah County Circuit Court, Richard C. Baldwin, Judge. 222 Or App 230, 193 P3d 46 (2008), on recons, 227 Or App 165, 205 P3d 70 (2009).  **Landau, J., did not participate in the consideration or decision of this case. WALTERS, J. In this case, plaintiff was injured while working at defendant's mill.  When plaintiff was released to return to work, defendant refused to reinstate him as required by ORS 659 A. 043, falsely asserting that he was a "safety risk."  A jury awarded plaintiff lost wages of $6,000 and punitive damages of $175,000.  On appeal, the Court of Appeals held that the punitive damages award was "grossly excessive" under the Due Process Clause of the United States Constitution and reduced the award to a sum four times the amount of the compensatory damages.  Hamlin v. Hampton Lumber Mills, Inc., 222 Or App 230, 238, 193 P3d 46 (2008), on recons, 227 Or App 165, 205 P3d 70 (2009).  Having allowed plaintiff's petition for review, we now reverse the decision of the Court of Appeals and reinstate the punitive damages award. In accordance with the jury's verdict, we state the facts in the light most favorable to plaintiff.  See Jensen v. Medley, 336 Or 222, 226, 82 P3d 149 (2003) ("We state the facts in the light most favorable to plaintiff, because [plaintiff] was the prevailing party before the jury.").  Defendant operated a lumber mill and employed approximately 380 employees.  Defendant employed plaintiff as a temporary employee through Express Personnel Services (Express).  When plaintiff came to work at defendant's mill, defendant did not instruct plaintiff how to "lock out" its machinery to safely clear jams and avoid injury, nor did it issue plaintiff the locks necessary to do so.  Instead, plaintiff was instructed to watch the other employees and to do what they did.  On the night that plaintiff was injured, defendant directed plaintiff to stand at a specified location, which later was determined to be unsafe.  Plaintiff did as instructed, and when a board became wedged between a conveyor belt and a bin, plaintiff was unable to "lock out" the machinery and safely clear the jam.  One of defendant's employees told plaintiff to grab the board, and when he attempted to do so, the machinery caught his glove and mangled his thumb. Plaintiff was hospitalized and unable to work for four months.  During that time, defendant twice told plaintiff that his job was secure.  Defendant did not suggest to plaintiff or anyone else that plaintiff was a "safety risk" or that he had been at fault in causing his injury.  Defendant prepared a written report describing the incident in which plaintiff had been injured.  That report did not suggest that plaintiff was responsible for his own injury or that he constituted a "safety risk."  While he was unable to work, plaintiff filed a claim for workers' compensation benefits, which was granted, and a safety complaint with Oregon Occupational Safety and Health Administration (OSHA), which was dismissed.  When plaintiff's physicians released him to resume work, plaintiff contacted Express and sought reinstatement at defendant's mill.  Express contacted the Oregon Bureau of Labor and Industries (BOLI) to inquire whether a temporary employee in plaintiff's position had reinstatement rights.  Express learned that defendant generally was required to reinstate temporary employees, such as plaintiff, under ORS 659 A. 043,(1) and communicated that information to defendant.  Defendant deliberately decided not to reinstate plaintiff and falsely asserted that he was a "safety risk." Plaintiff then filed this action against defendant, asserting (among other claims)(2) a claim for failure to reinstate under ORS 659 A. 043 and a claim for retaliation for filing charges with OSHA under ORS 654.062(5).(3)  Plaintiff sought $10,968 in economic damages, $100,000 in noneconomic damages, and $969,000 in punitive damages.  A jury rendered a verdict for plaintiff on his failure to reinstate claim and awarded him lost wages of $6,000.(4)  The court rendered a verdict for plaintiff on his OSHA retaliation claim and awarded him lost wages of $10,000.(5) The court instructed the jury that, to award punitive damages, it must find by clear and convincing evidence that defendant's conduct amounted to "a particularly aggravated, deliberate disregard of the rights of others."  The court permitted the jury to consider various factors in determining the amount of punitive damages to award, including "the sum of money that would be required to discourage the defendant and others from engaging in such conduct in the future; and the income and assets of the defendant."  The jury awarded punitive damages of $175,000. Defendant filed a motion for judgment notwithstanding the verdict or for a new trial, contending that the trial court was required to reduce the punitive damages award to comport with the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  Specifically, defendant asserted that the punitive damages award in this case failed to meet the constitutionality "guideposts" prescribed by the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 US 559, 116 S Ct 1589, 134 L Ed 2d 809 (1996), and other cases.  Defendant argued (among other things) that the ratio between the compensatory and punitive damages was close to 30:1 and greatly in excess of the single-digit ratio demanded by due process.  In opposing defendant's motion, plaintiff argued that the Supreme Court expressly had declined to impose a strict ratio and that the sum awarded by the jury was appropriate to meet the state's interest in deterring and punishing illegal conduct.  The trial court agreed with plaintiff, concluded that the punitive damages award "was not unconstitutionally excessive," and entered judgment against defendant for the full amount of damages awarded by the jury.(6) Defendant appealed to the Court of Appeals, renewing its assertion that the punitive damages award in this case was so "grossly excessive" that it violated due process.  The Court of Appeals agreed.  It reasoned that, measured by the guideposts articulated in Gore and other United States Supreme Court cases and reviewed and refined by this court in Goddard v. Farmers Ins. Co., 344 Or 232, 179 P3d 645 (2008), the punitive damages verdict was unconstitutionally large.  Hamlin, 222 Or App at 238.  The Court of Appeals decided that defendant's actions were only moderately reprehensible and had produced only economic harm, id. at 239-41, that the nearly 30:1 ratio between punitive and compensatory damages was well outside the asserted 4:1 limit for such cases, id. at 241-44, and that the third guidepost, which examines comparable civil and criminal sanctions, was unhelpful either way.  Id. at 246-47.  The court therefore concluded that the constitutional limit on the punitive damages award was four times the amount of the compensatory damages award (i.e., four times $6,000 plus prejudgment interest).  Id. at 250. On review, plaintiff argues that the Court of Appeals erred in applying the ratio guidepost too strictly.  Plaintiff contends that when, as in this case, a compensatory damages award is small, a punitive damages award that is more than a single-digit multiplier of the compensatory damages award is constitutionally permissible.  Plaintiff also asserts that, because defendant's conduct violated a statute, and particularly a statute prohibiting discrimination against a worker, its conduct is more than moderately reprehensible. Before we consider the merits of plaintiff's arguments, we first review the decisions of the United States Supreme Court that discuss the limitations that the Due Process Clause of the Fourteenth Amendment imposes on awards of punitive damages.  The Court has held that that clause prohibits "grossly excessive" punitive damages awards.  State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 416, 123 S Ct 1513, 155 L Ed 2d 585 (2003); Gore, 517 US at 568.  "Grossly excessive" punitive damages awards are awards that serve no legitimate state purpose and constitute an arbitrary deprivation of property.  Campbell, 538 US at 417. The Supreme Court has instructed courts that, to arrive at a conclusion about whether a punitive damages award is "grossly excessive," they are to consider three "guideposts."  See Campbell, 538 US at 418 (summarizing guideposts); Gore, 517 US at 574-75 (noting guideposts).  The first guidepost is the degree to which defendant's conduct is reprehensible.  Campbell, 538 US at 418; Gore, 517 US at 575.  The second guidepost examines the disparity between the punitive and compensatory damages awards, usually in the form of a ratio.  See Campbell, 538 US at 424-25; Gore, 517 US at 580 (both so explaining).  The third guidepost compares the punitive damages award to legislatively prescribed civil and criminal penalties for comparable misconduct.  Campbell, 538 US at 428; Gore, 517 US at 583. The second guidepost is the only quantitative guidepost that the Supreme Court has announced.  The Court has suggested that, "in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process[,]" Campbell, 538 US at 425.  In this case, the Court of Appeals primarily relied on the ratio between punitive and compensatory damages in concluding that the award of punitive damages was "grossly excessive."  Hamlin, 222 Or App at 241.  Because plaintiff challenges that analysis, we begin with the second guidepost and its applicability in this case. Key to understanding the second guidepost is the Supreme Court's repeated refusal to set any "rigid benchmark" beyond which a punitive damages award becomes unconstitutional.  See, e.g., Campbell, 538 US at 424-25; Gore, 517 US at 582 (both to that effect).  The Court has explained that, "[i]n our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow[,]" and that due process permits punitive damages that are "reasonably necessary to vindicate the State's legitimate interests in punishment and deterrence."  Gore, 517 US at 568.  Therefore, the Court has concluded that "[o]nly when an award can fairly be categorized as 'grossly excessive' in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment."  Id. The Supreme Court also has recognized that a state may be unable to achieve its goals of deterrence and retribution if awards of punitive damages must, in all instances, be closely proportional to compensatory damages.  In one of the first cases to discuss constitutional limits on punitive damages, the Court used a hypothetical from a 1931 law review article to explain why significant punitive damages may be appropriate in some cases: "'For instance, a man wildly fires a gun into a crowd.  By sheer chance, no one is injured and the only damage is to a $10 pair of glasses.  A jury reasonably could find only $10 in compensatory damages, but thousands of dollars in punitive damages to teach a duty of care.  We would allow a jury to impose substantial punitive damages in order to discourage future bad acts.'  [Garnes v. Fleming Landfill, Inc., 186 W Va 656, 661, 413 SE2d 897, 902] (citing C. Morris, Punitive Damages in Tort Cases, 44 Harv L Rev 1173, 1181 (1931)) [(hereinafter Morris)]." TXO Production Corp v. Alliance Resources Corp, 509 US 443, 460, 113 S Ct 2711, 125 L Ed 2d 366 (1993).  In the law review article that the court cited, Professor Morris further described the admonitory function that tort damages -- both compensatory and punitive -- serve:  "When an act with a vicious tendency happens to result in a small injury the 'compensatory' damages are necessarily small.  If it must follow that the punitive damages must also be small, the total verdict might be lenient where severity is desirable.  On the other hand, if the 'compensatory' damages are large, the defendant is severely admonished without the addition of any punitive damages; but in such a case the ratio test counsels large punitive damages, and may result in over-severity entirely unnecessary for the proper working of the admonitory function [of tort law]." Morris, 44 Harv L Rev at 1182. To address that concern, the Supreme Court has suggested that reviewing courts may consider not only the compensatory damages awarded by the jury, but also the potential harm that could have resulted from the defendant's acts.  Campbell, 538 US at 418; Gore, 517 US at 581-82; TXO, 509 US at 460-61.  The Supreme Court also has stated that higher ratios than otherwise permitted may be justified "'in cases in which the injury is hard to detect' * * *, or when the value of injury and the corresponding compensatory award are small[.]"  Exxon Shipping Co. v. Baker, 554 US 471, 494, 128 S Ct 2605, 171 L Ed 2d 570 (2008) (emphasis added).(7) In this case, the Court of Appeals did not have the benefit of the Court's decision in Exxon and cited Gore, 517 US at 582, for the proposition that, to come within the exceptions identified in that case, not only must the compensatory damages be small, but a defendant's conduct also must be "particularly egregious."  Hamlin, 222 Or App at 244-45.  Although Gore identified the circumstance in which particularly egregious conduct results in small compensatory damages as one in which higher ratios may be permitted, the court did so in the context of listing examples of the kinds of cases in which flexibility in applying ratios was necessary.  In Gore, the court stated: "Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages.  A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine.  It is appropriate, therefore, to reiterate our rejection of a categorical approach." 517 US at 582 (emphasis added).  The Supreme Court's purpose was to caution against the categorical use of ratios and not, in our view, to set forth an exclusive list of exceptions to a ratio requirement.  See Williams v. Philip Morris Inc., 340 Or 35, 63, 127 P3d 1165 (2006), vac'd on other grounds, 549 US 346, 127 S Ct 1057, 166 L Ed 2d 940 (2007), on remand, 344 Or 45, 176 P3d 1255 (2008) (identifying an exception to the general rule of single-digit ratios not listed in Gore for cases of "extraordinarily reprehensible" behavior).(8) Lower federal and state courts have ruled accordingly.  For example, in Saunders v. Branch Banking and Trust Co. of VA, 526 F3d 142, 152-54 (4th Cir 2008), the Fourth Circuit affirmed a punitive damages award of $80,000 when the compensatory award was $1,000.  The court explained that other federal courts were in general agreement that, in that circumstance, limiting punitive damages to a single-digit ratio would fail to serve the purposes of punitive damages.  The court stated:  "[W]hen a jury only awards nominal damages or a small amount of compensatory damages, a punitive damages award may exceed the normal single digit ratio because a smaller amount 'would utterly fail to serve the traditional purposes underlying an award of punitive damages, which are to punish and deter.'  Kemp v. Am. Tel. & Tel. Co., 393 F3d 1354, 1364-65 (11th Cir 2004) (allowing punitive damages award of $250,000 accompanying compensatory damages of $115.05); see also Abner v. Kan. City S. R.R., 513 F3d 154, 165 (5th Cir 2008) (affirming punitive damages award of $125,000 accompanying nominal damages of $1); Mathias v. Accor Econ. Lodging, Inc., 347 F3d 672, 674-78 (7th Cir 2003) (affirming $186,000 punitive damages award accompanying compensatory damages of $5,000); Lee v. Edwards, 101 F3d 805, 811 (2d Cir 1996) (rejecting ratio analysis because 'the compensatory award here was nominal, [so] any appreciable exemplary award would produce a ratio that would appear excessive by this measure')." Id. at 154 (brackets and emphasis in original). Goff v. Elmo Greer & Sons Const. Co., Inc., 297 SW3d 175 (Tenn 2009), cert den, ___ US ___, 130 S Ct 1910 (2010), is also illustrative.  In that case, the defendant, a construction company working on a highway expansion project, intentionally buried tires and other waste under several feet of compacted rock on the plaintiff's property.  For that conduct, a jury awarded the plaintiff $3,305 in compensatory damages and $1 million in punitive damages.(9)  On review, the state supreme court first determined that defendant's conduct "d[id] not constitute an environmental hazard or threaten the health or safety of any individual" and that the defendant's actions did not reach the highest levels of reprehensibility; consequently, the ratio of 302:1 was excessive.  Id. at 195.  Nonetheless, the court rejected the defendant's argument that the federal constitution requires the punitive and compensatory damages ratio be in single digits, concluding that such a claim "reflects an overly restrictive view that does not comport with the Supreme Court's jurisprudence on the subject."  Id. at 194.  The court determined that a punitive damages award of $500,000 (a ratio of 151:1) was adequate to send a "strong message."  Id. at 196.  We agree that, when the compensatory damages award is small and does not already serve an admonitory function, the second guidepost -- the ratio between punitive and compensatory damages -- is of limited assistance in determining whether the amount of a jury's punitive damages award meets or exceeds state goals of deterrence and retribution.  If we rely too heavily on the ratio between punitive and compensatory damages in those circumstances, we risk interfering with legitimate state interests by striking down awards that are reasonably calculated to deter and punish illegal conduct and that are, therefore, constitutionally permitted. Before considering the degree to which the ratio between the punitive and compensatory damages is a reliable indicator of unconstitutionality in this case, we must identify the damages awarded and calculate the ratio between them.  We use the $175,000 punitive damages award as the numerator and the compensatory damages award of $6,000, plus prejudgment interest, as the denominator.  See Goddard, 344 Or at 269-70 (prejudgment interest is considered as part of compensatory damages).  For purposes of the ratio calculation in this opinion, we estimate the amount of prejudgment interest to be approximately $2,000(10) and calculate the ratio as approximately 22:1.  In deciding whether the compensatory damages award is small, we are mindful, just as the Supreme Court has been, that the process of identifying due process limits demands flexibility and a consideration of the facts and circumstances that each case presents.  Just as the Supreme Court has been unwilling to draw a rigid dividing line between constitutional and unconstitutional ratios, we are unwilling to draw a rigid line between "small" and "substantial" compensatory damages awards.     We do note, however, that we have characterized an award of compensatory damages of less than $25,000 as "relatively small" and "low."  Williams, 340 Or at 60.  Furthermore, a compendium of cases from other jurisdictions demonstrates that courts generally hold that, in instances in which compensatory awards are $12,000 or less, awards in excess of single-digit ratios are not "grossly excessive."  See Lauren R. Goldman and Nicholai G. Levin, State Farm at Three:  Lower Courts' Application of the Ratio Guidepost, 2 NYU J L & Bus 509, 514-15 (2005-06) (of 40 decisions in which the compensatory damages award was $25,000 or less, 24 upheld punitive damages awards with a double-digit or higher ratio, and 23 of those 24 involved compensatory damages awards of $12,000 or less).   In this case, $6,000 in lost wages is a relatively small recovery that we would not expect to serve an admonitory, as well as a compensatory, function.   Defendant does not argue, for example, that, due to its size or financial circumstances, the compensatory damages award here had a greater effect on it than we would anticipate that award having on a typical employer.  Evidence in the record indicates that, in the year in which it violated ORS 659 A. 043, defendant employed approximately 380 workers, that its net worth was approximately $10 million, and that its gross profit was approximately $2.8 million.  We conclude, therefore, that the fact that the ratio between punitive and compensatory damages is greater than a single digit does not, in itself, indicate that the punitive damages that the jury awarded were "grossly excessive."(11) We therefore turn to the other guideposts that the Supreme Court has identified for assistance.  The first of those -- the reprehensibility guidepost -- is "'[t]he most important indicium of the reasonableness of a punitive damages award[.]'"  Campbell, 538 US at 419 (quoting Gore, 517 US at 575).  The Court has instructed that we determine reprehensibility by considering whether    "the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. * * * The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect.  It should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant's culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence." Id. at 419 (citations omitted). In this case, the Court of Appeals concluded that two of the five reprehensibility subfactors identified in Campbell and Gore were present:  "plaintiff was financially vulnerable, and, to a degree, harm resulted from defendant's 'intentional malice, trickery, or deceit.'"  Hamlin, 222 Or App at 240.  The parties do not disagree, but plaintiff contends that this court should recognize an additional reprehensibility subfactor -- defendant's violation of ORS 659 A. 043. In Gore and Campbell, the Court instructed that we gauge the constitutionality of a punitive damages award by considering whether it is grossly excessive in relation to this state's interests.  Campbell, 538 US at 416-17; Gore, 517 US at 568.  In listing the reprehensibility subfactors that it did, the Court recognized that states, including this state, have a particular interest in deterring and punishing conduct that causes its citizens physical harm, evidences a disregard of their health or safety, or takes advantage of their vulnerability. By requiring employers to reinstate injured workers, the Oregon legislature has protected similar societal interests in workplace safety and the welfare of its citizens. By authorizing an award of punitive damages against employers that breach their obligations under ORS 659 A. 043, the Oregon legislature has indicated its intent to deter and punish that conduct.  By authorizing an award of noneconomic damages against employers that breach their obligations under ORS 659 A. 043,(12) the Oregon legislature also has recognized that the harm that offending employers inflict may be more than monetary and that a plaintiff who is not reinstated and who is, therefore, unemployed, is in a more vulnerable position than is a person who is employed when he or she suffers monetary loss.  A person who suffers a loss of employment is without the present ability to earn money to recover economic loss and to avoid further consequential loss. Although the Supreme Court did not specifically identify the interests protected by ORS 659 A. 043 as reprehensibility subfactors in Campbell and Gore, we think that the Oregon legislature's affirmative action to protect qualitatively similar state interests permits us to consider defendant's statutory violation in our reprehensibility analysis.  When we also recognize, as did the jury and the Court of Appeals, that defendant's conduct included "intentional malice, trickery, or deceit," we conclude that defendant's conduct was more than minimally reprehensible.   In reaching that conclusion, we do not mean to indicate that we consider defendant's conduct to approach that of the defendant in Williams, 340 Or at 39-43.  In that case, we considered the conduct of the defendant to be "extraordinarily reprehensible" because the defendant had "engaged in a prolonged pattern of egregious and deceitful conduct that pose[d] an extreme threat to the health and safety of a significant segment of the population of the state[.]"  Goddard, 344 Or at 258, 258 n 3 (describing conduct of defendant in Williams).  In this case, we conclude only that defendant's conduct was sufficiently reprehensible that, in the circumstances presented -- where the compensatory damages are low and the ratio between the compensatory and punitive damages is not a reliable indicator of the constitutionality of the punitive damages award -- defendant's conduct may justify an award of punitive damages in excess of a single-digit multiplier of the compensatory damages awarded.   We next consider the third guidepost that the Supreme Court has identified -- comparable civil or criminal sanctions.  The parties do not challenge the conclusion of the Court of Appeals that the only sanction that Oregon law provides for violation of ORS 659 A. 403 is a civil action against an offending employer and that, as a result, the third guidepost neither militates against, nor supports, a punitive damages award in excess of a single-digit multiplier of the compensatory damages award.  See Hamlin, 222 Or App at 247 (stating conclusion).  In that circumstance, the third guidepost does not play a significant role in our analysis.  Having decided that the punitive damages award in this case may exceed a single-digit multiplier of the compensatory damages award without violating due process, we still must decide whether the amount of punitive damages actually awarded -- $175,000 -- is, nevertheless, "grossly excessive."  In that regard, we note first that the jury's award is different in order of magnitude from the multimillion dollar, three-digit multiplier, punitive damages awards that the Supreme Court invalidated as "grossly excessive" in Gore ($2 million punitive damages award in 500:1 ratio to compensatory damages) and Campbell ($145 million punitive damages award in 145:1 ratio to compensatory damages).  The punitive damages award in this case is less than $200,000 and is a low double-digit (22:1) multiplier of the compensatory damages award.  We also note that the amount of the punitive damages award in this case is not "grossly excessive" when measured by awards that legislatures and courts have permitted in similar circumstances.  For instance, Title VII prohibits certain acts of discrimination in employment and authorizes the imposition of punitive damages on a showing that the defendant "engaged in a discriminatory practice" with "malice or with reckless indifference to the federally protected rights of an aggrieved individual."  42 USC § 1981a(b)(1).  Title VII places limits on the total amount of compensatory and punitive damages that may be awarded, ranging from a limit of $50,000 for employers with fewer than 100 employees to a limit of $300,000 for employers with 500 or more employees.  42 USC § 1981a(b)(3)(A)-(D).  Title VII permits punitive damages up to those statutory caps without regard to the ratio between compensatory and punitive damages.  For employers like defendant, with more than 200, but less than 500 employees, the applicable limit is $200,000.  42 USC § 1981a(b)(3)(C).  The award of punitive and compensatory damages in this case is less than that sum. In the following cases, appellate courts similarly have approved punitive damages in amounts and in ratios greater than or similar to those present in this case:  Rodriguez-Torres v. Caribbean Forms Mfg., 399 F3d 52, 56 (1st Cir 2005) (punitive damages award of $199,999; compensatory damages $1, for 199,999:1 ratio in Title VII discrimination claim); Romanski v. Detroit Entertainment, LLC, 428 F3d 629, 649 (6th Cir 2005), cert den, 549 US 946 (2006) (punitive damages of $600,000; economic damages of $279.05, for 2,150:1 ratio, for false arrest and confiscation of lunch voucher by casino security officer); Kemp v. American Tel & Tel Co., 393 F3d 1354, 1365 (11th Cir 2004) (punitive damages of $250,000; compensatory damages of $115.05, for 2,173:1 ratio, for defrauding customers); Mathias v. Accor Economy Lodging, 347 F3d 672, 674 (7th Cir 2003) (punitive damages of $186,000; compensatory damages of $5,000, 37:1 ratio, for bedbug-infested hotel room); Deters v. Equifax Credit Information Services, 202 F3d 1262, 1266 (10th Cir 2000) (punitive damages of $295,000; compensatory damages of $5,000, for 59:1 ratio, for sexual harassment claim); Goff v. Elmo Greer & Sons Const. Co., Inc., 297 SW3d 175, 196 (Tenn 2009), cert den, ___ US ___, 130 S Ct 1910 (2010) (punitive damages of  $500,000; compensatory damages of $3,305, for 151:1 ratio, in common-law nuisance action); State v. Carpenter, 171 P3d 41, 66 (Alaska 2007) (punitive damages of $150,000; economic damages of $5,042, for 30:1 ratio, in spoliation of evidence claim); Myers v. Workmen's Auto Ins. Co., 140 Idaho 495, 95 P3d 977, 982-83 (2004) (punitive damages of $300,000; compensatory damages of $735, for 408:1 ratio, in breach of contract case); Craig v. Holsey, 264 Ga App 344, 590 SE2d 742 (2003), cert den, 543 US 820 (2004) (punitive damages of $200,000; compensatory damages $8,801 for 22:1 ratio, for car accident caused by intoxicated driver).  See also Goldman and Levin, 2 NYU J L & Bus at 550-55 (in cases in which compensatory damages were less than $12,000, punitive damages in double digit or greater ratio awarded and judicially affirmed in 68% of cases; punitive damages greater than $175,000 awarded and judicially affirmed in 32% of cases).  In this case, the compensatory damages are small and the ratio between the punitive and compensatory damages -- 22:1 -- is in the low double digits.  That ratio is higher than would be constitutionally permissible if the compensatory damages were more substantial, but is not so high that it makes the award "grossly excessive."  The amount of the punitive damages award -- $175,000 -- also is not so high that we can say that it exceeds, rather than serves, this state's interests in deterring and punishing the violation of ORS 659 A. 043.(13)  We hold that the Court of Appeals erred in reversing the jury's punitive damages verdict, and we reinstate it. The decision of the Court of Appeals is reversed, and the judgment of the circuit court is affirmed. GILLETTE, J. pro tempore, dissenting. If the only issue in this case were whether a punitive damages award of $175,000 is "grossly excessive," given defendant's conduct and the jury's $6,000 compensatory damages award, I would have little trouble concluding that it is not.  However, the Supreme Court has instructed us not only that punitive damages awards that are "grossly excessive" are impermissible because they violate the Due Process Clause, see State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 416, 123 S Ct 1513, 155 L Ed 2d 585 (2003), but it also has provided "guideposts" that this court, and other lower courts, must use in reviewing punitive damages awards for compliance with the Due Process Clause.  Id. at 418.  My disagreement with the majority is based on its application of those guideposts -- or, rather, its failure to apply one of those guideposts because of what it views as an exception to the guidepost. Before turning to the majority's rationale for its conclusion that a 22:1 ratio of punitive to compensatory damages in this case is consistent with the Supreme Court's caselaw, I pause briefly to consider this court's obligation to follow the Court's guidance.  When the Supreme Court decides a case, its decisions almost invariably contain "explanatory language that is intended to provide guidance to lawyers and judges in future cases."  Carey v. Musladin, 549 US 70, 79, 127 S Ct 649, 166 L Ed 2d 482 (2006) (Stevens, J., concurring in the judgment).  Lower court judges may not "discount the importance of such guidance on the ground that it may not have been strictly necessary as an explanation of the Court's specific holding in the case."  Id.  Indeed, even when applying its own precedents, the Court generally "adhere[s] not only to the holdings of our prior cases, but also their explications of the governing rules of law."  Allegheny County v. Greater Pittsburgh ACLU, 492 US 573, 668, 109 S Ct 3086, 106 L Ed 2d 472 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part).  Thus, to my mind, when the Court states that specific numerical ratios should be applied to determine whether a punitive damages award exceeds constitutional limits, those statements are not mere dicta, but rather constitute binding precedent that we are obliged to follow.  Our federal system requires us to do what the Court says, not only what the Court does. To be sure, the majority does not contend that we are free to ignore the Court's "ratio" guidepost.  However, in relying on the "small" amount of compensatory damages awarded in this case to justify departing from the numerical standards that the Court has articulated, the majority, in my view, improperly "discount[s] the importance of [the Court's] guidance." As to the substance of the majority's conclusion, it appears to me that the majority's approach turns on two key steps.  First, it asserts that the Supreme Court has recognized an exception to the ratio guidepost for any "small" award of compensatory damages.  Second, it concludes that any compensatory damages award less than $12,000 - $25,000 is "small." Both conclusions are problematic.  The identified exception to the ratio guidepost is not for all "small" damages awards, but only for those that also involve particularly egregious misconduct -- which is not true in this case.  More importantly, it is bad policy to allow punitive damages awards to be open-ended below some arbitrary amount of compensatory damages deemed "small," because it means that many defendants who do more harm will be punished less. I begin with the applicable law.  Briefly, the Supreme Court has articulated three guideposts to be used to determine whether a punitive damages award exceeds the limits of due process:  "(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." Campbell, 538 US at 418; see BMW of North America, Inc. v. Gore, 517 US 559, 574-75, 116 S Ct 1589, 134 L Ed 2d 809 (1996) (same). My primary dispute with the majority relates to the second of those guideposts:  the relationship between punitive and compensatory damages.  The purpose of the ratio guidepost is to "ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered."  Campbell, 538 US at 426; see Gore, 517 US at 580 (noting that "[t]he principle that exemplary damages must bear a 'reasonable relationship' to compensatory damages has a long pedigree").  Although the United States Supreme Court has declined to set any bright-line limits for those ratios, the Court has expressly stated "that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process."  Campbell, 538 US at 425; see id. ("[s]ingle-digit multipliers are more likely to comport with due process").  And, in an exhaustive discussion of Gore and Campbell, this court concluded that punitive damage awards generally should be limited to single-digit ratios -- and in cases of purely economic injury, to a 4:1 ratio.  See Goddard v. Farmers Ins. Co., 344 Or 232, 259-61, 179 P3d 645 (2008) (so explaining). The Supreme Court has recognized three exceptions to the ratio guidepost.  See Campbell, 538 US at 425 (listing exceptions); Gore, 517 US at 582 (same).  Gore stated the only such exception relevant to this case as follows:  "[L]ow awards of compensatory damages may properly support a higher ratio than high compensatory awards if, for example, a particularly egregious act has resulted in only a small amount of economic damages."  517 US at 582.  The Court repeated that exception in Campbell, directly quoting the Gore phrasing:  "[R]atios greater than those we have previously upheld may comport with due process where 'a particularly egregious act has resulted in only a small amount of economic damages.'"  538 US at 425 (quoting Gore, 517 US at 582). In this case, however, the majority truncates that exception:  It drops the requirement of "particularly egregious misconduct" and expands the exception to reach all "small" compensatory damage awards.  The majority's support for that proposition is a single case:  Exxon Shipping Co. v. Baker, 554 US 471, 128 S Ct 2605, 171 L Ed 2d 570 (2008).  See ___ Or at ___ (slip op at 9) (so stating).  Exxon Shipping does not support that conclusion, however.  Exxon Shipping's discussion of the constitutional limits on punitive damages concerned a point of law that was not at issue in the case.(1)  And while the Court omitted to mention the "particularly egregious" requirement in the text of the opinion, it specifically quoted the "particularly egregious" requirement in a parenthetical.  554 US at 494.(2)  Yet the majority necessarily concludes that the Court intended to abolish the element.  To put it bluntly, the notion that the Supreme Court has abolished the "particularly egregious" requirement is not a defensible reading of Exxon Shipping. I understand the majority's motivation, however.  I believe that the majority is concerned about the consequences of having the ratio guidepost apply to ordinary small awards -- and justifiably so.  No matter what the tort is, if a jury awards only $1 in nominal compensatory damages, a single-digit ratio of punitive damages -- $9 -- is far too low.  In such cases, the award must be greater than the single-digit ratio approved in Gore and Campbell.  We do need a solution to that quandary. The majority's solution is effectively to presume that the Supreme Court did not mean what it said.  The majority does not recognize, however, that doing so creates as many problems as it solves.  It is not only bad law, it is bad policy.  Let me explain.  The majority, having concluded that the ratio guidepost does not apply to any "small" compensatory damages award, then suggests that the upper end of "small" awards is in the $12,000 - $25,000 range.  ___ Or at ___ (slip op at 14).  From that idea, the majority leaps to the conclusion that $8,000 in compensatory damages permits punitive damages of at least $175,000. But consider what would happen if this plaintiff had suffered $12,000 in damages, not just $8,000.  At that point (or thereabouts), the ratio guidepost would kick in, and accordingly the maximum ratio (subject to adjustment) generally would be 4:1.  See Goddard, 344 Or at 260 (for cases of purely economic injury).  Therefore, the maximum constitutionally permissible punishment would be limited to only $48,000 (subject to some adjustment up or down).  Similarly, if this plaintiff had been injured $25,000, he would have been entitled to punitive damages of only $100,000.    That point is worth emphasizing.  If this defendant had done more than triple the amount of damages in this case ($25,000), the maximum constitutionally permissible punitive damages award would be reduced by over 40% from what the majority approves here.  If this defendant had done quadruple the amount of damages ($32,000), the maximum permissible punitive damages award still would be reduced by over 25% (to $128,000). How could an equitable rule require a plaintiff who suffers more harm to receive less punitive damages?  How could a fair rule permit a defendant who inflicts more harm to be punished less?  The majority's rule will effectively reward defendants for inflicting more harm on plaintiffs, while punishing those plaintiffs unfortunate enough to have suffered extra harm.  However well intentioned, it is a mistake for the majority to institutionalize that result.  "[T]he penalty scheme [wrongdoers] face ought to threaten them with a fair probability of suffering in like degree when they wreak like damage."  Exxon Shipping, 554 US at 502. The majority's approach creates another problem.  In its effort to avoid punitive damages awards that are too small, the majority instead allows punitive damages awards that are too large.  There are plenty of small torts that deserve punitive damage awards, but not $175,000 or more.  The defendant who publicly spits in a plaintiff's face should be punished -- but $200,000 worth?  Yet the majority's deferential analysis of small compensatory damage awards would impose no real restraint on such an outcome. For the lower half of damage awards, then, the majority creates a topsy turvy world, in which the less harm you do, the more you can be punished.  Measured by the actual damages that the defendants cause, the least dangerous defendants can be punished with constitutionally inappropriate punitive damages, while the more dangerous defendants are protected by the ratio guidepost.(3) I would propose a different solution.  The key is to recognize that some punitive damages awards are small enough that they do not implicate substantive due process concerns, even if the misconduct essentially resulted in no harm to a party at all.  An entire genre of court cases regularly involves financial penalties that are intended to punish and deter misconduct.  Those financial penalties are familiar to all of us:  They are civil penalties and criminal fines.  When those civil penalties and criminal fines are in "ordinary" amounts, their constitutionality is neither disputed nor disputable.  So, too, then, with awards of punitive damages.  Such awards, when comparable in amount to civil penalties or criminal fines already prescribed by the legislature, do not raise any concerns about being "grossly excessive," which is what the Gore guideposts are intended to protect against.  See Campbell, 538 US at 416-17 ("The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor."  (Citations omitted.)); Gore, 517 US at 562 (to the same effect). For that reason, it would be easy for the courts to determine whether the award was, in effect, de minimis non curat lex.(4)  Awards below the de minimis amount would not be subject to the Gore guideposts and would not require any sort of substantive Gore/Campbell judicial review at all.  And, when the court identified an unconstitutional punitive damages award, the appropriate remittitur would never drop below the de minimis amount.(5) It is worth pointing out, too, that, under my analysis, the exception to the ratio requirement stated by the Supreme Court -- "a particularly egregious act [that] has resulted in only a small amount of economic damages" -- remains important.  There will be cases in which the de minimis award would fail to recognize adequately how reprehensible the misconduct was and how near plaintiff came to suffering extraordinary damages.  The example offered by the majority perfectly illustrates how the exception applies:  A defendant who fires a gun wildly into a crowd but only does $10 worth of damages to a pair of glasses should receive a more severe punishment than the de minimis award.  ___ Or at ___ (slip op at 8). Based on my review of existing legislation, I would be inclined to conclude that the de minimis amount should be $50,000.  That amount represents the maximum criminal fine that the legislature permits to be imposed against a corporation for committing a felony.  ORS 161.655(1)(a).  That choice represents a balance of factors.  On the one hand, criminal fines may be imposed only after a trial with procedural safeguards that are not available in civil actions; that fact would counsel for a lower de minimis amount.  See Campbell, 538 US at 428 ("Great care must be taken to avoid use of the civil process to assess criminal penalties that can be imposed only after the heightened protections of a criminal trial have been observed, including, of course, its higher standards of proof.").  On the other hand, corporations can only be fined -- they face no risk of imprisonment -- and the fine for corporations is well below that which may be imposed on individuals.  See ORS 161.625(1) (fines for individuals can range from $125,000 for a Class C felony to $500,000 for murder or aggravated murder).  Furthermore, in many cases corporations represent the more dangerous civil defendants.  In this particular case, defendant is a corporation.  The choice of $50,000 thus seems reasonable and appropriate. In this case, the jury awarded $175,000.  That is well above the de minimis amount, so we should apply the Gore guideposts.  As applied to this case, I agree with the Court of Appeals that defendant's misconduct was not particularly reprehensible.  See Hamlin v. Hampton Lumber Mills, Inc., 222 Or App 230, 239-41, 193 P3d 46 (2008), on recons, 227 Or App 165, 205 P3d 70 (2009) (explaining that only two of the five reprehensibility subfactors exist here).(6)  Because this case involved only economic harm ‑‑ it is not an action for physical injury, but for unlawful refusal to reinstate the plaintiff to his job -- I would conclude that the appropriate ratio for punitive damages under Gore should be 3:1, or roughly $24,000.  See Goddard, 344 Or at 260 ("as a very general rule of thumb," punitive damages awards for solely economic injury should not significantly exceed 4:1).  That amount, however, is less than the de minimis amount of $50,000.  Accordingly, I would hold that the punitive damages award should be subject to a remittitur of punitive damages to $50,000. I add one final note:  a plea to the Supreme Court of the United States.  For years this court generally, and I personally, have struggled to apply Gore and Campbell faithfully to the cases before us.  This case represents but one of the many problems that have cropped up in the seven years since the Court decided Campbell.  The courts around are in need of -- indeed, I will assert that we deserve -- further guidance that only the Court can provide.  Whether the Court agrees with my analysis, or the majority, or something in between, does not matter to me.  But it would be a responsible act of comity for the Court to say something clear to help in future cases. I respectfully dissent. Balmer, J., joins in this dissenting opinion. 1. ORS 659A.043(1) provides: "A worker who has sustained a compensable injury shall be reinstated by the worker's employer to the worker's former position of employment upon demand for such reinstatement, if the position exists and is available and the worker is not disabled from performing the duties of such position." 2. Plaintiff asserted a total of four claims for relief against defendant:  failing to reinstate him (ORS 659A.043), retaliating against him for making a safety complaint to Oregon OSHA (ORS 654.062(5)), retaliating against him for filing a workers' compensation claim (ORS 659A.040), and wrongful termination.  The jury decided against plaintiff on his claims for workers' compensation retaliation and for wrongful discharge.  No issues regarding the claims other than the failure to reinstate claim are presented on review. 3. ORS 654.062(5) provides: "It is an unlawful employment practice for any person to bar or discharge from employment or otherwise discriminate against any employee or prospective employee because the employee or prospective employee has: "(a) Opposed any practice forbidden by ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780; "(b) Made any complaint or instituted or caused to be instituted any proceeding under or related to ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780, or has testified or is about to testify in any such proceeding; or "(c) Exercised on behalf of the employee, prospective employee or others any right afforded by ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780." 4. The jury found that plaintiff's lost wages were $10,000, but that he had unreasonably failed to mitigate $4,000 of those damages.  The jury declined to award noneconomic damages.  5. Unlike the jury, the court rejected defendant's argument that plaintiff had unreasonably failed to mitigate his damages on the OSHA retaliation claim.  Violation of ORS 654.062(5) does not permit an award of noneconomic or punitive damages.  ORS 659A.885(3) (authorizing punitive damages for violations of listed statutes, not including ORS 654.062(5)).  6. The trial court entered two separate "general money judgments" in this case, one on August 25, 2005, the other on October 20, 2005.  The judgments are essentially identical, save for the pre- and post-judgment interest provisions.  Both judgments awarded plaintiff $185,000 -- compensatory damages of $10,000 (constituting both the $6,000 awarded by the jury on the failure to reinstate claim and the $10,000 awarded by the trial court on the OSHA retaliation claim) and punitive damages of $175,000. The trial court later entered a supplemental judgment awarding plaintiff $72,506.90 in attorney fees, plus costs.  Defendant does not contest the computation of those judgments in this court. 7. The Court's holding in Exxon was based on federal maritime law, but the Court discussed the constitutional limits on punitive damages in the course of that opinion. 8. The dissent charges that we wrongly "truncate" the Gore exception by dropping the requirement of "particularly egregious misconduct," ___Or at ___ (Gillette, J., dissenting, at 4).  However, the dissent also eliminates that requirement for punitive damages awards under $50,000, and, notably, thus necessarily recognizes that the Gore exceptions are not an exclusive list of the instances in which the multiplier of compensatory damages may exceed a single-digit.  The difference between the dissent and the majority is that the dissent would judicially cap punitive damages in small compensatory damage cases at $50,000.   The dissent suggests a legislative "solution to [the] quandary," ___Or at ___ (Gillette, J., dissenting, at 6, 8-10), instead of confining its inquiry to the issue presented -- the constitutional limits imposed by the Due Process Clause.  The dissent's proposal is not drawn from Supreme Court precedent; instead it conflicts with the Supreme Court's refusal to set "rigid benchmarks" beyond which a punitive damages award becomes unconstitutional.  See, e.g., Campbell, 538 US at 424-25; Gore, 517 US at 582 (both to that effect). 9. The jury initially had awarded $2 million in punitive damages, but the trial court reduced the award to $1 million because that was what the plaintiff had sought in the complaint.  Goff, 297 SW3d at 179. 10. As the Court of Appeals noted, some doubt exists regarding the correct amount of prejudgment interest.  See Hamlin, 222 Or App at 243 n 6 (so indicating). 11. Because we reach that conclusion, the dissent understands us to be drawing a numerical line between "small" and "substantial" compensatory damages awards that compels two different applications of the ratio guidepost and that, in its view, produces anomalous results.  For instance, if we were to consider a compensatory damages award of $11,000 to be "small," but a compensatory damages award of $12,000 to be "substantial," it would be anomalous for the former award to justify a punitive damages award of $175,000 (a 16:1 ratio), but the latter award to justify a punitive damages award of only $48,000 (a 4:1 ratio).  We have three responses.  First, we do not intend to draw a hard and fast numerical line between "small" and "substantial" compensatory damage awards.  What is "small" will depend on the facts and circumstances of each case and the admonitory effect of the compensatory damages. Second, we see the proportionality aspect of the due process analysis as a continuum -- the lower the compensatory damages, the higher the permitted ratio and, conversely, the higher the compensatory damages, the lower the permitted ratio.  Thus, for example, if a jury were to award compensatory damages of $100, a punitive damage award of 100 times that sum -- an award of $10,000 -- could be justified.  But if a jury were to award compensatory damages of $10,000, a punitive damages award of 100 times that sum -- an award of $1 million -- could be "grossly excessive."  Understood in that way, the difference between compensatory damages of $11,000 and compensatory damages of $12,000 would not result in a choice between a 16:1 or a 4:1 ratio.  If a defendant's conduct caused $11,000 in compensatory damages and justified a punitive damages award of $175,000, neither this court nor the Supreme Court has held that similar conduct that resulted in compensatory damages of $12,000 could not justify a similar punitive damages award. Third, when a defendant's conduct causes substantial harm, the damages awarded generally will be different in degree from those we consider "small."  In other words, if a defendant inflicts more than minimal harm, it is likely that a plaintiff will recover substantial compensatory damages and that a single-digit multiplier of that award will produce punitive damages greater than or equal to those produced by a higher multiplier of lower compensatory damages.  For example, if a defendant were to cause harm that resulted in an award of $50,000 in compensatory damages, an award of four times that sum would result in punitive damages of $200,000. 12. ORS 659A.885(1) authorizes a court, in a civil action under ORS 659 A. 043, to "order injunctive relief and any other equitable relief that may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay." A court is further authorized to award "compensatory damages or $200, whichever is greater, and punitive damages[.]"  ORS 659A.883(3).  Compensatory damages include both economic and noneconomic damages.  See Tadsen v. Praegitzer Industries, Inc., 324 Or 465, 928 P2d 980 (1996) (under earlier, but identical, version of ORS 659A.885(3), plaintiff's compensatory award included both economic and noneconomic damages); Griffin v. Tri-Met, 318 Or 500, 870 P2d 808 (1994) (same). 13. The dissent agrees that the compensatory damages in this case are small enough that the otherwise permissible multiplier (the dissent assumes a permissible multiplier of three) does not establish the maximum constitutionally permissible punitive damages award.  In the dissent's view, however, the amount of the punitive damages must be capped at $50,000.  ___ Or at ___ (slip op at 11).  The Due Process Clause does not impose such a cap. 1. See Exxon Shipping, 554 US at 501-02 ("Today's enquiry differs from due process review because the case arises under federal maritime jurisdiction, and we are reviewing a jury award for conformity with maritime law, rather than the outer limit allowed by due process * * *."). 2. The Court stated: "Regardless of culpability, however, heavier punitive awards have been thought to be justifiable * * * when the value of injury and the corresponding compensatory award are small (providing low incentives to sue), see, e.g., [Gore, 517 US at 582] ('[L]ow awards of compensatory damages may properly support a higher ratio * * * if, for example, a particularly egregious act has resulted in only a small amount of economic damages') * * *." 554 US at 494 (second alteration and second ellipsis in original; emphasis added). 3. The majority, disagreeing with my analysis, offers three responses.  All of them miss the point. The majority first asserts that there is no "hard and fast numerical line" defining "small" compensatory damages awards.  ___ Or at ___ n 11 (slip op at 15 n 11).  The absence of a "hard and fast" rule does not affect the validity of my contention.  If this jury had awarded this plaintiff more compensatory damages -- which plaintiff asked the jury to do -- then this compensatory damages award would not have been "small," and this punitive damages award would have been unconstitutional. Second, the majority (apparently assuming for purposes of argument that $12,000 does mark the upper limit of "small" compensatory damages awards) asserts that if an $11,000 award would justify $175,000 in punitive damages, then a $12,000 award would justify a comparable award.  ___ Or at ___ n 11 (slip op at 15 n 11).  The problem is that the majority has just denied what its opinion holds.  If a $12,000 compensatory damages award is not "small," then the "small compensatory damages" exception to the ratio guidepost does not apply, by definition.  The majority thus cannot appeal to the "small compensatory damages" exception to justify a punitive damages award of $175,000 on compensatory damages of $12,000.  Such an award is sustainable, if at all, only if some other exception applies. Third, the majority seemingly asserts that there is no problem because, when the compensatory damages are large enough, even those punitive damages awards subject to the ratio guidepost will exceed the award here.  "[I]f a defendant were to cause harm that resulted in an award of $50,000 in compensatory damages, an award of four times that sum would result in punitive damages of $200,000."  ___ Or at ___ n 11 (slip op at 15 n 11).  That statement is true, but beside the point.  The majority's exception for "small" compensatory damages awards (below $12,000) necessarily means that a whole range of defendants who cause more than $12,000 harm will be punished less.  Indeed, at a 4:1 ratio for economic harm, a defendant would have to inflict nearly $44,000 in damages to justify the same $175,000 punitive damages award that the majority approves here for $8,000. 4. "The law does not notice or concern itself with trifling matters."  Black's Law Dictionary 1826 (9th ed 2009). 5. The majority effectively asserts that I am also recognizing an additional "exception" to the ratio guidepost.  ___ Or at ___ n 8 (slip op at 10-11 n 8).  That misunderstands the breadth of my argument.  If it were an exception, it would apply only to the ratio guidepost, and so courts still would have to address the other two Gore guideposts (reprehensibility and comparable civil penalties).  As I just noted, however, I would conclude that awards below the de minimis limit are not subject to any substantive due process review at all. The majority's suggestion that my proposal would violate Supreme Court precedent by setting "rigid benchmarks beyond which a punitive damages award becomes unconstitutional," ___ Or at ___ n 8 (slip op at 10-11 n 8) (internal quotation marks and citation omitted), also misreads my argument.  The de minimis award amount is not a ceiling beyond which punitive damages may not go.  It is a safe harbor against substantive due process challenges to any punitive damages award up to $50,000. 6. I am not persuaded by the majority's assertion that the violation of the statute at issue here represents an additional form of reprehensibility beyond the factors identified by the Supreme Court in Gore and Campbell.   ___ Or at ___ (slip op at 17-18).

3d38ae19df241386ed20e2ef02e37c856bb0b09b9700a9b0d916fb875d2af680

2011-01-06T00:00:00Z

c7b91774-880f-427b-a9d3-5f58be4442be

Oregon v. Lopez-Minjarez

S059045

oregon

Oregon Supreme Court

Filed: August 25, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. PETRONILO LOPEZ-MINJAREZ, Respondent on Review. (CC C053660CR; CA A134227; SC S059045) En Banc On review from the Court of Appeals.* Argued and submitted May 5, 2011. Greg Rios, 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. Shawn Wiley, Chief Deputy Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With him on the brief was Peter Gartlan, Chief Defender. LINDER, J. The decision of the Court of Appeals is reversed in part and affirmed in part. The judgment of the circuit court is reversed, and the case is remanded for further proceedings. *Appeal from Washington County Circuit Court, Gayle Nachtigal, Judge. 236 Or App 270, 237 P3d 223, adh'd to on recons, 237 Or App 688, 240 P3d 753 (2010). 1 LINDER, J. 1 We allowed review in this case to consider whether a uniform criminal jury 2 instruction on aiding and abetting correctly states Oregon law.1 As did the Court of 3 Appeals,2 we conclude that it does not. We further conclude, as did the Court of Appeals, 4 that giving the instruction was prejudicial in this case. We differ, however, in our 5 determination of which crimes were potentially affected by the instructional error. 6 Consequently, we affirm in part and reverse in part the decision of the Court of Appeals, 7 we reverse the judgment of the circuit court, and we remand for further proceedings. 8 The relevant facts were significantly disputed at trial. For purposes of our 9 review, the facts can be briefly recounted. To assess whether the error in instructing the 10 jury could have affected the jury's verdict on the various charges involved, however, it is 11 important to describe both sides' respective evidence and theories of the case. 12 The charges in this case arose after defendant and his father drove in 13 defendant's truck to the home of a man who was having an extra-marital affair with 14 defendant's mother. When defendant and his father arrived at the man's home, no one 15 was there. The victim -- the man's teenaged son -- arrived shortly thereafter. When 16 victim arrived, defendant or his father, or the two of them together, pushed the victim 17 1 The instruction, which we set out in full later in this opinion, is Uniform Criminal Jury Instruction 1052, "Aider or Abettor -- Liability for Probable Consequences." 2 State v. Lopez-Minjarez, 236 Or App 270, 237 P3d 223, adh'd to on recons, 237 Or App 688, 240 P3d 753 (2010). 2 into the house, where the victim was shot, but not killed. The victim was then forced into 1 defendant's truck and taken to a remote area off a logging spur road, where he was killed. 2 Police arrested defendant later that night at his home, after a neighbor reported seeing the 3 victim abducted and gave police the license plate number of the truck in which he was 4 taken. Defendant's father was never apprehended by authorities. 5 The state indicted defendant on multiple charges based on those essential 6 events. Specifically, alleging that all the charges were part of the "same act and 7 transaction," the state charged defendant with: 8 two counts of first-degree burglary, alleging that defendant entered and remained 9 in the victim's home, a dwelling, with the intent to commit kidnapping (Count 12) 10 and assault (Count 11), and caused physical injury to the victim; 11 one count of second-degree assault, alleging that defendant physically injured the 12 victim through the use of a deadly weapon; 13 one count of first-degree kidnapping, alleging that defendant took the victim from 14 one place to another, with the intent to interfere substantially with the victim's 15 liberty and with the purpose of physically injuring the victim; 16 two counts of felony murder, alleging that in the course of and in furtherance of 17 defendant's commission of burglary in the first degree (Count 8) and kidnapping in 18 the first degree (Count 7), a participant in the crime that defendant was committing 19 caused the victim's death; 20 three counts of aggravated murder, alleging that defendant intentionally killed the 21 3 victim in an effort to conceal the commission of the crimes of burglary (Count 1), 1 kidnapping (Count 5), and assault (Count 3); 2 three counts of aggravated murder, alleging that defendant intentionally killed the 3 victim to conceal his and his father's identities as the persons who committed the 4 crimes of burglary (Count 2), kidnapping (Count 6), and assault (Count 3).3 5 At trial, the state's evidence and that presented by defendant sharply 6 diverged. According to the state, defendant and his father jointly planned to injure or kill 7 the man having the affair with defendant's mother (defendant's father's wife), and both 8 were present throughout and committed the crimes involved. We need not recount in 9 detail the state's evidence, which consisted of physical and circumstantial evidence, the 10 observations of eyewitnesses, and statements that defendant made to police. It suffices to 11 observe that, from the state's evidence, the jury could have concluded that defendant was 12 personally present during all the events that culminated in the victim's death -- e.g., the 13 planning of the confrontation with the victim's father, the entry into the home, the initial 14 shooting of the victim, the victim's abduction to a distinctive remote area (one that 15 defendant may have frequented for target shooting), and the victim's murder at that 16 remote area. What the state could not establish was who personally pulled the trigger and 17 shot the victim, either in the home, where the victim was shot and wounded, or at the 18 3 Certain lesser included offenses of the charged offenses (i.e., kidnapping in the second degree, burglary in the second degree, and intentional murder) were also submitted to the jury at the conclusion of the trial. In each instance, the jury found defendant guilty of the greater charge. 4 remote area, where he was shot and killed. Under the state's theory, however, it did not 1 matter whether defendant or his father was the person who did so. Either way, defendant 2 was sufficiently involved to be criminally responsible for the resulting crimes. 3 Defendant contradicted the state's evidence, and its theory of the case, 4 principally through his own testimony. According to defendant, he went with his father 5 on the night in question, believing that his father wanted to talk to the wife of the man 6 who was having an affair with his mother, because his father saw himself and the wife as 7 "victims" of the affair. According to defendant, he did not know that his father was 8 armed until his father got out of the truck to confront the victim, at which point the father 9 forced the victim into the house at gunpoint. Defendant claimed that he never entered the 10 house, and that only his father went inside. Instead, defendant waited outside the garage 11 and, after hearing a gunshot, stepped into the garage to try to look into the house to 12 determine if his father had killed the victim. Defendant claimed that, after the gunshot, 13 his father forced the victim outside and into defendant's truck. Defendant acknowledged 14 that he drove the truck away, while his father held the victim at gunpoint. He also 15 acknowledged that he noticed the truck running low on gas, told his father they needed to 16 get gas, let his father get out of the truck with the victim to hide at a remote construction 17 site while he refueled the truck, and then returned to the construction site, where his 18 father again forced the victim back into the truck and defendant resumed driving with the 19 victim inside, held against his will. 20 Defendant denied, however, driving to the remote area where the victim 21 was killed. Instead, defendant claimed that he drove to a particular McDonald's 22 5 restaurant, where he remained while his father took over the driving and left with the 1 victim. According to defendant, his father returned in the truck about 30 to 40 minutes 2 later, without the victim. To rebut defendant's testimony that he was at the McDonald's 3 restaurant when the victim was killed, the state presented evidence that it was not 4 possible for someone to drive the distance between that McDonald's restaurant and where 5 the victim was found in the time that defendant claimed he waited there for his father. 6 The state also presented evidence that the several employees working at the McDonald's 7 that night had not seen defendant, and that, because it was a slow night, they likely would 8 have remembered him had he been there for 30 to 40 minutes even if, as he claimed, he 9 was in the bathroom during much of that time. 10 In instructing the jury, the trial court indentified the elements of each of the 11 substantive crimes with which defendant was charged. The trial court then further 12 instructed the jury, using the pertinent uniform criminal jury instructions, on accomplice 13 liability. Specifically, the trial court first advised the jury that a person is criminally 14 liable for a crime, regardless of whether the person is present when the crime is 15 committed, if the person, with the requisite intent, "aids and abets" in committing a 16 crime: 17 "A person who is involved in committing a crime may be charged 18 and convicted of that crime if, with the intent to promote or facilitate the 19 commission of the crime[,] that person aids and abets someone in 20 committing the crime. Under these circumstances, it is not necessary for 21 that person actually to be personally present at the time and place of the 22 commission of the crime." 23 UCrJI 1052. After that instruction, the trial court informed the jury what it means to "aid 24 6 and abet" in the commission of a crime: 1 "A person aids and abets another person in the commission of a 2 crime if the person, one, with the intent to promote or make easier the 3 commission of the crime; two, encourages, procures, advises or assists by 4 act or advice the planning or commission of the crime." 5 UCrJI 1053. Next, the trial court gave the uniform instruction at issue here: 6 "A person who aids or abets another in committing a crime * * * is 7 also criminally responsible for any act or other crime that [was] committed 8 as a natural and probable consequence of the planning, preparation, or 9 commission of the intended crime." 10 UCrJI 1051. 11 As we noted at the outset, we allowed review in this case to consider 12 whether the last of those three instructions is a correct statement of Oregon law. 13 Defendant argues that it is not. The Court of Appeals agreed. State v. Lopez-Minjarez, 14 236 Or App 270, 287, 237 P3d 223, adh'd to on recons, 237 Or App 688, 240 P3d 753 15 (2010). On review, the state concedes that, at least in isolation, the instruction incorrectly 16 states the principles of accomplice liability under Oregon law. As we will explain, we, 17 too, agree. 18 The analysis of why the instruction is wrong is straightforward. The 19 legislature has codified the principles for accomplice liability in ORS 161.155. That 20 statute provides, in part: 21 "A person is criminally liable for the conduct of another person 22 constituting a crime if: 23 "* * * * * 24 "(2) With the intent to promote or facilitate the commission of the 25 crime the person: 26 7 "* * * * * 1 "(b) Aids or abets or agrees or attempts to aid or abet such other 2 person in planning or committing the crime[.]" 3 Thus, the statute requires a specific intent: the intent to promote or facilitate the 4 commission of the crime committed by another. The statute also has a conduct element: 5 with that requisite intent, the person must assist, agree to assist, or attempt to assist in 6 either the planning or commission of the crime committed by another. 7 The "natural and probable consequences" instruction (UCrJI 1051) builds 8 on accomplice liability, but goes beyond it. The instruction advises a jury that a person 9 who aids and abets in the commission of a crime, in addition to being criminally 10 responsible for that crime, also is criminally responsible for "any act or other crime" that 11 was the "natural and probable consequence" of the intended crime. In effect, the 12 instruction tells a jury that, once it finds liability based on an aiding and abetting theory, 13 it can find a defendant guilty of any other crimes that the jury finds to be the natural and 14 probable consequence of the crime for which there was accomplice liability. That 15 criminal responsibility attaches under the instruction for any naturally consequential 16 crime, without regard to whether the defendant acted with the intent that ORS 161.155 17 requires. 18 Put simply, Oregon law does not give rise to criminal liability on such a 19 theory. Accomplice liability is both created by and limited by ORS 161.155. The statute 20 creates criminal responsibility for one who aids in the planning or commission of a crime 21 with "the intent to promote or facilitate the commission of the crime." As the Court of 22 8 Appeals correctly observed, through the use of the definite article "the" in referring to 1 "the crime," the legislature created accomplice liability only for the crime that a 2 defendant intended to promote or facilitate, not for any additional crimes that might be 3 considered the natural and probable consequence of that crime, regardless of the 4 defendant's intent. Lopez-Minjarez, 236 Or App at 282. The vice of the challenged 5 uniform instruction is that it was not so limited.4 Giving it was inconsistent with the 6 statute, and was therefore error.5 7 As we have noted, on review in this court, the state concedes that the 8 instruction, in and of itself, does not state the law correctly. The state's argument is only 9 that, when the instruction is read together with the other aiding and abetting instructions 10 that the trial court gave, the jury would have correctly understood that, to find defendant 11 4 The fact that the erroneous instruction is part of the Uniform Criminal Jury Instructions, of course, is inconsequential in the analysis. Those uniform instructions are drafted by a committee of members of the Oregon State Bar and are not themselves the law. They instead are a salutary effort on the part of legal practitioners in Oregon to state the law in a correct way that is helpful to jurors. As this case demonstrates, that effort does not always succeed. 5 We emphasize that the problem here is distinct to this context. ORS 161.155 describes the terms on which accomplice liability can be found; any instruction on accomplice liability must be consistent with that statute. Our conclusion in this case, therefore, does not implicate doctrines or principles in other contexts that may involve the natural and probable consequences of conduct. See, e.g., Wallach v. Allstate Ins. Co., 344 Or 314, 319-20, 180 P3d 19 (2008) (discussing tort principles by which a plaintiff can recover not only for injuries that result from negligence, but also injuries that are the natural and probable consequence of an original injury); Logan v. D. W. Sivers Co., 343 Or 339, 353-54, 169 P3d 1255 (2007) (plaintiff in contract action may recover damages that are within contemplation of parties at the time of contract formation and are the natural consequence of a breach). 9 criminally responsible for any crime that was a natural and probable consequence of his 1 actions as an accomplice, the jury had to also find that defendant intended to promote or 2 facilitate the commission of those additional crimes. See generally State v. Woodman, 3 341 Or 105, 119, 138 P3d 1 (2006) (no error when instructions, read as a whole, 4 "accurately reflected the statutory requirements"). 5 We are not persuaded. In context, the defects of the wrong instruction 6 become more glaring, not less so. The instructions as a whole provided the jury with 7 three distinct theories on which, depending on the jury's view of the evidence, the jury 8 could find defendant responsible for the various crimes with which he was charged. 9 Effectively, the jury could find defendant guilty of a charge if it found that: (1) defendant 10 intended to commit and personally committed the charged crime; (2) defendant, with the 11 requisite intent, aided and abetted his father in the commission of the charged crime; or 12 (3) the charged crime was a natural and probable consequence of any crime that 13 defendant aided in committing. The third theory of criminal responsibility does not exist 14 under ORS 161.155 or any other statute pertinent here. The challenged instruction was 15 therefore wrong, both alone and in the context of the other instructions given. 16 The remaining question is whether that error prejudiced defendant. State v. 17 Thompson, 328 Or 248, 266, 971 P2d 879, cert den, 527 US 1042 (1999) (court will 18 reverse for instructional error only if instructions, when considered as a whole, prejudiced 19 defendant). Although defendant sought reversal of all convictions based on the 20 instructional error, the Court of Appeals affirmed defendant's convictions for kidnapping, 21 assault, and burglary, and reversed only defendant's aggravated murder and felony 22 10 murder convictions. The court reasoned that defendant had essentially conceded the facts 1 that established his criminal responsibility for the kidnapping, assault, and burglary 2 convictions and that, therefore, the "erroneous instruction could not have affected those 3 counts." Lopez-Minjarez, 236 Or App at 289. As to the homicide convictions, however, 4 the court concluded that "the jurors reasonably could have convicted defendant of the 5 homicides simply because they believed that the homicides were the natural and probable 6 consequences of the earlier crimes." Id. at 288. 7 To assess prejudice, we must determine whether the jury's guilty verdict on 8 one or more of the charges could have been based on the theory of criminal responsibility 9 contained in the erroneous instruction. See State v. Pine, 336 Or 194, 210, 82 P3d 130 10 (2003) (reversing conviction where incorrect jury instruction "created an erroneous 11 impression of the law that, if the jury had believed defendant's version of the facts, would 12 have affected the outcome of the case"). As earlier quoted, the instruction advised the 13 jury that "a person who aids and abets another in committing a crime" is "also" criminally 14 responsible for any act or other crime committed as a natural and probable consequence 15 of the planning, preparation, or commission of the intended crime. Thus, to trigger 16 criminal responsibility under the erroneous instruction, the jury first had to find defendant 17 guilty of at least one predicate crime on an accomplice (i.e., aiding and abetting) theory.6 18 6 Defendant argues that all convictions, including the convictions for burglary, should be reversed because he contested his intent to commit any of his father's crimes, including burglary, and maintained instead that he was "merely obeying his domineering and violent father rather than trying to aid him." The problem with that 11 The first crime, chronologically, for which the jury might have found 1 defendant guilty on any theory, including an aiding and abetting theory, was the burglary 2 of the victim's home. From the evidence at trial, the jury could have concluded either 3 that defendant personally entered and remained inside the victim's home with the intent to 4 commit a crime inside (either kidnapping, assault, or both), or that he aided and abetted 5 his father in doing so.7 But because the burglary was first in time, what the jury could not 6 have done was find the burglary to have been the "natural and probable consequence" of 7 a crime that defendant, at an earlier point, had aided his father in committing. That is, 8 however, what the erroneous instruction required. Under it, the jury first had to find that 9 defendant committed a predicate crime on an accomplice theory. Only after so finding 10 could the jury then, pursuant to the instruction, "also" find criminal liability for any 11 "other" crimes that the jury considered a natural and probable consequence of the crime 12 that defendant had aided. Said another way, in this case, the jury could not have found 13 the burglary to have been a natural and probable consequence of an earlier crime that 14 argument, however, is that it overlooks the terms of the instruction. 7 We refer to the two burglary charges in the singular because the trial court merged them, both for conviction and sentencing. Given the evidence at trial, the convictions were based on a unitary act and a single victim, so that, despite the alternative or multiple intents alleged, defendant could be convicted of only one burglary. See State v. White, 341 Or 624, 640-41, 147 P3d 313 (2006) (proof of a unitary act in entering and remaining in home, even with the intent to commit more than one crime against a single victim, will support multiple charges of burglary but only a single conviction). Consequently, there is no basis in this case to distinguish between the two burglary counts for purposes of assessing prejudice. 12 defendant had aided in committing, because there was no earlier crime in the sequence of 1 charged criminal acts. Necessarily, then, the instruction was harmless as to the burglary 2 conviction. 3 The same is not true of the next crime that occurred chronologically -- viz., 4 the assault. Whether defendant's conviction on that charge could have been affected by 5 the erroneous instruction depends on the possibility that the jury convicted defendant of 6 burglary as an accomplice, rather than as a principal. If the jury believed defendant's 7 testimony that only his father went inside the house, the jury's burglary verdict would 8 have to have been based on an accomplice theory -- viz., that defendant aided and abetted 9 in his father's burglary of the house.8 In that event, having found defendant guilty of 10 burglary as an accomplice, the jury also could find, under the erroneous instruction, that 11 defendant was guilty of assault if the jury concluded that his father's assault of the victim 12 was the natural and probable consequence of the burglary. The jury could have done so 13 without having to find, as ORS 161.155 requires, that defendant intended to promote or 14 facilitate the assault. Defendant was, consequently, necessarily prejudiced by the 15 erroneous instruction on his conviction for second-degree assault.9 16 8 See ORS 164.225; ORS 164.215 (defining first-degree burglary as requiring the person to "enter[] or remain[] unlawfully" in a dwelling). 9 The Court of Appeals reached a contrary conclusion on the assault conviction, reasoning that defendant essentially had conceded the facts that established criminal responsibility for the assault. Lopez-Minjarez, 236 Or App at 289. The court did not identify what those facts were. We reach an opposite conclusion, because defendant's testimony, if believed by the jury, would have permitted the jury to find that 13 As to the next crime that occurred chronologically -- viz., the kidnapping of 1 the victim -- the erroneous instruction was, in contrast to the assault conviction, patently 2 harmless. Defendant conceded his direct participation in that crime. At trial, he admitted 3 that he drove the truck away from the victim's house, with his father inside holding the 4 victim at gunpoint. The best evidence for defendant thus established defendant's criminal 5 liability for kidnapping in the first degree, based either on an accomplice or principal 6 theory.10 It therefore follows that the erroneous instruction had no significant likelihood 7 of affecting the jury's verdict on the first-degree kidnapping charge, and it was therefore 8 harmless insofar as that charge is concerned. 9 We turn then, to the two remaining convictions -- aggravated murder and 10 felony murder. As to the aggravated murder charge, the jury could find defendant guilty, 11 either on a principal or an accomplice theory, only if it found, among other elements, that 12 defendant intended to kill the victim and personally did so, or intended to aid his father in 13 killing the victim.11 Although the state presented testimony from which the jury could so 14 defendant did not personally assault the victim and did not aid his father with the requisite intent to promote or facilitate his father's assault of the victim. 10 Kidnapping in the first degree requires, as pertinent here, that a person, with intent to interfere with the victim's liberty, take the person from one place to another for purposes of causing physical injury to the victim. ORS 163.235; ORS 163.225. 11 As charged, the aggravated murder counts in this case required the state to prove, among other elements, that defendant intentionally caused the victim's death to conceal the commission of the specified crimes or to conceal defendant's and his father's identities as the persons who committed those crimes, or both. See ORS 163.095(2)(e) (defining aggravated murder on that theory); ORS 163.115 (defining murder); ORS 14 find, defendant's testimony was to the contrary -- viz., that he did not kill the victim, did 1 not intend to kill the victim, and did not intend to aid or assist his father in killing the 2 victim. If the jury believed defendant's testimony, the only legally correct verdict for the 3 jury to return on aggravated murder was not guilty. The erroneous jury instruction, 4 however, permitted the jury to accept defendant's testimony and still find him guilty if it 5 found that the victim's murder was the natural and probable consequence of any crime 6 that defendant earlier aided his father in committing (i.e., kidnapping and burglary). If 7 the jury approached the case in that way, it would have found defendant guilty of 8 aggravated murder without finding that defendant had the requisite intent to commit 9 aggravated murder. Because the erroneous instruction could have resulted in a verdict 10 on that legally erroneous basis, the error requires reversal of defendant's aggravated 11 murder conviction. 12 The final conviction that we must consider is defendant's conviction for 13 felony murder. Under Oregon law, felony murder is committed when 14 "* * * a person, acting either alone or with one or more persons, * * * 15 commits or attempts to commit any of the following crimes and in the 16 course of and in furtherance of the crime the person is committing or 17 attempting to commit, or during the immediate flight therefrom, the person, 18 or another participant if there be any, causes the death of a person other 19 than one of the participants[.]" 20 ORS 163.115(1)(b).12 In this case, defendant was charged with two counts of felony 21 163.005 (defining criminal homicide). 12 Paragraphs (1)(b)(A) - (J) list the referenced crimes that may form the basis 15 murder based on defendant or his father having caused the victim's death in the course of 1 and in furtherance of, respectively, defendant's commission of first-degree burglary and 2 first-degree kidnapping. As we have described, the erroneous instruction did not affect 3 defendant's convictions on those charges. Having found defendant guilty of burglary and 4 kidnapping, the evidence would have permitted the jury to further find that a participant 5 in those underlying felonies (either defendant or his father) caused the victim's death in 6 the course of and in furtherance of the underlying felonies. If the jury did so find, 7 defendant was guilty of felony murder, and the jury's verdicts on felony murder would be 8 consistent with Oregon law. It was not necessary for the jury to find, as with the 9 aggravated murder charge, that defendant intended to promote or facilitate the victim's 10 murder, or that defendant even had any personal involvement in that murder.13 11 But the fact that the jury could have convicted defendant of felony murder 12 for a conviction of murder under subsection (1)(b). E.g., ORS 163.115(1)(b)(C) ("burglary in the first degree as defined in ORS 164.225"); ORS 163.115(1)(b)(F) ("kidnapping in the first degree as defined in ORS 163.235"). 13 To illustrate: A, assisted by B, commits a felony crime. In the course and furtherance of that crime, A kills someone, and B has no involvement in causing the victim's death. B, nevertheless, can be found guilty of felony murder. See, e.g., State v. Zweigart, 344 Or 619, 633-34, 188 P3d 242 (2008) (defendant's planning of robbery, during which the victim was killed, was sufficient to convict defendant of felony murder). An affirmative defense is available, so guilt may also depend on whether B raises and proves that defense. See ORS 163.115(3) (it is an affirmative defense to felony murder that the defendant was not the only participant to the underlying crime, did not commit or assist in the homicidal act, was not armed, and had no reasonable ground to believe that another participant was armed and intended to engage in an act likely to cause someone's death). 16 on a proper legal theory, given these facts, is not a complete answer to the harmless error 1 issue. The question remains whether the jury also could have convicted defendant of 2 felony murder on a legally incorrect theory, pursuant to the erroneous natural and 3 probable consequences instruction. We conclude, as did the Court of Appeals, that the 4 jury could have done so. 5 As noted, felony murder requires the jury to find that a participant in one of 6 several specified felonies caused the victim's death "in the course of and in furtherance of 7 the crime that the person was committing or attempting to commit[.]" ORS 8 163.115(1)(b).14 The requirement that the homicide be in the course and furtherance of 9 the predicate felony is a familiar concept from the common-law crime of felony murder. 10 As one authority describes it, 11 "whether there is a sufficient causal connection between the felony and the 12 homicide depends on whether the defendant's felony dictated his [or a 13 coparticipant's] conduct which led to the homicide. If it did, and the 14 matters of time and place are not too remote, the homicide may be 'in the 15 commission of' the felony; but if it did not, it may not be." 16 Wayne R. LaFave, 2 Criminal Law § 14.5(f), 466 (2d ed 2003); see generally State v. 17 Rose, 311 Or 274, 285, 810 P2d 839 (1991) ("Something more than a mere coincidence 18 of time and place, however, is necessary to show that the homicide occurred 'in the 19 course of and in furtherance of' the felony. There must have been some causal 20 14 The statute also reaches a murder committed during "immediate" flight after the crime or its attempt, ORS 163.115(1)(b), but that theory is not involved in this case. 17 relationship between the robbery and the homicide."). Whether the felony was 1 completed, terminated, or withdrawn from -- any of which can be sufficient to break the 2 causal connection between the felony and the homicide -- generally depends on whether 3 the homicide is incidental to the felony or part of a continuing sequence of events. See 4 generally Erwin S. Barbre, Annotation, What Constitutes Termination of Felony for 5 Purpose of Felony-Murder Rule, 58 ALR 3d 851 (1974) (collecting cases).15 That 6 determination ordinarily is a question of fact for the jury. Id. § 5, 874-76 (collecting 7 representative cases); see also Charles E. Torcia, 2 Wharton's Criminal Law § 151 (15th 8 ed 1994) (stating general rule). 9 Here, if the jury believed defendant's testimony, the jury could have found 10 that defendant's participation in the predicate felony offenses (burglary and kidnapping) 11 ended when defendant got out of the truck at McDonald's and his father drove away with 12 the victim. In effect, defendant could have been found to have withdrawn from the 13 felony in a way sufficient to break, at least for his direct responsibility for felony murder, 14 15 Illustrative cases cited in the article that reflect that general approach, which appears to be universal, include: State v. Brown, 7 Or 186, 209 (1879) (felony murder may be found where the predicate felony and the homicide parts are of "one continuous act"); State v. Johnson, 182 NC App 63, 68, 641 SE2d 364, 368 (2007) (murder can be found to be in course of felony if "there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is part of a series of incidents which form one continuous transaction[]") (internal quotation marks omitted); State v. Harris, 589 NW2d 782, 792 (Minn 1999) ("So long as the underlying felony and the killing are part of one continuous transaction, it is irrelevant whether the felony took place before, after, or during the killing."). See also State v. Pratt, 125 Idaho 546, 557-58, 873 P2d 800, 811-12 (1993) (felony murder can be found if killing is committed as part of a "stream of events" that began with predicate felony). 18 the series of otherwise continuous events that culminated in the victim's death. Under a 1 correct understanding of the law, the jury, if it so concluded, then would have acquitted 2 defendant on the felony murder charges. 3 The erroneous instruction, however, could have led the jury to nevertheless 4 find defendant guilty by concluding that, although defendant did not commit felony 5 murder because he withdrew from the underlying felony, his father independently 6 continued the felony and committed the victim's murder in the course of it, thus 7 committing felony murder. The jury could have further concluded that the father's felony 8 murder was the natural and probable consequence of defendant's earlier participation in 9 the felonies, for which the jury had found defendant responsible either as a principal or an 10 accomplice. The jury, using the erroneous instruction, then could have found defendant 11 criminally responsible for the felony murder that his father committed. If the jury 12 reasoned through the felony murder charges in that way -- which it could have on this 13 record -- the jury's verdict would be based on a legally incorrect theory. The erroneous 14 instruction was therefore prejudicial to defendant on the felony murder convictions. 15 In sum, we conclude the uniform instruction at issue here, Uniform 16 Criminal Jury Instruction 1051, incorrectly advises that a defendant can be criminally 17 responsible for any other crime that is a natural and probable consequence of a crime that 18 a defendant aided in committing. It was error for the trial court to give that instruction. 19 We further conclude that the error prejudiced defendant on his convictions for assault, 20 felony murder, and aggravated murder, and we therefore reverse those convictions. We 21 conclude, however, that the error did not prejudice defendant on his convictions for first- 22 19 degree burglary and first-degree kidnapping. We therefore affirm those convictions. 1 The decision of the Court of Appeals is reversed in part and affirmed in 2 part. The judgment of the circuit court is reversed, and the case is remanded for further 3 proceedings. 4

5d3a47e0d85befcb8246f522be64040f9af0ba46e29e505614316989eb2725c8

2011-08-25T00:00:00Z

c1e72324-7908-4c54-b157-38944ce834b4

State v. Heisser

S058335

oregon

Oregon Supreme Court

Filed: March 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. DAVID LINN HEISSER,aka David Linn Dauphine, Respondent on Review. (CC 200522450; CA A131308; SC S058335) On review from the Court of Appeals.* Argued and submitted November 10, 2010. Paul L. Smith, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were John R. Kroger, Attorney General and Mary H. Williams, Solicitor General. Robin A. Jones, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With her on the brief was Peter Gartlan, Chief Defender. Before, De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, JJ.** DE MUNIZ, C. J. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. *Appeal from Lane County Circuit Court, Jack A. Billings, Judge. 232 Or App 320, 222 P3d 719 (2009). **Gillette, J., retired on 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. DE MUNIZ, C. J. The issue in this case is whether defendant and the state entered into a plea agreement, and if so, the terms of that agreement. The parties executed a written plea agreement providing that, at sentencing, the state was "free to seek [upward] departure sentences" within certain limits and, in turn, defendant was "free to seek presumptive sentences." At sentencing, defendant challenged the timeliness of the state's notice of intent to seek upward departure sentences. The trial court concluded that the plea agreement barred defendant from making that argument. The trial court also concluded that there had been no "meeting of the minds" between the parties, because they each subjectively held different understandings about the plea agreement's meaning. For that reason, the trial court withdrew defendant's previously entered guilty pleas and set the case for trial. Defendant was found guilty by a jury and was sentenced to a longer period of incarceration than would have been permitted under the plea agreement. Defendant appealed, and the Court of Appeals reversed, concluding that the trial court lacked statutory authority to order the withdrawal of defendant's guilty pleas. State v. Heisser, 232 Or App 320, 222 P3d 719 (2009). We allowed the state's petition for review and now affirm the Court of Appeals, albeit on different grounds. On review, we conclude that the trial court applied an incorrect legal standard when it concluded that there was no "meeting of the minds" between the parties and ordered the withdrawal of defendant's guilty pleas. Instead, we hold that the parties entered into an effective plea agreement and that defendant's challenge regarding the timeliness of the state's notice to seek upward departure sentences did not violate the terms of the plea agreement. The facts relevant to this court's review are undisputed. Defendant was indicted on one count of first-degree robbery, two counts of second-degree theft, and one count of unauthorized use of a vehicle. Before trial, a judge facilitated plea negotiations between defendant and the state.(1) Those plea negotiations resulted in a written plea agreement, which was drafted by the prosecutor. The agreement provided that defendant would plead guilty to both counts of second-degree theft, to the single count of unauthorized use of a vehicle, and to the lesser-included offense of third-degree robbery. Regarding defendant's sentence, paragraph 8 of the plea agreement stated, in part: "The state is free to seek departure sentences that total no more tha[n] 50 months prison on the felony offenses. The defense is free to seek presumptive sentences and all concurrent sentences which would result in as little as 13 months prison." With regard to defendant, the written plea agreement also stated that: "No one has made any threats to me or promises other than the plea agreement to get me to enter this plea. My plea of guilty is not based on any representations other than those outlined in this petition." Both the prosecutor and defendant signed the agreement. On December 13, 2005, the parties appeared at a hearing before the judge who had facilitated the agreement. At that hearing, the prosecutor proffered the written plea agreement, which, he represented, "covers our negotiations in this matter." The prosecutor reiterated that "the details of these negotiations are contained in the plea petition." That judge accepted defendant's guilty pleas. The judge then stated that "I have been bound by these negotiations which will leave you * * * the option to argue for less than the State's going to be arguing for." A hearing was held before the same judge on the morning of December 15. That hearing apparently was not recorded. It is uncontested, however, that a dispute arose between the state and defendant regarding proof of an aggravating circumstance that would justify upward departure sentences. Although defendant waived his right to have that issue decided by a jury, defendant refused to stipulate to the existence of the aggravating circumstance. Later on December 15, the parties appeared before another judge for trial on the disputed aggravating factor and for sentencing. At that hearing, defense counsel asserted that the state had failed to give defendant timely notice that it intended to rely on an "enhancement fact" to increase defendant's sentence, as required under ORS 136.765.(2) Specifically, defendant contended that the notice had not been given "after" the filing of the accusatory instrument, as provided by ORS 136.765, because the notice had been filed before the indictment had been issued. That judge rejected defendant's argument. However, sua sponte, the judge invited the state to withdraw from the plea agreement. The judge stated: "I don't mean that to dismiss [defendant's] argument. It's actually a creative and a good argument, in -- not in any moral sense, but in the sense that it's his job to do his job as a lawyer. And it would concern me enough that I would be, if the State wanted to say that with that argument out there hanging on appeal, that the circumstances of the negotiations weren't acceptable to it anymore, and it just wanted to start back to square one, I would be willing to say let him withdraw his [plea] and start back to square one, and let's have a trial and see what happens. But I'm prepared to rule denying [defendant's argument], and I'll give the State its choice as to what it wants to do at this point." The state, in turn, asserted that defendant's argument regarding the timeliness of the notice was "clearly contrary to what was contemplated by the parties in this particular negotiation[], and unless defense counsel's willing to withdraw the plea [sic], I think that this matter should just be reset on the trial docket." When defense counsel expressed some confusion, the judge asserted that the state was arguing as follows: "He [the prosecutor] says that * * * your legal objection to enhanced sentencing is not consistent with the negotiations. He's moving that there's not a meeting of minds in terms of the plea, and he's moving to ask that your plea of guilty be withdrawn and you be permitted to go to trial on the whole thing." The prosecutor clarified that he so moved only "to the extent that they are going to continue with this objection that they're raising." Defendant refused to withdraw his argument about the lack of timely notice, contending that the terms of the agreement did not bar him from making that legal argument. The judge stated that he was "treat[ing] this as a motion by the State pursuant to ORS 135.365,[(3)] and any other statutes that might be applicable to cause the defendant to withdraw his plea." The judge then ruled: "Here, it appears to the State and to the Court that the defendant is proceeding in a manner which is not consistent either with the plea agreement or, quite frankly, the interests of justice. And accordingly, the plea of guilty previously entered will be withdrawn. A plea of not guilty is entered on behalf of the defendant. And again, I believe the Court has that right." The next day defendant filed a motion for specific performance of the plea agreement. Defendant contended that the plea agreement was a plain and unambiguous contract and that he had fully performed his obligations under it. Defendant's motion for specific performance was heard by a third judge. Before that judge, defendant asserted that the written plea agreement did not limit the arguments that he could make in challenging the state's attempt to obtain upward departure sentences; therefore, he could challenge the timeliness of the state's notice of intent to seek upward departure sentences. That judge rejected defendant's assertion: "* * * I don't think you can say that [a restriction on the scope of arguments] wasn't in the plea petition because it's there implicitly in paragraph eight when it says that [the prosecutor] can argue for a departure sentence. Well, then that -- or they're free to seek a departure sentence. "Then that to me, and to [the judge that facilitated the agreement], and I believe to [the prosecutor], meant that you weren't going to then say later: Oh, but we're not agreeing to that departure factor and we want a trial on that. Or you didn't * * * give the notice the right way." The court also stated: "[I]f the State is free to argue for 50 months then they're free to argue for it. That's what you bargained for." The court also held that, because the prosecutor had a different subjective understanding than did defendant, there had been no "meeting of the minds" and therefore the parties had not entered into a plea agreement, stating: "This isn't a game of gotcha. Okay? And that's what upset [the judge who facilitated the agreement] so much about this. It seems clear that the parties expected that the State would be free to ask for up to 50 months, and it seems clear to me that everybody in the room, except maybe your client, expected that you wouldn't be making a timeliness objection or any other kind of objection to that departure allegation notice that had been filed." The judge later stated: "I've talked to [the judge who facilitated the agreement] about this. I've reviewed what happened in court with him. I know what happened in court with me. And I don't think there's any question that there was not a meeting of the minds. And if -- that's very clear to me. That's very clear beyond any question. There was no meeting of the minds."(4) That judge concluded that, because there was no meeting of the minds, there was no plea agreement that could be specifically enforced. The judge offered defendant the opportunity to enter again into the plea agreement, with the understanding that the agreement would not allow defendant to object to the timeliness of the notice, provided that defendant agreed to again enter guilty pleas. Defendant refused the judge's offer and the case was set for trial. Trial began the next day, January 5, 2006. At that time, defendant moved to reinstate his guilty pleas, contending that they had been improperly withdrawn. He also moved to dismiss the first-degree robbery charge, asserting that his guilty plea to third-degree robbery had placed defendant in double jeopardy as to that count. The trial court denied both motions. A jury found defendant guilty on all counts. At sentencing, defendant moved to be sentenced in accordance with the plea agreement, with an upper sentence limit of 50 months. The trial court rejected that argument and sentenced defendant to 90 months in prison for first-degree robbery, with a consecutive sentence of 26 months in prison for unauthorized use of a vehicle. Defendant also received 12-month concurrent sentences on each of the two second-degree theft counts. On appeal to the Court of Appeals, defendant asserted that the trial court had erred in withdrawing defendant's guilty pleas. Defendant contended that the plea agreement did not prohibit him from challenging the timeliness of the state's notice of intent to seek upward departure sentences and that the trial court lacked authority to withdraw his guilty pleas over his objection. In a divided opinion, the Court of Appeals agreed with defendant that the trial court lacked authority to withdraw the guilty pleas without defendant's consent. Heisser, 232 Or App 327. The majority concluded that ORS 135.365 does not allow the trial court to withdraw a defendant's guilty plea over the defendant's objection; it grants that authority only to the defendant. Id. at 327-28. The majority declined to reach the state's argument that the trial court had inherent authority to vacate a guilty plea that had been wrongly accepted, because the trial court "did not purport to exercise any inherent authority to vacate or reconsider a previous order." Id. at 329. The majority concluded that the case should be remanded for the trial court to "reinstate defendant's guilty pleas and sentence defendant in accordance with [the] plea agreement." Id. at 332. A dissenting judge asserted that defendant was estopped to obtain relief on appeal, because he had declined the opportunity to reinstate the plea agreement by pleading guilty a second time. Id. at 333-39 (Edmonds, J., dissenting). As noted, we allowed the state's petition for review. The state now concedes that the Court of Appeals correctly concluded that ORS 135.365 did not authorize the trial court to withdraw defendant's guilty plea over defendant's objection. Instead, the state argues in this court that there was no plea agreement because there was no meeting of the minds between the parties. The state also asserts that the trial court retained inherent authority to reconsider its decisions to approve the plea agreement and to accept defendant's guilty plea, just as it has inherent authority to reconsider other orders that it may make. In response, defendant argues that, once a defendant pleads guilty as part of a plea agreement, the trial court cannot withdraw the guilty plea over the defendant's objection, even if the underlying plea agreement is invalid. Defendant also asserts that the plea agreement in this case unambiguously permitted him to challenge the timeliness of the state's notice of intent to seek upward departure sentences, and that the trial court incorrectly concluded that there had not been a "meeting of the minds" that prevented the formation of a plea agreement. For reasons that we will explain, we do not need to decide whether a trial court has inherent authority to reconsider a prior decision to approve a plea agreement and accept a guilty plea as part of a plea agreement between the state and a criminal defendant. That is so because, even if the trial court had that authority, the trial court erred in this case in determining that the parties had not reached a plea agreement. We conclude that the trial court applied the wrong legal standard in determining whether there had been a "meeting of the minds" with respect to the plea agreement. Contrary to the trial court's understanding, the "meeting of the minds" of the parties requires an examination of the objective representations of the parties, not their subjective or unspoken intents. Applying the correct standard, we reject the trial court's conclusion that the plea agreement prohibited defendant from challenging the timeliness of the state's notice to seek upward departure sentences. We agree with defendant that the text of the plea agreement did not foreclose defendant from making that argument. We begin by first examining the nature of plea agreements and their role in our judicial system. As both the United States Supreme Court and this court have explained, plea agreements are crucial to the proper functioning of the criminal justice system. See Santobello v. New York, 404 US 257, 260-61, 92 S Ct 95, 30 L Ed 2d 427 (1971) (characterizing plea agreements as both "essential" and "highly desirable"); State v. McDonnell, 310 Or 98, 103, 794 P2d 780 (1990) ("the legislature [has] concluded that plea negotiation is an essential component of an efficient and effective judicial system"). The ability to resolve criminal charges through plea agreements offers numerous benefits both to the criminal justice system as a whole and to criminal defendants in particular. Some benefits of the use of plea agreements include: "It eases the administrative burden of crowded court dockets; it preserves the meaningfulness of the trial process for those cases in which there is a real basis for disputes; it furnishes defendants a vehicle to mitigate the system's harshness, whether the harshness stems from callous infliction of excessive punishment or from the occasional inequities inherent in a system of law based upon general rules; and it affords the defense participation in and control over an unreviewable process that often gives the appearance of fiat and arbitrariness." William F. McDonald, Plea Bargaining: Critical Issues and Common Practices 4 (1985) (internal quotation marks and citation omitted); see also Santobello, 404 US at 261 (articulating other benefits of plea agreements, including the "prompt and largely final disposition of most criminal cases" and "avoid[ing] much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial"). Since 1973, an Oregon prosecutor's authority to enter into plea negotiations and plea agreements has been "formally organize[d] and control[led]" by statute. McDonnell, 310 Or at 102-03. As part of a plea agreement, the prosecutor may give concessions to the defendant in exchange for a plea of guilty or no contest. ORS 135.405(3).(5) Those concessions can include, among others, agreeing to seek dismissal of other charges if a defendant pleads guilty to a charged offense; agreeing to seek dismissal of the charged offense if defendant pleads guilty to another reasonably related offense; and agreeing to make favorable recommendations on sentencing. Id. If the parties reach a tentative plea agreement, the nature of the agreement must be disclosed to the trial judge no later than the time at which the defendant enters a plea of guilty. See ORS 135.390(2) (2005) (nature of the agreement must be disclosed to the trial judge at the time of tendering a plea); ORS 135.432(2) (2005) (explaining the circumstances under which the nature of the agreement may be disclosed to the trial judge prior to the tender of the plea).(6) The statutory scheme governing plea agreements contemplates different kinds of agreements. Under certain plea agreements the trial judge must give the plea agreement "due consideration," but is not bound by the agreement as to sentencing and may make an independent determination as to the appropriate sentence to be imposed. ORS 135.432(4). However, in other plea agreements approved by the trial court, the court is required to "impose sentence as provided in the agreed disposition recommendation" provided for in the plea agreement. ORS 135.390(4)(a).(7) In that kind of agreement, should the judge conclude that the sentencing concessions in a plea agreement are inappropriate, "the [judge] shall so advise the parties and allow the defendant an opportunity to withdraw the plea." ORS 135.390(4)(b); see also ORS 135.432(3) (to the same effect when the trial judge has been informed of the nature of the agreement prior to the plea being tendered and originally concurred in the outcome). Although this court has not specifically addressed the proper method for interpreting a plea agreement, contract law generally (but not invariably) controls. As the United States Court of Appeals for the Fourth Circuit has stated: "In the process of determining whether disputed plea agreements have been formed or performed, courts have necessarily drawn on the most relevant body of developed rules and principles of private law, those pertaining to the formation and interpretation of commercial contracts." United States v. Harvey, 791 F2d 294, 300 (4th Cir 1986) (citation omitted). See McDonnell, 310 Or at 114-16 (Fadeley, J., concurring in part and dissenting in part) (providing list of authorities applying contract law to plea agreements); Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, 5 Criminal Procedure § 21.2(d), at 602-05 (3d ed 2007) (citing authorities). Contract law is not necessarily the beginning or the end of the analysis, however. Criminal cases involve constitutional and statutory rights not ordinarily found in contracts between private parties, and those rights at times may override contractual principles. See Harvey, 791 F2d at 300-01 (so explaining). Thus, for example, a defendant's signature on a written plea agreement is not necessarily sufficient to create a binding agreement; the trial court still may not accept the guilty plea without first determining that the plea is "voluntarily and intelligently made." ORS 135.390(1) (court cannot accept a guilty plea without so determining); see ORS 135.390(4)(a) (in specific case of a plea agreement, "the court shall determine whether the plea is voluntarily made").(8) In this case, the trial court analyzed the plea agreement in terms of contract law and decided that the agreement was not enforceable, because there was no "meeting of the minds." The term "meeting of the minds" is a "much-abused metaphor" that one commentator has suggested should be "abandoned" for purposes of clarity. E. Allan Farnsworth, I Farnsworth on Contracts § 3.6, at 209, 209 n 2 (3d ed 2004); see also Lawrence M. Friedman, A History of American Law 245 (1973) (noting that the phrase "'meeting of the minds' * * * must not be taken too literally"). The requirement of a "meeting of the minds" is in fact simply the requirement that there be mutual assent to the terms of the agreement. See Bennett v. Farmers Ins. Co., 332 Or 138, 148, 26 P3d 785 (2001) (noting that mutual assent "historically was considered as the 'meeting of the minds' requirement"); Arthur Linton Corbin, 1 Corbin on Contracts § 4.13 (Joseph M. Perillo ed., rev ed 1993) (discussing relationship between mutual assent and "meeting of the minds"). As Corbin on Contracts notes, an enforceable contract does not necessarily require a "meeting of the minds": "There is no actual 'meeting of the minds,' even though the terms of the bargain are reduced to writing and signed by both parties, if one of them did not in fact read or understand the written terms. Yet the signatory is generally bound." Id. at § 4.13, at 636 (footnote omitted). In Kitzke v. Turnidge, 209 Or 563, 307 P2d 522 (1957), this court discussed the misleading nature of the term "meeting of the minds." In that case, the trial court had refused to give a jury instruction regarding "meeting of the minds" that seemingly directed "that each of the two parties had to have in mind the same idea and intent before the jury could find that they effected a contract." Id. at 572-73. This court concluded that such an instruction would have erroneously stated the legal standard: "The law of contracts is not concerned with the parties' undisclosed intents and ideas. It gives heed only to their communications and overt acts." Id. at 573. "'Agreement consists of mutual expressions; it does not consist of harmonious intentions or states of mind.'" Id. (quoting Corbin on Contracts § 19). See also Kabil Developments Corp. v. Mignot, 279 Or 151, 154-57, 566 P2d 505 (1977) (discussing objective and subjective theories of contract, and concluding ultimately that the correct test for contract formation was "of manifested assent regardless of subjective intent"). "When considering a written contractual provision, the court's first inquiry is what the words of the contract say, not what the parties say about it." Eagle Industries, Inc. v. Thompson, 321 Or 398, 405, 900 P2d 475 (1995). Accordingly, courts should first "examine[] the text of the disputed provision, in the context of the document as a whole. If the provision is clear, the analysis ends." Yogman v. Parrott, 325 Or 358, 361, 937 P2d 1019 (1997).(9) The meaning of an unambiguous contractual provision is a question of law. See Valenti v. Hopkins, 324 Or 324, 331, 926 P2d 813 (1996) ("As a general rule, the construction of a contract is a question of law. Unambiguous contracts must be enforced according to their terms * * *."); Eagle Industries, 321 Or at 405 ("In the absence of an ambiguity, the court construes the words of a contract as a matter of law."). The determination whether a contractual provision is ambiguous also is a question of law. Valenti, 324 Or at 331-32; Eagle Industries, 321 Or at 405. In this case, we conclude that the trial court applied an incorrect legal standard when it determined that the parties' differing subjective understandings of the plea agreement meant that there was no "meeting of the minds." Both parties here signed an unambiguous written plea agreement.(10) We conclude that there was mutual assent to the terms of the agreement -- that the parties did have a "meeting of the minds" as that term is correctly understood -- and the trial court erred in concluding that there was no plea agreement.(11) Having concluded that the parties did enter into an enforceable plea agreement, we now must determine the terms of the agreement. The trial court determined that the written plea agreement prohibited defendant from arguing against the timeliness of the state's notice to seek upward departure sentences. We come to the opposite conclusion. As noted, the plea agreement stated: "The state is free to seek departure sentences that total no more tha[n] 50 months prison on the felony offenses. The defense is free to seek presumptive sentences and all concurrent sentences which would result in as little as 13 months prison." The trial court reasoned that the state's right to seek upward departure sentences impliedly limited the arguments that defendant could make in response to the state's argument. However, the state's entitlement to seek upward departure sentences was no guarantee that the court would impose them. Nothing in the text of the agreement prohibited defendant from pointing out any mistakes the state might have made in laying the groundwork for upward departure sentences. Nor does anything in the agreement limit the legal or factual arguments that defendant could make in favor of presumptive sentences and against departure sentences. Defendant's agreement to permit the state to argue for a longer sentence did not waive his opportunity to make counterarguments supporting a shorter sentence. We must give effect to all provisions of the plea agreement. Under those provisions, the state was free to seek upward departure sentences, and defendant was free to oppose them. Defendant argued that the state's failure to give timely notice legally prohibited the state from obtaining upward departure sentences. Nothing about that argument kept the state from seeking upward departure sentences, although it might have kept the state from obtaining them. The trial court was free to evaluate both parties' arguments based on the applicable law and to rule accordingly. In this case, the only real issue was a simple question of contract interpretation: Did the plea agreement allow defendant to challenge the timeliness of the notice? We have concluded that the trial court erred in holding that the plea agreement barred defendant from making the lack-of-notice argument. We also have concluded that the trial court applied an incorrect legal standard when it sua sponte concluded that, because the prosecutor had a different understanding of the agreement than did the defendant, there was no "meeting of the minds" and therefore the parties had not reached a plea agreement. As a result, the trial court erred in withdrawing defendant's guilty pleas. The order withdrawing defendant's guilty pleas and the subsequent judgment of conviction and sentence are reversed. We remand for the trial court to reinstate defendant's original guilty pleas and to conduct a sentencing hearing in accordance with the terms of the plea agreement. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. 1. A judge (other than the trial judge) "may participate in plea discussions." ORS 135.432(1)(b) (2005). "Participation by a judge in the plea discussion process shall be advisory, and shall in no way bind the parties." Id. 2. ORS 136.765 provides, in part: "In order to rely on an enhancement fact to increase the sentence that may be imposed in a criminal proceeding, the state shall notify the defendant of its intention to rely on the enhancement fact by: "* * * * * "(2) Within a reasonable time after filing the accusatory instrument, providing written notice to the defendant of the enhancement fact and the state's intention to rely on it." 3. ORS 135.365 provides: "The court may at any time before judgment, upon a plea of guilty or no contest, permit it to be withdrawn and a plea of not guilty substituted therefor." 4. Evidence of the facilitating judge's understanding of the agreement eventually became part of the record. Counsel met with that judge and the parties subsequently stipulated "that [the judge who facilitated the agreement] had the understanding that the prosecution was free to argue for departure sentences without legal impediment." 5. ORS 135.405 provides, in part: "(3) The district attorney in reaching a plea agreement may agree to, but is not limited to, one or more of the following, as required by the circumstances of the individual case: "(a) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or no contest to the offense charged; "(b) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or no contest to another offense reasonably related to the defendant's conduct; or "(c) To seek or not to oppose dismissal of other charges or to refrain from bringing potential charges if the defendant enters a plea of guilty or no contest to the offense charged." 6. Both ORS 135.390 and ORS 135.432 were amended in 2009. Or Laws 2009, ch 356, § 1; Or Laws 2009, ch 178, § 33. Those amendments are not relevant to this decision, and all references are to the 2005 version of those statutes. 7. Because of the 2009 amendment, former ORS 135.390(4) today is numbered ORS 135.390(5). See Or Laws 2009, ch 356, § 1 (adding a new subsection (3) to the statute). 8. The requirement that a defendant's guilty plea be "voluntarily and intelligently made," could impose a subjective element, outside of contract law, regarding a defendant's internal understanding of the meaning and consequences of the plea agreement. However, that issue is not before us, and we express no opinion regarding it. 9. That method of interpretation has a statutory basis. See ORS 42.230 (courts interpreting written documents are "not to insert what has been omitted, or to omit what has been inserted"); ORS 41.740 (the parole evidence rule limits the circumstances under which courts may consider anything other than the terms of a written contract to determine its meaning). 10. Because we conclude that the plea agreement here was unambiguous, we need not address the consequences if the plea agreement had contained an ambiguous term. 11. 1In rare cases, a party's unilateral mistake as to the meaning of the contract will justify rescission in equity. As this court has explained: "We believe that in this State an offer and an acceptance are deemed to effect a meeting of the minds, even though the offeror made a material mistake in compiling his offer, provided the acceptor was not aware of the mistake and had no reason to suspect it. But if the offeree knew of the mistake, and if it was basic, or if the circumstances were such that he, as a reasonable man, should have inferred that a basic mistake was made, a meeting of the minds does not occur." Rushlight Co. v. City of Portland, 189 Or 194, 244, 219 P2d 732 (1950). The mistake at issue must be one of fact. See Gardiner v. Meiling, 280 Or 665, 674-75, 572 P2d 1012 (1977) ("A mistake justifying rescission must be a misapprehension as to a fact which is material and basic to the agreement."). Furthermore, the mistake must be basic: It must be "fundamental in character," relating to a "'[f]undamental [a]ssumption'" or "'the intrinsic nature of the bargain.'" See Shop. Centers v. Stand. Growth Prop., 265 Or 405, 422-23, 509 P2d 1189 (1973) (quoting Williston, 13 Contracts § 1544, at 94 (3d ed)) (discussing doctrine of mutual mistake). Here, the state would not be entitled to relief under that doctrine. The prosecutor was not mistaken as to any underlying facts. As we will explain, he was apparently mistaken as to the legal effect of the plea agreement. Additionally, the prosecutor's mistake was not basic. Even under the prosecutor's understanding of the agreement, he knew that the state was not guaranteed upward departure sentences and that defendant would be arguing for lesser sentences. Under those circumstances, defendant's ability to challenge the timeliness of the state's notice was neither "basic" nor "fundamental" to the agreement.

78362134bc716ac9cf679a3547cf22321a620c34565233cc8639c524e1d83ec2

2011-03-10T00:00:00Z

2e110a7a-73fd-404e-931f-19fe815041d1

Morehouse v. Haynes

S058725

oregon

Oregon Supreme Court

Filed: May 19, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON FRANCIS DALE MOREHOUSE, Petitioner on Review, v. JAMES COLIN HAYNES, Respondent on Review. (CC 0609-09915; CA A136871; SC S058725) On review from the Court of Appeals* Argued and submitted March 3, 2011. Kathryn H. Clarke, Portland, argued the cause for petitioner on review. Jess M. Glaeser, Portland, filed the brief. Ralph C. Spooner, Spooner & Much, P.C., Salem, argued the cause for respondent on review. Dan R. Schanz and Melissa J. Ward filed the brief. Kathryn H. Clarke, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** BALMER, J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. De Muniz, C. J., concurred and filed an opinion. *Appeal from Multnomah County Circuit Court, O. Meredith Wilson, Judge Pro Tempore, decided summary judgment motion; Dale Koch, Judge, signed the judgment. 235 Or App 482, 234 P3d 1024 (2010). **Landau, J., did not participate in the consideration or decision of this case. BALMER, J. The issue in this case is whether the record before the trial court on summary judgment shows that there was no genuine issue of material fact that would provide a basis for a reasonable juror to find that defendant drove recklessly. Plaintiff was injured when his car collided with defendant's car. Plaintiff brought this action seeking economic and noneconomic damages. Because plaintiff was driving without insurance at the time of the collision, an Oregon statute bars him from recovering noneconomic damages unless he can prove that defendant's conduct that caused plaintiff's injuries met the statutory definition of reckless driving. See ORS 31.715(1), (5)(c) (so providing). Defendant moved for partial summary judgment on plaintiff's claim for noneconomic damages, and the trial court granted the motion, holding that no reasonable juror could conclude that defendant had driven recklessly. The parties settled the claim for economic damages, and the trial court, based on its summary judgment order, entered a general judgment in favor of defendant. Plaintiff appealed and, in a divided en banc opinion, the Court of Appeals affirmed. Morehouse v. Haynes, 235 Or App 482, 234 P3d 1024 (2010). For the reasons that follow, we reverse and remand to the trial court. We take the facts from the summary judgment record and view those facts and all reasonable inferences that may be drawn from them in the light most favorable to plaintiff, the nonmoving party. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 332, 83 P3d 322 (2004). Plaintiff was driving north on Highway 219 between Newberg and Hillsboro, and defendant was driving south on the same road when defendant's car crossed into the oncoming lane of traffic and struck plaintiff's car on a sharp curve. A yellow cautionary sign preceded the curve as defendant approached, showing a 90-degree turn to the left, followed by a 90-degree turn to the right.(1) A smaller yellow cautionary sign below the sign depicting the turns suggested a speed of 25 miles per hour.(2) Following the cautionary signs, and before the second turn (the right turn), three separate rectangular warning signs with right-hand arrows indicated the sharpness of that turn. The posted speed limit on Highway 219 is 45 miles per hour. As defendant was making the right turn, his car crossed the center line and collided with plaintiff's car. The officer who took defendant's statement after the collision recorded that defendant "said that he was going up the hill at 45 to 50 mph as he entered the curve. He looked down to attend his radio and when he looked up he was heading over the center line. He tried to brake but slid across into the opposite lane." At his deposition, defendant testified that he had traveled the same route between Hillsboro and Newberg approximately 20 times in the month preceding the collision. Defendant stated that he knew that the portion of the road where the collision occurred was twisty and curvy and that he was aware that slow moving farm vehicles, bicycles, pedestrians, and other passenger vehicles used the highway. Regarding the curve where the collision occurred, defendant did not recall the sharpness of the curve from his previous trips on Highway 219 nor did he recall the cautionary speed sign, although he did remember seeing the right-hand arrows indicating the sharpness of the curve. Regarding the collision itself, defendant testified: "I was driving along and at the speed limit, and I looked down. I looked down for a second. I looked up and I realized the curve was coming up. I didn't feel it was a dire situation at all. I put the brakes on. I saw a curve develop. I was going in tangent with the curve and my brakes, and that's when I went across the line * * *." Plaintiff, who admits that he was driving uninsured at the time of the collision, brought this action seeking economic and noneconomic damages. As noted, defendant filed a motion for partial summary judgment, asserting that ORS 31.715 barred plaintiff from recovering noneconomic damages because plaintiff was driving while uninsured.(3) Plaintiff responded that he could recover noneconomic damages under the exception set out in ORS 31.715(5)(c), which allows a plaintiff to recover noneconomic damages if the defendant was driving recklessly. The trial court granted defendant's motion, holding that no reasonable juror could conclude that defendant's driving was reckless, and subsequently entered judgment for defendant. The Court of Appeals affirmed in a divided en banc opinion. The majority began by describing the applicable statutory scheme. Under ORS 31.715(1), an uninsured motorist may not recover noneconomic damages for injuries caused by another driver unless certain exceptions apply. One exception allows an uninsured plaintiff to recover noneconomic damages if the defendant was driving in a way that constitutes a violation of ORS 811.140,(4) which prohibits reckless driving.(5) A defendant violates ORS 811.140 if he or she "recklessly drives a vehicle upon a highway * * * in a manner that endangers the safety of persons or property." The definition of "recklessly," for purposes of ORS 811.140, is taken from the criminal code and focuses on whether the person is "aware of and consciously disregards a substantial and unjustifiable risk." ORS 161.085(9). The majority next observed that no appellate case had previously applied the "reckless driving" exception to the ban on the recovery of noneconomic damages in ORS 31.715. In the absence of directly relevant case law, the majority relied on cases evaluating claims brought under Oregon's now-defunct guest passenger statute, which barred a guest passenger's claim against the driver unless the driver's conduct constituted gross negligence. See ORS 30.115 (1977), amended by Or Laws 1979, ch 866, § 7. Gross negligence and recklessness were synonymous under the guest passenger statute. Williamson v. McKenna, 223 Or 366, 387-89, 354 P2d 56 (1960). Under the definition of "recklessly" enacted by the legislature in 1971 as part of a general revision of the criminal code -- and used by ORS 811.140 as the mental state for reckless driving -- recklessness requires a higher mental state than gross negligence did under the guest passenger statute. See State v. Hill, 298 Or 270, 279, 692 P2d 100 (1984) (so stating). To be "reckless," a defendant must be "aware of and consciously disregard[ ]" the applicable risk. ORS 161.085(9). The majority reasoned that if specific conduct did not rise to the level of gross negligence in the guest passenger cases, then similar conduct could not be reckless under the higher statutory standard. Morehouse, 235 Or App at 487. The majority then examined two guest passenger cases where this court determined that the defendant's conduct did not rise to the level of gross negligence. In Burghardt v. Olson, 223 Or 155, 349 P2d 792, adh'd to on recons, 223 Or 198, 354 P2d 871 (1960), this court overturned a jury verdict for the plaintiff because evidence that the defendant exceeded the suggested speed limit by 20 miles per hour around a gentle curve that the defendant had driven several times before was not sufficient to prove gross negligence. Id. at 206-07. Similarly, in Bland v. Williams, 225 Or 193, 357 P2d 258 (1960), the defendant was speeding on a foggy night when he took his eyes off the road to adjust his radio. The defendant drove off the road and crashed, and his passenger brought an action against him for damages. Id. at 195-96. The summary judgment record indicated that the defendant had caused the accident by adjusting his radio; no evidence suggested that either speed or fog played a role. Although the defendant was heedless of the risks of adjusting the radio while driving, the evidence was insufficient to prove gross negligence. Id. at 199. Based on Bland and Burghardt, the majority in this case determined that defendant exhibited the same sort of heedlessness by taking his eyes off the road and exceeding the recommended speed coming into the turn. Specifically, the majority determined that Bland was directly on point because the primary cause of the accident in that case -- the defendant taking his eyes off the road to adjust the radio -- was the same conduct at issue in this case. Thus, if adjusting the radio could not prove gross negligence as a matter of law in Bland, then defendant's conduct could not prove recklessness, a higher standard, on the similar facts in this case. Morehouse, 235 Or App at 490. The majority concluded: "Defendant failed to drive with reasonable care by keeping his eyes on the road, which is to say defendant was negligent. Defendant's negligent driving, however, was not reckless driving." Id. The dissent argued that the question of recklessness should have gone to the jury, because defendant's knowledge of the road, his speed, and his decision to adjust the radio as he entered the curve could lead a reasonable juror to conclude that defendant was aware of, and consciously disregarded, the substantial and unjustifiable risk of crossing the center line and colliding with an oncoming vehicle. Further, the dissent asserted that Bland was distinguishable because nothing in the evidence in that case indicated that either the speed of the car or the foggy conditions contributed to the collision; rather, the defendant's adjusting of the radio was the only negligent act that caused the accident. Morehouse, 235 Or App at 491-92 (Rosenblum, J., dissenting). The dissent suggested that, in contrast here, defendant's speed directly contributed to the collision, as did defendant's decision to adjust his radio while entering a sharp curve. Taking the facts -- the sharpness of the turn, defendant's prior knowledge of the road, his speed, and his choice to adjust the radio -- in the light most favorable to plaintiff, a reasonable juror could find defendant's behavior to be reckless. Id. at 492. On review, plaintiff renews his argument that determining whether defendant was "reckless," as that term is defined in ORS 161.085(9), involves an inquiry into defendant's state of mind, and, on these facts, whether defendant was "aware of and consciously disregard[ed]" the risk of driving too fast into what he knew to be a sharp turn, while adjusting the radio, is a disputed material fact. Plaintiff also takes issue with the majority's use of cases decided under the guest passenger statute. In plaintiff's view, the majority should have emphasized the record in this case (and all reasonable inferences the jury could draw from that record) and applied the statutory recklessness standard to those facts, rather than comparing defendant's conduct to roughly similar facts in prior cases. Defendant responds that his conduct was merely negligent under Burghardt and Bland. Even aside his reliance on those cases, defendant asserts that there is no evidence in the record from which the jury could infer that he was subjectively aware of and consciously disregarded the risk of endangering persons or property in the moments before the accident. Defendant testified that he did not remember the sharpness of the curve where the accident occurred, and he notes that plaintiff offered no evidence to contradict that testimony. Defendant also relies on the fact that the police officer who responded to the accident cited defendant for crossing the center line -- a violation -- rather than for reckless driving, a Class A misdemeanor. Thus, defendant asserts that he made only ordinary driving errors that resulted in foreseeable harm to plaintiff, viz., that he was negligent. Even if the risk from his conduct was "substantial and unjustified," as required by ORS 161.085(9), defendant argues that the lack of evidence showing that he consciously disregarded that risk means that his conduct cannot, as a matter of law, be a "gross deviation from the standard of care that a reasonable person would observe in the situation," as that statute also requires. Because the parties and the Court of Appeals rely so heavily on the guest passenger cases, we begin with them. In both Burghardt and Bland, the evidence demonstrated that defendant's failure to exercise reasonable care had resulted in the collision, but in each case this court held that the plaintiff had failed to prove that gross, rather than ordinary, negligence caused plaintiff's injuries. In Burghardt, the defendant crashed after rounding a gentle curve -- which was preceded by a cautionary sign showing a 45-degree curve and suggesting a speed of 45 miles per hour -- at 20 miles per hour above the recommended speed. 223 Or at 189, 206-07. The defendant had driven the road where the accident occurred several times. Id. at 162. The plaintiff, however, presented no evidence that the defendant was distracted or that the curve in the road was sharp. Id. at 200, 206. Similarly, in Bland, the defendant looked down to adjust the radio and drove off the road. Although the night was foggy and the defendant was travelling at 60 miles per hour, the evidence did not suggest that the condition or direction of the road or any factor other than defendant's distraction caused defendant to leave the road, leading to the accident. Bland, 225 Or at 199. Similarly, defendant here argues that his distraction by adjusting the radio as he entered the curve was the primary cause of the accident and, because that conduct in Bland was held not to rise to the level of gross negligence, that conduct cannot constitute recklessness. The summary judgment record here, however, contains evidence, not present in Burghardt or Bland, of defendant's mental state and of the dangers of the road on which he was driving that would permit a reasonable juror to find that defendant was aware of and consciously disregarded the substantial and unjustifiable risk that he might cross the center line and collide with another vehicle. Specifically, the record demonstrates that defendant was far more familiar with this stretch of road than the defendant in Burghardt; that the road itself contained sharp curves that defendant knew about, including the sharp turn where the collision occurred; that cautionary signs (a sign depicting a 90-degree left-hand turn followed by a 90-degree right-hand turn; a sign showing a recommended speed of 25 miles per hour; and directional arrows) preceded the curve; that defendant drove into the sharp curve at 45-50 miles per hour; and that defendant then was looking away from the road to adjust the radio. Because there is substantially more evidence as to the sharp turn in the road itself and as to what defendant knew about the road and its hazards than in Burghardt and Bland, those cases are not sufficiently similar to this case to help determine whether a jury could find that defendant's driving was reckless under ORS 161.085(9), a statutory standard that did not exist when those cases were decided. We therefore turn to that statutory standard. As noted, ORS 31.715(1) bars a plaintiff who was driving uninsured and was injured by another driver from recovering noneconomic damages from that driver. However, it creates an exception to that prohibition if the other driver "recklessly drives * * * in a manner that endangers the safety of persons or property." ORS 811.140. See ORS 31.715(5)(c) (creating exception to ORS 31.715(1) if defendant "was engaged in conduct that would constitute a violation of ORS 811.140 * * *"). That statute, in turn, adopts the definition of "recklessly" that is used in the criminal code: "'Recklessly' * * * means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." ORS 161.085(9); see ORS 811.140(2) (cross-referencing definition of "recklessly"). Thus, the legislature, in determining a tort law policy -- when an uninsured driver may, or may not, recover noneconomic damages from another driver -- has directed us to use the mental state of "recklessly" that applies to criminal statutes using that term. In doing so, the legislature distinguished between circumstances where an uninsured plaintiff was injured by another driver's negligence -- the driver's failure to exercise reasonable care in the circumstance -- and those where the other driver's conduct met the more culpable mental state of "recklessness." In applying that statutory standard to the facts here, we do so in light of the procedural posture of this case, namely, that we are reviewing the trial court's decision to grant defendant's motion for summary judgment. Summary judgment shall be granted if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law." ORCP 47 C. No genuine issue of material fact exists if "no objectively reasonable juror could return a verdict for the adverse party * * *." Id. Here, the parties do not disagree about the interpretation of any of the applicable statutes, nor is there any real dispute about the objective facts leading to the collision -- defendant's familiarity with the road; the sharp turn in the road itself; defendant's speed; defendant's distraction by the radio; and the warning signs. Rather, the parties dispute the permissible inferences a reasonable juror could draw from those objective facts, and, specifically, whether the jury could find recklessness under ORS 161.085(9) by inferring that defendant was "aware of and consciously disregard[ed]" the risk presented by his driving and that the risk of endangering the safety of persons or property was "substantial and unjustifiable." For the reasons we discuss below, we conclude that the summary judgment record raises questions of material fact regarding those issues. We first consider whether a jury could find that defendant was "aware of and consciously disregard[ed]" the risk posed by his conduct. See ORS 161.085(9) (stating standard). That element of recklessness is subjective and will rarely be susceptible to direct proof; it often must be inferred (or not) from objective facts. See State v. Rose, 311 Or 274, 282, 810 P2d 839 (1991) (mental state is "rarely, if ever, proven by direct evidence"). Defendant had travelled Highway 219 between Hillsboro and Newberg approximately 20 times in the preceding month. Defendant testified that he was aware that slow-moving vehicles, bicycles, pedestrians, and oncoming traffic could be present. He acknowledged that the road was twisty and curvy and remembered seeing the directional arrows preceding the turn. In response to defendant's motion for summary judgment, plaintiff submitted photographs of the cautionary signs and of the curve where the accident occurred, as well as an aerial map of the location showing a series of twists and turns. Despite defendant's testimony that he did not remember the sharpness of the particular curve where the accident occurred, a jury could find, based on defendant's familiarity with the road and the clearly visible "reverse turn" sign, advisory speed sign, and directional arrows, that defendant's testimony on that issue was not credible. A reasonable jury could instead infer that defendant was, in fact, aware of the sharpness of the turn and the attendant risk of endangering the safety of persons or property when driving at a speed far in excess of the advisory speed around that turn. Accordingly, the summary judgment record shows that a disputed issue of material fact exists regarding defendant's awareness of the risk. Similarly, a jury could find that defendant "consciously disregard[ed]" the risk posed by his conduct, as that phrase is used in the definition of "recklessly." Again, defendant argues that his testimony establishes that he did not disregard the risk of crossing the center line but simply miscalculated the speed at which the curve could be negotiated. Although a jury could reach that conclusion, in our view a reasonable jury also could find, based on defendant's knowledge of the road and the evidence of the cautionary signs and the physical features of the curve, that defendant's testimony on that issue was not credible and could infer that defendant consciously disregarded the risk of endangering persons or property by driving into the curve at 45-50 miles per hour and choosing to adjust his radio at that moment. Thus, the summary judgment record shows that a disputed issue of material fact exists regarding whether defendant consciously disregarded the risk. The second aspect of the statutory definition of "recklessly" that we must consider is whether the risk that defendant may have been "aware of and consciously disregard[ed]" was a "substantial and unjustified risk" of endangering persons or property, and whether disregarding that risk would be a "gross deviation" from the standard of care that a reasonable person would observe in the circumstances. We note that a violation of the reckless driving statute does not require that there be a substantial risk of the consequence that actually occurred as a result of defendant's conduct here -- colliding with plaintiff. A person can, of course, be guilty of reckless driving even if there is no collision. As defined in ORS 161.085(9), "'recklessly' means that a person 'is aware of and consciously disregards a substantial and unjustifiable risk' that a result described by a criminal statute will occur, or that a circumstance identified by a criminal statute exists." State v. Crosby, 342 Or 419, 429, 154 P3d 97 (2007) (emphasis added). The reckless driving statute, ORS 811.140, identifies the result or circumstance applicable here -- "endanger[ing] the safety of persons or property" -- as the risk created by defendant's driving in the manner that he did, and not necessarily the specific consequence of causing a collision.(6) Defendant acknowledges that he was negligent: that his driving deviated from the standard of care applicable to drivers because he failed to drive in such a manner as to avoid reasonably foreseeable harm to plaintiff. Defendant, however, contends that his conduct was not a "gross deviation" from that standard, based on Burghardt and Bland. We reject that argument, for the reasons set out above. As noted, defendant also relies on the fact that the officer who responded to the accident did not cite defendant for reckless driving. That fact, however, is not dispositive: ORS 31.715(5)(c) requires that defendant's conduct "would constitute a violation" of the reckless driving statute; but it does not require that defendant actually be charged with or convicted of reckless driving for the exception to apply. For those reasons, we disagree with defendant that his conduct, as a matter of law, was only negligent. This court has repeatedly expressed its hesitance to turn "fact-specific decisions regarding negligence and foreseeability into rules of law," Bailey v. Lewis Farm, Inc., 343 Or 276, 289, 171 P3d 336 (2007) (citing Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 16, 734 P2d 1326 (1987), and that caution is appropriate here as well. Similar difficulties are involved in determining as a matter of law whether a risk of endangering persons or property is "substantial and unjustified," as required by ORS 161.085(9). Although a driver's negligence can endanger persons and property, and a person who drives in a manner that endangers (or would be likely to endanger) any person or property has committed the traffic violation of careless driving, ORS 811.135, the "recklessness" standard imposes a higher bar. To be "reckless," the driver's conduct must not only "endanger the safety of persons or property," see ORS 811.140(1) (defining crime of reckless driving), but the driver must also have been aware of and consciously disregarded "a substantial and unjustifiable risk" of doing so. Moreover, the next sentence of the statutory definition provides that "[t]he risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." ORS 161.085(9). Again, the explicit contrast between the standard of care that a "reasonable person" would exercise and the "gross deviation" from that standard that constitutes "recklessness" emphasizes the heightened standard that the legislature has established for a plaintiff to come within the exception in ORS 31.715(5)(c). Nevertheless, in our view, a reasonable juror could find that, where the road itself had sharp turns, with which defendant was very familiar, for defendant to enter a sharp turn while exceeding the advisory speed by 20-25 miles per hour and tuning the radio created a substantial and unjustifiable risk to the safety of persons or property and that disregarding that risk was a "gross deviation" from what a reasonable driver would do in the same situation. If a reasonable driver, knowing what defendant knew, would follow the cautionary signs and keep his eyes on the road while negotiating what the signs warned him was a sharp turn, then a jury could find that defendant's conduct sufficiently deviated from that standard so as to make the risk of harm to persons and property "substantial and unjustified." Defendant may be correct that he did not drive recklessly, but only negligently. The jury is not required to draw the inferences that it is permitted to draw, and defendant may convince the jurors that he was not aware of and did not "consciously disregard" the risks created by his conduct. Those arguments, however, are for the jury. The facts in this summary judgment record do not permit the court to decide those issues as a matter of law. Defendant warns that if this summary judgment is not affirmed, then every allegation of recklessness in an uninsured driver case like this will create an issue of fact for the jury, thereby increasing the costs of litigation and settlement. Such a result, defendant argues, would frustrate the legislature's intent to deny uninsured motorists noneconomic damages. We disagree. Although dividing negligence from recklessness can be difficult in particular cases, the line does exist, and it sometimes can be drawn on a summary judgment record. ORCP 47, however, permits summary judgment only when there is no genuine dispute regarding an issue of material fact. On this record, a reasonable juror could find each element of reckless driving in plaintiff's favor. Thus, disputed issues of material fact exist, and summary judgment should not have been granted. 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. DE MUNIZ, C. J., concurring. I concur in the court's opinion. I write separately, however, to emphasize that our holding is a narrow one; it does not, in my view, herald any sort of expansion in the area of criminal law. In this case, the issue concerns defendant's mental state. Defendant contends that he was negligent, while plaintiff asserts that defendant was reckless. Those mental states represent two distinct states of mind. Negligence is the least demanding; it requires only that the defendant should have known about a risk.(1) Criminal negligence similarly considers whether the defendant should have known about the risk, but it also requires that the risk be a "gross deviation from the standard of care that a reasonable person would observe in the situation." ORS 161.085(10).(2) Recklessness demands proof of a different and more culpable mental state. Although the nature of the risk is the same as for criminal negligence ("a gross deviation from the standard of care that a reasonable person would observe"), the standard is no longer what the defendant should have known; instead, a defendant must have been "aware of and consciously disregard[ed]" that risk. ORS 161.085(9).(3) Although the mental state categories are seemingly well defined, they are not so in practice.(4) Both negligence and criminal negligence involve what a defendant knew or should have known, the only difference being whether the risk involved a "gross deviation from the standard of care that a reasonable person would observe in the situation" -- a distinction that can be a jury question. Recklessness might seem to have a clearer boundary because it requires a subjective mental state ("aware of and consciously disregards a substantial and unjustifiable risk"). However, the line between that mental state and criminal negligence can be ephemeral in practice. Only rarely will a defendant admit to having consciously disregarded a risk of which he or she was aware. Absent that admission, a defendant's conscious disregard can only be determined by inference, in light of the nature of the act and the nature of the risk. When conscious disregard must be determined by inference, the line between what a defendant actually knew and what the defendant should have known can lose its clear boundaries. Again, it can be up to a jury to decide whether to draw that inference. The absence of a clear dividing line between negligence, criminal negligence, and recklessness can create a danger, however. The absence of a clear dividing line could encourage the following overhasty generalization: If "gross deviation" is a jury question, and if "conscious disregard" is a jury question, then any negligent act automatically creates a jury question as to whether a defendant's conduct was reckless. That danger is particularly important in this context, because recklessness and criminal negligence are mental states for the purpose of the Oregon Criminal Code. Both mental states are threaded throughout Oregon's criminal statutes. See, e.g., ORS 163.005(1) (definition of criminal homicide includes the mental states "recklessly" and "criminal negligence"); ORS 163.118(1)(d) (first-degree manslaughter includes the mental states "recklessly" and "criminal negligence"); ORS 163.145(1) (criminally negligent homicide uses the mental state "criminal negligence"); ORS 163.149(1) (aggravated vehicular homicide uses the mental states "criminal negligence" and "recklessly"); ORS 164.325(1)(a)(B), (C) (first-degree arson includes the mental state "recklessly"). While juries must decide the mental state question on some fact patterns, that does not mean that only juries may decide that question in all cases. Despite the difficulties, courts have an important responsibility to draw the necessary distinctions in appropriate cases. When it appears to a trial court on an appropriate motion that no rational juror could find that a defendant "consciously disregard[ed] a substantial and unjustifiable risk," or that the risk constituted "a gross deviation from the standard of care that a reasonable person would observe in the situation," then the trial court can and should exercise its authority to grant summary judgment in civil cases or a judgment of acquittal in criminal cases. See ORCP 47 C (in a civil case, the court should grant summary judgment if "no objectively reasonable juror could return a verdict for the adverse party"); State v. Mejia, 348 Or 1, 6, 227 P3d 1139 (2010) (on motion for judgment of acquittal in a criminal case, the question is "whether * * * any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (internal quotation marks and citation omitted)). We have concluded that, on these facts, a jury question regarding recklessness has been presented for purposes of this civil case. The bench and bar should be wary of reading this opinion to say anything more than that. I concur. 1. That cautionary sign is identified in the federal guidelines for highway signs, which have been adopted by Oregon, OAR 734-020-005(1), as a "reverse turn" sign. Fed. Highway Admin., Manual on Uniform Traffic Control Devices at 2C-7 to 2C-8 (2003 ed) (hereinafter Federal Manual) (emphasis added). It is distinguished from a "reverse curve" cautionary sign, which depicts curves of 45 degrees, rather than 90 degrees. Although the signs do not necessarily reflect the exact angle of the turn or curve, they generally reflect the alignment of the road and must "be based on an engineering study, or an engineering judgment." Id. at 2C-1. Specifically, the "reverse turn," rather than the "reverse curve," is to be used where the advisory speed for negotiating the turn is 30 miles per hour or less. Id. at 2C-8. Return to previous location. 2. Speeds posted on yellow cautionary signs are advisory, whereas speeds posted on white regulatory signs reflect the speed limit designated by law. See Federal Manual at 1A-12, 1A-14, 2A-7 (explaining sign meanings); OAR 734-020-005(1) (adopting federal guidelines for highway signs). Return to previous location. 3. ORS 31.715 provides, in relevant part: "(1) Except as provided in this section, a plaintiff may not recover noneconomic damages, as defined in ORS 31.710, in any action for injury or death arising out of the operation of a motor vehicle if the plaintiff was in violation of ORS 806.010 [driving while uninsured] * * * at the time the act or omission causing the death or injury occurred. A claim for noneconomic damages shall not be considered by the jury if the jury determines that the limitation on liability established by this section applies to the claim for noneconomic damages. "* * * * * "(5) The limitation on liability established by this section does not apply if: "* * * * * "(c) The defendant was engaged in conduct that would constitute a violation of ORS 811.140 [defining reckless driving] at the time the act or omission causing the death or injury occurred[.]" Return to previous location. 4. ORS 811.140 provides, in relevant part: "(1) A person commits the offense of reckless driving if the person recklessly drives a vehicle upon a highway or other premises described in this section in a manner that endangers the safety of persons or property. "(2) The use of the term 'recklessly' in this section is as defined in ORS 161.085." Return to previous location. 5. ORS 31.715(5)(c) does not require that the defendant be charged with or convicted of reckless driving. Return to previous location. 6. The reckless driving exception in ORS 31.715(5)(c) requires that defendant's reckless driving have "caus[ed]" the injury that the plaintiff sustained. That requirement, however, is distinct from the risk defined in the reckless driving statute, ORS 811.140. Return to previous location. 1. See, e.g., Stoeger v. Burlington Northern Railroad Co., 323 Or 569, 579-80, 919 P2d 39 (1996) (trial court should not have granted summary judgment for the defendant on a common-law negligence claim; the evidence created a genuine issue of material fact whether the defendant "knew or should have known" that a railroad switch was defective); Moore v. Willis, 307 Or 254, 258-61, 767 P2d 62 (1988) (to avoid judgment on the pleadings against a negligence claim, a plaintiff who asserts that "a risk was foreseeable, though not necessarily foreseen, * * * must allege facts that would allow the factfinder to conclude that the defendant should have known of the risk"). Return to previous location. 2. That statute defines "criminal negligence" for purposes of the Oregon Criminal Code. It provides: "'Criminal negligence' or 'criminally negligent,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." Return to previous location. 3. ORS 161.085(9) defines "recklessly" for purposes of the Oregon Criminal Code: "'Recklessly,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." Return to previous location. 4. This court has previously noted this difficulty: "[T]here is no magic verbal formula which will describe with precision the difference between negligence and reckless conduct. The concept of fault itself is difficult to explain. To draw a line between one type of fault and another and to describe the difference is even more difficult. In fact, it has been asserted that such a distinction cannot be drawn; that the effort to distinguish negligence and reckless conduct is futile because it is an attempt 'to separate two unknowns, neither of which is capable of being identified.' Burrell, A New Approach to the Problem of Wilful and Wanton Misconduct, 1949 Ins LJ 716, 717. But certainly there are differences in the gravity of fault and the fact that the difference cannot be precisely stated should not preclude us from administering a scheme of liability which is based upon the seriousness of the actor's misconduct." Williamson v. McKenna, 223 Or 366, 394, 354 P2d 56 (1960). Return to previous location.

b7ba11703f05b443ae92654751eb5572ebadec6eb7d69c810750244f145c5cd6

2011-05-19T00:00:00Z

d5d0804b-bb2d-440b-b4bf-ce5dae5a27bf

State 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. 1 KISTLER, J. 1 Trial courts may impose enhanced sentences in criminal cases when an 2 aggravating factor provides a substantial and compelling reason for doing so. OAR 213- 3 008-0001. The sentencing guidelines list some aggravating factors that trial courts may 4 consider. See OAR 213-008-0002(1). Trial courts, however, also may rely on 5 aggravating factors that are not listed (nonenumerated aggravating factors) to impose an 6 enhanced sentence. See id. Defendant has argued throughout this litigation that, to the 7 extent the sentencing guidelines permit the use of nonenumerated aggravating factors, 8 they either violate the separation of powers provision of the Oregon Constitution or are 9 vague in violation of the Oregon and the United States Constitutions. The trial court 10 disagreed and imposed an enhanced sentence based on nonenumerated aggravating 11 factors. The Court of Appeals affirmed the trial court's judgment without opinion. State 12 v. Speedis, 233 Or App 297, 225 P3d 152 (2010). We allowed defendant's petition for 13 review to consider this recurring issue and now affirm the Court of Appeals decision and 14 the trial court's judgment. 15 As a matter of state law, three related sets of statutes govern sentencing. 16 See State v. Dilts, 336 Or 158, 161-63, 82 P3d 593 (2003) (Dilts I) (explaining state 17 sentencing statutes).1 The first statute establishes maximum indeterminate sentences for 18 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, 2 felonies. See ORS 161.605. That statute provides, for example, that the maximum 1 sentence for a Class B felony is 10 years. Id. Before 1989, if a defendant was convicted 2 of a Class B felony, the trial court was free to set the defendant's sentence anywhere 3 within that 10-year range. The evidence that a trial court could consider in selecting the 4 appropriate sentence within that range was broad, and the trial court had wide latitude to 5 determine the appropriate sentence based on the seriousness of the offense and the 6 character of the offender. See State v. Stewart/Billings, 321 Or 1, 9, 892 P2d 1013 (1995) 7 (describing pre-1989 sentencing); State v. Scott, 237 Or 390, 399-400, 390 P2d 328 8 (1964) (identifying the seriousness of the offense and the character of the offender as the 9 relevant criteria at sentencing). 10 That latitude sometimes led to disparate sentences for similarly situated 11 defendants, and, in 1985, the Oregon legislature created what is now known as the 12 Oregon Criminal Justice Commission to develop recommendations for providing greater 13 uniformity in sentencing. Dilts I, 336 Or at 161. In 1989, the commission adopted rules 14 (sentencing guidelines) that set presumptive sentences for crimes based on the general 15 seriousness of the offense and the specific offender's criminal history. Id. at 161-62.2 16 ________________________ 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 The presumptive sentence for each crime falls within the range set by the maximum 1 indeterminate sentence for that crime.3 For example, the maximum indeterminate 2 sentence for second-degree assault (one of the crimes for which defendant was convicted) 3 is 10 years. ORS 161.605(2). The sentencing guidelines provide that, for a person with 4 defendant's criminal history, the presumptive sentence for that crime is 37 to 38 months. 5 See OAR 213-004-0001 (App 1). 6 The presumptive sentence sets a target sentence within the range that the 7 indeterminate sentencing statutes permit, and trial courts retain "'discretion to deviate 8 [from the presumptive sentence] for substantial and compelling reasons.'" Dilts I, 336 Or 9 at 172 (emphasis omitted; quoting OAR 213-002-0001(2)). That is, although the 10 guidelines start from the premise that the presumptive sentence ordinarily will be the 11 appropriate sentence, they recognize that the two factors that go into the presumptive 12 sentence -- the general seriousness of the offense and the specific offender's criminal 13 history -- may not always capture either the seriousness of a particular offense or all the 14 relevant aspects of an offender's character. See Oregon Criminal Justice Council, Oregon 15 Sentencing Guidelines Implementation Manual 123-25 (1989) (so stating). Accordingly, 16 the guidelines list nine mitigating and 12 aggravating factors that will justify imposing 17 either a lesser or a greater sentence than the presumptive sentence. OAR 213-008- 18 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 0002(1). 1 Some of those mitigating and aggravating factors go to the seriousness of 2 the offense. For example, if the harm or loss attributable to a particular offense is either 3 significantly less or significantly greater than is typical, the guidelines permit a court to 4 impose either a downward or an upward departure sentence. See OAR 213-008- 5 0002(1)(a)(G) (downward departure); OAR 213-008-0002(1)(b)(J) (upward departure). 6 Other factors go to the character or culpability of the specific offender. For example, if a 7 defendant acted with a diminished mental capacity, a court may impose a lesser sentence. 8 OAR 213-008-0002(1)(a)(C). Conversely, if a defendant has been "[p]ersistent[ly] 9 involv[ed] in similar offenses or repetitive assaults," a court may impose a greater 10 sentence than the presumptive sentence. OAR 213-008-0002(1)(b)(D). The guidelines 11 recognize that, in that case, a more severe sentence may be necessary both to deter the 12 defendant and to protect society. 13 Finally, the guidelines provide that the list of specific mitigating and 14 aggravating factors is "nonexclusive." OAR 213-008-0002(1). That is, the guidelines 15 recognize that case-specific factors may arise in individual cases that bear on either the 16 seriousness of the offense or the character of the offender that the Criminal Justice 17 Commission did not anticipate. The guidelines accordingly permit trial courts to consider 18 whether nonenumerated, case-specific mitigating or aggravating factors exist that provide 19 a substantial and compelling reason for imposing either a downward or an upward 20 departure sentence. See id. 21 In 2005, the legislature enacted a third set of statutes that establish 22 5 procedures for determining whether, in a particular case, an aggravating factor exists that 1 will warrant an enhanced sentence. See ORS 136.760 to 136.792. Under that law, the 2 prosecutor must identify any aggravating factor (enumerated or nonenumerated) that 3 provides a basis for seeking an upward departure sentence and give the defendant 4 reasonable written notice of that factor. See ORS 136.765. The defendant may elect to 5 have a jury find whether that factor is present. See ORS 136.770 (governing aggravating 6 factors that "relat[e] to an offense charged in the accusatory instrument"); ORS 136.773 7 (governing aggravating factors that "relat[e] to the defendant").4 If the trier of fact finds 8 beyond a reasonable doubt that an aggravating factor that the prosecutor has identified 9 exists, then the trial court may enhance a defendant's sentence if it concludes that that 10 aggravating factor provides a substantial and compelling reason for doing so. See State v. 11 Upton, 339 Or 673, 679, 125 P3d 713 (2005). 12 In this case, the jury convicted defendant of three crimes: first-degree 13 burglary, second-degree assault, and third-degree assault. Before the jury returned its 14 verdict, the prosecutor notified defendant that, in the state's view, eight aggravating 15 factors applied in this case. Of those eight aggravating factors, the jury was ultimately 16 asked to determine whether four of them were present: (1) defendant was on supervision 17 when he committed the current crimes; (2) prior criminal justice sanctions had failed to 18 deter defendant from committing crimes; (3) defendant committed this crime while on 19 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). 6 release status with other criminal charges pending; and (4) defendant had demonstrated a 1 disregard for laws and rules, making successful probation unlikely. Each of those factors 2 is a nonenumerated aggravating factor. 3 After considering additional evidence at a separate sentencing hearing, the 4 jury found that the state had proved beyond a reasonable doubt each of those four 5 aggravating factors. The trial court then determined that each aggravating factor, 6 standing alone, provided a substantial and compelling reason for imposing enhanced 7 sentences on defendant's convictions for first-degree burglary and second-degree assault. 8 The trial court sentenced defendant to 72 months in prison rather than the presumptive 9 sentence of 37 to 38 months on the second-degree assault conviction. It also sentenced 10 him to 72 months in prison rather than the presumptive sentence of 37 to 38 months on 11 the first-degree burglary conviction and ordered that those sentences would run 12 concurrently.5 The court did not impose a sentence on defendant's conviction for third- 13 degree assault but ruled that defendant's sentence for that offense merged into his 14 sentence for second-degree assault.6 15 Throughout this litigation, defendant has argued that a trial court may not 16 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 rely on nonenumerated aggravating factors to impose an enhanced sentence. Doing so, 1 he reasons, violates the separation of powers provision of the Oregon Constitution. See 2 Or Const Art III, § 1 (allocating governmental power among the legislative, executive, 3 and judicial departments). Additionally, defendant contends that, to the extent the 4 sentencing guidelines permit prosecutors to base a request for an enhanced sentence on 5 nonenumerated aggravating factors, the guidelines are vague in violation of Article I, 6 sections 20 and 21, of the Oregon Constitution and the Due Process Clause of the United 7 States Constitution. We begin with defendant's separation of powers argument. 8 Article III, section 1, of the Oregon Constitution provides: 9 "The powers of the Government shall be divided into three seperate [sic] 10 departments, the Legislative, the Executive, including the administrative, 11 and the Judicial; and no person charged with official duties under one of 12 these departments shall exercise any of the functions of another, except as 13 in this Constitution expressly provided." 14 A separation of powers claim under this section may turn on one of two issues. 15 MacPherson v. DAS, 340 Or 117, 134, 130 P3d 308 (2006). The first issue is "whether 16 one department of government has 'unduly burdened' the actions of another department" 17 in carrying out its core functions. Id. The second issue is "whether one department has 18 performed functions that the constitution commits to another department." Id. Defendant 19 does not contend that, in relying on nonenumerated aggravating factors, the judiciary has 20 unduly burdened the legislature's ability to carry out its core functions. Rather, defendant 21 argues that, in determining whether nonenumerated aggravating factors provide 22 substantial and compelling reasons for imposing an enhanced sentence, the judiciary is 23 exercising a power that the constitution has entrusted to the legislature. 24 8 Defendant's argument fails to distinguish two related but separate lines of 1 authority. This court has recognized that "[d]etermining the range of possible sentences 2 for particular crimes historically has been a legislative, rather than a judicial, function." 3 State ex rel Huddleston v. Sawyer, 324 Or 597, 615, 932 P2d 1145 (1997). Consistently 4 with that principle, the court has explained that, "[w]hen a court acts beyond the bounds 5 of its sentencing authority, it infringes upon the power of the legislature to determine the 6 manner of punishment." State v. Leathers, 271 Or 236, 240, 531 P2d 901 (1975). 7 Conversely, this court has recognized that determining where within a legislatively 8 prescribed range a particular defendant's sentence falls historically has been a judicial 9 function. See Stewart/Billings, 321 Or at 9 (explaining that sentencing courts 10 traditionally have considered a range of case-specific factors that bear on both the offense 11 and the offender in determining the appropriate sentence within legislative limits); Scott, 12 237 Or at 399-400 (same).7 13 In relying on nonenumerated sentencing factors to decide whether to 14 impose an upward or downward departure sentence, a trial court is not acting "beyond the 15 bounds of its sentencing authority" and thus is not infringing on the legislature's authority 16 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). 9 to set sentencing limits. Cf. Leathers, 271 Or at 240. Rather, it is acting within the limits 1 that the legislature has set, Dilts I, 336 Or at 171, and it is exercising a trial court's 2 traditional authority to determine, within statutory limits, the specific facts and 3 circumstances that will result in a sentence designed to fit both the offense and the 4 offender. If trial courts historically had broad discretion to determine the appropriate 5 sentence within the wide range that indeterminate sentencing statutes permitted, it is 6 difficult to see why a trial court's exercise of that same discretion within the narrower 7 range that the sentencing guidelines permit constitutes an unconstitutional exercise of 8 legislative authority.8 9 Defendant's contrary argument, as we understand it, rests on the assumption 10 that a presumptive sentence establishes, as a matter of state law, the maximum sentence 11 that a trial court can impose. It follows, defendant contends, that a trial court may not 12 depart from a presumptive sentence unless the legislature either has specified the terms 13 on which a court may depart or has delegated the authority to trial courts to identify those 14 terms. And defendant focuses the majority of his separation of powers argument on the 15 claim that, in authorizing the use of nonenumerated sentencing factors, the legislature has 16 failed to provide a constitutionally sufficient delegative standard. 17 One problem with defendant's separation of powers argument is the 18 assumption that underlies it. As this court explained in Dilts I, the legislature did not 19 intend that presumptive sentences would mark the outer limits of a trial court's sentencing 20 8 As our reasoning makes clear, our resolution of defendant's separation of powers argument focuses on and is limited to sentencing issues. 10 authority. 336 Or at 171. Rather, the court held that, as a matter of state law, 1 "neither the wording nor the structure of the sentencing guidelines or the 2 related statutes support [the] defendant's assertion that the legislature 3 intended the presumptive sentences in the sentencing guidelines to 4 constitute the statutory maximum sentences for the offenses to which they 5 apply." 6 Id.9 Not only does a presumptive sentence not define the outer boundaries of a trial 7 court's sentencing authority, as defendant's argument assumes, but the sentencing 8 guidelines expressly authorize trial courts to decide whether nonenumerated aggravating 9 and mitigating factors warrant imposing a greater or a lesser sentence than a presumptive 10 sentence. Id. at 175-76. In imposing a departure sentence based on nonenumerated 11 aggravating factors, a trial court is not acting beyond the bounds of its sentencing 12 authority * * *." Cf. Leathers, 271 Or at 240. Rather, it is acting within the limits that 13 the legislature has set. See Dilts I, 336 Or at 171, 175. Defendant's separation of powers 14 argument provides no reason for holding the trial court's use of nonenumerated 15 sentencing factors unconstitutional. 16 Defendant argues alternatively that, to the extent the guidelines permit 17 reliance on nonenumerated aggravating factors in deciding whether to impose an 18 enhanced sentence, the guidelines are vague in violation of Article I, sections 20 and 21, 19 of the Oregon Constitution and the Due Process Clause of the Fourteenth Amendment. 20 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. 11 Specifically, defendant argues that nonenumerated aggravating factors: (1) do not 1 provide fair notice to defendants of the circumstances that will result in a greater 2 sentence, and (2) give prosecutors unfettered discretion to decide, after the fact, the 3 circumstances that will result in a greater sentence. 4 Before turning to defendant's arguments, it is helpful to put them in context. 5 The jury found beyond a reasonable doubt that each of the four nonenumerated 6 aggravating factors that the prosecutor had identified was present, and defendant does not 7 contend that the record does not support the jury's findings. Nor does defendant 8 challenge the trial court's conclusion that each of those factors, standing alone, provided a 9 substantial and compelling reason to impose an enhanced sentence.10 Finally, defendant 10 does not dispute that, before he committed the crimes that resulted in his burglary and 11 assault convictions, the Oregon Court of Appeals had recognized that each of the four 12 nonenumerated aggravating factors that the prosecutor identified in this case provided a 13 basis for imposing an enhanced sentence; that is, even though the sentencing guidelines 14 do not specifically list those four factors, the Court of Appeals had recognized before 15 defendant committed the burglary and assaults that each factor was an aggravating factor 16 within the meaning of the guidelines.11 17 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, 12 With that background in mind, we turn to defendant's argument that the 1 sentencing guidelines are vague in violation of Article I, sections 20 and 21, because they 2 do not give defendants "fair notice" of the circumstances that will result in an enhanced 3 sentence. We note, at the outset, that this court's cases have not always looked in the 4 same direction on the question whether "fair notice" is a component of a state 5 constitutional vagueness analysis. In State v. Graves, 299 Or 189, 197, 700 P2d 244 6 (1985), the court held that the statute prohibiting first-degree burglary was vague in 7 violation of Article I, sections 20 and 21, of the Oregon Constitution because it failed to 8 give defendants fair notice of the conduct that it prohibited. Later, in State v. Chakerian, 9 325 Or 370, 382-84, 938 P2d 756 (1997), the court reaffirmed that fair notice of the 10 elements of a crime is a state constitutional vagueness concern, although the court did not 11 find the statute in that case unconstitutionally vague. 12 More recently, however, the court explained in Delgado v. Souders, 334 Or 13 122, 144 n 12, 46 P3d 729 (2002), that, in referring to fair notice in Graves, the court had 14 incorrectly imported federal due process concerns into state constitutional vagueness 15 analysis. And the court's holding expressly rested on the proposition that "fair notice" is 16 not an aspect of vagueness analysis under Article I, section 20, of the Oregon 17 Constitution. Id. at 146-47.12 Later, the court reaffirmed in State v. Illig-Renn, 341 Or 18 ________________________ 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, 13 228, 239 n 4, 142 P3d 62 (2006), that "[t]he 'fair notice' component of the vagueness 1 analysis is not an issue under the Oregon Constitution." 2 Defendant argues that the discussions of fair notice in Delgado and Illig- 3 Renn were dicta and that we should follow the holding in Graves rather than the dicta in 4 those cases. We read Delgado and Illig-Renn differently. In each case, the court's 5 holding turned on the conclusion that "fair notice" is not an aspect of a state 6 constitutional vagueness analysis; specifically, in each case, the court declined to analyze 7 the defendant's state constitutional vagueness claim to determine whether the challenged 8 statutes provided fair notice of the conduct that they prohibited. Illig-Renn, 341 Or at 9 239-40; Delgado, 334 Or at 146-47. Rather, the only issue that the court identified as 10 encompassed within a state constitutional vagueness claim was whether a statute or rule 11 gave the police, the prosecutor, or the court either "uncontrolled discretion" or "unbridled 12 discretion * * * to decide what is prohibited in a given case." Illig-Renn, 341 Or at 239 13 (quoting Graves, 299 Or at 195). Contrary to defendant's argument, we cannot dismiss 14 the reasoning in Delgado and Illig-Renn as dicta.13 It follows that, in deciding 15 defendant's state constitutional vagueness claim in this case, we consider only whether 16 ________________________ 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 the sentencing guidelines provide an ascertainable standard that guided the prosecutor in 1 identifying which nonenumerated sentencing factors warranted imposition of a departure 2 sentence. See Illig-Renn, 341 Or at 240 (identifying that standard). 3 We refer to the prosecutor's exercise of discretion because, once the 4 prosecutor notified defendant of the specific aggravating facts on which the state intended 5 to rely, the jury and the trial court had a limited role to play. The question for the jury 6 was whether the state had proved beyond a reasonable doubt the specific aggravating 7 factors that the prosecutor had identified. Once the jury found that the state had proved 8 those factors, then the question for the trial court was whether those factors, individually 9 or collectively, provided a substantial and compelling reason for imposing an upward 10 departure sentence. The trial court had no discretion to decide whether other aggravating 11 factors (either enumerated or nonenumerated) might apply. See ORS 136.765 (providing 12 that only the aggravating factors of which the prosecutor has provided notice to the 13 defendant may be used to enhance a sentence). 14 To be sure, in deciding whether the aggravating factors that the jury found 15 provided a substantial and compelling reason for imposing an enhanced sentence, the trial 16 court exercised a limited measure of discretion. See Upton, 339 Or at 680 (explaining 17 that, "even if the jury finds that an aggravating or enhancing factor was proved, the court 18 is not required to order a sentencing departure based on that finding"). But we do not 19 understand defendant to argue that that exercise of discretion injected an element of 20 vagueness into the exercise. Rather, as we understand defendant's argument, he contends 21 that the sentencing guidelines are vague in violation of the state constitution because they 22 15 do not sufficiently limit the prosecutor's discretion to identify, in the first instance, the 1 nonenumerated aggravating circumstances that can result in an enhanced sentence. We 2 turn to that issue. 3 More than 50 years ago, this court rejected a vagueness challenge to an 4 indeterminate sentencing statute. Smallman v. Gladden, 206 Or 262, 276-77, 291 P2d 5 749 (1956). As explained above, indeterminate sentencing statutes gave trial courts 6 broad discretion to sentence defendants within a wide statutory range (in Oregon, 7 anywhere within a 10-year range for Class B felonies and within a 20-year range for 8 Class A felonies). Although Oregon's indeterminate sentencing statutes did not 9 specifically identify any criteria to guide a trial court's exercise of its discretion, this 10 court's cases made clear that two criteria applied: the seriousness of the offense and the 11 character or status of the offender. See, e.g., State v. Biles, 287 Or 63, 72, 597 P2d 808 12 (1979); Scott, 237 Or at 399-400. 13 As explained above, the sentencing guidelines incorporate those same 14 criteria. Not only is the presumptive sentence a product of the seriousness of the offense 15 and the offender's criminal history (one indicator of an offender's character), but the 16 enumerated aggravating and mitigating factors are further specifications of those two 17 criteria. It follows, we think, that those same criteria provide guidance for prosecutors 18 and courts in determining which nonenumerated aggravating or mitigating factors will 19 warrant a departure sentence. Cf. State v. Kurtz, 350 Or 65, 74, 249 P3d 1271 (2011) 20 (explaining that, when a general term is accompanied by a "nonexclusive list of 21 examples," the specific examples shed light on the meaning of the general term). 22 16 Put differently, the same criteria that informed a sentencing court's exercise 1 of its discretion under the indeterminate sentencing statutes apply with equal force to the 2 identification of nonenumerated aggravating and mitigating factors under the sentencing 3 guidelines. If those criteria were sufficient to defeat a vagueness challenge to 4 indeterminate sentencing statutes, we cannot say that those same criteria are not a 5 sufficient check on the prosecutor's discretion to identify nonenumerated aggravating 6 factors. That is particularly true since the sentencing guidelines place further limitations 7 on the exercise of sentencing discretion. They require that any nonenumerated factor 8 provide substantial and compelling reasons for imposing a departure sentence, OAR 213- 9 008-0001, and they prohibit the use of nonenumerated aggravating factors that merely 10 duplicate elements of the offense, that are used to rank the seriousness of the crime in 11 setting the presumptive sentence, or that are a necessary element of a mandatory 12 sentence, OAR 213-008-0002(2) and (3). The discretion that the sentencing guidelines 13 give prosecutors to identify and courts to determine nonenumerated aggravating factors is 14 neither standardless nor unfettered. That aspect of the sentencing guidelines is not vague 15 in violation of Article I, sections 20 and 21, of the Oregon Constitution,14 and we turn to 16 defendant's federal vagueness argument. 17 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). 17 Under the Due Process Clause of the Fourteenth Amendment, a criminal 1 statute will be unconstitutionally vague if it fails to provide "fair warning" of the acts that 2 will expose a person to criminal penalties; that is, a statute must "give [a] person of 3 ordinary intelligence a reasonable opportunity to know what is prohibited so that he [or 4 she] may act accordingly." Illig-Renn, 341 Or at 241 (quoting Grayned v. City of 5 Rockford, 408 US 104, 108, 92 S Ct 2294, 33 L Ed 2d 222 (1972)). As the United States 6 Supreme Court has explained, however, even if an "otherwise uncertain statute," standing 7 alone, would fail to provide constitutionally adequate notice of the acts that expose a 8 person to criminal liability, the statute will satisfy due process if "[a] prior judicial 9 decision has fairly disclosed [the charged conduct] to be within [the statute's] scope." 10 United States v. Lanier, 520 US 259, 266, 117 S Ct 1219, 137 L Ed 2d 432 (1997); 11 accord Rogers v. Tennessee, 532 US 451, 459, 121 S Ct 1693, 149 L Ed 2d 697 (2001) 12 (acknowledging that rule). 13 As explained above, before defendant committed the crimes that gave rise 14 to his burglary and assault convictions, the Court of Appeals had identified each of the 15 four nonenumerated aggravating factors at issue in this case as permissible grounds for 16 imposing an enhanced sentence under the sentencing guidelines. Even if the sentencing 17 guidelines, standing alone, would not provide sufficient notice that those factors would 18 justify an enhanced sentence, those appellate decisions did and, in doing so, satisfied due 19 process. See Lanier, 520 US at 266.15 If those cases provided sufficient notice to 20 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 18 defendants under the Due Process Clause, we think that they also provided sufficient 1 guidance to prosecutors in identifying those aggravating factors that would support the 2 imposition of an enhanced sentence.16 The trial court and the Court of Appeals correctly 3 rejected defendant's state and federal constitutional challenges to the use of 4 nonenumerated aggravating factors. 5 The decision of the Court of Appeals and the judgment of the circuit court 6 are affirmed. 7 ________________________ 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.

821e9b9d2e690bf074f4c49da6096ebb475a577db80cde0dc51bc66d54a6d869

2011-06-30T00:00:00Z

523b3dbc-afd1-4733-bf91-fb403ad642f1

Oregon v. Guggenmos

S057378

oregon

Oregon Supreme Court

Filed: May 5, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. BOBBY LEE GUGGENMOS, Petitioner on Review. (TC 0500398CR; CA A133266; SC S057378) On review from a decision of the Court of Appeals.* Argued and submitted February 19, 2010, at De La Salle North Catholic High School, Portland. Robin A. Jones, Senior 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. Douglas F. Zier, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** DURHAM, 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. Kistler, J., dissented and filed an opinion, in which Linder, J., joined. *Appeal from Klamath County Circuit Court, Richard B. Rambo, Judge. 225 Or App 641, 202 P3d 892 (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. DURHAM, J. Defendant seeks review of a decision of the Court of Appeals that affirmed his conviction for possession of a controlled substance. Defendant contends that the trial court erred in denying his motion to suppress drug-related evidence seized by a police officer from defendant's bedroom following what the state describes as a "protective sweep" of the home in which defendant resided. For the reasons set out below, we conclude that the trial court should have granted defendant's motion to suppress. Accordingly, we reverse the decision of the Court of Appeals and the judgment of the trial court. We take the following facts from the trial court's findings and other record evidence, which we view in the light most favorable to the state. The search at issue occurred on February 9, 2005, when Detective Mogle of the Oregon State Police, acting without a warrant, searched defendant's bedroom in a house located on Third Street in Klamath Falls. According to Mogle's testimony at the hearing on the motion to suppress evidence, an unnamed informant, at some time in the past, had pointed out the house on Third Street to Mogle as a place where people were selling drugs. The informant also had stated that persons in the house hid "wanted people" there. In the past, Mogle had used an informant in an attempt to buy drugs at the house, but the record does not indicate whether that effort was successful. Mogle also believed that the house on Third Street was "associated" with another house on Fifth Street in Klamath Falls. Either Mogle or an informant had seen two men, Monteith and Fonseca, at the Fifth Street house at some unidentified time in the past. According to Mogle, Fonseca "had warrants," i.e., he was the subject of one or more outstanding arrest warrants, but Mogle did not explain the basis of the warrants for Fonseca or why the police had not executed them. Another police officer, Corporal Deese of the Klamath Falls Police Department, testified at the suppression hearing that he had heard from an unidentified source that the Third Street house was a "drug house." Deese also testified that he had had "previous dealings" with one of the residents of the Third Street house, Tidwell. At one point in his testimony, Deese described Tidwell as a felon who was involved with guns, but later acknowledged that he had confused Tidwell with another person with a similar name, and stated that Tidwell was not a felon and had no history of involvement with guns. Deese testified that two of Tidwell's associates, Monteith and Coatsworth, were involved in guns and that he had seen their cars parked near Tidwell's car at an unidentified place and time in the past. Deese also had heard from an unnamed informant that there might be drugs in a certain brown pickup truck. On February 9, 2005, Deese saw the brown pickup truck parked in an alley behind the Third Street house and notified Mogle. Mogle asked Deese to accompany Mogle and another police officer, Morrison, to the Third Street house. Mogle planned to conduct a "knock and talk" contact with any residents to learn, if possible, whether any people with outstanding warrants were present. Mogle had no specific wanted person in mind when he formulated that plan. The police officers drove to the Third Street house. Mogle and Morrison were dressed in plainclothes, not uniforms, and went to the front door; Deese, in uniform, stood outside the back door. Mogle knocked on the front door. After he identified himself and Morrison and displayed a police badge, he was invited inside to the living room. At that point, Tidwell, an adult woman, and a child were present in the living room with Mogle and Morrison. Mogle told Tidwell that he had information that wanted persons might be present and asked to look for them in the house. Tidwell denied that wanted persons were inside the house, and said that only his girlfriend, her child, and someone named "Sam" were there. Tidwell agreed to allow Mogle to search the residence for wanted persons. Mogle asked Tidwell to accompany him in walking through the house, and Tidwell agreed. Tidwell exhibited a cooperative attitude and a conversational tone of voice. At that point, an event occurred that is central to the state's argument, discussed below, that Mogle subsequently searched defendant's bedroom on the basis of a reasonable suspicion that he or others present faced an immediate threat of serious physical injury. As Tidwell and Mogle began walking past a stairway that descended from the kitchen to a back door, Mogle observed two men running or moving quickly down the stairs. Mogle yelled at them to stop.(1) The two men paused briefly and looked at Mogle, but continued down the stairs and out the back door. They encountered Deese beyond the door and stopped. Morrison remained with the woman and child in the living room, and Mogle and Tidwell joined Deese and the others downstairs. Mogle asked the men why they were running but received no answer. Mogle had the following information about the people that he had encountered in the house. Mogle had heard Tidwell's name in the past but he could not recall any official contact with him and had no information that he was a violent person. Mogle recognized one of the two men stopped outside the back door -- defendant -- as someone with whom he had had official contact, but he could not recall the nature of the contact or whether it involved guns or violence. Mogle had not had any previous contacts with the other man, who was later identified as "Sam." Mogle told Deese to "run" defendant and Sam, that is, to obtain their identification and determine whether any outstanding warrants existed for them. Mogle went back inside to "clear" the rooms upstairs in the house to determine whether any other persons might be present. The parties agree that Mogle's action was a "search" within the meaning of Article I, section 9, of the Oregon Constitution. Mogle did not request consent from anyone to search the rooms upstairs or, in particular, the bedroom occupied by defendant, and the state does not contend that Mogle's search of that bedroom was a consent search. Mogle testified that he conducted the search in the interest of officer safety. He pointed out that Tidwell had indicated earlier that only one other person, "Sam," was present in the house, but that, contrary to Tidwell's statement, two men had emerged on the staircase. Mogle was concerned that Tidwell had not been honest about the number of persons present in the house and that Morrison remained in the living room without additional police support. During the search of the upstairs rooms, Mogle looked into the bedroom that defendant occupied and saw in plain view on a table a mirror with white powder residue and straws. Mogle recognized the items as drug paraphernalia and returned downstairs. Deese advised Mogle that an outstanding warrant existed for defendant but that no warrants existed for the other man, Sam. Mogle asked Tidwell for consent to search the house for drugs. Tidwell gave consent for all areas of the house except the bedroom that Mogle had just searched, explaining that that was defendant's bedroom. Mogle advised defendant of his Miranda rights, disclosed what he had seen on the bedroom table, and requested consent to search the bedroom. Defendant gave his consent to a second search and made some incriminating statements. Mogle's subsequent search of the bedroom brought to light a plastic bag that had contained methamphetamine. Mogle seized the mirror, straw, and plastic bag. The state charged defendant with possession of a controlled substance. Before trial, defendant moved to suppress the physical evidence seized from his bedroom and his incriminating statements to Mogle, relying on the search and seizure provisions of the state and federal constitutions.(2) After a hearing, the trial court denied the motion, concluding that Mogle's observation of two men running down the stairs gave rise to a valid officer safety concern and justified a search of the house to determine who else might be present. Further, the court determined that Mogle subsequently obtained valid consent from defendant to search his bedroom for drugs. The trial court admitted the disputed evidence at trial, and defendant was convicted. Defendant appealed. The Court of Appeals concluded that Mogle had "stopped" defendant by ordering him to stop as he descended the stairs. However, the court held that the stop was justified by the totality of the circumstances, including the flight by defendant and "Sam," the informants' reports about harboring wanted persons and past drug activity in the house, and Tidwell's act of misinforming Mogle about the presence of a fourth adult in the house. State v. Guggenmos, 225 Or App 641, 645, 202 P3d 892 (2009). The court also concluded that the circumstances justified Mogle's first entry into defendant's bedroom as part of a protective sweep of the house and that, because the protective sweep was valid, Mogle did not "exploit" an illegality in subsequently obtaining defendant's consent to a second search of his bedroom. Id. at 648-49. On review, defendant contends that the police unlawfully seized him by ordering him to stop as he left the house. Defendant makes the point that the police had no reasonable suspicion, supported by specific and articulable facts, that he had committed or was committing any crime, or was a threat to anyone. Defendant argues that the reports of unnamed informants recited by Mogle and Deese were not shown to be credible or reliable through any form of corroboration and, in any event, those reports never mentioned defendant at all. Defendant argues that, because the police stopped him without adequate cause, the subsequent search of his bedroom constituted an exploitation of the illegal stop. Thus, according to defendant, the trial court should have suppressed the evidence that the search of his bedroom exposed, including his admissions, because those items of evidence are the fruit of the illegal stop. The state responds that the court need not determine the legality of the stop of defendant, because the basis of the search of defendant's bedroom was officer safety, not the stop. According to the state, because Mogle developed a concern for officer safety, a search of defendant's bedroom was justified whether or not the initial stop of defendant was valid. Defendant responds that the evidence in the record does not satisfy the applicable standards that this court has imposed for a valid search of the private areas in a residence to protect the safety of police officers or others. We begin by resolving state law issues before federal law issues. See State v. Juarez-Godinez, 326 Or 1, 5, 942 P2d 772 (1997) (stating principle). The police seized the evidence in dispute here as the result of a warrantless search of a bedroom and, consequently, "the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution." ORS 133.693(4); see State v. Tucker, 330 Or 85, 89, 997 P2d 182 (2000) (applying statutory rule). The state is correct in contending that we can resolve the validity of the search here without analyzing the separate question of whether Mogle improperly stopped defendant. If Mogle's search of defendant's bedroom violated defendant's rights under Article I, section 9, then the drug evidence that Mogle observed would be subject to suppression. In that event, this court would have no reason to examine whether Mogle had authority to stop defendant, whether the stop caused the subsequent bedroom search, and whether the search constituted an exploitation of the stop. Therefore, we focus our discussion on the validity of Mogle's search of defendant's bedroom. We have described a person's living quarters as "the quintessential domain protected by the constitutional guarantee against unreasonable searches." State v. Louis, 296 Or 57, 60, 672 P2d 708 (1983). Under Article I, section 9, of the Oregon Constitution, a warrantless search of one's private living quarters is per se unreasonable and unlawful unless the search fits within a recognized exception to the warrant requirement. State v. Paulson, 313 Or 346, 351, 833 P2d 1278 (1992). Relying on a series of cases decided by this court, the state argues that the search here -- a "protective sweep" of the house -- was conducted to protect officer safety. Those cases permit a police officer, during a lawful police-citizen encounter, to take reasonable precautions to protect the safety of the officer or others present if the officer develops a reasonable suspicion, based on specific and articulable facts, that there exists an immediate threat of serious physical injury to the officer or others present. E.g., State v. Bates, 304 Or 519, 524-25, 747 P2d 991 (1987) (explaining that the requirement of an immediate threat of serious physical injury must be "based on specific and articulable facts" viewed in light of "the circumstances as they reasonably appeared at the time that the decision was made"). In State v. Cocke, 334 Or 1, 9, 45 P3d 109 (2002), this court summarized the teaching of those cases: "[T]his court has recognized the reasonableness, for purposes of the Oregon Constitution, of actions by police officers who are in a place where they are entitled to be and are responding to an immediate threat to the officers or to others who might be present. See, e.g., [State v.] Davis, [295 Or 227,] 242 , 666 P2d 802 (1983)] (illustrating point); State v. Bates, 304 Or at 519 (officer who has reasonable suspicion that citizen whom officer has encountered poses immediate threat of serious physical injury to officer or others then present may take reasonable steps to protect himself or others)." Cocke declined the state's invitation to recognize a new exception to the warrant requirement for a "protective sweep." However, the court did not rule out use of that tactic by police where the circumstances justify it under this court's standards for an officer safety search. As in Cocke, 334 Or at 7, we again find helpful the discussion of what constitutes a lawful protective sweep that appears in Maryland v. Buie, 494 US 325, 110 S Ct 1093, 108 L Ed 2d 276 (1990). Buie began by noting that the United States Supreme Court had authorized police to carry out "a limited patdown for weapons where a reasonably prudent officer would be warranted in the belief, based on 'specific and articulable facts,' and not on a mere 'inchoate and unparticularized suspicion or "hunch" that he is dealing with an armed and dangerous individual'[.]" Id. at 332 (quoting Terry v. Ohio, 392 US 1, 21, 27, 88 S Ct 1868, 20 L Ed 2d 889 (1968)) (citations omitted). Buie observed that the Court had applied the principles of Terry in the context of a search for weapons in an automobile during a roadside encounter: "'[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.'" Id. (quoting Michigan v. Long, 463 US 1032, 1049-50, 103 S Ct 3469, 77 L Ed 2d 1201 (1983)). Drawing on the principles express in Terry and Long, the Buie Court stated the following in the context of an arrest in a home pursuant to an arrest warrant: "We * * * hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one. "We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Id. at 334-3 (footnotes omitted). We need not decide here whether every feature of the discussion in Buie of Fourth Amendment law also reflects principles that this court applies under Article I, section 9. We, however, have applied at least a similar understanding of the rules that pertain to a protective sweep challenged under the Oregon Constitution. For example, Cocke considered the lawfulness, under Article I, section 9, of a protective sweep carried out by police following an arrest of a probationer in a large house that contained several private apartments. The police determined after the arrest that other persons might be present in the house. One officer had heard from another officer that some occupants of the house had firearms. Additionally, the police had visited a neighboring house about one month earlier when a neighbor had complained that someone had pointed a laser sight from a window in the probationer's house, thus suggesting the presence of a firearm. During the sweep of the residence, the police entered the defendant's separate apartment, observed drugs in plain sight, and arrested the defendant. After confirming that police are permitted to take reasonable steps to protect themselves from an immediate threat of serious physical injury, the court concluded that a "sweep" of the defendant's private apartment was not a reasonable step: "[W]e cannot say that such reasonable actions would include entering the private apartment of another individual whose identity, connection to the scene, or even presence is unknown to the officers. * * * "* * * [T]his case is one in which the officers could articulate only a generalized concern that was based on stale information and that focused neither on defendant nor his apartment. Those circumstances do not justify the police officers' intrusion into the privacy of defendant's apartment." Cocke, 334 Or at 9-10. Defendant, relying on passages in Buie and Cocke, contends that a protective sweep was not permissible here, because Mogle was not conducting a sweep incident to the arrest of anyone. We think that defendant reads those cases too narrowly. Buie and Cocke referred to searches incident to arrest because the police in each case were conducting a search incident to an arrest. Bates, 304 Or at 524, confirmed that the necessity of taking protective measures can arise "during the course of a lawful encounter with a citizen * * *." Cocke, 334 Or at 9, stated that the officer-safety justification applies to the actions of police officers responding to an immediate threat when they are in a place where they are entitled to be. But, as Bates and Cocke indicated, an officer's lawful encounter with a citizen may give rise to a reasonable suspicion that the citizen poses an immediate threat of serious physical injury to the officer or others regardless of whether the officer is conducting an arrest. That kind of encounter may occur when the police are lawfully present in a private residence or an occupied building, even if they have no intention of arresting anyone. Consequently, we examine the reasonableness of the precautions taken, including the tactic of a protective sweep as discussed above, to determine whether it satisfies the requirements that pertain to any search to safeguard officer safety. Our cases require a careful examination of the facts to determine whether the circumstances justify the police in carrying out the particular search in question. Two cases illustrate that point. In Bates, this court concluded that the circumstances of a late-night traffic stop fell short of creating a reasonable belief that the defendant, who drove the car, posed an immediate threat of serious physical injury to the officer. In State v. Foster, 347 Or 1, 217 P3d 168 (2009), this court concluded that the information known by police about the past violent history of the occupants of a house and the presence of weaponry on the premises permitted the police to believe reasonably that the residents constituted an immediate threat of serious physical injury.(3) Our task here is to apply the officer safety exception to the facts of this case. The state relies on several circumstances to justify Mogle's search of defendant's bedroom: (1) the statements by two unnamed informants (discussed below) to Deese and Mogle; (2) information that one of Tidwell's associates, Fonseca, "had warrants," and other associates, Coatsworth and Monteith, were "involved" with guns; (3) the allegation that the Third Street house was "associated" with a house on Fifth Street; (4) the fact that two men were seen running down the stairs, and they disregarded Mogle's command that they stop; (5) the fact that Tidwell had misstated the number of adults present in his house; and (6) the fact that Officer Morrison was alone in the living room with the adult female and her child. We examine those circumstances to determine whether, either viewed separately or as a whole, they constitute specific and articulable facts on which an officer could base a reasonable suspicion that one or more persons in Tidwell's house posed an immediate threat of serious physical injury to an officer or others present. It is unremarkable that the state seeks to rely in part on tips from informants to the police to carry its burden to prove that Mogle had a reasonable suspicion of an immediate threat in the Third Street house. The state may rely on such tips to establish the probable cause standard to search and to seize private property(4) or the somewhat less demanding standard of reasonable cause to stop a person,(5) and the same is true of the reasonable suspicion standard that applies in the officer-safety search context. As in other contexts, we assess whether the police properly relied on an unnamed informant's tip to form a reasonable suspicion by examining the content of the information supplied by the informant and the degree of its reliability. We examine each of those factors separately. The standard of reasonable suspicion permits an invasion of privacy in order to safeguard officer safety on the basis of an informant's report that is different in quantity or content than probable cause might require, but the state nevertheless must show that the information supplied is reliable or that the informant is credible. As in other settings, we determine from the record the reliability of an unnamed informant's statements by evaluating the informant's basis of knowledge of the facts reported and the facts demonstrating that the informant is credible or that the information reported is reliable. The record does not disclose the basis of knowledge for the unnamed informant who reported to Mogle that drug sales had occurred in the Third Street house and that the occupants had harbored "wanted people" there. Neither does the record contain any information about the credibility of that informant or the reliability of the reported information. As noted, Mogle testified that he "had been by [the house] with an informant to see if we could buy narcotics out of it." However, Mogle did not testify about the results of that effort. He did not relay any observations by himself or by the informant of drug activity or the presence of weapons during that visit. Finally, Deese testified that he had heard from an unnamed informant that a certain brown pickup truck might contain drugs. Deese and Mogle later observed that truck in the alley behind the Third Street house, although the record does not indicate whether the brown truck was present when the officers subsequently visited that house. The record does not disclose the basis of the informant's information about the truck, and Deese did not report any drug activity or any suspicious people or activities in connection with their observation of the brown truck beyond where it was parked. That limited information is insufficient to demonstrate that the informant was credible or that the tip about the brown pickup truck was reliable. Even if we assume that the brown truck still was parked behind the Third Street house when Mogle knocked on the door, the lack of information in the record about the informant's credibility or reliability undermines the state's argument that the truck was linked to drug activity or dangerous persons. In sum, the record does not demonstrate that the reports of the unnamed informants to Mogle and Deese were credible or reliable. Bates requires that an officer's suspicion of an immediate threat of serious injury be based on "specific and articulable facts." 304 Or at 524. Those reports of the unnamed informants to Mogle and Deese do not satisfy that standard. Those reports are insufficient to support a reasonable suspicion that any of the occupants of the Third Street house posed an imminent threat of serious physical injury to the officers during Mogle's visit.(6) The state sought to demonstrate that the Third Street house was "associated" with a house on Fifth Street. Mogle reported that two men, Fonseca and Monteith, had been at the Fifth Street house, and that Fonseca "had warrants." However, Mogle did not report any observation of suspicious or dangerous activities by those men at the Fifth Street house or at any other location. Deese stated that two of Tidwell's associates, Coatsworth and Monteith, were "involved in guns" and that they and their cars had been seen together and with Tidwell. Deese did not indicate his source for that information. He also did not disclose when or where Coatsworth and Monteith had been seen together, whether their involvement in guns was unlawful, or whether anyone had observed them engaged in any unlawful, suspicious, or violent activity. No evidence placed Coatsworth, Monteith, or Fonseca at or near the Third Street house at any time. The state's evidence about Tidwell's alleged association with Fonseca, Coatsworth, and Monteith, and with the Fifth Street house, is too vague to deserve weight in the calculus. No evidence explained whether any of those persons, acting either singly or in concert, had ever been violent to a police officer. No evidence placed those persons in or near the Third Street house at any time. Considering the record as a whole, the state's contention that Tidwell had an unexplained "association" with Fonseca, Coatsworth, and Monteith is not sufficient to create a reasonable suspicion that those men, or any of them, were hiding in Tidwell's house on February 9, 2005, much less that they were about to attack the police. The state next points to the fact that, while lawfully present in the Third Street house, Mogle observed two men running down the stairs. The two men paused briefly when Mogle told them to stop, but then continued down the stairs and toward a back door. They stopped when Deese met them at the back door; according to Deese, the two men "absolutely complied" with him at that point. The state contends that that incident contributes to a reasonable apprehension of imminent serious injury to the officers. The context of that incident is important. Mogle reported no sign of drug activity or weapons in the house when he first was admitted with the consent of Tidwell's girlfriend. Tidwell and his girlfriend were cooperative and spoke in a conversational tone of voice. According to the state, the conduct of the men on the stairs nonetheless was suspicious for two reasons. First, the conduct constituted, or at least resembled, flight from the police. Second, the appearance of the two men demonstrated that Tidwell had understated the number of adults in the house by at least one. It cannot be gainsaid that, during an encounter with one or more people, the police may take into account any quick movements or furtive gestures by suspects or others nearby in deciding whether, in the totality of the circumstances, an immediate threat of serious physical injury exists. We view those sorts of actions, and all surrounding circumstances, in a common-sense fashion. But here, the surrounding circumstances are not sufficient to support an inference that the conduct of the men on the stairs created an immediate threat to officer safety.(7) There can be circumstances when flight from a police officer or other evasive behavior can combine with other suspicious circumstances to provide reasonable suspicion supporting police protective measures. See Illinois v. Wardlow, 528 US 119, 124, 120 S Ct 673, 145 L Ed 2d 570 2000) (evasive behavior " a pertinent factor in determining reasonable suspicion" when considered with other suspicious circumstances, such as whether the location was a high crime area). The actions of the men in running down the stairs and disregarding a verbal directive to stop from a person wearing plainclothes -- which is all that the trial court seems to have found to have occurred -- was a circumstance that understandably justified heightened police attention. The same is true of the facts that it became apparent that one more adult was present in the house than Tidwell had reported. Considered alone or together, however, those facts do not indicate that the police were facing an immediate threat of serious physical injury in the circumstances of this case. Several other factual circumstances inform that conclusion. The additional adult -- defendant -- and his companion, "Sam," complied with Deese's direction to stop at the back door, and otherwise were cooperating with Deese. Their sole intention seemed to be to leave, not to remain and interfere with or threaten the police. Neither the two men nor any other occupant of the house exhibited any weapon or any violent or threatening behavior. The police saw no evidence that the occupants were armed, and the record lacks evidence of reliable information from police informants that other persons were in the house or were armed and dangerous. Finally, Morrison remained in the house, but he had engaged only in small talk with Tidwell's girlfriend and her child in the front room. The record contains no indication that Morrison was facing a threat of serious personal injury from anyone. Considering the totality of the circumstances, Mogle could have no more than a hunch, not reasonable suspicion, that one or more people were hiding upstairs in defendant's bedroom and were about to inflict serious personal injury on an officer. Our review of the record indicates that the state has not demonstrated that Mogle's suspicion was supported by the kind of specific and articulable facts that our cases require for an officer safety search of defendant's bedroom. If there was something more that might have justified Mogle's actions, the state did not demonstrate it on the record. As this court observed in Bates, 304 Or at 527, "[w]e cannot presume the existence of other favorable facts; we must confine our review to the record made." We conclude that Mogle conducted an unlawful search when he entered defendant's bedroom and saw drug paraphernalia in the form of a mirror and a straw. The trial court should have suppressed that evidence. After he completed the search of defendant's bedroom, Mogle notified defendant of his discovery of the mirror and straw in the bedroom and asked for defendant's consent to conduct another search of the bedroom. Defendant gave consent and made inculpatory admissions. Mogle, in searching defendant's bedroom a second time, discovered a plastic bag that had contained methamphetamine. Defendant argues that the trial court should have suppressed the incriminating statements that he made and the evidence discovered after Mogle disclosed his observations in defendant's bedroom. In our view, that question is controlled by State v. Williamson, 307 Or 621, 772 P2d 404 (1989). In Williamson, police officers conducted what they acknowledged to be an unlawful stop of the defendant's pickup truck. One officer leaned over the truck bed and smelled marijuana from closed boxes in the truck bed. The officer told the defendant that he had smelled marijuana, gave the defendant his Miranda warnings, and told the defendant that he could refuse to consent to a search of the truck. The officer then asked the defendant for consent to search the boxes. The officer also said that if the defendant refused to consent, he would detain the vehicle until he could obtain a warrant to search it. The defendant agreed to the search. The officers searched the boxes and found marijuana. The defendant in Williamson weighed the consequences of consenting to a search only after he knew that the police would detain him and his truck until they could obtain a search warrant and search the truck. This court stated that "[i]n putting the choice to defendant in those terms, the officers * * * were trading on evidence that they had only by virtue of the unlawful roadblock." 307 Or at 626. The court declined to recognize defendant's consent, given under those circumstances, as voluntary, and the court affirmed the Court of Appeals decision requiring suppression of the evidence. In this case, defendant similarly knew that he was not free to leave and that the police inevitably would seize the drug-related evidence that Mogle already had seen in plain view in defendant's bedroom. Mogle traded on evidence that he had observed in his unlawful search of the bedroom by disclosing what he had seen and asking for consent to reenter and search the bedroom. As was true in Williamson, the resulting consent was not voluntary. Consequently, the evidence obtained through Mogle's conduct, including the defendant's statements and the plastic bag found in defendant's room, also must be suppressed.(8) 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. KISTLER, J., dissenting. I agree with the majority that police officers may take reasonable steps to protect themselves when they reasonably suspect that they are faced with the risk of an immediate threat of serious physical injury. Those steps include the ability to engage in a "protective sweep" of a home to ensure the officers' safety. I disagree with the majority, however, when it holds that Detective Mogle did not reasonably perceive an immediate threat of serious injury to another officer. In my view, he did, and his response to that threat was a reasonable one. Because Detective Mogle lawfully discovered defendant's methamphetamine while taking reasonable steps to protect another officer's safety, I agree with both the trial court and the Court of Appeals that there was no basis for suppressing that evidence. I respectfully dissent. Officer Deese of the Klamath Falls Police Department received a report from an informant that "drugs were being sold out of [a] residence" at 614 North Third Street in Klamath Falls. The informant also reported that a brown Jeep pickup was either delivering drugs to the house or associated with the delivery of drugs to the house. Deese passed that information on to Detective Mogle of the Oregon State Police and told him that "if [he] saw the pickup [at that address] there'd probably be a good chance to [contact the homeowner]." One evening, Mogle drove by the house and "spotted the brown pickup in [an] alley" beside the house. On driving by the house, Mogle realized that it was the same house that a different informant had recently shown Mogle "as a location that they were selling narcotics out of and [the informant had] said [that] they hide wanted people there." Mogle was also aware that the house on Third Street was "associated with an address on 5th Street where Nicholas Monteith and Vince Fonseca had been," and he knew that there was an outstanding warrant for Fonseca's arrest. On seeing the brown pickup parked in the alley, Mogle called Deese and suggested that they go to the house, knock on the door, and talk with the occupants. A third officer, Detective Morrison, went with them. When they got to the house, they noticed a back door to the house that opened onto the alley.(1) Mogle told Deese "that if anybody would want to, they'd probably run out" that door. Mogle asked Deese if "he'd cover the exit of the back door which is on the side in the alley by the pickup." Deese did so, while Mogle and Morrison went to the front door. They knocked, and a man named Tidwell came to the door. Mogle identified himself and Morrison as police officers and told Tidwell that they had information that "there were wanted people" living at the house. Tidwell replied that "it was just him, his girlfriend and a guy named Sam." There also was a child in the living room. Mogle asked if they could look through the house to see if anyone else was there, and Tidwell replied, "go ahead and look."(2) Detective Morrison stayed in living room with the girlfriend and the child while Detective Mogle and Tidwell started walking through the house. They walked through a kitchen, down a hall, and came to a stairway that leads to a lower level. The lower level contains two bedrooms and opens onto the alley, where Officer Deese was waiting. (Defendant's bedroom was on the first floor while Tidwell occupied the two bedrooms on the lower level.) As Detective Mogle got to the stairway, he saw "two men running down the stairs." He "hollered stop police. They stopped for a short time. Looked back and then started running again."(3) Mogle ran down the stairs after the two men, who ran out the door to the alley and into Officer Deese. At that point, they stopped. Mogle caught up with the two men and asked them why they were running, but "[t]hey didn't give [him] an answer." Mogle asked Deese to check whether either man had any outstanding warrants while he "went back upstairs to clear the upstairs because my other officer was up there by himself." Detective Mogle then "cleared" the upstairs by briefly looking into the rooms to see if there were any other unexpected persons there. When asked why he had not taken Tidwell with him, Detective Mogle explained: "Because I didn't want to have, I was told there was only go[ing to] be one other person there, now all of a sudden I got two other people there and Mr. Tidwell makes three. I didn't want to go back upstairs with Mr. Tidwell after seeing two people already run, because as I testified, he [Tidwell] was associated with Vince Fonseca and Nick Monteith and I knew that at that time Fonseca had warrants so I thought maybe he might be upstairs." In briefly checking the rooms on the first floor for other persons, Mogle saw, in plain view in what turned out to be defendant's bedroom, a "mirror with white powder residue and a yellow straw on a table next to the bed." Mogle continued to check for other persons. When he had satisfied himself that Detective Morrison was safe, Mogle came back to the alley where Deese, defendant, Tidwell, and the other man (who turned out to be Sam) were. At that point, Mogle learned that the bedroom in which he had found the powder, mirror, and straw was defendant's and that there was an outstanding warrant for defendant but not for Sam. Mogle also learned for the first time that Tidwell may not have had authority to consent to a search of the entire house; that is, although Tidwell initially had told Mogle to "go ahead and look" through the house and had placed no restriction on Mogle's ability to do so, Mogle learned after he had checked defendant's bedroom for wanted persons that Tidwell may have lacked authority to consent to a search of that bedroom. The issue in this case is narrow. There is no dispute that Detective Mogle searched defendant's bedroom when he entered the room to look for wanted persons. Because Mogle did not have a warrant, the search must come within an exception to the warrant requirement, such as consent or officer safety, to comply with Article I, section 9, of the Oregon Constitution. See State v. Snow, 337 Or 219, 223-24, 94 P3d 872 (2004). On that issue, the state does not argue that Tidwell had authority to consent to Detective Mogle's search; that is, the state does not contend that Tidwell's initial, unrestricted consent to look through the house was sufficient to permit Detective Mogle's later search of defendant's bedroom.(4) Rather, the state argues that Detective Mogle's search was valid because it came within the officer safety exception; that is, the state contends that Mogle had a reasonable suspicion, based on specific and articulable facts, that there was a risk of serious physical injury to Detective Morrison. In resolving that issue, the majority and I part company over one aspect of it. We disagree whether the evidence in this case was sufficient to meet that standard. The question whether Detective Mogle's actions came within the officer safety exception entails three related but separate issues, and it is helpful to distinguish them. The first issue is whether Detective Mogle had a reasonable suspicion to believe that there were other persons in the house. If he did, the second issue is whether Mogle reasonably suspected that those persons might pose an immediate risk of serious physical injury to Detective Morrison. The final issue is whether the steps that Detective Mogle took to protect Detective Morrison from the risk of injury were reasonable. In resolving those issues, we consider both the quality and quantity of information that Detective Mogle possessed when he went back into the house to check for wanted persons. See Alabama v. White, 496 US 325, 330, 110 S Ct 2412, 110 L Ed 2d 301 (1990) (considering those issues). As other courts have recognized, the quality of information necessary to establish reasonable suspicion is less than that required for probable cause. Id.; cf. State v. Montigue, 288 Or 359, 363-67, 605 P2d 656 (1980) (establishing a higher evidentiary standard for probable cause determinations). In considering that issue, the courts have distinguished among anonymous tips, information obtained from known but undisclosed informants, and information obtained from disclosed informants. See Wayne R. LaFave, 4 Search and Seizure § 9.5(h), 570-98, (4th ed 2004). For instance, in the context of determining whether reasonable suspicion exists, the courts have recognized that information obtained from an undisclosed informant may have sufficient indicia of reliability because the informant is subject to criminal charges for supplying false information to an officer. See Adams v. Williams, 407 US 143, 146-47, 92 S Ct 1921, 32 L Ed 2d 612 (1972); LaFave, 4 Search and Seizure § 9.5(h) at 573-74. Conversely, the courts have found reasonable suspicion based on anonymous tips only when corroborating circumstances provide grounds for determining the reliability and basis of the anonymous tipster's information. Compare White, 496 US at 331-32 (anonymous tip that accurately predicted the defendant's future behavior sufficient to support reasonable suspicion), with Florida v. J.L., 529 US 266, 271-72, 120 S Ct 1375, 146 L Ed 2d 254 (2000) (anonymous tip that failed to provide any predictive information and thus left the police without a basis to test the informant's knowledge or credibility insufficient to establish reasonable suspicion). In this case, Detective Mogle relied on information from two known but undisclosed informants. Because both informants were subject to criminal penalties for falsely reporting information to the police, ORS 162.375, their reports have some reliability. See State v. Lichty, 313 Or 579, 584-85, 835 P2d 904 (1992) (so holding regarding named informant). Additionally, the two reports cross-corroborate each other, and the officers observed a brown jeep pickup parked by the house, consistently with one informant's report. It may be that the two informants' reports would not be sufficiently reliable, standing alone, to establish a reasonable suspicion that drug sales were being conducted out of the house on Third Street or that wanted persons were hidden inside. However, what Detective Mogle learned once he was inside the house corroborated the informants' reports. As noted, when Mogle first spoke with Tidwell, Tidwell told him that there were three adults in the house: Tidwell, his girlfriend, and Sam. However, when Mogle saw two men running down the stairs, he realized that there was at least one more person in the house than Tidwell had reported. The information that Mogle learned corroborated the informants' reports in two respects. First, the men's sudden flight and their refusal to stop when Mogle directed them to do so corroborated the informants' reports that people inside the house were involved in criminal activity. Second, Mogle reasonably could infer that the reason that Tidwell had not been truthful about the number of people in the house was because the people in the house were involved in drug sales or because the house was used to hide wanted persons, further corroborating the information that both Mogle and Deese had received from the informants. That corroboration sufficiently validated the informants' reports so that those reports, together with the information that Detective Mogle personally observed once inside the house, should be considered in determining whether Mogle reasonably suspected that another person could be in the house who posed a risk of serious physical injury to Detective Morrison. That substantive determination entails two issues. The first is whether Mogle reasonably suspected that another person could be at large in the house. The second is whether he reasonably suspected that any person still at large posed a risk of serious physical injury to Detective Morrison. On the first issue, when Mogle undertook a protective sweep, he knew that Tidwell had "underreported" the number of persons in the house. Specifically, Mogle had already discovered one more person than Tidwell had reported, and he reasonably suspected that there could be other people in the house -- persons whom Tidwell had not disclosed either because Tidwell was hiding wanted persons or because those persons where engaged in drug sales or for both those reasons. On the second issue, Detective Mogle reasonably suspected that any persons still at large in the house posed a risk of serious physical injury to Detective Morrision, who remained in the living room. Tidwell had not told the truth about the number of persons in the house. That fact, coupled with defendant's and Sam's sudden and unexplained flight down the stairs, tended to corroborate the informants' reports that drug sales were occurring in the house and that Tidwell was hiding wanted persons there. Detective Mogle reasonably suspected that any person still at large in house had pressing reasons to avoid capture and could pose a risk of serious physical injury to Detective Morrison, who at that point stood in the way of the only other exit from the house. It may be that not every person who sells drugs or is subject to warrants poses a risk of danger to the police. But when the two persons whom Detective Mogle had uncovered in the house had sought to flee despite the detective's commands to stop and when the detective had reason to suspect that other wanted persons could still be hiding in the house, he also had reason to suspect that any person who remained at large in the house posed a risk of danger to the one officer who, at that point, was still inside. The question, after all, is not whether Detective Mogle was certain that any person still at large in the house posed a risk of danger to Detective Morrison or even whether Mogle had probable cause to believe that fact. Rather, the question is whether Detective Mogle had a reasonable suspicion "that [any person still at large in the house] might pose an immediate threat of serious physical injury to the officer." State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987) (emphasis added). He did. To be sure, as the majority notes, when Detective Mogle undertook a protective sweep of the house, he was not aware that defendant, Sam, or Tidwell possessed any weapons, nor had they made any threats or belligerent gestures toward Officer Deese or himself. Tidwell, however, had lied about the number of people in the house, and defendant and Sam had continued to flee despite Detective Mogle's command to stop. When asked why they had run, they had provided no explanation, and Detective Mogle reasonably suspected that they, and anyone else still at large in the house, were involved in drug sales or were wanted persons. This is not a case, such as a roadside traffic stop, in which the officers have no basis for suspecting that the occupants of the car are engaged in criminal activity and in which we consequently have required some evidence of the presence of a weapon or furtive gestures before upholding a search for officer safety. See, e.g., State v. Amaya, 336 Or 616, 632-33, 89 P3d 1163 (2004) (discussing cases). In that regard, in determining whether Detective Mogle reasonably suspected that any person who remained in the house "might pose an immediate threat of serious physical injury," it is helpful to compare this case to our most recent officer safety case, State v. Morgan, 348 Or 283, 230 P3d 928 (2010). In Morgan, the defendant was a passenger in a car stopped for a traffic offense. Id. at 285. She got out of the car on her own, acted "agitated and nervous," and clutched her purse or tote bag tightly. Id. at 286. When the officer told her that he would have to check her purse for weapons if she were going to keep it with her, she began backing away, shaking her head, and reached into the purse. Id. At that point, the officer seized the purse and, in doing so, saw drug paraphernalia inside. Id. This court held that the officer's actions came within the officer safety exception to Article I, section 9. Id. at 290. Specifically, we held that the officer in Morgan reasonably suspected that the defendant posed a risk of immediate serious physical harm based on her unexpected exit from the car, her visibly nervous behavior, and the fact that she had reached into her purse. Id.. The officer in Morgan had no reason to suspect that the defendant in that case was involved in drug sales or hiding from the police, as Detective Mogle did here. For all the officer in Morgan knew, the defendant was merely a passenger in a car stopped for a minor traffic offense. If the defendant's actions in Morgan were sufficient to give rise to a reasonable suspicion that she might pose an immediate, serious threat to the officer's physical safety, a fortiori so was defendant and Sam's unexplained flight from the officer, when coupled with the fact that Detective Mogle reasonably suspected that defendant, Sam, and anyone else still at large in the house was involved in drug sales or was wanted by the police and hiding from them. The final question is whether Detective Mogle took reasonable steps to check whether anyone else was present in the house. On that point, the officers did not have to be at Tidwell's house. They did not, for example, have to be there to execute an arrest or search warrant or serve a restraining order on anyone. If all the officers had been safely out of the house when Detective Mogle caught up with defendant, Sam, and Officer Deese in the alley, it might not have been reasonable, at least for officer safety purposes, for Mogle to have reentered the house to ensure that no one else was inside. Detective Morrison, however, remained in the living room with defendant's girlfriend and the child, and Mogle reasonably went back into the house to briefly check through a cursory visual scan that no one else was there. The check was no more extensive than necessary to ensure Detective Morrison's safety. In my view, Detective Mogle was well within the scope of the officer safety exception when he came upon the methamphetamine in defendant's bedroom and, for that reason, did not violate defendant's Article I, section 9, rights. I would hold, as both the Court of Appeals and the trial court did, that the officer's actions stayed within constitutional limits. I respectfully dissent. Linder, J., joins in this dissenting opinion. 1. The evidence is in conflict about whether Mogle used the term "police" and commanded the two men to stop or, instead (as Deese testified), simply asked where they were going. The trial court apparently chose to take a middle road, finding only that "Mogle yelled at them to stop." 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." 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." 3. This court has evaluated police searches conducted to protect officer safety in several other cases, including State v. Miglavs, 337 Or 1, 13, 90 P3d 607 (2004) (patdown search justified by officer safety exception where police knew from personal experience that members of the particular gang of which the defendant was a member carried weapons and that one officer had recently confiscated a gun carried by another member of that gang); State v. Amaya, 336 Or 616, 631-33, 89 P3d 1163 (2004) (during traffic stop, passenger's nervous behavior and attempts to conceal a bag, together with early morning hour and high crime area, justified scrutiny of interior of bag to eliminate immediate threat to officer safety); State v. Ehly, 317 Or 66, 83, 854 P2d 421 (1993) (officer safety exception applied where defendant, who was a known felon, belligerent, under the influence of methamphetamine, and had recently associated with an individual likely armed with an automatic handgun, rummaged in a gym bag suspiciously with both hands hidden); State v. Davis, 295 Or 227, 243, 666 P2d 802 (1983) (warrantless entry to motel room and search of occupant not justified by need to ensure officer safety where alleged rape victim walked out of room, thus dissipating any exigency). 4. See State v. Spicer, 254 Or 68, 71, 456 P2d 9659 (1969) (In establishing probable cause for a search warrant, affidavit may recite facts reported by a police informant if the affiant corroborates those facts with other "facts within the personal knowledge of the affiant which would lead a reasonably cautious person to believe the informant to be reliable * * *"). Although the legislature later codified reliability requirements that pertain to the use of hearsay in an affidavit to establish probable cause to search, see ORS 133.545(4) (affidavit must set forth facts bearing on any unnamed informant's reliability), the statute simply restates the reliability requirements that Article I, section 9, of the Oregon Constitution long has imposed. 5. See State v. Lichty, 313 Or 579, 584, 35 P2d 904 (1992) (information supplied by named informant that she saw "a bag of coke" was sufficiently credible and reliable to justify investigative stop based on reasonable suspicion). 6. During a lawful police-citizen encounter, a threat of serious physical injury to an officer may occur so suddenly that the officer has no opportunity to consider the reliability of an informant's information on which the officer has relied in assessing the threat. We will judge the validity of a search conducted by an officer in response to such an exigent circumstance according to the constitution's touchstone, reasonableness, and any other applicable criteria. This case does not present such an extreme exigency. 7. The dissent argues that the circumstances surrounding Mogle's search of defendant's bedroom where at least as compelling as the circumstances surrounding the search of the passenger's purse in State v. Morgan, 348 Or 283, 230 P3d 928 (2010). We conclude that Morgan is distinguishable. Morgan involved a traffic stop. A female passenger unexpectedly got out of the car and acted agitated and nervous in the presence of the officer. She clutched her purse tightly and shook her head when the officer said he would have to inspect its contents if she insisted on keeping the purse with her. In response, and in the officer's immediate presence, she reached into the purse. Fearing a weapon, the officer grabbed the purse, looked inside and saw drug paraphernalia. In the present case, Mogle faced no agitated person in his immediate presence reaching into a closed container that could have hidden a weapon. He saw no evidence of weapons and the persons in the house spoke in conversational tones. The behavior of the two men on the staircase, as noted, was somewhat unusual, but it was unaccompanied by threats, clenched fists, or any gesture signaling imminent violence. When Mogle decided to search defendant's bedroom, defendant and "Sam" were standing still and cooperating with Deese. In our view, the dissent declines to view the facts here as distinguishable from those in Morgan because the dissent places less emphasis than do we on the requirement in Bates that the officer's suspicion of imminent serious physical injury must be based on both specific and articulable facts, not speculation or guesswork. Judged by that standard, Mogle did not have a reasonable suspicion that defendant's bedroom harbored a person who constituted an imminent threat of serious harm to the officers. 8. In State v. Rodriguez, 317 Or 27, 40-41, 854 P2d 399 (1993), this court stated that "the result [in Williamson] may also be explained as based on an exploitation analysis." In light of our result here, we have no reason to determine whether an exploitation analysis, as discussed in Rodriguez, also requires the same outcome. 1. Although Mogle referred to the door as a back door, it appears to have been a side door that opened onto an alley running beside the house. 2. At that point, Tidwell did not place any restrictions on where Detective Mogle could look in the house. 3. Mogle testified that he yelled, "[S]top police." When asked whether Mogle had yelled "stop," Deese initially said, "No." Deese then immediately added, "Not that I recall." When asked again whether Mogle had said stop, Deese explained, "I just don't recall that." The trial court found that, when Mogle saw the "two men run down the stairs[,] Officer Mogle yelled at them to stop." The two officers' testimony differed only in whether Mogle had yelled "stop," not whether Mogle also had identified himself as a police officer. When the trial court credited Mogle, it implicitly credited his testimony that he "hollered stop police." 4. In 1983, this court held that, under the Fourth Amendment, a person must have actual authority to consent to a search of someone else's property. State v. Carsey, 295 Or 32, 46, 664 P2d 1085 (1983). This court implied in Carsey that actual authority also would be required under Article I, section 9, but it specifically did not decide that question. See 295 Or at 34 n 1. Seven years later, the United States Supreme Court rejected this court's Fourth Amendment holding in Carsey. Illinois v. Rodriguez, 497 US 177, 186, 110 S Ct 2793, 111 L Ed 2d 148 (1990). The Court held that, under the Fourth Amendment, actual authority is not required to consent to a search of someone else's property; apparent authority is sufficient. Id. This court has never returned to the state law question that it did not decide in Carsey -- whether Article I, section 9, requires actual authority to consent. In this case, the state has not argued that Tidwell had either actual or common authority to consent to the search of defendant's bedroom, nor has it argued that apparent authority is sufficient under Article I, section 9. Accordingly, I assume, as does the majority, that some other exception to the warrant requirement is necessary to justify Mogle's entry into defendant's bedroom.

cf5211dde2fb9a5a93ea0aba16195d466167208f552ff5aa361c2b559d3a4c4e

2011-05-05T00:00:00Z

f894e0b2-2a5d-4fc5-a1bd-77a50576264a

Arken v. City of Portland

S058881

oregon

Oregon Supreme Court

1 Filed: October 6, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON MICHAEL ARKEN, DALE CANNON, ROBYN CARRICO, CAROL YOUNG, JOHN HAWKINS, LESLIE HUNTER, RICK MULLINS, S. M. RUONALA, PATRICIA THOMPSON-WESTOVER, and MYRNA WILLIAMS, Plaintiffs-Appellants, v. CITY OF PORTLAND, WESTERN OREGON UNIVERSITY, PORTLAND SCHOOL DISTRICT, CITY OF GRESHAM, LINN COUNTY, UNIVERSITY OF OREGON, PORTLAND COMMUNITY COLLEGE, MULTNOMAH COUNTY, CENTRAL SCHOOL DISTRICT 13J, FOREST GROVE SCHOOL DISTRICT #15, and PUBLIC EMPLOYEES RETIREMENT BOARD, Defendants-Respondents. (CC 060100536; SC S058881 (Control)) 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, 2 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; SC S058882) On certified appeals from the Court of Appeals on appeals from judgments of the Circuit Court for Multnomah County, Henry J. Kantor, Judge. Argued and submitted January 6, 2011. Gregory A. Hartman, Bennett, Hartman, Morris & Kaplan, LLP, Portland, argued the cause for plaintiffs-appellants Michael Arken et al. With him on the briefs were Michael J. Morris and Aruna A. Masih. William F. Gary, Harrang Long Gary Rudnick P.C., Eugene, argued the cause for defendants-respondents City of Portland et al. With him on the briefs was Sharon A. Rudnick. Joseph M. Malkin, Orrick, Herrington & Sutcliffe, LLP, Pro Hac Vice, San Francisco, California, argued the cause for respondent-appellant Public Employees Retirement Board. With him on the briefs were Townsend Hyatt and Sarah C. Marriott, Pro Hac Vice. James S. Coon, Swanson, Thomas & Coon, Portland, argued the cause for petitioners-respondents Ruth Robinson et al. With him on the briefs was Gene Mechanic. Joseph M. Malkin, Orrick, Herrington & Sutcliffe, LLP, Pro Hac Vice, San Francisco, California filed the briefs for defendant-respondent Public Employees Retirement Board. With him on the briefs were Townsend Hyatt and Sarah C. Marriott, Pro Hac Vice. 3 Jeremy D. Sacks, Stoel Rives LLP, Portland, filed the briefs for defendants- respondents Western Oregon University and University of Oregon. With him on the briefs was Amy Edwards. William F. Gary, Harrang Long Gary Rudnick P.C., Eugene, filed the briefs for intervenors-appellants City of Portland et al. With him on the briefs was Sharon A. Rudnick. Amy Edwards, Stoel Rives LLP, Portland, filed the briefs for intervenor-appellant State of Oregon. With her on the briefs was Jeremy D. Sacks. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.* DE MUNIZ, C. J. The judgment of the circuit court in Arken, et al. v. City of Portland, et al., Case No. 0601-00536, is affirmed. The judgment of the circuit court in Robinson, et al. v. Public Employees Retirement Board, Case No. 0605-04584, is reversed, 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 DE MUNIZ, C. J. 1 These two cases are before this court on certified appeals from the Court of 2 Appeals. ORS 19.405. Both cases involve the Public Employees Retirement Board's 3 (PERB or the Board) revision or reduction of benefits with respect to so-called "Window 4 Retirees."1 These cases involve the Board's efforts to recoup overpayments of benefits to 5 retirees that were predicated on a 20 percent earnings credit for calendar year 1999 that 6 the Board approved by order in 2000. PERB has sought to recoup these overpayments to 7 the Window Retirees through an overpayment recovery mechanism set out in ORS 8 238.715.2 PERB has done so in two steps. First, in an order issued by the Board on 9 January 27, 2006, the Board established a general method for the recovery of 10 overpayments made to PERS members based on the 20 percent crediting order. 11 Subsequently, the Board made individualized recovery determinations based on the 12 individual circumstances of each affected PERS member.3 13 1 The term "Window Retirees" has been used by the parties to this litigation to refer to public employees who are Tier One members of the Public Employees Retirement System (PERS), who retired under the Money Match retirement allowance formula, and who retired with an effective retirement date on or after April 1, 2000, and before April 1, 2004. A Tier One member is a PERS member who joined PERS before January 1, 1996. Money Match refers to one of the three formulas for calculating a PERS member's service retirement allowance. These terms are discussed in more detail below. 2 The pertinent provisions of ORS 238.715 are set out below, ___ Or at ___ (slip op at 65-66.) 3 To provide a general understanding of the magnitude of the repayment amounts that would be required of the Window Retirees, PERS staff issued a Benefit Adjustment Letter Draft on February 24, 2006, that set out the effects for a hypothetical "John Doe" window retiree who assumably retired on April 1, 2000, with $132,211.00 in his retirement account (based on the 20 percent earnings credit allocation for 1999). The 2 The Arken plaintiffs4 and the Robinson petitioners5 both filed challenges to 1 adjustments that would be generated under that hypothetical were tabulated as follows: Retirement date: April 1, 2000 Recalculated payment start date: September 1, 2006 Account balance at retirement (with 20 percent earnings crediting in 1999) $132,211.00 Recalculated account balance at retirement (11.33 percent earnings crediting in 1999) $122,700.00 Monthly benefit at retirement (your retirement date was April 1, 2000) $2,200.00 Recalculated monthly benefit at retirement (11.33 percent earnings crediting in 1999) $2,042.00 Current monthly benefit, including any cost-of living adjustments (COLAs) made since your retirement date $2,335.00 Recalculated monthly benefit (starting September 1, 2006). This includes annual COLAs made and COLAs restored by the Strunk case through August 1, 2006 $2,346.00 The Benefit Adjustment letter then explained that for this "John Doe" window retiree the amount of overpaid benefits would have been $9,313.00, for which there were two options provided for repayment. This “John Doe” window retiree would then have the option to repay the $9,313.00 in a lump sum, which would result in his monthly benefit amount being adjusted to $2,346.00 beginning September 1, 2006. Alternatively, this "John Doe" window retiree would have the option to repay the overpayment by having his monthly benefit adjusted using the Actuarial Reduction Method which would result in a reduction of the current monthly benefit amount to $2,317.00 (a reduction of $29.00 per month). Under either option, an annual COLA would then be applied to the benefit payment each August 1. From our review of the record in these proceedings, the consequences projected for this "John Doe" window retiree are consistent with the amounts that were ultimately determined by PERB for individual Window Retirees. 4 The Arken plaintiffs (appellants in this court) are a group of individual 3 PERB's January 7, 2006, Order Adopting Repayment Methods. That order established 1 the methods that PERB intended to use to recover what PERB had determined to be 2 overpayments to the Window Retirees. That order provided in part that earnings on Tier 3 One member regular accounts for 1999 would be recalculated at an earnings rate of 11.33 4 percent and that benefit payments to Window Retirees who had regular member accounts 5 in 1999 would be adjusted consistently with the recalculated earnings rate. That order 6 relied on PERB's authority to recover overpayments set out in ORS 283.715, and the 7 order provided that the overpayments could be repaid either in a lump sum or by an 8 actuarial reduction of monthly benefits payments. The order further provided that cost of 9 living adjustments (COLAs) would be applied to those recalculated benefit payments 10 public employees who were Tier One members of PERS who retired under the Money Match retirement allowance formula whose effective date of retirement was on or after April 1, 2000, and before April 1, 2004 -- i.e., Window Retirees. While the Arken plaintiffs have not been certified as class representatives for all Window Retirees, the issues raised by their claims appear to apply similarly to the Window Retirees collectively. The Arken defendants (respondents in this court) include: defendant Public Employees Retirement Board; state defendants Western Oregon University and the University of Oregon; and, a group of nonstate defendant local government employers comprised of the City of Portland, Portland School District, City of Gresham, Linn County, Portland Community College, Multnomah County, Central School District 13J, and Forest Grove School District #15. 5 The Robinson petitioners (respondents in this court) are a group of individual public employees who serve as class representatives for public employees who were Tier One members of PERS who retired under the Money Match retirement allowance formula whose effective date of retirement was on or after April 1, 2000, and before April 1, 2004 -- i.e., Window Retirees. The Robinson respondents (appellants in this court) include: respondent Public Employees Retirement Board; intervenor State of Oregon; and a group of nonstate intervenor local government employers comprised of the City of Portland, Portland School District, City of Gresham, Linn County, Portland Community College, Multnomah County, Central School District 13J, and Forest Grove School District #15. 4 beginning in 1999 and continuing into the future. 1 Although the trial court did not consolidate these two cases, it determined 2 that the cases raised interrelated issues concerning the effects of PERS legislation enacted 3 in 2003 (the "2003 PERS reform legislation").6 The trial court therefore decided motions 4 filed in these cases together and issued opinions that were filed in both cases. 5 The Arken plaintiffs raised claims based on four theories, including breach 6 of contract, promissory estoppel, wage claim, and declaratory and injunctive relief under 7 the Administrative Procedures Act (APA). The trial court granted summary judgment in 8 favor of the Arken defendants on all four claims. 9 The Robinson petitioners challenged the Board's January 27, 2006, order as 10 an order in other than a contested case under ORS 183.484, alleging that the order 11 violated Oregon Laws 2003, chapter 67, Section 14b(1) (discussed more fully below). 12 The Robinson petitioners contended that Section 14b(1) provides the exclusive methods 13 to recover erroneously paid retirement benefits to petitioners. They also alleged that the 14 order violates ORS 238.715 because PERB failed to comply with the terms of that 15 statute. The trial court granted summary judgment in favor of the Robinson petitioners 16 on both of their claims for relief. 17 6 In 2003, the Legislative Assembly amended a number of statutory provisions related to the operation of the PERS system and affecting PERS benefits, including Oregon Laws 2003, chapters 3, 67, 68, and 625. Collectively, these amendments to the PERS statutes are referred to as the "2003 PERS reform legislation." We use that term as a general referent to the efforts of the 2003 Legislative Assembly to effectuate changes to the PERS system, but we cite more specifically to particular enactments when appropriate. 5 For the reasons set out below, we determine that the trial court correctly 1 granted summary judgment to the Arken defendants on all four of the claims raised by the 2 Arken plaintiffs. We further determine that the trial court erred in granting summary 3 judgment to the Robinson petitioners on their claims for relief. Because we conclude that 4 PERB correctly applied ORS 238.715 to recoup overpayments that were made to the 5 Window Retirees based on the 20 percent earnings credit for 1999, we also determine 6 that the trial court erred in denying PERB's cross-motion for summary judgment. 7 I. BACKGROUND 8 Before addressing the specific claims and arguments presented in these 9 cases, we believe it is important to review the factual and legal circumstances that gave 10 rise to the PERB order that is challenged in these proceedings. Oregon has provided its 11 public employees with a retirement plan (PERS) as a contractual benefit of public 12 employment since 1945. PERB administers PERS and acts as trustee for the Public 13 Employment Retirement Fund (PERF or the fund). ORS 238.601; ORS 238.660(1). 14 PERB sets employer contribution rates, adopts actuarial equivalency factors and assumed 15 earnings rates, establishes reserve accounts, and allocates annual earnings to accounts and 16 reserves. ORS 238.225; ORS 238.255; ORS 238.605; ORS 238.607; ORS 238.670; 17 Strunk v. PERB, 338 Or 145, 157, 108 P3d 1058 (2005). The Oregon Investment Council 18 (OIC) invests the assets of the fund. Each year, PERB allocates the annual investment 19 earnings of the fund from the previous year to member, employer, and reserve accounts. 20 Every PERS member has a PERS member account, which includes the member's 21 contributions to PERS and earnings that PERB has credited to those contributions. 22 6 Public employees who joined PERS before January 1, 1996, are commonly 1 denominated as Tier One members. Tier One members are entitled to a guaranteed 2 minimum annual rate of return on their regular member accounts equal to the system's 3 assumed earnings rate. ORS 238.255. The assumed rate is set by the Board based on 4 advice from an actuary. ORS 238.605; ORS 238.670(2). The assumed earnings rate has 5 been 8 percent for all time periods relevant to these cases. On retirement, PERS Tier One 6 members receive a monthly service retirement allowance calculated according to one of 7 three formulas: pension plus annuity (only available to members who contributed to 8 PERS before August 21, 1981), full formula, or Money Match. ORS 238.300. At 9 retirement, a PERS member is entitled to receive a service retirement allowance based on 10 the formula that produces the highest pension amount. 11 For many retirees, including the retirees involved in this litigation, the 12 Money Match formula results in the highest pension amount. Under the Money Match 13 formula, a member's monthly service retirement allowance is calculated by determining 14 the sum of the actuarial equivalent of the member's account balances at retirement (the 15 annuity component) and then adding a sum in an equal amount that is charged to the 16 employer, i.e., the "match" (the pension component).7 The resulting service retirement 17 allowance therefore amounts to twice the actuarial equivalent of the member's account 18 balances at retirement. 19 7 The actuarial equivalent of the member's account balances is determined using mortality information to calculate the monthly service retirement allowance to be paid to the member based upon the remaining life expectancy of the member at the time the member retires. 7 Member accounts are credited annually as of December 31 of each calendar 1 year. PERB reviews changes in the value of the fund and allocates earnings to various 2 accounts within the fund on an "equal crediting" basis -- i.e., earnings are allocated on the 3 same percentage share to funds in each account. In years in which the earnings on the 4 fund equal or exceed the assumed earnings rate, PERB is statutorily required to "set aside 5 * * * such part of the income as [PERB] may deem advisable, not exceeding seven and 6 one-half percent of the combined total of such income, which moneys so segregated shall 7 remain in the fund and constitute therein a reserve account." ORS 238.670(1) (1999). 8 During the time period relevant to this litigation, ORS 238.255 (1999) also charged 9 PERB with maintaining a "gain-loss" reserve to provide assets to pay member benefits at 10 the assumed earnings rate in years in which annual fund earnings were not sufficient to 11 do so.8 Finally, PERB also is charged with establishing employer contribution rates to 12 fund the retirement system. ORS 238.225. Employer contribution rates are comprised of 13 the employer's normal cost of the members' service retirement allowances and the amount 14 necessary to amortize any unfunded actuarial liability (UAL). The normal costs 15 component is based on an actuarial estimate of the amount needed to pay service 16 retirement allowances to current members in the future. That amount is then adjusted 17 8 Substantial statutory modifications to PERS were enacted in 2003 to address fiscal concerns that had emerged. Those modifications are addressed in detail throughout this opinion. The contingency fund provisions set out in ORS 238.670(1) (1999) and the "gain-loss" reserve provisions set out in ORS 238.255 (1999) are significant because they affected the 1999 earnings crediting decision made by PERB that is central to this case. Consequently, we cite here specifically to the 1999 versions of those statutes. 8 based on the difference between an employers' account balance and the projected future 1 service retirement allowances. If an actuarial surplus exists, the employer contribution 2 rate is adjusted downward. If the employer has a UAL, PERB adds an additional, 3 amortized amount to the employer's normal cost rate. 4 On March 27, 2000, PERB issued an earnings allocation order crediting 5 Tier One members' regular accounts with 20 percent earnings for the 1999 calendar year. 6 In setting that earnings allocation order, PERB did not fund a contingency reserve and 7 allocated only limited funds to the gain-loss reserve. The City of Eugene and several 8 other public employers timely challenged PERB's 1999 earnings allocation order and also 9 timely challenged their employer contribution rate orders for 1998 and 2000.9 On July 10 31, 2001, the trial court granted the public employers' motion for partial summary 11 judgment, holding that PERB had abused its discretion by allocating excessive earnings 12 to member accounts while not allocating funds to the contingency reserve and not 13 adequately funding the gain-loss reserve. See City of Eugene v. PERB, 339 Or 113, 118- 14 19, 117 P3d 1001 (2005), on recons, 341 Or 120, 137 P3d 1288 (2006) (City of Eugene 15 I). The trial court vacated each of the challenged orders and directed PERB to issue new 16 orders consistent with the judgment. Id. at 119.10 PERS's Fiscal Services Division 17 subsequently recalculated the earnings credit for 1999 and concluded that, if PERB had 18 9 City of Eugene v. PERB, Marion County Circuit Court Case Nos. 99C- 12794, 00C-16173, 99C-12838, 99C-20235. 10 This court ultimately dismissed the appeal of the trial court decision as moot, City of Eugene I, 339 Or at 128, and later vacated the trial court decision on mootness grounds as well. City of Eugene v. PERB, 341 Or 120, 137 P3d 1288 (2006). 9 properly funded the contingency reserve and the gain-loss reserve, the proper 1999 1 earnings credit for member accounts would have been 11.33 percent. Strunk, 338 Or at 2 216; City of Eugene I, 339 Or at 127. 3 Before PERB issued a new earnings allocation crediting order for 1999, 4 however, the Legislative Assembly amended the PERS statutes by enacting the 2003 5 PERS reform legislation. As this court noted in Strunk, the PERS reform legislation 6 effectively codified the 11.33 percent figure as the correct 1999 crediting decision. 338 7 Or at 216-17. In Strunk v. PERB, this court also approved the finding of this court's 8 appointed Special Master that the contingency reserve should be funded and that a 9 reasonable funding level for the "gain-loss" reserve called for by ORS 238.255 (1999) 10 was a level that would fund projected Tier One guaranteed earnings credits for a 30- 11 month period, and this court expressly set out and agreed with the Special Master's 12 determinations as follows: 13 "'In 1999, the fund earned approximately $7.5 billion, or 24.89 14 percent of its value. [PERB credited 20 percent to Tier One regular 15 accounts for that year.] PERB allocated approximately $1.3 billion to the 16 gain-loss reserve, which left it funded at approximately 72 percent of [its] 17 new 30-month goal. After PERB allocated 1999 earnings, the gain-loss 18 reserve had a positive balance of $4.744 billion. 19 "'If PERB had fully funded the contingency reserve for 1999 by 20 crediting 7.5 percent of the fund's earnings as authorized by ORS 21 238.670(1) and, if PERB had fully funded the gain-loss reserve according 22 to its 30-month goal, approximately 11.33 percent would have been 23 available for crediting to Tier One accounts.'" 24 Strunk, 338 Or at 214-15 (alterations in original; footnote omitted). 25 At the time that the legislature enacted the PERS reform legislation, the 26 10 court challenges to PERB's 1999 earnings allocation crediting order in the City of Eugene 1 litigation meant that the 1999 crediting decision was potentially subject to reversal. Id. at 2 217. As part of the PERS reform legislation, the legislature enacted provisions addressed 3 directly to the Window Retirees in Oregon Laws 2003, chapter 67, section 10, as 4 amended by Oregon Laws 2003, chapter 625, section 13 (Section 10),11 which provided, 5 in pertinent part: 6 "(1) Notwithstanding ORS 238.360, cost of living increases for a 7 service retirement allowance that is payable to or on account of members 8 described in subsection (5) of this section may be made only as provided by 9 this section. 10 "(2) The Public Employees Retirement Board shall calculate a 11 revised service retirement allowance for a service retirement allowance that 12 is payable to members described in subsection (5) of this section. The 13 revised service retirement allowance shall be calculated as follows: 14 "(a) The board shall establish a member account balance for the 15 member as of the member's effective date of retirement, determined as 16 though the regular member account for the member had been credited with 17 11.33 percent earnings for calendar year 1999. 18 "(b) The board shall calculate a service retirement allowance for the 19 member as of the member's effective date of retirement using the member 20 account balance established under paragraph (a) of this subsection. The 21 board shall make the calculation under ORS 238.300, section 4, chapter 68, 22 Oregon Laws 2003, and such other provisions of this chapter as may be 23 applicable to the calculation of the service retirement allowance of the 24 member or as may provide for increases or decreases in the service 25 retirement allowance of the member. 26 "* * * * * 27 "(d) The board shall adjust the revised service retirement allowance 28 calculated under paragraph (b) or (c) of this subsection for each calendar 29 year after the member's effective date of retirement based on the cost of 30 11 We refer to this statutory provision as Section 10. 11 living adjustment provided for in ORS 238.360. 1 "(3) The board shall calculate a fixed service retirement allowance 2 for members described in subsection (5) of this section. The fixed service 3 retirement allowance shall be the amount that is payable to or on account of 4 the member on July 1, 2003, or on the member's effective date of 5 retirement, whichever is later. The fixed service retirement allowance may 6 not be adjusted under ORS 238.360. 7 "(4) The service retirement allowance payable to or on account of 8 members described in subsection (5) of this section shall be the greater of 9 the revised service retirement allowance calculated under subsection (2) of 10 this section or the fixed service retirement allowance calculated under 11 subsection (3) of this section. 12 "(5) The provisions of this section apply to members who: 13 "(a) Established membership in the Public Employees Retirement 14 System before January 1, 1996, as described in ORS 238.430; 15 "(b) Receive a service retirement allowance calculated under ORS 16 238.300 (2)(b)(A); and 17 "(c) Have an effective date of retirement that is on or after April 1, 18 2000, and before April 1, 2004." 19 As part of the PERS reform legislation, the legislature also enacted Oregon Laws 2003, 20 chapter 67, section 14b, as amended by Oregon Laws 2003, chapter 625, section 31 21 (Section 14b),12 which provided: 22 "(1) If the Public Employees Retirement Board is required to correct 23 one or more of the erroneous benefit calculation methods identified in City 24 of Eugene et al. v. State of Oregon, Case Nos. 99C-12794, 00C-16173, 25 99C-12838 and 99C-20235, the board shall recover the cost of benefits 26 erroneously paid to retired members as a result of those erroneous benefit 27 calculations by one or both of the following methods: 28 "(a) The board may withhold cost of living increases under ORS 29 238.360 from a retired member whose benefit is greater than the correctly 30 calculated benefit of the member until such time as the member's benefit is 31 12 We refer to this statutory provision as Section 14b. 12 equal to the correctly calculated benefit. 1 "(b) The board may treat all or part of the present value of the 2 benefits erroneously paid and payable to retired members as a result of the 3 erroneous benefit calculations as an administrative expense of the Public 4 Employees Retirement System, to be paid exclusively from future income 5 of the Public Employees Retirement Fund, and to be amortized over an 6 actuarially reasonable period not to exceed 15 years. 7 "(2) In no event may the cost of erroneous benefit calculation 8 methods identified in City of Eugene et al. v. State of Oregon be considered 9 an employer liability or charged to employers through employer 10 contributions. 11 "(3) Nothing in this section creates any contract right in any 12 member of the Public Employees Retirement system." 13 These two statutory provisions constitute the focal points of the litigation in these cases; 14 we discuss them in greater detail below. 15 After the legislature enacted the PERS reform legislation, PERB and the 16 employers involved in the City of Eugene litigation entered into a settlement agreement 17 that provided, in part: 18 "[E]xcept in the event of a supervening change in law (such as by a 19 legislative enactment or further court order): 20 "* * * * * 21 "1.3 The new 1999 earnings allocation order * * * will provide 22 that the appropriate earnings allocation to Tier [One] regular member 23 accounts is 11.33 [percent], that 7.5 [percent] of the 1999 earnings should 24 have been allocated to the contingency reserve established by ORS 25 238.670(1) and that the gain-loss reserve created by ORS 238.670(3) 26 should have been funded to the full extent of the former PERB's policy to 27 maintain a gain-loss reserve sufficient to credit the assumed interest rate to 28 Tier [One] regular member accounts during a period of 30 months of 0 29 [percent] earnings." 30 Following settlement of the City of Eugene litigation, PERB entered a revised earnings 31 13 crediting order setting the 1999 earnings credit allocation for Tier One regular member 1 accounts at 11.33 percent pending the outcome of the then still pending litigation 2 challenges to the 2003 PERS reform legislation.13 3 On March 8, 2005, this court issued its opinion in Strunk v. PERB 4 upholding the constitutionality of much of the PERS reform legislation. In Strunk, this 5 court did determine, however, that Tier One PERS members have a statutory contract 6 right to annual COLAs on their regular member accounts. 338 Or at 221-22. This court, 7 therefore, invalidated the COLA freeze mechanism that the legislature had included as a 8 part of its attempt to recoup what it deemed to be overpayments to the affected members' 9 regular accounts caused by the erroneous 20 percent earnings allocation determination 10 that had originally been made by PERB for 1999. Id. at 225. 11 On August 11, 2005, this court decided City of Eugene I, concluding that 12 the 2003 PERS reform legislation had effectively codified 11.33 percent as the legally 13 correct earnings credit allocation for 1999, thus affirming, legislatively, the trial court 14 ruling in City of Eugene. In dismissing the City of Eugene case as moot, this court noted 15 that PERB had already issued a revised 1999 earnings credit allocation order on April 12, 16 2004, which superseded the original 20 percent earnings allocation determination and 17 replaced it with the 11.33 percent earnings allocation determination. 18 Finally, on January 27, 2006, PERB issued its "Order Adopting Repayment 19 13 Individual PERS members who had intervened in the City of Eugene litigation did not agree to the settlement and continued with an appeal; the appeal, however, was ultimately dismissed by this court as moot in light of the 2003 PERS reform legislation. See ___ Or at ___ n 10 (slip op at 8 n 10). 14 Methods," which is the order challenged in these consolidated cases. In that order, PERB 1 established the methods that it intended to use to recover what PERB determined to be 2 overpayments made to Window Retirees based on the erroneous 20 percent earnings 3 allocation determination that was temporarily in effect when the Window Retirees retired. 4 The PERB Order Adopting Repayment Methods provides, in pertinent part: 5 "This matter came before the Board at its regularly scheduled 6 meeting on January 27, 2006. As a result of Oregon Supreme Court 7 decisions in Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005), and City of 8 Eugene v. PERB, 339 Or 113, 117 P3d 1001 (2005), and the settlement 9 agreement between the parties in the latter case, the Board previously 10 determined that the earnings on Tier One member regular accounts for 1999 11 should be reallocated at an earnings rate of 11.33 percent, instead of the 20 12 percent rate that originally was used. That reallocation, together with the 13 effect of eliminating the so-called 'COLA freeze' as required by Strunk, 14 results in a recalculation of benefit payments made to persons who had Tier 15 One member regular accounts that received earnings crediting for 1999. 16 This recalculation will affect Tier One members who retired on or after 17 April 1, 2000, and before April 1, 2004, other persons who received or are 18 receiving benefits based on those 1999 Tier One account balances, and 19 former members or beneficiaries who withdrew their accounts prior to the 20 earnings reallocation (referred to collectively as 'recipients' hereafter). 21 These recipients have received benefits in excess of the amounts they were 22 entitled to under ORS chapter 238. 23 "ORS 238.715 requires the Board to collect amounts paid in excess 24 of the benefit amounts recipient is entitled to under ORS chapter 238." 25 The challenged order also provides for various ways in which the amounts determined by 26 PERB to be "overpayments" could be repaid, including repaying the "overpayments" in a 27 lump sum or, if the retiree is receiving monthly benefits, repaying the "overpayments" by 28 actuarial reduction of their monthly payment pursuant to ORS 238.715.14 29 14 The express terms of PERB's order addressed to the repayment options are set out at ___ Or at ___ (slip op at 67). 15 With that historical factual and legal background in mind, we turn to the 1 issues and arguments involved in the claims asserted by the parties in these cases. We 2 first address the issues presented in the Arken case. 3 II. ARKEN 4 A. Breach of Contract Claim 5 1. Reach and Effect of Strunk Decision 6 As a threshold matter, the Arken plaintiffs contend that this court in Strunk 7 effectively determined both that the Window Retirees are entitled to receive retirement 8 benefits based on the erroneous 20 percent earnings credit allocation initially made by 9 PERB for calendar year 1999 and that the Window Retirees are also entitled to receive 10 annual COLA increases on those benefits. The Arken plaintiffs base that claim on their 11 reading of certain passages of this court's decision in Strunk. We disagree. 12 The Arken plaintiffs begin by noting that this court in Strunk stated that the 13 "fixed service retirement allowance" called for by Section 10 of the 2003 PERS reform 14 legislation "itself represents a determined allowance -- that is, an allowance expressly 15 determined by the legislature." Strunk, 338 Or at 223 (emphasis in original). The Arken 16 plaintiffs then rely on the immediately following discussion in Strunk, in which this court 17 noted: 18 "In light of that legislative determination, the 'fixed' service retirement 19 allowance cannot be said to transfer to the affected member any funds to 20 which the member (again in the legislature's determination) was not 21 entitled. As such, the 'fixed' service retirement allowance falls within the 22 scope of the promise set out in ORS 238.360(1) (2001) -- that is, that PERB 23 annually apply a COLA to each affected member's allowance (in years in 24 which the CPI warrants such a COLA) -- because the allowance represents 25 16 funds that the member, by legislative determination, is 'entitled to receive.'" 1 338 Or at 223. The Arken plaintiffs contend that this discussion constitutes a 2 determination by this court that the PERS reform legislation constituted an explicit 3 statutory promise to Window Retirees that they would receive the "fixed service 4 retirement allowance" (based upon the initial PERB earnings crediting allocation of 20 5 percent for calendar year 1999) and receive COLA increases on that retirement allowance 6 as well for as long as the Window Retirees received retirement benefits. 7 It is clear, however, that the Legislative Assembly did not make such a 8 statutory promise. The 2003 PERS reform legislation provided that the original service 9 retirement allowance for the Window Retirees should be recalculated in one of two ways: 10 a "revised retirement service allowance" and a "fixed retirement service allowance." 11 And, as this court expressly noted in Strunk, those two service retirement allowance 12 calculations were intended by the legislature to be designed to recoup what the legislature 13 "deemed to be overpayments to the affected members' regular accounts in 1999." Id. at 14 220. The "fixed" allowance retained the 20 percent earnings credit for 1999, but 15 eliminated COLAs until a member's retirement benefit based on the "fixed" allowance 16 was surpassed by that based on the "revised" allowance. The "revised" allowance 17 reduced the 1999 earnings credit to 11.33 percent, but continued to provide COLAs. 18 In Section 10, the legislature clearly and expressly tied the availability of 19 the "fixed service retirement allowance" to the COLA freeze that it intended to use as an 20 overpayment recoupment mechanism. Consequently, we conclude that the only 21 reasonable interpretation of that part of the 2003 PERS reform legislation is that, in 22 17 enacting Section 10, the legislature intended only that the Window Retirees receive 1 retirement benefits based on the 20 percent earnings crediting decision for a "short" 2 period of time -- i.e., until the "revised service retirement allowance" (based upon the 3 11.33 percent earnings crediting allocation, with COLAs) caught up. Thus, in enacting 4 the 2003 PERS reform legislation, the legislature did not promise the Window Retirees 5 long-term retirement benefits based upon the 20 percent earnings crediting allocation and 6 COLAs. 7 The Arken plaintiffs read this court's decision too broadly. This court's 8 discussion of the "fixed service retirement allowance" in Strunk must be understood in 9 the context of the precise issue that was before the court in Strunk. 10 In Strunk, this court addressed the "fixed service retirement allowance" 11 only in the context of that allowance coupled with the suspensions of COLAs as the 12 legislature's choice of a method of recouping overpayments. This court's discussion 13 about the "fixed service retirement allowance" constituting an allowance that the 14 legislature had determined the members were entitled to receive can only be read to reach 15 as far as whether the "fixed service retirement allowance" was a determined allowance to 16 which a COLA must attach under the terms of ORS 238.360. Whether the legislature 17 intended to and did promise the Window Retirees long-term retirement benefits based 18 upon the 20 percent earnings crediting allocation augmented by COLAs was not before 19 this court in Strunk. 20 Indeed, this court expressly noted the limited reach of its holding in Strunk. 21 For example, this court clarified: 22 18 "Put another way, the legislature took what it deemed to be 1 restorative action, but used as the mechanism for doing so an adjustment 2 that implicated the COLA provision of the PERS contract. Our conclusion 3 that that particular legislative action amounted to a breach of the PERS 4 contract, however, implies nothing about PERB's -- or, for that matter, the 5 legislature's -- authority to recover amounts determined to have been paid 6 from the fund in error." 7 338 Or at 224 n 58. In addition, in concluding the discussion about the COLA 8 suspension mechanism employed by the legislature, this court specifically noted that the 9 effect of the court's decision "is that petitioners will be returned -- at least for the time 10 being -- to the same position in which they would have been if the legislature had not 11 enacted the COLA suspension." Id. at 225 (emphasis added; footnote omitted). Those 12 caveats negate any suggestion that this court's decision in Strunk can or should be 13 interpreted to have the far-reaching effect that the Arken plaintiffs advocate, and we 14 decline to extend that decision beyond the specific issues addressed there. Thus, we find 15 no merit in the first argument presented by the Arken plaintiffs. 16 The Arken plaintiffs further contend, however, that the remedy that this 17 court established in Strunk effectively means that the statutory text of Section 10 leaves 18 no room for PERB to apply ORS 238.715 to recover any purported overpayments to 19 Window Retirees based upon the erroneous 20 percent earnings credit allocation for 20 1999. The Arken plaintiffs base their arguments on the text of Section 10, the remedy 21 they understand this court provided in the Strunk case, and the legislative history that 22 they provide concerning the 2003 PERS reform legislation. 23 The Arken plaintiffs note that this court in Strunk stated: 24 "under what we deem to be unique circumstances, we conclude that the 25 19 prudent dispositional action is to invalidate the offending statutory wording. 1 Accordingly, we declare that part of Oregon Laws 2003, chapter 67, section 2 10(3), that provides, '[t]he fixed service retirement allowance may not be 3 adjusted under ORS 238.360,' to be void." 4 338 Or at 225. Based upon that statement, the Arken plaintiffs contend that the terms of 5 Section 10 must be read to provide the Window Retirees with a statutory promise enacted 6 by the legislature to provide retirement benefits based upon the original 20 percent 7 earnings credit allocation for calendar year 1999 with COLAs attached. The Arken 8 plaintiffs contend that the dispositional language in Strunk set out above had the legal 9 effect of stripping out the last sentence of Section 10(3) and leaving the remainder of the 10 legislatively enacted provisions in place for all purposes -- including establishing an 11 entitlement for Window Retirees to long-term retirement benefits calculated on a 20 12 percent earnings credit allocation for 1999 with COLAs attached. 13 That argument, however, ignores a number of important contextual matters. 14 First, the argument takes the statement from Strunk quoted above out of context and 15 views it in isolation, which leads to an overly broad understanding of the effect this court 16 intended. As we previously noted, the very next sentence of this court's opinion in Strunk 17 states that the effect of the court's action "is that petitioners will be returned -- at least for 18 the time being -- to the same position in which they would have been if the legislature 19 had not enacted the COLA suspension." Id. at 225 (emphasis added). Those emphasized 20 terms demonstrate that this court's decision in Strunk did not establish the entitlement for 21 Window Retirees that the Arken plaintiffs urge. 22 That conclusion is further buttressed by the explicit caveat set out in Strunk 23 20 noted above -- viz., that the court's determination that the COLA suspension mechanism 1 the legislature used to recover overpayments to the Window Retirees in Section 10 2 breached the PERS contract "implies nothing about PERB's -- or for that matter, the 3 legislature's -- authority to recover amounts determined to have been paid from the fund 4 in error." Id. at 224 n 58. The position urged by the Arken plaintiffs now is to give this 5 court's decision in Strunk precisely the effect that this court stated it did not intend. In 6 summary, our decision in Strunk did not have the effect the Arken plaintiffs now urge, 7 and we do not agree that the Window Retirees have a statutory contract right based on 8 Section 10 to the retirement benefits claimed by the Arken plaintiffs. Once that mistaken 9 view is corrected, as we determine it must be, the proper analysis of Section 10 applies as 10 follows. 11 2. Whether the 2003 PERS Reform Legislation means ORS 238.715 cannot 12 be applied to Window Retirees 13 In interpreting the terms of a statute, the court will examine the text and 14 context of the statute and consider the legislative history of the statute where that 15 legislative history is useful in determining the meaning of the terms used. State v. 16 Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). However, it is also important to note 17 that the goal is to discern what the legislature that enacted the statute in question had in 18 mind at the time the legislature enacted the statue at issue. See, e.g., Holcomb v. 19 Sunderland, 321 Or 99, 105, 894 P2d 457 (1995) ("The proper inquiry focuses on what 20 the legislature intended at the time of enactment and discounts later events."). 21 Furthermore, as we noted in Strunk, it is particularly important to ascertain the intent of 22 21 the correct legislature when analyzing statutes to determine whether they constitute a 1 statutory contract, because the fundamental purpose behind such contracts is to bind 2 future legislative action. Strunk, 338 Or at 189. 3 Here, the terms of Section 10 manifest the 2003 legislature's intent to 4 restrict the retirement benefits that the Window Retirees would otherwise receive based 5 on PERB's erroneous 20 percent earnings credit allocation for calendar year 1999. That 6 intent is clear in the legislature's express coupling of the "fixed service retirement 7 allowance" established in Section 10(3) with the COLA suspension included in that same 8 subsection. Thus, the express terms of Section 10(3) show that the legislature that 9 enacted it intended it as a limitation on the retirement benefits that Window Retirees 10 should receive. See Gaines, 346 Or at 171 (words used by legislature to give expression 11 to its wishes are best evidence of legislative intent).15 12 Context and the legislative history of Section 10 support that determination 13 as well. First, it is significant that Section 10(3) is embedded in a statute that is 14 addressed, for the most part, to establishing the terms under which cost-of-living 15 increases are to be provided for service retirement allowances for Window Retirees. 16 Section 10(1) states: 17 "Notwithstanding ORS 238.360, cost of living increases for a service 18 retirement allowance that is payable to or on account of members described 19 15 The fact that this court subsequently struck down the COLA suspension mechanism in Strunk does not affect our analysis of the legislature's intent in enacting the statute because the relevant inquiry is addressed to the intent of the legislature at the time that it enacted the statute in question. See Holcomb, 321 Or at 105 (noting proper inquiry is to discern purpose legislature had in mind at time statute enacted). 22 in subsection (5) of this section may be made only as provided by this 1 section." 2 And Section 10(5) limits application of the section to those Tier One members of PERS 3 who have an effective date of retirement between April 1, 2000 and April 1, 2004 -- i.e, 4 the Window Retirees. Reading Section 10 as a whole, the goal of those statutory 5 provisions was to establish a means by which the cost-of-living adjustment would be 6 used to reduce the overall payout of retirement benefits to Window Retirees from what 7 they otherwise would receive by excluding those retirement benefits from the normal 8 application of COLAs under ORS 238.360. Those contextual provisions demonstrate 9 that the terms of Section 10(2) and Section 10(3) were intended to establish a means of 10 limiting the retirement benefits of Window Retirees, either by reducing the earnings 11 credit allocation for calendar year 1999 to 11.33 percent and allowing COLAs to continue 12 to apply to the reduced benefit amounts under ORS 238.360 (Section 10(2)), or by 13 suspending COLAs on retirement service allowances calculated on the 20 percent 14 earnings credit allocation (Section 10(3)). Those contextual clues reinforce our 15 determination that Section 10(3) was not intended to and does not establish an 16 entitlement for Window Retirees to receive long-term retirement benefits based on a 20 17 percent earnings credit for calendar year 1999, including annual COLAs. 18 Instead, Section 10 was intended to reduce retirement benefits that Window 19 Retirees receive in order to "recoup" some of the retirement benefits that otherwise would 20 be paid to them based on the 20 percent earnings credit allocation that the 2003 21 legislature had determined was excessive. As noted above, PERB's original 20 percent 22 23 earnings credit allocation for calendar year 1999 was challenged by several public 1 employers in the City of Eugene litigation. In that litigation, the trial court determined 2 that PERB had abused its discretion by allocating excessive earnings to member accounts 3 while not allocating any funds to the contingency reserve and not adequately funding the 4 gain-loss reserve. In light of that trial court ruling, PERS recalculated the earnings credit 5 for 1999 and concluded that, if the contingency reserve and gain-loss reserve had been 6 properly funded, the proper 1999 earnings credit allocation would have been 11.33 7 percent. The 2003 Legislative Assembly enacted Section 10 in that context as part of the 8 2003 PERS reform legislation. And in the preamble to HB 2003 (which became Oregon 9 Laws 2003, chapter 67), the Legislative Assembly expressly declared its view that "some 10 retirees are receiving benefits that exceed the benefits provided by law," thus indicating 11 that the goal of the legislation was to remedy the effects of prior actions by PERB. 12 Indeed, in that preamble, the legislature explicitly referred to the City of Eugene 13 litigation, stating that the legislation was intended to address the trial court's finding that 14 PERB had abused its discretion "in failing to set aside adequate statutorily mandated 15 reserves out of investment income while crediting imprudently large amounts of 16 investment income to member accounts[.]" 17 In light of the text, context, and this legislative history, we conclude that the 18 2003 Legislative Assembly did not intend Section 10(3) to establish an entitlement for 19 Window Retirees to receive retirement benefits based upon the 20 percent earnings credit 20 allocation originally made by PERB for calendar year 1999. That conclusion is 21 particularly significant in the circumstances presented here, because the terms of the 22 24 statutory PERS contract are a matter of legislative intent and only statutory terms that 1 "unambiguously evince[] an underlying promissory, contractual legislative intent" 2 become a part of the statutory PERS contract. Hughes v. State of Oregon, 314 Or 1, 26, 3 838 P2d 1018 (1992). The terms of Section 10 do not evince any such promissory intent 4 on the legislature's behalf. 5 Although the foregoing addresses the Arken plaintiffs primary arguments 6 under their first claim for relief, they also posit that, in enacting the PERS reform 7 legislation, the Legislative Assembly intended for that legislation to constitute the only 8 available methods for PERB to recover any overpayments to the Window Retirees. We 9 now turn to that argument. 10 The Arken plaintiffs note that the PERS reform legislation was built around 11 general principles that had been enunciated by Governor Kulongoski in "The Governor's 12 Standards for Public Pension Reform," which was provided to the House Committee on 13 PERS on April 17, 2003. The Arken plaintiffs assert that those general principles govern 14 how the PERS reform legislation should be interpreted and support their contention that 15 the reform legislation did not leave open any option for PERB to recover any 16 overpayments to the Window Retirees under ORS 238.715. 17 The Governor's Standards for Public Pension Reform articulated two 18 principles of primary import on which the Arken plaintiffs rely. The Governor urged that 19 PERS reform should protect retirees by not reducing the benefits of people who had 20 already retired and retaining what had already accrued in member accounts. Although 21 those goals may have been important parts of the discussion by interested parties 22 25 involved in the push for the 2003 PERS reform legislation, such generalized concepts do 1 not override the actual terms of the statutes enacted, the specific circumstances 2 surrounding enactment of the statute, or the more significant statements of the Legislative 3 Assembly itself indicating the legislature's intent in enacting the statutory provisions at 4 issue. 5 As the Arken defendants note, the express terms of the PERS reform 6 legislation did not address the continuing vitality of ORS 238.715. The legislature 7 certainly was aware of PERB's long-standing authority under ORS 238.715 to recover 8 overpayments made to PERS members. The legislature did not, however, include in the 9 2003 PERS reform legislation any provisions that directly address or directly negate 10 PERB's authority under that statute. This court has noted that repeal of a statutory 11 provision by mere implication is disfavored, see, e.g., State v. Langdon, 330 Or 72, 81, 12 999 P2d 1127 (2000) (repeal of statute by implication not favored and must be 13 established by plain, unavoidable, and irreconcilable repugnancy), and we discern no 14 reason in this circumstance to depart from that general rule. 15 Furthermore, while it can be problematic to rely on a legislative omission, 16 the enactment history of HB 2003 indicates that the legislature affirmatively chose to 17 leave the authority provided by ORS 238.715 resident in PERB. As introduced in the 18 2003 legislative session, HB 2003 expressly provided that the COLA freeze approach 19 was "in lieu of, and not in addition to, any action of the board taken pursuant to ORS 20 238.715." Those provisions were removed from the legislation during its consideration 21 by the Legislative Assembly, however, and were not included in the enrolled version of 22 26 HB 2003 that was enacted by the legislature. We agree with the Arken defendants that 1 this enactment history adds additional support to the conclusion that the 2003 PERS 2 reform legislation did not directly or indirectly eliminate the availability of the ORS 3 238.715 overpayment recovery authority. 4 Finally, this result is consistent with the overall goals of the 2003 PERS 5 reform legislation. As noted above, the legislature articulated in the preamble to HB 6 2003 that the legislation was intended to remedy the effects of PERB's prior actions, 7 including the erroneous crediting of large amounts of investment income to member 8 accounts that had been identified in the City of Eugene litigation. In light of the 9 foregoing, we conclude that the Legislative Assembly did not intend to eliminate sub 10 silentio the authority of PERB to apply the overpayment recovery provisions of ORS 11 238.715 to the Window Retirees. 12 In sum, we conclude that the Arken plaintiffs' arguments that the 2003 13 PERS reform legislation constituted a statutory promise that the Window Retirees are 14 entitled to receive retirement benefits based on the 20 percent earnings credit allocation 15 for 1999, including COLAs, are not well taken. And we further conclude that the 2003 16 PERS reform legislation did not eliminate PERB's authority under ORS 238.715 to seek 17 to recover overpayments to PERS members, including the Window Retirees. We 18 therefore affirm the trial court's grant of summary judgment against the Arken plaintiffs 19 on their breach of contract claim. 20 B. Promissory Estoppel 21 We next consider the Arken plaintiffs' argument that PERB should be 22 27 precluded from applying ORS 238.715 to the Window Retirees based on the doctrine of 1 promissory estoppel. The framework for plaintiffs' promissory estoppel argument is 2 essentially that: (1) representations were made in notices to Window Retirees that future 3 benefits would be based on the 20 percent earnings rate for 1999; (2) PERB reasonably 4 expected Window Retirees to rely on these representations in making retirement 5 decisions; and (3) Window Retirees did reasonably rely on these representations in 6 making retirement decisions. 7 Although the Arken plaintiffs' claims follow the general contours of Oregon 8 promissory estoppel law,16 promissory estoppel against a governmental entity, however, 9 can be applied only in limited circumstances. For example, in Wiggins v. Barrett & 10 Associates, Inc., 295 Or 679, 669 P2d 1132 (1983), this court set out the specific 11 circumstances that supported application of promissory estoppel in that case. The court 12 stated: 13 "(2) Can a municipality be bound by the promise of its agent acting 14 16 In Coos County v. State of Oregon, 303 Or 173, 734 P2d 1348 (1987), this court described the essential elements of promissory estoppel in the following terms: "The elements of equitable estoppel in Oregon were set out by this court in Oregon v. Portland Gen. Elec. Co., 52 Or 502, 528, 95 P 722 (1908): "'To constitute estoppel by conduct there must (1) be a false representation; (2) it must be made with knowledge of the facts; (3) the other party must have been ignorant of the truth; (4) it must have been made with the intention that it should be acted upon by the other party; (5) the other party must have been induced to act upon it: Bigelow, Estoppel (5 ed), 569, 570.'" 303 Or at 180-81. 28 beyond the scope of his actual authority? We hold that the municipality 1 may be bound if (a) the municipality clothes the agent with apparent 2 authority, (b) the promise is one which the municipality could lawfully 3 make and perform, (c) there is no statute, charter, ordinance, administrative 4 rule, or public record that puts the agent's act beyond his authority, (d) the 5 person asserting the authority has no reason to know of the want of actual 6 authority, and (e) the municipality has accepted and retained the benefit 7 received by the municipality in return for the promise." 8 Id. at 683. Although not every one of the circumstances noted in Wiggins will 9 necessarily be required in every case to conclude that promissory estoppel may 10 appropriately be applied to a governmental entity, a comparison of the circumstances 11 present here to the factors identified in Wiggins reveals numerous reasons why 12 promissory estoppel is inapplicable here. 13 First, as we have stated earlier, whether a promise is a part of the PERS 14 statutory contract depends on the precise terms of the statutory provisions enacted by the 15 Legislative Assembly. The fact that the representations on which plaintiffs rely were 16 made by PERB, and not the Legislative Assembly, is telling. Indeed, as this court 17 previously noted in Strunk, the legislature has not clothed PERB with apparent authority 18 to determine the parameters of the PERS statutory contract -- rather, PERS is a statutory 19 contract and there is "no Oregon statute indicating that the legislature intended to permit 20 PERB or any other entity as a general matter to set or alter any terms of the PERS 21 statutory contract." 338 Or at 175 (footnote omitted). 22 Moreover, given our determination in Strunk that, in enacting Section 10, 23 the Legislative Assembly "effectively codif[ied] the 11.33 percent figure as the correct 24 1999 crediting decision[,]" 338 Or at 216 (footnote omitted), the purported promise by 25 29 PERB to calculate their retirement benefits on a 20 percent crediting allowance for 1999 1 is a promise that PERB could not lawfully make. In other words, we have already 2 determined that there are statutory provisions that put such a promise beyond PERB's 3 authority to make. 4 Finally, the Window Retirees had reason to know that PERB lacked the 5 authority to make the alleged representations on which they rely. PERB's 1999 earnings 6 crediting decision was timely challenged by the public employers involved in the City of 7 Eugene litigation discussed earlier. As we stated in Strunk, "[a]s a result of the court 8 challenges to PERB's 1999 crediting decision, that decision was potentially subject to 9 reversal at the time that the legislature enacted Oregon Laws 2003, chapter 67, sections 9 10 and 10, as amended by Oregon Laws 2003, chapter 625, section 13." Strunk, 338 Or at 11 216-17. And, as the trial court noted, although the individual Window Retirees may not 12 each have had personal knowledge about the vagaries of administrative and appellate 13 court case law and procedure, they are charged with notice that the 1999 earnings 14 crediting decision was subject to judicial review under ORS 183.484 and subject to 15 potential reversal or change. As defendant PERB asserts, "Given that the 1999 earnings 16 crediting decision was not yet final and was the subject of highly-publicized litigation, 17 plaintiffs could not have reasonably relied on it." Similarly, this court has previously 18 stated that the existence of a law in the public domain makes reliance on a contrary 19 representation patently unreasonable, precluding estoppel. See Committee in Opposition 20 v. Oregon Emergency Correc., 309 Or 678, 686, 792 P2d 1203 (1990) (so stating). 21 We thus conclude that the trial court correctly granted summary judgment 22 30 against the Arken plaintiffs' second count of their contract claim for relief based on 1 promissory estoppel. 2 C. Wage Claim 3 In their second claim for relief, the Arken plaintiffs assert that retirement 4 benefits come within the scope of "wages" under ORS 652.610 and that the Arken 5 defendants violated the wage claim statutes by not timely paying Window Retirees the 6 COLA increases on their retirement benefits that they contend were due based on this 7 court's decision in Strunk. The Arken plaintiffs cite Kantor v. Boise Cascade Corp., 75 8 Or App 698, 708 P2d 356 (1985), rev den, 300 Or 506 (1986) -- which in turn cites this 9 court's decision in State ex rel Nilsen v. Ore. Motor Ass'n, 248 Or 133, 432 P2d 512 10 (1967) -- and Allen v. County of Jackson County, 340 Or 146, 129 P3d 694 (2006), for 11 the proposition that the term "wages" has been broadly construed to include pension 12 benefits. The Arken plaintiffs further contend that PERB acts as the agent for the 13 Window Retirees' actual employers for purposes of pension benefits, and that the public 14 employers are ultimately liable for the cost of providing the benefits and wages that they 15 allege they are due, citing Stovall v. State of Oregon, 324 Or 92, 922 P2d 646 (1996). 16 The Arken defendants generally take issue with whether PERS pension 17 payments come within the scope of the wage claim statutes, asserting that the issues 18 involved here do not revolve around employer actions in withholding contributions to a 19 pension plan or in refusing to pay a private pension amount, which were the 20 circumstances involved in Kantor, SER Nilsen, and Allen. The public-employer Arken 21 defendants further contend that, once employees retire, their former employers have no 22 31 control over the issuance of retirement benefits checks, and when, as here, an employer 1 has done nothing to cause an incorrect payment, the wage claim statutes should not be 2 interpreted to apply to the employer. Defendant PERB, for its part, further contends that 3 it is not an employer to whom the wage claim statutes apply. 4 It is unnecessary to address many of the issues raised by the parties under 5 this claim because the major premise underlying the Arken plaintiffs' wage claim is 6 incorrect. The Arken plaintiffs base their wage claim on their assertion that PERB did not 7 timely pay them COLA increases on their retirement benefits, as they contend this court's 8 decision in Strunk required. 9 From our review of the record -- and none of the parties to this litigation 10 contends otherwise -- it appears that when individual Window Retirees have actually 11 retired they would have begun receiving retirement benefits under the 2003 PERS reform 12 legislation based either on their "revised service retirement allowance" or their "fixed 13 service retirement allowance," whichever was the larger amount. See Section 10(4). If 14 they received retirement benefits based on a "revised service retirement allowance," they 15 would have begun receiving benefits based upon an earnings credit allocation of 11.33 16 percent for calendar year 1999, and they would also have received COLA increases on 17 those benefits under Section 10(2). Consequently, no Window Retirees receiving 18 retirement benefits based on a "revised service retirement allowance" would have been 19 deprived of any COLA payments to which they were entitled, and they would have no 20 basis to assert any wage claim based on an assertion that they had not received COLA 21 payments. Indeed, we do not understand the Arken plaintiffs to assert that any Window 22 32 Retiree who has received retirement benefits under the "revised service retirement 1 allowance" provisions of Section 10 (if, in fact, there were any Window Retirees who 2 have done so) has any basis for a wage claim. 3 Furthermore, Window Retirees who retired and began receiving retirement 4 benefits under a "fixed service retirement allowance" under Section 10(3) would have 5 begun receiving benefits based on the erroneous earnings credit allocation of 20 percent 6 for calendar year 1999. They would have received retirement benefits based on that 20 7 percent earnings credit allocation for calendar year 1999 from the date of their retirement 8 until the time that PERB both issued the Order Adopting Repayment Methods on January 9 27, 2006 (the order that is challenged in this case) and applied the repayment methods set 10 out in that order to each of those Window Retirees through an individual determination. 11 As we have discussed at length, we have determined that the Window Retirees were not 12 entitled to receive long-term retirement benefits based on a 20 percent earnings credit 13 allocation for 1999, including COLAs. This court's decision in Strunk determined only 14 that the legislature's choice to eliminate COLAs on the "fixed service retirement 15 allowance" was not a method available for the legislature to recoup overpayments. 16 Consequently, the Window Retirees who have received retirement benefits based on a 17 "fixed service retirement allowance" calculation have received retirement benefits for 18 some period of time based on the erroneous 20 percent earnings credit allocation for 19 calendar year 1999 -- and such payments contain an amount which constitutes an 20 overpayment of the retirement benefits to which they are actually entitled. 21 33 That is what PERB determined in the order that is challenged in this case17 1 and the record shows that PERB has applied that order in a manner that is consistent with 2 that determination. The individualized determination letters that PERB has issued to 3 Window Retirees, at least as shown by those contained in the record of this proceeding, 4 show how PERB has calculated overpayments to Window Retirees: 5 "After making the Strunk and Eugene recalculations, we determined 6 that you have been overpaid benefits. We calculated the amount of 7 overpayments as follows: 8 "1. We totaled the benefits that have been and will be paid to you 9 from your retirement date * * * to the recalculation date * * *. 10 "2. We then totaled the monthly benefits you should have received 11 after the Strunk and Eugene recalculations, including Cost of Living 12 Adjustments (COLAs), from your retirement date * * * to the recalculation 13 date * * *. 14 "3. The difference between what you were paid (number 1, above) 15 17 PERB's January 27, 2006, order states: "As a result of Oregon Supreme Court decisions in Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005) and City of Eugene v. PERB, 339 Or 113, 117 P3d 1001 (2005), and the settlement agreement between the parties in the latter case, the Board previously determined that the earnings on Tier One member regular accounts for 1999 should be reallocated at an earnings rate of 11.33 percent, instead of the 20 percent rate that originally was used. That reallocation, together with the effect of eliminating the so-called 'COLA freeze' as required by Strunk, results in a recalculation of benefit payments made to persons who had Tier One member regular accounts that received earnings crediting for 1999. This recalculation will affect Tier One members who retired on or after April 1, 2000, and before April 1, 2004, other persons who received or are receiving benefits based on those 1999 Tier One account balances, and former members or beneficiaries who withdrew their accounts prior to the earnings reallocation (referred to collectively as 'recipients' hereafter). These recipients have received benefits in excess of the amounts they were entitled to under ORS chapter 238." 34 and what you should have been paid (number 2, above) is the overpayment 1 amount." 2 Thus, PERB has recalculated retirement benefits for Window Retirees by revising the 3 1999 earnings credit allocation from 20 percent to 11.33 percent as required by the 2003 4 PERS reform legislation. PERB has also given those Window Retirees credit for COLA 5 payments on the recalculated retirement benefits from the date that the Window Retirees 6 retired through the recalculation date. PERB thus has paid the Window Retirees all the 7 retirement benefits to which they are entitled under the PERS reform legislation and 8 under this court's decisions in Strunk and City of Eugene. Consequently, we conclude 9 there is no basis for any claim that Window Retirees were not timely paid all amounts 10 they were due. 11 Although the Arken plaintiffs did aver in the trial court proceedings in this 12 case that "PERS staff predicted that in some instances, the amount PERS owed certain 13 retirees [for the not yet paid COLAs] would exceed the amounts owed by such retirees 14 [for the overpayments]," they have made no showing in this record that PERB's 15 prediction came to pass. The Arken plaintiffs cited PERB's Cross-Motion for Summary 16 Judgment as the source for their contention, but in that motion PERB contended only as 17 follows: 18 "First, PERS calculates the retroactive amount that it owes each 19 affected member for the COLA freeze and other possible under-crediting 20 identified in Strunk. Second, PERS calculates what amount, if any, the 21 recipient owes PERS, based on recalculations using the correct 11.33 22 percent 1999 earnings crediting. Some affected members may not receive 23 any payment for the first element (the COLA freeze reversal) because the 24 amount they owe PERS will exceed the COLA freeze repayment. For 25 those members, their payments to PERS will be reduced by the COLA 26 35 freeze repayment. Others may have the amount PERS owes for the reversal 1 of the COLA freeze reduced by offsetting the recoupment. In either case, 2 each affected member will receive the benefit of the Strunk decision. 3 Plaintiffs conceded these facts, but try to paint the offset as a refusal by 4 PERB to 'pay' the COLAs. Plaintiffs' MSJ, p 6. PERB has a right to offset 5 the amount due to retirees by the amount they owe to PERS. See ORS 6 238.715." 7 We do not view that as an admission by PERS that there necessarily were any PERS 8 members who would be owed money by PERS after the recalculations were completed. 9 And, based on the record developed in this case and shown to this court, we are unaware 10 of any individuals for whom the COLA amounts they should receive based on the 11.33 11 percent earnings credit allocation for 1999 are larger than the overpayments they have 12 already received from the benefits that they have been given based on the 20 percent 13 earnings credit allocation that was originally in place. The record shows only that the 14 Window Retirees ended up owing overpayment amounts to PERS after they were 15 credited with the COLA payments that had been frozen. 16 The essence of a wage claim is an assertion that one has not received 17 payment from one's employer of "wages due and owing." ORS 652.120(1); Allen, 340 18 Or at 155. We are persuaded that, at the end of the recalculations conducted by PERS, 19 the Window Retirees were provided with the correct benefit amounts taking into 20 consideration the effects of both the earnings credit allocation reduction and the 21 reinstatement of COLAs on the correctly calculated benefit amounts. Here, we need not 22 decide whether Oregon's wage claim statutes apply to a claim that a PERS retiree is 23 receiving less in retirement benefits than the amount to which the retiree is entitled 24 because we determine that the Window Retirees timely received their retirement benefits 25 36 in the correct amount. 1 D. Declaratory and Injunctive Relief Under APA 2 The Arken plaintiffs also seek declaratory and injunctive relief under the 3 APA. They contend that PERB's action under ORS 238.715 to recover alleged 4 overpayments was improper, because PERB did not make individualized determinations 5 that a member did, in fact, receive amounts in excess of the amounts to which the 6 member was entitled, that PERB did not provide the required notice to members before 7 reducing their benefits, and that PERB continued withholding of COLAs after Strunk was 8 decided. 9 The Arken plaintiffs' first claim for declaratory relief essentially contends 10 that PERB could not continue to withhold COLA payments from Window Retirees on 11 benefit payments for calendar years 2003, 2004, and 2005, after this court's decision in 12 Strunk without first determining in an individual case whether the COLA payments owed 13 to the individual member exceeded the reduction in that member's benefit caused by the 14 reduction in the earnings credit allocation to 11.33 percent. The Arken plaintiffs assert 15 that, for those members who were ultimately determined to be owed money by PERS 16 because the COLA payments they should have received were greater than the benefit 17 reductions caused by the 2003 PERS reform legislation, the continued withholding of the 18 COLA payments was "contrary to ORS Chapter 238, outside the range of discretion 19 delegated to PERB, and contrary to the fiduciary obligations under ORS 238.660 to pay 20 all benefits owing when owed." The Arken plaintiffs do not develop those arguments, 21 however, and we do not find them persuasive. 22 37 We conclude that PERB acted reasonably and within its statutory authority 1 in determining that the best course of action was to simultaneously calculate the 2 reduction in benefits caused by the reduction in the 1999 earnings credit allocation and 3 the effect of reinstituting the COLA payments, and then to determine whether individual 4 members owed money to PERS due to an overpayment or were owed money by PERS 5 because the COLA payment amounts were greater than the earnings credit reduction. 6 Defendant PERB notes that this court issued its decision in Strunk on 7 March 8, 2005, and PERB contends that it acted with diligence to reverse the COLA 8 freeze promptly following Strunk. PERB relates that, at its subsequent Board meetings in 9 March, April, September, and October of 2005, the Board developed rule modifications 10 and staffing needs and undertook a comprehensive review of the various implementation 11 methods that could be used to implement this court's decision in Strunk and the other 12 changes called for under the 2003 PERS reform legislation and the settlement of the City 13 of Eugene litigation. PERB is charged with serving as a fiduciary for the fund under 14 ORS 238.601, and the methodology PERB chose avoided the need to go through two (or 15 more) costly and time-consuming recalculation efforts while still ensuring that the 16 individual members received all the benefits to which they are entitled. Under those 17 circumstances, PERB did not abuse its discretion in developing the methodology it used 18 to implement the various changes it was required to make, including "delaying" 19 implementation of this court's Strunk decision so that it occurred simultaneously with the 20 other necessary changes. 21 The Arken plaintiffs' second claim for declaratory relief is premised on their 22 38 assertion that, under ORS 238.715(4), PERB was required to give members notice of the 1 overpayment "[b]efore reducing a benefit to recover an overpayment or erroneous 2 payment." The Arken plaintiffs present that argument as if the continued withholding of 3 COLA payments by PERB is the functional equivalent of seeking to recover an 4 overpayment. That argument is inapposite on the facts here. In continuing to withhold 5 COLA payments until the comprehensive recalculation of benefits could be completed, 6 PERB did not affirmatively reduce member benefits. Rather, PERB maintained the status 7 quo. And, in those instances in which PERB determined that overpayments would be 8 recovered from Window Retiree accounts, PERB provided the affected members with the 9 requisite notice and an opportunity for a contested case proceeding to challenge the 10 amounts that PERB had determined were owed. In fact, PERB issued a letter that 11 accompanied the Order Adopting Repayment Methods (the order challenged in this case). 12 In that letter, PERB notified the Window Retirees, including the plaintiffs in this case 13 that: 14 "PERS will send a letter to each affected recipient that details the benefits 15 received to date, the amount of the overpayment (or underpayment), and the 16 methods to repay PERS the amount of the overpayment. PERS will send 17 individual letters at the time PERS recalculates the recipient's benefits. We 18 anticipate this process will begin in April 2006 and take up to three years to 19 complete." 20 Plaintiffs' argument that PERB did not provide the required notice is misplaced. 21 Finally, the Arken plaintiffs' claim for injunctive relief is similarly without 22 merit. As presented, the claim for injunctive relief is an alternative ground for relief 23 based on the arguments presented under the other claims for relief. We have already 24 39 determined those claims to be unavailing.18 1 III. ROBINSON 2 The Robinson petitioners (the Window Retirees) also challenge the PERB 3 order issued on January 27, 2006, but from a different starting point. As noted above, the 4 challenged PERB order required Window Retirees to repay overpayments they received 5 based on the original 20 percent earnings allocation credited for 1999. The PERB order 6 relied on PERB's authority pursuant to ORS 238.715 to recover overpayments directly 7 from the Window Retirees. The Robinson petitioners sought both a declaration that the 8 PERB order is unenforceable and an injunction prohibiting PERB from collecting any of 9 the alleged overpayments except as permitted by Section 14b of the 2003 PERS Reform 10 legislation (Oregon Laws 2003, chapter 67, section 14b, as amended by Oregon Laws 11 2003, chapter 625, section 31).19 12 In asserting their claims, the Robinson petitioners necessarily acknowledge, 13 or at least assume for the purposes of their argument, that the amounts at issue (the 14 amounts the Window Retirees have received based on the erroneous 20 percent earnings 15 allocation, above and beyond what they would have received based on the revised 11.33 16 percent earnings allocation), constitute benefits erroneously paid to retired members as a 17 18 The Arken plaintiffs also raise a second assignment of error asserting that the trial court erred in denying their motion for partial summary judgment on count one of their first claim for relief and on their second claim for relief. In support of that assignment of error, they rely on arguments that we have already addressed. We need not discuss those arguments further here; it is sufficient to state that we determine that the trial court did not err in denying plaintiffs' motion for partial summary judgment. 19 The full text of Section 14b is set out at ___ Or at ___ (slip op at 11-12). 40 result of erroneous benefit calculation methods identified in the City of Eugene litigation. 1 That is so because Section 14b applies only to recovery of the "cost of benefits 2 erroneously paid." 3 Section 14b sets out two mechanisms for recovering those costs. First, 4 under Section 14b(1)(a), PERB "may withhold cost of living increases under ORS 5 238.360 from a retired member whose benefit is greater than the correctly calculated 6 benefit of the member until such time as the member's benefit is equal to the correctly 7 calculated benefit." Second, under Section 14b(1)(b), PERB "may treat all or part of the 8 present value of the benefits erroneously paid * * * as an administrative expense of 9 [PERS], to be paid exclusively from future income of the [PERF], and to be amortized 10 over an actuarially reasonable period not to exceed 15 years." 11 The trial court agreed with the Robinson petitioners that Section 14b 12 applies to the benefits that the Window Retirees have already received based on the 20 13 percent earnings allocation determination. The trial court concluded that PERB had erred 14 in relying on ORS 238.715 to recover overpayments, reasoning that Section 14b was 15 intended to and did set out the universe of available remedies for recovery of excess 16 benefits paid to Window Retirees based on the 20 percent earnings allocation 17 determination. In addition, the trial court determined that this court's decision in Strunk, 18 which voided the prohibition on COLAs under Section 10 of the 2003 PERS reform 19 legislation, necessarily signaled that the mechanism of withholding COLAs set out in 20 Section 14b(1)(a) is similarly void. The trial court, therefore, determined that the only 21 available mechanism for PERB to recover the costs of benefits erroneously paid to the 22 41 Window Retirees was to treat those costs as PERS administrative expenses to be paid 1 from future income of the PERF as provided in Section 14b(1)(b). 2 The net effect of treating the benefits erroneously paid to the Window 3 Retirees as administrative expenses is that the costs of those benefits will be borne by all 4 Tier One and Tier Two members of PERS with existing accounts as the administrative 5 expenses are paid from future income of the PERF. That result was described in an 6 exhibit that was presented to the PERB at its September 23, 2005, meeting, and made a 7 part of the trial court record in this case: 8 "Normally, retirement allowances may not be treated as 9 administrative expenses. Section 14b(1)(b) of HB 2003 * * * attempts to 10 modify this rule. Assuming that HB 2003 validly amended the PERS 11 statute to allow treatment of the benefit overpayments as administrative 12 expenses, as qualified by Section 14b(2) * * * the excess benefits 13 payments would be chargeable solely to earnings that would otherwise be 14 credited to the remaining member regular accounts. Thus, Tier One and 15 Tier Two members with existing regular accounts would subsidize the 16 retirement allowances received and to be received by the so-called "window 17 retirees" (those retiring between April 1, 2000 and March 31, 2004). This 18 would likely result in the benefits payable in the future to those Tier One 19 and Tier Two members to be lower than they otherwise would be. 20 "* * * * * 21 "Fiscal Analysis: Charging these overpayments to administrative 22 expenses necessarily puts the burden of repayment on current members. 23 Not only would their accounts be adjusted for the 1999 earnings over- 24 crediting, but their future earnings would be reduced to pay for the amounts 25 overpaid to retired members because administrative expenses are charged 26 first against available earnings in a calendar year and, if there are none, paid 27 for by employers. Future earnings do not generally affect currently payable 28 retirement, withdrawal, or death benefits, so the 'window retirees' would 29 receive the full benefit of the 1999 earnings over-crediting and not 30 contribute to its recovery." 31 (Footnote omitted.) 32 42 On appeal, the Robinson respondents (local government respondents and 1 respondent PERB) contend that the trial court made numerous errors in concluding that 2 Section 14b required the benefits erroneously paid to the Window Retirees to be charged 3 as PERS administrative expenses. We turn first to the arguments raised by the Robinson 4 local government respondents and PERB contending that Section 14b does not apply to 5 the overpayments made to the Window Retirees. 6 A. Section 14b's Application to the Overpayments to Window Retirees Based on the 7 20 Percent Earnings Allocation in 1999 8 The Robinson local government respondents and PERB contend that 9 Section 14b does not apply because the overpayments are not the result of an "erroneous 10 benefit calculation" identified in the City of Eugene litigation. Judge Lipscomb, the trial 11 court judge in City of Eugene, certainly identified PERB's 20 percent earnings credit 12 allocation as a significant issue involved in that litigation, and, in fact, all parties agree 13 that one of the major determinations made by Judge Lipscomb in City of Eugene was that 14 PERB erred in making the 20 percent allocation determination. Judge Lipscomb found 15 that PERB abused its discretion and erred as a matter of law in not adequately funding the 16 contingency reserve and the gain-loss reserve in 1999, and Judge Lipscomb instructed 17 PERB to issue a new, corrected earnings allocation determination for calendar year 1999. 18 The more narrow issue presented by the Robinson respondents, however, is 19 whether that earnings credit allocation determination comes within the parameters of the 20 terms "one or more of the erroneous benefit calculation methods" identified in the City of 21 Eugene litigation within the meaning of Section 14b. The Robinson respondents argue 22 43 that there is a distinct difference between the 20 percent earnings credit allocation error 1 and errors such as using outdated actuarial factors and requiring employers to match 2 earnings from the Variable Annuity Program in the money match calculation, which they 3 agree are "erroneous benefit calculations" for purposes of Section 14b. 4 1. Plain meaning -- text and context of Section 14b 5 The Robinson respondents argue that the plain meaning of the terms of 6 Section 14b distinguish between benefit calculation errors and overpayments resulting 7 from the erroneous 1999 earnings credit determination. They rely in part on provisions in 8 the preamble of HB 2003, which describe the City of Eugene litigation as having 9 involved three different determinations by the trial court. The Robinson respondents note 10 that the preamble describes the City of Eugene litigation as having found that PERB 11 "paid benefits in excess of those authorized by law by: (a) Unlawfully 12 using outdated mortality tables to calculate retirees' monthly benefits; (b) 13 Unlawfully requiring employers to match earnings in the employees' 14 variable accounts when those employees' pensions are calculated under the 15 'money match formula'; and (c) Unlawfully abusing its discretion in failing 16 to set aside adequate statutorily mandated reserves out of investment 17 income while crediting imprudently large amounts of investment income to 18 member accounts[.]" 19 (Emphasis added.) The Robinson respondents contend that, because the first two 20 categories use the term "calculate," those are the only categories contained within the 21 terms "erroneous benefit calculation methods" as used in Section 14b.20 The Robinson 22 20 We note that the Robinson respondents emphasize the phrase "erroneous benefit calculations" rather than the phrase "erroneous benefit calculation methods," even though both phrases appear in Section 14b. We think, in fact, that the terms "erroneous benefit calculation methods" more accurately set out the subject matter of Section 14b because those are the terms used to describe the errors identified in the City of Eugene 44 respondents also point to a similar difference in the terms used by Judge Lipscomb in the 1 City of Eugene case to describe the errors that he found. Respondent PERB notes that the 2 trial court's ORCP 67 B judgment refers to the PERB's error in requiring employers to 3 match Variable Annuity Account earnings as an error that "caused benefits to be 4 calculated" erroneously and refers to PERB's error in the use of outdated actuarial 5 equivalency factors as causing PERB to have "calculated benefits" erroneously. 6 Although there is the linguistic distinction that the Robinson respondents 7 note, their argument places an unwarranted emphasis on the term "calculate" as it is used 8 in the preamble. First, the preamble itself describes three errors by PERB, not two, that 9 led to payment of benefits to Window Retirees in excess of those authorized by law, 10 including the error committed by PERB in failing to set aside adequate reserves while 11 crediting imprudently large amounts of investment income to member accounts. Second, 12 as the Robinson petitioners note, Section 14b provides that the section applies if PERB 13 "is required to correct one or more of the erroneous benefit calculation methods identified 14 in City of Eugene, et al." (Emphasis added.) The use of the terms "one or more" in 15 referring to the errors identified in the City of Eugene litigation is telling when juxtaposed 16 with the legislature's use of the terms "one or both" later in that same statutory section to 17 identify the two cost recovery mechanisms provided in Section 14b(1)(a) and (b). 18 Furthermore, neither the trial court judge involved in the City of Eugene case nor the 19 legislature used the term "calculate" as precisely as the Robinson respondents assert. For 20 litigation. 45 example, in its Opinion and Order issued October 7, 2002, the trial court stated in its 1 conclusion: "Upon remand, the Board must issue new employer rate orders for 1998 and 2 2000, and a new earnings allocation order for the 1999 investment year. These new 3 orders will inevitably have a significant effect not only on the accounts of the petitioning 4 employers, but also on each account in the system, including the accounts of individual 5 members." We discern from that statement that the trial court understood the interrelated 6 nature of the errors the court had found. 7 The earnings credit allocation is one of the basic building blocks for the 8 calculation of PERS retirement benefits for those PERS members who have a regular 9 member account in PERS. As this court stated in Strunk, "Every PERS member has a 10 regular 'account' in PERS. The member's regular account consists of the member's 11 contributions to the system and earnings that PERB has credited to those contributions." 12 Id. at 158. This court also observed that, 13 "[u]nder the Money Match [method of determining retirement benefits], a 14 member's service retirement allowance is calculated by determining the 15 sum of the actuarial equivalent of the member's account balances at 16 retirement (the annuity component) and then adding a sum in an equal 17 amount that is charged to the employer, i.e., the 'match' (the pension 18 component)." 19 Id. at 161. We agree with the Robinson petitioners that the earnings credit allocation 20 determination is an integral part of the calculation of retirement benefits for all Tier One 21 PERS members who retire under the Money Match method for determining a member's 22 service retirement allowance, including the Window Retirees involved in this litigation. 23 As a conceptual matter, there is no real distinction between the types of 24 46 errors the trial court found in the City of Eugene litigation. As the Robinson petitioners 1 observe: 2 "All of the Eugene errors were of the same kind -- the use of an 3 incorrect value in calculating retiree benefits: the wrong earnings credit (20 4 % instead of 11.33%), the wrong actuarial factor (old instead of current) or 5 the wrong employer contribution value (to match the variable account 6 balance instead of regular account balance). Though appearing at different 7 points in the overall calculation of benefits, they were all equally 8 'calculation methods identified' in City of Eugene and covered by section 9 14b." 10 The Robinson respondents concede that the outdated actuarial factor error and the error in 11 requiring employers to match the variable account balance come within the scope of 12 erroneous benefit calculation methods. We conclude, based on statutory text and context, 13 that the earnings credit allocation error also qualifies as a benefit calculation 14 methodological error. 15 2. Legislative history 16 The parties, citing this court's decision in Gaines, 346 Or 160, all also point 17 to pieces of the extensive legislative history surrounding enactment of the PERS reform 18 legislation that they contend support their respective views about the purported scope and 19 meaning of Section 14b. Ultimately, however, the voluminous legislative history 20 provides little clarity about the legislature's intent in enacting Section 14b. 21 First, as the trial court noted below, the Governor, who advocated for the 22 2003 PERS reform legislation, and the Legislative Assembly, which enacted the 23 legislation, both were faced with difficult circumstances and an uncertain legal landscape. 24 As the trial court stated, 25 47 "The legislators and governor were faced with what seemed like insurmountable 1 legal and financial problems and could not possibly have predicted how the 2 Supreme Court would decide the Strunk and City of Eugene cases. They did their 3 best to set up a legislative structure which would permit PERS to survive the 4 differing potential outcomes and to be as fair as possible to the affected retirees, 5 while not punishing the employers who at that point had prevailed in the early 6 stages of City of Eugene." 7 Much of the legislative history presents generalities about the overall intent of the PERS 8 reform legislative package, which are of little help in discerning the precise parameters of 9 Section 14b. 10 Second, the proposed 2003 PERS reform legislation changed frequently 11 during the legislative process, and much of the legislative history presented addresses 12 versions of bills that the legislature ultimately did not enact. Those references to the 13 legislative history, too, are not helpful in determining the scope and meaning of Section 14 14b as it was ultimately enacted. 15 Third, and finally, the legislative history that is directly relevant to Section 16 14b is confusing and conflicting, and in any event, not enlightening. For example, the 17 Robinson respondents (PERB and local government employers) cite statements made by 18 Senator Tony Corcoran, one of the carriers of HB 2003, who described the bill as having 19 three major components, including correcting for the over-crediting of Tier One member 20 accounts and correcting the errors identified in the City of Eugene litigation. They also 21 cite statements by Deputy Legislative Counsel David Heynderickx, who noted that 22 "Section 14b directs the board on how to recover the cost of erroneously paid benefits 23 and tells them to do it in one or two ways or a combination * * * and that's of course in 24 addition to the one that's already in the bill for the 1999 crediting." From these 25 48 statements, the Robinson respondents contend that the Legislative Assembly clearly 1 intended Section 10 (discussed earlier in addressing the claims raised by the Arken 2 plaintiffs) to be the only provision of the 2003 PERS reform legislation addressed to the 3 1999 earnings allocation crediting determination and that Section 14b clearly did not 4 address at all the effects of the 1999 earnings allocation crediting determination, but 5 rather addressed only other errors that the trial court identified in the City of Eugene 6 litigation. Those statements are not conclusive and, in fact, are consistent with the 7 determination that both Section 10 and Section 14b are addressed to the effects of the 8 1999 earnings allocation crediting determination, albeit coming at those effects in 9 different ways. 10 For their part, the Robinson petitioners (the Window Retirees) refer us to 11 comments presented to the Legislative Assembly by William F. Gary, counsel for 12 Robinson local government respondents, who was also an active participant in the 13 legislative hearings on the 2003 PERS reform legislation. Gary stated, 14 "The court in the City of Eugene case identified a number of errors 15 that the PERS Board made in administering the retirement system and told 16 the board that it could not charge the cost of those errors to the employers. 17 Section 14b provides two alternative methods for paying those costs." 18 The Robinson petitioners assert that Gary did not limit his comments to the actuarial and 19 variable account errors and that his comments must be read to include the 1999 earnings 20 allocation crediting determination as well. Here, too, we do not find Gary's comments 21 conclusive, and petitioners' reliance on them is not availing. 22 Inasmuch as we determine that the legislative history is inconclusive, we 23 49 give it little weight and conclude that it does not alter our determination that the earnings 1 credit allocation error comes within the scope of the erroneous benefit calculation 2 methods identified in the City of Eugene litigation. 3 3. Redundancy between Section 10 and Section 14b 4 PERB presents an additional argument that it contends shows that Section 5 14b of HB 2003 was not intended to reach any of the effects of the 1999 earnings 6 allocation crediting determination. PERB asserts that "If Section 14b is interpreted as 7 applying to the correction of the 1999 earnings overcrediting, it is redundant with Section 8 10, which provides a clear remedy for this issue." PERB contends that interpreting 9 Section 14b to apply to the earnings credit allocation error violates both the cardinal rule 10 of statutory construction to give significance and effect to every part of a statute and the 11 well-established principle to avoid interpretations of statutes that render portions of them 12 redundant. See, e.g., Union Pac. R.R. Co. v. Bean, 167 Or 535, 549, 119 P2d 575 (1941) 13 (stating "'cardinal rule' of statutory construction that significance and effect shall, if 14 possible, be accorded to every section, clause, word or part" of an act); State v. Young, 15 196 Or App 708, 713, 103 P3d 1180 (2004), rev den, 338 Or 583 (2005) ("Well-worn 16 principles of statutory construction counsel us to avoid, if possible, interpretations, that 17 render portions of a statute redundant."). 18 The Robinson petitioners counter that those two statutory provisions are 19 addressed to different concerns -- they note that Section 10 is addressed to determining 20 the proper level of future benefits (i.e., by making changes in how future benefits will be 21 calculated) and Section 14b is addressed by its terms to recovering the costs of benefits 22 50 already paid erroneously. As the Robinson petitioners state: 1 "Section 14b, by its terms, deals with two methods for 'recover[ing] 2 the cost of benefits erroneously paid,' while Section 10 is forward looking, 3 providing solely for the adjustment of ongoing retirement allowances by 4 freezing future COLAs. Section 10 makes no provision for recovering the 5 cost of past overpayments. Indeed it allows continuing, albeit reduced 6 overpayments until the lack of COLAs allows the proper benefit amount to 7 'catch up' with the actual payments." 8 We agree that the provisions of Section 10 and Section 14b are not 9 redundant. Rather, they address different aspects of the effects of the 1999 earnings 10 allocation crediting determination -- one looking forward and intended to establish the 11 correct retirement service allowances for all Tier One members of PERS (Section 10) and 12 one looking backward and intended to establish methods for recovering the costs of 13 erroneously paid benefits already made to the Window Retirees (Section 14b). 14 Furthermore, Section 14b provides two statutory mechanisms to recover the costs of 15 erroneously paid benefits -- viz., the COLA freeze set out in Section 14b(1)(a) and the 16 treatment of those costs as administrative expenses under Section 14b(1)(b). Although 17 there may be overlap between some parts of Section 10 and Section 14b (most notably 18 the similar COLA freeze provisions) we do not perceive the provisions as a whole to 19 conflict or be redundant. Rather, they are complementary provisions addressed to 20 different issues. 21 In sum, we conclude that Section 14b was intended by the legislature to 22 provide for recovery of the costs of benefits erroneously paid to retired members as a 23 result of erroneous benefit calculation methods identified in the City of Eugene litigation. 24 We further conclude that the erroneous earnings credit allocation determination made by 25 51 PERB in 1999 constitutes one of those erroneous benefit calculation methods. We 1 therefore turn to analyzing the effects of Section 14b. 2 B. Whether Section 14b Provides the Exclusive Statutory Remedy For the Erroneous 3 1999 Earnings Credit Allocation 4 1. Statutory analysis 5 As an initial matter, we note that the Legislative Assembly used mandatory 6 wording in Section 14b. Section 14b(1) states: 7 "If the Public Employees Retirement Board is required to correct one 8 or more of the erroneous benefit calculation methods identified in City of 9 Eugene et al. v. State of Oregon, * * * the board shall recover the cost of 10 benefits erroneously paid to retired members as a result of those erroneous 11 benefit calculations by one or both of the following methods * * *." 12 (Emphasis added.) The legislature's choice of words is the best evidence of legislative 13 intent. Gaines, 346 Or at 171. Consequently, as a preliminary matter, we conclude the 14 terms of Section 14b set out a statutory requirement that PERB "shall" use one or both of 15 the methods set out in that section to recover benefits erroneously paid to the Window 16 Retirees -- and that those recovery methods are the only methods the legislature intended 17 to authorize PERB to use. 18 Despite the legislature's clearly expressed policy, both PERB and the local 19 government employers contend that the terms of Section 14b should not be interpreted to 20 provide the exclusive methods for recovering benefits erroneously paid to the Window 21 Retirees. We address their arguments serially. 22 PERB and the local governments both argue that, in context, the word 23 "shall" in Section 14b should be interpreted as "may" and that Section 14b should, 24 52 therefore, be seen to supplement rather than supplant PERB's authority to use ORS 1 238.715 to recover benefit overpayments. They note that the legislature in its early 2 deliberations on HB 2003 considered including an explicit statement that the Section 14b 3 remedies were "in lieu of, and not in addition to, any action of the board taken pursuant to 4 ORS 238.715." They assert that the Legislative Assembly's deletion of that provision 5 from the enacted version of the bill shows that the legislature intended for PERB to retain 6 authority under ORS 238.715 to recover any overpayments made to retired members. 7 We are not persuaded. The legislature's omission of those terms is not sufficient to 8 overcome the clear meaning of the mandatory terms that the legislature enacted. See 9 ORS 174.010 ("In the construction of a statute, the office of the judge is simply to 10 ascertain and declare what is, in terms or in substance, contained therein, not to insert 11 what has been omitted, or to omit what has been inserted[.]"). 12 The Robinson local government employers further contend that Section 14b 13 by its terms is addressed only to recovering the costs of benefits erroneously paid to 14 retirees. They then go on to contend that recovering the costs of such benefits does not 15 equate to actually recouping the amount of benefits erroneously paid. The Robinson 16 local government employers observe that the two methods of cost recovery set out in 17 Section 14b do not actually recover any overpayments that have already been made. 18 Rather, as they correctly note, the COLA freeze in Section 14b(1)(a) gradually eliminates 19 the overpayments prospectively, but does not recover overpayments already made. And 20 treating such overpayments as an administrative expense as called for under Section 21 14b(1)(b) provides a funding source for the cost of the overpayments (the funding source 22 53 being PERF funds that would otherwise go to fund all other PERS retiree benefits); 1 however, it does not recoup those overpayments or eliminate them. 2 Although those assertions about the actual effects of the cost recovery 3 methods set out in Section 14b are accurate, we cannot ignore the fact that Section 14b 4 states that "the board shall recover the cost of benefits erroneously paid" by one or both 5 of the methods set out in subsections (1)(a) and (1)(b). We understand from the express 6 terms used by the legislature that it intended Section 14b to set out how PERB would 7 recover the costs of benefits erroneously paid to retired members based on errors 8 identified in the City of Eugene litigation. The fact that the cost recovery methods that 9 are established in Section 14b will not actually effectuate the intended cost recovery, as 10 noted above, does not allow us to ignore the express statutory terms the legislature 11 enacted. See ORS 174.010 (stating goal of statutory construction is "to ascertain and 12 declare what is, in terms or in substance, contained therein, not to insert what has been 13 omitted, or to omit what has been inserted"); State v. Vasquez-Rubio, 323 Or 275, 283, 14 917 P2d 494 (1996) (court will not redraft statute to avoid even purportedly absurd 15 result). 16 Finally, the local government employers also contend that the trigger for 17 the application of Section 14b -- viz., that PERB be required to correct one or more of the 18 erroneous benefit calculation methods identified in City of Eugene -- has never come to 19 pass. In support of that proposition, the local government employers assert that the only 20 way the trigger could be tripped was by a final court judgment imposing that 21 requirement. The local government employers note that the City of Eugene litigation was 22 54 resolved by settlement, rather than by final judgment, and that this court ultimately 1 determined that the settlement mooted the litigation and vacated the trial court judgment 2 that had been in place. They argue, therefore, that PERB has not been required to correct 3 the errors. 4 Under the terms of the Settlement Agreement that PERB entered into to 5 resolve the City of Eugene litigation, PERB is bound to implement many of the terms of 6 the judgment entered by the trial court. As noted, the Settlement Agreement itself states: 7 "PERB will implement the judgment entered in City of Eugene v. 8 State of Oregon, Public Employees Retirement Board ("the judgment") as 9 follows, except in the event of a supervening change in law (such as by a 10 legislative enactment or further court order): 11 "* * * * * 12 "1.3 The new 1999 earnings allocation order * * * will provide that 13 the appropriate earnings allocation to Tier [One] regular member accounts 14 is 11.33%, that 7.5% of the 1999 earnings should have been allocated to the 15 contingency reserve established by ORS 238.670(1), and that the gain-loss 16 reserve created by ORS 238.670(3) should have been funded to the full 17 extent of the former PERB's policy to maintain a gain-loss reserve 18 sufficient to credit the assumed interest rate to Tier [One] regular member 19 accounts during a period of 30 months of 0% earnings. * * * The order 20 shall provide that if sections 5 or 10 of 2003 Or. Laws c. 67 are declared to 21 be invalid or unconstitutional by a final judgment entered by a court of 22 competent jurisdiction or are repealed, or if a court of competent 23 jurisdiction rules that PERB otherwise has failed to implement those 24 provisions, then PERB will, within 30 days, adjust member accounts, the 25 contingency reserve and the gain-loss reserve as described in this 26 paragraph." 27 This court's decision in Strunk, which declared the COLA freeze provision 28 of Section 10 to be invalid, provided the basis for paragraph 1.3 of the Settlement 29 Agreement to be triggered. We conclude that PERB was required to correct one or more 30 55 of the erroneous benefit calculation methods identified in City of Eugene and that the cost 1 recovery provisions of Section 14b were triggered. 2 For the reasons that follow, however, we determine that neither of the cost 3 recovery mechanisms that the legislature enacted in Section 14b(1) can be applied to the 4 Window Retirees. We first address the treatment of these costs as administrative 5 expenses as provided in Section 14b(1)(b). 6 2. Treating costs as administrative expenses under Section 14b(1)(b) 7 As noted, the trial court determined that the only available remedy was to 8 treat these costs as an administrative expense.21 This mechanism, however, does not 9 recover any of the overpayments made to the Window Retirees. Instead, the net result of 10 that determination is to spread the burden of those costs to all current Tier One and Tier 11 Two PERS members by reducing the moneys available in the PERF to fund reserve 12 accounts and to fund member accounts. Although neither the trial court nor the parties 13 address directly the legal ramifications of the diversion of funds from some PERS 14 members to other PERS members, we conclude that it is necessary to do so.22 15 21 Up to this point in the analysis, we agree with how the trial court ruled in the underlying proceeding. In summary, at this juncture the trial court determined that the COLA freeze mechanism contained in Section 14b(1)(a) suffered from the same flaws that this court found with Section 10, which caused this court to determine the COLA freeze provisions of Section 10 to be invalid in Strunk. Consequently, the trial court determined that the only available cost recovery mechanism was to treat the costs as administrative expenses under Section 14b(1)(b). 22 The record shows that the PERB itself noted and considered the trust fund issues raised by treating the overpayments to Window Retirees as administrative expenses before issuing the order challenged in this case. PERB, however, did not resolve those trust fund issues. PERB instead determined that it should use the 56 Fundamentally, the PERF is a trust fund to be used for the exclusive benefit 1 of members and their beneficiaries. ORS 238.660(1) and (2) state, in part: 2 "(1) The Public Employees Retirement Fund is declared to be a trust 3 fund, separate and distinct from the General Fund, for the uses and 4 purposes set forth in this chapter and ORS chapter 238A and ORS 237.950 5 to 237.980, and for no other use or purpose, except that this provision shall 6 not be deemed to amend or impair the force or effect of any law of this state 7 specifically authorizing the investment of moneys from the fund. Interest 8 earned by the fund shall be credited to the fund. Except as otherwise 9 specifically provided by law, the Public Employees Retirement Board 10 established by ORS 238.630 is declared to be the trustee of the fund. * * * 11 "(2) Until all liabilities to members and their beneficiaries are 12 satisfied, assets of the fund may not be diverted or otherwise put to any use 13 that is not for the exclusive benefit of members and their beneficiaries." 14 The express declaration of the PERF as a trust fund dates back at least to 15 1953 (see Or Laws 1953, ch 200, §10) and it has been carried forward continuously to the 16 present. ORS 238.660 declares PERF to be a trust fund, declares PERB to be a trustee of 17 that fund with fiduciary obligations, and requires that fund assets may not be diverted 18 from the exclusive benefit of members. How fund assets are to be used, how the amount 19 of member benefits are to be determined, and how a member will benefit from the growth 20 in value of the contributions that accumulate in that member's account are fundamental 21 components of the PERS system. Consequently, we determine that the trust fund 22 obligations imposed by ORS 238.660 are a part of the statutory PERS contract. 23 overpayment recovery mechanism set out in ORS 238.715 because that mechanism more closely aligned recovering overpayment costs from those who had received the overpayments. Because we have determined that Section 14b mandates that PERB use either the administrative expense mechanism set out in Section 14b(1)(a) or the COLA- freeze mechanism set out in Section 14b(1)(b) to "recover" the overpayments, it is necessary for us to address and resolve the trust fund issues presented. 57 We note, that although a PERS member may not be entitled to any 1 particular rate of growth in the member's account, beyond the assumed interest rate, the 2 distribution of PERF earnings among the various accounts is a "zero-sum" matter: If 3 overpayments beyond what should be charged are made to one account, then lesser 4 amounts than should be allocated will be available for payments to other accounts. Here, 5 if overpayments made to the Window Retirees are allocated as administrative expenses of 6 the PERF, then a lesser amount of the PERF earnings will be available for distribution to 7 the reserve accounts or to the accounts of all other PERS members with existing 8 accounts. In other words, PERF earnings -- i.e., assets of the fund -- that have been 9 generated based on contributions from Tier One and Tier Two members of PERS would 10 be diverted from the benefit of those members and their beneficiaries to the exclusive 11 benefit of the Window Retirees. Such a diversion would violate the trust obligation of 12 the board to use fund assets for the benefit of those members whose contributions 13 generated the fund assets. 14 We find support for this conclusion in long-standing, general trust 15 principles. Generally, trusts are to be administered in accordance with the trust 16 instrument, and trusts created by statute, like PERS, "are administered as express trusts, 17 the terms of which are either set forth in the statute or are supplied by the default rules of 18 general trust law." Restatement (Third) of Trusts § 4 comment g (2003). The 19 Restatement (Third) makes clear that a trustee has a duty of impartiality and, "with 20 respect to the various beneficiaries of the trust," must administer the trust "impartially 21 and with due regard for the diverse beneficial interests created by the terms of the trust." 22 58 Restatement (Third) § 79(1)(a). 1 The Restatement (Second) of Trusts (1959) more specifically states: 2 "If the trustee has made a payment out of trust property to one of 3 several beneficiaries to which the beneficiary was not entitled, such 4 beneficiary is personally liable for the amount of such overpayment, and his 5 beneficial interest is subject to a charge for the repayment thereof, unless he 6 has so changed his position that it is inequitable to compel him to make 7 repayment." 8 Restatement (Second), § 254. In addition, a comment to that general statement further 9 explains: 10 "e. Rights of trustee and of co-beneficiaries. If the trustee makes an 11 overpayment out of the trust estate to one of several beneficiaries, the 12 trustee is entitled to maintain a suit against the beneficiary who is overpaid 13 and is entitled to a charge upon the beneficiary's interest for the amount of 14 the overpayment, and he is under a duty to the other beneficiaries to 15 maintain such a suit or to enforce such a charge, unless he has himself 16 made good to the other beneficiaries or has paid into the trust the amount of 17 the overpayment, for which he is himself personally liable." 18 Restatement (Second) § 254, comment e. ORS 238.660 incorporates those general trust 19 principles into the operations of the PERS, by prohibiting the diversion of trust fund 20 assets to favor one set of beneficiaries of the trust over another.23 21 We think it significant, too, that the diversion of assets from Tier One and 22 23 ORS 238.660 serves to ensure that PERS will qualify as a tax-exempt governmental benefit plan. To qualify as a tax-exempt plan, the operation of PERS must comply with IRS nondiversion regulations, including 26 CFR § 1.401-2(a)(1), which provides, in part: "Under section 401(a)(2) a trust is not qualified unless under the trust instrument it is impossible (in the taxable year and at any time thereafter before the satisfaction of all liabilities to employees or their beneficiaries covered by the trust) for any part of the trust corpus or income to be used for, or diverted to, purposes other than for the exclusive benefit of such employees or their beneficiaries." 59 Tier Two members to the Window Retirees, which was attempted by the 2003 PERS 1 reform legislation, relates to overpayments to Window Retirees on their contributions and 2 earnings of the PERF in 1999 and relates to benefits that will be available to all Tier One 3 and Tier Two PERS members based upon work already performed by those members. 4 As this court stated in Hughes, 5 "[a]ccrued and accruing pension benefits are protected under Oregon Law. 6 Oregon is in line with the theory of pensions which holds that pensions are 7 a form of compensation and that employees acquire vested contractual 8 rights in pension benefits." 9 314 Or at 20 (citation omitted). In Hughes, this court held that a 1991 statutory 10 amendment, which would have subjected PERS members’ retirement benefits to state and 11 local taxation, breached the statutory PERS contract insofar as it applied to PERS 12 retirement benefits accrued or accruing for work performed before the effective date of 13 that 1991 legislation. Id. at 36. 14 We conclude that categorically treating the erroneous overpayments to all 15 Window Retirees as an administrative expense violates well-established trust fund 16 principles that are embedded in ORS 238.660 because that treatment favors the Window 17 Retirees over other beneficiaries of PERS. Because those trust fund principles are part of 18 the PERS statutory contract, that in turn violates the statutory contract rights of all Tier 19 One and Tier Two members of PERS with existing member accounts. Therefore, we 20 determine that the administrative expense mechanism for cost recovery set out in Section 21 14b(1)(b) cannot be applied by PERB to all of the costs associated with the overpayments 22 60 made to the Window Retirees.24 1 3. Section 14b(1)(a) COLA freeze 2 The COLA freeze mechanism in Section 14b(1)(a) is set out as an 3 alternative means to recover the costs of the erroneous overpayments made to the 4 Window Retirees. As a threshold matter, we note that the Robinson respondents (local 5 government employers and PERB) contend that the arguments presented by the local 6 government employers to support the COLA freeze set out in Section 14b were not 7 preserved below. We conclude, however, that we need not decide that issue. We have 8 determined, as set out above, that the legislature intended Section 14b to establish two 9 exclusive methods of cost recovery for erroneous overpayments to the Window Retirees 10 -- viz., the COLA freeze in Section 14b(1)(a) and the administrative expense treatment in 11 Section 14b(1)(b). Consequently, in addressing whether PERB's decision to use the cost 12 recovery mechanism provided in ORS 238.715 is lawful, we must first determine whether 13 the COLA freeze mechanism set out in Section 14b(1)(a) is a viable method of cost 14 recovery. That is so because, if that COLA freeze mechanism is available, then by its 15 terms, Section 14b requires PERB to use it as the method for cost recovery of 16 overpayments to the Window Retirees. We turn, therefore, to the parties' arguments 17 24 We note that this result comports with the express terms of ORS 238.610(4), which provides: "Amounts payable as * * * retirement allowances shall not for any purpose be deemed expenses of the board * * * ." We further note that whether the terms of ORS 238.610(4) and the terms of the trust obligation imposed by ORS 238.660 can be altered for contributions that will be made into the PERF based upon work to be performed in the future is an issue that is not before us, and we express no opinion on it. 61 regarding the legality of Section 14b's COLA freeze. 1 As a starting point, this court addressed the COLA freeze of Section 10 in 2 Strunk. In Strunk, this court invalidated that COLA freeze because it violated the 3 statutory contract rights of PERS members. The Robinson local government respondents 4 contend, however, that the terms of the COLA freeze in Section 14b are different enough 5 from the terms of the COLA freeze set out in Section 10 that a different result should 6 obtain. They note that Section 10 called for the establishment of a "fixed service 7 retirement allowance" and then froze COLAs on that fixed service retirement allowance. 8 They contend that Strunk determined that the fixed service retirement allowance was 9 itself a legislatively "determined allowance" of what a retiree was entitled to receive. 10 The same analysis does not apply here, they reason, because the Section 14b COLA 11 freeze would apply only to retired members who are receiving benefits greater than their 12 correctly calculated benefits. 13 The Robinson petitioners counter by arguing that the local government 14 employers misunderstand or misstate the full reach of the COLA freeze provision in 15 Section 14b. They contend that when the full implications of Section 14b's COLA freeze 16 mechanism are considered, there is no material difference between the two COLA 17 freezes. As support, the Robinson petitioners assert that the terms of Section 14b 18 "authorize PERB to withhold COLAs on the entire benefit of any retired member who 19 received an overpayment." 20 Section 14b(1)(a) provides: 21 "The board may withhold cost of living increases under ORS 22 62 238.360 from a retired member whose benefit is greater than the correctly 1 calculated benefit of the member until such time as the member's benefit is 2 equal to the correctly calculated benefit." 3 We understand the terms of this statute, as the Robinson petitioners assert, to allow PERB 4 to withhold COLAs on the member's benefit amount with no difference drawn between 5 that part of the member's benefit that is correctly calculated and that part of the benefit 6 that constitutes an overpayment. As the Robinson petitioners state, "Though some 7 undefined part of the benefit named in section 14b may be overpayment, the statute 8 freezes COLAs on the retiree's whole benefit, the great majority of which is not based on 9 overcredited earnings." Although we do not agree that the statute itself mandates that 10 COLAs be frozen on the entire benefit amount, the statute does authorize PERB to freeze 11 COLAs on the entire benefit amount. To that extent, there is no material difference 12 between the COLA freeze mechanism set out in Section 14b and the COLA freeze 13 mechanism set out in Section 10 that this court invalidated in Strunk. 14 Consequently, we conclude that the COLA freeze mechanism set out in 15 Section 14b is invalid for the same reasons that we struck the COLA freeze provision 16 contained in Section 10 in Strunk. That conclusion then leads to the question: what is the 17 appropriate remedy? Although Section 14b(1)(a) might be susceptible to a narrowing 18 interpretation (e.g., one that would preserve the COLA freeze for only those portions of 19 Window Retiree benefits that constitute overpayments), we conclude that such an 20 interpretation is not plausible in this instance. 21 First, such an interpretation would mean that the Window Retirees would 22 indefinitely receive benefits in an amount that exceeds the benefits to which they are 23 63 entitled, because they would continue to receive their correctly calculated benefits with 1 COLAs and they would also receive the additional overpayment amount (albeit without 2 any COLA increase) in addition to their correct benefit amount. That would not accord 3 with the legislature's intent in enacting Section 14b -- the legislature intended the 4 provision to constitute a means to "recover the cost of benefits erroneously paid to retired 5 members." Furthermore, rewriting the statutory provision to provide for overpayments to 6 Window Retirees to continue into the indefinite future raises trust fund administration 7 issues similar to those we discussed related to the treatment of overpayments as 8 administrative expenses. Therefore, the correct remedy is to strike the COLA freeze 9 mechanism set out in Section 14b in its entirety. 10 C. Availability of ORS 238.715 to Recover Costs of Overpayments to Window 11 Retirees 12 Although we have determined that both of the means enacted by the 13 legislature in Section 14b to recover the costs of benefits erroneously paid to the Window 14 Retirees are invalid, that does not necessarily mean that PERB is without any authority to 15 recover those costs. As we stated in Strunk in invalidating the COLA freeze mechanism 16 contained in Section 10, "[o]ur conclusion that [the] particular legislative action 17 amounted to a breach of the PERS contract, however, implies nothing about PERB's -- or, 18 for that matter, the legislature's -- authority to recover payments determined to have been 19 paid from the fund in error." 338 Or at 224 n 58. Here, too, our determination that the 20 cost recovery methods set out in Section 14b are invalid does not necessarily mean that 21 PERB is powerless to recoup the costs of benefits erroneously paid to the Window 22 64 Retirees. 1 Indeed, in its brief in this court, PERB directly asserts that ORS 238.715 2 authorizes the board to recoup the overpayments to the Window Retirees at issue in this 3 proceeding. For their part, the Robinson petitioners assert that this court should not reach 4 this issue because, in their view, this issue should be remanded to the trial court for 5 decision. 6 The Robinson petitioners note that they did not move for summary 7 judgment on their ORS 238.715 claim below, and, because the trial court ruled in their 8 favor on their Section 14b claim, they assert that it was not necessary for the trial court to 9 reach the ORS 238.715 claim. The Robinson petitioners acknowledge, however, that the 10 trial court granted summary judgment to them on both of their claims for relief -- 11 including their ORS 238.715 claim. They contend, nevertheless, that the ORS 238.715 12 issue should be remanded to the trial court for further briefing because it was not 13 necessary for the trial court to reach the issue and because the trial court did not set forth 14 its analysis of the ORS 238.715 issue in its decision. 15 As we have noted, respondent PERB has directly raised the argument that 16 ORS 238.715 provides PERB with explicit statutory authority to recoup the 17 overpayments made to the Window Retirees. Inasmuch as the trial court reached the 18 issue (albeit in a truncated manner) and respondent PERB has directly raised the issue in 19 its briefing in this court, we think the issue is properly before us for resolution. 20 As we previously observed, ORS 238.715 has remained in place throughout 21 all the events discussed above. The legislature did not repeal or amend that statute in its 22 65 effort to reform the PERS statutes in 2003.25 By its plain terms, ORS 238.715 applies to 1 overpayments such as those made to the Window Retirees involved in this case. 2 ORS 238.715 provides, in part: 3 "(1) If the Public Employees Retirement Board determines that a 4 member of the Public Employees Retirement System or any other person 5 receiving a monthly payment from the Public Employees Retirement Fund 6 has received any amount in excess of the amounts that the member or other 7 person is entitled to under this chapter and ORS chapter 238A, the board 8 may recover the overpayment or other improperly made payment by: 9 "(a) Reducing the monthly payment to the member or other person 10 for as many months as may be determined by the board to be necessary to 11 recover the overpayment or other improperly made payment; or 12 "(b) Reducing the monthly payment to the member or other person 13 by an amount actuarially determined to be adequate to recover the 14 overpayment or other improperly made payment during the period during 15 which the monthly payment will be made to the member or other person. 16 "(2)(a) Any person who receives a payment from the Public 17 Employees Retirement Fund and who is not entitled to receive that 18 payment, including a member of the system who receives an overpayment, 19 holds the improperly made payment in trust subject to the board's recovery 20 of that payment under this section or by a civil action or other proceeding. 21 "(b) The board may recover an improperly made payment in the 22 manner provided by subsection (1) of this section from any person who 23 receives an improperly made payment from the fund and who subsequently 24 becomes entitled to receive a monthly payment from the fund. 25 25 As we noted in our discussion of Section 10 above, the legislative history of HB 2003 shows that the originally introduced version of the bill contained terms providing that the COLA freeze provisions were "in lieu of, and not in addition to, any action of the board taken pursuant to ORS 238.715." The legislature, however, struck that provision from the final version of the bill, leaving the provisions and reach of ORS 238.715 unaltered. Although we determined above that this legislative history was not sufficient to overcome the explicit terms used by the Legislative Assembly in Section 14b, we note that this legislative history is consistent with our determination that the express terms of ORS 238.715 should be given effect. 66 "(c) The board may recover an improperly made payment by 1 reducing any lump sum payment in the amount necessary to recover the 2 improperly made payment if a person who receives an improperly made 3 payment from the fund subsequently becomes entitled to receive a lump 4 sum payment from the fund." 5 Not only does ORS 238.715 provide explicit authority to the board to recover 6 overpayments, ORS 238.715(2) states that persons receiving overpayments hold the 7 overpayment amounts in trust subject to the board's recovery. Furthermore, ORS 8 238.715(8) provides that "[t]he remedies authorized under this section are supplemental 9 to any other remedies that may be available to the board for recovery of amounts 10 incorrectly paid from the fund to members of the system or other persons." Those 11 statutory provisions not only authorize PERB to recover overpayments, they also set out a 12 statutory means for the board to satisfy its trust obligations to ensure that all beneficiaries 13 of PERS receive the retirement benefits they are due. 14 We conclude that the overpayment recovery authority granted to PERB in 15 ORS 238.715 remains available for PERB to use to recover the overpayments made to 16 the Window Retirees for three reasons. First, our conclusion is consistent with the 17 legislatively stated intent in Section 14b to provide a means for PERB to recover the 18 costs of overpayments made to the Window Retirees. Second, our conclusion comports 19 with the legislative charge to the courts in ORS 174.010 to give effect to statutory 20 provisions enacted by the Legislative Assembly by giving effect, in these circumstances, 21 to the provisions of ORS 238.715. Third, our conclusion is also consistent with the trust 22 fund principles set out in ORS 238.660 that prohibit PERB from categorically favoring 23 some beneficiaries of PERS over other beneficiaries of PERS and that are part of the 24 67 statutory PERS contract. 1 Our review of the challenged PERB order shows that it complies with the 2 provisions of ORS 238.715. PERB's Order Adopting Repayment Methods first notes 3 that, in light of this court's decisions in Strunk and City of Eugene, and the settlement 4 agreement the board entered to resolve the City of Eugene litigation, the board had 5 determined that the earnings on Tier One regular member accounts for 1999 should be 6 reallocated at an earnings rate of 11.33 percent. The order further notes that this 7 recalculation will affect Tier One members who retired on or after April 1, 2000, and 8 before April 1, 2004 -- i.e., the Window Retirees -- among others. The order then states: 9 "ORS 238.715 requires the Board to collect amounts paid in excess of the 10 benefit amounts recipient is entitled to under ORS chapter 238. ORS 238.715 11 provides several methods by which the Board may recover such overpayments, but 12 does not require the Board to make all of the methods available in every case. 13 "IT IS HEREBY ORDERED that each recipient who, based on the 14 decisions in Strunk and City of Eugene, including the settlement agreement in the 15 latter case, has received benefits in excess of amounts that the recipient is entitled 16 to under ORS chapter 238, shall repay the amounts overpaid using one of the 17 following methods: 18 "1. Each recipient shall repay the amounts overpaid in a single lump 19 sum unless the recipient is receiving monthly payments. 20 "2. Any recipient receiving a monthly payment will repay the 21 overpaid amounts by actuarial reduction of their monthly payment pursuant 22 to ORS 238.715(1)(b), unless the recipient elects to repay the overpaid 23 amount in a lump sum by paying that amount within the time allowed in the 24 explanation to be provided to the recipient by PERS. 25 "3. If a recipient is due a payment from PERS other than a monthly 26 payment, the amount overpaid shall be deducted from the recipient's next 27 payment and subsequent payments, if any, until the amount overpaid is 28 recovered." 29 The terms of the challenged order are within the authorizing provisions of ORS 238.715, 30 68 and we conclude that the Robinson petitioners' assertion to the contrary is without merit.26 1 Because we determine that PERB correctly applied ORS 238.715 to recoup 2 the overpayments made to the Window Retirees, we determine that the trial court erred 3 both in granting the Window Retirees summary judgment on their ORS 238.715 claim 4 and in denying PERB's cross-motion for summary judgment on that claim. On appeal, 5 we determine that PERB properly can recoup the overpayments made to the Window 6 Retirees under ORS 238.715, and we remand this case to the trial court for entry of 7 judgment in favor of PERB on its cross-motion for summary judgment. 8 The judgment of the circuit court in Arken, et al. v. City of Portland, et al., 9 Case No. 0601-00536, is affirmed. The judgment of the circuit court in Robinson, et al. 10 v. Public Employees Retirement Board, Case No. 0605-04584, is reversed, and the case is 11 remanded to the circuit court for further proceedings. 12 26 The Arken and Robinson challenges to PERB's actions to recover the overpayments made to the Window Retirees are not the only challenges that have been made. We have also accepted certification of the appeal in Goodson v. PERB, S059056. Goodson presents several challenges to individual orders issued to certain Window Retirees that have determined the amounts of overpayments to be recovered and the methods of repayments to be used. The Goodson petitioners have asserted that the overpayment recovery orders are invalid for reasons that go beyond the question presented here as to whether the recovery of overpayments based on the 1999 earnings credit allocation are authorized by the terms of ORS 238.715. We address the additional claims raised by the Goodson petitioners in our opinion issued today in Goodson v. PERB, S059056.

f5d54c4e43c508744996fd4d4fa50f6430d12dbc8b4d41bb3526e82a1f0b79b3

2011-10-06T00:00:00Z

b81d75bc-86c5-47e1-9dba-179b5dc62e15

State v. Stokes

S057751

oregon

Oregon Supreme Court

Filed: March 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. EDWARD HARVEY STOKES, Petitioner on Review. (CC040431760; CA A129130; SC S057751) On review from the Court of Appeals.* Argued and submitted on November 9, 2010. Harrison Latto, Portland, argued the cause and filed the briefs for petitioner on review. Jeremy C. Rice, Assistant Attorney General, Salem, argued the cause for respondent on review. Anna M. Joyce, Deputy Solicitor General, John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General, filed the brief for respondent on review. 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 Multnomah County Circuit Court, Alicia Fuchs, Judge. 229 Or App 97, 211 P3d 381 (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. In 1996, the state submitted to a grand jury two counts of sexual assault against defendant. The grand jury declined to indict, returning a "not true bill." In 2004, the state obtained court approval to resubmit the 1996 charges to a second grand jury. The state then presented those charges to a grand jury, along with two additional counts of sexual assault of a second victim. The second grand jury indicted defendant on all four counts. After a jury trial, defendant was convicted of all charges. Defendant appealed and, on appeal, the Court of Appeals affirmed without opinion. State v. Stokes, 229 Or App 97, 211 P3d 381 (2009). On review to this court, defendant challenges his convictions on two grounds. First, he argues that the trial court erred, under ORS 132.430(2),(1) in allowing the state to resubmit the 1996 charges to a second grand jury. Second, he argues that the period of over eight years between the crimes and defendant's indictment violated his right to due process under the Fourteenth Amendment to the United States Constitution.(2) We affirm the decision of the Court of Appeals and the judgment of the circuit court. I. HISTORICAL AND PROCEDURAL FACTS The relevant facts are not in dispute. In 1996, a grand jury declined to indict defendant for sodomy and sexual abuse of the first victim, an adult male friend of defendant. In the two months that followed, prosecutors interviewed two more men, one of them the brother of the first victim, who also claimed to have been sexually abused by defendant. In September 1996, defendant received a lengthy sentence in California on unrelated charges. The prosecutor in Oregon anticipated that, in light of that sentence, defendant would serve his life in the California prison without being paroled. He therefore halted the investigation of defendant to preserve public funds. The prosecutor informed the police department that the case was closed. The police retained the evidence from the investigation for about three years. Then, in 1999 and 2000, the police department purged its evidence file on the case, destroying most of it. Specifically, the police destroyed a recording of the first victim's 9-1-1 call, the contents of a rape kit, the victim's clothing, and towels and clothing taken from defendant's house the day after the assault.(3) The only evidence remaining in the police file were photographs taken of the first victim the day after the assault, which were stored separately from the other evidence. Eight years after the case was closed, in April 2004, a prosecutor in the district attorney's office learned that defendant's California conviction was reversed on appeal and that defendant intended to return to Oregon or Washington. The prosecutor -- a different one than the prosecutor who had handled the case in 1996 -- reopened defendant's case and sought a court order to resubmit to a grand jury the charges relating to the first victim. The trial court granted the order, concluding that "evidence not available to the previous grand jury is now available, and that the ends of justice will be best served by the resubmission * * *." The state then resubmitted to the grand jury the initial charges and submitted for the first time charges of sodomy and sexual abuse of one of the additional victims (the brother of the first victim) who had come forward after the initial not true bill. The grand jury indicted defendant in May 2004, more than eight years after the crimes, but within the nine-year statute of limitations.(4) A subsequent jury trial resulted in defendant's convictions on all four counts. Defendant appealed. He argued to the Court of Appeals, as he had to the trial court, that the resubmission of the initial charges violated ORS 132.430(2), which prohibits resubmission of dismissed charges to a grand jury without a court order. He also argued that the Due Process Clause prohibited the state from indicting him more than eight years after his crimes, notwithstanding the nine-year statute of limitations. The Court of Appeals affirmed the conviction without an opinion. Defendant petitioned for review, renewing the arguments that he had advanced on appeal. We allowed review to decide what standard governs a trial court's decision to allow the resubmission of charges under ORS 132.430(2) and to consider whether the preindictment delay in this case violated due process.(5) II. ANALYSIS A. Resubmission Under ORS 132.430(2) We begin with defendant's argument that, under ORS 132.430(2), the trial court erred in allowing the state to resubmit the 1996 charges to a second grand jury in 2004. That statute provides: "When an indictment indorsed 'not a true bill' has been filed with the clerk of the court, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or inquired of by the grand jury unless the court so orders." ORS 132.430(2). Citing State v. Turner, 104 Or 334, 207 P 602 (1922), defendant urges that a circuit court may authorize resubmission of charges to a grand jury only when it is "in the interest of justice" to do so. See id. at 339-40 (describing the "evident design" of the statute). Here, defendant contends that resubmission was not in the interest of justice, because the state sought resubmission eight years after the case was closed, and was motivated to do so because defendant had been released unexpectedly from California. Defendant asserts that the state was merely reassessing the cost-benefit analysis of whether to pursue the prosecution, which is not an adequate basis for resubmission. The state counters that the resubmission of the charges in this case was based on the existence of evidence that was not available at the time of the original grand jury proceeding -- i.e., the complaints of additional victims -- and that the trial court's order authorizing resubmission was proper under the statute. To determine the legislative intent behind ORS 132.430(2) and, in particular, whether resubmission under these circumstances comported with the statute, we begin with text and context. See State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (text and context are considered at first level of statutory analysis). The text of ORS 132.430(2) is straightforward. It requires dismissal of charges after a not true bill and bars resubmission of dismissed charges "unless the court so orders." The statute does not, however, identify what the trial court is to consider in issuing or declining to issue such an order. Given that silence, the statute's text, in and of itself, is of little help in resolving the particular issue before us. More helpful in that regard is the context of the statute, which includes "'the preexisting common law and the statutory framework within which the law was enacted.'" Ram Technical Services, Inc. v. Koresko, 346 Or 215, 232, 208 P3d 950 (2009) (quoting Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004)). The context also includes case law interpreting the statute. See State v. Sullens, 314 Or 436, 443, 839 P2d 708 (1992). The statute in its current form dates to 1864. See General Laws of Oregon, Crim Code, ch VII, § 65 (Deady 1845-1864).(6) It replaced the contrary common-law rule that allowed a prosecutor to resubmit charges without limit or oversight. See Wayne R. LaFave et al., 4 Criminal Procedure § 15.2(h), at 485-86 (3d ed 2007) (describing common-law rule).(7) At the least, the decision to adopt a rule differing from the common law implies a general intention to place some limitation on a prosecutor's ability to resubmit charges to subsequent grand juries. The question remains: what limitation? Although the statute has been in place since statehood, only one case has come to this court requiring us to interpret it. That case, Turner, 104 Or 334, was decided in 1922. In Turner, a grand jury had, without a court order, investigated and indicted the defendant on a charge on which a different grand jury had earlier returned a not true bill. Id. at 335. The issue was whether the statute requires a court order when charges are reconsidered or resubmitted to any grand jury or, instead, whether the statute applies only when charges are reconsidered by the same grand jury that initially returned the not true bill. Id. at 335-36. To resolve that issue, the court compared the statute to similar statutes from other states as well as to the contrary common-law rule, which either imposed no restriction on resubmission of dismissed charges, or restricted only the ability of the prosecutor to resubmit charges to the same grand jury that returned a not true bill; the authority of the grand jury itself was not impaired. Id. at 336-39. The court observed that the text of Oregon's statute (now codified as ORS 132.430(2)) was broader and divested the grand jury itself of authority to reconsider previously dismissed charges unless the grand jury did so by leave of the court. Id. at 339. The statute did not, however, specify whether it applied only to the same grand jury that had returned the not true bill, or to subsequent grand juries as well. The court commented that the "evident design" and "purpose" of the statute was to prevent the resubmission of charges "unless authorized by an order of the court made upon a showing that adequate reason exists, requiring that the charge be reconsidered in the interest of justice." Id. at 339-40. Guided by that understanding of the overall purpose of the statute, the court in Turner held that a court order is required when a later grand jury undertakes to reconsider charges dismissed by an earlier one, because an opposite conclusion would not accomplish the statute's purpose. Id. at 340. As that description of Turner reveals, the issue before the court in Turner did not involve the propriety of a trial court order authorizing resubmission of charges to a grand jury. Turner held only that "the statute places [a charge's] revival or subsequent investigation in the exclusive control of the court, and the consent of the court is a condition precedent to the authority of the same or a subsequent grand jury to inquire of the charge." Id. Turner thus provides, at best, limited guidance on the question before us in this case. Still, Turner's observation of the overall purpose of the statute is consistent with other contextual sources that we may consider. Oregon originally adopted the statute as part of a criminal code that was based largely on New York law. See Frederic E. Brown, The Sources of the Alaska and Oregon Codes, 2 UCLA-Alaska L Rev 15, 31-33 (1972) (discussing in detail the sources of the criminal procedure provisions in the 1864 Oregon criminal code).(8) The commentary to the 1850 New York Code -- the predecessor of the Oregon statute -- explained that the statute was "designed to provide a convenient check upon the practice which now prevails, of repeated applications to the grand jury for an indictment, where it has been already dismissed." NY Code of Crim Proc, title V, ch I, § 286, commentary (1850). The commentary further noted that, under the common-law rule, the mere "perseverance of the prosecutor" sometimes led to an indictment after "frequent dismissals" and that the statute was intended to "prevent, on the one hand, the abuse referred to, and to guard the interests of the public, on the other." Id. Based on that commentary, we conclude that Turner's "in the interest of justice" standard is apt, as long as it is understood to embrace the kinds of factors that are relevant to the decision to be made (resubmission of a charge to the grand jury), such as the public's interest in avoiding prosecutorial abuse and having persons who commit crimes brought to justice. We review that type of decision under the statute for abuse of discretion. See, e.g., State v. Langley, 314 Or 247, 257-58, 839 P2d 692 (1992) (review of trial court's denial of defendant's motion to substitute appointed counsel, based on factual findings and conclusion that defendant's complaint was not "legitimate," is for abuse of discretion); State v. Little, 249 Or 297, 311-12, 431 P2d 810 (1968) (review of trial court's denial of defendant's motion for a change of venue, based on whether defendant could receive a "fair and impartial trial," is for abuse of discretion). Here, in support of the motion seeking an order allowing resubmission of the charges, the prosecutor provided an affidavit stating the basis for the motion. The affidavit explained that, after the first grand jury returned the not true bill, two additional victims came forward with complaints of sexual assault by defendant. The affidavit further explained the substance of the new complaints, which were both by two adult males who were acquainted with defendant before he turned aggressive and sexually threatening. Those two complaints described physical actions and emotional manipulations by defendant that were similar to the ones involved in the previously submitted charges.(9) The additional victims were not known to the prosecution when the first grand jury deliberated. Given those representations, the trial court in this case permissibly viewed those complaints as additional or new evidence for the grand jury's consideration.(10) The averments in the prosecutor's affidavit thus provided an adequate basis to support the trial court's conclusion that resubmission of the previously considered charges to a subsequent grand jury was "in the interest of justice."(11) Defendant nevertheless argues that resubmission was unjust under the particular facts of this case, principally because, in his view, "the real reason" the state sought resubmission was a "change in circumstances leading to a modified cost-benefit analysis." Defendant emphasizes the fact that prosecutors were aware of the additional victims within two months after the first grand jury returned the not true bill, but did not seek resubmission of the charges until eight years had passed and defendant was unexpectedly released from California custody. At that point, the state decided that defendant's risk to public safety was worth the cost of prosecution. Defendant contends that the prosecutor's assessment of the benefit of pursuing the charges, and not the presence of new evidence, prompted the motion seeking a court order authorizing resubmission. In defendant's view, a modified "cost-benefit analysis" is never an adequate reason for resubmission. Defendant's framing of the issue confuses the basis for seeking resubmission (new evidence) with why the prosecutor subjectively thought, given that new evidence, that it was worthwhile to pursue the prosecution. Our inquiry is whether the trial court decision to order resubmission was a permissible choice based on the information before it. See, e.g., State v. Barone, 329 Or 210, 219, 986 P2d 5 (1999) (reviewing trial court's denial of defendant's motion for change of venue, considering only the evidence "that was before the trial court at the time of the motion"). The statute contemplates an ex parte application to the trial court, and permits the court to make a decision based on the averred facts before it and, presumably, other facts of which the court might be aware or might choose to inquire. The prosecutor's subjective cost-benefit assessment of whether a prosecution would be worthwhile to pursue may have motivated the prosecutor to seek an order permitting resubmission to the grand jury, but that assessment was not the ground on which the prosecutor relied in seeking the new order. The ground for the prosecutor's motion was new evidence.(12) Here, the new evidence on which the prosecutor relied in seeking resubmission permitted the trial court to determine that resubmission was in the interest of justice. We therefore conclude that the trial court did not abuse its discretion, and thus that the trial court did not err in ordering resubmission of the two previously dismissed charges to the grand jury. B. Due Process and Preindictment Delay We turn to the second issue: whether the Due Process Clause prohibited the state from indicting defendant more than eight years after the crimes were committed. Defendant argues that his right to due process was violated by the delay, notwithstanding the applicable nine-year statute of limitations. In particular, defendant contends that his ability to defend himself was prejudiced by the destruction of evidence and the deaths of three potential witnesses during the delay. Defendant concedes that the state did not delay his indictment in bad faith, but urges that the state acted in reckless disregard of the probable prejudice caused by a delay of over eight years, which defendant asserts violated due process. The state responds that the statute of limitations is the primary protection against prejudicial delay and that preindictment delay violates due process only when (1) the government intentionally delayed for tactical advantage and (2) that delay substantially prejudiced the defendant. According to the state, defendant can show neither of those elements.(13) We recently addressed a similar due process claim in State v. Davis, 345 Or 551, 564, 201 P3d 185 (2008). In Davis, we explained that the Supreme Court has declined to announce a bright-line test for a successful due process claim of preindictment delay. Id. at 569-71. Two of that Court's decisions have addressed the issue: United States v. Marion, 404 US 307, 92 S Ct 455, 30 L Ed 2d 468 (1971) and United States v. Lovasco, 431 US 783, 97 S Ct 2044, 52 L Ed 2d 752 (1977). From Marion and Lovasco, two requirements of a successful due process claim are clear: (1) actual, nonspeculative prejudice; and (2) some level of government culpability. Lovasco, 431 US at 789-90. With regard to the second requirement -- government culpability -- it is also clear that so-called "investigative delay" never violates a defendant's due process rights. Id. at 796. Rather, the Court has explained that statutes of limitation generally "provide 'the primary guarantee against bringing overly stale criminal charges'" and "the Due Process Clause has a limited role to play in protecting against oppressive delay." Id. at 789 (quoting Marion, 404 US at 322). Neither Marion nor Lovasco, however, identify the level of government culpability a defendant must show in a successful due process claim of preindictment delay. See Davis, 345 Or at 570 (discussing the same). The Court in Marion accepted the government's concession that due process "would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." 404 US at 324 (emphasis added). The Court then stated, "we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution." Id. Six years later, in Lovasco, the Court similarly stated that it "could not determine in the abstract the circumstances in which preaccusation delay would require dismissing prosecutions." 431 US at 796. The Court concluded, "[w]e therefore leave to the lower courts, in the first instance, the task of applying the settled principles of due process that we have discussed to the particular circumstances of individual cases." Id. at 797. Since Lovasco, as we explained in Davis, the lower federal courts have divided into two camps on the question of "whether reasons for preindictment delay, other than an intentional delay to obtain a tactical advantage, may rise to the level of a due process violation." Davis, 345 Or at 570-71. A majority of the federal circuits have adopted a test that is reflected in the state's argument here, requiring a showing of intentional, tactical delay. Id. at 571; see also U.S. v. Crouch, 84 F3d 1497, 1511 (5th Cir 1996) (discussing majority test). The Ninth and the Fourth Circuits, by contrast, have established a different test. Davis, 345 Or at 571. Under that minority test, a court "consider[s] the government's reasons for the delay, balancing the prejudice to the defendant with the government's justification for the delay." U.S. v. Uribe-Rios, 558 F3d 347, 358 (4th Cir 2009) (internal quotation marks omitted) (citing U.S. v. Automated Med. Labs., Inc., 770 F2d 399, 403 (4th Cir 1985)). Recklessness or even negligence on the government's part may satisfy the minority test, if actual prejudice to the defendant weighs substantially in the balancing. United States v. Mays, 549 F2d 670, 678 (9th Cir 1977) ("[A]lthough weighted less heavily than deliberate delays, negligent conduct can also be considered * * *.").(14) As we will explain, we conclude that the minority test more closely follows the consistent threads in the Court's decisions -- the disinclination to announce specific requirements for every case, the reliance on broad due process principles, and the insistence that the statute of limitations is a defendant's primary protection in this area, making due process violations unusual. The majority test, by contrast, forecloses the possibility that something other than intentional, tactical delay may violate due process. The Court in Lovasco explained that the appropriate inquiry is "only whether the action complained of * * * violates those 'fundamental conceptions of justice which lie at the base of our civil and political institutions' and which define 'the community's sense of fair play and decency.'" 431 US at 790 (citations omitted). The Court has left open the possibility that a delay caused by something less than intentional government tactics may violate those fundamental conceptions of justice. We will do the same, until and unless the Court changes or narrows its course.(15) The majority test relies heavily on the passage in Marion in which the Court accepted the government's concession regarding tactical delay. When taken in context, however, the relevant comments did not foreclose the minority test. The entire discussion reads: "[T]he statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause * * * would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution." Marion, 404 US at 324 (citations omitted). In accepting the government's concession, the Court cited two of its previous due process cases, Brady v. Maryland, 373 US 83, 87, 83 S Ct 1194, 10 L Ed 2d 215 (1963) (due process violated when government suppresses evidence material to the defense), and Napue v. Illinois, 360 US 264, 269, 79 S Ct 1173, 3 L Ed 2d 1217 (1959) (due process violated when government knowingly allows false testimony to go uncorrected). See also Moore v. Illinois, 408 US 786, 794-98, 92 S Ct 2562, 33 L Ed 2d 706 (1972) (discussing both cases). In accepting the government's concession based on those cases, the Court seems to have been acknowledging that, when tactical delay is prejudicial, it is usually because of lost evidence, and Brady and Napue have established that due process would be violated by an intentional, tactical loss of evidence by the state. The Court did not expressly require tactical government delay for a due process violation, however. The minority test is consistent with the government's concession in Marion as well as with the Court's adherence to "elementary standards" of due process. Lovasco, 432 US at 795; see also Marion, 404 US at 325 (due process claim of preindictment delay "necessarily involve[s] a delicate judgment based on the circumstances of each case"). The flexibility in the minority test is faithful to the Court's due process jurisprudence in general, which in a variety of contexts favors multi-factor tests and balancing over bright-line rules. E.g., BMW of North America, Inc. v. Gore, 517 US 559, 574-75, 116 S Ct 1589, 134 L Ed 2d 809 (1996) (describing three "guideposts" to analyze whether a punitive damages award violates due process); Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976) (announcing a three-part balancing test to determine whether a property or liberty deprivation violates due process). Consistently with the Court's overriding concern with "fair play and decency," Lovasco, 432 US at 795, the minority test allows for the possibility that prejudicial preindictment delay may violate the Due Process Clause, based on the circumstances of the case, where the government culpably caused that delay, although not for a tactical advantage. We begin our analysis under the minority test with whether defendant has met his burden of showing actual, nonspeculative prejudice. Defendant argues that he was prejudiced by the destruction of evidence and the death of possible witnesses. He urges that some speculation is inevitable in any claim that lost evidence was prejudicial, but that here, where the state intentionally destroyed evidence that it could have retained, his burden to show actual prejudice should be relaxed, or shifted to the state. We may readily resolve defendant's request to relax or shift the burden on the prejudice inquiry. As we earlier discussed, the Supreme Court has explained that statutes of limitation, and not due process, protect defendants against the possible prejudice caused by preindictment delay. Marion, 404 US at 322-24. That distinction reflects a reality observed by the Court in Marion: "Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case." Id. at 322. Indeed, the destroyed evidence in this case may have supported the state's case; both parties were forced to proceed without it.(16) Under Marion, the possibility for prejudice inherent in any delay is the province of the statute of limitations; due process is concerned only with actual prejudicial delay. Id. The burden to demonstrate actual prejudice is properly placed on defendant here, because he was prosecuted within the statute of limitations. We note that defendant points to destroyed evidence and dead witnesses that relate only to the assault of the first victim; he claims no prejudice regarding the delay of indictment for the assault of the second victim. As to the charges involving the first victim, defendant asserts that his defense was prejudiced by the destruction of the rape kit, the victim's clothing, and the towels and clothing seized from defendant's house. Presumably, defendant would contend that the rape kit, clothing, and towels may have been inconsistent with the state's theory, although defendant does not offer a specific reason why the loss of that evidence was prejudicial. Indeed, without knowing the quality of that evidence, defendant can only speculate that it might have helped his defense. That speculation, however, is insufficient to demonstrate actual prejudice and cuts against defendant as sharply as it cuts in his favor. See Davis, 345 Or at 575 ("[T]he light they [the pieces of evidence] shed might have been favorable to defendant. Or they might have had no evidentiary value, or they might have bolstered the case against defendant. Either conclusion requires speculation."). The fact that the police in good faith purged physical evidence does not, on its own, demonstrate actual prejudice. Defendant also points to the deaths of three potential witnesses and to the destruction of the 9-1-1 tape, but his argument in that regard is equally unavailing. Defendant emphasizes that the first victim's roommate, who picked up the first victim from a 7-Eleven store after the crime, and whom defendant's first attorney (retained in 1996) had on a list of people to interview, could have testified as to the first victim's demeanor shortly after the crime.(17) In particular, defendant contends that the roommate might have testified that the victim had a "calm, rather than agitated demeanor" shortly after the assault. Defendant makes the same argument for why the destruction of the 9-1-1 tape was prejudicial -- it might have shown that the victim had a calm demeanor after the crime. Defendant can point to no evidence, however, supporting a conclusion that the roommate or the 9-1-1 tape was more likely to help rather than hurt defendant's case. He can only speculate as to the victim's demeanor. Again, due process is concerned solely with delay that is actually prejudicial. See id. at 575 ("The loss of the [9-1-1] recording does not establish actual prejudice, because the asserted value of its contents is, again, entirely speculative."); see also United States v. Pallan, 571 F2d 497, 501 (9th Cir), cert den, 436 US 911 (1978) (protection from lost testimony "'generally falls solely within the ambit of the statute of limitations'") (quoting 61 Minn L Rev 509, 517, (1977)). Defendant has therefore failed to show substantial, actual prejudice. To be sure, some of the reason that defendant can only speculate as to the value of the missing evidence is that so much of the evidence is missing -- no piece of clothing remains to indicate the value of the towels from defendant's house, no portion of the 9-1-1 tape remains to indicate whether the roommate's testimony would have supported the defense. Further, because the delay was prolonged, more evidence was destroyed or otherwise lost (e.g., the victim's clothing was destroyed in March 1999, the rape kit was destroyed in May 2000, and the roommate died in 2002). Nevertheless, defendant has demonstrated only the slightest potential prejudice caused by the delay, which, "[e]ven if * * * sufficient to be placed on the scale for purposes of the minority balancing test, * * * at most would weigh very lightly. That, in turn, would mean that the reasons for delay must weigh heavily in defendant's favor and against the state." Davis, 345 Or at 576 (citing Mays, 549 F2d at 678). Here, defendant asserts that the delay was caused by the state's incorrect assumption that defendant would serve a life sentence in California and its resulting conclusion that defendant did not pose a threat to public safety in Oregon. When defendant was released from custody eight years later, the state determined that defendant was a risk to public safety and ought to be prosecuted. Defendant's statement of the facts is undisputed, but his conclusion -- that those reasons for delay are sufficiently reckless to violate due process in this case -- does not follow. This is not a case in which prosecutors ever intentionally delayed defendant's indictment, and defendant concedes that this is not a case of bad-faith delay. The state initially closed the case based on the good-faith belief that defendant would serve a life sentence. A different prosecutor made an independent decision eight years later to reopen the case. While the case was open, the state was investigating and moving the case forward; only one month passed between defendant's release in California and defendant's indictment in Oregon. That cannot be classified as investigative delay, which, under Lovasco, never violates due process. 431 US at 796. Neither, however, can the circumstances be classified as negligence by the state. Defendant urges that the prosecutorial decisions here were reckless, because the state could have resubmitted the charges to a grand jury in 1996, obtained an indictment, and lodged a detainer against defendant while he was in custody in California. See ORS 135.775 (enacting the Agreement on Detainers). Instead, in defendant's view, the state chose to close the case and then reopen it eight years later. The "choice" that defendant perceives is one that arises only by hindsight, however. When the state closed the case in 1996, it did so without any expectation that it would proceed against defendant in the future. Therefore, from the state's perspective at that time, obtaining a detainer against defendant would have served no apparent purpose. In 2004, based on a change in circumstances, the state chose to proceed. Charging decisions require "consideration of a wide range of factors * * * in order to determine whether prosecution would be in the public interest." Lovasco, 431 US at 794. Due process does not prevent a prosecutor from making decisions based on good faith judgments simply because the predicates for those decisions may change over time. See, e.g., People v. Horning, 34 Cal 4th 871, 893, 102 P3d 228 (Cal 2004) (describing as "practical" and "neutral" under a Sixth Amendment speedy trial analysis a district attorney's initial decision that "it was not worthwhile expending the necessary resources to extradite" the defendant, who was sentenced to life in prison in another state).(18) Contrary to defendant's assertions, under these facts, the state was entitled to change its position regarding the danger that defendant posed to public safety over the course of eight years. The state did not close the case because it saw defendant as nonthreatening; it closed the case based on a conclusion that defendant's California sentence minimized his threat and, in light of that, pursuing defendant's prosecution in Oregon was not a good use of public resources. When the state's initial calculation turned out to be incorrect, the statute of limitations had not yet run. The sequence of events was not ideal -- evidence had been destroyed and, eight years after the initial dismissal of the charges, the case had not yet been resolved. But in terms of the reason for those events, the state's actions do not demonstrate the government culpability and the degree of actual prejudice that violate due process. III. CONCLUSION Under ORS 132.430(2), a trial court, in exercising discretion to allow or deny resubmission of charges to a grand jury, properly considers whether resubmission would be in the interest of justice, which is an inquiry guided by factors such as whether resubmission would be an abuse of the grand jury process or would serve the public interest in bringing a criminal to justice. Here, the facts set out in the prosecutor's affidavit in support of resubmission established that the state had additional evidence against defendant that had not been available when the first grand jury declined to indict defendant. Given that showing, the trial court did not abuse its discretion in ordering resubmission of the two charges previously considered by the grand jury. To demonstrate that preindictment delay violated the federal Due Process Clause, a defendant must show that the delay actually prejudiced the defendant and that the government culpably caused the delay. A court must weigh the government's reason for the delay against the prejudice to determine whether the delay violated our society's fundamental conceptions of justice, fair play, and decency. Defendant in this case showed either no actual prejudice, or only the slightest actual prejudice, which was insufficient to prove a due process violation in light of the lack of government culpability. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. ORS 132.430(2) is set out later in this opinion. 2. The Fourteenth Amendment to the United States Constitution provides, in part, that "[n]o state shall * * * deprive any person of life, liberty, or property, without due process of law." 3. The detective who authorized the destruction of the evidence testified that he could not confirm that the police department had ever had the 9-1-1 tapes in its possession. For purposes of our review, we may presume that the tapes were included in the files that police later purged, because we nonetheless conclude that defendant failed to demonstrate a due process violation. 4. Under ORS 131.125(2), the statute of limitations for sodomy and first and second-degree sexual abuse of an adult victim is six years. Under ORS 131.145(2)(a), the limitation period is tolled "[a]ny time when the accused is not an inhabitant of or usually resident within this state[.]" In this case, the statute was tolled while defendant was in custody in California. The maximum time that a statute of limitations may be tolled is three years. ORS 131.155. The practical result, in this case, was a nine-year statute of limitations. 5. Defendant also seeks review of the trial court's decision to admit evidence at trial of defendant's earlier, uncharged sexual assaults of two men not involved in the crimes charged here. The trial court allowed the evidence as relevant to whether the second victim consented to the sexual contact with defendant, as defendant argued at trial. We accepted review of this case to determine the propriety of defendant's indictment and we decline to review the evidentiary issue. See ORAP 9.20(2) ("If the Supreme Court allows a petition for review, the court may limit the questions on review."). 6. Nonsubstantive changes were made to the statute in 1972. The 1864 statute provided: "[w]hen an indictment, indorsed 'not a true bill,' has been presented in court and filed, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or enquired of by the grand jury, unless the court so order." General Laws of Oregon, Crim Code, ch VII, § 65 (Deady 1845-1864). In 1972, the legislature omitted the reference to presentment in the first clause and updated the spelling and grammar of the section. The meaning of the statute has not changed. 7. As LaFave explains, during the early part of this century, nearly half of the states had adopted statutes requiring judicial approval for resubmissions to the grand jury, and thus altering the common-law rule in those jurisdictions. Many states have since repealed those laws, however, and such provisions are now found in only a minority of the states. Id. 8. See also NY Code of Crim Proc, title V, ch I, §§ 285-86 (1850) (requiring a court order for resubmission of charges after a not true bill). As Brown notes, the Deady Code was based on the work of an 1854 Oregon territorial commission, which adopted the entire 1850 New York Code, and on updates to that code by the Field Commission in New York. 2 UCLA-Alaska L Rev at 31; see also 1855 Statutes of Oregon, Advertisement (Asahel Bush 1855) (explaining that the statutes relating to "the manner of commencing and prosecuting actions at law, are taken, word for word, from the New York Code"). 9. For example, the victims described defendant as attempting to force sexual contact and then relenting, repeatedly. All the victims described defendant making similar appeals to their friendships or to favors that he had done for them. 10. The affidavit advised the court that the additional victims were not known to the prosecution at the time of the first grand jury proceeding, which puts them more clearly into a category of "new" evidence than if, for example, the state had known about the additional victims from the outset but had chosen not to present that evidence to the initial grand jury or had been unable to present it for some reason. This case does not require us to consider if, in the latter circumstances, evidence regarding the additional victims would be considered new evidence. We note, however, that other jurisdictions that have considered that question have answered in the affirmative. See State v. Ephamka, 878 P2d 647, 651 (Alaska App 1994) (concluding that resubmission was properly allowed based on newly available testimony that was not newly discovered) (citing People v. Ladsen, 111 Misc 2d 374, 444 NYS2d 362 (NY Sup Ct 1981)). 11. We do not mean to suggest that the existence of additional or new evidence is the only valid criterion for a trial court's exercise of discretion in deciding whether to allow or deny resubmission. That is the basis on which the prosecutor in this case sought resubmission, and the most common basis for resubmission in cases in other jurisdictions. See generally LaFave, 4 Criminal Procedure § 15.2(h), at 485-86 (describing newly discovered evidence as the most prevalent standard for resubmission, and as required by some state statutes). Our disposition of this case does not require us to consider what other considerations or criteria might also be considered by a trial court in ruling on a requested order for resubmission of charges to a grand jury. 12. In his proposed "rule of law" in his brief to this court, defendant also argues that resubmission was not in the interest of justice because of the eight-year delay in his prosecution, during which time police purged their files of evidence they previously had gathered. We need not decide in this case under what circumstances facts bearing on actual or likely prejudice from any delay in the resubmission of charges must be disclosed by a prosecutor in seeking an order of resubmission. Here, it suffices to observe that defendant did not make that argument to the trial court; the record does not establish that the prosecutor was aware, at the time of seeking resubmission, that the police had purged the evidence from their files; and, as we later conclude in connection with defendant's due process claim, the record does not, in all events, establish any actual prejudice as a result of the delay in this case. 13. Defendant argues in the alternative that we should presume prejudice from the length of delay in this case, rather than requiring him to show actual prejudice. The Supreme Court has held in this context, however, that prejudice will not be presumed for purposes of the Due Process Clause. United States v. Lovasco, 431 US 783, 789, 97 S Ct 2044, 52 L Ed 2d 752 (1977) ("[P]roof of actual prejudice makes a due process claim concrete and ripe for adjudication[.]"); see also State v. Davis, 345 Or 551, 575, 201 P3d 185 (2008) (due process claim requires "actual, not presumed, substantial prejudice"). Defendant also asks us to presume prejudice based on his Sixth Amendment speedy trial right, under which egregious delay caused by government negligence entitles a defendant to dismissal of criminal charges without a showing of actual prejudice. See Doggett v. United States, 505 US 647, 655-56, 112 S Ct 2686, 120 L Ed 2d 520 (1992) ("[E]xcessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify."). The Sixth Amendment, however, protects a defendant only after indictment or arrest, as the Supreme Court has made clear. Doggett, 505 US at 655; see also United States v. Marion, 404 US 307, 321, 92 S Ct 455, 30 L Ed 2d 468 (1971) (same). The Court in Marion, a case concerning precharging delay, explained that there is "no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function." 404 US at 323 (emphasis added). The Court distinguished between the protections of the Sixth Amendment (from egregious delay between arrest or indictment and trial), id. at 321; statutes of limitation (from the possibility of prejudice resulting from precharging delay), id. at 322; and the Due Process Clause (from actual prejudice resulting from precharging delay), id. at 324. If defendant is entitled to a remedy in this case, in which he challenges a precharging delay within the statute of limitations, it must be under the Due Process Clause. 14. See also United States v. Moran, 759 F2d 777, 783 (9th Cir 1985) ("Although as established above, negligent governmental conduct may form a basis for unconstitutional pre-indictment delay, our cases clearly require some showing of governmental culpability to prove a deprivation of due process."). 15. Several other states considering the issue of the proper due process standard for preindictment delay have also followed the minority test. See, e.g., Knotts v. Facemire, 223 W Va 594, 603, 678 SE 2d 847 (2009) (adopting Fourth Circuit balancing test); State v. Knickerbocker, 152 NH 467, 470, 880 A2d 419 (2005) (adopting balancing test); State v. Rippy, 626 A2d 334, 338 (Me 1993) (applying a balancing test, citing Lovasco); State v. Chavez, 111 Wash 2d 548, 558-60, 761 P2d 607 (1988) (adopting balancing test); People v. Lawson, 67 Ill 2d 449, 460-61, 367 NE2d 1244 (1977) (supplemental opinion on denial of rehearing) (interpreting Lovasco to require a balancing test between a defendant's actual prejudice and the state's reasons for the delay). 16. Defendant does not allege, nor is there any evidence indicating, that the police purged their evidence in bad faith. If defendant were to have alleged bad faith, the burden to show bad faith would be his. See Arizona v. Youngblood, 488 US 51, 58, 109 S Ct 333, 102 L Ed 2d 281 (1988) (due process violation for failure to preserve evidence requires defendant to show bad faith on government's part). 17. Defendant points to two other missing witnesses as well: his landlord's husband and defendant's neighbor. Defendant does not offer even a theory, however, for how those witnesses may have supported his defense. 18. See also, e.g., Graham v. Commonwealth, 319 SW3d 331, 341-42 (Ky 2010) (no due process violation where state dismissed murder charges and closed case in 1981 and reindicted the defendant in 2007 based on newly available evidence) (citing Lovasco, 431 US at 795); Evans v. State, 808 So 2d 92 100-01 (Fla 2001) (no due process violation where the defendant could not demonstrate actual prejudice by state decision to close murder investigation in 1991 and reopen it in 1997); State v. Potter, 68 Wash App 134, 137-41, 842 P2d 481 (1992) (no due process violation, because defendant failed to show actual prejudice where state closed murder investigation based on coroner's report without knowledge of sheriff's investigation, and reopened case over 12 years later based on defendant's confession).

66e31300b7b6404db2ea30752d96d6d94b5e4904a5d157c44046750e3eea50c1

2011-03-10T00:00:00Z

d3484181-6385-4164-aa9f-414773678306

Friends of Yamhill County v. Board of Commissioners

S058915

oregon

Oregon Supreme Court

Filed: October 20, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON FRIENDS OF YAMHILL COUNTY, INC., an Oregon non-profit corporation, Respondent on Review, v. BOARD OF COMMISSIONERS OF YAMHILL COUNTY, an Oregon municipal corporation, Respondent, and GORDON COOK, an individual resident of the State of Oregon and Yamhill County, Petitioner on Review. (CC CV080305; CA A140899; SC S058915) On review from the Court of Appeals.* Argued and submitted May 2, 2011. Charles F. Hudson, Lane Powell PC, Portland, argued the cause and filed the brief for petitioner on review. Ralph O. Bloemers, Crag Law Center, Portland, argued the cause and filed the brief for respondent on review. James N. Westwood, Stoel Rives LLP, Portland, filed the brief for amicus curiae Charles J. McClure and Ellen R. McClure. Stephen T. Janik, Ball Janik LLP, Portland, filed the brief for amicus curiae Eileen Marie Cadle Martinson. Denise G. Fjordbeck, Assistant Attorney General, Salem, filed the brief for amicus curiae Department of Land Conservation and Development. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Sean T. Malone, Eugene, filed the brief for amici curiae Friends of Polk County and Gloria Bennett. Lane P. Shetterly, Shetterly, Irick & Ozias, Dallas, filed the brief for amicus curiae Floyd Prozanski. Before De Muniz, Chief Justice, and Durham, Kistler, Balmer, Linder, and Landau, Justices.** KISTLER, 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 consistent with this opinion. *Appeal from Yamhill County Circuit Court, John L. Collins, Judge. 237 Or App 149, 238 P3d 1016 (2010). **Walters, J., did not participate in the consideration or decision of this case. 1 KISTLER, J. 1 The question in this case is whether a landowner holding a Measure 37 2 waiver had a common law vested right to construct a residential subdivision that he had 3 begun but not completed by the effective date of Measure 49. Yamhill County found that 4 the costs that the landowner had incurred were sufficient to establish a vested right to 5 complete construction of the subdivision, and the circuit court upheld the county's 6 decision on a writ of review. The Court of Appeals reversed the circuit court's judgment 7 and remanded the case for further proceedings. Friends of Yamhill County v. Board of 8 Commissioners, 237 Or App 149, 238 P3d 1016 (2010). The Court of Appeals started 9 from the proposition that, in the context of Measure 49, a common law vested right turns 10 primarily on the ratio between the costs that a landowner has incurred and the projected 11 cost of the development. It reversed because the county had given too little weight to that 12 factor. We allowed the landowner's petition for review to clarify the standard for 13 determining when, in the context of Measure 49, a common law right to complete a 14 development will vest. We now affirm the Court of Appeals decision, although for 15 different reasons than those stated in the Court of Appeals opinion. 16 Before turning to the facts of this case, we first discuss briefly the statutory 17 context in which this issue arises. Comprehensive zoning laws first emerged in the early 18 part of the twentieth century. See Village of Euclid v. Ambler Realty Co., 272 US 365, 19 386-87, 47 S Ct 114, 71 L Ed 303 (1926) (discussing the origins of zoning laws); Eugene 20 McQuillin, 8 The Law of Municipal Corporations § 25:3, 12-13 (3d ed 2010) (same). 21 Before then, local governments regulated the location of certain nuisance uses but did not 22 2 control the use of land within their jurisdictions on a comprehensive basis. McQuillin § 1 25:3 at 12-13. As a result of increasing urbanization, local governments sought to 2 organize more effectively the variety of different and, at times, incompatible uses of land 3 within their communities. See Patricia E. Salkin, 2 American Law of Zoning § 12:2, 12-7 4 (5th ed 2008); Village of Euclid, 272 US at 386-87 ("Until recent years, urban life was 5 comparatively simple; but with the great increase and concentration of population, 6 problems have developed, and constantly are developing, which require, and will 7 continue to require, additional restrictions in respect of the use and occupation of private 8 lands in urban communities."). 9 To that end, state legislatures began enacting enabling legislation that 10 authorized local governments to pass comprehensive zoning ordinances. See, e.g., Or 11 Laws 1919, ch 311 (permitting municipalities to enact comprehensive zoning 12 ordinances).1 In exercising that authority, local governments retained relative autonomy 13 to craft the planning and zoning policies that governed their communities. See Hector 14 Macpherson & Norma Paulus, Senate Bill 100: The Oregon Land Conservation and 15 Development Act, 10 Will L J 414, 414 (1974). By the latter half of the twentieth 16 century, however, that decentralized zoning authority had yielded, at least in Oregon, to 17 statewide coordination of the standards governing land use. See id. at 415. In 1973, the 18 Oregon legislature enacted Senate Bill 100, which established statewide land use 19 1 The 1919 enabling act, Oregon's first, authorized municipalities to enact comprehensive zoning laws. See Or Laws 1919, ch 311. The legislature passed a second enabling act in 1947, conferring a similar planning and zoning authority on county governments. See Or Laws 1947, ch 537. 3 planning goals and delegated the authority to modify and enforce those goals to a state 1 agency. See generally ORS ch 197 (establishing the Land Conservation and 2 Development Commission and setting out statewide land use planning goals).2 3 Oregon's statewide land use planning system did not come without 4 controversy, however. In some parts of the state, implementing the statewide goals 5 resulted in greater restrictions on the use of property than local zoning law previously had 6 imposed. See Edward J. Sullivan & Jennifer M. Bragar, The Augean Stables: Measure 7 49 and the Herculean Task of Correcting an Improvident Initiative Measure in Oregon, 8 46 Will L Rev 577, 577-78 (2010). Some persons came to view the statewide goals, 9 which were calculated to protect farm- and forest-resource lands, as unfairly limiting the 10 rights of landowners who acquired their property before those restrictions were put in 11 place. See id. In particular, they were concerned with the limitations that the land use 12 laws placed on a landowner's ability to build homes on his or her land. Id. 13 Those concerns culminated in Ballot Measure 37. Or Laws 2005, ch 1, 14 codified at former ORS 197.352 (2005). That measure provided landowners with "just 15 compensation" for land use regulations, enacted after they had acquired their property, 16 that restricted the use of the property and, as a result, diminished its value. See State ex 17 rel English v. Multnomah County, 348 Or 417, 420-22, 238 P3d 980 (2010) (describing 18 Measure 37). When faced with a claim for "just compensation" under Measure 37, a 19 2 Senate Bill 100 was one of many land use related legislative acts enacted by the 1973 legislature. See Comment, Oregon's New State Land Use Planning Act -- Two Views, 54 Or L Rev, 203 n 4 (1975) (listing land use related enactments). 4 government could choose: (1) to pay the landowner compensation for the diminished 1 value of the property and enforce the regulation or (2) to waive the regulation and permit 2 the owner "to use the property for a use permitted at the time the owner acquired the 3 property." Former ORS 197.352(8) (2005). 4 Measure 37 also was not without controversy. Some believed that the 5 measure went farther than many voters had intended in that it not only permitted 6 landowners to build a small number of additional homes on their property, unrelated to 7 the resource use of the land, but it also authorized the large-scale development of 8 formerly protected lands. See Official Voters' Pamphlet, Special Election, Nov 6, 2007, 9 20 (Legislative Argument in Support of Measure 49). In response to those concerns, the 10 2007 Legislative Assembly considered several draft bills intended to reform Measure 37. 11 After several public hearings, those draft bills were consolidated into a single bill, House 12 Bill 3540 (2007). See Tape Recording, Joint Special Committee on Land Use Fairness, 13 HB 3540, Apr 26, 2007, Tape 50, Side A (statement of Sen Greg Macpherson). The 14 legislature did not enact HB 3540 directly; instead, it referred the proposed legislation to 15 the voters on June 15, 2007, as Ballot Measure 49. See Or Laws 2007, ch 750, § 2 16 (referring HB 3540 to the voters). In a special election held on November 6, 2007, the 17 voters approved Measure 49 and, on December 6, 2007, the measure became effective. 18 Among other things, Measure 49 retroactively extinguished previously 19 issued Measure 37 waivers of land use regulations. See Corey v. DLCD, 344 Or 457, 20 466-67, 184 P3d 1109 (2008) ("Measure 49 by its terms deprives Measure 37 waivers -- 21 and all orders disposing of Measure 37 claims -- of any continuing viability"; emphasis in 22 5 original). As a result, landowners who had begun developing their property under 1 authorization granted by Measure 37 waivers could no longer automatically continue to 2 do so. Instead, those landowners had to choose one of three alternative "pathways" 3 moving forward: an "express pathway," a "conditional pathway," and "a third pathway 4 for claimants that have vested rights to carry out claims that have already been 5 approved." Tape Recording, Joint Special Committee on Land Use Fairness, SB 1019, 6 Apr 19, 2007, Tape 43, Side A (statement of Richard Whitman, Oregon Department of 7 Justice, summarizing the proposed "framework" for amending Measure 37); see Or Laws 8 2007, ch 424, § 5 (setting out those three alternatives). 9 The express pathway entitles a landowner to obtain development approval 10 for up to three additional homes on his or her property. See Or Laws 2007, ch 424, § 5(1) 11 (identifying express pathway). Under the conditional pathway, a landowner can obtain 12 approval for four to 10 homes if, among other conditions, the land use regulations 13 prohibiting the construction of those homes resulted in a specified reduction of the fair 14 market value of the property. See id. §§ 7 and 9 (setting out conditional pathway and 15 describing conditions). Finally, the vested rights pathway permits a landowner who had 16 obtained a Measure 37 waiver to "complete and continue the use described in the 17 waiver," provided that the landowner could also demonstrate a "common law vested 18 right" to complete that use. Id. § 5(3). 19 This case involves the third pathway that Measure 49 identifies. Gordon 20 Cook owns approximately 40 acres of agricultural land in Yamhill County. Following 21 the passage of Measure 37, Cook filed with the state and county written demands for 22 6 compensation pursuant to that measure. Cook claimed that county land use regulations 1 enacted after he acquired his property in 1970 both prevented him from developing a ten- 2 lot subdivision on his land and also diminished the fair market value of that property by 3 $1.6 million. The state explained that, in his written demands, Cook sought 4 compensation in that amount or, alternatively, "the right to divide the 38.8-acre subject 5 property into nine 2.69-acre parcels and one 12.4-acre parcel and [to] develop a dwelling 6 on each 2.69-acre parcel." Instead of paying Cook monetary compensation, the state and 7 county issued waivers of land use regulations in 2006, agreeing not to enforce the land 8 use regulations that prevented Cook from developing a residential subdivision.3 See 9 former ORS 197.352 (2005) (permitting that relief). 10 Having received those waivers, Cook could proceed to the first stage of his 11 proposed development -- that is, dividing his property "into nine 2.69-acre parcels and 12 one 12.4-acre parcel[.]" To do so, Cook had to initiate a two-stage process for obtaining 13 the county's approval of his proposed subdivision. See generally ORS 92.010 to 92.179 14 (setting forth procedures for the subdivision and partition of land). First, Cook had to 15 apply for and obtain preliminary subidivision approval. See id. If he obtained 16 preliminary approval of his proposed subdivision plan, then he could seek to satisfy any 17 conditions to which final approval would be subject and, on completing those conditions 18 and preparing and submitting a final plat of his proposed subdivision, he could seek final 19 3 In authorizing Cook's development of his property and agreeing not to apply land use regulations that would prevent it, the state's waiver authorizes only the specific subdivision development that Cook apparently had identified in his written demand for compensation.. The county's waiver is not as specific. 7 subdivision approval from the county. See id. For the county's part, that process 1 permitted it to ensure that Cook's proposed development was "consistent with the 2 [county's] comprehensive plan and applicable land use regulations." ORS 197.522 3 (requiring counties to approve subdivision plans if they are consistent with local land use 4 regulations). Accordingly, based on the Measure 37 waivers issued by the state and the 5 county, Cook submitted to the county an "application for preliminary subdivision 6 approval." 7 Because Cook's application was predicated on the state and county's waiver 8 of certain otherwise applicable land use regulations, in reviewing Cook's application, the 9 county "k[ept] in mind that many of the standards [then in effect] would not [have been] 10 applied when [Cook] first acquired the property." Instead, Cook's application was 11 reviewed for compliance with the requirements of the zoning ordinance in effect in 12 1970.4 That ordinance, which the record refers to as "Ordinance 29," classified Cook's 13 property as property subject to the county's former "A-1" agricultural zone. The A-1 14 zone authorized as a permitted use a "[d]welling or dwellings for the owner, operator, or 15 employe[e]s required to carry out" a farm- or forestry-resource use. It also authorized 16 "[s]ingle-family dwelling" as a conditional use, provided that the dwelling was 17 "developed in accordance with the requirements" of the county's R-S residential suburban 18 4 Measure 37 did not apply to all land use regulations enacted after the landowner had acquired his or her property. It exempted from its scope, among other regulations, after-enacted regulations "[r]estricting or prohibiting activities for the protection of public health and safety." Former ORS 197.352(3)(B) (2005). As the county recognized, "health and safety regulations w[ould] need to be complied with in evaluating" Cook's application for preliminary subdivision approval. 8 zone.5 1 In reviewing Cook's application for preliminary subdivision approval, the 2 county acknowledged that "Ordinance 29 did not establish minimum lot sizes within" the 3 A-1 zone. That is, unlike the restrictions set forth for other zoning districts under 4 Ordinance 29, the ordinance did not identify the minimum size lot on which a dwelling 5 could be sited as either a permitted use or as a conditional use in the A-1 zone. With the 6 apparent expectation, in light of Measure 37, of adjudicating land use applications 7 seeking to develop property previously zoned as A-1 Agriculture property, "[o]n April 2, 8 2007 the Board of Commissioners met for the purpose of interpreting Ordinance 29." At 9 that meeting, the county adopted Board Order 07-289, which states, in part: 10 "[B]ased on the purpose of the [A-1] zone * * * it is reasonable to 11 imply a minimum lot size appropriate for a dwelling in the zone. Thus, the 12 Board finds that the appropriate minimum l[o]t size for a land division 13 allowed by Measure 37 * * * is five acres for dwellings allowed as a 14 permitted use and 2.5 acres for dwellings allowed as a conditional use." 15 On May 11, 2007, after completing its review of Cook's application, the 16 county granted him preliminary subdivision approval and conditional use approval to 17 begin developing his 10-lot subdivision. The county's order approving Cook's 18 application for preliminary subdivision approval also set forth the requirements that Cook 19 would have to satisfy to obtain final subdivision approval from the county. No interested 20 party appealed the county's approval of Cook's preliminary subdivision plan and 21 5 The ordinance uses the phrase "[s]ingle-family dwelling." The ordinance does not use the phrase "single-family dwellings," which would suggest that multiple, additional single-family dwellings were permitted, nor is the phrase preceded by an article, such as "a," which would suggest that only one additional single-family dwelling was permitted. 9 conditional use. 1 Having obtained preliminary subdivision approval, Cook began developing 2 his property. His efforts included clearing, excavating, and grading the property, as well 3 as taking steps to satisfy the conditions to which final subdivision approval would be 4 subject. Those conditions required Cook to retain a private firm to evaluate and plan a 5 system for "on-site subsurface sewage disposal" for the nine smaller lots, and also 6 required Cook to arrange for water and electrical power to the subdivision. Having 7 begun development following his preliminary subdivision approval on May 11, 2007, 8 Cook continued developing his property through the remainder of 2007. On December 5, 9 2007, the day before Measure 49 became effective, Cook obtained the county's approval 10 of his final subdivision plat and recorded it. No interested party appealed the county's 11 approval of Cook's final plat. 12 Were it not for Measure 49, Cook would have been entitled to proceed with 13 the second stage of his proposed subdivision development -- that is, "develop[ing] a 14 dwelling on each 2.69-acre" lot. As noted, however, Measure 49 retroactively 15 invalidated Measure 37 waivers of land use regulations, and landowners such as Cook, 16 who had been proceeding with a development under the authorization of a Measure 37 17 waiver, could no longer automatically continue to do so. Instead, they had to choose 18 among three pathways: the express pathway, the conditional pathway, and the vested 19 rights pathway. Cook chose the vested rights pathway. Accordingly, he sought a 20 determination from the county that he had "a common law vested right" to complete the 21 10 development contemplated in his Measure 37 waivers.6 1 To that end, Cook submitted an application for a county vesting 2 determination pursuant to an ordinance that the county had enacted to implement the 3 vested rights pathway of Measure 49.7 In his application, Cook provided the county with 4 documentary evidence of his expenditures in seeking preliminary and final subdivision 5 approval as well as expenses that he had incurred in developing his property. 6 Specifically, Cook documented his legal costs; surveying and engineering costs; costs 7 incurred in excavating, grading, and conducting other subsurface or surface-level 8 development of his property; costs incurred in arranging for the provision of electrical 9 power to the subdivision, in securing permits for the development, and in testing and 10 planning septic systems for each homesite; and money paid to record Cook's final plat 11 and to pay property taxes "imposed upon disqualification from special assessment."8 12 6 Section 5(3) of Measure 49 provides that a landowner who filed a timely Measure 37 claim is entitled to "just compensation as provided in" "[a] waiver issued before the effective date of this 2007 Act to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007 Act to complete and continue the use described in the waiver." Or Laws 2007, ch 424, § 5(3). 7 Under the county's "vested rights ordinance," Measure 37 claimants apply for a "final county vesting decision" by an "independent vesting officer." (Capitalization omitted.) The independent vesting officer is a private attorney employed by the county to adjudicate applications for vested rights determinations. Throughout this opinion, we refer to both the county and the vesting officer as "the county." 8 Under the zoning applicable to Cook's property before he obtained his Measure 37 waivers, his property was taxed as farm-use property assessed at special assessment levels. See ORS 308A.062(1) (providing that exclusive farm use land qualifies for special assessment). One condition of Cook's obtaining final plat approval 11 Based on that evidence, Cook provided three calculations of his total 1 expenditures. Cook represented that, by June 28, 2007, a short time after the legislature 2 had referred Measure 49 to the voters, he had expended a total of $120,494.06. On 3 November 6, 2007, the day on which the voters approved Measure 49, Cook's 4 calculations showed that his expenses totaled $143,764.85. Finally, when Measure 49 5 became effective one month later on December 6, 2007, Cook calculated that he had 6 spent a total of $155,160.53 in developing his property. 7 Cook also included with his application estimates of what, in his view, the 8 total cost of completing his proposed development would be. Originally, Cook had 9 planned to develop only "finished lots." That is, Cook had planned to develop his 10 property to the point where each new lot on the property was suitable for the construction 11 of a dwelling, but Cook had not planned on constructing any of those dwellings himself. 12 Instead, Cook had planned on selling the finished lots to developers or individuals who 13 could then, as Cook saw it, arrange for the construction of dwellings on the lots on their 14 own. As a result, Cook estimated that the total cost of completing his development -- that 15 is, the total cost of developing nine buildable lots -- would be $204,660.53. 16 As Cook acknowledged in his application, however, "[s]ome opponents of 17 Measure 37 have argued that the 'project' must include the [cost of constructing] homes 18 as well as the [cost of developing] finished lots." Although Cook disagreed with that 19 _______________________ was that he pay property taxes at assessment levels applicable to his proposed residential subdivision from the outset of development. See ORS 308A.113(1)(a) (providing for disqualification from special assessment if land zoned as exclusive farm use land is used for a non-resource purpose). 12 view of Measure 37, he also offered an estimate of his project's total cost, including the 1 cost of placing dwellings on the lots. Specifically, Cook added the cost of purchasing 2 small, manufactured homes to be placed on the lots and the cost of providing necessary 3 services to those dwellings. Under that modified characterization of his proposed 4 development, Cook estimated that completing his proposed subdivision would cost a total 5 of $871,158.54. 6 The county's ordinance permitting Cook to apply for a vested rights 7 determination provides that "[p]ersons other than the [a]pplicant" may "submit written 8 evidence, arguments or comments * * * for consideration by [the county]." Pursuant to 9 that ordinance, Friends of Yamhill County filed a memorandum and exhibits in 10 opposition to Cook's vested rights application. Among other exhibits, Friends of Yamhill 11 County included printouts of online real estate listings, which advertised several of the 12 lots on Cook's property for sale for between $325,000 and $329,000, and another listing 13 that advertised a "[p]roposed new home by [a] renowned builder," to be built on one of 14 Cook's lots, which could be purchased for $1.29 million. That advertisement depicted a 15 sizeable permanent dwelling, somewhat dissimilar from the manufactured homes 16 described in Cook's estimate of his total cost. 17 After reviewing the exhibits submitted by Cook and Friends of Yamhill 18 County, the county determined that Cook had obtained a vested right to complete his 19 proposed subdivision. The county rested its conclusion on two alternative bases. The 20 county concluded initially that, because Cook had obtained both preliminary and final 21 plat approval from the county, neither of which had been appealed, Cook had obtained 22 13 "governmentally approved homesites that could be deeded to others," and, as a result, he 1 had acquired a vested right to "develop and/or sell every one of the lots" before Measure 2 49 went into effect. 3 Alternatively, the county concluded that Cook had a vested right to 4 complete his subdivision, based on a six-factor test set out in Clackamas Co. v. Holmes, 5 265 Or 193, 508 P2d 190 (1973). The parties primarily disputed three of the six Holmes 6 factors. One of those factors required the county to examine the ratio that Cook's 7 expenses bore to the cost of completing his development. A second factor required the 8 county to determine whether Cook had begun developing his property after he received 9 notice of Measure 49's pendency. The third factor required the county to assess Cook's 10 good faith generally in proceeding with his development. 11 Considering the first Holmes factor, the county found that Cook's expenses 12 were "substantial," but it did not determine the total cost of completing the project. In the 13 county's view, doing so would be "a speculative analysis that may be necessary in other 14 cases in which [the ratio] factor deserves to be given more weight, but is not necessary to 15 properly address [that factor] in this case." The county also rejected Friends of Yamhill 16 County's contention regarding the second factor. The county found that, because Cook 17 had begun developing his property before the legislature referred Measure 49 to the 18 voters, that factor did not provide any reason to say that Cook had acted in bad faith. 19 Finally, regarding "good faith" generally, the county explained that, "[b]ased solely on 20 [Cook's] compliance with (and reasonable reliance upon) all applicable law in 21 establishing his use, [Cook] has established that all of his expenditures * * * were in good 22 14 faith." The county concluded that, under Holmes, Cook had done enough to establish a 1 vested right to complete his subdivision. 2 Friends of Yamhill County filed a petition for a writ of review in the 3 Yamhill County Circuit Court, seeking review of the county's decision. See Or Laws 4 2007, ch 424, § 16, codified at ORS 195.318 (providing for judicial review of county 5 decisions under section five of Measure 49). The circuit court issued the writ, ordering 6 the county to return to the circuit court the record before the county. After reviewing that 7 record, the circuit court upheld the county's ruling that Cook's proposed use complied 8 with the state and county waivers, and it upheld the county's alternative holding that 9 Cook had expended sufficient costs toward construction to obtain a vested right to 10 complete the construction of homes on the lots. 11 On the first issue, the circuit court reasoned that there was substantial 12 evidence in the record that, in 1970, a residential subdivision was a permissible 13 conditional use of land zoned A-1. It followed, the court concluded, that the use 14 complied with the waivers. On the second issue, the court rejected the county's primary 15 ground for finding a vested right, which assumed that Measure 37 rights are transferrable. 16 The circuit court reasoned that "[t]he fact that individual lots can be transferred after plat 17 approval does not mean that the new owner has any vested right to use that lot or parcel 18 in a nonconforming way." The circuit court recognized, however, that "a use fully 19 established prior to the Measure 49 deadline or partially completed but vested under 20 common law analysis is transferable as a nonconforming use." (Emphases omitted.) The 21 circuit court accordingly focused on whether Cook had incurred sufficient costs toward 22 15 the construction of the homes that he had a common law vested right to complete their 1 construction. On that question, the circuit court agreed with the county's alternative 2 conclusion that Cook had established a vested right to complete construction of the 3 homes under the six-factor test set out in Holmes. 4 Friends of Yamhill County appealed the circuit court's judgment.9 On 5 appeal, the Court of Appeals agreed with Friends of Yamhill County that the circuit court 6 had erred in two respects. Friends of Yamhill County, 237 Or App at 178. First, the 7 Court of Appeals concluded that the county had erred in not determining whether a 8 residential subdivision was a permissible use under the zoning ordinances in effect when 9 Cook acquired his property and that the circuit court should have remanded for that 10 determination. Id. at 171-72, 178. Second, the Court of Appeals held that, in 11 determining whether Cook had a vested right to complete construction of the homes, the 12 county had failed "to determine the extent and general cost of the project to be vested and 13 to give proper weight to the expenditure ratio factor" and that the circuit court had erred 14 in upholding the county's determination. Id. at 178. 15 In reaching the latter conclusion, the Court of Appeals recognized that 16 Measure 49 provides that a landowner can complete a partially finished development 17 9 On appeal, Cook did not cross-assign error to the circuit court's ruling that Measure 37 rights are not transferrable. Consistently with that choice, Cook has not argued on appeal or review that he had a vested right to sell finished lots. Rather, he has argued that he has a vested right to complete construction of homes on the lots. This case accordingly does not require us to decide whether Measure 37 rights are transferrable, nor does it require us to decide whether, if Measure 37 rights are transferrable, Measure 49 modified Measure 37 in that respect. We express no opinion on those issues. 16 when he or she has "a common law vested right" to do so. Id. at 174. The court also 1 recognized that this court's decision in Holmes sets out a six-factor test for determining 2 when a common law vested right to complete a development will exist. Id. at 161. The 3 court reasoned, however, that, in the context of Measure 49, some of the Holmes factors 4 are redundant while others are "more material." Id. at 175-77 (emphasis in original). 5 Specifically, the court concluded that, in the context of Measure 49, "a common law 6 vested right" will turn primarily on two of the Holmes factors: (1) the ratio between the 7 expenditures incurred and the cost of the project and (2) the cost and location of the 8 project. Id. at 177.10 Having concluded that the expenditure ratio is a "more material" 9 factor in a Measure 49 vested rights determination, the court faulted the county for not 10 defining the projected cost and thus not giving proper weight to that factor. Id. at 178. 11 On review, Cook raises three issues. He argues initially that whether he 12 had a common law vested right to complete his development presents a question of fact 13 and that substantial evidence supports the county's factual finding on that issue. In his 14 view, that should be the end of the matter. Second, Cook contends that the Court of 15 Appeals erred in concluding that, as used in Measure 49, the statutory phrase "common 16 law vested right" depends particularly on one of the Holmes factors -- the ratio between a 17 landowner's expenditures and the development's projected cost. Finally, he argues that 18 the Court of Appeals erred in remanding this case to determine whether the Yamhill 19 10 The Court of Appeals concluded that three of the Holmes factors are redundant: the landowner's good faith, whether the landowner started the development after having notice of the proposed zoning change, and the adaptability of the expenditures to other uses. Friends of Yamhill County, 237 Or App at 175-77. 17 County zoning ordinances in effect in 1970 would have permitted him to build a 1 residential subdivision on land zoned for agricultural use. 2 We begin with the second issue that Cook raises -- whether the Court of 3 Appeals erred in interpreting the statutory phrase "a common law vested right."11 4 Resolution of that issue entails three related but separate inquiries. The first requires us 5 to identify the body of common law to which Measure 49 refers. The second requires us 6 to identify the content of that body of law. The third is whether the Court of Appeals 7 correctly determined that, in the context of Measure 49, only some common law factors 8 play a role in deciding whether a landowner has a vested right. 9 The first question poses little difficulty. It is true, as the Court of Appeals 10 noted, that Oregon does not follow the majority rule in determining when a landowner 11 will have a common law vested right to complete a partially finished use of property. See 12 Friends of Yamhill County, 237 Or App at 160.12 However, we agree with the parties 13 11 As noted, section 5(3) of Measure 49 provides that a landowner who filed a timely Measure 37 claim is entitled to "just compensation as provided in" "[a] waiver issued before the effective date of this 2007 Act to the extent that the claimant's use of the property complies with the waiver and the claimant has a common law vested right on the effective date of this 2007 Act to complete and continue the use described in the waiver." Or Laws 2007, ch 424, § 5(3). Put more simply, a landowner who received a Measure 37 waiver before the effective date of Measure 49 may continue to develop his or her property if (1) the landowner's development of the property "complies with the waiver" and (2) the landowner had "a common law vested right * * * to complete and continue the use described in the waiver" on the day that Measure 49 became effective. See id. 12 According to one treatise, "[t]he majority rule requires issuance of a building permit by the municipality, plus substantial construction and/or substantial expenditures before rights vest." Patricia E. Salkin, 4 American Law of Zoning § 32:3, 18 that, in using the phrase "a common law vested right," Measure 49 was referring to the 1 common law of Oregon rather than the majority rule. We said as much in Corey when 2 we explained that the phrase "a common law vested right" in Measure 49 refers to 3 "broadly applicable legal precedents describing a property owner's rights when land use 4 laws are enacted that make a partially finished project unlawful" and identified this 5 court's decision in Holmes as an example of those precedents. See Corey, 344 Or at 466. 6 We conclude that, without an explicit reference in Measure 49 to some other body of 7 common law, the voters who approved Measure 49 intended to adopt Oregon common 8 law as the standard for identifying a vested right. 9 Having identified Oregon law as the body of law to which Measure 49 10 refers, we turn to the content of that law. This court has used the phrase "vested right" in 11 the context of land use regulation to describe a subconstitutional conclusion that a 12 landowner is entitled either to continue a preexisting use or to complete a partially 13 finished one. See Polk County v. Martin, 292 Or 69, 74, 636 P2d 952 (1981) (preexisting 14 use); Holmes, 265 Or at 197 (partially constructed project). In Polk County, the court 15 used the phrase to refer to an existing use that, as a result of a zoning change, had become 16 unlawful. See 292 Or at 74. As the court explained in Polk County, 17 "The terms 'vested right' and 'existing use' were sometimes used 18 _______________________ 32-5 (5th ed 2008). In those jurisdictions, the absence of a building permit is ordinarily fatal to a vested rights claim. Id. In Oregon, by contrast, the absence of a building permit does not necessarily preclude finding a vested right to complete development. See Holmes, 265 Or at 201 (reasoning that the absence of a building permit did not preclude finding a vested right where the landowner had incurred substantial costs to improve the land for his proposed development but had not incurred construction costs). 19 interchangeably, but in either case the right to continue the nonconforming 1 use turned upon such factors as (1) whether the use was actual and existing 2 at the time the zoning restriction became effective, and (2) whether it was a 3 substantial use. Once the landowner established the existence of a 4 nonconforming use, it was often held that a 'vested right' existed to continue 5 such nonconforming use." 6 Id. 7 In addition to recognizing that a landowner may have a vested right to 8 continue an existing use, this court also has held that a landowner may have a vested right 9 to complete a use that was begun but not finished when the government enacted laws 10 prohibiting the use. See id. at 82; Holmes, 265 Or at 197. The question in the latter class 11 of cases typically has been how much must a landowner have done before the right to 12 complete the use will vest. In Holmes, this court answered that question by explaining 13 that "in order for a landowner to have acquired a vested right to proceed with the 14 construction, [either] the commencement of the construction must have been substantial, 15 or substantial costs toward completion of the job must have been incurred." 265 Or at 16 197. 17 Saying that the costs incurred or the amount of construction begun must be 18 "substantial" narrows the inquiry somewhat, but it leaves unanswered the question of 19 how much is substantial. In addressing that question, the Holmes court began by 20 considering whether to follow a New York decision, Town of Hempstead v. Lynne, 32 21 Misc 2d 312, 222 NYS2d 526 (1961). See Holmes, 265 Or at 198 (discussing that 22 decision). The New York court had looked solely to "the ratio of expenses incurred to 23 the total cost of the project" in deciding whether the expenses incurred were substantial, 24 20 and it had reasoned that only those expenses that related "exclusive[ly]" to the proposed 1 development should be considered in determining the ratio. See id. 2 This court took a different course. It reasoned that "the ratio test should be 3 only one of the factors to be considered." Id. at 198. It explained that, in addition to the 4 ratio of expenditures to projected cost, 5 "[o]ther factors which should be taken into consideration are the good faith 6 of the landowner, whether or not he had notice of any proposed zoning or 7 amendatory zoning before starting his improvements, the type of 8 expenditures, i.e., whether the expenditures have any relation to the 9 completed project or could apply to various other uses of the land, the kind 10 of project, the location and ultimate cost. Also, the acts of the landowner 11 should rise beyond mere contemplated use or preparation, such as leveling 12 of land, boring test holes, or preliminary negotiations with contractors or 13 architects. Washington County v. Stark, 10 Or App 384, 499 P2d 1337 14 (1972); Town of Hempstead v. Lynne, supra; Board of Supervisors of Scott 15 County v. Paaske, 250 Iowa 1293, 98 NW2d 827 (1959); 1 Anderson, 16 [American Law of Zoning] § 6.22[, 350-56]; Note, 49 NC L Rev 197 17 (1970)." 18 Id. at 198-99. 19 Holmes departed from Town of Hempstead in three respects. First, it did 20 not focus solely on the expenditure ratio. Second, in determining the expenses incurred, 21 Town of Hempstead had considered only those expenditures made "for the exclusive 22 purpose" of the proposed development. Holmes, 265 Or at 198 (describing Town of 23 Hempstead). Holmes instead identified the issue as whether "the expenditures have any 24 relation to the completed project or could apply to various other uses of the land." Id. at 25 198-99. Third, the New York decision deducted the expenses that were not incurred 26 exclusively for the proposed development from the numerator of the ratio, making the 27 entire vesting decision turn on the resulting ratio. Holmes, by contrast, described the 28 21 issue whether the expenditures "have any relation to the completed project or could apply 1 to various other uses of the land" as one of five factors that "should be taken into 2 consideration" in addition to the expenditure ratio. Id. 3 Holmes is the last word from this court on when a landowner will have a 4 common law vested right to complete a partially finished use in the face of an adverse 5 zoning change. It follows that, in determining whether a landowner has "a common law 6 vested right" within the meaning of Measure 49, we look to Holmes both for guidance in 7 determining what the common law of Oregon requires and also as the controlling 8 precedent on that issue. We note, however, that almost 40 years have passed since this 9 court decided Holmes and that, during that period, the amount of upfront costs that 10 landowners must incur to build some projects has increased. See Salkin, 4 American Law 11 of Zoning § 32:9 at 32-25 (explaining that, as a result of environmental and other 12 regulations, landowners may have to invest substantial sums before beginning 13 construction). We cannot lose sight of those changes in applying the factors identified in 14 Holmes to current conditions. 15 The remaining issue is whether the Court of Appeals correctly held that, in 16 the context of Measure 49, only some of the Holmes factors are material. On that issue, 17 the Court of Appeals started from the premise that a landowner who complies with the 18 terms of Measure 49 necessarily will have satisfied the second, third, and fourth Holmes 19 factors.13 See Friends of Yamhill County, 237 Or App at 175-77. More specifically, the 20 13 Those factors are: 22 Court of Appeals reasoned that compliance with the terms of Measure 49 necessarily 1 means that a landowner's expenditures will relate to the proposed use and that all the 2 landowners' expenditures will have been made in good faith. See id. It follows, the 3 Court of Appeals reasoned, that those Holmes factors are redundant (and should be 4 discounted) in a Measure 49 vested rights determination and that the remaining Holmes 5 factors become "more material" in that determination. Id. at 177 (emphasis in original). 6 One problem with the Court of Appeals' analysis is the premise on which it 7 rests. In concluding that the fourth Holmes factor was redundant, the Court of Appeals 8 began by noting that section 5(3) of Measure 49 requires that "the claimant's use of the 9 property compl[y] with the waiver." Id. at 175. The court reasoned that a landowner 10 who satisfies that requirement will always satisfy the fourth Holmes factor. Id. We reach 11 a different conclusion. The question under section 5(3) is whether the proposed use 12 complies with the waiver. The question that the fourth Holmes factor asks is whether the 13 expenditures the landowner has incurred relate to the proposed use and, if they do, 14 whether those expenditures could be adapted to other permissible uses. Even if the 15 proposed use complies with the waiver, it does not follow that all the expenditures either 16 will relate to the use or could not be adapted to other uses. Contrary to the Court of 17 Appeals' reasoning, the two inquires are not coextensive; compliance with the terms of 18 _______________________ "[2] the good faith of the landowner, [3] whether or not he had notice of any proposed zoning or amendatory zoning before starting his improvements, [and 4] the type of expenditures, i.e., whether the expenditures have any relation to the completed project or could apply to various other uses of the land." 265 Or at 198-99. 23 Measure 49 does not mean that the fourth Holmes factor will always be satisfied. 1 We reach the same conclusion regarding the landowner's good faith.14 2 Regarding that factor, the Court of Appeals observed that section 5(3) of Measure 49 asks 3 whether a claimant had a common law vested right "on the effective date of this 2007 4 Act." See Friends of Yamhill County, 237 Or App at 176. The court inferred from the 5 fact that section 5(3) identifies the effective date of Measure 49 as the cut-off date for 6 determining the existence of a vested right that the voters intended to give landowners a 7 "green light" to incur as many costs as they could before that date and that all costs 8 incurred before then necessarily would be incurred in good faith. 9 The text of section 5(3) permits that interpretation. However, the text also 10 permits another interpretation. The phrase "on the effective date of this 2007 Act" could 11 simply identify the cut-off date after which no further expenditures will be considered; 12 under that interpretation, the phrase would not reflect a legislative judgment that any and 13 all expenditures incurred before then will always count in determining the existence of a 14 vested right. Not only is the latter interpretation permissible, but it is also gives full 15 effect to the remainder of the section's text -- "a common law vested right on the effective 16 date of this 2007 Act." Or Laws 2007, ch 424, § 5(3). As noted, the phrase "a common 17 14 Holmes identified two good faith factors: "the good faith of the landowner [and] whether [the landowner] had notice of any proposed zoning or amendatory zoning before starting his improvements." 265 Or at 198. The first good faith factor that Holmes identified is general; the second addresses a specific circumstance that bears on a landowner's good or bad faith in beginning improvements. In analyzing whether those two factors are redundant in a Measure 49 vested rights analysis, the Court of Appeals reduced those two factors to one: the "good faith of the landowner in making the prior expenditures." Friends of Yamhill County, 237 Or App at 174. 24 law vested right" refers to a body of substantive common law that identifies which 1 expenditures count in determining whether a landowner has a vested right to complete 2 construction and which do not. Under the common law, expenditures made in good faith 3 and expenditures that relate to the project count while expenditures made in bad faith and 4 expenditures that could apply to other permissible uses of the land either do not count or 5 are discounted in determining the existence of a vested right. See Holmes, 265 Or at 198- 6 99. 7 Interpreting the phrase "on the effective date of this 2007 Act" as merely 8 identifying the cut-off date after which further expenditures will not be considered (rather 9 than as a substantive judgment that all expenditures incurred before then will always 10 count in a vested rights analysis) gives full effect to all the common law factors reflected 11 in the phrase "a common law vested right." Conversely, the Court of Appeals' reading of 12 the phrase "on the effective date of this 2007 Act" eliminates part of the content of the 13 phrase "a common law vested right," contrary to the rule of statutory construction that we 14 should give effect to all parts of a statute if possible. Cf. Vsetecka v. Safeway Stores, Inc., 15 337 Or 502, 510, 98 P3d 1116 (2004) (applying that rule). Although either interpretation 16 is textually permissible, the better interpretation is the one that gives full effect to all the 17 terms of section 5(3). 18 The context points in the same direction. Context includes "the preexisting 19 common law and the statutory framework within which the law was enacted." Klamath 20 Irrigation District v. United States, 348 Or 15, 23, 227 P3d 1145 (2010). The common 21 law that preceded the adoption of Measure 49 made clear that "[t]he substantial 22 25 expenditure requirement typically focuses only on those expenses incurred by the 1 developer before the zoning ordinance [o]n which he relied was amended." Salkin, 4 2 American Law of Zoning § 32:4 at 32-18.15 That common law context suggests that the 3 fact that section 5(3) states that the existence of a vested right will be measured as of the 4 effective date of Measure 49 is not unusual. The effective date of a zoning change is 5 ordinarily the date as of which vested rights are determined, and we hesitate to infer from 6 the fact that section 5(3) follows that customary pattern that the voters intended to signal 7 that every expenditure made before the effective date of Measure 49 will have been made 8 in good faith. 9 Not only was it customary before the passage of Measure 49 to use the 10 effective date of the zoning change as the temporal point for measuring the existence of a 11 vested right, but courts either discounted or did not count expenditures made before the 12 effective date of a zoning change when those expenditures were made in bad faith -- i.e., 13 15 Most courts have identified, either explicitly or implicitly, the date that the zoning change becomes effective as a cut-off date after which no further expenditures will be considered; they have not interpreted it as reflecting a legislative judgment that all preceding expenditures count in a vested rights analysis. See, e.g., Holmes, 265 Or at 196-97, 200 (considering amount spent before the effective date of the zoning ordinance but applying common law factors to determine which preceding expenditures counted); Quality Refrigerated Services, Inc. v. City of Spencer, 586 NW2d 202, 206 (Iowa 1998) (considering whether property owner had made "substantial expenditures toward the use in question prior to the zoning change"); Ellington Construction Corp. v. Village of New Hempstead, 566 NE2d 128, 132 (NY 1990) (to complete a use following the passage of a restrictive zoning amendment, the landowner must have "undertaken substantial construction and made substantial expenditures prior to the effective date of the amendment"); Blundell v. City of West Helena, 522 SW2d 661, 666 (Ark 1975) (in determining whether a landowner had a vested right to complete a use, court assessed whether landowner's use was "substantial * * * at the time of [the] adoption of [the] zoning ordinance"). 26 when they were made for the purpose of circumventing the new zoning law. Id. § 32:5 at 1 32-20. Indeed, one of the sources that this court relied on in Holmes explained that the 2 law would not help "'one who waits until after an ordinance has been enacted forbidding 3 the proposed use and . . . hastens to thwart the legislative act by making expenditures a 4 few hours prior to the effective date of the ordinance.'" Elizabeth Lynne Pou, Comment, 5 Good Faith Expenditures in Reliance on Building Permits as a Vested Right in North 6 Carolina, 49 NC L Rev 197, 199-200 (1970) (quoting Warner v. W & O, Inc., 138 SE2d 7 782, 787 (NC 1964)) (ellipses in law review article). 8 We conclude from the text and context of section 5(3) that stating that a 9 common law vested right will be determined on the effective date of Measure 49 does not 10 signal a legislative judgment that every expenditure made before then necessarily will 11 have been made in good faith. Rather, we think that the measure leaves it to the trier of 12 fact, as the common law did, to determine the good or bad faith of the landowner in 13 making expenditures. Specifically, the trier of fact could find that expenditures made, 14 after the voters adopted Measure 49, to "thwart the legislative act" were made in bad 15 faith. Conversely, nothing precludes a trier of fact from finding that expenses planned 16 before the voters approved Measure 49 but incurred after its passage but before its 17 effective date were not made to thwart the measure. We need not attempt to catalogue 18 the various ways in which a trier of fact could conclude that costs were incurred in either 19 good or bad faith. It is sufficient to note that the Court of Appeals erred in concluding 20 that any expenditures made before the effective date of Measure 49 necessarily were 21 27 made in good faith.16 1 We accordingly conclude that the Court of Appeals erred in holding that 2 compliance with the terms of section 5(3) means that a landowner's expenditures 3 necessarily will relate to the proposed use and be made in good faith. We also conclude 4 that the Court of Appeals erred in discounting some of the Holmes factors and finding, as 5 a result, that other factors were "more material." Having reached those conclusions, we 6 note that all the Holmes factors may not apply in a given case and that the extent to which 7 they do apply will presumably vary with the circumstances of each case. We also note 8 that, when a landowner seeks to establish a vested right because "substantial costs toward 9 completion of the job * * * have been incurred," only one of the Holmes factors entails 10 consideration of the "costs * * * incurred" -- namely, "the ratio of expenses incurred to 11 the total cost of the project." See Holmes, 265 Or at 197 (listing that factor). That factor 12 provides an objective measure of how far the landowner has proceeded towards 13 completion of the construction. As such, we think it provides the necessary starting point 14 in analyzing whether a landowner has incurred substantial costs toward completion of the 15 16 We note another problem with the Court of Appeals' good faith analysis. A landowner's good or bad faith may manifest itself in a variety of ways, as Holmes recognized. For instance, Holmes explained that a landowner may act in bad faith if the landowner "had notice of any proposed zoning or amendatory zoning before starting his improvements." 265 Or at 198. That aspect of good or bad faith turns on what the landowner knew or should have known before incurring any costs to develop the land; it does not turn on how much the landowner had invested in the project before the effective date of the zoning law. Under the Court of Appeals reasoning, however, a landowner who did not start any improvements or incur any costs toward that goal until long after he or she had notice of Measure 49 would have acted in good faith in incurring those costs, as long as they were incurred before the effective date of Measure 49. 28 job, although the other Holmes factors will bear on whether the costs incurred are 1 substantial enough to establish a vested right under section 5(3). 2 Having concluded that the Court of Appeals erred in holding that only some 3 of the Holmes factors will apply in a Measure 49 vested rights determination, we turn to 4 the first issue that Cook raises -- whether substantial evidence supports the county's 5 determination that he had a vested right to complete his proposed 10-home subdivision. 6 On that issue, Cook notes that this court stated in Holmes that "[t]he question of whether 7 the landowner has proceeded far enough with the proposed construction to have acquired 8 a vested right is an issue of fact to be decided on a case-by-case basis." See id. Cook 9 reasons that, because there is substantial evidence to support the county's findings 10 regarding the Holmes factors and because the county reasonably determined that those 11 factors established that he had incurred substantial costs, the Court of Appeals should 12 have affirmed the circuit court's judgment.17 13 Friends of Yamhill County, for its part, does not dispute that the county's 14 17 We note that the sentence from Holmes on which Cook relies may not provide as much support as he perceives. Holmes arose in equity. 265 Or at 195. Clackamas County had filed a suit to enjoin Holmes from completing a partially finished industrial use, id., and this court reviewed de novo whether Holmes had a vested right to complete that use. See former ORS 19.125(3) (1971) (providing that standard of review); Holmes, 265 Or at 201 (independently finding that the landowners had established a vested right). To the extent that the sentence on which Cook relies stands for the proposition that a vested rights determination is a factual issue subject to any evidence (or substantial evidence) review, it was dictum. This case does not require us to decide, however, whether a vested rights determination presents a question of law or fact. As explained below, the county applied the wrong legal standards in deciding the historical facts that informed its vested rights determination, and we accordingly leave for another day the appropriate standard of review for vested rights determinations. 29 determination that Cook had a vested right presents a factual issue. It argues, however, 1 that a vested rights determination turns on the application of a multi-factor test and that, if 2 the county's decision reveals that it misapplied the law in deciding that Cook's right to 3 complete a 10-home subdivision had vested, then the decision must be reversed and 4 remanded for reconsideration. As we understand Friends of Yamhill County's argument, 5 it views the county's decision whether a vested right exists as similar to a jury's decision 6 whether a person was negligent. It contends that both decisions present a question of fact 7 for the trier of fact; however, if the trier of fact applies the wrong legal standard in 8 deciding those issues, then the decision must be reversed and remanded. 9 In our view, Friends of Yamhill County has the better of the argument. 10 Measure 49 authorizes a person adversely affected by a county vested rights decision to 11 challenge that decision by means of a writ of review. See Or Laws 2007, ch 424, § 16, 12 codified at ORS 195.318. A writ of review, in turn, permits a plaintiff to challenge a 13 county's vested rights decision either because the county "[m]ade a finding or order not 14 supported by substantial evidence in the whole record" or because it "[i]mproperly 15 construed the applicable law." ORS 34.040(1)(c) and (d).18 It follows that, if, as Friends 16 18 A writ of review permits a plaintiff to raise other challenges to decisions subject to that procedure. See ORS 34.040(1) (listing grounds for challenging decisions subject to the writ of review). If a petition for a writ of review states one of the specified grounds for issuing the writ, the circuit court shall issue the writ to the county directing it to return "the writ to the circuit court, with a certified copy of the record or proceedings in question annexed thereto, so that the same may be reviewed by the circuit court." ORS 34.060. The circuit court's review on the merits mirrors the grounds for issuing the writ in the first place. See Anderson v. Peden, 284 Or 313, 322, 587 P2d 59 (1978) (circuit court's review of the merits includes assessment of whether, under ORS 34.040, a county misconstrued the applicable law). 30 of Yamhill County argues, the county improperly construed the law in determining that 1 Cook had a vested right to complete his subdivision, then the Court of Appeals correctly 2 reversed the circuit court's judgment and remanded for further proceedings before the 3 county. Put differently, Cook cannot argue that substantial evidence supports the 4 county's findings without first answering Friends of Yamhill County's argument (and the 5 Court of Appeals' holding) that a legal error infected those findings. We accordingly turn 6 to that issue. 7 Friends of Yamhill County argues that the county "improperly construed 8 the applicable law" when it found it unnecessary to decide the ratio of the expenditures 9 that Cook incurred to the cost of the project. On that issue, the county's vesting decision 10 focused primarily on the proposition that the right that vested was the right to sell 11 buildable lots. The county accordingly determined the ratio between the costs that Cook 12 had incurred and the cost of developing buildable lots.19 Alternatively, the county noted 13 that, if the relevant issue were the ratio between Cook's expenditures and the cost of 14 actually building homes on the lots, then it was unclear "whether [it should] consider the 15 cost of the types of homes the applicant is contemplating, the cost of a legal, habitable 16 dwelling, an 'average cost' or some other measure." 17 The county declined to resolve the latter issue, calling the expenditure ratio 18 "speculative" and finding that, in any event, "[a]ll of the expenses in this case were 19 19 As noted, the circuit court held that the county erred in concluding that the right that vested was the right to sell buildable lots. Cook did not cross-assign error to that ruling in the Court of Appeals, and the validity of that ruling is not before us. 31 legitimately incurred, in good faith, and are substantial." In the county's view, the fact 1 that Cook's development was "fully sanctioned by, and coordinated with, Yamhill County 2 is more important in this case than the speculative ratio test." The county then observed 3 that, in any event: 4 "the record in this case contains substantial evidence to support ratios that 5 would have been deemed acceptable in [Holmes] and other Appellate Court 6 cases, under any of the tests proposed by the parties. The amount spent by 7 [Cook] and steps taken by [him] to provide necessary infrastructure and 8 utilities are 'substantial,' even if it is assumed that each house would cost 9 $450,000 to construct." 10 We agree with the Court of Appeals that the county misapplied the 11 governing law in failing to decide the ratio between the costs that Cook had incurred and 12 the projected cost of constructing the residential subdivision. As noted, when a 13 landowner seeks to establish a vested right by showing that he or she has incurred 14 "substantial costs toward completion of the job," the expenditure ratio is the only Holmes 15 factor that requires consideration of the costs incurred. It provides an objective measure 16 of how far the landowner has proceeded towards completion of construction and thus 17 serves as an initial gauge of whether the landowner has proceeded far enough that he or 18 she has a vested right to complete construction. 19 To determine the ratio, the county should have found two historical facts: 20 (1) the costs that Cook incurred to construct the planned development and (2) the 21 estimated cost of the planned development. The county found the costs that Cook had 22 incurred as of the effective date of Measure 49. The county erred, however, when it 23 failed to find the estimated cost of building the homes. On that issue, Cook submitted 24 32 evidence that he planned to put manufactured homes on the lots, while Friends submitted 1 evidence that Cook planned to build luxury homes on them. The county did not 2 determine the type of homes that Cook planned to build, nor did it determine what the 3 estimated cost of building those homes was.20 In that respect, the county incorrectly 4 construed the applicable law, which required that the county find that fact. 5 Instead of making that finding, the county observed that: 6 "the record in this case contains substantial evidence to support ratios that 7 would have been deemed acceptable in [Holmes] and other Appellate Court 8 cases, under any of the tests proposed by the parties. The amount spent by 9 [Cook] and steps taken by [him] to provide necessary infrastructure and 10 utilities are 'substantial,' even if it is assumed that each house would cost 11 $450,000 to construct." 12 That observation is problematic in two respects. First, the court did not find what the 13 estimated cost of building the homes was and consequently did not determine how far 14 Cook had proceeded towards completing construction of the homes. Rather, the county 15 found only that there was "substantial evidence" to support a range of ratios. Substantial 16 evidence, however, is the standard by which a court reviews a county's factual findings 17 on a writ of review. See ORS 34.040(1)(c) (stating the standard of review for factual 18 findings on a writ of review). It is not the standard by which the trier of fact makes a 19 factual finding in the first place. The county's job as the trier of fact was to decide by a 20 preponderance of the evidence what the estimated cost of constructing the planned homes 21 20 In deciding the cost of building the homes, the county must find what type of homes Cook planned to build. To the extent that Cook's plans changed between the time that he began planning the development and the effective date of Measure 49, then the county must decide whether the change in plans was a bad-faith attempt to thwart Measure 49 or a good-faith response to shifting economic or other conditions. 33 was. The county did not do that. 1 Second, the county's statement that the amount spent and the steps taken 2 were substantial, even assuming that each house would cost $450,000 to build, is not a 3 sufficient substitute. This court faced a similar issue in Schoch v. Leupold & Stevens, 325 4 Or 112, 934 P2d 410 (1997). In that case, the workers' compensation board found that a 5 specific amount was a reasonable attorney's fee and recited that it had particularly 6 considered four of eight factors in reaching that conclusion. Id. at 119. In holding that 7 the board's explanation was not sufficient to permit meaningful appellate review, this 8 court reasoned that the board: 9 "did not explain how any of the rule-based factors that it considered, much 10 less how any of the four factors that it 'particularly considered,' weighed in 11 its decision-making process and led to the fee that it awarded. The answer 12 is not apparent to us from a mere recitation of those factors." 13 Id. This court held that, although the board legitimately could have reached the 14 conclusion that it did, the board needed to identify and explain the factual premises of its 15 decision more clearly. Id. at 120. 16 In this case, the county did not find what the cost of the project was, what 17 the expenditure ratio was, nor did it explain why, in light of the other Holmes factors, an 18 expenditure ratio based on a projected cost of $450,000 to construct each home would be 19 a substantial expenditure. It instead posited, without explanation, that Cook's 20 expenditures would be substantial, no matter what the facts were or what analysis 21 applied. In this context, the county's assertion is not an adequate substitute for a finding 22 regarding the estimated cost of Cook's development, a determination of the ratio between 23 34 the costs that Cook had incurred and the projected cost of the development, and a 1 reasoned explanation why those costs, in light of the other Holmes factors, were 2 substantial enough to establish a vested right. 3 Having concluded that the county erred in not finding what the expenditure 4 ratio was, we emphasize that the ratio provides only the starting point for the analysis. It 5 is not the sole factor to be considered, nor will it necessarily be the dispositive factor; that 6 is, there is not some specific percentage which must always be present before the right to 7 complete construction will vest. For example, Holmes states that the "ultimate cost" also 8 matters in the analysis.21 265 Or at 199. As we understand Holmes, it lists the "ultimate 9 cost" of the project separately from the expenditure ratio (which incorporates the cost of 10 the project) because the weight to be given the expenditure may vary depending on the 11 ultimate cost. More specifically, if the ultimate cost of developing a project is $1,000, a 12 landowner who spends $200 toward its development will have incurred 20 percent of the 13 projected cost. Few people, however, would think $200 a substantial expenditure, at least 14 when determining whether a landowner's expenditure is substantial enough to complete 15 and continue a prohibited use. Conversely, when the ultimate cost of a project runs into 16 millions of dollars, an expenditure may be substantial even though it is only a small 17 percentage of the projected cost. 18 We recognize, as Holmes did, that there is no bright line for determining 19 when an expenditure will be substantial enough to establish a vested right. See id. at 197. 20 21 We note that the county did not find what the ultimate cost of building the homes would be. Rather, it found only the ultimate cost of developing buildable lots. 35 However, we agree with the Court of Appeals that, in making that determination, the 1 county needed to find the "ultimate cost" of completing construction and also the ratio 2 between the costs that Cook had incurred and the cost of the project. Without those 3 findings, the county was in no position to determine whether Cook's expenditures, in light 4 of the all the Holmes factors, were substantial. 5 We turn to the third issue that Cook raises. Cook argues that the Court of 6 Appeals erred in concluding that the county needed to make additional findings on 7 whether his proposed use complied with the terms of the Measure 37 waivers. Because 8 this issue is likely to arise on remand, we address it briefly. 9 In seeking either compensation or a waiver under Measure 37, Cook stated 10 that he intended to "divide the [property] into nine 2.69-acre parcels and one 12.4-acre 11 parcel and develop a dwelling on each 2.69-acre parcel." In response, both the state and 12 the county issued Measure 37 waivers. The state's waiver was more restrictive than the 13 county's. It waived only those land use regulations that prevented the specific 14 development that Cook sought to construct, and it did so "only to the extent [that] that use 15 was permitted when [Cook] acquired the property on December 3, 1970." It follows, and 16 neither party disputes, that the question whether Cook's "use complies with [his] waiver" 17 turns on whether the county ordinances in effect when Cook acquired his property in 18 1970 permitted him to develop a residential subdivision on his land, which was zoned A- 19 1 (farming use) at that time.22 See Or Laws 2007, ch 424, § 5(3) (to proceed under the 20 22 In 1970, the applicable Yamhill County zoning ordinance labeled the zone as A-1. Later, Yamhill County changed the label to Ag-A, and a Land Use Board of 36 authorization of a Measure 37 waiver, among other things the landowner's use of the 1 property must "compl[y] with the waiver"). 2 In resolving that issue, the county reasoned that its prior approvals of 3 Cook's preliminary and final subdivision plats constituted substantial evidence that a 4 residential subdivision was a permissible use when Cook acquired the land in 1970. 5 Alternatively, it reasoned that its approvals were final land use decisions that Friends of 6 Yamhill County could not collaterally attack in this proceeding. The county accordingly 7 ruled that Cook's proposed use complied with the Measure 37 waivers that both the 8 county and the state had issued. 9 Before the circuit court, Friends of Yamhill County relied on a Yamhill 10 County circuit court decision for the proposition that residential uses were not permitted 11 in A-1 zones, while Cook argued that a Land Use Board of Appeals (LUBA) decision 12 established precisely the opposite proposition. Cook reasoned that, in any event, issue 13 preclusion barred Friends of Yamhill County from relitigating LUBA's resolution of that 14 issue. As noted, the circuit court ruled that substantial evidence supported the county's 15 conclusion that residential subdivisions were permitted as a conditional use in an A-1 16 zone in 1970, but it did not identify the evidence that supported the county's ruling. 17 The Court of Appeals, for its part, rejected the county's reasoning that the 18 plat approvals were final decisions that Friends of Yamhill County could not collaterally 19 _______________________ Appeals (LUBA) decision on which Cook relies refers to Ag-A zones in discussing the uses permitted in that zone in 1970. For ease of reference, we refer to the zone as an A-1 zone, even when discussing the LUBA decision. 37 challenge in this proceeding. Friends of Yamhill County, 237 Or App at 170.23 The 1 Court of Appeals then noted that "[t]he county decision did not make findings on the 2 acquisition zoning and the limitations of that zoning" in 1970 and that, as a result, the 3 county's decision "was insufficient to explain why the proposed vested use[] complied 4 with the waivers." Id. at 171. That deficiency, the Court of Appeals concluded, required 5 a remand. Id. 6 On review, Cook does not appear to challenge the Court of Appeals' first 7 ruling; that is, he does not argue that the plat approvals were final land use decisions that 8 Friends could not challenge in this proceeding. Rather, as we understand Cook's 9 argument on review, he relies primarily on the LUBA decision both as support for his 10 argument that residential subdivisions were a permissible use in A-1 zones in 1970 and 11 also to establish that issue preclusion bars Friends of Yamhill County from relitigating 12 that issue in this proceeding. 13 Before turning to Cook's argument on review, we note that both the county 14 and the circuit court treated this issue as if it were a question of fact. In doing so, they 15 erred. The meaning of a county's ordinance, like the meaning of a statute, presents a 16 question of law for the court. See Lincoln Loan Co. v. City of Portland, 317 Or at 192, 17 199, 855 P2d 151 (1993) (stating that principle); Anderson v. Peden, 284 Or 313, 318, 18 587 P2d 59 (1978) (same). Contrary to the basis for the county and the circuit court's 19 23 The Court of Appeals noted but did not resolve Cook's issue preclusion argument based on the LUBA decision. See Friends of Yamhill County, 237 Or App at 168 (noting that argument). 38 conclusions that Cook's use complies with the waivers, the determination of what 1 Yamhill County's ordinance permitted in 1970 is not a factual finding to be supported by 2 substantial evidence in the record. The fact that the county approved Cook's preliminary 3 and final subdivision plats, standing alone, provides no assurance that the county applied 4 the correct legal standard in doing so -- the county may have granted its approval 5 erroneously. Cf. Loosli v. City of Salem, 345 Or 303, 307, 193 P3d 623 (2008) (local 6 government official erroneously certified that an applicant's proposed use complied with 7 local land use regulations). Accordingly, we conclude that the county erred in treating 8 the question of Cook's compliance with his Measure 37 waiver as one that could be 9 resolved by resort to factual evidence in the record, rather than by a legal interpretation of 10 the applicable zoning ordinances. 11 Ordinarily, this court would be equally equipped to engage in that analysis. 12 Cf. Anderson, 284 Or at 315-18 (analyzing a disputed issue of ordinance interpretation). 13 And the record in this case does contain some evidence from which a partial picture of 14 the ordinance's terms might be reconstructed, including the uses permitted outright in an 15 A-1 zone, the uses permitted as conditional uses in that zone, and the omission of any 16 minimum lot size requirement for that zone. The set of terms before this court is an 17 incomplete one, however, and the parties have neither provided us with the complete text 18 of the applicable ordinances, nor have they advanced any arguments bearing on their 19 proper construction. As this case comes to us, we lack the ordinance's express wording, 20 we lack any other historical evidence bearing on the meaning of the ordinance, and we 21 lack any argument from the parties as to whether Cook's proposed development would, as 22 39 a legal matter, have been permitted by that ordinance. 1 To be sure, LUBA's decision in Reeves v. Yamhill County, 55 Or LUBA 2 452 (2007), provides some support for Cook's position.24 LUBA's decision, however, is 3 not binding on this court; rather, the decision is relevant only for its persuasive value. 4 However, without the complete text of the ordinance and any argument from the parties 5 on how we should interpret it, we are in no position to assess how persuasive LUBA's 6 reasoning is. More importantly, in Reeves, LUBA held only that former ORS 215.213 7 (1971) did not apply to an A-1 zone in 1970 and thus did not preclude residential 8 subdivisions in that zone. LUBA did not hold that the county's ordinance permitted 9 residential subdivisions in an A-1 zone. There is a difference between holding that a 10 statute does not preclude a particular use and holding that the applicable zoning 11 ordinances permit that use. Cook, as the party seeking to establish that his use complies 12 with the waiver, must establish that the zoning ordinances in place when he acquired the 13 property affirmatively permitted a residential subdivision in an A-1 zone, not merely that 14 former ORS 215.213 (1971) did not preclude such a use. 15 Put differently, even if we were to conclude that LUBA correctly decided 16 24 In Reeves, Reeves and Friends of Yamhill County argued that, in 1971, an A-1 zone was an exclusive farm use zone as provided in former ORS 215.213 (1971) and that, as a result, the only single-family dwelling that was conditionally permitted in an A- 1 zone was a dwelling "customarily provided in conjunction with farm use." Reeves, 55 Or LUBA at 455-56. LUBA disagreed, noting that Yamhill County also provided for agricultural uses in E-F zones and that only those zones were exclusive farm use zones under former ORS 215.213 (1971). Id. at 459. LUBA accordingly held that "the county did not err in failing to address whether the proposed dwellings comply with the standards for dwellings customarily provided in conjunction with farm use" under former ORS 215.213 (1971). Id. at 459-60. 40 the specific issue before it, the issue that LUBA decided is not a complete answer to the 1 question that this case presents. That conclusion also answers Cook's claim that issue 2 preclusion bars Friends of Yamhill County from relitigating whether former ORS 3 215.213 (1971) applied to A-1 zones in 1970. Even if Friends were precluded from 4 relitigating that issue, it does not necessarily follow that residential subdivisions were a 5 permitted use in A-1 zones. We note that there may be reasons why issue preclusion 6 does not apply in this context.25 Neither party, however, has addressed those issues, and 7 it is sufficient to hold, as we do, that, even if issue preclusion applies, it does not establish 8 that Cook's use complies with the waiver. For the foregoing reasons, we conclude that 9 the Court of Appeals correctly held that the record was insufficient to determine whether 10 Cook's proposed use complied with the zoning laws in place when he acquired his 11 property and properly remanded this case for further proceedings on that issue. 12 The decision of the Court of Appeals is affirmed. The judgment of the 13 circuit court is reversed, and the case is remanded to the circuit court for further 14 proceedings consistent with this opinion. 15 25 There is a question whether this is an appropriate occasion for the use of offensive nonmutual issue preclusion. See State Farm v. Century Home, 275 Or 97, 103, 550 P2d 1185 (1976) (explaining that, although mutuality is not a prerequisite for issue preclusion, a court may decline to give preclusive effect to an earlier decision when a stranger to the litigation invokes the doctrine and "unfairness will result" if issue preclusion applies). It is questionable whether Cook can argue that issue preclusion bars Friends of Yamhill County from relitigating an issue to avoid Cook's burden of establishing, as against Yamhill County, that residential subdivisions are a permitted use in an A-1 zone.

fc9547f01098dcf726ca8140d2f5ae90ad023e256083a8f956baaed7a8ecef41

2011-10-20T00:00:00Z

eb858146-eae5-4cde-8399-791baec86478

State v. Davis

oregon

Oregon Supreme Court

1 Filed: June 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. JOHN RICHARD DAVIS, Respondent on Review. (CC06CR1271FE; CA A138968; SC S058572) En Banc On review from the Court of Appeals.* Argued and submitted January 13, 2011. Paul L. Smith, Assistant Attorney-in-Charge Criminal Appeals, argued the cause for petitioner on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. David A. Hill, Eugene, argued the cause and filed the brief for respondent on review. LANDAU, J. The decision of the Court of Appeals is reversed. The order of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. *Appeal from Douglas County Circuit Court, William L. Lasswell, Judge. 234 Or App 106, 227 P3d 204 (2010). 1 LANDAU, J. 1 In this criminal case, the police informed defendant that he was the subject 2 of an investigation for sexual abuse. Defendant retained counsel, who sent a letter to the 3 police invoking defendant's right to remain silent and directing the police to discuss the 4 matter with counsel. Months later, the police obtained incriminating statements from 5 defendant without the presence of his counsel by monitoring his communications with the 6 victim. At issue is whether the police, in obtaining those incriminating statements from 7 defendant, violated his right against self-incrimination and right to counsel under Article 8 I, sections 12 and 11, respectively, of the Oregon Constitution. The trial court concluded 9 that, in light of defendant's earlier invocation of his right to remain silent and right to 10 counsel, the police obtained the incriminating statements in violation of both 11 constitutional provisions. The Court of Appeals affirmed. State v. Davis, 234 Or App 12 106, 227 P3d 204 (2010). We conclude that the right against self-incrimination under 13 Article I, section 12, bars police questioning only when a defendant is in custody or 14 otherwise in compelling circumstances. We further conclude that the right to counsel 15 under Article I, section 11, bars police questions outside the presence of counsel only 16 once "criminal proceedings" have begun, which, at the earliest, is the time of a suspect's 17 arrest. We therefore reverse and remand for further proceedings. 18 I. FACTS 19 We recite the facts consistently with the trial court’s findings. State v. Bost, 20 317 Or 538, 541, 857 P2d 132 (1993). On November 18, 2003, the alleged victim, then 21 17 years old, reported to Roseburg Police Detective Kaney that her stepfather, defendant, 22 2 had been sexually abusing her since she was five or six years old. A few days later, 1 Kaney contacted defendant by phone to discuss the allegations. Defendant asked Kaney 2 if there was a warrant out for his arrest and whether he needed an attorney. Kaney 3 responded that defendant was not "wanted" and that it was up to defendant to decide if he 4 wanted an attorney. 5 On December 31, 2003, Kaney received a letter from attorney Charles Lee. 6 In that letter, Lee stated that he represented defendant, and that Lee was aware that 7 defendant’s stepdaughter, the victim, had made sexual abuse allegations against 8 defendant. Lee invoked defendant’s right to remain silent, directing Kaney to "not talk to 9 [defendant] except through me." He also stated that "[i]f you need to do an interview I 10 will be happy to help arrange it." Kaney continued his investigation, but did not directly 11 contact defendant. 12 Eight months later, in August 2004, the victim reported to Kaney that 13 defendant had contacted her through her instant messaging service. Kaney believed that 14 defendant would try to contact the victim again, so he asked her to come to his office 15 twice a week to engage in monitored instant message conversations with defendant. She 16 agreed. Kaney instructed the victim regarding the persona she should portray to 17 defendant, with the hope that it would encourage defendant to make statements that 18 would be probative in the sexual abuse investigation. Although most of the statements 19 during those monitored instant message conversations were unscripted small talk between 20 the victim and defendant, at times, Kaney directed the victim to say certain things with 21 the purpose of eliciting potentially incriminating statements. In total, the victim and 22 3 defendant had three instant message conversations, as well as two monitored phone calls. 1 During those conversations, defendant made several incriminating 2 statements. Based on those statements, Kaney obtained a warrant to search defendant’s 3 instant messaging account for evidence showing that he was the person using the service 4 to communicate with the victim. Ultimately, defendant was charged with five counts of 5 sodomy in the first degree, six counts of rape in the first degree, two counts of sexual 6 abuse in the first degree, and one count of contributing to the sexual delinquency of a 7 minor. 8 Defendant moved to suppress the evidence derived from his monitored 9 conversations with the victim and any evidence discovered through the execution of the 10 search warrant. Defendant argued that, because he had invoked his constitutional rights 11 to counsel and to remain silent eight months earlier, the police thereafter were obligated 12 not to communicate with him except through counsel. According to defendant, the 13 police, having nevertheless elicited incriminating statements from him through the 14 pretextual communications with the victim, violated those constitutional rights. The trial 15 court agreed and granted defendant's motion to suppress, holding that the police had 16 violated defendant’s Article I, section 11, right to counsel and his Article I, section 12, 17 right to remain silent by questioning him, through the victim, without his attorney 18 present. 19 The state appealed. ORS 138.060(1)(c). The state argued that, because no 20 formal charges had been filed against defendant at the time the incriminating statements 21 had been elicited from him, no right to counsel under Article I, section 11, had been 22 4 implicated. The state argued that its facilitation of the pretextual conversations did not 1 implicate Article I, section 12, either, because the right against self-incrimination 2 guaranteed by the state constitution applies only when a defendant is in trial or otherwise 3 in compelling circumstances, and no such circumstances occurred in this case. 4 The Court of Appeals affirmed, but held only that the police violated 5 defendant's right against self-incrimination under Article I, section 12. The court held 6 that the scope of the right against self-incrimination guaranteed by that provision is not 7 limited to compelling circumstances. In the court's view, "[w]hen a person, not in a 8 compelling setting, unequivocally invokes the right to remain silent as to an ongoing 9 investigation conducted by a police officer, the police officer must respect that assertion 10 of the right to remain silent if the police officer is personally aware of that invocation." 11 Davis, 234 Or App at 113 (emphasis added). The court concluded that, because, in this 12 case, Kaney had received a letter from defendant's counsel invoking defendant’s right to 13 remain silent, thereafter Kaney could not constitutionally contact defendant except 14 through counsel. Id. at 113-14. The court did not address whether the police had 15 violated defendant's right to counsel under Article I, section 11. 16 The state petitioned this court for review, arguing that the Court of Appeals 17 erred in holding that the police violated Article I, section 12. According to the state, a 18 defendant’s constitutional right to remain silent applies only when a defendant is in 19 custody or other compelling circumstances. Applying that principle, the state asserts that 20 the attempt by defendant's attorney to invoke defendant's right to remain silent did not 21 prevent the police from later reinitiating contact, because at no time was defendant in 22 5 custody. Additionally, the state asserts that, during the conversations with the victim, 1 defendant was not in compelling circumstances because he did not know that the victim 2 was working as an agent for the police. Therefore, the state argues, the Court of Appeals 3 erred in holding that Article I, section 12, applied outside the context of compelling 4 circumstances, and the incriminating statements made by defendant should not have been 5 suppressed. 6 Defendant responds that, although this court has not yet held that the right 7 against self-incrimination protected under Article I, section 12, applies in noncompelling 8 circumstances, it should do so in this case. Defendant notes that, in a footnote in State v. 9 Sparklin, 296 Or 85, 92 n 9, 672 P2d 1182 (1983), this court suggested that the right to an 10 attorney under Article I, section 11, is as important during the investigative phase of a 11 case as it is during the trial itself. In a similar way, defendant reasons, the right to remain 12 silent is just as important during the investigative phase as it is during trial. 13 Defendant also argues (albeit fleetingly) that, even if the Court of Appeals 14 erred in concluding that his statements were obtained in violation of his right against self- 15 incrimination under Article I, section 12, the court's conclusion with respect to the 16 suppression of those statements still is correct on the alternative ground that the 17 statements were obtained in violation of his right to counsel under Article I, section 11.1 18 1 This court has recognized a right to counsel that derives from the right against self-incrimination under Article I, section 12, during custodial interrogation. See, e.g., State v. Scott, 343 Or 195, 200, 166 P3d 528 (2007). Defendant, however, does not advance any arguments concerning that right. 6 II. ANALYSIS 1 A. Article I, Section 12, Right Against Self-incrimination 2 We begin with the parties' contentions concerning the state constitutional 3 right against self-incrimination. In Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 4 (1992), this court held that, when construing a provision of the original Oregon 5 Constitution, we engage in a three-part analysis of it. We examine the text in its context, 6 the historical circumstances of the adoption of the provision, and the case law that has 7 construed it. Id. Our goal is to ascertain the meaning most likely understood by those 8 who adopted the provision. The purpose of that analysis is not to freeze the meaning of 9 the state constitution in the mid-nineteenth century. Rather it is to identify, in light of the 10 meaning understood by the framers, relevant underlying principles that may inform our 11 application of the constitutional text to modern circumstances. State v. Hirsch/Friend, 12 338 Or 622, 631, 114 P3d 1104 (2005). 13 Several prior decisions of this court have alluded to the history of Article I, 14 section 12. See, e.g., State v. Vondehn, 348 Or 462, 236 P3d 691 (2010) (examining 15 history of provision in determining whether violation requires suppression of physical 16 evidence); State v. Soriano, 68 Or App 642, 684 P2d 1220, aff'd and opinion adopted, 17 298 Or 392, 693 P2d 26 (1984) (examining history of provision in determining whether 18 state constitution permits the state to compel testimony of a witness in exchange for use 19 or derivative use immunity). None has engaged in the analysis that Priest requires to 20 address the issue presented in this case. Accordingly, we turn our attention to an analysis 21 of the provision's text, its historical context, and the case law that has construed it to 22 7 determine whether, as defendant contends and the Court of Appeals held, Article I, 1 section 12, prohibits police from obtaining incriminating statements from a defendant in 2 the absence of compelling circumstances. 3 Before engaging in that analysis, we pause to emphasize the narrow scope 4 of the issue before us: An individual always may invoke a "right to remain silent" and 5 refuse to speak with police without the presence of counsel. The question that we must 6 address is the extent to which the state constitution provides that such invocation or 7 refusal circumscribes the authority of the police in their conduct of an investigation of the 8 individual. Specifically, our task is to determine whether, under Article I, section 12, a 9 suspect's invocation of a right to remain silent without the assistance of counsel at a time 10 that he or she is not in custody or in compelling circumstances precludes the police from 11 nevertheless attempting to obtain incriminating information from that suspect. 12 1. Textual Analysis 13 Article I, section 12, provides, in part: "No person shall * * * be compelled 14 in any criminal prosecution to testify against himself." Taken at face value, the provision 15 does not state a broad "right to remain silent." Rather, it states a much more specific 16 right not to be "compelled" to testify against himself or herself. Dictionaries published 17 before the adoption of the Oregon Constitution reflect a common understanding of the 18 terms "compel" and "compulsion" that is fairly consistent with their modern definitions. 19 Webster's, for example, defined "compel" as "[t]o drive or urge with force, or irresistibly; 20 to constrain; to oblige; to necessitate, either by physical or moral force" and defined 21 "compelled" as "[f]orced; constrained; obliged." Noah Webster, 1 An American 22 8 Dictionary of the English Language (1828) (reprint 1970). Bouvier's law dictionary 1 similarly defined "compulsion" as "[t]he forcible inducement to do an act. Coercion[.]" 2 John Bouvier, 1 A Law Dictionary Adapted to the Constitution and Laws of the United 3 States of America 200 (1839) (reprint 1993) (emphasis in original). Thus, it would 4 appear that the bare wording of the provision states a prohibition on the manner in which 5 information may be obtained in a criminal prosecution, viz., it may not be obtained by 6 force or coercion. 7 2. Historical Analysis 8 That understanding, as it turns out, is consistent with the historical 9 underpinnings of Article I, section 12. The right against self-incrimination stated in that 10 provision of the Oregon Constitution is identical to, and presumed to have been based on, 11 Article I, section 14, of the Indiana Constitution of 1851. Charles Henry Carey, The 12 Oregon Constitution 468 (1926). It was adopted by the framers apparently without 13 amendment or debate of any sort. Claudia Burton & Andrew Grade, A Legislative 14 History of the Oregon Constitution of 1857 -- Part I (Articles I & II), 37 Will L Rev 469, 15 519-20 (2001). 16 The text of the Indiana provision was taken from Kentucky and Ohio bills 17 of rights, William P. McLauchlan, The Indiana State Constitution: A Reference Guide 18 46-47 (1996), which were based on the nearly identically worded Fifth Amendment to the 19 United States Constitution. That amendment provides that "[n]o person * * * shall be 20 compelled in any criminal case to be a witness against himself[.]" US Const, Amend V. 21 The Fifth Amendment, in turn, was based on existing state constitutional bills of rights 22 9 that were adopted following the revolution, notably Section 8 of the Virginia Declaration 1 of Rights, which provided that no man can be "compelled to give evidence against 2 himself." Va Declaration of Rights § 8 (1776). See generally Soriano, 68 Or App at 3 646-47 (tracing history of wording of state constitutional self-incrimination provisions). 4 The historical roots of the Fifth Amendment, and of the state constitutional 5 provisions on which it was based, are matters of some controversy. See, e.g., John H. 6 Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Common 7 Law, 92 Mich L Rev 1047, 1071-72 (1994) ("The history of the privilege against self- 8 incrimination at common law has long been a murky topic."). The conventional view, 9 originally proposed by John Wigmore and later developed by Leonard Levy, is that the 10 origins of the right may be traced to sixteenth-century English protestant objections to the 11 infamous ex officio oaths administered by the Star Chamber and the ecclesiastical Court 12 of High Commission, which had required suspects to swear in advance to answer 13 truthfully to questions about their religious and political beliefs. The practice forced the 14 suspects either to lie under oath and thereby risk eternal damnation or to refuse to take the 15 oath and thereby risk less eternal, but no less objectionable, temporal punishment (for 16 example, being whipped and pilloried). Puritans, in particular, claimed the benefit of the 17 ancient maxim nemo tenetur prodere seipsum ("no man is obligated to accuse himself") 18 and refused either to swear or to testify. See generally John Henry Wigmore, 8 Evidence 19 in Trials at Common Law § 2250, 267-89 (John T. McNaughton rev ed 1961); Leonard 20 W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination (1968). 21 In 1641, Parliament sided with the Puritans and abolished the courts of Star Chamber and 22 10 High Commission and forbade the ecclesiastical courts from employing the ex officio 1 oath. The fall of the Star Chamber came to be seen as a triumph of the nemo tenetur 2 principle.2 3 More recently, scholars have questioned the thesis that the right against 4 self-incrimination represents a simple confirmation of the common-law nemo tenetur 5 principle.3 Those scholars have suggested that, instead, the history of the right consists of 6 2 As Wigmore put it: "It begins to be claimed, flatly, that no man is bound to incriminate himself on any charge (no matter how properly instituted) or in any court (not merely in the ecclesiastical or Star Chamber tribunals). Then this claim comes to be conceded by the judges * * * even on occasions of great partisan excitement[.] * * * By the end of Charles II's reign [1685], * * * there is no longer any doubt, in any court[,]" as to the existence of the principle. 8 Evidence in Trials § 2250 at 289-90 (emphasis in original). 3 John Langbein, working from English sources, found scant evidence that courts recognized a right against self-incrimination before the end of the eighteenth century, much later than Wigmore and Levy asserted that the claim was recognized at common law. Langbein, 92 Mich L Rev at 1047. Langbein asserted that the right did not achieve prominence until rules of criminal procedure were fundamentally altered to permit defendants to be represented by counsel (before the late-1700s, criminal defendants were required to defend themselves without the benefit of counsel). Id. at 1068-69, 1083-85. Henry E. Smith similarly traced the origins of the right to nineteenth- century changes to the rules of evidence in English criminal cases. Henry Smith, The Modern Privilege: Its Nineteenth-Century Origins, in The Privilege Against Self- Incrimination: Its Origins and Development 145 (1997). Eben Moglen, focusing on early modern criminal procedure in this country, concluded that, consistently with the work of Langbein and Smith, colonial criminal procedure actually depended on self-incrimination and that the common-law nemo tenetur privilege was understood merely to prohibit requiring a defendant from being examined under oath. Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 Mich L Rev 1086, 1100 (1994). Katharine Hazlett, beginning where Moglen left off, 11 a more complex convergence of a number of common-law antecedents that had fairly 1 limited effect until the late-nineteenth century.4 2 Although scholars may debate the precise genealogy of the privilege, they 3 do not appear to debate its animating principle, namely, an aversion to compelled 4 testimony. Levy, for example, emphasized that the "traditional English formulation of 5 the right against self-incrimination" pertained to a right "against compulsory self- 6 incrimination. The element of compulsion or involuntariness was always an essential 7 ingredient of the right." Levy, Origins of the Fifth Amendment at 327-28 (emphasis in 8 original); see also Eben Moglen, Taking the Fifth: Reconsidering the Origins of the 9 Constitutional Privilege Against Self-Incrimination, 92 Mich L Rev 1086, 1100 (1994) 10 (nemo tenetur privilege concerned "the inappropriateness of physical and spiritual 11 traced the development of what is now understood to be the modern privilege against self-incrimination to the fusion of two common-law rules of evidence -- the witness privilege, which prohibited a nonparty from being compelled to give self-incriminating testimony, and the confession rule, which excluded a party's confession that had not been voluntarily elicited. Katharine B. Hazlett, The Nineteenth Century Origins of the Fifth Amendment Privilege Against Self-Incrimination, 42 Am J Legal Hist 235 (1998). Hazlett places the origins of the modern understanding of the privilege -- a right against self-incrimination that applies to parties and nonparties in both criminal and civil proceedings -- in the mid- to late-nineteenth century. Id. 4 Hazlett, for example, notes that "it was not until 1854, more than eighty years after the adoption of the fifth amendment, that a federal case even mentions the constitution in the context of the privilege against self-incrimination." Hazlett, 42 Am J Legal Hist at 240 (emphasis in original). Boyd v. United States, 116 US 616, 6 S Ct 524, 29 L Ed 746 (1886), is regarded as the first decision to hold that a state or federal statute requiring defendants to produce evidence upon request violated the Fifth Amendment privilege. Hazlett, 42 Am J Legal Hist at 252-60. 12 coercion[,] * * * casting weight onto the scale against the practice of judicial torture"). 1 Nineteenth-century treatises emphasize that the point of the right is freedom 2 from compulsion. One, for example, explains that "[t]he prisoner is not to be examined 3 upon oath, for this would be a species of duress, and a violation of the maxim, that no one 4 is bound to criminate himself." Thomas Starkie, 2 A Practical Treatise on the Law of 5 Evidence 51-52 (1826) (footnote omitted).5 6 Early-nineteenth century cases on the constitutional right against self- 7 incrimination likewise reflect a uniform focus on compulsion. The Supreme Judicial 8 Court of Massachusetts, for example, explicitly concluded that the scope of the right 9 against self-incrimination extended only to compelled testimony in Commonwealth v. 10 Drake, 15 Mass 161 (1818). In that case, the defendant had been convicted of lewd 11 conduct, based on a confession that he had made openly at his church. Following his 12 conviction, he moved for a new trial on the ground that his confession could not 13 5 The concern with avoiding compelled testimony dates back much earlier. Early colonial magistrates, for example, saw a direct connection between the prohibition against compelling individuals to give sworn testimony against themselves and deriving testimony by means of torture. As John Winthrop reported, "examination by oath or torture in criminal cases" was "generally denied to be lawful." John Winthrop, 2 The History of New England from 1630 to 1649, at 56 (James Savage ed. 1853). The equation of compelling testimony by oath and by torture may seem foreign to modern sensibilities, but it must be recalled the seriousness with which sixteenth and seventeenth- century protestants regarded the giving of oaths. See, e.g., Moglen, 92 Mich L Rev at 1100 ("To the modern mind, the oath in the legal process is merely a formal ritual, reminding the witness of the possibility of secular punishment for perjury. But this is merely the last step in the withering away of the Christian world's favored instrument of spiritual coercion."). 13 constitutionally be used against him. Id. The trial court denied the motion, and the 1 defendant appealed. The solicitor general, defending the lower court's decision, argued 2 that "[t]he declaration of rights has provided that no subject shall be compelled to accuse 3 or furnish evidence against himself. Here [there] was no compulsion. The confession 4 was purely voluntary." Id. at 162. The Supreme Judicial Court agreed, holding that, as 5 long as the confession was "purely voluntary," it was admissible. Id. 6 To similar effect is the Arkansas Supreme Court's decision in State v. 7 Quarles, 13 Ark 307 (1853), in which the court explained that the constitutional right 8 against self-incrimination provides "only that the witness should not be compelled to 9 produce the evidence to prove himself guilty of [a] crime." Id. at 311. The right, the 10 court explained, "is founded upon the general sense of enlightened men, that compulsory 11 self-accusation of crime is not only at war with the true charities of religion, but has been 12 proven to be impolitic by the truths of history and the experience of common life." Id. 13 Compelled testimony, the court reasoned "would not be voluntary * * * and for that 14 reason could never be lawfully used against" the defendant who is required to testify 15 against himself or herself. Id. at 314. See also Jordan v. The State of Mississippi, 32 16 Miss 382, 386-87 (1856) (under the state constitutional prohibition against self- 17 incrimination, "the question, and the only question which can be considered is, whether 18 the confession was voluntary"); State v. Hobbs and Strong, 2 Tyl 380, 383 (Vt 1803) 19 (under state constitutional right against self-incrimination, "all compulsory process to 20 enforce an acknowledgement of guilt is for ever excluded, not only from our judicial 21 proceedings, but all attempts of individuals to extort confession by bodily suffering is 22 14 reprobated"). 1 Those cases were consistent with -- and, indeed, sometimes openly 2 borrowed from -- the common-law confession rule, which held that confessions obtained 3 by coercion were inadmissible in evidence. See, e.g., Wilkins v. Malone, 14 Ind 153, 156 4 (1860) ("The constitutional provision [the right against self-incrimination] is thoroughly 5 interwoven with the history and principles of the common law."). As one early 6 nineteenth-century evidence treatise explained, "a confession, forced from the mind by 7 the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is 8 to be considered as the evidence of guilt, that no credit ought to be given to it[.]" Simon 9 Greenleaf, 1 A Treatise on the Law of Evidence § 219, 254 (1st ed 1842) (reprint 1972). 10 Thus, for instance, the New York Court of Appeals explained in People v. 11 McMahon, 15 NY 384 (1857), that, while the civil law freely relies on confessions, "[t]he 12 common law, on the other hand * * * regards this species of evidence with distrust." Id. 13 at 385. The rationale was that coerced confessions were not reliable; the common law, it 14 was understood, "carefully scrutinizes the circumstances, and rejects the evidence if it 15 sees that no safe inferences can be drawn from it." Id. 16 In that regard, it perhaps bears noting that, at common law, testimony 17 obtained by means of pretext or deception was not regarded as having been compelled. 18 As Greenleaf explained in his treatise on evidence, a confession may be admissible 19 "though it were induced by * * * any deception practi[c]ed on the prisoner, or false 20 representation made to him for that purpose, provided there is no reason to suppose that 21 the inducement held out was calculated to produce any untrue confession[.]" Greenleaf, 22 15 1 A Treatise on the Law of Evidence § 229 at 322 (emphasis in original). Thomas 1 Starkie's evidence treatise similarly explains, with a citation to a well-known English 2 case, Rex v. Burley (1818), reprinted in Selected Cases from the Twelve Judges' 3 Notebooks 118-19 (D.R. Bentley Q.C. ed., 1997), that a prisoner may be "convicted upon 4 his own confession, even although it had previously been falsely represented to him by a 5 constable that his accomplices were in custody." Starkie, 2 A Practical Treatise on the 6 Law of Evidence at 49-50 (emphasis in original; footnote omitted). See also Rex v. Shaw, 7 6 Car & P 372, 373, 172 Eng Rep 1282 (1834) (prisoner confessed to fellow prisoner, 8 who falsely promised to keep the confession in confidence; held the confession was 9 admissible); Rex v. Derrington, 2 Car & P 418, 419, 172 Eng Rep 189 (1826) (confession 10 obtained by deception is admissible in the absence of evidence that it was obtained by 11 threats). 12 Antebellum American cases were consistent on that point as well, often 13 with a citation to Burley or Derrington. See, e.g., Rutherford v. Commonwealth, 59 Ky (2 14 Met) 387, 391 (1859) (prisoner's confession obtained by deception admissible, unless 15 induced by a false promise of freedom); Fife, Jones, and Stewart v. The Commonwealth, 16 29 Pa 429, 436 (1857) (citing Burley for the rule that confessions obtained by "artifice" 17 are admissible, the only limitation being whether the confession was voluntary, that is 18 whether there was involved any "intimation of an intention in any quarter, to punish or 19 injure her if she refuses to confess"); Gates v. The People, 14 Ill 433, 437 (1853) ("And 20 confessions may be received in evidence though induced by deception practiced on the 21 prisoner, or by false representations made to him for the purpose[.]"). 22 16 In short, the evidence of the historical circumstances of the adoption of 1 Article I, section 12, in the mid-nineteenth century reveals that the constitutional right 2 against self-incrimination generally was understood to limit the means by which the state 3 may obtain evidence from criminal defendants by prohibiting compelled testimony.6 In 4 our examination of the historical record, we have found a complete absence of evidence 5 of the recognition of a constitutionally protected "right to remain silent" that exists 6 independent of compelling circumstances.7 With that summary of the historical sources 7 in mind, we turn to the Oregon case law construing Article I, section 12. 8 6 As one historian recently summarized the evidence, the historical sources show that the right against self-incrimination was understood to prohibit "(1) incriminating interrogation under oath, (2) torture, and (3) probably other forms of coercive interrogation such as threats of future punishment and promises of leniency. The amendment prohibited nothing more, or at least the sources mention nothing more. The self-incrimination clause neither mandated an accusatorial system nor afforded defendants a right to remain silent. It focused on improper methods of gaining information from criminal suspects." Albert W. Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self-Incrimination at 192 (footnotes omitted). 7 In fact, the first mention of a constitutional "right to remain silent" occurs in an 1894 New York Court of Appeals case, People ex rel. Taylor v. Forbes, 143 NY 219, 229-30, 38 NE 303 (1894), and, even then, the court emphasized that "the object of the constitutional provision was to insure [sic] that a person shall not be compelled" to give self-incriminating testimony. There is a slightly earlier mention of a defendant's "right to remain silent" in the summary of the arguments of counsel in Commonwealth v. Sturtivant, 117 Mass 122, 128 (1875). In that case, the defendant objected to the admission of a confession that he had given during an interview with a constable. The court, however, disposed of the contention summarily with the observation that "[n]o inducement or influence of any kind appears to have been used to obtain the confession." Id. at 139. 17 3. Oregon Case Law 1 From very early on, this court's cases held that the focus of Article I, 2 section 12, is whether a defendant's testimony was compelled, or, conversely, whether it 3 was voluntarily given. In State v. Andrews, 35 Or 388, 391, 58 P 765 (1899), for 4 example, the court explained that, under Article I, section 12, "before the confessions of a 5 defendant can be received in evidence in a criminal action, it must appear that they were 6 voluntarily made." The court cited as authority an earlier case, State of Oregon v. Moran, 7 15 Or 262, 265, 14 P 419 (1887), which, in turn, relied on the common-law confession 8 rule that confessions are admissible as long as voluntarily obtained. 9 In State v. Morris, 83 Or 429, 473, 163 P 567 (1917), the court similarly 10 emphasized that, under Article I, section 12, 11 "[i]t is incumbent upon the prosecution to show that the statement relied 12 upon was free and voluntary, and if it should appear that any inducement or 13 compulsion in any appreciable degree enters as an ingredient into the 14 transaction, it vitiates the whole, and its admission in evidence is an abuse 15 of the defendant's constitutional right for which a conviction should be 16 reversed." 17 Some 20 years later, in In re Jennings et al., 154 Or 482, 59 P2d 702 18 (1936), the court alluded to the historical underpinnings of the right against self- 19 incrimination. Citing Wigmore and quoting from an article by Chief Justice William 20 Howard Taft on the subject, the court noted that the right, 21 " 'if traced back to its original source, had reference to a system of torture 22 which did prevail in the time of the early English kings, and which was 23 intended to denounce, not the mere calling of a defendant to testify and 24 inviting him by questions so to do, but the actual compulsion of evidence 25 by physical means.' " 26 18 Id. at 495 (quoting William H. Taft, The Administration of Criminal Law, 15 Yale LJ 1, 9 1 (1905)). 2 A decade later, this court again relied on the common-law underpinnings of 3 Article I, section 12, to determine that a defendant’s right against compelled self- 4 incrimination was not violated when the police, without a defendant’s consent, took a 5 blood sample and submitted evidence regarding the blood alcohol content of that sample 6 at the defendant’s trial. State v. Cram, 176 Or 577, 579-82, 593, 160 P2d 283 (1945). 7 " '[N]either limiting nor enlarging' " the " 'common-law rule ' " embodied in Article I, 8 section 12, the court held that using that evidence did not "compel[ him] to testify against 9 himself[,]" and, therefore, the admission of the evidence did not violate section 12. Id. at 10 581, 593-94 (quoting Burr W. Jones, 6 Commentaries on the Law of Evidence § 2472, 11 4900 (2d ed 1926)). 12 The court emphasized that compulsion is the principal underpinning of the 13 protection in State v. Mendacino, 288 Or 231, 603 P2d 1376 (1980). "Before a 14 confession can be received in evidence," the court explained, 15 "the state must show that it was voluntarily given, that is, made without 16 inducement through fear or promises, direct or implied. This has been the 17 rule in Oregon for almost a century. A compelled confession is offensive 18 not because the victim has a grievance against the police, but because 19 coerced statements are not premises from which a civilized society will 20 infer guilt. The Oregon Constitution embodies these principles by 21 guaranteeing that no person shall be compelled in any criminal prosecution 22 to testify against himself." 23 Id. at 235-36 (citations omitted). 24 The court again addressed the scope of the right against self-incrimination 25 19 in Sparklin, 296 Or 85. In that case, the defendant had been arrested on a charge of 1 forgery after security personnel at a retail store notified police of their suspicion that the 2 defendant and a companion had purchased merchandise with a stolen credit card. Id. at 3 87. At his arraignment, he requested an attorney and was provided with one. Police 4 meanwhile obtained information that implicated the defendant in an unrelated robbery 5 and murder. Two detectives, without providing the defendant an opportunity to consult 6 with his attorney, gave the defendant Miranda warnings and proceeded to question him 7 about the other crimes. Defendant signed a waiver of his Miranda rights and confessed 8 to the murder. Id. He was then charged, tried, and convicted of the murder based, in 9 part, on the confession. On appeal, the defendant argued that the confession should have 10 been suppressed under Article I, section 12. He argued that his request for an attorney at 11 arraignment triggered his right against self-incrimination, as well as his right to counsel 12 under Article I, section 11. Id. at 89. 13 This court rejected the defendant's self-incrimination argument. "Article I, 14 section 12," the court explained, "forbids the state from compelling a person to testify 15 against himself. It is compulsion which is proscribed[.]" Id. at 89 (emphasis added). In 16 that case, the court continued, no such compulsion occurred, because the police had 17 informed the defendant of his rights, and he had waived them. The defendant insisted 18 that the fact that he had earlier requested counsel at his arraignment triggered his right 19 against self-incrimination. Id. The court rejected that argument as well, because the right 20 had not been invoked at a time when the defendant had been in compelling 21 circumstances. "At arraignment," the court observed, "defendant is not confronted with 22 20 an atmosphere of coercion, nor does anyone seek to gain admissions from him." Id. 1 More recently, in State v. Fish, 321 Or 48, 55, 893 P2d 1023 (1995), this 2 court briefly surveyed the historical underpinnings of the right against self-incrimination 3 guaranteed in Article I, section 12, concluding that, although there appears to be some 4 disagreement about the precise origins of the right, "it is clear that the right originated 5 and continued to develop as a protection against inquisitorial methods of investigation 6 and prosecution." Accordingly, the court emphasized, "Article I, section 12, prohibits the 7 state from compelling an individual to provide 'testimonial' evidence." Id. at 56 8 (emphasis in original). In fact, the court summarized the self-incrimination protection 9 afforded by the state constitution in terms of three specific elements: "[T]o receive 10 protection under the self-incrimination clause of Article I, section 12," the court 11 explained, "a person's statement or conduct must (1) be 'testimonial' evidence, (2) be 12 'compelled,' and (3) be evidence that could be used against the person in a criminal 13 prosecution." Id. at 53. See also State v. Scott, 343 Or 195, 201, 166 P3d 528 (2007) 14 ("The state constitutional right against self-incrimination and the derivative right to 15 counsel adhere when a suspect is subject to custodial interrogation."); State v. Terry, 333 16 Or 163, 172, 37 P3d 157 (2001), cert den, 536 US 910 (2002) ("Article I, section 12, of 17 the Oregon Constitution, requires police questioning to cease only when a defendant is in 18 custody, i.e., not free to leave."). 19 Of course, the rights guaranteed by Article I, section 12, may be waived. 20 To ensure the validity of any such waiver, this court suggested early on, in Andrews, 35 21 Or at 391-92, that proper warnings may be required. Meanwhile, in Miranda v. Arizona, 22 21 384 US 436, 444, 86 S Ct 1602, 16 L Ed 2d 694 (1966), the United States Supreme Court 1 decided that, to ensure the validity of a waiver of an individual's right against self- 2 incrimination under the Fifth Amendment, police must warn the individual of, among 3 other things, the rights to remain silent and to be represented by counsel. The Court 4 concluded in Miranda that the warnings were required of state law enforcement officials 5 as a requirement of due process under the Fourteenth Amendment. Id. 6 It is important to note, however, that the United States Supreme Court has 7 emphasized that the warning requirement is triggered by custodial interrogation, not by 8 the mere assertion of the right against self-incrimination, without regard to whether an 9 individual is in custody or in compelling circumstances. As the Court explained in 10 McNeil v. Wisconsin, 501 US 171, 182 n 3, 111 S Ct 2204, 115 L Ed 2d 158 (1991), 11 "[w]e have in fact never held that a person can invoke his Miranda rights anticipatorily, 12 in a context other than 'custodial interrogation[.]'"8 13 8 If it were otherwise, the Court explained, there would be "no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect." Id. (emphasis added). The lower courts from other jurisdictions have followed suit, often employing the Supreme Court's phrasing of the issue in terms of whether the right may be invoked "anticipatorily," that is, in the absence of custody or compelling circumstances. See, e.g., U.S. v. Vega-Figueroa, 234 F3d 744, 749 (1st Cir 2000) ("In order for Miranda 22 In the years following Miranda, this court has concluded that, under the 1 state constitution, similar warnings are required before a defendant may be questioned 2 while in custody or in compelling circumstances. See generally Vondehn, 348 Or at 472- 3 74 (reviewing cases leading to the conclusion that "the Oregon Constitution requires 4 suppression of statements made without the benefit of Miranda warnings"). Like the 5 United States Supreme Court, however, this court has always held that the need for 6 warnings is triggered by questioning either in custody or in circumstances short of 7 rights to be invoked, there must be (1) custody and (2) interrogation."); U.S. v. Grimes, 142 F3d 1342, 1348 (11th Cir 1998), cert den, 525 US 1088 (1999) ("Miranda rights may be invoked only during custodial interrogation or when interrogation is imminent."); U.S. v. Wright, 962 F2d 953, 955 (9th Cir 1992) ("The Court has never held that Miranda rights may be invoked anticipatorily outside the context of custodial interrogation; we see no reason, apart from those already rejected in McNeil, to do so here."); Russell v. State, 215 SW3d 531, 536 (Tex Ct App 2007) ("[W]e do not believe existing case law supports the right of an accused to invoke his Miranda rights in any context other than a custodial interrogation."); Wilson v. Com., 199 SW3d 175, 179 (Ky 2006) ("[I]t is clear that the Fifth Amendment rights protected by Miranda attach only after a defendant is taken into custody and subjected to interrogation. Any attempt to invoke those rights prior to custodial interrogation is premature and ineffective."). As a matter of state constitutional law, most state courts also hold that the invocation of Miranda rights in the absence of custody or compelling circumstances does not preclude police questioning. See, e.g., State v. Aubuchont, 147 NH 142, 149, 784 A2d 1170 (2001); Sapp v. State, 690 So 2d 581, 586 (Fla), cert den, 522 US 840 (1997) (holding that, under the Florida constitution self-incrimination clause, "[a] rule allowing one to invoke the right to counsel for custodial interrogation before it is even imminent (whether it be through a claim of rights form or by any other means) would provide little additional protection against involuntary confessions but would unnecessarily hinder lawful efforts by police to obtain voluntary confessions"). In one jurisdiction, New York, the courts have reached a contrary conclusion, based on a right-to-counsel statute in combination with state constitutional guarantees of rights to counsel and due process of law. See, e.g., People v. Davis, 75 NY2d 517, 520-21, 553 NE2d 1008 (1990). 23 custody that are nevertheless compelling. As the court explained in State v. Roble-Baker, 1 340 Or 631, 638, 136 P3d 22 (2006), "[t]o protect a person's right against compelled self- 2 incrimination under [Article I, section 12], this court has held that, before questioning, 3 police must give Miranda warnings to a person who is in 'full custody' or in 4 circumstances that 'create a setting which judges would and officers should recognize to 5 be "compelling." ' " (quoting State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990)). 6 This court has never recognized an obligation under Article I, section 12, of 7 police to inform a person of a right to remain silent in the absence of custody or other 8 compelling circumstances. Likewise, the court has never held that an individual's 9 invocation of a right to remain silent in the absence of custody or other compelling 10 circumstances precludes police from attempting to obtain incriminating information from 11 that individual. 12 4. Application 13 That leads us to this case, in which defendant asks that this court do so -- 14 that is, hold that his invocation of a right to remain silent some months before he was 15 placed in custody or in circumstances that could be regarded as compelling precluded 16 police from obtaining incriminating information from him during that time. Article I, 17 section 12, simply will not support such a broad interpretation. As we have noted, as a 18 matter of textual analysis, the provision speaks to a right to be free from compelled self- 19 incrimination; if there is a right to remain silent that is guaranteed by Article I, section 12, 20 it is a right to insist that the police refrain from interrogation after a person who is in 21 custody or otherwise in compelling circumstances has invoked the right to remain silent. 22 24 That reading of the text is most likely what the framers of the Oregon Constitution would 1 have understood Article I, section 12, to mean. The constitutional guarantee of a right 2 against self-incrimination, as well as its common-law antecedents, were well and 3 uniformly understood to prohibit only compelled self-incrimination. Moreover, this court 4 has consistently construed the scope of the constitutional guarantee to apply only to 5 questioning while an individual is in custody or otherwise in compelling circumstances. 6 As this court succinctly stated in Sparklin, "[i]t is compulsion which is proscribed[.]" 7 296 Or at 89. 8 Defendant's arguments in favor of a broader reading of Article I, section 12, 9 do not bear scrutiny. Defendant does not explain how his assertion of a broader "right to 10 remain silent" independent of custody or other compelling circumstances can be 11 reconciled with the text of the constitution, with its history, or with this court's case law. 12 His sole contention is that, in a footnote in Sparklin, this court noted that the 13 "investigative stage" of a case is sufficiently important that the right to counsel may be 14 implicated. 296 Or at 92 n 9. According to defendant, the same reasoning should apply 15 to the right against self-incrimination under Article I, section 12. 16 Defendant's reliance on the dictum in Sparklin is unavailing. The court's 17 statement concerned the right to counsel under Article I, section 11, not the right against 18 self-incrimination under Article I, section 12. In fact, as we have noted, the defendant in 19 Sparklin advanced an argument that the police questioning in that case also violated 20 Article I, section 12, based on the fact that he had invoked his right to counsel at 21 arraignment some time before the police began questioning him, which he said also 22 25 implicated his right against self-incrimination. The court rejected the argument because, 1 as in this case, the defendant had invoked the right before he was in compelling 2 circumstances. Id. at 89. Thus, defendant's reading of Sparklin cannot be reconciled 3 with Sparklin itself. 4 With the foregoing principles in mind, the answer to defendant's argument 5 regarding his rights under Article I, section 12, is straightforward. Police informed 6 defendant that they had received a report alleging that he had sexually abused his step- 7 daughter. There is no suggestion that, at that time, he was in custody or otherwise in 8 compelling circumstances; to the contrary, defendant concedes that he was not. A month 9 later, defendant attempted to invoke his right against self-incrimination under Article I, 10 section 12. Again, however, there is no suggestion that, at that time, he was in custody or 11 otherwise in compelling circumstances; defendant concedes he was not. Some eight 12 months after that, Detective Kaney employed a measure of subterfuge in obtaining, 13 through pretextual instant messaging and telephone communications with the victim, 14 self-incriminating statements from defendant. Yet again, however, there is no suggestion 15 that, at that time, defendant was in custody or in compelling circumstances; he concedes 16 again that he was not. There is no suggestion in this case that defendant's incriminating 17 statements were induced by threats or promises or that in any other way defendant's self- 18 incriminating statements were not voluntarily made. In short, there is no basis for 19 concluding that defendant's self-incriminating statements were obtained in violation of 20 Article I, section 12. 21 B. Article I, Section 11, Right to Counsel 22 26 We turn, then, to defendant's alternative argument, that the trial court 1 correctly granted his motion to suppress because the police obtained his incriminating 2 statements in violation of his right to counsel under Article I, section 11. As we have 3 noted, defendant's argument on that point in this court is abbreviated; it consists of a 4 single sentence at the conclusion of his brief on review, asserting that "the police 5 investigation was a part of a 'criminal prosecution' to which Article I, section 11, of the 6 Oregon Constitution applies." In the Court of Appeals, defendant was only slightly more 7 thorough in his explanation for his Article I, section 11, argument. He acknowledged that 8 the right to counsel under that provision of the constitution applies only in "criminal 9 prosecutions." Citing the footnote in Sparklin that we have previously addressed, 10 defendant contended that the right to counsel under Article I, section 11, should be held 11 to attach "during the investigative stage of a prosecution," that is, any time police initiate 12 contact with a suspect. 13 The state does not address Article I, section 11, in its brief on review. In its 14 brief to the Court of Appeals it relied on this court's opinion in State v. Randant, 341 Or 15 64, 70, 136 P3d 1113 (2006), cert den, 549 US 227 (2007), for the bright-line proposition 16 that the right to counsel under that provision of the state constitution does not attach until 17 a defendant has been formally charged with a criminal offense. 18 Article I, section 11, of the Oregon Constitution provides that, "[i]n all 19 criminal prosecutions, the accused shall have the right * * * to be heard by himself and 20 counsel." Although this court has, in several cases, addressed the point at which the right 21 guaranteed by that provision "attaches," the court has never examined Article I, section 22 27 11, in terms of the interpretive analysis set out in Priest. 1 Before engaging in that analysis, we once again emphasize the limited 2 scope of the issue before us: An individual may, at any time, decide to retain counsel and 3 may refuse to speak with police without counsel's presence. The question before us is the 4 extent to which such a decision precludes the police from continuing their criminal 5 investigation of the individual. Specifically, it is whether, under Article I, section 11, a 6 suspect's announcement, before the initiation of any criminal prosecution, that he or she 7 has retained counsel and will not speak with police without the presence of counsel 8 precludes the police from nevertheless attempting to obtain incriminating information 9 from the suspect without the participation of counsel. 10 1. Textual Analysis 11 Beginning with the text of Article I, section 11, it may be useful to set out 12 the entire section, as it was originally adopted. See Hirsch/Friend, 338 Or at 634 13 ("[O]ther constitutional provisions are helpful to our textual analysis[.]"); State v. Cavan, 14 337 Or 433, 441, 98 P3d 381 (2004) (examination of constitutional text should include 15 consideration of its context). The full text of the original section provides: 16 "In all criminal prosecutions the accused shall have the right to 17 public trial by an impartial jury in the county in which the offen[s]e shall 18 have been committed; to be heard by himself and counsel; to demand the 19 nature and cause of the accusation against him, and to have a copy thereof; 20 to meet the witnesses face to face, and to have compulsory process for 21 obtaining witnesses in his favor." 22 28 Or Const Art I, § 11 (1857).9 The phrasing of the section is significant in at least three 1 respects pertinent to the issue in this case. 2 First, all of the rights listed in section 11 arise in the course of criminal 3 "prosecutions." On its face, that appears to connote the idea that the right attaches only 4 upon the initiation of some sort of formal proceeding by the state against an individual. 5 That appears to be the sense in which the word would have been understood at the time 6 of its adoption in the mid-nineteenth century, as well. One relevant law dictionary at the 7 time of the framing of the Oregon Constitution, for example, provides the following 8 definition: 9 "PROSECUTION, crim. law, is the means adopted to bring a 10 supposed offender to justice and punishment by due course of law. * * * 11 The modes most usually employed to carry them out, are by indictment,* * 12 * presentment of a grand jury, * * * coroner's inquest, * * * and by an 13 information." 14 Bouvier, 2 A Law Dictionary at 306 (emphasis in original). Similarly, the relevant 15 definition of "prosecution" in Webster's dictionary is: 16 "[t]he institution or commencement and continuance of a criminal 17 suit; the process of exhibiting formal charges against an offender before a 18 legal tribunal, and pursuing them to final judgment; as prosecutions of the 19 crown or of the state by the attorney or solicitor general. Prosecutions may 20 be by presentment, information or indictment." 21 Webster, 2 An American Dictionary (emphasis in original). 22 Second, the rights listed may be invoked not by any "person," but only by 23 9 Article I, section 11, was amended in 1932 and 1934 by adding other guarantees concerning jury verdicts in first-degree murder trials. 29 one who is an "accused." Ordinarily, a reference to an "accused" connotes one who has 1 been formally charged with having committed a criminal offense. See Webster, 1 An 2 American Dictionary (defining "accused" to mean "[c]harged with a crime, by a legal 3 process; charged with an offense; blamed"). That the framers of Article I, section 11, 4 likely understood the term to have that ordinary sense is confirmed by the reference in the 5 same provision to the right of an accused "to demand the nature and cause of the 6 accusation against him, and to have a copy thereof." (Emphasis added.) See Bouvier, 1 7 A Law Dictionary at 40 (defining "accusation" to mean "[a] charge made to a competent 8 officer against one who has committed a crime or misdemeanor so that he may be 9 brought to justice and punishment"). Clearly, the phrasing of the section contemplates 10 the initiation of some sort of formal proceeding against an "accused" by means of an 11 "accusation" that has been reduced to writing. 12 Third, each of the rights listed in section 11 pertains to the conduct of a 13 criminal trial. The opening phrase of the section, in fact, specifies that the accused has 14 the right "to a public trial" in the county in which the offense was committed. There 15 follows a guarantee of a right to meet witnesses face to face, and to have compulsory 16 process for obtaining witnesses in favor of the accused, both of which clearly refer to the 17 conduct of trial. It is in that context that section 11 lists among the rights that it 18 guarantees the right "to be heard," apparently during trial, "by himself and counsel." 19 Taken at face value, then, the scope of the right guaranteed by Article I, 20 section 11, appears to be limited to the right of an "accused" against whom a written 21 "accusation" has been brought "to be heard" by counsel "in a criminal proceeding." Thus, 22 30 the bare wording suggests that the right may be exercised at trial or, at the earliest, after 1 formal charges have been filed against a defendant. 2 2. Historical Analysis 3 Article I, section 11, was adopted as part of the original state constitution. 4 Its wording is identical to the wording of Article I, section 13, of the 1851 Indiana 5 Constitution and is, consequently, presumed to have been based on that state's guarantee. 6 Carey, The Oregon Constitution at 468. It was adopted without amendment or debate. 7 Burton & Grade, 37 Will L Rev at 517-18. The historical context in which the provision 8 was adopted, however, reveals that the framers most likely understood its scope to be as 9 limited as its text suggests, namely, that the right to the assistance of counsel is limited to 10 the conduct of the trial or, at the earliest, proceedings following formal charges against an 11 accused. 12 At English common law, a defendant accused of a felony actually was 13 prohibited from being represented by counsel. See generally William M. Beaney, The 14 Right to Counsel in American Courts 8-9 (1955). Oddly enough, only defendants 15 accused of misdemeanors were permitted the assistance of a lawyer. Id.10 In 1696, 16 10 The anomaly did not go unnoticed. Blackstone, for example, asked of the English common-law rule, "[U]pon what face of reason can that assistance [of counsel] be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass?" William Blackstone, 4 Commentaries on the Laws of England 349 (1769). Several reasons have been advanced for the apparent anomaly. First, the judge was understood to have looked to the interests of the accused in felony cases. Second, the standard of proof was such that counsel for a defendant was thought unnecessary. Third, it was assumed that the defendant was more familiar with his case than would be 31 Parliament enacted The Treason Act, 7 & 8 Wil 3, c 3, § 1, which, among other things, 1 authorized a defendant accused of treason to retain "[c]ounsel learned in the [l]aw." It 2 was not until 1836 that Parliament enacted legislation extending the right to counsel to all 3 felony defendants,11 although individual judges had been known to permit felony 4 defendants to obtain privately retained counsel on a case-by-case basis some years before 5 that. See Beaney, The Right to Counsel at 9-11. 6 The American colonies charted a course different from the one taken by 7 Parliament and the English courts. To be sure, self-representation in criminal cases 8 tended to be common, from very early on. See generally James J. Tomkovicz, The Right 9 to the Assistance of Counsel: A Reference Guide to the United States Constitution 13 10 (2002). Nevertheless, as early as the mid-seventeenth century, the General Assembly for 11 the colony of Rhode Island enacted a statute that recognized a right "to procure an 12 attorn[ey] to plead any po[i]nt of law that may make for the clearing of his innocencye 13 [sic]." John Russell Bartlett, 2 Records of the Colony Rhode Island and Providence 14 Plantations, in New England 238-39 (1857), quoted in Beaney, The Right to Counsel at 15 17-18. 16 Several other colonies later followed Rhode Island in enacting statutory 17 counsel, and so no intermediary was deemed necessary. See John H. Langbein, The Criminal Trial before the Lawyers, 45 U Chi L Rev 263, 307-08 (1978). 11 An Act for enabling Persons indicted of Felony to make their Defen[s]e by Counsel or Attorney, 1836, 6 & 7 Wil 4, c 114. 32 guarantees to the assistance of counsel in serious criminal cases. In 1731, the South 1 Carolina legislature enacted a law that guaranteed every person "arraigned or tr[i]ed for 2 any such treason, murder, felony or other capital offen[s]e whatsoever as aforesaid, shall 3 be received and admitted to make his and their full defen[s]e by counsel learned in the 4 law[.]" Act No 530 (1731), 3 Statutes at Large of South Carolina 1716-1752, at 274, 5 286. In 1777, North Carolina similarly enacted a law specifying that "every Person 6 accused of any Crime or Misdemeanor whatsoever, shall be [e]ntitled to Council [sic] in 7 all Matters which may be necessary for his Defense, as well to Facts as to Law[.]" Ch 2, 8 § XCIV (1777), reprinted in 24 The State Records of North Carolina 48, 73-74 (Walter 9 Clark ed. 1905). That same year, Massachusetts adopted a statute providing a right to the 10 assistance of counsel for those accused of treason or misprision of treason. Act of Feb 1, 11 1777, ch 32, reprinted in 5 The Acts and Resolves, Public and Private, of the Province of 12 the Massachusetts Bay 615, 617 (1886). Soon thereafter, the Virginia legislature 13 enjoined the courts to allow a criminal defendant "counsel to assist him at his trial, if he 14 desire it." Ch LVII (1779), reprinted in 12 The States at Large; Being a Collection of all 15 the Laws of Virginia at 340, 343 (William Waller Hening ed. 1823). A number of 16 colonies included in their charters explicit recognition of a right to the assistance of 17 counsel. Delaware and Pennsylvania, in fact, included mention of the right in their 18 colonial charters, both of which stated that "all Criminals shall have the same Privileges 19 of Witnesses and Council [sic] as their Prosecutors." Del Charter § 5 (1701); Pa Charter 20 § 5 (1701). In each case, the scope of the prerevolutionary right to the assistance of 21 counsel was limited to assistance at trial or, at the earliest, after arraignment. 22 33 Following the Declaration of Independence, a majority of the states adopted 1 constitutions that explicitly recognized a right to the assistance of counsel. Some, like the 2 constitution of Georgia, explicitly tied the right to trial: "[N]o person shall be debarred 3 from advocating or defending his cause before any court or tribunal, either by himself or 4 counsel, or both." Ga Const, Art III, § 8 (1798). New York's constitution similarly stated 5 that, "in every trial on impeachment, or indictment for crimes or misdemeanors, the party 6 impeached or indicted shall be allowed counsel[.]" NY Const, ¶ XXXIV (1777). Others, 7 like the Delaware Constitution of 1792, referred to a right to counsel in "all criminal 8 prosecutions." Del Const, Art I, § 7 (1792); see also Md Declaration of Rights XIX 9 (1776) ("[I]n all criminal prosecutions, every man hath a right * * * to be allowed 10 counsel[.]"). Still others, like the Massachusetts Constitution of 1780, adopted slightly 11 different phrasing, referring to a subject's right "to be fully heard in his defence." Mass 12 Const, Part I, Art 12 (1780). 13 The Sixth Amendment to the federal Constitution, adopted in 1791, 14 followed suit. It states that, "[i]n all criminal prosecutions, the accused shall enjoy the 15 right * * * to have the Assistance of Counsel for his defen[s]e." US Const, Amend VI. 16 Notably, the Sixth Amendment, like a number of parallel provisions of existing state 17 constitutions, refers to a right of "the accused" that may be exercised during "criminal 18 prosecutions," which suggests that the focus of the amendment is on the rights of a 19 defendant at trial or, at the earliest, following formal charging. 20 There is, in fact, general agreement among historians that the Sixth 21 Amendment and its state constitutional counterparts were understood to have a limited 22 34 scope -- they were originally understood to apply to the conduct of the criminal trial only 1 and, even then, as a guarantee only of the right to retained counsel. See, e.g., Tomkovicz, 2 The Right to the Assistance of Counsel at 81 ("The historical record suggests that the 'core 3 purpose of the counsel guarantee was to assure' that an accused had the assistance of a 4 trained lawyer 'at trial.' " (quoting United States v. Ash, 413 US 300, 309, 93 S Ct 2568, 5 37 L Ed 2d 619 (1973))); Joseph D. Grano, Rhode Island v. Innis: A Need to Reconsider 6 the Constitutional Premises Underlying the Law of Confessions, 17 Am Crim L Rev 1, 26 7 (1979) ("History * * * reinforces what the sixth amendment's language makes plain[,]" 8 i.e., that it is a "trial guarantee[.]"). 9 That understanding of the right to counsel persisted throughout the 10 nineteenth century. In State v. Cummings, 5 La Ann 330, 331-32 (1850), for example, 11 the Louisiana Supreme Court addressed the scope of the constitutional right to counsel in 12 the following terms: 13 "It was a reproach to the Common Law of England that prisoners 14 were not allowed the aid of counsel when accused of crimes. Their 15 ignorance and timidity when prosecuted by the high officers of 16 government, their want of self possession when life and liberty was put in 17 jeopardy, rendered them incapable of defending themselves, and often the 18 greatest injustice and oppression occurred. This led to the guarantee of the 19 right to counsel in our liberal constitutions, and the right should be liberally 20 construed. 21 "The moment at which perhaps it is most seasonable and necessary 22 that a person accused of a crime should have aid and counsel, is that when 23 he is about to be put upon his trial for the offence, and to select the jury for 24 his trial." 25 (Emphasis added.) See also In re Bates, 2 F Cas 1015, 1018 (CCSC 1858) (No 1,099a) 26 (the rights to assistance of counsel and to confrontation of witnesses "are rights which are 27 35 not contemplated by the constitution in connection with preliminary proceedings"); Ex 1 parte Craig, 6 F Cas 710, 711 (CCED Pa 1827) (No 3,321) ("The constitution, by one of 2 its amendments, has secured to every person under a criminal prosecution * * * the 3 privilege of having the assistance of counsel to defend him."); United States v. Bollman, 4 24 F Cas 1189, 1191 n 5 (CCDC 1807) (No 14,622) (the constitutional right to counsel 5 "cannot apply to the stages of prosecution previous to the impanelling [of] a grand jury"); 6 State v. Keeran, 5 RI 497, 504 (1858) (the state constitutional guarantee "secures to 7 persons prosecuted for crime certain rights of trial"); Trulock v. The State of Iowa, 1 Iowa 8 515, 519 (1855) ("[T]he constitution guaranties to every person charged with [a] crime, 9 the assistance of counsel." (Emphasis added.)). 10 In our review of the historical record, we have located no evidence that, 11 before the Civil War, the scope of the constitutional right to the assistance of counsel 12 would have been understood to include assistance before a criminal defendant's 13 arraignment; what limited evidence that exists reveals that the constitutional guarantee 14 was understood uniformly to apply to the conduct of the trial and, perhaps, post- 15 arraignment trial preparation. See Trulock, 1 Iowa at 519 (although the guarantee applies 16 only to one "charged with crime," counsel should be appointed thereafter "at such a time, 17 as that he could truly be of aid and assistance to the accused"); Allen v. The State of 18 Georgia, 10 Ga 85, 90-91 (1851) (right to compulsory process, in same constitutional 19 provision as right to counsel "in all criminal prosecutions," is triggered "so soon as a 20 party is charged with a crime and bound to answer, or committed for it"). 21 That the right to counsel would have been understood to concern the 22 36 conduct of the trial is not surprising when it is recalled that, before the Civil War, 1 organized police forces as we know them did not exist, professional prosecutors were 2 rare, criminal investigations of the sort that are familiar today did not occur, and the 3 evidence against a criminal defendant ordinarily was marshalled during the trial itself. 4 See generally Samuel Walker, Popular Justice, A History of American Criminal Justice 5 49-80 (2d ed 1998) (describing transformation of American criminal justice system from 6 1820-1900); Lawrence M. Friedman, Crime and Punishment in American History 66-73 7 (1993) (recounting the "professionalization" of the system of criminal justice during the 8 nineteenth century).12 "The Framers," as one leading historian of the Sixth Amendment 9 right to counsel has observed, "had little need to be concerned with a right to counsel in 10 pretrial proceedings because in their time such proceedings were insignificant." James J. 11 Tomkovicz, Standards for Invocation and Waiver of Counsel in Confession Contexts, 71 12 Iowa L Rev 975, 982 (1986). 13 As the nature of law enforcement and public criminal prosecution changed 14 12 During the colonial era, most criminal cases were prosecuted privately. See generally Comment, An Historical Argument for the Right to Counsel During Police Interrogation, 73 Yale LJ 1000, 1041 (1964) ("[In colonial America, t]he power of the state was not marshalled against the accused until the trial; there were no police and, though some states seem to have had prosecutors, private prosecution was the rule rather than the exception." (Footnotes omitted.)). A victim of crime would file a complaint with a local justice of the peace, who would certify the allegation and authorize a constable to make an arrest. Public prosecutors emerged only gradually, with private prosecutions predominating through the mid-nineteenth century. See generally Walker, Popular Justice at 29 (reporting that "most criminal prosecutions continued to be privately initiated through the mid-nineteenth century"). 37 in the late-nineteenth and early-twentieth centuries, however, courts began to question 1 whether the scope of the right to counsel should be expanded to accommodate those 2 changes. But it was not until well into the twentieth century that courts began to expand 3 the scope of the right to the assistance of counsel to reach pretrial states of a criminal 4 prosecution. As late as 1955, a leading commentator on the history of the right to counsel 5 commented that, as to the state courts, "[t]he general attitude seems to be that matters 6 antecedent to trial are not essential to the fairness of the subsequent proceeding" and that, 7 as a result, the scope of the constitutional right to counsel was understood to be "bounded 8 by arraignment and judgment[.]" Beaney, The Right to Counsel at 127, 129. 9 Sixth Amendment doctrine similarly began to undergo something of a 10 transformation in response to changes in law enforcement and criminal prosecution. But, 11 again, that transformation did not occur until well into the twentieth century. The United 12 States Supreme Court's decision in Powell v. Alabama, 287 US 45, 53 S Ct 55, 77 L Ed 13 158 (1932), is commonly regarded as the watershed decision in that regard. In that case, 14 the Court concluded that, under the Due Process Clause of the Fourteenth Amendment, 15 an individual in state court who has been charged with the commission of a crime 16 "requires the guiding hand of counsel at every step in the proceedings against him." Id. 17 at 69 (emphasis added). 18 In subsequent cases, the Court expanded on the notion that the right to 19 counsel guarantee of the Sixth Amendment and the guarantee of fundamental fairness 20 embodied in the Due Process Clause of the Fourteenth Amendment may require the 21 assistance of counsel at various "critical stages" of a criminal proceeding before the trial 22 38 itself. See, e.g., Iowa v. Tovar, 541 US 77, 80-81, 124 S Ct 1379, 158 L Ed 2d 209 1 (2004) (the entry of a guilty plea is a "critical stage" to which the right to counsel 2 applies); United States v. Wade, 388 US 218, 236-37, 87 S Ct 1926, 18 L Ed 2d 1149 3 (1967) (post-indictment lineup is a "critical stage"); Massiah v. United States, 377 US 4 201, 205-06, 84 S Ct 1199, 12 L Ed 2d 246 (1964) (post-indictment interrogation by 5 undercover government agent is a "critical stage"). 6 The Court has justified its extension of the right to various post-indictment, 7 pretrial stages by reference to concerns for fundamental fairness and a recognition that 8 the realities of modern criminal procedure often make pretrial assistance of counsel 9 essential to an accused's defense at trial. See, e.g., Ash, 413 US at 310 ("This extension 10 of the right to counsel to events before trial has resulted from changing patterns of 11 criminal procedure and investigation that have tended to generate pretrial events that 12 might appropriately be considered to be parts of the trial itself."); Brewer v. Williams, 430 13 US 387, 398, 97 S Ct 1232, 51 L Ed 2d 424 (1977) (assistance of counsel before trial "is 14 indispensable to the fair administration of our adversary system"); Powell, 287 US at 57 15 ("[F]rom the time of their arraignment until the beginning of their trial, when 16 consultation, thoroughgoing investigation and preparation were vitally important, the 17 defendants did not have the aid of counsel in any real sense, although they were as much 18 entitled to such aid during that period as at the trial itself."). 19 But the Court repeatedly has emphasized that such considerations pertain 20 only to the scope of the right to counsel, after the right has "attached" upon the initiation 21 of a "criminal prosecution." See, e.g., Rothgery v. Gillespie County, 554 US 191, 198, 22 39 128 S Ct 2578, 171 L Ed 2d 366 (2008) ("The Sixth Amendment right of the 'accused' to 1 assistance of counsel in 'all criminal prosecutions' is limited by its terms: 'it does not 2 attach until a prosecution is commenced.' " (quoting McNeil, 501 US at 175)); United 3 States v. Gouveia, 467 US 180, 187, 104 S Ct 2292, 81 L Ed 2d 146 (1984) (Sixth 4 Amendment "right to counsel attaches only at or after the initiation of adversary judicial 5 proceedings"); Brewer, 430 US at 398 (right to counsel attaches when "judicial 6 proceedings have been initiated against [the accused] 'whether by way of formal charge, 7 preliminary hearing, indictment, information, or arraignment' " (quoting Kirby v. Illinois, 8 406 US 682, 689, 92 S Ct 1877, 32 L Ed 2d 411 (1972))).13 And the Court has cautioned 9 against conflating the distinct issues of attachment and scope. See, e.g., Rothgery, 554 10 13 In particular, the Court has held that the right to counsel does not extend to questioning by police that occurs before the accused has been formally charged. Directly on point in that regard is the Court's decision in Moran v. Burbine, 475 US 412, 429-30, 106 S Ct 1135, 89 L Ed 2d 410 (1986), in which it concluded that "it makes little sense to say that the Sixth Amendment right to counsel attaches at different times depending on the fortuity of whether the suspect or his family happens to have retained counsel prior to interrogation. More importantly, the suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment's intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor. Its purpose, rather, is to assure that in any 'criminal prosecutio[n],' U.S. Const., Amdt. 6, the accused shall not be left to his own devices in facing the 'prosecutorial forces of organized society.' By its very terms, it becomes applicable only when the government's role shifts from investigation to accusation." (Citations omitted; emphasis added.) 40 US at 211 (parties should avoid "the mistake of merging the attachment question 1 (whether formal judicial proceedings have begun) with the distinct 'critical stage' question 2 (whether counsel must be present * * *)"). 3 In short, the evidence concerning the historical context within which the 4 framers of the Oregon Constitution adopted Article I, section 11, strongly indicates that 5 the constitutional right to counsel would have been understood to guarantee a right to 6 counsel at trial and, perhaps, some measure of preparation for trial following the 7 commencement of formal adversary proceedings. There is, however, a complete absence 8 of evidence that the framers would have contemplated a right to counsel that extended 9 before a defendant had been formally accused. To the contrary, even when state and 10 federal courts began to extend the right to counsel to stages of a criminal prosecution 11 before the trial itself -- nearly a century after the adoption of the Oregon Constitution -- 12 they uniformly adhered to the conclusion that the text of the guarantee and its underlying 13 purpose could not justify extending the right to encounters before the initiation of formal 14 criminal proceedings. 15 3. Oregon Case Law 16 The early Oregon case law following the adoption of Article I, section 11, 17 was entirely consistent with the foregoing summary of the commonly held understanding 18 of the constitutional right to counsel. In State v. Butchek, 121 Or 141, 144, 253 P 367, 19 reh'g den, 254 P 805 (1927), for example, the defendant walked into the Portland Police 20 Station and told a police officer that he had killed his wife with an ax. Police officers 21 accompanied the defendant to his home, where he had told them that the body remained. 22 41 The officers found the victim's body at the home about four feet away from a camping ax. 1 Id. at 145. Back at the station, defendant reported to a deputy district attorney the details 2 of the offense. After he was later charged and convicted of murder based, in part, on his 3 self-incriminating disclosures to police and the deputy district attorney, the defendant 4 argued that the conviction should be overturned on the ground that he did not have the 5 benefit of counsel during the police questioning at the station. In particular, the 6 defendant argued that, pursuant to Article I, section 11, he was entitled to counsel "in the 7 trial of the case or at any point of the investigation by the state." Id. at 152. This court 8 rejected that contention, reasoning that, when the defendant was arrested, charged, and 9 brought before a magistrate, he had been informed of his constitutional right to the 10 assistance of counsel, and that was all that the law required. Id. at 153. 11 When, in the mid-twentieth century, the United States Supreme Court 12 began expanding the right to counsel under the Sixth Amendment right to counsel at 13 "critical stages" after the initiation of adversary judicial proceedings, parties began to 14 raise before this court whether the state constitutional right to counsel under Article I, 15 section 11, is to be even more expansive than the federal right. The court's initial 16 response was to mirror the reasoning of the United States Supreme Court's Sixth 17 Amendment cases. 18 In State v. Newton, 291 Or 788, 790, 636 P2d 393 (1981), for example, the 19 defendant had been arrested for driving under the influence of intoxicants and taken to 20 the county jail, where police asked him to take a breath test. The officer administering 21 the test informed the defendant that he did not have the right to have an attorney present 22 42 at the test. Id. When the defendant was later charged and tried, in part, on the basis of 1 the breath test results, he moved to suppress the test results on the ground that he had 2 been denied his right to counsel under Article I, section 11. The plurality began its 3 analysis by explaining that "[t]he right to counsel attaches to certain evidence-gathering 4 processes which are deemed 'critical stages' of the prosecution as an extension of a 5 defendant's right to representation by counsel in court." Newton, 291 Or at 802. 6 According to the plurality, 7 "[a]ny pre-trial adversarial contact of the state and a defendant at which 8 some benefit of counsel would be lost if counsel is not present, that is, at 9 which the state's case may be enhanced or the defense impaired due to the 10 absence of counsel, may be considered a critical stage of the prosecution * 11 * *." 12 Id. at 802-03. Yet, the plurality explained, "[n]ot every evidence-gathering procedure is a 13 critical stage." Id. at 803. The plurality noted, citing Sixth Amendment case law, that the 14 United States Supreme Court has concluded that "an adversarial contact is a critical stage 15 in the prosecution only after the defendant is formally charged[.]" Id. Because the 16 defendant in Newton had not yet been formally charged when he was asked to submit to 17 the breath test, "no right to counsel under either constitutional provision had yet 18 attached." Id. at 805. 19 The court continued to tie its Article I, section 11, right to counsel analysis 20 to the United States Supreme Court's Sixth Amendment jurisprudence in Sparklin. As we 21 mentioned in our earlier discussion of that decision, the defendant had been arrested and 22 arraigned on a forgery charge. Later that day, police questioned the defendant about an 23 unrelated offense and did so without notice to the defendant's attorney and without an 24 43 opportunity to consult with counsel. During that interrogation, the defendant confessed 1 to a murder. In the later prosecution for that murder, the defendant complained that the 2 police had obtained the confession in violation of his Sixth Amendment and Article I, 3 section 11, right to counsel. This court rejected the contention, holding that the right to 4 counsel is offense-specific. 5 The court began its analysis by addressing the point at which the right to 6 counsel guaranteed by Article I, section 11, "begins." Sparklin, 296 Or at 92. The court 7 noted that "[t]he state had already initiated a 'criminal prosecution' against defendant and 8 as a result his right to an attorney under [A]rticle I, section 11, arose," consistently with 9 federal Sixth Amendment right to counsel analysis. Id. At that point, in a footnote, the 10 court stated that "[w]e are not presented in this case with the question whether the 11 [A]rticle I, section 11, right to an attorney may attach at any time earlier than the federal 12 right." Id. at 92 n 9. The court suggested that "[t]here can be no question that the right to 13 an attorney during the investigative stage is at least as important as the right to counsel 14 during the trial itself." Id. In any event, the court concluded, the scope of the right 15 guaranteed by Article I, section 11, in " 'criminal prosecutions [is] not limited to "critical 16 stages" of such prosecutions.' " Id. (quoting State ex rel Russell v. Jones, 293 Or 312, 17 321, 647 P2d 904 (1982)). 18 The court then turned to the merits of the matter before it. Addressing the 19 scope of the right to counsel under Article I, section 11, the court held that "the [A]rticle 20 I, section 11 guarantee of an attorney, like the federal counterpart, remains focused on the 21 trial; that is, it is the protection of rights to which a defendant is entitled in the trial itself 22 44 which the guarantee is intended to preserve." Sparklin, 296 Or at 94. Because, "[i]t is 1 the fairness of the 'criminal prosecution' which counsel's presence helps to ensure," the 2 court explained, "[t]he [A]rticle I, section 11 right to an attorney is specific to the 3 criminal episode in which the accused is charged." Id. at 95. According to the court in 4 Sparklin, the limitations placed on the state's contact with a represented defendant "do not 5 extend to the investigation of factually unrelated criminal episodes." Id. 6 Five years later, in State v. Spencer, 305 Or 59, 750 P2d 147 (1988), the 7 court took up the issue left unanswered in the Sparklin footnote about whether the right to 8 counsel under Article I, section 11, begins earlier than the filing of formal charges against 9 a defendant. In Spencer, the defendant had been arrested for driving under the influence 10 of intoxicants and taken to the county jail, where a police officer asked him to take a 11 breath test. Id. at 61. When the defendant asked whether he could consult with counsel, 12 the officer told him that he could not do so. Id. The defendant later unsuccessfully 13 moved to suppress the breath test results on the ground that they had been obtained in 14 violation of his Article I, section 11, right to counsel. The Court of Appeals, relying on 15 Newton, affirmed. State v. Spencer, 82 Or App 358, 728 P2d 566 (1986). This court, 16 however, reversed, holding that Newton had been wrongly decided. 17 The court began by observing that the right to counsel under Article I, 18 section 11, exists only in "criminal prosecutions." Spencer, 305 Or at 73. The court 19 noted that, although a plurality in the earlier case had concluded that the point at which a 20 "criminal prosecution" begins is the filing of a formal charge, "[w]e are not persuaded by 21 the Newton plurality's reasons for concluding that the right to seek the advice or 22 45 assistance of counsel under Article I, section 11, attaches only after a formal charge is 1 filed." Id. at 74. The court said that, instead, the appropriate beginning point for the 2 existence of the right to counsel is arrest, not formal charging. The court explained: 3 "A person taken into formal custody by the police on a potentially 4 criminal charge is confronted with the full legal power of the state, 5 regardless of whether a formal charge has been filed. Where such custody 6 is complete, neither the lack of a selected charge nor the possibility that the 7 police will think better of the entire matter changes the fact that the arrested 8 person is, at that moment, ensnared in a 'criminal prosecution.' The 9 evanescent nature of the evidence the police seek to obtain may justify 10 substantially limiting the time in which the person may exercise his or her 11 Article I, section 11, right, but it does not justify doing away with it." 12 Id. 13 It is important to note that, although the court in Spencer departed from the 14 federal right to counsel doctrine in recognizing that an accused enjoys the right to counsel 15 upon arrest, it adhered to a distinction key to right to counsel analysis under both state 16 and federal constitutions -- namely, the distinction between when the right to counsel 17 commences, or "attaches," and the scope of that right after attachment has occurred. The 18 court in Spencer clearly noted that, although the right to counsel under Article I, section 19 11, attaches upon arrest, the particular circumstances -- the "evanescent nature of the 20 evidence the police seek to obtain," in the case of a DUII investigation -- may justify 21 limiting the exercise of the right. Id. at 74. 22 That distinction was confirmed more recently in State v. Durbin, 335 Or 23 183, 63 P3d 576 (2003), in which this court addressed the scope of the right to counsel 24 after a defendant has been taken into custody for driving into the influence and asked to 25 consent to a breath test. Citing Spencer, the court stated that "the right to counsel at that 26 46 stage of the criminal prosecution is not as broad as the right to counsel that an accused 1 enjoys at trial." Id. at 189. 2 Even more recently, in State v. Tiner, 340 Or 551, 135 P3d 305 (2006), cert 3 den, 549 US 1169 (2007), this court concluded that the scope of the right to counsel did 4 not include a right to consult with counsel before police photographed a jailed defendant's 5 incriminating tattoos. Id. at 563. Indeed, the court expressly concluded that the 6 collection of such evidence "was not a critical stage in the prosecution." Id. at 564 7 (emphasis added). 8 It could be argued that the court's holding in Spencer that the right to 9 counsel under Article I, section 11, is triggered upon arrest is difficult to reconcile with 10 the text of Article I, section 11, and its reference to the rights of an "accused" -- that is, 11 one who has been subject to a formal "accusation" that has been reduced to writing -- as 12 well as the historical context for the adoption of that provision, which, as we have 13 described, reveals that it would have been understood to apply, at the earliest, upon 14 formal charging. We need not resolve any such tensions in this case, however, for the 15 prior decisions of this court are consistent that, at the earliest, the right to counsel under 16 Article I, section 11, attaches at the time a defendant has been taken into formal custody. 17 4. Application 18 That leads us to this case, in which defendant argues that we should extend 19 the Article I, section 11, right to counsel to apply to any police investigation, even before 20 arrest. As the sole authority for that proposition, defendant cites the footnote in Sparklin, 21 in which the court suggested the possibility that the right to counsel under Article I, 22 47 section 11, could attach at some time earlier than the filing of formal charges, as is the 1 case under the Sixth Amendment. 2 Defendant's reliance on Sparklin for the broad extension of the right to 3 counsel under Article I, section 11, that he urges on us is untenable. To begin with, the 4 suggestion in Sparklin was just that -- a suggestion. As we have noted, the footnote on 5 which defendant relies begins with the disclaimer that, "[w]e are not presented in this 6 case with the question whether the [A]rticle I, section 11 right to an attorney may attach 7 at any time earlier than the federal right." Sparklin, 296 Or at 92 n 9. 8 Moreover, it must be remembered that the court's suggestion that the 9 "investigative stage" can be as important as the trial itself, referred to the investigative 10 stage of a criminal prosecution. The court did not suggest that, as defendant in this case 11 insists, the right to counsel applies any time police contact an individual, even before a 12 prosecution has been commenced. Indeed, the court explained that the basis for its 13 assertion was the text of Article I, section 11, which guarantees a right to counsel "in 'all 14 criminal prosecutions,' [and is] not limited to 'critical stages' of such prosecutions." 15 Sparklin, 296 Or at 92 n 9 (quoting Russell, 293 Or at 321) (quotation marks omitted). 16 Aside from that, defendant's argument that we should recognize a right to 17 counsel when invoked in response to any police inquiry because of its "importance" 18 reflects a fundamental misapprehension of the distinction between when a right to 19 counsel commences, or "attaches," and the scope of that right after it has attached. The 20 text of Article I, section 11, makes clear that the right "to be heard by * * * counsel" may 21 be invoked by "an accused" only in a "criminal prosecution." Consistently with that text, 22 48 this court has concluded that the right to counsel under Article I, section 11, commences 1 upon the initiation of a "criminal prosecution." State v. Gilmore, 350 Or 380, 385, ___ 2 P3d ___ (2011); Randant, 341 Or at 70; Spencer, 305 Or at 74. After the right attaches, 3 the court may evaluate the particular circumstances, the nature of the evidence, and the 4 like to determine the scope of the right to counsel. Tiner, 340 Or at 564; Durbin, 335 Or 5 at 189; Spencer, 305 Or at 74. Those considerations, however, do not define when the 6 "criminal prosecution" within the meaning of Article I, section 11, has been initiated. 7 Turning to the facts of this case, the result is, once again, straightforward. 8 Defendant attempted to invoke an Article I, section 11, right to counsel before he was 9 formally charged with a criminal offense, before he was arrested for having committed a 10 criminal offense -- in fact, some eight months before police elicited the incriminating 11 statements from him. Likewise, at the time when police obtained the statements from 12 him through the artifice of the contrived instant messaging and telephone conversations 13 with the victim, defendant was not under arrest, and no formal charges had been brought 14 against him. In no sense can it reasonably be held that, at the time he made those 15 incriminating statements, he was an "accused" in a "criminal prosecution." In short, in 16 eliciting those statements from him without the benefit of counsel, the police did not 17 violate defendant's right to counsel under Article I, section 11. 18 The decision of the Court of Appeals is reversed. The order of the circuit 19 court is reversed, and the case is remanded to the circuit court for further proceedings. 20

b7151aed04f0104d854890572459c80680dbd34b72523f65c411226ceaee01f0

2011-06-30T00:00:00Z

90eeeacd-4c95-42d2-9ae7-5a815471db66

State v. Brumwell

S054854

oregon

Oregon Supreme Court

Filed: March 25, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent, v. JASON VAN BRUMWELL, Appellant. (CC 04C46225; SC S054854) En Banc On automatic and direct review of the judgment of conviction and sentence of death imposed by the Marion County Circuit Court. Joseph C. Guimond, Judge. Argued and submitted January 11, 2011. Shawn E. Wiley, Chief Deputy Public Defender, Salem, argued the cause and filed the brief for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Ryan Kahn, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With him on the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, Timothy A. Sylwester, Douglas F. Zier, Jamie Contreras, and Erika L Hadlock. KISTLER, J. The judgment of conviction and sentence of death are affirmed. KISTLER, J. This case is before us on automatic and direct review of defendant's judgment of conviction and sentence of death. On review, defendant assigns error to 33 of the trial court's rulings. For the reasons set out below, we affirm the judgment of conviction and sentence of death. In 1996, defendant was sentenced to life imprisonment without the possibility of parole for the aggravated murder of one person and the attempted aggravated murder of another. The aggravated murder and attempted aggravated murder occurred during the robbery of a Dari Mart, a convenience store in Eugene. In 2004, while serving that sentence at the Oregon State Penitentiary, defendant and another inmate, Gary Haugen, killed a third inmate. A grand jury indicted defendant and Haugen for aggravated murder,(1) and a jury found both defendants guilty of that crime after a joint guilt-phase trial. The facts relating to the inmate's murder and the joint guilt phase of defendant's trial are set out in State v. Haugen, 349 Or 174, 243 P3d 31 (2010). Because the only issues that we discuss in this opinion concern the penalty phase of defendant's trial, we do not restate those facts here. The trial court held separate penalty-phase hearings for defendant and Haugen. Much of the evidence at defendant's penalty-phase hearing focused on the aggravated murder and attempted aggravated murder that occurred during the Dari Mart robbery, and defendant's primary assignments of error on review focus on the admission of evidence regarding satanism and death metal music that led up to those crimes. To put defendant's arguments in perspective, we recount that evidence briefly. In 1994, defendant was 18 years old. He had dropped out of North Eugene High School and was working, off and on, at a local Goodwill -- a job that his mother had helped him get after telling him that he needed to go back to school, get a job, or leave home. Defendant's day-to-day life revolved around his friends. Defendant and three of his friends formed what one of them described as "just kind of a garage-band-type thing. Nothing real serious." The four of them would hang out at defendant's parents' house -- smoking pot, playing music, writing songs, and listening to music. The group was interested primarily in death metal music, although its members also had some interest in heavy metal and jazz. In explaining the difference between death metal and heavy metal, one member of the group testified that "death metal music would be considered heavier -- heavier distortion, guttural vocals, lyrics that would be more -- generally, it would be violent lyrics towards other people or -- or satanic as a general -- general idea of what the lyrics would be about."(2) One of the group's favorite death-metal bands was Deicide, and each member of the group had his own copy of Deicide's eponymous debut album Deicide. That album contains a series of songs that focus on violence and satanic ritual; among other things, the songs mimic traditional Christian rituals, replacing references to Christian symbols and images with satanic or demonic ones.(3) When asked whether the group referred to themselves in 1994 as satanists, one member of the group said, "Yeah, I believe we -- we would refer to ourselves as that." When asked what it meant to be a satanist, he replied that he "d[idn't] know exactly what it meant to me then [when the Dari Mart murder occurred] because I was -- I was quite young." He explained: "I think it was just a lot of anger, and I -- and I related to -- I related to the -- to the music and the lyrics and the anger and all of that stuff, and for some reason I called that satanism, the rebelling against my parents and peers and the people that I felt had hurt me * * *." One of defendant's friends did not think that defendant personally was a satanist. According to that witness, defendant "didn't really have any beliefs as in -- such as like I'm a satanist or a God worshipper, or anything like that." The witness acknowledged that there may have been "symbolisms and stuff like that," but he explained that "there was nothing satanism really about [defendant]," except when he and another friend, Mike Hayward, were together. Consistent with the witness's testimony that there may have been "symbolisms and stuff like that," the state elicited evidence that defendant had used a hot knife blade to burn an image of an inverted cross on his body. An inverted cross is a satanic symbol, which can be found depicted in the liner notes of Deicide. On April 10, 1994, defendant and the three other band members got together at defendant's house around noon. They smoked some marijuana, put on some music, and "[got] the guitars out." When their marijuana ran out, they began thinking of ways to get money so that they could buy more marijuana and "hopefully, some musical instruments, or something, to -- for the band." Someone suggested "a robbery at an ATM sort of like a -- some type of mugging, or something," but the group "decided that wasn't something we were going to do[.]" Then they thought of robbing a store, and defendant suggested a convenience store, the Dari Mart, as an "isolated, you know, out-of-the-way spot" that would be easy to rob. The four of them took a trip to the store that afternoon to check out the store's security system and returned to defendant's house to "brainstor[m] * * * the easiest and best way to do it[.]" They discussed, for example, whether it would be better to shut off the security system or tie the employees up. At that point, there was no discussion of either weapons or murder. One member of the group left to go to work, and the remaining three members (defendant, Brock, and Rabago) went over to the house of one of defendant's other friends, Mike Hayward. After they met with Hayward, the four of them went to Rabago's house where they picked up weapons -- metal bars, a slag hammer, and a knife. From there, they returned to defendant's house where they continued to plan the robbery. At some point, they decided that they were going to kill "just anyone at the store * * * because we didn't want any witnesses left." As they were planning the robbery and murder, they talked about "leav[ing] some kind of satanic graffiti on the wall" of the Dari Mart. Specifically, they discussed spray-painting the "trifixion," a symbol depicted in the liner notes of Deicide, on the Dari Mart wall.(4) At defendant's penalty-phase hearing, Rabago acknowledged that he previously had testified "that [they] did this, in referring to the [Dari Mart] murder, in the essence of Glen Benton and Chris Barnes."(5) Glen Benton is the bass player and vocalist for Deicide and the person who, according to the liner notes for Deicide, designed the trifixion that the group considered painting on the Dari Mart wall.(6) The group never carried out their idea of painting the trifixion on the wall of the Dari Mart. They did, however, go forward with the rest of their plan. That evening, defendant, Hayward, Rabago, and Brock returned to the Dari Mart one more time to check out the store. This time, Hayward bought cigarettes from one of the clerks, who carded him. Then, they went back to defendant's house where they continued to talk about robbery and murder. Around nine that evening, the four men returned to the Dari Mart and parked in a nearby church parking lot, where they sat in their car listening to Deicide and waiting until shortly before the Dari Mart closed at eleven. At defendant's penalty-phase hearing, Brock reaffirmed his earlier testimony "that the music [on the Deicide album] was significant in relation to this killing." As he explained, "[w]e related to the -- to the lyrics of the music, the subject such as murder that it [Deicide] discussed in the lyrics, the -- the subject of mutilation and that type of thing."(7) Shortly before the Dari Mart closed at eleven, defendant, Hayward, Brock, and Rabago went into the store. Two women were working in the store.(8) One woman was stocking the walk-in cooler in the back while the other was at the front of the store. Hayward smiled at the woman at the front of the store and waved to her as he walked by. (She was the person who had carded him earlier that day when he bought cigarettes.) Hayward went to the back of the store, and Brock followed him. The two of them went into the walk-in cooler where the other woman was working. She looked at Hayward and Brock for about 10 to 15 seconds. No one said anything. As Brock later testified, the woman "kind of turned her back towards us and that's when [Hayward] struck her with the metal bar that he had." She "kind of stumbled." Hayward hit her again, and "she kind of fell." "[H]e struck her a few more times * * *." At that point, Brock left, went outside, and sat in the car. As he explained, "it just -- it all kind of got surreal almost." The pathologist who examined the woman's body testified that there were "12 to 15 different impacts to the head," resulting in multiple fractures of her skull. At one point, her skull "was actually caved in." There were also defensive wounds to her hands, showing that she had not died immediately. The pathologist concluded that: "[t]he cause of death was -- were the head injuries, skull fractures with brain contusions, which are bruises, and also lacerations, which are tears of the brain." Defendant and Rabago stayed at the front of the store, where the other woman was working behind the counter. She testified that, as she heard the walk-in cooler door open, defendant "ran towards me with a metal bar over his head and like growled at me. And then, when he got up to me, he told me that he was just kidding." The clerk testified during the penalty phase that, after the robbery, she listened to death metal music, and the growl that defendant emitted as he ran towards her was similar to the guttural vocals she heard on the death metal album. Defendant took the money from the cash register, about $40, and then went back to the cooler while Rabago stayed at the front of the store with the young woman. After a couple of minutes, defendant came back to the front of the store. Hayward was behind him. Defendant told the clerk that they were not going to hurt her, that they wanted her to go to the back of the store with them, and that they were just going to tie her up. The clerk, however, noticed blood sprayed on Hayward's face and "realized that maybe that it might be more than a robbery." As they took her to the back of the store, defendant was carrying "a metal piece of rebar," while Hayward had "a longer piece of metal bar." When they got to the back of the store, Hayward told defendant to hit the clerk. As the clerk testified, "[Defendant] started beating me over the head, and I fell against this back door here [pointing to a map]. And I kept getting back up, and he continued to beat me * * * [o]ver my head and my arms. I was trying to protect my head. And they hit my legs, and stuff like that." After defendant "had done it for a while," he began saying over and over "die, bitch, die." Initially, only defendant was hitting the young woman. Then, "the other guys came around and they started kicking and beating [her] as well." At one point, she heard Hayward say to defendant, "I killed mine. Why can't you kill yours?" Later, as she was lying on the floor, the clerk heard defendant tell Rabago to get a knife. As she later testified, "And I -- I was stabbed, but I never did see a knife." Hayward and Rabago left. Defendant paused, and the clerk "got enough strength to get up" and try to run for safety to a nearby bathroom, where she could lock herself in. As she explained, "I had just like seconds [to get away. But a]s soon as I ran past [defendant], he was right there with me." He said, "Oh, no, you don't. And he pushed the door, and I didn't have as much strength as I did because he had crushed my arms with the rebar." The clerk "fell back onto the toilet, where [defendant] continued to beat [her] over the head." She testified that, "at this point in time, I guess I had lost so much blood that I just kind of -- I had to keep laying my hands in my lap because they were -- I couldn't hold them up anymore." She heard defendant ask, "Just why won't you die, bitch?" And then, "[defendant] decided to take the bar and shove it into my mouth like he was going to, like, shove it out the back of my neck.[(9)] And so, I tried to hold onto it. And he continued doing that and then he knocked my teeth out and then continued beating me again." At that point, the front door buzzer sounded. A customer had come into the store just before closing time to buy some sour cream, tripping the buzzer as he opened the door. Defendant stopped and looked towards the front of the store, as if he were trying to see if someone had come in. In that moment, the clerk shut the bathroom door, threw her weight against it, and managed to get the hook through the latch on the door. The customer found the sour cream and was waiting at the counter to pay. As he later testified, he could not say how long he waited. He was not keeping track of time. Then, he noticed two men walking toward the front door. One of them was "carrying a knife and covered with blood up to his elbow." The two men did not make eye contact with the customer but walked by "[w]ith purpose. Pretty much [in] a hurry." On realizing the significance of what he had seen, the customer "bolted for home and called 9-1-1." The clerk survived. When the ambulance brought her to the emergency room, she was in shock, having lost 40 percent of her blood. Of most concern to the doctor who treated her was the profuse bleeding from her scalp. He testified that "there were multiple extensive gaping lacerations" in her scalp. The bone underneath her scalp was exposed, and there were other areas where the scalp "was loose on the -- on top of the bone of the skull." Additionally, she had broken teeth, fractured arms, and multiple stab wounds on her arms and scalp and through her hand. The doctor who provided medical care for the clerk had spent part of his career as a trauma doctor in an emergency room in Baltimore, where he had had extensive experience treating life-threatening injuries. When asked whether he had ever seen such a beating, the doctor replied, "I have never seen such a severe beating, no, in all of my years of trauma call." In addition to that evidence, the jury heard evidence regarding the difficulties defendant had faced growing up, his disciplinary record in prison, and the character witnesses from prison whom defendant called on his behalf. The jury also had before it evidence regarding defendant and Haugen's murder of the inmate from the guilt phase of defendant's trial, as well as defendant's allocution to the jury. After considering that evidence, the jury sentenced defendant to death. On review, defendant assigns error to 33 rulings that the trial court made during the guilt and penalty-phases of his trial. Our decision in State v. Haugen, 349 Or at 180-95, answers many of the guilt-phase assignments of error that defendant raises in this case, and we write to address two of defendant's assignments of error and part of a third assignment of error that challenge the trial court's rulings regarding the penalty phase of defendant's trial.(10) Defendant's first and second assignments of error are directed at the trial court's rulings admitting evidence of satanism and death metal music during the penalty phase of his trial. Before the penalty phase began, defendant filed two motions in limine. One challenged the admission of any evidence regarding satanism; the other, the admission of any evidence regarding death metal music. In response, the state noted that, in State v. Hayward, 327 Or 397, 406-09, 963 P2d 667 (1998), this court had held that evidence of satanism and death metal music was admissible to prove Hayward's motive for the Dari Mart crimes. Relying on Hayward, the trial court denied defendant's motions in limine. During the penalty phase, each time that the state offered evidence regarding satanism or death metal music, defendant objected for the reasons set out in his motions in limine, and the trial court overruled his objections. On review, defendant reiterates the arguments that he made in his motions in limine. He contends that the evidence was not relevant to any penalty phase issue; that even if the evidence were relevant, its prejudicial effect substantially outweighed its probative value; and that the admission of that evidence violated his state and federal rights to freedom of religion and expression. We begin with defendant's argument that evidence that he identified with satanism and preferred death metal music was not relevant to any issue that the jury had to decide in the penalty phase. More specifically, defendant reasons that his religious affiliation and musical preference, without more, do not prove that he is likely to be dangerous in the future (the issue that the second death penalty question poses), nor do they constitute, he contends, "aggravating evidence" that the jury may consider in deciding whether to impose the death penalty (the issue that the fourth death penalty question poses). Defendant argues that his identification with satanism and his preference for death metal music would be relevant only if the state introduced evidence from which the jury could find that satanists or death metal fans either advocate or commit violent acts. After the parties present evidence during the penalty phase of an aggravated murder trial, the jury has to answer four questions: (1) whether the defendant deliberately committed the murder; (2) whether "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society"; (3) whether, if presented by the evidence, the murder was an unreasonable response to any provocation by the deceased; and (4) "[w]hether the defendant should receive a death sentence." ORS 163.150(1)(b). The jury is instructed to answer the fourth question "no" if, "after considering any aggravating evidence and any mitigating evidence, * * * any circumstances of the offense and any victim impact evidence * * *, one or more of the jurors believe that the defendant should not receive a death sentence." ORS 163.150(1)(c)(B). Evidence is relevant and thus admissible in the penalty phase if the evidence increases or decreases, even slightly, the probability of the existence of facts material to those penalty-phase questions. See OEC 401; State v. Cox, 337 Or 477, 485, 98 P3d 1103 (2004).(11) This court has long recognized that a defendant's prior criminal acts are relevant to the second question that the jury must decide in the penalty phase -- whether the defendant will commit criminal acts of violence that constitute a continuing threat to society. State v. Fanus, 336 Or 63, 89, 79 P3d 847 (2003), cert den, 541 US 1075 (2004); State v. Moore, 324 Or 396, 417, 927 P2d 1073 (1996); State v. Moen, 309 Or 45, 73, 786 P2d 111 (1990). Evidence that, in 1994, defendant aided and assisted in the murder of one person and personally attempted to murder another was relevant to the jury's determination of his future dangerousness. The jury also could consider those past violent acts as "aggravating evidence" that it weighed along with mitigating evidence in deciding whether, as the fourth question asks, death is the appropriate penalty. Defendant does not dispute that evidence that he committed the Dari Mart crimes was relevant to the issues that the jury had to decide in the penalty phase. He also acknowledges that this court held in Hayward that "death metal music and satanism provided at least one of the motives for [Hayward], Rabago, [defendant], and * * * Brock when they planned and committed the Dari Mart crimes." Hayward, 327 Or at 407. He argues, however, that evidence of death metal music and satanism was not relevant in this case for two reasons. He argues initially that, even though the evidence in Hayward was sufficient to establish that the group's interest in satanism and death metal music was one of the motives for the Dari Mart crimes, the evidence in this case differs. Defendant contends that the evidence in this case was not sufficient to establish a connection between his interest in satanism and death metal music and the commission of the Dari Mart crimes. He argues alternatively that, even if there were sufficient evidence in this case to permit the jury to find that his interest in satanism and death metal music was one of the motives for the commission of the Dari Mart crimes, his motives for committing those crimes were relevant only to the question of guilt or innocence. In defendant's view, his motives were not relevant to the sentencing issues that the jury had to decide in the penalty phase. We begin with defendant's argument that there was no evidence in this record connecting satanism and death metal music to the commission of the Dari Mart crimes.(12) On that issue, the state introduced evidence during defendant's penalty-phase hearing that Deicide was one of defendant, Rabago, and Brock's favorite bands, that each of them had a copy of Deicide, that the lyrics of Deicide extolled satanism and violence, that the group planned on painting a satanic symbol from Deicide on the wall of the Dari Mart, that the group carried out the murder and attempted murder at the Dari Mart "in the essence of" or in homage to Glen Benton (the bass player and vocalist for Deicide who designed the satanic symbol the group considered painting on the Dari Mart wall), that the group listened to Deicide for almost two hours as they sat in the church parking lot waiting to commit the Dari Mart crimes, that the music and lyrics of those songs were "significant in relation" to the murder and attempted murder that the group committed immediately afterwards at the Dari Mart, and that defendant emitted a death metal growl as he ran towards the store clerk with a metal bar raised over his head. Contrary to defendant's argument, there was evidence from which a reasonable juror could find that defendant's (and the group's) interest in satanism and death metal music was not merely coincidental with the crimes that occurred at the Dari Mart; rather, a reasonable juror could find, as this court held in Hayward, that defendant's (and the group's) interest in those subjects provided one of the motives for the crimes committed that night. Defendant argues alternatively that his motives for committing the crimes at the Dari Mart were not relevant to the issues that the jury had to decide in the penalty phase. We reach a different conclusion, for at least three reasons. First, the reasons why defendant committed acts of violence that night at the Dari Mart bear on whether he is likely to commit similar acts in the future; that is, the specific triggers for violence that resulted in the Dari Mart crimes may or may not persist and their existence (or nonexistence) bears on his future dangerousness. Second, the reasons why defendant participated in one murder and attempted to commit another bear on his culpability for those acts, which in turn is relevant to the weight that the jury gives those acts as it considers the aggravating and mitigating evidence in deciding the fourth question -- whether death is the appropriate penalty. Third, beyond the specific triggers for defendant's participation in one murder and his attempt to commit another, the jury could find that the reason why defendant committed those crimes says something more fundamental about his character. A person who participates in one murder and personally attempts to commit another as a way of paying homage to the bass player and vocalist in a band either places an exceedingly small value on human life or lacks empathy for others in a way that makes that person dangerous in the future, or so the jury could find.(13) In sum, the trial court correctly ruled that evidence regarding defendant's interest in satanism and death metal music was relevant to the issues in the penalty phase. Defendant argues alternatively that, even if evidence regarding satanism and death metal music had some minimal relevance, the prejudicial effect of that evidence substantially outweighed its probative value. See OEC 403; Hayward, 327 Or at 407-08 (considering that issue).(14) We review the trial court's ruling on that issue for abuse of discretion. Hayward, 327 Or at 407; Moore, 324 Or at 407. We are aware, as the trial court was, that evidence regarding satanism could prejudice the jury in ways that were unrelated to the reason for its admission. We note, however, that any potential prejudice was tempered somewhat by the witnesses' testimony that the group and defendant's interest in satanism was more a way of expressing anger and disaffection from society than the adoption of any particular creed. Beyond that, evidence regarding satanism and death metal music was integrally related to the murder and attempted murder at the Dari Mart and, as explained above, was relevant to the jury's resolution of the second and fourth questions in the penalty phase. This court concluded in Hayward that, in this context, the "evidence to which [Hayward] object[ed] was not unfairly prejudicial. The trial court did not abuse its discretion in overruling [Hayward's] motion to exclude the evidence on that ground." 327 Or at 408. That conclusion applies equally here. Defendant argues that, even if the evidence was relevant and not unfairly prejudicial, admitting evidence regarding satanism violated his right to freedom of religion under the state constitution. He also argues that admitting evidence regarding satanism and death metal music violated his rights to freedom of religion and association under the First Amendment.(15) We begin with defendant's state constitutional claim.(16) In analyzing freedom of religion claims under the state constitution, the court has distinguished between applying neutral rules to religiously motivated conduct and rules that expressly target religion. Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 368-72, 723 P2d 298 (1986). This court has explained that, when faced with a challenge to the application of a general rule that was "neutral toward religion on its face and in its policy" to religiously motivated conduct, the only issues were the "statutory authority to make such a regulation * * * and an individual claim to exemption on religious grounds." Id. at 368-69. Conversely, when religious activity "is the specific target of th[e] law," the state constitutional inquiry is more exacting. Id. at 369, 372 (explaining that a statute that expressly restricted public school teachers from wearing religious dress in the classroom would be justified if the "religious dress necessarily contravenes the wearer's role or function at the time and place beyond any realistic means of accommodation"). In this case, defendant challenges the trial court's ruling admitting evidence of satanism to prove his motive for committing the Dari Mart crimes. As we understand the trial court's ruling, the trial court concluded that evidence of defendant's motive was admissible without regard to whether the motive for participating in the Dari Mart crimes was pecuniary, religious, or otherwise. The fact that the evidence bore on defendant's motive for committing those crimes was the reason for its admission. Put differently, the trial court applied a neutral rule of evidence -- that evidence of motive is generally admissible -- to what we assume was religiously motivated conduct. As such, Cooper teaches that the trial court's ruling was subject to attack only on the ground that the trial court lacked authority to make the ruling or on the ground that defendant was entitled to "an individual claim to exemption on religious grounds." See id. at 368-69. Defendant does not contend that the trial court lacked authority to admit evidence of motive, nor does he argue for "an individual claim to exemption on religious grounds." That is, defendant does not argue that we should craft an exception for religiously motivated crimes from the neutral rule that evidence of a defendant's motives for committing crimes is generally relevant and admissible. Rather, defendant's argument assumes that the evidence was admitted only to prove that he was an adherent of a disfavored religion, and he argues that evidence admitted for that purpose infringes the free exercise of his religious beliefs. The difficulty with defendant's argument is the assumption that underlies it. As explained above, the trial court admitted the challenged evidence because it bore on defendant's motive for the Dari Mart crimes, without regard to the specific nature of the motive. Given the trial court's religion-neutral ruling, defendant's state constitutional argument fails. Cf. State v. Plowman, 314 Or 157, 165-66, 838 P2d 558 (1992) (upholding, against an Article I, section 8, challenge, a statute that imposed a higher penalty on assaults motivated by racial animus). Relying on Dawson v. Delaware, 503 US 159, 112 S Ct 1093, 117 L Ed 2d 309 (1992), defendant argues that the trial court's rulings admitting evidence of his interest in satanism and death metal music violated his First Amendment rights. We read Dawson more narrowly. The Court explained in Dawson that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment." Id. at 165. And it was careful to explain that a court may consider a defendant's reasons for committing a criminal act in imposing a sentence, even though the expression of those reasons, unalloyed to any criminal act, would be constitutionally protected. See id. at 164 (discussing Barclay v. Florida, 463 US 939, 103 S Ct 3418, 77 L Ed 2d 1134 (1983)); accord Wisconsin v. Mitchell, 508 US 476, 485-86, 113 S Ct 2194, 124 L Ed 2d 436 (1993) (applying Dawson). Conversely, where evidence of constitutionally protected expressive or associational activity "prove[s] nothing more than [the defendant's] abstract beliefs," the First Amendment prohibits its admission. Mitchell, 508 US at 486 (quoting Dawson, 503 US at 167 (second alteration in original)). The question in Dawson, as the Court framed it, was whether the state could introduce evidence during the penalty phase of Dawson's capital murder trial that Dawson "was a member of an organization called the Aryan Brotherhood, where the evidence ha[d] no relevance to the issues being decided in the proceeding." Dawson, 503 US at 160. The Court held that, where evidence of Dawson's exercise of his associational rights (membership in the Aryan Brotherhood) "proved nothing more than [his] abstract beliefs," the admission of that evidence violated his First Amendment rights. Id. at 167. One year after the Court decided Dawson, it upheld, against a First Amendment challenge, a Wisconsin statute that imposed an enhanced penalty on assaults motivated by racial animus. Mitchell, 508 US at 490. The Court recognized that the defendant's expression of racial animus, unconnected to any crime, would be constitutionally protected. See id. at 485-86 (citing Dawson). It held, however, that the First Amendment neither barred the admission of evidence of the defendant's racial animus to prove his motive for committing the assault nor prevented the imposition of a greater penalty on racially motivated assaults. Id. at 486-88. This case is a far cry from Dawson. As explained above, evidence of defendant's interest in satanism and preference for death metal music was relevant to prove defendant's motive for participating in the murder of one person and for attempting to murder another person during the Dari Mart robbery. And the reason why defendant participated in one murder and attempted to commit another was relevant both to his future dangerousness and to his culpability for those acts and, thus, to the weight that the jury was entitled to give that aggravating evidence in deciding whether to impose the death penalty. This is not a case in which the evidence proved only defendant's abstract beliefs. Rather, this is a case in which, as in Mitchell, the challenged evidence proved the motive for the crime. As such, its admission did not violate defendant's First Amendment rights. In his twenty-seventh assignment of error, defendant argues that the trial court erred in overruling his amended demurrer. This court has not previously addressed one of the issues that defendant raised in his demurrer and reiterates on review. Specifically, we have not addressed defendant's argument that ORS 163.150 is unconstitutional because it does not require the jury to agree unanimously on the aggravating evidence that each juror considers in deciding the fourth penalty-phase question. On that issue, ORS 163.150 provides that the fourth question that the jury must decide in the penalty phase is "[w]hether the defendant should receive a death sentence." ORS 163.150(1)(b)(D). ORS 163.150 directs the trial court to instruct the jury to answer that question "no," "if, after considering any aggravating evidence and any mitigating evidence concerning any aspect of the defendant's character or background, or any circumstances of the offense and any victim impact evidence as described in paragraph (a) of this subsection, one or more of the jurors believe that the defendant should not receive a death sentence." ORS 163.150(1)(c)(B). Defendant demurred to the indictment on the ground that ORS 163.150(1)(c)(B) is unconstitutional because it does not require that all the jurors agree on the specific aggravating evidence that informs each juror's answer to the fourth question. To the extent that defendant argues that ORS 163.150(1)(c)(B) is facially unconstitutional, his argument fails. Even if we were to assume, as defendant argues, that either Article I, section 11, or the Sixth Amendment requires juror unanimity on aggravating evidence, ORS 163.150(1)(c)(B) is capable of constitutional application. That statute does not preclude a trial court from instructing the jurors that all of them must agree on the aggravating evidence that each of them considers in deciding the fourth question. Rather, the statute leaves a trial court free to give such an instruction, if that is what either the state or the federal constitution requires. It follows that, even if the premise of defendant's argument were correct, and we express no opinion on that issue, the statute is not facially unconstitutional. See MacPherson v. DAS, 340 Or 117, 139, 130 P3d 308 (2006) (except for free speech challenges, persons "asserting [a] facial challenge [to a statute] bear [a] 'heavy burden' to demonstrate that [the] statute cannot be constitutionally applied under any circumstance"). To the extent that defendant argues that ORS 163.150(1)(c)(B) was applied unconstitutionally in this case, he cannot raise that issue by way of a demurrer. See Fanus, 336 Or at 68. As this court explained in Fanus, "the possibility of an unconstitutional application of [a statute] to the defendant's case [i]s not a defect appearing on the face of the accusatory instrument or otherwise grounds for demurrer under ORS 135.360." Id. If defendant wanted to preserve the issue, he should have asked the trial court to instruct the jury that all of them had to agree on the aggravating evidence. If the trial court declined to give the instruction, then defendant could have assigned error to that ruling. Defendant did not do so, and we express no opinion on the question whether defendant's argument -- that jurors must unanimously agree on the specific aggravating evidence that informs each juror's decision whether to impose the death penalty -- has any merit. It is sufficient to hold only that the trial court correctly overruled defendant's demurrer. Having considered all of defendant's assignments of error, we affirm the trial court's judgment and sentence. The judgment of conviction and sentence of death are affirmed. 1. The state charged defendant with two counts of aggravated murder: intentional murder committed after having been convicted previously of murder, ORS 163.095(1)(c), and intentional murder committed while confined in a state correctional facility, ORS 163.095(2)(b). 2. Another member of the group testified that death metal lyrics tended to be "gloom[ier]." As he explained, "[t]hey could range from -- anything from cannibalism to mutilation to murder to the end of the world to -- you know, it just runs the gamut * * *." 3. The trial court admitted a compact disc of Deicide into evidence during the penalty phase of defendant's trial. The liner notes for Deicide contain the lyrics of the songs on the album and also depict a satanic symbol that defendant and his friends discussed painting on the wall of the Dari Mart. 4. Although Brock referred to the trifixion as "a symbol on a Deicide album," the trifixion is depicted in the liner notes for Deicide. The trifixion is composed of three inverted crosses connected by a series of lines that form two pentagrams. 5. Brock and Rabago had testified in an earlier trial regarding the Dari Mart murder, and the prosecutor sometimes refreshed their memory with their earlier testimony. 6. Chris Barnes was an "ex-member vocalist for the band Cannibal Corpse," another of the group's favorite death metal bands. 7. Rabago's testimony differed from Brock's. Rabago initially agreed on cross-examination that "[t]his music wasn't something that was any kind of motive regarding the Dari Mart incident." When asked on redirect whether "the music and the beliefs that you [referring to the four men] held had nothing to do with leading you to [the murder]," Rabago testified, "The beliefs, possibly. But the music was actually a catharsis * * * [for] pent-up aggression and anger and -- and pain." When asked whether the beliefs that had helped lead to the murder were beliefs in satanism, Rabago answered, "I personally had a belief in satanism, yes." Rabago also agreed that "[defendant] had expressed those [beliefs] also to [him] at [that] time." 8. One woman was 28 years old at the time of the robbery; the record does not disclose the other woman's age. 9. Defendant later told one of his friends that he "turn[ed] the bar to try and stab her in the mouth." 10. We have considered each of defendant's other assignments of error and each of his supporting arguments. Those other assignments of error either have been discussed by this court in previous cases and resolved against defendant, were not preserved for review, or are not well-taken. Further discussion of the issues would not benefit defendant, the public, the bench, or the bar. 11. OEC 401 provides: "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." 12. As the parties brief this issue, it presents a question of conditional relevancy. See State v. McNeely, 330 Or 457, 462 n 5, 8 P3d 212 (2000) (explaining that "[c]onditional relevancy means a situation where one fact is relevant only if another fact is proven"); OEC 104(2) (authorizing the admission of such evidence). That is, both parties assume that evidence that defendant identified with satanism or preferred death metal music, standing alone, would not be relevant to either the second or the fourth penalty-phase questions. The issue, as the parties brief it, is whether other evidence in the record makes that evidence relevant. See Moore, 324 Or at 418-19 (explaining that evidence that defendant had acted on his beliefs made the existence of those beliefs relevant to the penalty-phase issues in an aggravated murder trial). 13. Defendant argues finally that, because the evidence did not show that he has any current interest in satanism, evidence that he previously had such an interest is not relevant to his future dangerousness. Defendant's argument misses the mark. If his interest in satanism was one of the reasons for the violent acts that he committed at the Dari Mart, then the absence of such an interest reduces the likelihood that he will commit violent acts in the future. Additionally, the other two reasons why evidence of his motives was relevant -- that the evidence bore on his culpability for those acts and that the jury could find that it said something more fundamental about his character -- apply without regard to whether defendant still identifies with satanism. 14. 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." The state assumes that OEC 403 applies to this evidence, and so do we. We express no opinion on the application, if any, of OEC 404(4) in this context. 15. Although defendant refers to his First Amendment right to listen to death metal music as a right of association, it seems more akin to a person's right to read, listen to, or view expressive activity. 16. Defendant asserts that Article I, sections 2 and 3, of the Oregon Constitution extend protection to nontraditional religious beliefs as well as traditional ones. The state does not challenge that proposition, and we assume, for the purpose of analyzing defendant's state constitutional challenge, that Article I, section 3, extends protection to nontraditional religious practices, such as satanism. See Or Const, Art I, § 3 (providing that "[n]o law shall * * * interfere with the rights of conscience"); cf. Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 371, 723 P2d 298 (1986) (describing Oregon's various religion provisions as "specifications of a larger vision of freedom for a diversity of religious beliefs and modes of worship * * *").

076fb086efb726d2624c1cd8cebfec20dc56396cd9bc7e0ea62a450390c05a51

2011-03-25T00:00:00Z

e29948b1-18ea-4b26-ae3a-2ee1f89f946a

Drollinger v. Mallon

S058839

oregon

Oregon Supreme Court

1 Filed: September 1, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON KEITH L. DROLLINGER, Petitioner on Review, v. GORDON MALLON, JOHN LAMBORN, ROBERT RASCHIO, and MALLON LAMBORN AND RASCHIO, PC, Respondents on Review. (CC 08127040L; CA A142452; SC S058839) En Banc On review from the Court of Appeals.* Argued and submitted May 5, 2011. Paul J. C. Southwick, Davis Wright Tremaine LLP, Portland, argued the cause for petitioner on review. With him on the brief was Timothy R. Volpert. Janet M. Schroer, Hoffman Hart & Wagner, LLP, Portland, argued the cause for respondent on review. With her on the brief was Marjorie A. Speirs. DE MUNIZ, C. J. The decision of the Court of Appeals and the judgment of the circuit court are reversed. The case is remanded to the circuit court for further proceedings. *Appeal from Malheur County Circuit Court, Patricia Sullivan, Judge. 237 Or App 212, 238 P3d 1034 (2010). 1 DE MUNIZ, C. J. 1 This is a legal malpractice action brought by plaintiff, a convicted felon, 2 against lawyers who undertook to represent him in his attempt to obtain post-conviction 3 relief, and then, shortly before the matter was scheduled for trial, withdrew. Defendant 4 lawyers moved to dismiss the malpractice action for lack of subject matter jurisdiction 5 and failure to state a claim, ORCP 21 A(8). They argued that, under this court's decision 6 in Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993), the malpractice action was 7 barred because plaintiff had not been exonerated of the underlying offenses. The circuit 8 court agreed with defendants, granted their motion, and dismissed the complaint. On 9 appeal, the Court of Appeals affirmed without opinion. For the reasons set out below, we 10 conclude that Stevens, a case addressing the statute of limitations in a malpractice action 11 brought by a former criminal defendant against trial counsel in the underlying case, does 12 not preclude this convicted plaintiff from pursuing a malpractice action against post- 13 conviction counsel. Because the circuit court treated actual exoneration as a prerequisite 14 for bringing the action, we reverse and remand to that court for further proceedings. 15 We set out the facts as they were pleaded in the complaint, supplemented 16 by certain undisputed parts of the record that we believe will advance the reader's 17 understanding of the case. In 1999, in two separate cases (one in Crook County and one 18 in Deschutes County), plaintiff was charged with a number of sex crimes. Plaintiff 19 entered into a plea agreement that encompassed both cases and, pursuant to that 20 agreement, pleaded guilty to two of the Crook County felony charges and a single 21 Deschutes County felony charge. Plaintiff was sentenced to lengthy terms of 22 2 imprisonment. Judgment was entered in the two cases in February and April 2000. 1 Plaintiff did not appeal to the Court of Appeals. 2 In 2002, plaintiff filed a petition for post-conviction relief in each case. 3 Both post-conviction cases were filed in Malheur County, where plaintiff was 4 incarcerated, and the post-conviction court treated the cases as if they were consolidated. 5 Plaintiff initially was represented by appointed counsel, but, after several consecutively 6 appointed lawyers withdrew from the cases, plaintiff decided to proceed pro se. He 7 continued to represent himself for the next three years, during which time the circuit 8 court first dismissed, and then later reinstated, plaintiff's post-conviction petitions. 9 In May 2006, plaintiff's former trial lawyer contacted defendants about 10 representing plaintiff in his post-conviction cases. Defendants Mallon and Lamborn 11 thereafter met with plaintiff, and plaintiff ultimately signed an agreement retaining their 12 law firm (defendant Mallon Lamborn and Raschio, PC) and deposited $5,000 into 13 defendants' accounts in partial payment of defendants' fees and other expenses.1 At the 14 time the written retainer agreement was signed, defendants made certain oral promises to 15 plaintiff, including promises: (1) to use a named private investigator, who would "be 16 paid by defendants by and through application for state funding"; (2) to depose witnesses 17 that the investigator had and would identify, and to otherwise work with the investigator 18 to develop evidence; (3) to "conduct an adequate investigation of [a named police 19 1 The funds apparently were provided by plaintiff's father. 3 detective's] credibility"; (4) to "take the necessary steps" to hire a named audio analyst to 1 analyze plaintiff's recorded confession to the underlying crimes, with that audio analyst 2 being paid "by defendants by and through application for state funding"; (5) to seek 3 withdrawal of plaintiff's guilty pleas and to have property and money in the hands of 4 plaintiff's criminal trial lawyer diverted back to plaintiff; and (6) to "take the necessary 5 steps" to hire a psychologist to test plaintiff for certain mental disorders for purposes of 6 setting aside plaintiff's guilty pleas. 7 After the retainer agreement was signed, defendants had little contact with 8 plaintiff. Meanwhile, plaintiff wrote lengthy letters to defendants at regular intervals, 9 instructing them to take certain actions and expressing concern about the apparent lack of 10 activity in the cases. 11 In October 2006, the Malheur County Circuit Court issued an order in 12 plaintiff's post-conviction cases, setting a November deadline for filing all motions and a 13 trial date in early February 2007, "with no further continuance to be granted." A week 14 after the order issued, defendant Lamborn spoke to plaintiff on the phone. Plaintiff 15 expressed his concerns about the looming deadlines and the lack of activity in the cases. 16 Lamborn told plaintiff that he felt unqualified to represent plaintiff in the matter, that he 17 should have a more qualified attorney, and that he would assist plaintiff in finding 18 someone. He assured plaintiff that he would ask the court for a hearing to reset the final 19 filing date for motions. 20 Weeks went by and Lamborn did not communicate with plaintiff about 21 replacement counsel or the request to reset the final filing date for motions. Plaintiff 22 4 wrote a number of letters to defendants Lamborn and Mallon, insisting that they take 1 "necessary and appropriate steps to protect his legal interests." Defendants did not 2 respond to those letters. Plaintiff then filed a motion in circuit court seeking to compel 3 defendants to conduct certain discovery that plaintiff believed was essential. The circuit 4 court held a hearing on the motion in late December 2006, at which time defendant 5 Lamborn told the court that he and plaintiff had a disagreement about how the case 6 should be handled. Lamborn told the court that he had talked to plaintiff about 7 withdrawing from the case and that he did not think that he could represent plaintiff. 8 The circuit court ultimately denied plaintiff's motion to compel and told Lamborn that, if 9 he wanted to withdraw, he would have to file a motion. 10 On January 10, 2007, Lamborn filed a motion to be relieved as counsel. 11 The motion stated that plaintiff did not object to Lamborn's withdrawal. On January 16, 12 2007, the circuit court granted Lamborn's motion to withdraw as counsel for plaintiff, 13 three weeks before the post-conviction petitions were scheduled for trial. 14 Plaintiff's factual allegations in his complaint do not describe the end result 15 of the foregoing events. However, we can determine from the record, and from 16 statements embedded in plaintiff's claims, that, a few days before the scheduled post- 17 conviction trial, plaintiff was confronted with the choice of dismissing his post- 18 conviction petitions with prejudice or going forward with the trial, unprepared and 19 without representation. Plaintiff chose to dismiss the petitions. 20 Plaintiff thereafter filed the present action on his own behalf, alleging 21 claims for legal malpractice and breach of contract. Putting the very best face on the 22 5 legal malpractice claims, we understand plaintiff to allege that (1) defendants had a duty 1 to represent plaintiff in his post-conviction bid to have his guilty pleas set aside, with the 2 level of skill and diligence that lawyers are expected to use on behalf of their clients in 3 such circumstances; (2) that defendants breached that duty in various ways, including by 4 declining to work with the investigator and audio technician that plaintiff had designated, 5 failing to obtain discovery regarding a police witness's credibility, failing to apply for 6 state funding to pay for investigation and experts that were necessary, failing to use 7 available exculpatory evidence to obtain post-conviction relief, failing to return the 8 unused portion of plaintiff's retainer at a "meaningful time," giving the circuit court a 9 false understanding that plaintiff was unable or unwilling to work with lawyers, and 10 withdrawing from plaintiff's case a few weeks before it was scheduled to be tried; (3) that 11 plaintiff suffered certain harms; and (4) that defendants' breach of their duties to plaintiff 12 caused those harms. The harms or damages that plaintiff identified included: plaintiff's 13 inability to obtain and present the evidence needed to obtain post-conviction relief; 14 plaintiff's loss of the trial court's confidence and the incursion of the trial court's ill-will, 15 which ultimately caused the trial court to deny plaintiff's request for a continuance; 16 plaintiff's resulting lack of preparation for his post-conviction trial; the resulting dismissal 17 of plaintiff's petitions for post-conviction relief with prejudice; plaintiff's resulting 18 inability to have his guilty pleas set aside; the resulting continuation of plaintiff's 19 incarceration and all of the disabilities associated with incarceration (loss of earnings and 20 employment benefits, loss of liberty, loss of family relations, loss of the ability to recover 21 real property that had been turned over to plaintiff's trial counsel in exchange for his 22 6 representation, danger of physical attacks and cruelty by Department of Corrections staff 1 and other prison inmates); plaintiff's lack of access to the unused portion of the retainer 2 he paid to defendants to hire replacement counsel and pay other expenses; and plaintiff's 3 incursion of debt to pay for lawyers and investigative and audio analysis services that 4 ultimately went to waste. 5 As noted, defendants filed a motion to dismiss plaintiff's complaint on the 6 ground that it did not state a claim for which relief may be granted. ORCP 21 A(8).2 7 Defendants relied on the rule from Stevens that a person must be exonerated from his 8 conviction before he may assert a legal malpractice action against an attorney who 9 represented him in the criminal case that resulted in the conviction. Defendants argued 10 that, because plaintiff had not alleged (and could not allege) that he had been exonerated 11 of the underlying crimes, he had failed to allege an essential element of his legal 12 malpractice claim. At a hearing on the motion, plaintiff argued that the Stevens 13 exoneration rule pertains only to malpractice actions filed by convicted defendants 14 against their trial attorneys, and does not apply in the post-conviction context. 15 At the conclusion of the hearing, the trial court told the parties that it was 16 taking the "exoneration" issue under advisement. Plaintiff asked the court about a motion 17 that he had filed a few days before, seeking to amend his complaint. After discussion 18 2 Defendants simultaneously and alternatively moved to strike a number of plaintiff's claims and paragraphs on various grounds. The circuit court granted those motions to strike before it took defendants' motion to dismiss under advisement. The court's decisions on the motions to strike are not before this court. 7 about which motion plaintiff was referring to, the court suggested that, if it decided to 1 deny defendants' ORCP 21 motion, it would allow plaintiff to amend his complaint.3 In 2 the end, however, the court agreed with defendants that the rule from Stevens applied to 3 plaintiff's claim; it dismissed the action and entered a general judgment in defendants' 4 favor. The court explained: 5 "The basic principle of Stevens is that a cause of action for legal 6 malpractice cannot accrue without 'harm,' and 'harm' as a matter of law can 7 only be shown by exoneration. * * * There is * * * no reason why the 8 principle in Stevens should not apply to malpractice claims arising out of 9 post-conviction relief matters. 10 "It should be noted that there is a distinction between exoneration of 11 the criminal offense and exoneration as the result of the [post-conviction 12 relief proceeding]. The harm from malpractice at the trial court is 13 discovered when the result of those proceedings is somehow reversed. 14 Therefore, the harm from malpractice at the [post-conviction] level would 15 be discovered when plaintiff obtains a favorable modification of the [post- 16 conviction] result. Ordinarily, there would be no difference between these 17 two cases; i.e. reversal by a higher court." 18 Plaintiff appealed, 4 and the Court of Appeals affirmed without opinion. 19 3 In fact, the court signed an order that plaintiff drafted granting plaintiff leave to file a second amended complaint (plaintiff already had amended his complaint once) and giving him 30 days to do so. However, the court seemingly rendered that order moot when it granted defendants' motion to dismiss, based on its interpretation of the Stevens rule. Nevertheless, in several subsequent filings, which are described below, __ Or at __ (slip op at 8 n 4), plaintiff attached a "second amended complaint" that was never filed, which he had drafted in apparent reliance on the trial court's order. 4 Plaintiff filed several motions around the time he appealed the dismissal. Plaintiff first filed a motion in the trial court seeking "reconsideration" of the dismissal of his action. He argued that Stevens was inapplicable, but also argued that, even if certain of his claims were properly dismissed under Stevens, the court should have allowed him to proceed on claims that were denominated in the complaint as "breach of contract" claims. Defendants opposed the motion for reconsideration, arguing that it was 8 Plaintiff then petitioned the court for review. We allowed the petition to consider 1 whether and how the Stevens exoneration rule might apply to a malpractice action against 2 post-conviction counsel.5 3 Our analysis necessarily begins with an examination of Stevens. The 4 plaintiff in Stevens had been defended by a court-appointed lawyer in a criminal matter 5 inappropriate for the court to take into account, on "reconsideration," a distinction between malpractice and breach of contract claims that plaintiff had failed to articulate before the general judgment was entered. The trial court denied the motion, noting that the proper remedy was an appeal. Plaintiff then filed a motion in the Court of Appeals, requesting that court to grant leave to the circuit court to consider his motion for reconsideration of the judgment. The Court of Appeals denied that motion, noting that there was no statute or rule authorizing such relief. Finally, plaintiff filed a "Motion for Leave to Allow Plaintiff's Objection to Dismissal * * * to be Filed," which the Court of Appeals treated as a motion to supplement the record, and granted. The supplemental material was an "objection" to the dismissal of plaintiff's complaint, which plaintiff purportedly had given to prison authorities to mail to the trial court, but which never had reached the court. The objection stated that the hearing on the motion to dismiss, which plaintiff had attended via telephone, had been so poorly transmitted that he never understood that there was a danger of his entire complaint being dismissed, and that, in fact, plaintiff's breach of contract claims should not have been dismissed on the grounds that defendants raised in their motion to dismiss. 5 Plaintiff also suggests, in his petition for review to this court, that the trial court erred in dismissing his complaint in its entirety, based on a rule that is specific to legal malpractice claims, when the complaint also contained a breach of contract claim. Plaintiff appears to acknowledge that he did not raise that issue in the hearing on defendant's motion to dismiss, but he argues that technical difficulties at the hearing prevented him from understanding that the trial court was contemplating dismissing the complaint in its entirety. We have examined the record of that hearing and find no support for his contention. But, in any event, our disposition of the Stevens issue in plaintiff's favor makes consideration of plaintiff's alternative argument unnecessary. 9 and, on the lawyer's advice, had pleaded "no contest" to the charges. Later, another man 1 confessed to the crimes, and the trial court immediately vacated the plaintiff's 2 convictions. A year after the convictions were vacated -- but more than two years after 3 the lawyer persuaded the plaintiff to enter the "no contest" pleas -- the plaintiff filed a 4 malpractice action against his court-appointed lawyer. The lawyer moved for summary 5 judgment, raising the two-year statute of limitations that applies in most tort actions, ORS 6 12.110(1), as an affirmative defense. The trial court granted summary judgment. The 7 plaintiff appealed, and the Court of Appeals reversed. This court affirmed the Court of 8 Appeals, holding that the plaintiff's action did not accrue until he suffered "legally 9 cognizable harm," which occurred when the trial court vacated his convictions. 316 Or at 10 223-39. The court concluded that, in the context of a criminal case, a malpractice claim 11 cannot be maintained unless the plaintiff already has been exonerated of the underlying 12 crimes through the processes that the legislature has provided: 13 "[I]n order for one convicted of a criminal offense to bring an action for 14 professional negligence against that person's criminal defense counsel, the 15 person must, in addition to alleging a duty, its breach, and causation, allege 16 'harm' in that the person has been exonerated of the criminal offense 17 through reversal on direct appeal, through post-conviction relief 18 proceedings, or otherwise." 19 316 Or at 238 (emphasis supplied). 20 Given that Stevens involved a malpractice action against the lawyer who 21 represented the plaintiff at the trial level, it is not surprising that the foregoing rule is 22 specifically expressed in terms of "action[s] for professional negligence against * * * 23 criminal defense counsel." However, defendants contend (and the circuit court held) that, 24 10 insofar as the reasons underpinning the exoneration rule are equally relevant to 1 malpractice actions against post-conviction counsel, the rule also must apply to such 2 actions. To assess the correctness of that contention, we examine the court's reasoning in 3 Stevens. 4 As noted, the court in Stevens was attempting to determine when and how a 5 criminal defendant can be said to have suffered "legally cognizable harm" as a result of 6 his trial lawyer's negligence. It concluded that such harm occurs only if and when the 7 criminal defendant has successfully "challenged * * * the conviction through the direct 8 appeal or post-conviction processes * * * provided by Oregon law, or the person 9 otherwise has been exonerated of the offense." 316 Or at 230-31. We understand the 10 court's conclusion to be driven by three considerations.6 11 First, the court pointed to the comprehensive nature of Oregon's substantive 12 and procedural criminal statutes -- a scheme that provides a wide range of protections to 13 persons accused and convicted of criminal offenses, including the right to be represented 14 by competent counsel at all stages of the proceeding and the right to collaterally attack a 15 conviction and sentence on the ground that counsel did not provide competent 16 representation. Id. at 229-30. The court posited that any decision it made about what 17 constitutes legal "harm" in the context of a malpractice action against criminal defense 18 6 We address Stevens extensively because the trial court based its ruling on Stevens and defendants rely on Stevens to sustain that ruling. However, our extensive analysis of Stevens in this case should not be read as an endorsement of all the reasoning that underlies the majority's decision in Stevens. 11 counsel must "respect, and not hinder, the valid policy choices already made by the 1 legislature" regarding the obligations of criminal defense counsel and the processes for 2 vindicating those obligations or standards. The court concluded that that principle meant 3 that it would be inappropriate to treat a convicted offender as having been harmed by 4 counsel's negligence in conducting his or her defense unless the offender first showed 5 that counsel had "failed to meet the established standards in a way that would make post- 6 conviction relief appropriate." Id. at 230. 7 Defendants argue that that first line of reasoning -- that the meaning of 8 "harm" in this context must honor the comprehensive scheme of protections that Oregon 9 law provides -- is as relevant to a criminal offender's representation in the post-conviction 10 context as it is to his or her representation at the original criminal trial. As defendants put 11 it, "[t]he fact that alleged malpractice may occur during a post-conviction relief 12 proceeding does not change the fact that the conviction was subject to all of these 13 protections." However, defendants miss the point of the analysis. It is not the fact that 14 the underlying conviction was subject to a comprehensive scheme of procedural and 15 substantive protections that is important. What is important, in the Stevens analysis, is 16 the fact that the alleged malpractice occurred in the context of a proceeding that was 17 subject to all of those protections -- including a statutory procedure for obtaining relief 18 from an erroneous conviction or sentence caused by counsel's incompetence -- and that it 19 would disregard that legislative policy choice to allow a criminal offender to obtain a 20 judicial determination that he or she was wrongly convicted and obtain money damages 21 by means of a legal malpractice case rather than through the procedures provided by the 22 12 legislature. 1 That concern is not present when the malpractice occurs in the context of a 2 post-conviction proceeding. Although the statutory provision for post-conviction relief is 3 one aspect of the overall legislative scheme for ensuring the fairness and accuracy of the 4 criminal convictions and sentences, post-conviction proceedings themselves are civil in 5 nature and they are not subject to the scheme of protections that Stevens discusses. 6 Given that the panoply of constitutional and statutory protections for protecting criminal 7 defendants (and, particularly, the mechanisms for assuring the effective assistance of 8 counsel), are not operative in post-conviction proceedings, the Stevens court's interest in 9 "respecting and not hindering" the policy choice that inheres in the overall scheme of 10 protections simply is not a paramount consideration in defining the elements of claims 11 that arise in that context. 12 There is another more specific and practical way in which that line of 13 reasoning from Stevens fails to translate into the post-conviction context. Stevens is 14 premised on the assumption that the legislature's scheme of protections for criminal 15 defendants includes one or more mechanisms for correcting any wrongs suffered by a 16 criminal defendant as a result of his or her attorney's constitutionally or statutorily 17 inadequate representation. In Stevens, the required exoneration was available "through 18 direct appeal, through post-conviction relief proceedings, or * * * otherwise." However, 19 there is no express statutory mechanism in Oregon law for obtaining "exoneration" from 20 13 a denial of post-conviction relief caused by the inadequacy of post-conviction counsel.7 1 In light of the absence of any realistic mechanism for obtaining "exoneration" from the 2 results of post-conviction counsel's inadequacy, extending the exoneration requirement of 3 Stevens to malpractice actions against post-conviction counsel would create an 4 insurmountable and arbitrary bar to relief that does not exist with respect to malpractice 5 claims against criminal defense counsel. 6 Thus, the first line of reasoning underlying the Stevens exoneration rule 7 does not appear to apply to the malpractice claim in the present proceeding. In particular, 8 a concern with respecting the legislative policies expressed in the protections that Oregon 9 law extends to criminal defendants does not logically apply to malpractice claims that 10 arise out of civil post-conviction proceedings, where those protections are not in force. 11 We turn, then, to the second consideration that underlies this court's 12 7 A convicted offender may, of course, appeal a denial of post-conviction relief, but the inadequate performance of post-conviction counsel cannot be raised in such an appeal. See Pennsylvania v. Finley, 481 US 551, 107 S Ct 1990, 95 L Ed 2d 539 (1987) (prisoners do not have constitutional right to counsel when mounting collateral attack on their convictions). Defendants suggest that a convicted offender in these circumstances may also obtain exoneration through federal habeas corpus relief. Although habeas corpus relief may be available when a person's imprisonment is in violation of the prisoner's Sixth Amendment right to effective assistance of counsel, such a proceeding generally would not directly address problems that arise out of counsel's performance at the post-conviction stage, when the offender has no constitutional right to effective assistance. See id. Defendants suggest, finally, that there is always a possibility that an offender will be exonerated by some "other" means, as was the plaintiff in Stevens (the convictions were vacated when another person confessed to the crimes). But an exoneration requirement cannot turn on the mere possibility that a plaintiff might be exonerated of the underlying crime by some fortuity. 14 decision in Stevens, viz., the recognition that, particularly given that the legislature's 1 overall criminal justice scheme makes a criminal conviction difficult to obtain, a finding 2 of guilt should be treated as settled unless and until it is overturned under the procedures 3 that the law provides. In the words of the court, "while the conviction and sentence 4 remain valid for all other purposes, it is inappropriate to treat a complaining convicted 5 offender as having been 'harmed' in a legally cognizable way by that conviction." 316 Or 6 at 232. 7 Defendants contend that that principle is as valid in the context of a 8 malpractice action against post-conviction counsel as it is in a similar action against trial 9 counsel in the context of a criminal prosecution, and that, "regardless of whether the 10 alleged malpractice occurs at the trial or [post-conviction] level, a malpractice action 11 where the conviction has not been overturned will necessarily entail relitigation of the 12 conviction." However, as plaintiff points out, malpractice actions against post-conviction 13 counsel do not necessarily involve relitigation of the underlying conviction. For 14 example, plaintiffs in such actions may seek damages for costs incurred because of the 15 lawyer's negligence in conducting discovery or hiring experts, and such claims would not 16 depend on a finding that the plaintiff's conviction was improper. 17 That is not to say that defendants' point is without some merit. We 18 acknowledge that a malpractice action in this context may involve a claim that post- 19 conviction counsel's negligence prevented plaintiff from remedying his or her erroneous 20 conviction, a claim that can be proved only by relitigating the merits of the underlying 21 criminal case. However, even if the concern expressed in Stevens about relitigating what 22 15 has been settled has some general relevance to malpractice actions against post- 1 conviction counsel, we think it must carry less weight in that context. The social value of 2 treating a criminal conviction as settled and valid for the purpose of any related civil 3 malpractice proceeding is less compelling when the obvious and sanctioned path for 4 overturning the conviction is not available to the convicted person because of counsel's 5 negligence, and when counsel's negligence cannot be redressed under the constitutional 6 and statutory standards that purport to ensure adequate representation in criminal 7 proceedings. 8 The third and final consideration that drove the Stevens decision was the 9 court's desire to preclude convicted offenders from bringing malpractice actions on the 10 ground that counsel failed to get them a "better deal" relating to the terms of the sentence 11 or probation, in a plea agreement, or the like. As the Stevens court put it: 12 "Such complaints would not result in a reversal of a conviction, either 13 outright or for a new trial. It is only in these latter circumstances, however, 14 that a legal malpractice action will be available. Although a plaintiff may 15 wish that he or she had gotten a better deal, we do not consider it 16 appropriate, outside of circumstances where the kind of relief that we have 17 described is available under the post-conviction relief law, to treat a 18 convicted offender as having been caused 'harm' in a legally cognizable 19 way by any disposition of that person's case that was legally permissible." 20 Id. at 232. 21 Defendants argue that that consideration is operative in the context of 22 malpractice proceedings against post-conviction counsel because the post-conviction 23 statute appears to allow for post-conviction relief that is "proper and just" (and not 24 necessarily legally required), ORS 138.520, and because post-conviction petitioners 25 16 "routinely use this language to support seeking and obtaining better deals." But, 1 regardless of whether post-conviction petitioners make "better deal" arguments, the plea 2 bargaining concept is not prominent in the post-conviction context and, in any event, we 3 conclude there is no significant danger that post-conviction counsel will be subjected to 4 malpractice actions on the ground that they failed to obtain the best possible deal out of 5 the post-conviction proceeding. In short, the third consideration that this court raised in 6 Stevens has little, if any, application to malpractice actions against post-conviction 7 counsel. 8 We have concluded that, of the three considerations that drove this court's 9 decision in Stevens, only one, the concern about relitigating settled convictions, has any 10 relevance to malpractice actions against post-conviction counsel, and that even that 11 consideration is less compelling in this context. That single concern is not a sufficient 12 reason to extend Stevens's exoneration requirement, which was designed for malpractice 13 actions against criminal defense counsel, into the sphere of malpractice actions against 14 counsel in civil post-conviction proceedings. We hold that prior exoneration, by means 15 of appeal, post-conviction proceedings, or otherwise, is not a prerequisite for asserting a 16 malpractice claim against post-conviction counsel.8 17 8 We recognize that courts in some other jurisdictions have reached the opposite conclusion, and apply the exoneration rule broadly to almost any allegation of malpractice brought by a criminal offender against a lawyer who has represented the offender in connection with his or her convictions. See, e.g., Tallmadge v. Boyle, 300 Wis 2d 510, 730 NW2d 173 (2007) (malpractice action against attorney hired to secure habeas relief); Gaylor v. Jeffco, 160 NH 367, 999 A2d 290 (2010) (malpractice action 17 Defendants argue that, even if the exoneration rule is not applicable, the 1 trial court's dismissal of the complaint should be affirmed because plaintiff did not plead 2 all the necessary elements of a traditional attorney malpractice claim. Defendants 3 observe, in that regard, that, in an ordinary legal malpractice case, the plaintiff must plead 4 and prove that, but for the attorney's negligence, he would have succeeded in the 5 underlying action. Defendants contend that here, that means that plaintiff must plead 6 and prove that, were it not for defendants' alleged negligence, plaintiff would have 7 prevailed in the post-conviction proceeding and, then, would have obtained relief from 8 his convictions either through dismissal of all charges on remand or by acquittal on 9 retrial. Defendants argue that, because plaintiff's complaint contains no allegation that he 10 would have obtained relief from his convictions "but for" defendants' negligence, his 11 complaint properly was dismissed for failure to state a claim. 12 against attorneys who represented convicted offender in post-conviction proceedings). However, the policy reasons that underpin the exoneration rules in those jurisdictions are significantly different from the ones discussed by this court in Stevens. The courts in those jurisdictions rely on principles that would apply to any legal representation in connection with an offender's convictions: the courts' moral disapproval of, and their perception of public discomfort with, the possibility that a convicted criminal could indirectly derive some benefit for their crimes. In contrast, the principles that drove this court's decision in Stevens are, as discussed, more strongly connected to the trial and appeals processes. Although we conclude that actual prior exoneration is not a prerequisite for filing a malpractice action against post-conviction counsel, exoneration is not irrelevant in such an action. As discussed below, in most cases, the probability or certainty that, but for the lawyer's negligence, the plaintiff would have been exonerated, is a matter that the plaintiff must plead and prove. 18 There is both a short answer and a long answer to defendants' contention. 1 The short answer arises out of the fact that, before the trial court issued its decision on 2 defendant's motion to dismiss, it indicated to the parties that, if it rejected defendants' 3 argument about the applicability of Stevens, it would allow plaintiff to file an amended 4 complaint. We are not inclined to affirm the trial court's decision on the alternative 5 ground defendants now asserts when the possibility exists that, on remand, plaintiff will 6 be permitted to amend his complaint in a way that cures the asserted problem.9 7 The long answer, which we include in this opinion for the benefit of bench 8 and bar, is that the legal proposition underpinning defendant's argument about the 9 pleadings is not entirely correct. We would agree with defendants that plaintiff must 10 plead causation and that, at bottom, that means alleging that, "but for" defendants' 11 negligence, plaintiff would not have suffered the damages that he alleges. To the extent 12 that plaintiff alleges damages that are associated with his continued incarceration -- 13 damages like loss of freedom, loss of income, and loss of the companionship of family 14 and friends -- he must plead and prove that, if defendants had performed competently in 15 the post-conviction proceeding, plaintiff would have obtained relief in that proceeding, 16 that he would have avoided reconviction in any subsequent proceeding on remand, and 17 9 As noted above, plaintiff submitted a document labeled "second amended complaint," which apparently never was formally filed as such, as an attachment to various objections to, and motions for reconsideration of, the trial court's order of dismissal. The trial court conceivably could treat that document as plaintiff's complaint going forward, or it could permit plaintiff to replead altogether. 19 that he would have been released from prison.10 Plaintiff's simple assertion that 1 "defendants' negligence caused plaintiff to remain incarcerated" may be insufficient for 2 that purpose but if it is, the deficiency could be cured in an amended complaint (if the 3 trial court, in fact, permits such an amendment). 4 On the other hand, to the extent that plaintiff alleges damages that do not 5 depend on the certainty of success in obtaining relief from his convictions, pleading and 6 proving that plaintiff would have obtained relief from his convictions would be 7 unnecessary. An example of such an allegation would be one that alleged that plaintiff 8 incurred litigation-related costs that, except for defendants' negligence, he would not have 9 incurred. The complaint that is before this court now appears to contain such an 10 allegation. 11 There has been some suggestion, in the course of the argument of this case, 12 that plaintiff is simply alleging that defendants' negligence caused him to lose his only 13 opportunity to obtain relief from his conviction, and that such a pleading should be 14 legally sufficient. If such a pleading were sufficient, then plaintiff would be relieved 15 from the onerous burden of showing that he would have prevailed in the post-conviction 16 10 The procedure for proving plaintiff's case would be the "case within a case" process, whereby the factfinder in the malpractice case determines what the outcome would have been if the underlying case had been properly tried. See Chocktoot v. Smith, 280 Or 567, 570-71, 571 P2d 1255 (1977) (describing that process); Harding v. Bell, 265 Or 202, 205, 503 P2d 216 (1973) (same). In fact, because here the underlying case (the post-conviction proceeding) involved its own underlying case (the criminal proceeding), the proper procedure would more aptly be described as a "case within a case within a case," something like a Russian nesting doll, known as a "Matrushka." 20 proceeding and, then, in any subsequent proceeding in the underlying criminal case, 1 under the "case within a case" methodology that is typically used to prove legal 2 malpractice in a litigation context. See Chocktoot v. Smith, 280 Or 567, 570-71, 571 P2d 3 1255 (1977) (describing "case within a case" methodology); Harding v. Bell, 265 Or 202, 4 205, 503 P3d 216 (1973) (same). 5 However, such a pleading is not legally sufficient in Oregon. It is true that 6 some jurisdictions have recognized a claim based on "loss of chance" in the medical 7 malpractice context,11 and that some commentators have advocated its application in 8 legal malpractice actions, on the theory that the plaintiff's burden of proof under the 9 traditional "case within a case" methodology is too great. See, e.g., Lawrence W. 10 Kessler, Alternative Liability in Litigation Malpractice Actions: Eradicating the Last 11 Resort of Scoundrels, 37 San Diego L Rev 401, 482-520 (2000). In our view, the loss of 12 chance doctrine should not be imported into the legal malpractice context. Whatever the 13 merits in the medical malpractice context,12 where the proof burden facing some 14 11 The typical medical malpractice loss-of-chance case involves a doctor's belated diagnosis of disease that only a small percentage of people ordinarily survive, even with early treatment. If the patient dies and the survivors sue the doctor for medical malpractice, the traditional rules pertaining to proof of medical malpractice would require the survivors to prove the impossible, i.e., that, but for the doctor's negligent failure to make a timely diagnosis, the patient would have survived. Applied to a medical malpractice suit in such circumstances, the loss-of-chance doctrine permits the survivors to sue the doctor for causing a reduced chance of living. See John C.P. Goldberg, What Clients are Owed: Cautionary Observations on Lawyers and Loss of a Chance, 52 Emory L J 1201, 1204-05 (2003) (describing typical medical malpractice scenario). 12 We note that, in Joshi v. Providence Health System, 342 Or 152, 149 P3d 21 plaintiffs otherwise would be insurmountable and where statistical evidence that can fill 1 the void is readily available, the argument for its application in the legal malpractice 2 context is less compelling, where it would simply reduce the plaintiff's burden vis-à-vis 3 the traditional "case within a case" methodology. We hold that any allegation in 4 plaintiff's complaint that defendants' negligence caused plaintiff to lose his chance for 5 relief from his convictions would be legally insufficient. 6 We have concluded that the trial court erred in dismissing plaintiff's 7 complaint on the ground that plaintiff had not been exonerated. We have declined to 8 consider defendants' alternative ground for affirming the dismissal because it appears to 9 us that the trial court was willing to allow plaintiff to amend his complaint. We remand 10 the case to the trial court where, on defendant's motion, the court may consider whether 11 any or all of plaintiff's pleadings in the present complaint, or any amended complaint that 12 the trial court decides to accept, are sufficient, using the principles relating to causation 13 and damages discussed above. 14 The decision of the Court of Appeals and the judgment of the circuit court 15 are reversed. The case is remanded to the circuit court for further proceedings. 16 1164 (2006), this court rejected what amounted to a "loss-of-chance" theory of proving causation in a statutory wrongful death action alleging that a physician's failure to diagnose a patient's stroke led to the patient's death.

6789b83d1cd5f8d9f87111e9cb6da75c866aca3fa3f465cf0123d77024b16e20

2011-09-01T00:00:00Z

9e40a5a2-de81-402c-8ff5-889c89c82eb1

In re Castanza

S059032

oregon

Oregon Supreme Court

Filed: May 5, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In re: Complaint as to the Conduct of JASON D. CASTANZA, Accused. (OSB 09-25; SC S059032) En Banc On review of the decision of a trial panel of the Disciplinary Board. Submitted on the record April 7, 2011. No appearance for the accused or for the Oregon State Bar. PER CURIAM The accused is suspended from the practice of law for a period of 60 days, commencing 60 days from the date of this decision. PER CURIAM In this lawyer disciplinary proceeding, the Oregon State Bar charged the accused with violating Oregon Rule of Professional Conduct (RPC) 1.16(d) for failing to take reasonable steps to protect his clients' interests when he terminated his representation of them. After an evidentiary hearing, a trial panel of the Disciplinary Board found that, when the accused withdrew from representing his two clients in a civil action that he had filed on their behalf, he violated RPC 1.16(d) by failing to: (1) allow his clients sufficient time to employ another counsel; (2) make any attempts to postpone the trial date; (3) file a notice of change or withdrawal of counsel as the Uniform Trial Court Rules require; (4) respond to the defendant's motion to dismiss, thus permitting the trial court to dismiss the action; (5) respond to the opposing attorney's proposed general judgment and cost bill; and (6) communicate with his clients concerning the general judgment and cost bill. As a result of those violations, the trial panel suspended the accused from the practice of law for 60 days. Although the accused sought review of the trial panel's decision, he has not filed an opening brief. Pursuant to ORAP 11.25(3)(b), the Bar has requested by letter that the matter be submitted without briefing or argument. As the court noted in a recent lawyer disciplinary matter, although our review of these matters is de novo under ORS 9.536(2), the court is "free to circumscribe the extent of its review due to the absence of briefing or argumentation challenging the order on review." In re Hartfield, 349 Or 108, 111, 239 P3d 992 (2010); see In re Oh, 350 Or 204, ___ P3d ___ (2011) (following Hartfield). Thus, where review of a trial panel's decision has been requested, but neither party has filed a brief, we ordinarily will affirm the decision of the trial panel inasmuch as no party has raised an argument challenging the trial panel's decision. Hartfield, 349 Or at 112. In light of the accused's failure to frame any challenge to the trial panel's decision, he is not entitled to any different consideration by this court than if he had not sought review at all. In re Oh, 350 Or at 207. Accordingly, we have no basis for disagreeing with the trial panel's decision. The accused is suspended from the practice of law for a period of 60 days, commencing 60 days from the date of this decision.

a8238d4484e63b67af826c223c2391766c2d899df4d1d460848c1c28cd3cf24b

2011-05-05T00:00:00Z

a4493192-5ff4-4efb-bd06-f7cf29d4ab96

State v. Sundberg

S058116

oregon

Oregon Supreme Court

Filed: February 17, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. ARICK TITUS SUNDBERG, Petitioner on Review. (CC 05102194; CA A135487; SC S058116) Argued and submitted September 15, 2010. On review from the Court of Appeals.* Dennis N. Balske, Portland, argued the cause and filed the brief for petitioner on review. Janet A. Klapstein, Assistant Attorney General, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General. Walter J. Ledesma, Woodburn, filed a brief for amicus curiae Oregon Trial Lawyers Association. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** BALMER, J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. *Appeal from the Linn County Circuit Court, Glen D. Baisinger, Judge. 233 Or App 77, 225 P3d 89 (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. BALMER, J. This criminal case requires us to determine the circumstances, if any, that permit a trial court to empanel an anonymous jury.(1) Defendant was charged with several sex crimes. At the outset of trial, the trial court ruled that the names and certain other personal information of prospective jurors would not be disclosed to the parties, counsel, or the public. A jury was selected and empanelled, and the jury ultimately found defendant guilty of first-degree sexual abuse (ORS 163.427) and attempted unlawful sexual penetration (ORS 161.405(2)(b); ORS 163.411). Although defendant had objected to the use of anonymous prospective jurors at the time of jury selection, the Court of Appeals held that his later actions constituted a waiver of that objection and affirmed defendant's conviction. State v. Sundberg, 233 Or App 77, 225 P3d 89 (2009). For the reasons set out below, we conclude that defendant properly preserved, and did not waive, his objection to the anonymous jury. We further conclude that the trial court erred in using an anonymous jury without determining that withholding the names of jurors was justified on security or other grounds and without taking any steps to mitigate possible prejudice to defendant. FACTS AND PROCEDURAL HISTORY We take the facts from the Court of Appeals opinion and the record. In reviewing a judgment of conviction, we state the facts in the light most favorable to the state. See, e.g., State v. Gibson, 338 Or 560, 562, 113 P3d 423, cert den, 546 US 1044 (2005) (so stating). In August 2005, the victim, along with her mother, siblings, and a friend of her mother's, visited defendant, who was the victim's uncle. The victim was 10 years old at the time. While in defendant's yard, defendant gave the victim a piggyback ride, during which he placed his fingers inside the victim's underwear and touched the victim in a sexual manner. The victim reported defendant's behavior to her stepmother, who contacted the police. As noted, defendant was indicted for various sex abuse crimes and, after a jury trial, was convicted of attempted sexual penetration and sexual abuse. On the day of defendant's trial, another criminal trial was being held in another courtroom in the Linn County Courthouse. There were insufficient jurors at the courthouse that day to conduct voir dire simultaneously for both defendant's trial and the other trial. The two trial judges decided that voir dire for the other trial would be conducted in the morning in the courtroom where the other case was being tried, and then, in the afternoon, jurors who had not been selected for service in the other case would become part of the jury pool for defendant's trial. During voir dire in the other criminal case, prospective jurors revealed their names, addresses, and places of employment as part of the jury selection process. During preliminary proceedings in defendant's trial, and before voir dire, the trial court told defense counsel that the court intended to use juror numbers instead of names. Defense counsel stated that this procedure was new to him but raised no objection. The court then recessed for approximately five hours while voir dire was completed in the other case. That afternoon, at the start of voir dire in defendant's case, defense counsel stated that he had been unaware that he would not receive jurors' names at all until "just a little bit ago." Rather, defense counsel said that he thought that the trial court's earlier comments meant only that the jurors would be called by number and that he would still receive a list of the jurors' names. Defense counsel objected to the court's procedure, stating that he was concerned that he would be unable to discover sufficient information about the jurors. In response, the trial court explained: "[W]e adopted the procedure partly in response to a concern of a number of jurors last year, over time, but it kind of culminated last year, that did not want their name known to litigants, and we checked around and quite a number of the counties in the state are doing this, not a majority, but a number of them. So we are doing it and they're referred to by numbers. And if you want to, you can ask them questions about their knowledge. A question on voir dire isn't your knowledge of them, it's their knowledge of you and your case or the type of case." The trial court then overruled defendant's objection. During voir dire, jurors were told not to reveal their names, addresses, or the names of their employers.(2) Jurors could state the type of employment in which they were engaged and describe the area in which they lived, but not give specifics. When some jurors started to identify their employers or their spouses' employers, the court cautioned them against doing so. After the jury returned a guilty verdict, defendant filed a motion for a new trial under ORCP 64 B(1)(3) on the ground, among others, that the anonymous jury selection process was an "irregularity" at trial that denied him an impartial jury and a fair trial in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.(4) Defendant asserted that there was no compelling reason for the trial court to use an anonymous jury and, more specifically, that defendant was prejudiced because different procedures had been used during voir dire for the other case, where jurors' names were revealed. Defendant argued that those jurors who had participated in or watched voir dire in both courtrooms would have noticed the different procedures and might have concluded that defendant was dangerous, thus violating defendant's right to an impartial jury and to the presumption of innocence.(5) The trial court denied defendant's motion. Defendant appealed, assigning error, inter alia, to the trial court's denial of his motion for a new trial. The Court of Appeals affirmed, concluding that defendant had waived any right to a new trial based on jury irregularities by not objecting before the jury returned a guilty verdict. Sundberg, 233 Or App at 88. The Court of Appeals noted that defendant did not ask the trial court to make findings to justify the use of an anonymous jury, did not request any cautionary instruction to mitigate any adverse inference that the jury might draw from that procedure, and did not assert that the procedure implied any dangerousness on defendant's part. Id. As to the fact that juror names were disclosed during jury selection in the other trial, the Court of Appeals concluded that defendant knew that a number of jurors had gone through voir dire previously and should have inquired further about the procedures in that courtroom if defendant had concerns about the propriety of voir dire in his trial. In the Court of Appeals' view, defendant "knew of and failed to object to those purported irregularities," id., and therefore waived any right to a new trial based on them. Id. at 89. PRESERVATION It is undisputed that defendant objected during jury selection when he learned that he would not receive the names of jurors, stating that he would be unable to gather sufficient information about them to conduct adequate voir dire. Although defendant did not cite the Oregon or United States constitutions at that time, his concern that the procedure would hinder his ability to obtain an impartial jury was apparent. The trial court overruled his objection. Defendant then raised the objection again in his motion for a new trial, this time asserting that the anonymous jury procedure violated state statutes and the Oregon and United States constitutions. In addition to arguing that he was prevented from conducting adequate voir dire, defendant, in his motion for a new trial, also asserted that the unexplained use of anonymous prospective jurors would cause jurors to think that defendant was dangerous, and he cited a federal case for that proposition. Thus, defendant preserved his core claim -- that he was entitled to have access to juror names during jury selection -- by putting the trial court on notice when that purported error occurred and providing the court an opportunity to correct it, see State v. Haugen, 349 Or 174, 199, 243 P3d 31 (2010) (preservation requirement intended to allow trial court to correct errors as they occur), and, in his motion for a new trial, he articulated additional reasons that he believed the use of an anonymous jury was error and cited appropriate legal authorities for that position. The state nevertheless argues that defendant's objection was not preserved because he failed to ask the trial court to make findings to support its decision to empanel an anonymous jury. That argument ignores the trial court's statement, in response to defendant's initial objection, that the circuit judges in Linn County had "adopted the procedure" of using anonymous juries and "we are doing it." Clearly, the trial court's view was that the procedure had been adopted as a general rule, that the court was going to follow the procedure, and that findings were not needed to justify the procedure in any particular case. Similarly, the state faults defendant for not requesting a jury instruction that would have provided a neutral explanation for the anonymous jury and mitigated any prejudice to him. However, defendant's central argument -- in his motion for a new trial and on appeal -- was not based on a claim that the trial court erred in failing to give a particular instruction, but rather on the claim that the use of an anonymous jury without any determination by the trial court that anonymity was necessary to protect the jurors from harm, intimidation, or harassment violated his right to trial by an impartial jury. The state is correct that, in making his initial objection in the trial court, defendant did not argue that the anonymous jury procedure compromised the presumption of innocence to which he was entitled under Article I, section 11, or the Sixth Amendment. However, defendant did express concern about his ability to conduct adequate voir dire if he was not permitted to know the names, addresses, and employers of the prospective jurors or their spouses. That concern directly implicates a defendant's right to an "impartial jury" that is protected by Article I, section 11. Nothing suggests that this is a situation where a party "learns the facts" regarding an irregularity during trial and "suppress[es] those facts, in the hope of a favorable verdict, and then rel[ies] upon the same facts after an adverse verdict has been returned" to file a motion for a new trial. See Moore v. Adams, 273 Or 576, 579, 542 P2d 490 (1975) (stating that motion for new trial should not be granted in those circumstances). Defendant's objections prior to voir dire and in his new trial motion sufficiently preserved for appeal his argument that the trial court's use of an anonymous jury violated his Article I, section 11, rights. See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (distinguishing between raising an "issue at trial," identifying a "source for a claimed position," and "making a particular argument," and asserting that only the first is "essential"). MERITS Anonymous jury selection is an issue of first impression for this court. We begin by examining the grounds offered by the trial court for empanelling an anonymous jury. If the trial court was without authority to bar the parties from learning the identities of prospective jurors, then the trial court in this case erred in doing so, and we need not consider defendant's constitutional arguments. At the hearing on defendant's motion for a new trial, the court stated that anonymous juries, as used in Linn County, were expressly authorized by ORS 10.205(2),(6) and the state takes the same position before this court. We disagree that the statute addresses the procedure that the trial court invoked in this case. By its terms, ORS 10.205(2) allows the presiding judge to pair juror names with numbers and then to use those numbers to compile jury lists and select jurors in order to "promote efficiency of the selection process." Nothing in the statute suggests that it was intended to authorize a trial court to prevent parties from learning the names, employers, and other identifying information about prospective jurors during voir dire. The trial court here did not simply "use juror identification numbers in place of juror names" to "promote efficiency" in the selection process, but rather viewed the statute as authority to withhold the names and other information regarding individual jurors. Indeed, the rationale offered by the trial court when defendant objected to the procedure was not efficiency or administrative convenience, but rather that previous jurors in the county had not wanted their names disclosed to litigants.(7) Although ORS 10.205(2) does not itself address or authorize anonymous juries, trial courts traditionally have had wide latitude in conducting the trials over which they preside, including jury selection and voir dire. See, e.g., State v. Barnett, 251 Or 234, 237-38, 445 P2d 124 (1968) ("The scope of voir dire examination is in the trial court's discretionary power to efficiently and expeditiously conduct the trial."); Ross v. Oklahoma, 487 US 81, 88, 108 S Ct 2273, 101 L Ed 2d 80 (1988) (peremptory challenges "are a means to achieve the end of an impartial jury" but are not constitutionally required). And while this court has not previously addressed the issue of whether trial judges have authority to empanel anonymous juries, state and federal courts that have considered the issue have concluded that they do -- in limited circumstances. See, e.g., U. S. v. Amuso, 21 F3d 1251, 1264 (2d Cir), cert den, 513 US 932 (1994) (trial court may use anonymous jury to protect jurors' privacy and security, but also must protect defendant's presumption of innocence and right to conduct voir dire); U. S. v. Paccione, 949 F2d 1183, 1192 (2d Cir 1991), cert den, 505 US 1220 (1992) (trial court may use anonymous jury if court determines there is "strong reason" to protect jury and court takes steps to minimize "prejudicial effects" on defendant and protects defendant's "fundamental rights"); Commonwealth v. Angiulo, 415 Mass 502, 527, 615 NE 2d 155, 171 (1993) (anonymous jury permitted on case-specific basis based on written findings; trial court must take steps to protect defendant's constitutional rights); State v. Ross, 174 P3d 628, 636 (Utah 2007) (trial court has discretion to use anonymous jury, but must find "compelling reason" based on jury protection and take reasonable precautions to protect defendant's rights). In the absence of any indication that Oregon law imposes an absolute prohibition on a trial court's use of an anonymous jury, we conclude that trial courts have the authority to require that the jury be seated without disclosing the names, addresses, and employers of prospective jurors to the parties. Like other decisions concerning the conduct of a trial, however, the trial court's authority to empanel an anonymous jury must be exercised consistently with the defendant's constitutional rights. Accordingly, we turn to defendant's argument that the trial court's use of an anonymous jury in this case violated his Article I, section 11, right to "trial by an impartial jury." Defendant identifies two different ways in which the trial court's decision to empanel an anonymous jury violated that right. First, he asserts that, without knowing the names, addresses, or employers of jurors, his ability to conduct adequate voir dire and obtain the constitutionally guaranteed "impartial" jury was impaired. Second, he argues that the trial court's use of an anonymous jury -- without any explanation to the jury about why they were prohibited from disclosing their names, addresses, or employers -- may have caused the jury to conclude that defendant was dangerous, thus threatening the presumption of innocence to which he was constitutionally entitled. Defendant agrees that there are circumstances in which an anonymous jury would be constitutionally permissible, but argues that in this case the trial court made no findings as to any need to protect jurors by ensuring their anonymity and also failed to take any other steps to minimize possible prejudice to him. Defendant suggests that this court, in applying Article I, section 11, should adopt a version of the test used by a number of federal and state courts, which permits an anonymous jury only when the trial court determines that "there is a strong reason to believe that the jury needs protection" and takes "reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected." Paccione, 949 F2d at 1192. The state responds that legitimate concerns about security, privacy, and intimidation often will support a trial court's decision to protect juror identities. Further, the state argues, juror anonymity will rarely be problematic, because specific names and addresses will rarely have any bearing on juror bias; rather, it is the jurors' personal experience with the type of crime in question and their knowledge of counsel, parties, and witnesses that is relevant to possible bias. Those matters, the state urges, can be sufficiently probed during voir dire even if the jurors' names are not disclosed. As to the concern that an anonymous jury may suggest a defendant's guilt, the state asserts that there is no basis for jurors to assume that anonymous juries are not routine and that jurors thus are unlikely to view a defendant in a case with an anonymous jury as dangerous. In assessing defendant's argument that the use of an anonymous jury violates Article I, section 11, we first consider the wording of that provision, the historical circumstances that gave rise to it, and the case law interpreting it. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). Nothing in the text or historical background of Article I, section 11, indicates that a defendant's right to an "impartial jury" includes a constitutional right to be provided with the names of jurors. The practice, in Oregon and elsewhere in the country, since before ratification of the Oregon Constitution, has been for jurors' names to be known. See W. H. Gray, A History of Oregon 396 (1870) (documenting jurors' names in 1845 trial in Willamette Valley); Kory A. Langhofer, Unaccountability at the Founding: The Originalist Case for Anonymous Juries, 115 Yale LJ 1823, 1825 (2004) (noting that jurors' names were generally known to litigants in late 1700s). Aside from the fact that litigants ordinarily had access to jurors' names, however, nothing in the historical or legal record suggests that access to juror names was itself considered a constitutional right. We turn to our cases discussing Article I, section 11, more generally. In State v. Amini, 331 Or 384, 15 P3d 541 (2000), this court analyzed the impartial jury requirement of Article I, section 11, and concluded: "The * * * history of trial by jury reveals that, by the eighteenth century, the requirement of an impartial jury reflected several related concerns, including that jurors be honest, that they not be interested in the outcome of the case, and that they be free from influence by the parties, particularly by the state." Id. at 391. An "impartial jury," then, is one "that is not biased in favor of or against either party, but is influenced in making its decision only by evidence produced at trial and legal standards provided by the trial court." Id. More recently, we relied on Amini in State v. Cavan, 337 Or 433, 445, 98 P3d 381 (2004), in concluding that the impartial jury guarantee also protects a defendant from "impermissible influences of [the trial] environment" that imply a defendant's guilt to the jury. In Cavan, the defendant, an inmate accused of assaulting a corrections officer, was tried in a courtroom that was located in the visitor's center of the Snake River Correctional Institution. Jurors were screened through metal detectors and required to store their personal belongings outside the courtroom; the prison doors were locked behind them after they entered. This court held that holding the trial in a prison, "an inherently dangerous place[,]" deprived the setting of the "aura of neutrality" that attends a public courthouse and implied to the jury "the overriding impression of a defendant's dangerousness and * * * by extension his * * * guilt" in violation of Article I, section 11. Id. at 448. We cited earlier cases in which we had "acknowledged the possibility that external factors may influence jurors after they have been impaneled and that such forces may affect the jurors unconsciously." Id. at 445, citing State v. Montez, 309 Or 564, 575, 789 P2d 1352 (1990). For example, the concern that jurors will consider a defendant who appears in court in shackles or other visible restraints to be dangerous -- thereby undermining the presumption of innocence -- is the basis for decisions requiring that a trial court make specific findings of fact to support a conclusion that restraints are necessary before the court may permit or require them. See State v. Farrar, 309 Or 132, 156, 786 P2d 161 (1990) (illustrating proposition).(8) We agree with defendant that Amini and Cavan demonstrate that the impartial jury guarantee protects a defendant both from individual jurors who are biased and from external factors, such as courtroom conditions, suggesting a particular defendant's dangerousness or guilt. The "touchstone of impartiality" is "the juror's ability to set aside any pre-existing opinions or impressions" and to decide the case based on the facts and law presented at trial. State v. Evans, 344 Or 358, 362, 182 P3d 175 (2008). Empanelling an anonymous jury can affect a defendant's right to such an impartial jury, first, by hindering his ability to conduct voir dire and select jurors who are impartial, and second, because it is an external factor -- not the facts or the law -- that may compromise the jury's ability to remain impartial by implying that a defendant is dangerous, thus undermining the presumption of innocence. See Cavan, 337 Or at 448-49 (trying defendant in courthouse located in prison for crime committed in that prison created trial environment that was incompatible with jury impartiality). To be sure, anonymity may also imply a legitimate concern for juror privacy unrelated to the dangerousness of a defendant. But in a criminal case, there is a significant risk that members of the jury might infer that their names were being withheld to protect them from defendant or others acting on his behalf.(9) The state is correct that voir dire can be conducted without knowing the jurors' names, addresses, and employers, and we do not suggest that disclosure of such information always is necessary to achieve an impartial jury. However, knowing those facts obviously facilitates effective selection of an impartial jury and, in some cases, may be crucial. If McCoy is on trial, she will want to know if any of the prospective jurors are Hatfields. Additionally, the state's argument that anonymous juries do not suggest guilt is essentially circular: If anonymity were the norm, jurors would view it as normal. That is true, of course, but the historical practice, in Oregon and elsewhere, is that juror identities generally have been known to litigants. The withholding of juror names has not been the norm. And, in this case, at least some prospective jurors had the personal experience on the very day of defendant's trial -- based on participating in voir dire in the other trial -- of their names and other indentifying information being disclosed as part of the jury selection process. We agree with the other state and federal courts that have held that anonymous juries are permissible only if the trial court "concludes that there is a strong reason to believe that the jury needs protection" and the court takes "reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected." Paccione, 949 F2d at 1192; see also U. S. v. Fernandez, 388 F3d 1199, 1244 (9th Cir 2004), cert den, 544 US 1043 (2005); U. S. v. Ross, 33 F3d 1507, 1519 (11th Cir 1994), cert den, 515 US 1132 (2005); State v. Ross, 174 P3d 628 (Utah 2007); State v. Ivy¸188 SW 3d 132 (Tenn 2006), cert den, 549 US 914 (2006) (all to similar effect). Under the first part of that test, the trial court must make a determination that the circumstances of the particular trial provide sufficient grounds to believe that jurors need the protection provided by anonymity. One federal court identified a nonexclusive list of factors to be considered in deciding when it is appropriate to withhold juror names: "(1) the defendants' involvement with organized crime; (2) the defendants' participation in a group with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that the defendants will suffer lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment." Fernandez, 388 F3d at 1244; see also U. S. v. Branch, 91 F3d 699, 724 (5th Cir 1996), cert den, 520 US 1185 (1997) (anonymity justified in light of extensive media attention). While we do not endorse any particular list of "factors," we believe that a trial court has the authority to protect jurors from the risk of physical harm, intimidation, or harassment -- whether by parties, the press, or the public -- by withholding juror names and other identifying information. But a determination that such a risk exists must be made on the facts of each case -- and not on the basis of a generalized desire to protect the anonymity of all jurors in all cases in the interests of juror privacy.(10) See State v. Tucker, 259 Wis 2d 484, 498-99, 657 NW 2d 374, 381 (2003) (court erred in adopting practice of empanelling anonymous juries in all drug cases without individualized determination of need). If grounds exist to empanel an anonymous jury, then the trial court may do so, but it must take reasonable precautions to ensure that the defendant's right to an impartial jury is protected. Those steps may differ depending on the circumstances at trial. In U. S. v. Lawson, 535 F3d 434 (6th Cir 2008), for example, the trial court mitigated the potentially adverse effect of anonymity on jury selection by permitting extensive voir dire regarding "each prospective juror's community of residence, education, and type of work experience." Id. at 440. And to counter any suggestion that the use of an anonymous jury means that a defendant is dangerous and, by inference, guilty, trial courts have provided neutral explanations for withholding juror identities. See Fernandez, 388 F3d at 1245 (trial court took sufficient steps to protect defendant by offering jury neutral explanation for anonymity focused on juror confidentiality and suggestion that anonymous juries were routine); Ross, 174 P3d at 638 (trial court "should give anonymous jurors a plausible and nonprejudicial reason for not disclosing their identities that decreases the probability that the jurors would infer that defendant is guilty or dangerous"); Lawson, 535 F3d at 440 (trial court explained that anonymous jury was needed to ensure fair trial, given large number of defendants and prospective jurors). Having set out the analysis to be followed to determine whether the use of an anonymous jury violates a defendant's Article I, section 11, right to an impartial jury, we return to the facts of this case. As noted, when defendant objected to the anonymous jury, the trial court announced that the Linn County circuit judges had agreed to withhold the names and other identifying information of prospective jurors and that the trial court would "follow that procedure" in defendant's case. The trial court stated that the procedure was adopted because some jurors in the past had objected to the disclosure of their names to litigants. The trial court also indicated that the procedure was being used in all jury trials in the county, although, as it turned out, juror names were disclosed in another criminal trial being conducted in the same courthouse on the same day as defendant's trial. The trial court did not explain to the jurors why they were not allowed to disclose their names during voir dire, nor did the court give any neutral explanation, either before trial or as part of the jury instructions, for the anonymous jury procedure. This court's standard of review of a trial court's denial of a motion for a new trial depends on the nature of the alleged trial court error. When a party asserts that the trial court erred in ruling on a matter that is committed to the discretion of the trial court, we review for abuse of that discretion. See, e.g., Farrar, 309 Or at 158 (reviewing trial court's decision to shackle defendant during trial for abuse of discretion). However, when the alleged irregularity at trial is based on a matter of law, we review for legal error. See Bennett v. Farmers Ins. Co., 332 Or 138, 151, 26 P3d 785 (2001) (so stating). Here, defendant argues that the trial court violated his right to an impartial jury under Article I, section 11, by empanelling an anonymous jury without making findings that the circumstances of his case justified withholding juror names and without taking steps to mitigate any adverse impact of that action, such as giving the jury a neutral explanation of the reason for the anonymous jury. Although defendant asserts at one point is his brief that the trial court "abused its discretion," his central argument is not that the trial court erred in exercising its discretion to empanel an anonymous jury, but rather that it failed to exercise discretion at all.(11) In our view, that is a legal argument that defendant was denied his Article I, section 11, right to an impartial jury. We agree with defendant that the trial court did not make any findings that would support the use of an anonymous jury in this case. Because, for the reasons discussed above, Article I, section 11, permits an anonymous jury only when the trial court finds that the circumstances of a particular case justify that practice and takes steps to mitigate any prejudice to defendant, we conclude that the trial court erred. Having determined that the trial court erred, we must now decide if that error was harmless.(12) An error is harmless if there is little likelihood that it affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). As discussed above, the use of an anonymous jury can cause prejudice to a defendant by suggesting to jurors that the defendant may be dangerous and, by extension, guilty. See Cavan, 337 Or at 448 (impression of dangerousness may imply guilt of defendant and violate right to trial by impartial jury). That implication undermines the presumption that the defendant is innocent. The possibility that jurors might draw such an implication was heightened in this case because a number of prospective jurors had participated in standard voir dire, where they had disclosed their names, addresses, and employers, on the same day in another courtroom. Moreover, the risk that the use of an anonymous jury may have prejudiced the defendant was particularly great in this case. The indictment charged two sexual offenses arising out of a single incident. There was no physical evidence of abuse and there were no witnesses to the alleged abuse, other than defendant and the victim. Much of the trial testimony revolved around the credibility of both defendant and the victim. In contrast to cases in which there is physical evidence of harm, expert testimony regarding DNA or other evidence linking defendant and victim, or other witnesses who provide admissible independent testimony to support the state's case, this case, in large part, turned on whether the jury believed defendant or the victim. In the circumstances of this case, the unexplained use of an anonymous jury created too great a risk that the jury may have believed that defendant was dangerous -- and, therefore, that he was more likely to be guilty, denying defendant the right to a trial by an impartial jury. The error was not harmless, and defendant is entitled to a new trial.(13) 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 do not address the other issues that defendant raises on review. 2. Neither party suggests that different legal principles should apply to the different categories of personal information -- names, addresses, employers -- that the trial court directed the prospective jurors not to disclose. The trial court and the Court of Appeals' rulings also do not distinguish between those categories. For convenience, we use the term "anonymous jury" to refer to the individuals in the jury pool and the empanelled jury in this case whose names, addresses, and employers were withheld from the parties at the direction of the trial court. 3. ORCP 64 B provides, in part: "A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: "(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having fair trial." ORS 136.535 provides that ORCP 64 B applies to motions for new trial in criminal cases. 4. Article I, section 11, provides, in part, that "[i]n all criminal prosecutions, the accused shall have the right to public trial by an impartial jury[.]" The Sixth Amendment to the United States Constitution provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury[.]" 5. Some of the prospective jurors in defendant's trial had participated in voir dire in the other courtroom; however, the record does not indicate whether any of them were selected for defendant's jury. 6. ORS 10.205(2) provides: "The presiding judge for the judicial district may authorize the use of juror identification numbers in place of juror names in the performance of functions under ORS 10.215 to 10.265, 132.020 and ORCP 57 B for the selection of jurors in the county, except for functions under ORS 10.215(4) and 10.225(3), when to do so would promote the efficiency of the selection process, but the selection must be done randomly." 7. Defendant does not suggest, and the record does not reflect, that the trial court used the anonymous jury procedure in bad faith or out of any ill will towards defendant. Rather it seems clear that the trial court was simply implementing a policy that apparently had been agreed upon by the Linn County circuit judges. The record does reflect, however, that some jury trials in Linn County -- including the criminal trial being conducted in another courtroom at the same time as defendant's trial -- did not use anonymous juries. 8.  Similarly, under the United States Constitution, certain treatment of criminal defendants, like requiring them to wear prison clothes or appear in shackles before a jury, may suggest that the defendant is dangerous and thereby imply guilt in violation of the Sixth and Fourteenth Amendments, in the absence of sufficient justification. See Estelle v. Williams, 425 US 501, 504-05, 96 S Ct 1691, 48 L Ed 2d 126 (1976) (requiring defendant to wear prison clothes unconstitutional); Illinois v. Allen, 397 US 337, 344, 90 S Ct 1057, 25 L Ed 2d 353 (1970) (shackling defendant impairs the presumption of innocence but may be justified in compelling circumstances). 9. Other courts have reached similar conclusions. See, e.g., U. S. v. Ross, 33 F3d 1507, 1519 (11th Cir 1994), cert den, 515 US 1132 (1995) ("An anonymous jury raises the specter that the defendant is a dangerous person from whom jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence.") 10. We note, in passing, another reason that has been offered for disclosure of juror identities, at least in the absence of specific grounds for maintaining anonymity. In State v. Lewis, 18 Or App 206, 524 P2d 1231 (1974), the Court of Appeals reversed a criminal conviction because the jury poll was conducted anonymously; that is, the jurors, who had voted 10-2 for conviction, did not have to indicate which of them voted for or against conviction. The court interpreted the statute authorizing the jury poll to prohibit an anonymous poll, because that would "permit[] each juror to effectively avoid his individual responsibility to the defendant and the public." Id. at 210. The court acknowledged that "fear of reprisal" might have been the basis for the jurors' desire for anonymity, but concluded that that concern was not supported by the record. The court stated, "If the institutions we profess to cherish are to continue we cannot cast them aside on every occasion on which it appears expedient to do so." Id. at 211. That argument against anonymity in the jury trial process was not asserted by defendant here, however, and we do not rely on it in this case. 11. If the trial court had made a determination that the circumstances of defendant's case justified the use of an anonymous jury and had taken steps to ensure defendant's right to an impartial jury -- and had defendant been convicted and asserted on appeal that the anonymous jury violated his Article I, section 11, rights -- then we would review the trial court's ruling under an abuse of discretion standard. 12. We note that the state has not argued that, if the trial court erred in empanelling an anonymous jury, that error nevertheless was harmless. 13. Because we reverse the judgment of conviction on the anonymous jury issue, we do not reach defendant's claim that the use of metal detectors also violated his right to an impartial jury in violation of Article 1, section 11. Similarly, because we decide this case under the Oregon Constitution, we do not address defendant's federal constitutional claims.

414c56109de3f642bc2db9d7c680be18df8aad94211944515e9bbd74bef99bd0

2011-02-17T00:00:00Z

91bfbfed-b428-4327-8e16-3d17cc5a625f

Abraham v. T. Henry Construction, Inc.

S058073

oregon

Oregon Supreme Court

Filed: March 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON RICHARD ABRAHAMand JANICE ABRAHAM,husband and wife,as trustees for theRichard D. Abraham and Janice M. Abraham Trust, Respondents on Review, v. T. HENRY CONSTRUCTION, INC.,an Oregon corporation;STELMEN PLASTERING, INC.,an Oregon corporation;NORTHWEST GUTTER SERVICE, INC.,an Oregon corporation;MILGARD MANUFACTURING, INC.,a Washington corporation;STEVE PFENNING CONSTRUCTION, INC.,an Oregon corporation;DAVID FARWELL,an individual,dba David Farwell Masonryand David Oregon Farwell;ONE CUT CARPENTRY, LLC,fka One Cut Carpentry, Inc.,aka Herold's Carpentry;and MADDOX ENTERPRISE, INC.,an Oregon corporation, Defendants, and KEITH A. LUCAS,an individual,dba Keith Lucas Development Properties, Petitioner on Review, and KEVIN G. MAYO,an individual,dba KGM Construction, Petitioner on Review. KEITH A. LUCAS,dba Keith Lucas Development Properties, Third-Party Plaintiff, v. ENERGY PRODUCTS, INC.,an Oregon corporation,dba NW Builders Wholesale;RONALD L. HARDY,dba Hardy Plumbing & Heating;JB INSULATION, INC.,an Oregon corporation;KIRK'S CONSTRUCTION UNLIMITED,an Oregon corporation;MILWAUKIE PLUMBING CO.,an Oregon corporation,dba MP Plumbing Co.;TOM PACHECO,fka Tom D. Pacheco Masonry;and MEL WIELRICH, Third-Party Defendants. (CC CV06060031; CA A136228; SC S058073 (Control), S058101) On review from the Court of Appeals.* Argued and submitted November 8, 2010. Matthew J. Kalmanson, Hoffman, Hart & Wagner, LLP, Portland, argued the cause for petitioners on review and filed the briefs for petitioner on review Keith A. Lucas. With him on the briefs was Janet M. Schroer. Kenneth L. Walhood, Blunck & Walhood, LLC, West Linn, filed the briefs for petitioner on review Kevin G. Mayo. Maureen Leonard, Portland, argued the cause and filed the brief for respondents on review. With her on the brief were Robert K. Udziela, Portland, and Lisa T. Hunt, Portland. Cody Hoesly, Larkins Vacura LLP, Portland, and Travis Eiva, Corson & Johnson Law Firm, Eugene, filed the brief for amicus curiae Oregon Trial Lawyers Association. Jon Chandler, Salem, filed the brief for amici curiae Oregon Home Builders Association and The National Association of Home Builders. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** BALMER, J. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. *Appeal from Clackamas County Circuit Court, Robert D. Herndon, Judge. 230 Or App 564, 217 P3d 212 (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. BALMER, J. This case requires us to address an issue left open in Harris v. Suniga, 344 Or 301, 313, 180 P3d 12 (2008): Whether a claim for property damage arising from construction defects may lie in tort, in addition to contract, when the homeowner and builder are in a contractual relationship. Plaintiffs hired defendants(1) to build their house. Plaintiffs eventually discovered extensive water damage to the house. Plaintiffs then brought this action for breach of contract and negligence, alleging that the damage was caused by defendants' faulty work and failure to comply with the Oregon Building Code. Defendants moved for summary judgment on the grounds that the contract claim was barred by the statute of limitations and that plaintiffs could not bring a negligence claim because plaintiffs did not have a "special relationship" with defendants that implicated a standard of care independent of the contract. The trial court granted defendants' motions. On appeal, the Court of Appeals held that plaintiffs' contract claim was barred by the statute of limitations but that their negligence claim could go forward because the building code provided a standard of care independent of the terms of the contract. Abraham v. T. Henry Construction, Inc., 230 Or App 564, 217 P3d 212 (2009). We affirm the decision of the Court of Appeals, although we do so on somewhat different grounds. We take the facts from the Court of Appeals opinion and the summary judgment record. Plaintiffs hired defendant Keith Lucas to be general contractor for the completion of their house, after substantial work had been done by other contractors. Plaintiffs signed a contract with Lucas that required him to perform all work "in a workmanship like manner and in compliance with all building codes and other applicable laws." Plaintiffs also contracted with defendant Kevin Mayo to do the framing for the house.(2) Plaintiffs' house was substantially complete by January 1998. More than six years later, plaintiffs discovered extensive water damage, including rotting sheathing and framing, which they claim resulted from defects in defendants' work.(3) Plaintiffs filed this action alleging breach of contract and negligence. Plaintiffs' negligence claim presented three overlapping grounds for relief. Plaintiffs claimed that defendants were liable (1) under common law negligence for causing reasonably foreseeable harm to plaintiffs' property; (2) under a heightened standard of care created by the "special relationship" between plaintiffs and defendants, which defendants had failed to meet; and (3) under a theory of negligence per se for violating the building code. Plaintiffs sought money damages for the physical damage to the house, as well as for its diminution in value. Defendants moved for summary judgment, arguing that plaintiffs' contract claim was barred by the six-year statute of limitations contained in ORS 12.080(1). Regarding each of plaintiffs' negligence theories, defendants argued that a "special relationship" -- such as the one between a doctor and a patient or an attorney and a client -- was required to bring a tort claim and that plaintiffs had failed to demonstrate that such a relationship existed. In a letter opinion, the trial court held that plaintiffs' contract claim was barred by the statute of limitations. The court also held that plaintiffs' negligence claim was barred by Jones v. Emerald Pacific Homes, Inc., 188 Or App 471, 71 P3d 574, rev den, 336 Or 125 (2003), where the Court of Appeals, on similar facts, required a "special relationship" between the contracting parties for a plaintiff to bring a negligence claim and determined that such a relationship did not exist between a homeowner and a building contractor. Plaintiffs appealed, and the Court of Appeals affirmed the trial court's judgment on the contract claim and reversed on the negligence claim.(4) First, the court surveyed the law governing tort claims between contracting parties and determined that plaintiffs could not bring a common law negligence action without establishing a standard of care independent of the terms of the contract. That standard of care could arise from a "special relationship" between the parties or it could be expressed in a statute or administrative rule. Abraham, 230 Or App at 569. The court stated that, when a contract imposes only the general obligation to take reasonable care to avoid foreseeable risks, that standard of care does not impose a tort duty independent of the contract and therefore cannot be the basis for a negligence claim. Id. at 568 n 2 (citing Jones, 188 Or App at 477). The court then examined whether plaintiffs had shown that they were in a "special relationship" with defendants that established a standard of care independent of the contract. The court noted that parties are in a "special relationship" when one party delegates to the other the authority to make decisions for her benefit, such as a client's relationship with her attorney. The court determined that plaintiffs had not established that they had delegated responsibility to defendants to make independent decisions on behalf of plaintiffs and in plaintiffs' interest. Rather, plaintiffs had entered into an arm's-length transaction with defendants in which each party acted for its own benefit. Id. at 572. Accordingly, the Court of Appeals agreed with the trial court that plaintiffs and defendants were not in the kind of "special relationship" that imposed on defendants a heightened duty, the breach of which could be the basis for a tort action. The Court of Appeals, however, did agree with plaintiffs that a statute or administrative rule could establish a standard of care independent of the contract and that plaintiffs' allegations that defendants had failed to comply with the building code, thereby causing damage to plaintiffs' property, were sufficient to state a negligence claim under that theory.(5) Id. at 573. The court also held that plaintiffs had demonstrated that there was a genuine issue of material fact by providing an affidavit from their counsel stating that she had retained experts who would testify in support of the foregoing allegations. The Court of Appeals therefore reversed summary judgment on plaintiffs' tort claim and remanded the case to the trial court. On review, defendants argue that the Court of Appeals erred by holding that the building code created a standard of care independent of the contract between the parties.(6) In defendants' view, a party to a contract may bring a tort claim arising out of the breach of that contract only when the parties are in a "special relationship" that implicates a standard of care independent of the terms of the contract. For the reasons set out below, we conclude that neither a special relationship nor a statutory standard of care, such as the building code, is necessary to bring a negligence claim here. In our view, plaintiffs stated a common law negligence claim based on defendants' alleged failure to exercise reasonable care to avoid foreseeable harm to plaintiffs' property. That negligence claim is not foreclosed by their contract with defendants, because the terms of the contract do not purport to alter or eliminate defendants' liability for the property damage plaintiffs claim to have suffered. This case requires us to examine the circumstances in which harm to a person's property, caused by another, may be the basis for a contract claim or a tort claim -- or both. Contract obligations are "'based on the manifested intention of the parties to a bargaining transaction,'" whereas tort obligations are "'imposed by law -- apart from and independent of promises made and therefore apart from the manifested intention of the parties -- to avoid injury to others.'" Conway v. Pacific University, 324 Or 231, 237, 924 P2d 818 (1996) (quoting Prosser and Keeton on the Law of Torts, § 92, 655-56 (W. Page Keeton, ed., 5th ed 1984) (emphasis in Conway). Because tort liability is imposed by common law negligence principles, that responsibility exists unless altered or eliminated by a contract or some other source of law. In Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987), this court made that point with respect to common law negligence: "[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." Id. at 17. Thus, Fazzolari lays out a framework to address whether a common law negligence claim is legally cognizable even when there is a contractual relationship between the parties. In answering that question, we first consider whether plaintiffs alleged that defendants unreasonably created a foreseeable risk of harm to a protected interest, resulting in injury to plaintiffs. If so, we must determine whether the contract between the parties altered or eliminated defendants' common law duty to avoid harming plaintiffs. If it did not, then the contract does not bar plaintiffs from bringing a negligence action against defendants. Plaintiffs assert that contractors are subject to the common law negligence standard of care. See Harris, 344 Or at 307 ("[A] person whose negligent conduct unreasonably creates a foreseeable risk of harm to others and causes injury to another ordinarily is liable in damages for that injury."). In Harris, the defendant contractor had built an apartment building for a third party, which the plaintiff later purchased. The plaintiff discovered extensive water damage caused by the defendant's faulty work and brought a negligence claim. This court concluded that physical injury to a building caused by construction defects was property damage, rather than a purely economic loss, and thus actionable in negligence. Id. at 312. Defendants do not dispute that plaintiffs' alleged injury is property damage and not a purely economic loss. Defendants, however, assert that Harris has no bearing on the present case because the parties in that case were not in a contractual relationship. Although we agree that one difference between Harris and this case is plaintiffs' contract with defendants, that difference simply means that Harris is not dispositive; it does not make Harris irrelevant. Harris provides at least some support for plaintiffs' argument, because in that case this court recognized a negligence claim against a builder for the same type of injury alleged by plaintiffs -- damage to property resulting from construction defects. Because Harris recognized the same sort of negligence claim that plaintiffs now allege, under Fazzolari, the question here is whether plaintiffs' contract with defendants "creates, defines, or limits" that negligence claim. The contract's reference to performing the work "in a workmanship like manner and in compliance with all building codes and other applicable laws" simply reiterated the common law negligence standard that would have applied to defendants' work in the absence of a contract. It did not "create" or "define" any duty defendants did not already have. The question then is whether that reference "limited" plaintiffs' claims against defendants. Nothing in this court's cases suggests that, by entering into a contract, a party necessarily waives tort claims against another party to the contract. See Estey v. Mackenzie Engineering Inc., 324 Or 372, 376, 927 P2d 86 (1996) ("'[A] contract will not be construed to provide immunity from the consequences of a party's own negligence unless that intention is clearly and unequivocally expressed.'") (quoting Transamerica Ins. Co. v. U.S. Nat'l Bank, 276 Or 945, 951, 558 P2d 328 (1976)). Indeed, this court has long recognized that tort and contract remedies may coexist. See Ashmun v. Nichols, 92 Or 223, 235, 180 P 510 (1919) (so stating); Newman v. Tualatin Development Co. Inc., 287 Or 47, 49, 597 P2d 800 (1979) (certifying class action against contractor by plaintiffs alleging contract and tort claims arising from construction defects). In Georgetown Realty v. The Home Ins. Co., 313 Or 97, 831 P2d 7 (1992), this court summarized the case law discussing the choice between tort and contract remedies: "When the relationship involved is between contracting parties, and the gravamen of the complaint is that one party caused damage to the other by negligently performing its obligations under the contract, then, and even though the relationship between the parties arises out of the contract, the injured party may bring a claim for negligence if the other party is subject to a standard of care independent of the terms of the contract. If the plaintiff's claim is based solely on a breach of a provision in the contract, which itself spells out the party's obligation, then the remedy normally will be only in contract, with contract measures of damages and contract statutes of limitation. That is so whether the breach of contract was negligent, intentional, or otherwise." Id. at 106 (emphasis added). The parties disagree as to whether Georgetown allows common law negligence principles to provide the "independent standard of care" that must be identified for one party to bring a tort claim against the other, when the parties are in a contractual relationship. In defendants' view, Georgetown requires a "special relationship" to exist between contracting parties before the negligent performance of contract obligations can be the basis for a tort claim. According to defendants, it is the nature of the relationship between the parties -- such as the responsibility of one party to act for the other's benefit -- that implicates an independent standard of care. Plaintiffs respond that Georgetown requires only that there be some applicable standard of care independent of the terms of the contract, and they argue that such a standard can derive from a "special relationship" or from some other source of law, including the common law duty to use reasonable care to avoid injury to others. Defendants read Georgetown too broadly. Georgetown was a negligence action by an insured against its insurance carrier seeking economic damages that the insured had sustained because of the carrier's failure to use reasonable care in defending the insured. Because the plaintiff was seeking economic damages, it was required to demonstrate a "special relationship" in which the defendant agreed to act in the plaintiff's fiduciary interest. Georgetown, 313 Or at 110-11. However, Georgetown's general statements about the intersection of contract and tort claims, quoted above, do not turn on whether a special relationship exists, but rather require only a standard of care that is independent of the terms of the contract. See id. at 110 ("[T]he pivotal question * * * is whether the allegedly negligent party is subject to a standard of care independent of the terms of the contract."). That standard could be "independent" of the contract either because a "special relationship" imposes a heightened standard of care (as in Georgetown) or because the common law, statutes, or administrative rules impose liability regardless of the contractual relationship between the parties. See Boyer v. Salomon Smith Barney, 344 Or 583, 595, 188 P3d 233 (2008) ("[O]utside source[s] of law" such as "industry standards, statutes, or regulations, could * * * provide a basis in law for liability" in a negligence action.). Furthermore, this court's case law is clear that economic losses, such as the ones suffered by the plaintiff in Georgetown, are recoverable in negligence only if the defendant is subject to a heightened standard of care, such as one arising out of a special relationship. See, e.g., Onita Pacific Corp. v. Trustees of Bronson, 315 Or 149, 160-61, 843 P2d 890 (1992) (so holding). For physical damage to real property, however, "this court's cases generally permit a property owner to recover in negligence." Harris, 344 Or at 310-11. For those reasons, we agree with plaintiffs that Georgetown and earlier cases support the conclusion that common law negligence principles apply -- notwithstanding a contractual relationship -- as long as the property damage for which the plaintiff seeks recovery was a reasonably foreseeable result of the defendant's conduct. Thus, a negligence claim for personal injury or property damage that would exist in the absence of a contract will continue to exist unless the parties define their respective obligations and remedies in the contract to limit or foreclose such a claim. Parties may limit tort remedies by defining their obligations in such a way that the common-law standard of care has been supplanted, see Fazzolari, 303 Or at 17 (so stating), or, in some circumstances, by contractually limiting or specifying available remedies. See K-Lines v. Roberts Motor Co., 273 Or 242, 248, 541 P2d 1376 (1975) (illustrating proposition). Defendants argue that this approach undermines the distinction between contract and tort and would permit every breach of contract to be brought as a tort claim. Defendants are incorrect. An example will help demonstrate the difference between actions taken in the performance of a contract that can be the basis for a contract claim only, and those that may also provide a basis for a tort claim. If an individual and a contractor enter into a contract to build a house, which provides that the contractor will install only copper pipe, but the contractor installs PVC pipe instead (assuming both kinds of pipe comply with the building code and the use of either would be consistent with the standard of care expected of contractors), that failure would be a breach of contract only.(7) That is so because the contract defined the contractor's obligation to use a particular material (and no other), which the contractor then failed to do. See Georgetown, 313 Or at 106 (stating principle).(8) If the failure to install the copper pipe caused a reduction in the value of the house, the plaintiff would be able to recover that amount in an action for breach of contract. That would be a claim that, as this court stated in Georgetown, "is based solely on a breach of a provision in the contract[.]" 313 Or at 106 (emphasis added). On the other hand, if the contractor installed the PVC pipe in a defective manner and those pipes therefore leaked, causing property damage to the house, the homeowner would have claims in both contract and tort. The homeowner could recover in contract both for the failure to install copper pipe and for the failure to perform the contract in a reasonably skillful manner. See Cabal v. Donnelly, 302 Or 115, 121-22, 727 P2d 111 (1986) (illustrating contract claim). The homeowner also would have a tort claim for property damage to the house caused by the leaking pipes if the homeowner could prove that the contractor's failure to meet the standard of care caused the property damage. See id. ("'We see no reason to preclude a [home buyer] from claiming damages [from the home builder] in contract and in tort.'") (quoting Woodward v. Chirco Construction Co., 141 Ariz 514, 515-16, 687 P2d 1269, 1271 (1984)). In those circumstances, the obligation to install copper instead of PVC pipe is purely contractual; the manner of installing the pipe, however, implicates both contract and tort because of the foreseeable risk of property damage that can result from improperly installed pipes. We now return to the terms of the contract here to determine whether plaintiffs' claim sounded in common law negligence and, if so, whether the parties' contract altered or eliminated defendants' common law obligation to avoid reasonably foreseeable harm to plaintiffs' property or modified the remedies available to plaintiffs. The contract here provides: "All work shall be completed in a workmanship like manner and in compliance with all building codes and other applicable laws." The Court of Appeals apparently viewed that promise as implicitly incorporating the common law standard of care into the contract. In rejecting plaintiffs' argument that common law negligence principles provide an "independent standard of care," the court stated, "When a contract expressly or implicitly incorporates the general 'duty' to take reasonable measures to avoid foreseeable risks, that standard of care is not considered to impose an independent tort duty." Abraham, 230 Or App at 568 n 2. That determination, however, is inconsistent with this court's clear statement that if a 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 a claim for negligence will lie. Securities-Intermountain v. Sunset Fuel, 289 Or 243, 259, 611 P2d 1158 (1980). As noted, in the absence of a contractual relationship, defendants here would be subject to a common law negligence claim by plaintiffs. See Harris, 344 Or at 312 (contractor liable in negligence to nonprivity owner for property damage caused by construction defects). By merely reciting the obligation to build plaintiffs' house in a reasonably skilled manner and in accordance with the building code -- and, by implication, in such a way as to avoid foreseeable harm to plaintiff -- defendants did nothing to supplant the common law standard of care. Nor did the terms of the contract purport to limit the type or amount of plaintiffs' damages See Estey, 324 Or at 376 (tort remedies not waived absent express intent). Common-law negligence principles remain an applicable standard of care, independent of the terms of the contract. For the foregoing reasons, we conclude that plaintiffs' allegations of property damage against defendants state a claim for negligence. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. 1. Plaintiffs brought this action as trustees of a trust that owns the house. Plaintiffs named 11 defendants -- other contractors and subcontractors -- but only defendants Lucas and Mayo are parties to this appeal. 2. Plaintiffs' contract with Mayo is not in the record. The parties, however, have treated that contract as containing the same terms as the Lucas contract, at least as relevant to the issues on appeal. 3. The statute of limitations for contract actions is six years. ORS 12.080(1). Tort claims arising out of the construction of a house must be brought within two years of the date that the cause of action accrues, but, in any event, within 10 years of the house being substantially complete. ORS 12.110; ORS 12.135. Tort claims ordinarily accrue when the plaintiff discovers or should have discovered the injury. Berry v. Branner, 245 Or 307, 311-12, 421 P2d 996 (1966). 4. Plaintiffs ask this court to review the Court of Appeals decision that plaintiffs' contract claims are barred by the statute of limitations. We decline to do so. 5. Plaintiffs characterized their claim based on defendants' failure to comply with applicable building codes as "negligence per se." As the Court of Appeals correctly noted, however, negligence per se is not a separate claim for relief, but is simply shorthand for a negligence claim in which the standard of care is expressed by a statute or rule. See Shahtout v. Emco Garbage Co., 298 Or 598, 601, 695 P2d 897 (1985) (so stating). 6. Defendant Lucas also argues that the Court of Appeals erred in holding that the affidavit submitted by plaintiffs' counsel was sufficient to establish a genuine issue of material fact and therefore preclude summary judgment. We reject that argument without discussion. 7. In Securities-Intermountain v. Sunset Fuel, 289 Or 243, 259 n 9, 611 P2d 1158 (1980), this court identified other situations in which a breach of contract would not give rise to tort liability, even in the context of medical malpractice, because the breach did not "fall[] short of generally applicable professional standards of skill and care." 8. Whether the contractor's failure to install the contractually specified pipe was intentional or was the result of negligence, the action would, in any event, be for breach of contract. See Georgetown, 313 Or at 106 (so stating).

79c7d605dbf8fe4575622240483cb1abaf19bf0d91c0d9b6cea217792c7ddc2e

2011-03-10T00:00:00Z

6f35c8f9-9380-41ed-a790-3f644e1dfa6e

State v. Sierra

oregon

Oregon Supreme Court

Filed: February 17, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. JOAQUIN SIERRA, Petitioner on Review. (TC 05C40355; CA A136120; SC S057794) En Banc On respondent on review's petition for reconsideration filed January 11, 2011; considered and under advisement on January 26, 2011.* Michael A. Casper, Assistant Attorney General, Salem, filed the petition for reconsideration. With him on the petition were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. No appearance contra. DURHAM, J. The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified. *349 Or 506, ___ P3d ___ (2010); on review from the Court of Appeals, 228 Or App 149, 206 P3d 1153 (2009). DURHAM, J. The state seeks reconsideration of this court's opinion in State v. Sierra, 349 Or 506, __ P3d __ (2010). We allow the petition for reconsideration, modify our earlier opinion as described below, and, as modified, adhere to that opinion. In this case, a jury convicted defendant of a number of crimes, including one count of kidnapping in the first degree and two counts of kidnapping in the second degree. On review, defendant challenged the sufficiency of the evidence supporting his three kidnapping convictions. This court affirmed defendant's conviction for first-degree kidnapping but reversed the two convictions for second-degree kidnapping. Id. at 520. This court explained that the state introduced sufficient evidence to prove the charge of kidnapping in the first degree, but held that "the state introduced insufficient evidence to prove the two charges of kidnapping in the second degree. As a result, the trial court erred in denying defendant's motion for judgment of acquittal on those charges. We reverse the trial court's judgment as to those two charges and remand the case to the trial court so that that court can enter a judgment of acquittal as to those charges." Id. at 518 (footnote omitted). Consistent with that conclusion, the final paragraph of our opinion stated: "The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings." Id. at 520. The state seeks reconsideration, requesting that we clarify the scope of our instructions on remand. The state asserts that, in light of our instruction to the trial court to enter a judgment of acquittal as to the second-degree kidnapping charges, it is not clear whether the "further proceedings" on remand include resentencing on defendant's remaining convictions. We allow reconsideration in order to clarify the scope of our instructions on remand. In a felony case, when an appellate court reverses one or more of a defendant's convictions but also affirms one or more convictions, ORS 138.222(5)(b) mandates that the appellate court remand for resentencing on the remaining convictions.(1) ORS 138.222(5)(b) provides: "If the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts." Our opinion in this case did not limit the scope of "further proceedings" on remand to exclude resentencing. Nonetheless, because we agree with the state that ORS 138.222(5)(b) requires this court to remand for resentencing in this case, we will make our instructions on remand more explicit. 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 is reversed, and the case is remanded to the circuit court for entry of judgment of acquittal on the two second-degree kidnapping counts, for resentencing on the remaining counts, and for further proceedings." The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified. 1. We note that it appears that defendant already may have served the sentences for some of his remaining convictions. We are not presented with the issue of how that fact may affect the trial court's authority on resentencing. See State v. Smith, 323 Or 450, 454, 918 P2d 824 (1996) (holding that "a sentencing court lacks the authority to modify a valid sentence once the original sentence * * * has been served" in its entirety). We, therefore, express no opinion on that issue.

fe5f597c36cf972e35aa0ed9f3228c251c0f5688e6293491c823d1b73f2bbc6c

2011-02-17T00:00:00Z

0ed65c71-d031-4d31-81d2-428f1ef7cc7c

State v. Fowler

S058769

oregon

Oregon Supreme Court

Filed: April 7, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. TOMI SUE FOWLER, Petitioner on Review. (CC 07-08-8861C1; CA A140410; SC S058769) On petition for review filed September 1, 2010.* Bear Wilner-Nugent, Portland, filed the petition for petitioner on review. Jeff J. Payne, Assistant Attorney General, Salem, filed the response for respondent on review. With him on the response were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, Linder, and Landau, Justices.** KISTLER, J. The petition for review is allowed in part. The decision of the Court of Appeals is vacated in part, and the case is remanded to the Court of Appeals with instructions to dismiss defendant's appeal from the supplemental judgment for lack of jurisdiction. *Appeal from Malheur County Circuit Court, Patricia Sullivan, Judge. 236 Or App 239, 236 P3d 153 (2010). **Gillette, J., retired December 31, 2010, and did not participate in the decision of this case. KISTLER, J. Defendant has petitioned for review of a Court of Appeals decision that affirmed without opinion two judgments entered by the trial court -- a general judgment and a supplemental judgment. For the reasons that follow, we allow the petition for review in part,(1) vacate the Court of Appeals decision in part, and remand the case to the Court of Appeals with instructions to dismiss defendant's appeal of the supplemental judgment for lack of jurisdiction. The facts pertinent to our disposition of this case are procedural. On September 18, 2008, a jury convicted defendant by a 10-to-2 vote of manufacturing marijuana and by an 11-to-1 vote of supplying contraband. At a sentencing hearing on October 8, 2008, the trial court sentenced defendant to 20 days in jail and 24 months of supervised probation. During that hearing, the state asked the trial court to order defendant to pay $9,731.25 for the costs that the state had incurred in transporting a witness to defendant's criminal trial. The trial court declined to do so at that time. Instead, the trial court entered a general judgment of conviction against defendant that day and set a hearing two weeks later, on October 22, 2008, to address the state's claimed witness transportation costs.(2) At the October 22, 2008, hearing, the trial court determined that it would order defendant to pay some, but not all, of the state's witness transportation costs. Accordingly, it limited the award to $4,938.70. At the conclusion of the October 22 hearing, the trial court told defendant that the order to pay the transportation costs would "be added in an amended judgment" and that "now that we're finished with this, now your appeal time will start to run." Just before the hearing adjourned, defendant's trial counsel asked her, "[D]o you understand what the judge said, that your appeal time period, the 30 days to appeal your sentence, starts from today?" Defendant responded, "Yes." Two days later, on October 24, 2008, the trial court entered a supplemental judgment ordering defendant to pay the witness transportation costs.(3) On November 4, 2008, defendant filed a notice of appeal that identified "the judgment entered on October 8, 2008," as the judgment that she sought to appeal. The notice of appeal did not mention the later October 24, 2008, supplemental judgment. More than one month later, on December 16, 2008, defendant filed an amended notice of appeal that specified that defendant also sought to appeal "the amended judgment entered on October 24, 2008."(4) On appeal, defendant raised two issues. First, she argued that the two non-unanimous jury verdicts violated her Sixth Amendment right to a unanimous jury. The trial court's ruling accepting those verdicts was encompassed within the general judgment from which defendant had filed a timely notice of appeal on November 4, 2008. Second, defendant argued that the trial court's imposition of witness transportation costs violated her right of confrontation under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. That ruling was encompassed within the supplemental judgment from which defendant had filed a notice of appeal on December 16, 2008. The Court of Appeals affirmed both the trial court's judgment and its supplemental judgment without opinion. Defendant has filed a petition for review, in which she raises the same issues that she raised in the Court of Appeals. The second issue presents a question that this court reserved in State v. Ferman-Velasco, 333 Or 422, 445 n 17, 41 P3d 404 (2002). In deciding whether to allow defendant's petition for review to address that issue, we first consider whether either defendant's notice of appeal or her amended notice of appeal gave the Court of Appeals jurisdiction to review the trial court's ruling ordering defendant to pay the witness transportation costs. We asked the parties to file memoranda addressing that question and, having considered their responses, now conclude that the Court of Appeals lacked jurisdiction over defendant's appeal from the supplemental judgment. A notice of appeal in a criminal case must conform to several statutory requirements. See, e.g., ORS 138.081(1) (setting forth service and filing requirements); ORS 19.250 (describing what a notice of appeal should contain).(5) Not all those requirements are jurisdictional. At least two are, however. First, a defendant must serve and file the notice of appeal within 30 days after the trial court enters the judgment that the defendant seeks to appeal. ORS 138.071(1); cf. State v. Harding, 347 Or 368, 373, 223 P3d 1029 (2009) (the Court of Appeals lacks jurisdiction over the trial court's judgment when the defendant does not file a timely notice of appeal). Second, the notice of appeal must specify the judgment from which the appeal is taken. See Zacker v. North Tillamook County Hospital Dist., 312 Or 330, 333, 822 P2d 1143 (1991) ("If anything within the notice of appeal is jurisdictional, * * * it must be a description of what action of the trial court is appealed from," quoting Stahl v. Krasowski, 281 Or 33, 39, 573 P2d 309 (1978)).(6) With those principles in mind, we turn to the notices of appeal at issue in this case. As noted, the trial court entered the general judgment on October 8, 2008. Given the 30-day time limitation, defendant had until November 7, 2008, to appeal that judgment. Defendant filed a notice of appeal on November 4, 2008, which identified "the judgment entered on October 8, 2008," as the judgment that defendant sought to appeal. Thus, defendant timely appealed the general judgment. Having acquired jurisdiction over the general judgment, the Court of Appeals could review the trial court's intermediate orders affecting that judgment, one of which was its ruling accepting the jury's non-unanimous guilty verdicts. See ORS 19.425 (permitting appellate review of "any intermediate order involving the merits or necessarily affecting the judgment appealed from"); see also Snider v. Production Chemical Manufacturing, Inc., 348 Or 257, 264, 230 P3d 1 (2010) (noting the same). Defendant took a different course in appealing the supplemental judgment. The trial court entered that judgment on October 24, 2008, and, accordingly, defendant had until November 23, 2008, to file a notice of appeal from the supplemental judgment. Nothing in defendant's November 4, 2008, notice of appeal indicated that defendant intended to appeal that judgment. Instead, defendant waited until December 16, 2008, to express that intention. Her amended notice of appeal came 53 days after the trial court had entered the supplemental judgment and thus 23 days after the 30-day statutory deadline had passed. As a consequence, neither the notice of appeal nor the amended notice of appeal gave the Court of Appeals jurisdiction over the supplemental judgment. And, because the trial court's decision to impose witness transportation costs was encompassed within that judgment, defendant's challenge to that ruling of the trial court was never properly before the Court of Appeals. In her memorandum filed in response to this court's letter, defendant invites us to reach a different result and suggests two bases for doing so. First, defendant suggests that, because her initial appellate counsel(7) did not become aware of the supplemental judgment until December 8, 2008, the 30 days in which defendant could file a timely notice of appeal should be measured from that date under ORS 138.071(4), which permits a defendant to appeal "a supplemental judgment under ORS 138.083 * * * not later than 30 days after the defendant receives notice that the judgment has been entered." Defendant's argument fails for at least two reasons. First, neither defendant nor the state invoked ORS 138.083 at the October 22 hearing, and the trial court did not purport to act pursuant to that provision in entering the supplemental judgment. Thus, nothing in the record indicates that the supplemental judgment in this case is "a supplemental judgment under ORS 138.083." Second, even if the trial court had acted pursuant to ORS 138.083 and ORS 138.071(4) did apply, the latter statute still affords defendant no relief. The trial court notified both defendant and her trial counsel at the October 22 hearing that it would impose the witness transportation costs in a supplemental judgment. In the absence of circumstances not present in this case, defendant's failure to check the status of that judgment does not excuse her subsequent failure to file a timely notice of appeal from the supplemental judgment. Cf. State v. Ainsworth, 346 Or 524, 534, 213 P3d 1225 (2009) (noting that a party's decision to rely on the mistaken advice of counsel or a court clerk "rather than check the record personally at a time when doing so would reveal the true status of the judgment" did not excuse an untimely filing). Defendant also has asked for leave to file a late notice of appeal pursuant to ORS 138.071(5). That subsection permits a late notice of appeal in criminal actions if (1) the request to file the late notice of appeal is "filed no later than 90 days after entry of the order or judgment being appealed," (2) the defendant shows, by clear and convincing evidence, that the "failure to file a timely notice of appeal is not attributable to the defendant personally," and (3) the defendant shows a colorable claim of error. ORS 138.071(5)(a) and (c). Defendant's motion to file a late notice of appeal comes almost two years after entry of the supplemental judgment and is thus too late. Because defendant did not file a timely notice of appeal from the supplemental judgment, her second assignment of error challenging the trial court's ruling that she pay certain witness transportation costs was not properly before the Court of Appeals. The Court of Appeals should have dismissed defendant's appeal from the supplemental judgment for lack of jurisdiction. The petition for review is allowed in part. The decision of the Court of Appeals is vacated in part, and the case is remanded to the Court of Appeals with instructions to dismiss defendant's appeal from the supplemental judgment for lack of jurisdiction. 1. We allow defendant's petition for review to the extent that she challenges the Court of Appeals decision affirming the supplemental judgment. 2. At the October 8 sentencing hearing, the state characterized the costs it sought to recover as restitution. Later, the state jettisoned its restitution argument and instead requested that the court order defendant to pay those costs as "expenses specially incurred by the state in prosecuting the defendant" under ORS 161.665(1). 3. Although the trial court referred to the judgment as "an amended judgment" in its remarks from the bench, the court correctly labeled the judgment that it entered a "supplemental judgment." See ORS 137.071(2) (providing that, among other things, "[a] judgment document in a criminal action must comply with ORS 18.038"); ORS 18.038 (providing that, among other things, a judgment document must indicate whether it is a general or a supplemental judgment). 4. ORAP 8.28(2)(a) provides that a party in a criminal action may file an "amended notice of appeal within the time and in the manner prescribed in ORS chapter 138" from a corrected or supplemental judgment. There may be some tension between ORAP 8.28, which authorizes filing an amended notice of appeal from a supplemental judgment, and ORS chapter 138, which appears to contemplate filing a separate notice of appeal from a supplemental judgment. We need not resolve that tension, however, to decide this case. 5. ORS chapter 138 governs criminal appeals and incorporates certain provisions of ORS chapter 19, which governs appeals generally. See ORS 138.185(2) (setting forth provisions in ORS chapter 19 that apply to criminal appeals). As pertinent to this case, the following provisions of ORS chapter 19 apply to criminal appeals: ORS 19.250 (governing the contents of the notice of appeal), ORS 19.270(2) (describing statutory requirements that are jurisdictional and that may not be waived), and ORS 19.425 (providing for appellate review of intermediate orders affecting a judgment). See ORS 138.185(2). 6. This court's decision in Stahl interpreted a predecessor statute to ORS 19.270(2), which conditioned appellate jurisdiction on the identification in the notice of appeal of the specific judgment that the appellant sought to appeal. 281 Or at 38-39. In 1985, after this court had decided Stahl, the legislature amended the predecessor to ORS 19.270(2), which this court had interpreted in Stahl. See Or Laws 1985, ch 734, § 5(2). In Zacker, the court noted that nothing in the legislative history of those amendments indicated that the legislature intended to repeal this court's holding in Stahl, and the court reaffirmed the continuing validity of that holding. 312 Or at 336. 7. Defendant's counsel on review is not the counsel who filed the untimely amended notice of appeal.

1d8ced1a8760b39df6628b8179b5df7af05adbc985c923b346b5ddc06e0e3fb7

2011-04-07T00:00:00Z

817edec6-ccc8-4dea-8c45-fc260e8dc0e2

Oregon v. Kurokawa-Lasciak

S058898

oregon

Oregon Supreme Court

Filed: October 6, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. TYLER JURO KUROKAWA-LASCIAK, Petitioner on Review. (CC 07CR1309FE; CA A140430; SC S058898) On review from the Court of Appeals.* Argued and submitted on May 3, 2011. Jay W. Frank, Moule & Frank, Eugene, argued the cause and filed the brief for petitioner on review. Anna M. Joyce, Assistant Attorney General, 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, Balmer, Kistler, Walters, and Linder, Justices.** WALTERS, J. The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. * Appeal from Douglas County Circuit Court, Joan Glawe Seitz, Judge. 237 Or App 492, 239 P3d 1046 (2010). ** Landau, J., did not participate in the consideration or decision of this case. 1 WALTERS, J. 1 In this case, we adhere to prior decisions of this court and decide that the 2 "automobile exception" to the warrant requirement of Article I, section 9, of the Oregon 3 Constitution, does not permit a warrantless search of a defendant's vehicle when the 4 vehicle is parked, immobile, and unoccupied at the time that the police encounter it in 5 connection with a crime. 6 The state charged defendant with various drug offenses, and defendant filed 7 a motion to suppress evidence that the police had obtained from a warrantless search of 8 his rental van. The state contended that no warrant was required under the automobile 9 exception to Article I, section 9, announced by this court in State v. Brown, 301 Or 268, 10 274, 721 P2d 1357 (1986), or, alternatively, that defendant's companion was in 11 possession of the van and had given her consent to search. The trial court granted 12 defendant's motion to suppress and the state appealed. See ORS 138.060(1)(c) 13 (authorizing state's appeal of order granting motion to suppress). The Court of Appeals 14 reversed the trial court's ruling and held that the search was valid under the automobile 15 exception. Defendant sought review, which we allowed. We decide that the automobile 16 exception did not permit the warrantless search of defendant's van and remand the case to 17 the Court of Appeals to decide the issue that it did not reach -- whether the search was 18 permitted by defendant's companion's consent. 19 We state the facts consistently with the trial court's factual findings and its 20 decision granting defendant's motion to suppress. See State v. Meharry, 342 Or 173, 175, 21 149 P3d 1155 (2006); State v. Juarez-Godinez, 326 Or 1, 7, 942 P2d 772 (1997) (both 22 2 stating standard). 1 Defendant was gambling at the Seven Feathers Casino on the Cow Creek 2 Indian Reservation in Douglas County when a casino employee began to suspect that he 3 was engaged in money laundering. The casino prohibited defendant from engaging in 4 further cash transactions for a 24-hour period and posted his photograph in its cashiers' 5 cages.1 The casino also began to monitor defendant's movements by soundless video 6 camera, capturing the events described in the following paragraph. 7 At approximately 9:17 a.m., defendant attempted a cash transaction at one 8 of the cashier's cages and, in the process, reached through the cage and grabbed his 9 photograph. At approximately 9:30 a.m., defendant left the casino, got in a van, and 10 drove to a gas station operated by the casino. At approximately 9:43 a.m., defendant 11 returned to the casino parking lot, where he parked, got out of his van, and began to walk 12 toward the casino. When defendant was approximately 30 feet from his van, an officer, 13 Deputy Wohls from the Douglas County Sheriff's Department, drove his patrol car to the 14 place where defendant was walking and stopped him. 15 At approximately 10:09 a.m., another officer, Senior Trooper Bennett of the 16 1 Federal law prohibits a casino from allowing an individual to make more than $10,000 in cash transactions per day. The casino required any individual approaching that limit to provide identification and, if the individual refused, prohibited the individual from making any cash transactions for a 24-hour period. Because defendant was approaching the cash transaction limit, a casino employee requested identification and, when defendant refused to provide it, told defendant that he was barred from making any cash transactions for 24 hours. Casino officials then distributed a photograph of defendant, taken from surveillance camera footage, to all of the casino's cashiers. 3 Oregon State Police, who specialized in gaming offenses, arrived at the parking lot and 1 advised that he was taking over the investigation. Bennett had spoken with casino 2 employees about defendant's suspicious activity, but neither Bennett nor Wohls had seen 3 defendant drive the van and neither had reviewed the casino surveillance tape. 4 Bennett spoke with defendant and recorded their conversation. Bennett 5 informed defendant that he was detaining him on suspicion of money laundering and 6 administered Miranda warnings. In response to a question from Bennett about what had 7 happened, defendant said that he had seen his picture in the casino cage and taken it. 8 When asked about the van, defendant said that he had rented it in California and was 9 going to Spokane to pick up his son. When asked about the amount of cash that 10 defendant had on his person and in the van, defendant first replied that he had $4,500 on 11 him, but later stated that he did not know how much money he had in either location. 12 Bennett then asked defendant what was in the bag in his pocket and told 13 defendant that it looked like a marijuana pipe. Bennett asked defendant how many drugs 14 he had on him and in the van. When defendant did not respond, Bennett told defendant 15 that he was under arrest for disorderly conduct and third-degree theft (for taking the 16 photograph from the casino) and that he would be taken to the Douglas County Jail. 17 Bennett asked defendant for consent to search the van; defendant refused. Bennett told 18 defendant that he believed that defendant was in possession of controlled substances, 19 patted him down, and discerned that the bag in defendant's pocket did not contain a pipe, 20 but instead felt as if it contained credit cards. Bennett asked defendant if he was involved 21 in identity theft; defendant denied that he was. 22 4 Bennett then told defendant that he was going to jail for disorderly conduct 1 and theft, but that once there he could be cited and released. However, Bennett 2 explained, defendant had another option. If defendant would consent to a search of the 3 van, Bennett might cite him at the casino and release him there. Defendant responded 4 that what Bennett was saying was not true. Bennett asked to search defendant's pockets, 5 the van, and the room at the casino where defendant was staying. Defendant said that he 6 wanted to talk to a lawyer. Bennett told defendant that he was impounding the van and 7 that he would get a search warrant. Wohls interjected that Bennett must inventory the 8 vehicle. 9 At approximately 10:14 a.m., Wohls took defendant to the Douglas County 10 Jail, leaving defendant's van parked at the casino. Neither Wohls nor Bennett impounded 11 the van, inventoried its contents, or made efforts to obtain a search warrant. 12 Instead, Bennett continued his investigation and learned that defendant had 13 given the van's keys to his girlfriend, Laura Campbell, and instructed her to lock the van, 14 take care of the family dog, go to the casino's restaurant to eat, and stay put until he 15 returned. At approximately 10:28 a.m., Bennett went into the restaurant to speak with 16 Campbell. Bennett did not record his conversation with Campbell, but the casino's 17 surveillance camera captured silent video of the conversation. 18 Bennett asked Campbell whether the van contained a large amount of 19 money or drugs. Campbell replied that she did not know of any. Bennett then asked 20 whether there was marijuana in the van; Campbell said that there was. Bennett asked 21 whether the amount of marijuana was over or under an ounce; Campbell replied, "It is 22 5 probably under, but it could be over a little bit." 1 Bennett asked Campbell if she would consent to a search of the van. 2 Campbell hesitated and told Bennett that she was not sure if she could consent because 3 she was not listed on the rental agreement. Campbell told Bennett that she had the keys 4 to the van and that it may be her intention to leave. However, Campbell agreed to meet 5 Bennett outside the restaurant, by the van, when she and her children finished their 6 breakfast. 7 At approximately 11:00 a.m., Campbell met Bennett at the van and 8 recorded his conversation with her. Bennett asked for Campbell's consent to search, and 9 Campbell told Bennett that she was feeling "badgered." Bennett denied that he was 10 badgering Campbell and continued to talk with her. Bennett allowed Campbell to take 11 the dog out of the van and make a telephone call. At approximately 11:15 a.m., 12 Campbell signed a "consent to search" form. Bennett searched the van and found the 13 evidence that was the subject of the later motion to suppress: 77 grams of marijuana, 56 14 grams of hashish, electronic scales, and approximately $48,000 in cash. After seizing the 15 evidence, Bennett told Campbell that she was not under arrest and gave her directions so 16 that she could drive, in the van, to the Douglas County Jail.2 17 Defendant moved to suppress the evidence discovered in the search, 18 contending that the warrantless search was unlawful under Article I, section 9, of the 19 2 Bennett never considered Campbell to be a criminal suspect. 6 Oregon Constitution. 3 The state took the position that the search was permitted by the 1 automobile exception or Campbell's consent. After a hearing, at which the court took 2 testimony from Bennett, defendant, and Campbell, viewed the silent casino surveillance 3 tape, and listened to the conversations that Bennett had recorded, the court rejected both 4 of the state's arguments. As to the automobile exception, the court explained that it did 5 not apply because the van was not moving at the time that the police stopped defendant 6 and developed probable cause to search the van. Specifically, the trial court found that 7 defendant was "about three vehicle parking spaces," or approximately 30 feet, from the 8 van when Wohls stopped him and that defendant was no longer near the van when 9 Bennett arrived at the parking lot and developed probable cause to search it. As to the 10 validity of Campbell's consent, the trial court ruled that Campbell had authority over the 11 van and that her consent was voluntary, but that defendant's prior refusal to give consent 12 negated Campbell's subsequent consent, citing State v. Weaver, 214 Or App 633, 168 P3d 13 273 (2007) and Georgia v. Randolph, 547 US 103, 126 S Ct 1515, 164 L Ed 2d 208 14 (2006). 15 The state appealed and, with respect to the automobile exception, argued 16 that that exception applied because the evidence before the trial court established that 17 defendant's van had been moving when he drove it into the parking lot and that nothing 18 occurred thereafter to render the van immobile. The state did not contend that the van 19 3 Defendant primarily argued that the search was unlawful under Article I, section 9, of the Oregon Constitution, but also cited the Fourth Amendment to the United States Constitution in his motion to suppress. Defendant does not make any arguments in this court based on the Fourth Amendment. 7 was moving when the officers encountered it or that the officers had seen defendant 1 driving the van before they stopped him.4 2 The Court of Appeals interpreted its prior cases and this court's decision in 3 State v. Meharry, 342 Or 173, 175, 149 P3d 1155 (2006), to hold that "a vehicle is 4 'mobile' for purposes of the automobile exception as long as it is operable." State v. 5 Kurokawa-Lasciak, 237 Or App 492, 497-98, 239 P3d 1046 (2010). Given its 6 understanding of that "expansive definition of the automobile exception," the court 7 concluded that the search in this case was valid. Id. at 499. The court observed that 8 defendant's van could be moved after the police relinquished control over it and it was 9 not being impounded.5 10 Defendant sought review, which we allowed. In this court, neither 11 defendant nor the state adopts the Court of Appeals' interpretation of Meharry. 12 Defendant contends that the automobile exception to the warrant requirement of Article I, 13 section 9, of the Oregon Constitution precludes the warrantless search of a car that is 14 parked, immobile, and unoccupied when the police encounter it in connection with a 15 crime, and that Meharry is consistent with that rule. The state frames the issue for our 16 4 At the hearing on the motion to suppress, the trial court reviewed the casino surveillance tape, which showed defendant driving the van out of and back into the casino parking lot. Bennett testified that he reviewed the casino surveillance tapes after the search was complete. 5 The Court of Appeals also observed that the van became the subject of the officer's focus before probable cause to arrest defendant had developed (which occurred when Campbell told him that the van could contain more than an ounce of marijuana). Kurokawa-Lasciak, 237 Or App at 499. 8 decision as presenting a question "left open" after this court's decision in Meharry -- 1 "when officers first encounter a car in connection with a crime, does the automobile 2 exception's 'mobility' requirement demand evidence that the officers saw the car being 3 driven, or is it enough that (1) officers develop probable cause that the car contains 4 evidence of a crime, and (2) no evidence exists that the car is inoperable?" 5 The automobile exception is one of "'the few specifically established and 6 carefully delineated exceptions to the warrant requirement[]'" of Article I, section 9.6 7 Meharry, 342 Or at 177 (quoting State v. Bridewell, 306 Or 231, 235, 759 P2d 1054 8 (1988)). The constitution requires a warrant so that a disinterested branch of government 9 -- the judicial branch -- and not the branch that conducts the search -- the executive 10 branch -- makes the decision as to whether there is probable cause to search. State v. 11 Brown, 301 Or 268, 274, 721 P2d 1357 (1986) (citing State v. Quinn, 290 Or 383, 390- 12 91, 623 P2d 630 (1981)). 13 This court first recognized the automobile exception to the warrant 14 requirement of Article I, section 9, in 1986, in Brown, 301 Or at 276.7 In that case, the 15 6 Article I, section 9, provides: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." 7 On the same day that it decided Brown, the court also decided State v. Bennett, 301 Or 299, 721 P2d 1375 (1986), in which it held that the automobile exception articulated in Brown permitted officers to search closed containers found in the trunk of the defendant's car. 9 police made a roadside stop of a mobile vehicle. The court reasoned that, 1 "if police have probable cause to believe that a person's automobile, which 2 is mobile when stopped by police, contains contraband or crime evidence, 3 the privacy rights of our citizens are subjected to no greater governmental 4 intrusion if the police are authorized to conduct an immediate on-the-scene 5 search of the vehicle than to seize the vehicle and hold it until a warrant is 6 obtained."8 7 Id. Therefore, the court decided, the constitution permits an exception to the warrant 8 requirement when (1) the automobile is mobile at the time it is stopped by police, and (2) 9 probable cause exists for the search of the automobile. 10 The court drew that line to give the police "clear guidelines by which they 11 can gauge and regulate their conduct rather than trying to follow a complex set of rules 12 dependent upon particular facts regarding the time, location and manner of highway 13 stops." Id. at 277. The only exigent circumstance that the court required was the 14 mobility of the automobile at the time of the stop. It did not matter, the court said, 15 "whether the passenger could have taken over the custody of the car (which 16 he eventually did), whether the police had adequate personnel to back-up 17 the arrest, whether a tow truck was available, whether a magistrate was 18 available by telephone or otherwise, or whether a threatening crowd 19 gathered, etc. All the trial judge needed to find was what he did find: (1) 20 the car was mobile at the time it was stopped by the police; and (2) the 21 police had probable cause to believe that the car contained contraband or 22 crime evidence." 23 Id. at 278 (internal footnote omitted). 24 8 In that particular respect, the court expressly followed the reasoning of the United States Supreme Court and cited Carroll v. United States, 267 US 132, 45 S Ct 280, 69 L Ed 543 (1925). The court emphasized, however, that it was deciding Brown independently of the federal standard and citing that case only because it found it persuasive in that particular regard. 301 Or at 274. See State v. Caraher, 293 Or 741, 750, 653 P2d 942 (1982) (state not constrained by federal law when interpreting its own constitutional provisions). 10 However, the court noted, a neutral magistrate's evaluation of probable 1 cause continued to be a desired goal, and the court did not anticipate that the police 2 would rely on the automobile exception when advances in technology permitted quick 3 and efficient electronic issuance of warrants. The court explained that, 4 "[i]n this modern day of electronics and computers, we foresee a time in the 5 near future when the warrant requirement of the state and federal 6 constitutions can be fulfilled virtually without exception. All that would be 7 needed in this state would be a central facility with magistrates on duty and 8 available 24 hours a day. All police in the state could call in by telephone or 9 other electronic device to the central facility where the facts, given under 10 oath, constituting the purported probable cause for search and seizure 11 would be recorded. The magistrates would evaluate those facts and, if 12 deemed sufficient to justify a search and seizure, the magistrate would 13 immediately issue an electronic warrant authorizing the officer on the scene 14 to proceed. The warrant could either be retained in the central facility or 15 electronically recorded in any city or county in the state. Thus, the desired 16 goal of having a neutral magistrate could be achieved within minutes 17 without the present invasion of the rights of a citizen created by the delay 18 under our current cumbersome procedure and yet would fully protect the 19 rights of the citizen from warrantless searches." 20 Id. at 278 n 6. 21 Two justices dissented. They argued that an automobile exception to the 22 warrant requirement could be justified only if the state could prove the existence of an 23 actual, as opposed to an assumed, exigency. Whether there was a sufficient risk that 24 evidence would be lost if the police were required to obtain a warrant to search an 25 automobile should be determined, as it is when courts assess the existence of other 26 exigent circumstances, on a case-by-case basis. Id. at 292 (Linde, J., dissenting). 27 Although the dissent welcomed the majority's suggestion that its decision was a 28 temporary accommodation subject to change in the near future when technology would 29 11 permit neutral magistrates to fulfill the role that the constitution required, the dissent 1 thought that the state would provide and use available technology more expeditiously if 2 the court would enforce the warrant requirement rather than recognize a new exception to 3 it. Id. at 293-94 (Linde, J., dissenting). 4 Some three months after its decision in Brown, the court decided State v. 5 Kock, 302 Or 29, 725 P2d 1285 (1986). In Kock, the court adhered to the "bright line" 6 that it had drawn in Brown. 302 Or at 33. The court reiterated that that line gave the 7 police clear guidelines and added that it also satisfied the needs of citizens of this state 8 "to have their constitutional rights spelled out as clearly as possible." Id. 9 In Kock, the police received a tip that the defendant was stealing from his 10 workplace and went to the defendant's workplace to investigate. There, the police 11 observed the defendant's parked and unoccupied vehicle for several hours. After the 12 defendant emerged with a package, placed it in his vehicle, and returned to work, police 13 searched the vehicle without a warrant and found stolen merchandise. 14 The court began its analysis by acknowledging that, logically, the 15 defendant's parked vehicle was as capable of mobility as was a vehicle that was moving 16 when it was stopped by the police, and that the United States Supreme Court had 17 interpreted the warrant requirement of the federal constitution to permit warrantless 18 searches of automobiles "capable" of mobility. Id. at 32.9 However, the court 19 9 The court cited Carroll, 267 US 132, "and its progeny" for that proposition. Kock, 302 Or at 32. One of the cases included in that description was California v. Carney, 471 US 386, 392-93, 105 S Ct 2066, 85 L Ed 2d 406 (1985). In Carney, the Supreme Court explained the bases for the federal automobile exception: 12 specifically elected not to adopt the Supreme Court's rationale or to extend the Oregon 1 exception. Instead, the court chose to "draw the so-called bright line of Brown just where 2 we left it in that case[.]" Id. at 32-33. The court decided that 3 "any search of an automobile that was parked, immobile and unoccupied at 4 the time the police first encountered it in connection with the investigation 5 of a crime must be authorized by a warrant issued by a magistrate or, 6 alternatively, the prosecution must demonstrate that exigent circumstances 7 other than the potential mobility of the automobile exist." 8 Id. at 33 (emphasis added). 9 In concluding that the warrantless search of the defendant's car was 10 unconstitutional, the court acknowledged that the line that it had drawn reflected neither 11 the position of those who believed that the constitution permitted the police to conduct a 12 warrantless search of any operational vehicle nor those who believed that the constitution 13 did not permit an automobile exception to the warrant requirement in the absence of a 14 particularized showing of exigency. The court declared that it had selected that line 15 deliberately and that it would not "stretch the automobile exception" to permit the search 16 of a car that was not mobile when the police encountered it. Id. at 33. "Brown," the court 17 "When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes -- temporary or otherwise -- the two justifications for the vehicle exception come into play. First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable." 471 US at 392-93 (internal footnote omitted) (emphases added). 13 said, "sets the outer limit for warrantless automobile searches without other exigent 1 circumstances." Id. 2 In this case, the Court of Appeals, as noted, did not apply the automobile 3 exception as articulated in Brown and Kock. The Court of Appeals rested its decision on 4 what it believed to be a more "expansive definition of the automobile exception that [had] 5 evolved since Brown and Kock" -- a definition that the court took from its understanding 6 of its prior cases and this court's decision in Meharry. State v. Kurokawa-Lasciak, 237 7 Or App 492, 499, 239 P3d 1046 (2010). Meharry, the Court of Appeals posited, stands 8 for the proposition that "a vehicle is 'mobile' for purposes of the automobile exception as 9 long as it is operable." Id. at 497-98. Although neither defendant nor the state concur 10 with that reading of Meharry, it obviously is key to our resolution of this case, and we 11 proceed to consider it. 12 In Meharry, a fire chief saw the defendant drive erratically and nearly cause 13 a collision. The chief began to trail the defendant and called the police department to 14 report his observations. A police officer responded to the call and saw the fire chief and 15 the defendant pass in front of him as he drove out of the police station. Before the officer 16 could overtake the defendant, she pulled into a store parking lot and brought her van to a 17 halt. The officer pulled in behind the defendant, blocking her from leaving. The officer 18 then followed the defendant into a store, saw that she was lethargic and incoherent, 19 conducted field sobriety tests, and arrested her for driving under the influence of 20 intoxicants. Thereafter, the officer searched the defendant and her van, finding evidence 21 that the defendant sought to suppress. The Court of Appeals held that the search was 22 14 unconstitutional because the relevant encounter had occurred when the officer confronted 1 the defendant in the store, and there was no exigency relating to the mobility of the van at 2 that time. This court reversed. State v. Meharry, 201 Or App 609, 618, 120 P3d 520 3 (2005), rev'd, 342 Or 173, 149 P3d 1155 (2006). To explain the Court of Appeals' error, 4 the court stated and applied the holdings in Brown -- "that police officers may search a 5 vehicle if they have 'probable cause to believe that a lawfully stopped automobile which 6 was mobile at the time of the stop contains contraband or crime evidence'" -- and in Kock 7 -- that the automobile exception did not apply, because the vehicle was "parked, 8 immobile and unoccupied at the time the police first encountered it in connection with the 9 investigation of a crime[.]" Meharry, 342 Or at 177-79 (quoting Brown, 301 Or at 277, 10 and Kock, 302 Or at 33). First, the court stated, the police officer had encountered the 11 van in connection with a crime when he saw the defendant driving it past the police 12 station, and the van was mobile at that time. Id. at 179. Second, the search had occurred 13 shortly after the officer made that observation and parked his car behind the defendant's 14 van, and "[n]othing occurred between [the encounter] and the search that rendered the 15 van immobile." Id. at 180. The court explained that 16 "[the officer] had not impounded the van, and there was no physical or 17 mechanical impediment to the van's being driven away once [the officer] 18 relinquished control over it. In short, the van remained mobile and the 19 exigency continued." 20 Id. 21 In response to the defendant's argument that the case was not on all fours 22 with Brown because the officer in Meharry had not caused the defendant to pull over to 23 15 the side of the road as the officer in Brown had done, the court said that the officer in 1 Meharry had effectuated a stop of the defendant by parking his car behind her van and 2 preventing her from leaving. The court equated the officer's action with a roadside stop 3 because the officer's action prevented the defendant from leaving. The court stated: 4 "It is true, as defendant notes, that [the officer] did not effect a stop, 5 as the officer did in Brown, by causing defendant to pull her van over to the 6 side of the road and bring it to a stop. [The officer], however, did stop 7 defendant when he followed her into the Zip Trip parking lot and parked 8 his police car behind her van, preventing her from leaving once she finished 9 her errand. See State v. Holmes, 311 Or 400, 409, 813 P2d 28 (1991) 10 (defining when a 'seizure' occurs for the purpose of Article I, section 9). 11 The issue that defendant's argument thus poses is whether stopping an 12 otherwise mobile car from resuming its journey (as [the officer] did here) 13 differs for purposes of the automobile exception from causing a moving car 14 to come to a stop (as the officer did in Brown). 15 "We cannot see a difference, for constitutional purposes, between 16 the two situations." 17 Meharry, 342 Or at 180. 18 As the state seems to acknowledge, the court in Meharry did not dispense 19 with the Brown and Kock requirement that, to qualify for the automobile exception, the 20 vehicle that the police search must be mobile at the time that the police encounter it in 21 connection with a crime. The court cited and applied that requirement and held that the 22 defendant's van was mobile at the time that the police encountered it in connection with a 23 suspected crime. The court discussed the van's continuing operability at the time of the 24 search only to correct the Court of Appeals' statement that the initial exigency no longer 25 existed when the police searched the van. By noting that the defendant's van, which 26 initially was mobile, remained operable at the time of the search, the court did not intend 27 16 to eliminate the requirement of the automobile exception that the vehicle be mobile at the 1 time of the initial encounter or to replace it with a requirement of operability at the time 2 of the initial encounter. 3 When the court decided Brown and Kock in 1986, it expressly rejected 4 operability as the basis for the automobile exception to the Oregon Constitution.10 We 5 would be overruling those cases, not answering a question that was "left open" in 6 Meharry, if we were to hold, as the state requests, that to invoke the automobile 7 exception, the state need demonstrate only that "no evidence exists that the car is 8 inoperable" at the time of the encounter. We acknowledge the logic of the state's position 9 -- that it is just as likely that a person in control of an operable car will drive off with 10 evidence or contraband as will a person in control of a car that was mobile at the time of 11 the initial encounter and that remains mobile thereafter. But we also are cognizant that, 12 when the court recognized the automobile exception in 1986, it was careful to recognize a 13 limited exception to the constitutional requirement that a neutral magistrate, and not 14 officers in the field, determine the existence of probable cause to search. The court drew 15 the "bright line" that it did to benefit both the police and the citizens of this state. If we 16 were to alter that line, we would be overruling those cases. Neither party has asked us to 17 do so, nor demonstrated a basis for us to do so. See Farmers Ins. Co. v. Mowry, 350 Or 18 10 In doing so, the court in Kock called attention to the contrast between the Oregon exception and that permitted under the federal constitution. 302 Or at 32-33. In Meharry, this court again noted that the Oregon mobility requirement distinguishes the Oregon automobile exception from that permitted by the federal constitution. 342 Or at 178 n 1. 17 686, ___ P3d ___ (2011) (discussing doctrine of stare decisis and explaining that party 1 seeking to change precedent must persuade court to do so). Therefore, we adhere, as the 2 court did in Meharry, to the line that the court drew in Brown and Kock. 3 With that understanding of the automobile exception, determining whether 4 that exception permitted the search in this case is not difficult. The trial court found that 5 when Wohls stopped defendant, defendant was approximately 30 feet from his van, 6 which was parked, immobile, and unoccupied, and that, when Bennett questioned 7 defendant, defendant was no longer near the van. As the state now acknowledges, there 8 was no evidence from which the trial court could have found that defendant's van was 9 mobile when Wohls or Bennett encountered it in connection with a crime. Therefore, we 10 conclude that the trial court was correct that the automobile exception did not permit the 11 warrantless search of defendant's van. 12 That does not mean, however, that the trial court correctly suppressed the 13 evidence. The Court of Appeals did not reach the state's argument that the search was 14 constitutionally authorized by Campbell's consent. We remand the case to the Court of 15 Appeals to decide that issue. 16 The decision of the Court of Appeals is reversed, and the case is remanded 17 to the Court of Appeals for further proceedings. 18

3ecdda48abe1d269569f8ba61541ddcedc0ef8054010b2a08ee19265bea97c5c

2011-10-06T00:00:00Z

a24d0a5a-3579-4e58-b0b1-e37fde860c5b

ZRZ Realty v. Beneficial Fire and Casualty Ins.

oregon

Oregon Supreme Court

Filed: March 3, 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 respondents on review's petition for reconsideration filed December 2, 2010; considered and under advisement January 26, 2011.* Bruce L. Campbell, Miller Nash LLP, Portland, filed the response to the petition for reconsideration for petitioners on review. Thomas W. Sondag, Lane Powell PC, Portland, filed the petition for reconsideration and reply in support for respondents on review. With him on the petition and reply were John Folawn and Folawn Alterman & Richardson LLP. KISTLER, J. The petition for reconsideration is allowed. The former opinion is adhered to as modified. *Appeal from Multnomah County Circuit Court, William J. Keys, Judge (Pre-Trial and Trial Rulings); Ellen F. Rosenblum, Judge (Judgment and Supplemental Judgment). ZRZ Realty v. Beneficial Fire and Casualty Ins. 222 Or App 453, 194 P3d 167 (2008), modified on recons, 225 Or App 257, 201 P3d 912 (2009). KISTLER, J. Defendants seek reconsideration of our opinion in ZRZ Realty v. Beneficial Fire and Casualty Ins., 349 Or 117, 241 P3d 710 (2010). We allow their petition for reconsideration, modify our earlier opinion, and adhere to that opinion, as modified. Defendants seek reconsideration on three grounds. We reject without discussion the first two grounds that defendants raise and write to address the third ground regarding the scope of the remand. In ZRZ Realty, we determined that, for the purposes of the express fortuity policies, the trial court had erred in placing the burden on defendants to prove that damages were neither expected nor intended. Id. at 132. In remanding for a retrial on that issue, the opinion stated: "In retrying that issue, the trial court must determine initially whether it is necessary to supplement the record; that is, if neither party can establish a specific basis for saying that the record would have been different if the trial court had placed the burden of production and persuasion initially on [plaintiffs], then the trial court may find, based on the existing record, what [plaintiffs] expected or intended for the purposes of the relevant express fortuity policies. If, on either the existing or a supplemented record, the trial court makes the same findings on remand that the trial court did initially, then it presumably can reenter the judgment, with any appropriate adjustment for attorney fees. Conversely, if the trial court reaches a different conclusion on remand as to when [plaintiffs] expected or intended property damage for the purposes of the express fortuity policies, then the court also will presumably have to adjust the findings allocating responsibility for remediating the damage between [defendants and plaintiffs]." Id. at 148 (footnote omitted). In their petition on reconsideration, defendants note that the trial judge who heard this case has died. Defendants observe that our opinion could be read to foreclose the trial judge who hears this case on remand from hearing live testimony, even on issues on which credibility matters. Defendants ask us to clarify our opinion in that respect. Plaintiffs respond that the judge who tried the case did not make any credibility findings and that defendants have not identified any issues that would preclude the trial court, on remand, from relying on the existing record. In providing guidance for the trial court on remand, we did not intend to foreclose the trial court from taking live testimony on remand if the trial court, in its discretion, determines that live testimony is appropriate. We accordingly modify our earlier opinion to clarify that point. The petition for reconsideration is allowed. The former opinion is adhered to as modified.

6613975b85960c28ca1baf855e77571ead0b2b8f4e80c44ef556361ed48db268

2011-03-03T00:00:00Z

ea1c25ec-d25d-4b25-8d49-f5a3d670efa2

Oregon v. Walker

S058548

oregon

Oregon Supreme Court

Filed: July 28, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. BONNIE LOU WALKER, Petitioner on Review. (CC 065202FE; CA A136541; SC S058548) En Banc On review from the Court of Appeals.* Argued and submitted January 13, 2011. Bronson D. James, Bronson James, LLC, Portland, argued the cause and filed the briefs for petitioner on review. Jamie K. Contreras, 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. LANDAU, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Jackson County Circuit Court, Raymond B. White, Judge. 234 Or App 596, 229 P3d 606 (2010). 1 LANDAU, J. 1 In this criminal case, the police obtained a warrant to search a house for 2 stolen property. When they arrived at the house to execute the warrant, they encountered 3 defendant. They placed defendant in handcuffs, gave her Miranda warnings, and took 4 her outside while they searched the house. When they discovered what appeared to be 5 defendant's purse in the house, they asked for permission to search its contents. 6 Defendant agreed, and police found methamphetamine inside the purse. Based on that 7 evidence, she was charged with possession of methamphetamine. Defendant moved to 8 suppress the evidence. The trial court denied the motion on the grounds that defendant 9 consented to the search and, in the alternative, that the search of the purse was authorized 10 by the warrant. Defendant appealed, and the Court of Appeals affirmed on the ground 11 that the warrant authorized the search, because defendant, in the court's view, had failed 12 to preserve her contention to the contrary. 13 We hold that defendant adequately preserved her contention that the search 14 was not authorized by the warrant, but that she failed to meet her burden of proving that 15 the warranted search was unlawful. We therefore affirm, albeit on different grounds. 16 I. BACKGROUND 17 A. The Search 18 We recite the facts consistently with the trial court's findings of historical 19 fact if supported by evidence in the record. State v. Hall, 339 Or 7, 10, 115 P3d 908 20 (2005). The Medford Police Department obtained a warrant to search a house for 21 property stolen in a burglary, including DVDs, a cell phone, and personal identification. 22 2 No party was named in the warrant. Two narcotics detectives, Hatten and McCurley, 1 were asked to assist with the execution of the warrant. Based on information from a 2 confidential informant, both detectives suspected that one of the residents, Cecil Baker, 3 was selling drugs from the house. No separate warrant was obtained authorizing the 4 search for drugs, however. 5 Hatten, McCurley, and several other detectives went to the house to execute 6 the warrant. They entered the home, guns drawn. They found at the house Baker, along 7 with a number of other individuals. Among those other individuals was defendant, whom 8 the officers believed to be Baker's girlfriend. The officers found defendant in Baker's 9 bedroom. The police moved all of the occupants to a side patio area outside. They 10 handcuffed all of the occupants, including defendant, and patted down each person for 11 weapons. One of the officers outside then read the search warrant aloud to the 12 handcuffed occupants and gave Miranda warnings to the entire group. Meanwhile, 13 Hatten and McCurley asked Baker for consent to search his bedroom, and he agreed. 14 Hatten and McCurley found a purse in Baker's bedroom and assumed that it 15 belonged to defendant because of her relationship with Baker. Hatten went back to the 16 patio and waved for defendant to come into the house to speak with him. Hatten told 17 defendant that he believed that he had found defendant's purse in Baker's room and asked 18 permission to search the purse. While he was speaking to her, defendant told Hatten that 19 "she didn't do anything so she didn't know why she had to be there." Nevertheless, she 20 consented to the search of her purse. 21 Based on that consent, McCurley searched the purse and found a glass pipe 22 3 with a white powdery residue inside. It field-tested positive for methamphetamine. 1 Hatten brought defendant back to Baker's bedroom, where McCurley read Miranda 2 warnings to her a second time and then questioned her. Defendant made several 3 incriminating statements, resulting in her arrest for unlawful possession of 4 methamphetamine, ORS 475.894. 5 B. Trial Court Proceedings 6 Before trial, defendant moved to suppress the evidence found in her purse 7 and her later statements to McCurley. She argued that the search violated both the state 8 and federal constitutions because her purse was outside the scope of the warrant and 9 because her consent either was not voluntary or was obtained by the police through the 10 exploitation of prior unlawful conduct. 11 Regarding defendant's first argument -- the scope of the warrant -- 12 defendant asserted: 13 "The search warrant * * * is void of any language authorizing 14 officers to seize persons that may be present at the residence during its 15 execution nor does the search warrant authorize a search of the personal 16 effects belonging to persons who may be visiting the dwelling at the time 17 the warrant is executed. The warrant was plainly invalid in regards to the 18 seizure and search of defendant and her belongings." 19 In support, defendant cited the Fourth Amendment to the United States Constitution, 20 Article I, section 9, of the Oregon Constitution, and ORS 133.565(2)(b), which sets out 21 the particularity requirements of all search warrants. Defendant then continued: 22 "A search warrant authorizing a search of a particular premise does 23 not allow authorities executing that warrant to search people who happen to 24 be on the premises at the time unless the warrant also authorizes the search 25 of named persons. State v. Mickelson, 18 Or App 647 (1974); State v. 26 4 Mays, 19 Or App 518 (1974). A person's mere presence as a houseguest 1 when the house is search[ed] under the authority of a warrant does not 2 automatically give the police the authority to either frisk or search that 3 person. State v. Meyers, 55 Or App 370 (1981); State v. Swibies, 183 Or 4 App 460 (2002)." 5 Regarding defendant's second argument -- consent -- she argued that her 6 consent was not voluntary and that, even if it was voluntary, the police obtained her 7 consent through the exploitation of her unlawful detention. 8 In response to defendant's first argument, the state took the position that the 9 fact that the purse could hold the types of items described in the warrant was entirely 10 dispositive: "Police could validly search defendant's purse under the search warrant. The 11 areas subject to lawful search pursuant to the warrant are defined by the description set 12 forth on the face of the warrant." As for the second argument, the state responded that 13 defendant's consent was voluntary and that there was no unlawful detention. 14 At the suppression hearing, defendant testified that, at the time the police 15 arrived at Baker's residence, she had been sleeping in the bedroom, but that she had 16 arrived approximately one hour earlier. She said that the police immediately placed her 17 in handcuffs and that she remained in handcuffs the entire time the police were searching 18 the residence, approximately 45 minutes to an hour. She also testified that she 19 remembered being read her Miranda rights and that detective Hatten was polite and did 20 not threaten her when he asked permission to search her purse. When asked whether she 21 consented to the search of her purse of her own free will, she responded affirmatively. 22 Detectives Hatten and McCurley also testified at the hearing. Hatten 23 testified that, although he and McCurley were there to assist in searching for the stolen 24 5 property, he never saw the warrant and "didn't know the exact property stolen" that he 1 was supposed to be looking for. McCurley testified that he did have a list of stolen 2 property that he was looking for based on the warrant, but that they were also using the 3 opportunity to look for narcotics. In fact, the only place Hatten and McCurley helped to 4 search was Baker's bedroom. Neither detective could remember how long defendant was 5 detained or remained handcuffed. 6 The trial court found that "[defendant's] consent was voluntary" and that her 7 detention was not "inappropriate." The court did not make a specific finding of fact 8 about how long defendant had been kept in handcuffs on the patio; it concluded that, even 9 if she had been restrained for up to an hour, the restraint was not unreasonable. 10 The trial court stated that the only "interesting" issue, in its opinion, was 11 "the authority of officers to search for evidence of controlled substances when the search 12 warrant was specifically issued to search and seize evidence of items stolen during a 13 burglary." The trial court requested additional briefing on that issue. In defendant's 14 supplemental memorandum addressing that issue, she did not refer to any arguments 15 under Article I, section 9, focusing instead on arguments under the Fourth Amendment. 16 Ultimately, the trial court denied the motion to suppress, holding that the search of the 17 purse was within the scope of the warrant because it "could have held some of the items 18 listed in the search warrant" and, in the alternative, that the detectives obtained 19 defendant's consent to search her purse. 20 Defendant entered a conditional guilty plea, reserving the right to appeal 21 the trial court's denial of her motion to suppress. 22 6 C. Before the Court of Appeals 1 On appeal, defendant argued that the trial court erred in denying her motion 2 to suppress for two reasons. First, she argued that, under Article I, section 9, the search 3 of her purse exceeded the scope of the warrant. Defendant argued that her purse was a 4 part of her person and, because the warrant did not authorize the search of nonresident 5 "social guest[s]," the search of her purse was outside the scope of the warrant. Second, 6 she argued that her consent, though voluntary, was obtained through police exploitation 7 of prior unlawful conduct -- specifically, her restraint in handcuffs for an hour for no 8 apparent reason while police searched Baker's residence. 9 In a written opinion, the Court of Appeals affirmed the trial court's denial of 10 defendant's motion to suppress, holding that defendant failed to preserve her argument 11 that the search was outside the scope of the warrant under Article I, section 9. 12 Specifically, the court held: 13 "Here, defendant failed, in two related respects, to preserve her present 14 challenge [that, because defendant was a houseguest, the search of her 15 purse was outside] the scope of the warrant. First, defendant, after 16 advancing a single, generic and conclusory proposition, never adduced any 17 authority for that proposition, never developed or reiterated it in argument 18 -- instead, focused exclusively on qualitatively different contentions -- and, 19 ultimately, never took issue with the trial court's failure to address that 20 matter. Second, defendant's appellate position is predicated exclusively on 21 the Oregon Constitution and yet, before the trial court, defendant made no 22 effort to differentiate between the proper analysis under the Fourth 23 Amendment (or various other state constitutions) and that under Article I, 24 section 9." 25 State v. Walker, 234 Or App 596, 607, 229 P3d 606 (2010). In particular, the court noted, 26 defendant failed even to cite its earlier decision in State v. Reid, 190 Or App 49, 77 P3d 27 7 1134 (2003), rev den, 337 Or 182 (2004), in which the court rejected, under the Fourth 1 Amendment, precisely the same arguments that she had advanced in this case. The Court 2 of Appeals concluded that, because defendant's challenge to the scope of the warrant was 3 unpreserved, it did not need to address whether consent was a valid alternative theory 4 under which to affirm the trial court. 5 II. ANALYSIS 6 On review before this court, defendant argues that the Court of Appeals 7 erred in holding that her argument that the search of her purse exceeded the scope of the 8 warrant was not preserved and that the court erred in failing to reverse the trial court on 9 the merits of that argument. As to the merits, defendant contends that, under Article I, 10 section 9, a warrant to search premises does not authorize the police to search the 11 possessions of individuals who do not reside at those premises. 12 The state responds that the Court of Appeals correctly concluded that 13 defendant's argument concerning the scope of the warrant was not preserved. Even if it 14 had been preserved, the state argued, the argument fails because the purse was, in fact, 15 within the scope of the warrant, given that it was a container found in the home that could 16 have contained the types of items that were particularly described in the warrant to search 17 the premises. In the alternative, the state argues, the search was reasonable, under Article 18 I, section 9, because defendant consented to the search. 19 At the outset, we note that the state has asserted -- and the trial court agreed 20 -- that the search of defendant's purse was justified on two independent grounds, viz., the 21 warrant to search the premises and defendant's consent. On review, we will affirm the 22 8 trial court's decision to deny defendant's motion to suppress if the state prevails on either 1 ground. In this case, we address only one ground, the warrant to search the premises, 2 because it is dispositive. 3 A. Preservation 4 We begin with the issue of preservation. As we have noted, the Court of 5 Appeals concluded that, although defendant did advance the argument that, under Article 6 I, section 9, of the Oregon Constitution, a warrant authorizing a search of the premises 7 does not authorize a search of the personal property of guests, that argument remained 8 inadequately articulated to satisfy the requirements of preservation. Defendant argues 9 that the court erred in reaching that conclusion because she had, in fact, clearly asserted 10 the argument in her motion to suppress. 11 As a general rule, claims of error that were not raised in the trial court will 12 not be considered on appeal. State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000). This 13 court has explained that important policies support the preservation rule. In particular, 14 the rule of preservation "gives a trial court the chance to consider and rule on a 15 contention, thereby possibly avoiding an error altogether or correcting one already made, 16 which in turn may obviate the need for an appeal." Peeples v. Lampert, 345 Or 209, 219, 17 191 P3d 637 (2008). The rule also ensures fairness to opposing parties, by requiring that 18 "the positions of the parties are presented clearly to the initial tribunal" so that "parties 19 are not taken by surprise, misled, or denied opportunities to meet an argument." Davis v. 20 O'Brien, 320 Or 729, 737, 891 P2d 1307 (1995). 21 Precisely what suffices to "present[] clearly" a particular position, for 22 9 preservation purposes, is not something that can be explained by a neat verbal formula. 1 And, in fact, this court has cautioned that "problems * * * may arise if the preservation 2 onion is sliced too thinly." State v. Amaya, 336 Or 616, 629, 89 P3d 1163 (2004). 3 Instead, the court has counseled attention to the purposes of the rule and the practicalities 4 it serves. As we explained in State v. Parkins, 346 Or 333, 341, 211 P3d 262 (2009), 5 "[u]ltimately, the preservation rule is a practical one, and close calls * * * inevitably will 6 turn on whether, given the particular record of a case, the court concludes that the 7 policies underlying the rule have been sufficiently served." 8 In this case, those policies were sufficiently served. Defendant advanced 9 the argument in her memorandum submitted in support of her motion to suppress that the 10 search warrant that the police executed "is void of any language authorizing officers to 11 seize persons that may be present at the residence during its execution nor does the search 12 warrant authorize a search of the personal effects belonging to persons who may be 13 visiting the dwelling at the time the warrant is executed." Defendant cited in support of 14 that contention both the Fourth Amendment and Article I, section 9. And she cited case 15 law that applied both the state and federal constitutions. As we have noted, it is clear 16 from the state's briefing to the trial court that there was no doubt as to the nature of the 17 argument that defendant was asserting; the state simply took the position that the warrant 18 was controlling regardless of who owned the purse. In our view, defendant "presented 19 clearly" at the trial court level precisely the same issue that she advanced to the Court of 20 Appeals and is now arguing to us. 21 As we have noted, the Court of Appeals reached a contrary conclusion, 22 10 based on four considerations: First, defendant "never adduced any authority" for her 1 contention that a premises warrant is insufficient to authorize a search of her personal 2 property; second, defendant "never developed or reiterated" her argument at the hearing 3 on her motion to suppress; third, she "never took issue with the trial court's failure to 4 address th[e] matter" at the hearing; and fourth, she "made no effort to differentiate 5 between the proper analysis" under the state and federal constitutions. Walker, 234 Or 6 App at 607. With respect, the Court of Appeals' analysis sets the preservation bar too 7 high. 8 First, adducing particular authorities is not a prerequisite to preservation. 9 See Charles v. Palomo, 347 Or 695, 701, 227 P3d 737 (2010) (citation to particular 10 sources not essential to preserve claim of error). In any event, in this case, defendant did 11 adduce authority for her argument. In her memorandum in support of her motion to 12 suppress, she cited several Oregon Court of Appeals decisions concerning the question 13 whether a premises warrant authorizes the search of a guest. To be sure, she did not cite 14 the most recent authority or the case law closest in point. In particular, as the Court of 15 Appeals noted, she neglected to cite a Court of Appeals decision directly addressing her 16 argument under the Fourth Amendment. But the fact that a party neglects to cite every 17 relevant appellate court decision does not mean that the argument has not been 18 sufficiently brought to the attention of the state and the court to enable the state, if 19 necessary, to make an appropriate record in response and to enable the court to avoid 20 error. 21 Second, the fact that defendant did not "reiterate" her argument at the 22 11 hearing is not dispositive. This court has never required that each and every argument 1 that has been asserted in writing must be repeated orally in court in order for the 2 argument to be preserved. See, e.g., State v. Roble-Baker, 340 Or 631, 639-40, 136 P3d 3 22 (2006) (rejecting contention that, because the defendant did not repeat all contentions 4 raised earlier, those not repeated were not preserved). 5 Third, the fact that defendant did not take "issue with the trial court's failure 6 to address" her argument likewise is not controlling. Once a court has ruled, a party is 7 generally not obligated to renew his or her contentions in order to preserve them for the 8 purposes of appeal. See, e.g., State v. Cole, 323 Or 30, 35, 912 P2d 907 (1996) ("Once an 9 evidentiary ruling is made pretrial, the lack of later relitigation of the same issue * * * 10 does not render any claim of error associated with the ruling unpreserved."). 11 Finally, the fact that defendant did not "differentiate between the proper 12 analysis" of the issue that she raised under the state and federal constitutions also is not 13 dispositive. The fact that the level of detail or thoroughness with which a party 14 articulates a position may leave something to be desired does not mean that it was 15 insufficient to serve the rule of preservation's pragmatic purposes. The point, as we have 16 explained, is whether a party provides sufficient information to enable opposing parties to 17 meet an objection and the trial court to avoid error. 18 Particularly in criminal cases, in which there is a premium on 19 considerations of cost and speed, the realities of trial practice may be such that fairly 20 abbreviated short-hand references suffice to put all on notice about the nature of a party's 21 arguments. As this court explained in State v. Kennedy, 295 Or 260, 666 P2d 1316 22 12 (1983), in which the court rejected precisely the same preservation argument that the state 1 advances in this case: 2 "We do not lack sympathy for the state's position * * *. Legal 3 claims raised but not substantially briefed are burdensome to meet and 4 difficult to decide correctly. * * * On issues new to this state's law, we may 5 prefer principled arguments to mere citations from other jurisdictions, 6 arguments such as both the state itself and other parties have provided in 7 this and in other cases. * * * The reality is that time for original analysis is 8 scarce, particularly in the ordinary criminal case; and particularly at the trial 9 level, lawyers and courts often depend on the shorthand of case citations in 10 preference to scrutinizing statutes and constitutional principles." 11 Id. at 266. 12 In explaining its contrary conclusion, the Court of Appeals cited this court's 13 decision in State v. Mendez, 308 Or 9, 19, 774 P2d 1082 (1989), as holding that the 14 failure to have argued at trial how analysis under the state constitution differs from 15 analysis under the federal constitution is an impediment to appellate review. The citation 16 was fair. Mendez does stand for that proposition. We now conclude, however, that 17 Mendez was wrongly decided. 18 To begin with, in Mendez, the defendant at trial objected to the exclusion of 19 certain testimony, but advanced no state or federal constitutional argument at trial at all. 20 Then, on appeal, he argued for the first time that the exclusion of the testimony violated 21 both state and federal constitutional confrontation guarantees. This court declined to 22 address the defendant's state constitutional contention, observing that he "failed to brief 23 or argue any independent state constitutional theory." Id. at 19. The court then examined 24 the defendant's argument under the federal constitution. But, given that the defendant 25 had failed to advance any constitutional contention at trial, this court should not have 26 13 entertained any constitutional claim of error on review, state or federal. 1 Moreover, a hard-and-fast rule that a failure to assert a difference between 2 state and federal constitutional analysis is an impediment to appellate review is simply 3 incorrect. Indeed, in some cases, this court has concluded that certain parallel provisions 4 of the state and federal constitutions are identical in meaning. See, e.g., State v. Mai, 294 5 Or 269, 272, 656 P2d 315 (1982) ("[W]e construe the state compulsory process clause in 6 the same way as the Supreme Court construe[s] the virtually identical federal counterpart 7 * * *."). The appropriate focus, as our more recent cases make clear, is whether a party 8 has given opponents and the trial court enough information to be able to understand the 9 contention and to fairly respond to it. The necessity of fleshing out a contention with 10 more developed or detailed analysis will depend on the circumstances and the nature of 11 the issue that has been raised. In this case, as we have explained, defendant adequately 12 explained her contention to the trial court. We therefore conclude that the Court of 13 Appeals erred in determining that defendant's challenge to the lawfulness of the search 14 pursuant to the premises warrant was not preserved. 15 B. Merits 16 Defendant argues that, although the police lawfully obtained a warrant to 17 search the premises, they exceeded the scope of the warrant in executing it by searching 18 her purse. Defendant concedes that the purse was the sort of container in which the items 19 specifically listed in the warrant could have been found. She argues that, nevertheless, 20 the search of the purse should be regarded as outside the scope of the warrant: 21 "Whether a premises-only warrant contemplated the search of a personal 22 14 object is a function of the relationship that object has to the premises, as 1 known by the issuing judge at the time the probable cause determination is 2 made. Thus, an issuing judge could contemplate that a premises-only 3 warrant would include objects and containers inside the premises that 4 belong to residents. But, it cannot be said that the issuing judge 5 contemplated the search of persons, or their effects, unknown at the time of 6 the warrant's issuance." 7 According to defendant, because her challenge is to the scope of the authority granted by 8 the warrant, it is the state that bears the burden of establishing the lawfulness of its 9 search. In this case, she contends, the state failed to meet that burden. According to 10 defendant, the state failed to present any evidence concerning the nature of her 11 relationship to Baker or the premises, whether she was in a romantic relationship with 12 him, whether that relationship was casual or serious, whether she was a mere "social 13 guest, who by happenstance is present when the warrant is executed," or was instead a 14 roommate or resident. "The record is silent on all those questions," defendant asserts, 15 "and the state bears the consequences of that silence." Indeed, defendant goes so far as to 16 assert that, "[u]nder whatever approach this court might announce, the state failed to 17 present sufficient evidence that the search of defendant's purse was permissible under the 18 warrant." 19 The state responds that the warrant itself authorized the police to search 20 defendant's purse. According to the state, "an executing officer may search all items on 21 the premises that could contain the items listed in the warrant except for items in the 22 physical possession of a person not named in the warrant." In this case, the state 23 contends, defendant does not contest that her purse is the sort of object that police 24 reasonably could conclude contained the items listed in the warrant. That, the state 25 15 concludes, ends the matter regardless of her relationship to Baker or the premises. 1 We begin with the issue of who bears the burden of proof. Under Oregon 2 law, the allocation of the burden of proof regarding the lawfulness of a search under 3 Article I, section 9, depends on whether the search was conducted pursuant to a warrant. 4 As this court explained in State v. Davis, 295 Or 227, 666 P2d 802 (1983), "warrantless 5 entries and searches of premises are per se unreasonable unless falling within one of the 6 few 'specifically established and well-delineated exceptions' to the warrant requirement. 7 The state has the burden of showing that circumstances existing at the time of entry 8 invoke one of th[o]se exceptions." Id. at 237 (quoting Katz v. United States, 389 US 347, 9 357, 88 S Ct 507, 19 L Ed 2d 576 (1967)) (citations omitted). When the police have 10 acted under authority of a warrant, however, "the burden is on the party seeking 11 suppression (i.e., the defendant) to prove the unlawfulness of a search or seizure." State 12 v. Johnson, 335 Or 511, 520, 73 P3d 282 (2003); see also William E. Ringel, 2 Searches 13 & Seizures, Arrests and Confessions § 20.12 (2011) ("A defendant generally has the 14 burden of showing a constitutional infirmity if a search or seizure was carried out 15 pursuant to a warrant[.]"). 16 The rule that the defendant bears the burden of proving the unlawfulness of 17 a warranted search "derives from the presumption of regularity that arises out of the fact 18 that, in a warranted search, an independent magistrate already has determined that 19 probable cause exists." Johnson, 335 Or at 521; see also Wayne R. LaFave, 6 Search 20 and Seizure § 11.2(b), 42-43 (4th ed 2004) (that the defendant bears the burden "is 21 typically explained on the ground that when the police have acted with a warrant, 'an 22 16 independent determination on the issue of probable cause has already been made by a 1 magistrate, thereby giving rise to a presumption of legality'" (quoting Malcolm v. United 2 States, 332 A2d 917, 918 (DC App 1975))). 3 Practical considerations also support the rule. Once the state establishes 4 that a search occurred pursuant to warrant, it makes more sense to place the onus on the 5 defendant to establish what went wrong with the issuance or execution of the warrant 6 than to require the state to anticipate the many possible ways that the execution of the 7 warrant could have gone awry, but did not in a particular case. See LaFave, 6 Search and 8 Seizure §11.2(b) at 55 ("[W]here the prosecution shows the evidence was acquired 9 pursuant to a warrant, it is then more economical to require the defendant to assert what 10 went wrong with respect to the issuance or execution of the warrant than to call upon the 11 state to establish that of all the things which might go wrong, none are present in the 12 instant case."). Among other things, it is the defendant who ordinarily will have the 13 better access to the facts that are relevant to a contention that the execution of the warrant 14 was unlawful. In this case, for example, defendant argues that the search of her purse 15 was not authorized by the warrant because of the nature of her relationship to Baker and 16 the premises, facts that she clearly is in the best position to establish. 17 Defendant argues for a different allocation of the burden of proof. She 18 contends that, when, as in this case, a defendant asserts that a search exceeded the scope 19 of a warrant, the burden should remain with the state to show that the search was valid. 20 Defendant reasons that, if the search exceeded the scope of the warrant, the result is that 21 it was essentially warrantless. The problem with defendant's argument is that it confuses 22 17 the effect of prevailing on an argument with the burden of proving it in the first place. A 1 defendant, for example, could challenge the validity of the warrant itself, and, if 2 successful, the result would be that the search at issue was essentially warrantless. Yet, 3 in such cases, the burden of proving the invalidity of that warrant rests squarely with the 4 defendant. ORS 133.693(3) (the party who moves to suppress evidence obtained 5 pursuant to a warrant on the ground that the warrant was invalid has the burden of 6 proving the invalidity of the warrant); State v. Sargent, 323 Or 455, 461, 918 P2d 819 7 (1996) (same). The same is true in this case. 8 With that burden in mind, we turn to the parties' arguments on the merits. 9 Whether a premises warrant authorizes police to search the personal property of 10 nonresident "social guests" who happen to be on the premises at the time of execution of 11 the warrant is a question of first impression for this court. It is an issue that has deeply 12 divided other state and federal courts around the country. See generally LaFave, 2 13 Search and Seizure § 4.10(b) at 742-48; Zachary H. Johnson, Comment, Personal 14 Container Searches Incident to Execution of Search Warrants: Special Protection for 15 Guests?, 75 Temple L Rev 313 (2002). 16 The division has its genesis in the United States Supreme Court's decision 17 in Ybarra v. Illinois, 444 US 85, 91-92, 100 S Ct 338, 62 L Ed 2d 238 (1979), in which 18 the court held that, under the Fourth Amendment, a premises warrant does not authorize 19 police to search persons who merely happened to be on the premises at the time the 20 warrant was executed. Following Ybarra, the question arose whether a premises warrant 21 would authorize the search of the personal effects of individuals who happen to be on the 22 18 premises. The Supreme Court has yet to address that issue. In the meantime, a number 1 of schools of thought has emerged, primarily among courts applying the Fourth 2 Amendment. 3 One school of thought adopts what is known as the "physical possession" 4 or "physical proximity" test. Under that test, the police executing a premises warrant are 5 authorized to examine any item not in the physical possession or immediate proximity of 6 a visitor that either is listed in the warrant or is a container in which such an item 7 reasonably could be located. See, e.g., United States v. Teller, 397 F2d 494, 497 (7th 8 Cir), cert den, 393 US 937 (1968) (purse that police found on premises that belonged to 9 the defendant was "merely another household item subject to the lawful execution of the 10 search warrant which the federal agents held and were enforcing"). 11 Another adopts what is known as the "relationship test," which focuses not 12 on the mere location of an item of property within the premises but, instead, on the 13 relationship between the owner of such property and those premises. Under the 14 relationship test, police executing a premises warrant are authorized to search possessions 15 of an individual only if the police know that the individual has a sufficient relationship to 16 the premises -- usually characterized as something other than a "mere guest" or a "casual 17 visitor" -- that examination of the individual's possession does not violate the visitor's 18 reasonable expectation of privacy. See, e.g., United States v. Giwa, 831 F2d 538, 544 19 (5th Cir 1987); United States v. Micheli, 487 F2d 429 (1st Cir 1973). 20 Perceived inadequacies of both the physical possession and relationship 21 tests have led to the articulation of a third approach. Under what is known as the "actual 22 19 notice" test, police officers executing a warrant may search any items that come within 1 the scope of the warrant unless those officers have actual notice that the items belong to a 2 transitory guest or some similar person having no relation to the premises. See, e.g., State 3 v. Nabarro, 55 Haw 583, 587, 525 P2d 573 (1974). 4 That position, however, has led to the adoption of yet others. Courts 5 purporting to apply an actual notice test differ as to the type of notice that suffices to limit 6 authority to search property found on the premises. Some, for example, limit an officer's 7 authority only upon "actual knowledge" that property belongs to a nonresident. See, e.g., 8 People v. McCabe, 144 Cal App 3d 827, 830, 192 Cal Rptr 635 (1983). Others hold that 9 an officer executing a warrant cannot examine property otherwise within the scope of the 10 warrant if the officer "knew or should have known" that the property was owned by a 11 guest. State v. Thomas, 818 SW2d 350, 360 (Tenn Crim App 1991). 12 In this case, the state argues for our adoption of the physical possession 13 test, urging as it does that "an executing officer may search all items on the premises that 14 could contain the items listed in the warrant except for items in the physical possession of 15 a person not named in the warrant." (Emphasis added.) Defendant, on the other hand, 16 argues for the adoption of a variation of the relationship test. 17 We need not determine which of the foregoing approaches to the authority 18 of police to search "mere guests" or "casual visitors" when executing a premises warrant 19 is consistent with the requirements of Article I, section 9. That is because, as defendant 20 herself observes, the record is silent about key facts necessary to the determination of the 21 lawfulness of the search of the purse under any of those tests. 22 20 Were the court to select the physical possession test, for instance, a key fact 1 would be whether the purse was within defendant's physical possession or control when it 2 was seized. If not, then the warrant would be sufficient to authorize the search as long as 3 the purse could contain the seizable items listed in the warrant. In this case, there is no 4 dispute that, at the time the police seized the purse, it was not in defendant's possession or 5 that it could hold the items listed in the warrant. But, defendant points out, at the time the 6 police originally entered the bedroom, defendant could have been in physical possession 7 of the purse and that she became separated from it only because the police ordered her 8 from the room. The problem is that the record is silent on that point. Given that it is 9 defendant who bears the burden of proof, it is defendant who bears the consequence of 10 that silence. 11 Similarly, were the court to adopt the relationship test, or the actual notice 12 test, or some variation of either, a key fact would be that defendant actually was a "mere 13 guest" or "casual visitor," as opposed to a resident or roommate. Again, the record is 14 silent on that point. There is evidence that defendant was Baker's girlfriend, that she had 15 been sleeping in the bedroom when the police arrived, and that she had arrived there 16 approximately one hour earlier. Even defendant acknowledges that such evidence is 17 insufficient to establish the nature of her relationship to Baker or the premises. Once 18 again, because it is she who bears the burden of proof, it is she who bears the 19 consequence of the failure of the record to establish that key fact. 20 We therefore reserve for another day the question whether a premises 21 warrant authorizes the search of the personal effects of individuals who happen to be on 22 21 the premises when those effects are not in the physical possession of those individuals. 1 Because we conclude that defendant in this case has failed to meet her burden of 2 demonstrating that the search of her purse was not authorized by the warrant, we need not 3 address the parties' arguments about the lawfulness of defendant's consent to search its 4 contents. 5 The decision of the Court of Appeals and the judgment of the circuit court 6 are affirmed. 7

5bab0e303b0895f551d5dc8ed99b6a6807563b7164da8e1dcba0906cf7542e5d

2011-07-28T00:00:00Z

d0981e26-2a3a-4644-9e4a-8beb0bb4c5b4

In re Lopez

S058869

oregon

Oregon Supreme Court

Filed: April 7, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In re: the Reciprocal Discipline of ANTHONY ROBERT LOPEZ, JR., Accused. (OSB 10-64; SC S058869) On review of the recommendation of the State Professional Responsibility Board, filed October 15, 2010. Allison D. Rhodes, Hinshaw & Culbertson, LLP, Portland, filed a memorandum on behalf of the Accused. Susan Roedl Cournoyer, Assistant Disciplinary Counsel, Tigard, filed a memorandum on behalf of the Oregon State Bar. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, Linder, and Landau, Justices.* PER CURIAM The accused is suspended from the practice of law for a period of nine months, commencing 60 days from the date of this decision. *Gillette, J., retired December 31, 2010, and did not participate in the decision of this case. PER CURIAM This is a reciprocal discipline proceeding pursuant to Oregon State Bar Rule of Procedure (BR) 3.5. The accused is licensed to practice law in both California and Oregon.(1) While practicing law in California, he repeatedly violated that state's rules of professional conduct. The accused entered into a stipulation with the California State Bar and, based on that stipulation, the California Supreme Court suspended his license to practice law for one year. The court, however, stayed the suspension on the condition that the accused serve 90 days of the suspension and successfully complete a one-year probation.(2) Pursuant to BR 3.5(a), the Oregon State Bar notified this court that California had disciplined the accused. The Bar recommended that we impose the same sanction that the California Supreme Court did. For the reasons that follow, we suspend the accused's license to practice law in Oregon for nine months. In a reciprocal discipline proceeding, the question whether to impose a sanction turns on two issues: "(1) Was the procedure in the jurisdiction which disciplined the attorney lacking in notice or opportunity to be heard? "(2) Should the attorney be disciplined by [this] court?" BR 3.5(c). In this case, the accused concedes that the California disciplinary proceeding provided him with notice and an opportunity to be heard, and he does not dispute that this court should discipline him for his misconduct in California. Rather, he joins in the Bar's recommendation that Oregon's sanction should be coextensive with California's. In light of the accused's concessions, our sole task is to determine the appropriate sanction. We begin by summarizing the conduct that gave rise to this proceeding. We take the facts from the stipulation before the California Supreme Court. The accused's misconduct spans seven client-related matters and one advertising matter. We summarize each matter: The first matter. The accused represented a woman and her three minor children in a personal injury action. In the course of that representation, he settled the children's claims without obtaining court approval, as California law requires; he waited for over one year before distributing the proceeds of the settlement; and he deducted his fee and the children's medical expenses without first obtaining court approval, as California law also requires. Finally, the accused charged the woman a fee that exceeded local court guidelines.(3) The accused does not dispute that his conduct violated Oregon Rule of Professional Conduct (RPC) 1.15-1(d) (a lawyer must promptly deliver client funds), RPC 1.5 (a lawyer must not collect an illegal fee), and RPC 8.4(a)(4) (a lawyer must not engage in conduct that is prejudicial to the administration of justice). The second matter. After settling a personal injury claim, the accused received the settlement proceeds and distributed a portion of those proceeds to his client. The accused included a disbursement sheet, accounting for the portion of settlement funds that he had deducted from the gross amount in order to pay certain fees and expenses. The sheet incorrectly represented that some of the client's medical expenses had been reduced, and it also failed to account for two liens that encumbered the settlement proceeds. The accused waited longer than one year to satisfy the two liens. The accused does not dispute that his conduct violated RPC 1.4(b) (a lawyer must explain a matter sufficiently to permit the client to make informed decisions) and RPC 1.15-1(d) (a lawyer must promptly deliver funds due to a third party). The third matter. In the course of representing a third client, the accused failed to notify his client of the adverse party's written offers of settlement. Additionally, in that case, although the accused acknowledged the full amount due on a medical lien, he sent the lienholder a check for a quarter of the total amount; the check bore the stamp "[f]ull & [f]inal [s]atisfaction [p]ayment." The accused then delayed for over one year before fully satisfying that lien. The accused does not dispute that his conduct violated RPC 1.4(a) (a lawyer must keep a client reasonably informed about a matter), RPC 1.4(b) (a lawyer must explain a matter sufficiently to permit the client to make informed decisions), and RPC 1.15-1(d) (a lawyer must promptly deliver funds due to a third party). The fourth matter. In another personal injury case, the accused settled the claims of three clients for less than their medical bills. Before distributing the settlement funds, the accused asked his clients' medical providers to reduce their bills. When they refused, the accused failed to negotiate further with the medical providers. Twenty-one months later, one of the accused's client's received a collection notice from one of the medical providers. The accused continued to delay after his client received the collection notice, waiting 10 more months before filing an interpleader action to resolve the various claims to the settlement proceeds. The accused does not dispute that his conduct violated RPC 1.1 (a lawyer must provide competent representation to a client). The fifth and sixth matters. The fifth matter involved one client; the sixth, two clients. In both matters, the accused failed to explain adequately to his non-English-speaking clients how settlement funds would be disbursed and the amounts that each client would receive. The accused does not dispute that, with respect to both matters, he violated RPC 1.4(b) (a lawyer must explain a matter sufficiently to permit the client to make informed decisions). The seventh matter. In the seventh matter, the accused settled a personal injury claim on behalf of a client and the client's three minor children. The accused settled two of the children's claims without obtaining court approval. When he received the settlement funds, the accused first deducted a quarter of the proceeds as a fee, contrary to a California law that requires a court order approving such a payment. The accused does not dispute that his conduct violated RPC 1.5 (a lawyer must not collect an illegal fee) and RPC 8.4(a)(4) (a lawyer must not engage in conduct that is prejudicial to the administration of justice). The eighth matter. The eighth matter involves an advertisement that the accused aired in Nevada. The advertisement, translated from the Spanish, stated, "If you have had an auto accident, by law you have the right to receive at least $15,000 for your case. Call the offices of [the accused.]" The accused does not dispute that his advertisement created a misleading impression concerning the results that he could obtain and that the advertisement accordingly violated RPC 7.1(a)(2) (a lawyer must not make a communication about the lawyer's services that is intended or is reasonably likely to create a false or misleading expectation about the result that the lawyer can achieve). Based on that misconduct, the California Supreme Court suspended the accused's license to practice law for one year, but it stayed imposition of that suspension subject to the accused's serving 90 days of actual suspension and successfully completing a year-long probation. In notifying this court of discipline in another jurisdiction, the Bar recommended, and the accused agreed, that we impose the same sanction that California had. Given the accused's record of prior discipline, which we discuss below, and the repeated instances of misconduct that gave rise to this proceeding, we asked the Bar and the accused to explain how the proposed sanction would protect Oregon clients and the public. Both parties responded to our inquiry. The Bar admitted that its recommended sanction might not be sufficient. It suggested, however, that this court's prior practice in reciprocal discipline proceedings has been to impose the same sanction that the other jurisdiction did. The Bar also suggested that completion of the accused's California probation -- which included taking a legal ethics examination and completing courses in law practice management -- could have a rehabilitative effect that would protect the accused's Oregon clients and the public. For his part, the accused agreed with the Bar's observation that this court follows the sanction imposed in the other jurisdiction and also emphasized the rehabilitative value of his probation. In reciprocal discipline cases, this court has an independent obligation to determine the sanction merited by a lawyer's violation of this state's professional rules. See In re Page, 326 Or 572, 577, 955 P2d 239 (1998) (this court's "choice of a sanction vindicates the judicial authority of this jurisdiction, not of the one in which the earlier discipline occurred," quoting In re Devers, 317 Or 261, 265, 855 P2d 617 (1993)). As a factual matter, this court frequently has found that the sanction that another jurisdiction has imposed is sufficient to vindicate Oregon's interests. We are, however, free to impose a different sanction, if appropriate, and on occasion have done so. See Page, 326 Or at 574 (Washington formally reprimanded the accused; this court suspended her for 30 days); Devers, 317 Or at 263 (Michigan suspended the accused for four months; this court suspended him for six months). With the foregoing in mind, we turn to the determination of the appropriate sanction, which includes consideration of both the American Bar Association's Standards for Imposing Lawyer Sanctions (2005) (ABA Standards) and this court's cases. See Page, 326 Or at 577 (so noting). The ABA Standards direct courts to examine four factors in determining the appropriate sanction for a lawyer's professional misconduct: (1) the ethical duty violated, (2) the lawyer's mental state, (3) the actual or potential injury caused by the lawyer's misconduct, and (4) the existence of aggravating or mitigating circumstances. Page, 326 Or at 577; Devers, 317 Or at 267. The accused violated the duties that he owed to his clients when he mishandled their property, failed to represent them competently, and failed to provide them with complete and accurate information. See ABA Standards 4.1, 4.5, 4.6 (noting duties owed to clients). The accused violated his duty as an officer of the court when he failed to obtain the court approval required by law to settle certain of his clients' claims and to deduct his fee from those settlement proceeds. See ABA Standard 6.2 (noting duty to obey the obligations imposed by a tribunal's rules). Finally, the accused violated his duty to the legal profession when he aired an illegal advertisement. See ABA Standard 7.0. In the stipulation before the California Supreme Court, the accused admitted that each instance of his misconduct, except for one, was a "willful" violation of California law.(4) Under California law, "to establish a willful breach of the Rules of Professional Conduct, '[I]t must be demonstrated that the person charged acted or omitted to act purposely, that is, that he knew what he was doing or not doing and that he intended either to commit the act or to abstain from committing it.'" King v. State Bar of Cal., 801 P2d 419, 423 (1990) (alteration in original; quoting Zitny v. State Bar of Cal., 415 P2d 521, 524 (1966)). Under California law, a lawyer need not know that his or her conduct violates a specific ethical standard for it to be "willful." King, 801 P2d at 423. It is sufficient if the lawyer is aware of what he or she is doing and intends to do it. Id. As we read the California cases, the accused's stipulation that his conduct was "willful" means that, at a minimum, he acted knowingly under the ABA Standards. See ABA Standards at 13 (defining the mental state of "[k]nowledge" as the "conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result"). Given the accused's stipulation, we find that the accused acted knowingly with respect to all but one of the charged instances of misconduct. For the most part, the stipulation does not identify any concrete economic harm that the accused's clients suffered as a result of the accused's misconduct. Rather, the accused's failure to communicate adequately with his clients and his failure to pursue diligently the prosecution and resolution of their cases exposed his clients to potential economic injury. We note, however, that the accused's clients suffered actual injury in the first matter when they paid the accused an excessive fee, even though the accused ultimately mitigated that injury by refunding the excess. Compare In re Wyllie, 331 Or 606, 622, 19 P3d 338 (2001) (clients suffered an actual injury when their lawyer collected an excessive fee from them), with In re Knappenberger, 344 Or 559, 573-74, 186 P3d 272 (2008) (clients suffered potential injury when their lawyer charged but did not collect an excessive fee). Finally, this court has held that a lawyer's failure to communicate adequately with a client can be an ascertainable injury "measured in terms of time, anxiety, and aggravation" to the client. In re Koch, 345 Or 444, 456, 198 P3d 910 (2008). Considering the nature of the accused's ethical violations, his mental state, and the injuries to which he exposed his clients, we conclude tentatively that a suspension is the proper sanction in this case for all but two of the instances of misconduct. See ABA Standard 4.12 (suspension is generally appropriate when a lawyer knowingly deals improperly with client property and causes injury or potential injury to a client); ABA Standard 6.22 (suspension is generally appropriate when a lawyer knowingly violates a court rule and causes potential injury); ABA Standard 7.2 (suspension is generally appropriate where a lawyer knowingly engages in conduct that violates a duty owed as a professional). The ABA Standards suggest that a reprimand generally would be appropriate for two instances of the accused's misconduct, if those instances of misconduct stood alone. See ABA Standards 4.5, 4.6.(5) We also consider aggravating and mitigating factors to which the parties have stipulated or that the record otherwise supports. See Page, 326 Or at 579-80 (acknowledging stipulated factors and finding additional ones). Here, the parties stipulated that the accused's prior discipline was an aggravating factor. See ABA Standard 9.22(a) (prior misconduct is an aggravating factor). On that issue, the California Supreme Court previously had sanctioned the accused after he failed to maintain client funds in his trust account and failed to account properly for his client's funds. For that disciplinary violation, the accused received a one-year suspension, which was stayed in its entirety subject to the accused's successful completion of one year of probation.(6) In addition, because the accused engaged in similar misconduct over the span of the seven client-related matters involved here, we also find the aggravating factors of multiple offenses, ABA Standard 9.22(d), and a pattern of misconduct, ABA Standard 9.22(c). Because the accused has been a member of the California Bar for over 20 years, his substantial experience in the practice of law is also an aggravating factor. See ABA Standard 9.22(i); In re Eakin, 334 Or 238, 258, 48 P3d 147 (2002) (finding substantial experience where the accused had been practicing for more than 20 years). Finally, we note that the accused's advertisement was aimed at non-English speaking clients -- a group that might be more dependent on their lawyer to protect their interests and thus more vulnerable to the sort of misconduct in which the accused has engaged. See ABA Standard 9.2(h) (identifying the vulnerability of the clients as an aggravating factor). The parties did not stipulate to any mitigating factors. However, the imposition of sanctions in another jurisdiction for the same misconduct is a mitigating factor that is always present in a reciprocal discipline proceeding. See ABA Standard 9.32(k) (identifying "imposition of other penalties or sanctions" as a mitigating factor); Page, 326 Or at 579-80. Considering those factors, we note that not only has the accused engaged in repeated instances of multiple types of misconduct but also that his prior disciplinary sanction, which consisted of a one-year probation, does not appear to have deterred the accused's commission of other violations. Given the prior disciplinary sanction, we are not persuaded that either the 90-day actual suspension or the one-year probation that the California Supreme Court recently imposed will have as great a rehabilitative effect as the accused argues. Considering the aggravating and mitigating factors, we conclude tentatively that a longer period of actual suspension than the California Supreme Court imposed is appropriate. In determining the appropriate sanction, we also consider this court's decisions in comparable cases. Taken individually, most instances of the accused's misconduct would merit a 30- to 60-day suspension. See In re Snyder, 348 Or 307, 323-24, 232 P3d 952 (2010) (suspending the accused for 30 days where he failed, in a single-client matter, to communicate adequately and pay client funds promptly); In re Knappenberger, 337 Or 15, 32-33, 90 P3d 614 (2004) (suspending the accused for a total of 90 days and noting that the lawyer's neglect of a single client's legal matter merited a 60-day suspension where the aggravating factors outweighed the mitigating factors); Eakin, 334 Or at 259 (suspending the accused for 60 days where she mishandled one client's property). Longer periods of suspension are appropriate where the number of violations and the number of clients potentially harmed increase. In Devers, this court imposed a six-month suspension for multiple instances of misconduct spanning three client-related matters. 317 Or at 267-68. The lawyer in Devers had a more extensive history of prior disciplinary action, although the prior misconduct had merited less onerous sanctions. See id. at 263-64 (noting that Devers' disciplinary history consisted of two prior reprimands and one prior admonishment). Additionally, the misconduct in Devers resulted in economic harm to some of the clients. See id. at 266 (lawyer had collected a clearly excessive fee). By contrast, the accused has had only one prior disciplinary violation, and the accused refunded the excessive fee that he collected and thus mitigated the harm that he caused by collecting the fee. The accused, however, violated the Rules of Professional Conduct in handling seven client matters, as opposed to three in Devers, and in engaging in misleading advertising. Not only has the accused's misconduct spanned seven client matters, but, in handling some of those matters, the accused committed multiple ethical violations. For example, in one matter, the accused failed to communicate settlement offers to his client, and, once the case settled, delayed for a year in disbursing the settlement proceeds. In another matter, the accused settled the case and deducted his fee without court approval, as California law requires, and he charged an excessive fee that he later had to refund. The other five matters were variations on the two matters noted. Considering the multiple instances of misconduct in which the accused has engaged over a span of seven clients, his prior disciplinary sanction, and the fact that the accused acted knowingly when he committed almost all the instances of misconduct, we suspend the accused from the practice of law in Oregon for a period of nine months. Unlike California, we do not stay any part of that period of suspension. The accused is suspended from the practice of law for a period of nine months, commencing 60 days from the date of this decision. 1. It appears from the record that, at least at some point, the accused also has been licensed to practice law in Arizona and Nevada. 2. The parties inform us that the accused has successfully completed his one-year probation. 3. The accused eventually refunded the fee to the extent that it exceeded the guidelines. 4. The accused did not stipulate that he willfully violated California law in handling the second matter discussed above -- viz., when he incorrectly represented on a disbursement sheet that some of his client's medical expenses had been reduced and, on that same disbursement sheet, failed to account for two liens that encumbered his client's settlement proceeds. 5. Under ABA Standard 4.5, the propriety of a suspension or reprimand turns on whether the lawyer knowingly or negligently engaged in an area of practice in which he or she was not competent. In this case, the accused's incompetence did not extend to an area of practice; rather, he knowingly failed to file an interpleader action in a timely manner -- something that he does not dispute a competent attorney would have done. In a similar vein, ABA Standard 4.6 suggests suspending a lawyer's license where the lawyer "knowingly deceives" a client, but suggests that a reprimand is appropriate where the lawyer "negligently fails to provide a client with accurate or complete information * * *." Here, the accused knowingly failed to communicate adequately with some of his clients, but nothing suggests that he purposefully sought to deceive them. Although neither standard provides a perfect match to the accused's conduct, they suggest that a reprimand would be appropriate if those were the accused's only violations. 6. The accused's prior misconduct occurred in Arizona. California imposed reciprocal discipline for that misconduct. The record does not reveal what discipline the Arizona disciplinary authority had imposed.

cbb122633232f9b04383985915d7cca340a04793c4e3efe43c560e95ef31a9a3

2011-04-07T00:00:00Z

9916163e-c48c-4c83-836e-aab8a6c6b056

Oregon v. Barrett

S059423

oregon

Oregon Supreme Court

Filed: May 27, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Plaintiff, v. IVEY WAYNE BARRETT, Defendant. LINDA DIANE BARRETT, Appellant, v. STATE OF OREGON and IVEY WAYNE BARRETT, Respondents. (CC D110426M; SC S059423) On interlocutory appeal pursuant to ORS 147.537.* Argued and submitted May 19, 2011. Janine Robben, Oregon Crime Victims Law Center, Portland, argued the cause and filed the memorandum for appellant. Gregory A. Rios, Assistant Attorney General, Salem, argued the cause for respondent State of Oregon. With him on the response were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Eric R. Johansen, Office of Public Defense Services, Salem, argued the cause for defendant-respondent Ivey Wayne Barrett. With him on the response was Peter Gartlan, Chief Defender. Before De Muniz, Chief Justice, and Durham, Kistler, Walters, Linder, and Landau, Justices.** DE MUNIZ, C. J. The order of the circuit court is reversed, defendant's sentence is vacated, and the case is remanded to the circuit court for resentencing. *On appeal from Washington County Circuit Court, Rick Knapp, Judge. **Balmer, J., did not participate in the consideration or decision of this case. DE MUNIZ, C. J. Appellant is the victim of the crime of stalking, a Class A misdemeanor. ORS 163.732(2)(a). The trial court concluded that, in the criminal proceeding against defendant, the perpetrator of the crime, the state violated the victim's rights as a crime victim under the Oregon Constitution. However, the trial court held that neither the Oregon Constitution nor the Oregon statutes provided a remedy for the violation. Pursuant to ORS 147.537, the victim filed an interlocutory appeal from the trial court's order denying the victim a remedy. We reverse and remand. We begin with a brief discussion of the relevant constitutional and statutory provisions. In 1999, the voters enacted Article I, section 42, of the Oregon Constitution, granting certain rights to crime victims. As applicable to this case, that provision states: "To preserve and protect the right of crime victims to justice, to ensure crime victims a meaningful role in the criminal and juvenile justice systems, to accord crime victims due dignity and respect and to ensure that criminal and juvenile court delinquency proceedings are conducted to seek the truth as to the defendant's innocence or guilt, and also to ensure that a fair balance is struck between the rights of crime victims and the rights of criminal defendants in the course and conduct of criminal and juvenile court delinquency proceedings, the following rights are hereby granted to victims in all prosecutions for crimes and in juvenile court delinquency proceedings: "(a) The right to be present at and, upon specific request, to be informed in advance of any critical stage of the proceedings held in open court when the defendant will be present, and to be heard at the pretrial release hearing and the sentencing or juvenile court delinquency disposition[.]" Or Const, Art I, § 42(1)(a). That constitutional provision also authorizes the legislature to enact laws to effectuate those rights. Or Const, Art I, § 42(3)(c) ("The Legislative Assembly may provide by law for further effectuation of the provisions of this subsection * * *."). The legislature did so in ORS 147.500 et seq. One statute that the legislature enacted requires that, at the beginning of any "critical stage" of a criminal proceeding, the prosecutor must inform the trial court about whether the victim has requested advance notice and been notified of such proceedings. ORS 147.510(2).(1) "Critical stage[s] of the proceeding" include the entry of a guilty plea and sentencing. ORS 147.500(5)(e), (h). At the outset of such proceedings, the prosecutor must inform the court, among other things, whether the victim is present, and if the victim is not present, whether the victim requested advance notice of any critical stage of the proceeding. ORS 147.510(2). Other statutes establish procedures by which victims may seek to have violations of their constitutional rights vindicated. Briefly, a victim who "wishes to allege a violation of a right granted to the victim in a criminal proceeding by section 42 or 43, Article I of the Oregon Constitution" must timely inform the trial court of the alleged violation, describe the facts, and propose a remedy. ORS 147.515(1). The victim may do so "[o]n a form prescribed by the Chief Justice of the Supreme Court." ORS 147.515(2)(a). If a victim's claim is facially valid, the trial court is required to issue an order to show cause. ORS 147.515(3) (court "shall" issue order to show cause). If any party timely responds to the order to show cause, then the court will hold a hearing. See ORS 147.517(2)(b) (order to show cause must include date on which court "will conduct a hearing on timely responses to the claim"); ORS 147.530(1) (establishing procedures for "a hearing on a claim [or] a response filed under ORS 147.517(4)"); cf. ORS 147.520 (directing court to resolve claims where no response has been timely filed). After a hearing, the court must issue an appropriate order granting or denying relief. ORS 147.530(4). The court may rule either orally or in writing; a written order generally must issue within seven days of the order to show cause, while an oral order in open court must be followed by a written order "as soon as practicable." ORS 147.530(5)(a), (c).(2) With that background, we turn to the facts of this case. In considering the facts, this court "may not substitute its judgment for that of the trial court," and it is to review any challenge to a trial court factual finding "for evidence in the record to support the finding." ORS 147.537(17). The victim is defendant's estranged wife. On February 15, 2011, defendant was charged with stalking the victim. The victim had a conversation with a victim advocate in the district attorney's office, invoked her right to be notified in advance of sentencing and other critical stage hearings, and completed a form memorializing those requests. The victim was told, and the form indicated, that the form needed to be returned to the district attorney's office by March 2. In fact, the victim returned the form early, and the district attorney's office received it sometime on February 28. Before that date, the victim advocate told the victim that she did not need to be present for a pretrial appearance by defendant that was scheduled for 9:00 a.m. on February 28. That appearance was not scheduled to involve entry of plea or sentencing. Meanwhile, the prosecutor engaged in plea negotiations with defendant. In accordance with those negotiations, when defendant appeared on February 28 at 9:00 a.m., defendant pleaded guilty to the misdemeanor stalking charge. Immediately thereafter, on that same date, the trial court sentenced defendant to two years' probation. The victim was not present, and the court did not engage in the colloquy required by ORS 147.510.(3) When the victim learned that defendant had pleaded guilty and been sentenced, she filed a claim pursuant to ORS 147.515 for violation of her rights as a crime victim, using the form that is contemplated by that statute. The victim alleged that the state violated her rights under Article I, section 42(1)(a), of the Oregon Constitution "to be present at and, upon specific request, to be informed in advance of any critical stage of the proceedings held in open court when the defendant will be present, and to be heard at the pretrial release hearing and the sentencing." The victim requested that the parties be required to appear and show cause why the defendant's sentence should not be set aside and the defendant resentenced with notice to the victim and with her presence and participation at the new sentencing hearing. See ORS 137.013 (giving victim right to appear and express views at sentencing); ORS 147.515(1) (authorizing crime victim to "propose a remedy" for violation of rights). The prosecutor also filed a separate motion requesting that the court vacate defendant's sentence and resentence him, based on the violation of the victim's rights as a crime victim. On April 1, the trial court held a hearing on the motions. Counsel for defendant appeared and opposed the motions. At the conclusion of the hearing, the trial court agreed with the victim that the state had violated her rights under Article I, section 42(1)(a) to be present at (and informed in advance of) "critical stage[s] of the proceedings." The court also concluded that the state had violated the victim's right under ORS 137.013 to appear and be heard at defendant's sentencing and that the prosecutor had failed to carry out his obligations under ORS 147.510 to notify the court whether the victim was present and, in her absence, whether she had requested notice and had indicated an intention to attend the proceedings. The trial court declined, however, to vacate defendant's sentence and order a resentencing hearing. The court reasoned that "the Oregon Constitution and Oregon statutes did not provide a remedy" for those violations and entered an order to that effect. As noted, the victim appealed to this court.(4) On appeal, defendant offers three arguments as to why the victim should not receive the remedy that she seeks. In his response to the memorandum of law submitted to this court by the victim, defendant asserted that the victim waived her rights by failing to request a remedy within the time frame prescribed by ORS 147.533(1)(b)(C) (i.e., before former jeopardy attached). Defendant also contended that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred resentencing as a remedy. Finally, in a motion for summary affirmance, defendant argued, that the victim's right to be notified of critical stages of the proceedings had not been violated, because she had not made the "specific request" required by Article I, section 42(1)(a), before the hearing on February 28. We begin with whether the victim established a violation of her constitutional rights. We recognize that the trial court found that the state violated two statutes in addition to Article I, section 42(1)(a) of the Oregon Constitution -- ORS 137.013 and ORS 147.510 -- and, ordinarily, this court's salutary sense of judicial restraint would lead us to avoid reaching constitutional questions in advance of the necessity of deciding them. As this court has observed: "The need to face a constitutional issue arises, if at all, only after the court determines what ordinary laws authorize, require or forbid. " Burt v. Blumenauer, 299 Or 55, 70, 699 P2d 168 (1985) (citation omitted). Applying the logic of that proposition, this court has stated that, "if statutory sources of law provide a complete answer to the legal question that a case presents, we ordinarily decide the case on that basis, rather than turning to constitutional provisions." Rico-Villalobos v. Guisto, 339 Or 197, 205, 118 P3d 246 (2005). This court follows that decisional principle even if the parties attempt to force the court to decide a constitutional question by confining their arguments to matters of constitutional law, rather than addressing arguably dispositive aspects of subconstitutional law. "This court decides cases on subconstitutional grounds when it can, even if the parties present only constitutional arguments for the court's consideration. See, e.g., State v. Conger, 319 Or 484, 490, 878 P2d 1089 (1994); Zockert v. Fanning, 310 Or 514, 520, 800 P2d 773 (1990) (so stating)." Li v. State of Oregon, 338 Or 376, 391, 110 P3d 91 (2005). See also State v. Cox, 336 Or 284, 294, 82 P3d 619 (2003) ("Even when the parties frame their arguments only in constitutional terms below, however, we may consider an adequate subconstitutional basis for our decision."). In this case, however, in addition to the parties' failure to address the potential applicability of either statute to the victim's claims and requested remedy, we note that the legislature has, as we have described, created a clear and expedited procedural path for a victim to assert claims for the violation of her constitutional rights, both at trial and on appeal. See, e.g., ORS 147.517 (describing order to show cause procedure); ORS 147.530(5) (obliging court to issue remedial order on victim's successful constitutional claim within seven days of date of show cause order); ORS 147.535(2) (appellate jurisdiction "vested originally and exclusively in the Supreme Court"); ORS 147.537(16) (requiring expedited decision by the Oregon Supreme Court). The procedural path to a statutory remedy is less clear, however, and we conclude that this is an appropriate occasion in which to address the victim's constitutional claims without also addressing or resolving whether the victim would be entitled to the remedy she seeks as a result of the violation of her statutory rights. Defendant's argument that the victim did not prove a violation of Article I, section 42(1)(a), of the Oregon Constitution proceeds as follows. First, Article I, section 42(1)(a) grants the right to be present at and, "upon specific request," to be notified in advance of critical stages in the criminal proceedings. (Emphasis added.) Defendant contends that the constitutional right to advance notice of a plea or sentencing hearing is not triggered until and unless the crime victim's specific request for advance notice is received by the prosecutor. Second, in this case, the form that the victim completed was not received by the district attorney's office until after the February 28 plea and sentencing hearing. Thus, according to defendant, the victim did not make a timely request for advance notice of that hearing and her constitutional rights were not violated. The victim responds to defendant's first point by arguing that a victim's right to advance notice of plea and sentencing hearings is triggered when the victim makes a request for such notice, not when such notice is received. We need not decide that interpretive question, however, because the victim's response to defendant's second point -- that her specific request was received before the plea and sentencing hearing -- is persuasive. The trial court's order includes a specific finding that "[p]rior to Feb. 28, 2011, [the victim] specifically had requested to be informed in advance of, and to be present at, any critical stage of the proceedings and to be heard at sentencing." As noted, on appeal this court "may not substitute its judgment for that of the trial court as to any issue of fact and shall review challenges to a factual finding for evidence in the record to support the finding." ORS 147.537(17). From an affidavit submitted by the victim, the trial court could reasonably have inferred that, before February 28, the victim had a conversation with a victim advocate in the district attorney's office, invoked her right to be notified in advance of sentencing and other critical stage hearings, and completed a form memorializing those requests. Neither the prosecutor nor defendant contest the victim's assertions, and the state does not claim that the prosecutor's office was unaware, on February 28, that the victim had requested to be present at defendant's sentencing and other critical stage proceedings. We therefore conclude that the victim established a violation of her constitutional right to advance notice of the plea and sentencing hearing.(5) We turn, then, to the question of remedy. As noted, the victim seeks to have defendant's sentence vacated and defendant resentenced at a proceeding at which she can appear and be heard. Article I, section 42(3)(a), provides that "[e]very victim * * * shall have remedy by due course of law for violation of a right established in this section." That right to a remedy is not unlimited, however. Although a remedy may include invalidating "a ruling of a court," it does not include invalidating a "conviction or adjudication."(6) Accordingly, we first must consider whether the relief requested by the victim would require invalidating either a "conviction" or an "adjudication." We conclude that resentencing (at least in this case) would not require invalidating a "conviction." This court has explained that the term "conviction" can carry two different meanings: "The first refers to a finding of guilt by a plea or verdict. The second, more technical, meaning refers to the final judgment entered on a plea or verdict of guilt. In the latter case conviction has not been accomplished until the judgment is made by the court." Vasquez v. Courtney, 272 Or 477, 479-80, 537 P2d 536 (1975) (citations omitted). That ambiguity does not exist in Article I, section 42, because the text of that section distinguishes the word "conviction" from the term "sentence." Or Const, Art I, § 42(1)(b) (granting victims "[t]he right * * * to obtain information about the conviction, sentence, imprisonment, criminal history and future release from physical custody of the criminal defendant" (emphasis added)). In Article I, section 42(2), then, "conviction" refers only to the finding of guilt. On the facts of this case, resentencing defendant would not require invalidating his "conviction" by guilty plea. See ORS 135.432(4) (trial court is not bound by sentencing recommendations made pursuant to plea negotiations). We next consider the meaning of the term "adjudication." On its face, that term would appear to refer to the final judgment in any case, civil or criminal. See State v. Hoffman, 236 Or 98, 103, 385 P2d 741 (1963) ("The word 'adjudication' in its strict judicial sense is generally held to imply a final judgment of the court, that is, it involves an exercise of the judicial power in hearing and determining the issues and rendering a judgment thereon."). In this case, however, we conclude that the constitutional text indicates that the voters intended a more technical meaning -- one drawn from juvenile delinquency matters. Juvenile delinquency proceedings have two stages that are roughly comparable to conviction and sentencing in adult criminal cases. The first is the juvenile court's determination that the youth committed an act that would be a crime if committed by an adult. That determination is termed an "adjudication," and it is analogous to an adult conviction. See ORS 419C.005(1) (jurisdiction of juvenile court extends to cases involving any juvenile who "has committed an act that is a violation, or that if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city"); ORS 419C.400(5) ("An adjudication by a juvenile court that a youth is within its jurisdiction is not a conviction of a crime or offense."). The second is the juvenile court's determination of the proper consequences that should follow from the adjudication. That determination is called the "disposition," and it is analogous to an adult sentencing. See ORS 419C.411 (setting out contents of disposition order); ORS 419C.501 (permissible durations for various types of dispositions).(7) Article I, section 42, specifically grants rights to crime victims both in adult criminal matters and in juvenile delinquency proceedings. The first provision of Article I, section 42, repeatedly pairs criminal cases with juvenile delinquency proceedings: "To preserve and protect the right of crime victims to justice, to ensure crime victims a meaningful role in the criminal and juvenile justice systems, to accord crime victims due dignity and respect and to ensure that criminal and juvenile court delinquency proceedings are conducted to seek the truth as to the defendant's innocence or guilt, and also to ensure that a fair balance is struck between the rights of crime victims and the rights of criminal defendants in the course and conduct of criminal and juvenile court delinquency proceedings, the following rights are hereby granted to victims in all prosecutions for crimes and in juvenile court delinquency proceedings[.]" Or Const, Art I, § 42(1) (emphases added). Furthermore, pertinent portions of the text indicate the intent to grant the same rights to victims, both in adult criminal proceedings and in juvenile delinquency proceedings. E.g., Or Const, Art I, § 42(1)(b) (granting crime victims the right "to obtain information about the conviction, sentence, imprisonment, criminal history and future release from physical custody of the criminal defendant or convicted criminal and equivalent information regarding the alleged youth offender or youth offender" (emphasis added)). Given that context, we conclude that "adjudication" in Article I, section 42, refers specifically to juvenile court delinquency adjudications. That understanding makes the prohibition of subsection (2) parallel: the violation of a crime victim's rights may not be used to invalidate a "conviction" -- the determination of guilt in an adult criminal case -- nor an "adjudication" -- the comparable determination in a juvenile delinquency case. Because defendant's sentencing was neither a "conviction" nor an "adjudication," it is a "ruling of a court." Article I, section 42(2), provides that "a ruling of a court" may not be invalidated "except as otherwise provided in subsections (3) and (4)." Subsection (3)(a) provides that every described crime victim "shall have a remedy by due course of law for violation of a right established in this section." If vacating defendant's sentence and ordering a resentencing hearing is a legally permissible remedy, it is a "remedy by due course of law" and may invalidate the trial court's ruling and defendant's sentence. Defendant contends that resentencing is not available as a remedy for two reasons. First, defendant asserts that the victim waived her rights under ORS 147.533. Second, defendant contends that resentencing him would violate his rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. See, e.g., Or Const, Art I, § 42(2) ("Nothing in this section reduces a criminal defendant's rights under the Constitution of the United States."). We begin with the statutory waiver argument. ORS 147.533 provides, in part: "(1) A remedy under ORS 147.500 to 147.550 is waived if the remedy is requested: "* * * * * "(b) By any person after: "* * * * * "(C) Former jeopardy attaches, unless a motion for new trial or a motion in arrest of judgment is granted. "(2) Subsection (1) of this section does not apply to: "(a) Remedies that may be effectuated after the disposition of a criminal proceeding[.]" Defendant asserts that former jeopardy attached on February 28, when defendant entered his plea and was sentenced, so that the victim -- who did not seek a remedy until after that date -- is barred from obtaining any remedy under ORS 147.533(1)(b)(C). That waiver rule, however, does not apply to "[r]emedies that may be effectuated after the disposition of a criminal proceeding." ORS 147.533(2)(a).(8) The waiver issue thus turns on whether some substantive law makes resentencing a remedy that "may [not] be effectuated after the disposition of a criminal proceeding." The substantive law that defendant claims would prohibit resentencing is the federal Double Jeopardy Clause.(9) In other words, whether the victim has waived her right to require defendant's resentencing depends on the merits of defendant's double jeopardy argument. We turn to that question. The Fifth Amendment to the United States Constitution provides, in part: "No person shall * * * be subject for the same offense to be twice put in jeopardy of life or limb[.]" To determine whether the remedy of resentencing here might violate double jeopardy principles, we look to the decision of the United States Supreme Court in United States v. DiFrancesco, 449 US 117, 101 S Ct 426, 66 L Ed 2d 328 (1980). One eminent treatise describes DiFrancesco as having "[o]ne of the most complete discussions by the Supreme Court of the policies underlying the double jeopardy clause." Wayne R. LaFave et al., 6 Criminal Procedure § 25.1(b), at 574 (3d ed 2007). More importantly, DiFrancesco is directly concerned with whether double jeopardy permits a defendant to be resentenced to a longer term -- in that case, after an appeal by the prosecution. In DiFrancesco, the trial court had concluded that the defendant was a "dangerous special offender," but largely declined to enhance the defendant's sentence on that ground. 449 US at 122-23. The government appealed the sentence as it was permitted to do by statute; the appellate court, however, concluded that the appeal was barred by double jeopardy. Id. at 123. On certiorari, the United States Supreme Court concluded that double jeopardy did not bar either the appeal or, if the appeal were successful, the imposition of a higher penalty on resentencing. Id. at 137-39. The Court began by discussing certain "general principles" that it identified from its prior decisions. Id. at 127. Among other things, the Court observed: "'That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'" Id. at 129 (alteration in original; quoting North Carolina v. Pearce, 395 US 711, 717, 89 S Ct 2072, 23 L Ed 2d 656 (1969) (footnotes omitted)). Furthermore, the Court noted that acquittals are entitled to "special weight" in double jeopardy jurisprudence; an acquittal for any reason will bar subsequent reprosecution, while second prosecutions are sometimes permitted in other circumstances. DiFrancesco, 449 US at 129-31. Turning to the merits, the Court concluded that double jeopardy does not completely bar appeals by the government. Id. at 132. The question, then, was "whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury's verdict of acquittal." Id. The Court concluded that sentences were not comparable to acquittals for double jeopardy purposes. Historically, the common law allowed a trial court to increase the length of the sentence, as long as it did so during the same term of court, and the Double Jeopardy Clause was based on common-law restrictions. Id. at 133-34. Furthermore, prior decisions of the Court had allowed greater punishments to be imposed on resentencing. Id. at 134-36. Finally, the Court explained that the policies underlying double jeopardy are not undercut by a resentencing after appellate review. The harms intended to be prevented by the Double Jeopardy Clause -- "repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent" -- "have no significant application to the prosecution's statutorily granted right to review a sentence." Id. at 135-36. In resentencing, the defendant faces neither anxiety over the determination of guilt nor the risk of a wrongful conviction. Id. Furthermore, the defendant "is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired." Id. A defendant has no more right to expect that his sentence will remain unchanged on appeal than he does to expect that his parole or probation will never be revoked. Id. at 137. The principles outlined in DiFrancesco resolve this case. The victim sought the remedy of resentencing, so the issue is whether double jeopardy barred the trial court from granting that remedy. The only double jeopardy protection possibly implicated by requiring that defendant be resentenced is the protection "against multiple punishments for the same offense." Id. at 129 (internal quotation marks and citation omitted). However, the reasoning of DiFrancesco demonstrates that the prohibition against multiple punishments would not be violated by resentencing in this case. The imposition of the original sentence is not comparable to an acquittal for double jeopardy purposes, and resentencing defendant with the possibility that his sentence may be increased is not inconsistent with either the history or the policies of the Double Jeopardy Clause. "The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id .at 137. The victim was entitled to a remedy by due course of law under Article I, section 42(3)(a). Her proposed remedy -- vacating defendant's sentence and conducting a resentencing hearing -- was permissible, in that it was not barred by the Double Jeopardy Clause.(10) Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533. The trial court erred in not granting the victim the relief that she sought. In so holding, we do not suggest that the trial court must impose any different sentence than it did previously. That is a matter for the trial court to determine after an appropriate hearing. The order of the circuit court is reversed, defendant's sentence is vacated, and the case is remanded to the circuit court for resentencing. 1. ORS 147.510 provides, in part: "(2) At the beginning of each critical stage of the proceeding: "(a) The prosecuting attorney shall inform the court whether the victim is present. "(b) If the victim is not present, the prosecuting attorney shall inform the court, based on the prosecuting attorney's knowledge, whether the victim requested advance notice of any critical stage of the proceeding and, if so, whether the victim: "(A) Was notified of the date, time and place of the proceeding; "(B) Was informed of the victim's rights implicated in the proceeding; and "(C) Indicated an intention to attend the proceeding or requested that the prosecuting attorney assert a particular right associated with the proceeding and, if the victim made such a request, whether the prosecuting attorney agreed to do so." 2. Although the victim in this case complied with her obligations under the statute, the trial court (insofar as the record indicates) did not follow the correct statutory procedure. While the victim's claim was facially valid (as the trial court itself later concluded), the court did not issue an order to show cause under ORS 147.517. See ORS 147.515(3) (requiring court to issue order to show cause under those circumstances). Because there was no order to show cause, defendant was not required to file any written response to the claim. See ORS 147.517(2)(a) (order to show cause must include date for responses); ORS 147.517(4)(a) (authorizing "the defendant," among others, to "contest the claim by filing a response" before the specified date). In the absence of a timely response, it appears the matter should proceed to disposition without a hearing. See ORS 147.517(2)(b) (order to show cause must give date "[o]n which the court will conduct a hearing on timely responses to the claim" (emphasis added)); ORS 147.520 (directing court to resolve claim when no response was timely filed); but see ORS 147.530(1) (statute authorizing hearing uses disjunctive "or" in providing for hearings on "a claim" or "a response"). Here, none of those defects is attributable to the victim, and nothing suggests that those defects violated any party's right to notice and an opportunity to be heard. Accordingly, we find that the apparent failure to follow the prescribed legal procedures have no legal significance to the outcome of this case. 3. The text of ORS 147.510 is set out above. ___ Or at ___ (slip op at 2 n 1). 4. An order resolving a claim that the state has violated a crime victim's rights may be appealed to this court as a matter of right if (1) the criminal proceeding charged defendant with either a felony or a "person Class A misdemeanor," and (2) the alleged victim's rights violation occurred before the trial court pronounced its sentence or disposition in open court. ORS 147.535(4)(a); ORS 147.537(1). In this case, defendant was charged with misdemeanor stalking under ORS 163.732, which is classified as a "person Class A misdemeanor." OAR 213-003-001(15). As described, the violation of victim's rights occurred before the trial court sentenced defendant. 5. We think it important to note, for the benefit of the bench and bar, that had the prosecutor and the trial court engaged in the colloquy required by ORS 147.510, this constitutional violation likely would have been avoided. 6. Subsection (2) of Article I, section 42, indicates that the right to a remedy provided by subsection (3) applies to some types of relief and not others: "Nothing in this section * * * may * * * be used to invalidate an accusatory instrument, conviction or adjudication or otherwise terminate any criminal or juvenile delinquency proceedings at any point after the case is commenced or on appeal. Except as otherwise provided in subsections (3) and (4) of this section, nothing in this section may be used to invalidate a ruling of a court or to suspend any criminal or juvenile delinquency proceedings at any point after the case is commenced." Or Const, Art I, § 42(2) (emphases added). 7. In fact, Article I, section 42, itself recognizes the parallel between adult criminal sentencing and the juvenile delinquency disposition. See Or Const, Art I, § 42(1)(a) (granting crime victims the right to be heard at "the sentencing or juvenile court delinquency disposition"). 8. That exception appears to be broad enough to include modifying the terms of a criminal judgment, including a sentence. For example, the statute creates a specific exception to the waiver rule for the right to obtain prompt restitution. ORS 147.533(2)(c) (waiver does not apply to "[t]he right to receive prompt restitution described in section 42(1)(d), Article I of the Oregon Constitution"). Any remedy that changed the amount of the restitution would require the court to modify the terms of the judgment. See ORS 137.071(2)(g) (if defendant is convicted, "the judgment document must include any * * * restitution"). 9. In this case, we need not consider any issue of former jeopardy under Article I, section 12, of the Oregon Constitution ("No person shall be put in jeopardy twice for the same offence * * *."). Article I, section 42, makes it clear that only federal constitutional rights are preserved inviolate; contrary state constitutional rights are superseded (unless expressly exempted). See Or Const, Art I, § 42(2) ("Nothing in this section reduces a criminal defendant's rights under the Constitution of the United States. Except as otherwise specifically provided, this section supersedes any conflicting section of this Constitution."). Accordingly, the only relevant question is whether the remedy sought by victim would violate the federal Double Jeopardy Clause. 10. We note that our conclusion accords with that of one eminent treatise. In discussing the double jeopardy implications of resentencing, LaFave concludes that a victim's statutory remedy in federal cases to have a sentence reopened if the victim was denied the right to be heard at sentencing does not violate double jeopardy. 6 Criminal Procedure § 26.7(b), at 840-41.

737014753c640915714813a07a6b05a5564f44e7f93d01029cde0f9e32cb55a4

2011-05-27T00:00:00Z

a177c7c7-ef87-4865-b8d0-8df59753b3bb

Force v. Dept. of Rev.

S058252

oregon

Oregon Supreme Court

Filed: April 7, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON REBECCA GWEN FORCE, Personal Representative of the Estate of William R. Pierson, Deceased, Plaintiff-Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Defendant-Respondent. (TC 4886; SC S058252) En Banc On appeal from the Oregon Tax Court. Henry C. Breithaupt, Judge. Argued and submitted March 7, 2011. David C. Force, argued the cause and submitted the briefs for appellant. Douglas Adair, Senior Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief was John R. Kroger, Attorney General. LANDAU, J. The judgment of the Tax Court is affirmed. LANDAU, J. At issue in this case is the inheritance tax liability of the estate of decedent, based on the value of a farm that he owned at the time of his death. Plaintiff, the personal representative of the estate, concluded that the estate owes no state inheritance tax. The Department of Revenue (department) disagreed, concluding that the estate owes $26,767, plus penalties and interest, and issued a notice of deficiency in that amount. Plaintiff then initiated this action in the Oregon Tax Court challenging the deficiency notice. The parties filed cross-motions for summary judgment based on the undisputed facts. The Tax Court granted the department's motion, denied plaintiff's, and entered judgment in favor of the department. Plaintiff appeals, seeking reversal of the judgment and a determination that the estate owes no Oregon inheritance tax. We affirm the decision of the Tax Court. BACKGROUND A. The Regulatory Context To provide context for the parties' dispute, we begin with a brief summary of the applicable federal and state tax laws, before turning to the facts of this case and the Tax Court's decision. For many years, the amount of Oregon inheritance tax that an estate was obligated to pay was determined by reference to federal estate tax law, as provided in the Internal Revenue Code (IRC) and its implementing regulations. In brief, the federal estate tax was determined by a three-step process. First, the value of a taxable estate had to be established. IRC § 2051 (2000). Depending on the nature of the property, some portion of its value could be exempt. For example, under IRC § 2032A (2000), a large portion of the value of family farms was exempt from estate taxation, provided that the land continued to be operated as a farm for at least ten years; if the farm was later sold or was put to something other than a qualified use before the end of the ten-year period, an additional tax accounting for the amount that was exempted was imposed, IRS § 2032A(c)(1) (2000), which was due six months after the date the property was sold or put to a nonqualified use, IRC § 2032(c)(4) (2000). Second, an estate tax had to be determined. IRC § 2001 (2000). The amount of the tax was determined by reference to a tax table keyed to various ranges in value of the taxable estate. Third, the resulting tax could be reduced by applicable tax credits, two of which are relevant to this case. One, known as the "unified credit," applied under IRC § 2010 (2000) to the estate of any decedent. The other, known as the "state death tax credit," applied under IRC § 2011 (2000) if the estate was subject to any state death tax (not all states impose death taxes). The state death tax credit was determined by reference to a maximum amount allowable -- a percentage of the value of the taxable estate -- subject to reduction depending on the size of the unified credit in relation to the estate's tax liability; the actual amount of a state death tax credit could be smaller than the maximum allowable, for example, to avoid creating entitlement to a refund. IRC § 2011(f) (2000). The net tax was then due and payable nine months from the date of the decedent's death. IRC § 6075(a) (2000); Treas Reg § 20.6075-1 (2000); Treas Reg § 20.6151-1 (2000). Under Oregon law, the state inheritance tax liability was then directly tied to the federal estate tax liability, both as to amount and as to the date on which any state inheritance tax was to be paid. Concerning the amount, ORS 118.010(2) provided that the state inheritance tax "shall equal the maximum of the state death tax credit allowable against the federal estate tax under section 2011 of the Internal Revenue Code." Concerning the timing of payment, ORS 118.100(1) provided that state inheritance tax "shall be paid to the Department of Revenue on the date that the federal estate tax is payable," which, under the law at the time, was generally nine months after the date of death. See OAR 150-118.100(1) (2000) (referring to federal regulations concerning timing of payment). Both of those provisions were enacted in 1997 and remain in their original form to date. Or Laws 1997, ch 99, §§ 7-8. In 2001, Congress significantly amended the federal estate tax statutes. In the Economic Growth and Tax Relief Reconciliation Act of 2001, Pub L No 107-16, 115 Stat 38 (codified as amended in scattered sections of 26 USC), it provided for the progressive phase-out of the federal estate tax, resulting in no state death tax credit by 2005 and no federal estate tax due by 2010. The amendments to the federal estate tax statutes -- in particular, the eventual phase-out of the state death tax credit entirely by 2005 -- created potential problems for Oregon's inheritance tax scheme, given that the state law was explicitly tied to the federal law. Left unchanged, the Oregon inheritance tax would have phased out with its federal counterpart. (In 2010, Congress again amended the federal estate tax statutes resulting in the reinstatement of the federal estate tax, but that change does not affect the disposition of this case. See Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, Pub L No 111-312, § 301, 124 Stat 3296, 3300 (codified as amended in scattered provisions of 26 USC)). In 2003, the Oregon legislature addressed the matter by amending the state inheritance tax statutes. The legislature found that the 2001 amendments to the federal estate tax laws produced an "unintended consequence" that created "difficulties in the administration and enforcement of the Oregon inheritance tax." ORS 118.009. To avoid the de facto phase-out of the Oregon inheritance tax and to "ensure that the level of tax compliance with the Oregon inheritance tax" is maintained, ORS 118.009, the legislature, in effect, de-coupled the state inheritance tax law from current federal estate tax law and instead permanently linked it with the federal estate tax law as it existed before the 2001 amendments. Under the terms of the new Oregon statute, any references in the Oregon inheritance tax law to the federal estate tax statute mean "the federal Internal Revenue Code as amended and in effect on December 31, 2000, except where the Legislative Assembly has specifically provided otherwise." ORS 118.007. The 2003 amendments apply to all instances in which the decedent dies on or after January 1, 1998. Or Laws 2003, ch 806, § 3(1), compiled as a note after ORS 118.007 (2003). The 2003 amendments left unchanged a number of existing provisions in the state inheritance tax statute that referred to federal tax law. Among them are ORS 118.010(2), which continues to provide that the state inheritance tax "shall equal the maximum amount of the state death tax credit allowable against the federal estate tax under section 2011 of the Internal Revenue Code," as well as ORS 118.100(1), which still provides that any state inheritance tax "shall be paid to the Department of Revenue on the date the federal estate tax is payable." The proper interpretation of those two provisions is the principal focus of the parties' arguments in this case. B. Facts The relevant facts are not in dispute. Decedent, William R. Pierson, died on January 1, 2003. The primary asset of his estate is the Pierson family farm, comprising over 237 acres of land just outside of Ashland, Oregon. Plaintiff, as we have noted, is the personal representative of his estate. In 2004, plaintiff filed a federal estate tax return. In that return, she reported the fair market value of the farm as $1,694,100. She then requested an exemption from that value of approximately $1,480,000 under the provision of the Internal Revenue Code that we have described pertaining to the valuation of family farms, IRC § 2032A. That left a net taxable estate (after various other adjustments) of approximately $242,000. Under the version of the federal estate tax law in effect at the time -- which, as we have described, eventually phased out the tax entirely -- the first $1 million of a net taxable estate was exempt from federal estate taxation. IRC § 2010(c) (2006). Accordingly, plaintiff reported in the return a federal estate tax of zero. Because she reported no federal estate tax liability, she also reported a state death tax credit of zero. The Internal Revenue Service (IRS) audited the estate's return. The IRS determined that plaintiff had miscalculated the amount of the exemption available under IRC § 2032A and that the correct amount of the exemption was $840,000 (that amount is the same under both the pre-2001 code and the version of the code that the IRS applied). That left a net taxable estate of approximately $854,100. But, because the applicable federal estate tax law in effect at that time exempted the first $1 million in estate value from taxation, IRC § 2010(c) (2006), the net result was as plaintiff reported, namely, zero federal estate tax and zero state death tax credit. Plaintiff filed a copy of her federal tax return with the department. The department determined that, based on the federal estate tax law as it existed on December 31, 2000, the estate would not have been subject to the phase-out contained in the current version of the federal estate tax law. Because of that, the department determined, the $854,100 in net taxable estate would have been subject to taxation under the federal tax law as of December 31, 2001, and would have resulted, after various adjustments, in a state death tax credit against that federal estate tax liability in the amount of $26,767. Accordingly, the department issued a notice of deficiency for $26,767, plus penalties and interest. C. The Tax Court Proceeding Plaintiff then initiated this action against the department contesting the assessment. Plaintiff moved for summary judgment, contending that, because the IRS had determined that the state death tax credit was zero, no state inheritance tax was due. Plaintiff argued that the IRS audit constituted a binding federal determination of the estate's federal tax liability, which the department lacks authority to alter. That is so, plaintiff asserted, because ORS 118.010(2) defines the amount of Oregon inheritance tax due as the "maximum amount of the state death tax credit allowable" under federal law, and, in this case, the IRS determined that the state death tax credit allowable under federal law was zero. It is also so, she argued, because ORS 118.100(1) provides that no state inheritance tax is due until a federal estate tax is "payable," and, in this case, the IRS determined that none is payable. In each case, plaintiff reasoned, the key determinant -- the amount of state death tax credit "allowable" and the date that any federal estate tax is "payable" -- are matters of federal law, which, under the Supremacy Clause of the federal constitution, already have been conclusively established by the IRS. In a cross-motion for summary judgment, the department responded that plaintiff's arguments were based on a false premise, namely, that the IRS determination of the estate's tax liability under the post-2001 federal tax law had any bearing on the estate's state inheritance tax liability, which, under ORS 118.007, is determined under pre-2001 federal estate tax law. The department argued that plaintiff's reliance on ORS 118.010(2) and ORS 118.100(1) in support of her argument to the contrary is misplaced. The department observed that the former statute merely provides that the amount of state inheritance tax liability is the amount of the state death tax credit "allowable" under federal law -- that is, the amount allowable under the pre-2001 federal tax law -- not the amount actually allowed under later versions of federal law. Similarly, the department argued that the latter statute merely provided that the state inheritance tax is due when a federal estate tax is "payable," that is, under the pre-2001 federal law. Any other reading of the statutes, the department argued, would directly conflict with the express provisions of ORS 118.007. The Tax Court agreed with the department and granted its motion for summary judgment. This direct appeal followed. ANALYSIS On appeal, plaintiff contends that the Tax Court erred in granting the department's motion for summary judgment. In support of that contention, plaintiff essentially reprises the arguments that she advanced to the Tax Court, viz., that, under both ORS 118.010(2) and ORS 118.100(1), the IRS audit that established a state death tax credit of zero and that no federal estate tax was due under current federal tax law is controlling. In response, the department likewise reprises the arguments that it offered in support of its summary judgment motion. Thus framed, the parties' contentions reduce to a question of the proper interpretation of state statutes, specifically, ORS 118.010(2) and 118.100(1). That is a question of law, governed by the principles set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). Our goal is to determine the intended meaning of those statutes by examining their text in context along with relevant legislative history and, if necessary, other aids to construction. Gaines, 346 Or at 171-73. In that regard -- and, contrary to plaintiff's contention in this case -- we note that our focus is on the meaning of those Oregon inheritance tax statutes, which presents a question of state, not federal, law. The two statutes may refer to taxes "allowable" or "payable" under the federal "Internal Revenue Code," but the question is what the Oregon legislature intended when it used those terms in the state inheritance tax statutes. See Morris v. Dept. of Rev., 320 Or 579, 584 n 5, 889 P2d 1294, cert den, 516 US 816 (1995) ("Federal tax law does not control the tax law of Oregon."). With the foregoing in mind, we turn to the wording of each of the relevant statutes. We begin with ORS 118.010(2), which provides that the state inheritance tax equals "the maximum amount of the state death tax credit allowable against the federal estate tax under section 2011 of the Internal Revenue Code." The key phrasing is the reference to the state death tax credit that is "allowable * * * under section 2011 of the Internal Revenue Code." That phrasing is significant in two respects. First, the statute is expressed in terms of the state death tax credit that is "allowable," not any credit that was actually allowed. In ordinary usage, the term "allowable" refers to something that is "PERMISSIBLE : not forbidden : not unlawful or improper." Webster's Third New Int'l Dictionary 58 (unabridged ed 1993). It connotes something that exists in the abstract or has yet to occur, as opposed to something that already has been allowed. As it turns out, that is consistent with the manner in which the federal estate tax law operates. As we have noted, under the law in effect on December 31, 2000, section 2011 of the Internal Revenue Code authorizes an estate to take a state death tax credit. The amount of that credit is expressed both in terms of a maximum allowable, based on the value of the taxable estate, and, where appropriate, in terms of a lesser amount actually allowed. Thus, for example, in cases in which the maximum state death tax credit allowable would result in a refund to the estate, the amount that is actually allowed to be taken is a lesser amount. IRC § 2011(f) (2000). In that context, the wording of ORS 118.010(2) becomes significant, because the statute refers to state inheritance tax liability in terms of "the maximum amount of the state death tax credit allowable," which under the federal tax law is different from the amount that is actually allowed. Thus, plaintiff's contention that the statutory reference to the state death tax credit "allowable" refers to what the estate was actually allowed fails to account for that distinction. Second, ORS 118.010(2) is phrased in terms of the state death tax credit that is allowable "under section 2011 of the Internal Revenue Code." Taken in isolation, it perhaps would be permissible -- as plaintiff contends in this case -- to read the phrase to refer to the currently applicable version of the federal law. But, in construing Oregon statutes, we do not read individual phrases in isolation; rather, we examine them in context. See, e.g., Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) ("[T]ext should not be read in isolation but must be considered in context."). That "context" includes, among other things, other parts of the statute at issue. Lane County v. LCDC, 325 Or 569, 578, 942 P2d 278 (1997) ("[W]e do not look at one subsection of a statute in a vacuum; rather, we construe each part together with the other parts in an attempt to produce a harmonious whole."). In this case, the context of ORS 118.010(2) speaks directly to the issue and is contrary to the interpretation that plaintiff advances. As we have noted, in response to the congressional phase-out of the federal estate tax, the Oregon legislature amended the state inheritance tax statutes so that, in all cases in which a decedent dies on or after January 1, 1998, any reference to the federal tax law "means the federal Internal Revenue Code as amended and in effect on December 31, 2000." ORS 118.007. The state death tax credit that the IRS calculated in this case was based on the then-current version of the Internal Revenue Code, not the version of the federal law in effect on December 31, 2000. The IRS determination of the state death tax credit is, therefore, irrelevant to the calculation of the estate's state inheritance tax liability under ORS 118.010(2). We turn to ORS 118.100(1), on which plaintiff also relies. The statute provides that "[t]he tax provided for in ORS 118.010 shall be paid to the Department of Revenue on the date the federal estate tax is payable." ORS 118.100(1). Plaintiff contends that, even if the estate is obligated to pay state inheritance tax under ORS 118.010(2), under ORS 118.100(1), that tax is not due until any federal estate tax is payable. In this case, plaintiff contends, no federal estate tax is yet payable, as confirmed by the IRS audit. Plaintiff is correct that, under ORS 118.100(1), any state inheritance tax must be paid when a federal estate tax is "payable." But the federal estate tax becomes "payable" only by reference to some version of the Internal Revenue Code. Her argument that no federal estate tax is payable in this case relies on the assumption that the relevant version of the Internal Revenue Code is the then-current version that the IRS applied in its audit. Under ORS 118.007, however, whenever the state inheritance tax statutes refer to the Internal Revenue Code, the reference is to the version of the code in effect on December 31, 2000. The IRS audit, based on a later version of the Internal Revenue Code, is irrelevant. That reading of ORS 118.100(1) is confirmed by a closer examination of the phrasing of the statute. That phrasing makes clear that what must be paid is "the tax provided for in ORS 118.010," which, as we have just noted, is the tax that is "equal [to] the maximum amount of the state death tax credit" as determined by reference to federal estate tax law in effect on December 31, 2000. That state inheritance tax, in turn, must be paid when "the federal estate tax is payable." By the use of the definite article, the statute suggests that "the federal estate tax" that is payable is the one that was the basis for the determination of the state death tax credit that has just been mentioned, that is, the federal tax law in effect on December 31, 2000. That understanding is consistent with the legislature's use of the phrase "the federal estate tax" in both ORS 118.100(1) and ORS 118.010(2). Tharp v. PSRB, 338 Or 413, 422, 110 P3d 103 (2005) ("When the legislature uses the identical phrase in related statutory provisions that were enacted as the part of the same law, we interpret the phrase to have the same meaning in both sections."). Plaintiff's contrary reading of ORS 118.100(1) would create the anomaly that an estate could incur a state inheritance tax obligation under ORS 118.010(2), but the department could not require plaintiff to pay it. Plaintiff concedes that her construction of ORS 118.100(1) "may deprive the State of some inheritance tax revenue which the legislature hoped to capture by statutory amendments" in 2003. Statutory provisions, however, must be construed, if possible, in a manner that "will give effect to all" of them. Powers v. Quigley, 345 Or 432, 438, 198 P3d 919 (2008) (quoting ORS 174.010). By interpreting the phrase "the federal estate tax" in ORS 118.100(1) consistently with that same phrase in ORS 118.010(2), we avoid that anomaly and allow for the enforcement of an estate's inheritance tax obligation as the legislature intended. At oral argument, plaintiff insisted that, even under the version of the federal estate tax law that existed on December 31, 2000, no federal estate tax is due. According to plaintiff, that is because of a "mandatory extension of its due date" under IRC § 2032A(c)(4), pertaining to the family farm exemption from federal estate taxation. To begin with, that argument is contrary to the position plaintiff took in the Tax Court, where she expressly conceded, for the purposes of the pending summary judgment motions, the correctness of department's assessment of the estate's tax liability under pre-2001 federal law, including section 2032A. Moreover, plaintiff is mistaken as to the effect of the exemption. As we have explained, under section 2032A, the taxable value of an estate may be reduced by the farm exemption. But any remaining value remains subject to federal estate taxation. Thus in this case, as the department concluded, subtracting the section 2032A exemption from the fair market value of the farm left a net taxable estate in excess of $854,100. Under the version of the federal tax law in effect on December 31, 2000, the estate owed federal estate tax on that value. The only "mandatory extension" applied to taxation on the portion of the value of the property that was exempt under section 2032A. We therefore conclude that the Tax Court correctly determined that, under ORS 118.010(2) and ORS 118.100(1), the estate owed $26,767 in Oregon inheritance tax, plus penalties and interest, and that the department was entitled to summary judgment in its favor. The judgment of the Tax Court is affirmed.

163bbb0db71da4f8dca029dc32b8c964838a85c720252acfc85ccacb79e6616d

2011-04-07T00:00:00Z

8123e55c-4cbf-43d3-9284-b365e6b1d27b

Sizemore v. Kulongoski

322 Or. 229, 905 P.2d 1146

oregon

Oregon Supreme Court

905 P.2d 1146 (1995) 322 Or. 229 Bill SIZEMORE, Petitioner, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, Respondent, and Alice Dale and Robert Crumpton, Intervenors. SC S42548. Supreme Court of Oregon, In Banc. Argued and Submitted September 26, 1995. Decided November 24, 1995. *1147 Gregory W. Byrne, of Byrne & Barrow, Portland, argued the cause and filed the petition for petitioner. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. Lynn-Marie Crider, Salem, argued the cause and filed the memorandum for intervenor Alice Dale. Paul B. Gamson, of Smith, Gamson, Diamond & Olney, Portland, filed the memorandum for intervenor Robert Crumpton. VAN HOOMISSEN, Justice. This is an original proceeding in which petitioner seeks review of a ballot title *1148 certified by the Attorney General.[1] Petitioner is entitled to bring this proceeding because he is an elector who timely submitted written comments about the Attorney General's draft ballot title. We review the Attorney General's ballot title for substantial compliance with ORS 250.035. ORS 250.085(5); see, e.g., Hand v. Roberts, 309 Or. 430, 433, 788 P.2d 446 (1990) (explaining statutory standards for substantial compliance review). This is the first ballot title proceeding under the 1995 legislative amendments to ORS chapter 250 (initiative and referendum), which apply to initiative petitions filed on or after July 7, 1995. Or.Laws 1995, ch. 534.[2] For the reasons that follow, we modify the Attorney General's certified ballot title. The proposed initiative measure provides: "(4) No public employee or applicant for a public sector job shall be discriminated *1149 against in hiring or promotion due to affiliation or non-affiliation with a union. "(7) A public employee who joins a public employee union may (i) elect not to pay that portion of dues, fees, assessments, or similar payments, which would be used for political purposes, or (ii) specify the political party, candidate or committee to which the political portion of that employee's dues, fees, assessments or other moneys shall be made, which designation shall be binding upon the union, which immediately shall carry out such instruction(s), making the contribution(s) in the name of the employee. The Attorney General certified the following ballot title for the proposed initiative measure: Petitioner argues that the Attorney General's certified ballot title does not substantially comply with ORS 250.035, because the caption does not reasonably identify the subject matter of the measure and because the "yes" and "no" result statements are not simple and understandable. Petitioner does not challenge the Attorney General's summary. Petitioner argues that the words, "public employees need not pay," wrongly imply that the measure's focus is on what employees are permitted to do, when, in fact, its focus is on prohibiting certain conduct by unions. The Attorney General responds that, in a very similar measure and in virtually the same context, this court certified a caption using the phrase "need not." See Crumpton v. Kulongoski, 319 Or. 82, 87, 873 P.2d 314 (1994) ("public employees need not share union representation costs").[3] We note, however, that in Crumpton, the "need not" wording was not challenged. The proposed initiative measure provides in part that "No public employee * * * shall be required or coerced to join or otherwise be connected to, or contribute fair share, or pay dues, fees, assessments or other moneys to a public employee union for any reason." Those provisions focus on whether a public employee must pay money to a union in return for the union's representational efforts. The Attorney General's "need not" language summarizes those provisions accurately. Petitioner also argues that the wording "public employees need not pay union money for any reason" might mislead voters into believing that public employees who receive services through a union, such as training or health insurance, would not need to pay for them. The Attorney General responds that that wording tracks the initiative measure itself. We agree. We conclude that the Attorney General's caption reasonably identifies the subject matter of the proposed initiative measure and, therefore, that it substantially complies with ORS 250.035(2)(a). Petitioner argues that the Attorney General's "yes" result statement is not "simple and understandable," ORS 250.035(2)(b), because the wording, "forbids requiring public employees to pay union," fails to identify precisely what it is that a public employee is not required to pay. We reject that argument, because the summary indicates that the measure relates to payments of "representation costs." Given that context, we conclude that ORS 250.035(2)(b) does not require a reference to representation costs in the "yes" result statement. Petitioner also argues that the phrase, "forbids requiring," is confusing, but fails to explain why that is so. We decline to search for reasons on our own. But see Greene v. Kulongoski, 322 Or. 169, 177, 903 P.2d 366 (1995) (the risk of voter confusion by use of three negative terms requires modification of caption). We conclude that the Attorney General's "yes" result statement is a simple and understandable statement that describes the result if the proposed initiative measure is approved and, therefore, that it substantially complies with ORS 250.035(2)(b). Regarding the Attorney General's certified "no" result statement, the Attorney General concedes, and we agree, that it incorrectly suggests that present law requires non-member public employees to share union representation costs. Current Oregon law does not require public employees who are not members of a union to share costs for union representation. Rather, it permits "fair-share" agreements between public employers and public employee labor organizations that require such cost sharing.[4] A ballot title should not misstate existing *1151 law, even by implication. Dale v. Kulongoski, 321 Or. 108, 113, 894 P.2d 462 (1995). Because the certified "no" result statement is incorrect as written, it does not substantially comply with ORS 250.035(2)(c). In order to determine what wording should be used in this part of the ballot title, we must craft a simple and understandable statement that describes the result if the measure is rejected, ORS 250.035(2)(c), and, in addition, "to the extent practical, [make] the language of the two statements * * * parallel." ORS 250.035(3). We have concluded that the Attorney General's "yes" result statement substantially complies with ORS 250.035(2)(b). We therefore seek a "no" result statement that, "to the extent practical" is parallel to the approved "yes" result statement.[5] Accordingly, we modify the "no" result statement to read: We conclude that the wording is a simple and understandable statement that describes the result if the proposed initiative measure is rejected and, therefore, that it substantially complies with ORS 250.035(2)(c). Moreover, it satisfies the requirement of ORS 250.035(3) that, "to the extent practical, the language of the two statements is parallel." As noted, petitioner does not challenge the Attorney General's summary. We certify the following ballot title: Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(9). DURHAM, Justice, concurring. This is the first ballot title challenge decided under the 1995 amendment to ORS 250.035 and 250.085, which replaced the former "question" element of a ballot title with separate statements describing the results of "yes" and "no" votes on the measure. Or.Laws 1995, ch. 534, § 1. In Rooney v. Kulongoski (Elections Division # 13), 322 Or. 15, 25, 902 P.2d 1143 (1995), a majority of this court held that ORS 250.085 (1993), which required this court to review and, if necessary, modify ballot titles prepared by the Attorney General, did not offend the separation of powers principle described in Article III, section 1, of the Oregon Constitution. That section 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, *1152 shall exercise any of the functions of another, except as in this Constitution expressly provided." Justice Unis dissented in Rooney, concluding that drafting and certifying a ballot title for an initiative measure is not a judicial function and, for that reason, is not a duty that the legislature can impose on officers of the judicial branch of government. Rooney, 322 Or. at 55, 902 P.2d 1143 (Unis, J., dissenting). I joined Justice Unis' dissent. The 1995 amendment to ORS 250.085 contains the same flaw that Justice Unis identified in Rooney in his discussion of the former version of that statute. For at least two reasons, the rationale expressed in the majority opinion in Rooney is not a sufficient answer to the separation of powers problem that infects the 1995 amendment to ORS 250.085. First, Rooney's conclusion that, in drafting and certifying a new ballot title, the court is carrying out only "classic adjudicatory functions," 322 Or. at 29, 902 P.2d 1143, contradicts the court's premise for its discussion of the separation of powers issue, i.e., "that the preparation of a ballot title is a legislative function." Id. at 25, 902 P.2d 1143 (emphasis added). One may debate the Rooney court's suggestion that drafting a new ballot title for an initiative measure resembles the judicial function of granting a remedy in an adjudication. However, the reasoning process that produced the majority's conclusion, which those two quoted passages exemplify, simply fails to withstand analysis. Second, the Rooney majority concluded that ballot titles are helpful to the initiative process and, for that reason, the statutory requirement in ORS 250.085 that the court redraft and certify a new ballot title is valid "law not inconsistent" with Article IV, section 1(4)(b), of the Oregon Constitution, which provides: Rooney, 322 Or. at 25, 902 P.2d 1143. Unlike the Rooney majority, I am unwilling to read that section to authorize the legislature to adopt legislation compelling judicial officers to perform a non-judicial function in violation of Article III, section 1. Under that section, only by authority of an express provision of the constitution may a judicial officer perform a non-judicial function. The "law not inconsistent" clause of Article IV, section 1(4)(b) is not such an express provision. For the reasons expressed above and in Justice Unis' dissent in Rooney, I continue to believe that the current version of ORS 250.085 violates the separation of powers principle in Article III, section 1. However, the majority regards Rooney as controlling on that question. Until a majority of this court modifies its view or the legislature modifies the statutory scheme, a repetition of my dissenting opinion would serve no constructive purpose. Accordingly, I concur in the majority's result. UNIS, Justice, dissenting. I adhere to my view that, to the extent that ORS 250.085(5) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section 1, of the Oregon Constitution. Rooney v. Kulongoski (Elections Division # 13), 322 Or. 15, 55, 902 P.2d 1143 (1995) (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction. [1] ORS 250.085 provides in part: "(2) Any elector dissatisfied with a ballot title for an initiated or referred measure certified by the Attorney General and who timely submitted written comments on the draft ballot title may petition the Supreme Court seeking a different title. The petition shall state the reasons that the title filed with the Secretary of State does not substantially comply with the requirements of ORS 250.035[.] "* * * * * "(5) The court shall review the title for substantial compliance with ORS 250.035 * * *, and shall certify a title meeting this standard to the Secretary of State." [2] Oregon Laws 1995, chapter 534, section 1, amended ORS 250.035 to provide: "(2) The ballot title of any state measure to be initiated or referred shall consist of: "(a) A caption of not more than 10 words that reasonably identifies the subject matter of the state measure. The caption of an initiative or referendum amendment to the constitution shall begin with the phrase, `Amends Constitution,' which shall not be counted for purposes of the 10-word caption limit; "(b) A simple and understandable statement of not more than 15 words that describes the result if the state measure is approved. The statement required by this paragraph shall include either the phrase, `I vote' or `vote yes,' or a substantially similar phrase, which may be placed at any point within the statement; "(c) A simple and understandable statement of not more than 15 words that describes the result if the state measure is rejected. The statement required by this paragraph shall include either the phrase, `I vote,' or `vote no,' or a substantially similar phrase, which may be placed at any point within the statement; and "(d) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect. "(3) The statements required by subsection (2)(b) and (c) of this section shall be written so that, to the extent practical, the language of the two statements is parallel. "(4) The statement required by subsection (2)(b) of this section shall be written so that an affirmative response to the statement corresponds to an affirmative vote on the state measure. "(5) The statement required by subsection (2)(c) of this section shall be written so that an affirmative response to the statement corresponds to a negative vote on the state measure. "(6) To avoid confusion, a ballot title shall not resemble any title previously filed for a measure to be submitted at that election." [3] Crumpton v. Kulongoski was decided under an earlier version of the law, ORS 250.035(1)(a) (1993), that provided that a ballot title should contain a "caption of not more than 10 words which reasonably identifies the subject of the measure." Although the legislature amended the statute to provide that the words "Amends Constitution" do not count toward the 10-word limit, the statute creates no other substantive difference regarding the caption. [4] ORS 243.650(10) provides in part: "`Fair-share agreement' means an agreement between the public employer and the recognized or certified bargaining representative of public employees whereby employees who are not members of the employee organization are required to make an in-lieu-of-dues payment to an employee organization except as provided in ORS 243.666." A union that exclusively represents public employees must represent all public employees, including non-union members, fairly. Elvin v. OPEU, 313 Or. 165, 167, 832 P.2d 36 (1992). [5] We do not suggest that the foregoing methodology is the only permissible one. For example, in an appropriate case, it would be equally permissible to recast the "yes" statement, even when that statement is in substantial compliance (when viewed in isolation), in order to further parallelism. The statutory goal is two statements that substantially comply with the standards of ORS 250.035(2)(b) and (c) and, to the extent practical, parallel each other in form. Any methodology that achieves the statutory goal is acceptable.

dc68f50ac8b548547c553c7dd9ffb07452a291d69e0cdb0ebe1c65832ce05923

1995-11-24T00:00:00Z

97dcf337-922e-4b47-97b7-44fd92e11149

In re Richardson

S059049

oregon

Oregon Supreme Court

Filed: April 21, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In re Complaint as to the Conduct of RANDY R. RICHARDSON, Accused. (OSB No. 07154; SC S059049) En Banc On review from a decision of a trial panel of the Disciplinary Board. Submitted on the record March 9, 2011. No appearance for the Oregon State Bar. No appearance contra. PER CURIAM The accused is disbarred, effective 60 days from the date of this decision. PER CURIAM In this lawyer disciplinary proceeding, the Oregon State Bar charged Randy R. Richardson (the accused) with six violations of the Oregon Rules of Professional Conduct (RPC), arising out of his representation of Margaret Patton and her nephew, Eric Penn, for his role in assisting Penn to obtain real property from Patton by means of fraud and deception. The Bar alleged violations of RPC 1.1 (failure to provide competent representation); RPC 1.2(c) (prohibiting assisting client in engaging in illegal conduct); RPC 1.7(a)(1) (prohibiting representation of parties directly adverse to one another); RPC 1.7(a)(2) (prohibiting representation of parties with conflicting interests); RPC 8.4(a)(3) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation); and RPC 8.4(a)(2) (prohibiting criminal conduct). Following a hearing, the trial panel found, by clear and convincing evidence, that the accused violated those rules and determined that the appropriate sanction was disbarment. The accused timely requested review by this court, but failed to file an opening brief, as required by ORAP 11.25(2)(a) and Bar Rule of Procedure 10.5(c). In response, the Bar submitted a letter under ORAP 11.25(3)(b) requesting that the matter be submitted on the record without briefing or oral argument. See In re Hartfield, 349 Or 108, 112, 239 P3d 992 (2010) (when accused fails to file briefs, "ORAP 11.25(3) entitles the Bar * * * to elect to submit a letter requesting submission of the case to the court without briefing or oral argument"). As we noted in Hartfield, although our review of disciplinary matters is de novo under ORS 9.536(2), in the absence of briefing or argument challenging the order on review, we are free to circumscribe the extent of our review. 349 Or at 110-11. Thus, when review has been granted, but neither party files a brief, "we ordinarily will affirm the order of the trial panel inasmuch as no party has raised an argument challenging the trial panel order." In re Oh, 350 Or 204, 207, ___ P3d ___ (2011). In this case, although the accused sought review of the trial panel's order, he did not submit a brief challenging any aspect of that order. Consistently with Hartfield and Oh, we conclude that the trial panel's order should be affirmed. The accused is disbarred, effective 60 days from the date of this decision.

a64093bb7b1ef62fed08dac46db121e5f725482ad43fbaa1f50af64e20448e85

2011-04-21T00:00:00Z

6859695c-fb42-4855-ade4-089f06f39bb8

Mabon v. Kulongoski

322 Or. 65, 902 P.2d 1171

oregon

Oregon Supreme Court

902 P.2d 1171 (1995) 322 Or. 65 Lon T. MABON, Petitioner, v. Theodore R. KULONGOSKI, Attorney General of the State of Oregon, Respondent, and Daniel A. Rooney and Julie Davis, Intervenors. Daniel A. ROONEY and Julie Davis, Petitioners, v. Theodore R. KULONGOSKI, Attorney General of the State of Oregon, Respondent. SC S42051; S42055. Supreme Court of Oregon, In Banc. Argued and Submitted May 11, 1995. Decided September 28, 1995. *1172 Lawrence J. Hall, Silverton, argued the cause and filed the petition for petitioner Lon T. Mabon. Charles F. Hinkle, Portland, argued the cause and filed the petition for petitioners Daniel A. Rooney and Julie Davis. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the responses for respondent. With him on the responses were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem. GILLETTE, Justice. Petitioner Lon T. Mabon is a chief petitioner for the ballot measure that is the subject of the ballot title certified by the Attorney General in this case. Mabon submitted timely written comments to the Secretary of State concerning the draft ballot title and thereby preserved the right to reiterate those assertions in his petition to this court challenging the Attorney General's certified ballot title. ORS 250.067(1), 250.085(2).[1] Mabon challenges aspects of the Caption, Question, and Summary for the ballot title. We have consolidated for argument and decision, along with Mabon's petition, the petition of Daniel A. Rooney and Julie Davis (hereafter collectively "Rooney"), electors who also complied with the statutory prerequisites for bringing their ballot title petition in this court. Rooney challenges only the Summary for the ballot title. We note at the outset that the context for our discussion in the present case includes our treatment of the challenges to the ballot title for Elections Division # 13, Rooney v. Kulongoski (Elections Division # 13), 322 Or. 15, 902 P.2d 1143 (1995). This measure, Elections Division # 17, and that measure differ only slightly, and we deem the variances to be immaterial for purposes of a ballot title. The variances are set out in the margin.[2] Accordingly, we shall not repeat *1173 here a discussion of challenges that were rejected in the context of Elections Division # 13. None of those challenges is asserted to have, nor does any of them have, any greater validity due to different wording in this ballot title. Those challenges not discussed here have been considered and rejected for reasons already given with respect to Elections Division # 13. Before proceeding to the challenges, we set out the full text of the measure and the Attorney General's certified ballot title. The Attorney General's certified ballot title for Elections Division # 17 states: We review the Attorney General's certified ballot title for substantial compliance with the statutory requirements. ORS 250.085(5). ORS 250.035(1) requires a Caption of not more than 10 words that "reasonably identifies the subject of the measure." Mabon contends that the Attorney General's Caption is misleading, biased, and confusing. Specifically, Mabon asserts that the Caption states the Attorney General's belief about an effect of the measure, rather than simply stating the measure's subject. Mabon asserts that the Caption is loaded with emotional content, calculated to frighten voters, and that it implies that homosexual persons should be guaranteed equal treatment. He seeks a Caption that would state: "Amends Constitution: Prohibits Minority Status Based On Sexual Behavior, Desires." We have recognized, in the context of the ballot title for Elections Division # 13 (where the underlying proposition was not contested), that the measure's proscriptive effect on the ability of government to recognize a right of homosexual persons to be free from discrimination was a concept properly included within a Caption identifying the subject of the measure. Rooney v. Kulongoski (Elections Division # 13), 322 Or. at 30, 902 P.2d at 1152. The Attorney General's Caption thus identifies a concept within the subject of the measure when it speaks to that proposition. It does not, by its terms, carry any implication about whether or not the stated proposition is salutary and it does not, accordingly, appear to be calculated to frighten voters. The Caption does, however, carry an unnecessary amount of rhetorical and emotional content in describing the subject of the measure when it is contrasted with, for example, the more neutral (albeit awkward) phrasing of the Attorney General's Caption for Elections Division # 13 ("Amends Constitution: Homosexuality, Other Sexual Behavior Not Civil Rights Basis"). We conclude that the challenge is valid to the phrasing of the Caption, based on its rhetorical content, which may color the description of the subject of the measure. We will revise the Caption to reflect this concern. Mabon's second challenge asserts that the phrase, "homosexual persons," in the Caption "confuses the difference between homosexual conduct and people who choose to practice it. The thrust of the measure is not against persons but against conduct." Mabon asserts that the Attorney General is trying to "fan the flames of opposition to the measure by focusing the voter's attention on persons rather than conduct." Mabon's position ignores the fact that the lead-in to the substantive provisions of the measure states: "Minority status shall not be *1175 based on sexual behavior or desires." (Emphasis added.) At various other places, the measure refers either to sexual behavior (e.g., section 3) or to sexual behavior or desire (section 1(b)). The measure plainly includes, in important provisions and with equal linguistic dignity, sexual behavior and desires and does not, by its terms, draw the distinction that Mabon suggests. Certainly, the sponsors of the measure are free to argue to the voters what they believe to be the main theme of their measure. But that does not mean that the Attorney General has not substantially complied with the law when he uses "homosexual persons" as an understandable referent for those who are covered by the concept of homosexual "behavior or desires." Mabon's challenge on this basis is not well taken. To summarize, one of Mabon's challenges to the Attorney General's certified Captionto the rhetorical content of the Captionhas merit. Consistent with the methodology for deciding these cases, the final wording of the Caption for the certified ballot title for this measure has been selected after application of the restrictions in ORS 250.035(2) (re: confusion among ballot titles). Discussion of that concern with respect to the present measure may be found in Rooney v. Kulongoski (Elections Division # 13), 322 Or. at 43-47, 902 P.2d 1143. Pursuant to that discussion, the text of the Caption certified by this court for this measure is: "AMENDS CONSTITUTION: RESTRICTS LOCAL, STATE GOVERNMENT POWERS CONCERNING HOMOSEXUALITY" ORS 250.035(1)(b) requires a Question of not more than 20 words that "plainly phrases the chief purposes of the measure." The chief purpose is the most significant aim or end that a measure is designed to bring about. Mabon v. Keisling, 317 Or. 406, 413, 856 P.2d 1023 (1993). The Attorney General's certified Question asks: "Shall constitution say laws cannot guarantee equal treatment for homosexual persons, and forbid spending public funds in way approving homosexuality?" Mabon repeats arguments rejected here in the context of the Caption, as well as in the context of the Question for the ballot title for Elections Division # 13. The only valid repeated concern (deemed valid in the context of the Caption, above at 72, and valid here again) is with the rhetorical content of the words, "[s]hall constitution say laws cannot guarantee equal treatment for homosexual persons." Consistent with the methodology for deciding these cases, the final wording of the Question for the certified ballot title for this measure has been selected after application of the restrictions in ORS 250.035(2). Discussion of that issue with respect to the present measure may be found in Rooney v. Kulongoski (Elections Division # 13), 322 Or. at 51-54, 902 P.2d at 1163-1165. Pursuant to that discussion, the text of the Question certified by this court for this measure is: "Shall constitution forbid basing civil rights on homosexuality, other sexual behaviors, desires; bar spending public funds in way approving homosexuality?" ORS 250.035(1)(c) requires a "concise and impartial statement of not more than 85 words summarizing the measure and its major effects." Mabon raises several challenges that have been rejected here in the context of the Caption and Question, as well as in our discussion of the ballot title for Elections Division # 13. Mabon also reasserts his challenge to the rhetorical content of the sentence, "Forbids laws that guarantee equal treatment for homosexual persons." We have found that challenge valid in the context of the Caption and the Question for this ballot title, above at 72 (re: Caption), 73 (re: Question), and we find it valid here as well. In addition, Mabon raises here two challenges that we considered valid in the context of the ballot title for Elections Division 13: He seeks the inclusion in the Summary of a reference to the express statutory and constitutional limitations on the scope of the measure (provided in section 2 of the measure) and revision of the treatment of the public library provision of the measure. See Rooney v. Kulongoski (Elections Division # 13), *1176 322 Or. at 40-41, 902 P.2d at 1157 (sustaining the same challenges under the same circumstances in the context of Elections Division # 13). Those two challenges are equally valid here. Rooney raises again the contention that the Summary should include a statement of the effect of the measure on local ordinances. We rejected that contention in the context of the ballot title for Elections Division # 13, Rooney v. Kulongoski (Elections Division # 13), 322 Or. at 41-42, 902 P.2d at 1157-1158, and we reject it here again.[3] To summarize, the Summary will be revised to obviate the concerns with rhetoric, to include reference to the limitations in section 2 of the measure, and to revise the treatment of the public library provision. Consistent with the methodology for deciding these cases, that final wording of the Summary for the ballot title for this measure has been selected after application of the restrictions in ORS 250.035(2). Discussion of that issue with respect to the present measure may be found in Rooney v. Kulongoski (Elections Division # 13), 322 Or. at 54-61, 902 P.2d at 1165-1169. Pursuant to that discussion, the text of the Summary certified by this court for this measure is: The following ballot title is certified for the proposed initiative measure Elections Division # 17: Ballot title certified as modified. This decision shall become effective pursuant to ORAP 11.30(9). UNIS, J., dissented and filed an opinion in which DURHAM, J., joined. *1177 UNIS, Justice, dissenting. I adhere to my view that, to the extent that ORS 250.085(5) (1993) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section I, of the Oregon Constitution. Rooney/Mabon v. Kulongoski (Elections Division # 13), 322 Or. 15, 55, 902 P.2d 1143 (1995) (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction. DURHAM, J., joins in this dissenting opinion. [1] The 1995 legislature amended ORS 250.035 and repealed ORS 250.039. Or Laws 1995, ch. 534, §§ 1 & 19. Those changes, however, do not apply to the ballot title in this case. See Or Laws 1995, ch 534, § 20 (act applies to initiative petitions for which prospective petition is filed on or after effective date of act). The prospective petition in this case was filed before the effective date of the 1995 act, July 7, 1995. [2] The variances between the two measures are underscored. The Attorney General used the phrase "civil rights" in the ballot title for Elections Division # 13, wherein that term appears, but not in the ballot title for Elections Division #17, which does not contain that term in the measure. Elections Division # 13 states: "The term minority status shall refer to any class or category of individuals created in the law as a special civil rights classification such as race, religion, gender, national origin, etc." (Section 5.) "Such objection produced by one's moral standards and values is therefore not discrimination relating to civil rights, nor shall it be considered so by any unit of state or local government[.]" (Section 1(b).) "Children, students and employees shall not be advised, instructed or taught by any government agency, department or political subdivision that a person's sexual behavior or desire is the legal or social equivalent to existing minority civil rights classifications." (Section 1(a).) Elections Division # 17 states in parallel provisions: "The term minority status shall refer to any class or category of individuals created in the law as a special classification such as race, religion, gender, nation origin, etc." (Section 1(a).) "Such objection produced by one's moral standards and values is therefore not discrimination relating to minority status, nor shall it be considered so by any unit of state or local government." (Section 1(c).) "Children, students and employees shall not be advised, instructed or taught by any government agency, department or political subdivision that a person's sexual behavior or desire is the legal or social equivalent to existing minority classifications." (Section 1(b).) [3] Rooney raises one additional point in support of the same underlying change. He asserts that, by focusing expressly on laws like those on housing and employment, the Summary would clarify that the measure would supersede only "laws" and not constitutional provisions. We do not believe that Rooney's proposed changes in the Summary necessarily would communicate precisely those points, and we further note that the certified Summary now will include express reference to the constitutional limitations stated in section 2 of the measure.

20d0602b26a24e3c64ebc49f8e46167ea9309321be20337fd1e14e024c066b69

1995-09-28T00:00:00Z

dc4307f2-c544-45d4-afe8-6966d19baa93

In Re Melmon

322 Or. 380, 908 P.2d 822

oregon

Oregon Supreme Court

908 P.2d 822 (1995) 322 Or. 380 In re Complaint as to the CONDUCT OF Anne Marie MELMON, Accused. OSB 92-134; SC S42112. Supreme Court of Oregon, In Banc. Argued and Submitted November 2, 1995. Decided December 21, 1995. Anne Marie Melmon, Tigard, argued the cause and filed the brief in pro. per. Lia Saroyan, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief, for the Oregon State Bar. PER CURIAM. In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) filed a formal complaint against the accused, alleging in six causes of complaint that the accused had violated Rules of Professional Conduct (DR) *823 5-105(E),[1] DR 1-102(A)(3),[2] and DR 7-102(A)(5)[3] several times. A trial panel of the Disciplinary Board found the accused guilty of three violations of DR 5-105(E) and not guilty of the remaining charges. The trial panel ordered that the accused be suspended for 90 days. Under Rules of Procedure (BR) 10.1, review by this court is automatic, because the suspension ordered by the trial panel is for more than 60 days. We review the record de novo. ORS 9.536(3); BR 10.6. As did the trial panel, we find the accused guilty of three violations of DR 5-105(E). In addition, we find the accused guilty of a violation of DR 1-102(A)(3). We suspend the accused from the practice of law for 90 days. With respect to the three violations of DR 5-105(E) found by the trial panel, the accused does not contest either the trial panel's findings or its conclusion that she violated the cited rule. Rather, the accused challenges only the severity of the trial panel's sanction. A recitation of the facts respecting those three instances of misconduct would not benefit bench or bar. For present purposes, it suffices to say that the accused represented multiple clients in each of three different business transactions, when the clients' interests required either full disclosure under DR 10-101 or separate representation of each client under DR 5-105(E). On de novo review, we find the accused guilty of those same three instances of misconduct. Before turning to a discussion of the appropriate sanction, however, we consider the position taken by the Bar. Among other things, the Bar seeks a finding by this court (contrary to the decision of the trial panel) that the accused is guilty of violating DR 1-102(A)(3) as alleged in the Sixth Cause of Complaint. We agree with the Bar's position and find the following facts, by clear and convincing evidence, from the record. The accused began to represent Andrew Sigmund and one of his corporations, Alpine Forest Products, Inc. (Alpine), in 1987. In 1988, Sigmund told the accused that he was interested in buying a helicopter for Alpine. He obtained funds to make the purchase and deposited those funds in the accused's trust account for later disbursement to the seller of the helicopter. Sigmund told the accused that, because insurance rates would be more favorable if the registered owner of the helicopter were an individual, "rated" pilot, he did not want Alpine listed as the buyer. On September 7, 1988, Sigmund gave the seller a check for the price of the helicopter, written from the trust account of the accused. In exchange, the seller issued a receipt and an aircraft bill of sale showing the buyer to be the accused, as "Trustee" for Alpine. On September 8, 1988, Sigmund and a person named Darrell Jones met with the accused. Jones was a "rated" pilot, who was licensed to operate helicopters. Sigmund brought with him the aircraft bill of sale prepared by the seller and told the accused that he could get less expensive insurance if Jones were listed as the helicopter's owner. The next day, the accused prepared two new aircraft bills of sale. One listed the accused as seller and Jones as buyer, and the other listed Jones as seller and Alpine as buyer. The accused signed and dated the first bill of sale. Jones signed the second bill of sale, leaving it undated. The accused retained the undated bill of sale and gave the first bill of sale (showing Jones as buyer), which was *824 intended to be filed with the Federal Aviation Administration (FAA), to Sigmund. Documents showing Jones to be the owner of the helicopter were submitted to the insurance company. In the Sixth Cause of Complaint, the Bar alleged that the accused had violated DR 1-102(A)(3) when, on or about September 9, 1988, she either created or helped to create an aircraft bill of sale that falsely stated that Jones had bought the helicopter from the accused. We find the accused guilty of that charge. On September 8, 1988, the accused knew that the helicopter was being purchased solely with funds belonging to Sigmund or Alpine. Before the purchase, Sigmund told the accused that insurance rates would be significantly lower if the helicopter were owned by a "rated" pilot, instead of a corporation or an individual who was not a "rated" pilot. At Sigmund's direction, on September 8, 1988, the accused created two aircraft bills of sale. One of them reflected the true buyer (although not the true seller), while the other onewhich was the only one to be submitted to the insurance company and the FAAdid not reflect either the true seller or the true buyer. On September 8, 1988, the accused knew that Jones had no ownership interest in the helicopter and that the only reason for his inclusion on the bill of sale was to gain a more favorable insurance premium. The accused's conduct, in assisting Sigmund to create the untrue bill of sale, violated DR 1-102(A)(3), because it involved dishonesty and misrepresentation. The accused makes two arguments as to why her conduct did not violate DR 1-102(A)(3). First, she asserts that she understood that there was an informal arrangement between Jones and Sigmund, under which Jones would acquire an ownership interest in the helicopter through the performance of services for Alpine. Assuming that understanding to be correct, it does not negate a finding that the accused violated the cited rule. Her knowledge of the possibility that Jones would acquire an ownership interest in the helicopter later, for services not yet rendered, only underscores her knowledge that Jones had no such interest on September 8, 1988. Second, the accused asserts that she did not violate DR 1-102(A)(3), because the insurance agent was aware of the facts and did not object. Assuming that assertion to be true, it does not avail the accused. The addition of another person to the list of those who knew of the dishonesty and misrepresentation does not make the representation honest or true. We turn next to the question of sanction. In this connection, the accused argues that the trial panel erred in denying her motion to reconvene for reconsideration of the sanction. The accused had a full opportunity to present evidence and arguments to the trial panel while it was convened, and she did so. In the circumstances, the trial panel did not err in denying the motion to reconvene. When deciding on a sanction, this court turns for guidance to the American Bar Association's Model Standards for Imposing Lawyer Sanctions (1991) (ABA Standards). We consider the duty violated, the mental state of the accused, the actual or potential injury caused by the misconduct, and the presence of any aggravating or mitigating factors. ABA Standard 3.0. Here, by acting with conflicts of interest, the accused violated her duty of loyalty to clients. ABA Standards at 5. In addition, the accused violated her duty to the general public and to the legal system by creating a false document. See ABA Standards at 40 (discussing duties violated by creation of false evidence). With respect to the conflicts of interest, the accused acted knowingly. "`Knowledge' is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." ABA Standards at 7. With respect to the false bill of sale, the accused acted intentionally. "`Intent' is the conscious objective or purpose to accomplish a particular result." Ibid. The particular desired result was the obtaining of less expensive insurance on the helicopter than would have been the case had the insurance company known the truth. The next factor to consider is injury or potential injury. Whenever a lawyer represents *825 multiple clients in the face of a conflict of interest, there is at least the potential for injury. We have not detailed the conflicts of interest in this opinion, but those conflicts caused actual injury in the form of litigation among the various clients of the accused and between the accused and her clients. As to the misrepresentation, there was potential injury to the insurance company.[4] Before considering aggravating and mitigating factors, the ABA Standards suggest that a suspension is appropriate for a conflict of interest. ABA Standard 4.32. Generally, a misrepresentation likewise ought to result in a suspension. ABA Standard 6.12. Three aggravating factors apply. First, the accused exhibited a pattern of misconduct with respect to conflicts of interest, over a substantial period of time (1988 to 1990). ABA Standard 9.22(c). Second, the accused is guilty of multiple offenses. ABA Standard 9.22(d). Third, as noted by the trial panel, the accused "changed her story," for example, at one time denying that she had prepared or assisted in preparing the bills of sale for the helicopter, while at another time testifying that she had done so. See In re Boyer, 295 Or. 624, 630, 669 P.2d 326 (1993) (an accused's lack of credibility before a trial panel is a proper consideration in fixing the sanction for misconduct). In mitigation, four factors apply. The accused has no prior disciplinary record, was not motivated by personal gain, was a relatively inexperienced practitioner when she engaged in the misconduct, and cooperated in this proceeding. ABA Standards 9.32(a), (b), (e), and (f). In the circumstances, Oregon case law suggests that a period of suspension is appropriate. In In re Magar, 312 Or. 139, 817 P.2d 289 (1991), this court suspended the accused for 60 days for a single violation of DR 1-102(A)(3) that was similar to the present one. Additionally, this court has suspended lawyers for egregious or multiple conflicts of interest. See, e.g., In re Hockett, 303 Or. 150, 164, 734 P.2d 877 (1987) (in that case, violation of conflicts rule alone would have justified a 30-day suspension). We conclude that, in the present case, the appropriate sanction is a 90-day suspension. The accused is suspended from the practice of law for 90 days. [1] DR 5-105(E) provides that, "[e]xcept as provided in DR 5-105(F), a lawyer shall not represent multiple current clients in any matters when such representation would result in an actual or likely conflict." DR 5-105(F) provides that representation of multiple current clients is allowed "in instances otherwise prohibited by DR 5-105(E) when such representation would not result in an actual conflict and when each client consents to the multiple representation after full disclosure." Under DR 10-101(B), "full disclosure" is defined to mean "an explanation sufficient to apprise the recipient of the potential adverse impact on the recipient, of the matter to which the recipient is asked to consent" and, when a conflict of interest may be present, to "include a recommendation that the recipient seek independent legal advice to determine if consent should be given," which advice "shall be contemporaneously confirmed in writing." [2] DR 1-102(A)(3) provides that "[i]t is professional misconduct for a lawyer to * * * [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation." [3] DR 7-102(A)(5) provides that, "[i]n the lawyer's representation of a client * * *, a lawyer shall not [k]nowingly make a false statement of law or fact." [4] In fact, the accused and her client acted on incorrect information; the insurance premium was not higher at that time if the owner of the helicopter was not an individual, "rated" pilot.

4dfcfc57557514a5ed4cba9423a22b9f91d61f50ee27592b1a49064448957865

1995-12-21T00:00:00Z

2b6c84be-94f4-4e7c-a2d2-5b174c88b12a

State v. Marshall

S058549

oregon

Oregon Supreme Court

Filed: April 14, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. COREY DENNIS MARSHALL, Petitioner on Review. (CC CR060570; CA A135603; SC S058549) On review from the Court of Appeals.* Argued and submitted December 17, 2010. Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs was Mary Shannon Storey, Senior Deputy Public Defender. Mary H. Williams, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was John R. Kroger, Attorney General. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** BALMER, J. The decision of the Court of Appeals is affirmed in part and reversed 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 Yamhill County Circuit Court, Carol E. Jones, Judge. 234 Or App 159, 227 P3d 786 (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. BALMER, J. In this criminal case, defendant challenges the denial of his motion for judgments of acquittal on two charges of first-degree sexual abuse, ORS 163.427. He argues, with respect to both charges, that the state's evidence was insufficient to support a finding that he subjected the victim to "forcible compulsion" within the meaning of that statute.(1) We conclude that the evidence of forcible compulsion was sufficient to prove one of the charges but insufficient to prove the other. Because the Court of Appeals held that there was sufficient evidence to prove both charges, we reverse that court's decision in part. Although we discuss ORS 163.427 in detail below, a brief explanation at this point of the crime of sexual abuse will provide helpful context for the issues that arise in this case. The lowest level of the crime of sexual abuse is third-degree sexual abuse, ORS 163.415. A person commits that crime if: "(a) The person subjects another person to sexual contact and: "(A) The victim does not consent to the sexual contact; or "(B) The victim is incapable of consent by reason of being under 18 years of age * * *." "Sexual contact," in turn, is defined in ORS 163.305(6) as: "[A]ny touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party." Thus, to prove third-degree sexual abuse, the state must show that the defendant (1) touched an intimate part of the victim for the purpose of gratifying the sexual desire of the defendant or the victim or caused the victim to touch an intimate part of the defendant for such a purpose, and (2) that the victim did not consent to the contact -- or was deemed incapable of giving consent because the victim was under 18.(2) Third-degree sexual abuse is a Class A misdemeanor. The crime is elevated to first-degree sexual abuse if the defendant subjects the victim to "sexual contact" as defined above, and one of three additional elements is present: the victim is less than 14 years of age; the victim is subjected to "forcible compulsion" by the defendant; or the victim is incapable of consent. ORS 163.427(1)(a).(3) "Forcible compulsion" is a statutorily defined term: "'Forcible compulsion' means to compel by: "(a) Physical force; or "(b) A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped." ORS 163.305(2). First-degree sexual abuse is a Class B felony, ORS 163.427(2), with a mandatory sentence of 75 months in prison. ORS 137.700(2)(a)(P).(4) Here, as noted, defendant was charged with two counts of sexual abuse in the first-degree, and the central issue on review is whether there was evidence on one or both of those counts from which a reasonable juror could have found the element of "forcible compulsion" that elevates third-degree sexual abuse to first-degree sexual abuse. FACTUAL BACKGROUND AND PROCEEDINGS BELOW Returning to the facts of this case, we present the evidence in the light most favorable to the state. State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998) (in reviewing denial of a motion for a judgment of acquittal, court views the evidence in the light most favorable to the state).(5) The relevant events occurred in 2006, when the victim was 14 years old. Defendant, who was 27 at the time, was a friend of the victim's mother and had been living with the victim's family for a short time. Early in the morning on the day in question, the victim woke up and discovered defendant in her bed, partially on top of her, hugging her and trying to kiss her. The victim told him "no" and tried to push him away. Defendant began to rub the victim's back, with his hand outside her t-shirt. The victim was "a little bit" scared and wondered what defendant was doing. Defendant continued to rub the victim's back for 10 or 15 minutes and then took the victim's hand and held it on the bed between the victim and himself. Defendant asked the victim about her "last boyfriend" and about whether she wanted him to help her "get over her fears." The victim responded "no." Defendant then "grabbed" the victim's hand and "forced" it down the front of his pants, placing it on his erect penis. After a few seconds, the victim "jerked" her hand away, turned onto her stomach, and faced away from defendant. Defendant began rubbing the victim's back again, this time with his hand underneath her shirt. Ultimately, he slipped his hand down the back of her sweatpants and put it on her buttocks. The victim said "no" and scooted away from defendant. Defendant pulled his hand away. Afterward, defendant told the victim "five or six times" that she "couldn't tell anybody" and that, "if [she] did, he would have to hurt somebody because it would hurt him." After 10 minutes, defendant got up from the bed, said something about there being too much light in the room, hung a blanket over one of the windows, and left the room.(6) The victim reported the incident to the police. Based on that report, defendant was charged with two counts of first-degree sexual abuse, ORS 163.427, on the theory that defendant had subjected the victim to two separate instances of sexual contact "by means of forcible compulsion"-- the first, by causing the victim to touch his penis and the second, by touching the victim's buttocks.(7) At the close of the state's evidence, defendant moved for a judgment of acquittal on those two charges, arguing that, on each charge, the state had failed to present sufficient evidence to create a jury issue on an essential element of the crime of first-degree sexual abuse as charged here -- that defendant had subjected the victim to "forcible compulsion." Defendant asserted that there was no evidence that defendant had used what the legislature intended by "forcible compulsion" -- specifically, physical force or threats of physical injury -- to cause the victim to engage in, or submit to, either of the sexual contacts. The trial court denied the motion, explaining that: "There was testimony by the alleged victim that she didn't want to do these things. She didn't want to have them done to her, and that she would not have done them, and would not have allowed them had she had the choice. I think that under the current statutory definition there's no requirement that there be any sort of a struggle or even a resistance. * * * I do think that there is enough evidence here to go to the jury." Both charges went to the jury and the jury returned guilty verdicts on both. On appeal, defendant assigned error to the denial of his motion for judgments of acquittal. A divided Court of Appeals, sitting en banc, affirmed. State v. Marshall, 234 Or App 159, 227 P3d 786 (2010). The majority concluded that, for purposes of ORS 163.427(1)(a), "forcible compulsion" by means of physical force is any exercise of physical strength or power by the actor that, when taken in combination with the surrounding circumstances, causes the victim to act or to submit to being acted upon against the person's will. As to the first charge in this case, the majority concluded that, considering the totality of the circumstances, a reasonable juror could find that defendant used physical strength to restrain the victim and then to move her hand to his erect penis against her will. In particular, the majority determined that a jury could have found that defendant initially was on top of the victim, that he kept trying to kiss her face, that the victim kept telling him no and trying to push him away, and that defendant finally grabbed her hand and forced it into his pants and into contact with his erect penis. As to the second charge, the majority concluded that defendant's conduct leading up to and including the act of putting defendant's hand on his penis was "part of the totality of the circumstances that the jury could consider." Id. at 167. The majority recounted all of those actions and then stated: "Although defendant may not have exerted a great deal of physical strength beyond what he had already exerted, the jury could reasonably find that, in context, his conduct -- trapping the victim between himself and the wall, forcing her to touch his erect penis, putting his hand on her lower back and rubbing it beneath her shirt, and then reaching under the waistband of her pants -- constituted sufficient physical force to qualify as forcible compulsion within the meaning of the statute." Id. at 168.(8) THE PARTIES' CONTENTIONS Before this court, defendant argues that the Court of Appeals majority erroneously interpreted the first-degree sexual abuse statute and, consequently, erred in finding sufficient evidence of forcible compulsion to support the jury's verdict on both charges. Specifically, defendant contends that, under ORS 163.427(1)(a), a victim is subjected to "forcible compulsion" only when the actor uses violent or dominating physical force that separately results in the specific sexual contact that is charged. Defendant contends that there is no evidence in the record that the victim was subjected to any violent, dominating force by defendant, much less evidence showing that such force resulted in either of the sexual contacts at issue. The state responds that, although "forcible compulsion" by means of physical force clearly requires a use of physical force that causes the victim to act or submit to being acted upon against his or her will, the statute does not require any particular degree of physical force or that the use of physical force result in or facilitate the sexual contact. Rather, it requires only that the sexual contact be accompanied by some degree of forcible compulsion. It follows, the state argues, that first-degree sexual abuse can be proved by showing an act of physical compulsion that was part of the circumstances surrounding the particular sexual contact at issue, without regard to whether the act of compulsion had any causal relationship to the sexual contact. By the same token, the state argues, a single act of physical force that accompanies multiple acts of sexual contact can transform each such act into a separate instance of first-degree sexual abuse. In this case, the state concludes, the victim was subjected to forcible compulsion by means of physical force when defendant embraced the victim, rubbed her back and, finally grabbed her hand and put it down his pants, holding it there until she jerked her hand away. Those acts of forcible compulsion, according to the state, transformed the two sexual contacts that accompanied them -- defendant's moving of the victim's hand to touch defendant's penis and defendant's subsequent placing of his hand on the victim's buttocks -- into separate acts of first-degree sexual abuse. Although the parties present their differences as an undifferentiated whole, they actually resolve into two separate issues: (1) whether the "forcible compulsion" element of first-degree sexual abuse must in some sense cause or result in the sexual contact; and (2) whether the term "forcible compulsion" contemplates a particular level of physical force, such as the violent or dominating physical force that defendant argues is required. We address the issues in that order. ANALYSIS When this court interprets a statutory term or provision, it follows the analytic framework set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993), as modified by State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) -- that is, we consider the text and context and, if appropriate, the legislative history. We begin, then, with the text of ORS 163.427. It provides, in part: "(1) A person commits the crime of sexual abuse in the first degree when that person: "(a) Subjects another person to sexual contact and: "* * * * * "(B) The victim is subjected to forcible compulsion by the actor[.]" (Emphasis added.) As noted earlier, the term "sexual contact" is defined in ORS 163.305(6) to mean any touching of an intimate part of the victim or of the actor, for purposes of the sexual gratification of either, and the parties do not disagree about the meaning of that term. Thus, our focus is on the intended meaning of the phrase "subjected to forcible compulsion" in ORS 163.427(1)(a), when the "forcible compulsion" is accomplished by "physical force." The legal dispute between the parties here pertains to the relationship between the two elements of the crime set out at subsection (1)(a) and paragraph (1)(a)(B) -- subjecting the victim to "sexual contact" and subjecting the victim to "forcible compulsion." Defendant contends that the second element is satisfied only by acts that "result in" the "sexual contact" that is the first element of the crime. The state insists, to the contrary, that the two elements are "distinct," and that nothing in the text requires or implies any causal connection between the physical force used in the "forcible compulsion" and the touching that constitutes the "sexual contact." As the state reads the statute, the "forcible compulsion" required by paragraph (1)(a)(B) need only "accompany" the sexual contact required by subsection (1)(a). We conclude that defendant's interpretation is the correct one. Although we acknowledge that nothing in the text of ORS 163.427 explicitly connects the elements set out at subsection (1)(a) and paragraph (1)(a)(B), the relationship is implicit in the text of the statute. As noted, ORS 163.427(1)(a)(B) defines the prohibited conduct in terms of "the victim [being] subjected to forcible compulsion by the actor," where "forcible compulsion" means "to compel by * * * physical force." The question then is: "compel[led] by * * * physical force" to do what?(9) Given the wording of the statute, the only possible answer to the question of what is "compelled" is: to submit to or engage in the physical contact that is the other element of the crime of first-degree sexual abuse, i.e., the "sexual contact" to which the actor has "subjected" the other person. That interpretation also finds support in the distinction between the nonconsensual "sexual contact" that is punishable as third-degree sexual abuse and nonconsensual sexual contact that is the result of "physical force," and, therefore, is punishable as first-degree sexual abuse. The elevation of the nonconsensual sexual contact from a misdemeanor to a felony makes sense only if there is a causal connection between the additional element of "forcible compulsion" and the submission to or engagement in the sexual contact (or, stated differently, if the submission or engagement was "compelled by" or resulted from "physical force"). Thus, if a defendant compelled a victim by physical force to sit in a chair, but that conduct was unrelated to any (nonconsensual) sexual contact to which the defendant subjected the victim, the defendant would be guilty of third, rather than first, degree sexual abuse. Finally, both subsection (1)(a) and paragraph (1)(a)(B) use the "subjected to" phraseology -- the actor "subjects [the victim] to sexual contact" and the victim is "subjected to forcible compulsion by the actor." That repeated sentence structure suggests that the second phrase -- "subjected to forcible compulsion" should be interpreted in light of the first phrase -- "subjects * * * to sexual contact," rather than being viewed simply as a separate element that must be proved to make out the crime of first-degree sexual abuse. That connection is a further indication that the legislature intended a causal relationship between the actor's use of physical force and the victim's submission to, or engagement in, the sexual contact. For those reasons, we reject the state's contrary argument that nothing in the text or context of the first-degree sexual abuse statute requires or implies any causal connection between the "forcible compulsion" and the sexual contact elements of the crime defined therein. It is not sufficient for the state to prove that a defendant subjected a victim to nonconsensual sexual contact and also "compel[led]" the victim by "physical force" to submit to or engage in some act unrelated to the sexual contact. We conclude that paragraph (1)(a)(B) of ORS 163.427 refers to "forcible compulsion" that results in the sexual contact that is the other necessary element of the crime. A necessary corollary of that conclusion is that, contrary to the state's argument, a single act of forcible compulsion that accompanies multiple acts of sexual contact does not necessarily transform each of those sexual contacts into separate instances of first-degree sexual abuse. Instead, for each of the sexual contacts that the state charges, the state must rely on an act of "forcible compulsion" that bears some causal relationship to the sexual contact: It must, in some sense, result in that particular sexual contact. In so holding, of course, we do not foreclose a trier of fact from finding, based on all the evidence, that a single act of compulsion in fact resulted in multiple instances of sexual contact. We turn, now, to the other point of disagreement about the meaning of ORS 163.427(1)(a) -- whether, as defendant contends, the "forcible compulsion" to which a victim is subjected must be so violent or aggravated that the defendant physically dominates the victim and accomplishes the sexual contact because of that domination. We already have set out the relevant portion of ORS 163.427(1)(a) and the statutory definition of "forcible compulsion" that applies in this case, which is "to compel by * * * physical force." ORS 163.305(2). The two words that are most relevant to a textual analysis of that phrase are the verb "compel" and the noun "force."(10) The verb "compel" means: "1: FORCE, DRIVE, IMPEL : as a : to force by physical necessity or evidential fact * * * 2 a : to force or cause irresistibly : call upon, require, or command without possibility of withholding or denying * * * 3 a : to domineer over so as to force compliance or submission : demand consideration or attention < nobody will ~ you; you are perfectly free * * * > b : to obtain (a response) by force, violence, or coercion < ~ assent at the point of a gun >." Webster's Third New Int'l Dictionary 463 (unabridged ed 2002). "Force" is defined as: "1 a : strength or energy esp. of an exceptional degree : active power : VIGOR * * * c : power to affect in physical relations or conditions < the ~ of the blow was somewhat spent when it reached him> * * * 3 a : power, violence, compulsion, or constraint exerted upon or against a person or thing * * * b : strength or power of any degree that is exercised without justification or contrary to law upon a person or thing c : violence or such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death." Id. at 887. The word "compel" conveys a range of meanings, centered around achieving compliance or submission by some level of force. The meanings of the word "force" range from "vigor" and "constraint" to "violence" and "strength or energy * * * of an exceptional degree." Contrary to the parties' arguments in favor of one or the other dictionary definitions, there is little in the words of the statute that would make one of the specific definitions more relevant than any other. Although most of the definitions of "force" suggest a significant, rather than a minimal, level of strength or energy, we cannot say that "to compel [something] by * * * physical force" denotes any particular quality or degree of physical force. The word does not, for example, clearly refer only to violence or complete physical domination of the other person. Rather, the force to which the statute refers is an amount or kind of force that is sufficient to "compel" that which is identified in the statute, viz., the sexual contact. Defendant insists that there is contextual support for his view that the legislature intended to refer only to violent, wholly dominating physical force. He points to ORS 163.415, which, as discussed above, ___ Or at ___ (slip op at 2), defines third-degree sexual abuse as sexual contact to which the victim does not consent. Defendant contends that certain conclusions about the meaning of the "forcible compulsion" element of ORS 163.427 can be drawn from a comparison of the two statutes. Defendant first observes that some minimal physical force -- the mechanical movement of one's hand, for example, and the placing of that hand on another person's intimate parts -- is inherent in "subjecting another person to sexual contact," as that phrase is used in both statutes. That is so, in defendant's view, because "sexual contact," as it is defined for purposes of both statutes means: "any touching of the sexual or other intimate parts of another person or causing such person to touch the sexual or other intimate parts of the actor." ORS 163.305(6) (emphasis added). Defendant then makes the following observation: If the actor's use of the minimum force that is inherent in nonconsensual sexual contact (touching of the victim or causing the victim to touch the actor) is within the scope of third-degree sexual abuse, ORS 163.415(1), then it is clear that some more elevated degree of physical force is contemplated by the "forcible compulsion" element of the substantially more serious crime of first-degree sexual abuse, ORS 163.427(1)(a). Defendant contends that that elevated degree of physical force is force that is suggestive of violence and that dominates the victim. We agree that a comparison of third-degree and first-degree sexual abuse leads to the conclusion that, when the "forcible compulsion" element of the latter statute is proved by evidence of physical force, the level of force that is involved must be greater than or qualitatively different from the simple movement and contact that is inherent in the action of touching an intimate part of another. But we do not accept defendant's further leap that "forcible compulsion" therefore must involve a violent, dominating level of force. We have no reason to believe that the legislature viewed physical force in this context as a binary system, offering only a choice between the minimum physical movement and contact inherent in any nonconsensual sexual touching and violent or dominating physical coercion. Our conclusion that "forcible compulsion" must involve more than the force inherent in sexual contact is supported by changes that the legislature made to the statutory definition of "forcible compulsion" in 1999. Before 1999, "forcible compulsion" was defined for purposes of ORS 163.427 and other sexual offenses as follows: "'Forcible compulsion' means physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped." ORS 163.305(2) (1997) (emphasis added). In 1999, the legislature considered and ultimately enacted Senate Bill 944 (1999), which removed the "overcomes earnest resistance" wording and added the phrase "to compel by," ultimately resulting in the present definition: "'Forcible compulsion' means to compel by: "(a) Physical force; or "(b) A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped." ORS 163.305(2) (emphasis added). The state contends that removal of the "overcomes earnest resistance" wording "represented a sea change in how forcible compulsion was viewed" in the context of the sexual abuse, sodomy, and rape statutes. The state notes that the 1999 amendment eliminated not only the requirement that the victim physically resist, but also the requirement that the state prove that the defendant used a level of force that overcame the victim's earnest resistance. The state argues that, by removing the reference to "overcoming" the victim's resistance, the legislature signaled that the prosecution no longer would be required to prove that a defendant used overwhelming force or, for that matter, any particular degree of physical force. Defendant denies that the legislature intended to alter or lower the level of physical force that constitutes "forcible compulsion" when it removed the "earnest resistance" component from the definition of that term. Defendant acknowledges that, in the pre-1999 definition, the "physical force" and "earnest resistance" components were interrelated, insofar as the latter component had functioned, at least in part, as an evidentiary tool for gauging the level of physical force used by the actor. Defendant argues, however, that, by eliminating the "earnest resistance" component, the legislature "did not change what the state had to prove with respect to the actor's use of physical force; instead, the amendment affected how the state was to prove it -- by focusing on the actor's conduct, not whether the victim earnestly resisted." (Emphasis in original.) Thus, defendant argues, although the victim's physical resistance became irrelevant after 1999, the state still was required to prove that the defendant exerted physical force of the same quality and degree that had always been required. That aspect of defendant's position is consistent with the legislative history of the 1999 amendment. The amendment was promoted by a group of rape victim advocates and district attorneys, who argued that the requirement of proving earnest resistance was unfair to, and actually could endanger, victims of sexual assault. The amendment that initially was introduced differed slightly from the one that ultimately was enacted: It simply deleted the phrase "that overcomes earnest resistance" from the definition of "forcible compulsion" as it then existed. Marion County District Attorney Dale Penn, who testified in favor of the bill before the Senate Committee on Judiciary, explained that the bill removed "a requirement on sexual assault victims that should not be there."(11) Tape Recording, Senate Committee on Judiciary, SB 944, Apr 26, 1999, Tape 149, Side A (testimony of Dale Penn). Penn stated that the amendment was not directed at other elements of the affected sex crimes -- that it "does not change the requirement that the state must prove the elements of the crime. This bill does not change the requirement that the state must prove beyond a reasonable doubt that forcible compulsion was used in a crime. It simply, in the first part of this, removes this requirement of earnest resistance." Id. (emphasis added). At the same hearing, a representative of the Oregon Criminal Defense Lawyers Association expressed concern that the removal of the "overcomes the victim's earnest resistance" wording, without other changes, could have an unintended effect. She argued, in particular, that, insofar as every sexual act involves some degree of "physical force," the proposed amendment, as worded, would sweep in consensual sexual acts. Id. Tape 148, Side A (testimony of Ingrid Swenson). The committee chair and the proponents of the bill recognized that potential problem and discussed alternatives to address it. See id. Tape 149, Side B (comments of Chair Bryant; testimony of Dale Penn). In its next session on the bill, the committee approved an additional amendment that added the "to compel by" wording that now appears in the statute. Tape Recording, Senate Committee on Judiciary, SB 944, May 5, 1999, Tape 165, Side A (vote on motion to adopt Senate amendments). The textual changes that the 1999 legislature made to ORS 163.305(2) support the view that the amendments were directed towards removing the requirement that the victim resist, and were not intended to alter the requirements of the statute with respect to the actor's conduct. They also indicate legislative concern that the reference to "physical force" -- without the reference to force sufficient to "overcome earnest resistance" -- might unintentionally broaden the meaning of "forcible compulsion," and that the phrase "to compel by" was added to the definition to prevent that result. In short, the legislative history of the 1999 amendment provides at least some support for defendant's position that the legislature intended only to remove the unfair and potentially dangerous "earnest resistance" requirement, and that it did not intend to alter the level of physical force that would be required to convict an actor of first-degree sexual abuse, rape, or sodomy. But that conclusion still does not lead as far as defendant wishes to go. It does not establish that the legislature understood, in 1999 or before, that only physical force that is sufficient to dominate the victim constitutes "forcible compulsion" for purposes of the statutes defining the various first-degree sexual offenses. The 1999 amendment does show that the legislature did not intend to permit every kind or degree of force to qualify as "forcible compulsion." Even as the legislature removed the "overcomes earnest resistance" wording that previously had helped define the level of force that was required, it added other words that described the acts of "physical force" that would qualify -- by specifying that forcible compulsion means "to compel by * * * physical force." Implicit in the addition of that wording is the requirement that the physical force must be of a degree or quality that is sufficient to compel the act at issue -- sufficient, that is, to cause a victim to submit to, or to engage in, the sexual contact against his or her will. Thus, rather than expanding the meaning of "forcible compulsion" to include any degree of physical force (as the state asserts), the 1999 legislature clearly intended to describe and quantify the physical force that can constitute forcible compulsion. Based on the text and context of ORS 163.427(1)(a), we agree that "forcible compulsion" by means of physical force must involve physical force that is greater in degree or different in kind than the minimal force that is inherent in "subjecting" a victim to "sexual contact." The physical force must be sufficient to "compel" the victim, against the victim's will, to submit to or engage in the sexual contact, but it need not rise to the level of violence. The question ordinarily will be one of degree. Moreover, the degree or kind of physical force that will be sufficient may depend on the type of sexual contact that the state alleges. As noted, ORS 163.305(6) encompasses both sexual contact that occurs when a person "touch[es] * * * the sexual or other intimate parts of [another]" and sexual contact that occurs when a person "caus[es]" another "to touch the sexual or other intimate parts of the actor." When a defendant subjects a victim to the first type of sexual contact -- defendant touching victim -- the defendant's own physical act may range from no, or minimal, "physical force," such as occurs in a momentary contact or brushing against the victim, to a violent groping or injurious sexual assault that clearly constitutes forcible compulsion. A defendant's conduct can only constitute first-degree sexual abuse when the defendant uses physical force that is greater in degree or different in kind from the simple movement and contact inherent in the act of touching. In contrast, when the second type of sexual contact is involved -- defendant physically causing victim to touch defendant -- the defendant's act causes an act by the victim. The defendant's act -- causing the victim to touch the defendant -- will, in many instances, be different in degree and kind from the victim's act -- touching the defendant. In those circumstances, there likely is a narrower range of conduct that would constitute physical force sufficient to have "caused" the victim to touch the defendant, for purposes of the "sexual contact" definition, and yet not be sufficient to have "compelled" the victim to engage in the sexual contact for purposes of the "forcible compulsion" definition. Thus, when a defendant engages in the second type of sexual contact described in ORS 163.305(6), the defendant's act is likely to meet the definition of forcible compulsion, as long as the force that the defendant uses is sufficient to compel the victim to engage in the act of touching against his or her will. Finally, the force that is sufficient to "compel" one person to submit to or engage in a sexual contact against his or her will may be different from that which is sufficient to compel another person to do so. In determining whether the physical force used by the defendant against the particular victim was sufficient to compel that victim to submit to or engage in the sexual contact, the trier of fact may consider circumstances known to the defendant that relate to whether the victim was in fact "compelled," such as the victim's age; the differences in age, size, and strength between the victim and the defendant; the relationship between the victim and the defendant; and similar facts. Before returning to the facts of this case, we briefly summarize our conclusions about what the state must prove when it alleges that a defendant violated ORS 163.427(1)(a) by means of forcible compulsion. We have determined, first, that there is a causal connection between the "sexual contact" and "forcible compulsion" elements of ORS 163.427(1)(a), and, therefore, to prove that a particular sexual contact was first-degree sexual abuse, the state must prove not only that the defendant subjected the victim to an act of forcible compulsion, but also that that act resulted in the sexual contact that is the focus of the charge, in the sense that it compelled the victim to submit to or engage in the contact. We also have determined that, when the state elects to prove the "forcible compulsion" element of a charge of first-degree sexual abuse by evidence of physical force, it must show that the physical force that the defendant used was greater in degree or different in kind from the simple movement and contact that is inherent in the act of touching the intimate part of another and that the force was sufficient to compel the victim to submit to or engage in the sexual contact, against the victim's will. APPLICATION Applying that holding to the two charges in the present case, we conclude that only one of the charges should have survived defendant's motion for judgments of acquittal. As to the first charge -- that defendant "did unlawfully and knowingly subject the victim to sexual contact by causing [the victim] to touch a sexual or intimate part of the defendant by means of forcible compulsion" -- the evidence in the record is sufficient to create a jury question. The state presented evidence that defendant had "forced" the victim's hand down inside defendant's pants and against his erect penis, and that the victim had "pulled" or "jerked" her hand away. Although the sexual touching was the victim's hand touching the defendant's penis, the "physical force" was defendant's use of his own hands to cause the victim to engage in that sexual contact. We have little trouble concluding that a reasonable jury could find that defendant "caus[ed] the victim to touch his intimate parts" and that he did so by using some degree of physical force, different in degree or kind from the simple movement and contact inherent in the act of the victim touching defendant's penis. The question that remains as to the first charge is whether the evidence could support a finding that the physical force used was sufficient to compel a person in the victim's circumstances to engage in the sexual contact. Here, the victim was a 14-year-old girl and the defendant was a 27-year-old man, a friend of the victim's mother who had been living in the victim's home for a short time. The crime took place in the victim's room, where she had been sleeping in her bed when she awoke to find defendant lying partially on top of her. The physical setting, the victim's age, the age difference between the victim and defendant, and the fact that the victim's mother had welcomed defendant into her home, all contributed to a situation in which the jury reasonably could conclude that the physical force that defendant exerted was sufficient to cause a person of that age and in those circumstances to submit to the physical contact against her will. We therefore conclude that the evidence was sufficient to create a jury question with respect to the charge that defendant used "forcible compulsion" to cause the victim to touch defendant's sexual or intimate parts. We reach the opposite conclusion with respect to the charge that defendant sexually abused the victim in the first degree by "touching a sexual or intimate part of [the victim]." In contrast to the physical force that defendant used to cause the victim's hand to come into contact with his penis, nothing in the record suggests that the second touching itself involved any greater or different force than was inherent in that particular sexual contact -- defendant's touching of the victim's buttocks. That touch lasted "a few seconds," and when the victim said "no," defendant immediately removed his hand and did not touch her again. There was no evidence that the touching involved any fondling, rubbing, or other stimulation, or that defendant exerted any physical force other than that involved in briefly touching the victim's buttocks. Although the state points to other prior acts involving physical force -- including defendant's prior act of forcing the victim's hand to his penis -- as providing the requisite evidence, there was no evidence that that "physical force" caused the victim to submit to defendant touching her buttocks or "compelled" her to submit to that touching. That force did not restrain, trap, or physically coerce the victim in order to cause her to submit to defendant's later touching. To be sure, the victim did not consent to the touching, and the jury could -- and did -- find that defendant subjected the victim to unlawful sexual contact. However, to prove first-degree sexual abuse, the state also had to prove that defendant used "physical force" sufficient to "compel" the victim to submit to sexual contact against her will. In light of the state's failure to prove any act of physical force by defendant that could have compelled the victim to submit to the second sexual contact charged, we conclude that the evidence of forcible compulsion as to that latter charge was insufficient to create a question for the jury. The Court of Appeals' contrary conclusion was error. The decision of the Court of Appeals is affirmed in part and reversed 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. 1. ORS 163.427 provides, in relevant part: "(1) A person commits the crime of sexual abuse in the first degree when that person: "(a) Subjects another person to sexual contact and: "* * * * * "(B) The victim is subjected to forcible compulsion by the actor. "* * * * * "(2) Sexual abuse in the first degree is a Class B felony." (Emphasis added.) 2. A person also commits the crime of third-degree sexual abuse if the person, for the purpose of sexual gratification, "intentionally propels any dangerous substance at a victim without the consent of the victim." ORS 163.415(1)(b). That form of third-degree sexual abuse is unrelated to our interpretive task or to the conduct in this case, and we do not discuss it further. 3. A person also commits first-degree sexual abuse if the person, for purposes of sexual gratification, intentionally causes a person under the age of 18 to touch or contact "the mouth, anus or sex organs of an animal." ORS 163.427(1)(b). Again, because that provision provides no assistance in interpreting the provisions of the statute at issue in this case, we do not discuss it. 4. A person commits the crime of second-degree sexual abuse when the person is a sports "coach" of a victim under the age of 18 and engages in sexual contact with the victim or when one person subjects another person, without consent, to sexual intercourse, deviate sexual intercourse, or sexual penetration. ORS 163.425. That statute plays no role in this case. 5. This summary of the facts is drawn from the testimony of several witnesses. The victim testified about defendant's actions in her room that morning, as did defendant. Three other witnesses testified as to what the victim had told them about defendant's actions: a friend of the victim's, the friend's mother, and the local police chief. The testimony of those three other witnesses was admitted without objection, presumably under the hearsay exception for complaints of abuse, OEC 803(18a)(b) (statement concerning act of abuse not excluded as hearsay if declarant testifies at proceeding). 6. In recounting the facts that a reasonable juror could have found, including the permissible inferences that could be drawn from the evidence, we deviate from the Court of Appeals' statement of the facts on one point. The majority opinion stated as fact that defendant "trapp[ed] the victim between himself and the wall," and used that fact to support its conclusion that a jury could find that the second contact occurred with sufficient force to qualify as forcible compulsion. State v. Marshall, 234 Or App 159, 168, 227 P3d 786 (2010). In a footnote, the court explained that there was "conflicting evidence" as to which side of the bed defendant was on and that the jury was entitled to credit the evidence indicating that he was on the side away from the wall. Id. at 161 n 2. Our review of the record discloses no real conflict and no basis for the statement that defendant "trapped" the victim between himself and the wall. The victim herself drew a diagram, admitted as an exhibit at trial, clearly showing defendant against the wall and herself away from the wall, and all her testimony was consistent with that placement. The only testimony even tangentially suggesting that the victim, rather than the defendant, was on the side of the bed against the wall, was a comment by the victim's friend, who said that the victim told her that she had "scooted over towards the wall" when defendant put his hand down the back of the victim's sweatpants. On cross-examination, the friend stated that the victim told her only that she had "scooted over." The friend did not testify that the victim had told her that she was on the wall side of the bed or that defendant had "trapped" her against the wall; indeed, no witness used the word "trapped." In light of the consistent testimony of the victim and others that defendant was against the wall, we do not see any plausible inference from her friend's testimony that would create a genuine conflict in the evidence. 7. Defendant also was charged with, and convicted of, coercion, ORS 163.275. Defendant does not challenge that conviction on review to this court. 8. As noted, the Court of Appeals decision was not unanimous. A concurring opinion accepted the majority's result, but sought to clarify the author's view that a finding of forcible compulsion would not be possible on the second charge if the action that was at the heart of that charge -- defendant's placing of his hand on the victim's buttocks -- had not been preceded by the actions that constituted the first charge. Marshall, 234 Or App at 168-69 (Brewer, C. J., concurring). A dissenting opinion stated that forcible compulsion exists only if the sexual contact is made possible by the defendant's separate use of physical strength or power on the victim -- and would have concluded that the evidence in the record would not support a finding that defendant used that type of force against the victim during the second contact. Id. at 169-76 (Sercombe, J., dissenting). 9. Put differently, "compel" is a transitive verb, and the use of that word therefore ordinarily requires an object -- that which is "compelled." 10. The term "physical" also is important but it is unnecessary to resort to the dictionary for the meaning of that term: "Physical" force is simply bodily or material (as opposed to mental or moral) force. 11. He explained to the committee that "[t]he focus should be on, 'Was there forcible compulsion? Was there physical force that was not involved?' not, 'Did the victim resist?'" Tape Recording, Senate Committee on Judiciary, SB 944, Apr 26, 1999, Tape 149, Side A (testimony of Dale Penn).

1a0d115dbcc23dec9d908ad6a58ef236debd109162c91b9344c01a577910eefa

2011-04-14T00:00:00Z

987b6da5-090c-4e1b-a6d1-4e26fff22d8e

Howell v. Boyle

oregon

Oregon Supreme Court

MISCELLANEOUS SUPREME COURT DISPOSITIONS CERTIFIED QUESTIONS, CERTIFIED APPEALS, MANDAMUS PROCEEDINGS, AND OTHER MATTERS February 17, 2011 Howell v. Boyle (S059120). Certified question accepted. Oregonians for Honest Elections v. Oregon Education Association (S058894). Petition for alternative writ of mandamus allowed; alternative writ issued.

c5f8a9449217c8739521aa80361ab4d984bc28949ba87b6ddc28008e3cbfcc1a

2011-02-17T00:00:00Z

f9c8edef-116c-4600-8a7e-4ca3d391ade5

In re Groom

S057898

oregon

Oregon Supreme Court

Filed: March 25, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In re: complaint as to the Conduct of DAVID E. GROOM, Accused. (OSB 08-105; SC S057898) On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted November 5, 2010. Wayne Mackeson, Portland, argued the cause and filed the briefs for accused. With him on the briefs was Kelly Jaske, Portland. Mary A. Cooper, Assistant Disciplinary Counsel, Oregon State Bar, argued the cause and filed the brief for the Oregon State Bar. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.* PER CURIAM The complaint against the accused is dismissed. *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. PER CURIAM In this lawyer discipline case, the Bar charged the accused with violating Rule of Professional Conduct (RPC) 1.4, which requires that a lawyer keep a client reasonably informed and explain a matter to a client to the extent reasonably necessary to permit the client to make informed decisions.(1) We conclude that the Bar did not prove that charge by clear and convincing evidence, and we hold that the accused is not guilty of that charge and related charges brought by the Bar and decided by the trial panel.(2) The charges against the accused arose from the accused's representation of Richard Eugene Evett (Evett) in the appeal of a circuit court judgment dismissing Evett's petition for a writ of habeas corpus. The Bar alleged that Evett asked the accused to file a motion to vacate that judgment of dismissal and that, although the accused agreed to consider doing so, he neither acted nor informed Evett of his decision not to act. In support of those charges, the Bar proved the facts that follow. Except as otherwise indicated, those facts are uncontested. Evett was on probation for committing federal crimes when he was arrested on charges of committing additional Oregon crimes. As a result, the federal court revoked Evett's probation and sentenced him to two years in federal prison in Arizona. Evett also was convicted in state court and sentenced to 13 months of incarceration to be served after completion of the federal sentence. To ensure that Evett would return to Oregon to serve that sentence, the state lodged a detainer against him. However, some time later, the state withdrew the detainer and instead issued a warrant for Evett's arrest. Evett was released from federal prison in March 2003. Approximately two years later, Evett was arrested in California on the Oregon warrant and, after waiving extradition from California, was returned to Oregon. In March 2005, Evett began to serve his 13-month sentence at Snake River Correctional Institute (SRCI). On May 13, 2005, Evett filed a petition for a writ of habeas corpus in Oregon circuit court, and Charles Simmons was appointed to represent him. In his petition, Evett, through Simmons, alleged that he was unlawfully imprisoned because, among other things, Oregon had lost jurisdiction over him when it withdrew the detainer and then delayed execution of the arrest warrant. The circuit court, which we will refer to as the habeas court, granted the state's motion to dismiss Evett's petition and entered judgment in its favor.(3) Evett appealed that judgment, which we will refer to as the habeas judgment, to the Oregon Court of Appeals. On October 17, 2005, the accused was appointed to represent Evett in his appeal of the habeas judgment. Evett had already served approximately eight months of his 13-month sentence, and the accused warned him that if he was released from state custody before the appeal was decided, the appeal could become moot and the state could seek its dismissal. Unbeknownst to the accused, while Evett was pursuing his habeas appeal, Evett also was pursuing a parallel civil action seeking money damages for unlawful imprisonment at SRCI. Simmons, the attorney who had represented Evett in bringing the habeas petition, represented Evett in that civil action. Simmons was concerned about the effect that the habeas judgment could have on the civil action because, to be successful in the civil action, Evett had to prove that his imprisonment at SRCI was unlawful.(4) However, in dismissing the habeas petition, the habeas court apparently had decided to the contrary -- that Evett's imprisonment at SRCI was lawful. Simmons understood that the court in the civil action could decide, applying the rule of issue preclusion, that the decision of the habeas court was binding on it and could not be relitigated. If Evett's appeal of the habeas judgment were successful, the habeas judgment would be reversed and would no longer serve as a potential bar to Evett's civil action. If, however, Evett's appeal were dismissed as moot, the habeas judgment would stand, potentially precluding Evett's claim for money damages. Simmons researched the legal issue and learned of a possible solution to that perceived dilemma. In particular, Simmons learned that if Evett were precluded from pursuing his appeal because it was moot, Evett could seek to have the Court of Appeals vacate the habeas judgment on equitable grounds. When Evett was released from post-prison supervision on March 23, 2007, Simmons anticipated that the state would file a motion to dismiss the habeas appeal; he therefore contacted the accused to seek his help in obtaining vacatur of the habeas judgment. Simmons initially telephoned the accused and then followed up by e-mail on April 24, writing: "Thank you for discussing this case with me the other day. As you probably know, I am currently representing Mr. Evett in a civil rights action arising out of the same facts as the habeas corpus appeal in which you are currently representing him. "It would be helpful if, when DOJ moves to dismiss the appeal as moot, you would request that the Court of Appeals vacate the trial court's decision, based on Kerr v. Bradbury, 340 Or. 241, 131 P.3d 737, adhered to on recons, 341 Or. 200, 140 P.3d 1131 (2006), City of Eugene v. State, PERB, 341 Or. 120, 137 P.3d 1288 (2006), PGE v. IBEW Local 125, 209 Or. App. 77, 146 P.3d 333 (2006), and Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S. Ct. 1055, 137 L. Ed. 2d 170 (1997). I think there is a good argument to be made under those cases that, because the mootness was not due to any voluntary action by Mr. Evett, but was rather the result of the inevitable expiration of the post-prison supervision term due to the delays normally inherent in litigation, it would be inequitable to require Mr. Evett to be subjected to issue preclusion based on an unreviewed and likely erroneous trial court decision. While this might not make a difference in the habeas corpus case, it is very important to the civil litigation." A few days later, on April 26, the state filed a motion to dismiss the habeas appeal on the grounds that it had become moot. The deadline for response to that motion was May 10. ORAP 7.05(3) (14-day period for response to motion). On May 1, 2007, the accused informed Simmons, by e-mail, of the state's motion and that he was considering what response, if any, to make: "Charles -- the motion from the state to dismiss for mootness has just arrived and I am considering what response I might make. I will try to file against this motion, but I fear that the court will rule that habeas relief is a jurisdictional issue, and that his release from any form of custody removes their jurisdiction. I'll keep you posted when I respond."(5) To consider what response he might make, the accused examined the authorities that Simmons had provided and discussed the issue with his colleagues. The accused determined that Evett had no legal basis for contesting the state's motion to dismiss; the appeal was unquestionably moot. The accused therefore believed that a request for vacatur of the habeas judgment should not be made in opposition to the state's motion but, instead, should be made after the Court of Appeals had ruled on that motion. In the accused's opinion, it would be procedurally appropriate to seek an order of vacatur after entry of an order allowing the motion to dismiss but before the issuance of the appellate judgment, at which time the Court of Appeals would lose jurisdiction. See ORS 19.270(6) (Court of Appeals has jurisdiction until appellate judgment issues). The accused did not file a response to the motion to dismiss, nor did the accused inform Simmons or Evett of his thinking. On June 5, 2007, after the time for responding to the motion to dismiss had elapsed, Simmons sent the following e-mail to the accused: "Has the Court of Appeals made any ruling on the motion to dismiss the appeal as moot? Attached is the part of my argument from the civil cases that addresses the issue of vacation of the trial court's decision when the case becomes moot on appeal. I thought this might be of some use to you." On June 7, 2007, the accused responded, also by e-mail: "No ruling yet. Thanks for the attachment, I'm in the process of seeing what I can use." (Emphasis added.) Thus, as of June 7, both Simmons and the accused were aware, or should have been aware, that the time for filing a response to the motion to dismiss had elapsed and that the accused was still "in the process" of thinking about what action he could take. Simmons claims that he had the following telephone conversation with the accused a week or two later, in mid to late June: "My best recollection of the conversation is I called him up. I said, 'Hi. Remember me? I'm representing Mr. Evett in a civil case. Did you get my e-mail?' 'Yes, I got your e-mail.' 'Did you go ahead and file the response like we had talked about?' Mr. Groom said, 'Yes.' I said, 'Thank you.' That was the end of the conversation." The accused denies that any such conversation took place.(6) In the meantime, the defendants in the civil case had filed a motion for summary judgment arguing, in part, that the habeas judgment precluded relitigation of the lawfulness of Evett's confinement at SRCI. Simmons filed a response on June 15, 2007, and argued that "strong equitable and practical considerations counsel[] against application of claim and issue preclusion." Simmons also argued that Evett was seeking vacation or reversal of the habeas judgment, which would nullify its preclusive effect, and suggested that the circuit court defer ruling on the defendants' motion for summary judgment until the Court of Appeals acted. The circuit court took the parties' arguments under advisement. On July 9, 2007, the Court of Appeals entered an order dismissing Evett's habeas appeal as moot. The deadline for filing a petition for reconsideration of that decision was July 23. ORAP 6.25(2) (petition for reconsideration must be filed within 14 days of decision). On July 17, Simmons sent the accused an e-mail request for a status report. In an e-mail response dated July 18, the accused told Simmons that the Court of Appeals had ordered dismissal and promised to fax Simmons a copy of that order. When the order did not arrive, Simmons reminded the accused of his promise and the accused both faxed and mailed a copy of the order that same day -- July 26. Simmons was out of town and did not receive the copy of the order of dismissal that the accused had sent until on or about August 2, 2007. Once he read it, Simmons surmised that the accused had not filed a motion to vacate and immediately called the accused to inquire. The accused informed Simmons that, indeed, he had not filed a motion to vacate and had not done so because he did not believe that such a motion would have merit. Simmons briefly considered seeking to substitute himself as counsel of record in the habeas appeal and then filing a motion to vacate. However, Simmons decided that the time for doing so had elapsed. He therefore took no action in the Court of Appeals. The appellate judgment dismissing the habeas appeal issued on September 12, 2007. On October 8, 2007, Simmons sent a letter to the judge assigned to the civil case and conceded that issue preclusion foreclosed most of Evett's claims. The judge granted the defendants' motion for summary judgment in its entirety on December 6, effectively concluding the civil case. On March 25, 2008, Simmons wrote to the Bar to report what he considered to be the accused's ethical violations. The Bar charged the accused with violating RPC 1.4, and, following a hearing, the trial panel found the accused guilty of that charge and imposed a four-month suspension. The accused seeks review of the trial panel decision. See ORS 9.536(1) (parties may appeal trial panel decision directly to Supreme Court). RPC 1.4 provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information "(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The Bar had the burden of establishing a violation of that rule by clear and convincing evidence. Bar Rules of Procedure (BR) 5.2. "'Clear and convincing evidence' means evidence establishing that the truth of the facts asserted is highly probable." In re Magar, 335 Or 306, 308, 66 P3d 1014 (2003). Before this court, the Bar maintains that it met its burden of proof by establishing that the accused decided not to file a motion to vacate the habeas judgment and failed to communicate that decision to Simmons or Evett. The Bar takes the position that "[i]f the Accused had communicated his conclusion and decision to Simmons/Evett, the Bar would not be alleging unethical conduct." For his part, the accused maintains that he owed no duty to Evett with regard to the civil case and told Simmons only that he would look into the information that Simmons had provided. The accused contends that, after looking at that information, he decided that a motion to vacate would be without merit and informed Simmons of that conclusion. If Simmons had determined that such a motion would be meritorious, the accused asserts, Simmons could have filed the motion. The uncontested facts establish that the accused informed Simmons of his decision not to file a motion to vacate on or about August 2, 2007, when Simmons received a copy of the order of dismissal and talked with the accused by phone. In that conversation, the accused confirmed Simmons's conclusion that the accused had not filed the motion and told Simmons that he had not done so because he did not believe that the motion had merit. Thus, the issue before us is not whether the accused failed entirely to communicate his decision not to file a motion to vacate; the issue is whether the accused's failure to communicate before August 2 constituted a failure to keep his client "reasonably" informed of the status of the matter as required by RPC 1.4. RPC 1.0(k) provides that "[r]easonable' or 'reasonably' when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer." This court has applied RPC 1.4 in two cases that shed light on the factors that are relevant to our inquiry. In In re Snyder, 348 Or 307, 315, 232 P3d 952 (2010), the court found a violation of RPC 1.4 when the lawyer failed to communicate with his client for eight months. During that time, the lawyer made numerous tactical decisions in the personal injury case that he was handling for the client, did not discuss those decisions with the client, and ignored the client's "urgent messages." Id. at 314. The client terminated the relationship after learning of the lawyer's decisions, but no other lawyer would accept the client's case because of the narrow window for filing the personal injury action within the statute of limitations, and, therefore, the client was not able to pursue an action for his injuries. Id. at 312. Thus, the court considered, as factors that supported its decision that the lawyer had not kept the client reasonably informed as required by RPC 1.4, the time that elapsed between the lawyer's decision and the communication of that decision, the lawyer's failure to respond promptly to reasonable requests for information from the client, and the foreseeable prejudice that resulted from the lawyer's delay. The court also considered the client's reasonable and repeated requests for information and the lawyer's six-month delay in communication in finding a violation of RPC 1.4 in In re Koch, 345 Or 444, 198 P3d 910 (2008). Similar factors were also relevant to this court's decisions under former Disciplinary Rule (DR) 6-101(B).(7) See, e.g., In re Coyner, 342 Or 104, 149 P3d 1118 (2006) (lawyer did not communicate with client for one year, failed to take any action on client's appeal, and failed to notify client that his appeal had been dismissed); In re Bourcier, 325 Or 429, 939 P2d 604 (1997) (lawyer failed to communicate with client regarding appeal and did not inform client when briefs were filed and when Court of Appeals upheld conviction); In re Chandler, 306 Or 422, 760 P2d 243 (1988) (lawyer failed to communicate with out-of-state clients for three years and kept their file in storage long after new lawyer requested it); In re Duggar, 299 Or 21, 697 P2d 973 (1985) (lawyer failed to inform client that case strategy was jeopardized and failed to respond to client's inquiries; client lost opportunity to collect on construction lien). Although former DR 6-101(B) addressed a lawyer's obligation to communicate under the rubric of "neglect of a legal matter," that rule addressed the same concern as does RPC 1.4. As we explained in Snyder: "Although RPC 1.4 is a relatively new rule in Oregon, a lawyer's duty to communicate with clients was a part of the diligence requirement of former Disciplinary Rule (DR) 6-101(B), which dealt with neglect of a legal matter. In considering alleged violations of that rule, this court held that failing timely to communicate good or bad news to the client constituted a violation of that rule, * * *, as did failing to keep a client informed about the status of the case * * *. The court also observed, in a case in which a lawyer did not write any letters to his client about the case and failed to return his client's phone calls or respond to the client's requests for progress reports, that neglect of a client and procrastination are violations of professional responsibility." 348 Or at 315 (internal citations omitted). From the text of RPC 1.4 and from the cases interpreting it and former DR 6-101(B), it is clear that deciding whether a lawyer has violated RPC 1.4 requires a careful examination of all of the facts. Factors that are relevant to that inquiry include the length of time between a lawyer's decision and the lawyer's communication of that decision to the client, whether the lawyer failed to respond promptly to reasonable requests for information from the client, and whether the lawyer knew or a reasonable lawyer would have foreseen that a delay in communication would prejudice the client. By setting out those factors, we do not intend to imply that any one of them is necessary to establish a violation of RPC 1.4, or that they are the only factors relevant to the inquiry. In some situations, a lawyer may need to communicate a decision immediately to keep a client reasonably informed, and in many instances RPC 1.4 puts the onus on the lawyer to initiate communication with the client. RPC 1.4 includes, but is not limited to, the obligation to promptly respond to client requests. Further, a lawyer's obligation to keep a client reasonably informed exists regardless of the merits of a client's claim or position. If a client's claim or position lacks merit, that lack, and not the lawyer's failure to communicate, ordinarily will be the cause of the client's lack of success and any resulting prejudice. In such a circumstance, the fact that a lawyer's failure to communicate does not prejudice the client does not relieve the lawyer of the ethical duty to communicate. See In re Geurts, 290 Or 241, 246 n 6, 620 P2d 1373 (1980) (lawyer's opinion that client's case lacked merit did not excuse neglect, at least to extent of so informing client); Coyner, 342 Or at 108 (lawyer must communicate "bad news as well as good to the client" and failure to do so is neglect). On the other hand, when a lawyer knows or reasonably should foresee that a failure to communicate with a client may itself prejudice that client, and nevertheless engages in delay, that fact is important to a determination of whether the lawyer met the obligations imposed by RPC 1.4. Although proof of a violation of RPC 1.4 does not depend on proof that the lawyer caused prejudice to the client, reasonably foreseeable prejudice, where present, may be material to the inquiry. In this case, we have no difficulty deciding that the accused was required to inform Simmons, and thereby Evett, of his decision not to file a motion to vacate the habeas judgment. Although the accused represented Evett in the habeas appeal and not in the civil case, he agreed to "look into" whether there were grounds to take action in the appeal that would benefit the civil case. Having undertaken that responsibility, the accused was required to reasonably inform his client of his decision. We also have no difficulty in deciding that the accused informed Simmons, and thereby Evett, of his decision not to file a motion to vacate the habeas judgment on or about August 2, 2007. The issue we face is whether, on those facts and considering the factors we have identified, the accused kept his client "reasonably informed" of the status of the appeal. We first consider the length of time between the accused's decision not to file a motion to vacate and August 2, 2007. As of June 7, the accused was still "in the process" of examining the case law that Simmons had provided to decide whether he would file a motion to vacate. If the accused made a decision not to file a motion to vacate shortly after June 7, he failed to communicate his decision for a period of approximately two months. However, if the accused made his decision in late July, shortly before he informed Simmons of it, he delayed the communication of that decision for a matter of days. We have reviewed the record and cannot ascertain when the accused made his decision not to file the motion to vacate. As a result, we cannot determine the length of time between the accused's decision and August 2, when the accused communicated that decision, nor can we rely on the length of the accused's delay, if any, as a factor in our analysis. The second factor to which we turn is whether the accused failed to respond promptly to reasonable requests for information from Simmons or Evett. See Snyder, 348 Or at 314 (failure to respond to client's urgent and repeated requests for information); Koch, 345 Or at 453 (same). The accused generally answered telephone calls and e-mails from Simmons within a day or two and Simmons found the accused "pretty easy to get ahold of." When Simmons called the accused on or about August 2, 2007, to ask him whether he had filed the motion to vacate, he had no trouble reaching the accused and the accused answered Simmons's questions directly. We can identify only one instance in which the accused did not respond promptly to a request for information from Simmons or Evett -- i.e., when the accused failed to send Simmons a copy of the order of dismissal until after Simmons's second request for that document. Specifically, on July 17, Simmons asked the accused for a status report. The next day, July 18, the accused told Simmons that the appeal had been dismissed and that he would fax Simmons a copy of the order of dismissal. However, the accused did not send that copy until after Simmons requested it a second time, some eight days later. In determining whether the accused "promptly" complied with a "reasonable" request for information as required by RPC 1.4 we can consider the fact that the request came from Simmons, a lawyer who also represented Evett. Although Simmons's request that the accused send him a copy of the court's order of dismissal was reasonable, we note that Simmons could have obtained a copy of that order from the court directly, rather than waiting to receive it from the accused. Furthermore, the accused had accurately informed Simmons of the substance of the order. In that circumstance, we cannot say that the accused's eight-day delay alone demonstrates a violation of RPC 1.4. Finally, we consider whether the accused knew or should have foreseen that his delay in communicating his decision not to file a motion to vacate the habeas judgment would prejudice his client. If the accused knew or reasonably should have foreseen that, to be successful, a motion for vacatur had to be filed by a certain date, but failed to communicate his decision until after that date, then that fact is relevant in deciding whether the accused violated RPC 1.4. Whether that fact exists, depends, of course, on the law of vacatur and the time limits, if any, for seeking it. Vacatur is an equitable remedy that a party may seek when a case becomes moot. Kerr v. Bradbury, 340 Or 241, 246, 131 P3d 737, adh'd to on recons, 341 Or 200, 140 P3d 1131 (2006). The Bar does not point to any statutes or rules, and we are not aware of any, that expressly address the time frame for filing a motion to vacate in an appellate court. At the disciplinary hearing in this matter, Simmons testified that he believed that the motion to vacate had to be filed in response to the state's motion to dismiss. However, the case law that Simmons provided to the accused demonstrated that, in other cases, parties had sought and obtained vacatur by filing motions for reconsideration seeking that relief after an appellate court had held an appeal to be moot. In City of Eugene v. PERB, 341 Or 120, 137 P3d 1288 (2006), for example, the petitioners filed a motion for reconsideration after this court had held that their appeal was moot. The court granted the petition for reconsideration because petitioners had demonstrated that "equity call[ed] for vacatur[.]" Id. at 127. The parties invoked a similar procedure in the Court of Appeals in PGE v. Int'l Brotherhood of Electrical Workers, 209 Or App 77, 79, 146 P3d 333 (2006), rev den, 342 Or 644, 158 P3d 507 (2007). There, the defendant filed, and the Court of Appeals granted, a petition for reconsideration seeking vacatur of a circuit court judgment after the Court of Appeals had dismissed the appeal of that judgment as moot. The accused concluded, and was correct in concluding, that the Court of Appeals could entertain a motion to vacate the habeas judgment as long as it had jurisdiction. See Jensen v. Bevard, 217 Or App 309, 312, 175 P3d 518 (2007) (after court reversed and remanded, and after time for filing motion to reconsider had expired, party filed motion to vacate appellate judgment, which court entertained, but denied on merits); State v. Cozad, 210 Or App 465, 150 P3d 1113 (2007) (court granted leave to file motion to vacate four months after decision); State ex rel SOSCF v. Corbit, 165 Or App 653, 997 P2d 294 (2000), vac'd and dismissed by order, May 8, 2000, 3 P3d 171 (2000) (court dismissed appeal because appeal was from nonappealable order; parties filed independent motion to vacate trial court judgment following entry of order dismissing appeal). In this case, the Court of Appeals could have entertained a motion to vacate until September 12, 2007, when the appellate judgment issued and the court lost jurisdiction. See ORS 19.270(6) (court has jurisdiction until appellate judgment issues). If the accused made his decision not to file a motion to vacate the habeas judgment in early July when the Court of Appeals entered its order of dismissal, the best course would have been for him to communicate his decision to Simmons at that time. However, the Bar did not prove when the accused made his decision or that the accused knew or reasonably should have foreseen at the time that he did so, that delay would foreclose his client's opportunity to seek to vacate the habeas judgment. When the accused informed Simmons of his decision on or about August 2, 2007, Simmons had time to seek to substitute himself as counsel of record in the habeas appeal and to file the appropriate motion.(8) In summary, we conclude that the Bar did not establish, by clear and convincing evidence, that the accused delayed in communicating his decision not to file a motion to vacate for an unreasonable length of time or under circumstances in which he knew or reasonably should have foreseen that a delay in communicating that decision would cause harm to his client. The Bar also did not establish that the accused failed to promptly comply with Simmons's reasonable requests for information. The Bar does not argue that other facts or factors bear on our decision, and we hold that the Bar did not prove, by clear and convincing evidence, that the accused violated RPC 1.4. The complaint against the accused is dismissed. 1. RPC 1.4 provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information "(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." 2. The Bar also charged the accused with violating RPC 8.4(a)(3) (lawyer may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The trial panel concluded that the Bar failed to prove that charge by clear and convincing evidence, and the Bar does not challenge that conclusion. We choose to accept that decision of the trial panel without further discussion. See In re Hartfield, 349 Or 108, 111, 239 P3d 992 (2010) ("'[O]rdinarily we will consider the issues for our review to be those framed by the parties' briefs and arguments.'" (quoting In re Paulson, 346 Or 676, 679 n 3, 216 P3d 859 (2009), adh'd to as modified on recons, 347 Or 529, 225 P3d 41 (2010)). Although the Bar did not charge the accused with violating RPC 1.2(a) (lawyer must abide by client's decisions), the trial panel decided, sua sponte, that he did so. The Bar concedes that the trial panel erred in reaching that conclusion and we accept its concession. See ORS 9.534(2) (accused entitled to written notice of charges and opportunity to defend against charges). 3. Nothing in the record reveals the trial court's reasons for granting the state's motion. 4. For the most part, Evett's allegations in his civil action duplicated those in the habeas case. In his civil action, Evett alleged that Oregon had lost jurisdiction over him when it withdrew the detainer and was equitably estopped from enforcing its sentence when it failed to arrest Evett until approximately two years after his release from federal custody. In the civil action, Evett asserted one claim that he had not pressed in the habeas case. Evett alleged that the state had miscalculated the amount of time that he was required to serve at SRCI when it failed to credit Evett for the time that he already had served in the Douglas County Jail while awaiting trial for the state charges. Therefore, Evett argued, the state had held him in prison beyond the term permitted by his sentence. 5. Simmons testified that he did not receive that e-mail, however Simmons also testified that he had moved from his law office on that day and, that, as a result, the e-mail address that he had been using and to which the accused had addressed his correspondence was no longer available to him. Given Simmons's testimony, the Bar does not claim that the accused did not send the May 1, 2007, e-mail. 6. Because we accept the trial panel's conclusion that the Bar did not prove its charge that the accused was guilty of dishonesty, fraud, or deceit in violation of RPC 8.4(a)(3), we also accept its implicit finding that the accused did not tell Simmons that he had filed a response to the motion to dismiss when, in fact, he had not done so. 7. The former Disciplinary Rules were replaced by the Rules of Professional Conduct in 2005. 8. In reaching that conclusion, we do not intend to foreclose the possibility that Simmons could have asked the Court of Appeals to recall the appellate judgment after it issued or that the only solution to the dilemma posed by Evett's release from custody was the filing of a motion to vacate in the Court of Appeals. Simmons also may have been able to advance the same equitable arguments that he asked the accused to make in support of a motion to vacate to argue against application of the rule of issue preclusion in the circuit court civil action. See Restatement (Second) of Judgments § 28 (1982) (listing exceptions to issue preclusion including when a case becomes moot on appeal); Nelson v. Emerald People's Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993) (party precluded must have had "full and fair opportunity" to litigate the issue). ORCP 71 B also permits relief from judgment in cases where "it is no longer equitable that the judgment should have prospective application." See ORS 19.270(1)(e) (trial court retains jurisdiction over a matter for purpose of deciding motion for relief from judgment). We do not opine on the merits of those arguments. We set them forth only to ensure that this opinion is not interpreted to foreclose them.

6805a6215ba1327f36f7418d697c608a6979c3ea28800ea015982e321ca305f0

2011-03-25T00:00:00Z

80d51be9-83f4-4df0-914e-1862aaa82da7

Menasha Forest Products Corp. v. Curry County Title

S058450

oregon

Oregon Supreme Court

Filed: March 25, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON MENASHA FOREST PRODUCTS CORPORATION, Respondent on Review, v. CURRY COUNTY TITLE, INC.,and TRANSNATION TITLE INSURANCE COMPANY, Petitioners on Review. (CC 06CV0844; CA A137464; SC S058450) On review from the Court of Appeals.* Argued and submitted November 10, 2010. Jonathan M. Radmacher, McEwen Gisvold LLP, Portland, argued the cause and filed the brief for petitioners on review. Gary Roberts, Schwabe, Williamson & Wyatt, P.C., Portland, argued the cause and filed the brief for respondent on review. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** The decision of the Court of Appeals on attorney fees is reversed. The decision of the Court of Appeals is otherwise affirmed. The judgments of the circuit court are affirmed. *Appeal from Curry County Circuit Court, Richard L. Barron, Judge. 234 Or App 115, 227 P3d 770 (2010). **Gillette and Landau, JJ., did not participate in the consideration or decision of this case. DURHAM, J. The issue in this action is whether defendants are entitled to an award of attorney fees against plaintiff and, if so, the amount of the award. An escrow contract between plaintiff Menasha Forest Products Corporation and defendant Curry County Title, Inc. (CCT) provided that if CCT prevailed in an action based on the contract, CCT would be entitled to "reasonable attorney fees expended or incurred[.]" Plaintiff brought an action for breach of contract against CCT, and for negligence and declaratory relief against CCT and its principal, Transnation Title Insurance Company (Transnation). Defendants prevailed and sought attorney fees. The same attorney had represented both CCT and Transnation in the action, and Transnation had paid that attorney's fees pursuant to an agency agreement between CCT and Transnation. This case requires us to determine the effect of that third-party payment on CCT's contractual right to recover attorney fees from plaintiff. The trial court determined that Transnation's payment did not affect CCT's entitlement to attorney fees; it awarded $31,449.85 in attorney fees to defendants. The Court of Appeals disagreed, and determined that CCT's entitlement to attorney fees was limited by the terms of the agency agreement, quoted below, between CCT and Transnation; it reduced the attorney fee award to $2,500. Menasha Forest Products Corp. v. Curry County Title, 234 Or App 115, 126-27, 227 P3d 770 (2010). On review, we conclude, as did the trial court, that Transnation's payment of the attorney fees had no effect on CCT's entitlement to an attorney fee award under the escrow contract. We also agree with the trial court that Transnation, which prevailed in this action, also may recover its reasonable attorney fees unreduced in the manner described by the Court of Appeals. CCT provides escrow and other services related to the conveyance of real property. Before 2004, CCT entered into an agency agreement with Transnation under which Transnation, as principal, would provide title insurance for CCT's escrow customers and CCT, as agent, would indemnify Transnation for certain losses, including attorney fees and costs of litigation, incurred by Transnation. The agency agreement provided, in part: "13. Liability of AGENT; Insurance "a) Agent shall be liable to COMPANY for, and hereby agrees to indemnify the COMPANY against all loss, cost or expense, including attorney's fees and costs of litigation, incurred by the COMPANY and arising from "1. the fraud, misconduct or gross negligence of AGENT or any agent, servant or employee of AGENT; or "2. the failure of AGENT to comply with the terms of this Agreement or with the rules, regulations or instructions given to AGENT by COMPANY; or "3. any loss or misapplication of funds, documents or other things of value by AGENT or any agent, servant or employee of AGENT; or "4. any other actual or alleged act or omission by AGENT or any agent, servant or employee of AGENT, whether or not occurring in connection with the issuance of a Policy, and any Policy issued by AGENT, but the liability of AGENT under this Section 13(a) 4 shall not exceed the first $2,500.00 of such loss, cost or expense." In 2004, plaintiff entered into an agreement to sell timber property to a company called Golden Gate Trust. To facilitate that transaction, plaintiff contracted with CCT to provide escrow services, a title report, and title insurance to Golden Gate Trust. The escrow contract, which CCT drafted as a set of instructions from plaintiff to CCT, provides, in part: "If you [CCT] are the prevailing party in any action or proceeding between you and some or all of the parties to the escrow, you shall be entitled to all costs, expenses, and reasonable attorney fees expended or incurred in connection therewith." CCT secured title insurance for the transaction through Transnation. Although plaintiff provided CCT with a correct description of the property to be conveyed, CCT prepared a title report and deed that erroneously included 40 acres of property that plaintiff previously had conveyed to a different buyer. The title insurance policy issued by Transnation also included the previously sold parcel. After Transnation discovered the error, it wrote to plaintiff asserting that plaintiff had breached its warranty of title and would be required to indemnify Transnation in the event that Transnation was required to pay any claim by Golden Gate Trust. Plaintiff then brought this action for breach of contract against CCT and for a declaratory judgment against both CCT and Transnation. As part of the breach of contract claim against CCT, plaintiff asserted its entitlement to attorney fees under ORS 20.096(1) (2007).(1) In their answer, defendants asserted entitlement to attorney fees pursuant to the escrow contract and ORS 20.096(1). On defendants' motion, the trial court granted judgment on the pleadings in favor of defendants on plaintiff's declaratory judgment claim, concluding that plaintiff had not pleaded a controversy that entitled it to seek a declaratory judgment. Plaintiff then voluntarily dismissed its breach of contract and negligence claims. The trial court entered a general judgment dismissing all of plaintiff's claims without prejudice. Defendants, through their shared attorney, filed a petition for attorney fees and costs. Defendants asserted that plaintiff was contractually obligated to pay defendants' attorney fees pursuant to the attorney fee provision of the escrow contract, quoted above. Defendants' attorney detailed the legal services performed in his representation of defendants. He asserted that, although his "attorney fees were expended for both Defendants, [the] amounts of fees would have been identical if only one Defendant had been sued[.]" Plaintiff filed objections. Plaintiff argued that Transnation was not entitled to attorney fees because it was not a party to the escrow contract, and that CCT was not entitled to attorney fees because it had not "expended or incurred" any attorney fees within the meaning of the escrow contract. Plaintiff pointed out that defendants' attorney had billed Transnation for all attorney fees associated with the underlying action, pursuant to the agency agreement between CCT and Transnation, and that Transnation had paid those bills. In a letter opinion, the trial court overruled plaintiff's objections, stating: "Plaintiff alleged in its declaratory relief claim that [CCT] at all times was acting as the agent for Transnation. Its complaint is filed against both defendants, which are required to defend the mater and which, according to plaintiff, are subject to its request for declaratory relief. [CCT] is entitled to attorney fees under the contract between it and plaintiff in defending this matter and the fact that Transnation may be paying for the attorney fees does not affect [CCT's] right to attorney fees as the prevailing party. Domingo v. Anderson, 325 Or 385[, 938 P2d 206] (1997)." The court entered a supplemental judgment awarding defendants their attorney fees in the amount of $31,449.85, payable by plaintiff. Plaintiff appealed and assigned error to the trial court's award of attorney fees to defendants. The Court of Appeals agreed with plaintiff that the escrow contract entitled CCT to recover "attorney fees expended or incurred" in connection with the underlying action. The court then resolved the question of whether CCT had "incurred" fees by analyzing the agency agreement between CCT and Transnation: "[A]ttorney fees are 'incurred' if a party seeking those fees 'has become liable to pay them.' The record in this case clearly demonstrates that Transnation, not CCT, was billed for and paid all attorney fees. Thus, whether the trial court's award was proper turns on whether CCT was 'liable' to pay the attorney fees billed to and paid by Transnation. That inquiry, in turn, depends on the agency agreement between CCT and Transnation." Menasha Forest Products Corp., 234 Or App at 126 (citation omitted; emphasis in original). Because the agreement between CCT and Transnation limited CCT's indemnification obligation to Transnation to $2,500,(2) the Court of Appeals vacated the trial court's supplemental judgment and remanded for entry of an attorney fee award to defendants in that amount. Id. at 127. We allowed review to address the attorney fee issues.(3) On review, defendants argue that CCT is entitled to attorney fees pursuant to the escrow contract between plaintiff and CCT, regardless of the separate contractual arrangement between CCT and Transnation for the payment of the attorney fees. Defendants propose a rule of law that "[w]here a contract or statute provides that a party will recover reasonable attorney fees, the prevailing party is entitled to an award of attorney fees, without regard to whether a third party paid those attorney fees on behalf of the prevailing party." According to defendants, engaging in an evaluation of who actually pays the attorney fees is inconsistent with the contractual term "incurred" and subverts the reciprocity principle contained in ORS 20.096(1). Plaintiff responds that defendants failed to prove that CCT "expended or incurred" fees as required by the escrow contract, because CCT did not assert either that it paid fees or that it was required to pay fees. Plaintiff also contends that ORS 20.096(1) does not aid defendants because that statute does not extend the right to recover attorney fees to a nonparty to the underlying contract, such as Transnation. Accordingly, plaintiff contends, the Court of Appeals erred in concluding that defendants were entitled to any attorney fee award.(4) Generally, a party is not entitled to an award of attorney fees unless a statutory or contractual provision specifically authorizes that award. Mattiza v. Foster, 311 Or 1, 4, 803 P2d 723 (1990). Defendants identify two potential sources of authority for an attorney fee award in this case: the attorney fee provision in the escrow contract, and ORS 20.096(1). Under that statute, if a contract entitles one contracting party to recover attorney fees upon prevailing in an action to enforce the provisions of the contract, the prevailing party in the action is entitled to attorney fees whether or not that party is the party specified in the contract. See Jewell v. Triple B. Enterprises, 290 Or 885, 887-88, 626 P2d 1383 (1981) (concluding that the statute "requires reciprocity of recovery of attorney fees"). Plaintiff raised different objections to the claim of each defendant to recover attorney fees. For that reason, we examine the trial court's authority to award attorney fees separately for each defendant. We begin with CCT. The escrow contract between CCT and plaintiff expressly entitles CCT to recover attorney fees "expended or incurred" in connection with this action if CCT prevails in the action. As we shall explain, that provision authorizes the award of attorney fees that the trial court granted. There is no reason, therefore, to consider whether the "reciprocity of recovery" policy embodied in ORS 20.096(1) has any application to CCT's claim for attorney fees. The legal issue before us is straightforward: Did CCT "expend" or "incur" "attorney fees" in connection with this action if Transnation paid the attorney fees pursuant to its agency agreement with CCT? The escrow contract here does not specially define the key terms of the attorney fee provision. Consequently, we accord those terms their ordinary meaning. The phrase "attorney fees," when used in the context of an attorney fee award, means "the reasonable value of an attorney's services, whether or not the client was required to pay for those services." Colby v. Gunson, 349 Or 1, 5, 238 P3d 374 (2010). That definition accords no significance to the existence of any obligation on a client's part to pay for the attorney's services. Domingo, 325 Or at 389; see Colby, 349 Or at 5 (discussing holding in Domingo.) Our inquiry thus narrows to the question whether the escrow agreement modifies the usual conception of attorney fees noted in Colby by incorporating the phrase "expended or incurred in connection therewith" after the phrase "attorney fees." For ease of analysis, we focus on the second of those alternatives, "incurred," because it provides the most direct answer in this case. The pertinent definition of "incur" is to "become liable or subject to[.]" Webster's Third New Int'l Dictionary 1146 (unabridged ed 2002). "Liable" means "bound or obligated according to law or equity: RESPONSIBLE, ANSWERABLE." Id. at 1302. Those definitions, when read together, indicate that a party is entitled to "attorney fees * * * incurred" when the party has become obligated in law or equity, or otherwise is subject to, responsible, or answerable for the payment of the reasonable value of an attorney's services. The recent decision in White v. Jubitz Corp., 347 Or 212, 219 P3d 566 (2009) provides guidance regarding the meaning of the term "incur." (5) The plaintiff in White sought medical treatment for an injury. Id. at 215. Medicaid provided coverage for the plaintiff's medical costs and capped the amount that the plaintiff's medical providers could charge for their services. Id. The issue presented was whether the charges billed to the plaintiff by his medical providers but later written off were "reasonable charges necessarily incurred" under ORS 31.710, such that the plaintiff could claim those charges as economic damages. Applying the plain meaning of the term "incur," the court in White rejected the defendant's argument that the plaintiff had not incurred those charges: "A plaintiff who is injured and who obtains necessary medical treatment becomes 'liable or subject to' reasonable charges for that treatment and thereby 'incurs' them. ORS 31.710 does not require that a plaintiff also pay or otherwise satisfy those charges. Whether or by what means the plaintiff or a third party satisfies medical charges is a matter between the plaintiff, the third party, and the medical providers." Id. at 234. Accordingly, the court held that ORS 31.710 did not prevent plaintiff from claiming the disputed charges as economic damages. From our discussion of the ordinary meaning of "incur" and from White, we derive two legal principles applicable to this case. First, just as the plaintiff in White "incurred" charges for medical treatment upon receipt of that medical treatment, even though the plaintiff was not charged and did not pay the full cost of those services, so too did CCT "incur" attorney fees in this context upon performance of the attorney's services on CCT's behalf, even though CCT did not pay the full cost of the attorney's services. Second, whether or by what means a party to a legal action (or someone else) pays an attorney's bill has no bearing on the question of whether the party "incurred" attorney fees. Domingo, 325 Or at 389-90. The act or condition that causes a party to incur, or become liable for or subject to, an attorney fee is legally distinguishable from the act of paying for or otherwise satisfying a liability for that fee. Plaintiff's argument that a party does not incur attorney fees when those fees are billed to and paid by a third party fails because it blurs that distinction. Plaintiff, the losing party in this action, may not take advantage of CCT's separate agreement with Transnation that protects CCT, in whole or in part, from the burden of paying the full cost of attorney fees that CCT incurred. Under the circumstances in this case, CCT remained answerable for the cost of the attorney's services, whether or not the attorney billed CCT, if Transnation, for some reason, was unable to pay. With the foregoing legal discussion in mind, we return to the facts of this case. CCT received legal services from an attorney representing both CCT and Transnation in the defense of an action under the escrow contract. Upon performance of those legal services, CCT "incurred" attorney fees, valued by the trial court at $31,449.85. As noted, the attorney submitted his statement for those services to Transnation and Transnation paid for the services, all in accordance with the agency agreement between CCT and Transnation. The agency agreement governs the rights and liabilities between CCT and Transnation regarding attorney fees, but it has no effect on CCT's ultimate responsibility for the reasonable value of the legal services that the attorney performed for CCT.(6) Accordingly, we hold that the Court of Appeals erred in reducing the amount of CCT's attorney fee award. Under the escrow contract, CCT is entitled to recover the full amount of reasonable attorney fees incurred, i.e., $31,449.85.(7) Finally, we address Transnation's entitlement to an award of attorney fees. Transnation does not seek an additional award of fees separate and apart from the award of fees to CCT. The question, then, is whether the trial court erred in including Transnation as a judgment creditor with CCT on the award of attorney fees. Plaintiff contends that the escrow contract does not name Transnation as a party to that contract and, therefore, the contract does not authorize an award of attorney fees to Transnation. The trial court rejected plaintiff's argument, reasoning that plaintiff had alleged in its claims that, at all times, CCT was the agent for Transnation. The court also concluded that Transnation's agency relationship with CCT entitled Transnation to recover attorney fees from plaintiff in accordance with the escrow contract. The record confirms that CCT was Transnation's agent in the property transaction. Plaintiff does not come to grips with the legal consequences of the trial court's determination that CCT was Transnation's agent in the property transaction. The premise of the trial court's ruling was that a principal in Transnation's position acquires a right to enforce the attorney fee provision of the contract even if the contract does not so provide and even if the principal is not a signatory to the contract. On review, plaintiff presents no argument or authority suggesting that the trial court's premise was incorrect. The undisputed fact of the agency relationship between Transnation and CCT refutes plaintiff's claim that Transnation was a stranger to the contract. In the absence of some demonstration by plaintiff that Transnation's status as CCT's principal included no authority to enforce its agent's contract, the trial court did not err in overruling plaintiff's objection to Transnation's petition for attorney fees. As a consequence, the trial court correctly awarded attorney fees to Transnation, and the Court of Appeals erred in requiring a reduction in the award of attorney fees to which Transnation was entitled. The decision of the Court of Appeals on attorney fees is reversed. The decision of the Court of Appeals is otherwise affirmed. The judgments of the circuit court are affirmed. 1. ORS 20.096(1) (2007) provides: "In any action or suit in which a claim is made based 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 party that prevails on the claim, whether that party is the party specified in the contract or not, shall be entitled to reasonable attorney fees in addition to costs and disbursements." The legislature amended ORS 20.096(1) in 2009. Or Laws 2009, ch 285, § 2. The amendments are inapplicable to this case. All references in this opinion to ORS 20.096(1) are to the 2007 version of the statute. 2. The agency agreement between CCT and Transnation, quoted above, provided three exceptions to that liability limitation, i.e., three situations in which CCT would have been required to indemnify Transnation for all "loss, cost or expense, including attorney[] fees" incurred by Transnation. None of those exceptions is presented on the facts of this case. 3. On appeal, plaintiff also assigned error to the trial court's conclusion that plaintiff had alleged no present controversy that qualified for declaratory relief. The Court of Appeals determined that the trial court did not err in that respect. We limit our review to the attorney fee issue and thus express no opinion on plaintiff's entitlement to declaratory relief. 4. In the alternative, plaintiff argues that the Court of Appeals correctly reduced the attorney fee award to $2,500 pursuant to the indemnity agreement between CCT and Transnation. Although plaintiff challenges the trial court's authority to award attorney fees in any amount, plaintiff does not dispute the reasonableness of the amount of attorney fees awarded by the trial court. 5. The Colby and White decisions addressed the meaning of statutory terms, i.e., "attorney fees" and "incurred," respectively, not the terms of a contract. In construing a statute, we typically pursue the intent of the legislature, whereas, in construing a private contract, we endeavor to determine the intent of the contracting parties. As those cases illustrate, however, if the legislature has not supplied a special definition for a statutory term, we ordinarily infer that the legislature intended the term to receive its plain and ordinary definition. See Colby, 349 Or at 5 (addressing "plain and ordinary meaning" of the statutory term "attorney fees"); See White, 347 Or at 232-34 (examining meaning of statutory term "incurred" according to its ordinary dictionary definition). In a similar manner, we apply the plain and ordinary meaning of the terms "attorney fees" and "incurred" here, because the parties gave no special definitions to those terms in the escrow contract and we assume, therefore, that the parties intended them to carry their plain and ordinary definitions. For that reason, Colby and White are helpful here even though those cases involved statutory, rather than contractual, interpretation. 6. Plaintiff has focused its arguments about whether CCT "incurred" attorney fees on the assumed legal effect of Transnation's payment of the attorney's bills. To the extent that plaintiff contends that Transnation's agency agreement protected CCT from the outset of this litigation from incurring liability for attorney fees, we disagree. Notwithstanding the agency agreement, CCT "incurred" liability for attorney fees, under the theory of quantum meruit, and perhaps other theories, upon performance of the legal services on CCT's behalf. We do not address that question further, beyond that observation, because the parties did not address it before the trial court or the Court of Appeals. 7. Whether the agency agreement requires CCT to pay any of the proceeds of the attorney fee award to Transnation is not an issue presented by this case.

4af37b783ca56fde4064837cba84b78d73d46727f69f0607c4944ab7cfcde067

2011-03-25T00:00:00Z

98fc6c4d-39a3-4df5-9efc-c361313178c7

Adams v. Kulongoski

322 Or. 122, 902 P.2d 1191

oregon

Oregon Supreme Court

902 P.2d 1191 (1995) 322 Or. 122 Bruce ADAMS and Robert Crumpton, Petitioners, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, Respondent. SC S42356. Supreme Court of Oregon, In Banc. Argued and Submitted July 25, 1995. Decided October 5, 1995. *1192 Monica A. Smith, of Smith, Gamson, Diamond & Olney, Portland, argued the cause for petitioners on review. With her on the brief was Paul B. Gamson. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. VAN HOOMISSEN, Justice. Petitioners challenge a ballot title for a proposed initiative measure certified by the Attorney General to the Secretary of State. ORS 250.085 (1993).[1] Petitioners had filed *1193 with the Secretary of State written comments regarding the Attorney General's draft ballot title and, thus, are entitled to bring this proceeding. See ORS 250.067(1) (right to submit written comments); ORS 250.085(6) (1993) (court does not consider arguments not presented to Secretary of State as written comments). We review the certified ballot title for substantial compliance with ORS 250.035 (1993) and former ORS 250.039.[2] ORS 250.085(5) (1993). For the reasons that follow, we modify the ballot title, and certify it as modified to the Secretary of State. Petitioners submitted comments claiming that the Attorney General's draft caption, question, and summary were insufficient in various respects. Petitioners suggested alternative language. The Attorney General rejected petitioners' suggestions. Petitioners petitioned this court for review. Petitioners assert that the Attorney General's ballot title is underinclusive, because it focuses on how much money can be raised through property taxes but fails to adequately address who decides how the tax money can be spent. Petitioners propose the following alternative ballot title: "SUMMARY: Amends Constitution. Sets 1997-98 property taxes at lower of: 1994-95 tax, or 15 percent below 1995-96 tax. Limits annual increases to 3 percent. Limits revenue available for schools, other local services funded by property taxes. Lost revenue can be replaced only from state income tax, unless voters approve replacement fees, charges. State Legislature, not local voters, decides how to spread revenue cuts among local governments. *1194 For each $1 cut from safety services, $3 must be cut from non-safety services. Restricts new bonds." The Attorney General responds that the caption of the certified ballot title complies substantially with ORS 250.035 (1993). The Attorney General agrees that modifications to the question and summary may be needed, but proposes modifications that are somewhat different from those proposed by petitioners. The Caption. ORS 250.035(1)(a) (1993) provided that the ballot title of any measure to be initiated or referred shall consist of: Petitioners argue that, although the general subject of the ballot title in question here is property taxes, the Attorney General's title is too narrow. Petitioners assert that the caption should inform the voters that the measure would entail a significant loss of local control and that the Attorney General's caption fails in that regard. The Attorney General responds that this court should not consider petitioners' argument on this point because of the provision of ORS 250.085(6) (1993) that the court "shall not consider arguments concerning the ballot title not presented in writing to the Secretary of State," except under specific circumstances not present in this case. It is true that the caption suggested by petitioners to the Secretary of State was not worded identically to the caption petitioners presently suggest to this court. Rather than the words "Legislature Allocates Revenue Losses Among Local Governments," petitioners suggested to the Secretary of State the words "Reduces Local Control over Expenditures." Although the suggested words were not identical, petitioners' arguments against the Attorney General's captionthat it failed to inform voters that the initiative would shift control of revenue expenditures away from local government and to the legislatureis the same. We conclude that petitioners sufficiently raised the issue during the comment process. ORS 250.085(6) (1993). On the merits, the Attorney General responds that, although petitioners' suggested phrase does reflect an important aspect of the measure, adopting this phrase would require the deletion of two other crucial phrases pertaining to the fact that the initiative measure would amend the constitution and that it would forbid replacing lost tax revenues with other fees without voter approval. We conclude that the Attorney General's caption "reasonably identif[ies] the subject of the measure"a property tax limitation. ORS 250.035(1)(a) (1993). The Question. ORS 250.035(1)(b) (1993) provided that a ballot title shall consist of: Petitioners argue that the chief purpose of the measure is more than simply to limit how much property tax is collected; it places significant restrictions on how taxes may be spent and gives the legislature control over spending. Petitioners argue that the Attorney General's question focuses narrowly on the amount of property taxes allowed, thus excluding mention of the other aspects of the measure's chief purpose. Petitioners suggest the following alternative question: The Attorney General agrees that it is proper to frame the question in such a manner as to include information about how the measure would strengthen state control over local government spending. The Attorney General argues, however, that petitioners' "local control" phrasing is not sufficiently specific and, instead, suggests that the question be changed to read: "Shall constitution limit property taxes; forbid replacement fees, charges unless *1195 voters approve; require legislature to spread cuts among local governments?" We agree with the parties that the issue of the legislature's role is part of the "chief purpose" of the measure and that its exclusion from the question prevents voters from learning about that aspect of the measure. The present question, therefore, is not in substantial compliance with ORS 250.035(1)(b) (1993). We next turn to a determination of the appropriate wording to be used in the question. The relevant portion of the initiative provides: That wording requires the legislature to do more than "spread cuts among local governments," as the Attorney General's alternative ballot title suggests. On the other hand, petitioners' suggested wording is, as the Attorney General correctly argues, too generic. It also may be somewhat misleading in that it emphasizes the loss of "local control," yet the subsection it describes could fairly be said to direct the legislature to minimize loss of local control. We conclude that the question should be modified as follows: The Summary ORS 250.035(1)(c) (1993) provided that a ballot title shall consist of: Petitioners assert that the Attorney General's summary is insufficient to inform voters of the breadth of the measure's impact. See Fred Meyer, Inc. v. Roberts, 308 Or. 169, 175, 777 P.2d 406 (1989) (summary should "be worded so that voters will understand the breadth of its impact"). In particular, petitioners point out that the summary does not state that the measure would cause local government entities to lose funding. Petitioners also argue that the Attorney General's summary fails adequately to cover another major effectthat of creating a shift, such as that created by the passage of Ballot Measure 5 in 1990, of the financial burden of schools and other operations currently funded by local property taxes to the state General Fund. Regarding petitioner's first point, the Attorney General responds that the summary already implicitly tells voters that the measure would limit local government revenues: (a) in the second sentence, where it states that property taxes would be reduced; (b) in the third sentence, where it states that future property taxes would be limited; (c) in the fourth sentence, which specifically mentions "revenue cuts among local governments"; and (d) in the fifth sentence, where both "budget cuts" and "total cuts" are mentioned. On petitioners' second point, the Attorney General agrees that the summary should be altered to make it clearer to voters that the measure could shift the financial burden of schools and other operations currently funded by local property taxes to the state General Fund. The Attorney General suggests, therefore, as an alternative, that the summary be modified to delete: We agree with petitioners that the phrase "to * * * prioritize public safety, and minimize loss of local control" does little to describe any "major effect" of the measure and may be deleted. The Attorney General concedes that those provisions may merely be precatory and unenforceable. That concession appears to be well taken and, given the concession, it would be anomalous to describe those provisions as having any "major effect" to be described in the summary. Regarding petitioners' proposed substitute language, the Attorney General is correct that the limitations on local government revenues can be inferred from other statements in the summary. However, because those limitations are undoubtedly a major effect of this measure, we agree with petitioners that this point should be made explicit in the summary. In regard to petitioners' second concern, we believe that the Attorney General's alternative wording adequately addresses the issue of the shift of the financial burden of various operations currently funded by local property taxes to the state General Fund. Accordingly, we certify the following ballot title to the Secretary of State: Ballot title certified as modified. This decision shall go into effect in accordance with ORAP 11.30(9). UNIS, J., dissenting. I adhere to my view that, to the extent that ORS 250.085(5) (1993) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section I, of the Oregon Constitution. Rooney v. Kulongoski (Elections Division # 13), 322 Or. 15, 55, 902 P.2d 1143 (1995) (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction. [1] ORS 250.085 (1993) provided in part: "(2) Any elector dissatisfied with a ballot title for an initiated or referred measure certified by the Attorney General and who timely submitted written comments on the draft ballot title may petition the Supreme Court seeking a different title. The petition shall state the reasons the title filed with the Secretary of State does not substantially comply with the requirements of ORS 250.035 and 250.039. "* * * * * * * "(5) The court shall review the title for substantial compliance with the requirements of ORS 250.035 and 250.039, and shall certify a title meeting this standard to the Secretary of State. "(6) When reviewing a title prepared by the Attorney General, the 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." ORS 250.085(5) (1993) requires this court to draft and certify a new ballot title if the ballot title certified by the Attorney General does not comply substantially with ORS 250.035 and ORS 250.039. In Rooney v. Kulongoski (Elections Division # 13), 322 Or. 15, 902 P.2d 1143 (1995), this court, with two justices dissenting, held that that requirement does not violate the principle of separation of powers embodied in Article III, section 1, of the Oregon Constitution. [2] The 1995 legislature made significant amendments to ORS 250.035 and repealed ORS 250.039. Or. Laws 1995, ch. 534, §§ 1, 19. Those changes, however, do not apply to the ballot title in this case. See Or. Laws 1995, ch. 534, § 20 (provisions of act apply to initiative and referendum petitions for which a prospective petition is filed on or after effective date of act). Because the prospective petition in this case was filed before July 7, 1995, the effective date of the act, the earlier version of the law applies.

c183517a43cd517020c92066cb2cb10ade04c381b3dcee56e8836f917ee14268

1995-10-05T00:00:00Z

398f5081-77e1-45ee-a16a-50a6b4f2de58

State v. Barger

oregon

Oregon Supreme Court

FILED: January 6, 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) On review from the Court of Appeals.* Argued and submitted September 14, 2010. Kristin A. Carveth, 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. Erika L. Hadlock, Senior 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 David B. Thompson, Interim Solicitor General. Before De Muniz, C. J., and Durham, Balmer, Kistler, Walters, and Linder, J.J., and Gillette, J. pro tempore ** GILLETTE, J. pro tempore 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 with instructions to enter a judgment of acquittal.  De Muniz, C. J., concurred and filed an opinion. Kistler, J., dissented and filed an opinion, in which Linder, J., joined. *Appeal from Lane County Circuit Court, Mustafa T. Kasubhai, Judge. 233 Or App 621, 226 P3d 718 (2010). **Landau, J., did not participate in the consideration or decision of this case. GILLETTE, J. pro tempore This criminal case involves the following question:  Can a person be found guilty of "possess[ing] or control[ling]" digital images of sexually explicit conduct involving a child, as that phrase in used in ORS 163.686(1)(a),(1) based on evidence showing only that the person searched for and found such images through the Internet on his or her computer?  Although the trial court in the present case acknowledged that "the world of the Internet presses * * * the boundaries of what we normally understand to be possession and control," it ultimately concluded that a jury could find defendant guilty under ORS 163.686(1)(a) based solely on such evidence.  As we explain below, we disagree with that conclusion:  The statute requires something more than simply accessing and looking at incorporeal material of the kind involved here to "possess" or "control" that material.  Accordingly, we reverse both the circuit court judgment and the Court of Appeals decision affirming that judgment.  In the course of investigating a report that defendant had sexually abused a child, a City of Eugene Police Officer, Sullivan, talked to defendant's wife, who told him that there was some "weird" material on the couple's home computer.  Defendant's wife showed the computer to Sullivan, who looked at the computer's web-address history and saw three addresses that, based on their titles, seemed suspicious. A few weeks later, the Eugene police asked defendant's wife if she would allow them to take the computer and examine it.  She consented.  Thereafter, Eugene police detective Williams, who was certified in computer forensics, took possession of the computer, made a copy of the hard drive, and used certain forensic software to examine that hard drive.(2)  Based on Williams's findings, defendant was charged with eight counts of Encouraging Child Sexual Abuse in the Second Degree, ORS 163.686, by possessing or controlling a visual recording of sexually explicit conduct involving a child.  Each charge was based on a separate digital image that Williams found in the computer's "temporary internet file cache."  As Williams later explained at defendant's jury trial, temporary Internet files found in a computer are the product of an automatic function of a computer's web browser.  Whenever a computer user visits a web page, the browser creates a copy of the web page and stores it in a temporary Internet file "cache," where it remains until the space is used up and written over, or it is erased.  If a user calls up the same web page at some later date, the browser simply accesses the copy from the temporary files, rather than going through the slower process of downloading the same information from the web page.  Computer users with ordinary skills would not necessarily be aware of that function or know how to go about accessing information stored in the temporary Internet file cache. Williams testified that, when he received the computer, only one of the three addresses that had triggered Sullivan's suspicions remained in the web-address registry but that, by examining other Internet activity files, he was able to identify two other suspicious web addresses that someone had accessed in the recent past.  Williams stated that he checked all three web sites and that all appeared to contain pornographic images of prepubescent girls and girls in their early teens.(3) Williams testified that he then searched for similar images that might be stored on the computer's hard drive, using certain words and phrases commonly used in child pornography.  He acknowledged that he did not find any images of that kind that had been purposefully copied and saved in any user's personal files.  He did, however, discover sexually explicit images of prepubescent girls in the computer's temporary Internet file cache.  The prosecution then presented the specific evidence that it asserts established defendant's guilt of the eight charges of Encouraging Child Sexual Abuse.  The evidence included the eight digital images, all of which Williams had discovered in the temporary Internet file cache of defendant's computer, and which were the bases of the charges.  Williams acknowledged that there was nothing about the images that identified what web site they had come from and that there was no way to know with absolute certainty whether the images had been accessed intentionally by a user or "were the result of pop-up windows or browser redirects."  Williams further explained, however, that pornographic pop-ups and redirects occur almost exclusively when a computer user visits another pornographic web site.  After presenting Williams's testimony, the state rested.  Defendant then moved for a judgment of acquittal, arguing that there was no evidence that the eight images at issue had made their way onto the hard drive through any intentional or knowing action by him and that, even if it was possible to infer that defendant had accessed the images through web browsing, that inference was insufficient to establish defendant's knowing possession or control of those images.  The trial judge denied defendant's motion, and the jury ultimately returned guilty verdicts on all eight charges.  On defendant's appeal, the Court of Appeals affirmed without opinion.  State v. Barger, 233 Or App 621, 226 P3d 718 (2010).  We allowed defendant's petition for review. Before this court, defendant argues that, although the state's evidence might support an inference that he had accessed and viewed the images at issue, the evidence would not support an inference that he ever knowingly "possess[ed] or control[led]" them within the meaning of ORS 163.686(1)(a).  Because there is no evidence in the record suggesting that defendant knew about the computer's automatic caching function or how to access material in the cache, the state does not now argue, and never has argued, that defendant "knowingly possess[ed] or control[led]" the images at issue insofar as they existed in his computer's temporary Internet file cache.  Instead, the state's position is a more simple one.  It argues that, because defendant's computer gave him the capability to print, save, e-mail, and otherwise manipulate the images in question, his actions of intentionally accessing one or more web sites that contained the proscribed images, thus causing those images to be displayed on his computer screen, constituted "possess[ion] and control[]" in the required sense.  The question for this court thus is a narrow one:  Can a computer user be found to have knowingly "possess[ed] or control[led]" digital images of child sexual abuse, within the meaning of ORS 163.686(1)(a)(A)(i), based solely on evidence showing that, at some time in the past,he intentionally accessed those digital images using his computer's Internet browser and -- by reasonable inference -- looked at them?(4) The answer to that question depends on what the legislature that enacted ORS 163.686(1)(a) intended by the phrase "possesses or controls" and on whether an activity that is commonplace now but was far less common at the time of the statute's enactment(5) comes within the meaning that the legislature intended for that statute.  To determine the legislature's intent, we employ the methodology set out in ORS 174.020 and State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009).  Specifically, we first consider the text and context of the statute and then, if we so choose, consider any legislative history that the parties might proffer.  We begin with the part of the statutory text that is relevant to the charges against defendant.  ORS 163.686 provides, in part: "(1) A person commits the crime of encouraging child sexual abuse in the second degree if the person: "(a)(A)(i) Knowingly possesses or controls any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person; [and] "* * * * * "(B) Knows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse[.]" As our synopsis of the arguments suggests, the operative words in the present inquiry are the verbs "possesses" and "controls."  The verb "control" is not statutorily defined, but its common meaning, as set out in Webster's Third New Int'l Dictionary 496 (unabridged ed 2002), is "to exercise restraining or directing influence over:  REGULATE, CURB."  The word "possess," on the other hand, is statutorily defined:  For purposes of most Oregon criminal statutes, including ORS 163.686, it means "to have physical possession or otherwise to exercise dominion or control over property."  ORS 161.015(9).  As this court explained in State v. Fries, 344 Or 541, 545-47, 185 P3d 453 (2008), that definition of the word "possess" encompasses two alternative ways of possessing property that this court traditionally has recognized:  (1) physically controlling the property ("actual" possession) and (2) exercising some other kind of dominion or control over the property ("constructive" possession).  Put differently, to "possess" a thing traditionally means to control it, and "actual possession" and "constructive possession" are simply different types of control.  Id.; see also State v. Connally, 339 Or 583, 591, 125 P3d 1254 (2005) (making a similar point about the ordinary dictionary meaning of the term "possession"). Because the idea of control is inherent in the statutory term "possess," it is odd that the legislature chose to define the crime of encouraging child sexual abuse in terms both of "possessing" and of "controlling" certain kinds of images.  The state explains that choice as a considered decision to recognize that "control" itself may be both actual and constructive, and to define the crime set out in ORS 163.686(1)(a) in terms of (1) actual possession, i.e., physical control of an object; (2) constructive possession, i.e., "dominion or power" over the object that is not necessarily exercised; and (3) actual control, i.e., active restraint or direction of the object.   That explanation is creative, but it is not persuasive.  We think it highly unlikely that the legislature engaged in that kind of parsing of terms or that it even recognized that, in light of the statutory definition of the term "possess," the inclusion of the term "control" was duplicative.  Instead, we believe it is more logical to conclude that the legislature's choice of words reflects its desire to ensure that the crime not be limited to a narrow, solely physical, concept of possession.  In other words, it would appear that the legislature used two words to convey the same broad meaning that ORS 161.015(9) actually conveys in the single word "possess" and that, at least in the criminal law context, this court traditionally has ascribed to that word; viz., to physically or bodily possess or control something or to exercise dominion or control (i.e., a restraining or directing influence) over it in some other way.  See, e.g., State v. Oare, 249 Or 597, 599, 439 P2d 885 (1968) (crime of unlawful possession of marijuana includes actual and constructive possession); State v. Barnes, 120 Or 372, 379-80, 251 P 305 (1927) (crime of unlawful possession of intoxicating liquor includes actual and constructive possession). At this stage of our interpretive process, we also consider the statutory context in which the wording under consideration appears.  Defendant points to a contextual clue -- a related section of the provision under consideration -- that we agree is relevant.  The "possesses or controls" wording at issue in this case appears in a subparagraph of ORS 163.686 -- subparagraph (1)(a)(A)(i) -- that describes one way of committing the crime of Encouraging Child Sexual Abuse in the Second Degree.  However, the next subparagraph of the statute describes an alternative way to commit the same crime.  It states that a person commits the crime by "Knowingly pay[ing], exchang[ing] or giv[ing] anything of value to obtain or view a photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person." ORS 163.686(1)(a)(A)(ii) (emphasis added).(6) There are two significant things about subparagraph (ii).  The first is that it is an alternative definition of the same crime -- Encouraging Child Sexual Abuse in the Second Degree -- that is defined in subparagraph (i), discussed at length above.  The second is that it criminalizes the actions of paying to obtain and view visual recordings of child sexual abuse.  Although other state legislatures have chosen to criminalize the act of viewing child pornography in and of itself,(7) the wording of ORS 163.686(1)(a)(A)(ii) demonstrates to us that the Oregon legislature made a different choice:  It chose not to criminalize the act of viewing child pornography, unless that act is accompanied by paying, exchanging, or giving "anything" of value.  (That same requirement is true of the act of "obtaining" child pornography.)  That legislative choice is relevant to our reading of ORS 163.686.  Whatever "knowingly possess[ing] or control[ling]" recordings of child sexual abuse might mean in subparagraph (1)(a)(A)(i), it involves something different than simply "obtain[ing]" or "view[ing]" digital images:  The legislature clearly has chosen to criminalize the act of "view[ing]" or "obtain[ling]" visual recordings of sexually explicit conduct involving children under ORS 163.686(1)(a)(A)(ii) only if that act is accompanied by the payment, exchange, or giving of something "of value," an element that is not required under ORS 163.686(1)(a)(A)(i).(8) A final source of contextual evidence is the body of cases that interpret or discuss the definition of "possess" provided by ORS 161.015(9) -- the statute that, as discussed, applies to ORS 163.686(1)(a)(A)(i) and therefore expresses the meaning that the legislature intended to convey by the phrase "possesses and controls" in ORS 163.686(1)(a)(A)(i).  In general, those cases deal with possession of tangible objects -- firearms, drugs, forged checks, and the like -- and thus are not perfect analogies for determining how the concepts of actual and constructive possession apply to a digital image that once appeared on a computer screen and now is retained in some form on the computer's hard drive.  Certain of the cases are relevant, however, to the extent that they show that even constructive possession of a thing, i.e., dominion or control over it, cannot be established merely by showing that the thing was in close proximity or physically available to a potential possessor.  See, e.g., State v. Casey, 346 Or 54, 203 P3d 202 (2009) (fact that visitor's gun, which had been left on counter in defendant's home, was in close proximity to defendant when he went into home to retrieve items for police officers waiting outside would not support defendant's conviction on charge of felon in possession of firearm); see also State v. Daniels, 348 Or 513, 234 P3d 976 (2010) (rejecting state's claim that methamphetamine found in defendant's home, in a purse that belonged to defendant's girlfriend, was constructively in defendant's possession because it was available for his use).(9) With the foregoing background concerning the meaning of the phrase "possesses or controls" in ORS 163.686(1)(a)(A)(i) in mind, we turn to the specific question that this case presents:  Does a computer user's act of accessing an Internet web page and intentionally calling digital images of child sexual abuse onto a computer screen constitute "possess[ion] or control[]" of those images within the meaning of that statute?  The state asserts that it does, and offers three different explanations for its answer.  First, the state contends that, insofar as a computer user has physical control over a computer screen, he or she has physical control ("actual" possession) of any images that appear on it.  The state points to the fact that a computer user can move his or her monitor from one place to another and thereby display the image appearing on the screen wherever he or she chooses.  We think, however, that that argument misses the point:  The intangible nature of a web image is analogous to seeing something that a visitor has temporarily placed in one's own home.  One may be aware of it, may even have asked the visitor to bring it for viewing, but one does not thereby possess the item. The state argues, next, that a computer user "controls" a digital image of child pornography by actively navigating to the web site where it resides, thereby bringing the image to his computer screen.  We think, however, that this argument suffers from some of the same defects as the preceding one:  Looking for something on the Internet is like walking into a museum to look at pictures -- the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them.  Finally, the state argues that, to establish that defendant "controlled" the images at issue at the time that they appeared on his computer screen, the state need only show that, at that time, defendant had the ability to direct or influence the images (by, for example, showing that he had the ability to save, copy, print, or e-mail them), and that it need not show that defendant actually exercised any such influence or control.  In support of that theory, the state points to certain of this court's cases that describe constructive possession in terms of a "right" to control the object in question.  See, e.g., Oare, 249 Or at 599 ("evidence of the control or the right to control is necessary to constructive possession"); State v. Weller, 263 Or 132, 501 P2d 794 (1972) (quoting Oare to same effect); State v. Barnes, 120 Or 372, 380, 251 P 305 (1926) (jury could conclude that defendant constructively possessed intoxicating liquor to the extent that evidence showed that he "claimed the right and had the power to control, manage and dispose of the same").  The state's position is problematic in a number of respects.  First, it assumes that, when this court in Oare and other cases described constructive possession in terms of the "right" to control a thing, it meant nothing more than a bare and practical "ability" to exercise a directing or restraining influence.  We do not read the cases that way.  Oare and Weller both involved property that was physically present in places to which the defendants had access, so that the defendants physically could have taken up and moved or otherwise used the items.  In both cases, this court found that physical ability to be insufficient by itself to support a charge of constructive possession.  See Oare, 249 Or at 599; Weller, 263 Or at 133 (both to that effect).  And, although this court in Barnes held that a jury could infer that the defendant claimed a right to control (and therefore possessed) the moonshine whiskey at issue in that case, its conclusion in that regard was based on the existence of evidence that the defendant was not only at the site where the whiskey was concealed, but had tools and containers designed to remove the whiskey from its hiding place.  We conclude from the foregoing, then, that when the court in Oare and other cases referred to a "right" to control a thing, it was referring to something akin to a legal right to do so -- a concept that is useful in discussing the distinction between "ownership," "possession," and mere "custody" of property, but one that is not helpful here.(10) What is more, there is no support in this court's cases for the idea that a mere unexercised ability to manipulate a thing can constitute constructive possession of it.  Indeed, State v. Casey, discussed earlier, is to the contrary.  In that case, this court considered and rejected the state's contention that a visitor's gun, which had been left on a counter in the defendant's trailer, was under the defendant's "dominion and control" (and, thus, in his constructive possession) when he went into the trailer to retrieve certain items for police officers who were waiting outside.  346 Or at 62-63.  It is clear from that decision that the mere fact that an object is within a person's reach, and that the person thus has a physical ability to exercise some directing or restraining influence over it, is insufficient to establish constructive possession of the object.  And, to the extent that, in Daniels, Oare and Weller, this court also declined to infer possession or control from the mere fact of proximity or availability, those cases convey a similar message.(11) A final problem with the state's theory about the meaning of "control" is that it would sweep in more factual scenarios than we believe the legislature could possibly have intended.  If the mere ability to cause an item to appear on a computer screen is sufficient to constitute "control" or constructive "possession" of the item for purposes of ORS 163.686(1)(a)(A)(i), then any person who uses the Internet (and, indeed, any person who is within physical reach of some tangible item of child pornography) can be deemed to be guilty of violating that statute, at least insofar as the element of possession or control is involved.  Of course, the state contends that a person who already has accessed an image of child sexual abuse on his computer has a more direct and immediate ability to save, print, or otherwise control that image than does a computer user who has not accessed the image, and that that directness and immediacy makes the difference.  But that argument still is nothing more than the assertion, rejected by this court most recently in Casey, that the ability to possess or control a thing means that one actually is possessing or controlling it.(12) In a final version of that argument, the state insists that a person who uses a computer to look at images of child pornography does more than just view the images that he brings to the screen.  It contends that, because computers have the capacity to save, print, post, and transmit those images "with only a few mouse clicks," web browsing for child pornography is qualitatively different from other methods of "viewing" child pornography, and falls within the intended meaning of the phrase "possesses or controls" in ORS 163.686(1)(a)(A)(i).  But we think that our recent holdings in Casey and Daniels fully answer that argument, particularly where the state fails to explain why existence of those capacities in the viewing device would transform viewing into possession.  Neither do we see anything in the statutory wording that would support that idea. For the foregoing reasons, we are not persuaded by the state's theories as to how and why, in the absence of some additional action by a computer user beyond that proved here, the user could be deemed to "possess" or "control," in any sense that this court heretofore has recognized, a digital image that he or she has called up on a computer screen.  Instead, we are satisfied that the statute before us, ORS 163.686(1)(a)(A)(i), when read in the light of its context (particularly ORS 163.686(1)(a)(A)(ii)), embodies a considered legislative choice not to criminalize the mere "obtaining" or "viewing" of child pornography without consideration.  Thus, we conclude that the acts at issue here -- navigating to a website and bringing the images that the site contains to a computer screen -- are not acts that the legislature intended to criminalize.(13) Applying our conclusions to the record in this case, we hold that defendant's motion for a judgment of acquittal should have been granted.  There is no evidence in the record that, at any time, defendant "possess[ed] or control[led]" any of the eight images that are the subject of the charges against him under ORS 163.686(1)(a)(A)(i). 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 with instructions to enter a judgment of acquittal. DE MUNIZ, C. J., concurring. I agree with the majority's conclusion in this case and in State v. Ritchie, ___ Or ___, ___ P3d ___ (January 6, 2011), that defendants did not violate ORS 163.686(1)(a)(A)(i) when they viewed pornographic images on the Internet.  Although the legislature might have intended that ORS 163.686 criminalize "the mere 'obtaining' or 'viewing' of child pornography without consideration," the words the legislature used in the statute do not reveal that intent.  State v. Barger, ___ Or ___, ___ P3d ___ (date) (slip op at ___).  In agreeing with the majority's conclusion, I wish to point out that the prosecution made a choice in both these cases not to argue that the legislature had intended that the "possession or control" element of ORS 163.686 could be satisfied by the storage in the computer's temporary internet cache, and later in unallocated space in the computer's hard drive, of the digital images that each defendant had viewed.(1)  That said, I believe it is also important to identify the chasm that presently separates the statutory texts at issue here from the technological realities of the digital age in which we live. As the majority correctly identifies, the crime of encouraging child sexual abuse in the second degree, ORS 163.686, requires, among other things, the knowing possession or control of "any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child[.]"  Although the Internet was a well-established fact of life at the time that ORS 163.686 was enacted in 1995, nothing in that statutory text suggests that the legislature expressly intended to capture the kind of digital computer images that purveyors of child pornography now use as their principal means of communication and distribution.  See Ty E. Howard, Don't Cache out Your Case: Prosecuting Child Pornography Possession Laws Based On Images Located In Temporary Internet Files, 19 Berkeley Tech LJ 1227, 1228 (2004) (noting that, for defendants presently collecting and trafficking in child pornography, the media of choice are now digital images and the medium of choice is the Internet).  Instead, and unfortunately, the legislature appears to have assumed that the proscribed pornographic images would appear on or in tangible objects -- photographs, motion pictures, videotapes, or other visual recordings. In 1997, when the legislature enacted ORS 163.688 and ORS163.689,(2) the  legislature demonstrated that it was capable of proscribing the possession of digital images, like those at issue here, for purposes of the Oregon Criminal Code.  Those statutes made it a crime to knowingly possess and use -- or attempt to use -- "any visual depiction of sexually explicit conduct involving a child," for the purpose of inducing another child to engage in sexual acts.  When it enacted those statutes, the legislature specifically defined the terms "visual depiction" to include computer-related images: "As used in ORS 163.670 to 163.693: * * * * * "'Visual depiction' includes, but is not limited to, photographs, films, videotapes, pictures or computer or computer-generated images or pictures, whether made or produced by electronic, mechanical or other means." ORS 163.665(4) (emphasis added). Unfortunately, the legislature did not add those, or similar terms, to Oregon's other child pornography statutes.  Today, the phrase "visual depiction" and its attendant definition currently find use only in ORS 163.688 and ORS 163.689, and that, in turn, has created the interpretive conundrum that this court faced in this case and in Ritchie.  Clearly, the legislature knows how to expressly criminalize certain kinds of computer media when it wants to: it did so with respect to ORS 163.688 and ORS 163.689.  It is equally clear, however, that at the same time that it created and defined the phrase "visual depiction," the legislature could have incorporated that term or something similar throughout the statutes at issue here, but did not.  The upshot of that omission is that, for the purposes of ORS 163.686, possessing or controlling a "photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child" is best interpreted under our framework for statutory analysis as a reference to the possession or control of some corporeal item -- a tangible, physical object -- rather than its purely digital counterpart.  The statute we interpret today appears not to have been written for the digital world in which we live, making the legislature's intent very difficult to discern and apply in the cases at issue here.   Other states have anticipated or experienced similar statutory disconnects with regard to Internet child pornography prosecutions; their response has often been to expand the relevant statutes to expressly capture proscribed computer-based activities.  In 2010, for example, Alaska amended its provisions criminalizing the possession of child pornography by adding the statutory text highlighted below: (a) A person commits the crime of possession of child pornography if the person knowingly possesses or knowingly accesses on a computer with intent to view any material that visually depicts conduct described in AS 11.41.455(a) knowing that the production of the material involved the use of a child under 18 years of age who engaged in the conduct or a depiction of a part of an actual child under 18 years of age who, by manipulation, creation, or modification, appears to be engaged in the conduct. AS 11.61.127(a) (emphasis added).  In 2007, Virginia similarly amended its definition for "sexually explicit visual material" as it related to the state's child pornography laws in order to expressly include images contained on the temporary internet cache of a computer: "For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, the term "sexually explicit visual material" means a picture, photograph, drawing, sculpture, motion picture film, digital image, including such material stored in a computer's temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent." VCA 18.2-374.1(A) (emphasis added). In writing today, I do not presume to instruct Oregon lawmakers on how to go about their business.  My objective is simply to demonstrate that, with regard to the crime of encouraging child sexual abuse, Oregon can brings its laws into step with contemporaneous technological realities just as other states have done.  Oregon's citizens -- and its justice system -- will all benefit as a result. KISTLER, J., dissenting. I would affirm the Court of Appeals decision and the trial court's judgment for the reasons stated in the dissenting opinion in State v. Ritchie, 349 Or ___, ___ P3d ___ (January 6, 2011) (Kistler, J., dissenting). Linder, J., joins in this opinion. 1. The pertinent text of ORS 163.686(1)(a) is set out at ___ Or at ___ (slip op at 6). 2. As the case comes to us, there is no issue concerning the validity of the wife's consent to Williams's possession and examination of defendant's computer. 3. Again, as the case comes to us, defendant does not argue that the evidence was insufficient to establish that the various images that Williams identified were of "sexually explicit conduct involving a child," as that phrase is used in the governing statute, ORS 163.686. 4. This case therefore presents no question concerning defendant's possible criminal liability if, for example, he understood the temporary Internet file cache function on his computer and knew how to access that location.  We express no opinion on that issue. 5. ORS 163.686 was adopted, together with several other provisions relating to visual recordings of child sexual abuse, in 1995.  Or Laws 1995, ch 768, § 3. 6. As is true of subparagraph ORS 163.686(1)(a)(A)(i), that subparagraph applies only if the person "[k]nows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse."  ORS 163.686(1)(a)(B). 7. See, e.g., Ark Code Ann § 5-27-304(a)(2)  (no person shall "solicit, receive, purchase, exchange, possess, view, distribute, or control" child pornography); NJ Stat Ann § 2C: 24-4(b)(5)(b) (making it a crime to "knowingly possess[] or knowingly view[]" child pornography; Ohio Rev Code Ann § 2907.323(A)(3) (no person shall "possess or view" child pornography).  (Emphasis added in each parenthetical.) 8. The dissent suggests a different reading of subsection (ii).  It argues that the gravamen of the subsection is the act of payment, so that the ultimate success of the payor in actually obtaining or viewing any child pornography is irrelevant.  That is, the dissent reads the subsection as a prohibition on attempting to obtain or possess child pornography.  Thus, according to the dissent, the subsection should be read as if it made it a crime to"[k]nowingly pay * * * anything of value to obtain or view[, or to attempt to obtain or view,] [child pornography]."  Such a construction of the wording is clever, but we think that the method of achieving it -- adding words that the legislature did not use -- and the resultant significant expansion of the scope of the prohibition needs a far stronger justification than bare linguistic plausibility.  We thus reject the dissent's reading of that subsection. 9. The same message is conveyed in other cases that discuss the common-law concepts of actual and constructive possession, which ORS 161.015(9) ultimately codified.  See, e.g., Oare, 249 Or at 598-600 (fact that the defendant was present at the attempted disposal of marijuana in someone else's home was insufficient to find constructive possession); State v. Weller, 263 Or 132, 501 P2d 794 (1972) (fact that defendant lived in a bedroom in a house also occupied by other persons was insufficient basis for finding that defendant had control or right to control marijuana plants found in another (unoccupied) bedroom in the house). 10. Thus, in State v. Keelen, 103 Or 172, 203 P 306 (1922), this court quoted a Kentucky case for the proposition that "'there is a difference between custody and possession.  Possession is the present right and power to control a thing.  A person has the custody of property, as distinguished from the possession, where he merely has the care and charge of it for one who retains the right to control it, and who therefore retains constructive possession.'" Id. at 182-83 (quoting Shipp v. Patten, 123 Ky 65, 93 SW 1033 (1906)). 11. The state finds a contrary message in State v. Miller, 238 Or 411, 395 P2d 159 (1964).  In Miller, the court concluded that a jury could find that a defendant had violated the statutory prohibition on felons having any firearm "in his possession or under his custody or control," ORS 166.270 (1963), when he drove a car some 400 miles knowing that two loaded guns that purportedly belonged to a passenger in the car were under the car's front seat and within his reach, and that another gun was in the glove compartment of the car.  Id. at 412-13.  But the case involved more than the simple availability of the guns to the defendant:  The guns were found in a vehicle that the defendant had borrowed from a relative and that the defendant was driving, other suspicious items were found in the car, and another person had accused the defendant and his passenger of "rolling" him.  Id.  Moreover, in reaching its conclusion, the court did not discuss the meaning of the concepts of actual and constructive possession but, instead, simply cited and followed a Pennsylvania case with similar facts.  Id. at 413, citing Commonwealth v. Whitman, 199 Pa Super 631, 186 A2d 632 (1963).  As such, the case does not appear to stand for the proposition for which the state offers it, viz., that this court has concluded in the past that the mere ability to control some object amounts to constructive possession or control of that object.  12. Our reservations about the state's attempt to define "control" solely in terms of ability to exercise directing or restraining influence should not be interpreted as acceptance of defendant's theory that constructive possession or control requires active exercise of such influence in all cases.  It is clear, for example, that when a person who has a property interest in some item places that item in the custody of another person, he or she can retain constructive possession by retaining the power to control the item, regardless of whether he or she actively exercises that power.  But, as we have explained, that is not this case. 13. In so concluding, we recognize that some courts in other jurisdictions have reached a different conclusion on the basis of theories that are similar, if not identical, to the ones that the state has advanced in this case.  See, e.g., People v. Josephitis, 394 Ill App 3d 293, 914 NE 2d 607 (2009) (defendant who actively sought out illicit websites, paid for access, maintained websites among his "favorites" and viewed numerous images of child pornography, and who had the ability to copy, print, or send images to others, "possessed" the images he viewed); Commonwealth v. Diodoro, 601 Pa 6, 970 A2d 1100 (2009), cert den, ___ US ___, 130 S Ct 200, 175 L Ed 2d 127 (2009) (accessing and viewing child pornography over the Internet constitutes "control" of the pornography sufficient to support conviction of crime of possessing child pornography); United States v. Kain, 589 F3d 945 (8th Cir 2009) (a computer user who intentionally accesses child pornography images on a website gains actual control over the images).  We note, however, that the analyses in those cases provide little or no help for our analysis of the relevant Oregon statutory text and context.  Certainly, none of the cases involves statutes that effectively announce that "viewing" child pornography is not, by itself, unlawful. We also note that some other courts have concluded, as we do, that accessing child pornography on the Internet does not constitute possession or control of such materials.  See, e.g., Worden v. State, 213 P3d 144 (Alaska App 2009); Barton v. State, 648 SE 2d 660 (Ga App 2007). 1. Nor did the state contend in Ritchie, with respect to counts 1 through 4, that the "possession or control" element of ORS 163.686(1)(a)(A)(i) was satisfied insofar as the contents of the zip file associated with those counts had been stored in unallocated space on the relevant hard drives. 2. ORS 163.688 provides: "(1) A person commits the crime of possession of materials depicting sexually explicit conduct of a child in the first degree if the person: "(a) Knowingly possesses any visual depiction of sexually explicit conduct involving a child or any visual depiction of sexually explicit conduct that appears to involve a child; and "(b) Uses the visual depiction to induce a child to participate or engage in sexually explicit conduct. "(2) Possession of materials depicting sexually explicit conduct of a child in the first degree is a Class B felony." ORS 163.689 provides: "(1) A person commits the crime of possession of materials depicting sexually explicit conduct of a child in the second degree if the person: "(a) Knowingly possesses any visual depiction of sexually explicit conduct involving a child or any visual depiction of sexually explicit conduct that appears to involve a child; and "(b) Intends to use the visual depiction to induce a child to participate or engage in sexually explicit conduct. "(2) Possession of materials depicting sexually explicit conduct of a child in the second degree is a Class C felony."

c1c8aeadaad66381be20656355a721fd11659ecd0e16646f671cc0407a3bfd96

2011-01-06T00:00:00Z

7054525b-07c3-418c-92f5-99ca348eb989

Goodyear Tire & Rubber v. Tualatin Tire & Auto

322 Or. 406, 908 P.2d 300

oregon

Oregon Supreme Court

908 P.2d 300 (1995) 322 Or. 406 The GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, Respondent on Review, v. TUALATIN TIRE & AUTO, INC., an Oregon corporation, Petitioner on Review. CC C89-0099CV; CA A73536; SC S41806. Supreme Court of Oregon, In Banc. Argued and Submitted May 1, 1995. Decided December 29, 1995. *301 Mark E. Griffin, of Griffin & McCandlish, Portland, and Kim E. Hoyt, of Ferder, Brandt & Casebeer, Salem, argued the cause for petitioner on review. Mark E. Griffin filed the petition. William H. Walters, of Miller, Nash, Wiener, Hager & Carlsen, Portland, argued the cause for respondent on review. With him on the brief was Linda L. Marshall. Gary M. Berne and David C. Rees, of Stoll Stoll Berne Lokting & Shlachter P.C., Portland, filed a brief for amicus curiae Oregon Trial Lawyers Association. GILLETTE, Justice. This is a civil case involving a number of disputes between a franchisor, Goodyear Tire & Rubber Company (Goodyear), and a franchisee, Tualatin Tire & Auto, Inc. (Tualatin). We allowed review to determine two *302 important issues of civil procedure. The first is whether the "we can't tell" rule, described by this court in Whinston v. Kaiser Foundation Hospital, 309 Or. 350, 356-61, 788 P.2d 428 (1990), and Pavlik v. Albertson's, Inc., 253 Or. 370, 454 P.2d 852 (1969),[1] may, consistent with ORCP 63, be applied to require that there be a new trial in a case in which there was no motion for a new trial in the trial court. The Court of Appeals held that the rule could be applied, even in the absence of a motion for a new trial. Goodyear Tire & Rubber Co. v. Tualatin Tire and Auto, 129 Or.App. 206, 213, 879 P.2d 193 (1994). The second issue is whether a right to trial by jury exists in actions filed under the remedies provision of the Oregon Franchise Act (OFA). ORS 650.020. The Court of Appeals held that there is no right to trial by jury under that statute. Id. at 216, 879 P.2d 193. For the reasons that follow, we reverse both those holdings. A detailed recital of the facts surrounding each of the numerous claims between Goodyear and Tualatin is not necessary to our review. It suffices to say that the litigation below was the result of a franchise relationship gone sour. Goodyear brought an action against Tualatin to evict Tualatin from Goodyear's franchise store and to recover sums due under the lease and on an open account. Tualatin counterclaimed for breach of contract, common law fraud, and violations of the California Franchise Investment Law (CFIL),[2] the Oregon Franchise Act (OFA),[3] and the Oregon Unfair Trade Practices Act (UTPA).[4] Some of the claims were resolved on motions for summary judgment or directed verdict. The remaining claimsincluding Goodyear's claims for common law fraud, CFIL violations, and OFA violationswere tried to a jury. The core theory of Tualatin's case was that Goodyear had engaged in 13 instances of misrepresentation, which formed the bases for Tualatin's common law fraud claim and its claims under the CFIL and OFA. At the close of all the evidence, Goodyear moved to withdraw from the jury's consideration six of the 13 allegations, arguing that Tualatin had failed to introduce sufficient evidence to support them. The trial court rejected that motion and sent all 13 allegations of misrepresentation to the jury. Goodyear also moved to require the court to determine liability under the OFA claim. It argued that, in the absence of an express grant by the legislature, Tualatin did not have the right to a jury trial on that claim and that the only remedy permitted by the OFA was an equitable remedy. The court also denied that motion. After deliberation, the jury returned verdicts for both parties. Pertinent to the questions on review, the jury returned general verdicts for Tualatin on the CFIL claim ($74,000), the OFA claim ($112,000), and the common law fraud claim ($260,000). Goodyear then moved to compel Tualatin to elect a remedy. The trial court granted the motion, and Tualatin elected to recover under the common law fraud claim.[5] The trial court also awarded Tualatin attorney fees and costs pursuant to the remedies provision of the OFA. ORS 650.020(3). On entry of the judgment, Goodyear moved for a judgment notwithstanding the verdict, again asserting, inter alia, that the six alleged instances of misrepresentation should not have been submitted to the jury. The court also denied that motion. *303 On appeal to the Court of Appeals, Goodyear asserted 10 assignments of error. In its first six assignments, Goodyear argued that the trial court erred in not withdrawing each of the six "unsupported allegations" of misrepresentation from the jury's consideration. The Court of Appeals determined that the record failed as a matter of law to support four of the six allegations.[6] Because it could not tell whether the jury had relied on the deficient allegations in rendering the verdicts below, the Court of Appeals remanded each claim for a new trial. Goodyear Tire & Rubber Co., 129 Or.App. at 213-14, 879 P.2d 193. In its ninth assignment, Goodyear argued that the trial court had erred in submitting the OFA claim to the jury. The Court of Appeals held that, because the remedy provided under the OFA was "historically equitable in nature," Tualatin's OFA claim should be tried to the court on remand. Id. at 216, 879 P.2d 193. Goodyear's seventh, eighth, and tenth assignments were resolved by the Court of Appeals and are not before this court on review.[7] We now address each of the two issues on review. The Court of Appeals relied on a longstanding practice of this court, dubbed the "we can't tell" rule in Whinston. Tualatin does not disagree with the rule but argues that, under ORCP 63 and 64,[8] the court may not grant a new trialthe remedy ordered by the Court of Appealsunless the party seeking a new trial also moves for that relief in the trial court. The record is clear that Goodyear did not move for a new trial after judgment was entered in the trial court; it moved only for judgment notwithstanding the verdict (j.n.o.v.). For reasons that follow, we agree with Tualatin. The pivotal rule relating to this issue is ORCP 63 C, which provides: "A motion in the alternative for a new trial may be joined with a motion for judgment *304 notwithstanding the verdict, and unless so joined shall, in the event that a motion for judgment notwithstanding the verdict is filed, be deemed waived." (Emphasis added.) A party that has lost a jury trial and believes that the trial court may have committed one or more reversible errors with respect to the conduct of that trial has a variety of remedies available. If the party believes that the trial court has made a legal error to which the party timely objected, without which the other side would not be entitled to prevail at all, then the party may move for a judgment notwithstanding the verdict. If the trial court grants the motion, judgment will be entered for the party. If the trial court denies the motion, the moving party has the same clear issue for appeal. But it may be that a party either is uncertain of its entitlement to a clear win, or asserts legal errors that, even if well taken, would justify only a new trial, rather than a judgment in its favor. In such circumstances, it may be prudent to join a motion for a new trial with a motion for a judgment notwithstanding the verdict. But that choice does not follow automatically. A party may, for example, be unwilling to undergo the expense of a retrial, even if it would be entitled to one. Under such circumstances, it could well instruct its counsel to place all its eggs in the single basket of a motion for a j.n.o.v. The wording of ORCP 63 C is a recognition of the foregoing range of practical possibilities, and it would be difficult for a rule to be much clearer. The party that has lost the jury trial may join a motion for a j.n.o.v. with a motion for a new trial, but the rule imposes a price on the choice to file only the motion for a j.n.o.v.the alternate remedy of a new trial no longer is available. We would nullify the policy choice represented by ORCP 63 C were we to permit the court-made "we can't tell" rule to override it. The reason for the "we can't tell" rulejudicial necessityis inapplicable if the party that invokes that rule has waived the right to a new trial. Having chosen to hazard its fortune solely on its motion for a j.n.o.v., Goodyear waived any claim to a new trial. ORCP 63 C. The only other argument that might be made for the disposition made by the Court of Appeals would arise under ORS 19.130(1), which states that a reviewing court in a civil appeal "may, if necessary and proper, order a new trial." However, such an order would not be "proper," as the statute uses that term, where a party has waived its right to such a remedy under ORCP 63 C. The contrary conclusion of the Court of Appeals was error.[9] At first blush, it might appear that our disposition of this first issue also necessarily disposes of the case. As noted, Tualatin had a jury verdict in its favor on three different claims. Tualatin then was required after trial to elect the theory under which it would recover. It chose the common law theory, which gave it the largest recovery. Nonetheless, Goodyear's appeal to the Court of Appeals necessarily challenged the verdict on all three claims; to do less would have involved conceding Tualatin's right to recover the amount assessed by the jury as to any unchallenged claim. Because all the claims were based on the same factual allegations, the Court of Appeals ordered a new trial on all three. And, because it had ordered a new trial as to all three, that court was required to rule whether the retrial of the OFA claim should be to the court or to a jury. As noted, it held that the issue should have been tried to the court. *305 Our ruling on the "we can't tell" issue changes the posture of the entire case. Goodyear is not entitled to a new trial with respect to the common law claim. Because the Court of Appeals' bases for reversing the verdicts on the other two claims shared the same rationale as its reversal of the common law claim, its reversal of the other two claims also was erroneous. That fact would be of little more than academic interest by itself, in light of Tualatin's election of a remedy. But the Court of Appeals' disposition of this case permitted it to avoid answering assignments of error by both parties that it now will be required to address by our holding here. Among the questions not answered by the Court of Appeals was the issue of the amount of attorney fees, if any, to which Tualatin may be entitled under the OFA. Resolution of that question would be premature ifas the Court of Appeals ruledit was error to try that issue to a jury. Thus, the second issue raised on this petition for review, viz., the right to a jury trial under the OFA, remains alive. We turn to it now. Resolution of this issue requires two steps. First, we determine whether the legislature intended by the Oregon Franchise Act to provide a trial by jury. Second, and only if we determine that the legislature did not intend to provide a jury trial, we determine whether a jury trial nonetheless is required by Article I, section 17, or Article VII (Amended), section 3, of the Oregon Constitution. See e.g., Zockert v. Fanning, 310 Or. 514, 520, 800 P.2d 773 (1990) (when a statute resolves the issue in the case, this court will not reach a constitutional claim). Unlike the Court of Appeals, we hold that the legislature intended to provide a trial by jury under the Oregon Franchise Act. We therefore do not reach the constitutional question. When interpreting a statute, this court's task is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). The first level of analysis is to examine the text and context of the statute. The text is the principal evidence of the legislature's intention. The context of the statute includes other provisions of the same statute and other related statutes. If the legislature's intent is unclear from the text and context of the statute, the court proceeds to the next level of analysis, which is to consider the legislative history of the statute. Id. 317 Or. at 611-12, 859 P.2d 1143. What has become known as The Oregon Franchise Act,[10] ORS 650.005 through 650.085, regulates the sale of franchises in Oregon. ORS 650.020 delineates a private right of action for specific deceptive practices. It provides in part: The text of ORS 650.020 does not expressly grant a right to trial by jury. This court has held that such express authority is not necessary, however, as long as a legislative intent is clear. See Clarkston v. Bridge, 273 Or. 68, 77-79, 539 P.2d 1094 (1975) (legislative intent with respect to jury trial for URESA claims determined by resort to parallel, but more specific, statutes granting the right). Cf. Cornelison v. Seabold, 254 Or. 401, 404, 460 P.2d 1009 (1969) (the statutory wording, "shall be determined by the court *306 as a matter of law," indicated a legislative intent that the issues be tried without a jury). Because some background is necessary to a proper understanding of the text of ORS 650.020, we address, briefly, the historical context of the statute. ORS 650.020 was originally enacted in 1973, before Oregon's adoption of the Oregon Rules of Civil Procedure (ORCP). Or.Laws 1973, ch. 509, § 4. At that time, Oregon maintained the distinctions between "suits in equity" and "actions at law." One of those distinctions was the common law rule that "suits in equity" were tried to the court, while "actions at law" were triable to a jury. See Sealey v. Hicks, 309 Or. 387, 396 n. 11, 788 P.2d 435 (1990), cert. den. Sealey v. Toyota Motor Corp., 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 39 (1990) ("By `civil action' we mean what was once called an action at law. There is no right to a jury trial in equity."). The legislature's use of the terms, "suits" and "actions," became an important indication of legislative intent with respect to procedure. See Buell v. Jefferson County Court, 175 Or. 402, 408, 152 P.2d 578 (1944) (illustrating proposition). On the adoption of the ORCP in 1979, the legislature abolished many procedural distinctions between "suits" and "actions." ORCP 2 now provides: Most references in the statutes to "suits" and "actions" also were eliminated as a matter of "housekeeping." A staff comment by the Council on Court Procedures explained the process: Oregon Law Institute, 1980 Oregon Civil Procedure Rules, 5. See also Or.Laws 1979, ch. 284 (enacting changes). With that background in mind, we turn to the text of the statute in question. Like many other statutes, ORS 650.020 (1973) was amended in 1979 to eliminate references to law and equity. Sections (2) and (3) of ORS 650.020 (1973) provided: (Emphasis added.) Although use of the terms "actions at law" and "suits in equity" generally was deleted in 1979, the legislature's use of those terms of art indicates the legislature's original intent with respect to a right to trial by jury under the statute. Because the 1979 revisions to ORS 650.020 do not purport to change the legislature's original intent with respect to jury trials, we examine the original wording to gain any insight that it may provide. From its wording, section (3) of ORS 650.020 (1973) might be construed to limit actions under the statute to "suit[s] in equity for a rescission"a type of proceeding for which a jury trial was not available. On the other hand, that section might be construed as a limitation on damages. Under the latter interpretation, a defrauded franchisee could bring an action at law, but would only be entitled to recover "amounts to which [the franchisee] would be entitled upon a suit in equity for a rescission * * *." ORS 650.020(3) (1973) (emphasis added). The latter interpretation is consistent with section (2) of ORS 650.020. That section provides an affirmative defense against equitable *307 or legal claims made under the OFA. If the legislature had intended to permit only equitable claims for rescission, then the provision of an affirmative defense to claims at law would not have been necessary. Given the two foregoing interpretations, which are reasonable but antithetical, it is not clear, from the text and context of ORS 650.020, whether the legislature intended to provide the right to a trial by jury for claims under the OFA. It is necessary therefore to consult the legislative history of that statute for an indication of legislative intent. The OFA was introduced to the legislature on behalf of the Department of Commerce, Corporation Division, as Senate Bill 329. The small amount of discussion that occurred with respect to that bill took place, for the most part, in the Senate Committee on Consumer and Business Affairs. There, Frank Healy, the Corporation Commissioner, presented a written summary of the measure. That summary stated in part: Testimony, Senate Committee on Consumer and Business Affairs, SB 329, February 27, 1973, (Exhibit 1, Appendix D) p 1. Healy's oral testimony was to the same effect. It began: Committee on Consumer and Business Affairs, February 27, 1973, Tape 2, side 1, at 496. The Senate floor debate provided little more in terms of legislative intent. Senator Heard carried the bill: (Emphasis added.) Senate Floor Proceedings, June 23, 1973, Tape 28, side 2, at 0127. There was no other debate before the bill was passed unanimously. Id. The bill later was approved unanimously in the House, without amendment, and signed by the Governor. From the legislative history of ORS 650.020, we know that the legislature intended by that statute to extend certain of the protections afforded by Oregon's existing securities laws to the purchase and sale of franchises. ORS 59.005 through 59.445 (formally titled the "Oregon Securities Law" but better known as the "blue sky law") then provided liability for the sale of a security "by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading." ORS 59.115(1)(b) (1973). ORS 59.115(2) (1973) provided two possible remedies. The purchaser of securities could recover: "(b) If he no longer owns the security, damages in the amount that would be recoverable upon a tender, less the value of the security when the purchaser disposed of it and less interest on such value at the *308 rate of six per cent per annum from the date of disposition." Both subsections provide the same result as the legislature provided in ORS 650.020(3), viz., "restitution damages." The legislature's intent to parallel the protections and liabilities in the blue sky laws provide us with an indication as to the legislature's intent with respect to jury trials. The protection afforded by Oregon's securities laws includes the right to a jury trial. See, e.g., Badger v. Paulson Investment Co., Inc., 311 Or. 14, 17-18, 803 P.2d 1178 (1991) (securities fraud claims tried to jury); Adams v. American Western Securities, 265 Or. 514, 524-31, 510 P.2d 838 (1973) (task on review was to determine whether to reverse an involuntary nonsuit and send the case back to be tried to a jury); Adamson v. Lang, 236 Or. 511, 517, 389 P.2d 39 (1964) (finding evidence to support jury verdict). Because the legislative history of ORS 650.020 indicates that the legislature intended by that statute to extend the same broad protections and remedies to purchasers of franchises, we conclude that the original wording of ORS 650.020(3) concerning "suits in equity" was not intended to prevent a franchisee from obtaining a trial by jury. It was, instead, intended to limit the amount of damages that could be recovered. The Court of Appeals' ruling to the contrary was error. The decision of the Court of Appeals is reversed. The judgment for Tualatin on its common law, OFA, and CFIL claims is affirmed. The case is remanded to the Court of Appeals for further proceedings. [1] The "we can't tell" rule, put simply, is a rule of judicial necessity requiring that an appellate court remand a case for a new trial whenever: "(1) more than one allegation * * * is submitted to the jury; (2) one or more of, but not all, the allegations are unsupported by the evidence; and (3) it cannot be determined upon which allegation the jury based its verdict." Whinston, 309 Or. at 357, 788 P.2d 428. See also Pavlik, 253 Or. at 375, 454 P.2d 852 (applying similar rule). [2] Cal Corporations Code §§ 31201, 31301 (West 1977). [3] ORS 650.005 to 650.085. [4] ORS 646.605 to 646.656. [5] Tualatin assigned the trial court's order to elect as error in the Court of Appeals. Due to that court's disposition of Goodyear's assignments of error, and its remand of the claims for a new trial, it did not reach Tualatin's assignment. Tualatin did not raise the issue whether an election was necessary in its petition for review, and we do not address it. [6] At this level, Tualatin does not dispute the ruling of the Court of Appeals that there was no evidence to support four of the 13 allegations of misrepresentation. We therefore treat that issue as having been resolved against Tualatin. [7] Goodyear argued in its tenth assignment that the trial court erred in granting attorney fees under the OFA after Tualatin elected a remedy under its common law fraud theory. Because the Court of Appeals remanded all the claims for a new trial, the court did not rule on Goodyear's tenth assignment of error. Without formally seeking review on its tenth assignment of error, Goodyear requested, in its brief and at oral argument, that this court decide that issue. We decline to do so. [8] ORCP 63 provides in part: "A. When a motion for a directed verdict, made at the close of all the evidence, which should have been granted has been refused and a verdict is rendered against the applicant, the court may, on motion, render a judgment notwithstanding the verdict, or set aside any judgment which may have been entered and render another judgment, as the case may require. "* * * * * "C. A motion in the alternative for a new trial may be joined with a motion for judgment notwithstanding the verdict, and unless so joined shall, in the event that a motion for judgment notwithstanding the verdict is filed, be deemed waived. When both motions are filed, the motion for judgment notwithstanding the verdict shall have precedence over the motion for a new trial, and if granted the court shall, nevertheless, rule on the motion for a new trial and assign such reasons therefor as would apply had the motion for judgment notwithstanding the verdict been denied, and shall make and file an order in accordance with said ruling." (Emphasis added.) ORCP 64 provides in part: "B. A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: "* * * * * "B(5) Insufficiency of the evidence to justify the verdict or other decision, or that it is against law. "B(6) Error in law occurring at the trial and objected to or excepted to by the party making the application. "* * * * * "D. In all cases of motion for a new trial, the grounds thereof shall be plainly specified, and no cause of new trial not so stated shall be considered or regarded by the court. * * *. "* * * * * "G. If a new trial is granted by the court on its own initiative, the order shall so state and shall be made within 30 days after the entry of judgment. Such order shall contain a statement setting forth fully the grounds upon which the order was made, which statement shall be a part of the record in the case." (Emphasis added.) [9] Goodyear argues that this court twice has applied the "we can't tell" rule in cases in which there had been only a motion for a j.n.o.v., with no concomitant motion for a new trial. We disagree. In Combs v. Loebner, 315 Or. 444, 451 n. 2, 846 P.2d 401 (1993), this court cited the rule only by way of illustrating that the rule was not applicable to the case before it, because only one theory had been presented to the jury. The case of U.S. National Bank v. Boge, 311 Or. 550, 814 P.2d 1082 (1991), arguably is closer to the mark, because this court there applied the "we can't tell rule" to require a new trial, without specifically indicating in the opinion whether the prevailing party there had complied with ORCP 63 C. Id. at 568-69, 814 P.2d 1082. (The only motion filed by the prevailing party that is mentioned in the opinion is a motion for a j.n.o.v.) Nonetheless, that case cannot be said to stand for the proposition that ORCP 63 C does not apply to such circumstances; the issue simply never arose. [10] The statute does not include a "short title."

283ad4784e28278718fc6ce3896707df8a632a46ddc9a2e43f315f4b9cd587d3

1995-12-29T00:00:00Z

d9d9460e-83b5-4782-87e6-5d624f70a1ee

Dale v. Kulongoski

322 Or. 240, 905 P.2d 844

oregon

Oregon Supreme Court

905 P.2d 844 (1995) 322 Or. 240 Alice DALE, Petitioner, v. Theodore R. KULONGOSKI, Respondent. SC S42592. Supreme Court of Oregon, In Banc. Argued and Submitted October 10, 1995. Decided November 24, 1995. Lynn-Marie Crider, Oregon Public Employees Union, Salem, argued the cause and filed the petition for petitioner. Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. With him on the answering memorandum were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. FADELEY, Justice. This is a statutory review of a ballot title under ORS 250.085 (1995). Or Laws 1995, ch 534, § 1. Petitioner, an elector, commented on the draft ballot title that had been supplied to the Secretary of State by the Attorney General. Therefore, petitioner is entitled to petition this court for review of the title as certified by the Attorney General to the Secretary of State. ORS 250.035, 250.085. The ballot title is for a measure referred by the legislature to the people at the next regular general election. The text of the measure is found in House Joint Resolution 14 (1995), adopted by both the House and Senate. The measure amends the state constitution to provide that "bills for raising revenue" are not adopted lawfully unless three-fifths of the members of the House and of the Senate vote for such bills. The ballot title follows: Petitioner's major challenge to the Attorney General's ballot title asserts that the phrase "bills for raising revenue" will not be understood by voters and that a phrase such as "bills enacting taxes" or "bills for taxation," should be used. The phrase "bills for raising revenue" has been a part of the basic constitutional law of the State of Oregon for the 135 years since statehood, and a part of the basic constitutional law of this country for over 200 years since nationhood. Or Const, Art. IV, § 18; US Const., Art I, § 7.[1] While it cannot be gainsaid that the phrase includes general taxation bills, for such bills do produce revenue, the phrase itself historically has not been deemed to require interpretation or translation in order that it be understood. See, e.g., Northern Counties Trust v. Sears, 30 Or. 388, 401-03, 41 P. 931 (1895); 25 Op Atty Gen 100-01 (1950-52); Twin City Bank v. Nebeker, 167 U.S. 196, 17 S. Ct. 766, 42 L. Ed. 134 (1897). ORS 250.035, as recently amended, prescribes the contents of ballot titles and the standard they must meet. Paragraphs (2)(b) and (c) require a "simple and understandable statement of not more than 15 words that describes the result" if the measure is approved and a similar statement describing the "result" if the measure is rejected. The phrase "raising revenue" appears simple and understandable. Substantial compliance is the required standard. ORS 250.085(4); see Ransom v. Roberts, 309 Or. 654, 659, 791 P.2d 489 (1990) (this court will approve a certified ballot title that complies substantially with the statutory standards even if the court does not believe it to be the best of all possible ballot titles).[2] The phrase "raising revenue" meets that standard. Petitioner makes a second argument for changing the ballot title. Although petitioner recognizes that, in the past, this court has not interpreted the meaning of ballot measures before evaluating an Attorney General's ballot title for compliance with statutory standards, petitioner nevertheless asks us in this case to participate in such interpretation by ruling, as a matter of law, that this measure applies equally to bills that would lower revenue or taxes as it does to those that would raise revenue or taxes. We neither agree nor disagree with that proposition. No case requiring a decision on *846 that point is before us. Although the argument that passage of this measure would make it more difficult to lower taxes may have some appeal and, therefore, facilitating that argument might well have some effect on the outcome of the vote on this referendum, at this stage in the process it is just thatan argument. Arguments for or against a measure have no place in a ballot title. A neutral use of the words of the measure complies in this case with the statutory standard. Accordingly, we certify the ballot title certified to the Secretary of State by the Attorney General. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(9). [1] Joseph Story, 2 Story's Commentaries on the Constitution, 338-65 (1st ed. 1833), reports that this provision was borrowed from the British Parliament. Story notes that the relevant provision is, "beyond all question, borrowed from the British house of commons, of which it is the ancient and indisputable privilege and right, that all grants of subsidies and parliamentary aids shall begin in their house, and are first bestowed by them, although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature." Id. at 338, § 871 (footnote omitted). Story reports that the original Constitution of the State of Virginia of 1776 also was a progenitor of the federal provision, restricting revenue bills to origination in the House. That state constitution required that all bills originate in the "House of Delegates" but permitted amendment by the Senate with the consent of the House, except in the case of "money-bills," which the Senate could only accept or reject without amending. William F. Swindler, 10 Sources and Documents of United States Constitutions 53 (1979). [2] ORS 250.035(2)(d) also requires that the summary section be "concise and impartial." (Emphasis added.) Including petitioner's suggested language therein, i.e., using the word "taxes" or "taxation," rather than the neutral words of the measure, would lessen the impartiality of the ballot title.

f5d27be83460816b0192b6fa038e48b6bd789baa92ab912b10bd1fff58e34aff

1995-11-24T00:00:00Z

d8177786-1093-4482-9343-4b2ab35d5d05

McCoid v. Kulongoski

321 Or. 452, 900 P.2d 1028

oregon

Oregon Supreme Court

900 P.2d 1028 (1995) 321 Or. 452 Steven McCOID, Petitioner, v. Theodore KULONGOSKI, Attorney General of the State of Oregon, Respondent, and Maureen Kirk, Intervenor. SC S42338. Supreme Court of Oregon, In Banc. Argued and Submitted July 11, 1995. Resubmitted July 20, 1995. Decided August 24, 1995. Charles F. Hinkle, Portland, argued the cause and filed the petition for petitioner. Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the response were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Greg Wasson, Salem, filed a memorandum for intervenor. GILLETTE, Judge. This is an original proceeding in which petitioner challenges the ballot title for a proposed initiative measure. Petitioner is an elector who, in a timely manner, submitted written comments about the Attorney General's draft ballot title, pursuant to ORS 250.067(1). Accordingly, petitioner would be entitled to seek a different title in this court, ORS 250.085(2), if his comments survive the scrutiny required by ORS 250.085(6). That statute, which governs the permissible scope of this court's review of challenged ballot titles, provides: See McMurdo v. Roberts, 309 Or. 318, 321-22, 786 P.2d 1268 (1990) (explaining and applying standard, quoting Kafoury v. Roberts, 303 Or. 306, 310-11, 736 P.2d 178 (1987)). The problem here is that petitioner's arguments do not survive that scrutiny. Petitioner's petition to this court challenges only the use of a single phrase in the Question portion of the Attorney General's certified ballot title. That same phrase appeared in the Question in the Attorney General's proposed ballot title. Petitioner made several comments concerning the proposed Questionsome of which resulted in modifications in the Questionbut he never intimated that there was anything about the challenged phrase that made its use impermissible under the appropriate statutory criteria. His effort to make that argument now comes too late. McMurdo, 309 Or. at 322, 786 P.2d 1268. *1029 We turn to the question of the correct form of disposition of this case. There are at least two possible options: 1) Dismissal of proceeding, or 2) certification, by this court, of the ballot title already certified to the Secretary of State by the Attorney General. For the reasons that follow, we conclude that dismissal is the correct action. The pertinent statutory provisions are ORS 250.085(2), (5), and (6).[1] Those statutory provisions may be traced to 1985 legislative amendments, which survive to this day with some renumbering but without material amendment.[2] In Kafoury, this court first interpreted the then-recent 1985 amendments. Petitioners there had written a short letter to the Secretary of State suggesting an alternative ballot title Caption and stating, "It is an improvement, don't you think?" This court interpreted ORS 250.085(6) to require something more specific than that to meet the statutory prerequisite that a petitioner first have submitted "arguments concerning the ballot title" to the Secretary of State. The opinion devoted over two pages to what it described as this "procedural matter of some importance." Id. at 310-12, 736 P.2d 178. In deciding what to do with the petition, Kafoury held that the purpose of the 1985 amendments to the statutes, including the provisions requiring timely written comments to the Secretary of State as a prerequisite to judicial review, was to "remove from the judiciary and concentrate in the administrative branch the process of arriving at an appropriate title for ballot measures." Id. at 311, 736 P.2d 178 (emphasis supplied). The court pursued this line of analysis by asserting that, "[i]n order to accomplish this purpose, the legislature requires something more than mere participation in the comment process in order to maintain a later challenge to a ballot title in this court." Ibid. (emphasis supplied). The pertinent point then was brought home by two separate statements. First, the court interpreted ORS 250.085(6) "as requiring that, before a party can claim a right under ORS 250.085(2) [to petition the Supreme Court]," the party must have offered an adequate criticism of the ballot title to the Secretary of State. Id. at 312, 736 P.2d 178 (emphasis supplied). Second, the court concluded: "Accordingly, under the construction of ORS 250.085[(6)] we announce in this case, this petition should be dismissed." Ibid. (emphasis supplied). The court decided not to do so in that case, however, because it was the first case interpreting the new law and because the petitioners were fairly close to satisfying the law. Ibid. Kafoury stands as a controlling interpretation of the pertinent current statutes. It concluded, after analysis of the pertinent statutory wording, that dismissal was the appropriate disposition of a timely ballot title petition that raised only arguments that were not raised to the Secretary of State. Dismissal was appropriate, the court reasoned, because the petitioners had no right to seek judicial review and to engage the court in a process committed to the executive branch without first having raised their contentions to the Secretary of State. Cf. Morris v. Dept. of Rev., 320 Or. 579, 889 P.2d 1294 (1995) (utilizing same reasoning and result under a statute that provided that no person shall appeal to the Tax Court unless that person first exhausted the person's administrative remedy). Kafoury was followed by McMurdo, which quoted extensively from Kafoury and then, accordingly, dismissed the timely ballot title *1030 petition for failure to raise sufficient arguments to the Secretary of State. Other cases followed the same course, citing to Kafoury and McMurdo and, in one instance, characterized the defect that results in dismissal as a lack of "standing" to bring the action. Ransom v. Roberts, 309 Or. 654, 665, 791 P.2d 489 (1990) (no comments on proposed title made to Secretary of State); Remington v. Roberts, 309 Or. 642, 644, 789 P.2d 662 (1990) (no timely comments to Secretary of State; no "standing"). Only this court's most recent case on this subject, Farago v. Kulongoski, 319 Or. 29, 872 P.2d 964 (1994), raises any question with respect to the foregoing analysis.[3]Farago is a one-page decision in which this court certified the ballot title of the Attorney General, but without any discussion of the choice of that particular disposition and without reference to Kafoury, McMurdo, Ransom, or Remington. It appears that the particular form of disposition in Farago was not considered by this court in the context of its prior decisions. Had that issue been considered, we believe that the disposition would have taken a different form. The only contrary textual argument that could be made arises out of the wording of ORS 250.085(5). That statute provides: (Emphasis supplied.) Reading the emphasized wording in isolation, it could be argued that this court's role in any ballot title case is to certify a ballot title. But we think it clear that the process described in ORS 250.085(2), (5), and (6) must be viewed together, and is hierarchical. Thus, the certification visualized by the last phrase of subsection (5) is dependent on the court's first having conducted the review contemplated by the first phrase. And, under subsection (6), no review occurs if no argument is made to the court that meets the standards there set out. Without a review, an act of certification would be improper. Here, we conduct no review. Dismissal is called for. Petition for review of ballot title dismissed. [1] ORS 250.085(2) provides: "Any elector dissatisfied with a ballot title for an initiated or referred measure certified by the Attorney General and who timely submitted written comments on the draft ballot title may petition the Supreme Court seeking a different title. The petition shall state the reasons the title filed with the Secretary of State does not substantially comply with the requirements of ORS 250.035 and 250.039." ORS 250.085(5) provides: "The court shall review the title for substantial compliance with the requirements of ORS 250.035 and 250.039, and shall certify a title meeting this standard to the Secretary of State." ORS 250.085(6) has been quoted in the text above. [2] For ease of reference, we use the current section numbers throughout this discussion. [3] In Farago, the petitioner had made no arguments to the Secretary of State as to two parts of the ballot title and made only an insufficient argument with respect to the third part.

32e26b73c9ab628ea1bf50ceb0348759170f4c3f5e00da5e6892e4fb790e6061

1995-08-24T00:00:00Z

455d4562-e93b-4089-be4e-bf6a9106f09b

In Re Dickerson

322 Or. 316, 905 P.2d 1140

oregon

Oregon Supreme Court

905 P.2d 1140 (1995) 322 Or. 316 In re Complaint as to the Conduct of Donald DICKERSON, Accused. OSB 94-76, 94-77, 94-78; SC S42276. Supreme Court of Oregon, In Banc. Submitted on the Record July 10, 1995. Decided November 24, 1995. *1141 Ann Bartsch, Acting Executive Director of the Oregon State Bar, filed the formal complaint for the Oregon State Bar. No appearance contra. PER CURIAM. This is a de novo review of a lawyer disciplinary proceeding. ORS 9.536; Bar Rules of Procedure (BRs) 10.1 and 10.6. The Oregon State Bar (the Bar) filed a formal complaint against the accused, charging him with multiple violations of the Code of Professional Responsibility and ORS 9.527(4) (willful deceit or misconduct in the legal profession), arising out of his handling of three clients' cases. The Bar's complaint also charged the accused with three violations of DR 1-103(C) (duty to cooperate). The accused did not respond to the Bar's complaint. The trial panel granted the Bar's motion for an order of default, entered an order of default, deemed the allegations in the Bar's complaint to be true, and gave the parties an opportunity to submit memoranda on the issue of sanction.[1] The Bar asked that the accused be disbarred. The accused again did not respond. The trial panel thereafter rendered a written opinion disbarring the accused.[2] The accused made no appearance in *1142 this court. We allowed the Bar's motion to submit the matter on the record, without briefing or oral argument. ORAP 11.25(3)(b). We deem the allegations in the Bar's formal complaint to be true for purposes of review. We find the accused guilty of several serious violations, and we disbar him.[3] In its first cause of complaint, the Bar alleges: The Bar asserts that the foregoing conduct violated DR 1-102(A)(3) (conduct involving dishonesty, fraud, deceit, or misrepresentation);[4] DR 6-101(B) (neglect of a legal matter);[5] DR 9-101(A) (trust account rule);[6] DR 9-101(C)(3) (duty to maintain records and to render accounts to client);[7] DR 9-101(C)(4) *1143 (duty to promptly pay or deliver funds or property which client is entitled to receive);[8] and ORS 9.527(4) (willful deceit or misconduct in the legal profession).[9] The accused violated DR 1-102(A)(3) by misrepresenting to the Timms that he would contact them, refund their retainer, and return their file, which included work by a prior lawyer. He misrepresented that he would promptly give his file to the Timms' new lawyer. He misrepresented that he would send the Timms a refund check. He did not do any of those things. The accused violated DR 6-101(B) by neglecting to prepare the Timms' case in a timely manner. See In re Purvis, 306 Or. 522, 524-25, 760 P.2d 254 (1988) (lawyer neglected to take any action for several months after being retained by client). The accused violated DR 9-101(A) by failing to maintain the Timms' retainer in his trust account. The accused violated DR 9-101(C)(3) and (4) and ORS 9.527(4) by failing to maintain complete records of the Timms' funds in his possession and to render appropriate accounts to them regarding those funds, and by failing promptly to pay or deliver to the Timms the funds in his possession that they were entitled to receive. See In re Hedges, 313 Or. 618, 624, 836 P.2d 119 (1992) (failure to account for and return client's fees). In its second cause of complaint, the Bar alleges: *1144 The Bar asserts that the foregoing conduct violated DR 1-102(A)(3); DR 1-102(A)(4); DR 6-101(B); DR 9-101(C)(3); DR 9-101(C)(4); and ORS 9.527(4). The accused violated DR 1-102(A)(3) and ORS 9.527(4) by misrepresenting the status of their case to the Violettes. See In re Willer, 303 Or. 241, 246, 735 P.2d 594 (1987) (lawyer was guilty of dishonest conduct by providing client with false reports about status of litigation). The accused violated DR 6-101(B) by neglecting the Violettes' adoption matter for several months. See Purvis, 306 Or. at 524-25, 760 P.2d 254 (lawyer neglected to take any action for several months after being retained by client). The accused violated DR 9-101(C)(3) and (4) by failing to render an appropriate accounting of the $220 paid to him by the Violettes. See Hedges, 313 Or. at 624, 836 P.2d 119 (failure to account for and return fees). In its third cause of complaint, the Bar alleges: The Bar asserts that the foregoing conduct violated DR 6-101(B). The accused violated DR 6-101(B) by failing to pursue PIP reimbursements for Merrill's doctors as he had promised. He failed to return Merrill's calls, abandoned her case without notice, and failed to make provisions for the safekeeping of her file. See Purvis, 306 Or. at 524-25, 760 P.2d 254 (lawyer neglected to take any action for several months after being retained by client). In its fourth cause of complaint, the Bar alleges: "In late February, 1994, Disciplinary Counsel's office was successful in reaching the Accused by telephone, and in that *1145 telephone conversation advised the Accused of the nature of each of the above complaints and requested a response. Correspondence was again sent to the Accused confirming this conversation on February 28, 1994. The Bar asserts that the foregoing conduct violated DR 1-103(C) (duty to cooperate). The accused violated DR 1-103(C) as to each of the three causes of complaint noted above. After being notified personally by the Bar that he was the subject of a disciplinary investigation, the accused failed to respond to inquiries from disciplinary counsel. The accused has not asserted that any applicable right or privilege excused his failure to respond. See In re Haws, 310 Or. 741, 750, 801 P.2d 818 (1990) (failure to respond to inquiries from disciplinary counsel violated DR 1-103(C)); In re Recker, 309 Or. 633, 638-39, 789 P.2d 663 (1990) (same). In determining the appropriate sanction for ethical misconduct, this court looks to the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (ABA Standards), and Oregon case law. See In re Spies, 316 Or. 530, 541, 852 P.2d 831 (1993) (so stating). The court considers (1) the ethical duty violated, (2) the lawyer's mental state, (3) the potential or actual injury caused by the misconduct, and (4) the existence of aggravating or mitigating factors. ABA Standard 3.0; In re Whipple, 320 Or. 476, 488, 886 P.2d 7 (1994). In determining the nature of the ethical duty violated, the standards assume that the most important ethical duties are those obligations that a lawyer owes to clients. ABA Standards at 5. The accused violated the most basic of duties that a lawyer owes to clients: the duty to be truthful. He repeatedly engaged in deceit and misrepresentation directed toward his clients. See ABA Standard 4.6 (lack of candor). By misrepresenting the status of cases to his clients, the accused engaged in dishonest conduct. Willer, 303 Or. at 249, 735 P.2d 594. By telling the Violettes in May 1993 that he needed $220 to file an affidavit in their adoption case when the case had already been dismissed for lack of activity, the accused was guilty of misrepresentation and dishonesty. The accused also violated his duty to his clients by failing to preserve their property, by neglecting their legal matters and, ultimately, by abandoning his practice without making arrangements for his clients' interests to be protected. See ABA Standard 4.4 (lack of diligence); In re Biggs, 318 Or. 281, 295, 864 P.2d 1310 (1994) (recognizing similar duties). By misrepresenting his intentions to issue refunds to his clients, the accused violated his duty to maintain the standards of personal integrity on which the public relies. The maintenance of those standards is critical to public confidence in the legal system. ABA Standard 5 (duties owed to the public). The accused acted "knowingly" regarding the abandonment and neglect issues. That is to say, we conclude that the accused acted with "the conscious awareness of the nature or attendant circumstances of the conduct." ABA Standard at 6. The accused "knowingly" converted client property. The accused's abandonment of the Violettes and Merrill caused injury to those clients. The Violettes' adoption was delayed, and Merrill's medical treatments were discontinued. The accused's failure to account for client funds also caused injury to the Violettes and the Timms. Finally, the accused failed to respond to inquiries from disciplinary counsel investigating the charges of professional misconduct against him. The trial panel found no mitigating factors, and we are aware of none. We note the presence of several aggravating factors: a prior disciplinary offense (the accused was reprimanded in 1993 for other *1146 misconduct);[10] a dishonest or selfish motive; a pattern of misconduct; multiple offenses; a failure to cooperate with disciplinary counsel's investigation of the complaints against him; his substantial experience in the practice of law (12 years); and his indifference to making restitution. See ABA Standard 9.22(a), (b), (c), (d), (e), (i), and (j) (listing those factors).[11] ABA Standard 4.11 indicates that disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. This court has recently stated that, generally, a single act of intentional and dishonest appropriation by a lawyer of a client's trust funds in violation of DR 1-102(A)(3) warrants disbarment. Whipple, 320 Or. at 488, 886 P.2d 7. ABA Standard 4.41(a) indicates that disbarment is generally appropriate when a lawyer abandons the practice and causes serious or potentially serious injury to a client. See Biggs, 318 Or. at 295-96, 864 P.2d 1310 (disbarment appropriate where lawyer's misconduct resulted in serious injuries to clients, the Professional Liability Fund, and the Client Security Fund). ABA Standard 4.41(b) indicates that disbarment is generally appropriate when a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to client. ABA Standard 4.41(c) indicates that disbarment is generally appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client. ABA Standard 7.1 indicates that disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system. The accused lied to his clients, converted clients' funds to his own use, failed to account for clients' funds, failed to return clients' property or files, and neglected the legal matters entrusted to him by clients. Ultimately, he closed his office and moved to California without making any provision for the protection of his clients' legal interests. The accused's cumulative misconduct mandates that he be disbarred. The accused is disbarred. [1] BR 5.8(a) provides in part: "If an accused lawyer fails to resign or file an answer to a formal complaint within the time allowed by these rules, or if an accused lawyer fails to appear at a hearing set pursuant to BR 2.4(h), the trial panel may enter an order in the record finding the accused in default under this rule. The trial panel may thereafter deem the allegations in the formal complaint to be true. The trial panel shall thereafter proceed to render its written opinion based on the formal complaint, or at the discretion of the trial panel, after considering evidence or legal authority limited to the issue of sanction." [2] The trial panel found that the accused knowingly engaged in conduct that was a violation of the duty owed to his profession with the intent to obtain a benefit for himself and, in so doing, seriously injured clients and the legal system; that the accused knowingly failed to perform services for clients and, in so doing, caused serious injury to such clients; and that the accused knowingly converted client property and, by so doing, caused injury to clients. The trial panel further found that the accused acted with knowledge and intent with respect to the aforementioned violations; that in each alleged incident, the client was seriously injured due to a loss of money, delay in the procurement of justice, and inconvenience attendant to locating and retaining substitute counsel; and that the Client Security Fund has been required to reimburse a client because of the accused's misconduct. [3] The trial panel found that the accused had violated several other disciplinary rules. In the light of the several serious violations of which we find the accused guilty, on de novo review, we choose not to review those other charged disciplinary rule violations. ORS 9.536(3) and BR 10.6 (the Supreme Court may adopt, modify, or reject the decision of the trial panel in whole or in part and thereupon enter an appropriate order). [4] DR 1-102(A)(3) provides: "It is professional misconduct for a lawyer to: "Engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]" [5] DR 6-101(B) provides: "A lawyer shall not neglect a legal matter entrusted to the lawyer." [6] DR 9-101(A) provides in part: "All funds of clients paid to a lawyer or law firm, including advances for costs and expenses and escrow and other funds held by a lawyer or law firm for another in the course of work as lawyers, shall be deposited and maintained in one or more identifiable trust accounts in the state in which the law office is situated." [7] DR 9-101(C)(3) provides: "A lawyer shall: "Maintain complete records of all funds, securities and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the lawyer's client regarding them. Every lawyer engaged in the private practice of law shall maintain and preserve for a period of at least five years after final disposition of the underlying matter, the records of the accounts, including checkbooks, canceled checks, check stubs, vouchers, ledgers, journals, closing statements, accountings or other statements of disbursements rendered to clients or equivalent records clearly and expressly reflecting the date, amount, source and explanation for all receipts, withdrawals, deliveries and disbursements of funds or other property of a client." [8] DR 9-101(C)(4) provides: "A lawyer shall: "Promptly pay or deliver to a client as requested by the client the funds, securities or other properties in the possession of the lawyer which the client is entitled to receive. Under circumstances covered by DR 9-101(A)(2), the undisputed portion of the funds held by the lawyer shall be disbursed to the client." [9] ORS 9.527(4) provides: "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: "The member is guilty of willful deceit or misconduct in the legal profession[.]" [10] The record does not disclose the nature of the accused's earlier disciplinary offense. [11] ABA Standard 9.22 provides in part: "Aggravating factors include: "(a) prior disciplinary offenses; "(b) dishonest or selfish motive; "(c) a pattern of misconduct; "(d) multiple offenses; "(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; "* * * * * "(i) substantial experience in the practice of law; "(j) indifference to making restitution."

589ee88c724b2ab47e6f075b8393ebccf6ecedbfa54bd2bd77a494aa2d49e774

1995-11-24T00:00:00Z

57edf2c8-d171-49e9-8632-aaccd5d7470a

Rooney v. Kulongoski

322 Or. 15, 902 P.2d 1143

oregon

Oregon Supreme Court

902 P.2d 1143 (1995) 322 Or. 15 Daniel A. ROONEY and Julie Davis, Petitioners, v. Theodore KULONGOSKI, Attorney General, State of Oregon, Respondent. Lon T. MABON, Petitioner, v. Theodore KULONGOSKI, Attorney General, State of Oregon, Respondent, and Daniel A. Rooney and Julie Davis, Intervenors. No. SC S41985, S41999. Supreme Court of Oregon, In Banc. Argued and Submitted February 28, 1995. Decided September 28, 1995. *1145 Charles F. Hinkle, ACLU Foundation of Oregon, Inc., Portland, argued the cause and filed the petition, for petitioners Daniel A. Rooney and Julie Davis. Lawrence J. Hall, Silverton, argued the cause and filed the petition, for petitioner Lon T. Mabon. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the responses, for respondent. With him on the responses were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem. GILLETTE, Justice. This is a ballot title proceeding consolidating two petitions that challenge the Attorney General's certified ballot title for a proposed initiative measure that has been designated as "Elections Division # 13" by the Secretary of State's office. Petitioner Lon T. Mabon is a chief petitioner for the measure. He submitted timely written comments to the Secretary of State concerning the draft ballot title and thereby preserved the right to reiterate those positions in this challenge to the Attorney General's certified ballot title. ORS 250.067(1), 250.085(2). Petitioners Daniel A. Rooney and Julie Davis (hereafter collectively "Rooney") also have complied with the statutory requirements. Both Mabon and Rooney challenge the Attorney General's certified Caption, Question, and Summary for the ballot title. Before turning to the merits of the parties' contentions regarding the adequacy of the Attorney General's wording of the ballot title, we consider three threshold issues. The first two pertain to the fact that Lon T. Mabon is a chief petitioner for four separate ballot measures, all of which relate to the same general subjects and use text that is often similar or identical,[1] designated by the Secretary of State as Elections Division numbers 13, 17, 21, and 25. As noted, the petitions at issue in this consolidated case concern Elections Division *1146 # 13. During oral argument to this court, one of the counsel for Mabon informed us that a total of eight proposed measures had been submitted to the Secretary of State, but that the chief petitioners intended to circulate no more than one of the measures for signatures. That statement later was clarified, however, during oral argument in the challenge to the ballot title for Elections Division #17, when another counsel informed us that the chief petitioners intend to circulate for signatures one or more of the remaining proposed measures (by that time reduced in number to four), once the ballot title preparation and challenge process is completed. The Attorney General argues that an opinion by this court concerning this or any of the three other challenged ballot titles[2] would constitute an advisory opinion, for which the court lacks constitutional authority, and that the court therefore should refuse to certify any ballot title. When initially made, that argument was based on the factual premise that the chief petitioners intended to circulate one of four (or, perhaps, one of eight) proposed measures for signatures and the consequent legal assertion that the existence of a justiciable case or controversy as to any of the cases was, therefore, speculative. As noted above, however, various counsel for the chief petitioner have since left open the possibility that the chief petitioner may circulate all the measures presently before the court. The real possibility that the chief petitioner will circulate each of the proposed measures for signatures negates the legal and factual premises of the Attorney General's "advisory opinion" theory. It is not well taken. Rooney asserts that the court should either (1) impose a sanction against Mabon for misuse of the ballot title process; (2) require the chief petitioners to identify which proposed measure or measures they intend to circulate, before the court will issue a decision in any of the four pending cases; or (3) certify an identical ballot title for each measure.[3] We consider those contentions in turn. Rooney first asserts that the submission by the chief petitioner of multiple measures on the same general subject is an abuse of the initiative process, because what the chief petitioner really is doing is shopping for a ballot title: He can review the ballot titles certified for each of the proposed measures and circulate the measure with the ballot title most to his liking. Rooney relies on the court's "inherent" authority to impose sanctions to protect the integrity of the judicial process from such abuse. We have some difficulty with Rooney's premise. Rooney does not point to any wayand we know of nonein which the chief petitioner has failed to comply with the statutes pertaining to the initiative process. Assuming (without deciding) that Rooney is correct in labeling the chief petitioner's sponsorship of multiple proposed measures as a shopping expedition, that expedition does not appear to violate the ballot title preparation and certification process, of which this court's judicial review is merely one part. It may be that the next legislature will wish to consider whether such activities by sponsors of initiative measures is an abuse that calls for some reform in the process but, at this time, the chief petitioner has done no more than the law permits. Assumingagain, without decidingthat we would have the authority to do so, we decline to consider imposing a sanction under such circumstances. Rooney next asserts that the court should require the chief petitioners to disclose *1147 which proposed measure or measures they intend to circulate, before the court will certify a ballot title. That assertion is akin to the underlying contention made by the Attorney General regarding advisory opinions, i.e., it assumes that the court is being asked to render decisions regarding the ballot titles for some proposed measures that will never see the light of the signature-gathering day. That assertion also has the same factual and legal infirmities as the advisory opinion theory argued by the Attorney General and, similarly, is not well taken. The Attorney General has certified four differently worded ballot titles for the four proposed measures. Rooney's final argument, before addressing the merits, is that application of ORS 250.035(2) should lead to the certification of the same ballot title for each of the four pending measures. That statute provides: As a general proposition, our task in ballot title review cases, pursuant to ORS 250.085(5),[4] is to determine whether the Attorney General's decision to certify a particular ballot title for a particular proposed measure constitutes "substantial compliance with the requirements of ORS 250.035." In the present cases, however, in which the four proposed measures all deal with the same topic, Rooney essentially is asking us to hold that substantial compliance with ORS 250.035(2) would require the Attorney General to certify the same ballot title for each of the pending measures. To discern the legislative intent behind a statute, we look first to the statute's text and context and, if the legislature's intent is clear from that inquiry, then we look no further. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). ORS 250.035(2) starts from the unexceptional premise, implicit in its text and consistent with the overall statutory context, that a proposed initiative measure will receive a ballot title. See ORS 250.035(1) (form of ballot title of any initiated measure); ORS 250.065, 250.067, and 250.085 (procedures for preparation and certification of ballot title). Assuming for the purpose of discussion that all the proposed measures are identical in material respects (as Rooney asserts is the case),[5] there are three conceivable permutations of ORS 250.035(2) when it comes to certifying ballot titles for the measures: (1) the statute requires certifying the same ballot title for each measure; (2) the statute requires certifying different ballot titles for each measure; or (3) the Attorney General can comply substantially with the statute by certifying the same ballot titles, similar ballot titles, or different ballot titles, depending on the measures and recognizing the possibility that more than one of the choices may constitute substantial compliance in a given situation. The first permutation, viz., certifying the same ballot title for all, is the obverse of the statutory text. The statute provides that ballot titles shall not resemble each other so far as to create confusion. The obverse of that proposition is that ballot titles shall resemble (or perhaps be identical with) each other to avoid confusion. There is, however, no support in the text or the context of the statute for a conclusion that the statute necessarily mandates its obverse. A fair inference from the statute is that a ballot title may resemble (or perhaps be identical with) another, if to do so probably will not create confusion, but the statute cannot support the *1148 construction that a ballot title must resemble or perhaps even be identical with another to avoid confusion. Neither is the second permutation, viz., different ballot titles are always required, contemplated by the statute. There is nothing in the statute's text or context to suggest that it requires a differently worded ballot title for a measure that is materially identical to another measure.[6] We turn to consider the third permutation. As noted above, one fair inference from the statute is that a ballot title may resemble (or perhaps be identical to) another, if it probably will not create confusion. And it follows easily from the text that a ballot title may be different from another, if it probably will not create confusion. That is, the overall statutory concern is with the probable creation of confusion, and the statutory mandate is that ballot titles shall not resemble each other so far as probably to create confusion. Thus, the permissible amount of resemblance between or among ballot titles in a given situation must be a function of that particular situation. The statute prescribes no one choice for all situations; indeed, more than one choice may satisfy the statute in any given situation. The third permutation thus is consistent with the text and context of the statute; the other interpretive options are insupportable. We therefore hold that the Attorney General may comply with ORS 250.035(2) by certifying identical, similar, or different ballot titles for materially identical proposed measures, depending on the measures and recognizing that, in certain situations, more than one of those options may be an acceptable form of substantial compliance. Of course, the statute is not limited by its terms to situations in which the measures are materially identical. The statutory rule is the same, and the same principles regarding the prevention of confusion apply with equal force if the measures are not materially identical. Having stated the proper office for ORS 250.035(2), our next task is to describe and then to implement a methodology that will enable us to certify ballot titles for the various measures pursuant to ORS 250.085, while taking both ORS 250.035(1) and (2) into account. The nature of the inquiry under each of those statutory subsections, ORS 250.035(1) and (2), dictates the order in which they will be considered in a ballot title review proceeding. Under subsection (1), the focus is on the content of ballot titles for individual proposed measures. By contrast, the focus of subsection (2) is limited to situations in which there are at least two proposed ballot measures that necessitate a comparison of their respective ballot titles. It follows that, in performing our review function, we should proceed from the particular to the general, i.e., we first should focus on the requirements of subsection (1) with respect to the particular proposed measure before us. Although subsection (2) plays a role in the final analysis, comparison of ballot titles to determine whether they probably will create confusion comes second, not first. This is compelled not only by logic but by necessity. Neither the Attorney General nor this court can know or predict what proposed measures will be circulated, with what relative vigor signatures for those measures will be sought, or which measures actually will receive sufficient signatures to be placed on the ballot. The first responsibility of the Attorney General and the court to the electorate, therefore, is to ensure an accurate ballot title properly describing the individual measure. Accordingly, we will proceed as follows to decide the ballot title challenges in the present case, along with those mounted with respect to Elections Division numbers 17, 21, and 25: *1149 1. In each case, we will perform an independent inquiry into the validity of the particular challenges made by petitioners, to determine whether the Attorney General's certified ballot title substantially complies with the requirements of ORS 250.035(1). 2. If the Attorney General's certified ballot title is not deficient in the particulars asserted by petitioners under the requirements of ORS 250.035(1), that ballot title will be changed thereafter only if it becomes necessary to do so to bring about substantial compliance with ORS 250.035(2). 3. If the Attorney General's certified ballot title is deficient in one or more particulars asserted by petitioners, then the court will draft a ballot title that cures any defect. Thereafter, that ballot title will be changed only to the extent necessary to comply with the requirements of ORS 250.035(2). 4. Once the court has proceeded through steps 1 to 3 and has thus adjudicated the validity of all the particular claims under ORS 250.035(1) as to all the measures, then it will consider Rooney's contention that application of ORS 250.035(2) should result in the certification of the same ballot title for each of the measures. That discussion will be found at the conclusion of this opinion. In addition to the foregoing arguments, an issue arose at oral argument in this case, during colloquy between members of the court and counsel for the parties, concerning whether our ballot title review function offends the principle of separation of powers. We hold that it does not. The separation of powers is required by Article III, section 1, of the Oregon Constitution, which 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." (Emphasis supplied.) Clearly, the enactment by the people of initiative or referendum measures is a legislative act. Or. Const., Art. IV, § 1 ("The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly"). But, concerning the initiative and referendum process, there is an express constitutional provision that allows the legislature to enlist the other branches of government. Article IV, section 1(4)(b), of the Oregon Constitution, provides: (Emphasis supplied.) Although the Oregon Constitution does not require the preparation of ballot titles, we shall assume, for the purposes of this case, that the preparation of a ballot title is a legislative function. It is obvious that such ballot titles can significantly enhance the initiative and referendum process by helping voters to inform themselves, on as objective a basis as possible, concerning the nature of the measures before them. The ballot title process, including the judicial review portions of that process, thus is a part of the legislature's response to the power conferred on it by Article IV, section 1(4)(b), to enact laws governing the initiative and referendum process that are "not inconsistent" with that process. Case law from this court supports this same proposition. This court addressed a similar issue in In re Ballot Title, 247 Or. 488, 431 P.2d 1 (1967). The Attorney General there had prepared a ballot title which, pursuant to a 1967 legislative act, automatically went to this court for "review" to determine if it met statutory requirements. If the ballot title was deemed to be "sufficient," then the court was to file it with the Secretary of State; if the court found that the ballot title did not meet the statutory requirements, then it was to "write a substitute ballot title" and file it with the Secretary of State. 247 Or. at 490, 431 P.2d 1. The court explained its conclusion that the ballot title "review" statute was unconstitutional, in violation of Article III, *1150 section 1, of the Oregon Constitution (the separation of powers provision), this way: " * * * * * " * * * [T]he present statute seeks to have the court perform a nonjudicial function, contrary to the prohibition of Art III, § 1." Id. at 491-92, 95, 431 P.2d 1. In contrast to the statute held to be invalid in the case of In re Ballot Title, the current statutory scheme has none of the same infirmities. This court does not review all ballot titles, but only those in which there has been a challenge filed in this court. Those challenges are concrete disputes, brought by interested parties. The court has a limited, statutorily prescribed standard of review and engages in review of specific challenges to the Attorney General's certified ballot title to determine whether it is in substantial compliance with the statutory requirements. ORS 250.085(5). This is a by-now familiar exercise, familiar in its own context but familiar also because it is no different in its adjudicative essence than is the review of any other Executive Department action that ordinarily comes before the courts in the context of judicial review under the Oregon Administrative Procedures Act, ORS 183.480 et seq. The Attorney General has conducted a statutorily prescribed function of that office, and a court challenge has been brought contesting the legal validity of his action. We can find no basis under the premises of the decision in In re Ballot Title to suggest that there is any constitutional separation of powers or other principle limiting judicial authority to adjudicate such a claim. The fact that ballot title decisions may say something, before a measure is circulated for signatures, about the measure, its subject, chief purpose, and major effect, does not turn the court's decision into an unconstitutional exercise of a nonjudicial function. Rather, any such observations occur only in the context of determining whether the Attorney General's linguistic choices in the challenged ballot title meet statutory standards. In other words, in determining the validity of the Attorney General's certified ballot title, the court is performing its case-deciding function. In certifying a ballot title to the Secretary of State, the court affords to the parties whatever relief, if any, to which they are entitled pursuant to the justiciable challenge that was brought. The fact that the court is asked to adjudicate an otherwise justiciable case during the electoral process does not alter the foregoing analysis. See generally OEA v. Roberts, 301 Or. 228, 721 P.2d 833 (1986) (approving judicial review of whether the Secretary of State had properly discharged her responsibility to review proposed laws for compliance with the constitutional one-subject rule); see also State ex rel. Keisling v. Norblad, 317 Or. 615, 860 P.2d 241 (1993) (mandamus authority of this court available to adjudicate a pre-election dispute over whether the Secretary of State was obliged to place a measure on the ballot).[7] The fundamental genius of the constitution may be found in the creation and separation *1151 of three distinct branches of government.[8] But that separation is not always complete, and the roles that governmental actors are asked to play not infrequently interact in material ways. Thus, this court has recognized that the separation of powers does not require or intend an absolute separation between the departments of government. State ex rel. Acocella v. Allen, 288 Or. 175, 180-81, 604 P.2d 391 (1980); Boyle v. City of Bend, 234 Or. 91, 100-02, 380 P.2d 625 (1963). Rather, the court has cautioned that a violation of separation of powers may be found only if the problem is clear, State ex rel. Emerald PUD v. Joseph, 292 Or. 357, 361, 640 P.2d 1011 (1982), and has set out two inquiries to determine whether there is a separation-of-powers violation. The first inquiry is whether one department of government has "unduly burdened" the actions of another department in an area of responsibility or authority committed to that other department. Id. at 361-62, 640 P.2d 1011; Ramstead v. Morgan, 219 Or. 383, 399, 347 P.2d 594 (1959). That inquiry corresponds primarily to the underlying principle that separation of powers seeks to avoid the potential for coercive influence between governmental departments. See Monaghan v. School District No. 1, 211 Or. 360, 364-66, 315 P.2d 797 (1957) (recognizing the principle). The second inquiry is whether one department is performing the functions committed to another department. State ex rel Frohnmayer v. Oregon State Bar, 307 Or. 304, 310, 767 P.2d 893 (1989); In re Ballot Title, 247 Or. at 495, 431 P.2d 1. That inquiry corresponds primarily to the underlying principle that separation of powers seeks to avoid the potential for concentration of separate powers in one department. Monaghan, 211 Or. at 364-65, 315 P.2d 797. It appears clear that the court's role in adjudicating challenges to the legal adequacy of the Attorney General's ballot title does not place an "undue burden" on the executive branch, here personified by the Attorney General. As noted above, judicial review of the Attorney General's acts done pursuant to statute is a well-established role for the court and does not present the potential for the court to influence coercively the Attorney General. See generally Lipscomb v. State Bd. of Higher Ed., 305 Or. 472, 478-79, 753 P.2d 939 (1988) (traditional divisions of authority and exercises of power are considered with due respect by the courts in the constitutional analysis, although the existence of a historically accepted practice will not be dispositive). Neither is the court's adjudicatory role an impermissible burden on the court. The court is being asked only to carry out classic adjudicatory functions in the context of a live controversy between truly contending parties. It is not being asked to perform the functions committed to the Attorney General. The legislature has corrected the statutory scheme held invalid in 1967 in the In re Ballot Title decision, which did amount to a shift of functions, and the present system now limits the court to a proper adjudicatory role. We turn to the remaining branch of government. The people, when carrying out their responsibilities under the initiative and referendum process, are a part of the Legislative Department of government. Or. Const., Art. IV, § 1(2)-(5). But for purposes of a separation-of-powers analysis, it is clear that the court is not placing an undue burden on the people, in an area committed to the people, nor is the court performing a function committed to the people. The ballot title preparation process has never been a function that the people have chosen to reserve to themselves. Rather, the other part of the legislative branch, the Legislative Assembly, has by statute placed the responsibility for preparing ballot titles in the Executive Department, subject to judicial review by this court. To summarize: The role accorded the court in the ballot title process is a proper adjudicatory function, well within the court's recognized range of judicial authority. The exercise of that authority does not unduly burden the Attorney General (as part of the Executive Branch) or the people (as part of *1152 the Legislative Branch), or vice versa, nor does it perform a function committed to either of them. This court does have the constitutional authority to decide the ballot title challenges at issue here. Subject to the methodological principles discussed above, we now consider the challenges of the parties to the Caption, Question, and Summary, respectively. We review the Attorney General's certified ballot title for "substantial compliance" with the statutory requirements, pursuant to ORS 250.085(5). We begin by setting out the full text of the measure and of the Attorney General's certified ballot title. The Measure Elections Division # 13 states: The Attorney General's certified ballot title for Elections Division # 13 states: ORS 250.035(1)(a) requires a Caption of not more than 10 words that "reasonably identifies the subject of the measure." Rooney asserts that homosexuality is the subject of the measure and that the term "other sexual behavior" is not a necessary piece of the Caption. He also asserts that the wording of the Caption is awkward, obscure, and unclear, and should be changed to state, "AMENDS CONSTITUTION: FORBIDS CIVIL RIGHTS PROTECTION BASED ON HOMOSEXUALITY." We agree with Rooney's criticism with respect to the Caption's clarity. The awkwardness and lack of clarity undoubtedly stem from the phrase "not civil rights basis," which leads to queries such as "basis of what?" The Attorney General responds that the ballot title substantially complies with the statutory requirement that a Caption "reasonably identifies the subject of the measure." ORS 250.035(1)(a). The Attorney General also acknowledges, however, that the wording of the Caption is awkward and agrees that inclusion of the term "other sexual behavior" will have little practical impact. If the court concludes that the Caption is flawed, the Attorney General would not object to Rooney's proposed substitute wording. On a related point, Mabon contends that the Caption is inaccurate, misleading, and confusing. Mabon asserts that the Caption misstates the main subject of the initiative, which is that sexual behavior of any kind simply should not be the basis for a "minority" classification. He specifically objects to the singling out of homosexuality in the Caption (contending that the measure applies to "any form of sexual behavior, heterosexual, transgender or otherwise") and, relying on Sampson v. Roberts, 309 Or. 335, 340, 788 P.2d 421 (1990), asserts that the Attorney General should use the actual words of the measure. He proposes a Caption that states, "AMENDS CONSTITUTION: PROHIBITS MINORITY STATUS BASED ON SEXUAL BEHAVIOR, DESIRES." The wording of the measure is not limited to sexual behavior, but also includes provisions that relate to "sexual behavior or desires." (Sections 1 and 1(a).) The measure also either singles out or specifies "homosexuality" in four separate instances. (Sections 1(b) and 4.) Thus, although the measure does state that "minority status shall not be based on sexual behavior or desires," it also is clear from the text of the measure itself that the Attorney General's certified Caption, when it refers specifically to homosexuality in describing the subject of the measure, has substantially complied with the statutory requirement that the Caption reasonably identify the subject of the measure.[9]Cf. June v. *1154 Roberts, 301 Or. 586, 589, 724 P.2d 267 (1986) (rejecting the wording of an Explanatory Statement for a measure that referred to "an existing nuclear fueled thermal power plant in Oregon" and certifying an Explanatory Statement that named specifically the Trojan Nuclear Power Plant at Rainier, which was the only such entity in existence in Oregon). The mandate of ORS 250.035(1) to present, in a few words, the subject, the chief purpose, and the major effect of a measure in a ballot title requires that judgments be made about the relative significance of the provisions of a measure. Although reference to "sexual behavior" in the broader sense might be appropriate in another portion of the ballot title, a Caption containing a 10-word description of the subject of this measure (or, more accurately, an 8-word description of the subject of the measure, following the introductory phrase, "AMENDS CONSTITUTION") does not substantially comply with the statutory requirement when it includes reference to "other sexual behavior." Thus, some alteration to the Caption is appropriate. Mabon also contends that the Caption should refer to "minority status," rather than "civil rights." He asserts that the measure uses and defines the term "minority status," and that the term is now widely understood and is clearer and more precise than "civil rights," which frequently evokes an emotional response. All parties agree that either civil rights or minority status is at the core of the measure and is properly included as a concept in any Caption identifying the subject of the measure. This court previously rejected the use of the term "minority status" in a ballot title for a measure sponsored by the same chief petitioner, stating that the concept "has no recognized meaning outside of this measure." Mabon v. Keisling, 317 Or. 406, 416, 856 P.2d 1023 (1993). That remains true. Moreover, the Attorney General's Caption utilizes the words of the measure itself by referring to "civil rights," which is a term in common parlance that is utilized by the measure to define "minority status." Section 5 provides: "The term minority status shall refer to any class or category of individuals created in the law as a special civil rights classification such as race, religion, gender, national origin, etc." (Emphasis added.) The Attorney General's Caption substantially complies with the statutory requirement that it reasonably identify the subject of the measure when it refers to "civil rights." To summarize, the Caption's express reference to "homosexuality" and its use of the term "civil rights" satisfy the requirements for a ballot title Caption. The inclusion of the phrase "other sexual behavior" does not. We will revise the Caption to reflect those decisions. Furthermore, the additional words available with the deletion of "other sexual behavior" can permit us to rectify the awkward phrasing in the Attorney General's Caption, although that awkwardness might not otherwise be an independent basis for a change. Based on the foregoing analysis of the Attorney General's Caption, we conclude that an apt way to describe the proposed measure before us (and the other three proposed measures whose ballot title challenges also are resolved this date) is to say that the measure deals with the powers of state and local governments to affect homosexuality and homosexuals, and that it does so by specifically restricting those powers. We believe that that general subject is captured by the following Caption: "AMENDS CONSTITUTION: RESTRICTS LOCAL, STATE GOVERNMENT POWERS CONCERNING HOMOSEXUALITY." Subject to the qualifications noted below, we adopt that Caption as substantially complying with the requirements of ORS 250.035(1)(a). Consistent with our methodology for certifying the ballot titles for these four related cases, the final wording for the Caption will be decided after application of ORS 250.035(2) (re: confusion among ballot titles). That discussion will be found later in this opinion. Infra at 43, 902 P.2d at 1159. ORS 250.035(1)(b) requires a Question of not more than 20 words that "plainly *1155 phrases the chief purpose of the measure." The chief purpose is the most significant aim or end that a measure is designed to bring about. Mabon v. Keisling, 317 Or. at 413, 856 P.2d 1023. The Attorney General's certified Question asks, "Shall constitution forbid basing civil rights on homosexuality, other sexual behaviors, desires; bar spending public funds in way approving homosexuality?" Mabon repeats his objection to the use of the term "civil rights," and we reject that position in this context as well. Mabon also contends that barring certain public funding is not a chief purpose of the measure, but rather is an effect of the chief purpose, which assertedly is to prohibit the granting of "minority status" based on sexual behavior or desires and to protect individual rights of conscience. Mabon proposes a Question that asks, "Shall Constitution be amended to prohibit minority status based on sexual behavior or desires and to protect rights of conscience?" The Attorney General responds that a constitutional ban on expenditure of public funds is central to the chief purpose. He further asserts that one consequence of the measure is that "the public spending provision of the measure would allow some or all homosexuals to be barred from public employment merely because they are homosexuals." The Attorney General also asserts that the "right of conscience" provision does nothing more than reiterate existing constitutional provisions and should not be featured as a chief purpose of the measure. We do not find it necessary to the analysis in this case to agree or disagree with the Attorney General's legal conclusions respecting public employment and rights of conscience. It is sufficient for purposes of our review to conclude that the measure's express constitutional bar on expenditure of public funds "in a manner that has the purpose or effect of expressing approval of homosexuality" is properly characterized as a chief purpose of the measure. It is not an effect of the chief purpose, as Mabon characterizes it, because it is independent of and does not necessarily follow from the provisions regarding civil rights and minority status. Accordingly, we reject Mabon's challenge to the Attorney General's certified Question. Rooney asserts that the chief purpose of the measure is that it seeks: (1) to give constitutional recognition to a right to discriminate (including one express use of the term "discrimination" in section 1(b)); (2) to prevent government from extending civil rights protections to homosexual persons; and (3) to prevent courts from recognizing a claim of discrimination based on a person's homosexuality. Rooney proposes to change the last clause of the Attorney General's Question, after the semi-colon, as follows, "Shall constitution forbid basing civil rights on homosexuality, other sexual behaviors, desires; permit discrimination against homosexuality in spending public funds?" The Attorney General responds that both his Question and Rooney's proposed alternative are accurate and that the measure "concerns discrimination on the basis of homosexuality." The Attorney General states that he declined to use the word "discrimination" in the Question because of this court's holding in Mabon v. Keisling, 317 Or. at 416, 856 P.2d 1023. In that case, this court rejected the Attorney General's use of the term "discrimination" in the ballot title and stated that "the use of the word `discrimination,' while accurate, is better avoided (if possible), because of the negative context in which that word normally is used." The Attorney General's choice to use, in place of the word "discrimination," another accurate description is an acceptable choice, within the bounds of the substantial compliance for which we review ballot titles. Rooney's challenge, to compel the use of the term "discrimination" in the Question, is not well taken. We have rejected each of the parties' challenges to the Attorney General's certified Question. Subject to the qualifications noted below, we accept the Attorney General's certified Question as substantially complying with the requirements of ORS 250.035(1)(b). It provides: "Shall constitution forbid basing civil rights on homosexuality, other sexual behaviors, desires; bar spending public funds in way approving homosexuality?" *1156 Consistent with our methodology for certifying the ballot titles for these four related cases, the final wording for the Question will be decided after application of ORS 250.035(2) (re: confusion among ballot titles). That discussion will be found later in this opinion. Infra at 47-49, 902 P.2d at 1161-1162. ORS 250.035(1)(c) requires a "concise and impartial statement of not more than 85 words summarizing the measure and its major effects." The purpose of the Summary is to help voters understand "what will happen if the measure is approved," Fred Meyer, Inc. v. Roberts, 308 Or. 169, 175, 777 P.2d 406 (1989), but speculation about potential secondary effects is not permitted, Mabon v. Keisling, 317 Or. at 414, 856 P.2d 1023. Mabon raises a number of challenges to the Attorney General's Summary. He first asserts that the Summary fails to mention that the measure would guarantee the right of conscience to object to certain sexual behavior without having the exercise of that right considered to be discrimination. Mabon seeks a sentence in the Summary that would say: "Affirms constitutional right of conscience as basis to prohibit homosexual marriages and public expenditures approving homosexuality."[10] The Attorney General again asserts that the measure does no more with respect to the right of conscience than existing provisions of the state constitution already provide.[11] We disagree with Mabon's challenge, but not for the reason given by the Attorney General, as to which we express no opinion. We conclude that the Attorney General's Summary substantially complies with the statutory requirements by conveying sufficient and accurate information about what would happen if the measure were to pass, including the asserted individual right to object to sexual behaviors without that objection being deemed discrimination. The pertinent provision of the measure is section 1(b), which provides: " * * * * * The Attorney General's Summary, in part, states: " * * * * * * The Attorney General's Summary conveys the idea that the measure amends the constitution and also lists two of the specifics set out by section 1(b) of the measure (public funding and marital status). The Summary also states that the constitution would forbid *1157 basing civil rights on sexual behavior or desires. Mabon argues that this is insufficient, because it fails to mention either the right of conscience or the fact that, if the proposed measure passed, the exercise of that right is not discrimination. Mabon does not, however, explain how his point is not covered conceptually by the Attorney General's statement that the effect of the measure would be for the Constitution to forbid basing civil rights on sexual behavior or desires. Whether a Summary states that government cannot base civil rights on sexual behavior or desires or, instead, states the corollary, viz., that an individual decision to exercise a right of conscience on the basis of sexual behavior or desires is not discrimination cognizable by the government, is a choice that falls within permissible range of choices that the Attorney General could make. We conclude that, as against this challenge, the Attorney General's Summary substantially complies with the requirement that it be a concise and impartial summary of the measure and its major effects. Mabon next contends that the Attorney General's Summary fails to mention the "safeguards" in section 2 of the measure and that this failure demonstrates bias. Mabon would insert a sentence in the Summary that states that the measure "[p]reserves basic constitutional rights and access to public services and privileges." The Attorney General responds that those "safeguards" are no more than the preservation of the status quo, which should not bear separate mention. The Attorney General also contends that Mabon's proposed wording, which is not found in the proposed measure, would suggest that this court had given its imprimatur to the measure's constitutionality. We agree with Mabon that section 2 is a major effect of the measure, at least as significant as other effects stated in the Attorney General's Summary, insofar as it states limitations on the effect of the measure if passed. Space permitting, it should be mentioned in the Summary. We also conclude, however, that Mabon's proposed substitute is argumentative and does not track the terms of the measure. We will certify a ballot title Summary for this measure that refers to the effect of section 2 of the measure. Mabon next objects to the format of the Summary, asserting that voters who read quickly may be misled if they miss the word "cannot" in the phrase "Governments cannot:" We reject that argument. If we may not assume that the voters can read, or that they are able to tell the difference between "can" and "cannot," then this entire exercise is senseless. We certified the same format in Mabon v. Keisling, 317 Or. at 418, 856 P.2d 1023, and Mabon's objection to it here is not well taken. Mabon's final objection relates to how the Summary treats section 4 of the measure. That section provides: Mabon objects to the sentence in the Summary that states that the measure "[b]ans pro-homosexuality books from public libraries unless books meet established local community standards." Mabon asserts that this is not so, but that the measure "would only require that pro-homosexuality books be available to minors with parental supervision, and meet local community standards established through existing library review processes." The Attorney General responds that the measure clearly provides that the books must meet community standards to be in the library. The Attorney General has interpreted the measure in a particular way, and the parties are trying to draw the court into the same exercise.[12] Of course, any attempt to *1158 summarize or to distill a proposed measure by any formula of words short of a rote repetition of the measure will always involve at least minimal interpretation of the measure. But our task is to see to it that the interpretive exercise be minimal, because that is the best way to ensure that the Summary will meet the mandate of ORS 250.035(1)(c) that it be "concise and impartial." We therefore will revise the Summary's description of section 4 simply to summarize the language of the measure. Proponents and opponents of the measure are free to trumpet its purported effects or to point to its possible ambiguities, but it is not the court's role to engage in an abstract exercise of pre-enactment constitutional interpretation. Rooney asserts that one major effect of the measure would be to invalidate existing local anti-discrimination ordinances. Rooney asserts that there is room in the Summary to refer to this and proposes that the Summary state: "Overturns local ordinances that protect homosexuals from discrimination in jobs, housing." The Attorney General agrees that the measure would make such ordinances unconstitutional. The Attorney General asserts that his ballot title substantially complies, but would not object to the addition of a sentence that would help the voters to understand this as one of the measure's major effects. The Attorney General proposes: "Bars [or bans, or forbids] local ordinances that protect homosexuals from discrimination in jobs, housing." It may be, as Rooney argues and the Attorney General concedes, that one of the effects of the proposed measure would be to constitutionally nullify at least some local ordinances. But the possible range in the wording of such ordinances makes it difficult to be confident of any generalization concerning them. Moreover, it would extend well beyond this court's usual (albeit self-imposed) restraint to announce such an abstract ruling of constitutional interpretation. Finally, and given the very ordinancespecific nature of the constitutional ruling that Rooney seeks, it is not at all clear that the effect that Rooney wishes to have highlighted is so much more important than those subjects that the Attorney General has placed in his certified ballot titles that it is necessary, as a matter of law, to make a substitution. We hold that the addition that Rooney seeks is not necessary in order to ensure that the Attorney General's caption conforms to the requirements of ORS 250.035(1)(c). To summarize: We reject the addition of a sentence to describe the effect of the measure on existing local ordinances. We reject the addition of a reference to the right of conscience and the contention that the format of the Summary is inadequate. We agree that the Summary should refer to the limitations in section 2, and we conclude that the description of the public library provision should summarize the wording of the measure. Subject to the qualifications noted below, we hold that the following Summary substantially complies with the requirement of ORS 250.035(1)(c) that there be a Summary that concisely and impartially summarizes the proposed measure and its major effects: *1159 We turn now to a discussion of whether, in light of the wording of the present proposed measure and the other measures that are before us today, the provisions of ORS 250.035(2) require us to modify the ballot title wording that we thus far have found to conform to statutory requirements. Faced with multiple related measures and ballot title challenges, and having tentatively revised a number of ballot title provisions, both with respect to the present measure and with respect to Elections Division Numbers 17, 21, and 25, we now must consider the potential for confusion between and among the various titles.[13] We begin by restating that ORS 250.035(2) provides: "The ballot title shall not resemble, so far as probably to create confusion, any title previously filed for a measure to be submitted at that election." We already have held that the statute may be satisfied by giving identical measures the same, similar, or different ballot titles, depending on the circumstance, and that more than one of those choices may be an acceptable choice for the Attorney General to make in a particular situation. Above at 23, 902 P.2d at 1148. The statutory rule is the same, and the same principles regarding the prevention of confusion apply with equal force if the measures are not materially identical, although the danger that similar or identical ballot titles will be used under those circumstances is far less. The stated purpose of ORS 250.035(2) is to help prevent voter confusion. We have noted in a companion case that the text of the measures for Elections Division # 13 and # 17 is nearly identical, and we deemed "the variance to be immaterial for purposes of a ballot title." Mabon v. Kulongoski, 322 Or. at 68 & n. 2, 902 P.2d at 1172 & n. 2 (1995). (Elections Division #17). Different ballot titles for two measures that are nearly identical textually and substantively would run too great a risk of confusing voters by suggesting that there are differences in the measures when such differences do not exist. Thus, we believe that the ballot titles for Elections Division # 13 and # 17 should be the same, and we will treat them accordingly in the analysis that follows. 1. The Caption. Set out below is a statement of each of the Captions and a summary of the pertinent rulings on the parties' challenges to those Captions. a. Elections Division # 13: "AMENDS CONSTITUTION: HOMOSEXUALITY, OTHER SEXUAL BEHAVIOR NOT CIVIL RIGHTS BASIS." We have held earlier in this opinion that the Caption's express reference to "homosexuality" satisfies the requirements for a ballot title Caption, while the inclusion of the phrase, "other sexual behavior," does not. In the course of that discussion, we concluded that the underlying point made by the Caption was a core point of the measure (a conclusion shared by all the parties in their briefing) and that it was properly included as a concept in a Caption. We concluded that the measure deals with the powers of state and local governments to affect homosexuality and homosexuals. Finally, we acknowledged the awkward phrasing of the Caption, which is remediable on revision. Above at 32-35, 902 P.2d at 1153-1154. b. Elections Division # 17: "AMENDS CONSTITUTION: LAWS CANNOT GUARANTEE EQUAL TREATMENT FOR HOMOSEXUAL PERSONS." We have held that the Caption does not satisfy the statutory requirements because of its rhetorical content. As with Elections Division # 13, we have concluded that the underlying point made by the Caption was a core *1160 point of the measure and that it was properly included as a concept in the Caption. Mabon v. Kulongoski, 322 Or. at 71-73, 902 P.2d at 1174-1175. c. Elections Division # 21: "AMENDS CONSTITUTION: BARS SPENDING PUBLIC FUNDS IN WAY APPROVING HOMOSEXUALITY." We have rejected this Caption as being too narrowly focused and not capturing the subject of the measure. Because that conclusion left us with no Caption, we were compelled to formulate a statement of the subject of the measure. We pointed to the various provisions of the measure, all of which are contained in one form or another in Elections Division # 13 and # 17, and stated: Rooney v. Kulongoski (Elections Division #21), 322 Or. 77, 85-86, 902 P.2d at 1181 (1995). d. Elections Division # 25: "AMENDS CONSTITUTION: BARS LEGAL PROTECTIONS BASED ON SEXUAL BEHAVIOR, DESIRE." We have disapproved of the use of the word "bars," concluding that the Caption should, if possible, recognize both the substance of the "minority status"[14] provision and the limitations on that provision as expressed in the measure. We also have recognized that, if the word "limits" is substituted for "bars," the foregoing goal is achieved. Rooney v. Kulongoski (Elections Division #25), 322 Or. 90, 97, 902 P.2d 1183 (1995). With that substitution, the resulting Caption for this narrow measure complies with the requirements of ORS 250.035(1). The foregoing demonstrates that three of these proposed measuresNumbers 13, 17, and 21are concerned with the same basic overall subject. The statement of that subject in the Caption for Elections Division # 21that the measure would amend the constitution with respect to the powers of state and local governments concerning homosexualityneutrally and accurately captures the subject of each of the measures, while also taking account of the particular rulings in each of the challenges to the Attorney General's Captions. With respect to Elections Division # 13 and # 17, a core concern of those measurescivil rightswhich we deemed properly included as a concept in a Caption, is included in a Caption that communicates the general subject identified in the context of those cases and articulated more fully in Elections Division # 21. Use of the word "homosexuality" is acceptable throughout. (See, e.g., above at 33, 902 P.2d at 1153, rejecting a challenge to the Attorney General's use of the term "homosexuality" in the Caption for Elections Division # 13). Finally, because the approach taken by the statement of the subject identifies the common thread in the proposed measures, it is consistent with the approach that we took under somewhat similar circumstances in Mabon v. Keisling, 317 Or. at 411-13, *1161 856 P.2d 1023 (rejecting too narrow a focus in proposed Caption and certifying a more broadly descriptive Caption). Because three of these four measures have the same subject, with interlocking choices of text in the measures, and because the Caption is a very short heading to advise the voters generally what the measure is aboutis, in other words, a "relating clause" for a proposed piece of legislationwe believe that there will be too great a risk of voter confusion if we provide different Captions for those measures. The Captions, which describe the measures in the most general terms, will lead naturally to the more specific Questions, stating the chief purposes of the measures, and to the yet more specific Summaries, stating the major effects of the measures. As one moves from the general to the specific, then points of departure may become more appropriate. Accordingly, we certify the following Caption for the ballot title for Elections Division # 13, # 17, and # 21: With respect to the far narrower measure in Elections Division # 25, however, the foregoing Caption would be far too broad. With respect to Elections Division # 25, we certify the following Caption: a. Elections Division # 13: "Shall constitution forbid basing civil rights on homosexuality, other sexual behaviors, desires; bar spending public funds in way approving homosexuality?" We rejected all the parties' challenges to this Question and concluded, therefore, that it substantially complies with the statutory requirements. Above at 35-37, 902 P.2d at 1154-1155. b. Elections Division # 17: "Shall constitution say laws cannot guarantee equal treatment for homosexual persons, and forbid spending public funds in way approving homosexuality?" Consistent with our ruling on the Caption for the ballot title for this measure, we have concluded that the Question does not substantially comply with the statutory requirements because of the rhetorical content of its first clause. Mabon v. Kulongoski, 322 Or. at 72, 902 P.2d at 1174. (Elections Division # 17). c. Elections Division # 21: "Shall state constitution bar spending public funds in way approving homosexuality; forbid granting marital status, spousal benefits based on homosexuality?" We have concluded that the Question cannot refer to other specific provisions and at the same time omit reference to the substance of the "right of conscience" provision. Rooney v. Kulongoski, 322 Or. at 86-87, 902 P.2d at 1181-1182. (Elections Division # 21). d. Elections Division # 25: "Shall state constitution bar laws defining a class of people for protection of rights based on sexual behavior or desires?" Consistent with the ruling on the Caption for the ballot title for this measure, which differs from the Caption for the other three measures and closely follows the Attorney General's Caption, the Question certified by the Attorney General comes close to meeting the statutory standard. As noted above, we will certify the same ballot title for Elections Division # 13 and # 17, which we deemed to be materially identical, textually and substantively. We also have noted that Elections Division # 21 is essentially the verbatim equivalent of portions of Elections Division # 13, albeit without other provisions of that proposed measure. Mabon v. Kulongoski (Elections Division # 17), 322 Or. at 68 n. 2, 902 P.2d at 1172 n. 2. We have held that the Attorney General's certified Question for Elections Division # 13 substantially complies with the statutory requirements. Accordingly, it is *1162 also a sufficient Question for Elections Division # 17. We also conclude that that Question accurately states the chief purpose of Elections Division # 21, notwithstanding the fact that Elections Division # 21 does not include all the text of the measure for Elections Division # 13. Consistent with our conclusions in the context of the Captions, we conclude that there would be too high a risk of voter confusion if the voters were asked different Questions for these three measures. We certify the Attorney General's certified Question for Elections Division # 13 and shall certify the same Question for # 17. We shall certify the same Question for Elections Division # 21, with one small change, the deletion of the word "desires," which does not appear in the text of the measure of Elections Division # 21. Elections Division # 25 is different. It contains only two major operative provisions, the "minority status" provision and the limitations placed on that provision. It does not contain a public spending provision. To prevent voter confusion, the Question must differ from the other Questions. With slight modification, the Question certified by the Attorney General meets the requirements of ORS 250.035(2). We certify the following Questions for each of the measures: Elections Division # 13 and # 17: "Shall constitution forbid basing civil rights on homosexuality, other sexual behaviors, desires; bar spending public funds in way approving homosexuality?" Elections Division # 21: "Shall constitution forbid basing civil rights on homosexuality, other sexual behaviors; bar spending public funds in way approving homosexuality?" Elections Division # 25: "Shall state constitution bar laws defining a class of people for granting civil rights based on sexual behavior or desires?" 3. Summary. Set out below is a statement of each of the Summaries and a description of the pertinent rulings on the parties' challenges to those Summaries. We concluded that the Summary had to mention the limits imposed by the measure on its scope and also that the public library sentence required revision to summarize the provision of the measure in the terms of the measure. Above at 42, 902 P.2d at 1158. As with the Summary for Elections Division # 13, we have concluded that the Summary must mention the limits imposed by the measure on its scope and also that the public library sentence requires revision to summarize the provision of the measure in the terms of the measure. We also have concluded *1163 that the Summary should be revised to correct for the rhetoric of the second sentence. Mabon v. Kulongoski, 322 Or. at 74-75, 902 P.2d at 1175-1176. (Elections Division # 17). We have rejected Rooney's challenge to the Summary; Mabon posed no challenge. Accordingly, the Attorney General's certified Summary was deemed to be in substantial compliance with the statutory requirements. Rooney v. Kulongoski, 322 Or. at 87-88, 902 P.2d at 1182. (Elections Division # 21). We have concluded that the use of the term "protect" can be emotionally charged and is not necessary to convey a major effect of the measure. We also have concluded that, in an 85-word Summary, some express mention of the measure's specific effect on homosexual persons was necessary. Rooney v. Kulongoski, 322 Or. at 99, 902 P.2d at 1188. (Elections Division # 25.) As we have done in the context of the Captions and the Questions, we will certify the same Summary for Elections Division # 13 and # 17. The Attorney General's certified Summaries already share text that is similar or identical, and the two Summaries also share the same problemsthe need to recognize the measure's limits and to revise the public library sentence. The one additional problem posed by the Summary for Elections Division # 17the rhetoric of the phrase, "Forbids laws that guarantee equal treatment for homosexual persons"is fixed by the Summary for Elections Division # 13 ("Forbids basing civil rights on homosexuality"). Elections Division # 21 does not include certain of the provisions of Elections Division # 13 and # 17. In addition, unlike with Elections Division # 13 and # 17, the Attorney General's certified Summary for Elections Division # 21 does substantially comply with the statutory requirements, without need for revision. Because the Summary is the most specific descriptor of the ballot title sections for the measures, and because the underlying similarity among Elections Division # 13, # 17, and # 21 already has been made clear to the voters by certification of the same Caption and nearly the same Question for each of those measures, we conclude that the Summary for Elections Division # 21 does not need to be the same or nearly the same as the Summary for Elections Division # 13 and # 17 in order to prevent voter confusion. Accordingly, we can certify a different Summary for Elections Division # 21 than the one that we certify for Elections Division # 13 and # 17. Because the Attorney General's certified Summary for Elections Division # 21 does substantially comply with the statutory requirements, we will certify that Summary. As we have noted in the context of our discussion of the Questions, Elections Division # 25 is different. It warranted a different Caption and Question from the other three measures, and it warrants a different Summary. It is necessary to certify a different Summary for Elections Division # 25 to *1164 avoid voter confusion and permit recognition of the different range of the measure. Accordingly, we will certify a Summary for that measure that takes into account the parties' valid objections to the Attorney General's certified Summary, necessary to bring the Summary into substantial compliance with the requirements of ORS 250.035(1)(c). We certify the following Summaries for each of the measures: Elections Division # 13 and # 17: We have set out below a version of the Summary that uses the Attorney General's certified Summary for Elections Division # 13 as a baseline, showing this court's changes by indicating deletions in brackets and additions with italics: The final version of the Summary certified by this court for Elections Division # 13 and # 17 is as follows: Elections Division # 21: We certify the Attorney General's Summary. Elections Division # 25: We have set out below a version of the Summary that uses the Attorney General's certified Summary for Elections Division # 25 as a baseline, showing this court's changes by indicating deletions in brackets and additions with italics: The final version of the Summary certified by this court in Elections Division # 25 is as follows: For Elections Division # 13, the measure at issue in this case, we certify the following ballot title: Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(9). UNIS, J., dissents and files an opinion in which DURHAM, J., joins. UNIS, Justice, dissenting. The majority holds that the ballot title for the proposed initiative measure at issue in this case does not comply substantially with the standards for ballot titles set forth in ORS 250.035(1) (1993).[1] Therefore, in accordance with its statutory duty, see ORS 250.085(5) (1993),[2] the majority drafts and certifies a ballot title different from the title prepared by the Attorney General. In so doing, the majority concludes that the performance of that statutory dutythe drafting and certification of a different ballot titledoes not violate the separation-of-powers principle embodied in Article III, section 1, of the Oregon Constitution. Because I conclude that, insofar as ORS 250.085(5) (1993) directs this court, if a ballot title prepared by the Attorney General does not comply substantially with statutory standards, to draft and certify a different ballot title that does meet those standards, that statute offends the separation-of-powers principle embodied *1166 in Article III, section 1, of the Oregon Constitution. I, therefore, respectfully dissent.[3] The Oregon Constitution is the source of power for each branch of the Oregon government. Article IV, section 1(1), of the Oregon Constitution provides: Article IV, sections 1(2)(a) and 1(3)(a), reserve to the people the initiative and referendum powers, respectively. Article VII (Amended), section 1, provides in part: Additionally, Article III, section 1, 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." (Emphasis added.) The Oregon Constitution compels the separation of powers among the branches of government[4] in two ways. First, the Oregon Constitution affirmatively assigns separate powers to each branch of government. Second, an additional section expressly forbids an officer of one branch of government from exercising the distinct functions of another branch unless the Oregon Constitution otherwise expressly provides. Therefore, without such express constitutional authority, a statute that requires the judicial branch to exercise legislative functions is invalid. See City of Enterprise v. State, 156 Or. 623, 69 P.2d 953 (1937) (statute that, among other things, vested court with power to levy taxes, fix salaries of municipal officers, and effect municipal contracts violated Article III, section 1, of the Oregon Constitution). The Oregon Supreme Court may not act legislatively or encroach on the functions of another branch of government merely because strong policy considerations favor the exercise of extra-judicial functions. "Our task * * * in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations by the drafters; it is not to abandon these principles when this fits the needs of the moment." State v. Kessler, 289 Or. 359, 362, 614 P.2d 94 (1980). As Justice Linde, formerly of this court, observed in regard to the federal constitution: That principle applies equally to the Oregon Constitution. The Oregon Supreme Court may not draft and certify a ballot title different from the one certified by the Attorney General merely because the legislative branch directs this court to do so, or because this court believes that it plays an important part in the initiative and referendum process when it does so. I begin my analysis by reviewing the process by which a ballot title reaches this court for certification. After a prospective petition for an initiative measure is submitted to the *1167 Secretary of State, the Secretary of State sends copies of the proposed initiative measure to the Attorney General. ORS 250.065(2). The Attorney General then prepares a draft ballot title for the proposed initiative. ORS 250.065(3). ORS 250.035(1) (1993) mandated three components for a ballot title: (1) a Caption that reasonably identifies the measure's subject; (2) a Question that plainly phrases the measure's chief purpose; and (3) a concise and impartial Summary that summarizes the measure and its major effect. Nelson v. Roberts, 309 Or. 499, 502, 789 P.2d 650 (1990).[5] Additionally, ORS 250.035(2) (1993) mandated that the ballot title "not resemble, so far as probably to create confusion, any title previously filed for a measure to be submitted at that election." After the Attorney General prepares a ballot title, the public may submit written comments concerning that title during the comment period. ORS 250.067(1). If an electora person qualified to vote under Article II, section 2, of the Oregon Constitution[6]timely submits written comments during the comment period, the elector, if dissatisfied with the ballot title certified by the Attorney General, may petition this court to "seek[ ] a different title." ORS 250.005(2); ORS 250.085(2) (1993).[7] Under the statutory scheme relevant to the ballot title at issue in this case, the Legislative Assembly gives this court two primary responsibilities when we receive a petition that seeks a different ballot title. If this court, on review, determines that the ballot title for a proposed initiative measure certified to the Secretary of State by the Attorney General complies substantially with the statutory standards set forth in ORS 250.035(1) and (2) (1993), ORS 250.085(5) (1993)[8] directs this court to approve and certify that ballot title to the Secretary of State. If, however, this court determines that the ballot title certified to the Secretary of State by the Attorney General for a proposed initiative measure does not comply substantially with those statutory standards, ORS 250.085(5) (1993) directs this court to draft and certify a ballot title that does meet those statutory requirements. It is the nature of the act of drafting and certifying a different ballot title that raises separation-of-powers concerns. This court's act of drafting and certifying a ballot title different from the one prepared by the Attorney General is legislative in nature, because it entangles the court in the enactment of direct legislation. The enactment of direct legislation through a ballot measure is a function of the legislative branch of government: See also Article IV, section 1, of the Oregon Constitution (the people exercise a legislative function through the initiative and referendum processes). Under the statute, the drafting of the ballot title is an important necessary step in the enactment of any initiative measure. It is *1168 the ballot title, not the full text of the measure itself, that voters have before them when casting their votes. See ORS 254.145 (setting forth the design and contents of official ballots). The wording of the ballot title greatly influences the success or failure of a particular measure. Moreover, the ballot title becomes part of the legislative history that courts utilize in interpreting measures that are approved by the voters. Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or. 551, 560 n. 8, 871 P.2d 106 (1994). Thus, when this court drafts and certifies a ballot title for a proposed initiative measure that is different from the ballot title certified by the Attorney General, it performs a crucial preliminary step in the legislative process. As this court has recognized in the past, The drafting of the ballot title is akin to the writing of a title for a legislative bill. Preliminary steps of the legislative process, such as the drafting of titles for legislative bills, or the drafting of ballot titles, are internal processes committed exclusively to the other branches of government. The judiciary should play no role in those legislative functions in the absence of express constitutional authorization. By requiring this court to draft and certify a ballot title to the Secretary of State that is different from the ballot title certified by the Attorney General, the pertinent statutory scheme makes this court an active participant in the legislative process. The exercise of such a political or legislative function by this court unduly entangles this court in the internal workings of a separate branch of government. The statutory scheme that directs the judicial branch to revise ballot titles vests in the judicial branch the power to influence the passage or failure of legislative proposals.[10] In my view, vesting *1169 such power in the judiciary violates Article III, section 1, of the Oregon Constitution. It is true, as the majority notes, that under Article III, section 1, an officer of one branch may exercise the functions of another if the Oregon Constitution "expressly provides." Nowhere in the Oregon Constitution, however, is there an express grant to the judicial branch to perform the legislative function of drafting and certifying a ballot title for a proposed initiative measure. The majority finds an express grant in Article IV, section 1(4)(b), which provides: That section authorizes the Legislative Assembly to adopt laws concerning the submission of initiative and referendum measures so long as they are not inconsistent with other constitutional provisions. Article IV, section 1(4)(b), however, does not expressly give the Legislative Assembly the power to involve the judicial branch in the legislative process. The phrase "and by law not inconsistent therewith" is not an express grant of power to the Legislative Assembly to compel officers of the judicial branch to carry out a function that, without question, is legislative in character. By contrast, there are several examples in which the Oregon Constitution does expressly grant one branch of government the power to perform the functions of another. For example, Article IV, section 1(4)(a), provides in part: That section expressly gives one branch of government, the executive, the power to administer part of the legislative process, the filing of petitions or orders for initiatives and referendums. Another example in which the Oregon Constitution expressly grants one branch of government the power to perform the functions of another exists in Article XV, section 8: Before the amendment of Article XV, section 8, to the Oregon Constitution, this court had held that a person who was a member of the Legislative Assembly could not teach in a public school because of the Article III, section 1, principle of separation of powers. Monaghan v. School District No. 1, 211 Or. 360, 315 P.2d 797 (1957). In Monaghan, this court construed Article III, section 1, strictly to prohibit any mixing of legislative and executive functions. Indeed, the Monaghan court noted that this was a construction of "extreme precaution"; however, it believed that Similarly, in In the Matter of Sawyer, 286 Or. 369, 384, 594 P.2d 805 (1979), this court held that Article III, section 1, of the Oregon Constitution prohibits a judge from engaging in employment as a regular part-time teacher for compensation at a state-funded college (a function of the executive branch). Article III, section 1, therefore, is not merely an affirmative allocation of powers to the separate branches; it is stated also as a negation: "no person charged with official duties under one of these departments[ ] shall exercise any of the functions of another[.]" *1170 Or.Const., Art. III, § 1. Following Monaghan, to create an exception to the strict limitations of Article III, section 1, the Oregon Constitution was amended. The amendment, Article XV, section 8, expressly granted one part of the executive branch, employees of the State Board of Higher Education and of any school board, the power to exercise the functions of another, the Legislative Assembly. The express grant evident in Article XV, section 8, is in contrast to the language of Article IV, section 1(4)(b), which makes no provision for the sharing of power between separate governmental branches. Although Article IV, section 1(4)(b), gives the legislature broad powers to make laws consistent with the people's right to vote on initiative and referendum measures, it does not expressly grant the judicial branch the power to draft and certify ballot titles for proposed initiative measures. The majority also relies on In re Ballot Title, 247 Or. 488, 431 P.2d 1 (1967), to support its conclusion that judicial drafting and certification of ballot titles different from those prepared by the Attorney General does not violate the separation of powers. The majority's reliance on that case is misplaced. That case supports my view, not the majority's. In In re Ballot Title, this court held unconstitutional a statute that required this court to review ballot titles prepared by the Attorney General, regardless of whether a challenge was brought by a particular party, and to certify a substitute title if the Attorney General's ballot title was not sufficient. Id. at 491-92, 431 P.2d 1. The court said that the statute attempted "to require the court to render a nonjudicial advisory opinion," id., and that "the present statute seeks to have the court perform a nonjudicial function, contrary to the prohibition of [Article] III, [section] 1." Id. at 495, 431 P.2d 1. The majority attempts to distinguish In re Ballot Title by arguing that "the current statutory scheme has none of the same infirmities" as the statute held unconstitutional in that case. I disagree. Although ORS 250.085(5) (1993) creates the trappings of administrative adjudication for the process of judicial review of a ballot title, its requirement that this court compose a different ballot title if the Attorney General's ballot title is deemed insufficient is identical to the requirement held unconstitutional in In re Ballot Title. The function of creation of a new ballot title is not transformed from its legislative character by the addition of adjudicative procedures to the ballot title review process. The majority's attempt to distinguish In re Ballot Title on that basis is unavailing. The view expressed in Justice McAllister's concurring opinion in In re Ballot Title is correct: Recognizing the gravity of even limited intrusions by one branch of government into the functions of another, this court in Monaghan concluded its opinion "with the words of Madison, taken from 1 The Federalist, p. 340": " `It is equally evident that, in reference to each other, neither of them ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers. It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.' (Emphasis supplied.)" Monaghan, 211 Or. at 377, 315 P.2d 797. In summary, I believe that, to the extent that ORS 250.085(5) (1993) directs this court to draft and certify a ballot title for a proposed initiative measure that is different from the ballot title prepared by the Attorney *1171 General, it requires this court to engage in a legislative function and makes this court an active participant in the legislative process. In my view, the involvement of this court in the legislative process, by drafting and certifying a ballot title for a proposed initiative measure, violates the separation of powers guaranteed by Article III, section 1, of the Oregon Constitution. I would, therefore, dismiss this case for lack of jurisdiction. Accordingly, I respectfully dissent. DURHAM, J., joins in this dissenting opinion. [1] Each of those other ballot measures has generated its own challenges to the Attorney General's ballot title for that measure. The consolidated challenges to the Attorney General's certified ballot title for Elections Division # 17, Mabon v. Kulongoski, S42051, and Rooney v. Kulongoski, S42055, are decided today in Mabon v. Kulongoski (Elections Division #17), 322 Or. 65, 902 P.2d 1171 (1995); the consolidated challenges for Elections Division # 21, Rooney v. Kulongoski, S42101, and Mabon v. Kulongoski, S42108, are decided today in Rooney v. Kulongoski (Elections Division #21), 322 Or. 77, 902 P.2d 1177 (1995); and the consolidated challenges on Elections Division # 25, Rooney v. Kulongoski, S42105, and Mabon v. Kulongoski, S42107, are decided today in Rooney v. Kulongoski (Elections Division #25), 322 Or. 90, 902 P.2d 1183 (1995). Four other proposed ballot measures, also on the same general subject, were submitted to the Secretary of State and received certified ballot titles from the Attorney General. Each of those ballot titles also was challenged in this court, but the measures subsequently were withdrawn by the chief petitioners. We therefore dismissed the petitions challenging the Attorney General's certified ballot titles with respect to those measures. [2] The Attorney General's assertion applies equally to all four of the ballot title challenges that remain pending. We discuss it here, in the lead opinion. [3] Rooney's contentions originally were based, at least in part, on the aforementioned statement by counsel for the chief petitioner that the chief petitioner intended to circulate only one of the proposed measures for signatures. As noted above, since that time, counsel for the chief petitioner has stated that he intends to circulate one or more, rather than one at most, of the proposed measures for signatures. Because Rooney's motion applies equally in its proposed effects to all four of the pending measures, we consider the merits of Rooney's position in this opinion. [4] The legislature, at its recently concluded session, modified this court's ballot title review functions in certain particulars. See Or.Laws 1995, ch. 534. However, that measure applies only to proposed measures that are filed with the Secretary of State after its operative dateJuly 7, 1995and therefore has no application to the cases that we decide today. [5] Rooney asserts that, "[d]espite the wording variations, there is no doubt that the subject, purpose, and effect of each of [the measures] is identical." We understand that assertion to mean that the measures are identical with respect to the features with which a ballot title must deal under ORS 250.035(1): a Caption that identifies the subject, a Question that states the chief purpose, and a Summary of the measure and its major effect. That is the way in which we use the term "identical in material respects." [6] Rooney asserts that, if the statute were read to require different wording in ballot titles for essentially the same proposed measures, then it would produce an absurd or unreasonable result, contrary to a rule of statutory construction that admonishes courts to construe a statute "if possible so that it is reasonable and workable and consistent with the legislature's general policy." McKean-Coffman v. Employment Div., 312 Or. 543, 549, 824 P.2d 410 (1992). Because the statute cannot be read always to require different wording for essentially the same measures, there is no likelihood of an assertedly absurd or unreasonable result. [7] Although deeming the controversy to be justiciable, the court's majority dismissed the petition as untimely. Justice Unis, writing separately to concur specially in the court's decision, agreed that the pre-election controversy was justiciable, but would have stepped into the electoral process before the election to adjudicate the merits of the claim regarding the Secretary of State's authority. Keisling, 317 Or. at 633-38, 860 P.2d 241. He quoted with approval from State ex rel. v. Newbry et al, 189 Or. 691, 697, 222 P.2d 737 (1950), where this court stated: "Any interference by the courts with the enactment of an initiative measure, where all statutory requirements had been complied with, would in itself be a violation of the constitutional separation of the powers of government." Keisling, 317 Or. at 634, 860 P.2d 241 (emphasis added). Of course, the present cases are about whether "all statutory requirements have been complied with." [8] The separation of powers is deemed to be "essential to the preservation of liberty." Alexander Hamilton or James Madison, The Federalist (No. 51), quoted in Monaghan v. School District No. 1, 211 Or. 360, 364, 315 P.2d 797 (1957). [9] In Bernard v. Keisling, 317 Or. 591, 596, 858 P.2d 1309 (1993), this court stated: "We recognize that the potential exists for the proponents of an initiative measure either intentionally or unintentionally to use words in the measure that obfuscate the subject, chief purpose, summary, or major effect of the measure. In reviewing the ballot title certified by the Attorney General, this court will not hesitate to go beyond the words of the measure where such an outcome has occurred." [10] We note that the substitute wording that Mabon seeks does not necessarily correspond either to the underlying point that he makes or to the wording of the measure. [11] Article I, section 2, of the Oregon Constitution, provides: "All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences." Article I, section 3, provides: "No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience." [12] As one key example, the preceding referent for the key term, "[s]uch material," in section 4 of the measure arguably is unclear as to whether it refers generally to pro-homosexual books or only to those books that will be made available to minors with parental supervision. Accordingly, the sweep of the requirement of community standards review arguably is unclear with respect to whether it includes review only of those books that may be available to minors or review of all books. The Attorney General asserts that the requirement applies to all books. Mabon's response avoids that question, while at the same time disputing the Attorney General's position. [13] Pursuant to ORS 250.085(5), we review the Attorney General's certified ballot titles for substantial compliance with ORS 250.035, including ORS 250.035(2). The statutes recognize that certain challenges may only become clear once the Attorney General has certified a ballot title, and challenges based on ORS 250.035(2) can be among those. ORS 250.085(1), (6) (challenges not raised before the Secretary of State nonetheless may be brought based on language added to or removed from the draft title after the comment period). By the same token, once the court adjudicates challenges that require revision of ballot titles for related measures, then contentions relating to ORS 250.035(2) may become pertinent in the court's considerations. [14] As is true throughout our discussion of the measure in Elections Division # 25, we set off the term "minority status" here with quotation marks because that term has no independent legal meaning outside the proposed measures in which it appears. See Mabon v. Keisling, 317 Or. 406, 416, 856 P.2d 1023 (1993) (so holding with respect to same phrase in measure there under review). [15] Both proposed measures refer to classifications like race, religion, and gender. The Attorney General's certified Summary for Elections Division # 17 refers to "race, religion, or gender" in this place in the Summary, and we conclude that it is a somewhat more accessible description than the one used by the Attorney General's certified Summary for Elections Division # 13 in the same place. [1] The 1995 Oregon Legislative Assembly made significant amendments to ORS 250.035 (1993). Or.Laws 1995, ch. 534, § 1. Those changes, however, do not apply to the ballot title in this case. See Or.Laws 1995, ch. 534, § 20 (provisions of act apply to initiative and referendum petitions for which a prospective petition is filed on or after effective date of act.) Because the prospective petition in this case was filed before the effective date of the act, July 7, 1995, the earlier version of the law applies. [2] The 1995 Oregon Legislative Assembly made less significant changes to ORS 250.085 (1993). Or.Laws 1995, ch. 534, § 2. These changes also do not apply to the ballot title in this case. Or.Laws 1995, ch. 534, § 20. [3] Because the majority reviews the Attorney General's certified ballot title and drafts and certifies a ballot title different from the one certified by the Attorney General, I do not address the question whether judicial review of a ballot title under ORS 250.085(5) (1993), unaccompanied by certification of a different ballot title by this court, violates the separation-of-powers principle embodied in Article III, section 1, of the Oregon Constitution. [4] Although Article III, section 1, of the Oregon Constitution uses the term "departments," in this opinion, I use the more common term "branch" or "branches." [5] Former ORS 250.039 also required that a ballot title for a proposed initiative measure meet minimum readability standards designated by the Secretary of State. Former ORS 250.039 was repealed by the 1995 Legislative Assembly. Or.Laws 1995, ch. 534, § 19. That act does not apply to the ballot title in this case. Id. at § 20. [6] Only an elector is entitled to petition for this court's review of a ballot title for a state measure. Brown v. Roberts, 309 Or. 667, 669, 791 P.2d 488 (1990). [7] With a limited exception, the elector may raise in front of this court only those arguments that were presented in writing to the Secretary of State during the comment period. ORS 250.085(6) (1993). [8] ORS 250.085(5) (1993) provides: "The court shall review the title for substantial compliance with the requirements of ORS 250.035 and 250.039, and shall certify a title meeting this standard to the Secretary of State." [9] In Richardson v. Neuner, 183 Or. 558, 562-63, 194 P.2d 989 (1948), this court nevertheless concluded that, when the Attorney General drafts a ballot title, the Attorney General acts in a quasi-judicial capacity. In my view, that conclusion was erroneous and cannot be justified in view of the court's correct discussion concerning how the drafting of ballot titles is a legislative or executive function. See Dagwell et al. v. Thornton et al., 199 Or. 8, 12-16, 259 P.2d 125 (1953) (Warner, J., dissenting) (criticizing Richardson and concluding that judicial review of ballot titles violates Article III, section 1). [10] In no way do I mean to suggest that we who now are on this court, or members of this court at any time, have attempted to influence the passage or failure of legislative proposals through manipulation of ballot titles. Rather, as this court has stated in the past: "Our concern [regarding separation of powers violations] is not with what has been done but rather with what might be done, directly or indirectly, if one person is permitted to serve two different departments at the same time. The constitutional prohibition is designed to avoid the opportunities for abuse arising out of such dual service whether it exists or not." Monaghan v. School District No. 1, 211 Or. 360, 376, 315 P.2d 797 (1957).

cdf74fe20267814927bd6870cb9e867ab7ccb5b0b30b7f29b92bea87b1504dcc

1995-09-28T00:00:00Z

b0594f93-9e67-46c2-ae53-8d8a3c4e3155

Brentmar v. Jackson County

321 Or. 481, 900 P.2d 1030

oregon

Oregon Supreme Court

900 P.2d 1030 (1995) 321 Or. 481 Olafur BRENTMAR, Petitioner on Review, v. JACKSON COUNTY and Neil E. Warren, Respondents on Review. LUBA 93-208; CA A84956; SC S41765. Supreme Court of Oregon, In Banc. Argued and Submitted May 3, 1995. Decided August 24, 1995. *1031 Tonia L. Moro, of Law Offices of Martial E. Henault, P.C., Medford, argued the cause and filed the petition for petitioner on review. Georgia L. Daniels, Jackson County Counsel, Medford, argued the cause and filed the brief for respondent on review Jackson County. No appearance for respondent on review Neil E. Warren. John T. Bagg, Asst. Atty. Gen., Salem, filed a brief on behalf of amicus curiae Land Conservation and Development Com'n. GRABER, Justice. Petitioner Brentmar sought review of an order of the Land Use Board of Appeals (LUBA) affirming Jackson County's denial of an application for a conditional use permit to operate an agricultural and horticultural school, together with related facilities and commercial activities, in an exclusive farm use (EFU) zone. The Court of Appeals affirmed LUBA's order. Brentmar v. Jackson County, 130 Or.App. 438, 442, 882 P.2d 1117 (1994). For the following reasons, we reverse. Brentmar is the president and a co-founder of the Peace Garden Institute (PGI). PGI applied to the Jackson County Department of Planning and Development for a conditional use permit. PGI sought to operate an agricultural and horticultural school, together with related facilities and commercial activities, in an EFU zone. The County's hearings officer denied PGI's application. The hearings officer stated that the application requested uses for the land that are, under the Jackson County Land Development Ordinance (LDO) 218.040,[1] conditional uses in an EFU zone. The hearings officer determined that LDO 218.060[2] and LDO 260.040[3] are the substantive criteria *1032 that govern approval of an application for a conditional use permit. The hearings officer found that PGI had failed to furnish sufficient evidence under LDO 260.040(2) to show that the traffic and groundwater impacts of the proposed use of the property would have a minimal effect on the liveability of abutting properties and the surrounding areas and that the proposed use of the property would have a minimal adverse impact on the value of abutting properties and surrounding areas. The hearings officer also found that PGI had not met its burden under LDO 260.040(4) to show that the proposed uses either would provide primarily for the needs of rural residents or would require a rural setting. In addition, the hearings officer found that PGI failed to establish, as required by LDO 218.060(1)(D), (i) that the proposed use would result in a more efficient and effective use of the land and its resources or (ii) that no feasible alternative sites existed that would have less impact on agricultural land. Accordingly, the hearings officer held that the application failed to meet the criteria of LDO 260.040(2). Brentmar appealed the denial of PGI's application to LUBA.[4] LUBA affirmed the County's decision. LUBA stated that the criteria in the LDO must be met before a conditional use permit may be approved and that, because PGI's application failed to satisfy the requirements of the LDO, the County did not err when it refused to issue the requested permit. The Court of Appeals affirmed LUBA's order, and we then allowed Brentmar's petition for review. The issue before this court is whether a county may enact and apply legislative criteria of its own that are more restrictive than those found in ORS 215.213 and 215.283, the state statutes pertaining to permissible farm-related and nonfarm uses in EFU zones. Brentmar argues that ORS 215.213 and 215.283 require the County to allow a proposed use that complies with the criteria delineated in those statutes. He concludes that the County cannot apply the LDO in this case, because that ordinance contains criteria that are more restrictive than those in ORS 215.213 and 215.283. Brentmar does not argue in this court that PGI satisfied the requirements of the LDO, if it applied. Brentmar's argument requires this court to interpret ORS 215.213 and 215.283. In interpreting a statute, our task is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). At the first level of analysis, we examine the text and context of the statute. If the legislature's intent is clear from those inquiries, further inquiry is unnecessary. Id. at 610-11, 859 P.2d 1143. If not, we turn next to legislative history. Id. at 611-12, 859 P.2d 1143. ORS 215.213 provides in part: "* * * * * "* * * * * ORS 215.283 provides in part: "* * * * * Brentmar makes two separate but related arguments. First, he argues that ORS 215.213(1) and 215.283(1) require counties to treat the uses listed therein as outright permitted uses and not as conditional uses that can be subject to more stringent local criteria. Second, Brentmar argues that ORS 215.213(2) and 215.283(2) require counties to apply only those standards listed in ORS 215.296 and prohibit counties from applying more stringent supplemental local standards to the uses listed in ORS 215.213(2) and 215.283(2).[6] We note at the outset that, for the purpose of our analysis, ORS 215.213(1) and (2) and ORS 215.283(1) and (2) all contain the same operative wording. Those statutes provide in part that certain uses "may be established" in an EFU zone. (Emphasis added.) Brentmar argues that the phrase "may be established" grants permission to individual landowners to establish any of the listed uses, notwithstanding a contrary provision in a county zoning ordinance. That phrase, as it is used in the statutes, does not compel Brentmar's conclusion. The phrase "may be established" indicates that, "[i]n counties that have" established EFU zones, someone is authorized to determine whether the delineated uses will be established. Because the statute uses the passive voice of the key verb "establish," however, the statute does not specify who that someone is. It could be the county, or it could be the property owner. The operative wording of the statutes is ambiguous. We turn to Brentmar's argument concerning ORS 215.213(2) and 215.283(2).[7] Brentmar argues that counties must allow the uses listed in ORS 215.213(2) and 215.283(2), subject only to the conditions stated in ORS 215.296. As we have just stated above, the pertinent text of ORS 215.213(2) and 215.283(2) is ambiguous; but, the text of ORS 215.296which is "context" for this purposedisposes of Brentmar's argument. ORS 215.296(10) provides: *1034 That subsection specifically gives counties the power to adopt conditions in addition to those set forth in ORS 215.296(1), under ORS 215.213(2) and 215.283(2). Brentmar also argues that ORS 215.213(1) and 213.283(1) require counties to treat the uses listed therein as outright permitted uses, and not as conditional uses that can be subject to more stringent local criteria. As we have already stated above, the pertinent text of those statutes is ambiguous. Some related provisions of ORS chapter 215 lend support to Brentmar's argument. Brentmar's argument gains support, first, from ORS 215.213(2) and 215.283(2). As noted, those provisions refer to ORS 215.296, and ORS 215.296(10) specifically permits a county to impose its own conditions on the uses delineated in ORS 215.213(2) and 215.283(2). By contrast, ORS 215.213(1) and 215.283(1) do not refer to ORS 215.296 or incorporate the provisions of ORS 215.296(10). The absence of such a provision in ORS 215.213(1) and 215.283(1) suggests that the legislature did not intend to permit counties to apply additional criteria to the uses listed in ORS 215.213(1) and 215.283(1). Brentmar's reading of ORS 215.213(1) and 215.283(1) would give effect to that distinction. Brentmar's argument is strengthened when the text of ORS 215.283(1) is contrasted with the text of ORS 215.283(2). ORS 215.283(1) lists uses that "may be established," whereas ORS 215.283(2) lists uses that "may be established, subject to the approval of the [county]." (Emphasis added.) Again, Brentmar's reading of ORS 215.283(1) would give effect to that distinction. On the other hand, other related provisions of ORS chapter 215 detract from Brentmar's reading of the statute. Brentmar's suggested reading of ORS 215.213(1) conflicts with ORS 215.243(2): "The Legislative Assembly finds and declares that: "* * * * * If a county were required to treat the uses listed in ORS 215.213(1) as outright permitted uses, rather than as conditional uses that can be subject to more stringent local criteria, the statutory policy of ORS 215.243(2) easily could be rendered a nullity. A county would be unable to prevent all the property owners in an EFU zone from using their land exclusively for the construction and maintenance of private schools, for example. Accordingly, under Brentmar's reading of the statute, no farming necessarily need occur in an EFU zone. However, such a result would not comport with the legislative policy goal of "[t]he preservation of a maximum amount of the limited supply of agricultural land * * * necessary to the conservation of the state's economic resources." Finally, Brentmar's proposed reading also conflicts with ORS 215.448(1), which provides: ORS 215.213(1)(e) provides that dwellings and nonresidential buildings "may be established" on real property in an EFU zone.[8] The emphasized phrase in ORS 215.448 indicates *1035 a legislative recognition that not all counties may decide to allow residential uses in an EFU zone. Yet, counties would not have that freedom if we were to accept Brentmar's proposed reading of ORS 215.213(1). The phrase "that allows residential uses" would be unnecessary if the legislature had intended to require all counties to permit outright the residential uses listed in ORS 215.213(1)(e). In summary, the text and context of ORS 215.213(1) and 215.283(1) do not make the legislature's intent clear. That being so, we turn next to legislative history. If the legislative intent is clear from consideration of the text, context, and legislative history, then this court interprets the statute to have the meaning so determined, and our inquiry proceeds no further. See PGE, 317 Or. at 612, 859 P.2d 1143 (so holding). ORS 215.213 first was enacted by the legislature in 1963. Or Laws 1963, ch 577, § 3, & ch 619, § 1a.[9] ORS 215.213 (1963) provided: That provision allowed for the establishment of certain "nonfarm uses" within farm zones. That statute also contained the phrase "may be established," which is at issue in this case. We have reviewed the legislative history surrounding the passage of that statute. That history does not reveal whether the legislature intended to allow outright the uses delineated in ORS 215.213 (1963) or whether the legislature instead intended to allow counties to apply additional criteria to those uses when it used the phrase "may be established" in the statute. In 1973, the legislature amended ORS 215.213. Or Laws 1973, ch 503, § 4. Those amendments were passed as section 4 of Senate Bill 101. When it enacted SB 101, the legislature did two things to ORS 215.213 that are pertinent to our discussion. First, the legislature recodified the previous version of ORS 215.213 as ORS 215.213(1) and modified the list of uses delineated therein. Subsection (1) uses included public and private schools, churches, and the "propagation or harvesting of a forest product." Second, the legislature added two new subsections to the statute. The addition of subsection (2) is pertinent to our discussion. Subsection (2) provided in part: Subsection (2) uses included "commercial activities that are in conjunction with farm use," golf courses, parks, and playgrounds. As our discussion below shows, the legislative decision to delineate certain uses as subsection (1) uses and others as subsection (2) uses is pertinent to our analysis. After being introduced on the Senate Floor, SB 101 was referred to the Senate Revenue Committee. A subcommittee of the Revenue Committee met a number of times to work out the details of the bill. At the first meeting, the subcommittee simply went through SB 101 to understand the scope of the bill and its provisions. The version of *1036 section 4 contained in the bill referred to that subcommittee stated in part: "* * * * * Members of the subcommittee discussed the meaning of that provision. See Tape Recording, Subcommittee of Senate Revenue Committee, April 23, 1973, Tape 34, Side 1 at 72-102. (discussion among Legal Counsel Steven Hawes, Subcommittee Chair Senator Atiyeh, and Senator Hoyt as to the meaning of proposed section 4 of SB 101). Following that discussion, Senator Hoyt asked Hawes what the phrase "may be established" meant as it was used in the bill. Hawes said that the phrase was unclear. Id. at 107-15. Senator Hoyt stated repeatedly his view that the phrase "may be established" meant that a county could treat the uses delineated in the statute as conditional uses subject to approval of the county. Id. at 107-63. Senator Atiyeh disagreed. He thought that the phrase "may be established" meant that a county must permit the uses delineated in the statute. Ibid. The subcommittee agreed to "flag" the issue and return to it at a later meeting. Id. at 163. At its third meeting, the subcommittee again addressed section 4 of SB 101. Senator Atiyeh asked Hawes why any modification whatsoever was being made to the language in ORS 215.213 (1963). Tape Recording, Subcommittee of Senate Revenue Committee, May 9, 1973, Tape 37, Side 1 at 322. Hawes explained that the drafters of SB 101 were simply trying to get the wording of the old provision into one sentence. Id. at 326. Senator Atiyeh commented that the proposed change "created some kind of confusion, and we can just clarify it by going back to the old language." Id. at 328. Later in that meeting, Senators Burns and Hoyt engaged in the following discussion: "* * * * * Following that discussion, Senator Atiyeh requested that proposed amendments on that point be prepared for the next subcommittee meeting. Id. at 429. At the next meeting, the subcommittee discussed various proposals to address the issues raised in previous meetings. Senator Atiyeh outlined one such proposal, offered by Edward Sullivan, County Counsel for Washington County. Senator Atiyeh, Hawes, and Sullivan engaged in the following discussion: "* * * * * *1037 "* * * * * Tape Recording, Subcommittee of Senate Revenue Committee, May 11, 1973, Tape 37, Side 2 at 7-28. The subcommittee then discussed, at length, what uses should be subject to county approval and what uses should be considered "uses of right." Later in the meeting, additional committee members arrived, and the discussion resumed. "* * * * * "* * * * * Id. at 91-106 (emphasis added). Discussion in the subcommittee then returned to the topic of what uses should be "as of right" and what uses should be conditional. During that discussion, Senator Hoyt stated that the Attorney General's office already considered the uses in ORS 215.213 to be uses "as of right." Id. at 125. After that statement, the following discussion occurred. "* * * * * "[Sen. Atiyeh:] We are going to separate this into two pieces. "* * * * * "[Sullivan:] Mr. Chairman, if I might, subsection 7 of section 4 bothers me a little bit. The problem of dwellings and other buildings. This seems to give authority to zone out or limit the use of these building in farm zones. I see these buildings and dwellings as accessories to basic farm use. * * * These things should not be conditional *1038 uses or uses which may be permitted. These should be in conjunction with farm use. On May 15, 1973, the subcommittee met for the last time. At that meeting, the subcommittee, apparently without discussion, adopted an amendment to subsection 4 of SB 101 that incorporated the two-category approach discussed at the May 11 meeting. The subcommittee then sent the bill to the full committee with a "do pass" recommendation. On May 29, the full Senate Revenue Committee sent the bill to the Senate with a "do pass" recommendation. Section 4 of SB 101 was approved by both houses of the legislature without substantive amendment. As the legislative history makes clear, when the legislature adopted the 1973 amendments to SB 101, it intended to create two categories of use. Those distinct categories were codified as ORS 215.213(1) and (2) (1973). Subsection (1) uses were "uses as of right," or uses that a local governing body could not prevent. On the other hand, subsection (2) uses were "conditional uses," or uses that were "subject to approval of the governing body of the county." Since 1973, ORS 215.213 has undergone numerous modifications. In almost every legislative session, the list of uses delineated in subsections (1) and (2) has changed. However, the two-category system adopted by the 1973 legislature has not been altered. Nor has the operative wording contained in ORS 215.213(1)"the following uses may be established"been modified.[10] After our review of the text, context, and legislative history of ORS 215.213(1), we conclude that the legislature intended that the uses delineated in ORS 215.213(1) be uses "as of right," which may not be subjected to additional local criteria. In conclusion, under ORS 215.213(1) and 215.283(1), a county may not enact or apply legislative criteria of its own that supplement those found in ORS 215.213(1) and 215.283(1). Under ORS 215.213(2) and 215.283(2), however, a county may enact and apply legislative criteria of its own that supplement those found in ORS 215.213(2) and 215.283(2).[11] LUBA erred when it held that ORS 215.213(1) and 215.283(1) do not require a county to permit the uses delineated therein. LUBA did not err, however, when it stated that the uses allowed by ORS 215.213(2) and 215.283(2) may be subject to more stringent local criteria than those set forth in those statutory provisions. LUBA did not distinguish between subsection (1) and subsection (2) uses. It is not clear, from the record, whether all or part of PGI's application was rejected improperly, because PGI's proposed subsection (1) uses violated the county's LDO. Accordingly, this case must be remanded to LUBA for reconsideration. The decision of the Court of Appeals is reversed. The order of the Land Use Board of Appeals is reversed, and the case is remanded to the Land Use Board of Appeals for further proceedings. [1] LDO 218.040 provides in part: "The following uses are permitted if in conformance with Sections 218.020 [providing that applications for conditional use permits must comply with the Oregon Agricultural Land Use Policy, ORS 215.243], 218.060 [providing standards required of all conditional uses], and other pertinent sections of this ordinance: "1) Commercial activities that are in conjunction with farm use. "* * * * * "9) Public or private schools. "* * * * * "11) Small scale energy producing facilities in conjunction with permitted or approved conditional uses." [2] LDO 218.060 provides in part: "1) A conditional use may be approved by the County only when findings can be made that the proposed use meets the standards of Section 260.040 and the proposed use and/or new parcel: "* * * * * "D) Is situated upon generally unsuitable land for the production of farm crops and livestock, considering the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location, and size of tract, unless findings conclusively demonstrate that: "i) The proposed use will result in a more efficient and effective use of the parcel in view of its value as a natural resource; or "ii) No feasible alternative sites in the area exist which shall have less impact on agricultural land." [3] LDO 260.040 provides in part: "In order to grant a conditional use permit, the County must make the following findings: "1) That the permit would be in conformance with the Jackson County Comprehensive Plan for the area, the standards of the district of the Zoning Ordinance in which the proposed development would occur, and the Comprehensive Plan for the county as a whole. "2) That the location, size, design, and operating characteristics of the proposed use will have minimal adverse impact on the livability, value, or appropriate development of abutting properties and the surrounding area. "* * * * * "4) The proposed use will either provide primarily for the needs of rural residents and therefore requires a rural setting in order to function properly or the nature of the use requires a rural setting, such as an aggregate operation, even though the use may not provide primarily for the needs of rural residents." [4] Brentmar had standing to appeal the denial to LUBA under ORS 197.830, which provides in part: "(1) Review of land use decisions or limited land use decisions under ORS 197.830 to 197.845 shall be commenced by filing a notice of intent to appeal with the Land Use Board of Appeals. "(2) Except as provided in ORS 197.620(1) and (2), a person may petition [LUBA] for review of a land use decision or limited land use decision if the person: "(a) Filed a notice of intent to appeal the decision as provided in subsection (1) of this section; and "(b) Appeared before the local government, special district or state agency orally or in writing." Brentmar filed a timely notice of intent to appeal with LUBA and appeared before the hearings officer both orally and in writing. The County does not challenge his standing. [5] ORS 215.296, referred to in ORS 215.213(2) and 215.283(2), provides in part: "(1) A use allowed under ORS 215.213(2) or 215.283(2) may be approved only where the local governing body or its designee finds that the use will not: "(a) Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use; or "(b) Significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use." [6] This court has discussed ORS 215.213(1) and (2) previously, in Craven v. Jackson County, 308 Or. 281, 285-89, 779 P.2d 1011 (1989). Craven did not resolve the present questions, however. [7] We begin by addressing Brentmar's second argument because, as we discuss below, ORS 215.213(2) and 215.283(2) serve as context for ORS 215.213(1) and 215.283(1). [8] ORS 215.213(1)(e) provides that one of "the following uses [that] may be established" in an EFU zone is: "A dwelling on real property used for farm use if the dwelling is: "(A) Located on the same lot or parcel as the dwelling of the farm operator; and "(B) Occupied by a relative, which means grandparent, grandchild, parent, child, brother or sister of the farm operator or the farm operator's spouse, whose assistance in the management of the farm use is or will be required by the farm operator." [9] The bill that became ORS 215.213 was passed by both houses of the 1963 legislature, as separate bills. House Bill 1230 contained the provision at issue in this case and was signed by the governor on June 19, 1963. Or Laws 1963, ch 577, § 3. Senate Bill 129 also contained the provision at issue in this case, and it was signed by the governor on June 24, 1963. Or Laws 1963, ch 619, § 1a. Immediately following the text of ORS 215.213 (1963) is the following notation, entered by the Reviser of Statutes: "Section 3, chapter 577, and section 1a, chapter 619, Oregon Laws 1963 have been compiled as ORS 215.213 because they were virtually identical. Section 3, chapter 577, used the term `properties' instead of `facilities' in subsection (5)." We have reviewed the legislative history of HB 1230 and SB 129. In that history, there is no indication of why each chamber of the legislature passed the same provision but in a different bill. [10] In 1983, the legislature enacted ORS 215.283, which addressed uses that may be established in EFU zones in counties that did not amend their comprehensive plans or land use regulations for the designation of marginal lands. Or Laws 1983, ch 826, § 17. That statute also contained a two-category provision of uses "as of right" and "conditional uses." The uses delineated in ORS 215.283(1) and (2) (1983) were essentially identical to the uses delineated in ORS 215.213(1) and (2) (1983). They have remained so. Whenever one of the delineated uses in either statute has changed, the other statute has been modified accordingly. The parties contend, and we agree, that the analysis of the issue presented in this case under ORS 215.213(1) and 215.283(1) is the same. [11] Jackson County did not argue in this case that Brentmar's proposed interpretation of the statutes would be unconstitutional as applied to a Home Rule county, and we express no view on that question.

4975b05aff349e63bcde3e30f3d90d7dcde2a9c406bc37d4127848f388a3fc2a

1995-08-24T00:00:00Z

c5d6947e-85f5-4f1f-ab40-8a79ddc8231b

State v. Harris

288 Or. 703, 609 P.2d 798

oregon

Oregon Supreme Court

609 P.2d 798 (1980) 288 Or. 703 STATE of Oregon, Respondent, v. Dorothy Rachel HARRIS, Petitioner. No. J 10557; CA 12989; SC 26506. Supreme Court of Oregon. Argued and Submitted January 8, 1980. Decided March 25, 1980. Rehearing Denied May 13, 1980. *799 David L. Slader, Portland, argued the cause for appellant. With him on the briefs were Jed C. Macy and Anna M. Moran, Portland. Al Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Mary J. Deits, Asst. Atty. Gen., Salem. Before DENECKE, C.J., TONGUE, HOWELL, LENT and LINDE, JJ., and TANZER, Justice Pro Tem.[*] TONGUE, Justice. Defendant was convicted of the crime of "driving while suspended." (ORS 487.560). Defendant was a resident of Camas, Washington, and had a valid Washington driver's license. Previously, while driving in Oregon, her right to drive a motor vehicle in Oregon had been suspended effective August 17, 1977, for an indefinite period because she had failed to appear in Multnomah County District Court on an earlier traffic citation.[1] (ORS 484.210(2)). On appeal to the Court of Appeals defendant contended that the trial court erred in admitting into evidence that portion of a certificate authenticating a copy of the suspension order which stated that "our records reveal this order was in full effect on 4-30-78" (the date on which defendant was cited for driving while suspended). On that appeal defendant assigned as error the overruling of her objection that this statement was hearsay and did not fall within any exception to the hearsay rule. The Court of Appeals held that it need not decide that issue because "[t]he introduction into evidence of a certified copy of the suspension order plus the testimony of the arresting officer establishes a prima facie case" and that "[a]ny contention by defendant that the suspension order was no longer in effect was a matter of defense." 41 Or. App. 643, 646, 598 P.2d 1246, 1248 (1979). We allowed defendant's petition for review in order to consider both the question (1) whether the statement that "our records reveal this order was in full effect on 4-30-78" was admissible in evidence and, if not, (2) whether there was sufficient evidence to sustain defendant's conviction. The statement "our records reveal this order was in full effect on 4-30-78" is clearly an out-of-court statement that was offered to prove the truth of the fact stated and is thus hearsay evidence. The question is whether the statement was admissible under any recognized exception to the hearsay rule. The state contends that this statement was admissible under ORS 43.370, which provides: In support of that contention the state cites Finchum v. Lyons, 247 Or. 255, 428 P.2d 890 (1967). The difficulty with such a contention, however, is that ORS 43.370 is limited by its express terms to "entries" in public records. The statement "our records reveal this order was in effect on 4-30-78" was not an "entry" in a public record, but was a hearsay statement included in a certificate appended to a copy of a public record. The state also contends that the statement in controversy is an "entry" in a public record for the purposes of ORS 43.370 despite the fact that it is in "summary form" and that "the fact that this entry in public records cannot be proven except in summary form should not make it inadmissible." It is well established that written "summaries" of entries in private records can only be offered in evidence through the testimony of the person who prepared such a summary. See Rolfe v. N.W. Cattle & Resources, Inc., 260 Or. 590, 604-5, 491 P.2d 195 (1971). No reason is suggested by the state why the same rule should not apply to "summaries" of entries in public records other than possible inconvenience of producing a witness qualified to give such testimony. As previously noted, however, this statute, by its express terms, is limited to proof of "entries" in public records themselves and for that reason does not extend to "summaries" of such entries. The dissent by Denecke, C.J., appears to recognize that the statement "our records reveal this order was in full effect on 4-30-78" is not admissible either under the terms of any Oregon statute, including ORS 43.370, or under the recognized common law exception to the hearsay rule for "official statements." It is nevertheless contended by the dissent that the court should recognize a new and additional exception to the hearsay rule in order to make such statements admissible in evidence.[3] For this court to do so would be contrary both to its prior decisions (which will be discussed) and also to the rule of law as stated in McCormick on Evidence, 742, § 320 (2d ed. 1972) as follows: *801 It is true, as stated by McCormick, that this rule has been criticized in 5 Wigmore on Evidence 868 (Chadbourn ed. 1974) in which it is stated that: Wigmore (by footnote 3 on pp. 867-68) lists the many decisions by courts of other states holding that such statements in certificates are inadmissible, with only two cases to the contrary, both decided prior to 1850. Wigmore then (by footnote 4 on pp. 868-70) lists the 36 states and the federal courts which have made such statements admissible, but only by statute or rule of civil procedure. It may be that the rule proposed by Denecke, C.J., in his dissent is one which should be adopted by statute in Oregon. No cases are cited by him, however, in which courts have adopted such a rule other than by statute or by court rule (by courts authorized to adopt rules of civil procedure). In an opinion by Rossman, J., in Allan v. Oceanside Lumber Co., 214 Or. 27, 48, 328 P.2d 327, 337 (1958), in holding an "abstract" of the contents of an official record with an attached certificate to be inadmissible, this court said that: The analysis adopted by the opinion in that case was to then consider whether such evidence was admissible under either ORS 41.690 (the Oregon Uniform Business Records as Evidence Act) or ORS 43.370 (relating to what it referred to as "official statements") and to hold that because the "abstract" of the contents of that official record did not satisfy the requirements of either statute it was inadmissible. That analysis of the problem is also consistent with previous decisions by this court. Thus, in McIntosh Livestock Co. v. Buffington, 116 Or. 399, 241 P. 393 (1925), this court held inadmissible a certificate by the Idaho Secretary of State to the effect that a corporation had not only filed Articles of Incorporation in 1920, but "[had] remained in good standing ... until December 1, 1922. * * *", holding (at 408-9, 241 P. at 396) that: The dissent by Denecke, C.J., refers to "another portion of McIntosh," presumably for the proposition that the certificate in *802 this case is admissible because it is similar to a certificate of the Oregon Corporation Commissioner which this court held to be admissible. What the dissent fails to point out is that in McIntosh, this court determined that the certificate of the Oregon Corporation Commissioner was admissible "by virtue of section 6910, as amended by chapter 244, General Laws of Oregon for 1923, * * *." (Now ORS 57.781) 116 Or. at 407, 241 P. at 396. By the express terms of that statute "[s]uch certificate shall be prima facie evidence of the legal existence of such foreign corporation." There was no evidence that the Idaho statute included such a provision. The opinion is clear that in the absence of such a statute, with such a provision, the certification would not have been admissible as evidence to prove the continued legal existence of the corporation. Indeed, as early as its decision in N.P.T. Co. v. City of Portland, 14 Or. 24, 13 P. 705 (1886), this court, in a writ of review to review proceedings to condemn real property to widen a street, held to be inadmissible a statement included in a certificate made by the auditor and clerk of the city that the plaintiff had received from the City of Portland the amount of money specified in the report of the viewers, saying (at 28, 13 P. at 708) that: The Oregon Legislature has adopted a series of statutes relating to the proof of the contents of public records and which expressly provide requirements which must be complied with in proving the contents of a public record. See ORS ch. 43, Public Writing and Their Admissibility. See also, e.g., ORS 482.580. Necessarily, the contents of a public record includes both what affirmatively appears and what does not appear in such a record. The method chosen by the legislature in ORS ch. 43 for proof of the contents of a public record was the same as at common law the production of the original or a copy of the record itself, so that what the record shows and what it does not show can be determined by an examination of that document, rather than by a hearsay written statement of its contents by a person not available for cross-examination. Those statutes also specify the requirements for certificates to be attached to such documents in order for them to be admissible in evidence. When transcripts of public writings are stored in a data processing device or computer, as may well be the situation in this case, the form of the required certificate is specified in detail as follows: Thus, a transcript of such a public record is made admissible by ORS 43.470(2). Again, however, it is the transcript that is admissible in evidence and the certificate does no more than validate the transcript.[6] *803 For these reasons, we hold that the trial court erred in admitting into evidence the statement, "our records reveal this order was in full effect on 4-30-78." The crime of "driving while suspended" in violation of ORS 487.560 is a "major traffic offense" and a Class A misdemeanor (ORS 487.560(5)), with a maximum term of imprisonment of one year (ORS 161.615(1)), and a maximum fine of $1,000 (ORS 161.635(1)). The elements which must be proved to establish that crime include (1) driving a motor vehicle upon a highway, (2) "during a period when (the driver's) license * * * has been suspended."[7] As previously noted, the Court of Appeals held that even without the disputed statement on the copy of the order of suspension there was other evidence sufficient to sustain defendant's conviction of that offense. That holding was based upon its reasoning that "[t]he introduction into evidence of a certified copy of the suspension order plus the testimony of the arresting officer establishes a prima facie case"; that "[a]ny contention by defendant that the suspension order was no longer in effect was a matter of defense," and that "[n]o such defense was made at trial."[8] (41 Or. App. at 646-47, 598 P.2d at 1248). The only testimony by the officer was that upon stopping defendant for exceeding the speed limit while driving a motor vehicle on a highway he "told her that she was suspended for failure to appear" and that "she said she had received a citation last year and had appeared in court on that citation." The suspension order showed only that it was dated July 28, 1977, and suspended defendant's license "effective 08-17-77 for an indefinite period." The only other evidence was the certified copy of the mailing receipt signed by the defendant on August 8, 1977, for a copy of the order of suspension. The traffic citation for driving while suspended was dated April 30, 1978.[9] It is clear that such testimony, together with the certified copy of the previous suspension order, was insufficient to establish that defendant was driving "during a period when (her) license * * * has been suspended" unless a jury could properly find from such evidence, and beyond a reasonable doubt, that the order of suspension effective August 17, 1977, "for an indefinite period" was still in effect on April 30, 1978, over eight months later. We are chided by the vigorous dissent of Tanzer, J., for not approaching the solution to this case by considering first the question whether it was harmless error for the trial court to admit into evidence the certificate, including the statement, "our records reveal this order was in full effect on 4-30-78." *804 According to that dissent: The dissent goes on to say that "[t]his case is just that simple"; that "[t]his case demonstrates anew that the right answer is usually straightforward and that tortuous reasoning is usually erroneous." We have quite deliberately not considered the question of "harmless error" because, as conceded by Tanzer, J.: In other words, the question of "harmless error" only arises when, in the absence of wrongly admitted evidence, there remains evidence sufficient to entitle the finder of fact to find beyond a reasonable doubt that defendant was guilty. For these reasons, we are of the opinion that we must first consider the sufficiency of such evidence. Also, because this is a criminal case we must consider that question not only in the light of Article VII (Amended), § 3 of the Oregon Constitution and ORS 138.230, but also in accordance with requirements of the Constitution of the United States as construed by the Supreme Court of the United States, as will be discussed. In our opinion, the resolution of that question depends upon whether there was either a presumption or an inference upon the basis of which the finder of the fact could reasonably find beyond a reasonable doubt that the order of suspension "for an indefinite period" was still in effect on April 30, over eight months later. In Oregon, by statute, a presumption is "a deduction which the law expressly directs to be made from particular facts," (ORS 41.340) and is a "kind" of "indirect evidence." (ORS 41.310). Although presumptions "other than conclusive presumptions" (i.e., "disputable presumptions") "may be controverted by other evidence, direct or indirect, * * * unless so overcome, the jury is bound to find according to the presumption." (ORS 41.360). See also U.S. National Bank v. Lloyds, 239 Or. 298, 324-25, 382 P.2d 851, 396 P.2d 765 (1964). One of these "disputable presumptions" is that "[a] thing once proved to exist continues to exist as long as is usual with things of that nature." (ORS 41.360(32)). Thus, the question is presented whether, by reason of this statutory presumption, the suspension order "effective 8-17-77 for an indefinite period" is to be presumed to have "continued to exist" (i.e., to remain in effect) until April 30, 1978, eight months later, in the absence of evidence to the contrary. According to the dissent by Tanzer, J., "[n]o issue of presumptions is presented" and "the question is one of inferences, not presumptions," although stating that "[t]his distinction was erroneously not made" in State v. Garrett, 281 Or. 281, 574 P.2d 639 (1978). In our judgment, however, and regardless of whether the statutory presumption of continuity under ORS 41.360(32) is to be regarded as a presumption or as an inference, the problem is the same and, in our judgment, the necessary analysis remains the same. It has been truly stated that a presumption is one of "the slipperiest member(s) of the family of legal terms."[10] Most of the previous decisions in which this court has considered ORS 41.360(32) (the "presumption of continuity") are of little help in deciding this question.[11] Courts in some *805 other states have applied such a presumption in cases involving suspensions of drivers' licenses.[12] We find those cases of little assistance, however, in resolving the problems presented in this case. In Jamerson, Adm'x v. Witt, Executrix, 215 Or. 227, 332 P.2d 1054 (1959), in considering the presumption of continuity, this court (at 237, 332 P.2d at 1058-1059) said that: If the analysis of this court in Jamerson is to be adopted, an indefinite suspension of a driver's license for failure to appear can hardly be considered to be a "more or less static condition," but may perhaps be more properly described as a condition which is "in a state of flux" or one "dependent upon the will" of the defendant himself, because the suspension of a driver's license for failure to appear, as in this case, is subject to automatic termination if and when the driver makes such an appearance, as expressly provided by ORS 484.210(2) and as subsequently discussed. As pointed out in the dissent by Tanzer, J., the driver must also pay an $8 reinstatement fee (since raised to $25 per ORS 482.505(1)). It has also been held by this court that under at least some circumstances the presumption of continuity will not be applied in the absence of evidence as to "how long it is usual" for the condition to continue. State v. Weller, 285 Or. 457, 461, 591 P.2d 732 (1979). See also Weigar v. Steen, 81 Or. 72, 74, 158 P. 280 (1916). Although such a rule would appear to be proper in considering application of the presumption to a condition such as insanity, as in Weller, it would appear that no such evidence could reasonably be required in the application of the presumption of continuity to a condition such as the continued existence of Mt. Everest, as suggested by Wigmore, supra. Similarly, it is at least doubtful whether such evidence could reasonably be required in a case such as this, in which the "condition" involved is the continued "existence" of an order by an administrative agency *806 suspending a license for an indefinite period. Indeed, what empirical evidence could there be to show "how long it is usual" for such an order to continue in effect? The difficulty of the problem is compounded upon the application of the presumption of continuity in criminal cases. Defendant contends that to hold that the order of suspension of his driver's license creates a disputable or rebuttable presumption that the order was in effect on the day of his arrest shifts the burden of proof on this issue to the defendant to disprove that fact and that to impose such a burden of proof upon a defendant in a criminal case violates his constitutional right of due process and negates his presumption of innocence, citing In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); Ex parte Kameta, 36 Or. 251, 60 P. 394 (1900), and State v. Wakefield, 111 Or. 615, 228 P. 115 (1924). Defendant also contends that whether the problem be considered as one involving either a presumption or inference, these constitutional requirements are not satisfied in a criminal case unless there be both a "rational connection" between the proved fact and the presumed or inferred fact and also unless that fact is "more likely than not" to follow from the proved fact and that the proof in such a case must also satisfy the standard of proof beyond a reasonable doubt, citing Tot v. United States, 319 U.S. 463, 467, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943); Leary v. United States, 395 U.S. 6, 36, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), and Barnes v. United States, 412 U.S. 837, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973).[13] A simplistic solution, supported by some authority, would be to hold that the presumption of continuity has no application in a criminal case because such a presumption would conflict with the defendant's presumption of innocence. (ORS 41.360(1)).[14] It is now generally regarded, however, that the presumption of innocence is not a true presumption, but instead is "an amplification of the prosecutor's burden of persuasion."[15] In Jamerson, Adm'x v. Witt, Executrix, supra, at 237, 332 P.2d at 1059, this court quoted with approval from Wigmore on Evidence, 3d edition, § 437, as follows, in discussing the "presumption of continuity": *807 We agree with the proposition that in considering the application of the presumption of continuity in any given case, the degree of probability of such a continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end and that each case must be decided upon its particular circumstances. ORS 484.210(2), which is the controlling substantive statute in this case, provides as follows: As previously stated, it appears from the record in this case that on August 8, 1977, defendant was notified of the suspension of her driver's license when she received from the Motor Vehicle Division a copy of the order which had been entered on July 28, 1977, suspending her driver's license "effective 8-17-77 for an indefinite period." In Musgrave et ux. v. Lucas et ux., 193 Or. 401, 414, 238 P.2d 780, 786 (1951), this court, although under different facts, held that: Although the facts of that case were different, the principle is somewhat the same. It also appears from the testimony of the officer, as a witness for the state, that when he gave defendant the citation for "driving while suspended" on April 30, 1978, he "told her that she was suspended for failure to appear" and that "she said she had received a citation last year and had appeared in court on that citation." According to the dissent by Tanzer, J., "it is consistent with human experience that, unlike temporary or 30-day suspensions of non-resident operator's privileges, the duration of an indefinite suspension tends to be indefinite," and the conviction of the defendant in this case must be affirmed "where it is proved that a non-resident operator's privilege has been suspended * * in the absence of evidence of a change in that condition" because "it is reasonable for a factfinder to infer that the indefinite suspension is still in effect eight months later." The rule advocated by that dissent may well be applicable in Oregon in civil cases by reason of Article VII, § 3 of the Oregon Constitution. In criminal cases, however, this court is bound to conform to requirements imposed by the Constitution of the United States as interpreted by the Supreme Court of the United States. As recently held by that court in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979): The state had the burden to prove beyond a reasonable doubt each element of the crime with which this defendant was charged, including proof that the order suspending *808 defendant's driver's license remained in effect for a period of over eight months. As previously noted, under the provisions of ORS 484.210(2), if the defendant at any time during that period had made an appearance before the court on the citation which led to the suspension of her driver's license, the suspension order would have been terminated upon her payment of a fee of $8. As also previously noted, defendant was given notice of that suspension. Also, according to uncontradicted testimony of the officer, a witness for the state, defendant told the officer that after receiving notice of a citation during the past year she had appeared in court upon that citation. The dissent by Tanzer, J., would accord no "legal significance" to this evidence. It may be true, as stated by the dissent, that this statement was not "offered for its truth"; that it did "not specify which citation it applies to," and was no more than "defendant's unsworn, uncross-examined out-of-court declaration," which the finder of the fact was entitled to disbelieve. While we agree that such evidence is by no means controlling, we do not agree that it may be entirely disregarded. After all, when hearsay evidence is introduced without objection it is entitled to consideration as "competent" and substantive evidence. Lauback v. Industrial Indemnity Co., 286 Or. 217, 222, 593 P.2d 1146 (1979). Also, it was offered as a portion of the testimony of a witness produced by the state. Although the state may not always be bound by testimony offered by one of its witnesses, in our judgment it is evidence entitled to some consideration in a decision of this case, at least as one of "the circumstances of this particular case." After viewing evidence in this case in the light most favorable to the state, and upon application of the rule required by Jackson v. Virginia, supra, we are of the opinion that a "rational trier of the fact" could not have properly found beyond a reasonable doubt from the admissible evidence in this case that this order of suspension was still in effect on April 30, 1978. In reaching this conclusion we do not hold that in the usual case the presumption of continuity does not apply to an order by a court or administrative agency. We hold, instead, to paraphrase Wigmore, supra, that under the "circumstances of this particular case," including the nature of this order, the notice given to this defendant, the statutory provisions for termination of the order, and the testimony of the state's witness in this case, that "the chances of intervening circumstances having occurred" so as to terminate the continued existence of this order were such that a "rational trier of the fact" could not have properly found that "the degree of probability" that this order continued in existence for a period of eight months was sufficiently great to support a finding beyond a reasonable doubt that this order of suspension was still in effect on April 30, 1978.[17] The final charge by the dissent of Tanzer, J., is that to so hold is to "decide a factual dispute as a matter of law." The sufficiency of the evidence in a criminal case, however, is always a question of law. As held in State v. Krummacher, 269 Or. 125, at 137-38, 523 P.2d 1009, 1014-1015 (1977) (cited by the dissent): For these reasons, the judgment of the trial court and the decision by the Court of Appeals must be reversed and this case *809 must be remanded to the Multnomah County District Court for a new trial. Reversed and remanded. DENECKE, Chief Justice, dissenting. The state offered and the court received a properly certified copy of a record of the Department of Motor Vehicles. The record was entitled, "Order of Suspension," and it recited in part: "It is Hereby Ordered pursuant to ORS * * * [Dorothy Rachel Harris's] non-resident's operating privilege * * * is suspended effective 08-17-77 for an indefinite period." Below the copy of the record, the certifier further recited, "and that our records reveal this order was in full effect on 4-30-78 * * *." I am of the opinion that it is reasonable to interpret the certifier's statement, "our records reveal this order was in full effect on 4-30-78," as a statement to the effect that there is no entry that defendant's license was reinstated. The defendant objected only to that part of the exhibit stating, "our records reveal this order was in full effect on 4-30-78." Based upon a statement made in the opinion in Finchum v. Lyons, 247 Or. 255, 262-263, 428 P.2d 890 (1967), the state contends that this hearsay statement is admissible because of an exception to the hearsay rule codified in ORS 43.370. In my opinion this statement in Finchum was incorrect and ORS 43.370 has nothing to do with the admissibility into evidence of entries in official records. I am unable to determine whether the majority decides that ORS 43.370 is or is not applicable. The substance of what is now ORS 43.370 was contained in Deady's Civil Code, § 735, Title V, ch. 8 (1862). This early date makes it doubtful that it was intended as an exception to the hearsay rule, ORS 43.370 provides: The statute does not concern the admissibility of the entries. It does not address how entries from official records are to be proved. It concerns the evidentiary value of entries in official records whether the entry itself or a certified copy of the entry is offered into evidence. ORS 43.370 says the entry is "primary evidence." Section 664 of ch. VIII of Deady's Code (now ORS 41.090) provided: No other statutes govern the admissibility of this official record except ORS 43.330, relating to authentication, which is not in issue. There being no other statute, the admissibility of the certificate is to be determined by this court. In Timber Access Ind. v. U.S. Plywood, 263 Or. 509, 503 P.2d 482 (1972), the objection was made that the hearsay evidence received should not have been received because it was not within any statutory exception to the hearsay rule. We stated: *810 There is a well-recognized judicial exception to the judicially-created hearsay rule. The exception makes admissible authenticated copies of official records. Finchum v. Lyons, supra, 247 Or. at 262, 428 P.2d 890. This exception is consistent with the reasoning behind the rule excluding hearsay evidence. The reason for the exclusion is that hearsay evidence is untrustworthy because the declarant's veracity and accuracy cannot be tested by cross-examination. Sheedy v. Stall, 255 Or. 594, 596, 468 P.2d 529 (1970). The circumstances surrounding the keeping of official records negate the necessity of the right of cross-examination to insure the accuracy of the evidence. While the common law recognized that properly authenticated copies of entries in official records are admissible as an exception to the hearsay rule, the older decisions would not admit authenticated copies stating there were no entries. 5 Wigmore, Evidence § 1678(7), 867-868 (1974). Fortunately, this court never adopted that ill-conceived distinction. Wigmore commented: In the present case the hearsay statement contained in the certificate that the defendant's license was suspended indefinitely is unquestionably admissible; the statement to the effect that there is no entry in the Division's records that the suspension has been terminated likewise should be admissible. The majority cites McIntosh Livestock Co. v. Buffington, 116 Or. 399, 241 P. 393 (1925), for the proposition that conclusions the certifier draws from the official records are not admissible. I do not quarrel with this general proposition; however, "conclusions" should not be too broadly applied. As stated, the certificate in this case, "our records reveal this order was in full effect on 4-30-78," was in effect a statement that there is no entry in the Division's records that the license suspension has been terminated. This court's views on what should not be considered "conclusions" are shown by another portion of McIntosh. The Oregon Corporation Commissioner made a certification stating: We held the certificate admissible. In my opinion the entire certificate in this case is admissible; therefore, apart *811 from any presumption, there is proof that the defendant's license was suspended on the date she was apprehended. TANZER, Justice, dissenting. I agree with the opinion of Justice Tongue that the statement on the order of suspension that it "was in full effect on 4-30-78" is hearsay. I agree with both opinions that ORS 43.370 is not applicable because, as Justice Tongue points out, the statement is not an "entry" and because, as the Chief Justice points out, ORS 43.370 deals with the probative effect of evidence rather than its authenticity. It is true, as the Chief Justice points out, that we can modify obsolete common law rules of evidence. It is arguable that this evidence is admissible because any evidence with inherent reliability should be admissible regardless of whether it is hearsay or if it fits snugly into a traditional exception to the hearsay rule. Professor Wigmore would have liked that, but there is no need for a change of law to dispose justly of this case. Hence, I do not concur in the remainder of the Chief Justice's opinion. I concur in part 1 of the majority opinion which holds the statement to be inadmissible hearsay and that it was error to admit it. Thereafter, however, the majority's reasoning is tortuous, whereas the analysis should be straightforward. Once it is determined that evidence was wrongfully admitted, the next question is whether the error was prejudicial or harmless. We have construed Or.Const., Art. VII (Amended), § 3, and ORS 138.230[1] to require that we affirm the judgment in a criminal case if there is substantial and convincing evidence of guilt and the error was unlikely to have changed the result of the trial. State v. Van Hooser, 266 Or. 19, 511 P.2d 359 (1973); State v. McLean, 255 Or. 464, 468 P.2d 521 (1970). I would hold simply that the error was harmless. The remaining evidence is that defendant was operating an automobile, that she produced an out-of-state operator's license, but no Oregon license, and that eight months earlier her Oregon non-resident's operating privilege had been suspended indefinitely. There was no defense. I find it inconceivable that the district judge would have found otherwise even if the notation had not appeared in the certification. This case is just that simple. Part 2 of the majority opinion is not that simple. It errs in several respects. First, like the Court of Appeals opinion, it does not ask whether the error was harmless, but rather whether there was enough remaining evidence to support the finding of guilt. That is the wrong standard. Reversal is required if there is prejudicial error regardless of whether the remaining evidence is sufficient to go to the factfinder. Obviously, if there is not enough remaining evidence to go to the factfinder, the error was prejudicial, but, nevertheless, the majority misconceives the procedural framework and at least as a matter of form it is better to state the issue correctly. The next misconception is in the discussion of presumptions. No issue of presumptions is presented. Even if we accept the majority's premise that the preliminary issue is the sufficiency of the evidence to go to the factfinder, then the question is one of inferences, not presumptions.[2] If the evidence and all reasonable inferences therefrom are sufficient to prove the fact in issue, then the proof is sufficient to go to a factfinder regardless of whether those inferences are also embodied in presumptions. *812 A presumption is an inference which the law requires to be made. ORS 41.340.[3] In determining the sufficiency of evidence, it does not matter whether the law directs the factfinder to make an inference or whether the factfinder can reasonably do so on his own. Juries make decisions every day based on inferences they draw without the law directing them to do so. Therefore, the discussion of the majority about presumptions is irrelevant even to the issue which it erroneously poses. Assuming for argument that the issue is one of presumptions rather than inferences, I agree that the presumption of continuity depends on the permanent or transitory nature of the condition proved once to exist. That concept is embodied in ORS 41.360(32): The summary of our cases in footnote 9 of the majority opinion demonstrates that this court has adhered to that concept: e.g., marriage, partnership, insanity, life, title tend to continue, but money tends to get spent, cars possessed by dealers tend to get sold, illness tends to pass. These inferences are consistent with human experience. Applying that principle to this case, it is consistent with human experience that, unlike temporary or 30-day suspensions of non-resident operator's privileges, the duration of an indefinite suspension tends to be indefinite. In footnote 10 the majority brushes off the cases from elsewhere that have so held as based on "little analysis," but I see no need for extended analysis of a proposition which is self-evident. The "rational connection" between the fact proved (that the license was suspended indefinitely) and the fact inferred (that thereafter the license was in a state of suspension) is obvious. In sum, where it is proved that a non-resident operator's privilege has been suspended indefinitely, then, in the absence of evidence of a change in that condition, it is reasonable for a factfinder to infer that the indefinite suspension is still in effect eight months later. That is true whether the inference is discretionary with the factfinder or whether it is directed by law in the form of a presumption. Next, the majority opinion reasons that the presumption that the indefinite suspension still existed is too weak to go to the jury because (1) defendant told the officer that she had appeared in court after her initial nonappearance, and (2) the effect of ORS 484.210(2), which the majority terms "the controlling substantive statute in this case" (opinion 807; see also 806), is that the suspension order must be automatically terminated if the defendant, having failed to appear in court, appears thereafter. Both prongs of this conclusion are wrong. First, the majority refers repeatedly to defendant's statement to the officer that she appeared in court on a citation after her suspension. It is unclear, however, what legal significance the majority attaches to this evidence. No legal effect (as opposed to factual effect) is evident. This convoluted reasoning has no precedent or persuasive logic and, moreover, its statutory basis is erroneous. Contrary to the assertion of the majority, ORS 484.210 is not the controlling statute, for at least the reason that there is another statutory requirement for the reinstatement of a suspended license. The majority fails to mention it, but the requirement appears on the face of the suspension order. ORS 482.505(1) requires, without exception, payment of a license reinstatement fee of $8.[4] There is no suggestion that this statutory requirement has occurred. The majority cites what appears to be loose language in Musgrave et ux. v. Lucas et ux., 193 Or. 401, 414, 238 P.2d 780, 786 (1951), for the proposition that There is nothing unlawful about not paying $8. Therefore, the Musgrave theory of not presuming continuing illegality (whatever that double negative may mean) has no application to this case. There is no evidence that defendant has paid the fee, no reason to so infer or presume, and certainly no basis for us to conclude as a matter of law that the state's evidence should not have gone to the factfinder. The conclusion mixes up all the errors into one big error: it decides a factual dispute as a matter of law. But see State v. Krummacher, 269 Or. 125, 523 P.2d 1009 (1974). The evidence is that: The majority concludes as a matter of law that no "rational person" could find that defendant's privilege was suspended at the time of her apprehension. This conclusion leaves me and probably most of the trial judges in this state outside that favored category. This case demonstrates anew that the right answer is usually straightforward and that tortuous reasoning is usually erroneous. Accordingly, I dissent. [*] LINDE, J., did not participate in this decision. [1] The suspension order in this case dealt with defendant's right to operate a motor vehicle in Oregon and did not suspend an Oregon license in the usual sense. ORS 487.560 refers not only to driving while one's "license" is suspended but also to driving when "his right to apply for a license * * * has been suspended." ORS 482.010(7)(c) defines "license" to include "any nonresident's operating privilege." [2] Reference is also made by the state to ORS 482.580 and 43.330(1). ORS 482.580 provides: "Notwithstanding the provisions of subsection (1) of ORS 43.330, proof of the order of suspension may be made by submitting to the court a copy of the order of suspension certified as a correct transcript thereof by an officer or an employe of the division." ORS 43.330(1) provides: "Other official documents may be proved as follows: "(1) Acts of the executive or administrative departments of this state and of the United States by the records of the departments, certified by the department heads; or by public documents prepared or printed by order of the Legislative Assembly, Congress, or by either house." As recognized by the state, however, these statutes are not controlling in this case, but provide only that certified copies are admissible. [3] According to the dissent by Denecke, C.J., "what is now ORS 43.370 was contained in Deady's Civil Code, § 735, Title V, Ch. 8," with the apparent inference that it is an ancient and outmoded statute. The fact is, however, that ORS 43.370 has been "updated" as recently as 1967 by extending its application to "data processing devices and computers." 1967 Or. Laws, c. 489, § 1. [4] Note that the statement in the certificate involved in this case does not include a statement that a diligent search had been made, as would be required by the rule or statute advocated by Wigmore, supra, at 868. [5] More recently, in Wynn v. Sundquist, 259 Or. 125, 132-34, 485 P.2d 1085 (1971), this court held that a "report" is not admissible under ORS 43.370 as a "record or document." This court has also declined to extend other Oregon statutes relating to evidence beyond the terms of such statutes or to adopt rules of evidence to the contrary, despite criticism of such statutes. See, e.g., Marshall v. Martinson, 268 Or. 46, 49-50, 518 P.2d 1312 (1974), and Smith v. Durant, 271 Or. 643, 648, 534 P.2d 955 (1975) (impeachment by proof of other crimes); Nielson v. Bryson, 257 Or. 179, 183-84, 477 P.2d 714 (1970), and Woosley v. Dunning, 268 Or. 233, 245-46, 520 P.2d 340 (1974) (doctor/patient privilege). See also Freightliner Corporation v. Gyles, 268 Or. 357, 364, 521 P.2d 1 (1974) (hearsay), and Wynn v. Sundquist, 259 Or. 125, 133, 485 P.2d 1085 (1971) (official records). [6] For admissibility of computer "print-outs" see authorities cited in Freightliner Corporation v. Gyles, 268 Or. 357, 364, n. 3, 521 P.2d 1 (1974). [7] 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 or revoked by the division or if he drives a motor vehicle outside the restrictions of a license issued under ORS 482.475 or 482.477." See also State v. Lawrence, 36 Or. App. 733, 736, 585 P.2d 727 (1978). [8] The Court of Appeals cited no authorities in support of this conclusion other than its own previous decisions, which are not controlling, in our view, in deciding the problem presented in this case. These include State v. Lawrence, 36 Or. App. 733, 736, 585 P.2d 727 (1978); State v. Nagel, 30 Or. App. 495, 499, 567 P.2d 585 (1977). Also cited were State v. Moore, 247 N.C. 368, 101 S.E.2d 26 (1957), and ORS 161.055. None of these authorities, other than North Carolina case of State v. Moore, supra, is relevant to the question whether the order of suspension effective August 18, 1977, for an "indefinite period" was still in effect on April 30, 1978. [9] The dissent by Tanzer, J., appears to attach some importance to defendant's failure to produce an Oregon operator's license. As previously noted, however, defendant never had an Oregon license; rather it was her "right to apply" for an Oregon license that was suspended. See footnote 1. [10] McCormick, supra, 802-803, § 342. [11] That presumption has been held applicable, usually with little analysis, (1) to prove continued insanity (State v. Garver, 190 Or. 291, 302-5, 225 P.2d 771 (1950); In re Dugan, 158 Or. 439, 442, 76 P.2d 961 (1938), and Johnson v. Johnson et al., 124 Or. 480, 482, 264 P. 842 (1928). But see State v. Weller, 285 Or. 457, 461, 591 P.2d 732 (1979)); (2) to prove marriage in an adultery case (State v. Eggleston, 45 Or. 346, 77 P. 738 (1904)); (3) to prove continued life in an escheat proceeding (Kankkonen v. Hendrickson et al., 232 Or. 49, 55, 374 P.2d 393 (1962)); (4) to prove continued ownership of real property (State v. McVey, 168 Or. 337, 345, 121 P.2d 461, 123 P.2d 181 (1942)), personal property (Templeton v. Bockler, 73 Or. 494, 504, 144 P. 405 (1914)); and funds in an account (Sanford v. Pike, 87 Or. 614, 619, 170 P. 729, 171 P. 394 (1918)); (5) to prove continued value of machinery (Maxson v. Ashland Iron Works, 85 Or. 345, 352, 166 P. 37, 167 P. 271 (1917)); (6) to prove continued out-of-state residence of a witness at a former trial (State v. Meyers, 59 Or. 537, 541, 117 P. 818 (1911)), and (7) to prove that an agency relationship continued (Laam v. Green, 106 Or. 311, 317, 211 P. 791 (1923)). On the other hand, this court has held the presumption not to be applicable (1) to prove that persons continued to be stockholders in a corporation (Sargent v. Waterbury, 83 Or. 159, 181, 161 P. 443, 163 P. 416 (1917)); (2) to prove continued possession of an automobile by a used car dealer (Hayes v. Ogle, 143 Or. 1, 8, 21 P.2d 223 (1933)); (3) to prove that a debtor continued to have certain funds (Weigar v. Steen, 81 Or. 72, 74, 158 P. 280 (1916). See also Hammer v. Downing, 41 Or. 234, 238, 66 P. 916 (1901), and State ex rel. v. Gutridge, 46 Or. 215, 219, 80 P. 98 (1905)); (4) to prove that a witness continued to be too infirm to attend trial (Carter v. Wakeman, 45 Or. 427, 429, 78 P. 362 (1904)); (5) to prove that a person would continue conduct known to violate a statute (Musgrave et ux. v. Lucas et ux., 193 Or. 401, 414, 238 P.2d 780 (1951)), or (6) to prove that a decedent remained idle up to the moment of his death (Jamerson, Adm'x v. Witt, Executrix, 215 Or. 227, 237, 332 P.2d 1054 (1959)). [12] In State v. Fernandez, 3 Conn.Cir. 109, 209 A.2d 194 (1964), it was held, with little analysis, that proof of an indefinite suspension two years previously made a prima facie case and that defendant then had "the burden of proving his defense." To the same general effect, see People v. Witvoet, 22 Ill. App.3d 375, 317 N.E.2d 292 (1974); State v. Harris, 101 N.H. 95, 133 A.2d 483 (1957), and Commonwealth v. Ralph, 10 Ches.Co.Rep. 626 (Pa. 1962). In Harris and Ralph, however, defendant's entire driving record was in evidence. To the contrary, see State v. Hoffer, 197 N.W.2d 368 (Iowa 1972). [13] See also McCormick on Evidence 830-32, § 346 (2d ed. 1972), and 1 Underhill's Criminal Evidence 101, § 46 (1973). Cf. State v. Vance, 285 Or. 383, 392-94, 591 P.2d 355 (1979). [14] See Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972). See also Lawson, Law of Presumptive Evidence, 240 (1899). Cf. State v. Wakefield, 111 Or. 615, 632, 228 P. 115 (1924). [15] McCormick, supra, n. 10, at 805-806, § 342. To the same effect, see 1 Warton's Criminal Evidence, 152 § 92 (13th ed. 1972) and 1 Underhill's Criminal Evidence 80-81, § 41 (6th ed. 1973). [16] Wigmore goes on to state as follows: "That no fixed rule can be prescribed as to the time or the conditions within which a prior or subsequent existence is evidential, is sufficiently illustrated by the precedents, from which it is impossible (and rightly so) to draw a general rule. They may be roughly grouped into two classes those in which the evidence has been received without any preliminary showing as to the influential circumstances remaining the same in the interval (thus leaving it to the opponent to prove their change by way of explanation in rebuttal), and those in which such preliminary showing is required. Whether it should be required must depend entirely on the case in hand, and it is useless to look or to wish for any detailed rules." (Emphasis added) [17] Cf. State v. Garrett, 281 Or. 281, 286, 574 P.2d 639 (1978), in which this court held that similarity of names, without additional evidence, will not support a finding of identity for the purposes of ORS 41.360(25). [1] ORS 138.230 provides: "After hearing the appeal, the court shall give judgment, without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect the substantial rights of the parties." [2] This distinction was erroneously not made in State v. Garrett, 281 Or. 281, 574 P.2d 639 (1978). [3] ORS 41.340 provides: "A presumption is a deduction which the law expressly directs to be made from particular facts." [4] ORS 482.505(1) provides: "The division shall charge a fee of $25 for reinstatement of any license that has been suspended or revoked. Except as provided in subsection (2) of this section, no reinstatement shall be made until the fee is paid to the division. * * *" The $8 fee required in this case was later changed to $25. 1977 Or. Laws, c. 392, § 1.

0fb7982c084b2fa87ad3bfa46b490f3c8ce2cad018d7ff9a17d5669bc8775862

1980-03-25T00:00:00Z

f3553c31-38c7-4fbc-8d7d-ddd708a1f2f6

Wash. Cty. Pol. Officers v. Wash. Cty.

321 Or. 430, 900 P.2d 483

oregon

Oregon Supreme Court

900 P.2d 483 (1995) 321 Or. 430 WASHINGTON COUNTY POLICE OFFICERS ASSOCIATION, Respondent on Review, v. WASHINGTON COUNTY, Petitioner on Review, and Employment Relations Board, Intervenor/Petitioner on Review. ERB UP-42-92; CA A75956; SC S41346, S41350. Supreme Court of Oregon. Argued and Submitted January 5, 1995. Decided August 24, 1995. *484 John M. Junkin, Washington County Counsel, Hillsboro, argued the cause and filed the petition for petitioner on review. Philip Schradle, Asst. Atty. Gen., Salem, argued the cause and filed the briefs for intervenor/petitioner on review. With him on the briefs were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. William B. Aitchison, Portland, argued the cause and filed the brief for respondent on review. *485 Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.[*] GILLETTE, Justice. In this labor relations case, the Washington County Police Officers Association (the Association) filed two unfair labor practice complaints against Washington County (County) for unilaterally adopting a Complaint Investigations Procedures Manual that allegedly infringed on employees' rights to union representation during investigatory interviews.[1] We are asked to decide whether the Employment Relations Board (ERB) correctly dismissed those complaints, without a hearing, for failure to allege an "issue of fact or law." ORS 243.676(1)(b). The Court of Appeals held that ERB correctly dismissed one complaint, but incorrectly dismissed the other; it remanded the latter complaint to ERB for further proceedings. Washington Cty. Police Officers v. Washington Cty., 127 Or.App. 545, 550, 873 P.2d 432 (1994). We allowed review to determine whether an amendment to the County's Complaint Investigations Procedures Manual, adopted in response to an order of ERB, was subject to immediate collective bargaining, before implementation of the amendment, by the statutes requiring collective bargaining "with respect to employment relations." ORS 243.672(1)(e), 243.650(4), 243.650(7).[2] For the reasons set out below, we hold that it was not. The decision of the Court of Appeals is affirmed in part and reversed in part. The order of the Employment Relations Board is affirmed. The proceedings before this court stem from a lengthy history of litigation between the parties, involving three decisions of ERB and two separate unfair labor practice complaints filed by the Association. The battle began in February 1990, when the Association filed a complaint with ERB alleging that the policies and practices of the County with respect to the participation of Association representatives in investigatory interviews conducted by the County constituted unfair labor practices in violation of ORS 243.672(1)(a). The Association prevailed in that ERB proceeding. The County was ordered to cease and desist and to modify its written policy "consistent" with ERB's opinion and order.[3]Washington County Police Officers Association v. Washington County, 12 PECBR 693, 706-07 (1991) (WCPOA I). *486 The Association, concerned that ERB had misstated Oregon law with respect to an employee's right to consult with Association representatives during investigatory interviews, petitioned ERB for reconsideration of its opinion.[4] ERB granted that petition and held that Oregon law does not provide an employee the right to consult with a union representative during an investigatory interview. Washington County Police Officers Association v. Washington County, 12 PECBR 693, on reconsideration, 12 PECBR 727, 729 (1991) (WCPOA II). No petition for judicial review was filed with respect to either WCPOA I or II, and we do not address the correctness of either. The dispute before this court, although connected to WCPOA I and II, is a separate matter. We turn now to that dispute. Immediately after ERB decided WCPOA II, the County chose to implement the directive from ERB in WCPOA II by promulgating an amended Complaint Investigations Procedures Manual. The new manual adopted, almost verbatim, the minimum representation rights required by ORS 243.672(1)(a), as decided and enumerated by ERB in its unappealed decisions, WCPOA I and II. On March 20, 1992, the Association filed a complaint alleging two unfair labor practices by the County: one aimed at the content of the manual and the other aimed at the procedure by which the manual had been adopted. The first allegation was that the amended policy violated ORS 243.672(1)(a) by not affording to employees a right to consult with a labor representative during investigatory interviews. The second allegation was that, because the procedures used for the investigation of disciplinary complaints were subject to mandatory collective bargaining, the County had violated ORS 243.672(1)(e) when it promulgated the amended policy "unilaterally." ERB dismissed the entire complaint for failure to state issues of fact or law. Washington County Police Officers Association v. Washington County, 13 PECBR 627 (1992) (WCPOA III). ERB dismissed the first theory, relating to the content of the manual, on the ground that the Association was alleging a violation of a right that ERB had held to be non-existent in WCPOA I and II and, because those two decisions had not been appealed, no issue of fact or law existed. ERB dismissed the second theory, viz., that collective bargaining was required before an amendment to the manual could be adopted, because the County had done nothing, in ERB's opinion, but comply with ERB's earlier affirmative order for relief. ERB did not reach the question whether, absent claim preclusion, employee rights to union representation in investigatory interviews were otherwise subject to mandatory bargaining. WCPOA III, 13 PECBR at 634 n. 1. On judicial review, the Court of Appeals affirmed ERB's dismissal of the first theory in the Association's complaint, but reversed the dismissal of the second theory. It then remanded the case to ERB for a determination whether the policy reflected in the manual was subject to mandatory bargaining. For the reasons that follow, we affirm the decision of the Court of Appeals with respect to the first theory, but reverse as to the second. The Court of Appeals held that the Association's first theory was barred by the common law doctrine of issue preclusion. Washington Cty. Police Officers, 127 Or.App. at 547, 873 P.2d 432. We agree. This court has held: Nelson v. Emerald People's Utility Dist., 318 Or. 99, 104, 862 P.2d 1293 (1993) (footnote omitted). In the present case, there is no dispute concerning the first and fourth elements of issue preclusion, viz., identity of issue and identity of party. The legal validity of the Court of Appeals' determination depends on whether the second (actually litigated and essential to final decision), third (full and fair opportunity to be heard), and fifth (prior proceeding of type that will be given preclusive effect) elements of issue preclusion in Nelson were satisfied. The second element of issue preclusion, requiring that the issue actually was litigated and essential to a final decision on the merits in the prior proceeding, was satisfied by ERB's decisions in WCPOA I and II. ERB's interpretation of the rights provided by ORS 243.672(1)(a) was essential to its final decisions on the merits in those proceedings. The issue in WCPOA I was whether the County had violated an employee's rights under ORS 243.672(1)(a). The extent of those rights was central to that dispute. The Association now argues that the enumeration of rights in WCPOA I was "dictum" and, because it was "dictum," the Association was not required either to accept that enumeration or to seek judicial review of it. We do not agree with the Association's characterization of the rights enumerated in WCPOA I. Moreover, in WCPOA II, the primary question before ERB was the extent of an employee's right to consult with a labor representative during an investigatory interview. The Association specifically argued that issue and requested a ruling. Thus, the Association's argument that the issue of an employee's rights to representation by the Association in an investigatory interview was not litigated, or not essential to ERB's decision, is not well taken. The third element of issue preclusion, requiring that the party sought to be precluded had a full and fair opportunity to be heard on the issue to be precluded, was satisfied when ERB reconsidered WCPOA I. In their petition, the Association urged See WCPOA II, 12 PECBR at 727 (quoting petition). The petition for reconsideration, along with the legal points and authorities contained therein, which were considered and dealt with on the merits in a reconsideration hearing, constituted a full and fair opportunity to present arguments on that legal issue. The Association's argument to the contrary is not well taken. The fifth element of issue preclusion, requiring that the prior proceeding be "the type of proceeding to which this court will give preclusive effect," also was satisfied. This court discussed the preclusive effect that an agency proceeding could have on further proceedings of the same agency in North Clackamas School Dist., 305 Or. at 52, 750 P.2d 485. After quoting several commentaries, this court concluded: "We see no reason why the rules of res judicata should not apply in this case. The same quality of proceedings and opportunity to litigate is present in both proceedings. If the incentive to litigate the question *488 is substantially the same, the procedural requisites for application of the issue preclusion rule would appear to exist. See Restatement (Second) of Judgments, Introductory Note to Ch 6 at 265 (1980)." Id. at 52-53, 750 P.2d 485. This case is no different. The parties had a demonstrated incentive to litigate the representational rights afforded by ORS 243.672(1)(a) in WCPOA I and II. This is demonstrated particularly by the Association's petition for reconsideration of ERB's limitation on the "right to consultation." Failure to seek judicial review of the resulting decision of ERB as to those representational rights made them final as between these parties and precludes the Association from raising the same issue here. We hold that ERB and the Court of Appeals correctly determined that the Association's first theory in its unfair labor practice complaint, relating to the contents of the revised manual, presented no issue of fact or law. We now review ERB's dismissal of the Association's second theory. As noted, the Association argued that the contents of the manual were a mandatory subject of collective bargaining. From that premise, the Association reasoned that, whatever the county's reasons for changing the manual might be, it could not make those changes without first bargaining collectively with the Association. ERB's decision to dismiss that theory did not rely on any specific "exception" to collective bargaining delineated in the collective bargaining statutes. Neither did it rely on past decisions of this court on the subject of mandatory collective bargaining. ERB instead appears to have rested its decision on two separate legal contentions not previously considered by this court. First, ERB appeared to assert that an employer has no duty to bargain whenever changes in employment practices are made in order to bring the employer into compliance with the minimum requirements of law. It held: WCPOA III, 13 PECBR at 633-34 (footnote omitted). The Court of Appeals criticized and reversed ERB's dismissal on that basis. As stated by the Court of Appeals: Washington Cty. Police Officers, 127 Or. App. at 548 n. 1, 873 P.2d 432 (emphasis supplied). We agree with the Court of Appeals that ERB's first basis for dismissal is not sufficient. The fact that two legal duties may collide, or appear in conflict, does not excuse an employer from making good faith efforts to comply with those duties, or excuse ERB from enforcing them. We agree with the Court of Appeals, therefore, that dismissal on that ground alone would have been reversible errorbut ERB did not rely solely on that ground. ERB also relied on its authority to order affirmative relief necessary to effectuate the purposes of the public employees' collective *489 bargaining law (PECBA).[5] ERB asserted that an obligation to bargain over the implementation of an ERB order would delay compliance with the law and defeat the immediate affirmative relief required for an unfair labor practice. It held: "* * * If we were to adopt the Association's argument, we would have to hold that an employer's modification of an unlawful practice would not be permitted, unless agreement were reached or the PECBA dispute resolution process was completed. Such a holding would require an employer to continue its unlawful conduct while bargaining was completed. We will not require employers to engage in unlawful conduct." WCPOA III, 13 PECBR at 633. We agree with ERB's contention that to require collective bargaining, after an ERB order, about a specific directive in that order, would be inconsistent with ERB's authority indeed dutyto order immediate affirmative relief. ORS 243.676(2)(c) requires ERB, on the finding of an unfair labor practice, to order that the person cease and desist from the unfair labor practice and order "such affirmative action * * * as necessary to effectuate the purposes of [ORS 243.650 to 243.782]." To permit a delay in the implementation of a specific affirmative order for immediate relief would thwart the affirmative relief required by ORS 243.676(2)(c). An ERB order giving an employer broad discretion over the time or method of compliance with that order does not necessarily extinguish any pre-existing duty to bargain over decisions affecting employee relations.[6] But an order requiring a specific act, or requiring immediate compliance, cannot, if it is to be effective, be subjected to an indeterminate delay by a party's insistence that it be bargained over before implementation.[7] We are left, then, with a question of interpretation, viz., whether the ERB order, requiring the County to amend its policy manual "within 14 days of this Order [and] consistent with this Order," left the time or method of compliance up to the employer. As set forth below, we hold that it did not. Three circumstances are dispositive in this inquiry. First, the Association, in its original unfair labor practice complaint against the County, sought specific affirmative relief in the form of an ERB order "[r]equiring that Washington County amend its Complaint Investigation Procedures Manual to Comply with State law concerning rights of Association members to Association representation during investigatory interviews." WCPOA I, UP-15-90 (Complaint, February *490 2, 1990). Second, ERB specifically ordered the County to "modify its Manual within 14 days" of the ERB order, to be "consistent with [that] Order." The order is specific, both as to time and method of compliance. The main body of the ERB opinion and order succinctly set out the state law concerning the rights requested, and the order required the modification to be complete within 14 days of the ERB order. Any reasonable person, having read the unfair labor practice complaint, the opinion, and the affirmative order, would understand the order to direct the County to amend its manual to meet minimum state law requirements and would know specifically what, in the view of ERB, those minimum requirements were. Finally, and even if there were some room for debate over the scope of ERB's order in WCPOA I, the ERB order in WCPOA III definitively interpreted the order in question as an order to adopt affirmatively the state law requirements outlined in WCPOA I and II into the County's manual. ERB held: "* * * * * "* * * When revising the manual, the County did nothing more than comply with the minimum legal requirements regarding employee rights to union representation in investigatory interviews, as set forth in [Washington County Police Officers Association v. Washington County, 12 PECBR 693, on reconsideration, 12 PECBR 727 (1991) ]. In that case, we held that a prior edition of the manual infringed on employee rights and violated subsection (1)(a) and ordered the County to modify its manual." WCPOA III, 13 PECBR at 633. We hold that ERB's order in WCPOA I directed the County to provide immediate affirmative relief of a specific nature. To require bargaining before implementation of that order would have been inconsistent with that order and, as such, error. The Court of Appeals erred in reaching a contrary result. For the forgoing reasons, we hold that the Association's first theory in its unfair labor practice complaint was barred by the common law doctrine of issue preclusion. The second theory, seeking mandatory bargaining over the content of the County's Complaint Investigations Procedures Manual in advance of making any changes in it, was precluded by ERB's order. The decision of the Court of Appeals is affirmed in part and reversed in part. The order of the Employment Relations Board is affirmed. UNIS, Justice, dissenting. ORS 243.676(1)(b) and (c) obligate the Employment Relations Board (ERB) to conduct a hearing on an unfair labor practice complaint if its investigation reveals that an "issue of fact or law exists." ERB declined to hold a hearing in this case. The sole issue presented here is whether the complaint describes an issue of fact or law. If it does, ERB's action was erroneous. In Washington County Police Officers Association v. Washington County, 12 PECBR 693 (1991) (WCPOA I), ERB held that Washington County's (the County) conduct during an investigatory meeting for a union member violated ORS 243.672(1)(a), which forbids a public employer to "[i]nterfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662." I refer to ORS 243.672(1)(a) as the "coercion" statute. To remedy the County's violation of the coercion statute, ERB entered the following remedial order, the text of which is critical to the outcome in this case: "1. The County shall cease and desist from instructing [Washington County Police Officers Association (Association) ] representatives to be silent during investigatory interviews of Association members and [from] limiting the role of the Association *491 representative to that of an observer during such interviews. ERB ordered the County to take two specific actions: (1) stop telling Association representatives to be silent during investigatory interviews and stop limiting their role to that of an observer, and (2) stop interfering with employee rights under the County's manual by relegating the Association's representatives to the role of observer during interviews and "modify [the County's] Manual within 14 days of the order consistent with this Order." Id. at 707 (emphasis added). Only the latter remedial order is relevant to the discussion here. The Association petitioned for, and ERB granted, reconsideration. Washington County Police Officers Association v. Washington County, 12 PECBR 693, on reconsideration, 12 PECBR 727 (1991) (WCPOA II). In WCPOA II, 12 PECBR at 731, ERB said that the PECBA did not grant union representatives the right to counsel employees during investigatory interviews and that, "[a]t this time, we believe issues of a greater or lesser role for union representatives in investigatory interviews are better left to the collective bargaining process." On February 1, 1992, the County promulgated a revised manual. In the revised manual, the County did satisfy the second remedial measure ordered by ERB in WCPOA I by deleting the language from its manual that, in ERB's words, "relegat[ed] the employee representative to the role of an observer during any interview or meeting to which an employee's right to representation attaches." WCPOA I, 12 PECBR at 707 (text of remedial order No. 2).[1]However, in revising its manual, the County went beyond the terms of ERB's remedial order. In addition to deleting the language that required the Association representative to "only be an observer," the County also struck language that expressly permitted the Association to engage in "the counseling of the employee." The County also promulgated four procedural rules that purported to control the employee representative's right of participation in an investigatory interview: The County promulgated those changes unilaterally, without good faith bargaining. The Association filed an unfair labor practice complaint that alleged that, by promulgating those changes, the County violated *492 the coercion statute, ORS 243.672(1)(a), and also the statute, ORS 243.672(1)(e), that requires good faith bargaining over an employer's changes in matters of employment relations. The latter statute was not construed or applied in ERB's WCPOA I or WCPOA II decisions. The Association argued that the County's action violated the bargaining statute by deleting unilaterally the Association's right under the manual to "counsel[ ] * * * the employee" and by imposing procedural limitations on Association representatives in interviews. The Association points out, correctly, that those changes were not ordered by ERB in its remedial order in WCPOA I. Moreover, the Association argues that WCPOA I and WCPOA II addressed the question of an appropriate remedy for a violation of the coercion statute, not whether changes to the manual that ERB ordered or that the County might unilaterally implement would violate the good faith bargaining duty or what the remedy for such a violation might be. ERB never decided in those cases whether the subject of representation rights in investigatory interviews is a mandatory subject of bargaining. ERB's only reference to bargaining rights occurred in WCPOA II, in which ERB said: ERB dismissed both charges without a hearing. The principal dispute here concerns ERB's dismissal without a hearing of the alleged bargaining violation.[2] ERB expressed its reason for that dismissal in the following passage, which I quote in full: The majority's analysis of those eight quoted sentences is, in a word, strange. First, the majority, quoting the emphasized fourth and eighth sentences, 321 Or. at 438, 900 P.2d at 488, suggests that that language states one basis for ERB's dismissal, i.e., that an "employer has no obligation to bargain over changes made to meet minimum legal requirements." The majority rejects, as did the Court of Appeals, that reason as a basis for ERB's dismissal. In rejecting that asserted rationale, the majority is correct. The majority, however, says that ERB relied on a second reason for its dismissal, i.e., "its authority to order affirmative relief necessary to effectuate the purposes of the public employees' collective bargaining law (PECBA)." 321 Or. at 439, 900 P.2d at 489. Those words do not appear in ERB's order. To prove the existence of that alleged second *493 reason, the majority quotes the other six sentences (the first through the third, and the fifth through the seventh) in ERB's statement of its reason for dismissal. 321 Or. at 439-440, 900 P.2d at 488-489. The majority's attempt to discover a second reason for ERB's decision fails. ERB's purported explanation for dismissing the bargaining charge conveys only one reason: ERB believed that the County was entitled to unilaterally implement changes to meet what ERB labeled as "minimum legal requirements," citing WCPOA II, and that requiring bargaining over such changes would compel an employer to continue unlawful conduct. ERB would have no basis to rely on the purported "second" reason stated by the majority, because ERB was concerned, mistakenly, with the County's predicament that resulted from the County's own unilateral conduct, not with ERB's authority to order effective relief. That is the reason that ERB's statement of its rationale does not cite the statute that authorizes ERB to order remedies, ORS 243.676(2), and makes no reference, in words, to any concern about ERB's remedial power. The majority jumps to the conclusion that ERB ruled as it did to protect "ERB's authorityindeed dutyto order immediate affirmative relief." 321 Or. at 440, 900 P.2d at 489. I have demonstrated already that ERB never reached any such conclusion. The majority simply refuses to recognize that it already has rejected, correctly, ERB's only reason for dismissing the complaint. The right to bargain, which ERB and the majority effectively evade, is of critical importance to the Association. In WCPOA I and WCPOA II, ERB did not decide whether the Association's participation in investigatory interviews affected matters of employment relations and, thus, was subject to a mandatory bargaining duty. The Association asserts in this proceeding that that topic is mandatorily bargainable. It did not litigate that issue in the earlier contested cases. If the Association is correct, it has a strong interest in bargaining for inclusion of agreements about that topic in its contract. ERB's view that the County merely changed its manual to conform to minimum legal requirements is unresponsive to the Association's point. If the changes to the manual concern a mandatorily bargainable subject, the Association has a right under ORS 243.672(1)(e) to bargain about those minimum legal requirements and to require inclusion of any agreements about those matters in a contract. The County cannot evade its duty to bargain for a contract clause on a mandatory subject by unilaterally inserting wording on that subject in a County Manual. The majority suggests that this court's task is to interpret ERB's remedial order in WCPOA I to determine whether it left to the County the discretion how or when it would comply with ERB's order or, instead, ordered the County to perform specific acts without granting discretion regarding compliance to the County. To no one's surprise, the majority concludes that ERB's order is of the latter kind. That is a foregone conclusion, because ERB never has issued a remedial order of the former kind. In reaching its decision in this case, the majority's reasoning is erroneous for several reasons. The remedial order in WCPOA I is unambiguous. Thus, neither ERB nor the majority, by "interpretation," can read into that order a broader remedy than its clear terms describe. The dispute there concerned a phrase in the County's Manual that made the employee representative a mere "observer" during interviews. ERB found that that phrase constituted illegal coercion and ordered the County not to treat a representative as a mere observer and to modify the manual "consistent with this Order." ERB's remedial order in WCPOA I required deletion of the "observer" requirement, not the wholesale modification of investigatory interview procedures that the County unilaterally implemented. However, the majority's attempt to broaden ERB's remedial order by a process of construction is not the main problem with its logic. The majority says that it is compelled to interpret ERB's order to discern whether it required a specific remedial act because, if it does, it "cannot, if it is to be effective, be subjected to an indeterminate delay by a party's insistence that it be bargained over *494 before implementation." 321 Or. at 440-441, 900 P.2d at 489-490 (emphasis in original). Several problems undermine that reasoning. First, it resurrects ERB's notion that the County's duty to comply with ERB's order excuses it from fulfilling other statutory obligations, such as bargaining in good faith, that arise upon issuance of a demand to bargain. The majority opinion rejects that view, as did the Court of Appeals, and I agree, because the County's difficulty is traceable to its own wrongdoing. If the County's argument about inconsistent legal obligations is insufficient to justify nullifying compliance with the statutory bargaining obligation, so is the majority's theory that postpones compliance with the bargaining obligation. The majority fails to explain its irreconcilable answers on those issues. Second, the majority simply is wrong in assuming that the Association's post-order demand for bargaining somehow will disrupt the effectiveness of ERB's order and cause indeterminate delay. The timing of bargaining can be critical to the effective functioning of the bargaining process. The question before ERB was whether the County had a bargaining obligation when the Association demanded bargaining and violated it by unilaterally implementing numerous changes in the manual. The bargaining demand has no legal effect on ERB's order or the County's obligation to comply with it. Certainly, the ERB order does not insulate the County from a bargaining obligation that arises before it complies with the order. Third, even if ERB had expressly ordered the County to make the modifications that it unilaterally implemented, the Association is entitled to demand bargaining over those changes if they relate to a mandatory bargaining subject. ERB has yet to rule on the bargainability of those subjects. If the changes relate to a mandatory subject, the question whether the ERB order is a complete defense to the bargaining charge or merely affects the potential remedy is itself an issue that ERB must decide in a hearing and not reject summarily. Instead of speculating that bargaining would lead to "an indeterminate delay" in implementation of ERB's order, which is a prejudgment that is unfounded on this record, the majority and ERB should allow the parties to participate in the bargaining process in the way that they deem appropriate. That process could result in an agreement, perhaps before the compliance date set by ERB's order, and there is no justification for the majority's assumption to the contrary. Properly viewed, the coexistence of the ERB remedial order and the demand to bargain merely is a source of pressure on both labor and management that either side may exploit lawfully in order to achieve their objectives in the bargaining arena. The majority upsets the equilibrium of the bargaining process by canceling the County's bargaining obligation and permitting the County to implement unilaterally the changes in its manual that it prefers as the new status quo. That result necessarily places a greater burden on the Association in its attempt to bargain for a different set of interview procedures in a contract. The majority purports to mitigate the effect of affirming ERB's order by stating in a footnote that either side can "bargain over any appropriate subject of bargaining at any time. We hold only that bargaining may not delay implementation of certain specific orders of ERB, such as the one at issue here." 321 Or. at 440 n. 7, 900 P.2d at 489 n. 7. That statement cannot hide the fact that the ERB order here is typical of many ERB remedial orders and that the result adopted by the majority will prejudice the position of the party demanding bargaining, which is, typically, labor in virtually every similar case. The majority's statement offers no solace to those employee organizations that must bargain for changes in management's unilaterally implemented status quo. Finally, the majority fails to justify ERB's action in dismissing the complaint without a hearing. As discussed above, ERB never decided in WCPOA I whether the procedures applicable to investigatory interviews concern a mandatory bargaining subject. In WCPOA II, 12 PECBR at 731, ERB said that the role of the union representative in investigatory interviews is "better left to the collective bargaining process." The Association's *495 complaint here raised that viable legal issue, as well as the question of what remedy ERB should order, if any, for the County's refusal to bargain over its procedural changes. ERB was obligated to address those issues in a hearing. If any portion of the change implemented by the County was not compelled by ERB's remedial order in WCPOA I, ERB erred in dismissing the Association's charge without a hearing. Neither ERB nor the majority explain how that order can be construed to require the County to delete unilaterally the Association's affirmative right under the former manual to engage in "the counselling of the employee." That error alone requires reversal of ERB's dismissal order. As the majority correctly observes, the County's reliance on "minimum legal requirements" does not excuse the County from its bargaining obligations or "excuse ERB from enforcing them." 321 Or. at 438-439, 900 P.2d at 488-489. As a result, the Association's complaint raised an "issue of fact or law" within the meaning of ORS 243.676(1) that required ERB to hold a hearing. ERB's dismissal of the complaint without a hearing was error. I respectfully dissent. [*] Durham, J., did not participate in this opinion. [1] ORS 243.672(1) provides in part: "It is an unfair labor practice for a public employer * * * to do any of the following: "(a) Interfere with, restrain or coerce employees in or because of the exercise of rights guaranteed in ORS 243.662. "* * * * * "(e) Refuse to bargain collectively in good faith with the exclusive representative." ORS 243.662 provides: "Public employees have the right to form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations." [2] ORS 243.650 provides in part: "(4) `Collective bargaining' means the performance of the mutual obligation of a public employer and the representative of its employees to meet at reasonable times and confer in good faith with respect to employment relations, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party. However, this obligation does not compel either party to agree to a proposal or require the making of a concession. "* * * * * "(7) `Employment relations' includes, but is not limited to, matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, grievance procedures and other conditions of employment." [3] After a lengthy opinion setting forth its views with respect to the minimum rights to representation in investigatory interviews afforded by Oregon law, ERB issued the following order: "1. The County shall cease and desist from instructing Association representatives to be silent during investigatory interviews of Association members and [from] limiting the role of the Association representative to that of an observer during such interviews. "2. The County shall cease and desist from interfering with employees' representational rights in the Manual by relegating the employee representative to the role of an observer during any interview or meeting to which the employee's right to representation attaches. The County shall modify its Manual within 14 days of this Order consistent with this Order." Washington County Police Officers Association v. Washington County, 12 PECBR 693, 706-07 (1991). [4] We emphasize that this case is a dispute between an employer and a collective bargaining representative. No individual employee is a party to the case, and no employee's individual rights are in issue. [5] ORS 243.676(2) provides in part: "Where, as a result of the hearing required pursuant to subsection (1)(c) of this section, the board finds that any person named in the complaint has engaged in or is engaging in any unfair labor practice charged in the complaint, the board shall: "* * * * * "(c) Take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as necessary to effectuate the purposes of ORS * * * 243.650 to 243.782 * * *." [6] ERB itself made this point in WCPOA III, 13 PECBR at 634 n. 1: "Of course, an employer that implements a change that does more than the law requires would be obligated to bargain over the change. But that situation is not present here." [7] Of course, our ruling in this regard does not prevent either side from seeking to bargain over any appropriate subject of bargaining at any time. We hold only that bargaining may not delay implementation of certain specific orders of ERB, such as the one at issue here. We also recognize that specific affirmative relief by order of ERB is not always necessary, or appropriate, to effectuate the purposes of ORS 243.650 to 243.782. [1] The original version of the manual, which was in effect when Washington County Police Officers Association v. Washington County, 12 PECBR 693 (1991) (WCPOA I), was decided, said, as material: "The Union representative shall only attend any employee interviews as an observer and shall not participate in the interview unless expressly allowed to by the supervisor. "* * * * * "The selected representative is restricted to the counseling of the employee and shall not actively participate in the interview of the employee." Id. at 699-700 (emphasis added). [2] I express no view regarding the correctness of the majority's analysis concerning the dismissal of the charge under the coercion statute.

840e1a31ea296ac3914d85f4988d8719c4e4928c5ffb128baabb7d567f115457

1995-08-24T00:00:00Z

4aa47bc4-2952-4fa7-9f0d-df973640d22e

Greene v. Kulongoski

322 Or. 169, 903 P.2d 366

oregon

Oregon Supreme Court

903 P.2d 366 (1995) 322 Or. 169 Mary Celene GREENE, Petitioner, v. Theodore R. KULONGOSKI, Attorney General of the State of Oregon, Respondent. SC S42079. Supreme Court of Oregon. Argued and Submitted May 11, 1995. Decided October 12, 1995. *367 George A. Riemer, General Counsel, Oregon State Bar, Lake Oswego, argued the cause for petitioner. Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. Richard D. Wasserman, Assistant Attorney General, filed the Answering Memorandum. With him on the Memorandum were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. Before CARSON, C.J., and VAN HOOMISSEN, FADELEY, UNIS, GRABER and DURHAM, JJ.[*] DURHAM, Justice. This is an original proceeding in which petitioner challenges the ballot title for a proposed initiative measure. Petitioner is an elector who submitted timely written comments about the Attorney General's draft ballot title, pursuant to ORS 250.067(1). Accordingly, petitioner is entitled to seek a different title in this court. ORS 250.085(2) *368 (1993). Petitioner's arguments restate those that she made to the Secretary of State during the administrative process. ORS 250.085(6). We modify the ballot title and certify it to the Secretary of State. The measure in question would repeal four statutes that relate to the practice of law. The measure provides: "Be it Enacted by the People of the State of Oregon: Section 1. ORS 9.160-9.166 are repealed." ORS 9.160 provides: ORS 9.162 provides: ORS 9.164 provides: ORS 9.166 provides: The Attorney General certified the following ballot title for the measure to the Secretary of State: Petitioner argues that the Attorney General's certified ballot title does not comply substantially with ORS 250.035 or former 250.039.[1] She contends that the caption *369 fails to identify reasonably the subject of the measure, that the question fails to state clearly the chief purpose of the measure, that the summary fails to state the major effect of passage of the measure, and that all three portions of the ballot title fail the standard of minimum readability required by former ORS 250.039. To correct those asserted errors, she proposes the following ballot title: In response, the Attorney General argues that the certified caption, question, and summary substantially comply with ORS 250.035 (1993). He acknowledges, however, that the certified ballot title does not meet the standard of readability, former ORS 250.039, and invites this court to revise the certified ballot title as follows to meet that standard: Hereafter, we will refer to that title as the Attorney General's revised ballot title. In addition, we review the readability of a ballot title in those cases in which former *370 ORS 250.039 is applicable, and a party makes a readability challenge under that statute.[2] Petitioner's criticism of the Attorney General's proposed caption focuses on the terms "repeal" and "banning." According to petitioner, those "double negatives" will confuse voters. A caption satisfies the statutory requirement that it must "reasonably identify" a measure's subject if, within the 10-word limit, it states or describes the subject accurately and in terms that will not confuse or mislead potential petition signers and voters. See Feeney v. Roberts, 309 Or. 324, 327-28, 787 P.2d 485 (1990) (applying principle, court modified caption, because the term "vote" obscured the measure's effect and made it difficult for voters to understand its subject); Fred Meyer, Inc. v. Roberts, 308 Or. 169, 174, 777 P.2d 406 (1989) (term "protects" in caption does not reasonably identify the subject of the measure, because it may mislead voters to think that they are simply being asked to confirm the existing state of the law). Avoiding confusing terminology in a caption is important. The caption is the cornerstone for the other portions of the ballot title. See Baker v. Keisling, 312 Or. 385, 392, 822 P.2d 1162 (1991) ("the question should build on, and be consistent with, the caption"). As the headline for the ballot title, it provides the context for the reader's consideration of the other information in the ballot title. Petitioner contends that the term "repeals" in the certified caption is confusing and that Reed v. Roberts, 304 Or. 649, 748 P.2d 542 (1988), supports use of the term "allows," as in her proposed ballot title. In Reed, the petitioners challenged a ballot title for a measure that, like the instant measure, would have repealed ORS 9.160 and permitted unlicensed persons to practice law. The Attorney General certified a ballot title with the following caption: 304 Or. at 652, 748 P.2d 542. Regarding the challenge to that caption, this court said: 304 Or. at 653-54, 748 P.2d 542. (emphasis in original). Petitioner argues that Reed demonstrates that the verb "allows" accurately conveys the measure's subjectremoving the statutory impediment to the unlicensed practice of lawwithout miring the reader in a potentially confusing description of the measure's procedural path to that objective. The Attorney General responds that the term "allows" does not accurately describe the subject of the measure, because the measure would not alter this court's statutory[3] and *371 constitutional[4] authority over the practice of law in Oregon. Although the risks to accuracy that the Attorney General now identifies were the same as in Reed, and Reed approved the term "allows" in this context, Reed did not require use of that verb to achieve substantial compliance with ORS 250.035. The term "repeals" accurately states the measure's operation on existing statutes and, standing alone, does not create a risk of voter confusion. However, the Attorney General's certified caption uses, in close proximity, the terms "repeals," "banning," and "unlicensed" to describe the procedural operation of the measure on existing law. Each of those terms connotes a legal negation or prohibition. Because those negative terms appear so close together, the reader faces a difficult challenge to discern which negative term, or combination of those terms, conveys the measure's subject. The Attorney General's certified caption requires the reader to consider what unlawful conduct present law bans, what legal prohibition the measure repeals and, finally, what legal restrictions, if any, on the unlicensed practice of law would remain if voters approve the measure. By carefully considering the meaning and effect of the three negative terms in the Attorney General's certified caption, a lawyer may be able to determine the measure's subject, but we think that a lay reader probably will get lost along the way. The risk of voter confusion in the certified caption leads us to conclude that the certified caption does not comply substantially with ORS 250.035(1) (1993). We certify the following caption: In their discussion of the question, the parties restate their arguments, summarized above, about potential voter confusion. The Attorney General also criticizes petitioner's proposed question for failing to mention one of the measure's chief purposes, i.e., repealing the Oregon State Bar's statutory authority to enforce the ban on the unlawful practice of law. The Attorney General asks this court to certify the question in accordance with his revised ballot title. A measure's "chief purpose" is "the most significant aim or end which the measure is designed to bring about." Nelson v. Roberts, 309 Or. 499, 504, 789 P.2d 650 (1990). "To be of most help to the voter, the question should build on, and be consistent with, the caption." Baker, 312 Or. at 392, 822 P.2d 1162. The Attorney General's revised question refers to the measure's two chief purposes, but does not plainly phrase those purposes, because it carries the same risk of voter confusion that we discussed above in connection with the caption. We modify the question to make it consistent with the caption: Petitioner argues that the Attorney General's certified summary fails to disclose that the measure would allow anyone to practice *372 law and, further, that it violates the applicable standard of readability in former ORS 250.039. See note 1, ante (quoting text of former ORS 250.039). The Attorney General responds that this court should certify the summary in his revised ballot title, because it adequately states the measure's major effects and meets the standard of readability. The parties agree that, under former ORS 250.039, the Flesch Formula for Readability is the standard of minimum readability applicable to this ballot title.[5] The readability standard applies to the ballot title as a whole, not merely to its parts. The Attorney General's certified ballot title scores below 60 on the Flesch test. The Attorney General's revised ballot title scores above 60, but it does not use the allotted 85 words to describe the measure's major effect. We agree with petitioner that the summary should disclose clearly the measure's major effect, i.e., it would repeal the statutes that now ban the unlicensed practice of law and, by doing so, would allow any person to practice law without a license. We also agree with the Attorney General that we should modify the certified title to improve its readability. The following summary identifies the measure's major effect within the 85-word limit and complies with the readability standard: We certify the following ballot title for use with the initiative measure: Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(9). UNIS, J., filed a dissenting opinion. UNIS, Justice, dissenting. I adhere to my view that, to the extent that ORS 250.085(5) (1993) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section 1, of the Oregon Constitution. Rooney v. Kulongoski (Elections Division # 13), 322 Or. 15, 55, 902 P.2d 1143 (1995) *373 (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction. [*] Gillette, J., did not participate in this decision. [1] ORS 250.035 (1993) provided: "(1) The ballot title of any measure to be initiated or referred shall consist of: "(a) A caption of not more than 10 words which reasonably identifies the subject of the measure; "(b) A question of not more than 20 words which plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on the measure; and "(c) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect. "(2) The ballot title shall not resemble, so far as probably to create confusion, any title previously filed for a measure to be submitted at that election." Former ORS 250.039 provided: "For all measures, the Secretary of State by rule shall designate a test of readability and adopt a standard of minimum readability for a ballot title. The ballot title shall comply with the standard to the fullest extent practicable consistent with the requirements of impartiality, conciseness and accuracy." The 1995 Legislature amended ORS 250.035, 250.085, and repealed ORS 250.039. Or.Laws 1995, ch. 534, §§ 1, 19. However, those changes do not apply to the ballot title in this case. See Or.Laws 1995, ch. 534, § 20 (act applies to initiative and referendum petitions for which a prospective petition is filed on or after effective date of act, i.e., July 7, 1995). Because the prospective petition in this case was filed before the effective date of the act, the earlier versions of those statutes apply. [2] This court no longer reviews the readability of a ballot title, because the legislature has repealed former ORS 250.039 (1993). Or.Laws 1995, ch. 534, § 19. [3] The measure would not repeal ORS 9.220, which provides: "An applicant for admission as attorney must apply to the Supreme Court and show that the applicant: "(1) Is at least 18 years old, which proof may be made by the applicant's affidavit. "(2)(a) Is a person of good moral character and fit to practice law. "(b) For purposes of this section and ORS 9.025, 9.070, 9.110, 9.130, 9.210, 9.250, 9.527 and 9.545, the lack of `good moral character' may be established by reference to acts or conduct that reflect moral turpitude or to acts or conduct which would cause a reasonable person to have substantial doubts about the individual's honesty, fairness and respect for the rights of others and for the laws of the state and the nation. The conduct or acts in question should be rationally connected to the applicant's fitness to practice law. "(3) Has the requisite learning and ability, which must be shown by the examination of the applicant, by the judges or under their direction. However, no rule shall establish any maximum on the number of times an applicant may apply for and take the bar examination whenever presented if the reason for refusing admission to practice law is failure to pass the bar examination." [4] See SER Acocella v. Allen, 288 Or. 175, 180, 604 P.2d 391 (1979) ("We have no doubt that Oregon courts have the inherent power to call upon members of the bar to represent an indigent defendant who has no other means of obtaining counsel."); Sadler v. Oregon State Bar, 275 Or. 279, 285, 550 P.2d 1218 (1976) ("legislation can affect the practice of law so long as it does not unduly burden or substantially interfere with the judiciary"). [5] Former OAR 165-14-045(2) provided: "The Flesch Formula for Readability is designated as the test for readability of a ballot title. Attainment of a specified readability level shall be complied with to the fullest extent practicable, consistent with the needs of impartiality, conciseness and accuracy. A Reading Ease Score of not less than 60 is adopted as the standard of minimum readability for this test." Our research discloses that the Secretary of State repealed that rule in 1994 and did not adopt another rule designating the test of readability and adopting a standard of minimum readability for a ballot title. The Attorney General advises us that the Department of Justice now calculates the Flesch score for ballot titles. Petitioner agrees that the Flesch test is the applicable test of readability and raises no challenge to the Secretary of State's compliance with former ORS 250.039.

3a623b792f67b522ac60e4ea77f0a42991ab2728bb1eb749b02d9e9c63af15d0

1995-10-12T00:00:00Z

d80a4f7d-5be1-4072-acc8-a212cb04be99

Malan v. Tipton

S058156

oregon

Oregon Supreme Court

Filed: February 17, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON ERIC MALAN,as Personal Representative of the Estate ofJames Harold Woodard, Respondent on Review, v. LINDA TIPTON,ART MILLS,dba Credit Bureau of Klamath County;and EUGENE V. ANDERSON, Defendants, and LUCILLE JENNER,as Personal Representative of the Estate ofLinda L. Tipton,aka Linda Spears, Petitioner on Review. (CC 06-00801-CV; CA A136333; SC S058156) On review from the Court of Appeals.* Argued and submitted September 14, 2010. Eugene V. Anderson, Medford, argued and submitted the brief for petitioner on review. Andrew C. Brandsness, Klamath Falls, argued and submitted the brief for respondent on review. Scott A. Shorr and Keil M. Mueller of Stoll Stoll Berne Lokting & Shlachter P.C., Portland, filed the briefs for amicus curiae Oregon Trial Lawyers Association. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** WALTERS, J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. *Appeal from Klamath County Circuit Court, Cameron F. Wogan, Judge. 232 Or App 464, 222 P3d 754 (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. WALTERS, J. An Oregon statute provides that, when a debtor makes a written offer to pay a particular sum of money to a creditor and the creditor does not accept the offer, the offer is equivalent to the actual production of the money. ORS 81.010.(1) In this case, we apply that statute and decide that the trial court was correct in concluding that defendant, a debtor, made a valid written offer of payment under ORS 81.010; that plaintiff, a creditor, did not accept it; and that defendant's offer was equivalent to the actual production of the sum offered. As a result, the trial court also was correct in concluding that defendant was relieved from liability for the consequences of nonpayment other than liability for the debt itself -- in this case, from foreclosure of the trust deed on the home that secured the debt. We reverse the contrary decision of the Court of Appeals. The relevant facts in this case are undisputed. On July 15, 2002, defendant borrowed $61,500 from James Woodard, executed a promissory note and trust deed agreeing to repay that sum, and secured that agreement with her residence.(2) Woodard died in March 2004, and plaintiff was appointed as the personal representative of Woodard's estate. Plaintiff hired an attorney, Henderson, to represent the estate. After reviewing the estate's records, plaintiff concluded that defendant had failed to make timely payments on the note and commenced a nonjudicial foreclosure of the trust deed. Defendant contested the foreclosure and, in December 2004, hired an attorney, Anderson, to file an action in circuit court to halt it. While that proceeding was pending, defendant attempted to continue making the required monthly payments. Plaintiff instructed Henderson not to accept such payments, but defendant nevertheless sought to perform by slipping the checks under Henderson's office door or running in and dropping a check at his front desk. Eventually, defendant obtained a court order permitting defendant to make the monthly payments to the court. Before the case could be tried, the parties entered into a settlement agreement, dated September 12, 2005, that permitted defendant to retain the home that constituted security for payment of the debt.(3) The agreement provided that the funds that defendant had paid into court would be released to plaintiff, and required that defendant set up a collection escrow account with a title company. The first payment to that account was due January 10, 2006.(4) When defendant sought to set up the collection escrow account, the title company informed her that it could not do so without additional information from both parties. Defendant discussed the title company's request for information with plaintiff, but, when defendant took her payment to the title company in early January, the title company would not accept it, asserting that it still had been unable to establish the account. On January 5, 2006, Anderson, defendant's attorney, mailed and faxed a letter to Henderson, plaintiff's attorney, stating the following: "If the account is established before January 10, 2006[, defendant] will make the payment directly to [the title company]. In the event that the account is not established before January 10th, I have asked my client to mail me a payment (in the old amount) so that I can hold those funds as soon as the account is established, or pay them to your trust account. Alternatively I can instruct my client to tender the payment directly to you before January 10th. In any event, my client intends tendering the January 2006 payment on a timely basis in any way you deem appropriate. Please let me know how you would like to receive that payment, assuming your client is not able to review the collection account agreement, or deliver the note and trust deed on time." Neither Henderson nor plaintiff answered that letter. On January 6, 2006, Anderson and Henderson discussed the debt by telephone, but did not discuss where defendant should make payment. That same day, Anderson sent a letter to the title company and faxed a copy of that letter to Henderson stating the following: "[Defendant] has deposited the January, 2006 payment in my trust account, in the amount of $579, which I will pay either to [the title company] as soon as the collection account is established, or to Mr. Henderson, if he would like to accept the payment into his trust account in the meantime. "* * * * * "I have faxed this letter and the enclosures[(5)] to Mr. Henderson for his comment. I would like to get his client's approval as soon as possible, so that we may open the account before the January payment is late." Neither the title company nor Henderson responded to the letter or fax. On January 9, 2006, Anderson mailed and faxed a final letter to Henderson, enclosing a check drawn on Anderson's trust account and made out to Henderson's trust account, stating: "Please find enclosed a check, made payable to 'Blair Henderson, Lawyer Trust Account', in the amount of $579.00 as [defendant's] payment for January 2006. Please let me know if there are any other issues with establishing the [escrow] collection account." On January 12, 2006, two days after the January 10 due date, Henderson received the check at his office. The amount of the check was greater than the required monthly payment and Anderson's trust account had sufficient funds to cover the check. Nonetheless, Henderson did not cash the check. On February 23, 2006, plaintiff commenced this judicial foreclosure action, declaring, in the complaint, that defendant was in default and that payment was due in full. The trial court conducted a bench trial, issued a letter opinion, dismissed the foreclosure action, and entered judgment for defendant. In its letter opinion, the trial court concluded that defendant had satisfied the requirements of ORS 81.010. The trial court found that defendant had made a written offer to pay a sum greater than that due under the settlement agreement, that Anderson had sufficient funds in his trust account to make that payment, and that the estate had not responded to defendant's offer. The court concluded that defendant had made a valid written offer of payment and that plaintiff was not entitled to foreclose. Plaintiff appealed, and the Court of Appeals reversed. Malan v. Tipton, 232 Or App 464, 222 P3d 754 (2009). First, the Court of Appeals concluded that the January 5 letter did not comply with ORS 81.010. The court reasoned that that letter "does not inform plaintiff that the money for the payment is available in counsel's trust account or that it can be withdrawn on or before the date that it is due. Rather, the letter states that counsel has asked his client to mail the payment to him so that it can be held in his trust account." Id. at 469. As a result, the court agreed with plaintiff that the letter was "at best only a naked offer to pay, unaccompanied by any readiness or ability to pay[.]" Id. Second, the Court of Appeals concluded that even if the January 5 letter had "included the necessary statement of the availability of the money," plaintiff did not respond by stating that he would not accept a check from defendant. Id. at 470. Had plaintiff done so, the court reasoned, defendant's offer, in addition to plaintiff's rejection, would have relieved defendant of her duty to pay. However, in the absence of any response from plaintiff, defendant had a continuing duty to make timely payment and did not do so. Id. Defendant sought review of the decision of the Court of Appeals, which we allowed. In this court, defendant claims that the Court of Appeals erred in two respects. First, defendant claims that the court erred in concluding that the January 5 letter did not constitute a valid written offer of payment. Defendant argues that the court incorrectly considered that letter in isolation and failed to note that the letter of January 6 clearly indicates that the money necessary for payment is available in counsel's trust account. Defendant also argues that although a debtor must demonstrate, at the time of trial, that the necessary funds were available at the time of the offer, ORS 81.010 does not require that the written offer contain an express statement to that effect. Second, defendant claims that the Court of Appeals erred in concluding that plaintiff's failure to reply to defendant's written offer was insufficient to trigger the statute's application. Defendant argues that the import of plaintiff's failure to reply to that offer was that the offer was "not accepted" as that phrase is used in ORS 81.010. As a result, ORS 81.010 requires that the written offer be treated as "equivalent to the actual production" of the sum offered. Both of defendant's claims of error require us to construe ORS 81.010. At the first level of our analysis we consider the statute's text and context, including pre-existing common law and prior relevant case law. State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009); Ram Technical Services, Inc. v. Koresko, 346 Or 215, 232, 208 P3d 950 (2009); State v. Toevs, 327 Or 525, 532, 964 P2d 1007 (1998). ORS 81.010 has not been amended since it was enacted in 1862. General Laws of Oregon, Civ Code, ch X, title I, § 842, p 277 (Deady & Lane 1843-1872). It provides: "An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if not accepted, equivalent to the actual production and tender of the money, instrument or property." Separated into its parts and simplified as relevant here, the text of that statute provides that when (1) a debtor makes "an offer in writing to pay a particular sum of money," and (2) the creditor does not accept that offer, (3) the offer is "equivalent to the actual production and tender" of the money. At common law, when a contract required payment, whether in money or goods, the debtor did not complete performance until he or she delivered the money or goods and the creditor accepted the delivery. Steel v. Island Milling Co., 47 Or 293, 297, 83 P 783 (1906). If the debtor produced the money, and the creditor did not accept it, the debtor had "tendered," but had not completed, performance. The sole difference between "tender" and "payment" was that payment was accepted; tender was not. Bembridge v. Miller, 235 Or 396, 402, 385 P2d 172 (1963). When a contract required payment of money, a lawful "tender" of that money required the "'actual production, in current coin of the realm, of a sum not less than the amount due.'" Equitable Life Assur. Soc. v. Boothe, 160 Or 679, 683, 86 P2d 960 (1939) (quoting Douglas v. Patrick, 3 TR 683, Rev Rep 793, 6 Eng Rul Case 589, 26 RCL, p 622). An offer to make a payment without the actual production of the money was not a "tender"; it was "at best only a naked offer to pay." Bembridge, 235 Or at 402. If the debtor actually produced, or "tendered," the coin of the realm and the creditor did not accept it, the debtor was relieved from liability for the consequences of nonpayment other than the debt, such as interest on the debt, but not from liability for the debt itself. The debtor had done all that the contract required and the debtor's "liability should not be increased simply because the proffered sum [was] not accepted by the creditor." Id. at 403. The common law of tender still applies in this state, except as modified by statute. Id. In enacting ORS 81.010, the legislature intended to modify one significant aspect of the common law of tender -- that is, that the money, the coin of the realm, actually be produced for acceptance. "[The statute] simply dispenses with the necessity of actually producing and offering the money in the outset. It is a statute for convenience. It is a hardship to require a party who wants to pay off a debt or discharge an obligation, and the amount is large, to make an actual offer of it, and the legislature has substituted another mode[.]" Holladay v. Holladay, 13 Or 523, 536-37, 11 P 260 (1886). That conclusion follows from the text of the statute, which provides that "an offer in writing to pay a particular sum of money," if not accepted, is "equivalent to the actual production and tender" of that sum. With that text and context in mind, we turn to defendant's first claim -- that the Court of Appeals erred in concluding that defendant did not make a valid "offer in writing to pay a particular sum." To constitute a valid offer of payment under ORS 81.010, a communication must contain a present offer of timely payment and cannot include any contradictory indication that the debtor is not ready and able to make that offer good. Although the text of ORS 81.010 does not so provide, its context makes that requirement apparent. A tender, at common law, required the actual production of the money that was owed. ORS 81.010 permits a debtor to substitute a written offer of payment for the production of money. In Bembridge, this court interpreted that statute to require that the debtor making such an offer have the present ability to produce the sum offered. The court stated: "The legislature, in enacting ORS 81.010, did not intend to supersede the common law requirement that the person making the written tender have the present ability to make the tender good if it is accepted." 235 Or at 403. Although the court was discussing the debtor's burden of proof at trial, not the content of the written offer, it follows, necessarily, that the terms of the offer must be consistent with the facts that a debtor must prove. Thus, to serve the same function as the production of money, and to satisfy the requirements of ORS 81.010, a written offer of payment must communicate a present offer of timely payment. Measuring defendant's communications to plaintiff by that standard, we agree with plaintiff and the Court of Appeals that the letter from defendant's attorney, Anderson, dated January 5, standing alone, was insufficient. Although the letter indicated that defendant intended to make timely payment, it did not state that defendant was presently offering to do so. The letter indicated that at least one of two steps was required before payment could be made. Anderson had to ask for and receive funds from defendant or Anderson had to instruct defendant to pay Henderson directly. The January 5 letter was not the only communication that defendant's attorney sent, however. On January 6, Anderson informed plaintiff's attorney, Henderson, that Anderson had received the sum of $579.00 from defendant and that Anderson "will pay" that sum to Henderson. The January 6 letter provided: "[Defendant] has deposited the January, 2006 payment in my trust account, in the amount of $579, which I will pay either to [the title company] as soon as the collection account is established, or to Mr. Henderson, if he would like to accept the payment into his trust account in the meantime." (Emphasis added.) Thus, on January 6, Anderson, defendant's attorney, communicated, in writing, a present offer to timely pay a particular sum -- $579.00 -- to plaintiff's attorney, Henderson. The Court of Appeals erred in not considering the letter of January 6 in its analysis and in concluding that defendant had not made a present offer of timely payment in compliance with ORS 81.010. Although plaintiff does not take up the argument that, under ORS 81.010, a written offer of payment must include an express statement that the debtor has the funds necessary for payment, the Court of Appeals opinion could be read to impose that requirement, and we think it important to negate it. It is true that a debtor who seeks the benefit of ORS 81.010 must prove, at trial, that he or she had the funds necessary for payment at the time the offer of payment was made. Bembridge, 235 Or at 402. But the court in Bembridge did not decide that a debtor must include an express statement to that effect in the written offer of payment. The court instead decided that the debtor had failed to meet his "burden of proof" at trial. Id. In reaching that decision, the court reviewed the facts of other cases which also considered the availability of funds to be an evidentiary matter. See, e.g., Short v. Rogue River Irrigation Co., 82 Or 662, 673, 162 P 845 (1917) (facts demonstrated that debtor had not arranged to borrow money necessary for payment until after making offer of payment); Eastern Oregon Land Co. v. Moody, 198 F 7, 19 (9th Cir 1912) (facts showed that debtor's bank account overdrawn on date of offer). Neither precedent nor ORS 81.010 requires that a debtor's offer to pay a particular sum include an express statement that the debtor has the funds necessary to do so. We now turn to defendant's second claim of error -- that the Court of Appeals erred in deciding that, even if defendant made a valid written offer of payment, plaintiff's silence was insufficient to meet the requirements of ORS 81.010. The Court of Appeals decided that plaintiff's "mere inaction," was not sufficient to "discharge [defendant] from her duty to pay." Malan, 232 Or App at 470. In reaching that conclusion, the Court of Appeals may have been under the misapprehension that a creditor's response to an offer of payment could result in the discharge of a debtor's payment obligation. It is important to reiterate that, at common law, the actual production of money did not relieve a debtor of the duty of payment; the production, if not accepted, only relieved the debtor of liability for the consequences of nonpayment, such as payment of interest or foreclosure. Under ORS 81.010, a written offer of payment, if not accepted, substitutes for and is equivalent to the actual production of money, but it does not serve to improve the debtor's position. In other words, a written offer to make payment under ORS 81.010, that is not accepted, does not serve to extinguish the underlying debt. Resolution of the dispute between the parties in this case depends on the legal effect of a creditor's failure to respond to a debtor's offer of payment. Defendant contends that to accept a written offer of payment a creditor must do more than remain silent. Defendant does not dispute that if plaintiff had accepted defendant's offer of payment, defendant would have been required to make that offer good by delivering payment to plaintiff by January 10. However, defendant contends, plaintiff did not accept defendant's written offer to pay the sum of $579.00; plaintiff simply remained silent and the offer was "not accepted." Therefore, defendant argues, the offer was equivalent to the actual production of $579.00 and relieved defendant of liability for the consequences of nonpayment other than for the debt itself -- in this case, foreclosure. Plaintiff argues that when a creditor does not affirmatively reject a written offer of payment, he or she accepts it, in turn requiring that the debtor make good on the offer by making actual, timely payment. Plaintiff contends that, in this case, he did not affirmatively reject defendant's offer to pay and, therefore, defendant was required to make that offer good by making actual, timely payment. When defendant concededly did not do so, plaintiff contends, plaintiff was entitled to foreclose. Plaintiff bases his argument not on the wording of the statute, but on the "unworkable scenarios" that, plaintiff contends, would ensue if a creditor's failure to respond to a written offer of payment were sufficient to satisfy the terms of ORS 81.010. For instance, plaintiff argues, if a creditor were to receive the following letter, he or she should not be required to respond in order to avoid the application of ORS 81.010: "I moved across town. Can I send the payment to a different branch of your bank or should I use the same one? If it's okay with you, I could mail it to your PO box." We assume that plaintiff intends to pose the problem of an offer that seeks to modify the underlying agreement, rather than to pay in accordance with that agreement. Given that assumption, the hypothetical that plaintiff poses does not meet the requirements of ORS 81.010. To make a valid offer of payment under ORS 81.010, a debtor must make an unconditional offer to pay in accordance with the terms of the underlying agreement. If the creditor believes that the terms of the offer do not meet that standard, the creditor may object to its validity. See ORS 81.020 (providing for waiver of certain objections to an offer of payment); State Highway Com. v. Efem Whse. Co., 207 Or 237, 246, 295 P2d 1101 (1956) (quoting proposition that creditor may waive objection to amount, place, or medium of tender if that tender not unconditional). Just as a debtor at common law could not obtain the benefits of the actual production of money if he or she delivered the coin of the realm at a place to which the creditor did not agree and to which the creditor objects, so, too, a debtor cannot obtain the benefits of ORS 81.010 by offering to make payment at a place to which the creditor did not agree and to which the creditor objects. The problem that plaintiff poses does not engage the facts of this case, however. Plaintiff did not at the time, and does not now, object that defendant's written offer was invalid because it proposed payment in the wrong amount or place. In fact, key to the result in this case, plaintiff insists that Henderson's trust account was "a proper place to make the payment."(6) Plaintiff does contend, in this court, that defendant's offer was invalid because it attempted to extend the time for payment by offering to make payment to the title company after the account was established. Plaintiff did not voice that objection at the time of defendant's offer, but, even if plaintiff had done so, that objection would not have been well taken. Defendant's letter of January 6 clearly proposed timely payment to Henderson's trust account. Plaintiff's next objection to defendant's proposed interpretation of ORS 81.010 is again a practical, not a textual, one. Plaintiff argues that a debtor with no uncertainty about whether a creditor would accept performance could wait, deliberately, until just before payment was due and, instead of making timely payment, make only a written offer of payment. In that circumstance, plaintiff asserts, the creditor would be forced to act affirmatively to accept the offer or to accept late payment -- a burden or consequence that the legislature could not have intended. In this case, as plaintiff sees it, defendant engaged in precisely that ploy. According to plaintiff, defendant knew, without question, that Henderson's trust account was "a proper place to make the payment." Instead of simply making timely payment there, defendant made a written offer to do so, requiring plaintiff to respond and accept defendant's offer or accept a payment that was two days late. The answer to the plaintiff's concern is two-fold. First, the legislature enacted ORS 81.010 as a statute of convenience for use in situations in which a debtor has both a good faith uncertainty about whether a creditor will accept the debtor's tendered performance and a present ability to make timely payment. A debtor who acts in bad faith to delay payment does not satisfy the requirements of the statute. In this case, the trial court found that the collection escrow account that the parties contemplated had not been established by the time payment was due; that plaintiff had previously instructed his attorney, Henderson, not to accept payments from defendant; and that defendant was legitimately uncertain about where to make payment. The trial court also found that defendant had provided the funds necessary for timely payment to defendant's attorney, Anderson, and that Anderson had those funds in his trust account on January 6. Thus, the trial court found facts that established that defendant's written offer was a legitimate effort to determine whether plaintiff would accept payment to Henderson's trust account and not a deliberate effort to evade the contractual requirement of timely payment. Second, and most importantly, the text and context of ORS 81.010 indicate that the legislature intended to require a creditor who receives a valid offer of payment to accept that offer or have the offer deemed equivalent to actual payment. A creditor who receives a valid written offer of payment is entitled to choose whether or not to accept it. As a general rule, silence does not indicate acceptance of an offer. See Suitter v. Thompson et ux., 225 Or 614, 623, 358 P2d 267 (1960) (silence functions as acceptance only in limited circumstance where "a duty arises requiring a party to speak"). The same is true of a written offer of payment under ORS 81.010. If a creditor does not affirmatively indicate that he or she accepts an offer of payment, and instead remains silent, the offer is "not accepted." See Comstock Mfg. Co. v. Schiffmann et al., 113 Or 677, 686-87, 234 P 293 (1925) (defendants made no objection to offer of payment, remained quiet until time for payment, then attempted, but were not permitted, forfeiture). At common law, when a debtor produced the coin of the realm and the creditor did not accept it, the debtor had tendered, but had not completed, performance. The difference between tender and performance was the affirmative act of acceptance. Bembridge, 235 Or at 402. If "mere inaction" could constitute acceptance, there would be no difference between tender and performance. When a debtor makes a written offer of payment, the debtor must have a good faith intent to ascertain whether the creditor is willing to accept the performance that is offered. If the creditor agrees to do so, the debtor is required to actually and timely perform and produce the payment. If a creditor's failure to respond were to constitute acceptance of an offer of performance, the statute would cease to be one of "convenience." The debtor would be required to perform despite continued uncertainty that the offered performance would be accepted. For all of those reasons, we conclude that defendant is correct that a creditor's silence in the face of valid offer of payment does not indicate acceptance of that offer. In summary, on January 6, defendant made, in good faith, a timely written offer to pay the sum of $579.00 to plaintiff. Plaintiff did not reply to or accept that offer. Therefore, under the terms and for the purposes of ORS 81.010, defendant's offer of payment was the equivalent of the actual production of the sum of $579.00 on January 6. Plaintiff was not entitled to foreclose the trust deed, and the trial court was correct in entering judgment for defendant. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. 1. ORS 81.010 provides: "An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if not accepted, equivalent to the actual production and tender of the money, instrument or property." 2. Defendant died shortly after trial of this case and defendant on appeal is the personal representative of her estate. ORAP 8.05(1); ORCP 34 B. 3. The relevant portion of the settlement agreement provides: "IN CONSIDERATION of the Releases set forth below in Section 2, the parties agree as follows: "a. The trust deed and note, copies of which are attached hereto and by this reference incorporated herein are paid current and the trust deed and note currently have a balance of $51,977.00. "b. That all funds paid by [defendant] into court as payments on the trust deed and note shall be released by the court to [plaintiff]. "c. The [defendant] will set up a collection escrow at [the title company] and the expenses of the escrow set up and monthly collection for the trust deed shall be paid by [defendant]. "d. The interest rate on the trust deed and note shall be 6.7 percent. "e. Each party shall pay their own attorney's fees incurred in this litigation." 4. Although the settlement agreement was dated September 12, 2005, defendant did not sign the agreement until December 5, 2005. Until that date, defendant continued to make monthly payments into court. 5. Enclosed with the letter was a printout from the circuit court showing all of the payments that defendant had made to the court throughout the history of the case and an amortization table for the original loan amount. 6. There is a legal and factual basis for plaintiff's position. The settlement agreement required that defendant set up a collection escrow account but did not specifically require defendant to make payments to that account or provide that that account was the exclusive place of payment. A debt also may be payable at the place where the creditor resides, at the creditor's place of business, "'or wherever else [the creditor] may be found.'" See Lent v. Towery, 271 Or 41, 46, 530 P2d 77 (1975) (stating principle and quoting 70 CJS 217, Payment § 6).

8e7363ad6923422c10171c95cc08e800a182f80a5cfbbb77c5ef468ef30b97a8

2011-02-17T00:00:00Z

5b48a9db-945f-4cb2-a96b-4a5964126ec0

Sizemore v. Kulongoski

322 Or. 387, 908 P.2d 825

oregon

Oregon Supreme Court

908 P.2d 825 (1995) 322 Or. 387 Bill SIZEMORE, Petitioner, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, Respondent, and Alice Dale and Robert Crumpton, Intervenors. SC S42548. Supreme Court of Oregon, In Banc. On Petitions for Reconsideration December 1, 1995.[*] Decided December 21, 1995. *826 Richard D. Wasserman, Assistant Attorney General, Salem, filed a petition for reconsideration for respondent. With him on the petition were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. Paul B. Gamson, of Smith, Gamson, Diamond & Olney, Portland, and Lynn-Marie Crider, Salem, filed a petition for reconsideration for intervenors Robert Crumpton and Alice Dale. Gregory W. Byrne, of Byrne & Barrow, Portland, filed a memorandum on behalf of petitioner. PER CURIAM. The Attorney General and intervenors each petition for reconsideration of this court's decision certifying a ballot title in this case. They correctly point out that the "no" vote result statement in the ballot title certified by this court does not comply with ORS 250.035(2)(c), because it contains 16 words, one in excess of the statutory maximum. We allow the petitions for reconsideration and modify the "no" vote result statement to read: We certify the following ballot title to the Secretary of State: Petitions for reconsideration allowed. Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(9). UNIS, Justice, dissenting. I dissent. See Sizemore v. Kulongoski, 322 Or. 229, 239, 905 P.2d 1146 (1995). [*] Sizemore v. Kulongoski, 322 Or. 229, 905 P.2d 1146 (1995).

3942fc26025c8a94ca3c78c19a168544c22630b48f52788eefdba9f9e22e581f

1995-12-21T00:00:00Z

c897913a-c406-46c3-a258-880e708c85d0

Bendl v. Kulongoski

322 Or. 160, 902 P.2d 1189

oregon

Oregon Supreme Court

902 P.2d 1189 (1995) 322 Or. 160 Ruth BENDL, Petitioner, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, and Phil Keisling, Secretary of State, State of Oregon, Respondents, and Joan Biggs, Daniel A. Rooney, Jr., and Phil Dreyer, Intervenors. Arthur HONEYMAN, Petitioner, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, and Phil Keisling, Secretary of State, State of Oregon, Respondents, and Joan Biggs, Daniel A. Rooney, Jr., and Lloyd K. Marbet, Intervenors. SC S42393; SC S42394. Supreme Court of Oregon, In Banc. Argued and Submitted July 25, 1995. Decided October 5, 1995. Daniel W. Meek, Portland, argued the cause for petitioners and filed the petition for petitioner Honeyman. Gregory Kafoury, Portland, filed the petition for petitioner Bendl. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the answering memoranda for respondents. Charles F. Hinkle, Portland, filed a memorandum for intervenors Biggs and Rooney. Daniel W. Meek, Portland, filed memoranda for intervenors Dreyer and Marbet. GRABER, Justice. In this original proceeding, two petitioners challenge the ballot title for a proposed initiative measure. Petitioners are electors who, in a timely manner, submitted written comments about the Attorney General's draft ballot title, pursuant to ORS 250.067(1). Accordingly, petitioners are entitled to seek a different title in this court. ORS 250.085(2). Most of the arguments that petitioners make *1190 differ from the comments that they made during the administrative process, but those arguments in several respects "concern[ ] language added to or removed from the draft title after expiration of the comment period provided in ORS 250.067." ORS 250.085(6). We consider both the arguments that correspond to the ones presented in writing to the Secretary of State and those relating to new wording chosen after the close of the comment period. We modify the ballot title in certain respects and, as modified, certify it to the Secretary of State. The proposed initiative measure would add the following new subsections to Article IV, section 1, of the Oregon Constitution: For that measure, the Attorney General certified this ballot title to the Secretary of State: This court reviews that ballot title for "substantial compliance with the requirements of ORS 250.035 and 250.039." ORS 250.085(5) (1993).[1] ORS 250.035(1)(a) (1993) required that a ballot title contain a "caption of not more than 10 words which reasonably identifies the subject of the measure." ORS 250.035(1)(b) (1993) required that a ballot title also contain a "question of not more than 20 words which plainly phrases the chief purpose of the measure." ORS 250.035(1)(c) (1993) required that a ballot title contain a "concise and impartial statement of not more than 85 words summarizing the measure and its major effect." Finally, ORS 250.039 (1993) required that a ballot title meet "a standard of minimum readability." With respect to the Caption, petitioners argue that it is too narrow to identify reasonably the subject of the measure. Specifically, they contend that the proposed measure does more than remove the legislature's authority in the future to refer constitutional restrictions on the initiative and referendum to the voters. For example, they point out, the measure also would nullify any constitutional or statutory provisions pertaining to the initiative or referendum enacted after March 30, 1995, unless those provisions themselves resulted from an initiative. Petitioners also assert that the measure would prevent the legislature from changing the process, as well as the power, of the initiative and referendum. *1191 The Attorney General responds that the more specific alternative that he has chosen complies substantially with the statutory mandate to identify the subject of the proposed measure, because it "focuses precisely on how the measure would change the current constitution." We agree that the proposed measure removes "an existing legislative power (and thereby also remov[es] the people's power to approve a referendum proposed by the legislature)." But we disagree that the Attorney General's ballot title conveys the full scope of the proposed measure. Even if some aspects of the proposed measure are redundant of existing constitutional provisions, as the Attorney General argues, the subject of the concededly non-redundant portions is not conveyed sufficiently to meet the statutory standard. Based on the text of the proposed measure, we agree with petitioners that the Caption fails to identify reasonably the measure's subject. Accordingly, we modify the Caption. In addition, we make conforming changes to the Question. The Summary, however, complies substantially with the statutory requirements. One of the petitioners also brings a readability challenge. We conclude that it is not possible to improve the readability of the ballot title significantly, because the key terms of the proposed measure, which must be included in order to convey its scope to voters, are long words: e.g., constitution, initiative, referendum, and legislature. We certify the following ballot title for use with the proposed initiative measure: Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(9). UNIS, J., filed a dissenting opinion. UNIS, Justice, dissenting. I adhere to my view that, to the extent that ORS 250.085(5) (1993) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section I, of the Oregon Constitution. Rooney v. Kulongoski (Elections Division #13), 322 Or. 15, 55, 902 P.2d 1143 (1995) (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction. [1] The 1995 legislature amended ORS 250.035 and repealed ORS 250.039. Or Laws 1995, ch 534, §§ 1 & 19. Those changes, however, do not apply to the ballot title in this case. See id. at § 20(1)(a) (act applies to initiative petitions for which prospective petition is filed on or after effective date of act). The prospective petition in this case was filed before the effective date of the 1995 act, July 7, 1995.

ae90fad6a64c507d79f7395e6d638765332c8c6828d8296abd59b2580e7287ad

1995-10-05T00:00:00Z

a03f893a-e3c0-43b3-a0a7-c1698b2afbb4

State v. Ritchie

S057701

oregon

Oregon Supreme Court

FILED: January 6, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review/ Cross-Respondent on Review, v. GREGG BRYANT RITCHIE, Respondent on Review/ Cross-Petitioner on Review. (CC CR0401509; CA A129591; SC S057701 (Control), S057705) (Consolidated by Order September 1, 2010) On review from the Court of Appeals.* Argued and submitted September 14, 2010. Ryan Kahn, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review/cross-respondent on review.  With him on the briefs were John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Erika L. Hadlock. Senior Assistant Attorney General. Kendra M. Matthews, Ransom Blackman LLP, Portland, argued the cause and filed the briefs for respondent on review/cross-petitioner on review.  With her on the briefs was Marc D. Blackman. Before De Muniz, C. J., and Durham, Balmer, Kistler, Walters, and Linder, J.J., and Gillette, J. pro tempore.** GILLETTE, J. pro tempore The decision of the Court of Appeals is affirmed in part and reversed in part.  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. De Muniz, C. J., concurred and filed an opinion. Kistler, J., dissented and filed an opinion, in which Linder, J., joined. *Appeal from Clackamas County Circuit Court, Thomas J. Rastetter, Judge. 228 Or App 412, 208 P3d 981 (2009). **Landau, J., did not participate in the consideration or decision of this case. GILLETTE, J. pro tempore This case is a companion to State v. Barger, 349 Or ___ , ___ P3d ___ (2010) (decided this date).  Like the defendant in Barger, defendant was convicted of multiple (in defendant's case, 20) counts of Encouraging Child Abuse in the Second Degree, ORS 163.686, based on the presence of sexually explicit digital images of children on the hard drives of his computers.  Defendant appealed, arguing, among other things, that the state had failed to prove that he "possesse[d] or control[led]" any of the images within the meaning of the Encouraging Child Abuse statute,(1) and that it also had failed to prove venue with respect to some of the charges.  The Court of Appeals rejected defendant's argument with respect to the "possess[ion] or control[]" element of the charges, but agreed that the state had failed to prove venue with respect to 10 of the counts -- Counts 11 through 20.  The court therefore reversed defendant's convictions on Counts 11 through 20 and otherwise affirmed.  State v. Ritchie, 228 Or App 412, 423, 208 P3d 981 (2009).  Defendant and the state both petitioned for review by this court and we allowed both petitions.  On review, we hold that, in view of the disposition that we make today, we need not -- and do not -- decide whether the evidence presented by the state was sufficient to allow a rational trier of fact to conclude that the conduct at issue occurred in the county where defendant was tried.  Rather, we hold that the evidence presented by the state was insufficient to allow a rational trier of fact to conclude that defendant "possesse[d] or control[led]" any of the images at issue (including those associated with the counts for which venue was an issue), within the meaning of the relevant section of ORS 163.686.(2) In September 2004, while defendant was working as a music teacher in an elementary school in Clackamas County, officers from the Clackamas County Sheriff's Department went to the school to interview him about a report involving a former student.  In the course of the interview, defendant consented to a forensic examination of both his laptop computer, which he had with him at the school, and his desktop computer, which he kept in his home.  Defendant turned over his laptop to the officers on the spot and gave the officers permission to enter his home and take the desktop computer.(3) A police computer specialist, White, examined the desktop computer and discovered 600 pornographic images, most of which were of children, in unallocated space(4) on the computer's hard drive.  White repeated the procedure with the laptop and found about 500 pornographic images, again primarily of children, in unallocated space in that computer's hard drive.  Virtually all of the images that White discovered were accessible only by means of special data recovery software that forensics experts like White used, but that was not commonly used by ordinary computer users.  The state subsequently charged defendant in Clackamas County Circuit Court with 20 counts of Encouraging Child Sexual Abuse in the Second Degree by "possess[ing] and control[ling] a photograph of sexually explicit conduct involving a child."  Counts 1 through 10 were based on 10 sexually explicit digital images of young boys that had been recovered from unallocated space on the desktop computer's hard drive, and Counts 11 through 20 were based on 10 similar digital images that had been recovered from unallocated space on the laptop's hard drive.  Defendant waived his right to a jury trial and the case was tried to the court.  The state's primary witness was White.  White described his examination of defendant's laptop and desktop computers and his discovery of the images that formed the basis of the charges in "unallocated space" in the computers' hard drives.  He explained that "unallocated" space "is basically clusters on the hard drive that may or may not have information written to them.  If there's information written there, it is * * * a file that was deleted."  White then described the process by which deleted files are retained in unallocated space -- that, when a "file"(5) is created, the operating system "allocates" the file to a certain location in the hard drive, that a master file table keeps track of that location, and that, when a file is deleted, the data in the file remains in the physical location that originally was allocated, but the master file table is altered to indicate that that location now is "unallocated," i.e., available to be overwritten by new files.  Finally, White explained that, although files in unallocated space generally are not available to a user through ordinary means, they can be recovered with special forensic software like the software that he had used.  White then went on to describe some of the characteristics of the images that he had discovered on the two hard drives, and how he was able to tell that certain of the images had been sent to defendant's computer by another user while others may have come to the computer from ordinary Internet sites.  At some point, the parties announced that they would stipulate that four of the images -- those associated with Counts 1, 2, 3, and 4 -- had been sent to defendant's desktop computer in a "zipped folder"(6) through an Internet chat room by another chat room user, "rasputinlives978," and that, when the folder reached defendant's desktop computer, the folder was unzipped in some manner, so that the images within were available for viewing.  The parties were not willing to stipulate as to whether the unzipping was an intentional act by defendant or an automatic function of the chat room program.  White could not determine whether anyone had ever used defendant's desktop computer to view the images in that folder.  (That was important because, as noted elsewhere, the state's theory of the case was that defendant had possessed or controlled the digital images in Counts 1 through 4 by displaying them on a computer screen.) White then testified to some additional matters that were relevant to the parties' "chat room" stipulation.  He testified that the folder at issue was sent to defendant's desktop computer at 9:24 p.m. on July 7, 2002, and was deleted by midnight of the same day.  He also testified that, to receive a zipped folder offered by another Internet chat room user, a computer user generally must affirmatively accept the folder or file.  White also produced data collected from defendant's desktop showing that, in September 2002, defendant's laptop had received a file entitled "youngyoungboys.mpg" by instant messaging in an apparent swap for another file entitled "13suckbrother.jpg." Finally, White produced fragments of online "chat" found in unallocated space on defendant's desktop computer, which suggested that defendant had solicited and received child pornography from other chat room users.  In one of those fragments, someone using one of defendant's acknowledged screen names appeared to be responding favorably to material that a user had shared with him ("I'm taking off my clothes for this one").   In another fragment, a person using one of defendant's screen names appeared to be inquiring about how to obtain videos ("u have videos?") that had been mentioned.   The parties also announced that they had entered into a stipulation concerning the digital images taken from the desktop computer that corresponded to Counts 5 through 10 and the images taken from the laptop computer that corresponded to Counts 11 through 20.  Specifically, they stipulated that all those digital images were the product of "web browsing," i.e., searching the Internet.  White also provided technological background evidence that was relevant to that stipulation.  He explained how files accessed through web browsing might end up in unallocated space:  that, when a computer user accesses a web page, the browser creates a copy of the page and stores it in a temporary Internet file cache; that the next time the user calls up the same web page, the browser pulls up the copy from the temporary Internet file cache, rather than accessing and downloading the same information from the web page; that files held in the temporary Internet file cache may be deleted from the cache in a number of ways, some of which occur automatically and some of which require intentional action by a computer user; and that files that are deleted from the temporary Internet file cache remain in unallocated space unless and until they are overwritten by a new file.  In his testimony, White acknowledged that there was no way of knowing, with respect to any of the files associated with Counts 5 through 20, whether the files had been deleted from the temporary Internet file cache intentionally or by some automatic process.  He suggested, however, that the temporary Internet file cache appeared to have been emptied or cleaned more thoroughly and more often than would have occurred by purely automatic processes. Because of the limitations of his forensic software, White was not able to provide further detail about when and from what website the images associated with Counts 11 through 20 (which had been found on defendant's laptop) had been accessed.  He was able, however, to provide a more detailed analysis of the six image files associated with Counts 5 through 10, which had been discovered in unallocated space on defendant's desktop computer.  White testified that, insofar as his forensic software enabled him to see at least some dates, file names, and path histories associated with those images, he could determine that all six of the images came from a "photo album" on a single website, that they initially had appeared on the desktop computer's screen as a series of "thumbnail" images,(7) that they had been accessed under one of defendant's user names on December 8, 2002, and that the user had "clicked" on the thumbnail images to enlarge them, but had not printed, saved, or taken other actions concerning them. After White completed his testimony, defendant moved for a judgment of acquittal on all counts, arguing that there was no evidence that he had knowingly "possessed or controlled" the images at issue within the meaning of ORS 163.686(1)(a)(A)(i).  Defendant also moved for a judgment of acquittal on Counts 11through 20, i.e., the counts associated with images found on defendant's laptop, on the ground that the evidence would not support, beyond a reasonable doubt, a finding that those crimes had been committed in Clackamas County.  The trial court denied defendant's motions and, after hearing the remaining evidence, found defendant guilty on all 20 counts.  On defendant's appeal, the Court of Appeals affirmed in part and reversed in part.  The court opined that, for purposes of ORS 163.686(1)(a)(A)(i), a person "controls" a visual recording when the person "discovers the presence of that recording on the Internet and causes that recording to appear on a specific computer monitor."  228 Or App at 419.  The court concluded that there was sufficient evidence in the record to demonstrate that defendant exercised control in that sense over the images associated with Counts 1 through 10, and affirmed the trial court's findings of guilt with respect to those counts.  Id. at 419-20.  The court then addressed defendant's venue argument, which related to the images discovered on defendant's laptop computer (Counts 11-20).  It concluded that the state was required to prove venue beyond a reasonable doubt and that the state's evidence -- that defendant's home and work were located in Clackamas County, that he had broadband Internet access in his home, and that he generally was logged on to instant-messaging services when at home -- was insufficient to support a finding, beyond a reasonable doubt, that defendant and his laptop were in Clackamas County when he downloaded, viewed, and deleted those images.  Accordingly, the court reversed defendant's convictions on Counts 11-20.  Id. at 420-23. As noted, both the state and defendant petitioned for review, and we allowed both petitions.  As it turns out, however, we need not address the Court of Appeals holding respecting venue, and we express no opinion concerning it.  We turn directly to questions about defendant's "possess[ion] or control[]" of the images in question. As noted, the Court of Appeals held that defendant "controlled" the visual recordings of child sexual abuse that were discovered on his desktop computer, within the meaning of ORS 163.686(1)(a)(A)(i), by "discover[ing] the presence of [such] recording[s] on the Internet and caus[ing them] to appear on a specific computer monitor."  228 Or App at 419.(8)   Defendant contends that, contrary to the Court of Appeals' logic, one cannot "knowingly control" an Internet image in that manner, because the act of "discovering" the image and "causing [it] to appear" are simultaneous.   Defendant argues that the Court of Appeals is applying the statutory concept of "possess[ion] or control[]" to the mere viewing of child pornography on the Internet, and that the legislature did not intend, when it enacted ORS 163.686, to criminalize mere viewing of such images. The state responds that a rational trier of fact could conclude from the evidence that defendant "possessed or controlled" each of the images associated with the 20 charges.  The state argues that, when a person opens a web page and displays images on that page on his or her own computer screen, the person possesses or controls the images that appear on his screen in the course of such browsing in a variety of senses -- he physically possesses them insofar as he can move the computer screen and control the way the images are displayed; he constructively possesses them insofar as he has the latent ability to save, forward, or otherwise manipulate them; and he actually controls them by bringing them to his computer screen in the first instance.  The state argues, in a nearly identical vein that, when a person accepts a zipped folder sent to him or her through a chat room and, by inference, displays the images contained therein on his or her computer, he or she "possesses or controls" the images in the same three senses -- by physically controlling the way they are displayed, by having a latent ability to manipulate them, and by accepting and, thus, actually controlling the transfer.(9) In State v. Barger, ___ Or ___ , ___ P3d ___ (decided this date), we addressed the same explanations for why a user "possesses or controls" any image accessed in the course of web browsing.  In Barger, the defendant was charged with "knowingly possess[ing] or control[ling]" eight images of child sexual abuse that were discovered in his computer's temporary Internet file cache.  The evidence indicated that the images were the product of the defendant's web browsing, but there was no evidence that he had printed, saved, forwarded, or in any other way done anything beyond accessing the images (and, by inference, looking at them).  The case thus posed the following question:  "Can a computer user be found to have knowingly 'possess[ed] or control[led]' digital images of child sexual abuse, within the meaning of ORS 163.686(1)(a)(A)(i), based solely on evidence showing that, at some time in the past, he intentionally accessed those digital images using his computer's Internet browser and -- by reasonable inference -- looked at them?"  Barger, ___ Or at ___ (slip op at 5). This court ultimately answered that question in the negative.  We concluded that the theories of possession and control that the state had offered, which are identical to the ones that the state asserts here, were either illogical in and of themselves or inconsistent with what, in our judgment, the legislature intended by the statutory phrase "possesses or controls."  Id., ___ Or at ___ (slip op at 11-16).  We particularly derived our conclusions about the intended meaning of the phrase "possesses or controls" from contextual evidence showing that the legislature did not intend to criminalize the mere viewing of child pornography.(10)  We also were persuaded by certain cases -- notably State v. Casey, 346 Or 54, 203 P3d 202 (2009), State v. Daniels, 348 Or 515, 234 P3d 976 (2010), and State v. Weller, 263 Or 132, 501 P2d 794 (1972) -- that discussed common- law notions of physical and constructive possession and the relevant statutory definition of the term "possess," which incorporates those common-law notions.  Because those cases indicate that a person's constructive possession of a thing (i.e., his or her dominion or control over it) cannot be established merely by showing that the person has a practical ability to manipulate or direct the item, we concluded that something more than a latent ability to save, e-mail, or otherwise manipulate a digital image that appears on a computer user's screen is required to "possess[] or control[]" the image within the meaning of ORS 163.686(1)(a)(A)(i).  Barger, ___ Or at ___ (slip op at 10-16).  Barger appears to control our disposition of the present case.  It rejects the state's central idea -- that, to the extent that a digitalized image is displayed on a computer screen and, presumably, is viewed by the computer's user, the computer user "possesses or controls" the image. That is not to say that the facts in the present case are identical in every way to the facts in Barger.   For example, in Barger, there was no evidence that the defendant had taken any intentional action with respect to the images at issue after they appeared on his computer screen; the only inference that could be drawn from the evidence was that the defendant had at some point viewed the images.  In the present case, however, there is evidence indicating that defendant enlarged the two images involved in Counts 8 and 9 after he initially accessed the website where they were displayed, and there also is evidence that might support an inference that defendant attempted to remove all traces of the images from his computer's hard drive.  Moreover, while the images in Barger all had been obtained through web browsing, it appears that certain of the images in the present case came to defendant's computer from a different source.  Those images -- which are associated with Counts 1 through 4 -- apparently were transferred to defendant's desktop computer through an instant messaging service by another user of the messaging service.   But the state chose not to make a separate issue out of those factual differences.  In the proceedings below and before this court, it has never suggested that Counts 1 through 4, or Counts 8 and 9, should be analyzed any differently than the other counts.  With regard to all 20 counts, the state's position has been no different than its position in Barger -- that defendant "possess[ed] or control[led]" the image at issue as long as the image appeared on his computer screen, because he could change the location where the image was displayed, because he had the capacity to save, forward, and manipulate it, and because he controlled it, in the first instance, by taking affirmative steps to bring it to his screen.(11)  We rejected those arguments in Barger and, applying Barger, we reject them here as well.  We conclude, in short, that the evidence presented at trial, with respect to all 20 counts, was insufficient to support a finding of possession or control under any theory of possession or control that the state has urged in this proceeding.  The decision of the Court of Appeals is affirmed in part and reversed in part.  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. DE MUNIZ, C. J., concurring. For the reasons expressed in m concurring opinion in State v. Barger, 349 Or ___, ___ P3d ___ (January 6, 2011), I agree with the majority's conclusion in this case. KISTLER, J., dissenting. Today, the majority holds that a person who goes onto the Internet, purposefully searches out pictures of child pornography, and displays those pictures on a computer for as long as he or she wishes does not possess or control the pictures.  Not only are the factual and legal premises on which the majority's opinion rests suspect, but the majority's decision fails to recognize that today's iPhone is yesterday's photograph.  There is no difference between a person who uses his iPhone to pull an image of child pornography off the Internet and then passes that image, displayed on his iPhone, around for his friends to see and a person who passes a photograph of the same image to his friends.  Both persons possess or control the image.  The fact that the person has not saved the image to his iPhone does not mean that the person does not possess or control it.  The majority errs in holding otherwise. The relevant facts can be summarized briefly.  Defendant taught music to elementary school children.  As a result of an investigation involving one of defendant's students, the Clackamas County Sheriff's office analyzed the contents of defendant's laptop and home computers.  Although defendant volunteered that the officers would find "no porn" on his computers, it turned out that defendant was overly optimistic.  The forensic expert who analyzed defendant's computers found approximately 600 pornographic images in the unallocated space on defendant's home computer and approximately 500 pornographic images in the unallocated space on his laptop.(1)  Almost all of the 500 pornographic images on defendant's laptop involved children, as did approximately 450 of the 600 pornographic images on defendant's home computer. The state charged defendant with 20 counts of encouraging child sexual abuse in the second degree, based on 10 of the 500 images of child pornography found on his laptop and on 10 of the 450 images of child pornography found on his home computer.  See ORS 163.686(1)(a)(A)(i).(2)  To prove those charges, the state needed to establish that defendant (1) knowingly (2) possessed or controlled (3) a visual recording of sexually explicit conduct involving a child (4) for the purpose of arousing or satisfying his or someone else's sexual desires and (5) that defendant knew, or was aware of and consciously disregarded the fact, that the creation of the visual recording involved child abuse.  Id.  In this case, there is no dispute that the trial court, sitting as the trier of fact, reasonably could find that each of the 20 images found on defendant's computers was a visual recording of sexually explicit conduct involving children; that defendant knew that fact; that, if he possessed or controlled the images, he did so for the purpose of arousing or satisfying his own sexual desires; and that he knew that the creation of each visual recording involved child abuse.  Given the volume and content of the images that the police found on defendant's computers, defendant would be hard pressed to argue otherwise. The majority concludes, however, that the evidence was not sufficient to permit a reasonable trier of fact to find one element of the offense -- that defendant "possesse[d] or control[led]" the pictures of child pornography that he had sought out on the Internet.  According to the majority, all that the evidence permitted the trial court to find was that defendant "viewed" child pornography, and that, the majority reasons, is no crime.  At bottom, the majority's opinion rests on the proposition that going onto the Internet and pulling up pictures of child pornography is no different from visiting a museum and viewing the paintings displayed there.  In both situations, the majority reasons, the person views but does not possess or control the pictures. I have no disagreement with the general proposition that a person does not possess or control every image that he or she sees.  Nor do I disagree with the specific example that the majority uses -- that a person who goes to a museum and views a painting does not possess or control the painting.  The majority errs, however, in assuming that a computer user stands in the same position as a visitor to a museum.  This case arises on defendant's motion for a judgment of acquittal, and the question is whether the trier of fact reasonably could have inferred that defendant possessed or controlled the images that he sought out on the Internet and displayed on his computer screen. On that point, the trier of fact reasonably could have found that, when a person uses a computer to display an image from an Internet website, the data is transferred from the website to the person's computer.  The person's computer automatically saves a copy of the data from the website to a temporary Internet file on the computer, and the computer displays on the computer screen a graphic image of that data (whether text or a picture).  Put in lay terms, the person's computer copies the data from the website and uses that data to recreate on the person's computer screen the image that exists (or existed) separately as data on the website's server.(3) A computer user is not passively viewing a picture as a museum patron does, or so the trier of fact could find.(4)  Rather, a computer user is free to search out and select the images that he or she wishes to display on the computer screen.  The computer copies the data from the website and, using that copied data, recreates the image from the website on the user's screen, giving a computer user the ability to keep that image on the screen as long as he or she wishes.  And, when the computer displaying the image is portable, as an iPhone, iPad, or Droid is, then the user can take that displayed image with him or her, move the image from one place to another, and show it to others in different locations, all without ever saving the image to the user's hard drive.(5) In the same vein, if a computer user watches a child pornography video on the Internet, as one would watch a video on YouTube, the computer user can start the video, stop it, go back and look at a particularly interesting scene a second time, move forward through some activity that does not interest the user, or replay the video completely.  It is difficult to see how the majority could say that the user does not "control" an Internet video, even though the data that allows the user to manipulate the video is maintained on the user's computer in the same way as the data that gave rise to the pictures that defendant viewed in this case.  Nor is it any answer to say that this case involves Internet photographs, not Internet videos.  There is no difference in principle between an Internet video and Internet photographs.  Control exists in both instances.  It is simply more evident with a video. Admittedly, the images from the Internet that are displayed on a computer screen (whether a photograph or a video) are not permanent, but we have never suggested that permanence is necessary to establish either possession or control.  See State v. Fries, 344 Or 541, 546-47, 185 P3d 453 (2008) (observing that only momentary or fleeting contacts may be insufficient as a matter of law to establish control); cf. State v. Hall, 269 Or 63, 65-66, 68, 523 P2d 556 (1974) (a person who temporarily sat on a bag of marijuana when the police entered a room possessed the marijuana).  It also may be true that a computer user does not have exclusive possession or control over images (whether photographs or movies) taken from the Internet.  But, again, the court has never held that possession or control must be exclusive; rather, it has recognized that two persons may possess property jointly.  See State v. Downing, 185 Or 689, 698, 205 P2d 141 (1949) (jury reasonably could infer that the defendant and his accomplice jointly possessed a stolen watch).  And the fact that one person who jointly possesses property has the power to dispose of the property completely (as when a person with joint possession of a bank account spends all the money) does not mean that both persons did not have joint possession of the property while it existed. Ultimately, the majority appears to acknowledge that analogizing a computer user to a museum visitor may not be completely accurate.  It appears to recognize that, once a person accesses an image on the Internet, "the image in fact exists, in digital form, in the user's computer."  ___ Or ____ n 10 (slip op at 12 n 10).  The majority reasons, however, that "from the user's point of view, the experience of viewing images on the web is not different from viewing images in a museum:  The ordinary computer user speaks of visiting or 'going to' web sites, and has no sense that web images are 'in' the user's own computer until the user affirmatively saves them." Id. (emphasis in original). The majority's reasoning fails to distinguish two related but separate issues.  It is certainly true that, on this record, no reasonable trier of fact could find that defendant knew why, as a technical matter, he was able to control the images of child pornography that he drew from the Internet and displayed on his computer screen.(6)  But there was ample evidence from which a reasonable trier of fact could find that defendant could and did control those images.  More specifically, there was evidence from which a reasonable trier of fact could find that defendant had downloaded and played child pornography videos, that he had exchanged photographs of child pornography with others, that he had enlarged pornographic "thumbnail" images so that he could study the pictures depicted in the thumbnails more closely, and that he had maintained images of child pornography on his computer screen, at least long enough "for the purpose of arousing or satisfying [his own] sexual desires."  See ORS 163.686(1)(a)(A)(i) (stating one element of the offense). Even if, as the majority reasons, the evidence was insufficient to permit the trier of fact to find that defendant knew why he could control the images he accessed, it was more than sufficient for a reasonable trier of fact to find that defendant could and did exercise control over those images.  The level of control over the Internet images that defendant displayed on his computer screen made his relationship to those images markedly different from that of a person who goes, say, to the Brancacci Chapel so that he can view (from a distance) Masaccio's frescos.  Put differently, the factual premise on which the majority's opinion rests -- that defendant's relationship to the images on his computer was the same as that of a museum patron to the paintings displayed there -- is not the only inference that the trier of fact reasonably could have drawn. Beyond that, the legal premise underlying the majority's opinion is suspect.  In analyzing what the statutory phrase "possesses or controls" means, the majority reasons that an alternative way of proving the crime of second-degree encouraging child sexual abuse demonstrates that a person who searches the Internet for child pornography and displays those images on his or her computer screen does not "posses[s] or contro[l]" the images.  Specifically, the majority notes that a person may commit the crime of second-degree encouraging child sexual abuse in one of two ways.  ORS 163.686 makes it a crime if, with the requisite mental state, a person either (1) "possesses or controls" a visual recording of child pornography or (2) "pays, exchanges or gives anything of value to obtain or view" a visual recording of child pornography.  ORS 163.686(1)(a)(A)(i) and (ii). Given those alternative ways of committing second-degree encouraging child sexual abuse, the majority reasons: "Whatever 'knowingly possess[ing] or control[ling]' recordings of child sexual abuse might mean in subparagraph (1)(a)(A)(i), it involves something different than simply 'obtain[ing]' or 'view[ing]' digital images:  The legislature clearly has chosen to criminalize the act of 'view[ing]' or 'obtain[ing]' visual recordings of sexually explicit conduct involving children under ORS 163.686(1)(a)(A)(ii) only if that act is accompanied by the payment, exchange, or giving of something 'of value,' an element that is not required under ORS 163.686(1)(a)(A)(i)." State v. Barger, 349 Or ___,  ___, ___ P3d ___ (2011) (emphasis and brackets in original) (slip op at 9-10). Later in Barger, the majority recognizes that other jurisdictions have held that a person who searches the Internet for child pornography and displays those images on his or her computer possesses or controls those images.  Id. at ___ n 13 (slip op at 17 n 13); see, e.g., People v. Josephitis, 914 NE2d 607, 616-17 (Ill App Ct 2009) (so holding); Commonwealth v. Diodoro, 970 A2d 1100, 1108 (Pa 2009) (same); United States v. Kain, 589 F3d 945, 950 (8th Cir 2009) (same).  The majority, however, reasons that those decisions have no persuasive value in interpreting the phrase "possesses or controls," as used in ORS 163.686, because Oregon's statutory scheme is different.  Barger, ___ Or at ___ n 13 (slip op at 17 n 13).   Returning to the contextual point it made earlier, the majority reasons that our statutes except "viewing" child pornography from the prohibition against possessing or controlling it, rendering Oregon's prohibition narrower than superficially identical prohibitions found in other jurisdictions.  Id. (explaining that "none of the cases [from other jurisdictions] involves statutes that effectively announce that 'viewing' child pornography is not, by itself, unlawful"). The majority misperceives the statutory context that informs its understanding of the phrase "possesses or controls."  Subparagraph (ii) of ORS 163.686(1)(a)(A) provides that a person commits the crime of encouraging child sexual abuse in the second degree if the person "[k]nowingly pays, exchanges or gives anything of value to obtain or view * * * [a] visual recording of sexually explicit conduct involving a child * * *."  Textually, the act that the statute prohibits is "pay[ing], exchang[ing] or giv[ing] anything of value" for a particular purpose.  The crime is complete when a person pays to obtain or view child pornography, without regard to whether the person in fact ever obtains or views it.  It is the payment, not the receipt of the bargained-for consideration, that subparagraph (ii) prohibits.  Cf. ORS 167.007 (similarly providing that a person who pays to engage in sexual conduct commits the crime of prostitution without regard to whether that person ever gets the benefit of the bargain). The fact that a would-be purchaser never obtains or views child pornography is immaterial to proving a violation of subparagraph (ii) of ORS 163.686(1)(a)(A).  For that reason, the context on which the majority relies is equally immaterial to determining what the phrase "possesses or controls" means in subparagraph (i) of that statute.  Were there any doubt about the matter, the majority's conclusion reveals the difficulty with its interpretation.  As noted, relying on the alternative method of proving second-degree encouraging child sexual abuse, the majority distinguishes cases from other jurisdictions (holding that behavior like defendant's constitutes possession or control) by explaining that "none of th[os]e cases involve[d] statutes that effectively announce that 'viewing' child pornography is not, by itself, unlawful."  Barger, ___ Or at ___ n 13 (slip op at 17 n 13). Subparagraph (ii), of course, makes it a crime to pay "to obtain or view" visual recordings of child pornography.  ORS 163.686(1)(a)(A)(ii) (emphasis added).  If the majority's statutory interpretation were correct, then our statutes also would "effectively announce that ['obtaining'] child pornography is not, by itself, unlawful."  However, "obtain" means "to gain or attain possession or disposal of usu. by some planned action or method."  Webster's Third New Int'l Dictionary 1559 (unabridged ed 2002).  Under the majority's reasoning, obtaining -- i.e., possessing -- child pornography "is not, by itself, unlawful."  Not only is that conclusion antithetical to the rest of the statute, but it also demonstrates that the majority misreads the statutory context, from which it "particularly derive[s]" its understanding of the phrase "possesses or controls."  See Ritchie, ___ Or at ___ (so stating) (slip op at 12). Properly interpreted, the prohibition against second-degree encouraging child sexual abuse is directed at two separate acts:  (1) possessing or controlling visual recordings of child pornography and (2) paying, exchanging, or giving anything of value in order to obtain or view visual recordings of child pornography.  The legislature intended to cast a broad net in prohibiting the abuse of children resulting from the creation and dissemination of child pornography.  The majority errs in reading the legislature's effort to reach a broader range of conduct (paying to obtain or view child pornography) as a way of narrowing a related but separate type of conduct (possessing or controlling child pornography) that the statute also prohibits.  In sum, I disagree with both the factual and legal premises on which the majority's holding rests.  I would hold that the trial court and the Court of Appeals correctly interpreted the statutory prohibition against possessing or controlling child pornography. The remaining question is whether a reasonable trier of fact could find that defendant possessed or controlled 10 of the approximately 450 images of child pornography recovered from his home computer and 10 of the approximately 500 images of child pornography recovered from his laptop.  The 10 images from defendant's home computer divide into three types:  (1) four images received in a zip file; (2) four thumbnail images; and (3) two thumbnail images that defendant selected and enlarged. Regarding the four zip file images, the trial court reasonably could find that another person sent defendant a zip file containing images of child pornography, that defendant received the file on his home computer, that he was aware that the zip file contained child pornography, and that he accepted the zip file.  Given that evidence, I would hold that, in accepting the zip file, defendant exercised possession or control of both the file and its contents.  In that respect, defendant's receipt of the zip file was no different from a person who receives a package in the mail knowing its contents.  That evidence was sufficient for a reasonable trier of fact to find that defendant possessed both the file and its contents.(7) The four images contained on a thumbnail page present a more difficult issue, but not because of any question whether defendant possessed or controlled those images.  Typically, a thumbnail page displays several rows of small pictures or thumbnails.  The page functions much like a menu in a restaurant.  It displays a series of offerings, only some of which a user may wish to select.  If a user wants to see a larger image of a particular thumbnail, he or she can click on the thumbnail and cause a larger image to appear on the computer screen.  For the reasons discussed above, I would hold that, when a computer user displays a thumbnail page on the computer, he or she possesses or controls all the images or thumbnails on the page. To be sure, there may be factual questions regarding the computer user's state of mind:  A user may not act knowingly regarding every thumbnail that appears on a web page.  And, if a user does not select and enlarge a particular thumbnail, then it may be that the user did not possess or control that thumbnail "for the purpose of arousing or satisfying the [user's or someone else's] sexual desires * * *[.]"  See ORS 163.686(1)(a)(A)(i) (requiring proof of that state of mind).  But those are questions for the trier of fact regarding defendant's state of mind.  They have no bearing on whether a reasonable trier of fact could find that defendant "possesse[d] or control[led]" the thumbnail images that he displayed on the computer screen.  As to that issue, I would hold that the evidence was sufficient to go to the trier of fact. Regarding the remaining two images from defendant's home computer, the evidence would permit a reasonable trier of fact to find that defendant selected two of the thumbnails so that he could see a larger image.  For the reasons explained above, I would hold that defendant's ability to manipulate and maintain those images on his computer screen constituted "control" within the meaning of ORS 163.686.  Cf. State v. Blake, 348 Or 95, 102, 228 P3d 560 (2010) (explaining that "[t]he ability to manipulate a bank account using a computer is sufficient to constitute 'dominion and control * * *.'"). The 10 images found on defendant's laptop present two issues.  The first is whether a reasonable trier of fact could find that defendant possessed or controlled them.  All 10 pictures were images that defendant purposefully retrieved from the Internet, or so a reasonable trier of fact could find, and I would hold for the reasons explained above that defendant possessed or controlled those images.  The only remaining issue is whether a reasonable trier of fact could find that the state had established venue in Clackamas County.(8) On that issue, the evidence at trial showed that defendant bought his laptop computer approximately six to eight months before the officers seized it.  During that time, defendant lived and worked in Clackamas County.  Defendant told the officers that he almost always kept his laptop with him and that, after he bought it, he hardly ever used his desktop computer at home.  Finally, there is no evidence in this record that defendant ever left Clackamas County between the time that he purchased the laptop and the time that the officers seized it.  Having considered that evidence, the Court of Appeals held that it was not sufficient to prove venue.  The Court of Appeals reasoned that the fact that defendant lived and worked in Clackamas County was not sufficient to permit a reasonable trier of fact to find beyond a reasonable doubt that defendant used his laptop computer solely in Clackamas County to get access to the Internet.  See State v. Ritchie, 228 Or App 412, 421-23, 208 P3d 981 (2009). On review, the state argues that venue is not an element of an offense that the state has to prove beyond a reasonable doubt but that, even if it is, there was sufficient evidence from which the trial court could have found that defendant accessed all 10 images on his laptop while in Clackamas County.  There is no need to reach the larger question that the state raises.  In my view, the evidence was sufficient for a reasonable trier of fact to find that venue lay in Clackamas County. Specifically, a reasonable trier of fact could find that, after defendant bought the laptop, he used that computer instead of his home computer; that is, that the laptop took the place of the computer that defendant had used exclusively at his home.  A reasonable trier of fact also could find that, given the nature of the subject matter, it was unlikely that defendant would have used his laptop computer to access child pornography outside the privacy of his home or perhaps a motel (or some other private place) if he were travelling.  There is, however, no evidence that defendant ever strayed outside of Clackamas County during the six to eight months that he owned the laptop, much less that he went to some secluded place outside of Clackamas County where he could have used his laptop to privately access child pornography.  Given that evidence, a reasonable trier of fact could find that defendant accessed the Internet from his home in Clackamas County to search for the 10 images of child pornography that the officers later found on his laptop.  See State v. Cervantes, 319 Or 121, 125-26, 873 P2d 316 (1994) (inferring from circumstantial evidence that the crime at issue had occurred in Coos County). Defendant argues, however, that he could have left Clackamas County while he owned the laptop, that he could have taken the laptop with him, that he could have found a private place somewhere outside the county, and that, while outside the county, he could have used his laptop to access child pornography on the Internet.  Without any evidence that defendant ever left Clackamas County during the time that he owned the laptop and without any evidence that, even if defendant had left Clackamas County, he went to some secluded place where he could use his laptop to look for child pornography, defendant's argument reduces to nothing more than speculation.  But, even if a trier of fact reasonably could have drawn all the inferences that defendant urges, that is not the only reasonable inference that the trier of fact could draw on this record. Beyond that, ORS 131.325 provides, in part, that, "[i]f an offense is committed within the state and it cannot readily be determined within which county the commission took place, * * * [the] trial may be held in the county in which the defendant resides * * *."  Under that statute, even if one assumed that defendant might have gone to Multnomah, Lane, or Malheur County to access child pornography on his laptop, venue still would be appropriate in Clackamas County if it could not readily be determined which county defendant was in when he went on the Internet.  Venue in Clackamas County would be defeated only if a trier of fact were willing to speculate that defendant had gone outside the state during the time he owned the laptop and accessed child pornography in some state other than Oregon.  Without some evidence that defendant in fact left the state, it is difficult to see how a trier of fact reasonably could draw that inference.  But, even if that were a permissible inference, nothing in this record compels it.  In my view, the Court of Appeals erred in holding that the state had failed to establish venue in Clackamas County. I would uphold the trial court's rulings both as to venue and as to possession or control.  Accordingly, I would affirm all defendant's convictions and respectfully dissent from the majority's contrary holding. Linder, J., joins in this dissenting opinion. 1. The relevant part of ORS 163.686 provides: "(1) A person commits the crime of encouraging child sexual abuse in the second degree if the person: "(a)(A)(i) Knowingly possesses or controls any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person; [and] "* * * * * "(B) Knows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse[.]" 2. Defendant also raises several constitutional challenges to his convictions:  He argues that, on its face, ORS 163.686 violates Article I, section 8, of the Oregon Constitution and that the Ex Post Facto Clauses of the Oregon and United States constitutions preclude prosecutions under ORS 163.686 when the digital images of child sexual abuse that are involved depict abuse that occurred before the effective date of the statute.  In light of our disposition of this case, we need not address those issues.  3. As the case comes to this court, there is no issue concerning either the validity of defendant's consent or the lawfulness of the subsequent examination of the two computers by the police. 4. The meaning of the term "unallocated space" is described below, ___ Or at ___ (slip op at 4). 5. White's testimony was in terms of "files," and we therefore report it that way.  But the testimony was, in a sense, abstract:  The state's theory of the case was (and has continued throughout to be) that defendant "possessed or controlled" the 20 digital images in question by displaying them on his computer screen, not by having one or more "files" of the images in his computers.  A case in which the state asserted that defendant illegally possessed or controlled forbidden digital images by having files of them on his computer that he could potentially access would raise different interpretive problems under ORS 163.686 than those that we address today. 6. A "zipped" file or folder is one that contains data that has been compressed using a mathematical algorithm.  The "zipping" process renders the material in the file unreadable until the file is "unzipped" by the recipient.  The value of a zipped file or folder is that it can be transmitted from one computer to another more quickly.  7. "Thumbnail" images are small images that usually are presented in groups.  Larger versions of the thumbnails may be obtained by clicking on the thumbnail images. 8. The full text of ORS 161.686(1)(a)(A)(i) is set out above, ___ Or at ___ n 1 (slip op at 1 n 1). 9. Before this court, the state observes generally that the crime of Encouraging Child Sexual Abuse under ORS 163.686(1)(a)(A)(i) also can be proved by showing that the defendant understands that files containing sexually explicit images continue to be stored in temporary Internet files or in unallocated space in his or her computer.  The state at the same time expressly states that it is not pursuing that "storage" theory on review in this case -- in spite of the fact that the trial court alluded to that theory when it denied defendant's motion for a judgment of acquittal.  We assume that the state is not pursuing that theory here because there is no evidence in the record to support it:  The images that are associated with all of the charges were discovered in unallocated space on defendant's computers and there was no evidence presented that suggested that defendant knew or had reason to believe that the digital images might be retained there (although there was evidence that defendant knew or suspected that the digital images might be retained in the temporary Internet file cache). 10. The dissent contends that Barger is incorrect insofar as it treats the act of accessing and "viewing" digitalized images drawn from the web as similar to an act of viewing art in a museum.  The dissent argues, in that regard, that images displayed on a computer screen are portable (because a person who has called up an image from a website can move the image from one place to another by moving his or her computer) and controllable (as, for example, when a person replays a specific part of an online video, or skips over uninteresting parts) in a way that art in a museum is not.  That argument is unpersuasive for two reasons:  First, it depends on the proposition that a mere unexercised ability to move or otherwise physically manipulate something is sufficient to establish possession or control -- a proposition that we rejected in Barger.  __ Or at __ (slip op at 14).  Second, it ignores the fact that our holding in Barger was premised on the absence of any evidence that the defendant there had done anything other than call the images up to his computer screen.  If there had been evidence that defendant had, for example, gone back and looked at particular scenes in a video, etc., or that he had passed around his computer screen while an image of child pornography was displayed on the screen, we would have faced a different interpretive task.   The dissent also find significance in the facts that images accessed through web browsing involve an actual transfer of data from a website to a person's computer and the automatic saving in a temporary Internet file of a copy of the data on the person's computer. The dissent suggests that that fact makes an analogy to ordinary viewing (as of pictures in a museum) inapt, because the image in fact exists, in digital form, in the user's computer.  But what the dissent fails to acknowledge is that, from the user's point of view, the experience of viewing images on the web is not different from viewing images in a museum:  The ordinary computer user speaks of visiting or "going to" websites, and has no sense that web images are "in" the user's own computer until the user affirmatively saves them.  The computer user's vision of what is happening when he or she is web browsing is relevant, of course, because the statute criminalizes "knowing possession and control" of child pornography. 11. In fact, it appears that the state's primary concern in the trial court was with convincing the court that it was possible to infer from other evidence that defendant had actually opened and viewed the images associated with Counts 1 through 4, which had been sent to defendant in a zipped folder through an Internet chat room.  The state had to persuade the trial court that such an inference was permissible in order to prevail on those counts under the theory of possession and control that it was advancing. 1. As this court explained in State v. Bray, 342 Or 711, 715 n 3, 160 P3d 983 (2007), a hard drive contains both allocated and unallocated space.  Allocated space contains data that has been saved to the hard drive.  Id.  When files are deleted from the allocated space, the deleted files remain on the unallocated space on the computer's hard drive and, depending on whether the computer later writes over that data, can be recovered.  Id. 2. ORS 163.686(1) provides, in part: "A person commits the crime of encouraging child sexual abuse in the second degree if the person: "(a)(A)(i) Knowingly possesses or controls any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person * * * "* * * and "(B) Knows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse[.]" 3. The state's expert did not explain whether, when a computer user first accesses the Internet, the image displayed on the screen reflects data stored in the computer's temporary memory or whether the image reflects the data saved to a temporary Internet file on the computer's hard drive.  For the purposes of this case, the difference is irrelevant.  In both circumstances, the image displayed on the computer screen exists as a result of data maintained in the computer separately from the data available on the Internet. 4. Possession involves the question of a person's relation to an object, which ordinarily is determined both by legal definitions of property and societal conventions.  See State v. Casey, 346 Or 54, 61, 203 P3d 202 (2009) (considering the usual relationship between a homeowner and a guest in determining whether the homeowner constructively possessed property that the guest temporarily left in the house).  In a museum, not only does the museum have exclusive possession of the objects displayed there, but a visitor to a museum typically is governed by a set of rules that strictly limit the visitor's ability to do anything other than passively view the objects on display.  Put differently, the analogy on which the majority's opinion rests is not an apt one. 5. The portability of an iPhone, iPad, or Droid simply illustrates the control that a computer user possesses over an Internet image displayed on a computer screen.  The control arises from the fact, which the trier of fact could have inferred from this record, that the data generating the image is copied to and resides independently in the user's computer.  Maintaining an image on the screen, as in the example, does not evidence a greater degree of control than exists when a person calls the image to the screen in the first place.  In both situations, the image remains on the screen until the person chooses to navigate away from the web page. 6. As the majority notes, the record is not sufficient to permit a reasonable trier of fact to find that defendant knew that his computer saved every web page that he visited to a temporary Internet file and maintained those saved files in the allocated space on his computer until those files were either manually or automatically deleted.  But that proposition matters only if possession or control is limited to saved files. 7. To be sure, the state's expert was not able to say whether defendant purposefully opened the zip file or whether defendant's software did so automatically.   The state's expert was also not able to say whether, assuming that the file contained 70 images of child pornography, defendant would have in fact looked at all of them.  But both those factual issues are immaterial to whether defendant possessed or controlled the file once he received it. 8. Given the majority's holding that defendant did not possess or control these images, the majority does not reach the question whether the evidence is also insufficient to find venue.  Because I would hold that the evidence was sufficient to find possession or control, it is necessary to reach venue.

666d2246ae766d9e41fe4d3aa1397a73c7f767342716d884517e19b917e5a7ce

2011-01-06T00:00:00Z

659af46d-df7f-43a3-ab60-916ae7083f54

Zidell Marine Corp. v. West Painting, Inc.

322 Or. 347, 906 P.2d 809

oregon

Oregon Supreme Court

906 P.2d 809 (1995) 322 Or. 347 ZIDELL MARINE CORPORATION, a corporation, Plaintiff, v. WEST PAINTING, INCORPORATED, a corporation, Terry K. Gaya, Holly Gaya, Capital Resource Finance Corp., a corporation, John Maring, Rodda Paint Co., a corporation, and Jotun Valspar Marine Coatings, also known as Jotun Valspar, a division of the Valspar Corporation, a corporation, Respondents on Review, and Miller Paint Co., Inc., a corporation, Petitioner on Review. CC 9307-04357; CA A81893; SC S42287. Supreme Court of Oregon, En Banc. Argued and Submitted September 7, 1995. Decided December 1, 1995. Monica M. O'Brien, of Gleason, Scarborough, McNeese, O'Brien & Barnes, P.C., Portland, argued the cause and filed the petition for petitioner on review. Gary Roberts, of Schwabe, Williamson & Wyatt, Portland, argued the cause and filed the briefs for respondents on review West Painting, Incorporated, Terry K. Gaya, Holly Gaya, Capital Resource Finance Corp., and John Maring. No appearance for respondents on review Rodda Paint Co. and Jotun Valspar Marine Coatings. GRABER, Justice. The question to be answered in this case is whether a writ of continuing garnishment, provided for in ORS 29.401 to 29.415,[1] is available with respect to contract payments owed to an independent contractor for work not yet completed under a "turnkey" purchase order that covers labor and materials. We answer that question "no." Defendants Terry and Holly Gaya were the owners of West Painting, Inc. (West). West was incorporated in Washington in March 1985, but was administratively dissolved on June 16, 1986. The Gayas apparently *810 were unaware that West's corporate status had lapsed, and they continued to operate West as if it were a corporation. In December 1984, before West became incorporated, Miller Paint, Inc. (Miller), opened an account in West's name and granted a line of credit to West, pursuant to which Miller sold paint to West. The Gayas gave no individual guarantees with respect to West's obligation to Miller. In 1991, after West had been dissolved, the Gayas signed a "Security Agreement" ostensibly between West and Capital Resource Finance Corp. (Capital). The Gayas were denominated as president and secretary of West in that agreement. Under that agreement, West assigned its accounts receivable to Capital, acting as a factor, in order to finance West's continued operations. Capital filed a financing statement in Oregon in 1991, under the name West Painting, Inc. On April 6, 1992, West entered into a contract with Zidell Marine Corp. (Zidell), under which West was to paint one of Zidell's barges.[2] Under the contract, Zidell was to pay West on a periodic basis. On March 18, 1992, Miller obtained a judgment against West for money owed as a result of unpaid purchases of paint, which had occurred in 1990 and 1991. In June 1992, Miller discovered that West had been dissolved. Miller then obtained a judgment against the Gayas individually for the same unpaid purchases of paint. On June 14, 1993, Miller served two writs of continuing garnishment on Zidell: one for the judgment against West and one for the judgment against the Gayas individually. In the West case, Zidell responded that Zidell owed money to West. Zidell stated that it might owe West as much as $78,860 in the future, subject to offsets, but that it would not release the funds to Miller until the work was completed and all offsets were determined and applied. In the Gayas' case, Zidell responded that it owed no money to, and held no personal property, of the Gayas. Thereafter, another creditor of West made a demand for the money that Zidell would owe to West for painting the barge. Zidell brought this interpleader action, pursuant to ORCP 31,[3] to determine which of West's creditors is entitled to the money. Miller, a defendant in the interpleader action, filed a cross-claim against all other defendants.[4] The cross-claim alleged that, when Miller served its writs of continuing garnishment, it became a lien creditor whose claim is superior to the claims of the other defendants pursuant to a provision of the Uniform Commercial Code, ORS 79.3010(1)(b).[5] Miller moved for summary judgment, but the trial court denied the motion. Capital, too, moved for summary judgment. Capital argued that it had a perfected security interest in West's accounts receivable and that its interest was superior to the *811 interests of the other defendants. The trial court granted Capital's motion and entered a judgment pursuant to ORCP 67 B,[6] dismissing Miller's cross-claim and awarding the interpleaded funds to Capital.[7] Miller appealed. It argued to the Court of Appeals, as it had below, that it became a lien creditor when it served its two writs of continuing garnishment on Zidell and that Miller's interest had priority over the interests of all other defendants, with respect to the interpleaded funds. A divided Court of Appeals, sitting in banc,[8] affirmed. The lead opinion, joined by four judges, decided that Miller is not a lien creditor, because a writ of continuing garnishment under ORS 29.401 to 29.415 does not cover the interpleaded funds. Zidell Marine Corp. v. West Painting, Inc., 133 Or.App. 726, 729-37, 894 P.2d 481 (1995). Three judges concurred in the result but disagreed with the lead opinion's statutory analysis. Id. at 737-42, 894 P.2d 481 (Landau, J., concurring). Two judges dissented, on the ground that Miller was entitled to use a writ of continuing garnishment with respect to the interpleaded funds and, hence, that Miller is a lien creditor. Id. at 742-53, 894 P.2d 481 (Leeson, J., dissenting). Miller petitioned for review, and we allowed the petition. We now affirm the decision of the Court of Appeals. Writs of continuing garnishment are governed by ORS 29.401 to 29.415. Our task is to interpret those statutes. In so doing, we search for the legislature's intent by following the analytical framework described in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993). We first examine the text and context of the statute. If the intent of the legislature is not clear from that examination, we next consider the legislative history. 317 Or. at 610-12, 859 P.2d 1143. Capital argues that a writ of continuing garnishment is available only with respect to an employee's wages for personal services. Capital points, for example, to ORS 29.415, which establishes the form for a writ of continuing garnishment. That section provides in part: "* * * * * "* * * This writ garnishes only wages you owe to the Debtor as of the date you received this writ, including debts that existed but were not yet due when you received this writ and wages that accrue on or before 90 days after the date this writ is issued. * * * "* * * * * "* * * [I]f you cannot tell from the writ whether you owe any wages to the Debtor, the writ does not garnish anything * * *." (Emphasis added.) Miller argues, on the other hand, that the writ of continuing garnishment may be used to garnish all forms of earnings resulting from the performance of work for which compensation is given, even if those earnings are *812 not "wages" and even if the person performing the work is an independent contractor. Miller points to sections of the continuing garnishment statute that use the term "earnings" rather than "wages" and that appear to be broad in scope. For example, ORS 29.401 provides: "`Defendant' means a person whose property is being garnished by a plaintiff and includes a judgment debtor after entry of judgment." ORS 29.125(1) (emphasis added). "`Person' includes individuals, partnerships and corporations." ORS 29.125(4) (emphasis added). Miller also points to portions of ORS 29.415. The garnishee is instructed respecting an "EARNINGS EXEMPTION COMPUTATION SCHEDULE." The garnishee is directed to "complete the following form and fill in the correct amounts only if the Garnishee is an employer of the Debtor under ORS 23.175." ORS 29.411 & 29.415 (emphasis added). ORS 23.175 defines "[e]mployer" broadly, to mean "any entity or individual who engages a person to perform work or services for which compensation is given in periodic payments or otherwise, even though the relationship of the person so engaged to the employer may be as an independent contractor for other purposes." Thus, under Miller's reading of the statutes, Zidell's contract payments to West are subject to the continuing writ of garnishment, because West is a "defendant" and a "person" as defined in ORS 29.125(1) and (4); Zidell was West's "employer" as that term is defined in ORS 23.175; and West had "earnings." Under Capital's reading of the statutes, however, Zidell's contract payments to West are not subject to the continuing writ of garnishment, because those payments do not constitute "wages" within the meaning of ORS 29.401 to 29.415. Neither the term "earnings" nor the term "wages" is defined in ORS 29.401 to 29.415. The term "earnings" is defined in ORS 23.175(2): "`Earnings' means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise, and includes periodic payments pursuant to a pension or retirement program." That definition would appear to be context for understanding the term "earnings" in ORS 29.401 to 29.415, because it relates to garnishment statutes and is consistent with the computation of an "earnings exemption" under ORS 29.411 and 29.415. However, ORS 23.175 provides that the definitions therein apply only to terms "[a]s used in this section and ORS 23.185." The definition of "employer" found in ORS 23.175 is expressly incorporated by reference in ORS 29.411 and 29.415. The absence of a similar incorporation by reference of the definition of "earnings" found in ORS 23.175 requires us to go further in our search for the meaning of "earnings" in ORS 29.401 to 29.415. In the absence of an applicable statutory definition, this court adheres to the rule that words of common usage typically should be given their plain, natural, and ordinary meaning. PGE, 317 Or. at 611, 859 P.2d 1143. "Earnings" are "a: something (as wages or dividends) earned as compensation for labor or the use of capital * * * b: the balance of revenue for a specific period that remains after deducting related costs and expenses incurredcompare PROFIT." Webster's Third New Int'l Dictionary, 714 *813 (unabridged ed 1993) (emphasis added). By contrast, a "wage" is, as pertinent, Id. at 2568. Those definitions indicate that the term "earnings" is broader than the term "wages." "Earnings" include "wages," but "wages" do not include all forms of "earnings." "Earnings" include a corporation's profits, for example. "Wages," on the other hand, commonly means an employer's payment on an "hourly, daily, or piecework basis" to an individual. Under those definitions, an independent contractor, such as West, has "earnings" but not "wages." The resolution of this case depends on that distinction. As Judge Landau correctly pointed out in the Court of Appeals: In other words, if the writ of continuing garnishment attaches to every sort of "earnings," then Zidell's payments to West are subject to garnishment pursuant to the writ; however, if the writ of continuing garnishment attaches only to "wages," then Zidell's payments to West are not subject to garnishment pursuant to the writ, and the writ is ineffective. The ambiguity in this case arises from the fact that the legislature used both terms "earnings" and "wages"in the statutes governing the writ of continuing garnishment. As noted above, in ORS 29.401, the legislature provides that the writ of continuing garnishment may attach to "earnings [that] are not exempt from garnishment." (Emphasis added.) Similarly, ORS 29.405 provides that "[o]nly one writ of garnishment against earnings" shall be paid by the garnishee at any one time. (Emphasis added.) By contrast, both ORS 29.411 and 29.415 provide that a "writ of continuing garnishment * * * shall be in substantially the following form." That form refers repeatedly to the garnishee's "wages." The terms may or may not have been intended, by the legislature that chose them, to be used interchangeably. Because of that ambiguity in the statutes, both proposed readings of ORS 29.401 to 29.415 are plausible. Because the text and context do not make the legislature's intent clear, we next examine the legislative history of the statutes. The legislature enacted ORS 29.401 to 29.415 in 1989, as House Bill 2666. Or.Laws 1989, ch. 876, §§ 2-5. HB 2666 was proposed by the Oregon Collectors Association (Association). At the subcommittee's work session on that bill, Jim Markee, a representative of the Association, explained both the purpose and scope of the bill that his organization had proposed. Tape Recording, House Judiciary Committee, Civil Administration Subcommittee, HB 2666, June 14, 1989, Tape 124, Side A at 251. He stated that Later at that same meeting, Markee stated that Kenneth Ryder, a lawyer for the Association, next stated that The foregoing testimony shows that the sponsor of HB 2666 sought a writ of continuing garnishment that would attach only to wages paid by an employer to an employee for personal services. The sponsor envisioned the writ of continuing garnishment simply as a convenient means by which a garnishee could garnish an employee's wages each time the employee was paid for personal services"every Friday" or "on a weekly or a bi-monthly basis." At the House Committee on Judiciary, Civil Administration Subcommittee's public hearing on HB 2666, no member of the subcommittee questioned, challenged, or disagreed with that reading of HB 2666. The subcommittee then moved HB 2666 to the full committee with a "do pass" recommendation without discussing the point. Id. at 68. The House committee on the Judiciary moved the motion to the floor with a "do pass" recommendation without further discussion. Minutes, House Committee on Judiciary, HB 2666, June 20, 1989, p 2. After it was approved by the House Committee on Judiciary, HB 2666 was taken up by the Senate Committee on the Judiciary. Markee was the first witness to testify concerning the bill. He reiterated the statements that he had made before the House Committee on Judiciary, Civil Administration Subcommittee. See Tape Recording, Senate Committee on the Judiciary, HB 2666, June 27, 1989, Tape 50, Side A, at 326-29 ("HB 2666 * * * creates a sixty day continuing garnishment against wages. * * * It only applies to wage garnishments." (emphasis added)). Later in those proceedings, Ryder stated: No member of the Senate Committee on the Judiciary questioned, challenged, or disagreed with that reading of HB 2666. The topic was not discussed further. HB 2666 was approved by the committee and sent to the floor with a "do pass" recommendation. Minutes, Senate Committee on the Judiciary, HB 2666, June 27, 1989, p 7. The legislative history is clear. The proponents of HB 2666 intended for the writ of continuing garnishment to be available only with respect to an employee's earnings that *815 are wages for personal services. That intent was voiced repeatedly by the bill's sponsors. No member of the legislature contradicted that stated intent or amended the bill to preclude or otherwise affect its application. After our review of the text, context, and legislative history of ORS 29.401 to 29.415, we conclude that the legislature intended that the writ of continuing garnishment created by those statutes be available only with respect to an employee's wages for personal services. The contract between West and Zidell does not provide for compensation to an employee for personal services. Rather, under the contract between the parties, Zidell is obliged to pay West as an independent contractor pursuant to a "turnkey" purchase order that covers all labor and materials. Therefore, the money that Zidell owes to West (or to the Gayas if there is no West) is not subject to a continuing writ of garnishment as provided by ORS 29.401 to 29.415. Because the writ of continuing garnishment that Miller served on Zidell was ineffective as to that sort of contract payment, Miller did not become a lien creditor of either West or the Gayas. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. [1] Pertinent portions of ORS 29.401 to 29.415 are set out later in the text of this opinion. [2] The contract between Zidell and West provides in part: "This purchase order covers all labor & material required to paint-out complete, in a turnkey manner, all specified interior and exterior surfaces of ZMC barge No. 647." [3] ORCP 31 provides in part: "(A) Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. * * * A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. "(B) Any property or amount involved as to which the plaintiff admits liability may, upon order of the court, be deposited with the court or otherwise preserved, or secured by bond in an amount sufficient to assure payment of the liability admitted. The court may thereafter enjoin all parties before it from commencing or prosecuting any other action regarding the subject matter of the interpleader action. Upon hearing, the court may order the plaintiff discharged from liability as to property deposited or secured before determining the rights of the claimants thereto." [4] In addition to Miller, the defendants were West Painting, Inc.; Terry Gaya; Holly Gaya; Capital Resource Finance Corp.; John Maring, the president of Capital; Rodda Paint Co.; and Jotun Valspar Marine Coatings. Neither Rodda nor Jotun made an appearance in the appellate proceedings. [5] ORS 79.3010(1)(b) provides in part that "an unperfected security interest is subordinate to the rights of: * * * [a] person who becomes a lien creditor before the security interest is perfected." [6] ORCP 67 B provides: "When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." [7] The issues remaining at the trial court are West's counterclaim against Zidell for breach of contract and Zidell's claim for attorney fees under the contract with West. [8] Warren, J., did not participate in the case.

5c5698738a9e0bfb8963ce898068427d96fd49e44d3b545d89d8d2a737aa6062

1995-12-01T00:00:00Z

09c05e53-bb98-4641-a424-eb225eb7773f

State v. Martin

288 Or. 643, 607 P.2d 171

oregon

Oregon Supreme Court

607 P.2d 171 (1980) 288 Or. 643 STATE of Oregon, Respondent, v. Clarence Duke MARTIN, Petitioner. CA 11239; SC 26302. Supreme Court of Oregon. Argued and Submitted November 8, 1979. Decided March 4, 1980. Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem. Jan P. Londahl, 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 HOLMAN,[*] TONGUE, HOWELL, LENT and PETERSON, JJ. Argued and Submitted November 8, 1979, in Eugene. HOWELL, Justice. Defendant was indicted for and convicted of conspiracy to commit robbery in the first degree. His motion for a new trial based on newly discovered evidence was granted. The grand jury then reindicted defendant and charged him with three counts, all part of the same act and transaction: Count I, conspiracy to commit robbery in the first *172 degree; Count II, robbery in the first degree; and Count III, theft in the first degree. Defendant moved to dismiss Counts II and III on the ground that they are barred by former jeopardy. The circuit court granted defendant's motion. The Court of Appeals, however, reversed and held that a former prosecution does not constitute former jeopardy when the conviction is set aside upon defendant's motion. 40 Or. App. 217, 221, 594 P.2d 1276 (1979). We granted defendant's petition for review. The issue before this court is whether, after defendant's conviction has been set aside on his motion for a new trial, the state may prosecute defendant for additional charges arising from the same criminal episode. Although this case presents questions of former jeopardy, involving both state constitutional issues (Art. I, § 12) and statutory issues (ORS 131.505-131.535), we find that the resolution of this case is determined by the principle of law we announced in State v. Turner, 247 Or. 301, 429 P.2d 565 (1967). The defendant in Turner was convicted of assault with intent to rob and was originally sentenced to five years' imprisonment. He appealed and his conviction was reversed for constitutional error committed at his trial. State v. Turner, 241 Or. 105, 404 P.2d 187 (1965). Upon retrial and reconviction on the same indictment, he was sentenced to seven years' imprisonment with credit for the two years which he had already served. This court reversed with instructions to resentence Turner to five years' imprisonment, his original sentence, with credit for time already served. We held that, after an appeal or post-conviction proceeding has resulted in ordering a retrial for errors other than an erroneous sentence, the defendant upon reconviction cannot be given a harsher sentence than that originally imposed. 247 Or. at 313, 429 P.2d 565. We explained our decision in the following words: We adopted this principle of procedural fairness from an approach advanced by the New Jersey court in State v. Wolf, 46 N.J. 301, 216 A.2d 586 (1966), and we quoted the following from that opinion: We subsequently followed this important principle in the opinion of Chief Justice O'Connell in State ex rel. Dillavou v. Foster, 273 Or. 319, 541 P.2d 811 (1975). In that case a criminal defendant petitioned for a writ of mandamus for his release from jail. The petitioner had been convicted of criminal activity in drugs and sentenced to five years' probation. One of the conditions of probation was that petitioner remain incarcerated for 180 days in the county jail. The order also provided that petitioner would remain in custody in the event of an appeal. Petitioner filed his appeal, and the court ordered him to be incarcerated pending the outcome of the appeal. After serving over 180 days in jail, petitioner challenged his continued confinement during appeal. We held that petitioner's probation and 180-day sentence was not stayed by his appeal. Because he had completed the jail sentence required by his probation, we held that petitioner should have been released. Regarding the court order requiring petitioner *173 to serve time without credit during his appeal, we said that it had the effect of forcing petitioner to choose between extra time in jail while appealing his conviction and release after six months if he does not appeal. Citing Turner, we concluded that Similarly, the state should not be able to restrict a criminal defendant's right to move for and receive a new trial by posing the risk of increasing the charges against him if the defendant is successful in his motion for a new trial. At the time of his first trial, the defendant was charged with conspiracy to commit robbery in the first degree. The state at that time could have charged defendant with robbery or theft based on the same criminal episode. If on retrial the state is permitted to increase the charge or add additional charges based on the same criminal episode, the effect would be to penalize the defendant for exercising his right to move for a new trial. Procedural policies are the essence of the administration of criminal justice, and procedural fairness forbids penalizing the defendant for exercising his rights. Accordingly, we hold that after the defendant successfully moved for a new trial on the grounds of newly discovered evidence, the state may not prosecute the defendant for additional charges arising from the same criminal episode. Reversed and remanded to the circuit court. [*] Retired January 21, 1980.

e1947664f29199f1b8839d3ce4c40eb48fc24a1ed9cfcd6522fb4edde5f541da

1980-03-04T00:00:00Z

a4321962-64c6-4ee3-ba14-2e681388d8db

Strawn v. Farmers Ins. Co.

oregon

Oregon Supreme Court

Filed: July 8, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON MARK STRAWN, on his own behalf and as representative of a class of similarly situated persons, Petitioner on Review/Respondent on Review, v. FARMERS INSURANCE COMPANY OF OREGON, an Oregon stock insurance company; MID-CENTURY INSURANCE COMPANY, a foreign corporation; and TRUCK INSURANCE EXCHANGE, a foreign corporation, Respondents on Review/Petitioners on Review, and FARMERS INSURANCE GROUP INC., a foreign corporation, Defendant. (CC 9908-09080; CA A131605; SC S057520 (Control), S057629) On petition for reconsideration and motion regarding ex parte contacts filed June 9, 2011.* James N. Westwood, Stoel Rives LLP, Portland, filed the petition for reconsideration for respondent on review Farmers Insurance Company of Oregon. Kathryn H. Clarke, Portland, and Richard. S. Yugler, Landye Bennett Blumstien, LLP, Portland, filed the response to the petition for reconsideration for petitioner on review Mark Strawn. Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Linder, and Landau, Justices.** LINDER, J. The petition for reconsideration is allowed; prior opinion adhered to without modification; motion regarding ex parte communications is denied. Balmer, J., concurred in part and dissented in part and filed an opinion in which Landau, J., joined. *350 Or 336, ___ P3d ___ (2011). **Walters, J., voluntarily recused herself and did not participate in the consideration or decision of the matters on reconsideration. 1 LINDER, J. 1 The defendants in this case -- which we will collectively refer to in the 2 singular as Farmers1 -- have petitioned this court to reconsider its opinion affirming the 3 trial court judgment against it for approximately $900,000 in compensatory damages and 4 $8 million in punitive damages. Strawn v. Farmers Ins. Co., 350 Or 336, ___ P3d ___ 5 (2011). In the petition, Farmers contends that our resolution of certain state law issues 6 violates Farmers's federal due process rights. Farmers's arguments arise principally in 7 response to our decision. We grant reconsideration to consider them. We also address 8 Farmers's request that we vacate our decision and rehear this case. For the reasons we 9 explain below, we adhere to our prior opinion without modification.2 10 The circumstances that gave rise to the issues presented in this case are 11 described more fully in our prior opinion. Briefly, Farmers was required by statute and 12 by contract to provide personal injury protection benefits to those insured by its 13 automobile insurance policies, covering "[a]ll reasonable and necessary expenses of 14 medical, hospital, dental, surgical, ambulance and prosthetic services incurred within one 15 year after the date of the person's injury," up to an identified limit. ORS 742.524(1)(a). 16 Plaintiff Mark Strawn filed a class action against Farmers, alleging that Farmers's claims 17 1 The defendants are Farmers Insurance Company of Oregon, Mid-Century Insurance Company, and Truck Insurance Exchange. 2 Plaintiffs moved for leave to respond to Farmers's petition for reconsideration and accompanied the motion with their response. The court has granted the motion and has considered plaintiffs' response. 2 handling process -- which reduced payments for covered medical services to the eightieth 1 percentile of similar bills contained in a medical billing database -- breached its 2 contractual obligations to its insureds and also constituted fraud. The trial court certified 3 the class action, and the jury subsequently found for plaintiffs. Farmers appealed. The 4 Court of Appeals affirmed the trial court's decision as to liability, but concluded that the 5 punitive damages award violated the requirements of due process. On review, we 6 rejected Farmers's arguments regarding liability, but we concluded that the Court of 7 Appeals had erred in considering Farmers's challenge to the constitutionality of the 8 punitive damages award. 9 One of the issues that we resolved in our prior opinion was whether 10 plaintiffs had presented sufficient evidence of classwide reliance to create a jury question 11 on plaintiffs' fraud claim. We concluded that plaintiffs had done so. Farmers's first 12 argument in its petition for reconsideration arises from our resolution of that issue. 13 Specifically, Farmers contends that this court altered what is required, under state law, to 14 prove a fraud claim in a class action. According to Farmers, this court created an 15 "irrebuttable presumption" that each member of the class relied on the 16 misrepresentations on which plaintiffs' fraud claim was based, thus relieving plaintiffs of 17 their burden to prove reliance on the part of individual class members. Farmers contends 18 that this court, in creating that irrebutable presumption, departed from "settled law" in a 19 way that violates due process by eliminating an element of fraud (reliance) in class 20 actions that plaintiffs otherwise would have had to prove if the class members had 21 pursued individual fraud claims. 22 3 Farmers's argument proceeds from an incorrect understanding of our 1 decision. We held only that, from the evidence that plaintiffs presented, the jury was 2 permitted to infer reliance on the part of individual class members. Strawn, 350 Or at 3 361 n 18 (specifically characterizing it as a "permissible inference of reliance"). We 4 disagreed with Farmers that direct evidence of reliance by each individual class member 5 is always required in a class action for fraud. Whether in any particular case such 6 reliance can be inferred depends on the nature and circumstances of the misrepresentation 7 involved. In this particular case, for the reasons we explained in our prior opinion, the 8 evidence gave rise to a question of fact for the jury to resolve. Our analysis did not 9 invoke a presumption at all, let alone one that Farmers was not entitled to rebut. 10 Neither did this court, in so holding, "unexpectedly and radically" alter state 11 law, despite Farmers's assertion to the contrary in its petition. To support that assertion, 12 Farmers relies on this court's prior decision in Newman v. Tualatin Development Co. Inc., 13 287 Or 47, 597 P2d 800 (1979). Farmers reads Newman to require individualized proof 14 of reliance in all class actions for fraud, as a matter of law. To be sure, the court in 15 Newman concluded that classwide reliance could not be inferred on the particular set of 16 facts involved in that case. Newman, however, expressly declared that it was not 17 establishing a general rule for all class action fraud claims. Id. at 54 ("We do not hold * * 18 * that the issue of reliance always requires individual determination."). Our prior opinion 19 quoted that portion of Newman. Strawn, 350 Or at 356. Our analysis, moreover, relied 20 on Newman and drew guidance from it; we merely reached a different conclusion than 21 Newman reached because of the different facts presented here. Id. at 355-62. Contrary to 22 4 Farmers's assertion, we did not overrule Newman.3 1 Farmers asserts a second federal due process argument, as well. It contends 2 that our conclusion that the Court of Appeals had erred in deciding Farmers's 3 constitutional challenges to the punitive damages award is a "novel state-law procedural 4 bar that is neither firmly established nor regularly followed." Specifically, Farmers 5 contends that it was "novel" for this court to consider the trial court's articulated reasons 6 for denying Farmers's motion for new trial, even though the trial court had stated its 7 reasons orally on the record when it denied the motion, and even though the trial court 8 had memorialized those reasons less than two weeks later in written findings of fact and 9 conclusions of law. See Strawn, 350 Or at 366-69 (explaining our contrary conclusion). 10 Farmers's argument misses the mark for two reasons. First, it characterizes 11 our conclusion as "novel" by assuming the answer to one of the legal questions that this 12 court had to resolve. That question was whether the 55-day time period for hearing and 13 determining a motion for new trial under ORCP 64 F precludes a trial court from 14 memorializing its reasons in writing after timely determining the motion and after 15 3 In arguing that this court altered the elements of fraud for class actions, Farmers also asserts that this court should have concluded that the class certification in this case was improper. As we pointed out in our prior opinion, however, Farmers raised no issue about the propriety of the class certification on review to this court. Strawn, 350 Or at 356-57 n 13 ("whatever challenges Farmers may have raised to class certification have dropped from the case; none has been raised to this court on review"). Farmers's suggestion, therefore, seeks to inject a new issue into this case -- one that is not among the issues properly before us. See ORAP 9.20(2) (generally, issues on review before the Oregon Supreme Court are limited to those "that the petition * * * claims were erroneously decided by" the Court of Appeals). 5 announcing those reasons orally on the record. We concluded that the answer was no. 1 350 Or at 368-69. That conclusion was not novel in the sense that it marked a change of 2 state procedural practice or ran counter to some settled understanding. It simply was an 3 answer to a procedural question that had not been raised or resolved before. 4 The second way in which Farmers's argument misses the mark is more 5 fundamental: Our consideration of the trial court's written explanation for its timely 6 denial of Farmers's motion for a new trial did not bar Farmers's challenge to the amount 7 of the punitive damages award. Farmers's challenge to the amount was barred because 8 Farmers failed to assign error to one of two independent and alternative grounds on 9 which the trial court ruled. Specifically, Farmers failed to assign error to the trial court's 10 ruling that Farmers had waived its right to challenge the amount of the award. The 11 proposition that a party cannot seek reversal on appeal by challenging only one of two 12 independent and alternative grounds for a ruling is well-settled and familiar. See id. at 13 366 (citing illustrative case). Equally important, that bar would have arisen regardless of 14 whether the trial court had issued its later written findings and conclusions. As we 15 explained in our prior opinion, when the trial court timely denied Farmers's motion in 16 open court, the trial court orally explained that one ground for its ruling -- and the one 17 that the trial court considered dispositive -- was that Farmers had waived its challenge to 18 the amount of the punitive damages award. See id. at 365 (discussing and quoting trial 19 6 court's orally stated reasons).4 1 In short, we have reconsidered our decision in light of the points raised by 2 Farmers in its petition. In particular, we have considered Farmers's arguments that our 3 decision violates federal due process because it alters state law to eliminate a class action 4 plaintiff's burden to show classwide reliance, and because it erects a novel and 5 inconsistently applied procedural bar to Farmers's federally based challenge to the 6 amount of the jury's punitive damages award. We conclude that neither premise is 7 correct, and that Farmers's legal arguments therefore fail.5 8 That leaves one remaining argument that Farmers makes in its petition for 9 reconsideration. After this case was decided, a former lawyer for plaintiffs directed a 10 communication to some members of the court. The court then also became aware of 11 earlier communications between that lawyer and a member of the court. In the interests 12 of full transparency, the court disclosed those communications to all counsel in this case. 13 Characterizing those communications as "ex parte" contacts, Farmers has requested that 14 the member of the court who exchanged communications with the lawyer be recused, and 15 that the court withdraw its prior decision and rehear the case. Farmers specifically urges 16 4 In its petition for reconsideration, Farmers asserts that the trial court's oral ruling did not provide "any rationale for its decision." (Emphasis in original.) The transcript does not bear out that assertion. 5 Farmers also makes additional arguments that renew positions it took in its brief to this court and that we considered in our prior decision. We have again considered those arguments, but conclude that they require no further discussion. 7 that the grounds asserted in its petition for reconsideration would warrant rehearing. 1 Given the composition of the court on reconsideration and the court's full 2 consideration of the grounds for the petition for reconsideration, the court determines that 3 Farmers's request for rehearing based on what it views as ex parte contacts is moot, or, if 4 not fully moot, that further relief is not warranted. The court further determines that 5 Farmers's alternative request, in its motion regarding ex parte communications, to stay 6 reconsideration pending a remand to a special master or the trial court for discovery 7 relating to alleged ex parte communications is unwarranted and the court denies that 8 request. 9 The petition for reconsideration is allowed; prior opinion adhered to 10 without modification; motion regarding ex parte communications is denied. 11 BALMER, J., concurring in part and dissenting in part. 12 I agree with the majority's decision that the ex parte contacts alleged in the 13 petition for reconsideration do not constitute a basis for granting the relief that Farmers 14 has requested. However, for the reasons previously expressed in my dissent, Strawn v. 15 Farmers Ins. Co., 350 Or 336, 370, ___P3d___, ___ (2011) (Balmer, J., dissenting), I 16 respectfully dissent from the court's decision to adhere to its prior opinion without 17 modification. 18 Landau, J., joins in this opinion. 19 20

3e3e2ab3a64cf0fc04f1071762a130274f86e70c2bb1b779059de4fcedd86115

2011-07-08T00:00:00Z

f04a7230-b1b1-43b2-8c91-b72586ec2e31

Rooney v. Kulongoski

322 Or. 90, 902 P.2d 1183

oregon

Oregon Supreme Court

902 P.2d 1183 (1995) 322 Or. 90 Daniel A. ROONEY and Julie Davis, Petitioners, v. Theodore KULONGOSKI, Attorney General of the State of Oregon, Respondent. Lon T. MABON and Scott D. Lively, Petitioners, v. Theodore R. KULONGOSKI, Attorney General of the State of Oregon, Respondent. SC S42105, S42107. Supreme Court of Oregon, In Banc. Argued and Submitted May 11, 1995. Decided September 28, 1995. *1184 Charles F. Hinkle, Portland, waived oral argument and filed the petition for petitioners Daniel A. Rooney and Julie Davis. Gordon Lincoln Cummings, Keizer, argued the cause and filed the petition for petitioners Lon T. Mabon and Scott D. Lively. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the responses for respondent. *1185 GILLETTE, Justice. This is a ballot title proceeding consolidating two petitions that challenge the Attorney General's certified ballot title for a proposed initiative measure designated by the Secretary of State's office as Elections Division # 25. Petitioners Lon T. Mabon and Scott D. Lively (hereafter collectively "Mabon") are chief petitioners for the measure. They submitted timely written comments to the Secretary of State stating concerns with the draft ballot title and thereby preserved the right to reiterate those concerns in this challenge to the Attorney General's certified ballot title. ORS 250.067(1), 250.085(2).[1] Petitioners Daniel A. Rooney and Julie Davis (hereafter collectively "Rooney") also have complied with the statutory requirements and thus have the right to make the arguments that they make here. Both Mabon and Rooney challenge the ballot title's Caption, Question, and Summary. We review those challenges to determine whether the Attorney General's certified ballot title is in "substantial compliance" with the statutory requirements for each of those parts of the ballot title. ORS 250.035(1), 250.085(5). Before doing so, however, we set out the full text of the measure and the Attorney General's certified ballot title. The text of Elections Division # 25 states: "The People of the State of Oregon do enact as follows: The Attorney General's certified ballot title states: Some preliminary observations may help to place the text of this measure in context. This measure repeats verbatim sections 2 (re: limitations on effects) and 6 (re: severability, self-executing, standing) of another proposed measure, Elections Division # 13, concerning which we also issue an opinion today. See Rooney v. Kulongoski (Elections Division # 13), 322 Or. 15, 902 P.2d 1143 (1995). This measure also combines, as its section 1(a) (re: minority status), section 5 and the introductory phrase of section 1 of Elections Division # 13, verbatim. The foregoing describes the entire substantive text of this measure. The text does not deal with the following subjects that are found in some of or all the other pending measures (Elections Division # 13, # 17, and # 21):[2] public instruction; "right of conscience"; public funds; marital status; private sexual behavior of public employees; and public libraries. ORS 250.035(1)(a) requires a Caption of not more than 10 words that "reasonably identifies the subject of the measure." Mabon asserts that the Attorney General's Caption is "misleading, biased and confusing." Mabon asserts that the "subject of this measure is about limiting the expansion of specified classifications in the civil rights laws. It is about stopping a special rights classification for persons based on their choice of sexual behavior." Mabon asserts that the Attorney General's Caption would arouse fear and confusion by use of the term "[b]ars legal protection," implying that existing protections would be removed when most of the state assertedly has not "expanded the protected classifications to include sexual behavior." Mabon seeks a Caption that uses the language of the measure and states: "Amends Constitution: Prohibits Minority Status Based On Sexual Behavior[s], Desires." Rooney asserts that the Caption does not identify the actual subject, which assertedly is "the effort to give constitutional protection to a `right' to discriminate against homosexual persons in private employment, housing, and public accommodations." Rooney proposes as alternative Captions: "Amends Constitution: Laws Cannot Protect Civil Rights of Homosexual Persons" or "Amends Constitution: Bans Laws Protecting Civil Rights of Homosexual Persons." The Attorney General asserts that his certified Caption substantially complies with the statutory requirements. If this court does not agree, the Attorney General does not object to the alternatives put forward by Rooney. Without the accompaniment of the various other provisions found in the other measures, the subject of this measure is clearer, and far narrower, than that of any of the other measures. The measure contains a provision regarding "minority status," a provision stating certain limitations on the effect of that "minority status" provision, and a provision pertaining to severability, self-execution, and standing. The Attorney General's Caption, by stating that the measure "Bars Legal Protections Based On Sexual Behavior, Desire," has at least correctly identified a general subject of the measure. We consider, therefore, the parties' specific challenges to the wording of that Caption. We reject Mabon's proposed use of the term "minority status" in the Caption for the same reasons given in Mabon v. Keisling, 317 Or. 406, 416, 856 P.2d 1023 (1993), viz., the term has no recognized meaning apart from the measure itself. See also Rooney v. Kulongoski (Elections Division # 13), 322 Or. at 34, 902 P.2d at 1154 (Elections Division # 13) (rejecting similar contention with respect to Elections Division # 13). We also reject as argumentative the formulation of the subject of the measure as one that would *1187 "limit the expansion" or "stop" the recognition of minority status based on sexual behavior or desires. The measure provides what it provides; Mabon's formulation would elevate what is at most an effect, and a rhetorical one at that, to the place of a subject. For similar reasons, we reject Rooney's contention that the Attorney General's Caption should have stated an even stronger and more unequivocal position describing the asserted effects of the measure. We do agree with Mabon that the Caption's term, "bars legal protections," may be confusing. The Caption does not appear to take adequate account of the limitations placed by section 2 on the scope of section 1. In the context of a measure where there are only the two major operative provisionsthe "minority status" provision and the provision stating its limitsthe Caption should recognize both if possible. It is more accurate to say that the measure "limits" legal protections, not that it "bars" them. With that change, the Caption (which otherwise uses words from the measure itself) substantially complies with the requirements of ORS 250.035(1). Consistent with our methodology for certifying the ballot titles for these four related cases, the final wording for the Caption has been selected after application of the restrictions in ORS 250.035(2) (re: confusion among ballot titles). That discussion as it relates to the present measure may be found in Rooney v. Kulongoski, 322 Or. at 45-47, 902 P.2d at 1160-1161 (Elections Division # 13). Pursuant to that discussion, the text of the Caption certified by this court for this measure is: "Amends Constitution: Limits Legal Protections Based on Sexual Behavior, Desires." ORS 250.035(1)(b) requires a Question of not more than 20 words that "plainly phrases the chief purpose of the measure." The chief purpose is the most significant aim or end that a measure is designed to bring about. Mabon v. Keisling, 317 Or. at 413, 856 P.2d 1023. The Attorney General's certified Question asks: "Shall state constitution bar laws defining a class of people for protection of rights based on sexual behavior or desires?" Rooney reiterates the same points that were made in relation to the Caption, and our response to them is the same in this context.[3] As with the Caption, Mabon asserts that the Attorney General's Question fails to identify the measure's chief purpose and posits a Question that assertedly would use the language of the measure: "Shall constitution be amended to prohibit minority status based on sexual behavior or desires, while protecting statutory and constitutional rights?" Consistent with our methodology for certifying the ballot titles for these four related cases, the final wording for the Question has been selected after application of the restrictions in ORS 250.035(2). That discussion may be found in Rooney v. Kulongoski, 322 Or. at 48-49, 902 P.2d at 1161-1162 (Elections Division # 13). The Caption certified by this court closely paralleled that selected by the Attorney General. Pursuant to that discussion, the text of the Question certified by this court for this measure is: "Shall state constitution bar laws defining a class of people for granting civil rights based on sexual behavior or desires?" ORS 250.035(1)(c) provides that a ballot title must contain a "concise and impartial statement of not more than 85 words summarizing the measure and its major effect." Mabon asserts that the second sentence of the Summary, describing the state of current laws, is superfluous and states no effect of the measure. Rooney does not like the second sentence, because it devotes space to describing what the measure will not do. Additionally, Mabon challenges the underscored phrase in the third sentence of the Summary, which states that the measure "would bar laws that protect people from denial of such rights [e.g., housing and employment] *1188 based on their sexual behavior or desires." (Emphasis added.) Mabon asserts that the Attorney General's language will arouse fear and is emotionally loaded. Rooney also challenges the quoted text, repeating the assertion that use of the term "sexual behavior or desires" masks the major effect of the measure, which is to affect the rights of homosexual persons. The Attorney General asserts that the Summary would substantially comply with statutory requirements if it were modified to include specific reference to homosexual persons. See note 2, supra (describing this position). The Attorney General would modify the third sentence of the Summary as follows: "The measure would bar laws that protect people from denial of such rights based on their sexual behavior or desires, such as homosexuality, bisexuality or heterosexuality." We do not agree with the parties' separate assertions challenging the inclusion of the second sentence describing the current state of the laws. We make no generic pronouncement on the appropriateness of such descriptions. Neither party questions the accuracy of the Summary's description of current law. The measure itself adverts to the current law when it defines the key term, "minority status," by reference to "any class or category of individuals created in the law as a special classification such as race, religion, gender, national origin, etc." By trying in the third sentence to state a major effect of the measureviz., the constitutional measure's effect on the laws ("The measure would bar laws that * * * ")the Summary does not fail to comply substantially with the statutory requirements. With respect to the third sentence, we agree with Mabon's assertion to the extent that we conclude that the concept of "protection" here can be emotionally charged and that the word is not necessary to convey the major effect of the measure. We will revise the Summary to substantially comply with the statutory requirements by removing that term. We also agree with Rooney and the Attorney General that, in the context of the 85-word Summary, where the charge is to describe the measure's major effect(s), some express mention of the measure's effect on homosexual persons is necessary for the Summary to comply substantially with the statutory requirements. We will revise the Summary to take account of that concern. Consistent with our methodology for certifying the ballot titles for these four related cases, the final wording for the Summary has been selected after application of the restrictions in ORS 250.035(2). That discussion with respect to the present measure may be found in Rooney v. Kulongoski, 322 Or. at 51-54, 902 P.2d at 1163-1165 (Elections Division # 13). The text of the Summary certified by this court for this measure is: The following ballot title is certified for the proposed initiative measure: Ballot title certified as modified. Decision effective pursuant to ORAP 11.30(9). *1189 UNIS, Justice, dissenting. I adhere to my view that, to the extent that ORS 250.085(5) (1993) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section I, of the Oregon Constitution. Rooney/Mabon v. Kulongoski, 322 Or. 15, 55, 902 P.2d 1143, 1165 (1995) (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction. DURHAM, J., joins in this dissenting opinion. [1] The 1995 legislature amended ORS 250.035 and repealed ORS 250.039. Or Laws 1995, ch 534, §§ 1 & 19. Those changes, however, do not apply to the ballot title in this case. See Or Laws 1995, ch 534, § 20 (act applies to initiative petitions for which prospective petition is filed on or after effective date of act). The prospective petition in this case was filed before the effective date of the 1995 act, July 7, 1995. [2] The ballot titles for proposed measures designated as "Elections Division # 17" and "Elections Division # 21" also are the subject of opinions of this court issued today. See Mabon v. Kulongoski (Elections Division # 17), 322 Or. 65, 902 P.2d 1171 (1995); Rooney v. Kulongoski, 322 Or. 77, 902 P.2d 1177 (1995). [3] We reject Rooney's position, notwithstanding the position of the Attorney General that the Question has sufficient words to permit the utilization of the term homosexuality as one example among others of sexual behavior or desire, and that the Question should be modified to reflect that. The Question meets the statutory standard without the change that Rooney espouses and that the Attorney General is willing to accept.

a113d674d472e8c2e6675549b9cfca90cb55e5cde24aa88e37af36e578208932

1995-09-28T00:00:00Z

e8bac0a6-7191-4ef7-8c37-576146bc0c1a

SIMPLOT CO. v. Dept. of Rev.

321 Or. 253, 897 P.2d 316

oregon

Oregon Supreme Court

897 P.2d 316 (1995) 321 Or. 253 JzKsJ-R. SIMPLOT COMPANY, Appellant, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Respondent/Cross-Respondent, and Lamb-Weston, Inc., Intervenor/Respondent/Cross-Appellant. UMATILLA COUNTY, Respondent/Cross-Respondent, v. DEPARTMENT OF REVENUE, STATE OF OREGON, Respondent/Cross-Respondent, and Lamb-Weston, Inc., Intervenor/Respondent/Cross-Appellant, and J.R. Simplot Company, Intervenor/Appellant. OTC 2885, 2962; SC S40329. Supreme Court of Oregon, In Banc. Argued and Submitted September 2, 1994. Resubmitted December 19, 1994. Decided June 15, 1995. *317 Douglas E. Hojem, of Corey, Byler, Rew, Lorenzen & Hojem, Pendleton, argued the cause and filed the briefs for appellant J.R. Simplot Co. Marilyn J. Harbur, Asst. Atty. Gen., Salem, argued the cause for respondent/cross-respondent Dept. of Revenue. With her on the brief was Theodore R. Kulongoski, Atty. Gen., Salem. No appearance for respondent/cross-respondent Umatilla County. Rex E. Armstrong, of Bogle & Gates, Portland, argued the cause for respondent/crossappellant Lamb-Weston, Inc. With him on the briefs was Richard A. Hayden, Portland. Vernon D. Gleaves and William H. Martin, of Gleaves, Swearingen, Larsen, Potter, Scott & Smith, Eugene, filed a brief on behalf of amici curiae Seneca Sawmill, Inc., and Umpqua Equipment Corp. DURHAM, Justice. This case involves the valuation, for ad valorem tax purposes, of a potato processing plant near Hermiston, owned by J.R. Simplot Company (taxpayer), for tax years 1984, 1985, and 1986. The Oregon Tax Court accepted the assessment of the Department of Revenue (department)[1] of $46 million for tax year 1984, and $43 million for each of tax years 1985 and 1986. Taxpayer argues that the Tax Court misinterpreted ORS 308.411, which we quote below and which governs the appraisal and valuation of industrial plants.[2]*318 We conclude that the Tax Court misconstrued ORS 308.411 and that the misinterpretation affected the court's consideration of the appraisals of the property submitted by the parties. We reverse the Tax Court's judgment and remand the case to permit the Tax Court to reconsider the appraisals under a correct statutory interpretation. The 1981 version of ORS 308.411 governs the valuation of the subject property during the tax years in question. It provided, in part: "(1) Except as provided in subsections (2) to (9) of this section, an industrial plant shall be valued for ad valorem tax purposes under ORS 308.205, 308.232 and 308.235 at its true cash value utilizing the market data approach (sales of comparable properties), the cost approach (reproduction or replacement cost of the plant) or the income approach (capitalization of income) or by two or more approaches. "(2) The owner of a plant may elect to have the plant appraised and valued for ad valorem tax purposes excluding the income approach to valuation and excluding taking into consideration functional and economic obsolescence in the utilization of any approach to valuation. * * * * * * "(4) If an owner does not make an election under subsection (2) of this section, the owner shall make available to the assessor or department all information requested by the assessor or department needed to determine the true cash value for the plant. At the request of the owner, the information shall be made the confidential records of the office of the assessor or of the department, subject to the provisions of ORS 305.420 and 305.430. "(5) If an owner makes an election under subsection (2) of this section, the owner shall not in any proceedings involving the assessment of the industrial plant for the assessment year for which the election was made, before the county board of equalization, the Department of Revenue or the Oregon Tax Court, be entitled to introduce evidence relating to the use of the income approach or the allowance of functional or economic obsolescence in any approach to valuation of the plant. * * * * * * "(8) Except as provided in this section, no owner of an industrial plant shall be required to make available to the assessor or department, any itemization of income and expense of the industrial plant for use in an income approach to valuation or for determination of functional or economic obsolescence in any approach to valuation in making an appraisal of an industrial plant for purposes of ad valorem taxation. However, information furnished pursuant to subsection (4) of this section is available to the county assessor and to the department for purposes of preparing valuations of other industrial plants, subject to the provisions of ORS 308.413. "(9) Nothing in this section shall preclude the request for and use of information from an owner of an industrial plant concerning cost items, whether materials, labor or otherwise, for use in the reproduction cost approach to the valuation of the plant. In no event shall the application of subsection (2) of this section operate to value an industrial plant below its true cash value for ad valorem tax purposes under ORS 308.205, 308.232 and 308.235. The election of an owner under subsection (2) of this section to forego the consideration of the income approach or the determination of functional or economic obsolescence in any approach to valuation shall constitute an irrevocable waiver of any subsequent claim that the failure of the assessor or the department to consider the income approach or functional or economic obsolescence resulted in a valuation in excess of the true cash value of the plant under ORS 308.205, 308.232 and 308.235." Taxpayer made the election authorized by ORS 308.411(2). The parties agree that the election prohibits the use of the income approach to valuation by the department. They disagree, however, about the other consequences of an election in the valuation process. Their disagreement focuses on the final *319 clause of ORS 308.411(2), which provides that an election excludes "taking into consideration functional and economic obsolescence in the utilization of any approach to valuation." First, the department argued, and the Tax Court agreed, that a consequence of a plant owner's election to withhold income and expense information from the department is that the valuation of the plant will not reflect its "true cash value." The Tax Court said: "[T]he election is to have the property assessed at a value which is something other than true cash value or market value." J.R. Simplot Co. v. Dept. of Rev., 12 OTR 391, 395, 1993 WL 106053 (1993). The Tax Court stated that "it is misleading to think in terms of true cash value. It is more accurate to think in terms of the `elected' value." Id. at 394. The court also said: "The goal is a value higher than market value because the market considers functional and economic obsolescence." Id. at 397 (emphasis added). On reconsideration, the court further explained that conclusion: "ORS 308.411(2) raises a fundamental problem. True cash value or market value is the value at which property would change hands in the marketplace between knowledgeable parties. * * * Since the marketplace does take into consideration the income approach and any detectable functional or economic obsolescence, excluding consideration of such matters cannot result in an estimate of market value. An appraiser who followed subsection (2) and yet claimed the result represented true cash value would be in gross violation of established professional standards." Id. at 402 (footnote omitted). Second, the Tax Court concluded that an election, under ORS 308.411(2), precludes not only the income approach to valuation, but also the sales comparison approach and other appraisal methods that rely on market information because, inherently, the market considers obsolescence. The court stated: "Although the legislature may not have intended the sales comparison approach to be excluded from use, it apparently did not understand that approach. In using that approach on industrial plants, an appraiser must consider obsolescence in order to determine if the plants are comparable." Id. at 396 (emphasis in original). Taxpayer argues that the legislature did not intend that an owner's election under ORS 308.411(2) would preclude appraisal methods that rely on market information, simply because the market may inherently reflect consideration of asset obsolescence, or would alter the valuation goal of arriving at the subject property's true cash value. Taxpayer contends that the legislature was concerned only with the potential unfairness of allowing a taxpayer to withhold income and expense information, but later use that same information in an assessment proceeding to argue for a deduction from value based on obsolescence. We conclude that neither the parties' nor the Tax Court's reading of the statute is accurate. Taxpayer's suggested reading is too narrow, in that the broad exclusion of "consideration" of functional and economic obsolescence in ORS 308.411(2) encompasses more than specific deductions from value based on the taxpayer's withheld income and expense information. On the other hand, the Tax Court's reading of the statute is too broad, in that the statute's text and context do not support the conclusions that an election requires a valuation in excess of the subject plant's true cash value or that an election altogether precludes the use of the sales comparison approach to valuation. In construing ORS 308.411, we attempt to discern what the legislature intended. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). We begin with the text and context of the relevant statute, ORS 308.411(2). See PGE, 317 Or. at 610, 859 P.2d 1143 (explaining method of statutory construction). As the Tax Court observed, the phrase "functional and economic obsolescence" is not defined by statute or by the department's administrative rules. The Tax Court applied the following definition of "functional and economic obsolescence": *320 "The common meaning of functional obsolescence is depreciation or loss in value due to changes in technology or design, improved processes, materials, and other such improvements. See Appraisal Institute, The Appraisal of Real Estate, 352-58 (10th ed 1992). Economic obsolescence or external obsolescence is loss in value due to forces from outside the property, such as neighborhood decline, market or industry changes and general economic conditions. Id. at 358-59." J.R. Simplot Co. 12 OTR at 394, 1993 WL 106053 (1993). Neither party challenges those definitions, and nothing about them suggests that they are inaccurate. Accordingly, we apply the same definitions in our analysis of this case. Our principal task is to determine what the legislature intended when it excluded "consideration" of functional and economic obsolescence. We typically give words of common usage their plain, natural, and ordinary meaning. PGE, 317 Or. at 611, 859 P.2d 1143. The dictionary defines "consideration" to mean either "continuous and careful thought" or "the act of regarding or weighing." Webster's Third New Int'l Dictionary, 484 (unabridged 1993). The meaning of that term is clear when we read it in the context of the other provisions of the statute. The legislature intended the term "consideration," in ORS 308.411(2), to refer to the act of weighing obsolescence in the valuation process, rather than merely thinking about obsolescence. In the context of ORS 308.411(2), excluding "consideration" of obsolescence means that the assessment may not give any weight to the subject plant's functional or economic obsolescence on the assessment dates. With that discussion as background, we consider the differing interpretations of ORS 308.411(2) offered by the parties and the Tax Court. Taxpayer argues that the broad exclusion of "consideration" of obsolescence in that subsection is limited by the narrower wording of ORS 308.411(5). That provision prohibits an electing taxpayer from introducing "evidence relating to * * * the allowance of functional or economic obsolescence in any approach to valuation of the plant." Taxpayer argues that the term "allowance" refers to a deduction from the value of the subject property, based on the extent of the property's functional or economic obsolescence and calculated from the taxpayer's withheld income and expense information. We find no reason, based on the statute's text and context, to read the term "allowance" so narrowly. The word "allowance" means, as pertinent, "a share or portion allotted or granted," "a fixed amount allowed," or "the taking into account of circumstances (as mitigating circumstances) or of contingencies." Webster's at 58. The term "allowance" in subsection (5) does suggest, as taxpayer maintains, that the legislature was concerned about a deduction from value based on the extent of functional or economic obsolescence in the subject property. However, nothing in the text of subsection (5), or in any of the other subsections of ORS 308.411, suggests that the legislature was concerned only with a deduction for obsolescence based on withheld income information. Subsection (5) prohibits a taxpayer from introducing any evidence relating to the "allowance" of functional or economic obsolescence, not just evidence based on a taxpayer's withheld income and expense information. Taxpayer's interpretation, in effect, would require us to insert words in the statute by construing the phrase "evidence relating to * * * the allowance" to mean only evidence of a deduction from value based on withheld income and expense information. However, when interpreting a statute, we must avoid inserting that which the legislature omitted. "In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted[.]" ORS 174.010 (emphasis added). Because subsection (5) is not limited in the way that taxpayer suggests, and is not otherwise ambiguous, we find nothing in taxpayer's argument regarding the term "allowance" that raises an ambiguity in the meaning of "consideration" in subsection (2). We conclude that the department may give no weight to functional or economic obsolescence *321 in appraising and valuing, under any of the approaches to valuation listed in ORS 308.411(1), an industrial plant whose owner has made an election under ORS 308.411(2). In arguing that an election under ORS 308.411(2) precludes only calculated deductions for obsolescence based on withheld income and expense information, taxpayer relies heavily on the statute's legislative history. However, because that statute's text and context is not subject to more than one plausible reading, we do not examine legislative history. See PGE, 317 Or. at 611, 859 P.2d 1143 (courts examine legislative history only if the intent of the legislature is not clear from the text and context inquiry). We next consider whether the Tax Court correctly decided that ORS 308.411 has the two consequences that that court described. First, we consider whether the Tax Court correctly determined that an owner's election under ORS 308.411(2) requires a valuation in excess of the subject property's "true cash value." The Tax Court arrived at that interpretation, in part, because the third sentence of ORS 308.411(9) provides that an election under subsection (2) "shall constitute an irrevocable waiver of any subsequent claim that the failure of the assessor or the department to consider the income approach or functional or economic obsolescence resulted in a valuation in excess of the true cash value of the plant [.]" (Emphasis added.) That provision reveals only that the legislature recognized that the valuation of the plant of an electing owner may exceed its true cash value. ORS 308.411(9) does not require, expressly or by reasonable inference, a valuation in excess of true cash value. An election under ORS 308.411(2) may result, but need not result necessarily, in a valuation higher than true cash value for two reasons. First, an assessment under that statute must not give any weight to the plant's functional or economic obsolescence, which would otherwise reduce the plant's value in the marketplace. In its opinion on reconsideration, the Tax Court said that an election under ORS 308.411(2) requires a valuation in excess of true cash value, in part, because the market inherently considers obsolescence and, accordingly, "excluding consideration of [obsolescence] cannot result in an estimate of market value." J.R. Simplot Co., 12 OTR at 402. That may be true when the subject property contains functional or economic obsolescence. In this case, however, the Tax Court observed that "all of the parties agree that the subject is a stateof-the-art plant suffering essentially no economic or functional obsolescence[.]" Id. at 399. Because the parties agree that plant was not economically or functionally obsolete on the assessment dates, the plant contained no obsolescence for the market to consider. Accordingly, in this context, a valuation that gives no weight to obsolescence, in theory at least, should reflect the plant's true cash value. Second, an election under ORS 308.411(2) may result in a valuation higher than true cash value because, as a consequence of an election, the department usually will not have all the information needed to assess accurately the plant's true cash value. ORS 308.411(8) relieves an electing owner of the obligation "to make available to the assessor or department, any itemization of income and expense of the industrial plant for use in an income approach to valuation or for determination of functional or economic obsolescence in any approach to valuation in making an appraisal of an industrial plant for purposes of ad valorem taxation." ORS 308.411(4) provides that, if an owner does not make an election under subsection (2), "the owner shall make available to the assessor or department all information requested by the assessor or department needed to determine the true cash value for the plant." When read together, those provisions reveal that, in most cases, an electing owner will deprive the department of important information that it needs to determine the true cash value of the plant. However, that fact does not require a valuation in excess of true cash value. Rather, subsections (4), (8), and (9) reflect a legislative recognition that an assessment based on incomplete information *322 may exceed true cash value, and that an electing owner may not complain if that consequence comes about due to the failure of the department to consider obsolescence or income information. The Tax Court erred in concluding that an election under ORS 308.411(2) requires a property valuation in excess of true cash value. We next consider whether the Tax Court correctly determined that, by excluding "consideration" of obsolescence, the legislature intended to preclude the use of the sales comparison approach to valuation. Again, we examine the text and context of ORS 308.411(2). PGE, 317 Or. at 610, 859 P.2d 1143. ORS 308.411(2) provides that a consequence of an owner's election is to exclude "the income approach to valuation." Subsections (5), (8), and (9) also refer to exclusion of only the income approach. Nothing in the text of any of the provisions of ORS 308.411 suggests that the legislature intended that a consequence of an owner's election to withhold income and expense information is exclusion of the sales comparison approach. The Tax Court's construction appears to add to the statute an exclusion of an appraisal method that the legislature did not insert into the statutory text. In construing a statute, however, we may not insert terms that the legislature omitted. ORS 174.010. The Tax Court concluded that an election under ORS 308.411(2) necessarily precludes use of the sales comparison method of appraisal, because "an appraiser must consider obsolescence in order to determine if the plants are comparable." J.R. Simplot Co., 12 OTR at 396 (emphasis in original). Recalling our earlier discussion of the meaning of "consideration" in subsection (2), we recognize that an appraiser must "think about" obsolescence, in order to determine if plants are comparable. However, we are not convinced that an appraiser must "give weight" to obsolescence in the subject property in order to use the sales comparison approach. In theory, an appraiser might identify a comparable sale that does not reflect obsolescence. An appraiser may use evidence of the sale of that property in appraising the subject property without giving any weight to the extent of functional or economic obsolescence in the subject property. Even if the sale price of a comparable property does reflect obsolescence, it may be possible for an appraiser to use evidence of the comparable sale in its assessment without giving any weight to functional or economic obsolescence in the subject property. For example, in this case, the Tax Court discounted an appraisal performed by taxpayer's appraiser, Brown, in part, because Brown "was not aware of $6 million of functional obsolescence in the Boardman sale and admitted that McCain Foods and Grand Forks sales contained functional obsolescence." Id. at 400. ORS 308.411(2) does not prevent the Tax Court from determining whether Brown's appraisal can be salvaged by adding back the portion of the valuation attributable to functional or economic obsolescence in the comparable plants. By adding back the $6 million of functional obsolescence in the Boardman sale, that sale might provide evidence of the value of the subject property, without giving any weight to functional or economic obsolescence in the subject plant on the assessment date. We recognize that it may not always be possible simply to add back the extent to which a comparable sale reflects obsolescence in order to value the subject property without giving weight to obsolescence. The parties may not be able to determine the extent to which the sale price of the comparable property reflects that property's functional or economic obsolescence, because the parties do not have access to the comparable property, or for other reasons. The point is that the statute does not exclude use of the sales comparison method of appraisal simply because the parties must think about obsolescence in order to determine whether plants are comparable. If it is possible to use evidence of comparable sales in assessing the subject property, without giving any weight to obsolescence in the subject property, an election does not preclude use of evidence of comparable sales. We next consider the extent to which an election under ORS 308.411(2) may affect methods of valuation that rely on market information, other than the sales comparison *323 approach. The Tax Court discounted appraisals utilizing the cost-replacement approach, because those appraisals took into account estimates of depreciation that indirectly consider obsolescence in predicting the economic life of buildings and structures and of machinery and equipment. For example, the Tax Court declined to consider evidence presented by appraisers who estimated depreciation based on "normal lives," because that measure of depreciation requires the court to consider obsolescence. J.R. Simplot Co., 12 OTR at 398-99. We do not believe that, by excluding "consideration" of obsolescence, the legislature intended to preclude evidence that takes into account predictions as to when buildings and structures or equipment and machinery may become obsolete in the future. Such depreciation estimates may reflect "consideration" of obsolescence, in the sense that appraisers and the Tax Court must think about the extent to which future obsolescence may require replacement of the property's assets. However, those depreciation estimates do not necessarily give weight to the extent of present obsolescence in subject property on the assessment date. By contrast, evidence based on a used equipment market may "give weight" to present obsolescence in the subject property. In this case, the Tax Court overruled its previous decision in Johnson v. Dept. of Rev., 10 OTR 218 (1985), in which the court concluded that ORS 308.411(2) does not preclude a taxpayer's use of a replacement cost used approach, despite the fact that the used equipment market inherently reflects functional and economic obsolescence. ORS 308.411(2) may prohibit the parties from utilizing a replacement cost used approach in that circumstance, because the used equipment market necessarily reflects the degree to which a plant owner's assets are obsolete on the assessment date, as distinct from the degree of predicted future obsolescence. Again, the point is that, once an election is made, an appraiser may not reduce the assessed value of the subject plant to reflect the degree of that property's functional or economic obsolescence on the assessment date. To the extent that it may be possible to adjust an appraisal to remove any deductions based on the subject property's functional or economic obsolescence, such adjustments are not precluded under ORS 308.411(2) simply because they require the Tax Court or the parties to "think about" obsolescence, but do not "give weight" in the valuation to obsolescence. In sum, we conclude a taxpayer's election under ORS 308.411(2) has three consequences. First, an election precludes only the income method of appraisal. In using other valuation methods, the department may not reduce the value of the subject plant, directly or indirectly, to reflect the extent of that plant's functional or economic obsolescence on the assessment date. As a practical matter, an election may preclude use of other appraisal methods that rely on market information, but an election need not have that effect necessarily. Second, an election does not require a valuation in excess of the plant's true cash value. In practice, the valuation of an electing owner's plant may exceed the plant's true cash value, because the department does not have access to all the income and expense information that it needs to determine the true cash value, and because the valuation will not reflect the subject plant's functional or economic obsolescence on the assessment date. Third, an election prohibits the taxpayer from introducing evidence relating to obsolescence when the purpose of such evidence is to reduce the valuation of the subject property to reflect the extent of the property's functional or economic obsolescence on the assessment dates. However, an election does not prohibit the parties from introducing evidence relating to obsolescence when the purpose of such evidence is to prove that no weight was given to the subject plant's functional or economic obsolescence in arriving at a valuation. We now turn to the appropriate disposition of this case. ORS 305.445 provides that this court may "affirm, modify or reverse the order or decision of the tax court appealed from, with or without remanding the case for further hearing, as justice may require." Our review of this case is hampered by the fact that the Tax Court evaluated *324 the competing appraisals on the basis of an erroneous interpretation of ORS 308.411. We conclude that the appropriate disposition is to remand the case to permit the Tax Court to evaluate the evidence of the subject property's value under a correct statutory interpretation. We express no opinion as to whether the appraisals of the department or the taxpayer provide the best evidence of true cash value. We leave that determination to the Tax Court in the first instance. On appeal and cross-appeal, the judgment of the Tax Court is reversed. The case is remanded to the Tax Court for further proceedings consistent with this opinion. [1] Because the department performed the assessments that are at issue in this case, we refer in this opinion to the effect of ORS 308.411 on assessments by "the department." We note that ORS 308.411 also governs assessment actions by county assessors. See ORS 308.411(4) and (8) (describing the circumstances under which the owner of an industrial plant must make income and expense information available to "the assessor or department"). [2] Lamb-Weston, Inc., intervened to object to the production of financial data about its industrial plants to department and taxpayer. Lamb-Weston and taxpayer make similar arguments regarding the meaning of ORS 308.411.

7cb057585f4fa50072f791c4034fab70b6f2c44eec91d9394f1a37e94a43e8c7

1995-06-15T00:00:00Z

962fcbe9-1c3a-4046-ad24-362ea9d7d363

Rooney v. KULONGOSKI (ELECTIONS DIV. 21)

322 Or. 77, 902 P.2d 1177

oregon

Oregon Supreme Court

902 P.2d 1177 (1995) 322 Or. 77 Daniel A. ROONEY and Julie Davis, Petitioners, v. Theodore KULONGOSKI, Attorney General of the State of Oregon, Respondent. Lon T. MABON and Scott D. Lively, Petitioners, v. Theodore R. KULONGOSKI, Attorney General of the State of Oregon, Respondent. SC S42101, S42108. Supreme Court of Oregon, In Banc. Argued and Submitted May 11, 1995. Decided September 28, 1995. *1178 Charles F. Hinkle, Portland, argued the cause and filed the petition for petitioners Daniel A. Rooney and Julie Davis. Gordon Lincoln Cummings, Keizer, argued the cause and filed the petition for petitioners Lon T. Mabon and Scott D. Lively. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the responses for respondent. With him the responses were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem. GILLETTE, Justice. This is a ballot title proceeding consolidating two petitions that challenge the Attorney General's certified ballot title for a proposed initiative measure designated by the Secretary of State's office as Elections Division # 21. Petitioners Lon T. Mabon and Scott D. Lively (hereafter collectively "Mabon") are chief petitioners for the measure. They submitted timely written comments to the Secretary of State stating concerns with the draft ballot title and thereby preserved the right to reiterate those concerns in this challenge to the Attorney General's certified ballot title. ORS 250.067(1), 250.085(2).[1] Petitioners Daniel A. Rooney and Julie Davis (hereafter collectively "Rooney") also have complied with the statutory requirements and, thus, have the right to make the argument that they make here. Mabon challenges the ballot title's Caption and Question; Rooney challenges the Caption, Question, and Summary. We review those challenges to determine whether the Attorney General's certified ballot title is in "substantial compliance" with the statutory requirements for each of those parts of the ballot title. ORS 250.035(1), 250.085(5). Before doing so, however, we set out the full text of the measure and the Attorney General's certified ballot title. Elections Division # 21 states: We note that the substantive text of this measure is identical to the text of Elections Division # 13, except that certain provisions of Elections Division # 13 are not included in this measure. The sections of Elections Division # 13 that are not included are: section 1 (the lead-in language), section 1(a), section 5, and the last sentence of section 4.[2] The Attorney General's certified ballot title for Elections Division # 21 states: "SUMMARY: Amends state constitution. Provides that moral objection to homosexuality is `right of conscience,' not discrimination relating to civil rights. Bans spending public funds in way expressing approval of homosexuality. Forbids government from recognizing marital status or awarding spousal benefits on basis *1180 of homosexuality. Public employees' private lawful sexual behavior treated as non-job related unless that treatment expresses approval of homosexuality. Bars access by minors to pro-homosexuality public library books or literature without parent's supervision. Governments nonetheless cannot deny licenses, services, benefits due under existing statutes." ORS 250.035(1) requires a Caption of not more than 10 words that "reasonably identifies the subject of the measure." Mabon asserts that the Attorney General's Caption has identified an effect of the proposed measure, rather than the subject. Mabon asserts that the subject of this measure "is to guarantee a right of conscience to object to certain sexual behaviors such as homosexuality." Mabon seeks a Caption that would state: "Amends Constitution: Morally opposing certain sexual behaviors to be a constitutional right." The Attorney General asserts that his Caption substantially complies with the requirement that it reasonably identify the subject of the measure. The Attorney General further notes that Mabon's proposed alternative has 12 words, which is not permitted by the statute. The Attorney General repeats his assertion that the "right of conscience" provision merely restates existing constitutional provisions. Finally, he contends that Mabon's proposed subject entails an act of interpretation but contends that, if the court finds Mabon's argument to be well taken, then the Caption should state: "Amends Constitution: Protects Those Who Deny Rights To Homosexual Persons." We today rejected Mabon's characterization of the public spending provision as merely an "effect" of Elections Division # 13, where the challenge was to its inclusion in the Question. Rooney v. Kulongoski, 322 Or. 15, 36, 902 P.2d 1143 (1995). In that context, we concluded that the public spending provision of that measure properly was considered to be a chief purpose of the measure for purposes of the Question for that ballot title. That disposition does not, however, answer whether the public spending provision is so important that it may be characterized as a subject of this measure. Before we speak to that issue, we shall take account of Rooney's objection to the Caption, for Rooney also asserts that the Caption does not accurately reflect the subject of the measure. Rooney asserts that "the true subject of the measure is to require government to treat homosexuality and homosexual persons in a manner different from the manner in which government treats heterosexuality and heterosexual persons," pointing specifically to the public spending provisions and the marital status provision. Rooney proposes the following Caption: "Amends Constitution: Governments must discriminate against homosexuals in laws, spending." The Attorney General again asserts that his Caption substantially complies with the statute and takes issue with the proposed use of the term "discrimination" as potentially misleading and not impartial. This measure addresses itself to several things. It provides that moral opposition to certain sexual behavior is a right of conscience in accord with Article I, sections 2 and 3, of the Oregon Constitution. It states that "[s]uch objection produced by one's moral standards and values is therefore not discrimination relating to civil rights, nor shall it be considered so by any unit of state or local government." It provides that public funds shall not be spent with the purpose or effect of expressing approval of homosexuality. It provides that homosexuality is not a basis for marital status or spousal benefits. It limits its effect with respect to licenses, permits, services, or benefits due under existing statutes. It provides that other constitutional rights shall not be deprived, nullified, or diminished. It speaks to the private lawful sexual behavior of public employees. It deals with access of minors to books in the public library. It provides that the measure is self-executing and that every Oregon resident and nonprofit entity has standing. From this, one point emerges clearly. Whatever the subject of this proposed measure may be, the Attorney General's Caption *1181 "Amends Constitution: Bars Spending Public Funds In Way Approving Homosexuality"does not reasonably identify it. The Attorney General's Caption has a single focusthe expenditure of public fundsand any unspoken broader implications of the words are not so clear as to support the weight of a Caption for this measure. Having said what the subject of the measure is not, we would be less than candid if we did not acknowledge that it is much more difficult to say what the subject is. In considering challenges to the ballot titles in Elections Division # 13 and # 17, we recognized that a subject of those measures was that laws could not guarantee civil rights/equal rights for homosexual persons. Some of the provisions of those measures pertinent to that conclusion are missing from this measure. (See note 1, supra.) Nonetheless, in considering the challenge to the ballot title for Elections Division # 13, which contained the same "right of conscience" provision as does this measure, we stated: "Whether a Summary states that government cannot base civil rights on sexual behavior or desires or, instead, states the corollary, viz., that an individual decision to exercise a right of conscience on the basis of sexual behavior or desires is not discrimination cognizable by the government, is a choice that falls within the permissible range of choices that the Attorney General could make." Rooney v. Kulongoski, 322 Or. at 39, 902 P.2d at 1156. In this measure, as in Elections Division # 13 and # 17, the public spending and spousal benefits provisions follow grammatically from the "right of conscience" provision, preceded in each instance by the word "therefore" following the "right of conscience" provision. Having recognized that the "right of conscience" provision states a corollary principle to the subject of the other two measures, and giving due regard to its comparative scope, we conclude that the person's right of conscience to object to certain sexual behaviors, without that objection being deemed by the government to be civil rights discrimination, is perhaps the single most significant provision of the measure for purposes of the ballot title. That does not mean, however, that it should be deemed the "subject" of the measure for purposes of the Caption. When a measure contains an affiliated grouping of separate provisions related by a common thread, the subject of the measure may well be most reasonably identified by characterizing the thread, rather than by focusing on one or more of the most significant constituent parts. This is consistent with the approach that we took quite recently to certifying a ballot title Caption for a measure with a similar range of provisions and subject matter. Mabon v. Keisling, 317 Or. 406, 411-13, 856 P.2d 1023 (1993) (rejecting a specific Caption for a more generally descriptive one). In this instance, we conclude that the subject of this measure likewise is best captured by reference to the common thread, rather than to any one or more pieces of the patchwork. We conclude that the subject of this measure is properly characterized as a constitutional amendment that relates to the powers of state and local governments concerning homosexuality. That statement of the subject accurately and neutrally describes the measure and apprises the electorate of what subject they are being asked to consider. Consistent with the methodology for deciding these four ballot title cases, the final wording for the Caption for the ballot title for this measure has been selected after application of the restrictions in ORS 250.035(2) (re: confusion among ballot titles). A discussion of that exercise with respect to the present measure may be found in Rooney v. Kulongoski, 322 Or. at 44-45, 902 P.2d at 1159-1160. Pursuant to that discussion, the text of the Caption certified by this court for this ballot measure is: "Amends Constitution: Restricts Local, State Government Powers Concerning Homosexuality." ORS 250.035(1)(b) requires a Question of not more than 20 words that "plainly phrases the chief purposes of the measure." The chief purpose is the most significant aim or end that a measure is designed to bring about. Mabon v. Keisling, 317 Or. at 413, 856 P.2d 1023. The Attorney General's certified *1182 Question asks: "Shall state constitution bar spending public funds in way approving homosexuality; forbid granting marital status, spousal benefits based on homosexuality?" Mabon objects to the Attorney General's Question for essentially the same reason that he objected to the Caption, seeking a Question that instead asks: "Shall Constitution establish moral opposition to certain sexual behaviors like homosexuality as Right of Conscience when based on one's convictions?" As we indicated in the discussion of the Caption for this ballot measure, the so-called "right of conscience" provision is perhaps the most significant single provision for purposes of the ballot title. The Question cannot refer to other particular provisions and omit reference to the substance of the "right of conscience" provision. To that extent, we agree with Mabon's contention that the Attorney General's Question does not substantially comply with the statutory requirements. Rooney asserts that the cut-off of public funding will prevent local governments from enforcing their civil rights ordinances with respect to homosexual persons, thereby requiring localities to discriminate against homosexual persons in the enforcement of their ordinances. Rooney asserts that the Question therefore is deficient for overlooking "one of [the measure's] most important aspects." We rejected essentially the same contention in the context of Rooney's challenge to the Summary for Elections Division # 13, Rooney v. Kulongoski, 322 Or. at 41-42, 902 P.2d at 1157-1158, and we do so again here for the same reasons. Consistent with the methodology for deciding these four ballot title cases, the final wording for the Question for the ballot title for this measure has been selected after application of the restrictions in ORS 250.035(2) (re: confusion among ballot titles). That discussion may be found in Rooney v. Kulongoski, 322 Or. at 47-48, 902 P.2d at 1161. Pursuant to that discussion, the text of the Question certified by this court for this ballot measure is: "Shall constitution forbid basing civil rights on homosexuality, other sexual behaviors; bar spending public funds in way approving homosexuality?" Mabon does not challenge the Summary. Rooney asserts only that the second sentence, referring to the "right of conscience," should be deleted, because the provision in the measure merely restates existing constitutional protections.[3] Rooney does not assert that the sentence is inaccurate or misleading by its terms, and we have already opined on the significance of the provision to the measure. See Rooney v. Kulongoski, 322 Or. at 39, 902 P.2d at 1156 (recognizing that, although not required, it would have been a concise and impartial statement of a major effect to include the "right of conscience" provision among those mentioned expressly by the Summary in the context of Elections Division # 13). Accordingly, we reject Rooney's challenge to the inclusion of the sentence. Consistent with the methodology for deciding these four ballot title cases, the Attorney General's certified Summary will be treated as presumptively correct. The Summary will be changed only if it becomes necessary to do so to bring about substantial compliance with ORS 250.035(2) (re: confusion among ballot titles). Thus, the final wording of the Summary for the ballot title for this measure has been selected after application of the restrictions in ORS 250.035(2). That discussion may be found in Rooney v. Kulongoski, 322 Or. at 50-53, 902 P.2d at 1162-1164. Pursuant to that discussion, the text of the Attorney General's certified Summary is certified unchanged by this court for this ballot measure. The following ballot title is certified for the proposed initiative measure: Ballot title certified as modified. This decision shall become effective pursuant to ORAP 11.30(9). UNIS, Justice, dissenting. I adhere to my view that, to the extent that ORS 250.085(5) (1993) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section I, of the Oregon Constitution. Rooney/Mabon v. Kulongoski, 322 Or. 15, 55, 902 P.2d 1143 (1995) (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction. DURHAM, J., joins in this dissenting opinion. [1] The 1995 legislature amended ORS 250.035 and repealed ORS 250.039. Or Laws 1995, ch 534, §§ 1 & 19. Those changes, however, do not apply to the ballot title in this case. See Or Laws 1995, ch 534, § 20 (act applies to initiative petitions for which prospective petition is filed on or after effective date of act). The prospective petition in this case was filed before the effective date of the 1995 act, July 7, 1995. [2] The provisions of Elections Division # 13 that are not included in this measure state: "1. Minority status shall not be based on sexual behavior or desires; therefore, "(a) Children, students and employees shall not be advised, instructed or taught by any government agency, department of political subdivision that a person's sexual behavior or desire is the legal or social equivalent to existing minority civil rights classifications. " * * * * * "4. * * * Such material must meet local community standards established through the existing library review process. "5. The term minority status shall refer to any class or category of individuals created in the law as a special civil rights classification such as race, religion, gender, national origin, etc." [3] The sentence states: "Provides that moral objection to homosexuality is `right of conscience,' not discrimination relating to civil rights."

e046160b91131644a0a9aaa5572d2e57aaa44974e9919effd458ccc98fc5f831

1995-09-28T00:00:00Z

0e4de331-46f4-4e4b-a9e0-4764648217ac

Boytano v. Fritz

321 Or. 498, 901 P.2d 835

oregon

Oregon Supreme Court

901 P.2d 835 (1995) 321 Or. 498 Janet BOYTANO, Petitioner on Review, v. Elisa FRITZ, Election Officer of the City of Klamath Falls, Respondent on Review. CC 93-500CV; CA A80515; SC S41923. Supreme Court of Oregon, In Banc. Argued and Submitted May 4, 1995. Decided August 24, 1995. *836 Charles F. Hinkle, of ACLU Foundation of Oregon, Inc., Portland, argued the cause and filed the petition for petitioner on review. Jeffrey D. Ball, City Attorney, Klamath Falls, waived appearance for respondent on review. Rives Kistler, Assistant Attorney General, Salem, filed a brief on behalf of amicus curiae Secretary of State. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. GRABER, Justice. Plaintiff Boytano seeks declaratory and injunctive relief, requesting that defendant Fritz, the elections officer of the City of Klamath Falls, be prevented from placing a proposed, but not yet qualified, initiative measure on the ballot. The trial court refused to grant the requested relief. The Court of Appeals affirmed. Boytano v. Fritz, 128 Or.App. 109, 875 P.2d 476, withdrawn on recons., 131 Or.App. 466, 480, 886 P.2d 31 (1994). For the reasons that follow, we affirm. On January 25, 1993, a prospective petition for a proposed amendment to the Klamath Falls City Charter was filed with defendant, the elections officer of the City of Klamath Falls (city). That proposed amendment would preclude the city from passing or enforcing any ordinance "that extends minority status * * * based on homosexuality or which establishes any categorical provision such as `sexual orientation.'" The full text of the proposed amendment is contained in the appendix to this opinion. Plaintiff brought a declaratory judgment action, seeking to enjoin the city's elections officer from placing the initiative measure on the ballot. Plaintiff argued to the circuit court (1) that the proposed initiative measure should not be placed on the ballot, because it is not the kind of measure as to which initiatives are authorized by Article IV, section 1(5), of the Oregon Constitution,[1] and (2) that the proposed measure is legally insufficient on constitutional and statutory grounds. In the alternative, plaintiff argued that the ballot title proposed by the city was unclear and should be modified. The trial court modified the ballot title and entered a judgment certifying the measure for the ballot, denying plaintiff her other requested relief. Plaintiff appealed. The Court of Appeals concluded that no justiciable controversy existed between plaintiff and defendant because, "[a]t this writing, the sponsors of the measure have yet to collect the number of signatures required to place the measure on the ballot." Boytano, 128 Or.App. at 112, 875 P.2d 476. On reconsideration, the Court of Appeals, sitting in banc, withdrew that decision. 131 Or.App. at 469, 886 P.2d 31. The Court of Appeals first noted that, under this court's opinion in Ellis v. Roberts, 302 Or. 6, 17, 725 P.2d 886 (1986), "an elector who seeks a court ruling that an initiative measure should not be placed on *837 the ballot need not wait until all the required signatures have been gathered and the measure has qualified for the ballot." 131 Or.App. at 469, 886 P.2d 31. The Court of Appeals then rejected plaintiff's argument that the proposed measure is not a proper subject of a local initiative election under Article IV, section 1(5), of the Oregon Constitution. Id. at 470-80, 886 P.2d 31. This court allowed review, and we now affirm. In Foster v. Clark, 309 Or. 464, 469, 790 P.2d 1 (1990), this court explained that Nonetheless, the court recognized that there are some circumstances in which "Oregon courts have inquired into whether matters extraneous to the language of the measure itself disqualify the measure from the ballot." Ibid. In Foster, the court discussed two situations in which "matters extraneous to the language of the measure itself" disqualify that measure from the ballot. The first occurs when a measure is flawed because of some procedural shortcoming, such as an inadequate number of qualifying signatures to place the measure on the ballot. Ibid. The second situation occurs when, "[d]espite compliance with proper procedures, * * * the measure is legally insufficient to qualify for that ballot." Ibid. The court concluded that the proposed measure in that case was legally insufficient to qualify for the ballot, because it did not involve "municipal legislation" and, thus, was not "one of the type authorized by [Oregon Constitution, Article I, section 1(5)]." Id. at 471-75, 790 P.2d 1. This case presents another situation in which "matters extraneous to the language of the measure itself" are asserted to disqualify the measure from the ballot. Here, plaintiff argues among other things, that ORS 659.165 and Article IV, section 1(5), of the Oregon Constitution, preclude a vote on the proposed initiative petition, because it is not a proper subject for a local initiative measure. That challenge does not depend on the substantive validity of the proposed initiative petition. Accordingly, as our discussion of Foster shows, that argument "is a proper one for judicial scrutiny." Id. at 471, 790 P.2d 1. Further support for the conclusion that this case presents a justiciable controversy is found in State ex rel. Fidanque v. Paulus, 297 Or. 711, 688 P.2d 1303 (1984). In Fidanque, the plaintiff-relators alleged that the Secretary of State had breached her constitutional duty by certifying a prospective petition and allocating to it a ballot number in violation of the single-issue requirement of Article IV, section 1(2)(d), of the Oregon Constitution. The plaintiff-relators brought their challenge after the signatures had been gathered and after this court had certified a ballot title. 297 Or. at 713, 688 P.2d 1303. This court dismissed the writ of mandamus, holding that the challenge came too late in the process. Id. at 717-19, 688 P.2d 1303. The court stated: "It is in approving a prospective petition which did not comply with the alleged requirements of Article IV, section 1, that the Secretary of State's authority under the constitution and statutes first would be exceeded and her duty breached." Id. at 715, 688 P.2d 1303. In a footnote, the court explained: In this case, defendant, as the elections officer for the City of Klamath Falls, is responsible for receiving and processing an initiative petition, ORS 250.265, for "authoriz[ing] the circulation of the petition," ORS 250.275(1), for accepting the petition for signature verification, ORS 250.315(1), and for "fil[ing] the initiated measure with the city governing body" for its approval or rejection, ORS 250.325(1). See City Charter, City of Klamath Falls, section 26 (with exception not relevant here, "the general laws of the state shall apply to the conduct of all City elections"). Pursuant to ORS 250.275(2), she forwarded the petition in controversy to the City Attorney for preparation of a ballot title. The City Attorney prepared a title, for use in gathering signatures that would place the petition on the ballot. At that point, defendant, as well as the City Attorney, implicitly made a determination that the proposed measure is a proper one for the ballot. Under the principles discussed in Fidanque, that determination is susceptible to challenge in the courts. We hold that this case presents a justiciable controversy. In the trial court, plaintiff argued, in part, that the proposed initiative petition should not be placed on the ballot, because it did not concern "municipal legislation" and thus was not of the type authorized to be placed on the ballot under Article IV, section 1(5), of the Oregon Constitution. The trial court issued a letter opinion on April 8, 1993, dismissing plaintiff's Article IV, section 1(5), challenge, and a letter of clarification on May 13, 1993. On June 17, 1993, the trial court entered its amended final order certifying the ballot title. Plaintiff filed a timely notice of appeal to the Court of Appeals on July 12, 1993. ORS 659.165 became effective on August 2, 1993, after the trial court entered its amended final order. Plaintiff's opening brief was filed in the Court of Appeals on January 11, 1994. In that brief, plaintiff raised, for the first time, the argument that ORS 659.165(1) precludes local elections on initiatives like the one at issue in this case. Plaintiff did not, and could not, raise her ORS 659.165(1) argument to the trial court, because that statute became effective after the Court of Appeals acquired jurisdiction of the case. Plaintiff's inability to raise her statutory claim at trial did not preclude her from raising that argument before the Court of Appeals, or here. For purposes of preserving an alleged error, raising an issue at trial ordinarily is essential, identifying a source for a claimed position is less so, and making a particular argument is least so. State v. Hitz, 307 Or. 183, 188, 766 P.2d 373 (1988). At trial, plaintiff met that preservation of error standard when she raised the issue whether the initiative petition was a proper one for the ballot; she could not, at that time, identify the statutory source, or make the particular argument now before us, because that source and argument did not exist. However, as stated in Hitz, "when a potential constitutional violation is involved, the parties' omission of a dispositive source or argument of ordinary law cannot compel a court to a needless constitutional decision." Ibid. See also Zockert v. Fanning, 310 Or. 514, 520, 800 P.2d 773 (1990) ("This court decides cases upon sub-constitutional grounds, where available, even though litigants argue only constitutional errors."). For the foregoing reasons, we conclude that we may consider plaintiff's argument *839 that ORS 659.165(1) precludes a vote on the proposed initiative measure. B. Interpreting ORS 659.165(1) ORS 659.165 provides: Plaintiff asserts that, because ORS 659.165(1) prohibits a political subdivision from enacting and enforcing any charter provision concerning treatment of citizens based on sexual orientation, it necessarily prohibits elections on initiative petitions that single out people on the basis of sexual orientation.[2] That argument depends in the present case on the interpretation of the word "enact," as it is used in ORS 659.165(1). Plaintiff argues that the word "enact" in ORS 659.165(1) "prohibits local governments from voting on the measure." According to plaintiff, enactment of an initiative measure refers to a process that incorporates voting, rather than to a final action after voting. In interpreting a statute, this court's task is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). The first level of analysis is to examine the text and context of the statute. Id. at 610-11, 859 P.2d 1143. If the legislature's intent is clear from those inquiries, further inquiry is unnecessary. Id. at 611, 859 P.2d 1143. Under that definition, an initiative measure is "enacted" after a vote, when an elections officer tabulates the votes and certifies that a majority of voters approved the proposed measure. An initiative measure is not "made into a law" until it has been approved by the voters; therefore, it is not "enacted" if (for example) it is voted on, but fails to win approval from the electorate. Moreover, "the last act of legislation" with respect to an initiative measure is the majority's approval of the measure at an election or, perhaps, certification of that election result. Thus, voting and enactment are not synonymous; voting precedes enactment and is necessary to it, but enactment does not occur every time a vote has occurred. The context of ORS 659.165(1) confirms that meaning. The context of ORS 659.165 includes the state constitutional provisions that address the use of initiative and referendum powers reserved to the people of Oregon, because ORS 659.165 addresses types of initiatives and referenda that may not be enacted or enforced. Article IV, section 1(2)(a), of the Oregon Constitution, provides: After our review of the text and context, we conclude that ORS 659.165(1) is not intended to prevent local elections on initiative petitions such as the one at issue in this case.[4] Because plaintiff cannot obtain the relief that she requested based on statutory grounds, we turn to her argument that the proposed initiative measure should not be placed on the ballot, because it is not the kind of measure as to which initiatives are authorized by Article IV, section 1(5), of the Oregon Constitution, quoted ante at note 1. Plaintiff argues specifically that the proposed initiative measure is not a subject of "municipal legislation" because, by enacting ORS 695.165, the legislature made the subject of that measure a matter of statewide, and therefore not "municipal," concern. Plaintiff asserts that, because ORS 659.165 establishes a statewide policy concerning laws that single out citizens on the basis of sexual orientation, the legislature is "simply preempting the field." According to plaintiff, ORS 659.165 thereby reserves to the state the exclusive power to act in that area. Plaintiff relies on this court's decision in La Grande/Astoria v. PERB, 281 Or. 137, 576 P.2d 1204, aff'd on rehearing, 284 Or. 173, 586 P.2d 765 (1978), to support her argument. In La Grande/Astoria, two cities brought declaratory judgment proceedings to challenge the constitutionality of state statutes that required the cities to provide a minimum level of life insurance and retirement benefits to some city employees. The cities argued, in part, that that statute violated Article IV, section 1(5), because "by requiring [the cities] to provide police officers and firemen with retirement and insurance benefits the legislature has invaded a domain reserved to local discretion by the Oregon Constitution." 281 Or. at 139, 576 P.2d 1204. The Court held that the statutes were constitutional. 281 Or. at 157, 576 P.2d 1204, 284 Or. at 186, 586 P.2d 765. In reaching that conclusion, the court made the following statement, on which plaintiff relies heavily: Plaintiff argues that ORS 659.165 addresses the "substantive social * * * objectives of the state" and, therefore, that it "prevails over contrary policies preferred by some local governments." In this case, our discussion above disposes of plaintiff's argument. We have determined that, when the legislature enacted ORS 659.165, it did not intend to preclude local elections on initiative measures such as the one at issue. Therefore, a local government election on an initiative measure such as the one at issue is not "contrary" to ORS 659.165, the general law adopted by the state *841 legislature. Plaintiff's reliance on La Grande/Astoria is misplaced.[5] The decision of the Court of Appeals and the amended final order of the circuit court are affirmed. The proposed amendment provides: [1] Article IV, section 1(5), of the Oregon Constitution, provides in part: "The initiative and referendum powers reserved to the people * * * are further 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. The manner of exercising those powers shall be provided by general laws, but cities may provide the manner of exercising those powers as to their municipal legislation." [2] The proposed initiative petition, on its face, singles out people and groups of people based on sexual orientation and thus falls within the reach of the substantive provisions of ORS 659.165(1). No party before this court argues otherwise. [3] Article IV, section 1(2)(a), is relevant, because Article IV, section 1(5), reserves 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" the initiative and referendum powers reserved to the people in Article IV, section 1(2)(a). [4] We need not, and do not, decide whether the proposed initiative measure, if it were to pass, could be treated as an enacted law or enforced. Neither do we decide whether ORS 659.165 is constitutional. [5] As noted in note 4, above, enforcement is not an issue here.

cd3f054a9c445ee1b47e8f6fb6ffb8d3683d6ea0dfe217728949e8dbe798f3f6

1995-08-24T00:00:00Z

8ff3d9b2-c5c6-4c15-b147-d1bf5d4d61cb

State Ex Rel. Turner v. Frankel

322 Or. 363, 908 P.2d 293

oregon

Oregon Supreme Court

908 P.2d 293 (1995) 322 Or. 363 STATE of Oregon ex rel. Deangelo Leroy TURNER, Plaintiff-Relator, v. Honorable Kimberly C. FRANKEL, Judge of the Circuit Court of the State of Oregon for Multnomah County, Defendant. SC S41709[*]. Supreme Court of Oregon, In Banc. Argued and Submitted March 7, 1995. Decided December 21, 1995. Robert A. Goffredi, Portland, and Leland R. Berger, Portland, argued the cause and filed the briefs for plaintiff-relator. Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for defendant. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. *294 CARSON, Chief Justice. This is an original mandamus proceeding. Relator, Deangelo Leroy Turner, seeks a writ directing defendant judge to deny the state's motion for declaration of a mistrial on two counts of aggravated murder in a criminal prosecution of Relator. Relator further asks this court to direct defendant judge to dismiss, with prejudice, those two counts of aggravated murder. In September of 1993, Relator was indicted jointly with Ronald Ray Simmons, Jr., on six counts of aggravated murder and three counts of other felonies. The six aggravated murder counts, all related to the death of a single victim, were: 1) intentional murder committed in the course and furtherance of rape in the first degree; 2) intentional murder committed in the course and furtherance of sodomy in the first degree; 3) intentional murder committed in the course and furtherance of sexual abuse in the first degree; 4) intentional murder committed in an effort to conceal the commission and identity of the perpetrator of rape in the first degree; 5) intentional murder committed in an effort to conceal the commission and identity of the perpetrator of sodomy in the first degree; and 6) intentional murder committed in an effort to conceal the commission and identity of the perpetrator of sexual abuse in the first degree.[1] In the same indictment, Relator and Simmons also were charged with rape in the first degree (count seven),[2] sodomy in the first degree (count eight),[3] and sexual abuse in the first degree (count nine).[4] Relator and Simmons were tried jointly before a jury. After the close of evidence, defendant judge instructed the jury. She gave instructions on counts four, five, and six that identified intentional murder as a lesser-included offense of aggravated murder committed to conceal the commission and identity of the perpetrator of a felony. Defendant judge also gave instructions on counts one, two, and three that identified felony murder as a lesser-included offense of aggravated murder in the course and furtherance of a felony.[5] In addition, defendant judge gave the following instruction on lesser-included offenses: "Now, there are certain rules for considering lesser and included offenses, and this is how it must be handled: When you *295 deliberate, you should first consider the charged offense, and if you find a defendant not guilty on the charged offense, or if you cannot agree on a verdict on the charged offense, you should then consider the lesser and included offenses." On August 2, 1994, after six days of deliberation, the jury notified defendant judge that it had reached verdicts in both cases. The presiding juror returned the verdict forms to defendant judge. Next to each count, beside the spaces for marking "not guilty" or "guilty," the jury had written numbers or blank marks in parentheses.[6] On counts one and three, the jury checked neither "not guilty" nor "guilty" for either the charged offense of aggravated murder or the lesser-included offense of felony murder.[7] On counts four and six, the jury again checked neither "not guilty" nor "guilty" for the charged offense of aggravated murder.[8] However, the jury found Relator guilty of the lesser-included offense of intentional murder on those two counts. After the jury returned its verdict, defendant judge stated that "in some sense the form is not complete. And I may have to have [the jury] complete [its] form." After some discussion with counsel, during which all parties asked defendant judge to poll the jury as to some of the counts, defendant judge sent a note to the jury asking the jurors to "list the name of the jurors who agreed and disagreed with your verdicts."[9] At some later time, defendant judge received the verdicts and dismissed the jury.[10] On August 12, 1994, the state moved for declaration of a mistrial as to counts one, three, four, and six, the counts for which the jury reached neither a not-guilty nor a guilty verdict on the charged offense of aggravated murder. The state also moved to set those four counts for retrial and to delay sentencing on the other convictions until after the retrial on those four counts. Relator objected to the state's motions. At the August 29, 1994, hearing on the state's motions, defendant judge said that "in Counts 1 and 3, the jury returned no acceptable verdicts on either the greater or the lesser offense." Two days later, defendant judge entered an order granting the state's motion to declare a mistrial as to counts one and three and setting those matters for retrial. As to the other counts, defendant judge denied the state's motion to declare a mistrial and to set for retrial. After entry of that order, Relator moved to dismiss counts one and three on the ground that retrial on those counts would violate his right against former jeopardy under Oregon statutory law and the Oregon Constitution and his right against double jeopardy under the United States Constitution. On September 9, 1994, at the time originally scheduled for sentencing, Relator presented his argument to the court supporting his motion to dismiss counts one and three. At the conclusion of Relator's argument, defendant judge stated: "I am going to stand on my ruling that addresses the question of the retrial on *296 Counts 1 and 3. I believe that those do constitute failures to reach verdicts. I do not believe they violate double jeopardy in a legal sense, though I understand what [Relator's] feelings about that are, and I will deny the motion additionally to dismiss on the grounds of double jeopardy as to Counts 1 and 3." Defendant judge denied Relator's motion to dismiss counts one and three. On November 29, 1994, this court issued an alternative writ of mandamus, directing defendant judge to deny the state's motion for mistrial as to counts one and three and directing defendant judge to dismiss those two counts, with prejudice, or to show cause for failure to do so. Defendant judge elected to show cause for her failure to comply with the directions of the alternative writ, contending before this court that her original rulings were correct.[11] For the reasons that follow, we conclude that the state is barred by the statutory prohibition in ORS 131.515(1) against former jeopardy from retrying Relator on counts one and three of the original indictment. We therefore direct that a peremptory writ of mandamus shall issue directing defendant judge to vacate her order that declared a mistrial and ordered a retrial, and further directing defendant judge to deny the state's motion for a mistrial and to dismiss, with prejudice, those two counts of aggravated murder. Relator argues that his right to be free from former jeopardy under ORS 131.515(1) and Article I, section 12, of the Oregon Constitution, and his right to be free from double jeopardy under the Fifth Amendment to the United States Constitution, prevent the state from retrying him on counts one and three. As always, before reaching Relator's constitutional arguments, we first consider his statutory argument. See State v. Stevens, 319 Or. 573, 579, 879 P.2d 162 (1994) (applying that methodology). ORS 131.515(1) provides: "Except as provided in ORS 131.525 and 131.535 * * * [n]o person shall be prosecuted twice for the same offense."[12] That statutory provision prohibits the state from reprosecuting Relator for aggravated murder on counts one and three unless one of the statutory exceptions to ORS 131.515(1) applies. Defendant judge argues that this case falls within the statutory exception contained in ORS 131.525(1)(b)(D), which allows the state to reprosecute a criminal defendant when the original trial ends in a deadlocked jury. ORS 131.525(1)(b)(D) provides: "A previous prosecution is not a bar to a subsequent prosecution when the previous prosecution was properly terminated under any of the following circumstances: "* * * * * "(b) The trial court finds that a termination, other than by judgment of acquittal, is necessary because: "* * * * * "(D) The jury is unable to agree upon a verdict[.]" Defendant judge argues that, in this case, the jury was "unable to agree upon a verdict" on counts one and three of aggravated murder and, thus, that ORS 131.515(1) does not bar the state from reprosecuting Relator on those two counts. For the reasons that follow, we disagree. ORS 131.525(1)(b)(D) requires that a trial judge find that termination of a trial is necessary because the jury is unable to agree upon a verdict. Traditionally, this court does not disturb such a finding by a trial judge. See State v. Paquin, 229 Or. 555, 558, 368 P.2d 85 (1962) ("A finding by a trial judge that a jury is unable to agree is * * * absolute *297 and conclusive." (internal citation and quotation marks omitted)).[13] However, the record here contains a number of discrepancies in this regard and consequently does not demonstrate that defendant judge actually made such a finding in this case. A summary of the record follows. At the time the jury returned its verdict forms, defendant judge stated to the jury foreman: "And I understand you have reached verdicts in these cases?" (Emphasis added.) The foreman responded, "Yes." After reviewing the forms, defendant judge sent the jury out of the courtroom and stated to counsel that "in some sense the form is not complete." She also noted to Relator's counsel that, as to count one, "that is effectively that not guilty verdict, but they have not recorded a check mark." (Emphasis added.) The district attorney then stated that "it appears that they're hung as to some of the counts." When defendant judge began to respond, the district attorney stated, "That's not clear to me." Defendant judge then responded, "That's why I said it may not be a complete verdict." (Emphasis added.) Defendant judge and counsel then discussed whether, and if so, how, the jury should be polled. During the course of that conversation, defendant judge stated that "I think it's clear from the parentheses that they have in fact gotten either the requisite number to make a not guilty finding or have been unable to reach a verdict." (Emphasis added.) Defendant judge also noted that the jury was "unable to reach [a] verdict[ ]" as to the charged offense on count six, although it did reach a guilty verdict on the lesser-included offense. Also during that discussion, defendant judge suggested that she have the jury list the breakdown of which jurors voted guilty and not guilty, "other than where they have been unable to reach a verdict."[14] The parties agreed that defendant judge would send a note to the jury, asking the jury members to list the names of who "agreed and disagreed with [the] verdicts." Defendant judge noted that she was not requesting that the jury members list their names for counts that did not "result[ ] in any sort of finding."[15] After the jury returned the verdict forms and the parties agreed upon the polling method, defendant judge stated that "these verdicts are receivable by the court, subject to subsequent motion." The record does not indicate whether, at that time, defendant judge found that the jury was unable to agree upon a verdict. At the subsequent hearing on the state's motion for a mistrial, defendant judge stated that, "in Counts 1 and 3, the jury returned no acceptable verdicts on either the greater or the lesser offense." (Emphasis added.) Again, the record does not reflect a finding that the jury was unable to agree upon a verdict. Finally, at the September 9 hearing, defendant judge stated that "I am going to stand on my ruling that addresses the question of the retrial of Counts 1 and 3. I believe that those do constitute failures to reach verdicts." (Emphasis added.) She made that statement after having terminated the prior prosecution by discharging the jury and granting the motion for declaration of a mistrial on counts one and three. As can be seen, the record in this case does not demonstrate that defendant judge found that the jury was unable to agree upon a verdict on counts one and three. It is clear that defendant judge acknowledged that the jury did not agree upon a verdict on counts one and three. However, the record contains no indication of an affirmative finding that "a termination, other than by judgment of *298 acquittal, is necessary because * * * [t]he jury is unable to agree upon a verdict" as required by ORS 131.525(1)(b)(D). (Emphasis added.) This court previously has stated that, "[w]hen a jury is discharged for its inability to agree, trial courts, in entering the order, should be careful that the jeopardy which is attached is affirmatively shown to have been nullified." State v. Chandler et al, 128 Or. 204, 207, 274 P. 303 (1929). In Chandler, this court noted the most appropriate means for trial courts to do so: "[W]e believe the better view to be that when the jury, after having deliberated upon their verdict such a length of time as the trial court may deem reasonable, shall make known in open court, in the presence of the defendant, their inability to agree and the court, having in view all of the circumstances surrounding the case, and being satisfied with such report, causes a finding to that effect to be entered in the journal, and thereupon discharges the jury, the apparent jeopardy, which the record shows attached when the jury [was] impaneled, is annulled * * *." Id. at 206-07, 274 P. 303 (quoting State v. Reinhart, 26 Or. 466, 474, 38 P. 822 (1895) (original emphasis omitted)); see also Paquin, 229 Or. at 557-58, 368 P.2d 85 (this court did not disturb trial court's finding when "[t]he jury informed the court that it was hopelessly divided, and that it was impossible for said jury to agree upon a verdict, and the court, being fully satisfied that said jury was hopelessly divided, and that said jury would continue to be unable to agree upon a verdict, and that there was no probability whatever that a verdict could be reached by said jury"). Although those cases were decided before the legislature enacted the statutory exception to ORS 131.515(1) at issue in this case, they demonstrate that this court previously had established a guideline for trial courts to follow when faced with the possibility that a jury is unable to agree upon a verdict. The exceptions to former jeopardy are now part of a statute, ORS 131.525, which sets forth specific requirements that must be met in order for those exceptions to apply.[16] According to ORS 131.525(1)(b)(D), before jeopardy is nullified, the trial court must "find [] that a termination * * * is necessary" due to the jury's inability to agree upon a verdict. (Emphasis added.) A finding by defendant judge that the jury did not agree upon a verdict as to counts one and three is not the equivalent of a finding that the jury was unable to agree upon a verdict as to those counts. Because it simply is not clear from the record whether defendant judge made such a finding in this case, the statutory exception to former jeopardy contained in ORS 131.525(1)(b)(D) does not apply, and the prosecution is barred from retrying Relator on counts one and three. A provision of the Oregon Rules of Civil Procedure supports our conclusion that ORS 131.525(1)(b)(D) does not apply in this case. ORCP 59F(1)(a) instructs trial courts on the procedure for discharging a jury that is unable to agree upon a verdict.[17] It provides: "The jury shall not be discharged after the cause is submitted to them until they have agreed upon a verdict and given it in open court unless: "F(1)(a) At the expiration of such period as the court deems proper, it satisfactorily appears that there is no probability of an agreement [.]" (Emphasis added.) In this case, the record clearly indicates that the jury failed to agree upon a verdict as to counts one and three. However, nothing in the record indicates that, at the time defendant judge dismissed the jury, it "satisfactorily appear[ed] that there [was] no probability of an agreement" as to those counts. (Emphasis added.) Consequently, we cannot conclude that ORCP 59F(1)(a) was followed in this case. *299 Because the requirements of ORCP 59F(1)(a) were not met, we must determine the effect that noncompliance with that provision has upon this case. The central question is whether compliance with ORCP 59F(1)(a) is a prerequisite to the applicability of the statutory exception to former jeopardy contained in ORS 131.525(1)(b)(D). Our task is one of finding legislative intent. That is, we must determine whether, in enacting ORS 131.525(1)(b)(D), the legislature intended that the requirements of ORCP 59F(1)(a) be met in order for a trial judge to find that a jury is "unable to agree upon a verdict" for the purposes of ORS 131.525(1)(b)(D). We begin by looking to the text and context of the provisions at issue. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (describing methodology). Context includes other related statutes. Id. at 611, 859 P.2d 1143. The first clause of ORCP 59F states the general rule of that provision: a jury shall not be discharged until the jurors have "agreed upon a verdict." Here, ORCP 59F uses essentially the same language, "agree upon a verdict," as does the exception to former jeopardy contained in ORS 131.525(1)(b)(D). Paragraph (1)(a) of ORCP 59F permits discharge of the jury if there is no probability of an agreement, not merely if the jury fails to agree. Similarly, ORS 131.525(1)(b)(D) provides that termination of a proceeding will nullify the attached jeopardy if the jury members are unable to agree upon a verdict, not merely if they fail to agree. Clearly, the text of both provisions focuses on a jury's ability to come to an agreement, as opposed to whether or not the jury members in fact agree upon a verdict. A look at the context of ORCP 59F is also helpful to our analysis. A related statute, ORS 136.330(1), provides that "ORCP * * * 59 * * * F * * * appl[ies] to and regulate[s] the conduct of the trial of criminal actions." (Emphasis added.) One purpose of that statute obviously is to make certain rules of civil procedure applicable to criminal trials. However, according to ORS 136.330(1), ORCP 59F also regulates criminal trials. In other words, the procedure for discharging a jury set forth in ORCP 59F(1)(a) is the standard by which the jury's ability to agree upon a verdict must be assessed. Again, the jury's ability to agree upon a verdict is logically connected to the determination of whether a jury is unable to agree upon a verdict for the purposes of ORS 131.525(1)(b)(D). Although our analysis of both the text and context of ORCP 59F(1)(a) and ORS 131.525(1)(b)(D) supports the conclusion that those provisions are procedurally connected, the legislature's intent in this respect is not entirely clear. Therefore, we turn to the available legislative history to assist in our determination of legislative intent. See PGE, 317 Or. at 611-12, 859 P.2d 1143 (describing methodology). Legislative history includes the commentary to the Oregon Criminal Procedure Code. See State v. Ford, 310 Or. 623, 636-37, 801 P.2d 754 (1990) (citing the commentary as part of the legislative history to ORS 133.235, the statutory knock-and-announce rule); State v. Dyson, 292 Or. 26, 32-34, 636 P.2d 961 (1981) (citing the commentary as part of the legislative history to ORS 135.865, pertaining to sanctions for failure to comply with statutory discovery provisions in criminal prosecutions). What is now ORS 131.525(1)(b) was originally part of the Oregon Criminal Procedure Code enacted by the 1973 legislature. Or. Laws 1973, ch. 836, § 28. The drafters of that statutory exception to former jeopardy noted that the provision "in part follows the provision[] in ORS 17.330 * * * [, which] allows for discharge of the jury after a failure to agree after an expiration of a proper period of time." Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Procedure Code, Final Draft and Report (November 1972), § 28, at 22. Then-ORS 17.330 provided, in part, that "the jury shall not be discharged after the cause is submitted to them until they have agreed upon a verdict * * *, unless * * * at the expiration of such period as the court deems proper, it satisfactorily appears that there is no probability of an agreement." ORS 17.330 (1971). ORS 17.330 was repealed by the 1979 legislature when it enacted the new Oregon *300 Rules of Civil Procedure. Or.Laws 1979, ch. 284, § 199. At that time, ORS 17.330 was replaced by ORCP 59F(1)(a), which the legislature has not amended since its enactment. In view of the fact that the drafters of ORS 131.525(1)(b)(D) specifically acknowledged that the wording of that provision followed then-ORS 17.330, now ORCP 59F(1)(a), it appears that the drafters intended that the two provisions should be read together. Nothing else in the legislative history of ORS 131.525(1)(b)(D) contradicts that suggestion. In the light of the text and context of ORCP 59F and ORS 131.525(1)(b)(D), as well as the legislative history of ORS 131.525(1)(b)(D), we conclude that compliance with the procedural rule set forth in ORCP 59F(1)(a) is a prerequisite to the triggering of the exception to former jeopardy contained in ORS 131.525(1)(b)(D). In other words, only when it satisfactorily appears that there is no probability of an agreement, under ORCP 59F(1)(a), does a trial judge have a basis to find that the jury is unable to agree upon a verdict for the purposes of ORS 131.525(1)(b)(D).[18] Therefore, the fact that the requirements of ORCP 59F(1)(a) were not met in this case further supports our conclusion that the exception to former jeopardy contained in ORS 131.525(1)(b)(D) does not apply. Defendant judge does not argue that any of the other statutory exceptions to ORS 131.515(1) apply in this case. Thus, ORS 131.515(1) bars the state from reprosecuting Relator on counts one and three of the indictment.[19] One final point deserves mention. ORS 34.110 provides that a writ of mandamus "shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law." Mandamus is an appropriate remedy in this case, because Relator's ordinary right to appeal after conviction does not vindicate his statutory right to be free from a second prosecution for the same offense. It is ordered that a peremptory writ shall issue directing defendant judge to vacate the order declaring a mistrial and ordering a retrial on counts one and three of aggravated murder. The peremptory writ shall further direct defendant judge to deny the state's motion for declaration of a mistrial, and to dismiss those two counts of aggravated murder, with prejudice. [*] Relating to Multnomah County Circuit Court C93-02-30863. [1] ORS 163.095 provides, in part: "`[A]ggravated murder' means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances: "* * * * * "(2)(d) Notwithstanding ORS 163.115(1)(b), the defendant personally and intentionally committed the homicide under the circumstances set forth in ORS 163.115(1)(b). "(e) The murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime." ORS 163.115(1) provides, in part: "[C]riminal homicide constitutes murder: "* * * * * "(b) When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants: "* * * * * "(H) Any felony sexual offense in the first degree defined in this chapter[.]" [2] ORS 163.375(1)(a) provides: "A person who has sexual intercourse with another person commits the crime of rape in the first degree if * * * [t]he victim is subjected to forcible compulsion by the person." [3] ORS 163.405(1)(a) provides: "A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if * * * [t]he victim is subjected to forcible compulsion by the actor." [4] ORS 163.427(1)(a)(B) provides: "A person commits the crime of sexual abuse in the first degree when that person * * * [s]ubjects another person to sexual contact and [t]he victim is subjected to forcible compulsion by the actor." [5] On the morning after the jury instructions were given, before the jury began deliberating, Relator moved the court to instruct the jury that intentional murder is also a lesser-included offense of aggravated murder in the course and furtherance of a felony. He argued that he inadvertently had forgotten to request that instruction on those three counts. Defendant judge denied the motion. That ruling is not before us. [6] Although it is not entirely clear from the record what the notations written on the verdict forms represented, it appears that the numbers may have indicated the vote of the jury, "not guilty" to "guilty," at the time that it returned the verdicts. For example, the written notation "(2-10)" indicated that two jurors voted "not guilty" and 10 jurors voted "guilty" for that particular count. The blank marks, or "(______)," appear to indicate that, because the jury reached a guilty verdict on the intentional murder charge at issue, it did not consider the lesser-included offense of manslaughter in the first degree. The crime of murder requires a unanimous verdict; other crimes require a concurrence of at least 10 of 12 jurors. ORS 136.450. [7] For both counts one and three, the jury wrote "(2-10)" beside the aggravated murder charge on the verdict form and "(1-11)" beside the lesser-included offense of felony murder. [8] For both counts four and six, the jury wrote "(2-10)" beside the aggravated murder charge on the verdict form. [9] The parties agreed to this choice by the trial judge. But see ORCP 59G(3), made applicable to trials in criminal actions by ORS 136.330 (providing specific method for polling juries). [10] There is no information in the record that specifies exactly when defendant judge received the verdicts and dismissed the jury. It is unclear whether she did so on August 2, 1994, or at a later date. It does appear that she did so before the August 29, 1994, hearing on the state's motion to declare a mistrial. [11] In these proceedings, defendant judge is represented by the Oregon Attorney General pursuant to ORS 34.130(4), which provides, in part, that "[w]ith the consent of [defendant judge] * * * the attorney for an adverse party may appear on behalf of [defendant judge]." The state is an adverse party in these proceedings for the purposes of ORS 34.130(4). ORS 34.105(1) ("`Adverse party' means a beneficially interested party to a judicial * * * proceeding from which a mandamus proceeding arises, whose interests are adverse to the relator"). [12] As to counts one and three, Relator has been "prosecuted" for the purposes of the statute by virtue of the filing of the indictment and the impaneling and swearing in of the jury. ORS 131.505(5)(b). [13] Paquin was decided before ORS 131.525(1)(b)(D) was enacted. However, that case concerned a plea of former jeopardy "based upon the fact that the defendant had been previously tried upon the same indictment and the jury had failed to reach a verdict." 229 Or. at 557, 368 P.2d 85. That exception to former jeopardy was later codified as ORS 131.525(1)(b)(D). [14] It is not clear to which counts defendant judge was referring when she made this statement. [15] The record does not indicate which counts defendant judge included in the note to the jury, although it appears from her comments that the note included all counts, with the exception of those beside which the jury had written a blank mark in the margin. [16] ORS 131.525 was part of the Proposed Oregon Criminal Procedure Code drafted by the Criminal Law Revision Commission, which was created in 1967. The legislature enacted ORS 131.525 in 1973. Or.Laws 1973, ch. 836, § 28. [17] ORS 136.330(1) provides that ORCP 59F applies in criminal cases. [18] This reading of ORCP 59F(1)(a) and ORS 131.525(1)(b)(D) makes sense from a procedural standpoint. When a jury cannot agree upon a verdict, the inquiry is whether it satisfactorily appears that there is no probability of an agreement. If that is the case, the trial judge then can dismiss the jury under ORCP 59F(1)(a). That act of discharging the jury constitutes termination of the proceeding based upon the trial judge's finding that the jury was unable to agree upon a verdict, for the purposes of ORS 131.525(1)(b)(D). [19] The disposition that we make of this case makes it unnecessary to decide the second issue that is raised by the trial judge's actions in this case, viz., whether a guilty verdict for the lesser-included offense of intentional murder under a count of aggravated murder acts as an acquittal for a second count of aggravated murder, when there was only one victim and the jury was unable to agree upon a verdict as to the second count of aggravated murder. We leave that issue for another day.

008ad95fcd278e616e3f7c670370099c9b08f275519abcbd099c33f85ab5ac9a

1995-12-21T00:00:00Z

8f6e9ca8-38cf-4d67-a174-b86ac6570988

Sutherland v. Brennan

321 Or. 520, 901 P.2d 240

oregon

Oregon Supreme Court

901 P.2d 240 (1995) 321 Or. 520 George SUTHERLAND, Conservator for Helen B. Sutherland, Petitioner on Review, v. Enda BRENNAN, Respondent on Review. CC 9210-07134; CA A80719; SC S41835. Supreme Court of Oregon, In Banc. Argued and Submitted May 1, 1995. Decided September 8, 1995. Frank H. Hilton, Jr., of Schwab, Hilton, & Howard, Portland, argued the cause for petitioner on review. With him on the brief was Maureen J. Michael. Gregory B. Snook, of Kilmer, Voorhees & Laurick, P.C., Portland, argued the cause and filed the brief for respondent on review. Helen T. Dziuba, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. *241 VAN HOOMISSEN, Justice. The issue in this case is whether the trial court properly granted defendant's motion to dismiss plaintiff's complaint for lack of personal jurisdiction. ORCP 21 A.[1] A divided Court of Appeals, sitting in banc, affirmed the decision of the trial court. Sutherland v. Brennan, 131 Or.App. 25, 883 P.2d 1318 (1994). For the reasons that follow, we also affirm, but on different grounds from those relied on by the Court of Appeals. In October 1992, plaintiff, acting as conservator of the estate of his sister, filed a complaint in the circuit court against defendant, a lawyer practicing in California, claiming conversion of funds given by plaintiff's sister to defendant's client, Morrow. The complaint alleges in part: Defendant moved to dismiss the complaint, arguing that the court lacked personal jurisdiction over him. The court granted the motion and gave plaintiff the opportunity to replead. Plaintiff filed an amended complaint, adding claims for breach of contract, breach of fiduciary duty, and money had and received and alleging in part: The amended complaint also contains the following factual allegations: "After depositing the funds into his trust account for safe keeping, defendant Enda *242 Brennan made several telephone calls to plaintiff's attorney, Scott Howard, in Oregon. During these conversations, defendant Brennan repeatedly represented to and assured plaintiff's attorney that defendant was aware that the funds belonged to Helen Sutherland and that a conservatorship in Oregon was being established for receipt of the $40,000 held by defendant. Defendant further represented to plaintiff's attorney that he would not release the trust funds to his client, Stephen Morrow, but would instead hold the funds for Helen Sutherland pending establishment of the conservatorship. Defendant stated to attorney Howard that when the conservatorship was established in Oregon, defendant would release the funds to plaintiff for deposit into the Oregon conservatorship account. Defendant again moved to dismiss based on lack of personal jurisdiction. Defendant's attached affidavit stated in part: In response, plaintiff submitted an affidavit from the California police officer who had investigated plaintiff's initial report and had *243 arrested Mr. Morrow. That affidavit provides in part: "* * * * * * After hearing oral argument, the circuit court granted defendant's motion to dismiss.[4] Plaintiff appealed, arguing that personal jurisdiction over defendant was proper under ORCP 4A(4), 4C, or 4L. The Court of Appeals rejected plaintiff's argument under ORCP 4C on the grounds that no act or omission by defendant occurred within the state of Oregon and that there was no allegation that plaintiff had acted in reasonable reliance on defendant's representations and had suffered an injury in Oregon. Sutherland, 131 Or.App. at 29-30, 883 P.2d 1318. Rejecting plaintiff's argument that jurisdiction was proper under ORCP 4A(4), that court stated that "the bare fact of real estate holdings, without more, cannot serve as the basis for establishing personal jurisdiction in an action that neither arises out of, nor relates to, defendant's property ownership." Id. at 30, 883 P.2d 1318 (citations omitted). Finally, the court rejected plaintiff's arguments under ORCP 4L, Oregon's "catch-all" jurisdictional rule, on the ground that defendant's activities within Oregon did not provide a sufficiently substantial connection to the state to permit an Oregon court to exercise personal jurisdiction. Id. at 31, 883 P.2d 1318. The point on which the Court of Appeals majority and dissent diverged, however, was their treatment of the factual allegations in the pleadings and the parties' affidavits. The majority stated: In contrast, the dissent stated: The dissent concluded that the majority erred in holding that ORCP 21A allows a court to determine personal jurisdiction "by making a finding that an affiant's information in an affidavit is more credible than the allegations in a plaintiff's complaint." Id. 131 Or.App. at 37, 883 P.2d 1318. Plaintiff petitioned for review, contending that the Court of Appeals majority erred in determining that the trial court could dismiss a complaint for lack of personal jurisdiction based on a determination that the information in defendant's affidavit was more credible than the allegations in plaintiff's complaint. Plaintiff argues that that approach is at odds with the rule of law that, when a trial court reviews a motion to dismiss under ORCP 21A, it is required to assume the truth of all plaintiff's well-pleaded allegations. See, e.g., Stringer v. Car Data Systems, Inc., 314 Or. 576, 584, 841 P.2d 1183 (1992) (so noting under ORCP 21A(8)). Defendant responds that the plain wording of ORCP 21A allows the trial court to make such credibility findings and suggests that, because the rule leaves that matter to the discretion of the trial court, this court should review the trial court's decision only for abuse of discretion. The Court of Appeals and the parties have proceeded on the assumption that the foregoing question under ORCP 21A must be addressed, because the trial court made a credibility determination in favor of defendant when it determined that the action should be dismissed for lack of personal jurisdiction. We conclude, however, that that assumption was irrelevant, because, under any version of the facts asserted by any party, the trial court lacked personal jurisdiction over defendant. The Court of Appeals stated that "personal jurisdiction in this case depends upon the existence of an oral contract to deliver funds to an Oregon conservatorship. In other words, if no promise was made by defendant and reasonably relied on by plaintiff, there is no basis for an Oregon court to exercise jurisdiction over defendant." Sutherland, 131 Or.App. at 32, 883 P.2d 1318. To the extent that Oregon might have personal jurisdiction over defendant under ORCP 4L,[5] we agree that it must be based on defendant's telephone contacts with plaintiff's lawyer regarding the funds in the trust account.[6] We need not, however, begin with the factual question of whether a promise actually was made. Long-arm jurisdiction under ORCP 4L is considered a "catchall," applicable to those instances in which the facts alleged by the plaintiff do not bring the case within one of the specific provisions of ORCP 4. This court has stated: "In determining whether a court may exercise jurisdiction over a defendant under ORCP 4 L, this court is guided by decisions of the Supreme Court of the United States regarding the constitutionality of such exercise under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. See State ex rel. Jones v. Crookham, 296 Or 735, 742, 681 P2d 103 (1984) (Linde, J., concurring) (because Oregon does not have a due process clause in its state constitution, ORCP 4 L means, in practice, that an Oregon court has jurisdiction to the limits of due process under the *245 Fourteenth Amendment; those limits are `an issue of federal law to be decided pursuant to the controlling decisions of the United States Supreme Court')." State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or. 151, 156, 854 P.2d 461 (1993) (footnotes omitted). Because the issue is guided by federal law, we have examined the relevant decisions of the Supreme Court of the United States. Most helpful to our inquiry in the present case is the Court's decision in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). In that case, the Court analyzed the question of whether a state could exercise jurisdiction over a breach of contract action on the ground that the defendants had breached a contract in the forum state by failing to perform acts required by the contract to be performed there. Id. at 468, 105 S. Ct. at 2179. The Court emphasized that the first inquiry is into whether a defendant has purposefully established minimum contacts within the forum state. Id. at 475-76, 105 S. Ct. at 2183-84. The Court reiterated its conclusions from earlier cases that it must be the defendant that creates the connections with the forum state, such as creating continuing obligations between the defendant and a resident of the forum. In such situations, a defendant "has availed himself of the privilege of conducting business [in the forum state], and because his activities are shielded by the benefits and protections of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well." Id. at 476, 105 S. Ct. at 2183 (internal quotation marks omitted). Only after a court has made the preliminary determination that a defendant has purposefully established minimum contacts within the forum does the court consider other factors, such as the forum state's interest in the dispute, the plaintiff's interest, and the like. Id. at 476-77, 105 S. Ct. at 2183-84. Although concluding that sufficient minimum contacts did exist in Burger King Corp., the Court made the following remarks: Factors that led the Court to determine that personal jurisdiction existed in Burger King Corp. included: that the defendant had sought out the corporation in the forum state and negotiated for the purchase of a long-term franchise, that the franchise agreement included terms regarding regulation of the franchise by the headquarters in the forum state, and that the agreement contained a provision that the laws of the forum state would govern the agreement. Id. at 479-81, 105 S. Ct. at 2185-86.[7] With that case in mind, we turn to the present case to determine whether defendant had sufficient "minimum contacts" with Oregon to allow for personal jurisdiction under any version of the facts. Looking to the complaint and the facts from the affidavits, between May and September 1992, defendant, in his capacity as a lawyer practicing in California and at his client's request, made several telephone calls to plaintiff's lawyer in Oregon, to discuss the funds held in defendant's client trust account. According to plaintiff's complaint, defendant made promises during those telephone conversations about his handling of those funds and failed *246 to fulfill his obligations when he released the funds to his California client rather than to the Oregon conservatorship. During the course of his representation of his California client, defendant became aware of the claim on these funds by an Oregon interest. According to plaintiff, by telephoning plaintiff's lawyer in Oregon, defendant created a connection between himself and Oregon, the forum state. However, even assuming that defendant undertook an obligation to plaintiff during those conversations about the funds, this creation of an obligation alone does not establish sufficient minimum contacts. See id. at 478, 105 S. Ct. at 2184 (so indicating). Whatever the nature of the agreement, it clearly concerned an isolated transactiona one-time disposition of certain funds held in a client trust account in California. Furthermore, it would seem to be fortuitous that the connection was with Oregon; under these circumstances, it is just as likely that a California lawyer would make similar contact with an interested party in any other state. Unlike the situation in Burger King Corp., there was no contemplated ongoing interstate business relationship between the parties here. Compare State ex rel White Lbr. v. Sulmonetti, 252 Or. 121, 123-36, 448 P.2d 571 (1968) (when a wholesaler who had purchased wood from an Oregon company in the past had telephoned a new order, resulting in wood being shipped to wholesaler from Oregon, there were sufficient contacts to subject wholesaler to breach of contract action in Oregon). Also, there are no facts from which it could be concluded that, by contacting plaintiff's lawyer, defendant "availed himself of the privilege of conducting business" in Oregon and, thus, had his activities "shielded by the benefits and protections of the forum's laws." Burger King Corp., 471 U.S. at 476, 105 S. Ct. at 2184. In fact, considering that a California lawyer's handling of funds in a California client trust account is undoubtedly subject to numerous strictures of California law, it is difficult to understand how defendant purposefully might avail himself of the protections of Oregon law regarding the subject matter of this action. In sum, we conclude that the circuit court's decision regarding lack of personal jurisdiction was correct under any version of the facts placed in the record by the parties. We therefore are able to affirm its decision. The decision of the Court of Appeals is affirmed on different grounds. The judgment of the circuit court is affirmed. [1] ORCP 21A provides in part: "Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion to dismiss: * * * (2) lack of jurisdiction over the person * * *." [2] ORCP 4A provides: "A court of this state having jurisdiction of the subject matter has jurisdiction over a party served in an action pursuant to Rule 7 under any of the following circumstances: "A. In any action, whether arising within or without this state, against a defendant who when the action is commenced: "* * * * * "(4) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise[.]" [3] ORCP 4C and L provide: "A court of this state having jurisdiction of the subject matter has jurisdiction over a party served in an action pursuant to Rule 7 under any of the following circumstances: "* * * * * "C. In any action claiming injury to person or property within this state arising out of an act or omission within this state by the defendant. "* * * * * "L. Notwithstanding a failure to satisfy the requirements of sections B through K of this rule, in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States." [4] No record was kept of the oral proceedings. [5] Plaintiff has made no separate argument to this court regarding ORCP 4A(4) or 4C. [6] We express no opinion as to whether plaintiff has sufficiently alleged the existence of a contract. Plaintiff makes no separate argument regarding the claims for conversion and money had and received claims. [7] See Annotation, "Minimum Contacts" Requirements of Fourteenth Amendment's Due Process Clause (Rule of International Shoe Co. v. Washington) for State Court's Assertion of Jurisdiction Over Nonresident Defendant, 62 L. Ed. 2d 853 (1981 Supp.1994).

de66b0584c6579f535643e27cd546ccdb99665863d03be4b40f3a3640f295423

1995-09-08T00:00:00Z

9f886cce-a344-4055-bd23-8681e9a8bd87

Fuls v. SAIF

321 Or. 151, 894 P.2d 1163

oregon

Oregon Supreme Court

894 P.2d 1163 (1995) 321 Or. 151 In the Matter of the Compensation of Robert G. Fuls, Claimant. Robert G. FULS, Petitioner on Review, v. SAIF CORPORATION, Donald R. Garner, Travelers Insurance Company and Sunset Glass Company, Respondents on Review. WCB 91-01005, 90-17213; CA A76999; SC S41662. Supreme Court of Oregon, In Banc. Argued and Submitted March 8, 1995. Decided May 25, 1995. *1164 Edward J. Harri, Salem, argued the cause for petitioner on review. With him on the petition was Stanley Fields, of Law Offices of Michael B. Dye, Salem. Michael O. Whitty, Sp. Asst. Atty. Gen., Salem, argued the cause for respondents on review SAIF Corp. and Donald R. Garner. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Jerald P. Keene, of Roberts, Reinich, MacKenzie, Healey & Wilson, P.C., Portland, argued the cause and filed the briefs for respondents on review Travelers Ins. Co. and Sunset Glass Co. VAN HOOMISSEN, Justice. In this case we are called on to decide whether claimant's mental disorder resulting from an occurrence at work is an "injury" or an "occupational disease" for purposes of the Workers' Compensation Law. See ORS 656.005(7) (regarding compensable injuries);[1] ORS 656.802 (regarding occupational diseases).[2] We also must decide whether claimant's mental disorder was compensable. The Court of Appeals affirmed an order of the Workers' Compensation Board (Board) denying compensability. Fuls v. SAIF, 129 Or. App. 255, 879 P.2d 869 (1994). For the reasons that follow, we affirm. The facts are not disputed. In 1976, claimant sustained an on-the-job injury. Diagnostic tests were carried out between 1976 and *1165 1985 which revealed no pathological, orthopedic, or neurological problem. A number of examiners who saw claimant believed that his condition may have had a strong psychological component. However, before February 1990, no treatment for that condition was recommended. In 1989, claimant went to work for SAIF's insured, Chuck's Texaco, as an attendant. Based on an incident that occurred at work on February 23, 1990, claimant filed a workers' compensation claim with SAIF's insured.[3] SAIF denied that claim, and claimant sought a hearing. The referee found in part: The referee concluded that "the shaking incident of February, 1990, is not a material contributing cause of any new physical injury" and, therefore, "that claimant has not established the compensability of any new injury." The referee further found that, "[i]n the absence of any objective findings of any worsening of [his] left shoulder condition, claimant has failed to establish an aggravation of the 1976 injury." However, concerning claimant's conversion reaction, the referee found: "* * * * * "* * * * * The referee rejected SAIF's argument that ORS 656.802, specifically subsection (3) of that statute relating to occupational diseases in the form of mental disorders, applied to claimant's claim for his conversion reaction. Accordingly, the referee set aside SAIF's "de facto " denial of claimant's claim for a conversion reaction. SAIF requested review by the Board, seeking to set aside the portion of the referee's order regarding the compensability of claimant's psychological condition. Claimant did not seek Board review of the referee's order. On review, the Board adopted the referee's findings of fact. The Board described the event as follows: The Board agreed with SAIF that claimant's claim should be analyzed as an occupational disease claim. The Board reversed the referee's conclusion that claimant's conversion reaction was compensable. Claimant sought judicial review.[6] The Court of Appeals affirmed, concluding that, because claimant is seeking to establish the independent compensability of a mental disorder, his claim must be analyzed as an occupational disease claim under ORS 656.802. Fuls, 129 Or.App. at 261, 879 P.2d 869. The court found that claimant's claim was for an "occupational disease" and agreed with the Board's determination that claimant's February 1990 workplace incident was not compensable, because the greeting from the customer "was not outside the range of behavior or physical interaction that occurs in every working situation." Id. at 262, 879 P.2d 869. On review in this court, claimant argues that his condition is an injury, not an occupational disease, because it had a "sudden onset" *1167 and, therefore, that ORS 656.802(3) does not apply. Alternatively, claimant argues that, if ORS 656.802(3) does apply, "conditions generally inherent in every working situation" cannot include acts such as the customer's shaking of claimant, which claimant describes variously as "unconsented," "unlawful," "criminal," or "tortious." SAIF responds that the text of ORS 656.802(3) establishes that any mental disorder must be treated as an occupational disease under the Workers' Compensation Law, and that this interpretation is consistent with this court's recent pronouncements in Mathel v. Josephine County, 319 Or. 235, 241-42, 875 P.2d 455 (1994), and DiBrito v. SAIF, 319 Or. 244, 875 P.2d 459 (1994). SAIF also asserts that the text, context, and legislative history of ORS 656.802(3) indicate that a customer's physical greeting of a worker, such as the one shown here, is a condition generally inherent in every working situation and, thus, a mental disorder caused by such conduct is not compensable. This court's task is to discern the legislative intent behind ORS 656.802, in order to determine whether a condition such as claimant's is to be treated as an "occupational disease" under that statute. The text of that statute is the starting point for interpretation. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (describing method of statutory construction). Claimant argues that, despite the language of ORS 656.802, a "sudden onset injury in the form of a mental disorder" should not be analyzed under ORS 656.802 but, rather, should be treated as an "injury," as defined in ORS 656.005(7). It is true that this court's cases have drawn a distinction between occupational diseases and occupational injuries along the lines that occupational diseases are gradual rather than sudden in onset. See, e.g., James v. SAIF, 290 Or. 343, 624 P.2d 565 (1981) (so indicating); see also Mathel, 319 Or. at 240-42, 875 P.2d 455 (citing James, noting that heart attack was sudden onset condition, and rejecting argument that it was an occupational disease). However, ORS 656.802(1)(b) specifically includes "[a]ny mental disorder" within the definition of "occupational disease," without regard to the suddenness of its onset. Claimant concedes that the condition for which he seeks compensationconversion disorderis a mental disorder. See Diagnostic and Statistical Manual of Mental Disorders 257-59 (3d ed (revised) 1987) (describing features of "conversion disorder" or "hysterical neurosis, conversion type"). Our analysis of the statute proceeds from that concession. Because the sole condition for which claimant seeks compensation is a "mental disorder" by claimant's concession, his claim is not compensable, pursuant to the unambiguous terms of ORS 656.802(3), unless paragraphs (a) through (d) of that subsection are satisfied. We next turn to the question whether claimant's mental disorder is compensable under ORS 656.802.[7] The dispute centers on ORS 656.802(3)(b), over whether the conditions that produced claimant's need for treatment for his conversion disorder were "conditions other than conditions generally inherent in every working situation." Before we analyze the statute, we reiterate the Board's finding as to the nature of the "employment conditions" that produced claimant's conversion disorder. A customer, with whom claimant was acquainted, "walked up behind him and greeted him by grasping his upper arms and briefly shaking him." Our purpose is to discern whether the legislature intended to exclude mental disorders produced by such contacts from compensation under the Workers' Compensation Law, on the basis that such contacts are "conditions generally inherent in every working situation." PGE, 317 Or. at 611-12, 859 P.2d 1143. We turn to the text of the relevant portion of ORS 656.802(3): "conditions generally inherent in every working situation." Something that is "inherent" is "structural or involved in the constitution or essential character of something: belonging by nature or *1168 settled habit." Webster's Third New Int'l Dictionary (unabridged ed 1993), 1163. "Every" includes "each individual or part of a class or group whether definite or indefinite in number without exception." Id. at 788. We conclude that the phrase "conditions generally inherent in every working situation" describes conditions which, by nature or settled habit, arise in all working situations, without exception. However, the presence of the word "generally" at the beginning of this phrase qualifies that meaning. As used in this context, "generally" means "in a reasonably inclusive manner: in disregard of specific instances and with regard to an overall picture." Id. at 945. The presence of the word "generally" at the beginning of the phrase may indicate a legislative intent to disregard specific instances and focus, rather, on the overall picture of what occurs in working situations. To do so, however, would alter the "without exception" meaning of the term "every." Because "every" and "generally" as used in the text have somewhat conflicting meanings, and the context sheds no light on the legislature's intent in choosing this phrase, we turn to the legislative history of this provision. ORS 656.802(3) was amended significantly by House Bill 2271 in 1987, adding the criterion regarding "conditions generally inherent in every working situation." Or Laws 1987, ch 713, § 4. As introduced, this provision indicated that "a mental disorder is not compensable under this chapter * * * unless the employment conditions producing the psychologic stress are extraordinary in nature." At a public hearing, it was suggested that the term "extraordinary" was too vague and, as a result, the House Committee on Labor amended the phrase to read: "Unless the employment conditions producing the mental disorder are conditions other than conditions inherent in every working situation." Public Hearing, House Committee on Labor, March 6, 1987, Tape 48, Side A; A-Engrossed House Bill 2271.[8] In response to other concerns brought out at public hearings, that the "inherent in every working situation" language was too narrow, the Senate Committee on Labor added the qualifier of "generally" to the beginning of the phrase. Senator Hill said that this change was proposed, because the current language would make it difficult for employers to defend mental disorder claims; it would be impossible to demonstrate that a condition was inherent in absolutely every working situation. Senate Committee on Labor, April 23, 1987, Tape 120, Side A. See also Senate Committee on Labor, June 8, 1987, Exhibit A (Chairman Hill's proposed amendment); B-Engrossed House Bill 2271. Although the legislative history reveals that the legislature considered how broad or narrow this exception should be, it does not reveal whether the legislature intended the specific type of condition at issue in this case to be excluded or included from "conditions generally inherent in every working situation." From the context and the legislative history of this provision, we are able to discern, though, that the legislature intended to curtail compensable claims for mental disorders based on on-the-job stressors. See, e.g., Public Hearing, Senate Committee on Labor, April 23, 1987, Tape 120, *1169 Side A (comments by legislators that bill was intended to limit stress claims).[9] Based on this information, we turn to the question whether the Board's decision that claimant's mental disorder was the result of "conditions generally inherent in every working situation" appears to be within the legislative policy that inheres in the statutory term. Human interactions are "conditions generally inherent in every working situation."[10] Although the amount and type of interaction with supervisors, co-workers, or customers may vary depending on the type of working situation, some interaction is inherent. Human interaction involves greeting. Claimant has asserted that the customer's greeting of him, which is at issue in this case, can be seen as tortious, and that it would be against public policy to hold that such contact could be conditions generally inherent in every working situation. We reject the characterization of the conduct in question as tortious, because the agency's unchallenged findings and claimant's own statements show that the greeting was simply thata greetingwhich lacked any intent on the part of the customer to bring about harm. See generally Bakker v. Baza'r, Inc., 275 Or. 245, 249, 551 P.2d 1269 (1976) (battery requires actor to have intended to bring about a harmful or offensive contact or put the other party in apprehension thereof). We also reject claimant's similar assertion that the conduct in question could have constituted a criminal assault, because claimant concedes that he did not suffer a physical injury. See ORS 163.160-.185 (assault requires "physical injury"). We affirm the Board's characterization of this type of conduct by a person with whom one is expected to interact in the workplace, which does not result in a physical injury, as a condition that is "generally inherent in every working situation."[11] Thus, claimant's need for treatment of his mental disorder brought about by this greeting is not compensable under ORS 656.802. *1170 The decision of the Court of Appeals is affirmed. The order of the Workers' Compensation Board is affirmed. [1] ORS 656.005(7) provides: "(a) A `compensable injury' is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings, subject to the following limitations: "(A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition. "(B) If a compensable injury combines with a preexisting disease or condition to cause or prolong disability or a need for treatment, the resultant condition is compensable only to the extent the compensable injury is and remains the major contributing cause of the disability or need for treatment. "(b) `Compensable injury' does not include: "(A) Injury to any active participant in assaults or combats which are not connected to the job assignment and which amount to a deviation from customary duties; "(B) Injury incurred while engaging in or performing, or as the result of engaging in or performing, any recreational or social activities primarily for the worker's personal pleasure; or "(C) Injury the major contributing cause of which is demonstrated to be by clear and convincing evidence the injured worker's consumption of alcoholic beverages or the unlawful consumption of any controlled substance, unless the employer permitted, encouraged or had actual knowledge of such consumption. "(c) A `disabling compensable injury' is an injury which entitles the worker to compensation for disability or death. "(d) A `nondisabling compensable injury' is any injury which requires medical services only." [2] ORS 656.802 provides in part: "(1) As used in this chapter, `occupational disease' means any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death, including: "* * * * * "(b) Any mental disorder which requires medical services or results in physical or mental disability or death. "* * * * * "(3) Notwithstanding any other provision of this chapter, a mental disorder is not compensable under this chapter: "(a) Unless the employment conditions producing the mental disorder exist in a real and objective sense. "(b) Unless the employment conditions producing the mental disorder are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer, or cessation of employment. "(c) Unless there is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community. "(d) Unless there is clear and convincing evidence that the mental disorder arose out of and in the course of employment." [3] Claimant also filed a claim with Travelers Insurance Company, alleging an aggravation of his 1976 injury. That claim was denied, and the Workers' Compensation Board upheld that denial. Although Travelers is a party to the litigation before this court, claimant's aggravation claim is not at issue here. In this opinion, the term "insurers" is used to describe both SAIF and Travelers. [4] At the hearing, claimant described the customer's physical contact with him as "trying to be a friendly gesture" by the customer, who was a co-worker of claimant's wife, with whom claimant was acquainted. Claimant was asked: "So you wouldn't have anticipated he meant to do any harm to you at all?" Claimant replied, "No, no way." The emergency room physician was unable to find any physical cause for claimant's subsequent collapse and diagnosed his condition as "conversion hysteria following a mild shaking by another person." Evidence was received indicating that claimant's treating physician, Dr. Paluska, believed that claimant "had a conversion reaction even before the shaking incident. This has been ongoing for years." Dr. Paluska also opined that the February 1990 event was the major contributing cause of claimant's need for treatment. "The essential feature of [conversion disorder] is an alteration or loss of physical functioning that suggests physical disorder, but that instead is apparently an expression of a psychological conflict or need." Diagnostic and Statistical Manual of Mental Disorders 257 (3d ed (revised) 1987). [5] The referee's ultimate findings of fact were: "Claimant sustained no new physical injury as a result of the February, 1990 incident. There are no objective findings of any injury. "Claimant's compensable left shoulder condition did not worsen after the February, 1990 incident. He was not more disabled and he did not need medical treatment for it. Moreover, there are no objective findings of any worsening and no pathological worsening of the underlying condition. "Claimant has had a psychological component to his continuing problems since at least 1978, in varying degrees. The February 1990 incident produced a conversion reaction or hysteria, and resulted in a worsening of the prior psychological condition. The 1976 shoulder injury is not a material contributing cause of the need for treatment or disability resulting from the conversion reaction." [6] The Board relied on SAIF v. Hukari, 113 Or. App. 475, 480, 833 P.2d 1307, rev. den. 314 Or. 391, 840 P.2d 709 (1992), which had held that a claim that "a condition is independently compensable because it was caused by on-the-job stress, regardless of the suddenness of onset or the unexpected nature of the condition, and regardless of whether the condition is mental or physical, must be treated as a claim for an occupational disease under ORS 656.802." (Emphasis in original.) The Court of Appeals noted, however, that this court has "rejected the holding [in Hukari] that any claim based on stress must be analyzed as an occupational disease claim." Fuls, 129 Or.App. at 256, 879 P.2d 869 (citing Mathel v. Josephine County, 319 Or. 235, 875 P.2d 455 (1994)). [7] The parties do not dispute whether claimant's conversion disorder has satisfied the conditions set forth in ORS 656.802(3)(a), (c), and (d), and we do not address those provisions. [8] The following discussion took place in public hearings in the House Committee on Labor: HENRY DRUMMONDS: "Mr. Chairman, members of the committee, I am speaking on behalf of the Oregon Education Association in these remarks. In support [of], with certain modifications, the so-called House task force bill 2271. * * "The second proposed amendment is in the area specifically defining the types of mental stress that can be compensable. And we basically propose to support the task force bill in its entirety, with the proposed amendment that you see underscored there in section 2B. What we are proposing to do is to delete the phrase where it says `unless the employment conditions producing the psychological stress are extraordinary in nature,' which is an exception that is written into this bill, we propose to change the phrase `extraordinary in nature' to a phrase again taken directly word for word from the bill sponsored by Senator Hill and Representative Kotulski, `conditions other than conditions which are generally inherent in every working situation.' * * *" There was no explanation why the language proposed by Mr. Drummonds, "generally inherent in every working situation," was altered to leave out the word "generally" in the A-Engrossed version of the bill. [9] The following discussion took place in a public hearing in the Senate Committee on Labor: "[REPRESENTATIVE SHIPRACK:] Sub b says that they've got to be conditions other than those conditions inherent in any, pardon me, in every working situation. So that means that they would have to be something that everyone would, everyone would agree are inherent to what you see everyday in the workplace. "[SENATOR HANNON:] If I may stop you just for a moment, Representative. Could that same sort of standard be used for office worker versus say like a firefighter? Would the same basis, standard, apply in the workplaces? "[REPRESENTATIVE SHIPRACK:] The intent there, Senator, is that in the workplace, you are expected to show up on time, you are to cooperate, perhaps, with your fellow employees, you are expected to have certain things unrelated to the specific occupations involved. This may also address itself to the fact that perhaps in every, in every experience you will have times of layoff. It does notthe intent of this is not to say a firefighter has a more stressful job than someone digging ditches, perhaps, although occasionally * * * be that way. We didn't want to get into that. That's not the intent of the House, to say that this profession is something, and this isn't. But there are certain duties in the workplace that are inherent to every job. And that's what we're trying to say there." "* * * * * "[REPRESENTATIVE SHIPRACK:] We're not getting rid of stress disabilities in this bill, as some people may have said. We're not repealing stress disabilities. What we are doing, we are certainly tightening it up. I will grant you that. I think it, perhaps, in a few random cases, it has, there has been some problems. In the definitions, what you see in sub B is one thing that, I guess, is probably the part of the definition that will do the most to clarify what the intent of the house is." Public Hearing, Senate Committee on Labor, April 23, 1987, Tape 120, Side A (emphasis added). [10] Insurers do not argue that claimant's claim is barred under the provision of ORS 656.802(1), which limits occupational disease claims to things "caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment." We express no opinion as to the applicability of this section to the present case. [11] We note, however, that if an overzealous greeting (such as a handshake that injures the fingers or a pat on the back that knocks over the recipient) results in a physical injury, the compensation claim would be for an "injury," ORS 656.005(7), rather than for an occupational disease, and would not be subject to the restrictions found in ORS 656.802(3)(b).

91fbe3ac22a4c6277bce96098cc97fdaba726e04cc71a34cc185510dec2d7984

1995-05-25T00:00:00Z

a5a9d160-96e2-44b9-94d2-190431bc82e6

Stevens v. State

322 Or. 101, 902 P.2d 1137

oregon

Oregon Supreme Court

902 P.2d 1137 (1995) 322 Or. 101 Clifford Wayne STEVENS, Petitioner on Review, v. STATE of Oregon, Respondent on Review. CC 16-92-04672; CA A80158; SC S41633. Supreme Court of Oregon, In Banc. Argued and Submitted May 2, 1995. Decided September 28, 1995. *1138 Gary D. Babcock, Salem, argued the cause and filed the petition on behalf of petitioner on review. Ann Kelley, Assistant Attorney General, Salem, argued the cause on behalf of respondent on review. With her on the brief on the merits were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem. UNIS, Justice. The issue in this case is whether petitioner was denied adequate assistance of trial counsel in violation of Article I, section 11, of the Oregon Constitution and is, therefore, entitled to post-conviction relief, on the ground that his trial counsel failed to interview certain potential witnesses and chose not to have petitioner examined medically to determine whether he was impotent at the time of the alleged rape. We answer that question in the affirmative. On June 8, 1990, petitioner was indicted for rape in the first degree, ORS 163.375 (1989).[1] The indictment alleged that petitioner *1139 raped the complaining witness, a 12-year-old girl with a learning disability, while driving her to school on March 5, 1990. Petitioner's trial to the court essentially was a credibility contest between the complaining witness and petitioner. Petitioner was the landlord and a friend of the complaining witness's family, and he drove the complaining witness to and from school regularly. The complaining witness testified that, on the way to the school one day, petitioner stopped his van on the side of the road, got out, came around to her side of the van, and unfastened his pants. The complaining witness further testified that, while standing on the ground next to the vehicle, petitioner held the complaining witness's hands to his "privates" and put his "privates" inside her "privates" a few centimeters while she continued to sit on the seat of the van. She testified that the alleged incident lasted for about five minutes, with petitioner maintaining an erection. The complaining witness also testified that petitioner then dropped her off at school, where she attended three classes from 8:40 a.m. until 11:00 a.m., and that she reported the alleged incident that day to her physical therapist and to Pattison, one of her teachers. The complaining witness's parents testified that, when the complaining witness came home, she was agitated, said she had a headache, and rested for a few hours before dinner. A physician called by the state testified that, when he examined the complaining witness two days after the alleged incident, he found no physical evidence of rape or trauma. Petitioner testified that he had no sexual contact with the complaining witness. A criminalist called by the defense testified that laboratory tests on the jeans and underpants worn by the complaining witness on the day of the alleged incident revealed nothing of significance. Trial counsel made a visual demonstration of petitioner's van to the trial court. Trial counsel asserted that, due to the height of the seat of the van, it was unlikely that the alleged incident could have occurred as described. The trial court found petitioner guilty of the lesser included offense of sexual abuse in the second degree, ORS 163.415.[2] On appeal, the Court of Appeals affirmed petitioner's conviction without opinion. State v. Stevens, 111 Or.App. 452, 826 P.2d 649 (1992). Petitioner sought post-conviction relief pursuant to ORS 138.530,[3] asserting that his trial counsel was constitutionally inadequate due to his failure to investigate the case properly. Specifically, petitioner challenged his trial counsel's failure to pursue witnesses who might have impeached the complaining witness and his decision not to obtain a medical diagnosis that petitioner was impotent at the time of the alleged rape. At the post-conviction hearing, petitioner's trial counsel testified that he had not interviewed any members of the complaining witness's *1140 school's staff or her classmates. The following testimony by members of the school's staff and by the complaining witness's classmates was presented at the post-conviction hearing, but not at the trial. Two teachers and a teacher's assistant, who conducted the complaining witness's classes on the day of the alleged incident, testified as to the complaining witness's behavior after the alleged rape. Pattison testified that, contrary to the complaining witness's trial testimony, the complaining witness had not reported the incident to him on the day of the alleged rape. He explained that the complaining witness was in his class with about ten other learning disabled students and that the class was supervised by him, another teacher, and a teacher's assistant who facilitated intensive guidance and study. Pattison stressed that the teachers took great care in trying to identify any signs of abuse or mental trauma in the students, and he stated that the complaining witness behaved normally on the day of the alleged rape. Bauder, another teacher who supervised the complaining witness on the day of the alleged incident, testified that the complaining witness generally confided in her about the complaining witness's home life and problems with her mother, but that she did not report the alleged rape to her on that day. Bauder also testified that there was a stringent school policy in place that required the teachers to report immediately any suspected mistreatment or abuse of a student to the school counselor or administrator and that she noticed nothing out of the ordinary on that day. Taylor, a teacher's assistant who supervised the complaining witness on the day of the alleged rape, testified that the complaining witness did not report the incident to her and that the complaining witness behaved normally on that day. Four of the complaining witness's classmates testified at the post-conviction hearing. Each classmate related a different account of the alleged incident given by the complaining witness. S testified that the complaining witness told him that petitioner "hurt" her at petitioner's home and that her mother was going to sue petitioner for "a lot of money." S testified that he did not know when that conversation took place. M testified that the complaining witness told him that petitioner had raped her and scraped her with a "tool" and that she was going to sue petitioner for money. M also testified that he could not specify a time when that conversation took place. E testified that, on the day after the alleged rape, the complaining witness told her that petitioner had hurt her at his house. H testified that the complaining witness had told her at least two years before the alleged incident that a masked man, possibly petitioner, had grabbed her, taken her into his house, and raped her. Petitioner also offered evidence at the post-conviction hearing about his claim of impotence. Petitioner testified that he told his trial counsel before trial that he was incapable of committing the rape because he had been impotent for several years. As previously stated, the complaining witness testified at trial that petitioner maintained an erection during the alleged rape. At the post-conviction hearing, petitioner offered an affidavit from a urologist regarding the urologist's medical examination of petitioner. The urologist opined that petitioner had been impotent for many years and was unable to attain an erection at the time of the alleged rape. Petitioner's trial counsel testified at the post-conviction hearing that petitioner's conviction of a lesser included offense was proof that his legal assistance was adequate. He explained that, after he had read the police reports, he interviewed a number of witnesses and twice went to the scene of the alleged incident. However, trial counsel did not identify those witnesses, and he conceded that he did not interview any of the complaining witness's teachers or classmates. Trial counsel also testified that, because he believed that petitioner's trial would be a credibility contest between petitioner and the complaining witness, his theory of defense was simply that petitioner's word would have to prevail over the word of the complaining witness. Trial counsel then testified that, in following his defense theory, his failure to obtain a medical diagnosis to determine whether petitioner was impotent at the time of the alleged rape, as petitioner had advised *1141 him, was a tactical decision, because he believed that presenting such evidence to the trial court would risk petitioner's credibility. At the conclusion of the hearing, the post-conviction court entered a judgment denying relief. The court found that petitioner had been provided with adequate assistance of counsel, because trial counsel did not lack reasonable skill and judgment in defending petitioner. Petitioner appealed. The Court of Appeals affirmed. Stevens v. State, 129 Or.App. 533, 879 P.2d 893 (1994). That court held that, although petitioner's trial counsel had failed to exercise reasonable professional skill and judgment by not interviewing the complaining witness's teachers and classmates, petitioner had failed to demonstrate that he had been "substantially prejudiced" by trial counsel's inadequacy. Id. at 537, 879 P.2d 893. The court further held that petitioner's trial counsel was not constitutionally inadequate for failing to present medical evidence that petitioner was impotent at the time of the alleged rape, because the court could not say as a matter of law that trial counsel "did not make a tenable tactical choice." Id. at 538, 879 P.2d 893. We allowed petitioner's petition for review. Petitioner asserts that trial counsel's failure to interview potential witnesses and his decision not to arrange for a medical examination of petitioner constituted inadequate assistance of counsel in violation of his right to counsel under Article I, section 11, of the Oregon Constitution and under the Sixth Amendment to the Constitution of the United States.[4] As noted, ORS 138.530(1)(a) provides that post-conviction relief shall be granted when a petitioner establishes a "substantial denial" of his or her "rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void." We first consider whether petitioner was denied his rights under the Oregon Constitution. See State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) (setting forth methodology). Article I, section 11, of the Oregon Constitution provides in part: Article I, section 11, of the Oregon Constitution "call[s] for an adequate performance by counsel of those functions of professional assistance which an accused person relies upon counsel to perform on his behalf." Krummacher v. Gierloff, 290 Or. 867, 872, 627 P.2d 458 (1981). To be entitled to post-conviction relief on the basis of inadequate assistance of counsel, a petitioner must show, "by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result." Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991). There is no single, succinct, clearly defined standard for determining adequacy of counsel. Krummacher, 290 Or. at 874, 627 P.2d 458. Rather, there merely are guidelines for the courts to use in the determination of each case. The Oregon Constitution does not give a criminal defendant the right to a perfect defense, but "it requires that the lawyer do those things reasonably necessary to diligently and conscientiously advance the defense." Id. Thus, while an appellate court usually will not second-guess the tactical decisions of a lawyer in the course of representing a criminal defendant, the exercise of reasonable professional skill and judgment generally requires an investigation that is legally and factually appropriate to the nature and complexity of the case so that the lawyer is equipped to advise and represent the client in an informed manner. Id. at 875, 627 P.2d 458. We therefore must consider whether petitioner's trial counsel's investigation was legally and factually appropriate to this case. In this case, there were no other witnesses to the alleged rape and no physical *1142 evidence of abuse or trauma. The case therefore necessarily turned on the credibility of the complaining witness and of petitioner. Petitioner's trial counsel failed to interview several witnesses whose testimony might well have had bearing on the complaining witness's credibility. The complaining witness's teachers and classmates were the first people with whom she had contact after the alleged rape. Their testimony would have impeached the complaining witness with her inconsistent accounts of the alleged rape. Their testimony also would have shown that the complaining witness mentioned repeatedly that she wanted to sue petitioner, giving her a possible motive to accuse petitioner falsely. Trial counsel's failure to interview the complaining witness's teachers and classmates prevented him from discovering those potential witnesses. In investigating a case, a lawyer inevitably is faced with choices as to what avenues of investigation to pursue. A "tactical decision" in the course of an investigation is a conscious choice by a lawyer either to take or to omit some action on the basis of an evaluation of the nature and complexity of the case, the likely costs and potential benefits of the contemplated action, and other factors. But the fact that a lawyer has made a "tactical decision" does not mean that the lawyer's choice meets the constitutional standard for adequate assistance of counsel. Indeed, this case illustrates the point. Considering the nature and complexity of this case, trial counsel's choice not to interview the complaining witness's teachers and classmates was a "tactical decision," but it did not result in adequate representation of petitioner. The complaining witness's statements to classmates suggested a possible motive to fabricate (i.e., obtain money through litigation). The teachers' testimony would have impeached the testimony of the parents of the complaining witness. The conflicting accounts to classmates regarding the location of the alleged rape would have impeached the complaining witness's account at trial. Medical evidence of impotence would have contradicted part of the complaining witness's testimony. Trial counsel's decision not to interview potential witnesses at the complaining witness's school was not a choice that was based on a reasonable evaluation of the likely costs and potential benefits of pursuing the investigation. Instead, it appears that trial counsel simply relied on the police report to identify the material witnesses. Taken together, the available information that trial counsel failed to gather could have a significant impact on the complaining witness's credibility. We conclude that trial counsel, in the course of representing petitioner, failed to exercise reasonable professional skill and judgment. That conclusion does not, however, end our inquiry. Not all lapses of professional skill and judgment entitle a defendant to post-conviction relief. Instead, "only those acts or omissions by counsel which have a tendency to affect the result of the prosecution can be regarded as of constitutional magnitude[.]" Trujillo, 312 Or. at 435, 822 P.2d 703, quoting Krummacher, 290 Or. at 883, 627 P.2d 458 (emphasis added).[5] We therefore must examine whether trial counsel's lack of reasonable professional skill and judgment prejudiced petitioner. Trujillo, 312 Or. 436-37, 822 P.2d 703. We have no hesitancy in holding that it did. As we have explained fully elsewhere, both aspects of trial counsel's inadequate performance denied petitioner highly valuable impeaching evidence from disinterested witnesses that would have called into question pivotal testimony of the complaining witness. This was evidence clearly having "a tendency to affect the result of the prosecution" of the case. We conclude that petitioner was prejudiced by trial counsel's inadequate assistance. Accordingly, we conclude that petitioner was *1143 denied adequate assistance of counsel in violation of Article I, section 11, of the Oregon Constitution. He is entitled to post-conviction relief as provided in ORS 138.520.[6] The decision of the Court of Appeals and the judgment of the circuit court are reversed. This case is remanded to the circuit court for further proceedings. [1] ORS 163.375 (1989), the statute in effect at the time of the alleged crime, provided: "(1) A person who has sexual intercourse with another person commits the crime of rape in the first degree if: "(a) The victim is subjected to forcible compulsion by the male; "(b) The female is under 12 years of age; "(c) The female is under 16 years of age and is the male's sister of the whole or half blood, his daughter or his wife's daughter; or "(d) The female is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness. "(2) Rape in the first degree is a Class A felony." [2] ORS 163.415 (1989) provided: "(1) A person commits the crime of sexual abuse in the second degree if the person subjects another person to sexual contact; and "(a) The victim does not consent to the sexual contact; or "(b) The victim is incapable of consent by reason of being under 18 years of age, mentally defective, mentally incapacitated or physically helpless. "(2) In any prosecution under subsection (1) of this section it is an affirmative defense for the defendant to prove that: "(a) The victim's lack of consent was due solely to incapacity to consent by reason of being under 18 years of age; and "(b) The victim was more than 14 years of age; and "(c) The defendant was less than four years older than the victim. "(3) Sexual abuse in the second degree is a Class A misdemeanor." [3] ORS 138.530 provides in part: "(1) Post-conviction relief pursuant to ORS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner: "(a) A substantial denial in the proceedings resulting in petitioner's conviction, or in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void." [4] The Sixth Amendment to the Constitution of the United States provides in part: "In all criminal prosecutions, the accused shall enjoy the right to * * * have the Assistance of Counsel for his defence." The Sixth Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S. Ct. 792, 795-97, 9 L. Ed. 2d 799 (1963). [5] The Court of Appeals seems to have misapplied the test stated in Krummacher v. Gierloff, 290 Or. 867, 627 P.2d 458 (1981), by requiring petitioner to prove that "substantial prejudice" resulted from trial counsel's inadequacy. Stevens v. State of Oregon, 129 Or.App. 533, 537, 879 P.2d 893 (1994). The court described "substantial prejudice" as omissions by trial counsel that "would have affected the outcome of the case." Id. We previously held, and now reaffirm, that the requisite "prejudice" consists of those acts or omissions "which would have a tendency to affect the result." Krummacher, 290 Or. at 883, 627 P.2d 458. [6] Because we decide this case under Article I, section 11, of the Oregon Constitution, we need not consider petitioner's arguments under the Sixth Amendment to the Constitution of the United States.

77591ecf964e866972bdd1c4b0b71956e2644562c50aecdbdf933ec5db120815

1995-09-28T00:00:00Z

435e07a9-2627-4b38-9b8b-12271dbe2279

Bartsch v. Kulongoski

322 Or. 335, 906 P.2d 815

oregon

Oregon Supreme Court

906 P.2d 815 (1995) 322 Or. 335 Ann Virginia BARTSCH, Petitioner, v. Theodore KULONGOSKI, Oregon Attorney General, Respondent. SC S42354. Supreme Court of Oregon, In Banc. Argued and Submitted July 11, 1995. Resubmitted July 20, 1995. Decided December 1, 1995. *816 George A. Riemer, Lake Oswego, argued the cause and filed the petition for petitioner. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for respondent. With him on the response were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. GILLETTE, Justice. This is an original proceeding in which petitioner challenges a ballot title for a proposed initiative measure. Petitioner is an elector who, in a timely manner, submitted written comments about the Attorney General's draft ballot title, pursuant to ORS 250.067(1). Accordingly, petitioner is entitled to seek a different title in this court. ORS 250.085(2) and (5). For the reasons that follow, we modify the Attorney General's ballot title. The proposed initiative measure provides: The Attorney General has certified the following ballot title for that proposed measure: Under ORS 250.085(5) (1993),[2] we review ballot titles for substantial compliance with *817 ORS 250.035 (1993) and former 250.039.[3] Petitioner challenges the Caption, the Question, and the Summary in the Attorney General's ballot title. Because she attacks all three portions of the Attorney General's ballot title under a single rationale, we discuss the issue raised in a unitary fashion. Petitioner argues: She takes this view based on the inclusion, in Section 2 of the proposed measure, of the parenthetical phrase, "(but not limited to)," in that portion of the section that authorizes "independent legal technicians and independent paralegals" to assist "in the selection of forms, and (but not limited to), drafting, and filling in the blanks on [pre]-printed legal forms, as well as computer software programs generating legal forms."[4] Petitioner points outcorrectlythat the terms "independent legal technicians" and "independent paralegals" have no established meaning in the law. From this, she reasons, the authorization in Section 2 of the proposed measure for "independent legal technicians" and "independent paralegals" to do certain things is, in reality, an authorization to any person to do those things. Petitioner thus is arguing that the parenthetical phrase, "(but not limited to)," "offers the possibility" (her words) that any person could engage in the full range of the practice of law without a license. In response, the Attorney General agrees that it is at least possible that the proposed measure goes as far as petitioner's reading of it suggests.[5] The Attorney General argues, however, that it is far more likely that the phrase that so troubles petitioner was meant to indicate only that "independent legal technicians" and "independent paralegals" would be permitted to perform other tasks of a nature similar to those enumerated regarding legal forms. When it appears that more than one reading of the wording of a contested measure is plausible, our precedents are clear that it is inappropriate for this court, at this stage, to resolve such an ambiguity in the measure. See, e.g., Aughenbaugh v. Roberts, 309 Or. 510, 516, 789 P.2d 656 (1990) (improper for court to choose between competing interpretations of measure at ballot title stage). Indeed, in the face of such ambiguity, use in the ballot title of the actual wording of the measure usually is the preferred choice under the requirements of ORS 250.035 (1993).[6]Ibid. *818 We say "usually," while noting that the Attorney General chose to depart from the usual path in this case. He did so because he was persuaded, by comments made by petitioner during the process for reviewing the original proposed ballot title, that use of the measure's terms"independent legal technicians" and "independent paralegals" would create a problem, because neither of those terms has any independent significance outside the measure itself. We agree with the Attorney General's choice. There is no other source of law that permits the Attorney General or this court (or, even more to the point, a voter) to know who is authorized to perform the acts enumerated by the proposed measure. Because the two terms at issue had no outside definition, any person choosing to call herself or himself either an "independent legal technician" or an "independent paralegal" would, by virtue of that self-designation, presumably be authorized to do whatever it is that the act authorizes such persons to do. It was for that reason that the Attorney General chose to amend his original proposed ballot title to state that "any person" would be authorized to do whatever it was that the measure otherwise permitted. Petitioner is not satisfied with the foregoing modification by the Attorney General, however. As already indicated, she is of the view that the measure permits the general practice of law by any person, and she therefore argues that the ballot title should say so. The Attorney General's position, as we understand it, is that, unlike the question of who may act pursuant to the terms of the proposed measure, the issue of what those persons may do is far more complex. Some things that those persons may do are clear. Othersthose covered by the parentheticalare subject to debate and, therefore, are not matters as to which it was appropriate for the Attorney General (or this court) to decide now. The Attorney General, therefore, concludes that an enumeration of those acts specifically authorized by the proposed measure, together with his verbatim use of the parenthetical that is the source of petitioner's concern, tells the voter as much as can be said about the measure's effect, without purporting to unravel the knot concerning the scope of the parenthetical. We disagree in part with both parties. Our disagreement is with both parties' common premise, viz., that the proposed measure plausibly may be read to authorize any person to practice law in respects other than those relating to legal forms. It is true that Section 1 of the proposed measure purports to repeal ORS 9.160, the provision of law that presently limits the practice of law to persons who are active members of the Oregon State Bar. But Section 2 of the proposed measure then would re-enact the substantive provisions of the present ORS 9.160, interlineating the matter concerning what "independent legal technicians" and "independent paralegals" may do. Although that rewording is not artfully doneindeed, it is scarcely comprehensiblewe do not perceive any basis for reading the new provision's inclusion of the parenthetical, "(but not limited to)," to do anything more than invoke the principle of ejusdem generis. That is, the measure would authorize the aforementioned persons to perform other tasks of like kind to those enumerated in the measure. We do not agree with the proposition that, were it to be enacted by the people, the proposed measure could be read to permit any person to practice law in this state. It follows from the foregoing that the Attorney General's ballot title as written does not comply substantially with the requirements of ORS 250.035 (1993). The ballot title must be modified to reflect the limited scope of the proposed measure. This can be accomplished with minimal adjustments to its present text: The Caption. The Caption is adequate as written. The Question. The phrase in the present Question, "perform other legal tasks", can be made more definite. It is modified to read, "perform similar legal tasks." The Summary. The inclusion of the phrase, "including but not limited to," in the last sentence of the Summary is not sufficiently definite. That last sentence is modified to read, "It also would allow any person to fill in legal forms for other people and *819 perform other similar legal services concerning forms without a license." Pursuant to ORS 250.085(5), we certify the following ballot title to the Secretary of State: Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(9). DURHAM, Justice, concurring. I join the majority's result, but write separately to express my reason. The majority certifies a ballot title that is different from that certified by the Attorney General. I believe that that action violates the separation of powers principle stated in Article III, section 1, of the Oregon Constitution. However, I concur with the majority's action for the reasons expressed in my concurring opinion in Sizemore v. Kulongoski, 322 Or. 229, 905 P.2d 1146 (1995) (Durham, J., concurring). I also have a concern about one of the majority's statements. The majority, citing Aughenbaugh v. Roberts, 309 Or. 510, 516, 789 P.2d 656 (1990), indicates that, in the face of ambiguous wording in an initiative, "use in the ballot title of the actual wording of the measure usually is the preferred choice under the requirements of ORS 250.035 (1993)." 322 Or. at 340, 906 P.2d at 817 (footnote omitted). The majority acknowledges that that passage from Aughenbaugh is inapplicable here, because the Attorney General, for valid reasons, chose not to explain the measure by repeating its terms. I agree. However, I question whether the court should follow a "preference" (to use Aughenbaugh's term) for using a measure's ambiguous words in describing, in the ballot title, the effect of a measure.[1] ORS 250.035(2), as amended by Oregon Laws 1995, chapter 534, section 1, provides: *820 "(d) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect." Three observations about the 1995 amendments are relevant. First, under that statute, the caption identifies the "subject matter" of the measure. Although the amendment substituted the phrase "subject matter" for the former statutory term "subject," see ORS 250.035(1)(a) (1993) (caption identifies measure's "subject"), that change does not alter the substance of the caption's function. Second, the legislature made no change in the function of the summary, which summarizes "the measure and its major effect." ORS 250.035(2)(c). Third, the legislature deleted the former requirement of a 20-word question that "plainly phrases the chief purpose of the measure," ORS 250.035(1)(b) (1993), and substituted the requirement of two statements describing the "result" of approval or rejection of the measure. I refer to those new requirements as "result" statements. The statute obligates the Attorney General and this court, in drafting the summary, to state the actual effect, i.e., the practical consequences of approval of the measure. As this court said in Fred Meyer, Inc. v. Roberts, 308 Or. 169, 175, 777 P.2d 406 (1989), "[t]he purpose of the [summary] is to help voters understand what will happen if the measure is approved, and * * * the [summary] should * * * be worded so that voters will understand the breadth of its impact." In addition, the "result" statements must describe explicitly the consequences of approval or rejection of the measure. In my view, the Attorney General and this court would not necessarily satisfy the statutory obligation to communicate the results or effects of a measure simply by repeating the measure's words. For example, if a measure proposes in terms to repeal one or more identified statutes, a ballot title summary that repeats only those operative words would fail to describe the measure's result or effect on the law or on the rights of affected persons.[2] The purpose of the result statements and the summary is to explain the consequences of adoption or rejection of the measure.[3] That point takes on an extra measure of importance if the text of the measure is ambiguous. The Attorney General or this court may conclude that the text of a measure is subject to more than one plausible interpretation and that, despite best efforts to discern the drafter's intention, the words of the measure do not make its meaning clear. If an ambiguity in a measure leaves its intention unclear, the Attorney General and this court do not satisfy the statutory obligation under ORS 250.035(2)(b), (c), and (d) to state the result and effect of the measure by repeating the measure's obscure terms in the ballot title, and thereby merely perpetuating those doubts. This case does not require a determination of the obligation of the Attorney General and this court in preparing result statements and a summary for an ambiguous initiative measure. Despite petitioner's argument to the contrary, the text of this measure does convey its meaning without ambiguity, as the majority holds. It may be that the ballot title for an ambiguous measure should identify the ambiguity and either acknowledge that the ballot title cannot state the result and effect of the measure, because it is ambiguous, or attempt to describe the anticipated results and effects under each of the disputed plausible interpretations of the measure. I express no opinion on the resolution of that issue, except to emphasize that repetition in a ballot title of ambiguous terms in a measure rarely would satisfy the statutory obligation *821 to state the measure's result and effect. I concur. UNIS, Justice, dissenting. I adhere to my view that, to the extent that ORS 250.085(5) (1993) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section 1, of the Oregon Constitution. Rooney v. Kulongoski (Elections Division # 13), 322 Or. 15, 55, 902 P.2d 1143 (1995) (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction. [1] We have set out the proposed measure verbatim, with one exception. Our insertion of "or" in Section 1 of the proposed measure is based on what appears to be the incontestable proposition that the drafters' intent in that section was to quote fully the present text of ORS 9.160. The interlineation of "[sic]" in sections 2 and 3 of the proposed measure calls attention to the problematical English, both in terms of grammar and punctuation, present in those two sections. [2] The 1995 legislature amended ORS 250.035 and ORS 250.085, and repealed ORS 250.039. Or.Laws 1995, ch. 534, §§ 1, 2 & 19. Those changes, however, do not apply to the ballot title in this case. See Or.Laws 1995, ch 534, § 20 (act applies to initiative petitions for which prospective petition is filed on or after effective date of act). The prospective petition in this case was filed before the effective date of the 1995 act, July 7, 1995. [3] ORS 250.035(1) (1993) provided: "The ballot title of any measure to be initiated or referred shall consist of: "(a) A caption of not more than 10 words which reasonably identifies the subject of the measure; "(b) A question of not more than 20 words which plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on the measure; and "(c) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect." Former ORS 250.039, repealed by Or.Laws 1995, ch. 534, § 19, required ballot titles to comply with a minimum standard of readability. [4] Petitioner takes no issue, beyond describing its English as "nonsensical," with what may (or may not) be a roundhouse swipe at the legal profession in the second sentence of Section 2: The proposed measure there states that no person "shall practice law * * * without being qualified to practice law unless that person is an active member of the Oregon State Bar." (Emphasis added.) The negative pregnant of this sentence, of course, is that it is all right to practice law, although one is not qualified to do so, so long as one is a member of the Bar. We would be more inclined to credit the sponsor of the measure with a certain amount of inspired whimsy, were it not for the glaring grammatical and punctuation errors in the balance of the proposed measure. [5] For her part, petitioner also appears to agree that the Attorney General's reading of the proposed measure is a permissible one. [6] Petitioner makes no separate assertion under former ORS 250.039. We therefore do not address that provision. [1] Aughenbaugh indicated that a measure's text should be used in a ballot title summary, "absent a compelling reason to the contrary," and cited Sampson v. Roberts, 309 Or. 335, 340, 788 P.2d 421 (1990), for that proposition. Sampson, in turn, cited Glerum v. Roberts, 308 Or. 22, 27, 774 P.2d 1093 (1989), for the same proposition. The point of Aughenbaugh, Sampson, and Glerum is that, in general, a ballot title should use the terms in the measure, not different terms that may convey a different meaning. Those cases do not hold that the terms in the measure necessarily convey its subject, purpose, or major effect. [2] Reed v. Roberts, 304 Or. 649, 748 P.2d 542 (1988), illustrates the point. In Reed, the ballot measure sought to repeal the statute that requires state Bar membership to practice law. In modifying the ballot title's question to state the measure's chief purpose, this court added text to explain that purpose and did not merely identify the statute that the measure would repeal. [3] See ACLU v. Paulus, 282 Or. 547, 550, 580 P.2d 171 (1978) ("It is part of the function of the ballot title to explain the purpose of a legal text that otherwise is obscure to laymen, so far as this is possible without prejudging future disputes about its meaning").

63dff7d6fff7cf10de07fdcaac6afc6c29cbbb8d320b1f195d1082351af94b92

1995-12-01T00:00:00Z

c97d8940-4d46-4b2c-8294-9e70fd1b749f

Gte Northwest v. Public Utility Com'n

321 Or. 458, 900 P.2d 495

oregon

Oregon Supreme Court

900 P.2d 495 (1995) 321 Or. 458 GTE NORTHWEST, INCORPORATED, Petitioner on Review, v. PUBLIC UTILITY COMMISSION OF OREGON, Respondent on Review, and MCI Telecommunications Corporation, Intervenor-Respondent. PUC 98-852; CA A81647; SC S41791. Supreme Court of Oregon, In Banc. Argued and Submitted March 8, 1995. Decided August 24, 1995. *496 Richard E. Potter, Everett, WA, argued the cause for petitioner on review. With him on the petition were Timothy J. O'Connell, Everett, WA, and James M. Brown, of Enfield, Guimond, Brown & Collins, Salem. Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Charles L. Best, Portland, filed a brief on behalf of amicus curiae U.S. West Communications, Inc. Barbee B. Lyon and Michael M. Morgan, of Tonkon, Torp, Galen, Marmaduke & Booth, Portland, filed a brief on behalf of amicus curiae Oregon Independent Telephone Ass'n. Robert W. Childress, Portland, filed a memorandum on behalf of amicus curiae Portland General Elec. Co. *497 Thomas H. Nelson, of Stoel Rives Boley Jones & Grey, Portland, filed a memorandum on behalf amicus curiae PacifiCorp. GRABER, Justice. GTE Northwest, Inc. (GTE), challenges, under ORS 183.400,[1] certain rules adopted by the Public Utility Commission (PUC). For the following reasons, we hold that the challenged rules are invalid. In June 1993, the PUC adopted rules that created a regulatory framework for telecommunications, known as the Open Network Architecture (ONA). Those rules have been codified at OAR chapter 860, division 35. As pertinent here, the ONA relates to two types of competitors in the telecommunications marketlocal exchange carriers (LECs) and enhanced service providers (ESPs). A single entity may be both an LEC and an ESP, depending on the services that it provides. See OAR 860-35-020(14) (defining ESPs). LECs provide basic telecommunications services within geographic boundaries established by the PUC. See id. at § (18) (defining LECs). "Basic services" are those services that "provide[ ] transmission capacity for the movement of information"; they include "data processing, computer memory or storage, switching techniques and other activities which facilitate the movement of information." Id. at § (4). ESPs provide "enhanced services." Id. at § (14). "Enhanced services" are those services that "employ[ ] computer processing applications that act on the format, content, code, protocol or similar aspects of the customer's transmitted information," provide customers with "additional, different, or restructured information," or "involve customer interaction with stored information." Id. at § (13). Enhanced services include "voice messaging" and "protocol translation between customer equipment or software." Ibid. ESPs provide only enhanced services and must utilize LECs' networks to do so. Id. at § (14). GTE is an LEC. GTE objects to portions of the ONA that provide for "collocation." OAR 860-35-020(8) provides: "`Collocation' means a service, offered by a LEC, which provides for placement and installation of a customer's equipment, software, and databases on LEC premises. Premises include central offices, remote network facilities, or any other similar location owned by the LEC. The equipment, software, and databases are owned by the customer." In particular, GTE challenges the validity of OAR 860-35-020(8), OAR 860-35-070(5), and OAR 860-35-110 (the last two of which are set out in the appendix, in pertinent part). That aspect of the regulatory scheme of the ONA is complex but, for our purposes, may be summarized as follows. The ONA requires an LEC to allow an ESP that complies with certain delineated procedures either to "collocate" or to "virtually collocate" on an LEC's property.[2] OAR 860-35-070(5); OAR 86-035-110(1). If an ESP chooses to collocate, an LEC must allow the ESP to occupy a portion of the LEC's *498 property for the ESP's equipment. OAR 860-35-110(4). If an ESP chooses to virtually collocate, an LEC must obtain and place equipment on the LEC's property for that particular ESP's needs. OAR 860-35-110(5), (6). Virtual collocation differs from collocation in that, when virtual collocation occurs, the LEC owns the equipment being used by the ESP; by contrast, when collocation occurs, the ESP owns the equipment that is placed on the LEC's property. The ONA provides that the LEC is to be reimbursed for both collocation and virtual collocation. OAR 860-35-040; OAR 860-350-060. GTE challenges only the rules regarding collocation. GTE does not challenge the rules regarding virtual collocation or the adequacy of the compensatory aspect of the ONA. GTE argues that the PUC lacked the statutory authority to promulgate the rules regarding collocation because, according to GTE, they constitute a physical invasion, and thus a taking under Article I, section 18, of the Oregon Constitution, and the Fifth and Fourteenth Amendments to the Constitution of the United States.[3] From that premise, GTE then argues that, because the PUC lacks the express eminent domain authority that is required before an agency may effect a taking, the rules are beyond the PUC's statutory authority, no matter how much compensation would be paid under them. GTE brought a challenge to the collocation rules in the Court of Appeals under ORS 183.400. The Court of Appeals concluded that the challenged rules did not effect a taking and, thus, held that those rules were valid. GTE Northwest, Inc. v. Public Utility Commission, 130 Or.App. 637, 645, 883 P.2d 255 (1994). For the reasons that follow, we reverse. This case involves judicial review of an agency's rule under ORS 183.400, quoted ante at note 1. Under ORS 183.400, the appellate court may declare a rule invalid if (1) the rule was adopted without compliance with applicable statutory procedures, (2) the rule exceeds the statutory authority of the agency, or (3) the rule violates a constitutional provision. ORS 183.400(4). ORS 183.400(3) provides: Judicial review of an agency's rule under ORS 183.400 is limited to a determination of whether the rule, as written, is valid: *499 In AFSCME, this court considered an ORS 183.400 challenge to a rule adopted by the Department of Corrections. That rule provided that an employee or volunteer could be asked to submit to a search "only when there is reasonable suspicion that the employee or volunteer is in possession of unauthorized property or contraband and that the search and seizure is necessary to substantiate the suspected violation." OAR 291-41-030(1). This court considered the petitioners' arguments concerning whether the Department had statutory authority to adopt rules that allowed such searches even when, as in this case, the rule applied only under certain built-in conditions precedent. Id. at 79-82, 843 P.2d 409. The court held that the challenged rules did not exceed the agency's statutory authority. Id. at 81-82, 843 P.2d 409. What was not subject to review was simply "actions alleged to be occurring pursuant to the rules at issue." Id. at 79, 843 P.2d 409. As noted above, GTE challenges the portions of the PUC's rules that authorize collocation. OAR 860-35-110 requires an LEC to provide for collocation if certain conditions are satisfied. OAR 860-35-110(4)(e) provides in part: The provision regarding insufficient space does not represent an application of the collocation rules in a particular fact situation, which would not be within our scope of review under AFSCME; rather, it is part of the rule itself. The rule, by its terms, requires collocation when, among other things, there is enough space. The question, then, is not whether the rule always requires collocation, but rather whether every collocation constitutes a taking. The exception to collocation for insufficient space is simply a built-in condition precedent to the application of the challenged rule, like reasonable suspicion in AFSCME. GTE does not challenge any "actions alleged to be occurring pursuant to the rules at issue," which AFSCME holds would be beyond our scope of review.[4] Accordingly, review of the challenged rules is appropriate under ORS 183.400. GTE argues specifically that collocation is a taking and that the authorization of a taking exceeds the PUC's statutory authority, ORS 183.400(4)(b). Under that provision, we must "decide whether the promulgation of the regulation was within the jurisdictional authority of [the PUC]." See Gilliam County v. Dept. of Environmental Quality, 316 Or. 99, 106, 849 P.2d 500 (1993) (stating quoted standard), rev'd on other grounds sub nom. Oregon Waste Systems v. Dept. of Env. Quality, ___ U.S. ___, 114 S. Ct. 1345, 128 L. Ed. 2d 13 (1994). Gilliam County and AFSCME instruct us first to consider the jurisdictional authority of the agency, by looking at the face of the rule and the law pertinent to it. We thus turn to whether the PUC has the authority to promulgate rules that effect a taking within the meaning of the Oregon Constitution. It is logical to begin with that inquiry because, if the PUC has the power to promulgate rules that effect a taking, it matters not whether the underlying premise of GTE's argument (that the challenged rules effect a taking) is correct, and we would need to proceed no further. GTE argues that the PUC is without authority to engage in acts, including rulemaking, that effect a taking. GTE's argument is premised on the assertion that express eminent domain authority is required before a state agency may take property for a public purpose. GTE is correct. *500 "Eminent domain is the power inherent in a sovereign state of taking or of authorizing the taking of any property within its jurisdiction for a public use or benefit." Dept. of Trans. v. Lundberg, 312 Or. 568, 571 n. 1, 825 P.2d 641 (internal quotation marks omitted; citation omitted), cert den ___ U.S. ___, 113 S. Ct. 467, 121 L. Ed. 2d 374 (1992). This court has repeatedly and consistently held that "the right of eminent domain * * * can be exercised only by legislative authority." B.V.L. Co. v. Johnson, 30 Or. 205, 208, 46 P. 790 (1896). The legislature may delegate its power of eminent domain to an administrative agency, but it must do so expressly. See also Emerald PUD v. PP & L, 302 Or. 256, 263, 729 P.2d 552 (1986) (concluding that a state agency had the power to act in eminent domain when the statute "clearly" granted that power to the agency); Tomasek v. Oregon Highway Com'n, 196 Or. 120, 142, 248 P.2d 703 (1952) ("Though the power of eminent domain is inherent in the state, it lies dormant until called into existence by express legislative authority.") (emphasis added); State ex rel. Olcott v. Hawk et al., 105 Or. 319, 325, 327, 208 P. 709 (1922) ("The power of eminent domain is inherent in the state, yet it lies dormant until called into exercise by express legislative authority[.] * * * [S]tatutes providing for condemnation should be strictly construed." (emphasis added)). The PUC does not disagree with the foregoing principle. Rather, the PUC argues for a limitation on its application: The PUC asserts that that policy concern is not invoked by the collocation rules, because under those rules there The PUC's argument is that, when a government agency acts in eminent domain and takes private property for public use, but when compensation for that taking does not come directly from the public treasury, the agency needs no specific grant of authority so to act. The PUC points to no cases from this jurisdiction, nor are we aware of any, that support that view. The PUC's argument reads into this court's prior cases a rationale and, thereby, a limitation, that those cases do not contain. The cases cited above establish a bright-line rule: that an agency may not act in eminent domain without an express grant of power from the legislature. It is up to the legislature, not the PUC or any other administrative agency, to determine how those powers should be exercised. The legislature's reasons for granting or refusing to grant an administrative agency the power to act in eminent domain may include a desire to refrain from depleting the public fisc. However, the legislature's decision may also be rooted in a number of other policy considerations. In the alternative, the PUC argues that the legislature has expressly given it the necessary eminent domain authority over telecommunications providers. It cites ORS 183.335, 756.060, and ORS chapter 759. ORS 183.335 concerns the notice that an agency must give prior to rulemaking. ORS 756.060 contains a general grant of rulemaking authority to the PUC. ORS chapter 759 delineates the authority and powers of the PUC. Although sections of that chapter do give the PUC broad regulatory and rulemaking authority, see, e.g., ORS 759.580 (authorizing *501 the PUC to require telecommunications utilities to offer services to a locality not already served), no section of that chapter contains an express grant of authority to the PUC to act in eminent domain generally or in regard to an LEC's property.[5] In summary, the power of eminent domain may be exercised by an agency only if the agency has express statutory authority. The PUC does not have express statutory authority to promulgate rules that would effect a taking of an LEC's facilities. Accordingly, we next consider whether the challenged collocation rules do, in fact, effect a taking. GTE argues that collocation is a physical invasion and, thus, a taking under the holding of Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982).[6] For the following reasons, we agree. In Loretto, a property owner challenged a New York statute that prohibited the property owner from interfering with cable television facilities installed on her property. That statute also prohibited the property owner from demanding payment from any tenant or cable television company for the use of those facilities, except for a one-time, one dollar payment 458 U.S. at 421-25, 102 S. Ct. at 3168-70. The Court held that the challenged statute, as applied to the property owner in Loretto, constituted a taking. Id. at 441, 102 S. Ct. at 3179. The Court started its analysis by noting that it has no standard formula for determining when governmental interference with property constitutes a taking. Id. at 426, 102 S. Ct. at 3171. The Court stated, however, that a "`taking' may more readily be found when the interference with property can be characterized as a physical invasion by government." Ibid. The Court concluded that, "when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred." Ibid. If the nature of the governmental intrusion amounts to a "permanent physical occupation of property," the inquiry ends, regardless of "whether the action achieves an important public benefit or has only minimal economic impact on the owner." Id. at 434-45, 102 S. Ct. at 3175. The Court in Loretto did not engage in a detailed discussion of what constituted a physical invasion. The Court resolved the question before it by stating that the In that case, the cable television facilities on the property owner's property "involved a direct physical attachment" to the property. Id. at 438, 102 S. Ct. at 3177. It was, therefore, a physical invasion. In Loretto, the Court explicitly rejected the argument that, because the challenged statute applied only to rental property, "the law is simply a permissible regulation of the use of real property." Id. at 439, 102 S. Ct. at 3178. "So long as the property remains residential and a [cable television] company wishes to retain the installation, the landlord *502 must permit it." Ibid. The Court noted, in particular, that if the challenged statute In FCC v. Florida Power Corp., 480 U.S. 245, 107 S. Ct. 1107, 94 L. Ed. 2d 282 (1987), the Court clarified its holding in Loretto. In Florida Power, a utility company challenged a decision of the Federal Communications Commission (FCC), made under a federal statute, which regulated the rates that the utility company could charge to cable television companies for running television cables on the utility company's poles. 480 U.S. at 247-50, 107 S. Ct. at 1109-11. The Court rejected the argument that the rate regulations constituted a permanent physical invasion and that Loretto applied to the facts in Florida Power. Id. at 250, 107 S. Ct. at 1111. The Court distinguished the facts in Florida Power from the facts in Loretto as follows: "[W]hile the statute we considered in Loretto specifically required landlords to permit permanent occupation of their property by cable companies, nothing in the [federal statute] as interpreted by the FCC in these cases gives cable companies any right to occupy space on utility poles, or prohibits utility companies from refusing to enter into * * * agreements with cable operators. The [federal statute] authorizes the FCC * * * to review the rents charged by public utility landlords who have voluntarily entered into leases with cable company tenants renting space on utility poles. As we observed in Loretto, statutes regulating the economic relations of landlords and tenants are not per se takings. `So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to non-possessory governmental activity.' Loretto, supra, at 440 [102 S. Ct. at 3178] (emphasis added). "`[P]roperty law has long protected an owner's expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion.' 458 US, at 436 [102 S. Ct. at 3176] (citation omitted).' "Appellees contend, in essence, that it is a taking under Loretto for a tenant invited to lease at a rent of $7.15 to remain at the regulated rent of $1.79. But it is the invitation, not the rent, that makes the difference. The line which separates these cases from Loretto is the unambiguous distinction between a commercial lessee and an interloper with a government license." 480 U.S. at 251-253, 107 S. Ct. at 1111-13 (emphasis in original; footnote omitted; some citations omitted). Recently, in Yee v. Escondido, 503 U.S. 519, 112 S. Ct. 1522, 118 L. Ed. 2d 153 (1992), the Court further clarified what constitutes a physical invasion. In Yee, owners of a mobile home park challenged a rent control ordinance, arguing that the ordinance was a physical invasion and, thus, a taking. The owners objected to certain provisions in the ordinance that prevented them from determining to whom they could rent and how much they could charge their tenants. 503 U.S. at 526-27, 112 S. Ct. at 1528. They argued that the challenged ordinance "has transferred a discrete interest in landthe *503 right to occupy the land indefinitely at a sub-market rentfrom the park owner to the mobile home owner." Id. at 527, 112 S. Ct. at 1528. The owners saw that interest as "no less than a right of physical occupation of the park owner's land." Ibid. The Supreme Court rejected that argument: "The government effects a physical taking only where it requires the landowner to submit to the physical occupation of his land. * * * Thus whether the government floods a landowner's property or does no more than require the landowner to suffer the installation of a cable, the Takings Clause requires compensation if the government authorizes a compelled physical invasion of property." Ibid. (emphasis in original; citations omitted). The Court then noted that, in Yee, the owners were not compelled, The Court explicitly stated that a "different case would be presented were the statute, on its face or as applied, to compel a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy." Id. at 528, 112 S. Ct. at 1528 (emphasis added). The Court repeatedly emphasized that distinction. See id. at 531, 112 S. Ct. at 1530 ("Because [the owners of the mobile home park] voluntarily open their property to occupation by others, petitioners cannot assert a per se right to compensation based on their inability to exclude particular individuals"); id. at 532, 112 S. Ct. at 1531 (quoting Florida Power, 480 U.S. at 252, 107 S. Ct. at 1112, "`it is the invitation, not the rent, that makes the difference'"). In the present case, collocation "can be characterized as a physical invasion by [the] government," Loretto, 458 U.S. at 426, 102 S. Ct. at 3171, for three reasons. First, collocation by definition involves the "installation of a[n ESP's] equipment, software, and databases on LEC premises." OAR 860-35-020(8). That is, by definition, collocation involves the "placement of a fixed structure on [the] land or real property" of an LEC. Loretto, 458 U.S. at 437, 102 S. Ct. at 3177. Under the collocation rules, an LEC is required to accept a "direct physical attachment" to the property. Id. at 438, 102 S. Ct. at 3177. A "direct physical attachment," under Loretto, constitutes a physical invasion. The second reason why collocation constitutes a physical invasion is that, under the rules, it is the ESP, not the LEC, that owns the equipment placed on the LEC's property. OAR 860-35-020(8) provides that, in collocation, "the equipment, software, and databases are owned by the [ESP]." As discussed above, the Court in Loretto relied on whether the property owner, or a third party, owned the cable boxes in deciding whether a physical invasion had occurred. The Court indicated that the outcome in Loretto might have been different had Loretto, and not the cable television company, owned the cable boxes. See Loretto, 458 U.S. at 440 n. 19, 102 S. Ct. at 3179 n. 19 ("[t]he fact of ownership is * * * not simply incidental") (internal quotation marks omitted; citation omitted). The third reason why collocation constitutes a physical invasion is that the rules require an LEC to provide collocation to an ESP that requests collocation. OAR 860-35-110(4)(a) provides that LECs "shall permit [an ESP] to collocate" if the ESP "has complied with all collocation requirements specified in [OAR ch 860, division 35]." (Emphasis added.) See also OAR 860-35-070(5)(b) (providing that "[t]he LEC shall implement [a request for collocation] as soon as feasible and in any event no later than six months of the receipt of the request"). Our discussion of Florida Power and Yee demonstrate that, when a statute requires a property owner "to suffer the physical occupation of a portion of his building by a third party," a physical invasion has occurred. "This element of required acquiescence is at the heart *504 of the concept of occupation." Florida Power, 480 U.S. at 252, 107 S. Ct. at 1112. Collocation thus makes ESPs that receive collocation "interloper[s] with * * * government license[s]," rather than "commercial lessee[s]." Id. at 253, 107 S. Ct. at 1112-13. The Court of Appeals concluded that, even if collocation constitutes a physical invasion, that invasion "in this case is not `permanent' within the meaning of Loretto, because the LECs have some control over the extent and duration of the occupation." 130 Or.App. at 644, 883 P.2d 255. The Court of Appeals concluded that the invasion constituted a "temporary" taking. Ibid. That argument misreads the Supreme Court's "physical invasion" jurisprudence. The duration of the "taking" by physical invasion is not relevant to the determination of whether a "taking" has occurred. In determining the scope of the PUC's authority in this case, the issue is not whether the taking is permanent or temporary. Rather, the issue is whether the PUC has the authority, in this instance, to promulgate rules that effect any taking at all. As already noted, the PUC lacks that authority. The PUC next argues that, even if the collocation rules effect a physical invasion, Loretto is not applicable to the facts of this case for two reasons. First, the PUC asserts that the interest allegedly taken is not one that the property owner had in the first place. The PUC reasons that, because LECs lack the power to exclude the PUC from their property, see ORS 756.075 (providing that the PUC or its representatives may enter any premises or facilities occupied by any public utility to make any inspection, examination or test reasonably required by the PUC to carry out its public duties), and because public utilities are restrained in how they make use of their property, see ORS 759.375 (providing that public utilities cannot sell or otherwise dispose of assets used to serve the public without first obtaining the PUC's approval), LECs lack an "historically rooted expectation of compensation." The PUC reasons that, because of those restraints, LECs never had the right to exclude the PUC occupier in the first place and, therefore, the occupation is not a taking. The PUC's argument is inconsistent with Loretto. There, the Court stated: In other words, the facts that an industry is heavily regulated, and that a property owner acquired the property knowing that it is heavily regulated, do not diminish a physical invasion to something less than a taking. Additionally, the fact that government itself regulates the industry, and therefore invades some of the property owner's traditional property rights, does not permit the government to allow a physical invasion by a third party.[7] *505 The PUC also argues that it could prevent GTE and other LECs from placing their own enhanced service equipment in their basic service plants, if that were necessary to promote viable competition between LECs and ESPs.[8] From that premise, the PUC concludes that it may, as a condition of permitting an LEC to locate its own enhanced service equipment in its network, require an LEC to permit competitors to locate there as well. That is, the PUC argues that, when the state has the power to forbid a particular use of property, it may, as the price of permitting that use, require the owner to submit to a physical invasion of that property as long as there is a substantial nexus between the governmental purpose and the invasion. In support of that argument, the PUC relies on Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987). In Nollan, the California Coastal Commission required a beach front property owner to give the public access to the dry sand area of beach bordering the property, in exchange for the right to build a house that would block the view of that beach to passersby. Thus, the state attempted to regulate the Nollans' use of their property and to condition the receipt of a building permit on compliance with those regulations. 483 U.S. at 827-31, 107 S. Ct. at 3143-45. The California Coastal Commission defended its action on the ground that, along with other houses built along the shore, the new house would interfere with visual access to the beach and create a "psychological barrier" to access. Id. at 838, 107 S. Ct. at 3149. The Commission argued that the public easement it decreed would provide "lateral access." Ibid. The Court rejected the Commission's argument, because there was no rational nexus between the harm the Commission found, lack of visual access, and the relief it ordered, physical access along the beach. In reaching that conclusion, the Court made the following statement, on which the PUC relies: The PUC errs by seeking to apply Nollan's "regulatory takings" analysis to a "physical invasion" case. The two are quite different. In Yee, the Court explained the distinction as follows: The present case involves the state's direction to the landowner to permit placement of a third party's property on the property of the landowner. The Supreme Court's takings cases clearly distinguish between physical invasions and regulations; the PUC cites the inapplicable line of regulation-related cases. The PUC's attempts to distinguish Loretto are not convincing. The challenged collocation rules effect a taking under Loretto. The challenged collocation rules promulgated by the PUC would effect a taking. The PUC lacks authority to make rules that effect a taking. Accordingly, the PUC exceeded its statutory authority when it promulgated those rules. Pursuant to ORS 183.400(4)(b), we declare those rules to be invalid. The decision of the Court of Appeals is reversed. OAR 860-35-020(8), OAR 860-35-070(5), and OAR 860-35-110 are invalid insofar as they provide for collocation by an enhanced service provider on a local exchange carrier's property. OAR 860-35-070(5) provides: OAR 860-35-110 provides in part: "(c) Customers are required to maintain comprehensive general liability insurance, including protection against death, personal *507 injury and property damage, issued by a company qualified to do business in Oregon, in an amount of not less than $1 million; [1] ORS 183.400 provides in part: "(1) The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when the petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court. "* * * * * "(4) The court shall declare the rule invalid only if it finds that the rule: "(a) Violates constitutional provisions; "(b) Exceeds the statutory authority of the agency; or "(c) Was adopted without compliance with applicable rulemaking procedures." [2] "Collocation" is defined by OAR 860-35-020(8), quoted in the text above. "Virtual collocation" is defined by OAR 860-35-020(27) as "a service, offered by a LEC, which provides for placement and installation of customer selected equipment, software, and databases on LEC premises. Premises include central offices, remote network facilities, or any other similar location owned by the LEC. The equipment, software, and databases are owned and maintained by the LEC." [3] Article I, section 18, of the Oregon Constitution, provides in part: "Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation * * *." The Fifth Amendment to the Constitution of the United States provides in part: "[N]or shall private property be taken for public use, without just compensation." The Takings Clause of the Fifth Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Nollan v. California Coastal Comm'n, 483 U.S. 825, 827, 107 S. Ct. 3141, 3143, 97 L. Ed. 2d 677 (1987). [4] To the extent that the present case is methodologically inconsistent with AFSCME, hereafter we will follow the analysis provided here. [5] The legislature has granted the PUC the power to act in eminent domain in circumstances not presented here. The PUC can condemn property along public roads within the corporate limits of any municipal corporation, for the location of telephone lines and telephone poles. ORS 759.080. The PUC does not contend that ORS 759.080 provides authority for the challenged rules. [6] Loretto was decided under the federal constitution. GTE offers no separate analysis under the state constitution. Accordingly, we assume, without deciding, that the analysis is the same under Article I, section 18, of the Oregon Constitution, and the Takings Clause of the Fifth Amendment to the Constitution of the United States. See Dept. of Trans. v. Lundberg, 312 Or. 568, 572 n. 4, 825 P.2d 641 (stating that principle), cert. den. ___ U.S. ___, 113 S. Ct. 467, 121 L. Ed. 2d 374 (1992). [7] In another passage in Loretto, the Court stated: "Moreover, an owner suffers a special kind of injury when a stranger directly invades and occupies the owner's property. * * * [P]roperty law has long protected an owner's expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. Furthermore, such an occupation is qualitatively more severe than a regulation of use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion." 458 U.S. at 436, 102 S. Ct. at 3176 (emphasis in original; citations omitted). In that passage, the Court reasserts that a third party's invasion of a property owner's property is of special significance in determining whether a physical invasion has occurred. [8] PUC cites ORS 759.015 in support of that proposition. That statute provides: "The Legislative Assembly finds and declares that it is the goal of the State of Oregon to secure and maintain high-quality universal telecommunications service at just and reasonable rates for all classes of customers and to encourage innovation within the industry by a balanced program of regulation and competition. The Commission shall administer the statutes with respect to telecommunications rates and services in accordance with this policy." We assume, without deciding, that that statute grants to the PUC the power to prohibit LECs from placing their own enhanced service equipment in their basic service plants.

2c6f6b70de9fec4bdd769a973d874311f9b7d5c79cc05039f942439e6cee7351

1995-08-24T00:00:00Z

fe577983-ed4e-465e-a60f-8a66ee5ec81a

Mabon v. Kulongoski

321 Or. 247, 896 P.2d 574

oregon

Oregon Supreme Court

896 P.2d 574 (1995) 321 Or. 247 Lon T. MABON, Petitioner, v. Theodore R. KULONGOSKI, Attorney General of Oregon, Respondent. Kathy ARMSTRONG, Lisa Horowitz, Allie Stickney, Petitioners, v. Theodore R. KULONGOSKI, Attorney General of the State of Oregon, Respondent. SC S42044, S42070. Supreme Court of Oregon, In Banc. Argued and Submitted May 11, 1995. Decided June 15, 1995. Lawrence J. Hall, Silverton, argued the cause and filed the petition for petitioner Mabon. Per A. Ramfjord, of the ACLU Foundation of Oregon, Inc., Portland, argued the cause for petitioners Armstrong, et al. With him on the petition were Stephen S. Walters and Scott J. Kaplan. Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the answering memoranda were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(9). GRABER, Justice. In this original proceeding, two sets of petitioners challenge the ballot title for a proposed initiative measure. Petitioners are electors who, in a timely manner, submitted *575 written comments about the Attorney General's draft ballot title, pursuant to ORS 250.067(1). Accordingly, petitioners are entitled to seek a different title in this court. ORS 250.085(2). The arguments that they make here relate to the comments that petitioners made during the administrative process. We modify the ballot title in certain respects and, as modified, certify it to the Secretary of State. The proposed initiative measure reads as follows: For that measure, the Attorney General certified this ballot title to the Secretary of State: This court reviews ballot titles for "substantial compliance with the requirements of ORS 250.035 and 250.039." ORS 250.085(5). ORS 250.035(1)(a) requires that a ballot title contain a "caption of not more than 10 words which reasonably identifies the subject of the measure." ORS 250.035(1)(b) requires that a ballot title also contain a "question of not more than 20 words which plainly phrases the chief purpose of the measure." Finally, ORS 250.035(1)(c) requires that a ballot title contain a "concise and impartial statement of not *576 more than 85 words summarizing the measure and its major effect."[1] The two sets of petitioners make different arguments. We will thus consider their arguments separately. Petitioner Mabon asserts that the Question and Summary portions of the Attorney General's ballot title fail to comply substantially with the requirements of ORS 250.035(1)(b) and (c), because they use the term "pregnant woman," whereas the text of the proposed measure uses the term "mother." We are not persuaded. The text of the proposed measure applies to all pregnant women; thus, the Attorney General's phrasing accurately conveys the chief purpose and major effect of the measure. See Oregon Citizen's Alliance v. Roberts, 308 Or. 599, 603-04, 783 P.2d 1001 (1989) (explaining use of the term "pregnant woman" in a ballot title for a similar measure). In this respect, the Attorney General's ballot title complies substantially with the requirements of ORS 250.035(1)(b) and (c). The remaining petitioners challenge all three portions of the ballot title. According to petitioners, their "[m]ost significant" objection is that the ballot title omits any mention of the following provision of the measure: "For the purpose of this Act every Oregon resident and non-profit entity doing business in this state has standing." Petitioners assert that the provision for standing is a subject, a chief purpose, and a major effect of the measure. They argue that "the voters have a right to know that the initiative will authorize and encourage litigation." The Attorney General responds that the provision for standing is unclear. He argues that "standing" may or may not mean standing to sue in court to enforce or to challenge the terms of the proposed initiative measure. We disagree with the Attorney General's position for two reasons. First, the grant of standingwhatever that may meanis a chief purpose and a major effect of the measure that should be included in the ballot title. A possible lack of clarity does not mean that a chief purpose or major effect of a measure may be ignored in the ballot title. Second, in context, standing has only one plausible meaning: "`standing' means the right to obtain an adjudication." Eckles v. State of Oregon, 306 Or. 380, 383, 760 P.2d 846 (1988), appeal dismissed, 490 U.S. 1032, 109 S. Ct. 1928, 104 L. Ed. 2d 400 (1989). For the purpose of the proposed new section of the constitution, then, every Oregon resident and non-profit entity doing business in Oregon would have the right to obtain an adjudication, that is, a right to bring an action in court. Accordingly, we modify the Question and Summary to include the provision for standing. The Caption, however, "reasonably identifies the subject of the measure," ORS 250.035(1)(a), in its present form. Therefore, we certify the Attorney General's Caption without modification. These petitioners make additional arguments that require no discussion. Their challenges either are not well taken or are no longer relevant after the revisions that we have made to enable us to include the standing provision within the applicable word limits. We certify the following ballot title for use with the proposed initiative measure: Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(9). [1] ORS 250.039 requires that a ballot title comply with a standard of readability designated by the Secretary of State. That provision is not at issue in this case.

2399c78cc3874654b533837587dcb5e8d5d241aa14be5f2f061181f8a3ece673

1995-06-15T00:00:00Z

0d4c6506-da15-4b33-91eb-639ad42a8855

State v. Fish

321 Or. 48, 893 P.2d 1023

oregon

Oregon Supreme Court

893 P.2d 1023 (1995) 321 Or. 48 STATE of Oregon, Respondent on Review, v. Boyd Alan FISH, Petitioner on Review. DC 90-11996; CA A67743; SC S40015. Supreme Court of Oregon, In Banc. Argued and Submitted August 31, 1993. Reargued and Resubmitted November 2, 1994. Reassigned November 3, 1994. Decided April 27, 1995. *1024 John Henry Hingson III, Oregon City, argued the cause and filed the petition on behalf of petitioner on review. Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause on behalf of respondent on review. UNIS, Justice. On May 24, 1990, defendant was driving his Ford Bronco southbound on a public highway in Clackamas County. A deputy sheriff, who was driving in the opposite lane of travel from defendant, observed defendant's vehicle swerve. The deputy turned around and signaled defendant to pull his vehicle to the side of the road. When the deputy approached defendant's vehicle, he smelled alcohol, saw that defendant's eyes were "bloodshot and watery," and noticed a can of beer on the floor of the vehicle next to the driver's seat. Defendant told the deputy that he had consumed "three beers." The deputy asked defendant to step out of his vehicle and perform field sobriety tests. The deputy advised defendant that, if defendant refused to perform the field sobriety tests, his refusal could be used against him as evidence in court. Defendant refused to perform the tests. He was arrested and charged with the crime of driving under the influence of intoxicants (DUII), ORS 813.010. Before trial, defendant moved to suppress evidence of his refusal to perform the tests. Defendant argued that the deputy did not comply with statutory requirements in advising defendant of the consequences of his refusal. Defendant also argued that the admission of his refusal to perform field sobriety tests violated his rights against self-incrimination under Article I, section 12, of the Oregon Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. The district court granted defendant's motion on both statutory and constitutional grounds. Pursuant to ORS 138.060(3), the state appealed the district court's order suppressing evidence of refusal. The Court of Appeals reversed the district court's order and remanded the case for further proceedings. The court rejected defendant's argument regarding the adequacy of the deputy's advice of consequences, holding that the deputy's words "`substantially convey[ed]' the necessary information" required by the statute. State v. Fish, 115 Or.App. 609, 613, 839 P.2d 278 (1992) (quoting OAR 257-25-015(2)). The court also held that the admission of evidence of defendant's refusal to perform field sobriety tests did not violate his rights against self-incrimination. Id. at 614, 839 P.2d 278. We allowed defendant's petition for review and now reverse the decision of *1025 the Court of Appeals and affirm the order of the district court. Defendant challenges the admission of his refusal to perform the field sobriety tests on a number of grounds, both statutory and constitutional. We shall address defendant's subconstitutional argument before considering his constitutional arguments. See State v. Stevens, 319 Or. 573, 579, 879 P.2d 162 (1994) (applying that methodology). Defendant contends that the deputy failed to comply with ORS 813.135 and ORS 813.136 and that, therefore, evidence of defendant's refusal to perform field sobriety tests should be suppressed. ORS 813.135[1] requires that, before field sobriety tests are administered to a person whom a police officer reasonably suspects to be under the influence of intoxicants, the person "shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136." Those consequences are as follows: In this case, the deputy testified that he "advised [defendant] that he had the right to refuse the field sobriety test; that if he did refuse the test, that could be used against him as evidence in court." We conclude that the advice of consequences complied with ORS 813.135 and 813.136.[2] ORS 813.135 requires that a suspect be "informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136." No particular language is required by the statute. In this case, the significant difference between the language of the statute and the warning given to defendant is that the deputy stated that the refusal could be used against defendant "in court," rather than "in any criminal or civil action or proceeding arising out of allegations *1026 that the person was driving while under the influence of intoxicants." To determine whether the deputy's advice of consequences complied with ORS 813.135, we must determine what the legislature intended by requiring police officers to give the advice of consequences. In State v. Trenary, 316 Or. 172, 850 P.2d 356 (1993), this court discussed the legislative purpose of the advice of consequences required by ORS 813.135: This court further stated that the legislature's reason for enacting ORS 813.135 and 813.136 was "to compel drivers to take field sobriety tests." Id. at 177-78, 850 P.2d 356. In light of the purpose of the advice of consequences required by ORS 813.135, an officer's advice of consequences complies with ORS 813.135 if it adequately informs the driver of the consequences of refusal so as to bring further pressure on the driver to perform the tests. In this case, the advice of consequences given was no less effective in bringing pressure upon defendant than if the deputy had used the exact words of the statute. Under the facts of this case, we conclude that the warning given by the deputy sufficiently informed defendant of the consequences of refusal so as to comply with the requirements of ORS 813.135. We turn now to defendant's constitutional arguments. Defendant argues that the admission of his refusal to perform the field sobriety tests would violate his rights against compelled self-incrimination under the state and federal constitutions. We first consider defendant's assertions under the Oregon Constitution. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (stating methodology). Article I, section 12, of the Oregon Constitution provides in part: The right against compelled self-incrimination applies "to any kind of judicial or nonjudicial procedure in the course of which the state seeks to compel testimony that may be used against the witness in a criminal prosecution." State v. Langan, 301 Or. 1, 5, 718 P.2d 719 (1986). Thus, to receive protection under the self-incrimination clause of Article I, section 12, a person's statement or conduct must (1) be "testimonial" evidence, (2) be "compelled," and (3) be evidence that could be used against the person in a criminal prosecution. We therefore must determine whether evidence of defendant's refusal to perform field sobriety tests is "testimonial" evidence under Article I, section 12. For purposes of the right against self-incrimination, "testimonial" evidence is not limited to in-court testimony under oath. Rather, the label "testimonial" is simply shorthand for the type of evidence that is subject to the right against compelled self-incrimination. To understand the scope of the protection provided by the right against compelled self-incrimination, we examine the history and purpose underlying the right. Article I, section 12, of the Oregon Constitution was based on Article I, section 14, of the Indiana Constitution of 1851. Charles Henry Carey, The Oregon Constitution 468 (1926). Those provisions are similar to provisions that appear in the constitutions of 48 states. John William Strong, ed., 1 McCormick on Evidence § 115, at 425 (4th ed 1992). Although the wording of the different constitutional provisions varies, the variations commonly are not considered to convey different meanings because the provisions share a common origin. John Henry Wigmore, 8 Wigmore on Evidence § 2263, at 378 (McNaughton rev 1961). The right against compelled self-incrimination was firmly established in the American colonies by the mid-eighteenth century. Leonard W. Levy, *1027 Origins of the Fifth Amendment 368-404 (1968). However, there is some indication that the right was recognized in the colonies as early as 1650. R. Carter Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 VaLRev 763, 775 (1935). In 1776, a self-incrimination clause was incorporated into the Virginia state constitution, and seven other states followed suit shortly thereafter. Levy, Origins of the Fifth Amendment at 405-09. The Fifth Amendment to the United States Constitution, drafted in 1789, was based on those provisions of state constitutions. Id. at 422. The right against compelled self-incrimination was imported to the United States as a part of the common law of England. Id. at 368. The right developed in England in the mid-seventeenth century. Id. at 301-32. The right against compelled self-incrimination had its roots in opposition to the oath ex officio, a procedure used by the ecclesiastical courts in England that required the accused, without having been formally charged or informed of the identity of his or her accusers, to answer questions under oath, the purpose of which was to extract a confession. Id. at 47. Opposition to that inquisitorial procedure increased when it was later adopted by the courts of the Star Chamber and of the High Commission, which used the oath to enforce political and religious conformity with views of the crown. Strong, 1 McCormick on Evidence § 114, at 422. In 1641, in response to abuses whereby individuals were required to make the state's case for them, the oath ex officio was abolished along with the courts of Star Chamber and of High Commission. Id. at 423. During the mid-1600s, the right against compelled self-incrimination was recognized at common law as well, in the form of the maxim, "nemo tenetur prodere seipsum "("no man is bound to accuse himself"). Levy, Origins of the Fifth Amendment at 313-32. Although the historical basis of the right against compelled self-incrimination has been subject to varying interpretations, compare Wigmore, 8 Wigmore on Evidence § 2250, at 291-92 (suggesting that the right developed exclusively as a response to lack of charging in Star Chamber) with Strong, 1 McCormick on Evidence § 115, at 424 (suggesting that the right was broader), it is clear that the right originated and continued to develop as a protection against inquisitorial methods of investigation and prosecution. This history has been reflected in the recognition that the right against compelled self-incrimination is instrumental in maintaining a fair balance between individual autonomy and the governmental interest in prosecuting alleged offenders. The right plays a significant role in our adversarial system of criminal justice: "[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and [the right against compelled self-incrimination] is its essential mainstay." Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).[3] The right against compelled self-incrimination is one important component of our accusatorial system of criminal justice, which requires that an individual be presumed innocent until proven guilty, that the government has the burden to prove an individual's guilt beyond a reasonable doubt, and that the state shoulder the entire load in a criminal prosecution: *1028 Under Article I, section 12, of the Oregon Constitution, individuals may not be compelled to disclose their beliefs, knowledge, or state of mind, to be used in a criminal prosecution against them. In offering an individual's refusal to perform field sobriety tests into evidence, the state wants the jury to infer from the fact of an individual's refusal that he or she is saying, "I refuse to perform field sobriety tests because I believe I will fail them." Thus, the fact that a person refused or failed to perform field sobriety tests inferentially may communicate the person's beliefthat the person refused to perform the tests because he or she believed that the performance of the tests would be incriminating. For an individual to reveal his or her thoughts is necessarily to make a communication, whether by words or actions. Evidence of an individual's refusal therefore communicates his or her state of mind. Facts giving rise to inferences, no less than direct statements, communicating an individual's state of mind is evidence that is subject to the right against compelled self-incrimination. We therefore conclude that evidence of defendant's refusal to perform field sobriety tests is "testimonial" evidence under the self-incrimination clause of Article I, section 12, of the Oregon Constitution. Concluding that evidence regarding defendant's refusal to perform field sobriety tests is "testimonial" does not end our inquiry, however. Article I, section 12, prohibits the state from compelling an individual to provide "testimonial" evidence. State v. Jancsek, 302 Or. 270, 284-85, 730 P.2d 14 (1986). For the purposes of Article I, section 12, compulsion can take many forms. Some obvious examples are where an individual is on the stand, subject to contempt sanctions if he or she refuses to testify, see In re Jennings et al., 154 Or. 482, 59 P.2d 702 (1936) (right against compelled self-incrimination under Article I, section 12, applied in contempt hearing where individual refused to answer questions under oath), or where an individual is required to act by court order, see Shepard v. Bowe, 250 Or. 288, 293, 442 P.2d 238 (1968) (right against self-incrimination applied in context of court-ordered psychiatric examination). Another example of compulsion is custodial interrogation. See State v. Smith, 310 Or. 1, 7, 791 P.2d 836 (1990) (right against self-incrimination applied in context of custodial interrogation). In addition, a statute may compel an individual to testify. See State of Oregon v. Hennessey, 195 Or. 355, 245 P.2d 875 (1952) (immunity statute compelled individual to testify in exchange for grant of immunity).[4] Our compulsion analysis in this case focuses on a statute, namely ORS 813.136. ORS 813.136 provides that, if a person reasonably suspected by a police officer of DUII "refuses or fails to submit" to field sobriety tests, his or her refusal is admissible in a criminal or civil proceeding. Arguably, ORS 813.136 does not explicitly compel an individual's refusal because it gives that person a "choice"he or she may either perform field sobriety tests or have evidence of his or her refusal admitted in a civil or criminal court proceeding stemming from the allegations of DUII. The right against self-incrimination does not preclude the state from requiring an individual to make certain choices. See State v. Mende, 304 Or. 18, 21, 741 P.2d 496 (1987) (requiring a defendant to be cross-examined regarding matters asserted in a sworn affidavit submitted to the court did not violate Article I, section 12). But the mere fact that the state gives an individual a "choice" does not necessarily mean that the individual is not compelled to testify against himself or herself. For example, an individual cannot be required to take the stand in his or her own criminal prosecution because to do so would place the individual in a "cruel trilemma." The individual in such a situation has three "choices": (1) to testify truthfully (risking self-incrimination), (2) to testify falsely (risking perjury), or (3) to refuse to testify (risking contempt). Although the individual ostensibly has a "choice" among any of those options, it is a Hobson's choice because the individual is required to "choose" either to risk subjecting himself to punishment (perjury or contempt) or to engage in *1029 conduct that the state has no right to compel (produce incriminating testimony). Thus, when an individual is given a "choice" between various courses of conduct, the determination of whether the "choice" constitutes compulsion depends on the nature of the options. Where every "choice" is a course of conduct that the state could not compel an individual to take, mandating by law that an individual make a "choice" among them constitutes compulsion under Article I, section 12. As noted, ORS 813.136 provides defendant a "choice" between two courses of conduct: (1) to perform field sobriety tests or (2) to have evidence of his refusal to perform the tests be admitted against him. One choiceadmission of "testimonial" evidence of defendant's refusalis a course of conduct that the state cannot compel. To determine whether that choice is compelled in violation of Article I, section 12, we must therefore consider the nature of defendant's other option (i.e., performance of field sobriety tests). In performing field sobriety tests,[5] an individual is required to perform various physical and mental tasks that are designed to elicit responses that demonstrate whether the individual is under the influence of intoxicants. See ORS 801.272 (field sobriety test is "a physical or mental test * * * that enables a police officer or trier of fact to screen for or detect probable impairment from intoxicating liquor, a controlled substance or a combination of intoxicating liquor and a controlled substance"). OAR 257-25-020(1) specifies nine tests approved by the Oregon State Police and the Board on Public Safety Standards and Training as "field sobriety tests." Under OAR 257-25-020(2), an officer may request that an individual perform some, all, or none of the tests. Defendant in this case did not perform any of the field sobriety tests. The state has not tried to differentiate between "testimonial" aspects and "non-testimonial" aspects of the tests. As proponent of the evidence of defendant's refusal, the state has the burden, after appropriate objection has been raised, of establishing the admissibility of the evidence. See State v. Carlson, 311 Or. 201, 208, 808 P.2d 1002 (1991) (stating principle). When a police officer does not specify to an individual at the time the request is made which tests the individual will be required to perform, we must assume that a generic request to perform "field sobriety tests" constitutes a request that the individual perform all of the tests approved in OAR 257-25-020(1). Thus, for purposes of our analysis in this case, if any aspect of the field sobriety tests involves "testimonial" evidence, then the request that defendant perform the tests involves a request for testimonial evidence. See State v. Hickmann 273 Or. 358, 540 P.2d 1406 (1975) (issue not argued to trial court by losing party may not later be used as a basis for overturning decision of trial court). See also Strong, 1 McCormick on Evidence § 52, at 205-07 (discussing principle). For the following reasons, we conclude that evidence of an individual's performance of at least some aspects of the field sobriety tests is classic "testimonial" evidence that cannot be compelled under Article I, section 12. Under Article I, section 12, "testimonial" evidence is not limited to verbal statements of fact or belief. Rather, as explained above in connection with evidence of refusal, "testimonial" evidence includes any evidence of conduct communicating the individual's state of mind.[6] *1030 Some of the field sobriety tests involve verbal statements that communicate information regarding an individual's state of mind. Many of the field sobriety tests authorized by OAR 257-25-020(1) draw upon the individual's memory, perception, and ability to communicate, i.e., his or her testimonial capacity. For example, the tests involve counting, OAR 257-25-020(1)(b), (1)(f), (1)(h); answering questions relating to the individual's residence and date of birth, OAR 257-25-020(1)(d)(B); estimating a period of time, OAR 257-25-020(1)(i); and reciting the alphabet, OAR 257-25-020(1)(g). There can be no doubt that those aspects of the field sobriety tests require the individual to communicate information to the police about the individual's beliefs, knowledge, or state of mind. Accordingly, we conclude that at least those aspects of the field sobriety tests are clearly "testimonial" under Article I, section 12, of the Oregon Constitution. Because a refusal to perform field sobriety tests and the performance of such tests are both "testimonial," defendant was compelled to testify against himself. ORS 813.136 required defendant to choose between two options, neither of which the state could compel defendant to take. The "choice" embodied in ORS 813.136 is even more illusory than the "choice" embodied in the paradigmatic "cruel trilemma." ORS 813.136 created a "cruel dilemma" for this defendant. He could choose (1) to testify against himself by performing the field sobriety tests, or (2) to testify against himself by refusing to perform the tests.[7] In other words, defendant was not given a choice as to whether he would incriminate himself, but only as to how he would incriminate himself. Because the state cannot compel defendant to provide either form of testimony, such a "choice" constituted compulsion under Article I, section 12, of the Oregon Constitution. The statutory scheme of ORS 813.135 and 813.136 effectively eliminated defendant's ability to invoke his right against compelled self-incrimination. Under that scheme, defendant had no "choice" by which he could exercise his right against self-incrimination without that exercise being admitted as substantive evidence of guilt. For example, in response to a police officer's request to perform field sobriety tests, if defendant were to say, "I am exercising my right to remain silent under Article I, section 12, of the Oregon Constitution," that response would be treated as a refusal to perform the tests, and the refusal would be admissible as substantive evidence of guilt under ORS 813.135 and ORS 813.136. It is fundamental that the assertion of the right against self-incrimination cannot be considered as evidence of guilt. See State v. Wederski, 230 Or. 57, 62, 368 P.2d 393 (1962) (if the state may refer to a defendant's exercise of the right against self-incrimination with impunity, the right is "meaningless"). By creating a scheme whereby defendant could not invoke his right against compelled self-incrimination, the automatic admission of defendant's refusal to perform field sobriety tests under ORS 813.135 and ORS 813.136 would violate Article I, section 12, of the Oregon Constitution. Justice Graber's dissent cites South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), for the proposition that "[t]o require the making of a choice between two courses of action is not the same as to compel either of the two courses of action." 321 Or. at 87, 893 P.2d at 1045. The dissent's reliance on Neville is misplaced. In Neville, the issue was whether the defendant's refusal to submit to a blood-alcohol test that the police sought to administer after the defendant was arrested and given Miranda warnings was admissible under the self-incrimination clause of the Fifth Amendment. *1031 The United States Supreme Court held that the evidence did not violate the Fifth Amendment because the defendant's refusal was not "compelled." The Court's reasoning was premised on the fact that "the State could legitimately compel the suspect, against his will, to accede to the test." 459 U.S. at 563, 103 S. Ct. at 922. The Court stated: "* * * We hold, therefore, that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination." Id. at 563-64, 103 S. Ct. at 922-23. Neville involved evidence of the defendant's refusal to submit to a search, to which the police could lawfully compel the defendant to submit, as a search incident to a lawful arrest. The defendant in Neville did not challenge the state's ability to compel him to take the test. Thus, the defendant's choice was between submitting to a test that he had no right to refuse or suffering the consequences of refusal. Although this case, like Neville, involves a refusal to submit to a search, see State v. Nagel, 320 Or. 24, 31, 880 P.2d 451, 880 P.2d 451 (1994) (administration of field sobriety tests constitutes a search), Neville is inapposite because of the "testimonial" nature of the search involved here. Unlike the "non-testimonial" blood-alcohol test in Neville, the type of evidence involved in defendant's "choice" in this case as to both the performance of the field sobriety tests and the refusal is "testimonial." Defendant is given a choice only between two ways of incriminating himself. The state has no legal right to compel either choicei.e., the state has no right to compel defendant to testify against himself. Even the Supreme Court in Neville recognized that a choice between such "prohibited choices," 459 U.S. at 563, 103 S. Ct. at 922, constitutes compulsion: See also id. at 563-64, 103 S. Ct. at 922 ("[n]or is this a case where the state has subtly coerced [the defendant] into choosing the option it had no right to compel, rather than offering a true choice"). Thus, even considering Neville,[8] requiring the an individual to choose from two options, both of which produce self-incriminating "testimonial" evidence, amounts to "compulsion." *1032 In sum, ORS 813.136 gives defendant a "choice" between performing field sobriety tests or having his refusal admitted against him. However, both available choices are self-accusatory, i.e., they require defendant to incriminate himself. Requiring an individual to choose between two options, neither of which the state could compel the defendant to take, constitutes compulsion under Article I, section 12.[9] The evidence of defendant's refusal to perform field sobriety tests in this case is compelled "testimonial" evidence. The self-incrimination clause of Article I, section 12, precludes such evidence from being admitted against defendant in this criminal proceeding.[10] The district court properly excluded the evidence on that basis. The decision of the Court of Appeals is reversed. The order of the district court is affirmed. GILLETTE, J., concurred in part and dissented in part and filed an opinion in which VAN HOOMISSEN and GRABER, JJ., joined. VAN HOOMISSEN, J., concurred in part and dissented in part and filed an opinion. GRABER, J., concurred in part and dissented in part and filed an opinion in which VAN HOOMISSEN, J., joined. GILLETTE, Justice, concurring in part and dissenting in part. We are called upon once again in this criminal case to assess the scope of the protection provided by Article I, section 12, of the Oregon Constitution. Regrettably, the majority misunderstands the question presented and therefore gives the wrong answer. I therefore feel required to dissent. Let me first note where I agree with the majority: (1) The advice given by the officer in this case was adequate to apprise the suspect of the consequence of the suspect's refusal to take the field sobriety tests. The majority's analysis on this subject is complete and correct. (2) The statutory and regulatory scheme under scrutiny in this case is one that attempts to force a suspect to follow a course of action by giving that suspect a range of choices, with the expectation that the suspect will find the legislatively-preferred choice (in this case, the taking of field sobriety tests) the least onerous alternative. The general parameters of the pertinent inquiry in such a case under Article I, section 12, of the Oregon Constitution, are as described by the majority: The legislature may not require the making of a choice if each of the proffered "choices" is one that the legislature could not, standing by itself, constitutionally require. (3) Finally, the peculiar procedural posture of this case permits the majority to decide the case on a relatively narrow ground, viz., whether any of the field sobriety tests is "testimonial." My agreement with this last proposition, however, does not mean that I agree that any one of the field sobriety tests is, in fact, testimonial, or that I agree that, even if one or more tests were testimonial, it would be appropriate in this case to avoid considering whether each of the other tests also is testimonial.[1] *1033 The foregoing areas of agreement having been noted, I turn to the merits of case. I begin with a note in passing. The majority attempts to show, as it must, that the taking of field sobriety tests is "compelled," for constitutional purposes, by the statutory and regulatory scheme. I need not address that question because, as the majority recognizes, it also must show that the tests, even if "compelled," also are "testimonial." When an individual is given a "choice" among various courses of conduct, the determination whether imposing a requirement that the individual make that "choice" constitutes compulsion depends on the nature of the options. The constitutional rule is straightforward: Where every choice is a course of conduct that the state could not compel an individual to take, mandating by law that an individual make a "choice" among them constitutes compulsion under Article I, section 12. The question presented by this case thus narrows itself to this: Is each and every one of the choices encompassed by the options presented to defendants in ORS 813.136 a choice that the state cannot compel an individual to take? The majority, without any real analysis of the individual tests and, more particularly, of the verbal element in some of those tests, simply waves a wand over them and answers, "Yes." The majority notwithstanding, the correct answer to that question clearly is: "No." ORS 813.136 provides defendant a choice between two courses of conduct: (1) to submit to the field sobriety tests or (2) to have evidence of his refusal to submit be admitted against him. Taking the majority's point that a refusal to submit to field sobriety tests constitutes "testimonial" evidence, which the state cannot compel, in order to determine whether the use of evidence of defendant's refusal would violate Article I, section 12, the court still must determine whether the nature of defendant's other option viz., performance of field sobriety tests, is similarly a course of conduct that the state cannot compel. If it is, defendant would be entitled to prevail but, unless it is, he is not so entitled. In performing field sobriety tests,[2] an individual is required to perform various physical and mental tasks that are designed to elicit responses that demonstrate whether the individual is under the influence of intoxicants. See ORS 801.272 (field sobriety test is "a physical or mental test * * * that enables a police officer or trier of fact to screen for or detect probable impairment from intoxicating liquor, a controlled substance or a combination of intoxicating liquor and a controlled substance"). OAR 257-25-020 specifies nine tests approved by the Oregon State Police and the Board on Public Safety Standards and Training as "field sobriety tests." The majority, with no real explanation, announces that certain of those tests are testimonial and then, having declared victory, quits the field. The majority is, in my view, wrong. Under Article I, section 12, "testimonial" evidence is not limited to verbal statements of fact or belief. Rather, "testimonial" evidence includes any evidence of conduct that significantly communicates the defendant's state of mind.[3] The law recognizes an essential difference between certain types of evidence that it deems to be non-testimonial and other types of evidence that either are or may be testimonial. The class of evidence of the first *1034 type includes evidence that commonly is referred to as "physical" evidence. Both state and federal cases have recognized that physical evidence of condition or identity is not testimonial. Fingerprints, line-ups, handwriting and voice exemplars, blood samples, and even compelled in-court behavior by an accused tending to increase the likelihood of identification by a key witness, are all non-testimonial in nature. The current test, in the federal context, is stated in Pennsylvania v. Muniz, 496 U.S. 582, 588-95, 110 S. Ct. 2638, 2643-47, 110 L. Ed. 2d 528 (1990), a case involving the issue whether there were testimonial aspects to a particular Pennsylvania field sobriety test. The Supreme Court of the United States there set forth the relevant analysis, which I understand to be equally apt under Article I, section 12, of the Oregon Constitution: (Footnote omitted.) The court drew clear lines between the introduction of testimonial evidence against the accused, and the introduction of physical evidence. It held: Id. at 590-91, 110 S. Ct. at 2644-45. The Court then cited instances in which it had applied that analysis to allow the admission of blood samples, Schmerber, 384 U.S. at 765, 86 S. Ct. at 1832-33, testimony derived from a compelled "lineup" and a compelled vocalization of a phrase provided by the police, United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), a compelled handwriting exemplar, Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), and a compelled reading of a transcript in order to provide a voice exemplar, States v. Dionisio, 410 U.S. 1, 7, 93 S. Ct. 764, *1035 768, 35 L. Ed. 2d 67 (1973) ("voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said"). To be sure, the Muniz Court concluded that the challenged question in the Pennsylvania field sobriety test"Do you know what the date was of your sixth birthday?", to which the defendant responded, "No I don't"elicited a testimonial communication of "an express or implied assertion of fact or belief," which placed the suspect in the "`trilemma' of truth, falsity, or silence." Muniz, 496 U.S. at 597, 110 S. Ct. at 2648. The court ruled that any response to such a question, "(whether based on truth or falsity) contains a testimonial component." Ibid. But it is clear that the holding in that case was narrowly limited to the testimonial nature of the particular test; the court fully endorsed the continued vitality of the concept that physical evidence, evidence that revealed something about a suspect's physical condition, was not "testimonial." Oregon decisions that have interpreted Article I, section 12, of our own constitution, have recognized and adhered to the same distinction. One of this court's earliest decisions to rely on that provision noted: State v. Cram, 176 Or. 577, 579-80, 160 P.2d 283 (1945) (citations omitted). The Cram court then proceeded to cite state and federal cases from other jurisdictions to interpret Article I, section 12. The court held: Cram, 176 Or. at 582-83, 160 P.2d 283 (citations omitted). Most pertinent to our present inquiry, the Cram court concluded that medical testimony as to the blood alcohol content of the defendant's blood was not testimonial, but physical. Id. 176 Or. at 593, 160 P.2d 283. Other Oregon court interpretations of the privilege have not materially deviated from the foregoing principle. See, e.g., State v. Black, 150 Or. 269, 289, 42 P.2d 171, 150 Or. 269, 44 P.2d 162 (1935) (requiring a defendant to exhibit his body is not testimony about his body, but his body itself); State v. Carcerano, 238 Or. 208, 215, 390 P.2d 923 (1964), cert. den, 380 U.S. 923, 85 S. Ct. 921, 13 L. Ed. 2d 807 (1965) (compelling defendant to arise); State v. Fisher, 242 Or. 419, 410 P.2d 216 (1966) (handwriting exemplar could be taken without informing defendant of right to counsel); State v. Tracy, 246 Or. 349, 361, 425 P.2d 171 (1967) (taking defendant's trousers at arrest not testimonial); State v. Hughes, 252 Or. 354, 449 P.2d 445 (1969) (handwriting not testimonial); State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994) (no expectation of privacy in voice exemplar). See also, State v. Miller, 2 Or.App. 353, 467 P.2d 683 rev. den., (1970) (voice identification); State v. Brotherton, 2 Or.App. 157, 159-60, 465 P.2d 749 (1970) (production of physical evidence not testimonial); Kessler v. Cup, 11 Or.App. 392, 502 P.2d 281 (1972) (donning a stocking cap not testimonial, citing federal cases); State v. Gardner, 52 Or.App. 663, 669, 629 P.2d 412 (1981) (breath test non-testimonial) (citing Schmerber, 384 U.S. at 761, 86 S.Ct. at 1830-31); State v. Anderson, *1036 53 Or.App. 246, 248-50, 631 P.2d 822 (1981) (refusal to submit to breath test admissible under Article I, section 12, of Oregon Constitution). From the foregoing cases, I derive the following statement of Oregon constitutional law: Compelling a person to produce physical evidence concerning the person's identity, appearance, or physical condition, and the subsequent use of that evidence against that person in a criminal proceeding, do not violate the defendant's rights under Article I, section 12, of the Oregon Constitution, because such physical evidence is not "testimonial." It follows that a legislative scheme that presents a person with a choice of courses of action, one of which involves surrendering physical evidence of the kind discussed, does not violate Article I, section 12, because one of the alternatives that the person may choose is not a constitutionally impermissible one. That rule is in accordance with the great weight of authority from around the nation.[4] It is frustrating not to have the majority even acknowledge, much less analyze the pertinence of, the "physical evidence" rule. I turn to a determination whether any of the field sobriety tests described in OAR 257-25-020(1) is "testimonial." For the purposes of that inquiry, I shall discuss each of the tests separately and briefly.[5] 1. The horizontal gaze nystagmus (HGN) test. (OAR 257-25-020(1)(a)). *1037 This test involves an officer's asking a suspect to move the suspect's eyes in a particular way, with the officer observing the manner in which the eyes move to determine if the movement is characteristic of impairment due to alcohol, controlled substances, or both. The observations are purely physical. The HGN test is not testimonial. 2. The walk-and-turn test. (OAR 257-25-020(1)(b)). This test involves having a suspect walk a line for a distance, then reverse course and walk back. The suspect is directed to count the steps as they are taken, but it is self-evident that the purpose of the counting simply is to require to suspect to conduct a second, rote activity as a possible source of distraction from the primary activity. This test is designed to investigate only gross motor physical activity, which the officer once again observes to determine whether the manner in which it is performed suggests impairment. The test is not testimonial. 3. The one-leg stand. (OAR 257-25-020(1)(c)). Unlike the walk-and-turn test, this test has a verbal component. Under the test, the suspect is asked to stand straight up, heels together, arms at sides. The officer then asks the suspect to raise one foot approximately six inches off the ground and, while in that position and looking at that foot, to count from 1001 through 1030. The exercise then is repeated with the other foot. This test does call on the suspect to report something that is in the suspect's mind, viz., the suspect's knowledge of the proper counting sequence of numbers from 1001 through 1030. However, for the reasons that follow, I do not believe that such a minimal inquiry into the suspect's knowledge produces a testimonial result. The physical part of the one-leg stand test clearly is not testimonial. But neither is the recitation part, when its purpose is considered. The one-leg stand test is designed to determine a suspect's capacity to perform two tasksone physical and one mental while the officer determines from what he observes whether the way in which those tests are performed indicates that the suspect should not be driving. In asking a suspect to recite numbers, the officer is using a societal commonplace (counting) that is totally fundamental, neutral, and nonspecific to the individual. Virtually every member of our society has been able to count since early childhood; an unimpaired person should be able to do so as if he or she were chanting a mantra. That is, it is the facility, rhythm, and cadence of the exercise that the officer is looking for, not whether this particular suspect knows that 1003 follows 1002. Yet another way to look at the problem is to imagine the officer asking the suspect to recite something back to the officer that the officer dictates and that the suspect presumably is not familiar with beforehandan exemplar. For example, the officer might ask the suspect to listen to and then recite back elementary Latin ("hic, haec, hoc"; "amo, amas, amat") or to count by tens in German ("zehn, zwanzig, dreizig "). Asking a suspect to recite sequential Arabic numbers instead is a shorthand for the foregoing exercise, equally inoffensive to the constitutional protection at issue. I would hold that this test is not testimonial. 4. The Romberg balance test. (OAR 257-25-020(1)(d)). Like the one-leg stand test, this test has a verbal component. Under the test, the suspect is asked to stand straight up, heels together, arms at sides, with eyes closed. The officer then asks the suspect various questions (the rule suggests the questions, "Where do you live?" and "What is your date of birth?") while observing the degree of swaying that occurs as the suspect tries to do two things at once. If it appeared that the content of the answers that are given had anything to do with the test, there might at least be some issue as to whether the test were testimonial. However, it is clear from the language of the rule itself that the purpose of the test is to challenge the suspect physically, not to plumb the suspect's mind. (I also note that, as to the two questions recommended by the rule, the officer routinely would be allowed to ask those questions in any event as a way of identifying the suspect, either at the scene or later at a *1038 booking facility.) I would hold that this test is not testimonial. 5. The modified finger-to-nose test. (OAR 257-25-020(1)(e)). Again, the test involves only physical dexterity. It is not testimonial. 6. The finger count. (OAR 257-25-020(1)(f)). This test involves asking the suspect to hold out a hand and touch each of the fingers in turn with the thumb, counting "1-2-3-4" and "4-3-2-1." There is a verbal component, but it is like that in the walk-and-turn test. It is clear that the purpose of the test is to see how well the suspect can perform two simple activities at the same time. What we observed concerning the one-leg stand test applies equally here: The verbal component simply is too minimal, too fundamental, and too impersonal to make it testimonial in the constitutional sense. 7. The alphabet. (OAR 257-25-020(1)(g)). Under this test, the suspect is asked to recite the alphabet, or any portion of the alphabet that the officer chooses. The only component of the test is a verbal one. This test comes closer to being testimonial than does any other test discussed thus far: It has no physical component to go with it, so it must be intended that the specific content of the suspect's recitation will be used as evidence against the suspect. I nonetheless conclude that the test is not testimonial. As was true of the one-leg stand and finger count tests, the information that the officer elicits is not personal to the suspect, but rather is a common denominator of the culture. The alphabet commonly is learned at a very early age, and the capacity to recite it thereafter is completely unremarkable.[6] Similarly, the inability to recite it is less testimonial in any communicative sense than it is a portrayal of physiological impairment. I would hold that this test is non-testimonial. 8. Counting. (OAR 257-25-020(1)(h)). Under this test, the suspect is asked to count any length of numbers, forward or backward, that the officer wishes. The analysis of this test is precisely the same as that of the alphabet test. The test is not testimonial, because the information sought is so fundamental and is so completely unrelated to the individual suspect. This point is perhaps best made with an illustration: An officer might, instead of using the specific test involved here, say to a suspect: "Please recite back to me the following numbers: 23, 6, 9, 44, 18." Without question, the suspect's ability to perform that test would not be testimonial, because the sole purpose of the exercise would be to test the suspect's ability to hear, recollect, and report, not to plumb the suspect's mind for information peculiar to the suspect. Asking a suspect to deal instead with a series of numbers in the manner directed by the present test really is no different, because the almost universal awareness of those numbers serves as a practical substitute for the officer's specifically naming them. I would hold that this test is non-testimonial. 9. Internal clock. (OAR 257-25-020(1)(i)). Under this test, the suspect is asked to tell the officer when thirty seconds have elapsed. The officer compares the suspect's estimate with the actual passage of time. I would hold that this test, like the two that precede it, is not testimonial. Testing for a sense of the passage of such a brief period of time is not an exercise in peering into the thoughts of the suspect. Based on the foregoing, I conclude that no part of the field sobriety tests established in OAR 257-25-020(1) violates defendant's right not to be "compelled in any criminal prosecution to testify against himself" under Article I, section 12, of the Oregon Constitution. It follows that use in a criminal proceeding of evidence of defendant's refusal to take those tests likewise does not offend Article I, section 12. The district court erred in ruling to the contrary. The majority, with its completely *1039 unimaginative and mechanistic "if the suspect opens his or her mouth, it's testimonial" approach, errs as well. My view of the scope of the Oregon constitutional protection as not extending to defendant in the present circumstances requires me to turn now to the remaining question, which is whether all or a portion of the field sobriety tests violate defendant's rights under the Fifth Amendment to the Constitution of the United States. Again, I would hold that there is no violation. The only argument that reasonably could be made that any part of the field sobriety tests violates the Fifth Amendment would be based on the decision of Supreme Court of the United States in Pennsylvania v. Muniz, which is discussed at length above. As noted, the Court in that case held that the answer by a suspect to a question concerning the date of the suspect's sixth birthday was deemed by a bare majority of the Court to be testimonial. Muniz, 496 U.S. at 592-600,110 S. Ct. at 2645-50. Even the majority of the Court in that case appeared to recognize, however, that it is not every verbalization that becomes testimonial. Id. I have attempted, in my discussion of the various field sobriety tests in connection with Article I, section 12, of the Oregon Constitution, to explain why, in my view, the unique, simplistic, and fundamental nature of the verbalizations required of suspects under those tests did not rise to the "testimonial" level. Obviously, reasonable minds can differ, and the question is a close one. But I believe that the nature of the answers called for by the Oregon tests differs so completely from the personal information sought in Muniz that the Supreme Court of the United States would agree that the Oregon field sobriety tests do not implicate the Fifth Amendment.[7] The majority opinion in this case is wrong, and mischievously so. Whether it is a narrow opinion that merely causes havoc by its refusal fully to explain itself or is, instead, the harbinger of this court's complete destruction of the ability of police officers to conduct field sobriety tests, the unnecessary harm that it does to the public's right to be protected from intoxicated drivers is deplorable. I dissent. VAN HOOMISSEN and GRABER, JJ., join in this opinion. VAN HOOMISSEN, J., concurring in part; dissenting in part. I agree with the majority that the warning given by the deputy complied with the requirements of ORS 813.135. I dissent from the majority's conclusion that the admission of a defendant's refusal to perform field sobriety tests as substantive evidence of guilt in a criminal proceeding violates Article I, section 12, of the Oregon Constitution.[1] I would hold that the trial *1040 court erred in granting defendant's motion to suppress. First, as the overwhelming majority of cases from other jurisdictions hold, taking field sobriety tests is not "testimonial." All of the nine field sobriety tests authorized by OAR 257-25-020(1) are designed to obtain evidence of a person's coordination, psychological condition, and physical capabilities. State v. Nagel, 320 Or. 24, 36, 880 P.2d 451 (1994). Several of the tests obtain that evidence in part by having the accused speak certain common words or numbers in a certain way, but it is not the content of that speech that the police are seeking. See Doe v. United States, 487 U.S. 201, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988) (a court order compelling witness to execute a consent form directing the disclosure of foreign bank records did not violate the Fifth Amendment, because the communication itself did not, explicitly or implicitly, relate a factual assertion or disclose information; the content had no testimonial significance). Indeed, the content is selected in advance by the police; nothing original is taken from the mouth, mind, or thought of the accused. Instead, the relevance of the verbalizations required by the tests lies in what they portray of the accused's uncontrollable response to the presence of alcohol in his or her bloodstreama physical circumstance that goes to the heart of a DUII prosecution. In this case, the police were not asking for permission to wring from defendant the innermost secrets of his mind; they were trying to determine the compatibility of his alcohol-impaired physical Skills with the driving of a motor vehicle. The police had a right to do that, because the people of this state had a right to authorize them to do that. Even when a field sobriety test requires a driver to speak in response to a direction such as "count backwards from 100 to 75," or "recite the alphabet from A to Z," taking the test is not "testimonial," because it does not require the driver to reveal any meaningful knowledge, understanding, or thought process. In this sense, the request is no more "testimonial" than is requiring a defendant to make a voice exemplar for comparison purposes. See Nagel, 320 Or. at 35, 880 P.2d 451 (no expectation of privacy in the quality of one's voice, i.e., a voice exemplar); see also United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973) (compelling witness to furnish a voice exemplar did not violate Fifth Amendment); Annotation, Requiring Suspect or Defendant in Criminal Case to Demonstrate Voice for Purposes of Identification, 24 ALR 3d 1261 (1969 and Supp 1994). Within the meaning of Article I, section 12, none of the field sobriety tests reveal anything about a driver's "state of mind." None of the tests reveals anything about a driver's "beliefs or knowledge."[2] It is no more "testimonial" than ordering a defendant to speak a paragraph of text to permit another person to comment on any similarity in characteristics between the speaker's voice and that of another. In such cases, refusal to submit is a physical act rather than a communication, and for that reason it is not protected by the privilege.[3] *1041 Evidence of refusal to take a potentially incriminating test is similar to other circumstantial evidence of consciousness of guilt, such as escape from custody and suppression of evidence. Defendant's refusal to submit to field sobriety tests in this context is not "testimonial" within the meaning of Article I, section 12. I agree with Justice Gillette's analysis on this point. The following text from a recent opinion of the Court of Special Appeals of Maryland correctly states my view of this matter: Second, I agree with Justice Graber that defendant's refusal to submit to field sobriety tests in this context is not "compelled" within the meaning of Article I, section 12. The majority advances no principled explanation for concluding that such a refusal is "compelled" in the constitutional sense.[4] Third, ORS 813.135 provides in part: Whatever Article I, section 12, right a driver may have, the driver has waived that right by impliedly consenting to submit to field sobriety tests in this context. Cf. State v. Newton, 291 Or. 788, 793-98, 636 P.2d 393 (1981) (tracing the history of blood alcohol implied consent statutes). ORS 813.135 explicitly states that such consent has been given. Because defendant consented to submit to field sobriety tests, Article I, section 12, is not implicated. Moreover, simply because the driver has consented (under the implied consent law) to make that choice, and to face the statutory consequences, when the driver exercises his or her driving privileges in Oregon, the choice of refusing to take field sobriety tests is not "compelled." Fourth, because of the pervasive regulation to which the activity of driving has been subjected in this state, where that activity is concerned, a driver has a reduced level of *1042 constitutional protection.[5]Cf. Mackey v. Montrym, 443 U.S. 1, 17-18, 99 S. Ct. 2612, 2620-21, 61 L. Ed. 2d 321 (1979) (recognizing state's "compelling interest in highway safety"); Bibb v. Navajo Freight Lines, 359 U.S. 520, 523-24, 79 S. Ct. 962, 964-65, 3 L. Ed. 2d 1003 (1959) ("The power of the State to regulate the use of its highways is broad and pervasive. * * * [S]afety measures carry a strong presumption of validity"). ORS 813.135 and 813.136 are permissible limitations on the Article I, section 12, right of any person who drives on Oregon's highways. The administration of field sobriety tests and the use in court of a driver's refusal to take those tests, therefore, does not, on its face, violate Article I, section 12, in the manner argued by defendant. Although the majority did not address defendant's arguments under the Fifth And Fourteenth Amendments, I would reach the same conclusion under the federal constitution. The Fifth Amendment's protection applies only when the accused is compelled to make a testimonial communication that is incriminating. Baltimore Soc. Serv. v. Bouknight, 493 U.S. 549, 554, 110 S. Ct. 900, 904-05, 107 L. Ed. 2d 992 (1990). The challenged statutes and their implementing rules do not violate defendant's Fifth and Fourteenth Amendments rights in the manner argued by defendant. Cf. Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990); South Dakota v. Neville, 459 U.S. 553, 562-64, 103 S. Ct. 916, 921-23, 74 L. Ed. 2d 748 (1983). The majority opinion in this case is very narrow in scope. It holds no more than that certain specific tests are "testimonial," thereby making it unconstitutional to require a person accused of DUII either to consent to perform those specific tests or to have the person's refusal used against the person in subsequent criminal proceedings. Regrettably, the majority opinion does not identify which tests that it concludes are "testimonial." Because the majority opinion does not answer the question whether a driver's refusal to take specific field sobriety tests that do not contain a verbal, i.e., "testimonial," component will be admissible in evidence under ORS 813.136 at that drivers' DUII trial, see 321 Or. at 59 n. 6, 893 P.2d at 1029 n. 6, law enforcement officers, litigants, lawyers, judges, and the Legislature[6] are left to speculate on the outcome of hundreds, if not thousands, of future DUII prosecutions that will arise before that question is answered by this court. In the interim, I suppose that officers may be instructed by their superiors to decline to administer any field sobriety tests. See OAR 257-25-020(2) (officer has discretion to administer any, all, or none of the tests). Or they may be instructed to administer only field sobriety tests that contain no verbal component and, therefore, do not require a driver to speak.[7] Before doing so, however, an officer should specifically advise a driver that none of the tests to be taken will require the driver to speak. That is to say, that none of the tests call for a verbal response. Generally, an officer always may testify at trial about what the officer observed at the scene of the stop, e.g., the driver's erratic driving, unstable walking, the fumbling manner in which the driver produces his or her driver's license at the officer's request, odor of alcohol, bloodshot eyes, slurred speech, lack of coordination, etc. See OAR 257-25-010(1)(a) to (n) (acts, signs, or symptoms of probable impairment not listed and not administered as field sobriety tests). In every case, the officer should make a good record *1043 of what he or she has observed in gathering any such physical evidence.[8] I join the dissents of GILLETTE, J., and GRABER, J. GRABER, Justice, concurring in part and dissenting in part. I concur in the majority's holding that the warning given by the officer sufficiently informed defendant of his right to refuse to take field sobriety tests and of the consequences of refusal. The requirements of ORS 813.135 and 813.136 and their implementing rules, relating to what a detained driver must be told, were met. For the reasons discussed below, however, I dissent from the majority's holding that defendant's right against self-incrimination under Article I, section 12, of the Oregon Constitution, was violated. The majority departs from established Article I, section 12, analysis, by failing to focus on the setting in which the police interrogation occurs. Article I, section 12, provides in part: "No person shall * * * be compelled in any criminal prosecution to testify against himself." The majority recognizes that, to receive protection under the self-incrimination clause of Article I, section 12, a person's statements or acts must be both "testimonial" and "compelled." 321 Or. at 53, 893 P.2d at 1026. The constitutional prohibition is not against all self-incrimination, but only against "compelled" self-incrimination. The constitution does not require suppression of responses made to a police officer, including refusals to give information, during a lawful, non-compelling encounter. I would hold that the evidence challenged heredefendant's refusal to take field sobriety testswas not "compelled."[1] Under Article I, section 12, this court has considered the concept of compulsion in determining whether a defendant is entitled to Miranda-like warnings. In that case, the court held that the defendant was not in custody and that his surroundings did not create a setting of compulsion. Id. at 8, 791 P.2d 836. Accordingly, his statements to the police were admissible in evidence at his trial, despite the absence of warnings. Ibid. Smith addressed the question of when Miranda-like warnings are required under Article I, section 12, and held that they must be given in any setting involving compelled police interrogation. The compulsion analysis in Smith was not limited to the issue of when Miranda-like warnings are necessary, however; Smith covered all forms of compulsion arising in the context of police interrogation. The requirement of warnings is simply one result of determining that compulsion is involved. Smith represents a closed set. If self-incriminating testimony was elicited during police interrogation under circumstances that rendered the testimony "compelled" within the meaning of Article I, section 12, then Miranda-like warnings were required; such warnings are required whenever self-incrimination is compelled during police interrogation; and a defendant cannot successfully assert a violation of the right to be free *1044 from compelled self-incrimination under Article I, section 12, during police interrogation unless the defendant was in a setting that demanded the prior administration of such warnings, because only such settings are compelling for Article I, section 12, purposes. Thus, State v. Smith sets the relevant standard under Article I, section 12, for the present case. In Smith, this court held that Miranda-like warnings are required both when a person is in "full custody" and when a person is in any other "setting that judges would * * * recognize to be compelling." 310 Or. at 7, 791 P.2d 836 (citation omitted) (internal quotation marks omitted). In Smith terms, the issue in the present case becomes whether, during a valid stop (i.e., a stop that is neither custodial nor coercive), the request to administer field sobriety tests constitutes "full custody" or "create[s] a setting which judges would and officers should recognize to be compelling," ibid. (internal quotation marks omitted), within the meaning of Article I, section 12. This opinion next applies that two-part analysis. First, a driver who is asked to take the challenged field sobriety tests, without more, is not in "full custody." See Smith, 310 Or. at 7, 791 P.2d 836 (stating that standard); see also ORS 133.005(1) (defining to "arrest" in part as "to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense" (emphasis added)). A driver who has merely been stopped is not under arrest when the request is made to take the tests or when responding, affirmatively or negatively, to that request. See State v. Vu, 307 Or. 419, 425, 770 P.2d 577 (1989) (a driver stopped for traffic infractions and then questioned was not entitled to Miranda-like warnings under Article I, section 12, because he was not in custody or under compulsion in the constitutional sense). I next consider whether, in the circumstance that defendant faced, ORS 813.135 and 813.136 and their implementing rules "create a setting which judges would and officers should recognize to be compelling." See Smith, 310 Or. at 7, 791 P.2d 836 (stating that standard) (internal quotation marks omitted). After a police officer has asked a driver to submit to field sobriety tests, the driver may refuse to do so, albeit with possible evidentiary consequences. No direct punitive consequences flow from a refusal to take the challenged field sobriety tests. The officer's request during a valid stop does not, in my view, create a setting that is "compelling." Most of the majority's opinion is devoted to demonstrating that some aspects of the field sobriety tests and the failure to submit to them are "testimonial" within the meaning of Article I, section 12. 321 Or. at 53, 57, 58-60, 893 P.2d at 1026, 1028, 1028-30. Assuming that a refusal to take the field sobriety tests is "testimonial," the majority advances no principled explanation for concluding that such a refusal is "compelled" in the constitutional sense. Instead, what little the majority says on the subject boils down to this construct: 2. All choices that the driver faces are incriminating. 321 Or. at 57-58, 60-63, 893 P.2d at 1028-29, 1030-32. Under existing case law, that construct is faulty. An example will illustrate the point. Suppose that a police officer lawfully stops someone for speeding; it is afternoon, the officer is alone, and the location is a well-traveled commercial street. The officer asks the driver, "What do you know about the robbery at the grocery store that happened 10 minutes ago, a few blocks from here?" The driver has three choices: (1) she can confess to the robbery, either by words or by flight; (2) she can deny any knowledge of the robbery (which, if she is the robber, is a lie); or (3) she can refuse to cooperate, either by words or by silence. All three choices are testimonial; assuming that the driver is the robber, all are incriminating. Are the driver's responses nonetheless admissible in evidence at her trial for robbery of the grocery store? Under present law, they are, because the setting in which the evidence was obtained, *1045 at the time it was obtained, was not compelling in a constitutional sense. In other words, this court's prior cases on compulsion under Article I, section 12, have stated or assumed that the questioned person's choices all were testimonial and incriminating; but that has been only the starting point, not the ending point, of the analysis of compulsion. That analysis has focused on the nature of the defendant's encounter with the police. Here, the majority fails to focus on the nature of defendant's encounter with the police. Were it to do so, its result would not withstand scrutiny. As discussed above, under Smith and Vu the valid stop itself is not compelling; defendant's acts and statements, whether testimonial or not, cannot be deemed "compelled" under Article I, section 12, because they do not occur in a setting that is compelling. That examination of the setting in which evidence was obtainedat the time it was obtainedis the test heretofore applied by this court. Does the existence of a statute mandating that the police inform the driver of the consequence of refusal make the encounter "compelling" within the meaning of Article I, section 12? I believe that the answer is "no." ORS 813.136 represents a particularized codification of the usual principle that responses to police questioning are admissible in evidence unless given under compulsion. One of the functions of the statutes under consideration is to tell drivers about that usual principle of admissibility. See ORS 813.135 ("Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests."). Accordingly, ORS 813.135 and 813.136 give drivers more information about the result of their failure to take field sobriety tests than they would receive in the absence of a statute. If the statutes give drivers more information than they need receive under Article I, section 12, the statute does not have the effect of denying a constitutional protection. The informational aspect of the statutes does not make a non-compelling setting compelling for Article I, section 12, purposes. Does the fact that the driver must make a choice between testimonial, incriminating courses of actionwithout moremake the encounter "compelling" within the meaning of Article I, section 12? Again, I believe that the answer is "no." To require the making of a choice between two courses of action is not the same as to compel either of the two courses of action. See South Dakota v. Neville, 459 U.S. 553, 564, 103 S. Ct. 916, 923, 74 L. Ed. 2d 748 (1983) (citing Crampton v. Ohio, decided with McGautha v. California, 402 U.S. 183, 213-17, 91 S. Ct. 1454, 1470-72, 28 L. Ed. 2d 711 (1971), Court held: where a state statute gave the defendant the choice of submitting to a blood-alcohol test or refusing to do so, the defendant's "refusal to take a blood-alcohol test, after a police officer [had] lawfully requested it, [was] not an act coerced by the officer, and thus [was] not protected by the privilege against self-incrimination"). Does the existence of a statute mandating introduction of evidence obtained during the encounter make an otherwise non-compelling setting into a compelling setting? Once again, I believe that the answer is "no." A "yes" answer would make the result of a compulsion analysis (admissibility of evidence versus inadmissibility) into the analysis itself. Exclusion of evidence is not a separate right. Rather, it is a consequence of compulsion or of some other violation of a defendant's constitutional rights. See State v. Davis, 313 Or. 246, 253-54, 834 P.2d 1008 (1992) (exclusionary rule is a means to vindicate the right of an individual defendant when evidence has been "obtained in a manner contrary to Oregon's constitutional rules"). ORS 813.136 is limited to stating a resultadmissibility. The logical consequence of the majority's reasoning is this: If the legislature enacts a statute providing that "evidence gained from a suspect by an investigating police officer in a non-compelling setting shall be admissible in evidence," such evidence would be inadmissible because of the statute, even though such evidence now is admissible on the ground that it has not been obtained in a manner contrary to Oregon's constitutional rules. *1046 Such an analysis makes no sense. The existence of a statute describing the result of what evidence is admissible, in a later court proceeding, does not transform the nature of the setting in which the challenged evidence was obtained in the first place. Stated another way, the fact that a statute says that acts and statements occurring in a non-compelling setting may be used against a defendant does not make the original setting compelling, retroactively.[2] The majority's assertion that the statutes compelled defendant's refusal to take the tests also fails for another reason. The majority ignores the undirectional nature of the pressure inherent in the statutes. "The main purpose of the second sentence of ORS 813.135 was * * * to bring further pressure on suspected intoxicated drivers to take the field sobriety tests." State v. Trenary, 316 Or. 172, 177, 850 P.2d 356 (1993) (emphasis added).[3] That "further pressure" exists to discourage suspected intoxicated drivers from refusing to take the tests; if "compulsion" can be found in the statutes, that compulsion exists only to push drivers to take the tests, not to refuse. The "compulsion" that the majority finds as to refusal simply does not exist. In State v. Green, 68 Or.App. 518, 523-24, 684 P.2d 575, rev. den. 297 Or. 601, 687 P.2d 795 (1984), then Judge (now Justice) Gillette emphasized the foregoing kind of distinction. "These principles apply equally to non-verbal activity with communicative effects. Thus, evidence of flight is admissible to show a defendant's consciousness of guilt. If the jury finds that a defendant's flight shows a consciousness of guilt, it has found that the defendant has, in effect, said, `I know that I am guilty, so I don't want to be caught and tried.' The conduct is communicative, and it is the communicative effect that the state places in evidence. It is permitted to do so, however, not just because of the nature of the evidence but also because the communication is not compelled; if the state seeks to compel anything, it is that defendant not flee and thus that he not communicate." (footnotes *1047 omitted) (citations omitted) (emphasis in original). The Court of Appeals in Green also recognized that the key issue is whether the evidence of refusal is compelled, not whether it is testimonial. In State v. Carlson, 311 Or. 201, 808 P.2d 1002 (1991), this court likewise recognized the importance of the link between what makes the evidence "testimonial" and what makes the evidence "compelled." In Carlson, the defendant challenged his conviction for possession of a controlled substance. 311 Or. at 203, 808 P.2d 1002. The Oregon constitutional issue was whether the defendant was in a setting that entitled him to receive Miranda-like warnings before being questioned by a police officer. Id. at 204-05, 808 P.2d 1002. The defendant argued that admission of statements that he made to a police officer about needle marks on his arms violated his Article 1, section 12, right against self-incrimination. Ibid. The court stated that After addressing, and rejecting, the defendant's constitutional argument that the setting was compelling for Article I, section 12, purposes, the court held that the defendant's statements were admissible at trial. Id. at 205, 808 P.2d 1002. The foregoing passage demonstrates that this court looks to the setting in which one suspected of illegal activity makes a statement, to determine whether that setting is compelling. If the setting is compelling, the evidence is not admissible. If the setting is not compelling, the evidence is admissible. Once the setting in which the statements were made is deemed "compelled" or "non-compelled," all forms of testimonial evidencesilence, acts, and statementsreceive the same treatment from the perspective of Article I, section 12. The analysis undertaken by the court in Carlson, after the court resolved the Article I section 12, compulsion issue, makes this apparent and counters the suggestion made by defendant in this case that silence in the face of police questioning is entitled to greater protection than speech, even in a setting devoid of compulsion. After the court in Carlson determined that the defendant was in a non-compelling setting, the court addressed whether a police officer's testimony about the defendant's non-verbal response (head-shaking) to an accusatory statement made by the defendant's wife during the defendant's interaction with the police was admissible at trial as an adoptive admission by the defendant. The court held that the defendant's silence was not admissible, because his non-verbal conduct was "so ambiguous that it cannot reasonably be deemed sufficient to establish that any particular interpretation" was intended. Id. at 214, 808 P.2d 1002. As the opinion in Carlson makes clear, however, had the defendant's non-verbal conduct been unambiguous, evidence of it would have been admitted at trial. That is because the defendant's conduct was not compelled. The defendant's silence, like his statement, arose out of a non-compelled setting. The only question that the court needed to address, after resolving the compulsion issue, was whether the evidence complied with applicable Oregon Rules of Evidence. Carlson offers the proper mode of analysis for challenges under the self-incrimination clause of Article I, section 12. The focus for determining whether a response to police questioning was compelled (whether that response be an act or a statement or silence) is to look at the setting at the time of the response. A conclusion about compulsion for Article I, section 12, purposes flows from the nature of one's encounter with the police. It is that setting that determines whether the self-incrimination provisions of Article I, section 12, take effect, not that setting and what happens later at trial. The court made that *1048 clear in Carlson; the majority offers no justification for deviating from that analysis today. In summary, a driver's refusal to take field sobriety tests in the circumstances presented is not "compelled" within the meaning of Article I, section 12. Accordingly, the challenged statutes and their implementing rules do not violate Article I, section 12, in the manner argued by defendant. Because I would hold that the challenged statutes and their implementing rules do not violate defendant's Article I, section 12 rights, I would reach defendant's federal constitutional claim as well. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (court reaches federal constitutional argument after rejecting state constitutional argument). Defendant's argument fails under the Fifth Amendment to the Constitution of the United States, which provides in part: "No person * * * shall be compelled in any criminal case to be a witness against himself." Under the federal constitution, suppression of evidence concerning a defendant's testimony is not required unless that testimony was elicited during "custodial interrogation." Pennsylvania v. Muniz, 496 U.S. 582, 600-02, 110 S. Ct. 2638, 2649-51, 110 L. Ed. 2d 528 (1990). As in the state constitutional analysis, above, it is unnecessary to decide whether the challenged field sobriety tests are designed to elicit "testimonial" evidence within the meaning of the Fifth Amendment or whether a refusal to perform such tests is itself testimonial. Even if testimonial evidence is involved, the Supreme Court's cases demonstrate that a person in defendant's circumstance has not been subjected to "custodial interrogation" within the meaning of the Fifth Amendment. As noted above, the Supreme Court of the United States has held that a driver's refusal to take a blood-alcohol test, after a police officer lawfully requested it, was admissible at his trial for driving while intoxicated. His refusal was not coerced and therefore was not protected by the privilege against self-incrimination. Neville, 459 U.S. at 564, 103 S. Ct. at 922-23. The Court stated that, "[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. * * * Respondent's choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection." Id. at 564 n. 15, 103 S. Ct. at 923 n. 15. Citing Crampton, the Court recognized "that the choice to submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to make. But the criminal process often requires suspects and defendants to make difficult choices." Neville, 459 U.S. at 564, 103 S. Ct. at 922-23. The Court concluded that "no impermissible coercion is involved when the suspect refuses to submit to take the test, regardless of the form of refusal." Id. at 562, 103 S. Ct. at 921-22. In Pennsylvania v. Bruder, 488 U.S. 9, 11, 109 S. Ct. 205, 207, 102 L. Ed. 2d 172 (1988), the Supreme Court considered whether a driver who was stopped by "`a single police officer,'" was asked "`a modest number of questions,'" and was asked to "`perform a simple balancing test at a location visible to passing motorists,'" was entitled to receive Miranda warnings. Among the "questions" that the officer "asked" the suspect was a request to recite the alphabet. Id. at 9-10, 109 S. Ct. at 206-07. The Court did not discuss separately the import of that recitation. Instead, the Court held that the driver was not entitled to receive Miranda warnings during the stop, because he was not in custody during that time. Id. at 11, 109 S. Ct. at 207. See also Berkemer v. McCarty, 468 U.S. 420, 436-40,104 S. Ct. 3138, 3148-50, 82 L. Ed. 2d 317 (1984) (Supreme Court reviewed purposes of Miranda rule and concluded that, although a traffic stop "significantly curtails the `freedom of action' of the driver," police questioning of a driver incident to a traffic stop is "quite different from stationhouse interrogation," in that the driver normally does not feel "completely at the mercy of the police" and "the typical traffic stop is public"; "persons temporarily detained pursuant to such stops are not `in custody' for the purposes of Miranda"). *1049 The Supreme Court cases cited above answer defendant's Fifth Amendment argument. The field sobriety tests are not requested during custodial interrogation. Therefore, the challenged statutes and their implementing rules do not violate the Fifth Amendment in the manner argued by defendant. In summary, I am not persuaded by defendant's arguments. I would hold that the trial court erred in granting defendant's motion to suppress evidence of his refusal to take field sobriety tests. I respectfully dissent from the majority's contrary holding. VAN HOOMISSEN, J., joins in this opinion. [1] ORS 813.135 provides: "Any person who operates a vehicle upon premises open to the public or the highways of the state shall be deemed to have given consent to submit to field sobriety tests upon the request of a police officer for the purpose of determining if the person is under the influence of intoxicants if the officer reasonably suspects that the person has committed the offense of driving while under the influence of intoxicants in violation of ORS 813.010 or a municipal ordinance. Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136." (Emphasis added.) [2] Actions taken by officials acting under delegated authority must comply with applicable administrative rules as well as statutes. Planned Parenthood Assn. v. Dept. of Human Res., 297 Or. 562, 565, 687 P.2d 785 (1984). However, defendant did not raise in the trial court, or make before the Court of Appeals, any argument that the deputy's advice of consequences did not comply with any applicable administrative rules. Nor did the state rely on any administrative rules in arguing that the advice of consequences was adequate. Nevertheless, the Court of Appeals, in holding the officer's advice of consequences to be adequate, relied on an administrative rule promulgated by the Oregon State Police, OAR 257-25-015(2), which provides: "The information about the consequences [of refusal communicated by the officer pursuant to ORS 813.135] need not be in any particular form or order, but shall substantially convey the following: If a person refuses or fails to submit to field sobriety tests as required by law, evidence of the persons' [sic] refusal or failure to submit is admissible in any criminal or civil action or proceeding arising out of allegations that the person was driving while under the influence of intoxicants." Defendant now argues to this court that the Court of Appeals's reliance on OAR 257-25-015(2) is misplaced because the rule improperly lowers the standards for advice of consequences required by police officers. See U. of O. Co-Oper. v. Dept. of Rev., 273 Or. 539, 550, 542 P.2d 900 (1975) ("an administrative agency may not, by its rules, amend, alter, enlarge or limit the terms of a legislative enactment"). We reject that argument because we do not read OAR 257-25-015 as requiring an officer to convey less information about the consequences of refusal or failure to submit to field sobriety tests than is required by ORS 813.135 and 813.136. Defendant does not argue that the State Police lack statutory authority to enact OAR 257-25-105(2). See Planned Parenthood Assn., 297 Or. at 565, 687 P.2d 785 (to determine the validity of administrative action, first inquiry is whether the action was authorized). Nor does defendant argue that the rule requires a more stringent warning than the statute. The Court of Appeals did not decide those issues, nor do we. [3] We decide this case solely under the Oregon Constitution. When we cite federal opinions in interpreting a provision of Oregon law, we do so because we find the views there expressed persuasive, not because we consider this court bound to do so by our understanding of federal doctrines. [4] The foregoing examples of testimonial compulsion are not intended to be exhaustive, but rather are intended to be illustrative of the diversity of situations in which issues regarding Article I, section 12, may arise. [5] The field sobriety tests are described in OAR 257-25-020(1). The tests include the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, the one-leg stand, the Romberg balance test, the modified finger-to-nose test, the finger count, the alphabet, counting, and the internal clock. Id. [6] Whether field sobriety tests are testimonial presents a difficult issue concerning the boundary between "testimonial" and "non-testimonial" evidence. See, e.g., Charles Gardner Geyh, The Testimonial Component of the Right Against Self-Incrimination, 36 Cath U L Rev 611 (1987) (discussing issue); Note, Self-Incrimination Issues in the Context of Videotaping Drunk Drivers: Focusing on the Fifth Amendment, 10 Harv J L & Pub Pol'y 631 (1987) (same); B. Michael Dann, The Fifth Amendment Privilege Against Self-Incrimination: Extorting Physical Evidence from a Suspect, 43 S CalLRev 597 (1970) (same). Because we need only decide if any portion of the field sobriety tests approved in OAR 257-25-020(1) involves "testimonial" evidence, we need not delineate the precise contours of "testimonial" evidence under Article I, section 12. Accordingly, we express no opinion regarding whether aspects of the field sobriety tests other than those we expressly address are "testimonial" or "non-testimonial." [7] It might be argued that defendant had a third choiceto walk away from the scene. ORS 813.136 allows admission of both refusal and "fail [ure] to submit." Thus, if a defendant were to walk away from the scene, it would be treated as a refusal. Moreover, even if walking away were an option, doing so could subject defendant to possible criminal liability. See, e.g., ORS 811.540 (class A misdemeanor to flee or attempt to elude police). [8] As noted, the facts in South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), differ in a material way from the facts of this case. We express no opinion regarding what this court's analysis under the Oregon Constitution would be if a case were to arise with facts analogous to Neville. For an analysis of the United States Supreme Court's decision in Neville, see H. Richard Uviller, Self-Incrimination by Inference: Constitutional Restrictions on the Evidentiary Use of a Suspect's Refusal to Submit to a Search, 81 J Crim L & Criminology 37 (1990). [9] Indeed, at oral argument, the state conceded that, if the refusal to perform field sobriety tests and the performance of field sobriety tests are both "testimonial," then the statutory "choice" between them constitutes compulsion under Article I, section 12, of the Oregon Constitution. [10] Because we conclude that the admission of defendant's refusal to perform the field sobriety tests violates Article I, section 12, of the Oregon Constitution, we need not address defendant's arguments regarding the Fifth and Fourteenth Amendments to the United States Constitution. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (stating methodology). [1] I note especially the disservice performed by footnote 6 in the majority opinion, 321 Or. at 59 n. 6, 893 P.2d at 1029 n. 6. The last sentence of that opinion states: "[W]e express no opinion regarding whether aspects of the field sobriety tests other than those we expressly address are `testimonial' or `non-testimonial.'" As will be demonstrated below, that last sentence needlessly casts doubt on the continued validity of the use of purely physical field sobriety tests and places the entire process of prosecuting driving under the influence cases under a cloud. As I believe my opinion elsewhere makes indisputably clear, some forms of physically testing a DUII suspect are absolutely permissible under Article I, section 12, of the Oregon Constitution, and its federal counterpart. There is no justification at all for the mischief that the majority does in this regard. [2] The field sobriety tests are described in OAR 257-25-020(1). The tests include: the horizontal gaze nystagmus (HGN) test; the walk-and-turn test; the one-leg stand; the Romberg balance test; the modified finger-to-nose test; the finger count; the alphabet; counting; and the internal clock. Id. They are discussed at greater length later in this opinion. [3] As the majority notes, the question whether field sobriety tests are testimonial presents an interesting issue concerning the boundary between "testimonial" and "non-testimonial" evidence. See, e.g., Charles Gardner Geyh, The Testimonial Component of the Right Against Self-Incrimination, 36 Catholic U L Rev 611 (1987) (discussing issue); Note, Self-Incrimination Issues in the Context of Videotaping Drunk Drivers: Focusing on the Fifth Amendment, 10 Harv J L & Pub Policy 631 (1987) (same); B. Michael Dann, The Fifth Amendment Privilege Against Self-Incrimination: Extorting Physical Evidence from a Suspect, 43 S Cal L Rev 597 (1970) (same). The question is not, however, nearly as difficult as the majority then proceeds to make it. [4] Cases so holding include South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), Newhouse v. Misterly, 415 F.2d 514 (9th Cir.1969), cert. den., 397 U.S. 966, 90 S. Ct. 1001, 25 L. Ed. 2d 258 (1970); Welch v. District Court of Vermont Unit, etc., 594 F.2d 903 (2d Cir.1979); Hill v. State, 366 So. 2d 318 (Ala. 1979); Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); People v. Sudduth, 65 Cal. 2d 543, 55 Cal. Rptr. 393, 421 P.2d 401, (1966) cert. den. 389 U.S. 850, 88 S. Ct. 43, 19 L. Ed. 2d 119, reh. den. 389 U.S. 996, 88 S. Ct. 460, 19 L. Ed. 2d 506 (1967); People v. Conterno, 170 Cal. App. 2d Supp. 817, 339 P.2d 968 (1959); People v. Dawson, 184 Cal. App. 2d Supp. 881, 7 Cal. Rptr. 384 (1960); Finley v. Orr, 262 Cal. App. 2d 656, 69 Cal. Rptr. 137 (1968); People v. Walker, 266 Cal. App. 2d 562, 72 Cal. Rptr. 224 (1968); People v. Municipal Court (Gonzales), 137 Cal. App. 3d 114, 186 Cal. Rptr. 716 (1982); State v. Durrant, 5 Storey 510, 55 Del. 510, 188 A.2d 526 (1963); State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1958); People v. Miller, 75 Ill. App.3d 775, 31 Ill.Dec. 581, 394 N.E.2d 783 (1979); Alldredge v. State, 239 Ind. 256, 156 N.E.2d 888 (1959); State v. Benson, 230 Iowa 1168, 300 N.W. 275 (1941); State v. Holt, 261 Iowa 1089, 156 N.W.2d 884 (1968); State v. Tiernan, 206 N.W.2d 898 (Iowa 1973); State v. Young, 232 N.W.2d 535 (Iowa 1975); State v. Vietor, 261 N.W.2d 828 (Iowa 1978); State v. Kaufman, 211 La 517, 30 So. 2d 337 (1947); State v. Dugas, 252 La. 345, 211 So. 2d 285 (1968), cert. den. 393 U.S. 1048, 89 S. Ct. 679, 21 L. Ed. 2d 691 (1969); State v. Smith, 359 So. 2d 157 (La 1978); State v. Willis, 332 N.W.2d 180 (Minn. 1983); State v. Meints, 189 Neb. 264, 202 N.W.2d 202 (1972); People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584 (1978), app. dismd 444 U.S. 891, 100 S. Ct. 197, 62 L. Ed. 2d 127 (1979); People v. Haitz, 65 App. Div.2d 172, 411 N.Y.S.2d 57 (1978); People v. Smith, 79 Misc.2d 172, 359 N.Y.S.2d 446 (1974); People v. Mosher, 93 Misc.2d 179, 402 N.Y.S.2d 735 (1978); State v. Flannery, 31 N.C.App. 617, 230 S.E.2d 603 (1976); Westerville v. Cunningham, 15 Ohio St.2d 121, 44 Ohio.Ops.2d 119, 239 N.E.2d 40 (1968); State v. Stanton, 15 Ohio St.2d 215, 44 Ohio Ops.2d 191, 239 N.E.2d 92 (1968); State v. Gatton, 60 Ohio App. 192, 14 Ohio Ops. 20, 20 N.E.2d 265 (1938); State v. Nutt, 78 Ohio App. 336, 34 Ohio Ops. 47, 46 Ohio L.Abs. 223, 65 N.E.2d 675 (1946); Columbus v. Waters, 69 Ohio L.Abs. 261, 124 N.E.2d 841 (1954); Commonwealth v. Robinson, 229 Pa.Super. 131, 324 A.2d 441 (1974); Commonwealth v. Rutan, 229 Pa.Super. 400, 323 A.2d 730 (1974); Commonwealth v. Jones, 242 Pa.Super. 471, 364 A.2d 368 (1976); Com. v. Dougherty, 259 Pa.Super. 88, 393 A.2d 730 (1978); The State v. Smith, 230 S.C. 164, 94 S.E.2d 886 (1956); State v. Miller, 257 S.C. 213, 185 S.E.2d 359 (1971); State v. Brean, 136 Vt. 147, 385 A.2d 1085 (1978); State v. Welch, 136 Vt. 442, 394 A.2d 1115 (1978); State v. Wall, 137 Vt. 482, 408 A.2d 632 (1979), cert. den. and app. dismd. 444 U.S. 1060, 100 S. Ct. 993, 62 L. Ed. 2d 738 (1980); Gardner v. Commonwealth, 195 Va. 945, 81 S.E.2d 614 (1954); Barron v. Covey, 271 Wis. 10, 72 N.W.2d 387 (1955); Waukesha v. Godfrey, 41 Wis.2d 401, 164 N.W.2d 314 (1969); State v. Albright, 98 Wis.2d 663, 298 N.W.2d 196, 26 ALR4th 1100 (1980). [5] Although the majority technically may choose, as it has, to decide this case solely by identifying certain tests that it believes are testimonial, this is one of those cases in which the narrower line to a decision is not the one that should have been followed. The importance of this issue to law enforcement, the courts, and the accused would have more than justified a complete review of the various tests, so that a great deal of subsequent litigation over individual tests could be avoided. I am required to review each test in any event, because I am of the view that none is testimonial. Whether I am correct with respect to those tests that I discuss, but that the majority does not discuss, now will have to abide the event. [6] It fairly may be argued that neither Arabic numerals nor the alphabet used in the English (and most other European) languages necessarily is "fundamental" to any person whose nationality or heritage is, for example, African or Asian. That is true, but it also is a complete, non-incriminating explanation for the suspect's performance of the test. [7] At the same time, it would be disingenuous for me not to note in passing, and with the greatest respect and deference to the Court that is responsible for safeguarding federal constitutional rights, that I believe that Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990) needs a thoughtful second look. Even that Court, capable as it is, can produce the occasional clinker. See, e.g., State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S. Ct. 582, 50 L. Ed. 2d 550 (1977) (overruling, by a vote of 6-3, Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S. Ct. 517, 38 L. Ed. 2d 526 (1973), a case decided by a 7-1 majority less than four years earlier). [1] The overwhelming majority of the courts that have considered the issue have concluded that admitting evidence of a refusal to submit either to a breath-alcohol or a field sobriety test does not violate the privilege against self-incrimination. See Annotation, Admissibility in Criminal Case of Evidence That Accused Refused to Take Test of Intoxication, 26 ALR 4th 1112 (1983 & Supp 1993); Donald H. Nichols, Drinking/Driving Litigation § 12:04 (1933 & Cumm Supp 1993); 4 Richard E. Erwin, Defense of Drunk Driving Cases § 31.04, .05[2] (3d ed 1993) ("Trend is clearly toward admissibility of refusal evidence"). My research indicates that every recent Oregon Court of Appeals decision that has visited this question has held that refusal evidence is admissible in a DUII prosecution and that such use does not violate the defendant's privilege against self-incrimination, because field sobriety tests are not testimonial in nature or because the context is not compelling. See, e.g., State v. Whitehead, 121 Or.App. 619, 623, 855 P.2d 1149 (1993) ("In general, a driver's performance of field tests are merely demonstrative and do not violate the driver's rights under Article I, section 12, or the Fifth Amendment."); State v. Schaffer, 114 Or.App. 328, 333, 835 P.2d 134 (1992) (a request to perform field sobriety tests does not create compelling circumstances); State v. Scott, 111 Or. App. 308, 312, 826 P.2d 71 (1992) (request to perform field sobriety tests does not create inherently compelling circumstances for Miranda purposes, as a matter of law), citing State v. Spencer, 305 Or. 59, [70], 750 P.2d 147 (1988) ("The basic concept embodied in the implied consent law is that one who drives a motor vehicle on the state's highways impliedly consents to a breath test"); State v. Foster, 95 Or.App. 144, 149, 768 P.2d 416 (1989) (performance of field sobriety tests is not subject to the proscription against compelled self-incrimination); State v. Gardner, 52 Or.App. 663, 669-70, 629 P.2d 412, rev. den. 291 Or. 419, 634 P.2d 1347 (1981) (the introduction of evidence of a defendant's refusal to take a sobriety test in the form of a blood or breath test does not violate his or her right against self-incrimination), citing Schmerber v. California, 384 U.S. 757, 761, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (Fifth Amendment privilege against self-incrimination only protects an accused from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature); State v. Medenbach, 48 Or.App. 133, 138-39, 616 P.2d 543 (1980) (field sobriety tests are not testimonial in nature and do not violate privilege against self-incrimination). [2] The majority does not explain whether "state of mind" is the equivalent of "beliefs or knowledge," or whether those are two different things. Neither concept is defined or explained by the majority. [3] The majority does not explain why the specific tests it has chosen are "testimonial," rather than physical. The majority states only that "There can be no doubt that those aspects of the field sobriety tests require the individual to communicate information to the police about the individual's beliefs, knowledge, or state of mind." 321 Or. at 60, 893 P.2d at 1030. If one can say that there is "no doubt" about something, one ought to be able to explain in a paragraph precisely why there is no doubt. The majority here has not done so. For the reasons cogently explained by Justice Gillette in his dissent, it is not in the least clear to at least three members of this court why each of the tests selected by the majority constitutes a testimonial communication by the driver. How, for example, would asking a driver to read a series of numbers from a printed card disclose the driver's "beliefs or knowledge?" How is that any different from requiring a defendant to read a passage from a printed script? State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994); United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973). Would it make any difference if the officer had asked the driver to manipulate, rather than to simply repeat, a series of numbers (e.g., read only the even-numbers on the card)? By its lack of analysis and dogmatic approach to those questions, the majority, mischievously, raises far more questions than it answers. [4] In Nagel (Van Hoomissen, J., concurring in part; specially concurring in part), I agreed with the majority opinion that the administration of field sobriety tests constitutes a "search" within the meaning of Article I, section 9, of the Oregon Constitution. I now confess reservations about the correctness of that holding. In the context of this case, where defendant refused to submit to field sobriety tests, I am persuaded that no search occurred at all. Assuming that it is a "search," presumably, a voluntary consent can justify the search. [5] For similar treatment of "seizures" under Article I, section 9, see State v. Holmes, 311 Or. 400, 813 P.2d 28 (1991) (upholding constitutional permissibility of certain kinds of stops on less than probable cause). See also State v. Ainsworth, 310 Or. 613, 610, 801 P.2d 749 (1990) (aerial surveillance of private property did not invade occupants' privacy). [6] The majority opinion will leave the Legislature without a clue as to what it may, or should, do to address the problems the majority holding creates. [7] In doing so, the state runs the risk that some future court will conclude that all of the current field sobriety tests are "testimonial," although such a holding obviously is not compelled by the majority holding here. [8] Because this is an appeal from an order made before trial suppressing evidence, ORS 138.060(3), the state may proceed to trial in this case using its other evidence to attempt to prove DUII. [1] Because defendant's refusal to take the tests was not compelled, we need not decide whether the challenged tests, or refusal to submit to those tests, elicits "testimonial" evidence within the meaning of Article I, section 12. With respect to that point, however, I agree generally with the views expressed by Justice Gillette in his opinion in this case. [2] The majority sets up and knocks down a sympathetic straw person when it asserts: "[I]n response to a police officer's request to submit to field sobriety tests, if defendant were to say, `I am exercising my right to remain silent under Article I, section 12, of the Oregon Constitution,' that response would be treated as a refusal to perform the tests, and the refusal would be admissible as substantive evidence of guilt under ORS 813.135 and ORS 813.136. It is fundamental that the assertion of the right against self-incrimination cannot be considered as evidence of guilt." 321 Or. at 61, 893 P.2d at 1030. That passage is misleading. The operative fact under ORS 813.136 is that the "person refuses or fails to submit to field sobriety tests as required by ORS 813.135"; in that event, "evidence of the person's refusal or failure to submit is admissible." This case provides a good illustration of how such evidence sounds: "[DEPUTY]: * * * I asked him to step out of the truck to perform a series of field sobriety tests. "[PROSECUTOR]: And did he, in fact, take those field tests? "[DEPUTY]: No, he did not." Irrelevant or unduly prejudicial embellishments presumably would be excluded, upon proper objection. [3] In Trenary, the issue of statutory construction presented was whether the failure of a police officer to inform a driver of the consequences of refusing to take field sobriety tests required suppression of the test results when the driver in question took the tests anyway. This court said "no." 316 Or. at 178, 850 P.2d 356.

2e7274c3e2ac3732e9d1ee36dfc53cb4ebf588f95ddf06736484c2c495e91876

1995-04-27T00:00:00Z

e864dc43-ce3b-47e2-a2c5-e6e76afd551c

McGanty v. Staudenraus

321 Or. 532, 901 P.2d 841

oregon

Oregon Supreme Court

901 P.2d 841 (1995) 321 Or. 532 Jennifer L. McGANTY, Petitioner on Review, v. Robert L. STAUDENRAUS and Metropolitan Agencies, Inc., Respondents on Review. CC CV91-357; CA A75978; SC S40963. Supreme Court of Oregon, In Banc. Argued and Submitted September 8, 1994. Decided September 8, 1995. *843 Gary A. Rueter, of Haugeberg, Rueter, Stone, Gowell & Fredricks, P.C., McMinnville, argued the cause and filed the petition for petitioner on review. Jeffrey M. Batchelor, of Lane Powell Spears Lubersky, Portland, argued the cause for respondents on review. With him on the response were Paula A. Barran and Jill Goldsmith Dinse. GRABER, Justice. This case involves the requirements for pleading three torts: intentional interference with economic relations, intentional infliction of severe emotional distress, and wrongful discharge. We hold that the trial court did not commit reversible error when it dismissed plaintiff's claim for intentional interference with economic relations, but that it did err in dismissing plaintiff's claims for intentional infliction of severe emotional distress and wrongful discharge. Plaintiff was an employee of defendant Metropolitan Agencies, Inc. (Metropolitan), a *844 collection agency. Defendant Staudenraus was president of, and an owner of, Metropolitan. He was plaintiff's immediate supervisor. Plaintiff filed a complaint against Staudenraus and Metropolitan in December 1991. She asserted four claims against both defendants: intentional infliction of severe emotional distress, wrongful discharge, battery, and breach of contract. In addition, against Staudenraus only, she asserted a claim for intentional interference with economic relations. The underlying factual allegations in the complaint, concerning all five claims, were these: Pursuant to ORCP 21 A(8), defendants moved to dismiss the claims for intentional interference with economic relations, intentional infliction of severe emotional distress, wrongful discharge, and breach of contract, on the ground that the complaint failed to state ultimate facts sufficient to constitute those claims. Defendants did not challenge the sufficiency of the claim for battery. The trial court granted defendants' motion as to the tort claims but not as to the claim for breach of contract. The trial court entered a judgment, pursuant to ORCP 67 B,[1] dismissing plaintiff's claims for intentional interference with economic relations, intentional infliction of severe emotional distress, and wrongful discharge. Plaintiff appealed. The Court of Appeals held that the trial court erred in dismissing plaintiff's claims for intentional infliction of severe emotional distress and wrongful discharge. McGanty v. Staudenraus, 123 Or.App. 393, 395-97, 859 P.2d 1187 (1993). The Court of Appeals held, however, that the trial court's dismissal of the claim for intentional interference with economic relations was proper. Id. at 397, 859 P.2d 1187. Plaintiff sought review in this court, arguing that she pleaded adequately a claim for intentional interference with economic relations. Defendants sought review of the decision of the Court of Appeals concerning plaintiff's claims for intentional infliction of severe emotional distress and wrongful discharge. We allowed review.[2] We affirm, in part on different grounds. To state a claim for intentional interference with economic relations, a plaintiff must allege each of the following elements: (1) the existence of a professional or business relationship (which could include, e.g., a contract or a prospective economic advantage), (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect between the interference and damage to the economic relationship, and (6) damages. Straube v. Larson, 287 Or. 357, 360-61, 600 P.2d 371 (1979); Wampler v. Palmerton, 250 Or. 65, 73-76, 439 P.2d 601 (1968). On review of the dismissal of this claim pursuant to ORCP 21 A(8), "we accept all well-pleaded allegations of the complaint as true and give plaintiff[] the benefit of all favorable inferences that may be drawn from the facts alleged." Stringer v. Car Data Systems, Inc., 314 Or. 576, 584, 841 P.2d 1183 (1992). The dispositive issue in this case concerns the third requirement listed above, the "third-party" element. The Court of Appeals held that plaintiff failed to plead the "third-party" *845 element of the tort of intentional interference with economic relations. McGanty, 123 OrApp at 397, 859 P.2d 1187. For the following reasons, we agree. As this court recognized in Wampler, the modern tort of intentional interference with economic relations has deep historical roots. Wampler, 250 Or. at 72, 439 P.2d 601. In Top Service Body Shop v. Allstate Ins Co., 283 Or. 201, 204, 582 P.2d 1365 (1978), this court explained: The tort serves as a means of protecting contracting parties against interference in their contracts from outside parties. See Wampler, 250 Or. at 73, 439 P.2d 601 ("The interest protected * * * is the interest of the individual in the security and integrity of the contractual relations into which he has entered. Economic relations are controlled by contract and the public also has an interest in maintaining the security of such transactions. Therefore the law provides protection." (footnote omitted)). The tort allows a party to a contract, when that contract is breached by the other contracting (second) party, to seek damages from a third party that induced the second party to breach the contract. On several occasions, in addressing the third-party element of the tort, this court has stated the general principle that a party to a contract cannot be liable for interference with that contract. Wampler, 250 Or. at 74-76, 439 P.2d 601; Sakelaris v. Mayfair Realty, Inc., 284 Or. 581, 588, 588 P.2d 23 (1978); Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 625-26, 733 P.2d 430 (1987). Wampler also considered generally the "complicating ingredient [that] is added when the party induced to breach its contract is a corporation and the third person who induces the breach is not a stranger, but is a person who owes a duty of advice and action to the corporation." 250 Or. at 74, 439 P.2d 601. In that context, the court in Wampler said: None of our prior cases has analyzed the precise issue that is raised here, however: when (if at all) is an employee, who is alleged to have used improper means to interfere with a contract of the employer, a third party to a contract between the employer and another. This case calls for an analysis of that issue. Staudenraus argues that, even if he used allegedly improper means, he cannot be a third party to the contract between plaintiff and Metropolitan because, according to the complaint, Staudenraus was acting as Metropolitan at all pertinent times. If Staudenraus is not a *846 third party to the contract between Metropolitan and plaintiff, but rather is acting as a party to the contract between Metropolitan and plaintiff, then Staudenraus cannot be liable for intentional interference with that contract. Therefore, we must consider whether, under the allegations in the complaint, Staudenraus was or was not acting as Metropolitan, his corporate employer. The long-established doctrine of respondeat superior provides the appropriate guidance. Under that doctrine, "an employer is liable for an employee's torts when the employee acts within the scope of employment." Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988). The rationale behind the doctrine is that "[w]hen one employs a servant or agent to do his work, the employer is, in the eyes of the law, the actor. The damages caused by the activity are the master's responsibility, so long as it is the master's business that is being done." Gossett v. Simonson, 243 Or. 16, 23, 411 P.2d 277 (1966). From those cases, it follows that, when an employee is acting in the scope of the employee's employment, the employee is acting as the employer, and not as an independent entity. Accordingly, when an employee is acting within the scope of the employee's employment, and the employer, as a result, breaches a contract with another party, that employee is not a third party for the tort of intentional interference with economic relations. In the present case, plaintiff alleged in the claim for intentional interference with economic relations: This court previously has held that "[a] statement of fact in a party's pleading is an admission that the fact exists as stated." Moore v. Drennan, 269 Or. 189, 193, 523 P.2d 1250 (1974). Accordingly, plaintiff's allegation that "[a]t all times * * * Staudenraus * * * was acting within the course and scope of his employment" is an admission that the described fact exists as stated. Plaintiff does not ask for relief from the effect of her admission; indeed, before the trial court, she declined to plead this claim over to remove the scope of employment allegation. See Yates v. Large, 284 Or. 217, 223, 585 P.2d 697 (1978) (a trial court may relieve a party from the effect of an admission in a pleading by allowing amendment of the pleading). Moreover, in no other part of her claim does plaintiff allege, either directly or by implication, that Staudenraus ever acted outside the scope of his employment when he allegedly committed the acts that interfered with plaintiff's economic relations with Metropolitan. Therefore, we give effect to plaintiff's allegation that Staudenraus was, at all times, acting within the scope of his employment.[3] Plaintiff's admission that, at all material times, Staudenraus was acting within the scope of his employment disposes of plaintiff's claim. It does so because it establishes, consistent with Chesterman, that the alleged *847 acts occurred substantially within the time and space limits authorized by the employment, that Staudenraus was motivated, at least in part, by a purpose to serve the employer, and that the alleged acts were of a kind that Staudenraus was hired to perform. See Chesterman, 305 Or. at 442 753 P.2d 404 (stating requirements to conclude that an employee was acting within the course and scope of the employee's employment). Plaintiff's admission thus establishes that Staudenraus was not a third party to the contract between plaintiff and Metropolitan. Plaintiff has failed to satisfy the third-party element of the tort. That being so, defendant Staudenraus cannot be liable for intentional interference with the economic relations between plaintiff and Metropolitan.[4] Notwithstanding the precedents discussed above, plaintiff argues that the allegation that Staudenraus acted within the course and scope of his employment does not dispose of her claim. Plaintiff reasons that, when Staudenraus engaged in a pattern of sexual harassment, he used "improper means" while acting on behalf of Metropolitan. What plaintiff argues is that her complaint states a claim for this tort, because she alleges mixed purposes; "an allegation of mixed motives creates a jury question." (Emphasis in original.) Under plaintiff's theory, although the allegation that Staudenraus acted within the scope of his employment would dispose of any claim that plaintiff acted with an improper purpose when he allegedly harassed plaintiff, that allegation should not dispose of plaintiff's claim if she can prove that Staudenraus used improper means. That argument is not well taken. Whether a party has acted by either an improper means or with an improper purpose is relevant, under the fourth element of the tort, only if that party first meets the threshold test of being a third party to the contractual relationship with which the interference allegedly has occurred. Plaintiff's argument is not surprising, however. Three of this court's prior cases Straube, Welch v. Bancorp Management Advisors, 296 Or. 208, 675 P.2d 172 (1983), modified on recons. 296 Or. 713, 679 P.2d 866 (1984), and Lewishave not been entirely clear respecting the distinction between the third-party element of the tort and the improper means/improper purpose element of the tort.[5] In all three of those cases, this court has considered whether a corporate agent could be liable for interfering with a corporation's contract with a third party. In none of those cases did the court's resolution of the issue involve addressing the third-party element of the tort, however. In Straube, the plaintiff, a physician who was employed by a hospital, sued the hospital's *848 chief administrator and a hospital resident, among others, for interfering with the plaintiff's employment relationship with the hospital by causing his temporary suspension from the hospital staff. That case came before the court after a summary judgment had been entered for the defendants. 287 Or. at 359, 600 P.2d 371. The defendants argued that the grant of summary judgment was proper because, as hospital employees who owed a duty of care to the hospital and its patients, they were justified or "privileged" to interfere with the interests of the hospital and the public. The court rejected that argument and stated that the defendants could be liable for interference if they caused the plaintiff's suspension from employment either with an improper purpose or though improper means. Id. at 369-71, 600 P.2d 371. In reaching that conclusion, the court stated: Nothing in that passage conflicts with our holding today. In Straube, the court found that there was sufficient evidence in the record to create a question of fact as to the third-party element of the tort. Because the evidence in the record on summary judgment created a question of fact as to whether the defendants had acted to benefit the hospital (and thus were within the scope of their employment) or whether the defendants acted to satisfy a personal grudge (and thus were acting outside the scope of their employment), plaintiff was entitled to proceed with his case and try to show that defendants were third parties to the contract and, as such, had interfered with his contract with the hospital either with an improper purpose or through improper means. Welch involved a loan agreement between the plaintiff, a real estate developer, and a bank. The plaintiff alleged that agents of the bank had advised the bank to breach the loan agreement. The developer sued the agents for intentional interference with the loan agreement, arguing that the agents interfered, for an improper purpose, with the developer's contract with the bank. The trial court granted summary judgment to the defendants, and the plaintiff appealed. 296 Or. at 210-12, 675 P.2d 172. The court upheld the trial court's grant of summary judgment on plaintiff's theory of an improper purpose. The court reasoned that, because the agents were acting, at least in part, "within the scope of [their] authority and with the intent to benefit the principal," their purpose could not be improper. Id. at 216-17, 675 P.2d 172. The court did not address whether the bank's agents were "third parties" to the relationship between the bank and the developer. The court did not need to consider that issue to dispose of the case because, even if the defendants were third parties to plaintiff's contract with the bank, the defendants could not be liable. On reconsideration, the court noted that its earlier decision regarding allegedly improper purpose did not address the agents' potential liability for interfering through improper means. 296 Or. at 715-16, 679 P.2d 866. The court concluded that a question of fact existed on that issue and remanded the claim to the trial court. Id. at 716-17, 679 P.2d 866. Nothing in the discussion of Welch on reconsideration suggests that the record showed that the defendants were acting within the scope of their employment when they committed the allegedly tortious acts by improper means. Welch simply did not address the issue that we decide today. Finally, in Lewis, this court affirmed a verdict against a corporate supervisor for interference with the plaintiff's employment relationship with the corporate employer; the record showed that he had harassed the plaintiff until she quit. 302 Or. at 621-22, 733 P.2d 430. The court considered whether the evidence disclosed that the supervisor's interference was accomplished either with an improper purpose or through improper means. Id. at 621-23, 733 P.2d 430. The court concluded that the supervisor's harassment *849 of the plaintiff amounted to improper means. Id. at 622-23, 733 P.2d 430. Again, however, the court did not discuss the third-party element and did not consider whether the supervisor was acting within the scope of his employment when he interfered with the plaintiff's contract with the corporate employer. In summary, we hold that, when an employee acts within the scope of employment, that employee is not a third party to a contract between the employer and another for the purpose of the tort of intentional interference with economic relations. Plaintiff alleged that Staudenraus was acting at all relevant times in the scope of his employment by Metropolitan. Accordingly, we hold that the trial court did not err in dismissing plaintiff's claim against Staudenraus for intentional interference with economic relations. A claim for intentional infliction of severe emotional distress contains these elements: Prior decisions by this court have held that, to satisfy the intent element of this tort, a plaintiff must allege that the defendant acted with the purpose of inflicting severe emotional or mental distress on the plaintiff. "It is not enough that [the defendant] intentionally acted in a way that causes such distress." Patton v. J.C. Penney Co., 301 Or. 117, 122, 719 P.2d 854 (1986). See also Sheets, 308 Or. at 236, 779 P.2d 1000 (stating same principle). Plaintiff alleged only that defendants' acts were intentional and that defendants "knew or should have known" that their acts would cause severe emotional distress. Plaintiff did not allege that defendants' conduct was undertaken for the purpose of inflicting severe emotional distress. Plaintiff acknowledges that she did not plead the level of intent required by Patton to sustain this tort claim.[6] She argues, however, that a reduced level of intent applies when an employee sues an employer. Plaintiff also argues that, in recent cases, this court has erroneously described the level of intent that applies to this tort generally. We agree with the second argument. This court first recognized the tort of "outrageous conduct"the predecessor to intentional infliction of severe emotional distressin Pakos v. Clark, 253 Or. 113, 453 P.2d 682 (1969). In that case, the court adopted the definition of the tort used in the Restatement (Second) of Torts § 46 (1965). 253 Or. at 122-32, 453 P.2d 682. The court held that the alleged conduct of a *850 police officer, who told the defendant that he was "crazy as a bedbug" and that the officer was going to put the defendant in an insane asylum and take away his children, and similar conduct by other employees of Multnomah County Sheriff's Office, did not constitute extreme and outrageous conduct. 253 Or. at 132, 453 P.2d 682. In Rockhill v. Pollard, 259 Or. 54, 55, 485 P.2d 28 (1971), the court reaffirmed the decision in Pakos to adopt Restatement § 46. The court in Rockhill also addressed what is now the third element of the tort of intentional infliction of severe emotional distresswhether the defendant engaged in conduct that would be considered an extraordinary transgression of the bounds of socially tolerable conduct. Id. at 59-64, 485 P.2d 28. As to that conduct element, the court stated that "[a]n important factor to consider * * * is the particular relationship between the parties." Id. at 60, 485 P.2d 28. The court held that the relationship between the parties, as patient and doctor, should be considered "in deciding what behavior may be found to be extreme or outrageous." Id. at 63, 485 P.2d 28 (emphasis added). In Rockhill, the court drew a distinction between the necessary intent needed to sustain a claim for outrageous conduct and what type of conduct will be considered outrageous. The "special relationship" discussion applied only to the conduct element of the tort, not to the intent element. In Turman v. Central Billing Bureau, 279 Or. 443, 568 P.2d 1382 (1977), the next case from this court to address the tort of intentional infliction of severe emotional distress, the plaintiff sued the defendant collection agency to recover damages that resulted from the defendant's collection tactics. 279 Or. at 445, 568 P.2d 1382. The court held that evidence offered concerning the actions of the collection agency were sufficient to state a claim. Id. at 448-49, 568 P.2d 1382. The court did not discuss intent. Neither did the court address the relationship between the parties, except to note that the Restatement of Torts (Second) § 46, comment e, stated that collecting creditors, as well as police officers, school authorities, and landlords, have been held liable for the tort of outrageous conduct. Id. at 446, 568 P.2d 1382. The next case involving this tort was Brewer v. Erwin, 287 Or. 435, 600 P.2d 398 (1979), an action by a tenant against a landlord. The tenant alleged that the landlord engaged in outrageous behavior sufficient to state a claim for intentional infliction of severe emotional distress. 287 Or. at 454, 600 P.2d 398. The court in Brewer engaged in the following discussion of the prior cases: "The cause of action recognized in Turman is an intentional tort. Its essence is that the infliction of actual mental suffering on the plaintiff is the deliberate purpose of defendant's conduct, although that conduct may of course have an ulterior objective, as in Turman. Such a purpose is itself wrongful in the absence of some privilege or justification. * * * When the wrongful purpose is lacking, on the other hand, the tortious element can be found in the breach of some obligation, statutory or otherwise, that attaches to defendant's relationship toward plaintiff, as in Rockhill v. Pollard, supra, and as has long been imposed on innkeepers, public carriers, and the like. This court has not had occasion to consider whether in the absence of such a relationship a recovery for solely emotional distress can be based on a defendant's conduct, not otherwise tortious, that a jury may find to be beyond the limits of *851 social toleration, though the conduct is not deliberately aimed at causing such distress but only reckless of the predictable effect." Id. at 457-58, 600 P.2d 398 (footnotes omitted; emphasis added). The court concluded that it need not consider that question in Brewer, because the "defendants engaged in abusive conduct that was deliberately designed to frighten or otherwise distress plaintiff into abandoning the premises and that went beyond the outer limits of what a reasonable person in plaintiff's position" would be expected to tolerate. Ibid. As the quoted passage makes clear, the court in Brewer blurred the intent and conduct elements of the tort. The passage easily could be read to mean that the court effectively added a purpose requirement to the intent element of the tort, except when a "special relationship" existed between the parties. That reading is at odds with the court's decision in Turman, but Brewer did not purport to modify Turman expressly. As discussed above, the court in Turman was concerned with whether the defendant's conduct was outrageous, not with whether the defendant engaged in such conduct with the purpose of causing severe emotional distress to the plaintiff. The court in Turman looked to the relationship between the parties to determine what the bounds of socially acceptable behavior were between the parties, not to determine what the defendant's purpose was when it intentionally engaged in such behavior. The court erred in Brewer when it read Turman as adding a purpose requirement to the intent element of the tort of intentional infliction of severe emotional distress. Hall v. The May Dept. Stores, 292 Or. 131, 637 P.2d 126 (1981), was the next case from this court that considered the tort of intentional infliction of severe emotional distress. Hall involved a claim brought by a store's former employee, for intentional infliction of severe emotional distress allegedly suffered after the employee was questioned by the store's security personnel about shortages in a cash register. 292 Or. at 134, 637 P.2d 126. In that case, the court was concerned primarily with whether the defendant's acts constituted the type of conduct that is outside the bounds of socially tolerable behavior. Id. at 135-42, 637 P.2d 126. However, the court also addressed the intent element of the tort. Id. at 137, 637 P.2d 126. In discussing prior decisions concerning the tort of intentional infliction of severe emotional distress, the court made the following statement: As that passage makes clear, the court in Hall reiterated the error made in Brewer, by asserting that this court's cases had held that the nature of the relationship between the parties has some bearing on the level of intent required to impose liability for the tort. Again, the court's reliance on Pakos, Rockhill, Turman, and Brewer was misplaced. As discussed above, in none of those cases did the decision turn on whether the relationship between the parties affected the level of intent required to establish liability. Rather, all those cases decided whether the nature of the relationship between the parties had affected what type of conduct would be actionable. Similarly, in Hall, the court's holding turned on whether the defendant's actions were outside the bounds of socially acceptable behavior, considering the relationship between the parties. The court stated: "We focus particularly on whether the jury could find that [the defendant] attempted to threaten and frighten plaintiff as a deliberate tactic even though he knew that he *852 did not have convincing evidence of misconduct on her part. * * * "* * * * * "* * * [A] jury could decide that defendants' method of interrogation was an extraordinary transgression of contemporary standards of civilized conduct toward an employee." 292 Or. at 139-41, 637 P.2d 126. Accordingly, the court affirmed the jury's verdict in favor of the plaintiff. Id. at 141-42, 637 P.2d 126. In four employment-related decisions following Hall, this court restated that the level of intent required to establish a claim for intentional infliction of emotional distress contained a purpose requirement. See Madani v. Kendall Ford, Inc., 312 Or. 198, 204, 818 P.2d 930 (1991) ("The only relevant intent in the tort of intentional infliction of severe emotional distress is, as plaintiff pleaded, the `inten[t] to cause * * * plaintiff severe emotional distress.'") Sheets, 308 Or. at 236, 779 P.2d 1000, (intent to inflict severe emotional distress is one of the elements of the tort); Lewis, 302 Or. at 626, 733 P.2d 430 (same); Patton, 301 Or. at 122, 719 P.2d 854 (same). In three of those four cases, the court did not apply the erroneous intent standard in reaching its conclusion and mentioned that standard only in passing. See Madani, 312 Or. at 204-06, 818 P.2d 930 (court dismissed the plaintiff's claim for intentional infliction of severe emotional distress because the defendant's acts, as pleaded by the plaintiff, did "not transgress the bounds of socially tolerable behavior"); Lewis, 302 Or. at 627-28, 733 P.2d 430 (same); Patton, 301 Or. at 124, 719 P.2d 854 (same). The fourth case, Sheets, contained a fuller discussion: In that passage from Sheets, the court again blurred the distinction between the intent element of the tort and the conduct element of the tort. Thus, the court reiterated the mistake made in Brewer and expounded in Hall. To summarize, several recent decisions of this court have misconstrued the intent element of the tort of intentional infliction of severe emotional distress by requiring that a defendant have acted with the purpose of inflicting severe emotional distress on a plaintiff. That misconstruction began with the court's decision in Brewer, which misread precedent. Because of that erroneous interpretation of law, we now will reconsider the common law rule concerning the level of intent required to establish intentional infliction of severe emotional distress. See Heino v. Harper, 306 Or. 347, 373-74, 759 P.2d 253 (1988) (stating circumstances under which this court will reconsider a court-created rule or doctrine). The Restatement (Second) of Torts § 8A (1965) defines the element of "intent," with respect to intentional torts generally, as follows: Comments a and b provide further guidance: "a. `Intent,' as it is used throughout the Restatement of Torts, has reference to the consequences of an act rather than the act itself. When an actor fires a gun in the midst of the Mojave Desert, he intends to pull the trigger; but when the bullet hits a person who is present in the desert without *853 the actor's knowledge, he does not intend that result. `Intent' is limited, wherever it is used, to the consequences of the act. Comment i of the Restatement (Second) of Torts § 46 (1965), defining intentional infliction of severe emotional distress, explains the element of intent in the specific context of this tort. "The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct." (Emphasis added.)[7] Consistent with the Pakos court's intention of adopting in Oregon the Restatement's rule, we adopt that definition of intent. Next, we apply that standard to the present case. Plaintiff alleged that "Defendants' conduct was intentional and voluntary and Defendants knew or should have known that their actions would cause severe * * * distress." The allegation that "defendants acted volitionally with knowledge that the acts would cause severe emotional distress" is sufficient to establish intent as that term is used in the Restatement (Second) of Torts §§ 8A and 46, and as that term was intended to be applied by this court in Pakos. Plaintiff pleaded the requisite intent to establish a claim for intentional infliction of severe emotional distress. Therefore, the trial court erred in dismissing that claim. Plaintiff also alleges that defendants' actions resulted in her wrongful discharge. To allege a claim of wrongful discharge "there must be a discharge, and that discharge must be `wrongful.'" Moustachetti v. State of Oregon, 319 Or. 319, 325, 877 P.2d 66 (1994). In the present case, the parties do not dispute that plaintiff's allegations meet the "wrongfulness" prong of that formulation. Rather, the question at hand relates to the pleading of the "discharge" prong. "The legal `injury' alleged in an action for a wrongful discharge is the discharge." Moustachetti, 319 Or. at 325, 877 P.2d 66 (emphasis in original). In Sheets, the court held that a discharge can be either actual, as when an employer tells an employee "you're fired," or constructive, as when an employer tells an employee "quit, or you'll be fired." 308 Or. at 226-28, 779 P.2d 1000. In reaching that conclusion, the court noted that "it would defy both reason and fairness to hold liable an employer who wrongfully discharges an employee but to immunize from liability an employer who, for equally improper reasons, induces an employee to resign rather than be fired." 308 Or. at 228, 779 P.2d 1000. In Bratcher v. Sky Chefs, Inc., 308 Or. 501, 783 P.2d 4 (1989), this court addressed the following question, certified from the United States District Court for the District of Oregon: "Does Oregon recognize the tort of wrongful constructive discharge?" 308 Or. at 503, 783 P.2d 4. The court questioned that phrasing as well as the suggestion that "`wrongful constructive discharge' is a `doctrine.' " Id. at 504, 783 P.2d 4. Rather, the court reasserted that there is, in Oregon, a tort of wrongful discharge, and that a discharge can be constructive. Id. at 503, 783 *854 P.2d 4. The court then held that "a resignation caused by unacceptable working conditions can be a constructive discharge." Id. at 504, 783 P.2d 4. In reaching that holding, the court stated: "* * * * * That passage from Bratcher makes clear that the court construed the element of "intent," with respect to determining whether a constructive discharge has occurred, to contain a purpose component. In this case, plaintiff alleged in her complaint that defendants "knew or should have known" that their intentional conduct would force her to resign and that defendants' conduct left plaintiff with no reasonable choice but to resign from her job. Plaintiff did not allege that defendants' purpose in engaging in such conduct was to force her to resign. The trial court dismissed the claim for wrongful discharge. The Court of Appeals held that the facts alleged in plaintiff's complaint stated a claim and permitted an inference of such intent. 123 Or.App. at 397 n. 3, 859 P.2d 1187. As noted above, after the Court of Appeals issued its decision below, the parties moved jointly for reconsideration. In that motion, signed by plaintiff's counsel, the parties asserted in part: "The parties disagree on the consequences that flow from what plaintiff has alleged, but they do not propose to reargue their briefs here. They only wish to point out that the court's decision is based upon an incorrect factual premise regarding *855 plaintiff's complaint. The parties therefore jointly ask the [C]ourt [of Appeals] to reconsider its opinion and decide the case on the basis of the allegations in the complaint * * * that defendants acted volitionally with knowledge that the acts would cause * * * resignation. "* * * If [reconsideration] is denied, * * * the complaint will be amended to reflect what plaintiff in good faith believes she can prove, which is something less than the specific intent [to force plaintiff to resign]. If that does not state a claim, plaintiff would prefer to know that now." (Emphasis added.) We will decide the case on the basis of the statement of plaintiff's counsel as to the facts that she can prove. See Sadler v. Sisters of Charity, 247 Or. 50, 51 n. 1, 426 P.2d 747 (1967) (motion for involuntary nonsuit decided on basis of facts asserted by the plaintiff's counsel in opening statement, where counsel made it clear that statement was the most favorable version that the plaintiff could prove). In other words, we will decide whether it is enough that defendants acted volitionally with knowledge that their acts were certain or substantially certain to cause resignation, but without the purpose of forcing plaintiff to resign. In her written arguments, plaintiff asks this court to retreat from the requirement, stated in Bratcher, that an employer have the purpose of forcing the employee to resign. Plaintiff asks this court to hold instead that a plaintiff states claim by alleging that "working conditions became intolerable as a result of the sexual harassment and abuse she was forced to endure in the workplace." For the reasons discussed below, we agree with plaintiff's argument that this court should retreat from the requirement stated in Bratcher, although we decline to adopt plaintiff's formulation. As the above-quoted passage illustrates, the court in Bratcher freely interchanged the words "intent" and "purpose" in delineating what constitutes a constructive discharge. Our discussion of the "intent" element of the tort of intentional infliction of severe emotional distress illustrates, however, that there is a distinction between engaging in conduct with a given "intent" and engaging in conduct with a given "purpose." 321 Or. at 543-550, 901 P.2d at 848-853. The two terms are not synonymous. Intent, in the context of proving an intentional tort, generally is broader than a purpose to bring about a specific result. As our discussion also makes clear, this court previously blurred that distinction in Sheets. Id. at 548-549, 901 P.2d at 851-852. In view of the Bratcher court's reliance on Sheets, and in view of the Bratcher court's blurring of the distinction between purpose and intent, we now hold that the court erred when it held that a plaintiff must show, to establish a constructive discharge, that an employer acted with the purpose of forcing the employee to resign. That one aspect of the Bratcher opinion was inadequately considered when it was decided, and we will no longer adhere to it. See Heino, 306 Or. at 373-74, 759 P.2d 253 (stating circumstances under which this court will reconsider a court-created rule or doctrine). We next consider what the rule ought to be instead. Ordinarily, an alleged tortfeasor acts intentionally when the tortfeasor "desires to cause [the] consequences of his act, or * * * believes that the consequences are substantially certain to result from it." Restatement (Second) of Torts § 8A (1965). If the "actor knows that the consequences [of the act] are certain, or substantially certain, to result from [the] act, and still goes ahead, [the actor] is treated by the law as if [the actor] had in fact desired to produce the result." Id. at comment b. We adopt the foregoing definition of intent, because it is consistent with the reasons for which this court originally recognized that a discharge, for the tort of wrongful discharge, may be either constructive or actual. See Sheets, 308 Or. at 227, 779 P.2d 1000 (reason for recognizing constructive discharge in the tort of wrongful discharge is to avoid "exalt[ing] form over substance" and "allow[ing] employers * * * to escape liability if their conduct was otherwise improper"). In Bratcher, the court concluded that it need not decide whether an employee alleging a constructive discharge must show *856 "that the employee quit because of working conditions that were unacceptable to the employee (which, as stated, is a subjective test) or whether the employee must show that a reasonable person in the employee's position would consider the working conditions so unacceptable as to force a resignation." 308 Or. at 506, 783 P.2d 4. The court observed that such a discussion was unnecessary because of the purpose requirement. Because the employee had to show that the employer meant to fire the employee, it was irrelevant what some hypothetical employee would do in some other hypothetical setting. Ibid. However, because we have decided to modify the intent element when the tort of wrongful discharge involves a constructive discharge, we must decide the question that the Bratcher court avoided. For the following reasons, we now hold that an objective inquiry must be made to determine whether working conditions imposed by an employer are so intolerable as to force a resignation. An objective test preserves the requirement that there be a discharge, before there can be a wrongful discharge. If an employee chooses to quit because of objectively tolerable working conditions, it cannot fairly be said that the employer has "induce[d the] employee to resign rather than be fired." Sheets, 308 Or. at 228, 779 P.2d 1000. Objectively tolerable working conditions simply are not an inducement to resign. It also bears noting that the courts in other jurisdictions have adopted the objective test for constructive discharge cases. In the federal circuit courts, plaintiffs alleging a constructive discharge in violation of a variety of statutes must show that a reasonable person would have found the working conditions complained of intolerable. See, e.g., Berger v. Edgewater Steel Co., 911 F.2d 911, 922-23 (3d Cir.1990) (applying reasonable person test to alleged constructive discharge in violation of Employee Retirement Income Security Act, 29 U.S.C. § 1140), cert. den. 499 U.S. 920, 111 S. Ct. 1310, 113 L. Ed. 2d 244 (1991); Simpson v. Federal Mine Safety & Health Rev. Com'n, 842 F.2d 453, 461-63 (D.C.Cir.1988) (applying reasonable person test to alleged constructive discharge in violation of the Mine Act, 30 U.S.C. § 815(c)(1)); Jett v. Dallas Independent School Dist., 798 F.2d 748, 754-55 (5th Cir.1986) (applying reasonable person test to action brought under 42 U.S.C. §§ 1981 & 1983 for alleged constructive discharge in violation of federal constitutional due process, equal protection, and First Amendment rights), aff'd in part and rem'd in part on other grounds, 491 U.S. 701, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989). See also Comment, Constructive Discharge Under Title VII and the ADEA, 53 UChiLRev 561, 569 (1986) (in the federal circuit courts, a "plaintiff must demonstrate that a reasonable person would have found the working conditions intolerable," regardless of what other criteria each circuit court may apply in finding a constructive discharge); Paul H. Tobias, 2 Litigating Wrongful Discharge Claims § 7:35, 103 (1991) ("Common to each of the standards employed by the federal courts [to determine whether a constructive discharge has occurred] is the requirement that working conditions be sufficiently intolerable that a reasonable person in the position of the employee would have felt objectively compelled to resign."). Similarly, most state courts have embraced a reasonable-person standard for establishing that working conditions were so intolerable as to constitute a wrongful discharge. See Tobias at § 7:36 ("[m]ost [states] require at least an objective showing that * * * a reasonable person would have felt compelled to resign under the circumstances"). Although, of course, we are not bound by those decisions, we find their reasoning and consistency on this point convincing. In sum, to establish a constructive discharge, a plaintiff must allege and prove that (1) the employer intentionally created or intentionally maintained specified working condition(s);[8] (2) those working conditions were so intolerable that a reasonable person in the employee's position would have resigned because of them; (3) the employer desired to cause the employee to leave employment *857 as a result of those working conditions or knew that the employee was certain, or substantially certain, to leave employment as a result of those working conditions;[9] and (4) the employee did leave the employment as a result of those working conditions. Plaintiff alleged here that, for 19½ months, defendants "engaged in a course of [physical and verbal] conduct constituting a continuing pattern of sexual harassment and abuse of" plaintiff. Plaintiff also alleged that defendants "deliberately created, maintained, and permitted working conditions which defendant knew * * * would force plaintiff to resign." The foregoing allegations suffice to state a claim for constructive discharge. (As noted above, no claim is made that plaintiff's pleading failed to meet the element of "wrongfulness"; the only dispute here has been over the "discharge" element.) Therefore, the trial court erred in dismissing plaintiff's claim for wrongful discharge. In conclusion, the trial court's dismissal of plaintiff's claim for intentional interference with economic relations was not reversible error. The trial court's dismissal of plaintiff's claims for intentional infliction of severe emotional distress and wrongful discharge was error. The decision of the Court of Appeals is affirmed, in part on different grounds. 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. [1] ORCP 67 B provides in part: "When more than one claim for relief is presented in an action, * * * the court may direct the entry of a final judgment as to one or more but fewer than all of the claims * * * only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." [2] Because this case comes to us only on an ORCP 67 B judgment that does not include plaintiff's claims for battery and for breach of contract, those two claims are not before us. [3] This court has stated: "Three requirements must be met to conclude that an employee was acting within the scope of employment. These requirements traditionally have been stated as: (1) whether the act occurred substantially within the time and space limits authorized by the employment; (2) whether the employee was motivated, at least partially, by a purpose to serve the employer; and (3) whether the act is of a kind which the employee was hired to perform." Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988) (citations omitted). That standard is the appropriate one for determining whether a party has acted within the scope of employment for the purpose of this tort. Normally, whether a party has acted within the scope of employment is a question of fact, albeit an ultimate fact. See Stanfield v. Laccoarce, 284 Or. 651, 655, 588 P.2d 1271 (1978) (normally, question whether an employee has acted within the scope of employment is a question of fact for the jury). Because plaintiff has admitted that Staudenraus was acting within the course and scope of his employment, we accept that allegation (consistent with the rule in Moore, 269 Or. at 193, 523 P.2d 1250) as an admission that that fact exists as stated. Plaintiff argues that we should construe that allegation, along with others in the complaint, in her favor as the pleader. Because nothing in the complaint qualifies that allegation or makes it ambiguous, however, we have no occasion to construe plaintiff's admission. [4] The parties disagree about whether the plaintiff or the corporate-agent defendant ordinarily bears the burden of pleading, and of proving, that the defendant agent was or was not acting within the scope of the agent's employment. We need not decide that question of allocation of the burden of pleading or proof because, in this case, plaintiff affirmatively pleaded facts demonstrating that defendant Staudenraus cannot be liable for intentional interference with economic relations. [5] The first of this court's cases to address extensively the improper means/improper purpose element of the tort was Top Service Body Shop v. Allstate Ins Co., 283 Or. 201, 582 P.2d 1365 (1978). In Top Service, the plaintiff, an automobile body repair shop, brought an action against the defendant insurance company on the theory that the defendant had tortiously interfered with the plaintiff's business by directing insurance claimants to have repairs made at other body shops. The trial court granted the defendant's motion for a judgment notwithstanding the verdict, and the plaintiff appealed. 283 Or. at 203, 582 P.2d 1365. In the circumstances, the court did not need to analyze the relationships among the parties to determine whether the defendant was a third party to the contract; Top Service was a case in which "the person interfering is a complete stranger to the contractual relationship." Wampler, 250 Or. at 74, 439 P.2d 601. In Top Service, the court held that a third party's liability for intentional interference with economic relations may arise either "from improper motives or from the use of improper means." 283 Or. at 209, 582 P.2d 1365. The court affirmed the judgment of the trial court as to that claim. Id. at 216, 582 P.2d 1365. Top Service stands for the proposition that there are two different ways for a plaintiff to show that the tort has occurredeither through means or purpose. That case does not stand for the proposition that a plaintiff may establish that a party who is not a third party to the contract may be liable for intentional interference with economic relations simply because that party has acted by improper means or with an improper purpose. [6] The Court of Appeals held that "[p]laintiff has pleaded facts that, if true, are sufficient to show that defendants specifically intended to cause her severe emotional distress." 123 Or.App. at 395-96, 859 P.2d 1187 (footnotes omitted). Thereafter, the parties moved jointly for reconsideration, a motion that the Court of Appeals denied. In that joint motion, which plaintiff's counsel signed, the parties asserted in part that they "agree that plaintiff's complaint did not allege that defendants actually intended to cause severe emotional distress" and that her "complaint was purposely meant to allege something less"i.e., "that defendants acted volitionally with knowledge that the acts would cause the distress." Assuming that the Court of Appeals drew permissible inferences from the complaint as written, plaintiff nonetheless will be held to the assertion of what she believes that she can prove. See Sadler v. Sisters of Charity, 247 Or. 50, 51 n. 1, 426 P.2d 747 (1967) (a trial court properly granted the defendant's motion for an involuntary nonsuit after counsels' opening statements in an action for personal injuries; "Plaintiff's counsel commendably stated that his opening statement was as favorable a statement of his client's claim as he could hope to establish by the evidence."); Norris and Norris, 302 Or. 123, 125, 727 P.2d 115 (1986) ("it has long been the rule in Oregon that `when the facts are stipulated the court is bound by them' * * *. It is not the courts' function to require the parties to contend over facts about which they are agreed" (emphasis in original; citation omitted)). Plaintiff has made an admission in this case that is similar to the one that this court relied on in Sadler. [7] Prosser and Keeton reach a similar conclusion. "Much of the confusion surrounding application of the legal requirement of intent arises from a lack of clear understanding of the relationship between act, intent, and motive. "* * * * * "* * * [I]ntent is broader than a desire or purpose to bring about physical consequences. It extends not only to those results which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does. The actor who fires a bullet into a dense crowd may fervently pray that the bullet will hit no one, but if the actor knows that it is unavoidable that the bullet will hit someone, the actor intends that consequence." W. Page Keeton (Ed.), Prosser and Keeton on the Law of Torts, § 8, at 34-35 (5th ed 1984) (footnote omitted). [8] The Bratcher opinion used the term "deliberately" in describing this element, whereas we have used the term "intentionally." We have done so because we read the Bratcher opinion as a whole to have meant "intentionally" in this context. [9] This requirement means that there is no "constructive discharge" when, for example, an employee agrees to take on an objectively "intolerable" job but later quits. In that situation, it cannot fairly be said that the employer has "induce[d the] employee to resign rather than be fired." Sheets, 308 Or. at 228, 779 P.2d 1000.

65630fa0bd372413f04d196ec0575f86651ee158f1884f4c95af35cdc5d81fd7

1995-09-08T00:00:00Z

4968e129-a041-4a08-b82f-8a9cd028be3c

Nakamoto v. Kulongoski

322 Or. 181, 904 P.2d 165

oregon

Oregon Supreme Court

904 P.2d 165 (1995) 322 Or. 181 Lynn R. NAKAMOTO, Emilio Hernandez, Jr., Ruth Ascher, James Posey and Jann Carson, Petitioners, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, Respondent. SC S42434. Supreme Court of Oregon, In Banc. Argued and Submitted August 29, 1995. Decided October 12, 1995. *166 Scott J. Meyer, Portland, argued the cause and filed the petition for petitioners. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the response for respondent. With him on the answering memorandum were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. DURHAM, Justice. This is an original proceeding in which petitioners challenge the ballot title for a proposed initiative measure.[1] Petitioners are electors who submitted timely written comments about the Attorney General's draft ballot title, pursuant to ORS 250.067(1). Accordingly, petitioners are entitled to seek a different title in this court. ORS 250.085(2) (1993). We modify the ballot title in certain respects and, as modified, certify it to the Secretary of State.[2] The Attorney General certified the following ballot title for the measure to the Secretary of State: "FORBIDS GOVERNMENT PREFERENCES BASED ON RACE, RELIGION, SEX, NATIONAL ORIGIN Petitioners argue that the Attorney General's ballot title does not comply substantially with ORS 250.035(1) (1993).[3] They challenge all three portions of the Attorney General's ballot title. They argue that the certified ballot title is deficient, because it makes no reference to affirmative action and fails to mention either that the measure would repeal existing state statutes requiring affirmative action programs or that those *167 statutes allow affirmative action only to remedy the effects of past or present discrimination. To correct those alleged deficiencies, they propose the following ballot title: "ABOLISHES AFFIRMATIVE ACTION BASED ON RACE, RELIGION, SEX, NATIONAL ORIGIN We address each aspect of the ballot title separately. Petitioners argue that the certified caption does not "reasonably identif[y] the subject of the measure," ORS 250.035(1)(a) (1993), because it makes no reference to the abolition of affirmative action based on race, religion, sex, and national origin. We decline to consider petitioners' challenge to the certified caption, because petitioners did not challenge the caption during the comment stage. Petitioners' comments concerned only the draft question and summary, not the caption. ORS 250.085(6)[4] precludes this court from considering any arguments concerning the ballot title that were not presented in writing to the Secretary of State. See Crumpton v. Keisling, 317 Or. 322, 326, 855 P.2d 1107 (1993) (construing that statute to "require that some notice of the contended defect be given to the Secretary of State"). Petitioners' challenge to the certified caption comes too late. See McCoid v. Kulongoski, 321 Or. 452, 454, 900 P.2d 1028 (1995) (holding that a court challenge to a phrase in the certified question is untimely where the petitioner made no challenge to that phrase in writing to the Secretary of State). Petitioners argue that the certified question fails to phrase plainly the measure's chief purpose which, according to petitioners, is to abolish and ban all affirmative action by state and local governments. In addition, they argue that the question should state that the measure's prohibition extends to programs to cure past and present discrimination. The Attorney General responds that the measure would not abolish or ban all affirmative action, because not all affirmative action programs necessarily give a "preference" based on race, religion, color, sex, or national origin. In support of that argument, the Attorney General relies on the definition of "affirmative action" in ORS 243.305(2) as The Attorney General's argument is well taken. If adopted by the voters, the measure would prohibit state and local governments from granting "a preference to any citizen or group of citizens on the basis of race, religion, color, sex, or national origin in matters of education, employment, contracting, or the provision of public services." It would not abolish all forms of affirmative action which, under ORS 243.305(2) and other statutes that define the phrase, include programs aimed at ensuring equal opportunities in matters of education, employment, contracting, and the provision of public services. A measure's "chief purpose" is "the most significant aim or end which the measure is designed to bring about." Nelson v. Roberts, 309 Or. 499, 504, 789 P.2d 650 (1990). We agree with the Attorney General that the end that the measure is designed to bring about is to forbid state or local preferences based on the listed factors in education, employment, contracting, and provision of public services. The certified question plainly phrases that purpose. Therefore, we reject petitioners' claim that the question fails to comply substantially with the requirements of ORS 250.035(1)(b) (1993). Regarding the summary, petitioners restate their argument that the certified ballot title should refer to the abolition of affirmative action, including programs aimed at curing the effects of past and present discrimination. Petitioners also argue that the measure would have the effect of repealing all existing state statutes that require affirmative action by state and local government in employment, contracting, education, and provision of public services, and they argue that the summary should disclose that effect. We reject petitioners' first contention for the same reason that we rejected that challenge to the certified questionthe measure would not necessarily abolish all affirmative action programs by state and local governments. The Attorney General acknowledges, however, that the measure could limit affirmative action in Oregon, including programs intended to cure the effects of past and present discrimination. Accordingly, he states that it may be appropriate for this court to modify the summary to cure that defect, and he suggests the following revision: The Attorney General asserts that his revised summary would convey more precisely to voters the major effect of the measure *169 because, by informing voters of the current status of Oregon law, voters could infer more easily that the measure would have some, as yet not clearly defined, effect on affirmative action programs in Oregon. The proposed measure not only could limit affirmative action programs in Oregon, it would do so, by prohibiting state and local governments from giving any preference to certain minority groups to cure the effects of present or past discrimination. Unquestionably, some affirmative action programs established pursuant to existing state laws do give a preference based on race, religion, sex, or national origin, to remedy the effects of past and present discrimination.[6] We agree with petitioners and the Attorney General that that is an important change in Oregon law that deserves mention in the summary. Cf. Kane v. Kulongoski, 318 Or. 593, 602-03, 871 P.2d 993 (1994) (abolition of criminal penalties against a complying physician who prescribes a lethal drug for physician-assisted suicide is a sufficiently major change in Oregon law to constitute a "major effect" of the proposed measure that must be included within the summary). However, we do not believe that the Attorney General's revised summary adequately summarizes that effect, as required by ORS 250.035(1)(c) (1993), because it requires voters to infer that the measure would limit affirmative action programs currently authorized under Oregon Law. The summary should state that information expressly. Regarding petitioners' second contention, the Attorney General argues that nothing in the text of the measure expressly amends or repeals any statute relating to affirmative action. He acknowledges that the measure's relating clause mentions the amendment of ten statutes and the repeal of eight others, but argues that a ballot measure's relating clause cannot supply a substantive provision that is not a part of the measure's text. We agree with the Attorney General's argument that a ballot measure's relating clause cannot supply express provisions that are not otherwise in the measure's text. See ORS 174.540 (statute section headings and explanatory notes "do not constitute any part of the law"). We, therefore, reject petitioners' claim that the certified summary fails to comply substantially with ORS 250.035(1)(c) (1993), because the proposed measure does not repeal all existing affirmative action statutes. In accordance with the foregoing discussion, we modify the Attorney General's certified summary for the ballot title, as follows: We modify the ballot title certified to the Secretary of State by the Attorney General. We certify to the Secretary of State the following ballot title: FORBIDS GOVERNMENT PREFERENCES BASED ON RACE, RELIGION, SEX, NATIONAL ORIGIN *170 SUMMARY: Adopts statute. Law now provides for government affirmative action programs to provide fair and equal opportunity in employment and public contracting, to cure past and present discrimination. Measure would limit such programs by forbidding state, local government discrimination against, preference for citizens based on race, religion, color, sex, national origin. Applies in education, employment, contracting, public services. Forbids government from compelling citizens to discriminate against or grant preference based on same factors. Does not affect voluntary private programs to recruit minorities, veterans or disabled persons. Ballot title certified as modified. This decision takes effect as provided in ORAP 11.30(9). "Relating to discrimination; creating new provisions; amending ORS 240.105, 240.306, 240.379, 284.705, 285.500, 285.637, 461.120, 656.753, 659.100 and 776.300; and repealing ORS 182.100, 243.305, 243.315, 279.053, 341.541, 352.380, 659.025 and 659.027. "Be it enacted by the People of the State of Oregon: "Section 1. (1) Neither the state nor any of its political subdivisions shall discriminate against or grant a preference to any citizen or group of citizens on the basis of race, religion, color, sex, or national origin in matters of education, employment, contracting, or the provision of public services. "(2) Neither the state nor any of its political subdivisions shall compel any citizen to discriminate against or grant a preference to any other citizen or group of citizens on the basis of race, religion, color, sex, or national origin in matters of education, employment, contracting, or the provision of public services. "Section 2.(1) The Oregon Department of Labor shall establish such administrative mechanisms that are necessary to investigate complaints and penalize violations of Oregon State Civil Rights Statutes. "(2) Funding for the Department of Labor, Civil Rights Divisions, shall be increased from the transfer of the budget of the Office of Affirmative Action to the Oregon Department of Labor. "Section 3.(1) This act shall apply only to actions taken by the state or political subdivisions of the state action after the effective date of this act. "(2) Nothing in this act shall be interpreted as prohibiting classifications based on sex or ability that are reasonably necessary to the normal operation of the state's system of public employment or public accommodations. "(3) The provisions of this act do not affect any voluntary, nongovernmental program for the recruitment to minorities, veterans or disabled persons. "(4) If any part or parts of this act are found to be in conflict with the United States Constitution, the remaining parts shall be implemented to the maximum extent permitted by the United States Constitution. Any provision held invalid shall be severable from the remaining portions of this act." UNIS, Justice, dissenting. I adhere to my view that, to the extent that ORS 250.085(5) (1993) gives this court jurisdiction to draft and certify a ballot title for a proposed initiative measure that is different than the one certified by the Attorney General, that statute violates the principle of separation of powers embodied in Article III, section 1, of the Oregon Constitution. Rooney v. Kulongoski (Elections Division # 13), 322 Or. 15, 55, 902 P.2d 1143 (1995) (Unis, J., dissenting). I would, therefore, dismiss this case for lack of jurisdiction. [1] The Appendix to this opinion contains the text of the proposed measure. [2] ORS 250.085(5) (1993) requires this court to draft and certify a new ballot title if the ballot title certified by the Attorney General does not comply substantially with ORS 250.035 (1993) and former ORS 250.039, in those cases in which former ORS 250.039 is applicable. In Rooney v. Kulongoski (Elections Division #13), 322 Or. 15, 25, 902 P.2d 1143 (1995), this court, with two justices dissenting, held that that requirement does not violate the principle of separation of powers embodied in Article III, section 1, of the Oregon Constitution. [3] ORS 250.035(1) (1993) provides: "(1) The ballot title of any measure to be initiated or referred shall consist of: "(a) A caption of not more than 10 words which reasonably identifies the subject of the measure; "(b) A question of not more than 20 words which plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on the measure; and "(c) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect." The 1995 Legislature amended ORS 250.035 and 250.085. However, those changes do not apply to the ballot title in this case. See Or Laws 1995, ch. 534, § 20 (act applies to initiative filed after the effective date of act, i.e., July 7, 1995). Because the prospective petition in this case was filed before the effective date of the act, the earlier versions of those statutes apply. [4] ORS 250.085(6) provides: "When reviewing a title prepared by the Attorney General, the 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." (Emphasis added.) The petitioners do not argue that the wording in the caption, about which they complain, was added after the end of the comment period. [5] Other statutes also define the phrase "affirmative action." ORS 182.100(3) provides: "As used in this section, `affirmative action' means a method of eliminating the effects of past and present discrimination, intended or unintended, on the basis of race, religion, national origin, age, sex, marital status or physical or mental disabilities, that are evident or indicated by analysis of present appointment patterns, practices and policies." ORS 279.053(3) provides: "As used in this section `affirmative action' is a program designed to insure equal opportunity in employment and business for persons otherwise disadvantaged by reason of race, color, religion, sex, national origin, age or physical or mental disability." [6] For example, OAR 125-30-010(2)(a) requires state agencies to identify public contracts for assignment to a set aside program. Contracts in the set aside program are subject to competitive bidding "among minority business enterprises only." OAR 125-30-000(13). In order to qualify as a "minority business enterprise," the business must be "at least 51 percent owned by a minority individual(s) or women[.]" OAR 125-030-000(8). Under OAR 125-30-000(12), "minority individuals" are defined as persons belonging to certain racial or ethnic groups. Thus, the state awards contracts in the set aside program exclusively to businesses owned predominantly by women or persons who belong to certain racial or ethnic groups and, thereby, gives those individuals a "preference" in the awarding of public contracts in the set aside program.

a7a41e80f3a1b6124a757bdb2dc649499b42a2b3fa8de361e7cffa379e946aee

1995-10-12T00:00:00Z

1f602b7b-3e95-48f5-b71d-392d78282c0d

STC SUBMARINE v. Dept. of Revenue

320 Or. 589, 890 P.2d 1370

oregon

Oregon Supreme Court

890 P.2d 1370 (1995) 320 Or. 589 STC SUBMARINE, INC., a foreign corporation, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. OTC 3426; SC S41085. Supreme Court of Oregon, In Banc. Argued and Submitted January 6, 1995. Decided March 23, 1995. David L. Canary, of Garvey, Schubert & Barer, Portland, argued the cause for appellant. With him on the briefs was Richard Baroway, Portland. Joseph Laronge, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Theodore R. Kulongoski, Atty. Gen., Salem. DURHAM, Justice. The judgment of the Tax Court is affirmed. Taxpayer manufactures and assembles marine fiber optic cable. In this ad valorem tax case, taxpayer appeals the assessed value of its building and structures for the 1991-92 *1371 tax year.[1] The Tax Court accepted the assessment of $11,737,920 made by the Department of Revenue (department). STC Submarine, Inc. v. Dept. of Rev., 13 OTR 14, 1994 WL 34941 (1994). We review de novo, ORS 305.445; ORS 19.125, and affirm. The subject property was designed specifically for taxpayer's use in manufacturing undersea fiber optic cable. The factory is a one-story building with a total area of 222,200 square feet. The ground floor is used to manufacture, store, and test cable, and the second floor provides office space. The ceiling is higher than are ceilings in typical industrial plants, ranging from 37 ½ feet to 54 feet, in order to minimize the bending of the cable during the manufacturing process. The building contains eight large concrete tanks, 36 feet in diameter and 18 ½ feet deep, for testing and storing cable. The building has a heavy-duty foundation and thick concrete floors to accommodate the weight of the tanks and the use of large manufacturing machinery. The property also includes a marine dock,[2] adjacent to the building, to allow direct loading and unloading of oceangoing vessels. ORS 308.411(1)[3] requires valuation of industrial plants at their "real market value," which ORS 308.205(1)[4] defines as Taxpayer argues that, on the assessment date, the real market value of its building and structures was $7,360,000. The department maintains that the value was $11,737,920. The disparity between the parties' appraisals results from differing opinions about the highest and best use of the property, on which value is based. As the Tax Court explained, the highest and best use of property is the use "to which a property can most profitably be put." STC Submarine, Inc., 13 OTR at 18.[5] Taxpayer argues that, on the assessment date, the worldwide market for fiber optic cable was falling and, for that reason, there was no immediate market for a marine fiber optic cable manufacturing plant. According to taxpayer, the highest and best use of its property was for general-purpose industrial use. It relies on the fact that, as of the assessment date, the three existing companies that manufactured undersea fiber optic cable recently had acquired or built their own plants. Taxpayer's appraiser concluded that taxpayer could expect to receive only $7,360,000 for its building and structures, because no prospective purchaser would pay for the property's "superadequacies," which are the improvements designed specifically to accommodate the manufacture of marine fiber optic cable. The department concluded that the highest and best use of the property's building and *1372 structures on the assessment date was their existing use, because the market for undersea fiber optic cable remained viable at the time. The department's appraiser made no deductions from value for the property's special features, because they support the existing use. This court addressed a similar dispute in Freedom Fed. Savings and Loan v. Dept. of Rev., 310 Or. 723, 801 P.2d 809 (1990). In that case, the taxpayer asserted that the highest and best use of its property was as a multi-tenant office building, rather than its existing use as the headquarters for a financial institution. The taxpayer argued that the decline of the savings and loan industry made it highly improbable that another financial institution would have desired to purchase the property on the assessment dates. In rejecting that argument, this court explained: As in Freedom Fed. Savings and Loan, we reject taxpayer's contention that, because there was no immediate market for the existing use of the property on the assessment date, the department was required to value the property at an alternative use. The nonexistence of an immediate market for a marine fiber optic cable manufacturing plant on the assessment date does not necessarily mean that taxpayer's existing use of the building and structures is not the highest and best use. As the Tax Court observed: "`The highest and best use of a special purpose property as improved is probably the continuation of its current use, if that use remains viable.'" STC Submarine, Inc., 13 OTR at 19 (quoting Appraisal Institute, The Appraisal of Real Estate 293 (10th ed 1992)). The department's appraiser testified that, as of the assessment date, there was a substantial demand and market for undersea fiber optic cable. Taxpayer's witness, Roussell, acknowledged that such demand existed. We find that, as of the assessment date, there was a strong active market for marine fiber optic cable and that continuation of the property's existing use remained viable. Taxpayer's reliance on the fact that existing undersea fiber optic cable manufacturers already had their own plants ignores the possibility of new entrants into the marine fiber optic cable manufacturing business or the possibility that an existing company might have needed additional capacity and purchased taxpayer's entire operation, including its building and structures, to meet that need. Taxpayer's reliance on evidence of market saturation and shrinkage after the assessment date is misplaced. Whether the "highest and best use" of the property would continue to be its existing use after the assessment date does not determine the question of highest and best use on the assessment date. Freedom Fed. Savings and Loan, 310 Or. at 726, 801 P.2d 809. Taxpayer also argues that, in determining the "highest and best use" of its property, the Tax Court erroneously focused on whether a market demand existed for the products and services that the property was designed to provide, rather than on whether a market existed for its building and structures. We disagree. The department's evidence that, as of the assessment date, a market demand continued to exist for taxpayer's products and services supports the department's conclusion that taxpayer's existing use of its building and structures was their "highest and best use."[6] We find that *1373 the highest and best use of the subject property on the assessment date was its existing use as a marine fiber optic cable manufacturing plant. Having determined the highest and best use, we now consider the value of the property at that use. The parties agree that, on the assessment date, no immediate market existed for the property's building and structures at their existing use. ORS 308.205(2)(c) provides: To implement that statute, the department has adopted OAR 150-308.205(A)(3), which provides: The department's appraiser concluded that there were no comparable properties with the same special design features that would provide appropriate comparisons from which he could derive a market value. Consequently, he applied ORS 308.205(2)(c) and OAR 150-308.205(A)(3), and used a cost approach to determine the value that would justly compensate taxpayer for the loss of the property. Taxpayer does not dispute the Tax Court's finding that the subject property is "especial property" within the meaning of that administrative rule. Taxpayer argues, however, that application of the administrative rule resulted in a valuation that exceeds the subject property's "real market value," because the department's assessment reflects the property's "value-in-use," rather than the property's "value-in-exchange." As the Tax Court explained, "value-in-exchange" refers to "the amount at which property will change hands in the marketplace." STC Submarine, Inc., 13 OTR at 21. By contrast, "value-in-use" In Truitt Brothers, Inc. v. Dept. of Rev., 10 OTR 111, 114, 1985 WL 6314 (1985), the Tax Court held that a property's "real market value" is its value-in-exchange, rather than its value-in-use: Relying on Truitt Brothers, Inc., taxpayer argues that the property's "superadequacies" add value to the property only if it is used to *1374 manufacture marine fiber optic cable and that a valuation that fails to deduct for those special design features represents a "value-in-use," rather than a "value-in-exchange." Taxpayer presented no evidence indicating that the property's "superadequacies" would not be equally valuable to any purchaser who planned to continue to use the property to manufacture undersea fiber optic cable. To the extent that the property's special design features would be equally valuable to any other manufacturer of marine fiber optic cable, the value of such "superadequacies" is part of the property's "value-in-exchange." Taxpayer's argument that the department's appraisal represents a value-in-use, because it does not deduct for features that are valuable only to another undersea fiber optic cable manufacturer, simply may be another way of saying that the "highest and best use" of the subject property is not its existing use. We have already determined that the highest and best use of taxpayer's building and structures is to manufacture marine fiber optic cable. The building's special features, designed to accommodate that use, are part of the property's value-in-exchange, because they increase the amount at which the property would change hands in the marketplace. Taxpayer has the burden to show that its approach to valuation best reflects the property's "real market value." ORS 305.427; Freedom Fed. Savings and Loan, 310 Or. at 727, 801 P.2d 809. We are not persuaded to adopt taxpayer's approach. The difference between the parties' appraisals reflects their disagreement about the property's highest and best use. Because we have found that the property's highest and best use is as a marine fiber optic cable manufacturing plant, we conclude that the department's appraisal best represents the property's "real market value." We conclude that the value of taxpayer's building and structures on the assessment date was $11,737,920. The judgment of the Tax Court is affirmed. [1] Taxpayer does not appeal the assessed value of its land, machinery, or equipment. [2] The parties do not dispute the value of the dock. [3] ORS 308.411(1) provides: "Except as provided in subsections (2) to (9) of this section, an industrial plant shall be valued for ad valorem tax purposes under ORS 308.205, 308.232 and 308.235 at its real market value utilizing the market data approach (sales of comparable properties), the cost approach (reproduction or replacement cost of the plant) or the income approach (capitalization of income) or by two or more approaches." [4] ORS 308.205(1) codified the definition of "real market value" contained in Article XI, section 11b, of the Oregon Constitution, which resulted from Ballot Measure 5, a 1990 initiative measure. [5] Determining the "highest and best use" of the property is one step in the process of arriving at the property's "real market value." ORS 308.205(2), which provides guidance in applying the statutory definition of "real market value," provides, in part, that "real market value" reflects "[t]he minimum amount a typical seller would accept or the highest amount a typical buyer would offer which could reasonably be expected by a seller of property." One rationale for relying on "highest and best use" as a step in arriving at market valuation is that a seller of property reasonably can expect to receive the highest offer from a prospective buyer who intends to put the property to its most profitable use. [6] In determining the "highest and best use" of taxpayer's building and structures, the department properly considered the continued viability of taxpayer's entire operation. The following example from Professor Bonbright's treatise, I The Valuation of Property (1937), illustrates the point. Suppose that a prosperous water company has its reservoir in one county and its purifying plant and offices in another county. One may have little value without the other. As Professor Bonbright explains: "Like one glove or half a fountain pen, each part alone may be almost valueless. So, too, though our water company is a valuable business organism, the sum of what would be received from separate sales of the assets on each side of the county line would be ridiculously small." Id. at 493. The value of taxpayer's building and structures, like the value of the water company's reservoir in Professor Bonbright's example, should not be measured in isolation, but rather in relation to the value of the operation as a whole.

401737fb941f645e9c5152d7b16584b23d12b3291e104d5703e501ef54cb841c

1995-03-23T00:00:00Z

2dc7f934-cc3c-48db-8259-14a21006e2cb

Greist v. Phillips

322 Or. 281, 906 P.2d 789

oregon

Oregon Supreme Court

906 P.2d 789 (1995) 322 Or. 281 Mary A. GREIST, as Personal Representative of the Estate of Peter Maurice Greist, Deceased, Respondent on Review, v. Nicky Don PHILLIPS and Lightning Transportation, Inc., a Tennessee corporation, Petitioners on Review. Nicky Don PHILLIPS and Lightning Transportation, Inc., a Tennessee corporation, Petitioners on Review, v. Elizabeth B. TRIPP and Mary A. Greist, individually, Respondents on Review. CC 90-1879-L-1; CA A76287; SC S41542. Supreme Court of Oregon, In Banc. Argued and Submitted January 10, 1995. Decided November 24, 1995. *790 Ridgway K. Foley, Jr., of Foley & Duncan, P.C., Portland, and Hugh B. Collins, Medford, argued the cause, for petitioners on review. With them on the briefs was M. Elizabeth Duncan. Kathryn H. Clarke, Portland, argued the cause, for respondent on review Mary A. *791 Greist. With her on the briefs were Maureen Leonard, Portland, and Robert A. Berst, Seattle, Washington. Daniel L. Harris, of Davis, Gilstrap, Harris, Hearn & Welty, Ashland, appeared on behalf of respondent on review Elizabeth B. Tripp and joined in the brief on the merits of respondent on review Greist. John T. Kaempf, Douglas G. Houser, and R. Lindahl, of Bullivant, Houser, Bailey, Pendergrass & Hoffman, P.C., Portland, filed a brief on behalf of amicus curiae Defense Research Institute. Keith J. Bauer and Billy M. Sime, of Parks, Bauer, Sime & Winkler, Salem, filed a brief on behalf of amicus curiae Oregon Association of Hospitals and Health Systems. Brent M. Crew and Thomas E. Cooney, of Cooney & Crew, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Medical Association. William L. Hallmark, of Hallmark, Keating & Abbott, P.C., Portland, filed a brief on behalf of amicus curiae Senco Products, Inc. Robert Udziela and Kimberley Chaput, of Pozzi Wilson Atchison, Portland, filed a brief on behalf of amici curiae Oregon Trial Lawyers Association, Oregon Consumer League, and ARC of Multnomah County. GRABER, Justice. The questions presented on review in this wrongful death case are: (1) whether the trial court erred when it allowed the jury to consider defendant Phillips' violation of certain federal regulations as evidence of negligence; (2) whether the trial court properly interpreted ORS 18.560,[1] which limits to $500,000 the amount that may be recovered as noneconomic damages in this wrongful death action; and (3) whether the trial court properly determined that ORS 18.560, as applied to this statutory wrongful death proceeding, does not violate various provisions of the Oregon and federal constitutions. The Court of Appeals affirmed the trial court with respect to the evidentiary point, but reversed as to the constitutional point on the ground that ORS 18.560 violates Article VII (Amended), section 3, of the Oregon Constitution, not reaching the statutory construction issue. Greist v. Phillips, 128 Or.App. 390, 404, 875 P.2d 1199 (1994). In considering the meaning and constitutionality of ORS 18.560, we limit our analysis to the application of ORS 18.560 to a statutory claim for wrongful death and, for the following reasons, affirm the judgment of the trial court in its entirety. Because this case comes to us after a trial at which the jury found in plaintiff's favor, we view all the evidence, and the inferences that reasonably may be drawn from it, in the light most favorable to plaintiff. See Wagner v. Kaiser Foundation Hospitals, 285 Or. 81, 83-84, 589 P.2d 1106 (1979) (stating principle). On June 14, 1989, plaintiff, her son and daughter, and Tripp (who was the son's aunt) *792 were returning to Oregon from California on Interstate 5 in a Volkswagen van. At about 4:30 pm, the van was descending from the Siskiyou Pass. The descent from the pass is about a six percent downgrade for seven miles. At the same time, a five-axle truck and trailer rig was also traveling north on I-5, coming down from the Siskiyou Pass. The truck's brakes were not functioning properly. The driver of the truck, Phillips, was aware that the truck's brakes were not functioning properly. Although the posted maximum safe speed at the outset of the downgrade was 18 miles per hour for a truck that weighed as much as the truck being driven by Phillips, Phillips was traveling at approximately 40 miles per hour when he began his descent from the Siskiyou Pass. The brakes did not operate adequately on the descent. About six miles below the summit, Phillips ran into the rear end of plaintiff's van. The van was propelled forward, and it overturned, skidding to a stop 595 feet from the point of impact. The decedent, who was almost 10 months old, was thrown from the van and was killed. After hitting the van, the truck was unable to stop for almost three miles. Plaintiff, the personal representative of her son's estate, brought this action for the wrongful death of her son, pursuant to ORS 30.020.[2] She named as defendants Phillips and his employer, Lightning Transportation, Inc. Plaintiff sought compensation for the parents' loss of their child's society and companionship and for pecuniary loss to the decedent's estate. After a trial, the jury returned a verdict for plaintiff, awarding economic damages of $100,000 and noneconomic damages of $1.5 million. The trial court applied ORS 18.560 and entered a judgment for plaintiff that included economic damages of $100,000 and noneconomic damages of $500,000. Plaintiff appealed, assigning as error the application of ORS 18.560 to reduce the award of noneconomic damages. The Court of Appeals reversed; it held that the statutory limit of $500,000 for noneconomic damages in civil actions violates Article VII (Amended), section 3, of the Oregon Constitution. 128 Or.App. at 404, 875 P.2d 1199. Defendants cross-appealed, assigning as error (as now pertinent) the trial court's refusal to withdraw from the jury two allegations of negligence that were based on federal regulations concerning the operation of commercial trucks. The Court of Appeals affirmed as to those assignments of error. Id. at 398-99, 875 P.2d 1199. Defendants contend that the trial court erred by refusing to withdraw from the jury two allegations of negligence that were based on Phillips' violation of federal regulations. Federal regulations require every commercial truck to have an operative speedometer at all times. 49 C.F.R. 393.82.[3] Federal regulations also prohibit a truck driver from being on duty for more than 70 hours in any period of eight consecutive days. 49 C.F.R. 395.3.[4] From the evidence developed at trial, a reasonable juror could have inferred that the speedometer in the truck was not operative at the time of the accident. A reasonable juror also could have inferred that Phillips had driven the truck for more than 70 hours in eight consecutive days at the time of the accident. The Court of Appeals discussed at length the evidence supporting those inferences, 128 Or.App. at 398-99, 875 P.2d 1199, and the general principles applicable thereto, id. at 396-99, 875 P.2d 1199. It would not benefit bench or bar to repeat that discussion here. For the purpose of this case, it is enough to observe that, viewing the evidence and all inferences that reasonably may be drawn therefrom in the light most favorable to plaintiff, a reasonable juror could have found that Phillips' failure to meet those federal standards was a substantial contributing factor to the accident and the resultant injury to the decedent. The trial court did not err when it allowed the jury to consider the allegations of negligence based on 70-hour and operative-speedometer rules. The Court of Appeals correctly affirmed the rulings of the trial court on those points. The jury awarded plaintiff $1.5 million in noneconomic damages. The trial court applied ORS 18.560 and entered judgment for noneconomic damages of $500,000. Plaintiff mounts a variety of challenges to the application of ORS 18.560 in this case. This court considers subconstitutional claims before considering constitutional ones. See Zockert v. Fanning, 310 Or. 514, 520, 800 P.2d 773 (1990) (describing method of analysis). Plaintiff first argues that the trial court erred in holding that the claims of all individuals in an action to which ORS 18.560 applies are subject to a single-dollar limitation. Under plaintiff's statutory argument, the court should have entered judgment for noneconomic damages of $500,000 to each surviving parent, for a total award of $1 million in noneconomic damages. Defendants argue that the trial court correctly held that ORS 18.560 imposes a single limit on the noneconomic damage award in a wrongful death action relating to one decedent, regardless of the number of beneficiaries that there happen to be. In construing statutes, our task is to discern the intent of the legislature. In doing so, the first level of analysis is to examine the text and context of the statute. If the legislature's intent is clear from those inquiries, further inquiry is unnecessary. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). ORS 18.560(1), quoted above at note 1, provides that, with certain exceptions not applicable here, "in any civil action seeking damages arising out of * * * death * * * of any one person * * * the amount awarded for noneconomic damages shall not exceed $500,000." That wording limits the "amount awarded for noneconomic damages" in any *794 "civil action" arising out of the death "of any one person" to $500,000. For the purpose of this case, we need to decide only how ORS 18.560(1) applies to a wrongful death claim. In that context, the application of ORS 18.560(1) is clear. This "civil action" seeks damages arising out of the death of "one person." ORS 18.560(1). ORS 30.020(1), quoted above at note 2, provides, as relevant here, that the personal representative of a decedent may "maintain an action against the wrongdoer." That is, the personal representative may bring only one action when there is only one decedent, no matter how many beneficiaries there may be. Here, there was but one decedent, and plaintiff brought one action. Under ORS 18.560(1), that action is subject to a single limit of $500,000. The trial court did not err in interpreting the statute when it applied a single $500,000 limit on noneconomic damages delineated in ORS 18.560(1) to this wrongful death action.[5] Plaintiff argues that the trial court's application of ORS 18.560(1) to limit the jury award of noneconomic damages to $500,000 violates both the state and federal constitutions. In particular, plaintiff asserts that application of the statutory limit violates Article I, sections 10, 17, and 20, and Article VII (Amended), section 3, of the Oregon Constitution,[6] and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.[7] Defendants respond that ORS 18.560(1) violates neither the state nor the federal constitution. This court considers state constitutional claims before considering federal constitutional claims. Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981). Accordingly, we next decide whether the application of ORS 18.560(1) in this case violates the cited provisions of the Oregon Constitution. Article I, section 10, of the Oregon Constitution, provides in part that "every man shall have remedy by due course of law for injury done him." Plaintiff argues that she has suffered injuries in this case, which ORS 30.020 establishes as legally cognizable. She reasons that application of ORS 18.560(1) to her claim violates Article I, section 10, because that statute "wholly denies a remedy for legitimate losses which exceed $500,000, and it fails to offer alternative remedies." Decisions from this court discussing Article I, section 10, dispose of plaintiff's argument. In Hale v. Port of Portland, 308 Or. 508, 517-524, 783 P.2d 506 (1989), this court addressed whether certain limits on damages contained in the Oregon Tort Claims Act, ORS 30.260 to 30.300, violated Article I, section 10. The court held that they did not. 308 Or. at 523-24, 783 P.2d 506. In reaching that conclusion, the court discussed the development of Article I, section 10, jurisprudence in this court, id. at 519-23, 783 P.2d 506, summarizing prior cases as follows: "[Prior cases from this court] held only that Article I, section 10, is not violated *795 when the legislature alters (or even abolishes) a cause of action, so long as the party injured is not left entirely without a remedy. Under those cases, the remedy need not be precisely of the same type or extent; it is enough that the remedy is a substantial one." Id. at 523, 783 P.2d 506 (citations omitted). See also Neher v. Chartier, 319 Or. 417, 424, 879 P.2d 156 (1994) (quoting that passage with approval). Accordingly, the legislature is entitled to amend the amount of damages available in a statutory wrongful death action without running afoul of Article I, section 10, as long as the plaintiff is not left without a substantial remedy. Plaintiff brought this action under ORS 30.020. That statute entitles plaintiff to damages in an amount that "includes reasonable" medical, burial, and memorial services rendered for the decedent, ORS 30.020(2)(a), and "would justly, fairly and reasonably" compensate plaintiff for pecuniary loss to the decedent's estate and loss of the society, companionship, and services of the decedent, ORS 30.020(2)(c) & (d). The jury awarded $100,000 in "economic damages," which are "objectively verifiable monetary losses," including expenses for medical, burial, and memorial services and loss to an estate (including loss of services to an estate). ORS 18.560(2)(a). The jury also awarded $1.5 million in "noneconomic damages," which are "subjective, nonmonetary losses," including loss of society and companionship. ORS 18.560(2)(b). Applying ORS 18.560(1), the trial court gave plaintiff judgment for noneconomic damages of $500,000, in addition to the $100,000 in economic damages, for a total of $600,000. Plaintiff has not been left without a remedy. She has received $600,000, comprised of $500,000 in noneconomic damages and $100,000 in economic damages. There was no statutory limit on the latter category of damages. Although that remedy is not precisely of the same extent as that to which plaintiff was entitled before the enactment of ORS 18.560(1), that remedy is substantial. See Hale, 308 Or. at 517-24, 783 P.2d 506 (upholding, under Article I, section 10, a $100,000 limitation on liability of each public body under the Oregon Tort Claims Act, despite the plaintiff's economic damages of more than $600,000). The remedy for wrongful death is substantial, not only because 100 percent of economic damages plus up to $500,000 in noneconomic damages is a substantial amount, but also because the statutory wrongful death action in Oregon has had a low limit on recovery for 113 years of its 133-year history. See 322 Or. at 294, 906 P.2d at 796, below (discussing history of wrongful death action in Oregon). As noted there, the wrongful death claim came into existence with a limitation, and the highest previous limitation (1961-1967) was $25,000. In relation to that history, the present remedy is substantial. Plaintiff's Article I, section 10, argument is not well taken. B. Article I, section 20, of the Oregon Constitution Plaintiff also argues that the limitation on noneconomic damages in ORS 18.560(1), as applied to this wrongful death claim, violates Article I, section 20, of the Oregon Constitution. Plaintiff reasons that, "in some cases [application of that statute will] prohibit the judge from entering the award the jury deemed appropriate in that particular case." (Emphasis in original). In other words, persons awarded more than $500,000 in noneconomic damages are subject to the statutory limit in ORS 18.560(1), while persons who are awarded noneconomic damages of $500,000 or less receive full compensation for their injuries. Thus, plaintiff argues, ORS 18.560(1) discriminates against the class of persons who, in the absence of the statute, would receive noneconomic damages in excess of $500,000. In Sealey v. Hicks, 309 Or. 387, 397, 788 P.2d 435, cert. den. 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 39 (1990), this court said: "In evaluating whether a class exists under Article I, section 20, we must first determine whether the class is created by the challenged law itself or by virtue of characteristics * * * apart from the law in question. Classes of the first type are entitled to no special protection and, in *796 fact, are not even considered to be classes for the purposes of Article I, section 20." (Internal quotation marks omitted; citations omitted; ellipses in original.) The classes to which plaintiff's argument refers clearly are classes "created by the challenged law itself." ORS 18.560(1) divides plaintiffs into "classes" based on the amount that happens to be awarded after trial. "[S]uch a decision is within the purview of the legislature." Sealey, 309 Or. at 397, 788 P.2d 435. Plaintiff's Article I, section 20, argument is not well taken. C. Jury Trial Rights: Article I, section 17, and Article VII (Amended), section 3, of the Oregon Constitution Next, plaintiff argues that the application of ORS 18.560(1) to this wrongful death action violates her right to a jury trial as provided in Article I, section 17, and Article VII (Amended), section 3, of the Oregon Constitution. Plaintiff argues that the right to a jury trial means that the jury decides the facts (including the amount of damages to be awarded) and that the jury's unmodified determination of damages is given effect: "Reducing a verdict after a jury has determined that the evidence supports an award in a specified amount is an invasion of the jury's sole responsibility and is prohibited by [Article I, section 17, of] the constitution." Moreover, according to plaintiff, Article VII (Amended), section 3, "makes it explicit that overriding the jury's damage award if it is supported by the evidence is also impermissible." Article I, section 17, guarantees a jury trial in civil actions. Article I, section 17, was part of the Bill of Rights of the Oregon Constitution, which was adopted in 1857. Article VII (Amended), section 3, guarantees that, after a jury trial, "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." Article VII (Amended), section 3, of the Oregon Constitution, was adopted by the voters of Oregon by initiative petition in 1910. The right to trial by jury in Article I, section 17, See also Deane v. Willamette Bridge Co., 22 Or. 167, 169-77, 29 P. 440 (1892) (the plaintiff had no right under Article I, section 17, to a jury determination of damages in a default proceeding, because common law did not afford a right to jury trial in a default proceeding). In Oregon, as plaintiff acknowledges, the right of action for wrongful death is statutory. "[A]t common law no remedy by way of a civil action for wrongful death existed." Richard v. Slate, 239 Or. 164, 167, 396 P.2d 900 (1964). In Goheen v. General Motors Corp., 263 Or. 145, 153-54, 502 P.2d 223 (1972), this court traced the history and development of wrongful death actions in Oregon and stated: "The original Oregon Wrongful Death Act was included in the original Deady Code in 1862. * * * [It] did not specifically *797 limit awards of damages to any named dependents. Neither did it specifically limit damages to pecuniary loss, although total recovery was limited to $5,000. This limitation on the amount of recovery was increased from time to time, and was finally removed [by Oregon Laws 1967, chapter 554, section 1]." (Footnotes omitted.) There was no wrongful death statute in Oregon before the 1862 Deady Code. Ibid. Therefore, at the time Article I, section 17, was adopted, no right existed for a trial by jury for a wrongful death action. Because wrongful death actions are "purely statutory," they "exist only in the form and with the limitations chosen by the legislature." Hughes v. White, 289 Or. 13, 18, 609 P.2d 365 (1980). Plaintiff argues, however, that the right to a jury trial is "not strictly limited to cases in which it existed in 1859, when [Article I, section 17,] became effective," because the right extends to "cases `of like nature'" to those that existed at common law at the time the constitution was adopted. Plaintiff argues that, in 1857, a right to jury trial existed for personal injury actions; that a wrongful death action is "of like nature" to a personal injury action; and, thus, that the right to a jury trial attaches here. Even accepting the premise that a wrongful death action is "of like nature" to a personal injury action, plaintiff's argument would not prevail. When Article I, section 17, and the constitution were adopted, a jury's determination of the amount of damages to be awarded in tort actions was not protected from judicial alteration. Before the adoption of Article VII (Amended), section 3, in 1910, Oregon trial courts were empowered to exercise their discretion and set aside jury verdicts and grant a new trials for excessive damages found by a jury, or to order a remittitur of the excess as a condition to denying a motion for a new trial. See, e.g., General Laws of Oregon, ch. 2, § 232(5), p. 197 (Deady 1845-1864) (court could set aside jury's verdict because of "[e]xcessive damages * * * given under the influence of passion or prejudice"); Adcock v. Oregon Railroad Co., 45 Or. 173, 181, 77 P. 78 (1904) ("Where the damages assessed are excessive, in the opinion of the trial court, or not justified by the evidence, the error may in many cases be obviated by remitting the excess."); Sorenson v. Oregon Power Co., 47 Or. 24, 33, 82 P. 10 (1905) (approving trial court's exercise of remittitur). See also Hall S. Lusk, Forty-Five Years of Article VII, Section 3, Constitution of Oregon, 35 Or.L.Rev. 1, 4 (1955) (stating that, before adoption of Article VII (Amended), section 3, trial courts were empowered to set aside verdicts that they believed to be excessive). Article VII (Amended), section 3, and subsequent decisions by this court, did away with that practice. "In order to inhibit such practice and to uphold verdicts, the Constitution was amended so as to preclude a court from re-examining any fact that had been tried by a jury, when the verdict returned was based on any legal evidence." Buchanan v. Lewis A. Hicks Co., 66 Or. 503, 510, 133 P. 780, 134 P. 1191 (1913). Until the adoption of Article VII (Amended), section 3, in 1910, trial courts were empowered to reduce jury awards of damages when the courts believed that those awards were excessive. That fact, in itself, disposes of plaintiff's argument that there existed at common law, at the time Article I, section 17, was adopted in 1857, a right to have a judge enter judgment on a jury's award of damages without judicial alterationin a personal injury action. Plaintiff's Article I, section 17, argument is not well taken. 2. Article VII (Amended), section 3, of the Oregon Constitution As noted above, the right of action for wrongful death in Oregon is wholly statutory, and the legislature is entitled to impose boundaries on statutory actions. 322 Or. at 292, 906 P.2d at 795-796. Indeed, for most of its existence, the statutory right of action for wrongful death has contained a limitation on the amount that a plaintiff could recover. In it original form, the Oregon Wrongful Death Act limited a plaintiff's total recovery to $5,000. The legislature increased that limitation on the amount of recovery from time to time; in 1961, the legislature *798 raised the limit for the fifth time, to $25,000. See Goheen, 263 Or. at 154 nn. 15-17, 502 P.2d 223 (tracing statutory changes). In 1967, the legislature removed any limitation. Or.Laws 1967, ch. 544, § 1. As pertinent here, by enacting ORS 18.560(1) in 1987,[9] the legislature in essence ended a 20-year hiatus in limitations on the amount of recovery in wrongful death actions. With respect to a wrongful death action, ORS 18.560(1) has the effect of reinstating a ceiling on that legislatively created remedy. The dispositive question is whether Article VII (Amended), section 3, prevented the legislature from so defining wrongful death claims. We interpret a provision of the Oregon Constitution by examining "[i]ts specific wording, the case law surrounding it, and the historical circumstances that led to its creation." Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992). Nothing in the wording of Article VII (Amended), section 3, quoted above at note 6, restricts the legislature's authority to set a substantive limitation on a purely statutory remedy. The wording of Article VII (Amended), section 3, addresses only the power of courts to "re-examine[ ]" facts "tried by a jury." The case law surrounding Article VII (Amended), section 3, leads to the same conclusion. See, e.g., Buchannan, 66 Or. at 510, 133 P. 780, 134 P. 1191 (describing effect of that amendment). Finally, there is no suggestion in the circumstances that led to the creation of Article VII (Amended), section 3, that that provision was intended to restrict the legislature's authority to set a substantive limitation on a purely statutory remedy. Rather, the purpose of Article VII (Amended), section 3, "was to bring about an improved administration of justice by reducing retrials to a minimum and so eliminating delay and expense." Lusk, 35 Or.L.Rev. at 3. See also Thomas H. Tongue, In Defense of Juries As Exclusive Judges of the Facts, 35 Or.L.Rev. 143 (1956) (agreeing with Justice Lusk's assessment of the purpose of Article VII (Amended), section 3); Pamphlet Containing Measures to be Submitted to Voters of Oregon, November 8, 1910, at 176-77 ("The purpose of this amendment is to * * * remove the pretext for new trials in those cases in which substantial justice is done by the verdict and judgment, but in which the trial court may have made a technical mistake."). The right of action for wrongful death was created by the legislature in 1862, and it was created with a limitation on the amount recoverable. When the voters adopted Article VII (Amended), section 3, in 1910, the maximum amount recoverable in a statutory wrongful death action was $7,500. Lord's Oregon Laws, ch. VI, § 380, p. 326 (1910). Although voters told the courts not to "re-examine" facts "tried by a jury," Art. VII (Amended), § 3, there is no indication in wording, case law, or history that the voters meant to undo the extant dollar limit on wrongful death actions. The removal, in 1967, of any limitation on the amount recoverable in a wrongful death action did not place the issue of dollar limits beyond the legislature's power to act, nor clothe the legislature's creation with constitutional guarantees not present at its inception. In summary, after examining the wording of Article VII (Amended), section 3, the case law surrounding it, and the historical circumstances that led to its creation, we have found no suggestion that Article VII (Amended), section 3, restricts the legislature's authority to set a maximum recovery in statutory wrongful death actions. Its authority in that regard is not diminished by the fact that the maximum recovery is set in a general statute that applies to wrongful death actions, rather than in the wrongful death statute itself. The Court of Appeals erred when it held that application of ORS 18.560(1) to plaintiff's wrongful death action violated Article VII (Amended), section 3, of the Oregon Constitution. The trial court correctly held that ORS 18.560(1) does not violate the Oregon Constitution as applied in this case. Because plaintiff's statutory and state constitutional claims are not well taken, we address her federal constitutional claims. *799 Plaintiff argues that application of ORS 18.560(1) violates her rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiff argues that application of ORS 18.560(1) to this wrongful death claim violates her right to substantive due process under the Fourteenth Amendment. Plaintiff argues that ORS 18.560(1) deprives her of an important property interest (her right to collect damages), without furthering a substantial state interest. In Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978), the Supreme Court of the United States rejected a substantive due process challenge to a federal statute that imposed a limitation on liability for nuclear accidents resulting from the operation of federally licensed private nuclear power plants. The Court stated: The Oregon legislature did not act in a "demonstrably arbitrary or irrational" way when it enacted ORS 18.560(1). ORS 18.560 was adopted by the legislature in 1987, as part of Senate Bill 323. Or.Laws, 1987, ch. 774, § 6. The legislative history of that provision shows that the purpose of the limitation on noneconomic damages, found in ORS 18.560(1), was to reduce the costs of insurance premiums and litigation. See, e.g., Tape recording, House Judiciary Committee, Subcommittee # 1, SB 323, April 29, 1987, Tape 466 at 133-200 (statements of Richard Egan, City-County Insurance Trust, and Representative Dave Dix) (discussing purposes and effects of statutory limits on damages awards); Testimony, Senate Judiciary Committee, SB 323, February 3, 1987, Ex A at 12 (testimony of John H. Holmes for Citizens' Initiative for Equity in the Legal System) ("A limit on noneconomic damages * * * will improve the justice system, make economic sense, result in the availability of more insurance, result in better insurance rates for the consumers, provide predictability in the reinsurance markets of the world, and result in a more reasonable cost to the public of all those goods and services that have been affected by the escalating costs in this area").[10] The legislature enacted ORS 18.560(1) in response to a perceived threat of rising insurance and other costs. There existed a rational basis for the legislature to enact ORS 18.560(1). Accordingly, application of ORS 18.560(1) to plaintiff's claim does not violate her rights to substantive due process under the Fourteenth Amendment to the United States Constitution. Plaintiff argues that application of ORS 18.560(1) to this wrongful death claim violates her right to equal protection under the Fourteenth Amendment. She argues *800 that the statute unreasonably disadvantages those who receive jury awards of noneconomic damages in excess of $500,000, as contrasted to those who receive awards of noneconomic damages equal to or less than $500,000. Her argument here is similar to her argument under Article I, section 10, of the Oregon Constitution, discussed above. 322 Or. at 289-90, 906 P.2d at 794. The Supreme Court of the United States recently has stated that: ORS 18.560(1) does not categorize plaintiff on the basis of an inherently suspect characteristic, such as race, sex, or alienage. And, as we have discussed above, ORS 18.560(1) does not jeopardize the exercise of a recognized fundamental right in this case, because the right to collect damages for wrongful death is a statutory right only, which has incorporated a dollar limit on recovery for most of its existence. We also concluded above that there existed a rational basis for the legislature to impose the statutory limit. For the foregoing reasons, application of ORS 18.560(1) to plaintiff's wrongful death action does not violate the Equal Protection Clause to the United States Constitution. The Court of Appeals correctly concluded that the jury could consider defendant Phillips' violation of certain federal regulations as evidence of negligence. The Court of Appeals erred when it held that application of ORS 18.560 to this wrongful death action violated Article VII (Amended), section 3, of the Oregon Constitution. The limit on noneconomic damages contained in ORS 18.560(1) provides one limit of $500,000 in this case. Application of ORS 18.560(1) to this wrongful death action does not violate Article I, sections 10, 17, 20, or Article VII (Amended), section 3, of the Oregon Constitution. Application of ORS 18.560(1) to this wrongful death action does not violate the Fourteenth Amendment to the United States Constitution. The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed. FADELEY, J., filed a concurring opinion. UNIS, J., filed an opinion concurring in part and specially concurring in part in which DURHAM, J., joined. FADELEY, Justice, concurring. I concur in the result and the necessary principle and reasoning stated in the lead opinion. I do not join the remaining dicta. The discussion of whether a statutory remedy is "substantial"a discussion engaged in to support the argument that less than a full remedy may be substituted for a full one by act of the legislatureis unnecessary and wide of the mark. In this case, there would be no remedy at all but for an act of the legislature. The discussion of various ways that the traditional power of a jury may be drained away from that institution to increase the power of either the legislature or the judiciary is also unnecessary, and too far afield. The following four quotes from the lead opinion, in which I concur, dispose of this case: "ORS 30.020(1), quoted above at note 2, provides, as relevant here, that the personal representative of a decedent may `maintain an action against the wrongdoer.' That is, the personal representative may *801 bring only one action when there is only one decedent, no matter how many beneficiaries there may be. Here, there was but one decedent, and plaintiff brought one action. Under ORS 18.560(1), that action is subject to a single limit of $500,000." 322 Or. at 288-89, 906 P.2d at 793-794. "In Oregon, as plaintiff acknowledges, the right of action for wrongful death is statutory. `[A]t common law no remedy by way of a civil action for wrongful death existed.' Richard v. Slate, 239 Or. 164, 167, 396 P.2d 900 (1964). In Goheen v. General Motors Corp., 263 Or. 145, 153-54, 502 P.2d 223 (1972), this court traced the history and development of wrongful death actions in Oregon and stated: "`The original Oregon Wrongful Death Act was included in the original Deady Code in 1862. * * * [It] did not specifically limit awards of damages to any named dependents. Neither did it specifically limit damages to pecuniary loss, although total recovery was limited to $5,000. This limitation on the amount of recovery was increased from time to time, and was finally removed [by Oregon Laws 1967, chapter 554, section 1].' (Footnotes omitted.) The above-quoted material explains my reasons for concurring in the result. Other constitutional provisions have been invoked by the parties. The short and sufficient answer is that there is no true class or discriminatory classification created by the statute conferring the right to recover for wrongful death. No further discussion of other state and federal constitutional provisions is needed. UNIS, Justice, concurring in part, specially concurring in part. I join in all but Parts IV.A. and IV.B. of this court's opinion. With respect to Parts IV.A. and IV.B., I concur in the result *802 reached be the court, but for reasons different from those expressed by the court. "[C]onstitutional interpretation must meet the criteria of good legislationit must be sensible, clear, precise and consistentand more: it must also demonstrate fidelity to the constitution itself."[1] Constitutional interpretation also should be logical enough to avoid producing absurd results, clear enough to guide legislators, litigants, courts, and ordinary citizens, and precise enough to have some meaning beyond unfocused exhortation.[2] In this case, the court's interpretation of Article I, section 10, of the Oregon Constitution (the "remedy guarantee clause") does not, in my view, meet those criteria; it is another individually tenable but inconsistent opinion about the remedy guarantee clause.[3] Likewise, the court's interpretation of Article I, section 20, of the Oregon Constitution (the "equal privileges and immunities" provision) fails to address the appropriate sequence of inquiries to resolve plaintiff's claim under that constitutional provision. The court today holds that ORS 18.560,[4] which places a $500,000 cap on noneconomic *803 damages in certain civil actions, does not violate Article I, section 10, of the Oregon Constitution as applied to a wrongful death action brought under ORS 30.020.[5] I agree with that conclusion, but not with the court's reasons to support it. Article I, section 10, of the Oregon Constitution provides: Article I, section 10, as a whole, plainly is concerned with the administration of justice; "it provides an affirmative claim upon the state to provide a legal `remedy' for an `injury done' [to one's person, property, or reputation]." State v. Burrow, 293 Or. 691, 695 n. 5, 653 P.2d 226 (1982). The remedy guarantee clause "is directed against the denial of a legal remedy to one who has a claim, arising from `injury done him in his person, property, or reputation,' that has its legal source outside [Article I, section 10] itself. For such a recognized legal injury, `every man shall have remedy by due course of law.'" Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or.L.Rev. 125, 136 (1970). See Davidson v. Rogers, 281 Or. 219, 223, 574 P.2d 624 (1978) (Linde, J., concurring) (the remedy guarantee clause is addressed to litigants who seek "to secur[e] the right to set the machinery of the law in motion to recover for harm already done to one of the stated kinds of interest"). It is well established that the legislature has the authority to determine what constitutes a legally cognizable injury. Sealey v. Hicks, 309 Or. 387, 394, 788 P.2d 435, cert. den. 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 39 (1990). This court's decisions long have established that the remedy guarantee clause was not intended to "freeze" the common law, equitable, and statutory remedies that existed in 1859 when the Oregon Constitution was adopted. See, e.g., Neher v. Chartier, 319 Or. 417, 427-28, 879 P.2d 156 (1994) ("Article I, section 10, [of the] Oregon Constitution, was not intended to give anyone a vested right in the law either statutory or common; nor was it intended to render the law static") (quoting Noonan v. City of Portland, 161 Or. 213, 249, 88 P.2d 808 (1939)). Moreover, this court has never held that the remedy guarantee clause prohibits any and all legislative elimination or modification of remedies. Such an approach would work drastic changes on well-settled doctrines such as statutes of limitation, statutes of repose, and sovereign tort immunity, and statutory schemes such as workers' compensation. Prior decisions of this court, as well as the decision of the court in this case, see 322 Or. at 290-92, 906 P.2d at 794-795, indicate *804 further that the remedy guarantee clause provides "more than a procedural guarantee that the `due course of law' will be open to `every [person]' who is entitled to a remedy under the substantive law, whatever that might be at any time."[6]See, e.g., Hale v. Port of Portland, 308 Or. 508, 783 P.2d 506 (1989) (certain limits on damages contained in the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300, did not violate Article I, section 10, because OTCA broadened the scope of city's liability); Holden v. Pioneer Broadcasting Co., 228 Or. 405, 365 P.2d 845 (1961) (debating the constitutionality of a statute that made recovery of general damages for defamation by a media defendant contingent on the defendant's refusal to publish a retraction, in terms of whether the Legislative Assembly could make retraction an alternate "remedy" for general damages, and holding that retraction is an "alternative remedy" that can satisfy Article I, section 10).[7] "The text [of the remedy guarantee clause] offers three verbal handholds: [1] What harm to one of the protected interests is an `injury'? [2] What qualifies as a `remedy'? [3] Is this remedy available `in due course of law'?" Hale, 308 Or. at 529, 783 P.2d 506 (Linde, J., concurring). Those three verbal handholds provide a useful analytical framework for resolving a remedy guarantee clause claim. It is undisputed that the harmeconomic and noneconomic losssuffered as a result of wrongful death and for which plaintiff seeks recovery in this civil tort action qualifies as a legally cognizable injury to one of the stated types of interests protected by Article I, section 10.[8] Indeed, the legislature, in enacting the wrongful death statute, ORS 30.020, specifically recognizes that the legal "injury" that plaintiff, in this civil action, established at trial is cognizable in economic and noneconomic damages. This is not a civil tort action in which the legislature has sought to limit recovery by redefining what constitutes a legally cognizable injury. ORS 18.560(1), which applies to civil actions generally, regardless of the substantive theory of recovery, distinguishes and deals differently with economic damages (objectively verifiable monetary losses) from noneconomic damages (subjective, nonmonetary losses, such as loss of society and companionship). ORS 18.560(1) allows recovery for all economic damages, but places a $500,000 cap on noneconomic harm. The question before this court in this case, therefore, is whether ORS 18.560, which allows recovery for all objectively verifiable monetary losses (i.e., economic damages), but limits the financial scope of the remedy for subjective, nonmonetary losses (i.e., noneconomic damages) to $500,000, qualifies as a legal "remedy" that is available "in due course of law." I would answer that question in the affirmative. *805 There is no question that the legislature has the authority to determine what constitutes a legally cognizable injury and to abolish an existing statutorily recognized, legally cognizable injury. The legislature also can redefine a statutorily recognized, legally cognizable injury. Moreover, the legislature can distinguish and deal differently with economic loss from noneconomic loss for mental suffering or other noneconomic harm. For example, the legislature could provide by statute that only economic damages arising out of the wrongful death of a person are recoverable in a wrongful death action brought under Oregon statutory law.[9] Under such a statute, the analysis under Article I, section 10, would be that the plaintiff suffered no legal "injury" cognizable in noneconomic damages. The legislature cannot, however, abolish a remedy and at the same time recognize a legally cognizable injury. Neher, 319 Or. at 424, 879 P.2d 156.[10] Once a legislature determines that a legal "injury" is cognizable in both economic and noneconomic damages, then, in my view, the legislature may not limit the financial scope of the remedy for those damages objectively measurable in money (i.e., economic damages), but the legislature may limit the financial scope of the remedy for noneconomic harm. ORS 18.560(1) satisfies these criteria. That statute allows recovery of (1) objectively verifiable monetary losses (economic damages), and (2) noneconomic damages (subjective, nonmonetary losses) in an amount not to exceed $500,000. The remedy afforded by ORS 18.560(1), therefore, qualifies as a legal "remedy" that Article I, section 10, of the Oregon Constitution guarantees,[11] and that "remedy" is available "in due course of law." The majority concludes that Article I, section 10, is not violated because plaintiff has not been denied a "substantial remedy." The majority states: "Plaintiff brought this action under ORS 30.020. That statute entitles plaintiff to damages in an amount that `includes reasonable' medical, burial, and memorial services rendered for the decedent, ORS 30.020(2)(a), and `would justly, fairly and reasonably' compensate plaintiff for pecuniary loss to the decedent's estate and loss of the society, companionship, and services of the decedent, ORS 30.020(2)(c) & (d). The jury awarded $100,000 in `economic damages,' which are `objectively verifiable monetary losses,' including expenses for medical, burial, and memorial services and loss to an estate (including loss of services to an estate). ORS 18.560(2)(a). The jury also awarded $1.5 million in `noneconomic damages,' which are `subjective, nonmonetary *806 losses,' including loss of society and companionship. ORS 18.560(2)(b). Applying ORS 18.560(1), the trial court gave plaintiff judgment for noneconomic damages of $500,000, in addition to the $100,000 in economic damages, for a total of $600,000. The majority's analysis is based on the following passage in Hale, 308 Or. at 523, 783 P.2d 506: I was not a member of this court when Hale was decided, and I have reservations about the portion of Hale on which the majority relies, namely the concept that the legislature may abolish a remedy, provided that what remains is "substantial," as the majority applies that term in this case. In my view, the "substantial" test adopted by the court in this case is an unclear, imprecise, and flawed basis for applying the Oregon constitutional remedy guarantee clause. The first problem with the "substantial" test is that it is vague and gives no guidance to legislators, litigants, or ordinary citizens as to how courts will apply the standard. The "substantial" test leaves open too many questions, and, more important, it provides the bench, bar, and Legislative Assembly with too few tools with which to find the answers. The word "substantial," by itself, offers no means by which to draw the line between a permissible and an impermissible limitation on a remedy. The "substantial" test calls for the comparison of immeasurables. The determination of what is "substantial" is little more than a determination of whether or not a remedy has in fact been lost. Because of its numerous, related, but distinct meanings,[12] the term "substantial" is not useful. For example, what is meant by that term? How is the "substantiality" of a remedy to be measured? Is it measured in reference to a plaintiff's actual injuries, or is it measured by an abstract conclusion that a particular remedy is "substantial" as to a particular class of injuries? Is the "substantiality" of a remedy to be measured by reference to economic damages or by both economic and noneconomic damages? How do you determine substantiality in relation to *807 the history of the remedy for the particular legally cognizable injury? How are trial courts to assess the "substantiality" of a remedy for a particular plaintiff's legally cognizable injury? Do appellate courts give deference to a trial court's determination that a particular remedy is substantial? If so, will inconsistent decisions result from case to case? To prevent such inconsistency, will it be necessary for this court to be the final arbiter on the question of the "substantiality" of a remedy in a particular case? If so, what formula will this court use to make that determination? The majority holds that a single $500,000 limit on noneconomic damages, in addition to 100 percent of economic damages (in this case, $100,000), for a total of $600,000 is a "substantial" remedy for injuries that the jury valued at $1.5 million. Would $500,000 be a substantial remedy for a $5 million dollar injury? $10 million? $100 million? If a "substantial" remedy is somehow measured in abstract terms (i.e., if the court were to hold that, for any plaintiff, $500,000 is a substantial remedy for any wrongful death), how are the trial courts to deal with stare decisis in the future? If a court today declares that, in the abstract, $500,000 is a substantial remedy under Article I, section 10, will that same $500,000 be "substantial" in 20 years? In 100 years? How much must inflation reduce the value of a particular sum of money before this court will reexamine a conclusion that a particular sum is a "substantial" remedy? Whichever approach the trial courts take in determining whether a remedy is "substantial," there is a great danger of haphazard results. A determination that a particular remedy for a particular injury is "substantial" necessarily is a policy decision. Asking this court to decide whether a particular remedy is "substantial" places this court in one of two untenable positions: either this court defers to the legislative judgment that a particular remedy is "substantial," thus negating any meaningful judicial review, or this court substitutes its own judgment as to whether it believes that the remedy afforded by the legislature is adequate, leading to, in effect, judicial legislation. In the light of these questions, I believe that this court should reconsider any analysis based on an evaluation of whether a remedy is "substantial." This court's failure to explain what is meant by the term "substantial" is not unprecedented. This court cannot look to the Hale decision for guidance, because the court in Hale did not explain what it meant by the term "substantial." Nor can it look to the cases from which Hale purported to derive the standard, because those decisions do not contain any analysis centered on whether a remedy is "substantial."[13] Despite the language from Hale on which today's majority relies, the real rationale for the court's decision in Hale is what Professor Schuman calls the quid-pro-quo approach. See Schuman, 65 Temple L.Rev. at 1210-12 (describing "quid pro quo" approach to remedy guarantees, which allows the legislature to eliminate one remedy or claim only if it provides a replacement). In Hale, the court held, among other things, that the liability limits of the Oregon Tort Claims Act (OTCA) did not violate Article I, section 10, of the Oregon Constitution as applied to cities. Hale, 308 Or. at 523, 783 P.2d 506. The statutes at issue in Hale provided that the cities could be liable for both proprietary and governmental functions, but also provided a monetary cap on a city's liability under the OTCA. ORS 30.265(1), *808 30.270(1) (1987).[14] The majority opinion in Hale stated that cities traditionally had shared in the state's sovereign immunity as to "governmental" functions, but that they did not enjoy such immunity as to "proprietary" functions. Hale, 308 Or. at 518, 783 P.2d 506. Because the OTCA broadened the scope of a city's liability by making cities liable for both types of functions, the Hale court held that capping damages under the OTCA did not violate Article I, section 10: The rationale that this court used to uphold the cap on damages in Hale cannot be used to sustain the cap on noneconomic damages in this case. In Hale, the court justified the damages cap under the OTCA because "[a] benefit ha[d] been conferred, but a counterbalancing burden ha[d] been imposed." Id. In enacting ORS 18.560, the legislature has not struck a "new balance." Finally, although I agree with the result reached by the court concerning plaintiff's claim under Article I, section 20, of the Oregon Constitution (the "equal privileges and immunities" provision), the court, in reaching that result, fails to address the appropriate sequence of inquiries to resolve plaintiff's claim under that constitutional provision. For the appropriate methodological approach to analyzing a claim under Article I, section 20, see David Schuman, The Right to "Equal Privileges and Immunities": A State's Version of "Equal Protection," 13 Vermont L.Rev. 221, 244 (1988). DURHAM, J., joins in this concurring in part, specially concurring in part, opinion. [1] ORS 18.560 provides in part: "(1) Except for claims subject to ORS 30.260 to 30.300 [the Oregon Tort Claims Act] and ORS chapter 656 [the Oregon Workers' Compensation Act], in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000. "(2) As used in this section: "(a) `Economic damages' means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less. "(b) `Noneconomic damages' means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment." [2] ORS 30.020 provides in part: "(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent's surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent's domicile would be entitled to inherit the personal property of the decedent * * * may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. * * * "* * * * * "(2) In any action under this section damages may be awarded in an amount which: "(a) Includes reasonable charges necessarily incurred for doctors' services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent; "(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent's death; "(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent's estate; "(d) Justly, fairly and reasonably compensates the decedent's spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent[.]" That part of ORS 30.020 was amended to its present form by Oregon Laws 1991, chapter 471, section 1. Those amendments apply only to claims arising on or after September 29, 1991. Or Laws 1991, ch. 471, § 2. Those amendments added stepparents and stepchildren as persons covered by the statute. The 1991 amendments do not affect the issues or wording that we address in this case. Accordingly, we cite to the current version of ORS 30.020, rather than referring to ORS 30.020 (1989). Plaintiff does not argue that there is a common law action for wrongful death. Her briefing acknowledges that "the right of action for wrongful death is statutory." [3] 49 C.F.R. 393.82 provides in part: "Every bus, truck, and truck-tractor shall be equipped with a speedometer indicating vehicle speed in miles per hour, which shall be operative with reasonable accuracy[.]" [4] 49 C.F.R. 395.3 (1989), the version of 49 C.F.R. 385.3 in effect on the date of the accident, provided in part: "(b) No motor carrier shall permit or require a driver of a commercial motor vehicle, regardless of the number of motor carriers using the driver's services, to drive for any period after "* * * * * "(2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates motor vehicles every day of the week." [5] The Court of Appeals did not rule on that holding. [6] Article I, section 10, of the Oregon Constitution, provides in part: "[E]very man shall have remedy by due course of law for injury done him in his person, property, or reputation." Article I, section 17, of the Oregon Constitution, provides: "In all civil cases the right of Trial by Jury shall remain inviolate." Article I, section 20, of the Oregon Constitution, provides: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Article VII (Amended), section 3, of the Oregon Constitution, provides in part: "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." [7] The Fourteenth Amendment to the United States Constitution provides in part: "[N]or 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." [8] In Molodyh, the issue was whether ORS 743.648 violated Article I, section 17, of the Oregon Constitution, by depriving an insured of the right to a jury trial. That statute sets forth an appraisal procedure in the event of a dispute, under a fire insurance policy, over the actual cash value or the amount of the loss. 304 Or. at 292, 744 P.2d 992. This court held that, in order to be constitutional, the statute would have to be construed as non-binding with respect to the party not demanding the arbitration. Id. at 299, 744 P.2d 992. An action on an insurance policy is an action on a contract, as to which there was a right to a jury trial when our constitution was adopted. Id. at 295-98, 744 P.2d 992. The plaintiff, who had asserted his right to a jury trial throughout the litigation, was entitled to a jury trial. Id. at 300, 744 P.2d 992. [9] Or.Laws 1987, ch. 774, § 6. [10] The legislative history of the noneconomic damages limits in ORS 18.560(1) has been aptly summarized as follows: "In enacting the cap, the Oregon Legislature sought to control the escalating costs of the tort compensation system. The legislature determined that the cap would put a lid on litigation costs, which in turn would help control rising insurance premium costs for Oregonians. The legislature listened to hours of testimony on the insurance and tort crisis, and how reform was needed in order to salvage the system." Kathy T. Graham, 1987 Oregon Tort Reform Legislation: True Reform or Mere Restatement?, 24 Willamette L.Rev. 283, 292 (1988) (footnote omitted). [1] David Schuman, The Right to a Remedy, 65 Temple L.Rev. 1197, 1219 (1992). "And `the constitution' toward which this fidelity is owed is not just the text; it is that much larger complex of principles, aspirations, and political theories the document embodies. The requirement of `fidelity to the text,' in this context, is the relatively obvious and uncontroversial requirement that a court's explanation of the meaning of a given constitutional provision should demonstrate some logical connection to the words it purports to interpret, including their source, history, and position in the overall document. Further, `fidelity' requires that the court be sensitive to the political culture of the constitutionally-defined community and reflect the community's most deeply held constitutive traditions." Id. [2] Id. at 1219-20. [3] This court's prior decisions about Article I, section 10, also have failed to satisfy those criteria. See Hale v. Port of Portland, 308 Or. 508, 529, 783 P.2d 506 (1989) (Linde, J., concurring) (this court "has written many individually tenable but inconsistent opinions" about the remedy guarantee clause); David Schuman, Oregon's Remedy Guarantee: Article I, section 10 of the Oregon Constitution, 65 Or.L.Rev. 35, 56 (1986) (the Oregon cases "indicate a judicial inability to formulate a coherent, consistent rule for applying the constitutional [remedy guarantee clause] mandate"). See also Note, The Remedy Clause Analysis of Neher v. Chartier, 74 Or.L.Rev. 379, 397 (1995) (noting this court's "inconsistent and confusing" application of the remedy guarantee clause). The cases have been inconsistent with regard to the proper analysis under Article I, section 10. At times, the court has engaged in a balancing of interests, treating the remedy guarantee as a sort of substantive due process clause. Evanhoff v. State Industrial Acc. Com., 78 Or. 503, 154 P. 106 (1915). At other times, the court has required the legislature to replace an existing remedy with a substitute (quid-pro-quo). Hale, 308 Or. at 508, 783 P.2d 506. At still other times, the court has appeared to view the clause as imposing no substantive limitations on the legislature's authority to abolish remedies. See Sealey v. Hicks, 309 Or. 387, 788 P.2d 435 (held statutory products liability state of repose did not violate the remedy guarantee clause in Article I, section 10, of the Oregon Constitution, even though it eliminated the plaintiff's remedy before the plaintiff suffered an injury), cert. den. 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 39 (1990). [4] ORS 18.560 provides: "(1) Except for claims subject to ORS 30.260 to 30.300 [(the Oregon Tort Claims Act)] and ORS chapter 656 [(the Oregon Workers' Compensation Act)], in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000. "(2) As used in this section: "(a) `Economic damages' means objectively verifiable losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less. "(b) `Noneconomic damages' means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment. "(3) This section does not apply to punitive damages. "(4) The jury shall not be advised of the limitation set forth in this section." [5] ORS 30.020 provides in part: "(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of [various specified persons] may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. * * * "(2) In an action under this section damages may be awarded in an amount which: "(a) Includes reasonable charges necessarily incurred for doctors' services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent; "(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent's death; "(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent's estate; "(d) Justly, fairly and reasonably compensates the decedent's spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and "(e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived." As the majority explains, see 322 Or. at 286 n. 2, 906 P.2d at 792 n. 2, "[t]hat part of ORS 30.020 was amended to its present form by Oregon Laws 1991, chapter 471, section 1. Those amendments apply only to claims arising on or after September 29, 1991." The 1991 amendments do not affect this case, and, accordingly, we cite to the current version of ORS 30.020, rather than referring to ORS 30.020 (1989). [6] Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or.L.Rev. 125, 136 (1970). See also Hale, 308 Or. at 527, 783 P.2d 506 (Linde, J., concurring) ("the assurance of a `remedy' for `injury' to specified interests appears to promise more than protection against delay and other procedural obstructions"). [7] In Davidson v. Rogers, 281 Or. 219, 574 P.2d 624 (1978), this court refused to overrule Holden v. Pioneer Broadcasting Co., 228 Or. 405, 365 P.2d 845 (1961), and held that Oregon's retraction statute, ORS 30.160 to ORS 30.170, did not violate Article I, section 10, of the Oregon Constitution. Justice Linde's concurrence in Davidson agreed with the majority that the legislature can readjust the duty of care if the cause of action is retained. Davidson, 281 Or. at 224, 574 P.2d 624 (Linde, J., concurring). Consequently, Justice Linde concurred with the view that the retraction statute is constitutional under Article I, section 10. Justice Linde, however, rejected the majority's view concerning the "alternative remedy" of retraction. Justice Linde reasoned that "the question whether retraction of a defamatory statement is an `alternative remedy' that can satisfy Article I, section 10, was and remains a false issue," id. at 222, 574 P.2d 624, because the statute allows, but does not compel, the defendant to publish a retraction. According to Justice Linde, "[i]f an optional retraction plays a role at all in the validity of limiting the measure of damages for defamation, it would have to be that the retraction is deemed to reduce the `injury,' not that it is a substitute legal remedy." Id. at 224, 574 P.2d 624. [8] "Not every harm, or even every old common law cause of action, necessarily is an injury to a `person,' or to `property,' or to `reputation'; a simple, perhaps debatable, example is an ordinary breach of contract." Hale, 308 Or. at 529 n. 3, 783 P.2d 506 (Linde, J., concurring). [9] "[T]here is no common law cause of action for wrongful death." Goheen v. General Motors Corp., 263 Or. 145, 151, 502 P.2d 223 (1972). [10] In Neher v. Chartier, 319 Or. 417, 879 P.2d 156 (1994), this court concluded that ORS 30.265(3)(a) (1993), which shielded public bodies, their officers, agents and employees from civil liability for injury to persons covered under the Workers' Compensation Law, violated Article I, section 10, of the Oregon Constitution. The plaintiff argued that the three thousand dollar death benefit provided by the Workers' Compensation Law was not a substantial remedy. The defendants contended that Article I, section 10, guarantees a remedy only in those rights of action existing at common law. Therefore, the defendants reasoned, because a wrongful death action is created by statute, Article I, section 10, is not offended even if a plaintiff is remediless. The Neher court noted that it previously had rejected that line of reasoning in Noonan v. City of Portland, 161 Or. 213, 88 P.2d 808 (1939). Neher, 319 Or. at 427, 879 P.2d 156. In Noonan, 161 Or. at 249, 88 P.2d 808, the court stated that "Article I, section 10 * * * was not intended to give anyone a vested right in the law * * * nor was it intended to render the law static." "The legislature cannot, however, abolish a remedy and at the same time recognize the existence of a right[.]" Neher, 319 Or. at 427, 879 P.2d 156 (quoting Noonan, 161 Or. at 249, 88 P.2d 808) (citations omitted in original). The Neher court held that, although tort immunity of public officers and employees is not per se unconstitutional, a party must not be left without a remedy. Therefore, this court held the provision unconstitutional because the nominal award accrued to the decedent's estate, leaving the decedent's parents entirely remediless. Neher, 319 Or. at 426-27, 879 P.2d 156. In a wrongful death action, the personal representative represents the interests of both the estate and the decedent's parents. Id. at 426, 879 P.2d 156 (citing ORS 30.020(1) and 30.020(2)(d) (1993) (wrongful death statute)). [11] Because the right of action for wrongful death is statutory, it is unnecessary in this case to pursue the question of how far the legislature must retain money damages as a constitutionally required remedy for noneconomic damages when they existed at common law. [12] For example, "substantial" is defined as follows: "Of real worth and importance; of considerable value; valuable. Belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable. * * * Something worthwhile as distinguished from something without value or merely nominal." Black's Law Dictionary 1428 (6th ed 1990). "1. Composed of or relating to things that occupy space and can be perceived by the senses. "2. Large in number or yield. "3. Having great significance. "4. Having actual reality." Roget's II: The New Thesaurus 970 (1988). Synonyms for "substantial" are: abundant, ample, considerable, plentiful, important, meaningful, notable, significant, massive, sound, and stable. Novell Perfect Office WordPerfect V 6.1. [13] On one occasion, this court used the term "substantial" with regard to analysis under Article I, section 10. In Holden, 228 Or. at 414, 365 P.2d 845, this court stated in dictum: "[T]he form of the remedy could be changed [by the legislature] if the substitute was a substantial equivalent of that which was taken." (Emphasis added). If we were to apply that rationale to the present case, ORS 18.560 would not satisfy Article I, section 10. Immediately before ORS 18.560 was enacted, a plaintiff had an unlimited right to recovery for noneconomic damages. Since enactment of ORS 18.560, that recovery is limited to $500,000. The new remedy is not the "substantial equivalent" of the prior limitless remedy, as demonstrated by this case$500,000 is not the "substantial equivalent" to $1.5 million by anyone's measure. Holden was not cited by the majority opinion in Hale, although it was cited by Justice Linde in his concurring opinion. 308 Or. at 527-30, 783 P.2d 506 (Linde, J., concurring). [14] ORS 30.265(1) (1987) provides in part: "Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to action or suit for its torts and those of its officers, employes and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function[.]" ORS 30.270(1) (1987) limits the potential liability of public bodies: "Liability of any public body or its officers, employees or agents acting within the scope of their employment or duties on claims within the scope of ORS 30.260 to 30.300 shall not exceed: "(a) $50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence. "(b) $100,000 to any claimant for all other claims arising out of single accident or occurrence. "(c) $300,000 for any number of claims arising out of a single accident or occurrence."

69aa54df7303e7d2a1d7c79c993b1edcb53921038384c5c676ee57786110b839

1995-11-24T00:00:00Z

1d26f013-f376-4af1-99a5-1071a324fc26

State v. Kellar

S058369

oregon

Oregon Supreme Court

Filed: February 17, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. MARK ALLAN KELLAR, Petitioner on Review. (CC 08CR0241; CA A139320; SC S058369) On review from the Court of Appeals.* Argued and submitted on November 9, 2010. Lindsey K. Detweiler, 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. Rolf C. Moan, Assistant Attorney General, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. 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 Coos County Circuit Court, Martin E. Stone, Judge. 233 Or App 621, 226 P3d 718 (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. In 1983, the legislature moved the prohibition against driving under the influence of intoxicants (DUII) from former ORS 487.540 to ORS 813.010.(1) Later, the legislature provided for permanent revocation(2) of a person's driver's license when, among other things, the person has been convicted for a third time of DUII "in violation of * * * ORS 813.010" or the law of another state. See ORS 809.235. The question that this case presents is whether a conviction for DUII in violation of former ORS 487.540 can serve as a predicate conviction for the permanent revocation of a person's driver's license. The trial court held that it could and permanently revoked defendant's driver's license. The Court of Appeals affirmed the trial court's judgment without opinion. State v. Kellar, 233 Or App 621, 226 P3d 718 (2010). We allowed defendant's petition for review and now affirm the Court of Appeals decision and the trial court's judgment. On February 6, 2008, defendant unsuccessfully attempted to sell his truck at the Bargain Corner car lot in Coos Bay. Afterwards, the police received a report that defendant was intoxicated and had gone to Allied Motors. A police officer contacted defendant and, after speaking with him, asked him to perform field sobriety tests. Defendant refused. The officer arrested defendant, who later provided a breath sample that disclosed a blood alcohol content of 0.25 percent. Defendant was charged with and pleaded guilty to DUII. At the sentencing hearing, the state represented that defendant had two prior DUII convictions: one in 1981 and the other in 1989. Defense counsel agreed with that representation and observed that it appeared that "back in '81 [the offense for which defendant had been convicted] still was considered a Class A misdemeanor."(3) Defense counsel noted, however, that "the statute that applies to * * * [permanent] revocation for a third conviction, [ORS] 809.235, talks about -- talks in terms of convictions for DUII in violation of [ORS] 813.010. But back in '81 there was no 813.010," only former ORS 487.540. Defense counsel argued that, under the plain terms of ORS 809.235, only DUII convictions entered after the legislature codified that offense as ORS 813.010 could count as predicate convictions for the purposes of permanent revocation. As noted, both the trial court and the Court of Appeals disagreed with that argument, which defendant now presses before this court. Before turning to defendant's argument, we briefly describe the two sets of statutes that bear on the issue that he raises. We begin with the prohibition against DUII. In 1975, the legislature sought to decriminalize the offense of DUII by classifying DUII as a traffic infraction rather than a crime. See Brown v. Multnomah County, 280 Or 95, 97, 570 P2d 52 (1977).(4) This court held in Brown that, even though the legislature had classified DUII as an infraction, a prosecution for that offense still "retain[ed] too many penal characteristics not to be [considered] a 'criminal prosecution' under article I, section 11 of the constitution." Id. at 109. As a result, a person charged with the traffic infraction of DUII was entitled to "a jury trial, proof beyond a reasonable doubt, and the many other protections that surround a criminal prosecution * * *." Id. at 109-10. In 1981, the legislature classified DUII as a Class A misdemeanor. Or Laws 1981, ch 803, § 15. The offense, which was then codified as former ORS 487.540, provided: "(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person: "(a) Has .10 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath, blood, urine or saliva of the person made under ORS 487.805 to 487.815 and 487.825 to 487.835; or "(b) Is under the influence of intoxicating liquor or a controlled substance; or "(c) Is under the influence of intoxicating liquor and a controlled substance." Id. In 1983, the legislature undertook a comprehensive revision of the vehicle code. See Or Laws 1983, ch 338. The legislature explained that, in revising the code, "[i]t is not the purpose or intent of the Oregon Legislative Assembly to change the law * * *." Or Laws 1983, ch 338, § 3. Rather, the legislature's stated purpose was to "simplif[y] the language, establis[h] a single set of definitions for the code, eliminat[e] confusing references," and the like. Id. As part of that revision, the legislature repealed much of the vehicle code, which was then codified as ORS chapters 481 to 487. See id. § 978 (repealing, for the most part, those chapters of the revised statutes). In the same act, the legislature reenacted the vehicle code, id. §§ 4-977, which was later codified as ORS chapters 801 to 823. The 1983 legislature provided that the act revising the vehicle code would not take effect until January 1, 1986, approximately two-and-a-half years later. Or Laws 1983, ch 338, § 981. During the interim, the 1983 legislature directed a joint legislative committee to study the 1983 act and propose any technical or conforming amendments to the 1985 legislature. See id. § 979. As part of an effort to bridge the transition between the vehicle code that it had repealed and the revised code that it had enacted, the 1983 legislature provided that "[a]ny references to the vehicle laws in effect before the effective date of the revision are considered to be references to any corresponding provision in the revision." Id. § 3(1). It also provided that "[t]he revision does not affect any action, suit, proceeding or prosecution * * * involving or with respect to vehicle laws revised except that the corresponding provisions of the revision shall be deemed to apply." Id. § 3(2). Finally, the legislature provided that "every person shall consider the revision to be a continuation of the vehicle laws in effect on the effective date of the revision." Id. § 3(4).(5) As part of the revision of the vehicle code, the 1983 legislature repealed the prohibition against DUII found in former ORS 487.540, and reenacted the same prohibition, which was later codified as ORS 813.010. See Or Laws 1983, ch 338, § 978 (repealing former ORS 487.540); id. § 587 (reenacting the same prohibition). There is no substantive difference between the 1981 prohibition against DUII found in former ORS 487.540 and the prohibition against DUII enacted as part of the 1983 vehicle code revision. Compare former ORS 487.540(1) and (2) (1981), with Or Laws 1983, ch 338, § 587.(6) Not only are the elements of those two prohibitions identical, but both prohibitions made DUII a Class A misdemeanor. Id. And, as noted, the legislature provided that the 1983 DUII prohibition it enacted was a continuation of the 1981 DUII prohibition it repealed. Defendant's argument also requires discussion of ORS 809.235, which provides for permanent revocation of a person's driver's license in certain circumstances. Initially, ORS 809.235 required permanent revocation of a person's driver's license only when that person had been convicted of using a motor vehicle as a weapon to commit murder or manslaughter. Or Laws 1993, ch 761, § 2. In 2001, the legislature provided that the class of persons whose licenses were subject to permanent revocation also included persons convicted of felony DUII. Or Laws 2001, ch 786, § 1. Two years earlier, the legislature had provided that a person was guilty of felony DUII if the person "has been convicted of driving while under the influence of intoxicants in violation of this section [ORS 813.010] or its statutory counterpart in another jurisdiction at least three times in the 10 years prior to the date of the current offense * * *." Or Laws 1999, ch 1049, § 1. In 2003, the legislature amended ORS 809.235 to require permanent revocation of a person's driver's license "if the person is convicted of misdemeanor driving while under the influence of intoxicants under ORS 813.010 for a third time." Or Laws 2003, ch 346, § 2. The 2003 amendment effectively reduced the number of DUII convictions required for permanent revocation from four (for felony DUII) to three. It also contained no time limitation, unlike felony DUII which required that the three prior DUII convictions have occurred within 10 years of the fourth DUII. The 2003 amendment to ORS 809.235, however, limited the class of convictions that would result in permanent revocation to misdemeanor DUII convictions in violation of ORS 813.010. In that respect, it was narrower than the felony DUII statute, which included prior DUII convictions in violation of ORS 813.010 and its statutory counterparts in other jurisdictions. The legislature removed the latter limitation, in part, in 2005 by amending ORS 809.235 to require permanent revocation of a person's driver's license "if the person is convicted of misdemeanor driving while under the influence of intoxicants in violation of ORS 813.010 or its statutory counterpart in any other jurisdiction for a third or subsequent time." See ORS 809.235(1)(b) (2005) (codifying Or Laws 2005, ch 436, § 1). Finally, in 2007, the legislature expanded ORS 809.235 yet again. As amended in 2007, ORS 809.235(1)(b) provided: "The court shall order that a person's driving privileges be permanently revoked if the person is convicted of felony driving while under the influence of intoxicants in violation of ORS 813.010 or if the person is convicted for a third or subsequent time of any of the following offenses in any combination: "(A) Driving while under the influence of intoxicants in violation of: "(i) ORS 813.010; or "(ii) The statutory counterpart to ORS 813.010 in another jurisdiction. "(B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving of a vehicle due to the use of intoxicating liquor, a controlled substance, an inhalant or any combination thereof. "(C) A driving offense in another jurisdiction that involved operating a vehicle while having a blood alcohol content above that jurisdiction's permissible blood alcohol content." Two of the 2007 legislative changes bear mention. First, the legislature omitted the term "misdemeanor," found in the 2003 and 2005 versions of ORS 809.235, as a limitation on the DUII convictions that can serve as predicate convictions for the purposes of ORS 809.235. Second, the legislature added subparagraphs (B) and (C), which expanded the category of DUII offenses from other jurisdictions that will result in the permanent revocation of a person's driver's license to include acts that violate that jurisdiction's DUII laws but that might not be criminal in Oregon. With that background in mind, we turn to defendant's argument. Defendant argues that, under the plain text of ORS 809.235, only a conviction for DUII in violation of ORS 813.010 counts as a predicate conviction for the permanent revocation of a person's driver's license. Defendant does not contend that there is any substantive difference between a misdemeanor DUII conviction in violation of former ORS 487.540 and a misdemeanor DUII conviction in violation of ORS 813.010. Nor does he dispute that the legislature intended to permit a broad class of out-of-state DUII convictions to count as predicate convictions for the purposes of ORS 809.235. He argues, however, that only a narrower class of in-state DUII convictions can serve as predicate convictions under the plain language of ORS 809.235. If we were to focus solely on the text of ORS 809.235(1)(b)(A)(i), defendant's argument is not without some force. Subsubparagraph (i) refers to convictions for DUII in violation of "ORS 813.010." It does not refer to DUII convictions in violation of ORS 813.010 and its statutory predecessor. It is thus possible to infer, as defendant does, that the legislature intended to limit in-state predicate convictions to those convictions entered after January 1, 1986 -- the effective date of the 1983 act that revised and recodified the vehicle code. As this court has explained, however, a statute's "text should not be read in isolation but must be considered in context." Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004); see State v. Barrett, 331 Or 27, 32, 10 P3d 901 (2000) (same). In this case, the statutory context cuts against defendant's interpretation in three respects. First, when the legislature revised the vehicle code in 1983, the revisions did not take effect for two-and-a-half years. During that transition period, the legislature sought to make three propositions clear. First, "[a]ny references to the vehicle laws in effect before the effective date of the revision are considered to be references to any corresponding provision in the revision." Or Laws 1983, ch 338, § 3(1). Second, "[t]he revision does not affect any * * * prosecution * * * involving * * * [the] vehicle laws revised except that the corresponding provisions of the revision shall be deemed to apply." Id. § 3(2).(7) Finally, the legislature provided that "every person shall consider the revision to be a continuation of the vehicle laws in effect on the effective date of the revision." Id. § 3(4). Read together, those provisions make clear that the 1983 legislature intended the revised vehicle code to be a seamless continuation of the provisions that preceded them. More specifically, the 1983 legislature understood the former prohibition against DUII and its identically worded replacement to be interchangeable, both in substance and in name. See note 7. To be sure, later legislatures were free to depart from that understanding. But, when the 1983 legislature had specified that ORS 813.010 was a continuation of former ORS 487.540, the reference to ORS 813.010 in ORS 809.235 is, without more, a slim basis on which to disregard the prior legislature's statement of the relationship between the two provisions.(8) A second contextual clue points in the same direction. ORS 809.235 provides that an out-of-state DUII conviction may serve as a predicate conviction for the permanent revocation of a person's driver's license, without regard to when the out-of-state conviction occurred. If defendant is correct that the reference in ORS 809.235 to DUII convictions "in violation of * * * ORS 813.010" limits in-state DUII convictions to those convictions that occurred after January 1, 1986 (the effective date of the 1983 vehicle code revision), then the legislature has imposed a time limitation on in-state convictions that it did not impose on out-of-state convictions. The legislature, of course, could have made that policy choice. But it is not obvious how that would have furthered the goals of the statute. And, without some apparent basis for giving greater effect to out-of-state DUII convictions than in-state DUII convictions, that context counsels against reading the reference to convictions in violation of ORS 813.010 as narrowly as defendant would. A final contextual clue also cuts against defendant's position. As noted, in 2003, the legislature provided for permanent revocation of a person's driver's license "if the person is convicted of misdemeanor driving while under the influence of intoxicants under ORS 813.010 for a third time." Or Laws 2003, ch 346, § 2. In 2005, the legislature provided for permanent revocation "if the person is convicted of misdemeanor driving while under the influence of intoxicants in violation of ORS 813.010 or its statutory counterpart in any other jurisdiction for a third or subsequent time." ORS 809.235(1)(b) (2005) (codifying Or Laws 2005, ch 436, § 1). If, as defendant argues, the phrase that the legislature used in 2003, "under ORS 813.010," or the phrase that it used in 2005, "in violation of ORS 813.010," referred only to convictions entered after January 1, 1986 (the effective date of the 1983 vehicle code revision), then there would have been no need to require, as the legislature did, that the conviction also be for a "misdemeanor" DUII. The legislature had classified DUII as a misdemeanor in 1981, more than four years before it moved the prohibition against DUII from former ORS 487.540 to ORS 813.010. Defendant's interpretation results in a redundancy, something that we seek to avoid in interpreting statutes. Cf. Vsetecka v. Safeway Stores, Inc., 337 Or 502, 510, 98 P3d 1116 (2004) (interpreting overlapping notice provisions in a workers' compensation statute to give effect to all of them). Conversely, if, as the 1983 vehicle code revision suggests, one views the reference to DUII convictions "in violation of * * * ORS 813.010" as referring to both the recodified statute and the statute that it continued, then the legislature's use of the restrictive term "misdemeanor" serves an important purpose. Because a DUII conviction in violation of former ORS 487.540 could be either for an infraction or a misdemeanor, adding the restrictive term "misdemeanor" to ORS 809.235 precluded the use of infraction DUII convictions to revoke a person's driver's license permanently. Indeed, one inference to be drawn from the addition of the restrictive term "misdemeanor" to the 2003 and 2005 versions of ORS 809.235 is that the reference to convictions "in violation of ORS 813.010" includes convictions in violation of both the named statute and its identically worded predecessor.(9) In 2007, the legislature deleted the term "misdemeanor" from ORS 809.235, and the parties debate the significance of that deletion. On the one hand, deleting the restrictive term "misdemeanor" could signal a legislative intent to expand the category of in-state DUII convictions to include infractions. On the other, it could signal, as defendant argues, an intent not to preclude the use of felony DUII convictions under out-of-state statutory counterparts. We need not resolve that debate to decide this case. As noted, before the trial court, defendant did not dispute that his 1981 conviction was a misdemeanor DUII, and the only issue that he raised was whether the reference to convictions "in violation of * * * ORS 813.010" precluded the trial court from relying on any DUII conviction in violation of former ORS 487.540. In this posture, we need not decide whether the deletion of the word "misdemeanor" signaled a legislative intent to permit the use of infraction DUII convictions in violation of former ORS 487.540 as predicate convictions under ORS 809.235. Rather, it is sufficient to limit our holding to misdemeanor DUII convictions in violation of former ORS 487.540.(10) On that issue, we are persuaded by the text and context of ORS 809.235 that a misdemeanor DUII conviction in violation of former ORS 487.540 counts as a predicate conviction for the purposes of permanent revocation of a person's driver's license.(11) Accordingly, we affirm the Court of Appeals decision and the trial court's judgment. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. Because the act that led to defendant's conviction occurred in 2008, the 2007 version of the Oregon Revised Statutes applies. All references are to that version of the revised statutes, unless otherwise noted. 2. Although ORS 809.235 refers to "permanent" revocation of a person's driver's license, the term is not completely accurate. After 10 years, a person whose driver's license has been permanently revoked may petition to have his or her license reinstated. See ORS 809.235(2)(a). 3. The record does not include copies of defendant's 1981 and 1989 convictions. It appears from defense counsel's statements that the prosecutor had provided counsel with copies of those convictions and that the parties were willing to rely on the prosecutor's representations at sentencing, without requiring the state to offer copies of the 1981 and 1989 convictions into evidence. 4. In 1975, the legislature classified DUII as a traffic infraction. Or Laws 1975, ch 451, § 87. It provided, however, that a person's second traffic infraction within five years "shall be prosecuted and be punishable as a Class A misdemeanor * * *." Or Laws 1975, ch 451, § 134. 5. In 1985, the legislature made technical changes to the vehicle code, repealed certain remaining sections of ORS chapters 481 to 487, and provided that, as of January 1, 1988, "section 3, chapter 338, Oregon Laws 1983" is repealed. Or Laws 1985, ch 16, § 475. The legislature thus provided that the transitional provision of the 1983 act revising the vehicle code would expire two years after the 1983 law went into effect on January 1, 1986. 6. Later in the 1983 legislative session, the legislature reduced the percentage of blood alcohol content necessary to prove DUII from .10 percent to .08 percent. See Or Laws 1983, ch 722, § 1. That change went into effect in 1984 and became part of former ORS 487.540(1)(a) (1983). When the 1985 legislature made technical changes to the 1983 act revising the vehicle code, the legislature amended section 587 of the 1983 act (the section that reenacted the prohibition against DUII) to reflect the lower blood alcohol content. See Or Laws 1985, ch 16, § 293. Section 587 of the 1983 act, as amended, went into effect on January 1, 1986. See Or Laws 1985, ch 16, § 476 (providing that, although the 1985 act amended sections of the 1983 act, "[n]othing in this [1985] Act affects the operative date of such sections as provided by chapter 338, Oregon Laws 1983"). 7. As we understand the second quoted provision, it provided that, if a DUII prosecution began under former ORS 487.540, the 1983 act revising the vehicle code would have no effect on that prosecution "except that the corresponding provisio[n] of the revision shall be deemed to apply." Or Laws 1983, ch 338, § 3(2). That is, for prosecutions that straddled the effective date of the 1983 act, what began as a prosecution under former ORS 487.540 would, if it resulted in a conviction, become a conviction for DUII in violation of ORS 813.010. 8. Defendant notes that the 1985 legislature provided that section 3, chapter 338, Oregon Laws 1983 -- the section that provides for the transition from the former vehicle code to the reenacted code -- was repealed as of January 1, 1988. See Or Laws 1985, ch 16, § 475(3). While true, we fail to see how that advances defendant's position. Section 3 of the 1983 act expressly recognizes that the reenacted provisions are a continuation of the former provisions. The 1985 legislature did not repudiate that understanding when it provided that section 3 would be repealed as of January 1, 1988. Rather, it merely recognized that, at some point, the need for a transitional provision ends. 9. In that connection, it is worth noting that the 1999 legislature did not use the restrictive term "misdemeanor" when it provided that a person's fourth conviction for DUII in violation of ORS 813.010 would result in a conviction for felony DUII. See Or Laws 1999, ch 1049, § 1. The legislature, however, provided that only prior convictions within the past 10 years would count as predicate convictions for the purposes of felony DUII -- a decision that necessarily restricted prior DUII convictions in violation of ORS 813.010 to misdemeanor DUII convictions. Conversely, when the legislature omitted any time limitation, as it did in the 2003 amendment to ORS 809.235, it added the term "misdemeanor" as a limitation on the type of DUII convictions that would result in permanent revocation. 10. We have no occasion to consider, and express no opinion on, the question whether a conviction for an infraction DUII in violation of former ORS 487.540 can serve as a predicate conviction for the purposes of ORS 809.235. 11. We have considered the legislative history of the various changes to ORS 809.235. See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) (discussing use of legislative history). The legislative history does not bear directly on this issue, and we base our holding on the statute's text and context.

44ee2f8f4c315d0ca95ad112efa5ba149f4d86b202ae9d0071c7e22d2d80216f

2011-02-17T00:00:00Z

7112c37b-b78f-4a0c-88dd-efd4320d9b09

Fisher Broadcasting, Inc. v. Dept. of Rev.

321 Or. 341, 898 P.2d 1333

oregon

Oregon Supreme Court

898 P.2d 1333 (1995) 321 Or. 341 FISHER BROADCASTING, INC., Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. OTC 3290; SC S41134. Supreme Court of Oregon, In Banc. Argued and Submitted October 31, 1994. Decided July 20, 1995. *1334 John R. Faust, Jr., of Schwabe, Williamson & Wyatt, Portland, argued the cause for appellant. With him on the briefs were Roy D. Lambert, Portland, and Timothy L. Austin and James Wm. Johnston, of Graham & Dunn, Seattle, WA. Marilyn J. Harbur, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief was Theodore R. Kulongoski, Atty. Gen., Salem. VAN HOOMISSEN, Justice. Plaintiff Fisher Broadcasting, Inc. (taxpayer), brought this action in the Tax Court to obtain refunds of its Oregon corporate excise tax and Multnomah County business tax for the years 1983 and 1984. The Tax Court entered a judgment sustaining the opinion and order of defendant Department of Revenue (department), which denied the refunds. Fisher Broadcasting, Inc. v. Dept. of Rev., 13 OTR 32, 1994 WL 46914 (1994). We review de novo on the record. ORS 305.445; ORS 19.125(3). For the reasons that follow, we reverse. Taxpayer owns and operates KATU television in Portland, Oregon, and KOMO television and radio in Seattle, Washington. We take the following undisputed facts from the Tax Court's opinion: "The merger of the two corporations included some unusual conditions. The board of directors was divided into two executive committees, one for Washington and one for Oregon. As a consequence, the board of directors meets only once *1335 each year. The preferred shareholders of the Oregon operation retained the right to elect four directors who must be residents of Oregon. Those four directors, plus two generally elected directors, constitute the executive committee for KATU. Also, the merger agreement provided for separate accounting: "`Insofar as possible for accounting purposes, the books and records of such Division shall be maintained as if said Portland Division had continued operations after January 1, 1967, as a separate subsidiary corporation of this corporation with all allocations of income, expenses and taxes to be made accordingly in accordance with good accounting practices.'" 13 OTR at 33. In 1974, taxpayer appealed the department's assessments of excise taxes for the years 1969 through 1971. The sole issue in that appeal was whether the segregated or apportionment method of accounting was proper in measuring the business operations of the taxpayer within the State of Oregon.[1] In the resulting Opinion and Order, No. I-74-14, the director concluded that taxpayer was a "public utility" within the meaning of ORS 314.610(6)[2] and, therefore, that ORS 314.280[3] governed. The director further held that, under ORS 314.280, taxpayer was entitled to use the segregated method of reporting. Taxpayer continued to use the segregated method in the years following 1974. In 1989, the department issued Notices of Assessment concerning adjustments made by the department to taxpayer's corporate excise tax and Multnomah County business income tax returns for 1983 and 1984. Those adjustments were based on the apportionment method of reporting. Taxpayer challenged those assessments, arguing that it was permitted to continue using the segregated method. The department disagreed and rejected taxpayer's challenge. Taxpayer appealed. In the Tax Court, taxpayer first argued that the department is barred by the doctrine of res judicata from relitigating the appropriate method of reporting. Taxpayer further argued that, even if the department were not barred from relitigating that question, taxpayer nevertheless should be permitted to use the segregated method for 1983 and 1984, because the apportionment method *1336 did not "fairly and accurately" reflect its net income for business done within Oregon. ORS 314.280(1). In rejecting taxpayer's res judicata argument, the Tax Court stated that, generally, res judicata is not applicable in tax cases. Fisher Broadcasting, 13 OTR at 34-35.[4] The court also stated that the application of res judicata is inconsistent with the statutory direction in ORS 305.425(1) that Tax Court matters be heard de novo. The court concluded that the relevant statutes and administrative rules supported the department's decision to require taxpayer to use the apportionment method and that taxpayer had failed to show that the apportionment method fails to "fairly" reflect its "business activity" in Oregon. Taxpayer appeals the Tax Court's judgment.[5] Taxpayer first contends that the Tax Court erred in ruling that taxpayer was not entitled to the benefit of the doctrine of issue preclusion. We turn to that question. ORS 305.425(1) provides: Neither the Tax Court's opinion nor the department's brief offers persuasive support for the department's assertion that issue preclusion is inherently irreconcilable with de novo review in tax cases. Nor does logic support that proposition. In the only case in which this court has touched on the question in the context of a review of a decision by the Tax Court, this court indicated that Lethin, however, involved the possible preclusive effect of an earlier Tax Court decision on a later Tax Court decision, rather than the possible preclusive effect of an earlier administrative decision on a later Tax Court decision. In declining to give preclusive effect to the earlier Tax Court determination of value in Lethin, this court stated: The analysis in Lethin supports a conclusion that the decision whether an earlier administrative determination in a tax case *1337 should be given preclusive effect in a later tax case should depend on "the formality of the administrative procedure and other factors." Id. This court has elaborated, in other contexts, on such "other factors" relevant to a determination whether issue preclusion should be applied in a given case. In Nelson v. Emerald People's Utility Dist., 318 Or. 99, 103, 862 P.2d 1293 (1993), this court stated that issue preclusion arises in a subsequent proceeding when an issue of ultimate fact has been determined by a valid and final determination in a prior proceeding. Issue preclusion can be based on the constitution, common law, or a statute. If one tribunal has decided an issue, the decision on that issue may preclude relitigation of the issue in another proceeding if five requirements are met, the first of which is that "[t]he issue in the two proceedings is identical." Id. at 104, 869 P.2d 1293.[6] As was true in Nelson, the outcome in this case turns on the first question, viz., whether the issue in the two proceedings is identical. We conclude that the issue in the two proceedings is not identical, because the underlying facts relevant to the determination of taxpayer's status in those different years are not the same. For example, the manner in which management, marketing, and Washington, D.C., news bureau expenses were allocated between KOMO and KATU were not the same in the later years. In fact, the Washington, D.C., news bureau that served both KATU and KOMO did not even exist at the time of the earlier opinion and order. Those examples amply demonstrate that taxpayer's status in the different tax years was not identical. Accordingly, we hold that the Tax Court did not err in ruling that taxpayer was not entitled to the benefit of the doctrine of issue preclusion in this case. We turn next to the issue of accounting methods. Before 1989, taxpayer allocated income, and paid taxes, using the segregated method of income allocation. Under the segregated method of income allocation, businesses in different states that are connected by common ownership are permitted to report, and pay separate taxes on, the individual incomes of each business entity. In 1974, the department had approved that method, with respect to taxpayer's Portland and Seattle television stations, as permissible under ORS 314.280 (set out ante). In 1989, the department notified taxpayer that additional taxes were required for tax years 1983 and 1984. Those additional taxes were assessed using the "apportionment" method of income allocation, because use of that method, rather than the segregated method, had become the default method allowed by the pertinent administrative rule, OAR 150-314.280-(I). At all times relevant to this appeal, OAR 150-314.280-(I) read, in its entirety: OAR 150-314.670-(A), a rule promulgated by authority of the Uniform Division of Income *1338 for Tax Purposes Act of 1965 (UDITPA), provided in part at the time: In essence, the rule promulgated under ORS 314.280(1) (which sets out reporting requirements for utilities and financial organizations) required taxpayer to conform to the same presumptive method of reporting income required under the UDITPA, ORS 314.615 et seq. (which sets out reporting methods for other taxpayers). Taxpayer argues that a comparison of the wording and purposes of ORS 314.615 and 314.280 shows that it was improper for the department to incorporate, by reference, OAR 150-314.670-(A) into rules and regulations adopted pursuant to ORS 314.280(1). We agree for two reasons: (1) the text and context of ORS 314.615 and 314.280 indicate a specific legislative intent to exclude utilities from the burden of a uniform presumptive (UDITPA) regime; and, in any event, (2) the text of ORS 314.280 is inconsistent with the standard adopted by reference from OAR 150-314.670-(A). Put simply, taxpayer argues that the text of OAR 150-314.670-(A), which the department had incorporated by reference into OAR 150-314.280-(I) under ORS 314.280(1), utilized a standard that shifted the focus of ORS 314.280(1) away from the fair and accurate reflection of a reporting taxpayer's net income (as required by that statute) to whether the reporting method fairly represented the taxpayer's business activity in the state and promoted uniformity of tax reporting among UDITPA jurisdictions. The latter standards, taxpayer is arguing, may be pertinent to UDITPA, but they cannot be squared with the directions in ORS 314.280(1). The distinction between "net income" and "business activity" is important. In the Tax Court, taxpayer argued that, by virtue of the larger television market in Seattle, taxpayer's Seattle station could charge more for advertising than could the Portland station. Taxpayer's Seattle station, a station substantially similar in size and activity to taxpayer's Portland station, thus makes more "net income" than taxpayer's Portland station, without a corresponding difference in property value or payroll amount. The result, as "business activity" is determined under the UDITPA method of reporting, is a disproportionate distribution of taxpayer's overall income to Oregon, based on factors that do not *1339 accurately reflect "net income of the business done within the state." ORS 314.280(1) (emphasis added). In other words, taxpayer argues that, under the department's required method of reporting, income earned in Washington will be taxed in Oregon. The issues being those of administrative authority and statutory construction, we turn now to taxpayer's statutory arguments. When interpreting a statute, this court's task is to discern the intent of the legislature. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993) (discussing methodology). In attempting to discern the intent of the legislature, we first examine the text and context of the statute. If the intent is clear from those inquiries, further inquiry is unnecessary. Id. at 611, 859 P.2d 1143. The first of taxpayer's arguments relies on the text and context of ORS 314.280(1) and 314.615. Taxpayer argues that the context in which the UDITPA regime was enacted indicates that the legislature specifically intended to exclude utilities from that regime. We begin, therefore, with that context. UDITPA was enacted in 1965 as part of a nationwide effort to promote uniform allocation of income, produced by multi-state businesses, to individual states in which the business activity took place. The previous tax reporting statute, ORS 314.280, provided for two methods of reporting for corporations doing business both within and without Oregon. In 1939, the provision appeared as follows: By 1957, all taxpayers earning income within and without the state were subject to the Tax Commission's rules and regulations "permitting or requiring" either the segregated or apportionment method of reporting "so as fairly and accurately to reflect the net income of the business done within the state." See Or.Laws 1957, ch 632, § 4 (adding nonresident individuals to tax apportionment statute). By 1965, the year in which the legislature enacted the UDITPA provisions, the Tax Commission had adopted rules under ORS 314.280. One of those rules, Reg. 314.280(1)-(A), provided in part: Reg. 314.280(1)-(B) then provided in part: "If the business of the taxpayer is carried on both within and without this state, *1340 and the income properly attributable to Oregon may be fairly reflected only by treating the business within and without the state as a unitary business, the apportionment method must be used. The term `unitary business' means that the taxpayer to which it is applied is carrying on a business, the component parts of which are too closely connected and necessary to each other to justify division or separate consideration as independent units. Where Oregon activities are a part of a unitary business carried on within and without the state, the portion of the unitary income subject to tax in Oregon will be determined by the apportionment method. Where the activities carried on within the state are separate from the activities carried on outside of the state, the income subject to tax may be determined upon a separate accounting of the Oregon activities. Basically, if the operation of a business within Oregon is dependent on or contributes to the operation of the business outside the state, the entire operation is unitary in character, and the income from Oregon activities will be determined by the apportionment method. In all cases where the business is unitary, some type of an apportionment formula will generally be employed, not separate accounting." (Emphasis added.) Finally, Reg. 314.280(1)-(C) provided in part: It was in that context that the 1965 legislature enacted UDITPA, ORS 314.605 to 314.670 (1965), while retaining the material provisions of ORS 314.280 (1957) for the determination of a "fair" and "accurate" reporting method for utilities and financial organizations. Or.Laws 1965, ch. 152, § 22. Viewed in its proper context, therefore, UDITPA was an exception to the pre-existing regime set out in ORS 314.280, not vice versa. Having outlined the context of the 1965 enactment of UDITPA, we now turn to taxpayer's textual argument. ORS 314.615, a part of UDITPA, provides: ORS 314.280(1) provides in part: Taken together, those two statutes, as enacted and amended in 1965, demonstrate a specific legislative intent to exclude utilities, financial institutions, and individuals who provide personal services from the newly created UDITPA provisions. See PGE, 317 Or. at 611, 859 P.2d 1143 (context considered in first level of analysis includes provisions of related statutes). Applying the rule of statutory construction that the inclusion of one is the exclusion of the other (inclusio unius est exclusio alterius), it is clear that the legislature, by subjecting most corporate taxpayers with income from within and without the state to the UDITPA presumption in favor of *1341 the apportionment method, while preserving ORS 314.280 for utilities and financial organizations, intended to maintain that more flexible and nonuniform regime for those taxpayers. See Jones v. Skinner, 159 Or. 325, 327, 80 P.2d 60 (1938) (stating rule of construction). The exclusion of utilities and financial organizations from UDITPA left those taxpayers under the regulatory regime of ORS 314.280. That regime did not impose a reporting presumption on taxpayers. Instead, it based the reporting method on the unitary or nonunitary nature of each business (see, ante at 351-53, 898 P.2d at 1339-40.) The legislature, by its preservation of that regime for utilities and financial organizations, demonstrated an intent to continue that pre-existing distinction with respect to those taxpayers. OAR 150-314.670-(A), imported from UDITPA into OAR 150-314.280-(I), does just the opposite. Thus, it does not comport with that legislative intent concerning the exclusion in ORS 314.280 for utilities like taxpayer.[7] The preservation of the earlier reporting regime for utilities and financial organizations, as found in ORS 314.280, is of great importance to taxpayer. Under the earlier regime, a utility had no initial burden to prove that a particular reporting method was "unfair" or "inaccurate." The statute simply allowed a taxpayer to utilize the most accurate method of reporting under rules delineated by the department. It was only after the department determined that a particular set of business circumstances required the use of one reporting method that a rebuttable presumption in favor of that method would arise. Under the UDITPA statutes, by contrast, the department gains administrative ease and uniformity at the cost of flexibility andpossibly, in some caseseven accuracy. In that regime, a burden is placed on the taxpayer to show that the uniform method of reporting fails fairly to reflect business activity within the state. Then, as is discussed at greater length below, a taxpayer is required to show that the alternative to the uniform method is "reasonable" and will not create or promote a lack of "uniformity." It is clear, from the text and context of the statutes, that the legislature intended to leave in the advantages of individual judgment and flexibility with respect to utilities and financial institutions when it enacted UDITPA for other business taxpayers. The foregoing legislative choice is not subject to being overruled by the department. Although ORS 314.280 gives the department authority to promulgate rules, that statute does not give the department authority to place utilities, by rule, under the exact blanket presumption from which they are explicitly exempted by statute. Such a construction of the statute violates the legislative intent behind both ORS 314.280 and 314.670. This court must read the statutes in conformity with that intent, as revealed by the text and context. See PGE, 317 Or. at 610, 859 P.2d 1143 (function of court is to identify and carry out legislative intent). Accordingly, we hold that the department's effort to incorporate, by rule, the UDITPA reporting presumption from which utilities and financial organizations were specifically excluded by statute exceeded the department's authority under ORS 314.280(1). Taxpayer makes an alternative, textual argument that we also hold to be well taken: Taxpayer argues that, even if a presumptive regime derived from UDITPA were permissible, the text of OAR 150-314.670-(A) is inconsistent with the specific taxpayer protection provided by ORS 314.280(1). The incorporation of OAR 150-314.670-(A) into rules promulgated by authority of ORS 314.280(1) was, therefore, invalid. *1342 The text of the statute, ORS 314.280, and of the UDITPA-based rule, OAR 150-314.670, seek materially different ends. ORS 314.280 requires that the reporting method permitted or required by rule of the department "fairly and accurately reflect the net income of the business done within the state." In contrast, OAR 150-314.670 allows alternatives to the presumptive apportionment method of reporting only when that method "do[es] not fairly represent the extent of the taxpayer's business activity in this state." (Emphasis added.) By incorporating OAR 150-314.670(A) into OAR 150-314.280(I), the department has, by rule, attempted to reduce its statutory obligation to permit or require a method of reporting that fairly and accurately reflects net income to one that only fairly represents the taxpayer's business activity. ORS 314.280(1). But ORS 314.280(1) has, from its beginning, required nothing less than a fair and accurate reflection of net Oregon income. Hines Lumber Co. v. Galloway, 175 Or. 524, 530, 154 P.2d 539 (1944), a prior decision of this court interpreting ORS 314.280(1), illustrates that point. In Hines Lumber, a lumber company earning income within and without Oregon argued that it should not be required to pay an excise tax on net income produced in Oregon, because the company suffered a net loss of income nationwide. This court's answer to that argument is particularly interesting, given the arguments made by the parties before us: "`Allocation. If the gross income of a corporation is derived from business done both within and without the state, the determination of the net income shall be based upon the business done within the state and the commission shall adopt such recommendations and regulations as will fairly and accurately reflect the net income of the business done within the state.' "* * * * * In contrast to the Hines Lumber court's interpretation of the wording in ORS 314.280(1), the department has now adopted, by rule, a presumptive regime that may require the inaccurate allocation of net income produced outside the state to Oregon. This is so because: (1) the UDITPA provisions, incorporated by rule into ORS 314.280(1), provide only a narrow exception to the uniform *1343 apportionment method of reporting; (2) the burden is on the taxpayer to demonstrate that the exception should be granted; and (3) that narrow exclusion is not based on accuracy of net income. ORS 314.670; OAR 150-314.670. See also Donald M. Drake Co. v. Dept. of Rev., 263 Or. 26, 30-32, 500 P.2d 1041 (1972) (exclusion from UDITPA is narrow in scope) (quoting Keesling & Warren, California's Uniform Division of Income for Tax Purposes Act (Part I), 15 UCLA L.Rev. 156 (1967)). This court's previous interpretation of the UDITPA exception illustrates its incompatibility with ORS 214.280. In Twentieth Century-Fox Film v. Dept. of Rev., 299 Or. 220, 700 P.2d 1035 (1985), this court interpreted and applied OAR 150-314.670 consistent with ORS 314.670, a UDITPA statute. This court concluded that, when asked to grant an exemption from the presumptive method of reporting under UDITPA, the primary factors for consideration should be (1) whether the apportionment method "fairly represents the extent of the taxpayer's business activity in this state," and (2) whether the taxpayer's alternative method of allocation is "reasonable." 299 Or. at 233, 700 P.2d 1035. The burden is on the taxpayer to show that the apportionment method does not "fairly represent * * * business activity" and that the taxpayer's alternative is "reasonable." Neither of those considerations allows a taxpayer successfully to challenge a rule based on its mere failure accurately to reflect net incomethe legislative standard in ORS 314.280(1). Under OAR 150-314.670(A), even if the taxpayer could show that the apportionment method does not fairly reflect "business activity," the taxpayer also must show that its alternative method of reporting is "reasonable." Under Twentieth Century-Fox Film, an alternative method is "reasonable" only if: (1) the division of income under that system fairly represents business activity and would, if applied uniformly in all states, tax 100 percent of the taxpayer's income; (2) the division of income would not create or foster lack of uniformity among UDITPA jurisdictions; and (3) the division of income would reflect the economic reality of the business activity engaged in by the taxpayer in Oregon. This court's construction of OAR 150-314.670-(A) in Twentieth Century-Fox Film illustrates that OAR 150-314.670 specifically promotes the legislative goals of the UDITPA statutes, namely, uniformity and 100 percent taxation among the states. Those goals are inconsistent with the goals of ORS 314.280. That statute seeks a fair and accurate method of reporting net income in Oregon. Uniformity is not part of its equation. Application of the inconsistent standards and goals of OAR 150-314.670-(A) to taxpayer's claim has caused the department and the Tax Court to fail to grasp taxpayer's central argument, which is that the apportionment method of reporting does not "accurately" reflect the "net income of [Fisher Broadcasting Corporation] done in this state." ORS 314.280. The Tax Court's response to taxpayer's argument illustrates the error. Without first considering whether OAR 150-314.670-(A) fits within the legislative direction of ORS 314.280, the Tax Court applied that rule as this court interpreted it in Twentieth Century-Fox Film. The Tax Court held: "* * * * * The application of OAR 150-314.670-(A) to taxpayer was error. OAR 150-314.670-(A) requires a taxpayer, challenging the apportionment method of reporting, to prove more than it is permissible to require of a taxpayer *1344 under ORS 314.280. We hold that OAR 150-314.280-(I), the rule incorporating OAR 150-314.670-(A) by reference, exceeds the department's rulemaking authority granted by statute. In conclusion, we hold that the department's incorporation of OAR 150-314.670-(A) into OAR 150-314.280-(I), by reference, is invalid for two reasons: (1) the legislature has excluded utilities from the UDITPA regime and, in doing so, has chosen to maintain the flexibility and accuracy of ORS 314.280(1) over the administrative ease of UDITPA; and (2) OAR 150-314.280-(I), as adopted, is inconsistent with the text of ORS 314.280 and, thus, exceeds the rule-making authority granted by that statute. The judgment of the Tax Court is reversed and the case is remanded to the Department of Revenue for further proceedings consistent with this opinion. [1] In Twentieth Century-Fox Film v. Dept. of Rev., 299 Or. 220, 224, 700 P.2d 1035 (1985), this court described the apportionment method: "Dollar values are assessed to each of three aspects of taxpayer's business: property, sales and payroll. Each of these factors is a fraction. The numerator of each fraction is the Oregon portion of the value and the denominator is the total value everywhere. Each fraction is rendered a percentage. The three percentages are added together and divided by three. The resultant percentage represents the extent of taxpayer's business in Oregon. It is multiplied by taxpayer's income during the tax year to determine the Oregon taxable income. The resultant dollar figure * * * is multiplied by the applicable excise tax rate to determine the amount taxpayer must pay." [2] Unless the context otherwise requires, as used in ORS 314.605 to 314.675, "public utility" includes any business entity whose principal business is ownership and operation for public use of any "property, franchise, or license for the transmission of communications." ORS 314.610(6). [3] ORS 314.615 provides: "Any taxpayer having income from business activity which is taxable both within and without this state, other than activity as a financial organization or public utility or the rendering of purely personal services by an individual, shall allocate and apportion the net income of the taxpayer as provided in ORS 314.605 to 316.675. Taxpayers engaged in activities as a financial organization or public utility shall report their income as provided in ORS 314.280 and 314.675." (Emphasis added.) ORS 314.280(1) provides: "If a taxpayer has income from business activity as a financial organization or as a public utility (as defined respectively in ORS 314.610(4) and (6)) which is taxable both within and without this state (as defined in ORS 314.610(8) and 314.615), the determination of net income shall be based upon the business activity within the state, and the department shall have power to permit or require either the segregated method of reporting or the apportionment method of reporting, under rules and regulations adopted by the department, so as fairly and accurately to reflect the net income of the business done within the state." (Emphasis added.) [4] In its opinion, the Tax Court used the term res judicata. Fisher Broadcasting, Inc., 13 OTR 32, 34-35, 1994 WL 46914 (1994). This court has noted that the term res judicata sometimes is used loosely to encompass both concepts of claim preclusion and issue preclusion. In Drews v. EBI Companies, 310 Or. 134, 139, 795 P.2d 531 (1990), this court stated: "[W]e will use the more exact terms `claim preclusion' [res judicata] or `issue preclusion' [collateral estoppel] to denote the respective branches of preclusion by former adjudication. This is merely a choice of nomenclature, not a law change." [5] In the Tax Court, the department also argued that taxpayer does not qualify as a "public utility" within the meaning of ORS 305.655 (Multistate Tax Compact) and ORS 314.610(6). On appeal, the department does not challenge the Tax Court's conclusion that taxpayer is a public utility within the meaning of ORS 314.610(6) and, therefore, comes within the provisions of ORS 314.280 with regard to a determination of its method of reporting income. Fisher Broadcasting, 13 OTR at 35-36. [6] The other Nelson requirements are: "2. The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding. * * *. "3. The party sought to be precluded has had a full and fair opportunity to be heard on that issue. * * *. "4. The party sought to be precluded was a party or was in privity with a party to the prior proceeding. * * *. "5. The prior proceeding was the type of proceeding to which this court will give preclusive effect. * * *." Nelson, 318 Or. at 104, 862 P.2d 1293 (citations omitted). This court qualified Nelson's fifth requirement, noting that some, but not all, administrative proceedings may be appropriate for application of issue preclusion: "Whether an administrative decision has a preclusive effect depends on: (1) whether the administrative forum maintains procedures that are `sufficiently formal and comprehensive'; (2) whether the proceedings are `trustworthy'; (3) whether the application of issue preclusion would `facilitate prompt, orderly and fair problem resolution'; and (4) whether the `same quality of proceedings and the opportunity to litigate is present in both proceedings.'" Id. at 104-05 n. 4, 862 P.2d 1293. [7] We do not mean that an agency is "locked in" to the rules and regulations that it has in force whenever the legislature demonstrates an intent to preserve a particular regulatory regime in the face of other related revisions. The department surely could change its regulations under ORS 314.280 after the 1965 enactment of UDITPA. We note only that, when the legislature demonstrates a clear intent to treat a small class of taxpayers differently and more individually than another class of taxpayers, the agency cannot undo that intent by rule.

1fb7d4831633b72e6f2d14cc49f3a2bed3d1c3ffe4a72641ca27838f2fb67f29

1995-07-20T00:00:00Z

4c4e6a98-3e31-4f8c-bf0f-d4a2726095d4

Ragsdale v. Department of Revenue

321 Or. 216, 895 P.2d 1348

oregon

Oregon Supreme Court

895 P.2d 1348 (1995) 321 Or. 216 Julia D. RAGSDALE, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. OTC 3535; SC S41581. Supreme Court of Oregon, In Banc. Argued and Submitted March 9, 1995. Decided June 2, 1995. Gary R. DeFrang, of Wetzel DeFrang & Sandor, Portland, argued the cause for appellant. With him on the brief were Joseph Wetzel and Russell A. Sandor. Marilyn J. Harbur, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the response was Theodore R. Kulongoski, Atty. Gen., Salem. VAN HOOMISSEN, Justice. In this direct appeal from the Oregon Tax Court, ORS 305.445, taxpayer challenges a judgment that denied her claim for a refund of state income taxes paid on her federal retirement benefits for the tax year 1991. Ragsdale v. Dept. of Rev., 13 OTR 143, 1994 WL 396303 (1994). She claims that Oregon discriminates in taxation between state and federal retirees in violation of the federal constitutional and statutory doctrine of intergovernmental tax immunity.[1] This court reviews de novo. ORS 305.445; 19.125(3). *1349 For the reasons that follow, we affirm the judgment of the Tax Court. At all times relevant to this appeal, retired public employees of the State of Oregon and of its political subdivisions and instrumentalities have received retirement benefits attributable to their employment under the Public Employes' Retirement System (PERS).[2]See ORS chapter 237 (Public Employes' Retirement). Before 1991, ORS 237.201 (1989) provided that PERS retirement benefits were exempt from all state taxes.[3] Further, ORS 316.680(1)(d) (1989) excluded PERS retirement benefits from the taxable income base on which state income taxes were computed. There was no comparable statutory provision exempting federal retirement benefits from state taxes. As a result, Oregon taxed federal retirement benefits, but not PERS retirement benefits.[4] In 1989, the Supreme Court of the United States decided Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 817, 109 S. Ct. 1500, 1508, 103 L. Ed. 2d 891 (1989). At issue in Davis was whether a Michigan statute that fully taxed all federal retirement benefits, but excluded from taxable income all retirement benefits received from the State of Michigan or its political subdivisions, violated the principle of intergovernmental tax immunity by favoring retired state and local government employees over retired federal employees based on the source of the benefits.[5] In Davis, the Supreme Court held that, if a state exempts retirement benefits paid by state and local governments from state income taxes without similarly exempting retirement benefits paid by the federal government from state income taxes, then that state violates the principle of intergovernmental tax immunity. Davis, 489 U.S. at 810-17, 109 S. Ct. at 1505-09. That is to say, a state may not discriminate in taxation between state and federal retirement benefits, based on the source of the benefits.[6] The Supreme Court stated: "It is undisputed that Michigan's tax system discriminates in favor of retired state employees and against retired federal employees." Id. at 814, 109 S. Ct. at 1507. Moreover, Michigan's inconsistent tax treatment of retired state employees and retired federal employees was not justified by "significant differences between the two classes" of employees. Id. at 817, 109 S. Ct. at 1508. The Court concluded that, by favoring retired state and local government employees over retired federal employees, the *1350 Michigan statute violated the principle of intergovernmental tax immunity. Id.[7] The appropriate remedy, the Court announced, is a mandate of "equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class." Id. at 817-18, 109 S. Ct. at 1509. This court later applied Davis and held that Oregon's taxation scheme, which was similar to the Michigan taxation scheme challenged in Davis, "impermissibly discriminated against employees of the federal government in violation of the constitutional doctrine of intergovernmental tax immunity." Ragsdale v. Dept. of Rev., 312 Or. 529, 823 P.2d 971 (1992).[8] In response to Davis, the 1991 Oregon legislature amended ORS 237.201 (1989) by repealing the tax exemption previously granted to PERS retirement benefits. Or. Laws 1991, ch. 823, § 1. The 1991 legislature also repealed ORS 316.680(1)(d) (1989), which excluded PERS retirement benefits from the state taxable income base. Or.Laws 1991, ch. 823, § 3. Following those statutory amendments, federal and PERS retirement benefits have been taxed alike under state income tax statutes. The 1991 legislature also increased PERS retirement benefits payable to some state retirees. Or.Laws 1991, ch. 796. The increased PERS retirement benefits are based on an employee's years of service and range from one percent (10 to 20 years of service) to four percent (30 or more years of service). Id. at § 6. The benefits are not calculated on actual or even potential tax liability. That is to say, there is no mathematical correlation between taxes and the benefits created in 1991. Some state retirees who will be required to pay state income taxes on their PERS retirement benefits will receive no additional benefits under the 1991 law. Conversely, some state retirees who will pay no state income taxes will receive additional benefits. The benefits received pursuant to the 1991 statute are themselves subject to state and federal income taxation. The 1991 increase in PERS retirement benefits is funded by the PERS retirement trust fund. See ORS 237.271 (the Public Employes' Retirement Fund is a trust fund separate and distinct from the General Fund. Public employers that make contributions to the fund have no proprietary interest in the fund or in their contributions to the fund.). *1351 Oregon Laws 1991, chapter 796 also provides that those increased PERS retirement benefits "shall not be paid in any tax year in which the retirement benefits payable under the Public Employes' Retirement System are exempt from Oregon personal income taxation." Id. at § 12. Oregon Laws 1991, chapter 796, section 12, further provides: Although the 1991 legislature chose to increase PERS retirement benefits payable to some state retirees, it did not extend any reciprocal benefits to federal retirees taxed under Oregon Laws 1991, chapter 823. Current and retired state employees affected by the 1991 legislative changes that subjected PERS retirement benefits to state income taxation sued the state for breach of their employment contracts. In Hughes v. State of Oregon, 314 Or. 1, 33, 838 P.2d 1018 (1992), this court held that, by subjecting PERS retirement benefits to state income taxation, the state had breached certain contracts between the state and its current and retired employees: "[B]y repealing the tax exemption previously afforded by former ORS 316.680(1)(d) (1989), section 3 of the 1991 law results in the taxation of PERS retirement benefits, an action in breach of the tax exemption term of the PERS contract. In other words, the state has chosen, pursuant to section 3 of the 1991 law, to breach the tax exemption term of the PERS contract that the state has with its employees. This the state may not do with impunity. Anyone whose PERS benefits are contractually exempt from taxation, in whole or in part, is entitled to a remedy for the state's breach." This court declined to fashion a remedy for that breach of contract, leaving it to the legislature, in the first instance, to choose among the available remedies. Id. at 33 n. 36, 838 P.2d 1018.[9] Federal retirees, of course, were not parties to the Hughes litigation and, thus, they were not direct beneficiaries of its holding. Taxpayer is a federal retiree and a resident of Oregon. During 1991, she received federal retirement benefits totaling $31,184, as compensation for services that she had rendered as an employee of the United States. The state tax liability attributable to that income was $2,865.06, which she paid in a timely manner. In 1992, taxpayer filed an amended individual income tax return requesting a refund of the $2,865.06, plus interest, arguing that Oregon impermissibly discriminated in the taxation of federal retirement benefits as compared to the taxation of PERS retirement benefits. The Department of Revenue (department) denied the refund. Taxpayer appealed to the Oregon Tax Court, which sustained the department's order, explaining: "In essence, [taxpayer] argues that the state cannot change the compensation of its employees without forfeiting the right to tax federal pension income. This is the very type of interference that the doctrine of intergovernmental tax immunity was intended to prevent. Davis did not mandate *1352 that state and federal retirees must receive equal pension benefits. Rather, Davis requires that both classes must be treated equally by the state's income tax laws. That the state may relieve its employees of the economic consequences of Davis merely demonstrates that the Supreme Court threw its net into a shallow pond. The only economic effect noted by the court in Davis was an increase in federal income taxes `in some circumstances.' Davis [489 U.S.] at 816 [815], n. 4 [109 S. Ct. at 1507, n. 4]. Aside from administrative confusion and the initial costs of refunds and adjusting systems, Davis need have little economic consequence in Oregon. Taxpayer then appealed to this court. ORS 305.445. Taxpayer contends that the Tax Court erred in denying her claim for a refund of her personal income tax in the amount of $2,865.06, plus interest. She does not argue that any discrimination exists in the Oregon tax statutes per se, and she concedes that both federal and state retirement benefits are now taxed in like manner under the state income tax statutes. Rather, taxpayer argues that the imposition of an income tax on PERS retirement benefits by Oregon Laws 1991, chapter 823, section 3, was accompanied by a "tax rebate" to state retirees for the tax imposed, which federal retirees did not receive. Taxpayer further argues that state retirees are entitled to a remedy for the state's breach of contract under Hughes, 314 Or. at 33, 838 P.2d 1018, when federal retirees do not have an equivalent advantage with regard to their federal retirement benefits. Thus, taxpayer asserts, because state retirees may receive, now or later, increased PERS retirement benefits under Oregon Laws 1991, chapter 796, and contract damages under Hughes, the state discriminates against federal retirees who receive no comparable amounts. The disparate tax treatment between the recipients of PERS retirement benefits and federal retirement benefits, taxpayer asserts, violates the principle of intergovernmental tax immunity. Therefore, taxpayer maintains, she is entitled to a refund of the discriminatory tax she paid for the 1991 tax year, plus interest. The department does not dispute that the 1991 legislature increased PERS retirement benefits to compensate state retirees, in part, for their increased income tax obligations resulting from the enactment of Oregon Laws 1991, chapter 823. However, the department does not agree with taxpayer's argument that the legislature's decision to make those increased payments was an exercise of the state's taxing authority. The department argues that the state was acting consistently with its contracting authority in anticipating the need to make a contract benefit level adjustment, either as "damages" or otherwise, in contrast to its taxing authority.[10] The department argues that, because Oregon taxes PERS retirement benefits and federal retirement benefits equally, and because taxpayer incorrectly equates an increase in PERS retirement benefits with a tax refund, her claim of discrimination lacks merit. The department asserts that taxpayer has failed to recognize the distinction between a *1353 state adjustment of retirement benefit levels pursuant to contract and state action under its taxing authority.[11] The department further argues that payment of increased PERS retirement benefits to state retirees is compensation for services performed by the employees and that the payment of such benefits should not be characterized mistakenly as "imposition of a tax" or "a tax rebate" because, under Hughes, state retirees are lawfully entitled to an agreed upon level of retirement compensation, regardless of the form in which it may be paid. The Supreme Court of the United States in Davis construed 4 U.S.C. section 111 to mandate "equal treatment" of recipients of state and federal retirement benefits. Davis, 489 U.S. at 817-18, 109 S. Ct. at 1508-09. Accordingly, and subject to a showing that any inconsistent tax treatment is directly related to, and justified by, significant differences between the classes, a state may not discriminate in taxation between state and federal retirees, based on the source of the benefits. Id. at 817, 109 S. Ct. at 1508. The validity of taxpayer's argument hinges on the accuracy of her assumptions that the increased PERS retirement benefits of some state retirees under Oregon Laws 1991, chapter 796, and that the award of a remedy to PERS retirees pursuant to Hughes are, in effect, tax rebates to state retirees, which create discrimination in taxation between state and federal retirees based on the source of the benefits. Intergovernmental tax immunity, which is the legal predicate for taxpayer's challenge, is concerned with discriminatory tax treatment. Therein lies the imperative that taxpayer be able to show that the benefits received under Oregon Laws 1991, chapter 796, are, or that any remedy under Hughes is, in effect, a tax rebate or tax benefit provided by the state only to state retirees in a manner that discriminates against federal retirees, based on the source of the benefits. Intergovernmental tax immunity does not require that the state treat state and federal employees the same way, it requires only that the state system of taxation be equal. The statute and the doctrine provide that the United States consents to state taxation of its employees "if the taxation does not discriminate" against them because of the source of compensation. It is important, first, to eliminate Hughes from further discussion. As noted, the 1991 statutory amendments were not, by definition, a legislative reaction to Hughes, much less a partial legislative award of damages for the breach of contract identified by that decision. Hughes was not decided until 1992, and the applicationif anyof the doctrine of intergovernmental tax immunity to final resolution of damage actions brought in the wake of Hughes must await another day.[12] Taxpayer's sole viable argument in this case concerns the 1991 legislatively directed adjustment in PERS benefits. With respect to Oregon Laws 1991, chapter 796, that statute contains indicia that could lead one to conclude either that the *1354 "benefits" are a kind of tax rebate or that the "benefits" are compensation. The provision to end the payments if state taxation ends points toward a tax rebate. However, for the reasons that follow, we conclude that, in context, the 1991 legislation is a not tax rebate or tax benefit that would implicate the principle of intergovernmental tax immunity. Nothing in the present Oregon system discriminates in taxation against federal retirees on account of the source of compensation. First, reference to the text of the Davis decision itself yields no indication that the federal doctrine of intergovernmental tax immunity concerns itself with the level of compensation that a state contracts to pay or pays its state retirees. 4 U.S.C. section 111, which codifies the doctrine of intergovernmental tax immunity, provides that the United States consents to the taxation of the compensation for services performed as a federal employee (including deferred compensation in the form of a federal pension), so long as the tax does not discriminate because of the federal source of that compensation. As with the Davis decision, nothing in 4 U.S.C. section 111 purports to control or concern itself with the level of compensation that the state pays its employees and retirees. Second, not only is there nothing express in Davis or in 4 U.S.C. section 111 that would regulate the level of compensation of state employees, it would be illogical to suggest that there is anything in the underlying principle of intergovernmental tax immunity that would invalidate a state compensation plan in aspects unrelated to the level of taxation. The doctrine of intergovernmental tax immunity recognizes that separate state compensation responsibility to its officers and employees and requires only that the state treat service to the federal government in the same way that it treats service to the state government when taxing the compensation for that service. Since 1991, Oregon has done just that. As noted, taxpayer concedes that both federal and state retirement benefits are taxed in like manner under the state income tax statutes. Third, in Davis, the Supreme Court stated possible remedies for the intergovernmental tax immunity problem that it found in that case. The Supreme Court pointed to state cures "by extending the tax exemption to retired federal employees (or to all retired employees), or by eliminating the exemption for retired state and local government employees." 489 U.S. at 818, 109 S. Ct. at 1509. In direct response to Davis, the 1991 Oregon legislature amended ORS 237.201 to remove the tax exemption for PERS retirement benefits. That legislative act conformed Oregon law to the express dictates of Davis, by acting in a manner expressly approved by Davis. Fourth, consistent with the points made above regarding state payment of compensation to its retirees, the increase in benefits provided by the 1991 legislature is not part of the system of state taxation in Oregon. It does not involve the assessment or collection of revenues, which is the hallmark of a tax. See Automobile Club v. State of Oregon, 314 Or. 479, 485, 840 P.2d 674 (1992) ("In the most general sense, a tax is `any contribution imposed by government upon individuals, for the use and service of the state * * *'"). It involves the expenditure of trust funds, not the collection of state revenues. The 1991 increase in compensation is not transformed into a tax rebate or tax benefit simply because it was motivated in whole or in part as a response to the Davis decision and the consequent removal of the tax exemption for PERS retirement benefits. Moreover, it is important to remember that state retirees will pay state and federal income taxes on any increased benefits they receive. Fifth and last, we find no correlation, either direct or indirect, between state retirees' state tax obligations and the amount of increased PERS retirement benefits, if any, to which they may be entitled under the provisions of Oregon Laws 1991, chapter 796. As noted, the amounts of increased retirement benefits are based on the PERS members' years of service, not on their state *1355 income tax obligations. All eligible PERS retirees receive those increased benefits. Moreover, the increased benefits received pursuant to the 1991 statute are themselves subject to state and federal taxation. Indeed, taxpayer's claim for a tax refund measured by the increased benefit paid to state retirees incorrectly assumes that every state retiree who receives an increase in benefits paid state income taxes, but it is conceivable that many state retirees paid little or no state income tax for 1991. See, e.g., ORS 316.157 (credit for retirement income).[13] In sum, taxpayer's argument lacks both a factual and a legal predicate. The system of state taxation is not implicated by the 1991 increase in retirement benefits to some state retirees and the principle of intergovernmental tax immunity does not apply, because there is no discrimination in taxation on account of the source of compensation. Taxpayer relies on Sheehy v. Public Employees Retirement Div., 262 Mont. 129, 864 P.2d 762 reh. den. (1993). In Sheehy, retirees challenged certain provisions of Montana law enacted in response to Davis. Before Davis, Montana, like Oregon, taxed federal retirement benefits but exempted state retirement benefits. Sheehy, 262 Mont. at 132, 864 P.2d at 764. The Montana Supreme Court described the 1991 Montana legislature's response to Davis as follows: The Montana court concluded that the provisions of Montana Laws 1991, chapter 823, section 5, constituted discriminatory taxation in violation of the intergovernmental tax immunity provisions of 4 U.S.C. section 111, explaining: "Further evidence that the adjustment is not an actual increased retirement benefit for retired state employees is the fact that the funding of the section 5 adjustment bears no resemblance to the funding of actual state retirement benefit adjustments previously enacted by the legislature. [Such previous enactments were] funded by investment income produced by the retirement fund made up of employee *1356 and employer contributions. Here, the funding for the so-called retirement adjustment payment is statutorily appropriated from the general fund * * *." Taxpayer argues that, Oregon Laws 1991, chapter 796, like the Montana enactment examined in Sheehy, is a partial tax rebate for state retirees and, therefore, that it constitutes discriminatory taxation of federal retirees who do not receive the same benefits. We disagree. The Sheehy court's conclusion that the Montana adjustment is a partial tax rebate that violated federal law relied heavily on two features of the Montana enactment: (1) that only retirees who are Montana residents will receive the benefit, and (2) that the retirement benefits at issue are funded solely by the Montana general fund. In contrast, under Oregon Laws 1991, chapter 796, every state retiree who qualifies for benefits (based on years of service) will receive the benefits, regardless of the state retiree's residency. Moreover, the challenged provisions of Oregon Laws 1991, chapter 796, do not appropriate money from the Oregon general fund. Rather, the increased PERS retirement benefits are funded by contributions from all PERS employers to the PERS retirement trust fund. Or. Laws 1991, ch. 796, § 3.[14] Intergovernmental tax immunity is based on the need to protect each sovereign's governmental operations from undue interference by the other. Davis, 489 U.S. at 814, 109 S. Ct. at 1507. We agree with the Tax Court that "Davis does not hold, or even intimate that a state is prohibited from adjusting the compensation of its employees, either currently or retired, to make up for the loss of the [income tax] exemption." Ragsdale, 13 OTR at 146.[15] Justice Gillette, dissenting, concludes that the state retirees' increased PERS retirement benefits are, in fact, a partial refund of state income taxes paid by state retirees on their PERS retirement income and would hold: We are not persuaded by that analysis. A tax rebate or tax benefit program only for state employees clearly would be impermissible. The Oregon law, however, is not a tax rebate program or a tax benefit. Everyone's income is taxed equally. The state is entitled to raise the level of taxable compensation of its employees, for whatever reason, including to compensate them for a change in the tax laws that results in a decreased level of net after-tax income. For example, if the state government changed the state tax laws to limit the deduction for mortgage payments and chose to raise the level of state employees' compensation because of the change, that should not violate the federal law. Everyone is taxed in *1357 the same way; the state can pay its employees what it wants to pay them. Nor should it be deemed to violate the federal law if the raise is good only for as long as the tax law change is good, which is Justice Gillette's point of departure. That tie-in defines the duration of the change in taxable compensation, but it has no impact on the comparative equity of the state system of taxation. Nowhere in the federal doctrine of intergovernmental tax immunity is there the idea that a state's choice to expend more of its money on the compensation of state governmental employees violates the doctrine. That choice by the state may or may not increase the overall tax burden on everyone (state and federal public employees, private wage earners, businesses) depending on budget and taxation choices made by the legislature. Those are policy choices, subject to a watchful electorate that includes a vast majority of people who are not state employees, but they do not raise intergovernmental tax immunity concerns. The state should be free to compensate its employees with its eyes open to the tax burdens that it places on them. We do not believe that the Supreme Court of the United States would assert that the principle of intergovernmental tax immunity deprives the state of its sovereignty to fix the level of its employees' compensation and to ensure that their net after-tax income is at a level commensurate with the agreement of the employees and the state. Federal employees lose the right to complain about inequality in the state tax system when the system treats them equally. Oregon now does that. Justice Gillette's analysis focuses on one fact, the durational tie-in to the tax laws of the raise in compensation, to the unwarranted exclusion of literally everything else. In context, we do not believe that that tie-in supports taxpayer's claim here. Justice Fadeley, who concurred in part with this court's holding in Hughes that PERS retirement benefits accrued or accruing for work performed on or before September 28, 1991, may not be taxed, would have gone further in Hughes to hold that any action to tax PERS retirement benefits under Oregon Laws 1991, chapter 823, section 3, was unconstitutional. Hughes, 314 Or. at 37-38, 838 P.2d 1018 (Fadeley, J., concurring in part and dissenting in part). Implicit in his analysis is a conclusion that, under Davis, the state's only recourse is to exempt state and retirees' retirement benefits from state income taxation. In this case, Justice Fadeley pursues that same analysis to conclude that federal retirement income must be exempt from state income taxation. 321 Or. at 235-236, 895 P.2d at 1358-1359 (Fadeley, J., dissenting). His conclusion, however, is based on a faulty premise, i.e., that the state could not tax PERS retirement benefits. As this court held in Hughes, the state may tax PERS retirement benefits but, in doing so, the state became liable for damages for breach of contract. Because the state may tax PERS retirement benefits and does so, the state does not discriminate against federal retirees when it taxes federal retirement benefits equally. We hold that the benefits paid to state retirees, pursuant to Oregon Laws 1991, chapter 796, do not give rise to a violation of 4 U.S.C. section 111 and the constitutional principle of intergovernmental tax immunity. The judgment of the Tax Court is affirmed. GILLETTE, Justice, dissenting. The majority today approves a legislative device specifically and narrowly tailored to avoid the rule of intergovernmental tax immunity that was explicated by the Supreme Court of the United States in Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 109 S. Ct. 1500, 103 L. Ed. 2d 891 (1989) and elaborated in Harper v. Virginia Dept. of Taxation, 509 U.S. ___, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993) (applying rule of Davis retroactively) and Barker v. Kansas, 503 U.S. 594, 112 S. Ct. 1619, 118 L. Ed. 2d 243 (doctrine applicable to military retirees' pensions). Because I believe that the legislative scheme does not avoid discriminating between *1358 state and federal retirees pensions benefits, based on the source of those benefits, I dissent. I begin with a proposition that I hope even the majority would accept: Just as Davis forbids total discrimination in taxation between state and federal retirement benefits, based on the source of those benefits, I conclude that Davis likewise forbids any alternatives to complete discrimination that nonetheless treat retirement benefits differently, depending on the source of those benefits. For example, a state may not erect a statutory scheme that requires that both state and federal retirees pay income taxes on their retirement income, but then provides for complete refunds only to state retirees of all taxes paid on their state retirement benefits. And, because a total, dollar-for-dollar refund to the state retirees in this case of any taxes that they have paid on their PERS retirement benefits would be impermissible, so would be some kind of proportional refund, such as 50 cents for each dollar, unless, of course, federal retirees were accorded the same proportional refund on the income taxes that they paid the state on their retirement benefits. But it is argued hereand the majority buys the argumentthat the legislature's increase in PERS benefits, while motivated by the requirement that state retirees now pay taxes on their state retirement benefits, is nonetheless simply "increased compensation" and, as such, unrelated to any taxes that any federal retiree may be paying. With respect, I disagree. In spite of the difference in label"refund" vs. "increased compensation"I can find no difference in substance here. The pertinent focus here is the degree to which that "increased compensation" is tied toindeed, is completely contingent onan obligation on the part of state retirees to pay state income taxes on their PERS retirement benefits. When the state says to state retirees, "We will increase your retirement benefits, but only because you now are being taxed on them and only for as long as you continue to be taxed on them," the state is talking about a tax refund. And, because the state retirees are receiving a refund of taxes paid on their state retirement income to which federal retirees are not, on the same terms, entitled with respect to their federal retirement income, the violation of the doctrine of intergovernmental tax immunity, as explained in Davis, is patent. Substance counts; labels do not. Even a cursory examination of Oregon's present "increased retirement benefits" arrangement shows that what is going on is, in fact, a partial refund of state income taxes paid by state retirees on their PERS retirement income. That proposition is demonstrated ineluctably by the fact that the increased PERS retirement benefits are not payable in any year in which PERS retirement benefits are exempt from Oregon personal income taxation. See Or.Laws 1991, ch. 796, § 12 (so providing). So long as there is a direct tie between state income taxation of PERS retirement benefits and the availability of increased PERS retirement benefits, it is not even necessary to inquire whether there are other, additional grounds on which to declare the present taxation scheme to be impermissibly discriminatory. The department does not argue, in the alternative, that Oregon's inconsistent tax treatment between state and federal retirees is permissible because it is directly related to, or justified by, significant differences between the two classes, Davis, 489 U.S. at 815-16, 109 S. Ct. at 1508, 103 L. Ed. 2d at 905, and I do not perceive any such differences. Based on the foregoing analysis, I would hold that Oregon Laws 1991, chapter 796, is a form of refund of state income taxes paid by state retirees on their PERS retirement income. The taxation of federal retirement benefits without such a refund is, therefore, discrimination in the tax treatment of state and federal retirements, based on the source of those benefits. As such, it is a violation of the doctrine of intergovernmental tax immunity and the mandate of Davis for "equal treatment." Davis, 489 U.S. at 818, 109 S. Ct. at 1509, 103 L. Ed. 2d at 907. The majority errs in concluding otherwise. I respectfully dissent. FADELEY, J., joins in this dissenting opinion. *1359 FADELEY, Justice, dissenting. I join in the dissenting opinion of Gillette, J., and add the following, also in dissent. In my view, by constitutional law, PERS retirement benefits accruing before 1991 are exempt from state personal income taxation. And, under Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 109 S. Ct. 1500, 103 L. Ed. 2d 891 (1989), federal employees' pre-1991 retirement benefits are similarly exempt. Equality of treatment is required by the doctrine of intergovernmental tax immunity. Therefore, a parallel exemption from state income tax must be accorded to federal retirees for parallel payments of parallel benefits, according to the Supreme Court of the United States. In Harper v. Virginia Dept. of Taxation, 509 U.S. ___, ___ _ ___, 113 S. Ct. 2510, 2513-14, 125 L. Ed. 2d 74 (1993) that Court summarized: "1 The United States consents to the taxation of pay or compensation for personal service as an officer or employee of the United States * * * by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.' 4 U.S.C. § 111." Relevant portions of the PERS trust fund capital and income cannot be taxed by the state when transferred to a retiree now or later without impairing the obligation of contract, in my view.[1] Thus, the exemption for PERS benefits that accrued before enactment of the 1991 legislation applies by force of the state constitution. And under federal law, equality of tax treatment is required for federal retirees' parallel benefits. The plaintiff here contends that a separate statute enacted in 1991 is a continuation in disguise of the former tax exemption for PERS participants and, therefore, that separate statute also violates Davis, because plaintiff, as a federal retiree, is not granted the same treatment in relation to state taxation. She points to Oregon Laws 1991, chapter 796, as the culprit. That act mandated that added payments be made out of the PERS fund to the beneficiaries of that fund, namely PERS retirees. Section 3 of that 1991 act amended ORS 237.209, a pre-existing statute section describing monthly benefit levels, by adding a new subsection (6) which increased the monthly retirement allowance payable to specified retirees. The increased payment, is one percent for those with at least 10 years of service at retirement *1360 and ranges upward to four percent for those with over 25 years of service in the PERS system. Subsection (6) of the 1991 act provides that these increases "shall be funded by employer contributions." That is, they probably will be paid from a current and future increase in employer contributions, although whether the increase comes from past employer contributions held in trust or from current and future increased contributions is not clear in that statute. Plaintiff claims that the doctrine of intergovernmental tax immunity requires that she receive an exemption from the state income tax equal to the disguised preferential tax treatment that is represented by those added benefit payment amounts. Other subsections of that act, not created or amended in 1991, have, on several occasions since 1980, mandated similar percentage increases. Those increases have had no relation to the Davis decision. However, the state cannot merely rely on its past practice to justify a discriminatory tax-treatment device enacted post-Davis and in response to problems presented by Davis. In support of her argument, plaintiff also points to a decision of the Montana Supreme Court, Sheehy v. Public Employees Retirement Div., 262 Mont. 129, 864 P.2d 762 (1993). The underlying facts of that case are far afield from this case. That state did not owe its retirees any contractual obligation of tax exemption. The partial tax rebate enacted by the 1991 Oregon legislature, expressly conditions the added benefits payable to PERS retirees on the fact that no state tax exemption is available for the regular amount of PERS payments for any year in which the percentage increment is to be added. Or.Laws 1991 chapter 796 § 12. The legislation thus signals that the sliding-scale, percentage increment is not granted out of legislative largess or a kindly concern about inflationary effects and increases in cost of living for those on fixed incomes. The legislature's motivation in 1991its intent by enacting chapter 796is the same as that which originally created the tax exempt status for PERS retirement benefits as a term of the public employment contract in Oregon, namely, to save and maximize the use of taxpayer dollars. Originally, the tax exemption for PERS benefits permitted paying a lesser total dollar amount of retirement benefits which in turn required fewer governmental tax dollars to fund. Tax free treatment also saved the cost of churning the same governmental dollars through an additional state agency, or through the same agency a second time. The failure to grant tax free treatment to federal retirement benefits, and Davis, ended that economy. The 1991 legislation continues to indicate a preference for the cost-saving exemption and thus only adds the percentage increment to retirement benefits in years in which the tax exemption is not in force.[2] But in years where there is no exemption for PERS payments accruing before 1991, the state and local governments are not living up to their statutory contracts and are obligated to repay to PERS retirees the value of the governmental promise which has been unconstitutionally removed from their pre-1991 employment contracts. The significance of conditioning the additional payment on absence of a state tax exemption is compounded by the relevant statements of the executive-branch revenue agency that is the defendant in this case. Defendant's stated posture indicates its assumption or belief that the legislature was increasing retirement payments, in years where PERS payments are not exempt, to partially[3] off-set the added taxes to be paid by PERS retirees. No such off-set is provided federal retirees. The majority opinion justifies this disparity *1361 by pointing out that the obligation of the state and local government contract that promises to exempt pre-1991 PERS benefits from taxes is not an obligation owed to federal retirees. Although that is correct, the national law also requires equal or parallel tax immunity for retired federal employees. That also is a legal obligation of the state and its local governments. The 1991 legislative repeal of the prior tax exemption, coupled with legislation mandating a government-paid partial offset as to state and local retirees, fails to fulfill the latter legal obligation, especially where a course of action that clearly fulfills that obligation is so readily available.[4] The Supreme Court of the United States, whose jurisdiction includes enforcing the legal obligations owed by the states in the area of intergovernmental tax immunity, has not been impressed by state explanations of why those obligations do not apply in similar settings to federal employees. Davis v. Michigan Dept. of Treasury; Harper v. Virginia. I would hold that the state legislation attacked today cannot, in the circumstances of this case, fulfill either obligation. Tax exemption per the original obligation of contract can do so, but not this half-a-loaf to half-the-people approach. [1] 4 U.S.C. § 111 provides in part: "The United States consents to the taxation of pay or compensation for personal service as an officer or employee of the United States * * * by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation." Intergovernmental tax immunity is based on the need to protect each sovereign's governmental operations from undue interference by the other. Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 814, 109 S. Ct. 1500, 1507, 103 L. Ed. 2d 891 (1989). 4 U.S.C. § 111 "waives whatever immunity past and present federal employees would otherwise enjoy from state taxation of salaries, retirement benefits, and other forms of compensation paid on account of their employment with the federal government, except to the extent that such taxation discriminates on account of the source of compensation." Davis, 489 U.S. at 810, 109 S. Ct. at 1505. [2] Members of the Oregon Public Employes' Retirement System (PERS) include employees of the State of Oregon and of its political subdivisions and instrumentalities. Throughout this opinion, they will be referred to as "state retirees" and their present or future benefits as "PERS retirement benefits." [3] For a more detailed explanation of the statutory basis for the tax exemption of PERS retirement benefits, see Hughes v. State of Oregon, 314 Or. 1, 6-10, 838 P.2d 1018 (1992). [4] Federal civil service retirement benefits are deferred compensation for past years of service rendered to the federal government. Davis, 489 U.S. at 808, 109 S. Ct. at 1500. Likewise, PERS retirement benefits are deferred compensation. Hughes, 314 Or. at 25 n. 30, 838 P.2d 1018. [5] At the time the Supreme Court decided Davis, 23 states gave preferential tax treatment to benefits received by employees of state and local governments relative to the tax treatment of benefits received by federal employees. Harper v. Virginia Dept. of Taxation, 509 U.S. ___, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993). [6] The holding in Davis is to be applied retroactively. Harper, 509 U.S. at ___, 113 S. Ct. at 2518. It also protects military retirees from discriminatory state taxation. Barker v. Kansas, 503 U.S. 594, 112 S. Ct. 1619, 118 L. Ed. 2d 243 (1992). [7] Under Davis, a state tax that is alleged to discriminate against federal retirees is evaluated by inquiring "whether the inconsistent tax treatment is directly related to, or justified by, `significant differences between the two classes.'" 489 U.S. at 816, 109 S. Ct. at 1508. The Court held that any difference in tax treatment between federal and state employees must be justified by significant differences between the two groups. According to the Court, Michigan's justification for its statutory exemptionits interest in hiring and retaining qualified civil servantswas irrelevant to any inquiry into the difference between the two classes, no matter how substantial such an interest might be. 489 U.S. at 816, 109 S. Ct. at 1508. In response to Michigan's argument that the exemption was designed to compensate for comparatively lesser benefits afforded by state retirement benefits as compared to federal benefits, the Supreme Court stated that, although this was probably true when comparing the average state employee to the average federal employee, it was certainly not true in a number of instances. Furthermore, the Court concluded, if the difference in pay were truly the state's motivation, it would have adopted a statute based on the amount of retirement benefits received, not on the source of the benefits. 489 U.S. at 816-17, 109 S. Ct. at 1508-09. [8] Ragsdale involved this same taxpayer's Oregon income tax liabilities for the years 1970 through 1988. This court ordered the department to issue a tax refund to taxpayer for the year 1988 and a refund of any excess tax paid by her for "any tax years thereafter, if any, in which federal retirement income was included in her state taxable income at a time when, for the same tax year, state retirement income was completely exempt from state taxation." Id., 312 Or. at 542, 823 P.2d 971. [9] The legislature has yet to act in response to this court's holding in Hughes. New litigation currently is pending. See, e.g., Chess v. State of Oregon, 93C-11180 and Stovall v. State of Oregon, 94C-10334 (consolidated cases), Circuit Court, Marion County (1995). [10] The department argues: "[T]he legislature enacted [Or Laws 1991, ch 796] prior to the decision of the Oregon Supreme Court in Hughes. Nevertheless, the legislature acted in anticipation of this court's decision in Hughes. The legislature is deemed to have been aware of the existing law, and could have reasonably anticipated the need to `mitigate damages' by adjusting benefit levels as it did in [Or.Laws 1991, ch. 796]." In 1991, the legislature could not necessarily predict that in 1992 this court would hold in Hughes that the removal of the tax exemption was a breach of contract with a right of damages as a remedy. Indeed, in Hughes, the department argued against that result. [11] We agree with the Tax Court that Davis does not hold or even intimate that a state is prohibited from adjusting the compensation of its employees, either currently or retired. Ragsdale, 13 OTR at 146. For example, if a comparable retirement benefit adjustment were provided in different legislation in further years, and denominated a "cost-of-living" adjustment, no one could argue seriously that that legislation discriminated in taxation against federal retirees. What is prohibited by Davis is taxation discrimination "on account of the source of the compensation" that is not "directly related to, and justified by, `significant differences between the two classes.'" 489 U.S. at 810, 816, 109 S. Ct. at 1505, 1508. [12] State retirees are currently litigating the nature and extent of the state's and other PERS' participating employers' responsibility for damages under the PERS contract as a result of the Hughes case. Those cases are currently pending in the Marion County Circuit Court. See note 9, ante. Classes of plaintiffs and defendants have been certified. The measure of those damages is to be determined by the terms of the contract, as construed by the courts. But until the courts enter a decision as to those damages, taxpayer's claim that state retirees are being treated differently from federal retirees based on any damages that state retirees may be awarded in the future is premature. At this time there is no basis upon which to grant taxpayer's claim for a refund. [13] The department argues that taxpayer's claim for an amount of money equivalent to what was paid under Oregon Laws 1991, chapter 796, is speculative, because the amount of the payment bears no relationship to the actual state income tax paid by an individual PERS retiree for 1991 or any other year and, therefore, does not provide a good measure of "damages" for taxpayer. According to the department, credits or deductions for which a particular individual qualified in the 1991 tax year, or any other year, make generalizations about payment of income tax impossible. For example, ORS 316.157 (credit for retirement income) provided in 1991, and still does, for a credit in the amount of nine percent of net pension income to be taken against income tax by federal and state retirees. Application of that credit may reduce the state retirees' income tax related to PERS retirement benefits to zero. Because state retirees' income tax returns are not a part of the record in this case, the department cannot determine the extent to which that credit may have reduced tax payments for either federal or state retirees. [14] Compare Hughes, 314 Or. at 27, 838 P.2d 1018 (relying on earlier Oregon case law, concluding that PERS is a contract between the state and its employees), with Sheehy v. Public Employees Retirement Div., 262 Mont. 129, 133-34, 864 P.2d 762, 765, reh. den. (1993) (relying on earlier Montana case law, concluding that Montana retirement benefits tax exemption laws do not constitute a contract). [15] Because we hold that taxpayer has not shown any discrimination in the tax treatment of state and federal retirees, we need not consider the second prong of Davis, i.e., whether any inconsistent tax treatment is directly related to, or justified by, significant differences between the two classes. 489 U.S. at 816, 109 S. Ct. at 1508. [1] In Hughes v. State of Oregon, 314 Or. 1, 838 P.2d 1018 (1992), I pointed out that the state must honor its obligation to preserve tax exemption for PERS retirement benefits accrued before 1991. I explained: "The promise was embodied in statute. The statute proclaimed: `The right of a [PERS member] to a pension * * * shall be exempt from * * * all state, county and municipal taxes heretofore or hereafter imposed.' ORS 237.201 (1989). The trust funds out of which the pension will be paid amounted to $12.5 billion in mid-1991. These trust funds are also covered by the promise of tax exemption by the language in ORS 237.201 extending the promise to cover `the money in the various funds created by ORS 237.271 and 237.281.'" (Fadeley, J., concurring in part and dissenting in part.) 314 Or. at 37, 838 P.2d 1018. Restrictions on government acts that impair the obligations of contracts have existed as a constitutional guaranteeand a protection of those who contract with governmentsince the birth of our federal nation. See also, United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S. Ct. 1505, 52 L. Ed. 2d 92 (1977) (a seven member decision applying U.S. Const., Art. I, § 10, cl (1) to invalidate state legislation that repealed a "covenant" previously enacted by statute promising that all of certain revenues would be pledged as security for bonds to be sold, the repeal coming after that promise was accepted by purchase of the bonds). [2] The extra retirement benefit, funded by added governmental dollars is a "tax expenditure" in fiscal parlance, very similar to a direct tax credit or refund granted by law. The effect on the mathematical balance of the state budget, as to state retirees, is the same. [3] See Hughes, 314 Or. at 40-41, 838 P.2d 1018. [4] I refer to the option of exempting both state and federal retirement payments accrued before 1991.

517a6d47e7cb936b3839feefdd4174445ad2243373bde798ae48c2317443c516

1995-06-02T00:00:00Z

450f7187-ef88-4de1-a160-fa3561694f62

Eagle Industries, Inc. v. Thompson

321 Or. 398, 900 P.2d 475

oregon

Oregon Supreme Court

900 P.2d 475 (1995) 321 Or. 398 EAGLE INDUSTRIES, INC., an Oregon corporation, James Tucker, and Linda Tucker, Respondents on Review, v. Roy B. THOMPSON, Petitioner on Review. CC 9011-07573; CA A74864; SC S41463. Supreme Court of Oregon, In Banc. Argued and Submitted May 4, 1995. Decided August 3, 1995. James N. Westwood, of Miller, Nash, Wiener, Hager & Carlsen, Portland, argued the cause and filed the briefs for petitioner on review. Kurt L. Maul, of Bayless, Stiner, Rueppell & Lawrence, Portland, argued the cause and filed the brief for respondents on review. Thomas W. Brown, of Cosgrave, Vergeer & Kester, Portland, filed a brief on behalf of amicus curiae Oregon Ass'n of Defense Counsel. Cecil B. Strange, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n. FADELEY, Justice. This case turns on the meaning of a provision in a contract among three parties entered into in July of 1990. The contract settled a previous court case between the Tuckers and Toyoda, after trial and verdict, but before judgment. Thompson had been the Tuckers' lawyer in that earlier court case. He obtained the verdict in their favor. At their request, he negotiated the settlement agreement after verdict. However, even before trial and verdict, a dispute arose *476 between Thompson and the Tuckers over Thompson's fees. That dispute continues today, and is the basis for the present breach of contract action brought by the Tuckers against Thompson. Although this case is separate from the one in which the verdict was entered, where Thompson represented the Tuckers against Toyoda, background facts from that case are necessary to an understanding of the present breach of contract claim. In the previous case, Toyoda as plaintiff claimed a $340,000 balance due by the Tuckers on the purchase price of a construction machine from Toyoda and sought a court order returning the machine to Toyoda.[1] The Tuckers hired Thompson to defend them in that action and eventually to bring counterclaims for fraud and for damages for losses suffered because the machine did not perform as represented. The initial fee agreement between lawyer and client was based on a stated hourly rate of charge for the lawyer's time and that of his assistants. That hourly rate was changed and, thereafter, in January of the year of the Toyoda case trial, a written fee agreement was signed. That agreement provided that Thompson would receive a percentage of any punitive damages awarded, in addition to hourly fees. In April, a trial to a jury was completed. Although the jury awarded Toyoda a substantial sum as the unpaid portion of the machine's purchase price, it also awarded the Tuckers on their counterclaims $179,832 in special damages and $1.5 million in punitive damages. After the verdict, but before any judgment was entered, the parties negotiated toward a settlement of the case that would provide Toyoda with an order dismissing the case rather than entry of any judgment against it. During the time of those negotiations, the Tuckers told Thompson of their continuing dissatisfaction with his charges. He proposed and they signed, in May, a new written fee agreement which continued the provision that Thompson would receive a percentage of the punitive damages. Thompson also filed a statutory attorney's lien against both Toyoda and the Tuckers on May 17.[2] On July 16, Toyoda, the Tuckers, and Thompson entered into a "Settlement Agreement," incorporating an escrow agreement, that canceled any debt due on the machine and transferred clear title to it to the Tuckers. The agreement also provided that a stipulated dismissal of the Toyoda case, vacating the verdict, would be ordered. The settlement agreement promised that Toyoda would pay, in various amounts at various times, a total of $1 million plus interest, in separate payments to the Tuckers and to Thompson directly, who was to release his attorney's lien pro rata as paid. The July settlement agreement recited in a "whereas" clause that Paragraph 10 of that agreement relates to Thompson's attorney's lien and provides, inter alia, that Both the "Settlement Agreement" and escrow agreement expressly deal with the subject of punitive damages, and the possibility that the state might claim a portion of the punitive damages under ORS 18.540. The July agreement also contained the provision on which our decision in this case turns. Paragraph 11(c) of the July agreement provides: Our discussion of the prior Toyoda case is coming to a close. We return to a description of the present case where the Tuckers seek breach of contract damages, in the words of the prayer of their complaint, "for Thompson's excessive charges and billings to" the Tuckers. The Tuckers' claim is alleged under the initial attorney fee contracts and hourly charge agreements. It is important to note that no claim is made by the Tuckers based on the July three-party agreement or on any of the negotiations after verdict leading up to it. Indeed, the Tuckers moved successfully to exclude all evidence of, or about, the July agreement in the present case on the ground that it was not relevant to their claims of breach of earlier contracts. The Tuckers make no claim based on negotiations leading up to the July agreement at all, let alone one which seeks to "alter its terms." Only Thompson and the Tuckers are parties to the present case. Relying on the paragraph quoted above in the July agreement, Thompson moved for partial summary judgment concerning the Tuckers' breach of contract claim. Thompson's motion for partial summary judgment included the following statements: Thompson's memorandum supporting that motion argued that any prior agreement was "discharged" by the July agreement and that the July "agreement is the only valid and binding agreement between the parties." The trial court denied the motion. Thereafter, the breach of contract claim was tried to a jury. Evidence of the July agreement was excluded from that trial on the Tuckers' motion. The jury returned a verdict that generally favored the Tuckers and against their former lawyer, Thompson. Thompson assigns as error the denial of his motion for summary judgment and argues on appeal that there was no question of fact to submit to a jury because, as a matter of law, the July agreement superseded the prior attorney fee contracts, on which alone the jury acted. He argues that the July agreement is a novation, discharging any prior contracts. Thompson also argues that the July agreement was fully integrated and, therefore, under the parol evidence rule, no evidence inconsistent with its terms could be admissible.[3] In rejecting Thompson's novation argument, the Court of Appeals noted that the initial fee agreement was between only two parties and that the July agreement added a third party and, thus, its "subject matter" was not the same. As to the fact that the subject of both agreements includes the amount of attorney fees to be paid Thompson for his representation of the Tuckers in the Toyoda case, the Court of Appeals responded only that "the July agreement inserts the existence of an enforceable attorney lien against [the Tuckers] and Toyoda and payment of amounts in relation to that lien." Eagle Industries, Inc. v. Thompson, 127 Or. App. 595, 601, 873 P.2d 479 (1994). The Court of Appeals held that: "[t]he July agreement did not supersede the [prior] oral agreement." Ibid. The Court of Appeals supported that conclusion by indicating that the "historical facts" show that the July agreement is but a "distribution" agreement *478 and does not represent any settlement of the attorney fee dispute between the Tuckers and Thompson. Ibid. The Court of Appeals opinion supports that proposition by a further recitation indicating that Toyoda, not the Tuckers, insisted on including Thompson as a party to the July agreement, and that Toyoda did so because of its concern about Thompson's attorney's lien. Id. at 598, 601, 873 P.2d 479. The Court of Appeals then held that the existence of the July agreement and its provisions did not prevent the admission of evidence at variance with its terms in the breach of contract trial on different, earlier contracts. Id. at 601, 873 P.2d 479. On the same basis, the Court of Appeals held that no error was committed by excluding all evidence of the July agreement, because the breach of contract claim was not based on that agreement. Id. at 602, 873 P.2d 479. The Court of Appeals next vacated the trial court's order voiding a portion of the escrow agreement and declaring that the Tuckers are owners of the money that was then in the hands of the escrow agent, but designated by the escrow agreement for payment to Thompson. That court's reasons for reversing the trial court included that Toyoda was not a party to the present legal action, out of which the order voiding part of the escrow was entered. Based on the fact that Toyoda was a party to the escrow but not to the current case, the Court of Appeals understood that the trial court had no jurisdiction in this case to make the orders voiding the escrow and changing ownership of money held in it contrary to the provisions of the July three-party agreements.[4]Id. at 603, 873 P.2d 479. We allowed Thompson's petition for review. Simply put, the issue is whether the July agreement superseded as a matter of law the earlier fee agreements on which the breach of contract claim was based. If so, the trial court erred by denying partial summary judgment and erred further by submitting the claim to a jury. Because this case arises on an ORCP 47 motion for summary judgment, the moving party (here, Thompson) bears the burden of convincing the court that there is no genuine issue as to any material facts. Where the moving party is otherwise entitled under ORCP 47 C, however, summary judgment "shall be rendered" unless there is a relevant dispute about "any material fact."[5]Fields v. Jantec, Inc., 317 Or. 432, 437, 857 P.2d 95 (1993); Stevens v. Bispham, 316 Or. 221, 223, 851 P.2d 556 (1993); see Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 655, 576 P.2d 356 (1978) (stating that principle under former, identical statute, ORS 18.105(3) (1977)). Thompson, relying on paragraph 11(c) of the July agreement, contends that that provision entitles him to summary judgment against a breach of contract claim on any earlier contract and that such contract has been discharged as a matter of law. The Tuckers, on the other hand, contend that there is a dispute of facts surrounding the meaning or intention of the parties to that July contract with regard to the provision relied on by Thompson. The Tuckers also argue that there is a dispute of material facts concerning the earlier January and May fee contracts, an argument that is relevant only if those earlier contracts survive the July agreement. When considering a written contractual provision, the court's first inquiry is what the words of the contract say, not what the parties say about it. To determine that, *479 the court looks at the four corners of a written contract, and considers the contract as a whole with emphasis on the provision or provisions in question. New Zealand Ins. v. Griffith Rubber, 270 Or. 71, 75, 526 P.2d 567 (1974); Devereaux v. Cockerline, 179 Or. 229, 240, 170 P.2d 727 (1946); Arment v. Yamhill County, 28 Or. 474, 479, 43 P. 653 (1896). The meaning of disputed text in that context is then determined. Ramsay Signs, Inc. v. Dyck, 215 Or. 653, 657, 337 P.2d 309 (1959). In making that determination, the court inquires whether the provision at issue is ambiguous. Whether terms of a contract are ambiguous is a question of law. OSEA v. Rainier School Dist. 13, 311 Or. 188, 194, 808 P.2d 83 (1991). In the absence of an ambiguity, the court construes the words of a contract as a matter of law. May v. Chicago Ins. Co., 260 Or. 285, 292, 490 P.2d 150 (1971). That case states: The July agreement in part provides: The word "supersedes" is not ambiguous. The Court of Appeals erred in reaching a contrary conclusion. The phrase "subject matter hereof," which "supersedes all prior * * * agreements" on the subject, likewise is not ambiguous. It refers to the written document in which the phrase appears and signals that the document is to announce those items that are its subject. Considering that bit of text in the context of the entire written agreement in which it appears makes clear that the subject is settlement of all rights and duties arising from the legal action and verdict against Toyoda, specifically including Thompson's unpaid legal fees and the statutory attorney's lien related to those fees. The Court of Appeals erred when it concluded, contrary to the provisions included in the contract, that the contract was but a "distribution" agreement. Rights and duties were changed and transferred by it. Obligations were transferred and extinguished by it. The July contract, by its terms, replaces any previous attorney fee agreements between the parties related to the Toyoda case. It expressly deals with, inter alia, the subject of Thompson's fees and the attorney's lien. It substitutes for and supplants prior contracts on the subject.[6] We turn to a review of the terms of the agreement, as pertinent. There was no prior compromise settlement agreement between Toyoda and the Tuckers. In context, the words "supersede all prior written * * * understandings and agreements between the parties" by their plain meaning would include the prior attorney fee agreements between the Tuckers and Thompson. When the Tuckers signed the July three-party agreement, they promised to be bound by it. That agreement provides for a release of the attorney's lien, as against the Tuckers, when Toyoda pays Thompson the amounts specified in the July agreement. The escrow agreement also provides for Toyoda's payment of Thompson's fees on behalf of the Tuckers. It recites that "the parties are all willing to enter into this Escrow Agreement." It names the Tuckers and Thompson as individual "parties," in addition to Toyoda. And it provides, in paragraph 5, that "this agreement shall be binding and conclusive upon, and inure to the benefit of the respective parties." The Tuckers also signed that agreement. Both the July settlement agreement and the escrow agreement note one unsettled contingency, viz.whether *480 the state would claim a part of the "punitive damages" under ORS 18.540. Significantly, the agreement includes no hint of any other unsettled contingency or unresolved claim of any signatory. It is clear that the July agreement supersedes the prior fee agreements. However, the question of the legal effect of that supersession remains. Does the July agreement "discharge" the prior fee agreement as a matter of law, as Thompson argued in support of his motion for summary judgment? Or, may the Tuckers still claim a breach of an earlier fee agreement where, as here, their claim is not in any way based on the three-party July agreement, its meaning, or the negotiations leading up to it? We think that the earlier fee agreements were discharged by the July agreement, which we interpret to be a novation. It substituted for all earlier fee agreements. Before considering the relevant law, a brief discussion of terminology employed by some of the authorities concerning novations is in order. With regard to the release of his attorney's lien in return for payments to him under the July agreement, Thompson is a "creditor" and may also be called an "obligee." The Tuckers are "debtors" and may also be called "obligors." Under the July agreement, Toyoda, who was already a debtor to the Tuckers, became a "debtor" and "obligor" to Thompson. Thompson also became a "creditor" and "obligee" of Toyoda, as to Toyoda's promise to pay the specified amount of fees.[7] Toyoda, as debtor of the Tuckers, promised to pay on their behalf the attorneys fee debt of the Tuckers to Thompson, thereby paying to that extent, Toyoda's obligation to the Tuckers by paying the Tucker's obligation to Thompson. In Dorsey et ux v. Tisby et ux, 192 Or. 163, 173, 234 P.2d 557 (1951), the court stated: Later, after also considering whether the parol evidence rule had any effect and whether there was no consideration for the substituted contract, the court held: In Credit Bureaus v. Cox Brothers, 207 Or. 253, 257-58, 295 P.2d 1107 (1956), this court summarized the law relating to novation contracts. The court adopted as a definition of a novation "`[t]he substitution by mutual agreement of one debtor or of one creditor for another, whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished. 66 CJS 681, Novation § 1a.'" Id. at 257, 295 P.2d 1107. The court stated that an essential element of novation is that there must be a release by the creditor of all claim of liability against the original debtor. The Cox court cited Vawter v. Rogue Valley Canning Co., 124 Or. *481 94, 99, 257 P. 23, 262 P. 851 (1928), as authority for that proposition. 207 Or. at 258, 295 P.2d 1107. The court also said that, in determining whether a substituted agreement is a novation: In Haines, the court further explained: "`To work a novation, it is not enough that a promise has been made to the original debtor to pay the debt; nor does the assent of the creditor help the matter unless an offer was made to him. The theory of novation is that the new debtor contracts with the old debtor that he will pay the debt, and also to the same effect with the creditor, while the latter agrees to accept the new debtor for the old. A novation is not made out by showing that the substituted debtor agreed to pay the debt. It must appear that he agreed with the creditor to do so. Moreover, this agreement must be based on the consideration of the creditor's agreement to look to the new debtor instead of the old. The creditor's assent to hold the new debtor liable is therefore immaterial unless there is assent to give up the original debtor.'" 146 Or. at 413, 30 P.2d 763 (quoting Samuel Williston, Contracts for the Benefit of a Third Person, 15 Harv.L.Rev. 767, 771 (1902)). This court's subsequent cases discussing novation emphasize the importance of the principles from Vawter and Haines, discussed abovethere must be a release by the creditor, here lawyer Thompson, of all further claim against the original debtor, here the Tuckers, and the creditor must agree to accept the new debtor, here Toyoda, who must in turn agree to pay the old debt to the creditor. Therefore, to constitute a novation, the discharge of the old debt must be contemporaneous with the formation of the agreement that the new debtor will pay the creditor and result directly from it.[8] As Arthur L. Corbin, 6 Corbin on Contracts, section 1297, 222 (rev ed 1962), puts it: Samuel Williston & Walter H.E. Jaeger, 15 A Treatise on the Law of Contracts § 1842-48, 521-34 (3d ed 1972), states that, where a new contract is substituted for the previous one, as in a novation, the prior contract is discharged. Corbin, 6 Corbin on Contracts, §§ 1297, 1299, 1302, 213-14, 225, 231-32, provides an extended discussion of novations, from which the following excerpt is particularly relevant: Section 280, of the Restatement states: "* * * * * When the Tuckers signed their names to the July agreement they consented to and gave life to the provision thereof that honored Thompson's lien for attorneys fees in substance.[11] They joined in transferring to Thompson as a new creditor part of their rights as a creditor in the verdict against the debtor, Toyoda. They also joined in acknowledging that Toyoda was discharged of any further obligation to them, as to the portions of their former right against Toyoda and its debt to them that were agreed in the July agreement to be paid by Toyoda directly to Thompson. Their apparent rights as creditors of Toyoda were, in part, transferred to Thompson. Their duties as debtors, stated in an exact amount to be paid Thompson, also were transferred to Toyoda. Thompson assented to both transfers in the form of the July novation agreement, as did the Tuckers. By law, that novation discharged the prior attorney fee contracts or other obligations for which the rights and duties declared in the July novation were substituted. *483 The Tuckers argue that they did not assent to the discharge of their inchoate rights as potential creditors of Thompson based on the claimed excessiveness of his fee. We neither decide nor dispute that claim, except insofar as it relates to the basing of their claim on a theory of breach of the earlier attorney fee contracts that have been discharged by novation. As to them, the argument is foreclosed because, being discharged by assent of the Tuckers and others to the July agreement, those contracts no longer exist to provide any foundation for a breach of contract action based on them.[12] When the Tuckers gave their assent to substitute Toyoda's promise to pay for their obligation to pay Thompson's fees and when Thompson also assented to that substitution, the prior fee agreements were superseded and discharged by that novation. The surviving rights and duties are those promised in the novation. The Tuckers also argue that a novation or substituted contract discharging the prior contract between two parties can not occur in law wherever a new or third party, such as Toyoda is here, is involved in the new agreement. They cite to Dorsey and its language, quoted above more fully, that states: Reliance on that language is mistaken. It is not part of the holding, but only a description of the peculiar facts in that case. At most, it indicates that the Dorsey court believed that a novation is possible in Oregon between two parties to an earlier contract without involving a new, third party as a substituted debtor or creditor. However, as Williston, 15 Law of Contracts § 1865, 582-83, points out: The Tuckers' argument that novations are possible only between the original parties also is undercut by section 280 of the Restatement (Second) of Contracts, quoted above. That section reserves use of the term "novation" to denote contracts adding another party as obligor or obligee. For the reasons stated, the Court of Appeals erred when it declared the supersession clause ambiguous and failed to enforce it as a novation as a matter of law. The circuit court erred likewise by not enforcing the July settlement agreement as a matter of law. That court also erred by voiding a portion of the escrow agreement, an error already corrected by the Court of Appeals. The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for entry of judgment. [1] The previous court case was an action by Toyoda against the Tuckers and their wholly owned company, Eagle Industries, Inc. The Tuckers were sole owners and guarantors of Eagle. When this opinion refers to "the Tuckers," the term is meant to include them individually and their company, Eagle. [2] Notwithstanding the attorney fee dispute, the Tuckers, who were represented by independent counsel as to that dispute, continued to request Thompson to negotiate a settlement with Toyoda. [3] Thompson also assigns as error the separate ruling of the trial court that excluded any evidence of the July agreement from the jury. That claimed error becomes important only if earlier fee contracts that were the subject of the breach of contract claim survive the July agreement and its "supersede" provision as a matter of law. Thompson also urged other assignments of error. Because of our disposition of this case, we do not consider them further. [4] The Tuckers do not petition this court for review of the Court of Appeals' decision overturning the trial court's order voiding the escrow. Therefore, it is not an issue here and the Court of Appeals' decision remains the law of this case. We affirm that part of the Court of Appeals' decision without reviewing it. [5] ORCP 47 C requires in part that "[t]he judgment sought shall be rendered forthwith if [the materials before the judge] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Emphasis added.) As we have held, the party moving for summary judgment has the burden of showing that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. ORCP 47 D; Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978). [6] The highest courts of other states have taken the same view: that "supersede" is not ambiguous and that its use in the contract context results in replacement of the prior contract that is "superseded." Dick v. King, 73 Mont. 456, 236 P. 1093 (1925) (holding that the prior contract provided no basis for a counterclaim because it had been set aside and replaced by the later contract which stated that it superseded the prior contract); Hale v. Dolly Varden Lumber Co., 230 P.2d 841, 846 (Cal.App.1951), aff'd Hale v. Bohannon, 38 Cal. 2d 458, 241 P.2d 4 (1952) (prior agreement, if proved, would have no effect because of clause in later written agreement providing, inter alia: "This instrument contains the entire agreement between the parties hereto and shall supersede and control any and all prior understandings"). [7] Of course, the Tuckers became creditors and obligees of Toyoda under their verdict and the July "Settlement Agreement," which established a different amount of debt than had the verdict. They gave up their rights to enter judgment on the verdict and collect $1.5 million in return for the substituted rights created by the July agreement to the transfer of title to the machine free of any further purchase price payment obligation and to their share of the $1 million settlement as specified in the July agreement. They were also relieved of several previous obligations by the July agreement. The Tuckers were no longer required to pay for the machine or for their trial lawyer. Toyoda took those obligations from the Tuckers and Thompson assented. [8] Principles similar to those of Vawter and Haines were summarily applied by another court to discharge a prior attorney fee agreement. That court said: "The parties' consent to a substituted agreement discharged appellants' obligations under the original contract. See 6 Corbin on Contracts § 1293 (2d ed. 1962). Appellants' alleged breach did not revive the original agreement. Id. The district court therefore erred in enforcing it." Malanca v. Falstaff Brewing Co., 694 F.2d 182, 184 (9th Cir.1982). [9] In Washington v. Heid, 264 Or. 179, 184, 504 P.2d 745 (1972), this court commented, appropriate to the facts of this case and consistent with the explanation in Corbin, that: "where the original obligation is unliquidated and the subsequent agreement is for a definite sum, courts will usually hold the subsequent agreement to be a substituted contract. Mays v. Stegeman, 213 Ky 60, 280 SW 464 (1926)." [10] The decisions of this court agree, as quoted above. In addition, in Winkleman v. Ore.-Wash. Plywood Co., 240 Or. 1, 7, 399 P.2d 402 (1965), a second contract stated: "`At your request, we are: "A. Hereby canceling our agreement with you * * *[.]'" The court held that the second contract was a "substituted contract completely replacing the prior one." Ibid. See Marnon v. Vaughan Motor Co., Inc., 184 Or. 103, 157, 194 P.2d 992 (1948). ("`The new contract supersedes the first to the extent that the two will be unable to stand together.' " (quoting 17 CJS, Contracts, 869, § 379)). [11] The Court of Appeals' conclusion that Thompson's claim of an attorney's lien to secure payment of his attorney fee prevents the July agreement from covering the "same" subject matter as the earlier fee agreements founders on the facts of the items covered by the July agreement. Fee amounts are there, promise to pay is there, identification of the fee as being to represent the Tuckers in the Toyoda case is there. Adding a lien as security does not erase those items of subject matter which are the same subjects as those in the earlier contracts. [12] A contract is not the only basis for a claim of excessive fees. DR 2-106(A) provides: "A lawyer shall not * * * charge [a] * * * clearly excessive fee." See In re Gastineau, 317 Or. 545, 551, 857 P.2d 136 (1993) (discussing the subject and its remedies as a professional disciplinary matter).

9af7eb6c40cddb5e73a5ff09645a1024841ab69e5f687ccdd133b58cc4404b0f

1995-08-03T00:00:00Z

c57a5eb3-7241-46ae-abaf-61ec3efa14aa

Barcik v. Kubiaczyk

321 Or. 174, 895 P.2d 765

oregon

Oregon Supreme Court

895 P.2d 765 (1995) 321 Or. 174 Carol BARCIK, as Guardian Ad Litem for Scott Barcik, a Minor; William Jansen, as Guardian Ad Litem for Tom Jansen, a Minor; Joe Kasten and Sheilah Kasten, as Guardians Ad Litem for Shannon Kasten, a Minor; Barry Edwards and Mona Edwards, as Guardians Ad Litem for Marce Edwards, a Minor; Cordes Lowery and Sharon Lowery, as Guardians Ad Litem for Matt Lowery, a Minor; David Frost; Josh Olson; and Chuck Kostur and Dianne Kostur, as Guardians Ad Litem for Kay Kostur, a Minor, Petitioners on Review, v. Mark KUBIACZYK; Al Davidian; Russ Joki; Pat Biggs; Jack Clinton; Mike Nelson; Richard Carlson; Gary Cumpston; and the Tigard-Tualatin School District 23 J, Respondents on Review. CC C92-0085CV; CA A77165; SC S41340. Supreme Court of Oregon, In Banc. Argued and Submitted November 1, 1994. Decided May 25, 1995. *768 Jonathan M. Hoffman, of Martin, Bischoff, Templeton, Langslet & Hoffman, Portland, argued the cause for petitioners on review. With him on the petition was Michael G. Harting. Duane A. Bosworth, of Davis Wright Tremaine, Portland, argued the cause for respondents on review. With him on the brief was Gustavo J. Cruz, Jr. GRABER, Justice. The issue in this case is whether the Court of Appeals erred when, sua sponte, it reversed a circuit court judgment from which plaintiffs had appealed and remanded the case with instructions to dismiss the complaint and vacate the judgment, on the ground that "there was no justiciable controversy before the circuit court when it entered judgment on plaintiffs' [claims]." Barcik v. Kubiaczyk, 127 Or.App. 273, 277, 873 P.2d 456 (1994). We conclude that the Court of Appeals erred, in part, in dismissing plaintiffs' claims, and we therefore affirm in part and reverse in part. Plaintiffs challenged regulations adopted by the Tigard-Tualatin School District (district) governing official and unofficial student publications. The challenged regulations authorize school administrators to review and censor official and unofficial student publications before their distribution and to discipline students who are responsible for the distribution or publication of material that violates the regulations. Plaintiffs Carol Barcik, William Jansen, Joe and Sheilah Kasten, Barry and Mona Edwards, and Cordes and Sharon Lowery are the parents and guardians for Scott Barcik, Tom Jansen, Shannon Kasten, Marce Edwards, and Matt Lowery, who were seniors at Tigard High School when the district enacted the regulations on January 30, 1992. Plaintiffs Frost and Olson were seniors at Tigard High School when the district enacted the regulations on January 30, 1992.[1] All the foregoing students have graduated from Tigard High School. We will refer to them collectively as "Senior plaintiffs." Plaintiffs Chuck and Dianne Kostur are the parents of Kay Kostur, who was a student at the district's junior high school when the regulations were enacted. Before the regulations were enacted, the following events occurred. On December 4, 1991, Scott Barcik distributed a flyer that solicited articles for publication in "Low-Spots," a nonschool-sponsored ("underground") publication. The next day, the school's assistant principal told Barcik that distribution of the flyer violated school policy, because it had not been approved by the school's director of student activities. The assistant principal issued a formal warning to Barcik and informed him that, if he intended to publish and distribute "Low-Spots," he could either submit "Low-Spots" to the school's administration for approval before its distribution or publish "Low-Spots" without using any school resources and distribute it off school grounds. On January 13, 1992, "Low-Spots" was distributed to students on school property. No prior approval had been given for the distribution. Defendant Kubiaczyk, the principal at Tigard High School, informed Barcik and Jansen that "Low-Spots" was unacceptable, because it contained profanity and because it had not been submitted to the administration for prior approval. Imposition of proposed disciplinary measures (discussed more fully below) was postponed pending the circuit court's decision in this matter. On January 23, 1992, a second underground publication, "The Spots on My Dog," appeared on school grounds. None of the plaintiffs was involved in its publication or distribution. That publication also contained profanity. "Hi-Spots" is the official newspaper of Tigard High School. Shannon Kasten, Marce Edward, Matt Lowery, and David Frost served on the editorial board of "Hi-Spots." Following the distribution of "Low-Spots," *769 but before the distribution of "The Spots on My Dog," the "Hi-Spots" editorial board decided to write an editorial on underground student papers. Frost drafted an editorial entitled "Low-Spots Says a lot about freedom," which said that the "Hi-Spots" staff "appreciate[d the] underground paper's special opinion and angle." Kubiaczyk was concerned that the editorial would be perceived as an endorsement of both "Low-Spots" and "The Spots on My Dog." Kubiaczyk discussed his concerns with other administrators in the district and gave a copy of the "Hi-Spots" editorial to the district's lawyers. Publication of the editorial was postponed. On January 23, the School Board saw copies of the two underground papers and the "Hi-Spots" editorial. On January 24, 1992, Kubiaczyk met with the editorial board of "Hi-Spots." He told them that the School Board had asked for review of the editorial and that the editorial could not be printed as written. Kasten and Edwards called the printer and instructed it to place the following message in red ink, where the editorial was to appear: "CENSORED BY: MARK KUBIACZYK, RUSS JOKI, AL DAVIDIAN, TIGARD-TUALATIN SCHOOL BOARD."[2] On January 30, 1992, the district adopted the challenged regulations. On January 31, plaintiffs filed a complaint challenging those regulations. Plaintiffs alleged that the regulations violate Article I, section 8, of the Oregon Constitution,[3] the First and Fourteenth Amendments to the Constitution of the United States,[4] and various Oregon statutes. Plaintiffs sought an injunction barring the continued enforcement of the regulations, plus monetary damages of $100, pursuant to 42 U.S.C. § 1983,[5] ORS 30.265,[6] and ORCP 79.[7] Pursuant to ORS 28.010,[8] plaintiffs also sought a declaration that portions of the regulations are unconstitutional. The circuit court conducted a trial on the merits of plaintiffs' claims. Thereafter, on October 10, 1992, the circuit court entered a "Declaratory Judgment and Final Decree." The court dismissed all plaintiffs' claims that were rooted in either the Oregon Constitution or Oregon statutes. The court held, however, that defendant Kubiaczyk's censorship and discipline of Barcik and Jansen, and the administration's censorship of the "Hi-Spots" editorial, violated the First and Fourteenth *770 Amendments and, thus, that plaintiffs prevailed on their claim under 42 U.S.C. § 1983. Defendants were ordered to expunge from Barcik's and Jansen's records any disciplinary action taken against them related to the publication and distribution of "Low-Spots." The circuit court declared the district's regulations for school-sponsored publications constitutional and also declared the regulations for unofficial publications constitutional, except for the provisions concerning pre-publication review. The circuit court ordered defendants to refrain permanently from exercising pre-publication review of any nonschool-sponsored publication and from disciplining any student in the district for distributing any nonschool-sponsored publication, "except in cases where a student personally distributes a non-school-sponsored publication which violates the District's regulations for unofficial publications." The parties debate whether the academic records of Barcik and Jansen contain any indication of disciplinary action related to the challenged regulations. The circuit court's judgment states: In turn, "Plaintiffs' Proposed Findings of Fact" stated: Scott Barcik was given a warning by the assistant principal, for solicitation of articles to "Low-Spots," and that warning is reflected in his student record (Proposed Finding of Fact # 3); plaintiffs Barcik and Jansen were to be suspended for seven days after the distribution of "Low-Spots" (Proposed Finding of Fact # 10); that suspension is reflected in Barcik's student record (Proposed Finding of Fact # 11); the proposed suspension was converted to a ten-page research paper on students' First Amendment rights (Proposed Finding of Fact # 13); and that punishment was postponed pending the outcome of this litigation (Proposed Finding of Fact # 14). Nothing in the trial court's oral ruling on August 13, 1992, contradicts those proposed findings. Thus, we take the foregoing as findings of the circuit court. The testimony indicates that some record of disciplinary action taken against Barcik for his involvement in "Low-Spots" exists in Barcik's academic record. However, there is no similar indication that Jansen's academic record contains any report whatsoever of disciplinary action taken in connection with his involvement in "Low-Spots." Moreover, the evidence establishes affirmatively that any discipline that was contemplated as to Jansen never was activated and was withdrawn. Plaintiffs appealed from the circuit court's judgment, arguing that the district's regulations violated Article I, section 8, of the Oregon Constitution. The Court of Appeals, sua sponte, reversed the judgment of the circuit court and remanded the case with instructions to dismiss the complaint and vacate the judgment. Barcik, 127 Or.App. at 282, 873 P.2d 456. Applying Oregon law, the Court of Appeals concluded that plaintiffs failed to present a justiciable controversy. Id. at 279-82, 873 P.2d 456. The Court of Appeals stated that, because Senior plaintiffs had graduated before the circuit court entered judgment, they failed to present a justiciable controversy, and their claims were moot. Id. at 280-82, 873 P.2d 456. As to plaintiff Kostur, the Court of Appeals reasoned that her challenge was too hypothetical and anticipatory in nature to raise a justiciable controversy, because it was based on "speculative future events that may not occur as anticipated or may not occur at all." Id. at 280, 873 P.2d 456. Plaintiffs petitioned for this court's review, and we allowed the petition. STANDARDS OF MOOTNESS AND JUSTICIABILITY APPLICABLE TO PLAINTIFFS' CLAIMS UNDER 42 U.S.C. § 1983 Mootness and justiciability are treated similarly, but not identically, under Oregon and federal law. Under federal law, a justiciable controversy exists when a "plaintiff has made out a `case or controversy' between himself and the defendant within the meaning of Art. III." Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975). A case becomes moot "when the issues presented *771 are no longer live or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982) (citations omitted; internal quotation marks omitted). Under Oregon law, a justiciable controversy exists when "the interests of the parties to the action are adverse" and "the court's decision in the matter will have some practical effect on the rights of the parties to the controversy." Brumnett v. PSRB, 315 Or. 402, 405-06, 848 P.2d 1194 (1993). "Cases that are otherwise justiciable, but in which a court's decision no longer will have a practical effect on or concerning the rights of the parties," are moot. Id. at 406, 848 P.2d 1194. At oral argument, we asked the parties for supplemental briefing. We asked them to address whether this court's decision in Rogers v. Saylor, 306 Or. 267, 760 P.2d 232 (1988), which held that certain state law restrictions cannot impede a section 1983 claim brought in state court, applies to this case. In Rogers, this court addressed whether limitations on individual and governmental liability contained in the Oregon Tort Claims Act, ORS 30.270, apply to a claim under the federal civil rights act, 42 U.S.C. § 1983, when that federal claim is brought in state court. 306 Or. at 270, 760 P.2d 232. This court concluded that the statutory immunity provision in ORS 30.270 does not limit liability under section 1983. Id. at 273-85, 760 P.2d 232. In reaching that conclusion, this court noted that state courts have concurrent subject matter jurisdiction with federal courts over section 1983 claims and that Oregon courts are available to hear claims under section 1983. The court then considered whether a state may impose limits that could be characterized as procedural or jurisdictional (rather than as substantive limits on a claim) on § 1983 actions in state court. 306 Or. at 279-84, 760 P.2d 232. The court discussed the United States Supreme Court's decision in Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988), and concluded that procedural or jurisdictional hurdles that "had the effect of limiting the rights granted by Congress and created an inconsistency between actions brought in state and federal courts" may not be imposed by a state court. 306 Or. at 281, 760 P.2d 232. In Felder, the Supreme Court was called on to decide whether the notice-of-claim provisions of a Wisconsin tort claims act could be applied to section 1983 actions brought in state court. The Court held that they could not. 487 U.S. at 153, 108 S. Ct. at 2314. The Court had two reasons for reaching that conclusion: In Rogers, this court seized on the second reason discussed in Felder and stressed the need to avoid a rule of law that would result in different outcomes depending solely on whether a section 1983 claim is raised in state or federal court. This court rejected a proposed rule of law that This court read Felder as saying "that a state law which creates the potential for different outcomes in state and federal courts cannot be given effect." Ibid. The court concluded that "[n]either the Oregon legislature nor the Oregon courts can limit the rights that a plaintiff has in a federal claim, even when that federal claim is brought in state court." Id. at 284, 760 P.2d 232. The position of the Supreme Court of the United States on federal pre-emption of state *772 law in section 1983 cases has not changed since Rogers in a way that would undermine Rogers. In Howlett v. Rose, 496 U.S. 356, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990), the Supreme Court addressed whether a state law defense of sovereign immunity is available to a school board otherwise subject to suit in a Florida court, when such a defense would not be available if the action had been brought in a federal court. 496 U.S. at 358-59, 110 S. Ct. at 2433. The Court held that such a defense was not available. Id. at 383, 110 S. Ct. at 2446. In reaching that conclusion, the Court stated: Under Howlett, the threshold question becomes whether a state's standards of mootness and justiciability are either jurisdictional rules or "neutral procedural rules" not pre-empted by federal law. See also Rogers, 306 Or. at 281, 760 P.2d 232 (court considered whether state's law is jurisdictional or procedural). Oregon standards of mootness and justiciability are not "jurisdictional rules," as that term is used in Howlett. In Howlett, the court described jurisdictional rules as rules that "reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect." 496 U.S. at 381, 110 S. Ct. at 2445-46. Because Oregon circuit courts will hear section 1983 cases, they have competence over the subject matter. There also is no issue here of power over the person; the parties have availed themselves of the jurisdiction of Oregon courts. Neither are Oregon standards of mootness and justiciability "neutral procedural rules," as that term is used in Howlett. "Neutral procedural rules" are "rule[s] regarding the administration of the courts." 496 U.S. at 372, 110 S. Ct. at 2440 (emphasis added). In other words, procedural rules control how a party may bring a claim (e.g., where to file a complaint or how to serve it) and how a court proceeds with a claim, rather than who may bring a claim or what claim is viable. Mootness and justiciability rules do not fit Howlett's definition of procedural rules. Plaintiffs have alleged that their federal constitutional rights were abridged under color of state law. If plaintiffs could pursue their section 1983 claims in a federal district court in Oregon, applying federal standards of mootness and justiciability, but would be prevented from pursuing identical section 1983 claims in an Oregon circuit court, applying state standards of mootness and justiciability, then both of the concerns raised by the Supreme Court in Felder arise. As the discussion below will show, if state standards of mootness and justiciability are applied to plaintiffs' section 1983 claims raised in state court, plaintiffs will be prevented from securing injunctive relief and their "uniquely federal remedy" in state court. Application of state standards of mootness and justiciability also would limit the rights that a plaintiff has in a federal claim, simply because that claim is brought in state court. The foregoing discussion leads to the conclusion that an Oregon court cannot apply state standards of mootness and justiciability to a section 1983 claim brought in state court if application of those standards would preclude a plaintiff's federal claim, but application of federal standards would not.[9] That, *773 however, is what the Court of Appeals did in its decision below. To that extent, the Court of Appeals erred. PLAINTIFFS' STATE LAW CLAIMS Our conclusion that the Court of Appeals erred by failing to apply federal law to plaintiffs' section 1983 claims does not end our inquiry. We next must decide whether plaintiffs' state law claims are moot. If those claims are not moot, the substance of those claims must be addressed before addressing the substance of plaintiffs' federal law claims. See Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981) (stating principle). This principle is particularly strong in a section 1983 action, in which a party claims to have been deprived of a federal constitutional right under color of state law, because the state does not deny any right claimed under the federal constitution if the claim before the court is fully resolved by state law. Oregon State Police Assn. v. State of Oregon, 308 Or. 531, 538, 783 P.2d 7 (1989), cert. den. 498 U.S. 810, 111 S. Ct. 44, 112 L. Ed. 2d 20 (1990). If, however, plaintiffs' state law claims are moot, they may not be addressed. See Brown v. Oregon State Bar, 293 Or. 446, 449, 648 P.2d 1289 (1982) (Oregon courts do not have authority to render advisory opinions). The parties stipulated in the circuit court that this case presents a justiciable controversy. However, justiciability may not be conferred by stipulation or consent of the parties in the absence of an actual justiciable controversy. Cummings Constr. v. School Dist. No. 9, 242 Or. 106, 110, 408 P.2d 80 (1965). For Senior plaintiffs, except Barcik (whose unique situation is discussed separately below), this case is analogous to Kay v. David Douglas Sch. Dist. No. 40, 303 Or. 574, 738 P.2d 1389 (1987), cert. den. 484 U.S. 1032, 108 S. Ct. 740, 98 L. Ed. 2d 775 (1988). In Kay, the plaintiffs, four high school seniors, sought declaratory and injunctive relief against the inclusion of a formal prayer in their high school's commencement exercises. By the time the circuit court entered its judgment, the graduation exercises had already passed. This court instructed the circuit court to vacate the judgment, because "on the date of the circuit court's judgment there was no justiciable controversy before the court." 303 Or. at 576, 738 P.2d 1389. The plaintiffs presented no justiciable controversy, because none of them "demanded, nor did any allege facts entitling that plaintiff to demand, more general relief against future practices of defendants." Ibid. See also Brumnett, 315 Or. at 404-05, 848 P.2d 1194 ("A second requirement for a justiciable controversy is that the court's decision in the matter will have some practical effect on the rights of the parties to the controversy."). Here, too, Senior plaintiffs allege no facts entitling them to relief from future practices of defendants. On the date of the circuit court's judgment, no Senior plaintiff, except Barcik, had any right or claim that would be affected by a declaratory judgment. Senior plaintiffs suffered no continuing harm from the alleged past deprivation of their Article I, section 8, rights. Similarly, because no Senior plaintiff, except Barcik, had any right that was being violated at the time the circuit court entered judgment, there was nothing for the circuit court to enjoin with regard to Senior plaintiffs. Senior plaintiffs' claims *774 were moot, except as discussed below with respect to Barcik. Senior plaintiffs' argument that they sought a declaration from the circuit court that their Article I, section 8, rights were violated in the pastnot merely an injunction against future actsdoes not help them avoid mootness. The Declaratory Judgment Act, ORS 28.010, quoted at note 8, above, gives courts the "power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed." However, declaratory relief is available only when it can affect in the present some rights between the parties; that is, in order to receive declaratory relief in Oregon, there must be a justiciable controversy between the parties on "which judgment may effectively operate." State Farm Fire & Cas. v. Reuter, 294 Or. 446, 449, 657 P.2d 1231 (1983). "The requirement that there be a justiciable case or controversy is not less strict in a declaratory judgment proceeding than in any other type of litigation." Id. at 448, 657 P.2d 1231. "In order for a court to entertain an action for declaratory relief, the complaint must present a justiciable controversy." Brown, 293 Or. at 449, 648 P.2d 1289. The "Declaratory Judgment Act is not an independent grant of jurisdiction." Id. at 449-50, 648 P.2d 1289. This court has applied the justiciability requirement to declaratory judgment actions for over fifty years and has noted the constitutional origins of that requirement. Oregon Cry. Mfgs. Ass'n v. White, 159 Or. 99, 109, 78 P.2d 572 (1938). Simply put, plaintiffs cannot sidestep the justiciability requirement by requesting declaratory relief. Senior plaintiffs next argue that their claims for prospective relief meet the requirements of an exception to the mootness doctrine, because defendants' acts are "capable of repetition, yet evading review" and are matters of "public importance." In support of their argument, plaintiffs rely on a statement in Perry v. Oregon Liquor Commission, 180 Or. 495, 498-99, 177 P.2d 406 (1947): "Where the [moot] question is one involving the public welfare, and there is a likelihood of it[s] being raised again in the future, a court in the exercise of its discretion may decide it for the guidance of an official administrative agency." This court repeatedly has repudiated the "Perry exception" relied on by Senior plaintiffs. For example, in Mid-County Future Alt. v. Metro. Area LGBC, 304 Or. 89, 92, 742 P.2d 47 (1987), this court refused to address the merits of a case when the "only reason advanced to justify continuation of the case here is the claimed importance of resolution" of the matter: See also Kay, 303 Or. at 577, 738 P.2d 1389 (this court rejected the Court of Appeals' application of "capable of repetition, yet evading review" doctrine; suggestions that this court can hear cases based on the language in Perry "have been discarded in recent cases and should not be followed"); Oregon Republican Party v. State of Oregon, 301 Or. 437, 440, 722 P.2d 1237 (1986) (refusing to apply "capable of repetition, yet evading review" doctrine to a case that is, "strictly speaking, moot"); Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 367-68 n. 9, 723 P.2d 298 (1986) (noting that the court has not chosen to follow Perry in "[m]ore recent decisions"), appeal dismissed 480 U.S. 942, 107 S. Ct. 1597, 94 L. Ed. 2d 784 (1987); Hay v. Dept. of Transportation, 301 Or. 129, 134, 719 P.2d 860 (1986) ("Recent cases have cast doubt on the validity of the Perry holding."); State ex rel Oregonian Publishing Co. v. Sams, 298 Or. 329, 332-33, 692 P.2d 116 *775 (1984) (refusing to apply "capable of repetition, yet evading review" doctrine to mandamus proceeding, when alternative writ already had been complied with; "we note that this court has not in recent years accepted the view that it is a proper judicial function to render a legal opinion `in the public interest' when there is no concrete underlying dispute to be decided"); Oregon Medical Association v. Rawls, 281 Or. 293, 301, 574 P.2d 1103 (1978) (refusing to make an exception to the rule against advisory opinions for matters of "great public importance," because "advisory opinions have not been authorized in Oregon"). The "Perry exception" is not available to Senior plaintiffs. Senior plaintiffs' next argument, that their request for nominal damages prevented their state law claims from becoming moot, is similarly unconvincing.[10] In Hunter v. City of Eugene, 309 Or. 298, 304, 787 P.2d 881 (1990), this court held that a private right of action for damages against a municipality or its employees does not exist directly under the Oregon Constitution, but is limited to extant common-law, equitable, and statutory remedies. The court stated: "Violation of a state constitutional right does not presently per se result in a civil or criminal sanction. * * * "* * * * * "* * * * * "We therefore hold that persons whose rights under Article I, section 8, of the Oregon Constitution are violated by a municipality or its employees may not bring an action for damages against the municipality or its employees directly under the constitution, but will be limited to existing common-law, equitable, and statutory remedies." Id. at 302-04, 787 P.2d 881 (emphasis added). In other words, the court held that a person has no claim at all directly under Article I, section 8, to support any form of damages whatsoever. Nominal damages may be awarded, in a proper case, only to a party who has established a claim. Under Hunter, Senior plaintiffs' claims for nominal damages for past deprivations of Oregon constitutional rights can be sustained only if they can make that claim under an extant common-law, equitable, or statutory theory that provides nominal damages as a remedy; they cannot claim nominal damages solely under Article I, section 8. Senior plaintiffs attempt to find that remedy in the Declaratory Judgment Act. The circularity of this argument is readily apparent. Like Article I, section 8, the Declaratory Judgment Act, standing alone, does not provide for awards of nominal damages. Rather, it allows courts to "declare rights, status, and other legal relations" when a justiciable controversy exists. ORS 28.010. If the rights, status, and other legal relations of Senior plaintiffs and defendants entitled them to an award of nominal damages for a violation of their Article I, section 8, rights, *776 they would be entitled to pursue their claim for nominal damages under the Declaratory Judgment Act. But, Article I, section 8 does not give them that right. The Declaratory Judgment Act cannot be used to give Senior plaintiffs a right that does not otherwise exist for them in Oregon law. Senior plaintiffs' attempt to combine a constitutional provision (Article I, section 8) and a statutory provision (the Declaratory Judgment Act) into a claim for nominal damages cannot succeed when neither provision, standing alone, provides for an award of nominal damages. To summarize, Senior plaintiffs, except Barcik, presented no justiciable controversy under Oregon law. The circuit court erred in considering their state law claims on the merits; those claims should have been dismissed. Plaintiff Barcik's situation differs from that of the other Senior plaintiffs. A declaration that defendants acted unconstitutionally in relation to Barcik, and an order requiring defendants to remove references to discipline from his academic record, would affect Barcik's rights. As noted above, Barcik's academic record contains references to disciplinary action taken against him, resulting from defendants' alleged deprivation of his Article I, section 8, rights. Those references could be removed following a declaration that the references were put there pursuant to unconstitutional regulations or that those regulations were unconstitutional as applied to Barcik. Removal of those references would both acknowledge and remedy the alleged wrong done to Barcik. Because of the references to discipline presently in Barcik's academic record, there exists a controversy between the parties on which judgment effectively may operate. By ordering defendants to remove all references to Barcik's discipline associated with this matter from his academic record, the court would not be enjoining an act that already had been completed. The existence of that justiciable controversy does not extend, however, to Barcik's claims for prospective relief. Like the other Senior plaintiffs, Barcik cannot be affected by a declaration that future enforcement of the regulations is unconstitutional. Neither can he be affected by a declaration restraining the district from enforcing those regulations in the future, because he will not be subject to those regulations in the future. With respect to his disciplinary record, a justiciable controversy exists between Barcik and defendants. The Court of Appeals erred by holding otherwise. Barcik is entitled to consideration of his state law claims on the merits, to the extent that those claims relate to his disciplinary record. The Court of Appeals dismissed plaintiff Kostur's claims, reasoning that she alleged In her complaint, Kostur alleged that she "is a ninth grader at Fowler Junior High School and will attend Tigard High School this fall." She also alleged that she "intends to write for LOW-SPOTS and/or write and distribute non-school-sponsored publications on the campus of Tigard High School." Defendants denied the allegation that Kostur would attend Tigard High School. They also denied that Kostur intended to participate in the writing and distribution of any school-or nonschool-sponsored student newspaper. Kostur now argues, in addition, that the challenged regulations apply through the district and had a "chilling effect" on her even before she entered the high school. She also argues that, because she is a student in the Tigard-Tualatin School District and subject to the regulations, her injury is immediate and tangible. *777 Although Kostur's allegations may be concrete enough to entitle her to pursue state law claims, we need not decide that question because of the procedural posture of the case. The circuit court conducted a trial on the merits of plaintiffs' claims. Kostur did not testify, and no one else testified about her situation. Plaintiffs presented no evidence that Kostur would become enrolled in Tigard High School or that she intended to write for or distribute official or underground school publications there. Plaintiffs failed to present even an affidavit or deposition asserting that Kostur was enrolled in the school district. There is a complete absence of evidence in the record that would allow us to conclude or infer that Kostur has been or will be subjected to the challenged regulations. There is no evidence that the regulations have had "some cognizable effect" on her. See Savage, 317 Or. at 292 n. 6, 856 P.2d 298 (stating that standard). Accordingly, Kostur has not established any justiciable controversy between herself and defendants. To summarize, Kostur presented no justiciable controversy under Oregon law. The circuit court erred in considering her state law claims on the merits; those claims should have been dismissed. Because most of plaintiffs' claims are not justiciable under state law, and thus state law does not provide a remedy as to those claims, we turn to plaintiffs' federal claims. Under federal law, a case becomes moot "when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Murphy, 455 U.S. at 481, 102 S. Ct. at 1183 (citations omitted; internal quotation marks omitted). A question is no longer live when even a favorable decision on it would have no effect on the litigants. Moreover, an actual controversy must exist at all stages of appellate review, and not simply at the date on which an action is initiated. Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 713, 35 L. Ed. 2d 147 (1973). By the time the circuit court entered judgment, Senior plaintiffs' federal claims for prospective relief had become moot. Senior plaintiffs had graduated from the high school. Senior plaintiffs received prospective relief through the declaratory judgment ordering defendants to refrain from enforcing some of the regulations. That prospective relief had no effect on the rights of Senior plaintiffs when the circuit court entered judgment, because the relief limits what the district can do with respect to district students, and Senior plaintiffs were no longer district students. Neither is there any likelihood that they will again become district students. No live controversy exists between Senior plaintiffs and defendants. Senior plaintiffs' federal claims for prospective relief thus are moot. See Indianapolis School Comm'rs v. Jacobs, 420 U.S. 128, 129-30, 95 S. Ct. 848, 850, 43 L. Ed. 2d 74 (1975) (dismissing a challenge by students to censorship of school paper, because they failed to comply with federal rule for establishing a class and because the case was moot when students had graduated by the time the case reached the Supreme Court). Neither can Senior plaintiffs avoid mootness by arguing that, under federal law, they have presented an issue that is "capable of repetition, yet evading review." In the absence of a class action, Murphy, 455 U.S. at 482, 102 S. Ct. at 1183, the Supreme Court has limited that doctrine to situations in which the challenged act is too short in duration to be fully litigated before its cessation or expiration and "there [is] a reasonable expectation that the same complaining party would be subjected to the same action again." Meyer v. Grant, 486 U.S. 414, 417 n. 2, 108 S. Ct. 1886, 1890 n. 2, 100 L. Ed. 2d 425 (1988) (citations omitted; internal quotation marks omitted; emphasis added). Since Meyer, the Supreme Court of the United States has continued to adhere to the rule that the exception to the mootness doctrine for alleged wrongs that are "capable of repetition, yet evading review" is limited to situations in which the same complaining party may again be harmed. In Lewis v. Continental Bank Corp., 494 U.S. 472, 481, *778 110 S. Ct. 1249, 1255-56, 108 L. Ed. 2d 400 (1990), the Court summarized: See also Masters, Mates & Pilots v. Brown, 498 U.S. 466, 473, 111 S. Ct. 880, 885, 112 L. Ed. 2d 991 (1991) (applying exception where it was likely "that the Union's rule would again present an obstacle to a preconvention mailing by [the same] respondent"); Norman v. Reed, 502 U.S. 279, 288, 112 S. Ct. 698, 705, 116 L. Ed. 2d 711 (1992) (declining to treat election-related controversy as moot, because "[t]here would be every reason to expect the same parties to generate a similar, future controversy subject to identical time constraints if we should fail to resolve the constitutional issues that arose in 1990" (emphasis added)). As discussed above, it is extremely unlikely that Senior plaintiffs can or will be subjected to the challenged regulations in the future. The federal "capable of repetition, yet evading review" doctrine does not apply to Senior plaintiffs. Accordingly, they present no live controversy in their claim for prospective relief. Their section 1983 claims for prospective relief must, therefore, be dismissed. However, Senior plaintiffs' claim for a declaration that defendants' conduct in censoring "Low-Spots" and the "Hi-Spots" editorial was unconstitutional under federal law, and for nominal damages, is not moot. Senior plaintiffs sought declaratory relief and nominal damages for the alleged violation of their First Amendment rights for the censoring of the two papers. That allegation is sufficient to allow them to pursue their federal claims, because the challenged regulations were applied to them in the past. The Supreme Court of the United States consistently has held that a claim brought under 42 U.S.C. § 1983 for damages for a past wrong is not moot, even if claims for prospective declaratory and injunctive relief have become moot. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 478 n. 1, 109 S. Ct. 706, 713 n. 1, 102 L. Ed. 2d 854 (1989) (challenge to city's affirmative action ordinance in a section 1983 action was not moot because, even though ordinance had expired and there was no basis for injunctive relief, appellant had alleged actual damages); Board of Pardons v. Allen, 482 U.S. 369, 370 n. 1, 107 S. Ct. 2415, 2417 n. 1, 96 L. Ed. 2d 303 (1987) (fact that prison inmates who sought declaratory and injunctive relief from certain parole procedures had been released from prison before Supreme Court's decision did not render action moot, because the complaint also sought compensatory damages); Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S. Ct. 1660, 1669, 75 L. Ed. 2d 675 (1983) ("We agree that Lyons had a live controversy with the City. Indeed, he still has a claim for damages against the City * * *. [T]he issue here is not whether that claim has become moot but whether Lyons meets the preconditions for asserting an injunctive claim in a federal forum."); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 154 n. 3, 98 S. Ct. 1729, 1732 n. 3, 56 L. Ed. 2d 185 (1978) (challenge to state statute in section 1983 action not moot, when claim for injunctive relief no longer available but plaintiff may be able to demonstrate actual damages); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8-9 & n. 8, 98 S. Ct. 1554, 1560, n. 8, 56 L. Ed. 2d 30 (1978) (when plaintiffs seek damages and declaratory relief for past wrong in section 1983 action and claim for injunctive relief is unavailable, case is not moot when "claim is not so insubstantial or so clearly foreclosed by prior decisions"). The amount of damages sought by the plaintiff is unimportant. "[T]he amount of money * * * at stake does not determine mootness. As long as the parties have a concrete interest in the outcome of the litigation, the case is not moot notwithstanding the size of the dispute." Firefighters v. Stotts, 467 U.S. 561, 571, 104 S. Ct. 2576, 2584, 81 L. Ed. 2d 483 (1984). See also Craft, 436 U.S. *779 at 9 n. 8 (case not moot, because a damages claim existed when district court recommended an award of only $35). The fact that Senior plaintiffs sought nominal damages instead of actual damages for the past deprivation of their federal constitutional rights does not alter the analysis. When a plaintiff alleges a deprivation of a federal constitutional right, but alleges no actual harm, nominal damages are the proper means by which to vindicate that deprivation. In Memphis Community School Dist. v. Stachura, 477 U.S. 299, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986), the plaintiff, a school teacher, sought both compensatory and punitive damages under section 1983 for an alleged deprivation of his First Amendment right to academic freedom. The teacher was suspended, with pay, after teaching a school-approved curriculum on human sexuality to junior high school students. Eventually, the teacher was reinstated. A jury awarded the teacher damages, based in part on the "value" of his First Amendment rights. The Supreme Court held that damages based on the abstract value or importance of constitutional rights are not a permissible element of compensatory damages in section 1983 actions. 477 U.S. at 310, 106 S. Ct. at 2544. In Stachura, the Court noted, however, that "nominal damages * * * are the appropriate means of `vindicating' rights whose deprivation has not caused actual, provable injury." Id. at 308 n. 11, 106 S. Ct. at 2543 n. 11. See also Carey v. Piphus, 435 U.S. 247, 266-67, 98 S. Ct. 1042, 1054, 55 L. Ed. 2d 252 (1978) (approving an award of nominal damages for the deprivation of procedural due process rights); Farrar v. Hobby, 506 U.S. ___, 113 S. Ct. 566, 121 L. Ed. 2d 494, 504 (1992) (in holding that an award of nominal damages for deprivation of a constitutional right renders a party a "prevailing party" for the purpose of attorney fees under 42 U.S.C. § 1988, the Court stated that "[a] judgment for damages in any amount, whether compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay"). For the purpose of vindicating federal rights under section 1983, nominal damages serve a similar function to compensatory damages when actual harm cannot be proved, but a federal right has been infringed. We conclude that a claim for nominal damages for a past deprivation of a federal constitutional right withstands a challenge based on mootness. Although the Supreme Court has never addressed this precise issue, a number of federal circuit courts have done so since the Court's decisions in Stachura and Carey, and all have reached the same conclusion that we reach today. See O'Connor v. City and County of Denver, 894 F.2d 1210, 1215-16 (10th Cir 1990) (applying Stachura and holding that section 1983 claim for nominal damages only for an alleged past deprivation of First Amendment rights, is sufficient to avoid mootness); Green v. McKaskle, 788 F.2d 1116, 1124 (5th Cir 1986) ("Because [the plaintiff's] complaint alleged violations of his constitutional rights [including First and Eighth Amendments, and the Fourteenth Amendment's Due Process and Equal Protection clauses], for which if proved he could receive at least nominal damages, he presented the district court with a case or controversy sufficient to invoke the court's jurisdiction."); Henson v. Honor Committee of U. Va., 719 F.2d 69, 72 n. 5 (4th Cir 1983) ("The Supreme Court has made it plain that the deprivation of procedural due process creates an independent right to seek, at a minimum, nominal damages. [Plaintiff] sought both injunctive and monetary relief in his 42 U.S.C. § 1983 action against the University. Thus, his request for damages remained a live controversy even after the disciplinary proceedings were dropped." (citation omitted)); Lokey v. Richardson, 600 F.2d 1265, 1266 (9th Cir 1979) ("regardless of actual damages, appellant could be entitled to nominal damages if he prevailed. His action therefore was not mooted" (citation omitted)), cert. den. 449 U.S. 884, 101 S. Ct. 238, 66 L. Ed. 2d 110 (1980); Davis v. Village Park II Realty Co., 578 F.2d 461, 463 (2d Cir 1978) ("If the wrong complained of is a mere technical violation of the plaintiff's constitutional rights and she is unable to prove actual damage, she would nevertheless be entitled to a recovery of nominal damages. * * * The availability of either nominal or substantial damages is sufficient to prevent this case from *780 becoming moot").[11] Although, of course, we are not bound by those decisions, we find their reasoning and consistency convincing. Senior plaintiffs alleged a past act that resulted in a deprivation of their federal constitutional rights. The circuit court held that they were deprived of their First Amendment rights when the school censored the publication of the "Hi-Spots" editorial and exercised prior restraint over the publication of "Low-Spots." The "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2689, 49 L. Ed. 2d 547 (1976). The unconstitutional exercise of a prior restraint is, by its nature, a deprivation of a constitutional right that cannot be withdrawn by later action on the part of the person enforcing the restraint. The restraint already has been committed at the time of the constitutional challenge. Senior plaintiffs requested, among other things, nominal damages as relief for those wrongs, as a means of vindicating their constitutional rights. Thus, their section 1983 claims presented a justiciable controversy as to the past deprivation of federal constitutional rights. To the extent that the circuit court found a deprivation of those rights and ordered defendants to remedy that past wrong, the circuit court's award of retrospective relief to Senior plaintiffs provides a continuing basis for jurisdiction in the Court of Appeals. The Court of Appeals erred in reversing that part of the judgment on the basis of mootness. The circuit court also awarded retrospective relief under federal law to Senior plaintiffs Barcik and Jansen. The circuit court ordered defendants to "expunge from their disciplinary records all references, if any, to warnings, discipline or other sanctions imposed" on Barcik and Jansen. Under federal law, Barcik's and Jansen's request for retrospective relief is not rendered moot merely because their claim for prospective relief is moot. See 321 Or. at 195-96, 895 P.2d at 777-78. Barcik demonstrated that some record of discipline does exist concerning his involvement with "Low-Spots" and that an actual controversy exists. Should he prevail on the merits of his First Amendment claims, he may be entitled to both a declaration that the regulations as applied to him are unconstitutional and a removal of the disciplinary action taken against him from his academic record. As to Jansen, however, there was no evidence to support the circuit court's findings as to disciplinary action. The circuit court erred, therefore, in rendering a decision concerning such purported action. As discussed above, Kostur failed to establish that she is a student in the district, that she will attend the high school, or that she is, was, or will be in any way harmed by the challenged regulations. She presented no evidence to show the existence of any controversy with defendants. *781 In the absence of a controversy between the parties, declaratory relief cannot issue under federal law. "A genuine threat must be demonstrated if a case or controversy * * * may be said to exist." Ellis v. Dyson, 421 U.S. 426, 435, 95 S. Ct. 1691, 1696, 44 L. Ed. 2d 274 (1975). Kostur must "maintain a `personal stake' in the outcome of the litigation throughout its course" in order to retain standing. See Gollust v. Mendell, 501 U.S. 115, 125-26, 111 S. Ct. 2173, 2180, 115 L. Ed. 2d 109 (1991) (stating that principle).[12] She has failed to do so. Under federal law, she does not have standing to maintain her claim. Kostur cannot avoid this determination by arguing that the parties stipulated that a justiciable controversy existed between them. Consent of the parties is never adequate to permit a federal court to assume justiciability when justiciability does not exist. Sosna v. Iowa, 419 U.S. 393, 398, 95 S. Ct. 553, 556, 42 L. Ed. 2d 532 (1975). Thus, an Oregon court applying federal law to plaintiff Kostur's federal claims could not assume that a justiciable claim exists. Kostur has not presented a "case or controversy" under federal law and, applying federal law, she cannot consent to the existence of one. In the absence of any evidence to establish an actual controversy between Kostur and defendants, the circuit court had no choice but to dismiss Kostur's federal claims. It erred in considering those claims on the merits. In summary, we hold that the Court of Appeals erred when it applied state law to determine whether plaintiffs raise a justiciable controversy under 42 U.S.C. § 1983. Applying state law to plaintiffs' state law claims, we hold that only plaintiff Barcik's claim for retrospective relief raises a justiciable controversy. The Court of Appeals erred when it ordered Barcik's claim for retrospective relief to be dismissed. All other plaintiffs fail to present justiciable controversies under state law. Accordingly, those plaintiffs' state law claims should have been dismissed. Under federal law, all Senior plaintiffs raise a justiciable controversy as to their claims for retrospective relief. The Court of Appeals erred when it ordered those claims to be dismissed. Senior plaintiffs do not present a justiciable controversy as to their claims for prospective relief, however; those claims should have been dismissed. Plaintiff Kostur fails to present a justiciable controversy under either state or federal law. Her claims should have been dismissed. The decision of the Court of Appeals is affirmed in part and reversed in part. The case is remanded to the Court of Appeals for consideration on the merits of petitioner Barcik's state law claims for retrospective relief and of the federal claims for retrospective relief of all petitioners except Kostur. DURHAM, Justice, concurring. I concur in the result reached by the majority. I write separately to state the basis for my concurrence with the majority's conclusion that the Senior plaintiffs' state law claims are moot. Senior plaintiffs argue that their claim for declaratory relief will resolve a live controversy regarding the lawfulness of defendants' past actions and, therefore, is not moot due to Senior plaintiffs' graduation. That answer is not obvious, because they make no showing that a judgment resolving that controversy will affect, as a practical matter, the rights of any party. They attempt to bolster that argument by suggesting that their prayer for nominal damages defeats defendants' contention that the dispute is now purely hypothetical. The majority rejects that argument on the following rationale: "* * * Under Hunter, Senior plaintiffs' claims for nominal damages for past deprivations of Oregon constitutional rights can be sustained only if they can make that claim under an extant common-law, equitable, or statutory theory that provides nominal damages as a remedy; they cannot claim nominal damages solely under Article I, section 8. "* * * * * Hunter answered in the negative the following certified question: "`(1) May persons whose rights under Article I, section 8 of the Oregon Constitution were allegedly violated by a municipality and by municipal employees bring an action for damages against the municipality and its employees directly under the Oregon Constitution?'" Hunter, 309 Or. at 302, 787 P.2d 881. The court explained: Hunter purports to decide whether Article I, section 8, of the Oregon Constitution affords a basis for "implying" a cause of action for a claim based "directly" on that provision. The majority adopts that reading. Barcik v. Kubiaczyk, 321 Or. at 189-91, 895 P.2d at 774-76. Hunter did not discuss any issue related to nominal damages. The Hunter court's answer to the question before it may be debatable, and I leave that potential debate for another day. However, I am concerned that Hunter failed to analyze fully the question whether Oregon citizens may rely on the alleged violation of duties imposed by the Oregon Constitution on public bodies and governmental actors in bringing actions for damages or for protective remedies under the Oregon Tort Claims Act, ORS 30.260 to 30.300. The Oregon Constitution does not stand alone as a potential source of judicial remedies. By statute, the state expressly has made public bodies liable for their "torts," within statutory limits.[1] ORS 30.265(1) provides, in part: ORS 30.260(8) defines "tort" in this context as follows: *783 "`Tort' means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy." Under that definition, the breach of a noncontractual duty that injures a specific person and that would give rise to a protective remedy is a "tort." In my view, such duty could include those imposed by certain provisions of the Oregon Constitution, including Article I, section 8. Whether the breach of a noncontractual duty also gives rise to a damages remedy depends primarily on the nature of the harm done, not on the nature of the duty that the actor violates. See Urban Renewal Agency v. Lackey, 275 Or. 35, 38, 549 P.2d 657 (1976) ("Any breach of a legal duty resulting in damages, other than those duties created by contract, is a tort, whether that duty is imposed by the common law or by statute"). If public actors falsely arrest, imprison, and physically injure a citizen without justification and in violation of constitutional standards, it is easy to recognize that damages are an appropriate remedy. Similarly, if students are physically assaulted or their property injured in the course of exercising their state constitutional right to speak, write, or print freely on any subject, the resulting injury is remediable through money damages. Under those circumstances, the defendants could not claim immunity if they acted unconstitutionally. It is less clear that the violation of other state constitutional rights would lead so easily to a damages remedy. An example would be the failure to appoint counsel for an indigent defendant who is never questioned, booked, or prosecuted. What is absent there is not a constitutional violation, but a harm that calls for compensatory damages. If the courts award money damages for the intentional invasion of a person's interest in person, property, or reputation, I see no reason why a public actor's intentional invasion of the same interest, in violation of constitutional rights protected by Article I, section 8, should not equally support a claim for damages. In that circumstance, a violation of a constitutional right can serve as the predicate for a damages remedy. It is difficult to read ORS 30.260(8) and 30.265(1) to mean anything else. In the present case, Senior plaintiffs assert only a claim for nominal damages. Because the focus of the case at trial was different, Senior plaintiffs did not have an occasion to brief or argue the effects of Hunter, or the Oregon Tort Claims Act and its definition of "tort," on their claim for nominal damages. Understandably, they do not attempt to interject those issues here. Under those circumstances, I concur in the court's judgment. FADELEY and UNIS, JJ., join in this concurring opinion. [1] Although some plaintiffs were the parents of students, and some plaintiffs were students themselves, that distinction is not material to the issue before us. [2] Defendant Joki is the district's superintendent. Defendant Davidian is the district's assistant superintendent. [3] 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." [4] The First Amendment to the Constitution of the United States provides in part: "Congress shall make no law * * * abridging the freedom of speech, or of the press." The First Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925). The Fourteenth Amendment to the Constitution to the United States provides in part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." [5] 42 U.S.C. § 1983 provides in part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." [6] ORS 30.265(1) provides in part: "[E]very public body is subject to action or suit for its torts and those of its officers, employees and agents acting with the scope of their employment or duties * * *." [7] ORCP 79 provides for the issuance of temporary restraining orders and preliminary injunctions. [8] ORS 28.010 provides: "Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree." [9] We need not and do not address whether state standards of mootness and justiciability could be applied to a section 1983 claim brought in state court if application of those standards would be more favorable, rather than less favorable, to a plaintiff. Today's decision addresses only the situation in which state standards of mootness and justiciability prevent a plaintiff from bringing a section 1983 claim in state court, when the plaintiff's identical section 1983 claim would not be precluded in a federal forum. [10] Plaintiffs do not argue that their prayer for attorney fees prevented their claims from becoming moot. [11] The same view is endorsed by commentators as well. "Although some cases seem to have suggested that a claim merely for nominal damages cannot avoid mootness, it is better to face the nominal damages question directly. The very determination that nominal damages are an appropriate remedy for a particular wrong implies a ruling that the wrong is worthy of vindication by an essentially declaratory judgment. A valid claim for nominal damages should avoid mootness." Charles A. Wright, Arthur R. Miller & Edward H. Cooper, 13A Federal Practice and Procedure: Jurisdiction 2d § 3533.3, 265-66 (1984) (footnotes omitted). "A change in circumstances may eliminate the need for injunctive or declaratory relief and thus render claims for these forms of relief moot. When both prospective and retrospective relief are sought, however, a properly pleaded claim for monetary relief to compensate for past injury normally will prevent dismissal of the action for mootness even though the claims for prospective relief become moot. "* * * * * "Although the issue is not free from doubt, the better view appears to be that a properly pleaded claim for nominal damages will defeat a claim of mootness." Martin A. Schwartz and John E. Kirklin, Section 1983 Litigation § 15.3, 812-13 (2d ed 1991) (citations omitted). [12] See also O'Connor, 894 F.2d at 1214. "Standing to raise an issue does not preserve for appeal a claim abandoned at trial. Stated differently, the standing doctrine does not undo the parties' trial strategy or their decisions regarding how to fashion their case. We do not consider on appeal issues not raised in the district court. Similarly, we will not consider claims abandoned in the district court." (Citation omitted.) [1] Other statutory sources of judicial remedial power include the writ of review, ORS 34.010 et seq., the writ of mandamus, ORS 34.105 et seq., and the Administrative Procedures Act, ORS 183.310 to 183.550.

dacc11a5e7f71f8724be46d5715aab02f315731a4b4ed41fe5ff2b011328a4b8

1995-05-25T00:00:00Z

f3b8aa88-b43b-453d-9fa1-b46a31fcabdc

Crumpton v. Kulongoski

321 Or. 269, 896 P.2d 577

oregon

Oregon Supreme Court

896 P.2d 577 (1995) 321 Or. 269 Robert CRUMPTON, Petitioner, v. Theodore R. KULONGOSKI, Attorney General, State of Oregon, Respondent, and Ruth Bendl, Intervenor. SC S42252. Supreme Court of Oregon, In Banc. Argued and Submitted May 23, 1995. Resubmitted May 26, 1995. Decided June 22, 1995. Paul Gamson, Portland, argued the cause and filed the petition for petitioner. Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the answering memorandum were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Ruth Bendl, intervenor, filed a memorandum pro se. PER CURIAM. This is an original proceeding in which petitioner challenges the ballot title for a proposed initiative measure. Petitioner is an elector who, in a timely manner, submitted written comments about the Attorney General's draft ballot title, pursuant to ORS 250.067(1). Accordingly, petitioner is entitled to seek a different title in this court. ORS 250.085(2). Petitioner's arguments here are consistent with those that he made during the administrative process. We have considered each of petitioner's arguments concerning the Attorney General's ballot title. We conclude that none demonstrates a failure on the part of the Attorney General to comply substantially with the requirements of ORS 250.035 and 250.039. See ORS 250.085(5) (establishing that formula as this court's standard of review). We therefore certify the following ballot title: Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(9). DURHAM, J., dissented and filed an opinion in which FADELEY and UNIS, JJ., joined. DURHAM, Justice, dissenting. I dissent. The Attorney General's ballot title, which the majority certifies to the Secretary of State, does not comply substantially with ORS 250.035(1),[1] because it fails to state accurately the measure's subject, chief purpose, and major effect. Accordingly, I would certify a different ballot title. The proposed measure would amend the Oregon Constitution to provide: Each of the three parts of the ballot title caption, question and summaryconveys distinct information about the measure. The caption identifies the measure's subject. The question plainly phrases the measure's chief purpose which, according to this court, is "the most significant aim or end which a measure is designed to bring about." Reed v. Roberts, 304 Or. 649, 654, 748 P.2d 542 (1988) (footnote omitted). The 85-word statement summarizes the measure and its major effect. As this court noted in Reed, a measure's subject, chief purpose, and major effect may not be the same thing. Id. at 656, 748 P.2d 542. *579 We start with the words of the measure to determine whether the components of the Attorney General's ballot title convey the distinct information about the measure required by ORS 250.035(1). The measure's words disclose that it would create two general limitations on public employee retirement plans in Oregon. The first limitation, which is set forth in subsection (1) of the measure, would adopt, as the minimum normal public employee retirement age[2] in Oregon, the retirement age set forth in a federal statute. The second limitation, which is set forth in subsection (2) of the measure, would reduce public employee retirement benefits. The parties' dispute concerns the sufficiency and impartiality of the Attorney General's description of the first limitation, concerning retirement age. The Attorney General's ballot title caption states, as material: "raises public employees' normal retirement age * * *." The question states, as material: "Shall constitution raise public employees' normal retirement age * * *?" The summary states, as material: "Measure would raise that [normal retirement age] to Social Security retirement age (now 65 to 67)." Petitioner argues that the Attorney General's ballot title is insufficient because, by departing from the measure's text and focusing exclusively on one current effect of the measure, it fails to disclose the measure's subject and chief purpose and adopts a partisan interpretation of ambiguous language in the measure. He urges that we certify a ballot title that reflects more closely his own interpretation of the measure. I conclude that petitioner's criticisms of the Attorney General's ballot title are well-taken, although his suggested answer to the problem is not. The measure does not say that it "raises" Oregon's public employee retirement age. It says that the normal retirement age under Oregon public employees' retirement plans "shall be not less than" the retirement age stated in a federal statute. In my view, the principal subject and chief purpose of the measure is the adoption of the retirement age stated in a federal statute as the minimum normal retirement age in any retirement plan covering Oregon public employees. By stating that the measure "raises" the normal retirement age, the Attorney General's caption and question state a current effect of the measure, but they fail to disclose the measure's subject and chief purpose. This is not a case in which the Attorney General's description of the subject and chief purpose in the caption and question is merely oblique. The Attorney General's caption and question give no notice to petition signers and voters that the measure would create a minimum retirement age for *580 Oregon public employees, regardless of their length of service, by incorporating the retirement age stated in a federal statute. The Attorney General defends his use of the term "raise" in the three components of his ballot title on the theory that, at present, the retirement ages stated in the federal statute are higher than that stated in Oregon's retirement statute and, unless the federal law changes, the measure would have the immediate effect of "raising" Oregon's public employee retirement age. The Attorney General resists disclosing in the ballot title that the measure adopts a federal statute as the minimum public employee retirement age because, as he interprets the measure, it adopts only the federal retirement age in effect when the people enact the measure and does not adopt any amendments to that law that Congress may enact in the future. In contrast, petitioner argues that the measure does incorporate subsequent Congressional amendments to the Social Security retirement age. The parties' arguments disclose a serious ambiguity in the measure. The Attorney General argues that Article I, section 21, of the Oregon Constitution, prohibits the prospective adoption of laws that the federal government may pass in the future. Article I, section 21, provides, as relevant: "[N]or shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution[.]" The Attorney General contends that he has adopted an interpretation of the measure, which his ballot title reflects, that will obviate future arguments that the measure violates Article I, section 21. The Attorney General's argument appears to disregard the supersession clause, subsection (4) of the measure, which is quoted above, but whether the Attorney General's preferred interpretation of the measure is more plausible is beside the point. As this court has said in another context: The Attorney General cannot sweep aside the measure's ambiguity by adopting one disputed interpretation of it in the ballot title, even for the supposedly benevolent purpose of saving it from a future attack on its constitutionality as an unlawful delegation of legislative power. "[T]he efficacy of the proposed measure, should it be adopted by the people, is not now before us" in the ballot title review process. Oregon Aqua-Foods v. Paulus, 296 Or. 469, 472 n. 3, 676 P.2d 870 (1984) (citations omitted). In fact, the Attorney General has acknowledged "that it is not his function to interpret the proposed measure in preparing a ballot title." Kouns v. Paulus, 296 Or. 826, 828, 680 P.2d 385 (1984). This court has avoided taking sides in similar controversies over interpretation of a measure's ambiguous words by requiring use of the words of the measure, or a close paraphrase of those words, in the ballot title. In Aughenbaugh v. Roberts, 309 Or. 510, 516, 789 P.2d 656 (1990), the court decided that a ballot title summary should include the phrase "including commission costs," which was taken from the text of the measure, even though the meaning of the phrase was vague and sharply disputed by the parties: By stating repeatedly that the measure would "raise" the retirement age, the Attorney General's ballot title masks the ambiguity in the measure about whether the Oregon retirement age would continue to rise or fall with any future Congressional amendments to the Social Security Act respecting retirement age. The ballot title must convey what the text of the measure actually would do, i.e., require that the retirement age for most Oregon public employees be not less than the retirement age in the federal Social Security Act. The Attorney General offers no compelling reason for departing from the text of the measure in describing it in the ballot title. The Attorney General's ballot title is not impartial, because it does not describe neutrally the key text of the measure and, for that reason, it violates ORS 250.035(1). We should certify a ballot title that accurately states the subject, chief purpose, and major effect of the measure but avoids resolving the significant ambiguity in the measure's text. The following ballot title would do so and substantially comply with ORS 250.035(1): Because the ballot title certified by the majority does not substantially comply with ORS 250.035(1), I dissent. FADELEY and UNIS, JJ., join in this dissenting opinion. [1] ORS 250.035(1) provides: "The ballot title of any measure to be initiated or referred shall consist of: "(a) A caption of not more than 10 words which reasonably identifies the subject of the measure; "(b) A question of not more than 20 words which plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on the measure; and "(c) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect." [2] The measure does not define "normal retirement age," but that phrase may refer to ORS 237.003(18), which defines "normal retirement age" for purposes of the Public Employees' Retirement System (PERS): "The term `normal retirement age' means 55 years of age for an employee who retires at that age as a police officer or fire fighter or 58 years of age for an employee who retires at that age as other than a police officer or fire fighter." ORS 237.121 provides that public employees covered by PERS can retire at their normal retirement age only if they have sufficient years of creditable service in the system. It provides: "(1) A police officer or fire fighter who is a member of the system and attains the age of 50 or any other employee who is a member of the system and attains the age of 55 shall be retired upon written application by the member to the board on a reduced service retirement allowance which shall be the actuarial equivalent of the service retirement allowance provided for in ORS 237.147 at the normal retirement age. "(2) Notwithstanding subsection (1) of this section and ORS 237.073(2)(b)(B): "(a) A police officer or fire fighter who is a member of the system, attains the age of 50 and has a combined total of 25 years or more of creditable service in the system and prior service credit under ORS 237.081 shall be retired upon written application by the member to the board on a service retirement allowance including, without actuarial reduction, the same current service pension and prior service pension provided for in ORS 237.147 at the normal retirement age. "(b) An employee who is a member of the system, has a combined total of 30 years or more of creditable service in the system and prior service credit under ORS 237.081, and is not eligible to retire under paragraph (a) of this subsection shall be retired upon written application by the member to the board on a service retirement allowance including, without actuarial reduction, the same current service pension and prior service pension provided for in ORS 237.147 at the normal retirement age."

fee0074704e5868f4c63c3a212db89596f2a511a29b30c4502b87e6dccfb082f

1995-06-22T00:00:00Z

f8a0bf7c-c20e-4b5a-8815-5dbf51b0ffc0

Ester v. City of Monmouth

322 Or. 1, 903 P.2d 344

oregon

Oregon Supreme Court

903 P.2d 344 (1995) 322 Or. 1 Lorraine M. ESTER, Appellant, v. CITY OF MONMOUTH, Respondent. OTC 3528; SC S41529. Supreme Court of Oregon, In Banc. Argued and Submitted May 2, 1995. Decided September 28, 1995. James M. Brown, of Enfield, Guimond, Brown & Collins, Salem, argued the cause and filed the briefs for appellant. With him on the reply brief was Scott McArthur, Monmouth. William F. Gary, of Harrang Long Gary Rudnick P.C., Eugene, argued the cause for respondent. With him on the brief was Glenn Klein. Peter A. Kasting, Portland City Attorney's Office, Portland, filed a brief on behalf of amicus curiae League of Oregon Cities. CARSON, Chief Justice. Petitioner brought this claim against respondent, the City of Monmouth (the city), *345 arguing that the city exceeded the property tax limitations prescribed by Article XI, section 11b, of the Oregon Constitution,[1] when it imposed a special assessment upon petitioner for street and sidewalk improvements to the street running in front of property owned by petitioner. This case comes before us upon review of the Tax Court's order granting the city's motion for summary judgment. Petitioner owns two adjacent lots in the city that contain a total of 10 residential units. In 1992, the city voters approved a $1.8 million bond to repair certain streets, including the street in front of petitioner's property. The funds from the bond were dedicated to widening the streets from 16 feet to 28 feet and to covering the concrete streets with asphalt. In 1993, the city council created a local improvement district to further improve the street in front of petitioner's property by increasing its width an additional eight feet (to 36 feet) and by constructing a storm drainage system, curbs, and sidewalks. The city council decided to assess the property owners in the local improvement district for those additional costs. Specifically, the city council adopted a resolution that allocated 56.77 percent of the cost of improving the street to the city and 42.23 percent of the cost to the property owners in the local improvement district. Petitioner filed an action in the Tax Court, pursuant to ORS 305.583, arguing that the special assessment against the property owners in the local improvement district was not an assessment for a "local improvement" within the meaning of the exception to the property tax limitations contained in Article XI, section 11b, of the Oregon Constitution, and that, as a consequence, the assessment exceeded the limitations imposed by that section. Petitioner further argued that the proposed local improvement did not "in fact" improve her property because she lost valuable parking space in front of her property. In the Tax Court, both parties moved for summary judgment. That court concluded that "the special assessment in question is for a local improvement within the meaning of section 11b and therefore is not subject to the limitations of that section of the Oregon Constitution." Ester v. City of Monmouth, 13 OTR 104, 110, 1994 WL 361809 (1994). Accordingly, the Tax Court granted the city's motion for summary judgment and denied petitioner's motion for summary judgment. Id. at 111. Petitioner then appealed that decision to this court. The city cross-assigned as error its earlier argument that the Tax Court did not have jurisdiction to hear petitioner's case. We first must determine whether the Tax Court had jurisdiction to consider petitioner's claim under ORS 305.583(1). That statute provides: ORS 305.580(1) makes that procedure the exclusive remedy for an interested taxpayer bringing a challenge under the limitations imposed by Article XI, section 11b: The city argues that, because petitioner did not bring her claim with at least nine other taxpayers, the Tax Court did not have jurisdiction to consider petitioner's claim under ORS 305.583(1). The Tax Court rejected *346 that argument, however, concluding that the 10-taxpayer requirement of ORS 305.583(1) violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.[2] The Tax Court explained: The Tax Court effectively severed the 10-taxpayer requirement from ORS 305.583(1) and concluded that it had jurisdiction to consider petitioner's claim under that statute.[3] We agree with the city that, on its face, ORS 305.583(1) requires that a taxpayer bring his or her challenge in conjunction with at least nine other taxpayers. Petitioner did not do so in this case. The questions before us, then, are whether the 10-taxpayer requirement violates the Due Process Clause and whether this court must sever that requirement from the statute. The Supreme Court of the United States has held that "the root requirement of the Due Process Clause * * * [is] that an individual be given an opportunity for a hearing before [the individual] is deprived of any significant property interest." McKesson v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 37, 110 S. Ct. 2238, 2250, 110 L. Ed. 2d 17 (1990). (Internal quotation marks omitted.) The city argues that, even if the Due Process Clause does require that petitioner be allowed a hearing to challenge this assessment, a different statute did provide petitioner with an opportunity for a hearing in this case and, because petitioner did not avail herself of the hearing that statute affords, the 10-taxpayer requirement of ORS 305.583(1) does not violate this petitioner's due process rights. The city maintains that ORS 223.401[4] provided petitioner a process, through a writ of review, for challenging the city's assessment for the local improvement in this case. To overcome the exclusivity provision of ORS 305.580(1), the city contends that Article *347 XI, section 11b, does not alter the statutory meaning of the words "local improvement" or "special assessment" and that the constitutional subsection merely reflects the traditional definition of "local improvements" and recognizes that proper assessments for local improvements are not property taxes subject to the limits of that section. The city maintains that the inquiry into whether the assessment was for a "local improvement" is not an inquiry into the "effect and limits of section 11b, Article XI of the Oregon Constitution on taxes, fees, charges and assessments of units of government" but, rather, is merely an ordinary challenge to a local improvement. Therefore, the city concludes that the exclusivity provision of ORS 305.580(1) does not apply, and petitioner has a right to seek a writ of review under ORS 223.401 and ORS 34.010 to 34.100. This court's determination of whether the Tax Court had jurisdiction in this case is intertwined with petitioner's arguments about the merits of her challenge. Petitioner argues, in effect, that Article XI, section 11b, changes the statutory definition of "local improvement" contained in ORS chapter 223 and illuminated by this court's case law. Therefore, a local improvement that also confers a general benefit should be treated like a property tax, subject to challenge in the Tax Court under Article XI, section 11b. However, if Article XI, section 11b, does not alter the statutory definition of "local improvement," that constitutional provision simply exempts from coverage all assessments under ORS chapter 223. If that is the case, petitioner's challenge is not about the limits and effects of Article XI, section 11b, at all, but instead is merely a challenge to a local improvement assessment under the statute. Under that scenario, ORS 223.401 provides a mechanism for review of a local improvement assessment, and the requirements of due process are met. In other words, the jurisdictional issue depends upon whether a "local improvement" or a "tax on property" is being challenged. For the reasons that follow, we conclude that petitioner had an adequate avenue for review and that the 10-taxpayer requirement does not contravene the commands of due process in this context. Article XI, section 11b, places limits upon "taxes imposed upon any property." A "tax" is defined to be "any charge imposed by a governmental unit upon property or upon a property owner as a direct consequence of ownership of that property except incurred charges and assessments for local improvements." Or Const., Art XI, § 11b(2)(b). (Emphasis added.) That section further defines a "local improvement" to be: Petitioner argues that the assessment for the street improvement in front of her property was not a "local improvement" for the purposes of Article XI, section 11b, and, thus, that it was a tax subject to the limitations imposed by that section. She asserts that the city's assessment did not provide "a special benefit only to specific properties" in the local improvement district. She contends that, because the street improvement project also provided a general benefit to the community, it could not have been a local improvement for the purposes of Article XI, section 11b, because it did not benefit only the properties within the local improvement district. Thus, we must determine whether the voters, in enacting Article XI, section 11b, intended to exclude from coverage any local improvement that also might provide a general benefit to the community. See Roseburg School Dist. v. City of Roseburg, 316 Or. 374, 378, 851 P.2d 595 (1993) (explaining method *348 of analysis for interpreting constitutional provisions initiated by the voters). In ascertaining the intent of the voters, this court first looks to the text and context of the provision. See id. ("The best evidence of the voters' intent is the text of the provision itself."). In this case, the parties provide competing interpretations of the text of the provision. Petitioner argues that the requirement that local improvements provide "a special benefit only to specific properties" means that the local improvement must provide only a special benefit and no general benefit to the community. On the other hand, the city argues that the word "only" modifies "specific properties," not "special benefit." In other words, the city argues that the fact that a general benefit exists does not negate the possibility that the improvement provides a special benefit only to specific properties. As this court has said before, "[i]n examining the text and context to determine the meaning of a constitutional provision adopted by the people by initiative or referendum, this court typically gives words of common usage their plain, natural, and ordinary meaning." Coultas v. City of Sutherlin, 318 Or. 584, 588-89, 871 P.2d 465 (1994). If, however, words used in a provision enacted by initiative or referendum have a well-defined legal meaning, we will give the words that meaning in construing the provision. Cf. Gaston v. Parsons, 318 Or. 247, 253, 864 P.2d 1319 (1994) ("[W]ords in a statute that have a well-defined legal meaning are to be given that meaning in construing the statute."); King v. City of Portland, 2 Or. 146, 154-55 (1865) ("If, when our Constitution was made, certain words or sentences had obtained a certain signification or force, either by common usage or legal decision, it must be presumed, if found in that instrument that they bear the established meaning, unless plainly from the context or other provision, a different meaning is certainly intended."). This is a case in which the voter-initiated provision used terms that have both legal and historical meanings. The term "special benefit," as well as the term "local improvement," are terms of art that have specific, legal meanings. In the fall of 1990, at the time the voters enacted Article XI, section 11b, statutory procedures were in place that allowed local governments to make assessments for local improvements. ORS 223.389 (1989) provided, in part, that "[t]he council may prescribe by ordinance or resolution the procedure to be followed in making local assessments for benefits from a local improvement upon the lots which have been benefited by all or part of the improvement." That same statute further provided that "[the council] shall determine the amount of assessment to be charged against each lot within the district, according to the special and peculiar benefits accruing thereto from the improvement, and shall by ordinance spread the assessments." (Emphasis added.) Thus, at the time of the election, it was established law that an assessment for a local improvement was based upon the "special and peculiar benefit" to the subject property. In other words, when the drafters of the measure chose to define the exemptions for "local improvements" in terms of the "special benefits" to the subject property, they used the same language that the statute setting forth the scheme for establishing local improvement districts had used for more than 40 years. Specifically, that statute never had been read to invalidate a local improvement because it also confers some general benefit upon the community.[5] *349 The coexistence of local and general benefits arising from the same project also was well-established in the case law of this court at the time the voters enacted Article XI, section 11b. In Stanley v. City of Salem, 247 Or. 60, 64, 427 P.2d 406 (1967), this court summarized: "This court has decided many special-assessment cases. The law has by now become fairly settled. Special assessments can be levied upon property to the extent that property is specially benefited by the improvement for which the levy is assessed." The idea that local improvements are tied to the "special benefits" accruing to the property owners is a well-settled one. Stanley further makes it clear that the concept of special benefits does not require that the improvements at issue provide no general benefits to the community: "* * * When a local improvement produces a special benefit, other than the benefit received by the general public, to certain land in the vicinity of the improvement, the mere fact that it also results in benefit to the general public, or even the fact that its immediate occasion or purpose was the creation of the general improvement project of which it is a part, does not deprive it of its character as a local improvement nor prevent the imposition of at least a portion of its cost as a special assessment against such land. * * *" Id. at 65 [427 P.2d 406] (quoting 2 Antieau, Municipal Corporation Law 291-92, § 14.01 (1965)). (Internal quotation marks omitted.) From the foregoing discussion, it is clear that this court considered whether an improvement provided special benefits to the subject property in determining whether to assess a landowner for the value of the local improvement. It is equally clear, however, that a determination that an improvement conferred a "special benefit" was in no way dependent upon whether the improvement also conferred a general benefit. See also State Highway Com. v. Bailey et al, 212 Or. 261, 300, 319 P.2d 906 (1957) (quoting Hempstead v. Salt Lake City, 32 Utah 261, 90 P. 397 (1907)) ("In case the improvement made a large share or all of the property abutting thereon more accessible and convenient for use, then such benefits would not for that reason cease to be special simply because they were enjoyed by several or a large number of property owners in common."); Fisher et al. v. City of Astoria, 126 Or. 268, 277, 269 P. 853 (1928) ("[A local improvement] may incidentally benefit the entire city; that wholesome effect will not destroy its use as the foundation for a local assessment * * *."). The drafters of Article XI, section 11b, chose words that had definite legal and historical meanings. The provision creates an exemption for "local improvements" and defines that exemption by reference to a "special benefit." It is clear that, at the time that the voters enacted Article XI, section 11b, local improvements included projects that also carried with them general benefits to the community. We conclude that the continued use of those terms carries forward the same meaning as before the passage of Measure 5. Petitioner argues that, notwithstanding the drafters' choice of words, the insertion of the word "only" in Article XI, section 11b(2)(d), alters entirely the meaning of "special benefit." She contends that the insertion of that word means that, if an improvement provides a general benefit as well as a special benefit, then the project is no longer a "local improvement." We find that argument unpersuasive. The insertion of the word "only" does not change the fact that the drafters chose terms that never have been read to require that a local improvement confer exclusively local benefits. Moreover, the drafters of the text inserted the word "only" before "specific properties" rather than before "special benefits." Thus, petitioner's argument that the voters meant that assessments providing only special benefits were exempt from the constraints of Article XI, section 11b, is not a natural reading of the text. It appears that the drafters used the words "only to specific properties" to reiterate the meaning of a *350 special benefit"benefits [that in fact] add anything to the convenience, accessibility, and use of the property as contra-distinguished from benefits arising incidentally out of the improvement and enjoyed by the public generally." State Highway Com. v. Bailey, 212 Or. at 300, 319 P.2d 906. (Internal quotation marks omitted.) Although we find the city's, and the Tax Court's, reading of the constitutional provision to be more true to the text than petitioner's reading, we agree that the text is not absolutely clear. In addition, there is nothing in the context of the provision that illuminates our reading of Article XI, section 11b.[6] Because the voters' intent is not entirely clear from the text and context of Article XI, section 11b, we now turn to the history of that provision. See Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or. 551, 559, 871 P.2d 106 (1994) (describing method of analysis). The history of an initiated provision includes information provided to the voters in the Voters' Pamphlet. Id. at 560 n. 8, 871 P.2d 106. In this case, the committee appointed to provide impartial explanations of the ballot measures for the Voters' Pamphlet summarized the relevant part of the measure: "The limits in this measure DO NOT APPLY to * * * assessments for capital construction that provides [sic] a special benefit to the property and that can be paid off over at least ten years[.]" 1990 General Election Voters' Pamphlet 33. That explanation did not suggest to voters that an assessment for a local improvement that also provides general benefits would be included under the property tax limitations of Article XI, section 11b. In fact, the committee entirely dropped the word "only" from the Voters' Pamphlet and explained that an assessment for any capital project providing a special benefit is exempt from coverage. That explanation echoes the Tax Court's reading of the provisionthat local improvements that confer special benefits on particular property are exempt from the limitations contained in the measure, regardless of whether the improvements also provide general benefits. Nothing else in the Voters' Pamphlet, or any other history of the enactment, illuminates our reading of the exemption. Taking into consideration the text, context, and history of Article XI, section 11b, it is clear that the voters intended to exclude all proper assessments for local improvements from the property tax restrictions contained in that provision. As a result, petitioner's argument that this is a challenge to the limits and effects of Article XI, section 11b, is misplaced. Petitioner's challenge boils down to nothing more than an ordinary challenge to a local improvement.[7] Petitioner could *351 have brought that challenge before the circuit court upon a writ of review pursuant to ORS 223.401. In sum, petitioner had an adequate means of review for her challenge, and the 10-taxpayer requirement does not violate due process in this context.[8] Accordingly, the Tax Court erred in severing the 10-taxpayer requirement from ORS 305.583(1) in this case, and that court did not have jurisdiction to hear this challenge under that statute. The decision of the Tax Court is vacated. This case is remanded to that court with instructions to dismiss for lack of jurisdiction. [1] Article XI, section 11b, imposes limitations upon the assessment of "property taxes." That section defines a tax on property to be "any charge imposed by a governmental unit upon property or upon a property owner as a direct consequence of ownership of that property except incurred charges and assessments for local improvements." Or. Const., Art. XI, § 11b(2)(b). This section was created by an initiative petition adopted by the people on November 6, 1990, known as Ballot Measure 5. [2] The Due Process Clause of the Fourteenth Amendment to the Constitution of the United States provides: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const., Amend. XIV, § 1. [3] The Tax Court based its decision on Welch v. Unified Sewerage Agency, 12 OTR 359, 1992 WL 392680 (1992). In Welch, the Tax Court held that the 10-taxpayer requirement of ORS 305.583(1) violated both Article I, section 10, of the Oregon Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Id. at 366. However, in this case, the Tax Court reconsidered Welch and reversed its decision that the 10-taxpayer requirement is unconstitutional under the Oregon Constitution. Ester, 13 OTR at 106. Consequently, we consider only the federal constitutional issue here. [4] ORS 223.401 provides, in part: "[O]wners of any property against which an assessment for local improvements has been imposed may seek a review thereof under the provisions of ORS 34.010 to 34.100." ORS 34.010 to 34.100 provide the procedure for issuing a writ of review. Specifically, ORS 34.040 (1993) provided: "The writ shall be allowed in all cases where the inferior court including a district court, officer, or tribunal other than an agency * * * in the exercise of judicial or quasi-judicial functions appears to have: "(1) Exceeded its jurisdiction; "(2) Failed to follow the procedure applicable to the matter before it; "(3) Made a finding or order not supported by substantial evidence in the whole record; "(4) Improperly construed the applicable law; or "(5) Rendered a decision that is unconstitutional, to the injury of some substantial interest of the plaintiff, and not otherwise. The fact that the right of appeal exists is no bar to the issuance of the writ." The 1995 legislature amended ORS 34.040, effective September 9, 1995. Or.Laws, ch. 79, § 12. The amendment does not change our analysis in this case. [5] The 1991 legislature amended ORS 223.389 to bring the statute in conformance with Article XI, section 11b. See Or.Laws, ch. 902, § 37 (1991). In the same session, the legislature also enacted ORS 310.140, setting forth its interpretation of the terms used in Article XI, section 11b. In doing so, the legislature stated that Measure 5 "use[d] terms which do not have established legal meanings and require definition by the Legislative Assembly." See Or.Laws, ch. 459, § 210 (1991). However, the legislature used essentially the same language to define both "local improvement" and "special benefit" that had already existed in both statutes and case law prior to the passage of Measure 5. For example, according to ORS 310.140(2), "`special benefit only to specific properties' shall have the same meaning as `special and peculiar benefit' as that term is used in ORS 223.389." In other words, in defining "local improvement" and "special benefit" for the purpose of Article XI, section 11b, the legislature used their established, legal meanings. Although it is clear that a 1991 legislative enactment is not evidence of the voters' intent in 1990, the nature of the 1991 changes indicates that, in the legislature's view, Measure 5 did not substantively change the longstanding definition of local improvement, nor the process by which a local improvement is assessed. [6] Petitioner argues in her reply brief: "Under the plain language of the Constitution, as now amended, the law changed. The text and context of the provision are sufficient. The legislative intention is patent. * * * Given the clear thrust and intention of Measure 5 to limit taxes imposed on property, it is an exercise in bureaucratic denial or delusion for the City to contend that the voters intended no change in the law of special assessments." We are not persuaded by that argument. We agree that the context of the statute at issue makes clear that the voters intended to limit property taxes severely. It does not follow, however, that the voters intended to eliminate all methods of raising revenue, particularly those that are explicitly exempted from coverage under Article XI, section 11b. As this court stated in Roseburg School Dist. v. City of Roseburg, 316 Or. 374, 381, 851 P.2d 595 (1993): "By its terms, Article XI, section 11b, is a limitation on only those certain forms of revenue generation that fall within its definitions. It is not a limitation on other forms of revenue generation that do not fall within its definitions. It is clear that the constitutional provision defines those charges that it limits and, by its terms, excludes from its limits other forms of revenue generation, including income taxes, sales taxes, and any other charges not imposed upon property or upon property owners as a direct consequence of property ownership." In other words, the contextual provisions that severely limit a local government's ability to impose property taxes do not affect how we consider methods of raising revenue that fall outside those limits. [7] Because petitioner's challenge to the meaning of "local improvement" in Article XI, section 11b, is a case of first impression, we do not mean to suggest that petitioner improperly brought this challenge under the subjects covered in ORS 305.583. We merely conclude that, because we now hold that the term "local improvement" refers to a local improvement authorized under ORS chapter 223, petitioner had an adequate opportunity to challenge the assessment under ORS 223.401 and ORS 34.010 to 34.040; thus, the 10-taxpayer requirement does not contravene the commands of due process. [8] We do not decide whether the 10-taxpayer requirement violates due process in other contexts in which a taxpayer does not have another avenue for bringing a challenge.

38af3fc3cdf0e7248e3593f30dff37b4efb2a9b336b214a5191a3f928882341e

1995-09-28T00:00:00Z

57fd9db2-b452-4d4b-8562-f397c3dac840

State v. Claxton

321 Or. 377, 899 P.2d 690

oregon

Oregon Supreme Court

899 P.2d 690 (1995) 321 Or. 377 STATE of Oregon, Respondent on Review, v. Frank Cornelius CLAXTON, Petitioner on Review. CC C90-11-36228; CA A70528; SC S41180. Supreme Court of Oregon. Submitted on Petition for Review March 23, 1994. Decided July 20, 1995. Steven V. Humber, Deputy Public Defender, Salem, filed the petition for petitioner on review. With him on the petition was Sally L. Avera, Public Defender. No appearance contra. Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.[**] The petition for review is allowed. The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for reconsideration in the light of *691 State v. Dominguez-Martinez, 321 Or. 206, 895 P.2d 306 (1995). [**] Durham, J., did not participate in this decision.

acf677f84fc31351005cdd7ea07a541ea0ed9b271debe7634af156dc4b99221f

1995-07-20T00:00:00Z

bd5a55b5-aba6-49c8-a06a-f6dde7abbd21

In Re Conduct of Jeffery

321 Or. 360, 898 P.2d 752

oregon

Oregon Supreme Court

898 P.2d 752 (1995) 321 Or. 360 In re Complaint as to the CONDUCT OF E. Jeff JEFFERY, Accused. OSB 92-156, 93-90, 94-27; SC S42185. Supreme Court of Oregon, In Banc. Submitted on Record and Brief June 7, 1995. Decided July 20, 1995. Mary A. Cooper, Asst. Disciplinary Counsel, Lake Oswego, filed the brief for the Oregon State Bar. E. Jeff Jeffery, Coquille, waived appearance. PER CURIAM. This is a lawyer disciplinary proceeding. The Oregon State Bar (Bar) charges that the accused violated DR 5-105(E)[1] by simultaneously *753 representing two co-defendants in a criminal case, whose interests were in actual or likely conflict; DR 5-101(A)[2] by continuing to represent a criminal defendant after it was alleged that the accused himself had participated in the same drug transaction as the client; DR 7-104(A)(2)[3] by providing legal advice to an unrepresented person whose interests were adverse to those of his client; and DR 1-102(A)(4)[4] by threatening to refuse to put on a defense for a client in a criminal case, for the purpose of creating reversible error on appeal or through post-conviction relief. A trial panel of the Disciplinary Board found the accused guilty of the foregoing charges.[5] The panel suspended the accused for a period of six months, with four months of that total suspended on two conditions: that the accused obtain six hours of ethics-related credit under the Bar's program of continuing legal education and that he pass the professional responsibility portion of the bar examination. Review by this court is automatic under BR 10.1, because the length of the suspension is in excess of 60 days. This court reviews the record de novo. ORS 9.536(3). The Bar has the burden of proving misconduct by clear and convincing evidence. BR 5.2. We find the accused guilty of all four charges listed above and suspend him from the practice of law for nine months. A. First Cause of ComplaintDual Representation of Sharpe and Scheirman. On October 4, 1991, Sharpe was indicted. The indictment charged that, in August 1991, Sharpe had conspired with Ward and Scheirman to deliver methamphetamine. Scheirman was indicted on the same charges. Shortly thereafter, Sharpe and Scheirman hired the accused to represent them. Several times between October 1991 and February 1992, the district attorney and the circuit court judge discussed, in court while the accused was present, the possibility that the accused had a conflict of interest. The accused disagreed and did not withdraw from either representation. The district attorney moved to disqualify the accused from representing Scheirman, but the motion was denied. At some point between October 1991 and February 1992, the district attorney conveyed to the accused a plea offer intended for Scheirman. Unrelated drug charges were pending against Scheirman, and the district attorney said that Scheirman would be offered favorable terms in that matter if he provided information concerning Sharpe's role in the August 1991 drug transaction. The accused never conveyed that offer to Scheirman, who later was convicted in the unrelated case. On February 21, 1992, the district attorney dismissed the indictments against both Sharpe and Scheirman, relating to the August *754 1991 drug transaction. Sharpe was reindicted in March 1992. Scheirman never was reindicted. The accused continued to represent Sharpe. On February 24, 1992, Sharpe and Scheirman signed a document stating that they waived any actual or implied conflict regarding the accused's dual representation of them. The document described warnings that the accused had given them about the dangers of dual representation and strategies to avoid an actual conflict. B. Second Cause of ComplaintRepresentation of Sharpe During Investigation of Accused. Ward, a police informant, asserted that the accused had been present at and had participated in the August 1991 drug transaction, along with Sharpe and Scheirman, and there was some corroboration to support the accusation. On February 21, 1992, a representative of the district attorney's office told the accused that Ward was prepared to testify to the accused's alleged involvement. The accused denied the allegation and continued to represent Sharpe in connection with the conspiracy charges arising out of the August 1991 drug transaction. Concerned that Ward's allegation might later provide Sharpe and Scheirman with a ground for post-conviction relief, the district attorney moved to postpone their trial, which was set for February 25, 1992. That motion was denied. Thereupon, the indictments were dismissed. Ward's accusation against the accused was investigated by representatives of the Douglas County District Attorney's Office and the Oregon State Police, beginning on February 24, 1992. The accused authorized the investigators to interview Sharpe, who was still his client. Before the investigators contacted Sharpe, he called them to offer an unrecorded statement. An investigator interviewed Sharpe, outside the presence of the accused. Sharpe denied that the accused was present at the August 1991 drug transaction but admitted that he had been. Sharpe's admissions gutted the entrapment defense that the accused had raised on Sharpe's behalf. The investigators concluded that there was not enough evidence to indict the accused and ended their investigation of him on March 18, 1992. Sharpe was reindicted on March 26, 1992, and was convicted in November 1992. C. Third Cause of ComplaintRepresentation of Durbin. On November 13, 1992, the accused undertook to represent Durbin. Durbin and Karr (the woman with whom Durbin lived) had been arrested in October 1992 on drug charges. The accused received a copy of the police report soon after beginning the representation. According to the police report, Karr had made several incriminating statements concerning Durbin's drug activities. The accused recognized early in the representation that Durbin's biggest problem was that Karr had implicated him. The accused also knew that Durbin had been convicted on October 28, 1992, of assaulting Karr, an incident that had occurred before the October 1992 arrest on drug charges. On November 23, 1992, Durbin again was arrested on drug charges. Karr had called the police and told them that they had overlooked a large amount of marijuana that was still hidden in the bushes and that Durbin was going to dig it up. Officers were dispatched to the described location and saw Durbin loading something into his truck. The officers stopped him and found approximately two pounds of marijuana. The police report described Karr's part in precipitating this arrest. The accused did not immediately inform Durbin that Karr was cooperating with the police. Durbin wanted to assist Karr and asked the accused to help her negotiate a plea agreement with respect to the October 1992 arrest. The accused did so. He approached the district attorney about plea offers for both Durbin and Karr and reported back offers of a 20-month prison term for Durbin and a 60-day jail term for Karr. The accused advised them to accept the offers and suggested that Durbin speak in court on Karr's behalf, so that she could receive a *755 lighter sentence to avoid separation from her child. In addition to inquiring on Karr's behalf and passing along the district attorney's plea offer, the accused answered Karr's questions concerning the maximum sentences and fines for the relevant crimes. Karr wrote in a letter to the Bar that she had represented herself and that the accused had told her that he could not represent her because of his representation of Durbin. She also wrote that she "was given only free legal advice from [the accused]." Durbin later became concerned that the accused was acting in Karr's interest more than in his, and he fired the accused in December 1992. D. Fourth Cause of ComplaintRepresentation of Clark. A criminal trial was scheduled for October 6, 1993, in Coos County District Court, before Judge Gillespie. The accused represented the defendant, Clark. On the day of trial, the judge asked whether the parties were ready to proceed. The accused said that the defense was not ready and made several motions, seeking to postpone the trial and to withdraw Clark's waiver of a jury trial. The judge denied the motions. The accused also had asked the judge to recuse himself, on the day before trial, and the judge had declined to do so. The accused believed that the judge would be unfair to Clark if the trial went forward. The judge and the accused then engaged in the following colloquy: Judge Gillespie postponed Clark's trial and appointed new defense counsel for her. When the accused undertook to represent Sharpe and Scheirman, who were accused of being co-conspirators in a drug transaction, there was a likely conflict of interest. Each client had a potential interest in convincing the trier of fact that he was less culpable than the other. Each had a potential interest in obtaining a favorable plea agreement in exchange for testifying against the other. In those circumstances, a likely conflict of interest existed. See In re O'Neal, 297 Or. 258, 260-66, 683 P.2d 1352 (1984) (lawyer had a potential conflict when representing co-defendants in a criminal case, even when he tried to limit the representation to negotiating pleas for them, because of the inevitable comparisons between the co-defendants and the potential differences in their situations). In the face of a likely conflict, the accused failed to give a full disclosure. The document signed by Sharpe and Scheirman fell short in substance, because it did not contain advice to seek independent legal advice, and it fell short in form, because the written consent was not obtained at the time the accused undertook the dual representation. See DR 10-101(B) (defining "full disclosure"); see also In re Altstatt, 321 Or. 324, 330, 897 P.2d 1164 (1995) (When the accused was *758 aware that a possible conflict of interest existed at the time the accused undertook to representation of clients, and the accused did not "contemporaneously confirm any of his [oral] disclosures [of that potential conflict] in writing," the accused failed to make a full disclosure, as required by DR 10-101(B).). The likely conflict ripened into an actual conflict when the district attorney offered to reduce charges in the unrelated case against Scheirman, in exchange for Scheirman's testimony against Sharpe in the case in which they were co-defendants. At that time, the accused owed a duty to Scheirman to advise him of the possible benefits of the proposal. Contemporaneously, however, the accused owed an opposing duty to Sharpe, to try to minimize the consequences of the criminal charge pending against him. Such a situation involves an actual conflict of interest. See In re Porter, 283 Or. 517, 524, 584 P.2d 744 (1978) (actual conflict of interest occurred when lawyer undertook to represent 14 criminal co-defendants, because they had differing interests that may have required the lawyer "to subvert the interests of one or more of the group, as individual clients, to that of the group"). We conclude that the accused violated DR 5-105(E) as charged in the First Cause of Complaint. B. Second Cause of Complaint. We assume, in our discussion, that the accused was innocent of the charge of having participated in the August 1991 drug transaction with Sharpe and Scheirman. That does not mean, however, that the accusation, which was being investigated actively by law enforcement authorities between February 24 and March 18, 1992, did not affect the accused's representation of Sharpe. During the period of the investigation of the accused, the accused had a strong personal interest in being exonerated, an interest in his liberty and his good name. Additionally, the accused had a financial interest in avoiding the payment of legal fees to defend a criminal charge and, potentially, to pay a fine or costs. The exercise of the accused's professional judgment on Sharpe's behalf reasonably may have been affected by those interests of the accused, from the time he learned of Ward's accusation on February 21, 1992. Moreover, the accused's professional judgment was in fact affected when he permitted a special investigator to interview Sharpe without the benefit of counsel, in order to forward his own interests. The accused allowed the special investigator to question Sharpe outside the presence of his counsel, the accused. See DR 7-104(A)(1) (a lawyer or that lawyer's agent may not contact a represented party without consent of the represented party's lawyer). During that interview, Sharpe made incriminating statements that made his previously asserted entrapment defense no longer viable. In this situation, the accused's professional judgment on behalf of Sharpe was clouded. We conclude that the accused violated DR 5-101(A) as charged in the Second Cause of Complaint. Karr's interests were reasonably likely to conflict with, and in fact did conflict with, the interests of Durbin, the accused's client, throughout the accused's representation of Durbin. The accused knew of that adversity of interest. For example, he knew that Karr had made statements to police, implicating Durbin in an illegal drug transaction, and he knew that Durbin had been convicted of assaulting Karr. Karr was not represented by other legal counsel. What the accused did on Karr's behalf amounted to legal representation, although he steadfastly denies the label. The accused solicited the district attorney's office for a plea offer for Karr, as well as for Durbin. He urged Karr to accept the offer given and relayed her acceptance to the district attorney's office. He answered Karr's questions about maximum sentences and fines for relevant crimes. In short, the accused advised an unrepresented party with interests adverse to those of his client. *759 We conclude that the accused violated DR 7-104(A)(2) as charged in the third cause of complaint. In order to prove that a lawyer has violated DR 1-102(A)(4), the Bar must prove that the lawyer either has engaged in repeated conduct causing some harm to the administration of justice or has performed a single act causing substantial harm to the administration of justice. In re Haws, 310 Or. 741, 748, 801 P.2d 818 (1990). "Administration of justice" includes both the procedural functioning of a tribunal and the substantive interests of parties to the proceeding. Id. at 747, 801 P.2d 818. A lawyer's conduct could violate the rule if it causes prejudice to either of those components of the administration of justice. Ibid. Here, the accused performed a single act causing substantial harm to the administration of justice. On the day set for a criminal trial, the accused threatened to refuse to represent his client responsibly, for the avowed purpose of creating reversible error. Although the accused reduced his absolute threat to a somewhat ambiguous threat, he declined to disavow or withdraw the threat and, indeed, told the trial court that he had advised his client that it was "quite likely" that the accused would be held in contempt for his planned behavior. The substantial harm caused by the accused's act has two components. The first component is harm to the orderly process of the courts generally. The accused tried to force the court to rule in his favor by threatening to refuse to cooperate, rather than by using appropriate avenues for relief, such as making a record for appeal. The act of the accused thus deprived the court of the ability to control the case and manage the courtroom. As Judge Gillespie aptly testified: "* * * * * "* * * I rule against lawyers all the time. I mean, that's part of my job. I rule in favor of some and I rule against many. * * * The second harm in this case was specific to the procedural functioning of the Clark trial. A continuance was required. Additionally, a new lawyer had to be appointed for Clark, and the state had to prepare for trial again. Thus, both time and resources were wasted. We conclude that the accused violated DR 1-102(A)(4) as charged in the fourth cause of complaint. This court refers to the ABA Standards for Imposing Lawyer Sanctions (ABA Standards) for guidance in deciding on an appropriate sanction in a lawyer discipline case. In re Haws, 310 Or. at 753, 801 P.2d 818. We consider the duty violated, the mental state involved, the injury that resulted, and any aggravating or mitigating circumstances. Here, the accused violated duties owed to his clients to avoid conflicts of interest, both as to the interests of other clients and as to his own interests. ABA Standard 4.3. He also violated a duty owed to the legal system by abusing the legal process. ABA Standard 6.2. The accused acted knowingly in representing clients with conflicting interests. See ABA Standards at 7 (defining "knowledge" as "conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective" to achieve a particular result). He acted intentionally in threatening to create reversible error if a trial judge did not grant his motions. See ABA Standards at 7 (defining *760 "intent" as "the conscious objective or purpose to accomplish a particular result"). In this case, actual injuries occurred to clients of the accused. Scheirman lost the opportunity to consider, and perhaps to accept, a plea agreement. Sharpe's interests were harmed when he was permitted to be questioned without counsel, resulting in his making self-incriminating statements. In addition, actual harm resulted in the Clark matter in that the accused's misconduct caused the trial court to postpone Clark's trial and to appoint new counsel, wasting both time and resources. Before considering aggravating and mitigating factors, the ABA Standards provide that suspension generally is appropriate "when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to the client," ABA Standard 4.32, and when a lawyer "causes interference or potential interference with a legal proceeding," ABA Standard 6.22. There are several aggravating factors present. The accused was the recipient of prior disciplinary action (two previous letters of admonition[6]), ABA Standard 9.22(a); he engaged in a pattern of misconduct, involving three separate conflicts of interest, id. at (c); he violated multiple rules and is guilty of multiple offenses, id. at (d); and he had substantial experience in the practice of law, id. at (i). This court has suspended lawyers for five weeks for violations of DR 1-102(A)(4) involving conduct somewhat similar to the accused's in the Clark matter. See In re Smith, 316 Or. 55, 61-62, 848 P.2d 612 (1993) (lawyer threatened to sue an independent medical examiner for an unfavorable opinion in a workers' compensation case, before the examination had occurred); In re Rochat, 295 Or. 533, 540, 668 P.2d 376 (1983) (lawyer harassed court personnel in an attempt to secure court appointments to represent indigent defendants). In this case, however, the conduct of the accused was more fundamentally harmful to the administration of justice than was the conduct of those lawyers. The accused aggressively pursued an inappropriate confrontation with a trial judge, in open court, that resulted in a needless postponement of a criminal trial. This court views such behavior with the utmost seriousness. This court also has stated that one "violation of the conflicts rule * * * would justify a 30-day suspension." See In re Hockett, 303 Or. 150, 164, 734 P.2d 877 (1987) (lawyer represented two men in the formation and maintenance of a corporation, and simultaneously represented those men's wives in marriage dissolution proceedings). In this case, however, the conflicts of interest were several and egregious, and there also are aggravating factors with respect to those conflicts: the persistent nature of the accused's misconduct, the injuries sustained by his clients, and the presence of self-interest with respect to one violation. In the circumstances, a substantial period of suspension is called for. We conclude that a nine-month suspension is the appropriate sanction. We note that the trial panel stayed four months of a six-month suspension, if the accused received additional education and passed the professional responsibility portion of the bar examination. The trial panel did not explain, however, how those conditions relate to the accused's specific situation, and we do not believe that such conditions are appropriate in the circumstances. The accused is suspended from the practice of law for a period of nine months. [1] DR 5-105(E) states: "Except as provided in DR 5-105(F), a lawyer shall not represent multiple current clients in any matters when such representation would result in an actual or likely conflict." DR 5-105(F) provides: "A lawyer may represent multiple current clients in instances otherwise prohibited by DR 5-105(E) when such representation would not result in an actual conflict and when each client consents to the multiple representation after full disclosure." DR 10-101(B)(1) defines "full disclosure" as "an explanation sufficient to apprise the recipient of the potential adverse impact on the recipient, of the matter to which the recipient is asked to consent." Additionally, under DR 10-101(B)(2), "full disclosure" for the purpose of DR 5-105 includes "a recommendation that the recipient seek independent legal advice to determine if consent should be given and shall be contemporaneously confirmed in writing." [2] DR 5-101(A) provides in part: "Except with the consent of the lawyer's client after full disclosure, a lawyer shall not accept or continue employment if the exercise of the lawyer's professional judgment on behalf of the lawyer's client will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests." [3] DR 7-104(A)(2) provides: "(A) During the course of the lawyer's representation of a client, a lawyer shall not: "* * * * * (2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer's client." [4] DR 1-102(A)(4) provides that "[i]t is professional misconduct for a lawyer to * * * [e]ngage in conduct that is prejudicial to the administration of justice." [5] The trial panel found the accused not guilty of a second violation of DR 5-105(E). Neither party disagrees with that finding of not guilty, and we do not consider it further. [6] In 1986, Bar counsel advised the accused that the State Professional Responsibility Board (SPRB) was of the opinion that efforts by the accused to claim funds erroneously deposited into his bank account violated DR 1-102(A)(4). In 1987, Bar counsel advised the accused that the SPRB was of the opinion that a letter written by the accused threatened to press a criminal charge to obtain an advantage in a civil matter, in violation of DR 7-105(A). In neither instance was a formal disciplinary proceeding instituted.

610dc0059dc5403734ea5bd7bb4eaec4249b180cbb2e7285d7a4db129eb216b2

1995-07-20T00:00:00Z

bcff6d84-3cdb-4d31-a723-c24216452a0a

Holcomb v. Sunderland

321 Or. 99, 894 P.2d 457

oregon

Oregon Supreme Court

894 P.2d 457 (1995) 321 Or. 99 In the Matter of the Application of Marc Mealey Holcomb for a Writ of Habeas Corpus. Marc Mealey HOLCOMB, Plaintiff, v. Benjamin SUNDERLAND, Director of the Lane County Corrections Division of the Public Safety Department of Lane County, Oregon, and Robert McManus, Sheriff of Lane County, Defendants. SC S42212.[*] Supreme Court of Oregon, In Banc. Submitted on Petition for Writ of Habeas Corpus April 18, 1995. Decided May 12, 1995. *458 William P. Ray, Eugene, filed the petition and response memorandum on behalf of plaintiff. David B. Williams, Asst. County Counsel, Lane County Office of Legal Counsel, Eugene, filed a response memorandum on behalf of defendants. Timothy A. Sylwester, Asst. Atty. Gen., Salem, filed a response memorandum on behalf of amicus curiae State of Oregon. With him on the response were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. UNIS, Justice. On April 18, 1995, plaintiff petitioned this court for a writ of habeas corpus, asserting that he is entitled to be released from the Lane County jail, where he is serving 90 days pursuant to a judgment of the circuit court on a plea of guilty to the crime of assault in the fourth degree. That judgment placed him on probation to the court for five years and ordered, as a condition of that probation, that plaintiff serve 90 days in the Lane County jail. Judgment was entered on or about March 6, 1995, and plaintiff's anticipated release date is May 26, 1995. Relying on ORS 137.320(4) and related statutes, plaintiff asserts that the sheriff is obliged by law to credit him with time that he served in jail after arrest and before judgment. If that time were credited against his jail time, he currently would be entitled to release. Plaintiff also asserts that denial of credit for time served would violate his state and federal constitutional rights to equal privileges and immunities and equal protection, respectively.[1] Defendants and the state, which has appeared amicus curiae at the request of the court, assert that State v. McClure, 295 Or. 732, 670 P.2d 1009 (1983), controls the disposition of this case. They assert that McClure interpreted and applied the same statutes to the same basic facts to conclude that the statutes did not authorize credit for time served before judgment when jail time was *459 imposed as a condition of probation. Petitioner acknowledges that at one time McClure would have been dispositive of his claim, but contends that later revisions to the statutory structure surrounding the McClure decision should yield a different result now. Charles Frederick McClure was arrested on Christmas Day, 1981, for assaulting a police officer and resisting arrest. He then spent 49 days in the county jail, was released, and ultimately was found guilty at trial. The trial judge suspended imposition of sentence and placed McClure on probation for two years, conditioned on McClure's spending the first 90 days in jail. Having already spent 49 days in jail and having received no credit for it by the trial court, McClure appealed, seeking the credit. 295 Or. at 734, 670 P.2d 1009. McClure relied on ORS 137.320(4) and 137.390, which incorporated ORS 137.370 by reference.[2] ORS 137.320(4) provided: ORS 137.390 provided: ORS 137.370(2)(a) provided: After quoting those statutes, this court stated unequivocally: The court then distinguished McClure's situation from the situation in which McClure "clearly" would have been entitled to credit for the time that he had served in jail. In concluding that McClure had not "received a sentence of imprisonment," the court recognized two key facts: first, the trial judge "suspended imposition of defendant's sentence"; second, McClure had been placed on probation. Id. The court then made four points that pertained to those facts: (a) ORS 137.540(2)(a), relating to probation only, does not require that back time (time spent in jail after arrest and before judgment) be credited; (b) probation is not the same as "imposition of a sentence." This statement is supported by reference to ORS chapter 137, which "clearly separates" the two; (c) probation is an "alternative" to the imposition of a sentence, with citation to ORS 137.010 as support; (d) the statutes at issue had been amended several times and the legislature could have required credit if it had meant to. Id. at 735-36, 670 P.2d 1009. We examine each of those points in turn. First, plaintiff in this case was sentenced to probation, with jail time as a condition of that probation. Unlike in McClure, the imposition of sentence was not suspended. Second, McClure states that the statute authorizing probation, ORS 137.540(2)(a),[3] does not also expressly require that back time be credited. That statement is true, but has nominal import, *460 because little is proved by the fact that a statute on one subject is silent on another. Third, and most importantly, defendants and the state acknowledge that statutory revisions since McClure mean that it can no longer be said that probation is not a sentence or that probation is an alternative to a sentence. Presently, probation is a sentence. Accordingly, the core underpinning of McClure no longer exists. The 1989 and 1993 revisions to the sentencing statutes now make it clear that a judgment of probation is the imposition of a sentence. See, e.g., ORS 137.523 (providing procedures when "the judge sentences the defendant to confinement in a county jail as a condition of probation"); ORS 138.222 (dealing with appeals from a "sentence of probation"). Moreover, since the McClure decision, ORS 137.010, the statute on which the court relied for the assertion that probation is an alternative to the imposition of a sentence, has been amended in multiple respects. ORS 137.010 now stands for the contrary proposition, namely, that a judgment of probation is the imposition of a sentence. See, e.g., ORS 137.010(4) ("the court may also impose and execute a sentence of probation"). These statutory revisions have, therefore, changed the underlying law since McClure was decided. The last point relied on by the court in McClurepost-enactment legislative inactionarguably is contrary to the generally accepted means of determining legislative intent. The proper inquiry focuses on what the legislature intended at the time of enactment and discounts later events. See DeFazio v. WPPSS, 296 Or. 550, 561, 679 P.2d 1316 (1984) ("[t]he views legislators have of existing law may shed light on a new enactment, but is of no weight in interpreting a law enacted by their predecessors"). That is particularly true in this instance, when there was no apparent event (court decision or otherwise) before McClure to trigger express legislative consideration of the issue that the McClure court decided; nor was there any history relied on by the court in McClure to suggest that the legislature had ever considered the issue. In the ordinary case, when this court interprets a statute, that interpretation becomes part of the statute as if it were written into the law at the time of its enactment. See, e.g., State v. King, 316 Or. 437, 445, 852 P.2d 190 (1993); State v. Carmickle, 307 Or. 1, 16, 762 P.2d 290 (1988) (Gillette, J., dissenting) (prior to the 1989 and 1993 statutory revisions: adhering to McClure, despite a stated belief that it was incorrectly decided). In this case, however, all the stated bases for the decision in McClure either do not apply, are no longer correct because of later statutory revisions, or provide only marginal support for the conclusion. Under those circumstances, some reexamination of the prior statutory construction is appropriate. Although the text of ORS 137.320(4), 137.370(2)(a), and 137.390 has not changed since McClure, the statutory context for those provisions clearly has changed, and the court's reliance on the statutory context was essential to its decision in McClure. This court has posited that, at the first level of analysis, the court seeks to determine the intent of the legislature in enacting a statute by reference to the statute's text and its context. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Not only is the statutory context for the decision in McClure now different, but the McClure decision's textual emphasis on whether probation was a "sentence" excluded examination of another key term in the statutory text, whether a judgment of probation, with jail time as a condition, is a judgment of "imprisonment." We agree with the conclusion in McClure that, if a convicted defendant receives a judgment with a sentence of imprisonment, then the defendant "clearly" is entitled under the statutes to back time credit for the days spent in jail after arrest and before judgment. 295 Or. at 735, 670 P.2d 1009. We turn then to consider whether a sentence of probation, with jail time as a condition of probation, qualifies as a judgment of imprisonment for which back time credit must be afforded. ORS 137.320(4) provides that the sheriff shall execute a judgment of "imprisonment in *461 the county jail." The statute then obligates the sheriff to compute the time during which the defendant was "imprisoned after arrest and prior to the commencement of the term specified in the judgment." Having directed that this computation be made, the law then provides that "[s]uch time shall be credited towards the term of the sentence." This provision is consonant with ORS 137.390, which incorporates ORS 137.370 by reference, and which provides that computation of a "sentence of imprisonment in the county jail" shall include the "time that the person is confined by any authority after the arrest." By the terms of those statutes, "imprisonment" must include time spent in the county jail. That includes time spent before the term specified in the judgment and also time spent after the judgment. Also by the terms of ORS 137.320(4), read in context, the time spent "imprisoned" after arrest must be credited "towards the term of the sentence," which now includes a sentence of probation. Similarly, by the terms of ORS 137.390 and 137.370(2)(a), read in context, the time spent "confined by any authority after the arrest" must be credited towards the "term of confinement" when a person is subject to a "sentence of imprisonment in the county jail"which "sentence" now includes a "sentence" of probation. Based on the text and context of the pertinent statutory provisions, we conclude that plaintiff in this case is entitled to credit for the time that he served in the Lane County jail after arrest and before judgment. That judgment sentenced plaintiff to 90 days "imprisonment in the county jail," albeit as a condition of probation; the "term and termination" of a "sentence of imprisonment in the county jail" must credit the "time that the person is confined by any authority after the arrest." ORS 137.320(4); 137.390; 137.370(2)(a). Accordingly, a writ of habeas corpus shall issue forthwith. The Lane County Sheriff shall compute the time during which plaintiff was imprisoned after arrest and before commencement of the 90-day sentence of imprisonment in the county jail specified in the judgment. That time shall be credited towards the term and termination of the 90-day sentence of imprisonment. [*] Relating to Lane County CC XX-XX-XXXXX. [1] Our disposition of this case on statutory grounds means that we need not reach the constitutional issues. See Zockert v. Fanning, 310 Or. 514, 520, 800 P.2d 773 (1990) (stating principle). [2] Those statutes remain unchanged, except that the Corrections Division is now the Department of Corrections. [3] ORS 137.540(2)(a) provides: "In addition to the general conditions, the court may impose any special conditions of probation * * * including but not limited to, that the probationer shall: "(a) * * * be confined to the county jail * * * for a period not to exceed one year or one-half of the maximum period of the confinement that could be imposed for the offense for which the defendant is convicted, whichever is the lesser."

5c558576ce164080d45a2144de9eaa23844210cab65ab25b74f64f6fd4d04ada

1995-05-12T00:00:00Z

e6755fc5-9ae5-42ea-ba39-e1bf85f0858e

American Casualty Co. v. Corum

321 Or. 135, 894 P.2d 461

oregon

Oregon Supreme Court

894 P.2d 461 (1995) 321 Or. 135 AMERICAN CASUALTY COMPANY, a corporation, Petitioner on review/Respondent on review, v. Aaron T. CORUM; A.D.; Tuality Community Hospital, Inc., an Oregon non-profit corporation, Defendants, M.J.N., Respondent on review/Petitioner on Review, and Truck Insurance Exchange, a California Corporation, Respondent on Review. CC 9110-06813; CA A78835; SC S41978, S41979. Supreme Court of Oregon, In Banc. Submitted on Petitions for Review January 25, 1995. Decided May 18, 1995. Kim Jefferies of Wood Tatum Sanders & Murphy, Portland, filed the petition on behalf of petitioner on review/respondent on review American Cas. Co. Robert D. Bulkley, Jr. of Markowitz, Herbold, Glade & Mehlhaf, P.C., Portland, filed the petition on behalf of respondent on review/petitioner on review M.J.N. With him on the petition were Richard A. Kasson and Robert P. Stafford of Kasson and Associates, Tigard. *462 Thomas W. Brown of Cosgrave, Vergeer & Kester, Portland, filed a response brief on behalf of respondent on review Truck Ins. Exchange. The petitions for review are allowed. The decision of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for consideration in the light of Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80 (1994).

37c58403d8a40a47cca4c657237b1ac020d6a7cc815cfd949e9d2159abbbfd45

1995-05-18T00:00:00Z

380b6176-5f90-4552-ab00-d4b7d41edb39

In Re Altstatt

321 Or. 324, 897 P.2d 1164

oregon

Oregon Supreme Court

897 P.2d 1164 (1995) 321 Or. 324 In re Complaint as to the Conduct of Arthur P. ALTSTATT, Accused. OSB 92-17; SC S41565. Supreme Court of Oregon, In Banc. Argued and Submitted March 8, 1995. Decided July 7, 1995. *1165 Stephen R. Moore, Portland, argued the cause and filed the briefs on behalf of the accused. Lia Saroyan, Asst. Disciplinary Counsel, Oregon State Bar, Lake Oswego, argued the cause and filed a brief on behalf of the Oregon State Bar. PER CURIAM. In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) charged the accused with violating: Disciplinary Rule (DR) 5-101(A) (failing to make full disclosure of an actual or likely conflict of interest); DR 1-102(A)(4) (engaging in conduct prejudicial to the administration of justice); DR 2-106(A) (collecting an illegal fee); DR 7-106(A) (disregarding a rule of the court); and DR 7-102(A)(8) (knowingly engaging in illegal conduct or conduct contrary to a disciplinary rule). Before the commencement of the disciplinary hearing in front of the trial panel of the Disciplinary Board, the Bar withdrew the charge based on DR 7-106(A). After the disciplinary hearing, the trial panel found the accused guilty of violating DR 5-101(A), DR 1-102(A)(4), and DR 2-106(A), and not guilty of violating DR 7-102(A)(8). The decisions reached by the trial panel regarding DR 1-102(A)(4) and DR 2-106(A) were not based on the theory that the accused obtained attorney fees from an estate's assets without a prior court order in violation of ORS 116.183(1), which was the theory advanced by the Bar in the amended complaint and at trial. The trial panel's decisions were instead based on a finding that, at the time the accused obtained certain attorney fees from an estate, he had not earned them.[1] The trial panel imposed on the accused a nine-month suspension from the practice of law. The accused petitioned this court for review of (1) the trial panel's decision finding him guilty of violating DR 5-101(A), and (2) the sanction imposed by the trial panel. The Bar filed a brief in response, seeking to have the accused found guilty of violating DR 5-101(A), DR 1-102(A)(4), and DR 2-106(A) as pleaded and seeking an increase in the sanction imposed by the trial panel. The Bar does not seek review of the trial panel's finding of not guilty concerning DR 7-102(A)(8). *1166 We review de novo. ORS 9.536(3); Bar Rule of Procedure (BR) 10.6. The Bar has the burden of establishing a disciplinary violation by clear and convincing evidence. BR 5.2; In re Dinerman, 314 Or. 308, 311, 840 P.2d 50 (1992). We find the accused guilty of violating DR 5-101(A), DR 2-106(A), and DR 1-102(A)(4) and suspend him from the practice of law for a period of one year. The facts set forth below are established by clear and convincing evidence. On August 31, 1988, the accused executed an unsecured promissory note in favor of Larch Cummins, in which the accused agreed to repay a loan of $30,000 by August 31, 1989, together with interest at 10 percent per annum. The promissory note was the culmination of a series of loans made by Cummins to the accused that commenced in the spring of 1988, all of which were combined into the August 31, 1988, note. Cummins died on October 4, 1988. Cummins's will, which had been prepared by the accused, named two of Cummins's nieces, Wanda Hickson and Elsie Cooley, to serve as personal representatives. In addition to Hickson and Cooley, numerous persons were listed as devisees in Cummins's will. Before his death, Cummins had told Hickson and Cooley to hire the accused as the lawyer for the estate. On October 10, 1988, Hickson and Cooley met with the accused at Cummins's home. Hickson and Cooley advised the accused that neither had ever served as a personal representative. During that meeting, the accused explained the general nature of the Cummins estate, the duties of the personal representatives, their relationship to the lawyer for the estate, and the duties of a lawyer in probating an estate. The August 31, 1988, promissory note also was discussed at that meeting. The accused told Hickson and Cooley that "it would be hard for him owing money to the estate to also be [the] lawyer [for the estate], but [that] there was no reason why he could not [do so]." The accused also told Hickson and Cooley that there was no reason why he could not pay the note, because it was not due for another 10 months. The accused told Hickson and Cooley that, if they wished, they could consult with another lawyer before hiring him. No writing memorialized the accused's statements to Hickson and Cooley. Without seeking or obtaining advice from another lawyer, Hickson and Cooley hired the accused to probate the Cummins estate. On October 12, 1988, in response to a petition submitted by the accused, the Lane County Circuit Court issued an order admitting Cummins's will to probate and appointing Hickson and Cooley as co-personal representatives. On October 13,1988, less than 48 hours after he was retained, the accused requested $12,500 in fees from the personal representatives, submitting neither a billing nor an accounting to his clients, nor a petition for a partial award of attorney fees to the court. Not knowing that they could be held accountable to the court and the devisees of Cummins's estate, Hickson and Cooley promptly complied with the accused's request and paid him $12,500 from the estate's account. On December 15, 1988, the accused requested an additional $15,000 in fees from Hickson and Cooley. Again, Hickson and Cooley complied with the accused's request, drawing on funds of the estate, despite the fact that the accused presented no invoice or accounting and filed no petition in the probate court for a partial award of attorney fees. The accused made other similar requests for fees in February, April, June, and July of 1989. By July 1989, Hickson and Cooley had paid the accused $59,000 from funds of the estate. In August 1989, about two weeks before the due date on the promissory note, the accused asked Hickson and Cooley whether he could defer payment on the note until the estate closed.[2] The accused did not explain why he wanted to defer payment and did not advise Hickson and Cooley to seek independent counsel on that issue. Hickson and Cooley agreed to extend the due date on the promissory note for an indefinite period as long as the note was paid in full with accrued *1167 interest before the estate was closed. The terms of that agreement were not reduced to writing. The accused did not apprise Hickson and Cooley, orally or in writing, of the conflict created by the accused's continued status as a debtor in default to and lawyer for the estate. The accused filed the first annual accounting on or about April 13, 1990. After reviewing it, the probate court observed that the accused had received $59,000 from the estate without court approval.[3] The probate court also noticed that the accused had not paid his debt to the estate. At a show cause hearing, the probate court asked the accused about his debt to the estate and asked why the accused had taken fees from the estate without a court order. As to the debt, the accused advised the probate court that the personal representatives had agreed to extend the note. As to the fees, the accused told the court that the authority for his conduct "was provided so under the will."[4] The probate court held a second hearing on September 25, 1990. As of that date, the accused had made no payment of principal or interest on the debt, nor had he reimbursed or offered to reimburse the estate for the fees taken. By February 1991, the accused had made no payments of principal or interest on the note, although he had paid $2,200 from his own funds on behalf of the estate to the Internal Revenue Service. The probate court notified the Bar of the accused's conduct and issued an order prohibiting Hickson and Cooley from spending any more monies of the estate without court approval. On July 25, 1992, the State Professional Responsibility Board authorized prosecution of the accused, regarding the concerns raised by the probate court. In September 1992, after the Bar had instituted disciplinary proceedings, the accused owed the estate about $33,500 on the note. He then borrowed money from his parents and paid in full his debt on the note to the estate. When the disciplinary hearing commenced, the estate remained open, the accused had not filed a petition in the probate court for approval of the personal representatives' partial award of attorney fees to him or repaid to the estate the $59,000 that he had received in fees without court approval, and the accused continued to represent Hickson and Cooley in their capacities as personal representatives of Cummins's estate. DR 5-101(A) provides in part: The accused admits that he violated DR 5-101(A), but argues that his only error was in failing to "confirm [his] disclosures and [his clients'] consent in writing." The Bar contends that the accused never made the required disclosures, either orally or in writing. The concept of "full disclosure" is spelled out in the definitions section of the disciplinary rules. " `Full disclosure' means an explanation sufficient to apprise the recipient of the potential adverse impact on the recipient, of the matter to which the recipient is asked to consent." DR 10-101(B)(1). "`[F]ull disclosure' shall also include a recommendation that the recipient seek independent legal advice to determine if consent should be given *1168 and shall be contemporaneously confirmed in writing." DR 10-101(B)(2) (emphasis added). When the accused was employed, he knew that he owed the Cummins estate a significant amount of money. When the accused undertook to represent Hickson and Cooley in October 1988, he did not contemporaneously confirm any of his disclosures in writing, as required by DR 10-101(B)(2). The accused did not make full disclosure, as required by DR 5-101(A) and DR 10-101(B)(1). We conclude by clear and convincing evidence that the accused violated DR 5-101(A) in two separate respects. DR 2-106(A) provides that "[a] lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee." (Emphasis added.) Illegal conduct, for the purposes of the Code of Professional Responsibility, is not limited to criminal conduct, but includes conduct that is forbidden by statute. See In re Hockett, 303 Or. 150, 162, 734 P.2d 877 (1987) (holding that DR 7-102(A)(7), which prohibits conduct "the lawyer knows to be illegal," forbids "[a]dvising and assisting clients to engage in conduct forbidden by statute"). The accused admits that he received attorney fees from the Cummins estate without prior approval from the probate court, but denies that the law requires prior approval from the probate court. The accused asserts, therefore, that he did not collect an illegal fee within the meaning of DR 2-106(A). ORS 116.183(1) authorizes the allowance of attorney fees in a probate proceeding: In In re Snyder, 276 Or. 897, 559 P.2d 1273 (1976), this court discussed the propriety of a lawyer receiving attorney fees from an estate without a prior court order. Snyder was both the lawyer for and the personal representative of an estate. The final account revealed that, during the administration of the estate, Snyder had taken $5,200 in fees from the estate without obtaining prior court approval. The successor personal representative objected, among other things, to the amount claimed by Snyder for his fees as *1169 personal representative and lawyer. A trial court ordered repayment of a portion of those fees. On review, this court stated that "we do not approve of payment of attorney fees without a court order." Id. at 904, 559 P.2d 1273. Although Snyder was not charged by the Bar with collecting an illegal fee, the Snyder decision put lawyers on notice that it was improper for a lawyer to accept attorney fees from estate assets without a prior court order. In In re Coe, 302 Or. 553, 561, 731 P.2d 1028 (1987), Coe, acting as the personal representative for an estate and without court authorization, drew two checks payable to himself on estate funds as payment of attorney fees. In reviewing Coe's conduct, this court observed that, although ORS 116.183(1) did not "specifically state that it is the probate court whose `consideration' is required," it is that court, which by statute has the authority to make the allowance, that must consider the factors stated in the statute before awarding attorney fees to the estate lawyer. In re Coe, 302 Or. at 561-62, 731 P.2d 1028. Since Coe, this court has held that estate lawyers who take attorney fees from an estate without obtaining prior court approval engage in unethical conduct. See In re Devers, 317 Or. 261, 266, 855 P.2d 617 (1993) (lawyer licensed to practice law in both Oregon and Michigan who, while representing a personal representative in Michigan, collected a $2,775 fee from the heirs but did not disclose the fee to the probate court, violated DR 2-106(A)); In re Phelps, 306 Or. 508, 517, 760 P.2d 1331 (1988) (lawyer disbarred for, inter alia, retaining attorney fees "although he had not obtained authorization from the court as required by ORS 116.183(1)"); In re Weidner, 320 Or. 336, 338-39, 341, 883 P.2d 1293 (1994) (lawyer violated DR 2-106(A) when he collected attorney fees from an estate without applying to the probate court or obtaining an order from that court, as required by ORS 116.183).[5] The rule to be derived from those cases is that it is impermissible to collect attorney fees from an estate in probate without prior court approval. Any such attorney fee that is collected without approval is unlawful and, hence, an "illegal" fee. Therefore, the accused's receipt of the attorney fees without court approval in this case was the collection of an illegal fee and was unethical conduct under DR 2-106(A).[6] The accused also seeks to excuse his collection of attorney fees from the estate's assets without prior court approval by claiming that he was not aware that such approval was required by law. This court rejected a similar claim of ignorance in Weidner, 320 Or. at 340-41, 883 P.2d 1293, and we reject it here as well. We conclude that the Bar has established by clear and convincing evidence that the accused violated DR 2-106(A) when he collected attorney fees from the Cummins estate without first obtaining an order from the probate court, as required by ORS 116.183. DR 1-102(A)(4) provides that "[i]t is professional misconduct for a lawyer to * * * [e]ngage in conduct that is prejudicial to the administration of justice." A lawyer violates DR 1-102(A)(4) when the lawyer engages in conduct during the course of a judicial proceeding and the conduct causes or has the potential to cause harm or injury to either the procedural functioning of that proceeding or the substantive interest of a party to that proceeding. In re Haws, 310 Or. 741, 745-48, 801 P.2d 818 (1990). *1170 The Oregon legislature has conferred on probate courts a wide range of functions and responsibilities in overseeing the probate process, including the appointment and qualification of personal representatives, the administration, settlement, and distribution of estates of decedents, the construction of wills, and the supervision and discipline of personal representatives. ORS 111.085(1), (5), (6), and (8). Throughout the administrative process, probate courts retain jurisdiction over the decedent's property. From October 1988 through July 1989, the accused caused $59,000 in assets of the estate to be distributed to himself without obtaining an order from the court that was charged with overseeing the probate of the estate, as required by ORS 116.183(1). The accused's failure to apply to the probate court for an award of attorney fees also deprived the devisees and other interested parties of the notice of an attorney fee application to which they were entitled under UTCR 9.090(4).[7] The accused's conduct caused harm to the procedural functioning of the administration of the Cummins estate and violated DR 1-102(A)(4). See In re White, 311 Or. 573, 583-84, 815 P.2d 1257 (1991) (lawyer engaged in conduct prejudicial to the administration of justice and violated DR 1-102(A)(4) by filing repetitious claims, filing claims in different counties when that was not warranted, failing to change venue, failing to appear at hearings, and failing to prosecute cases); In re Haws, 310 Or. at 748, 801 P.2d 818 (stating that a repeated pattern of conduct that caused some harm to the administration of justice would violate DR 1-102(A)(4)). We conclude that the Bar has established by clear and convincing evidence that the accused violated DR 1-102(A)(4). We are guided by the ABA Model Standards for Imposing Lawyer Sanctions (1991) (ABA Standards) in determining the appropriate sanction. See, e.g., Weidner, 320 Or. at 350, 883 P.2d 1293 (using ABA Standards for guidance). Using those standards, we ask four questions in ascertaining an appropriate sanction: We answer each of those four questions in turn to determine the appropriate sanction for the accused's misconduct. First, the accused's misconduct violated the duties of loyalty, diligence, competence, and candor that he owed to his clients. It also violated ethical duties owed to the legal system. Lawyers must abide by the statutory and procedural rules that shape the administration of justice. The accused's misconduct violated both a statute (ORS 116.183(1)) and a uniform trial court rule (UTCR 9.090(4)). Second, as to the accused's mental state, we conclude that the accused acted intentionally when he failed to comply with the full disclosure and consent requirements of DR 5-101(A). We have rejected his claim of ignorance about the requirement in ORS 116.183(1) concerning prior court approval of an award of attorney fees from estate assets. The accused acted intentionally by causing the withdrawal of assets of the estate for the payment of his attorney fees without prior approval of the probate court. Third, although the accused's failure to comply with the full disclosure and consent requirements of DR 5-101(A) caused no actual injury, the accused's failure to disclose his conflict created the potential for serious injury. That potential lasted until the accused's debt to the Cummins estate eventually was paid some four years after the accused was retained and three years after his unsecured promissory note first became due. *1171 A further potential injury to personal representatives Hickson and Cooley existed as a result of the accused's collection of $59,000 in attorney fees without prior court approval. At no time did the accused advise Hickson and Cooley of either the requirements in ORS 116.183(1) for the interim payment of attorney fees or the fact that, if the probate court disallowed his fees, they, as the personal representatives, might be liable to the estate for the $59,000 advanced[8] or that they might receive less compensation as personal representatives due to the attorney fees withdrawn. Moreover, the accused's misconduct put Hickson and Cooley at risk of violating their responsibility to the beneficiaries of the Cummins estate and to the probate court. Lastly, the only mitigating factor we find applicable is the absence of a prior disciplinary record. ABA Standard 9.32(a). There are several aggravating factors, however. The accused was untruthful to the probate court, to the Bar in responding to the probate court's concerns, and to the trial panel itself. ABA Standard 9.22(f). In September 1990, and again in March 1991, after the probate court had advised the Bar of the accused's conduct, the accused, in an attempt to reassure the probate court, told that court that Hickson and Cooley had obtained independent counsel with respect to the renegotiation of the promissory note. Both Hickson and Cooley testified that they never sought independent counsel for any aspect of their dealings with the Cummins estate and never told the accused otherwise. The trial panel did not believe the accused when he testified that he thought that was what Hickson and Cooley told him, and neither do we. On June 17, 1991, the accused prepared a statement for Hickson and Cooley to submit to the Bar that stated that the accused's status as debtor to and lawyer for the Cummins estate, "as well as other matters involving the estate, have been discussed with independent legal counsel." Cooley later testified that the accused prepared the statement and that she relied on him to make sure that it was accurate. Cooley testified that she never told the accused that she had sought independent legal counsel and that she thought that the accused himself was the independent legal counsel referred to in the affidavit. Hickson testified similarly. We believe their testimony. The June 1991 statement prepared by the accused, signed by Hickson and Cooley and submitted to the Bar, contained another falsehood. It stated that "[p]ayments against said [n]ote are being received by the estate." At the time that Hickson and Cooley signed that statement, the accused had made only one payment (using his own funds), in January 1991, of $2,200 to the IRS to cover taxes owed by the estate. That single payment was credited to the accused's obligation on the promissory note, but there had been no "payments," as alleged in the statement. In a September 3, 1991, letter to the Bar's Disciplinary Counsel staff, the accused discussed the repayment arrangement on the promissory note: As previously stated, at no time did Hickson or Cooley confer with independent counsel; nor did they inform the accused that they had. Other aggravating factors include: selfish motive, indifference to making restitution, substantial experience in estate practice, and two separate failures to make full written *1172 disclosure of an actual conflict of interest. ABA Standard 9.22(b), (c), (i), and (j). In In re Boyer, 295 Or. 624, 669 P.2d 326 (1983), this court reviewed 21 cases concerning conflicts of interest, all decided by this court in the preceding seven years, to determine the appropriate sanction for a lawyer who had arranged a loan between two separate but current clients without full disclosure to either. In imposing a seven-month suspension, this court said: Two years later, in In re O'Byrne, 298 Or. 535, 551, 694 P.2d 955 (1985), this court observed that, in previous conflict of interest cases under DR 5-101(A), it had O'Byrne involved the loan of money from clients "experienced in the business world" to a lawyer who failed to explain the pitfalls of the business relationship or advise the clients to obtain independent advice. Id. at 546, 548, 694 P.2d 955. The evidence revealed no fraud or dishonesty on the part of the lawyer, and the lawyer did not commingle funds or use them for an unauthorized purpose. Id. at 551, 694 P.2d 955. The lawyer was suspended for four months. Id. In In re Moore, 299 Or. at 508, 510, 703 P.2d 961, this court suspended a lawyer for one year when the lawyer represented multiple clients and borrowed money from those clients without fully disclosing the nature of the conflict of interest between them. Although the court did not find the lawyer guilty of fraud or dishonesty, other aggravating factors supported the sanction. Id. at 510, 703 P.2d 961. In light of the ABA Standards and this court's precedents, as well as the significance of the accused's acts, we conclude that a one-year suspension is an appropriate sanction for the accused's misconduct in this case. The accused is suspended from the practice of law for a period of one year commencing on the effective date of this decision. [1] The Bar and the accused have agreed not to seek affirmance or reversal concerning the trial panel's theory of the accused's guilt with respect to DR 1-102(A)(4) and DR 2-106(A). Instead, the Bar and the accused agree that "[t]he Bar shall be entitled to brief, argue and urge [this] court to find that the Accused violated [those disciplinary rules] under the theory advanced by the Bar in its pleadings and at trial." [2] Hickson and Cooley had no idea when the estate would close. On December 29, 1994, an "Order Discharging Personal Representatives and Closing Estate" was entered by the circuit court. [3] The first annual accounting reflected seven distributions from the estate to the accused: $12,500; $15,000; $7,500; $9,000; $11,000; $3,500; and $1,500. The last distribution of $1,500, tendered on August 23, 1989, was later returned, but no adjustment had been reflected on the first annual accounting. [4] Article 5 of Cummins's will, which the accused had drafted, states: "After the payment of debts of my estate, death taxes, and the expenses of administration, including periodic payment of legal and accounting fees during the course of administration, the residue of my estate then remaining shall be divided in equal shares, per capita * * *." [5] Coe, Phelps, and Weidner all contained the additional charge of theft, a charge not present here. However, as noted in In re Coe, 302 Or. 553, 566, 731 P.2d 1028 (1987), "[i]t is of no consequence that [Coe] may have actually earned a part of the fees prior to the unauthorized payment." Coe, 302 Or. at 566, 731 P.2d 1028. The issue is whether the payment of the attorney fees was authorized, not whether the lawyer had earned the fees at the time when the lawyer obtained them from an estate. [6] Oregon Formal Ethics Opinion No. 1991-63, approved by the Board of Governors, July 1991, states: "Legal fees and personal representative fees must be approved by order of court before they can be paid. ORS 116.183. It follows that Attorney may receive an interim payment if, but only if, an appropriate court order is first entered. Cf. DR 2-106(A)[.]" [7] UTCR 9.090(4) provides that "[a]ll attorney fee applications and accountings in estates, guardianships and conservatorships must be served in the manner and on the persons described in ORS 116.093, ORS 126.283 and acts amendatory thereof." [8] ORS 116.123 provides: "The court may disapprove the [final] account in whole or in part, surcharge the personal representative for any loss caused by any breach of duty and deny in whole or in part the right of the personal representative to receive compensation."

f90b52ca0bfc4b68f5faead4cdb9f63e39524fe9654cd162e3c75add036c9874

1995-07-07T00:00:00Z

494c82fe-1499-4b15-a219-2c9131a7a13c

Windsor Ins. Co. v. Judd

321 Or. 379, 898 P.2d 761

oregon

Oregon Supreme Court

898 P.2d 761 (1995) 321 Or. 379 WINDSOR INSURANCE COMPANY, a Georgia corporation, Respondent on Review, v. Michael and Donna JUDD, individually, and as co-personal representatives of the Estate of Gordon O. Judd, Petitioners on Review. CC 92-7-183; CA A78403; SC S41775. Supreme Court of Oregon, In Banc. Argued and Submitted May 2, 1995. Decided July 27, 1995. Thomas J. Rastetter, Oregon City, argued the cause and filed the petition for petitioners on review. Michael C. Mitchell of Lehner, Mitchell, Rodrigues & Sears, Portland, argued the cause and filed the brief for respondent on review. Charles Robinowitz, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n. VAN HOOMISSEN, Justice. In this declaratory judgment action, Michael and Donna Judd (defendants) appealed a summary judgment in favor of Windsor Insurance Company (Windsor), which declared that Windsor was not obligated to provide underinsurance coverage to them. The Court of Appeals affirmed. Windsor Ins. Co. v. Judd, 130 Or.App. 558, 882 P.2d 1135 (1994). For the reasons that follow, we reverse and remand to the trial court with *762 instructions to enter summary judgment in favor of defendants. The facts are undisputed. Defendants' son, Gordon Judd, was killed in a two-car collision while a passenger in a car driven by Jeffrey Manning. Manning was insured under a Safeco single-limit automobile insurance policy that provided liability coverage in the amount of $60,000 per person, subject to a limit of $60,000 per accident. As a result of the accident, multiple claims were made against Manning's Safeco policy. At the time of the accident, Gordon Judd was insured under his parents' policy with Windsor, which provided uninsured/underinsured motorist protection of $50,000 per person, and $100,000 per accident.[1] Because of the payment of multiple claims stemming from the same accident, defendants were able to recover only $32,000 under Manning's policy. They seek to recover from Windsor the difference between their recovery under Manning's policy and the $50,000 that they argue is available to them under their policy with Windsor. See ORS 742.502(2)(a) (underinsurance benefits are reduced by the amount recovered from other automobile liability insurance policies). The Windsor policy's terms regarding uninsured/underinsured motorist coverage include these: "* * * * * "* * * * * "* * * * * "* * * * * Windsor brought this action against defendants for declaratory relief, arguing that Manning was not an underinsured motorist as defined in its policy and in the parallel Oregon statutes and, therefore, that Windsor is not required to pay to defendants any underinsured motorist benefits. Defendants argued that the underinsurance provisions of Windsor's policy are triggered, because the $60,000 total liability insurance available under Manning's Safeco policy is less than the $100,000 "each accident" insurance available under defendants' Windsor policy. Accordingly, defendants asserted, they may collect benefits up to the $50,000 "each person" limit on Windsor's policy, offset by the amount that they recovered under Safeco's policy. Both parties moved for summary judgment. The trial court granted Windsor's motion for *763 summary judgment, and defendants appealed. The court then looked at the specific wording of Windsor's policy and concluded that, "[u]nder the unambiguous terms of the policy, the $50,000 per personnot the $100,000 per accidentlimits apply." Id. at 563, 882 P.2d 1135. We allowed defendants' petition for review. Defendants contend that the Court of Appeals erred in holding that $50,000 per person limits apply. They argue that, because Safeco's $60,000 per accident limits are less than Windsor's $100,000 per accident limits, Manning was an underinsured motorist. Defendants assert that the court's analysis failed to take into account the requirements of ORS 742.502(2)(a), see infra, 321 Or. at 385, 898 P.2d at 764, that underinsurance coverage must cover damage caused by cars "insured for an amount that is less than the insured's uninsured motorist coverage." They also argue that one must look first to the coverage under the policies to determine whether underinsurance exists, and only then look to the limitations on the amount of benefits that any one person may recover under the liability limits in the underinsurance policy. Windsor responds that defendants' proposed interpretation is arbitrary because, were the policies reversed, with defendants having Safeco's single-limit policy and Manning having Windsor's split-limit policy, defendants would have no claim. Under Windsor's proposed construction, Manning was not underinsured, because his policy could have provided up to $60,000 for an individual injured in the accident, whereas defendants' underinsurance limitation on liability under these circumstances was only $50,000 per person. Windsor argues that the purpose of underinsured motorist coverage is simply to place the insured in the position that he or she would be in if the other policy at issue had the same liability limits; it does not, however, prevent the possibility that those liability limits will be exhausted by payment of other claims, and does not guarantee full compensation for injuries. Windsor argues that, because the Safeco policy's $60,000 limit exceeds the $50,000 "each person" limit in Windsor's policy, Manning was not underinsured for purposes of the underinsurance provisions of Windsor's policy. On review of a summary judgment, we determine whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Hampton Tree Farms, Inc. v. Jewett, 320 Or. 599, 613, 892 P.2d 683 (1995). As noted, in this case the material facts are undisputed. The issues of law involve the scope of the statutory provisions for uninsured motorist coverage, ORS 742.500 et seq, and the meaning of Windsor's insurance policy. We proceed to examine the statutory provisions to determine whether they require that Windsor provide underinsurance coverage under these circumstances. See To v. State Farm Mutual Ins., 319 Or. 93, 97, 873 P.2d 1072 (1994) (when a provision of insurance contract is required by legislature, the intent of the legislature, rather than the intent of the parties to the contract, controls); Moore v. Mutual of Enumclaw Ins. Co., 317 Or. 235, 244-45, 855 P.2d 626 (1993) (when a provision appears in the contract because required by legislature, the court must determine meaning intended by the legislature). *764 In interpreting a statute, this court's task is to determine the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). We first examine the text and context of the statutes in question. The context includes "other provisions of the same statute and other related statutes." Id. at 610-11, 859 P.2d 1143. ORS 742.500(1) provides: "`Uninsured motorist coverage' means coverage within the terms and conditions specified in ORS 742.504 insuring the insured, the heirs or legal representative of the insured for all sums which the insured or they shall be legally entitled to recover as damages for bodily injury or death caused by accident and arising out of the ownership, maintenance or use of an uninsured motor vehicle in amounts or limits not less than the amounts or limits prescribed for bodily injury or death under ORS 806.070." (Emphasis added.) ORS 742.502(2)(a) provides: Uninsured/underinsured motorist coverage, therefore, encompasses all sums that the insured is legally entitled to recover as damages, "within the terms and conditions specified in ORS 742.504." ORS 742.500(1). ORS 742.504(7)(a) provides: Thus, as defined in ORS 742.500(1), uninsured/underinsured motorist coverage is subject to the limits of liability terms found in ORS 742.504(7)(a), which include "each person" and "each accident" limits on liability. The text and context of ORS 742.504(7)(a), however, do not answer the question whether one's "uninsured motorist coverage" varies according to the circumstances of a particular accident, based on whether one or more insureds are injured in the accident, i.e., whether the "each person" or the "each accident" limit on liability applies under the circumstances. It is possible to construe the text and context of the relevant statutes to mean that the term "insured's uninsured motorist coverage" refers to the "each person" limit of liability that would govern the amount of benefits owed to any one insured making a claim under the policy. On the other hand, it also is possible to construe the text and context of the relevant statutes to mean that the term "insured's uninsured motorist coverage" in ORS 742.502(2)(a) refers to both the "each person" and the "each accident" limits contained in ORS 742.504(7)(a). Accordingly, the proper construction of those statutes is not clear from the text of ORS 742.502(2)(a), the definition of "uninsured motorist coverage" in ORS 742.500(1), or the limits on that definition found in ORS 742.504(7)(a). Because the intent of the legislature is not clear from the text and context of the relevant statutes, we turn to the legislative history. See PGE, 317 Or. at 611-12, 859 P.2d 1143 (stating principle). *765 In 1981, ORS 742.502 (then codified as ORS 743.789) was amended by Senate Bill 31 to add the following new language: Before 1981, the statutory scheme, in essentially the same form, applied only to un insured motorist coverage. There was very little discussion of this amendment in the 1981 legislative session, and what little there was reveals nothing that sheds light directly on the question posed in this case. The legislative history does reveal, however, that the legislature intended the amendment to be remedial, to allow an insured more options for coverage than were then available under the un insured motorist scheme. See, e.g., Senate Committee on Insurance, Banking and Retirement, January 23, 1981, Tape 6, Side A (comments in support of bill); House Committee on Business and Consumer Affairs, July 8, 1981, Tape 177, Side A (same). The legislative history also suggests that the 1981 amendment was intended to provide the option of extra protection for an insured who was injured in an accident in which a tortfeasor's insurance had to be divided among multiple claimants, thus reducing the insured's recovery from the tortfeasor. See Senate Committee on Insurance, Banking and Retirement, January 23, 1981, Tape 6, Side A (comments by Tom Bessonette, Oregon Mutual Insurance, describing nature of amendment). We conclude that the legislative history does not answer the question presented in this case. Because the text, context, and legislative history do not provide the answer in this case, we turn to "general maxims of statutory construction to aid in resolving the remaining uncertainty." PGE, 317 Or. at 612, 859 P.2d 1143. See Westwood Homeowners Assn., Inc. v. Lane County, 318 Or. 146, 158, 864 P.2d 350 (1993) (when legislative history does not reveal intent of the legislature, the court attempts to determine how the legislature would have intended the statute to be applied had it considered the issue) adhered to as modified on reconsideration, 318 Or. 327, 866 P.2d 463 (1994). A purpose of the 1981 amendment was to give insureds more options to purchase enhanced protection from the acts of under insured motorists. Windsor argues that, although defendants' proposed construction of the statutes will result in coverage in this case, if applied universally, it will deny coverage to other insureds and, therefore, it is unreasonable.[2] We find that argument unpersuasive because, although defendants' proposed construction might not necessarily be the most favorable construction for all insureds under all circumstances, the legislative intent behind the 1981 amendment was not to favor all insureds under all circumstances. Rather, as noted, it was to give insureds more options to purchase enhanced protection from the acts of underinsured motorists. Under defendants' proposed construction of the relevant statutes, Windsor's policy with $50,000/$100,000 limits provides greater protection than Safeco's single-limit $60,000 policy. The legislative history noted above indicates that the legislature was concerned in particular with situations in which a tortfeasor's total insurance coverage was insufficient to cover the damages of multiple victims. Under Windsor's proposed interpretation, an insured who buys a split-limit under insurance *766 policy, even one with a very high "each accident" limit, still would not be able to increase his or her protection from an underinsured tortfeasor who injures multiple victims in one accident (except, perhaps, under the very limited circumstance where several people insured under the same underinsurance policy were injured in the same accident by an underinsured tortfeasor). We believe that defendants' proposed construction of the relevant statutes, which compares a tortfeasor's "each accident" liability limits with the insured's "each accident" underinsurance limits to determine whether the tortfeasor's automobile was "insured for an amount that is less than the insured's uninsured motorist coverage," more closely effectuates the intent of the legislature in enacting the 1981 amendments to ORS 742.502. We conclude, therefore, that, in order to make a determination under ORS 742.502(2)(a) as to whether a car "is insured in an amount that is less than the insured's uninsured motorist coverage," a court must consider the higher "each accident" limits in the car's split-limit policy. We proceed to apply this statutory construction to the present case. Under Windsor's policy, defendants' "uninsured motorist coverage" encompasses both a $50,000 "per person" and a $100,000 "per accident" limit on Windsor's liability. The question becomes whether Manning's car, which was insured under Safeco's single-limit policy with a $60,000 limitation on liability, is "insured for an amount that is less than the insured's uninsured motorist coverage." ORS 742.502(2)(a). Had Manning's car been insured under a policy with $50,000 per person and $100,000 per accident limits, $100,000 would have been available to the multiple victims of this accident. But, because of the lower limit on liability in Safeco's policy, only $60,000 was available to the multiple victims of this accident. We conclude, therefore, that Manning's car was "insured for an amount that is less than the insured's uninsured motorist coverage." ORS 742.502(2)(a). Under the final sentence of ORS 742.502(2)(a), underinsurance benefits shall be equal to uninsured motorist coverage benefits "less the amount recovered from other automobile liability insurance policies." Thus, defendants are entitled to recover damages under the Windsor policy up to the $50,000 per person limit, less the amount recovered under Safeco's policy. We conclude that the trial court and the Court of Appeals erred in holding that underinsurance coverage was not available under the Windsor policy in these circumstances. Even if the Court of Appeals correctly determined that the Windsor policy was unambiguous and that coverage was not available to defendants under the express terms of that policy, Windsor's policy is deemed reformed to incorporate the statutory requirements for underinsured motorist coverage. ORS 742.504. Because the statutes provide for underinsurance coverage under these circumstances, we conclude that the Windsor policy likewise provides for underinsurance motorist coverage. 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 with instructions to enter summary judgment in favor of defendants. [1] That protection is greater than the minimum uninsured motorist coverage required by law. ORS 806.070. [2] Windsor posits, for example, that if the policies in this case were reversed, and defendants had Safeco's $60,000 single-limit policy and Manning had Windsor's $50,000/$100,000 split-limit policy, then under defendants' proposed construction, Manning would not be underinsured even though only $50,000 would be available to defendants under the "each person" limitation in Manning's policy, whereas defendants' own underinsured motorist policy would have had a $60,000 per-person limit.

f5c1b71f18f2ac20b1173cc6929da8d344d1f22ab2d880887f739e945ecbe175

1995-07-27T00:00:00Z

03acafda-22d3-41c7-b824-d43467f1f828

Lowe v. Keisling

889 P.2d 916

oregon

Oregon Supreme Court

889 P.2d 916 (1995) Ellen LOWE, David Fidanque, Greg Evans, David Allen, Dominick Vetri, John Baker, Bonnie Tinker, and Doretta Schrock, Petitioners on Review, and City of Portland, Respondent (below), v. Phil KEISLING, Secretary of State of the State of Oregon, Respondent on Review, and Lon Mabon, Appellant/Cross-Respondent (below). (CC 93C-11972; CA A84110; SC S41790). Supreme Court of Oregon, In Banc. Submitted on Petition for Review November 22, 1994. Decided March 2, 1995. Charles F. Hinkle and Katherine A. McDowell, ACLU Foundation of Oregon, Inc., Portland, filed the petition for petitioners on review. With them on the petition was Suzanne B. Goldberg, Lambaa Legal Defense and Educ. Fund, New York City. No appearance contra. Michael H. Simon, Portland, filed a brief for amici curiae, Jewish Federation of Portland, American Jewish Committee, and Anti-Defamation League of B'nai B'rith. Petitioners seek judicial review of a decision by the Court of Appeals that directed that a certain measure be placed on the ballot for the November 1994 general election. Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994). That election has been held. The proposed measure failed. The petition for review therefore is moot. The petition for review is dismissed as moot. UNIS, Justice, dissenting. I agree with the court that this case is moot. The case became moot because the election on the challenged initiative measure has already been held, and the measure was defeated in the November 8, 1994, statewide general election. My disagreement is with the court's disposition of the case. In my view, this court should allow the petition for review, vacate the decision of the Court of Appeals and the judgment of the circuit court, and then dismiss the case as moot. I, therefore, respectfully dissent. A brief statement of the history and status of this case is helpful to an understanding of my disagreement with the court. Plaintiffs' amended complaint seeks declaratory and injunctive relief pursuant to ORS chapter 28, ORS 246.910, and 42 U.S.C. § 1983. Plaintiffs' action concerns Ballot Measure 13, a proposed initiative petition dealing with government treatment of the subject of homosexuality.[1] The measure was filed with the Secretary of State on May 6, 1993, and, if approved by the electorate, would have added a section to Article I of the Oregon Constitution. Plaintiffs' complaint asserts that the proposed initiative petition would violate (1) the "one subject only" provision of Article IV, section 1(2)(d), of the Oregon Constitution, (2) Article XVII, section 2, of the Oregon Constitution, because it proposes to revise, rather than to amend, the Oregon Constitution, (3) the Guaranty Clause of Article IV, section 4, of the federal constitution, because that clause assertedly prohibits the use of the initiative process to proposed measures that would appeal to the passions of the people and would disadvantage a specific *917 minority group, and (4) one or more of the provisions of the First Amendment, equal protection, and due process rights under the federal constitution. Plaintiffs sought to enjoin the Secretary of State from notifying the county clerks that the measure proposed by the petition was to be placed on the November 8, 1994, ballot. On May 3, 1994, the circuit court entered an amended judgment, dismissing the counts of plaintiffs' complaint that raised federal constitutional issues. However, the amended judgment declared that the proposed initiative "embraces more than one subject, in violation of Article IV, section 1(2)(d) of the Oregon Constitution." The circuit court further declared that the proposed initiative would revise, rather than amend, the Oregon Constitution and, therefore, could not be submitted to a vote of the people without approval by a two-thirds majority of the legislature. Finally, the amended judgment "enjoined [the Secretary of State] from certifying the measure proposed by the petition * * * to the county clerks of Oregon for placement on the ballot." The Secretary of State and Lon Mabon appealed the circuit court's amended judgment declaring that the proposed initiative violates Article IV, section 1(2)(d), of the Oregon Constitution and enjoining the Secretary of State from certifying the measure for placement on the ballot. Plaintiffs cross-appealed the dismissal of the counts that raised federal constitutional issues. Secretary of State Keisling filed a motion to expedite in the Court of Appeals on the ground that, if the measure in question were to be on the November 1994 ballot, a final decision reversing the trial court must issue no later than September 8, 1994. In lieu of acting on the motion to expedite, the Court of Appeals, by amended order dated July 14, 1994, certified the appeal to this court pursuant to ORS 19.210 et seq. On July 27, 1994, this court entered an amended order declining to accept certification of the appeal. On September 1, 1994, twelve days after oral argument before a three-judge panel of the Court of Appeals on August 19, 1994, the Court of Appeals rendered an in banc decision (with a three-judge concurrence) that permitted the measure to be placed on the ballot. Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994). The election on the initiative measure was held at the statewide general election on November 8, 1994, and the measure was defeated. Plaintiffs then filed a petition for review in this court on November 22, 1994,[2] claiming that, notwithstanding the rejection of the measure by the electorate, this case is justiciable and that, if this court determines otherwise, this court should vacate the Court of Appeals' decision so that it will have no precedential effect. In Brumnett v. PSRB, 315 Or. 402, 406, 848 P.2d 1194 (1993), this court said that "[c]ases * * * in which a court's decision no longer will have a practical effect on or concerning the rights of the parties" are moot. Given the electorate's rejection of Ballot Measure 13, the underlying legal questions presented by the petition for review are now moot. The question then presented is: What disposition should this court make of this case at this time? Concluding that the case is moot, the court has chosen only to dismiss the petition as moot. That choice, without more, permits the Court of Appeals' decision to have precedential effect. Implicitly, the choice made by the court rejects the well-established general principle, at least as it exists in the federal law, that vacatur is appropriate for those judgments whose review is prevented through happenstance that is to say, where a controversy presented for review has become moot due to circumstances not attributable to any of the parties. See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S. Ct. 104, 95 L. Ed. 36 (1950) (when a case is mooted through no fault of the parties, the maintenance of the judgment may be prejudicial to the parties challenging such a judgment on appeal, and the judgment should be vacated). When a party is prevented from obtaining appellate review through no fault of its own, the Munsingwear principle "clears" the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance. *918 Professor Tribe describes the jurisprudence of the Supreme Court of the United States on vacatur: Recently, in U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 513 U.S. ___, 115 S. Ct. 386, 130 L. Ed. 2d 233 (1994) (Bonner Mall), the Supreme Court of the United States discussed the appropriateness of vacatur by federal courts of a judgment under review when a case has become moot. In that case, the Supreme Court held that mootness by reason of settlement after appeal is filed or certiorari sought does not justify vacatur by a federal appellate court of a judgment under review in the absence of exceptional circumstances.[3] The court stated, however: * * * * * In Bonner Mall, the Supreme Court noted that it stands by the Munsingwear principle "that mootness by happenstance provides sufficient reason to vacate." Id., 513 U.S. at ___ n. 3, 115 S. Ct. at 391 n. 3, 130 L. Ed. 2d at 242 n. 3. I would apply the Munsingwear principle to the circumstances of this case.[4] This controversy became moot through no fault of plaintiffs. Because of mootness, plaintiffs have lost their opportunity to seek review of this case by this court. But for mootness, *919 the decision of the Court of Appeals would deserve further review, apart from whether it is ultimately held right or wrong.[5] In Oregon Rules of Appellate Procedure (ORAP) 9.07, this court has provided guidance on the considerations that may persuade this court to take review. But for mootness, this case presents many review-worthy issues of public interest, including significant state and federal constitutional issues involving the initiative process. The resolution of the important issues raised in this case has external effects that transcend the interests of the litigants. In summary, without expressing an opinion on the merits of this case, the circumstances of this case justify vacatur by this court of the decision of the Court of Appeals and the judgment of the circuit court. I would, therefore, allow the petition for review, vacate the decision of the Court of Appeals and the judgment of the circuit court, and dismiss the case as moot. I, therefore, respectfully dissent. FADELEY and DURHAM, JJ., join in this dissenting opinion. [1] For a review of the nature and purpose of Ballot Measure 13, see Mabon v. Keisling, 317 Or. 406, 856 P.2d 1023 (1993). See also Lewis v. Keisling, 320 Or. 13, 879 P.2d 857 (1994) (discussing Ballot Measure 13 in the context of a judicial review of the voters' pamphlet explanatory statement). [2] The petition for review was filed on time, pursuant to court-approved extensions of time. [3] In Banister Continental Corp. v. NW Pipeline Corp., 301 Or. 763, 724 P.2d 822 (1986), this court vacated the decision of the Court of Appeals and dismissed the appeal when, after argument of the case before this court, the parties reached a settlement agreement. [4] Because the Bonner Mall decision is based on the Supreme Court's supervisory power over federal courts, it does not control state court practice with respect to vacatur. [5] The Court of Appeals, under difficult circumstances and after certification to this court was denied, rendered a major in banc decision in a matter of 12 days from oral argument to decision. The body politic of the state was well-served by the court's swift adjudication, regardless of its outcome.

ab2ee183d2590a9ed51ded770b855ee1a3f5bec3839c88e7e2dd409ff7097d0f

1995-03-02T00:00:00Z

82cca272-2d70-4632-b8a6-805eca78e3e2

Stubbs v. Weathersby

320 Or. 620, 892 P.2d 991

oregon

Oregon Supreme Court

892 P.2d 991 (1995) 320 Or. 620 In the Matter of the Adoption and Change of Name of Yasha Raynae Weathersby, a Minor. Carl STUBBS and Yvonne Stubbs, Respondents on Review, v. Thomaszine WEATHERSBY, Petitioner on Review. CC 58-90-00971; CA A78470; SC S41287. Supreme Court of Oregon, In Banc. Argued and Submitted November 1, 1994. Decided March 30, 1995. *993 Cristina Sanz and Maureen H. McKnight, of Lane County Legal Aid Services, Inc., Medford, argued the cause on behalf of petitioner on review. On the petition was Cristina Sanz. Greg A. Hunt, Eugene, argued the cause on behalf of respondents on review. Julie A. Stevens and Robin J. Selig, of Multnomah County Legal Aid Service, Inc., Portland, and Joan Zorza and Nancy S. Erickson, of Nat. Center on Women and Family Law, Inc., New York City, filed an amici curiae brief on behalf of Multnomah County Legal Aid Service, Inc., and Nat. Center on Women and Family Law, Inc. UNIS, Justice. Mother appeals from the decision of the Court of Appeals that affirmed the trial court's decree of adoption of Mother's minor daughter (Child) by Carl and Yvonne Stubbs. Stubbs v. Weathersby, 126 Or.App. 596, 869 P.2d 893 (1994). For reasons that follow, we affirm, but on different grounds. When Mother was five months pregnant with Child, she moved from Texas to Washington state. Child was born March 14, 1989, in Washington. When Child was less than one month old, Mother met with the Stubbses, who lived in Oregon, to discuss the possibility of having the Stubbses care for Child. Because the Stubbses were interested only in adopting Child, no agreement resulted, and Mother retained custody of Child. Mother and Child lived together in a crisis pregnancy shelter until April 17, 1989. At that time, Mother voluntarily placed Child in foster care with Catholic Community Services in Washington, because Mother was required to move out of the shelter and had no other place to live. In June 1989, Mother rented an apartment and sought to regain physical custody of Child. The agency refused to relinquish custody and filed a juvenile court dependency proceeding in King County, Washington, on June 28, 1989. A hearing was held on June 29, 1989, and the court ordered that Child be continued in foster care. Another hearing was held on July 28, 1989, at which time the court again ordered that Child be continued in foster care. While Child was in foster care, Mother visited Child once or twice a week. In October 1989, Mother was forced to move out of her apartment because her apartment was sold. Child remained in foster care. Mother informed Dr. Virginia Phillips that she wanted to place Child for adoption. Dr. Phillips was aware that the Stubbses were interested in adopting a child, and she informed them that Child was available for adoption. On November 1, 1989, Yvonne Stubbs went to Washington from Oregon to pick up Child. Mother typed and signed a document dated November 1, 1989, which stated: The document was not notarized or witnessed. Yvonne Stubbs returned to Eugene, Oregon, with Child. On November 8, 1989, *994 the juvenile court dependency proceedings pending in Washington state were dismissed. On January 11, 1990, Mother telephoned the Stubbses and told them that Child's father might want Child back. On January 30, 1990, the Stubbses filed a petition for adoption of Child in Lane County Circuit Court, asserting that Mother had consented to the adoption in writing. On February 1, 1990, the court entered an order appointing the Stubbses as temporary guardians of Child. In February 1990, Mother told the Stubbses that she wanted Child back. On April 2, 1990, Mother sent a letter to the circuit court, stating, "I would like to inform the court that I have revoked my consent to have my child adopted!!! * * * I am in no way consenting to my daughter being adopted!!!" (Emphasis in original.) Mother later obtained representation by counsel. Mother filed two motions to dismiss the adoption proceeding, which were denied. Mother intervened in the adoption proceeding and filed objections to the petition for adoption. On December 28, 1990, the Stubbses filed a supplemental petition for adoption. In addition to Mother's alleged consent, the supplemental petition alleged that Mother, without just and sufficient cause, had willfully deserted or neglected to provide proper care and maintenance for Child for the year preceding the filing of the supplemental petition. A trial was held in April 1991. The trial court, applying Oregon law, concluded that Mother had consented to the adoption and that Mother was estopped from revoking her consent. The trial court also concluded that, for one year preceding the filing of the supplemental petition, Mother had willfully neglected, without just and sufficient cause, to provide proper care and maintenance for Child. The circuit court granted the Stubbses' petition for adoption. Mother appealed. In June 1992, the Court of Appeals remanded the case to the circuit court for a hearing to determine whether the circuit court had jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), ORS 109.700 to 109.930. Stubbs v. Weathersby, 113 Or.App. 501, 833 P.2d 1297 (1992). After a hearing on remand, the circuit court entered a judgment that "ratified and confirmed" the prior judgment. Mother again appealed, arguing (1) that the circuit court lacked jurisdiction under the UCCJA and that Oregon was an inconvenient forum, (2) that Washington law applied to the adoption proceeding, (3) that she never executed a valid irrevocable consent to the adoption, (4) that she validly revoked her alleged consent, and (5) that the circuit erred in finding that she had neglected Child without just and sufficient cause for one year. The Court of Appeals affirmed, holding that the circuit court had jurisdiction under ORS 109.730(1)(b) and that Oregon was a proper forum. Stubbs, 126 Or.App. at 600-02, 869 P.2d 893. The court, applying Oregon law, also held that Mother had consented to the adoption and that Mother was estopped from revoking her consent. Id. at 602-08, 869 P.2d 893. One judge dissented, because he believed that the circuit court lacked jurisdiction under the UCCJA. Id. at 608-13, 869 P.2d 893 (Landau, J., dissenting). We allowed Mother's petition for review and now affirm the decision of the Court of Appeals on different grounds and affirm the judgment of the circuit court. We first address whether the trial court had jurisdiction under the UCCJA, ORS 109.700 to 109.930. The UCCJA applies to adoption proceedings. State ex rel Torres v. Mason, 315 Or. 386, 848 P.2d 592 (1993).[1] The UCCJA provides four bases for jurisdiction: (1) "home state" jurisdiction, (2) "significant connection" jurisdiction, (3) "emergency" jurisdiction, and (4) "default" jurisdiction. ORS 109.730(1). Each basis of jurisdiction under the UCCJA depends on the factual circumstances surrounding the child custody proceeding. To determine jurisdiction, *995 we consider the facts as of the date that the adoption proceeding was commenced. Torres, 315 Or. at 393 n. 6, 848 P.2d 592. Ordinarily, a proceeding is deemed "commenced" when the complaint is filed. ORCP 3. This case involves an initial petition for adoption and a supplemental petition. The initial petition was filed on January 30, 1990. That petition alleged as the sole basis for adoption that Mother had consented to the adoption. The Stubbses filed a supplemental petition on December 28, 1990,[2] alleging that Mother had neglected child from December 28, 1989, to December 28, 1990. We must consider whether, for the purposes of the UCCJA, this proceeding is deemed "commenced" as of the filing of the initial petition or as of the filing of the supplemental petition for adoption. The UCCJA is to be construed to promote the purposes of that act as set forth in ORS 109.720(1). ORS 109.720(2). A number of those purposes bear on the determination of when the proceeding is deemed "commenced" for the purposes of determining jurisdiction. The UCCJA is intended to, among other things, (1) avoid jurisdictional conflicts with courts of other states, (2) assure that child custody litigation ordinarily takes place in the state with which the child and the family of the child have the closest connection and where significant evidence concerning care, protection, training, and personal relationships of the child is most readily available, (3) discourage continuing controversies over child custody, (4) deter abductions and other unilateral removals of children undertaken to obtain custody awards, and (5) avoid the relitigation of custody decisions. ORS 109.720(1). Based on the purposes of the UCCJA, it is clear that an amendment to a petition for adoption ordinarily will not affect the date as to which jurisdiction is determined. Such a practice would encourage abduction of children and lead to continuing controversies over child custody disputes. Indeed, when a pleading is amended, the date of the amended pleading relates back to the date of the initial pleading "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." ORCP 23 C. Thus, when a party files a petition for adoption and then amends the petition at a later date when the facts on which UCCJA jurisdiction is based are more favorable to the petitioner, the amendment generally will not affect the date on which the proceeding was "commenced." That general rule does not apply to the circumstances in this case, however. The allegation of neglect in the supplemental petition did not arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; therefore, it does not relate back to the original petition. Instead, the Stubbses' supplemental petition alleges conduct that had not occurred at the time of the initial pleading. For that reason, it is a supplemental pleading, i.e., a pleading "setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." ORCP 23 E. Supplemental pleadings do not relate back under the rules of civil procedure.[3]*996 We do not mean to suggest that every time a supplemental petition is filed the court will use the later date in determining jurisdiction, because such a rule could encourage abduction of children, contrary to the express purpose of the UCCJA. If the supplemental petition alleges conduct that could have been alleged at the time of the initial petition, parties would be encouraged to allege only some of their claims, saving others for a later time when they had established jurisdiction under the UCCJA. When a later petition alleges conduct that could not have been alleged in the initial petition, however, the danger of encouraging abduction is less. In such cases, determining jurisdiction as of the date of the supplemental petition promotes the purposes of the UCCJA by having cases litigated in the state with the closest connection to the child and avoiding relitigation of child custody disputes. We emphasize that, in the ordinary case, an amendment to a pleading does not allow a party to have the court obtain jurisdiction by delay. First, as previously stated, an amended pleading does relate back to the date of the initial pleading. ORCP 23 C. Only in cases in which the substance of the petition (as distinct from facts regarding UCCJA jurisdiction) is based on facts that have occurred after the initial petition, and that ground could not have been alleged at the time of the initial petition, will the courts measure jurisdiction from the time of the supplemental filing. Second, when the child has been removed from his or her "home state," a parent may file a child custody action in the "home state" within six months after the child is removed, protecting parents from abductions. ORS 109.730(1)(a). Third, if a party seeks to delay proceedings in order to establish jurisdiction, the court may decline to exercise jurisdiction. See ORS 109.780 (court may decline jurisdiction if party has engaged in wrongful conduct). We conclude that, when a supplemental pleading is filed that alleges a different basis for an adoption based on conduct after an initial petition had been filed, the action is "commenced" on the date of the supplemental petition when the different ground for adoption alleged in the supplemental petition could not have been alleged at the time of the initial petition. In this case, that date is December 28, 1990, the date on which the Stubbses filed a supplemental petition for adoption alleging that Mother had willfully neglected Child from December 28, 1989, to December 28, 1990.[4] For the reasons that follow, we conclude that, as of December 28, 1990, Oregon had jurisdiction over this case, because Oregon was Child's "home state." Under "home state" jurisdiction, ORS 109.730(1)(a), an Oregon court has jurisdiction if, among other things, Oregon is the child's "home state" at the time of the commencement of *997 the proceeding. ORS 109.710(5) defines "home state": "`Home state' means the state in which the child, immediately preceding the time involved, lived with the parents of the child, a parent, or a person acting as parent, for at least six consecutive months, and, in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period." On December 28, 1990, Child had been living with the Stubbses in Oregon for more than six consecutive months. Although the Stubbses were not Child's "parents" at that time, they did meet the definition of "persons acting as parents." ORS 109.710(9) provides: "`Person acting as parent' means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody." During the six months preceding December 28, 1990, the Stubbses had physical custody of Child. In addition, they were claiming a legal right to custody throughout that period by attempting to adopt Child. As of December 28, 1990, then, Oregon was Child's "home state." Therefore, under ORS 109.730(1)(a), the circuit court had jurisdiction to proceed with the adoption under the supplemental petition.[5] Before entering a decree of adoption, the court must determine that the natural parents of the child consented to the adoption or that the parents' consent is not necessary by virtue of a statutory exception to the general requirement for consent. ORS 109.312(1); Eder v. West, 312 Or. 244, 260, 821 P.2d 400 (1991). We therefore begin by examining whether Mother consented to the adoption of Child by the Stubbses. The Stubbses allege that Mother consented to the adoption by typing out and signing a document that stated: The document was prepared and signed by Mother in Washington state. It was not notarized or witnessed. Mother contends that the above-quoted document that she signed is insufficient to constitute consent to the adoption. Mother first argues that Washington law should apply to the validity of the consent and that, under Washington law, the consent is insufficient. She also contends that the consent is insufficient under Oregon law. The Stubbses argue that Oregon law applies and that the document does constitute consent under Oregon law. We first consider whether Oregon law or Washington law applies to the question of consent. Generally, the law of the forum state applies to adoption cases. Restatement (Second) of Conflict of Laws § 289 (1969). When a parent's consent to an adoption is at issue, however, we are reluctant to follow that rule without further analysis. A consent to an adoption can have the ultimate effect of terminating all of the individual's parental rights. As a consequence, the state in which the consent is signed or where the parent-child relationship exists will often have an interest in having its law applied regarding the validity of a parental consent in an adoption proceeding. In addition, applying the law of the forum state creates dangers of forum shopping in adoption cases. Nevertheless, because the UCCJA mitigates those potential dangers, we conclude that the general choice-of-law rule concerning adoption cases should apply to the present case. *998 The UCCJA is intended to prevent forum shopping and is designed to insure that child custody litigation ordinarily takes place in the state with the closest connection to the child. ORS 109.720(1). Thus, when a state has jurisdiction in a child custody matter, the UCCJA guarantees that the forum state has an interest in applying its own law to the case. We therefore conclude that, except in unusual circumstances,[6] the law of Oregon applies to issues arising out of adoption petitions properly filed in Oregon, including questions of consent. This case does not present any unusual circumstances that would justify departing from that general rule. When Mother signed the document and released custody of Child to the Stubbses, she knew that they were Oregon residents. It is apparent that the parties contemplated that the adoption would take place in Oregon courts. We turn to the question whether the document signed by Mother constitutes a valid consent to adoption under Oregon law. Under Oregon law, a parent must provide "consent in writing." ORS 109.312(1) (emphasis added).[7] Moreover, when a petition for adoption is filed, the petitioner is required to file, at the time of the petition for adoption, "[t]he documents demonstrating consent under ORS 109.312 to the adoption of the minor child." ORS 109.309(5)(a)(B) (emphasis added). Those statutes suggest that the writing itself must, on its face, evince a present intent to consent to adoption. When a parent consents to adoption, an adoption based on that consent will terminate any parental rights the parent has with regard to the child. See Eder, 312 Or. at 261, 821 P.2d 400 (adoption is a two-step process, the first of which is the termination of the parent's rights); Zockert v. Fanning, 310 Or. 514, 518, 800 P.2d 773 (1990) (stating same principle). Consent to an adoption is ordinarily a jurisdictional prerequisite for a decree of adoption. In re Estate of Myers, 197 Or. 520, 533, 254 P.2d 227 (1953). Parental rights are significant. See Zockert, 310 Or. at 528, 800 P.2d 773 (parenthood is a "liberty interest"); Williams et ux v. Capparelli, 180 Or. 41, 44, 175 P.2d 153 (1946) ("[t]he maintenance of the natural rights of parents to the custody and care of their children is of vital interest to the state"). The requirement that consent to adoption be in writing is designed to protect those important interests. In evaluating a parent's consent to an adoption, this court requires strict compliance with statutory requirements. See Myers, 197 Or. at 525, 254 P.2d 227 (all statutory requirements for an adoption "must be strictly complied with"). That is particularly true regarding a parent's consent, because the consent can operate to terminate the parental rights of the parent. See State v. Jamison, 251 Or. 114, 117, 444 P.2d 15, P.2d 1005 (1968) ("[t]he permanent termination of parental rights is one of the most drastic actions the state can take against its inhabitants"). The importance of protecting parental rights has been recognized by the legislature in other contexts where a written consent to adoption is required. ORS 418.270(1), which governs the requirements for a parent's consent to adoption in an agency adoption, provides in part: By requiring a surrender or release to "expressly recite[ ] that it is given for the purposes of adoption," ORS 418.270(1) affords parents protection in the context where parents are dealing with agencies licensed by the state of Oregon. We do not believe that the legislature intended parents to have less protection when dealing with unlicensed individuals. We conclude that, to constitute effective written consent, a document must evidence a clear and unequivocal intent to consent to the adoption of the child. Mother argues that the document that she signed does not constitute a valid consent to the adoption. The document, read as a whole, demonstrates that Mother intended the Stubbses to have custody of Child during the process of an adoption. We need not decide whether the document expresses a clear and unequivocal intent to consent to the adoption, however, because, even if the document signed by Mother was an effective consent, we conclude that mother revoked any consent that she had given to the adoption. A formal revocation of consent filed with the court is effective to revoke a parent's consent to an adoption. Dugger et ux v. Lauless, 216 Or. 188, 193, 338 P.2d 660 (1959). Once a proceeding has been instituted, however, a parent cannot withdraw his or her consent by mere extrajudicial notification to the adoptive parents. Id. Rather, some form of notice must be provided to the court. See id. (notification that the parent revoked his consent was effective when the notification was made to a caseworker and the information was included in a report to the court). In this case, Mother's revocation of any alleged consent was timely and legally sufficient. Mother sent a letter to the circuit court, stating her intention to revoke her alleged consent. Moreover, the report of the Children's Services Division filed with the court states that Mother "stated several times that she wanted to make it clear that she is not giving up her child for adoption." Mother also filed a motion to dismiss with the court, specifically alleging that she had revoked "any instrument that might be construed to be her consent to the adoption." Generally, a parent may revoke his or her consent to an adoption at any time before the final decree of adoption is entered. Williams, 180 Or. at 45, 175 P.2d 153; but see Dugger, 216 Or. at 198, 338 P.2d 660 (suggesting that parent may be estopped from revoking his or her consent). The right to revoke consent is not absolute, however. A parent may agree to make his or her consent irrevocable, in which case consent may be revoked only for fraud or duress. ORS 109.312(2). ORS 109.312(2) provides the method by which a parent's consent to an adoption is irrevocable: "(a) A person who gives consent to adoption under subsection (1) of this section may agree concurrently or subsequently to the giving of such consent that the consent shall be or become irrevocable, and may waive such person's right to a personal appearance in court, by a duly signed and attested certificate. The certificate of irrevocability and waiver shall be in effect when the following are completed: See also ORS 418.270(4) (providing for irrevocable consent in agency adoptions). In this case, it is undisputed that the procedures prescribed in ORS 109.312(2) were not followed. Therefore, Mother's consent was not irrevocable. The Stubbses argue that, even though the procedures outlined in ORS 109.312(2) were not followed, Mother should now be deemed to be estopped to revoke the consent that she did give. As already noted, that was the theory on which the Court of Appeals ruled for the Stubbses. Assuming, without deciding, that there may be circumstances in which, despite the failure to comply with the statutory procedure for making a consent irrevocable, and despite the fact that adoption is a creature of statute, a parent may be estopped from revoking the parent's consent to adoption, we find no facts in this case that could justify the application of that doctrine here. We therefore reject the Stubbses' estoppel theory. We now turn to the Stubbses' second asserted basis for the adoption and the alternative basis for the trial court's decisionneglect. A parent's consent to an adoption is not necessary if the parent has "willfully * * * neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption." ORS 109.324. A parent's conduct constitutes willful neglect if, based on the totality of the evidence, the court concludes that, during the year preceding the filing of the petition for adoption, the non-consenting parent willfully failed to manifest substantial expressions of concern that show that the parent has a deliberate, intentional, and good-faith interest in maintaining a parent-child relationship. Eder, 312 Or. at 266, 821 P.2d 400. In applying that standard to a claim of neglect, the court considers all relevant evidence, including payments of money, gifts, visits, calls, cards or letters, and other expressions of concern. Id. The court "may disregard incidental visitations, communications and contributions," however. ORS 109.324; Eder, 312 Or. at 266, 821 P.2d 400. The burden is on the petitioners to demonstrate willful neglect by clear and convincing evidence. Zockert, 310 Or. at 528, 800 P.2d 773. On de novo review of the issue of neglect,[8] we find that Mother willfully neglected *1001 Child without just and sufficient cause for one year preceding the filing of the supplemental petition for adoption on December 28, 1990. Specifically, we make the following findings with respect to the categories of evidence discussed in Eder. 1. Payment of money. Mother provided no financial support for Child during the year in question. Nor did Mother offer to provide any financial support for Child during the year in question. Although her income was not great ($700 per month), she did send $100 to $200 per month to her mother. Her financial support to another member of her family shows that Mother's failure to provide any financial support to Child was willful. 2. Gifts. Mother sent no gifts, such as toys or clothing, to Child during the year in question. By contrast, she sent clothing to her other daughter, who lives in Mississippi with Mother's mother. Gifts sent by Mother to another member of her family shows that Mother's failure to do so with respect to Child was willful. 3. Visits. During the year in question, Mother visited with Child once, while Mother was in Eugene for a hearing regarding the adoption proceeding. Yvonne Stubbs, not Mother, initiated that visit. Mother did not request any additional visits during the year in question.[9] We also note that, by contrast, Mother saw her other daughter in August 1990 for ten days, showing that her lack of similar effort with respect to Child was willful. We disregard Mother's single, brief visit, because it was "incidental," ORS 109.324, and does not constitute a substantial expression of concern. 4. Telephone calls. Because of the young age of Child during the year in question, Mother's failure to call Child is not relevant. What is relevant, however, is that when Mother had telephone conversations with Yvonne Stubbs during the year in question, she asked nothing about Child and said nothing about wanting to parent Child. Similarly, when Etter had a telephone conversation with Mother, Mother asked no questions about Child and said nothing about wanting to parent Child. Those facts demonstrate a lack of concern and the absence of a deliberate, intentional, and good-faith interest in maintaining a parent-child relationship. Moreover, Mother calls Mississippi once or twice a week to speak with her mother and other daughter. Her failure to make similar contact respecting Child is evidence that her failure with respect to Child was willful. 5. Cards or letters. Mother sent no cards or letters to Child or to the Stubbses (or anyone else having knowledge of Child) regarding Child. Mother was 29 years old and had a college education, demonstrating that she had the capacity to have made such inquiries had she wished to do so. 6. Other expressions of concern. Mother pursued this litigation, contesting Child's adoption by the Stubbses. That was her only expression of concern during the year in question, and it is not enough to constitute a substantial expression of concern that shows that Mother had a deliberate, intentional, and good-faith interest in maintaining a parent-child relationship with Child. Certainly, a parent's effort to regain access to his or her child is a form of expressing concern. Eder, 312 Or. at 269, 821 P.2d 400. However, in Eder, the parent did much more than merely pursue legal recourse; the parent also communicated often with the children by telephone and mail, sent birthday cards and gifts, sent money, and inquired of friends and relatives about the children's well-being. Id. By contrast, in this case, Mother did none of those things; the only thing that she did was to pursue this litigation. *1002 Based on the totality of the evidence, we find by clear and convincing evidence that Mother willfully failed to manifest substantial expressions of concern that show that she had a deliberate, intentional, and good-faith interest in maintaining a parent-child relationship during the year in question. Accordingly, we conclude that the trial court did not err in finding neglect and in granting the adoption in this case. The decision of the Court of Appeals is affirmed on different grounds. The judgment of the circuit court is affirmed. [1] ORS 109.309(2)(a), enacted in 1993, Or. Laws 1993, ch. 717, § 2, now specifically provides that the UCCJA applies to adoption proceedings. [2] The pleading filed on December 28, 1990, was labelled by the Stubbses as an "amended petition." As we discuss in the text of this opinion, infra, the petition is in fact a supplemental, not an amended, petition, and we refer to that petition as the "supplemental petition." [3] Moreover, the substance of the supplemental pleading makes clear that the supplemental pleading cannot relate back to the original date. The supplemental petition is based on ORS 109.324, which provides in part: "[I]f the court finds that [the] parent has willfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year next preceding the filing of the petition for adoption, the consent of such parent at the discretion of the court is not required and, if the court determines that such consent is not required, the court shall have authority to proceed regardless of the objection of such parent." (Emphasis added.) A claim under ORS 109.324 that a parent has willfully deserted or neglected the child for a year is measured from the time of the filing of the petition for adoption. In this case, the Stubbses' supplemental petition alleges neglect from December 28, 1989, to December 28, 1990. Thus, for purposes of ORS 109.324, the date of the "filing of the petition for adoption" is December 28, 1990. Because the petition alleging neglect is deemed filed on December 28, 1990, the action "commenced" on that date. [4] Determining when the proceedings in this case were "commenced" is critical, because it is apparent that as of January 30, 1989, Oregon did not have jurisdiction under the UCCJA. As of that date, Child had resided in Oregon for only three months. The trial court and the Court of Appeals concluded that Oregon had "significant connection" jurisdiction under ORS 109.730(1)(b). We disagree. To establish "significant connection" jurisdiction, "[t]here must be maximum rather than minimum contact with the state." Comment, UCCJA § 3, 9 ULA, part I, 144-45 (1988). Physical presence of the child in this state is not alone sufficient to establish jurisdiction. ORS 109.730(2). The evidence in the record concerning Child's connection with Oregon at the time the initial adoption petition was filed demonstrates that the Stubbses provided care for Child during the three months between November 1, 1989, and January 30, 1990. During that period, Child's only connection with Oregon was her physical presence in the state for three months. As noted, mere physical presence is not enough to establish "significant connection" jurisdiction. Indeed, the Official Comment states that "[s]hort-term presence in the state is not enough [to establish a `significant connection'] even though there may be an intent to stay longer." Comment, UCCJA § 3, 9 ULA, part I, 145 (1988). Child's short-term presence in Oregon was insufficient to establish "significant connection" jurisdiction as of January 30, 1989. See State ex rel Torres v. Mason, 315 Or. 386, 848 P.2d 592 (1993) (one month presence in Oregon insufficient to establish "significant connection" jurisdiction). [5] Because of our conclusion regarding jurisdiction, we need not consider whether, when a state other than Oregon is a child's "home state" and the child has a "significant connection" with Oregon, there is concurrent jurisdiction under the UCCJA or whether the UCCJA gives preference to "home state" jurisdiction. See Stubbs v. Weathersby, 126 Or.App. 596, 608-13, 869 P.2d 893 (1994) (Landau, J., dissenting) (arguing that the UCCJA gives preference to "home state" jurisdiction). [6] See Matter of Appeal in Pima Cty. Juv. Act. No. B-7087, 118 Ariz. 428, 577 P.2d 714 (1978) (Arizona court applied law of Arkansas when parties intended that the adoption would take place pursuant to the law of Arkansas). [7] ORS 109.312(1) provides: "Except as provided in ORS 109.314 to 109.329, consent in writing to the adoption under ORS 109.309 of a child shall be given by: "(a) The parents of the child, or the survivor of them. "(b) The guardian of the child, if the child has no living parent. "(c) The next of kin in this state, if the child has no living parent and no guardian. "(d) Some suitable person appointed by the court to act in the proceeding as next friend of the child to give or withhold consent, if the child has no living parent and no guardian or next of kin qualified to consent." [8] When the Court of Appeals reviews an adoption decree, "the Court of Appeals shall try the cause anew upon the record." ORS 19.125(3). When reviewing cases reviewed de novo by the Court of Appeals, this court has discretion to limit our review to questions of law: "When the Court of Appeals has tried a cause anew upon the record, the Supreme Court may limit its review of the decision of the Court of Appeals to questions of law." ORS 19.125(4). In this case, however, the Court of Appeals did not address the issue of neglect. ORS 19.125 contemplates that an appellant will receive de novo review of an appeal from a case in equity. Because its analysis did not require it to address the issue of neglect, the Court of Appeals did not make complete factual findings with respect to that issue. As we have explained, our analysis dictates that the issue of neglect be addressed. In the circumstances, we choose to exercise our discretion by reviewing the facts surrounding that issue de novo at this level. [9] Mother testified that she was seeking visits through requests by her lawyer. To the extent that Mother's testimony is in conflict with the testimony of Yvonne Stubbs, we note that the trial court, which had the opportunity to observe the witnesses first hand, rejected Mother's version of events when it conflicted with the testimony of Yvonne Stubbs. The Court of Appeals did the same on de novo review of the consent issue. Stubbs, 126 Or.App. at 603, 869 P.2d 893.

81e9b80e39ae9633f6ed1796730fe4fe40e070a9e211f1fb8a069892f077b945

1995-03-30T00:00:00Z

6a406de7-aaa3-4670-95c4-28d57f0ea8d3

Lake v. Lane County

321 Or. 572, 902 P.2d 90

oregon

Oregon Supreme Court

902 P.2d 90 (1995) 321 Or. 572 Jerry LAKE, Thelma J. Lake, A. George Cook, Eleanor Ribbans, Cynthia Allyn, Gary Haller, Kazuke Lytle, Bill Lytle, Vernon M. Neet, Ruth M. Olson, Edith Ellis, Diane Hardenbrook, Ivan L. Fisher, Edward S. Cox, Betty J. Rodke, G.P. Koberstein, Louise Koberstein, Walter J. Biegel, Gladys Jane Biegel, and Isabel Porter, Appellants, v. LANE COUNTY, Respondent. OTC 3309; SC S41912. Supreme Court of Oregon, In Banc. Argued and Submitted September 8, 1995. Decided September 21, 1995. Robert L. Ackerman, of Ackerman, DeWenter & Huntsberger, P.C., Springfield, argued the cause and filed the briefs for appellants. G. David Jewett, of Thorp, Purdy, Jewett, Urness & Wilkinson, P.C., Springfield, argued the cause and filed the briefs for respondent. PER CURIAM. This is an appeal by a group of taxpayers who are residents of an unincorporated area of Lane County. They seek reversal of a judgment of the Oregon Tax Court that denied them a declaration that a fee imposed by Lane County should be designated as being subject to the property tax limitation imposed by Article XI, section 11b, of the Oregon Constitution. We affirm. The Lane County Metropolitan Waste Water Service District (Service District) was formed under ORS chapter 451. In 1978, it sold general obligation bonds to finance the construction of a regional sewage treatment facility to be used by several municipalities in the region. The Service District imposed a tax levy to repay the bonds. Taxpayers' real property is located outside the 1990 boundaries of the Service District and was not served by the regional system initially. However, after the bonds were voted and issued, the City of Eugene extended the sewers to serve taxpayers' real property, pursuant to various intergovernmental agreements and actions. Lane County imposes a fee, designated an "in lieu of bond retirement fee," against real property that is located outside the Service District but is served by the sewers and sewage treatment facility that the Service District constructed. Lane County remits the proceeds from the fees to the Service District to pay the principal and interest on the bonds issued by the Service District. The fee is a lien on the real property of taxpayers and subjects that property to foreclosure if the fees are not paid. Article XI, section 11b(3)(b), of the Oregon Constitution, provides: "The limitations [on property taxes] of subsection (1) of this section apply to all *91 taxes imposed on property or property ownership except " * * * * * Taxpayers assert that the assessment "in lieu of bond retirement fee" is a "tax" within the meaning of Article XI, section 11b, but that the tax is not exempt under Article XI, section 11b(3)(b), because the governmental entity collecting the "tax" is not the same governmental entity that imposed it. We are not persuaded by taxpayers' argument. There is no question that the obligation in question arises out of bonded indebtedness incurred for capital construction, that the bonds were offered as general obligations of the issuing governmental unit, or that the bonds were issued no later than November 6, 1990. Those are the only qualifications that have to be met in order for the amounts at issue here to be exempt, under Article XI, section 11b(3)(b), of the Oregon Constitution, from the limitation imposed by Article XI, section 11b(1), of the Oregon Constitution. The fact that a governmental unit, other than the one that issued the general obligation bonds, serves as a conduit for the collection of amounts required to service the debt on the bonds is not relevant. The Tax Court's conclusion to that effect was correct. The judgment of the Tax Court is affirmed.

342af5c6028b16d09ebfa0fc142e8852e58d7a4dc2c04a5b3d042be5aefac5c8

1995-09-21T00:00:00Z

5e952470-547e-41cc-8b93-6307e8224de5

State v. Garrett

S058620

oregon

Oregon Supreme Court

Filed: March 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Appellant, v. MICHAEL GARRETT, Defendant-Respondent. (CC081235272; SC S058620) En Banc On appeal from an order of the Multnomah County Circuit Court under ORS 138.060(2)(a). Alicia Fuchs, Judge. Argued and submitted January 14, 2011. Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for plaintiff-appellant. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Laurie Bender, Laurie Bender P.C., Portland, argued the cause for defendant-respondent. With her on the brief was Ralph H. Smith, Jr. DE MUNIZ, C. J. The order of the circuit court is affirmed and the case is remanded for further proceedings. DE MUNIZ, C. J. Defendant is charged with six counts of aggravated murder, ORS 163.095, and one count of intentional murder, ORS 163.115, for the 1988 murder of Loretha Williams. Before trial, defendant filed a motion in limine to exclude evidence relating to defendant's convictions for the 1990 assault of Lizette Moore. The trial court granted defendant's motion. The state appealed directly to this court under ORS 138.060(2),(1) seeking reversal of the trial court's order. As we explain below, we affirm the trial court's order. Loretha Williams was murdered in 1988. Williams had been a single working mother who also sold cosmetics and "dime bags" of marijuana out of her home in Northeast Portland. Detectives found Williams's body in her residence naked from the waist down. There was a lamp cord loosely wrapped around Williams' neck, and stab wounds to her chest and abdomen. The medical examiner later determined that the cause of death was both strangulation and stabbing. The lamp cord and two knives were recovered at the crime scene. In the initial investigation of the Williams homicide, detectives found no evidence of forced entry and nothing appeared to have been taken from the residence -- Williams's checkbook, $300.00 dollars in cash, and her jewelry were undisturbed. The investigation revealed that, before her death, Williams had been seen by a number of people selling "dime bags" of marijuana out of her home; however, only a small amount of marijuana and associated paraphernalia were found at the crime scene. Police discovered defendant's name and telephone number on a small card in the victim's house. Detectives interviewed defendant and he admitted purchasing marijuana from Williams. However, he denied any involvement with Williams's murder or of being inside her residence at any time. When the homicide occurred, defendant lived just blocks away from Williams. No charges were filed against defendant at that time. In 1990, 17 months after the Williams homicide, defendant knocked on the door of Lizette Moore, his neighbor, and asked to use her telephone. Moore was a single working mother who lived across the street from defendant and within five blocks of where Williams had been killed. After making his telephone call, defendant attacked Moore with a three-pound-iron dumbbell, hitting her several times on the head and stopping only when Moore feigned unconsciousness. Moore, however, saw defendant take her purse. Moore's daughter called 9-1-1, reported the assault, and identified defendant as the assailant. Police later found the dumbbell and a knife in the room where defendant had assaulted Moore. However, it appeared that only the dumbbell had been used during the assault. Soon after the assault, police located defendant in the neighborhood and Moore identified him as her attacker. Defendant told the detectives that he had known Moore for several years and that he had been in her house a week before, but denied any involvement in the assault of Moore. Defendant's blood-stained clothing later was discovered at his sister's residence. Defendant was charged and convicted of attempted murder, first-degree assault, first-degree robbery, and first-degree burglary in the Moore case. In 2002, following scientific advances in DNA testing, the knives and the lamp cord recovered in the Williams case were again tested. Blood from a knife handle revealed DNA that police later associated with an unsolved rape case in Texas. Police determined that DNA evidence on the lamp cord was defendant's, and that the frequency of defendant's DNA profile was one in 469 million African-American persons. As a result of that DNA match, detectives reopened the Williams case and reinterviewed defendant. Defendant made statements to detectives that were consistent with those that he had made in 1988. In 2008, police arrested defendant for the Williams homicide. At that time, a detective asked defendant to identify his motive for his attack on Moore. Defendant responded that he had attacked Moore as part of a plan to rob her of drugs that he believed she was holding in her residence for local gang members. Moore, however, denied any involvement with drugs, and the detectives had found no evidence, aside from defendant's own statement, that pointed to Moore's involvement with drugs. Before trial, defendant filed a motion in limine to exclude evidence of the attack on Moore and requested a hearing on the motion. For its part, the state moved to admit the evidence pursuant to OEC 404(3). The state intended to offer, in its case-in-chief, certified copies of defendant's convictions in the Moore case -- attempted murder, first-degree assault, first-degree robbery, and first-degree burglary -- as well as the testimony of Moore and the detective investigating the Williams murder. According to the state, the evidence was admissible to prove that defendant's motive and intent had been to burglarize Williams's residence and rob her. The state argued that the evidence was therefore admissible under OEC 404(3), which we set out below. Following a hearing, the trial court concluded that evidence of defendant's crimes against Moore was not admissible to prove defendant's motive or intent in the Williams case. The trial court reasoned that "[t]he fact that the officer who testified as to [defendant's] statement about the 1990 burglary/assault used the term 'motive' in his questioning of [defendant] does not in fact make it a motive." The trial court found that defendant's 1990 convictions were essentially character evidence that the jury might impermissibly use to conclude that defendant was a bad person or that, having committed crimes against Moore, it was likely defendant also had murdered Williams. The trial court went on to conclude that, in any event, under OEC 403, the evidence that the state sought to admit would, on balance, be more prejudicial than probative.(2) As noted, the state appealed the trial court's ruling directly to this court. The state now argues that the trial court erred in concluding that the evidence was essentially character evidence and therefore irrelevant for any noncharacter purpose. At the outset, we note that the state does not seek to admit the evidence of defendant's crimes against Moore to prove that defendant intentionally committed the Williams homicide. Rather, the state seeks to admit the evidence as part of its proof that defendant intended to burglarize and rob Williams and that defendant murdered Williams in furtherance of those crimes. Accordingly, we focus our relevance analysis on the issues of intent and motive to commit robbery or burglary.(3) The burden to show that the evidence is relevant in that regard is on the state. See State v. Pratt, 309 Or 205, 210, 785 P2d 350 (1990) (burden on party offering evidence to show evidence is relevant and probative of something other than disposition to do evil). We review questions of relevance for errors of law. See State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999) (relevance determination reviewed for errors of law). OEC 404(3) allows for the introduction of other crimes, wrongs, or acts as proof, inter alia, of intent or motive. 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." In State v. Johns, 301 Or 535, 544, 725 P2d 312 (1986), this court observed that OEC 404(3) is a rule of inclusion, permitting the introduction of other crimes evidence as long as the evidence is relevant for a noncharacter purpose. However, evidence of other crimes may not be introduced solely to prove that, because of defendant's character, it is more probable that defendant committed the crime for which he is on trial. State v. Johnson, 313 Or 189, 194, 832 P2d 443 (1992). In Johns, this court concluded that, to properly admit other crimes evidence as proof of intent, a court must consider the following six questions: "(1) Does the present charged act require proof of intent? "(2) Did the prior act require intent? "(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case? "(4) Was the type of prior act the same or similar to the acts involved in the charged crime? "(5) Were the physical elements of the prior act and the present act similar? "(6) If these criteria are met, is the probative value of the prior act evidence substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, undue delay or presentation of cumulative evidence?" Id. at 555-56. The first five questions relate to the issue of relevance. Pratt, 309 Or at 211. In applying the Johns test, this court has stated that only if the answer to each of the first five questions is yes -- leading to the conclusion that the evidence is relevant for a noncharacter purpose -- should the court proceed to the sixth question and weigh the probative value and the prejudicial effect of the evidence under OEC 403. Id. Because defendant concedes that questions one, two, and, arguably, three of the Johns test can be answered affirmatively, we do not consider them further. With regard to questions four and five -- the similarity between the acts perpetrated in each crime and their physical elements -- the state asserts that both acts are of sufficient similarity to permit the admission of defendant's crimes against Moore. According to the state, both crimes were brutal attacks against single mothers who lived within close proximity to defendant, and defendant knew each of them. In determining whether the physical elements of the prior acts and the present acts are sufficiently similar to warrant their admission into evidence, this court has observed: "The circumstances of each crime as a whole must be compared. First the trial judge must find that there are significant similarities in the physical elements of the two crimes. If that test is met, then the trial judge must consider the differences between the physical elements of the two crimes. The differences may be minimal -- for example, the offender may have used different words to indicate his intent. On the other hand, the differences may be so great that they overwhelm the similarities. The point is: The dissimilarities must be as fully considered as the similarities in answering this question. "Determining what constitutes a significant similarity is a matter to be decided on a case-by-case basis. Some similarities are so common as to be trivial (for example, the offender spoke English during both crimes) while others may be so unusual as to be significant even standing alone (for example, the offender spoke a foreign language when he intended to rape, but spoke English otherwise). Most often the significance of the similarities will arise out of their combination." Pratt, 309 Or at 214. Consistently with this court's observation in Pratt, we now compare the circumstances of the separate crimes. The assault on Williams involved strangulation with a lamp cord, and stabbing with a knife, and she was left naked from the waist down with her undergarments torn off. Nothing appeared to have been stolen or was missing from Williams's residence. DNA evidence suggested that Williams may have been attacked by more than one perpetrator. In contrast, although defendant claimed that Moore was holding drugs for local gang members, no drugs were found at Moore's residence, defendant assaulted Moore with a three-pound-iron dumbbell, and he stole Moore's purse. Despite the physical differences between the crimes that we just described, the state asserts that, although no large amounts of drugs were found in Williams's residence, she was known in her neighborhood as a marijuana dealer. According to the state, it is therefore permissible to infer that drugs were present in the Williams residence and that those drugs were stolen when Williams was murdered. We reject the state's assertion. There is nothing in the record to establish that a robbery or burglary was committed during the Williams homicide. Instead, the record shows that nothing was missing from Williams's residence and that Williams's checkbook, cash, and jewelry were undisturbed. The state's assertion that Williams' marijuana was stolen is based on a detective's testimony that it is common for drug dealers to possess large quantities of marijuana and that detectives were surprised that only a small amount of marijuana was found in Williams's residence. The detective's experience that drug dealers usually have large quantities of drugs on hand is insufficient in this context to give rise to a permissible inference that the person or persons who murdered Williams did so in the course of burglarizing and robbing Williams of a large quantity of marijuana. In light of the evidence of sexual assault and the absence of any evidence of robbery or burglary, the state's claim that a robbery or burglary took place in furtherance of the Williams homicide is mere conjecture. Consequently, the state has not met its burden to show that the evidence of defendant's crimes against Moore is probative of anything in this case other than establishing defendant's disposition to engage in criminal conduct. See State v. Johnson, 340 Or 319, 338, 131 P3d 173 (2006) (other crime evidence admissible as long as chain of logical relevance connecting other crime does not ultimately rely on an inference relating to defendant's character or propensity). The trial court correctly concluded that defendant's assault on Moore was not relevant for the noncharacter purpose of proving defendant's intent to commit burglary and robbery in this case.(4) We turn next to the question of whether the evidence at issue here is relevant under OEC 404(3) to prove motive.(5) Essentially, the state makes the same arguments that it did regarding intent, i.e., that defendant's motive was to burgle and rob Williams of drugs and that Williams was murdered in the course of those crimes. With regard to motive, the state relies on Johnson, 313 Or at 194, and State v. Hampton, 317 Or 251, 855 P2d 621 (1993), cases in which this court used a three-part test -- the first two parts of which are relevancy considerations and the third part of which involves the OEC 403 balancing test -- to determine the admissibility of other crimes evidence to prove motive.(6) In Hampton, the defendant was charged with assaulting a police officer. The "other crimes evidence" at issue in Hampton was evidence that the defendant was on parole at the time of the alleged assault, that he had not been in contact with his parole officer, and that there was an outstanding warrant for his arrest for a parole violation. Using the three-part test established in Johnson, this court agreed that evidence of the defendant's parole status was relevant to prove motive for the assault, i.e., that the defendant had resisted and assaulted the police officer to avoid apprehension and revocation of his parole. Hampton thus demonstrates that other crime evidence need not have the same physical elements as the crime charged to be admissible as motive evidence. That observation does not aid the state here. Under both the Johns test for intent and the Hampton test for motive, it remains the rule that, to be admissible, other crimes evidence must be relevant for a noncharacter purpose. As explained earlier, there simply is insufficient evidence in this record that either a burglary or robbery occurred in connection with the Williams homicide. Therefore the evidence of defendant's other crimes against Moore has no logical relevance -- the evidence does not tend to prove that defendant intended or was motivated to commit robbery or burglary in connection with the Williams homicide. For the same reasons that we have concluded that the evidence of defendant's crimes against Moore is not relevant to prove defendant's intent to burgle and rob Williams, we also conclude that the trial court correctly rejected the state's argument that the other crimes evidence was relevant to prove defendant's motive in this case. The order of the circuit court is affirmed and the case is remanded for further proceedings. 1. ORS 138.060(2) provides, in part: "Notwithstanding subsection (1) of this section, when the state chooses to appeal from an order listed in paragraph (a) or (b) of this subsection, the state shall take the appeal from the circuit court to the Supreme Court if the defendant is charged with murder or aggravated murder. The orders to which this subsection applies are: "(a) An order made prior to trial suppressing evidence[.]" 2. 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." 3. An earlier indictment in this case included one count of first-degree robbery, ORS 164.415, and one count of first-degree burglary, ORS 164.225. Those charges were dismissed following a successful demurrer on statute-of-limitation grounds. The parties do not address or identify any relevancy issues arising from the fact that defendant cannot be convicted in this case of either robbery or burglary because the statute of limitations has expired on both crimes. In any event, we express no opinion in that regard. 4. Because we agree with the trial court's conclusion that the other crimes evidence is not relevant, we do not need to consider the correctness of the trial court's additional determination that any probative value of the other crimes evidence was substantially outweighed by the danger of unfair prejudice. 5. In State v. Walker, 244 Or 404, 411-12, 417 P2d 1004 (1966), this court defined motive as "a cause or reason that moves the will and induces action, and inducement which leads to or temps the mind to commit an act." (Citations omitted.) 6. In Hampton, this court quoted the three-part test established in Johnson: "'(1) The evidence must be independently relevant for a noncharacter purpose [such as, in this case, proof of motive]; (2) the proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed and that defendant committed it; and (3) the probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403. Each of these requirements must be satisfied before uncharged misconduct evidence is admissible under OEC 404(3).'" Id. at 254 (quoting Johnson, 313 Or at 195) (alternation in original).

57650b5a01797dbabb8763d950c14dab3859e16543fd4b3b9bc156be5583be13

2011-03-10T00:00:00Z

4f8369ab-321b-4718-8dd4-091b0f3ed2f1

Uptown Heights Assoc. v. Seafirst Corp.

320 Or. 638, 891 P.2d 639

oregon

Oregon Supreme Court

891 P.2d 639 (1995) 320 Or. 638 UPTOWN HEIGHTS ASSOCIATES LIMITED PARTNERSHIP, a Washington limited partnership, Leavitt, Shay (Uptown), Inc., a Washington corporation, and Leavitt, Shay & Company, Inc., a Washington corporation, Petitioners on Review/Respondents on Review, v. SEAFIRST CORPORATION, a Washington corporation and registered bank holding company, and Seattle-First National Bank, a national banking association, Respondents on Review/Petitioners on Review. CC 9203-02042; CA A75880; SC S41412, S41413. Supreme Court of Oregon, In Banc. Argued and Submitted December 8, 1994. Decided March 30, 1995. *641 Jacob Tanzer of Ball, Janik & Novack, Portland, argued the cause for petitioners on review/respondents on review Uptown Heights Associates Ltd. Partnership, et al. With him on the petition and briefs was Brace W. DeKock. Rodney E. Lewis of Davis Wright Tremaine, Portland, argued the cause and filed the briefs for respondents on review/petitioners on review Seafirst Corp., et al. James L. Murch of Sherman, Bryan, Sherman & Murch, Salem, filed a brief on behalf of amicus curiae Oregon Bankers Assn. Henry Kantor of Kantor and Sacks, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n. With him on the brief were Richard H. Braun, Thomas K. Coan, and Phil Goldsmith. GRABER, Justice. This case involves a loan by a bank to a developer. The developer claims that the bank breached its duty of good faith [1] and intentionally interfered with the developer's economic relations. The circuit court dismissed the complaint; the Court of Appeals reversed with respect to the intentional interference claims. Uptown Heights Associates v. Seafirst Corp., 127 Or.App. 355, 368, 873 P.2d 438 (1994). We hold that the developer failed to state a claim with respect to the first through fourth claims for relief but that it stated a claim with respect to the fifth claim for relief. This case comes to us on review of an ORCP 21 A(8) motion.[2] Therefore, we assume the truth of all well-pleaded facts alleged in the complaint and give plaintiffs the benefit of all favorable inferences that may be drawn from those facts. Stringer v. Car Data Systems, Inc., 314 Or. 576, 584, 841 P.2d 1183 (1992). The present controversy arose from a construction loan made to plaintiffs, Uptown Heights Associates Limited Partnership; Leavitt, Shay (Uptown), Inc.; and Leavitt, Shay & Company, Inc. (collectively referred to as "Uptown" in this opinion), by defendant Seattle-First National Bank (Bank).[3] In 1988 or 1989, Bank learned of Uptown's plans to construct a "high-end" apartment complex in Portland. Bank aggressively solicited Uptown and, on June 20, 1989, Uptown entered into a construction loan agreement with Bank. Uptown borrowed $7,500,000, with interest at one-half of one percent over prime. The loan was secured by a deed of trust on the land and buildings that comprised the apartment complex.[4]*642 Under the terms of the loan, Uptown was to pay monthly interest until the loan matured. The principal amount was due at maturity, January 1, 1991, with a provision for two six-month extensions until January 1992. Soon after construction of the apartment complex was completed, the rental market dropped dramatically from Uptown's pre-construction forecasts. For that reason, Uptown encountered difficulty in meeting its obligation to make its monthly interest payments on the loan. In October 1990, Bank agreed to one six-month extension on the loan. Although rental rates improved in late 1990 and early 1991, Uptown was unable to make its full interest payment to Bank in April 1991. Bank had the apartment complex appraised by an independent appraiser; the appraised value was $8,850,000, slightly more than $1 million above the outstanding balance of Bank's loan to Uptown. Uptown and Bank continued to negotiate concerning the loan. Bank personnel who handled the loan assured Uptown that Bank would work with Uptown to resolve any problems surrounding the loan. Despite those assurances, in June 1991, Bank elected not to grant the second six-month extension. Bank transferred the Uptown account to a department for problem loans known as "Special Credits." Bank also refused to lend money for an unrelated joint venture project involving Uptown (among others) unless Uptown were removed as a participant. Bank personnel began to threaten foreclosure on the apartment complex. That pressure forced Uptown to seek a quick sale to try to avoid the harm to its investment and business reputation that would flow from a foreclosure. Uptown told Bank that it planned to sell the apartment complex and notified Bank that a foreclosure action would damage or destroy Uptown's chances of selling the complex and avoiding a foreclosure sale. Uptown told Bank that potential buyers would have no interest in buying the property from Uptown if they knew that it was threatened with foreclosure, because buyers typically wait to try to buy such a property at a bargain price after foreclosure. On July 29, 1991, Uptown received an offer to purchase the apartment complex from a buyer in Bend. On July 31, 1991, Uptown notified Bank of that offer. On August 2, 1991, Bank initiated a foreclosure action, filed for appointment of a receiver, and scheduled a trustee's sale for December 20, 1991. Before the hearing on the appointment of a receiver, Uptown provided Bank with the purchase offer that it had received. Bank refused to postpone the hearing to permit further negotiations between Uptown and the offeror and, as a result, the offeror did not proceed further. The receivership hearing was held on August 16, 1991. The court appointed a receiver chosen by Bank. Uptown continued to look for a buyer for the apartment complex to avoid the harm that would result to its business reputation from a foreclosure sale and to attempt to recover some of its investment. On October 22, 1991, Uptown notified Bank that it had received a second offer for the apartment complex, which would result in a price of between $8.1 and $8.6 million. Uptown also asked that the receiver be replaced immediately. Bank responded to the October 22 notice on November 7, 1991. At that time, Bank refused to extend the foreclosure sale to permit steps to be followed toward closing the sale proposed by Uptown. Uptown continued to negotiate with the second potential buyer and provided Bank with a copy of a signed purchase agreement. Uptown again asked Bank to postpone the foreclosure sale, this time for the purpose of allowing the second potential buyer to arrange for financing. Bank refused. Uptown and the second potential buyer were unable to work out an agreement under which they could meet Bank's deadline for a full payoff before the foreclosure sale. The foreclosure sale took place on December 20, 1991. Bank bid $7.8 million (the outstanding balance of the loan) and took title to the apartment complex. In January 1992, Bank entered into a purchase and sale agreement with the same second potential buyer for $7.8 million. Uptown received nothing. Uptown brought this action against Bank, raising one claim for "breach of contractual *643 duty of good faith and fair dealing," one claim for "tortious breach of the duty of good faith and fair dealing," and three claims for intentional interference with economic relations. The circuit court dismissed the complaint, pursuant to ORCP 21 A(8), on the ground that Uptown failed to state facts sufficient to constitute a claim. The Court of Appeals, sitting in banc, affirmed as to the duty of good faith claims, but reversed as to the claims for intentional interference with economic relations. Uptown Heights Associates, 127 Or.App. at 368, 873 P.2d 438. In a separate opinion, Judge Riggs concurred with respect to the claims for intentional interference with economic relations, but dissented with respect to the good faith claims. Id. at 368-71, 873 P.2d 438 (Riggs, J., concurring in part and dissenting in part). In another separate opinion, Judge Edmonds (joined by Judge Landau) concurred with respect to the duty of good faith claims, but dissented with respect to the claims for intentional interference with economic relations. Id. at 371-81, 873 P.2d 438 (Edmonds, J., concurring in part and dissenting in part). This court allowed both parties' petitions for review. For the following reasons, we now affirm in part and reverse in part the decision of the Court of Appeals. This court recently addressed the scope of the duty of good faith in Pacific First Bank v. New Morgan Park Corp., 319 Or. 342, 876 P.2d 761 (1994). Pacific First Bank involved a lease agreement that prevented a tenant from transferring the lease without the landlord's approval. 319 Or. at 344, 876 P.2d 761. In that case, the tenant merged into its wholly owned subsidiary, thus effecting a transfer of the lease requiring the landlord's consent. Id. at 345, 876 P.2d 761. The landlord refused to grant consent. Ibid. This court held that, although a duty of good faith applied to the lease agreement, the landlord did not breach that duty, "because the landlord's refusal did not contravene the `reasonable expectations' of the parties as manifested in the express terms of the lease agreement at issue." Id. at 344, 876 P.2d 761. This court reiterated in Pacific First Bank that every contract contains an implied duty of good faith. Id. at 350, 876 P.2d 761. That duty "is to be applied in a manner that will effectuate the reasonable contractual expectations of the parties." Id. at 353, 876 P.2d 761 (citation omitted) (internal quotation marks omitted). But, "it is only the objectively reasonable expectations of [the] parties that will be examined in determining whether the obligation of good faith has been met." Tolbert v. First National Bank, 312 Or. 485, 494, 823 P.2d 965 (1991) (emphasis added) (footnote omitted); see also Pacific First Bank, 319 Or. at 352, 876 P.2d 761 (quoting Tolbert, with approval). In Pacific First Bank, the court also restated the precept that the duty of good faith cannot serve to contradict an express contractual term: "This court has emphasized that "`[t]he obligation of good faith does not vary the substantive terms of the bargain * * *, nor does it provide a remedy for an unpleasantly motivated act that is expressly permitted by contract * * *.' Under the foregoing established principles, if a written contract between the parties expressly allows for a particular remedy by one of the parties, in the face of a specified breach, the parties' objectively "reasonable expectations" under the contract include the invocation of that remedy in the face of that breach. The party invoking its express, written contractual right does not, merely by so doing, violate its duty of good faith. The agreement between Uptown and Bank, as pleaded by Uptown, gave Bank the right to foreclose should Uptown default on the loan. Uptown also pleaded that it defaulted on the loan. Uptown did not plead any additional facts that would support a claim for violation of the duty of good faith. For example, Uptown did not plead that Bank caused the default to occur, which in turn gave rise to the contractual right to *644 foreclose. Neither did Uptown plead that Bank failed to follow the proper method of foreclosure. Uptown argues that, when a contract gives one party discretion as to when to invoke a bargained-for remedy, the circumstances giving rise to that invocation may permit a claim for breach of the duty of good faith. Uptown argues that this duty was breached when Bank refused to grant the second loan extension and continued to seek foreclosure, because those acts would harm Uptown, while Bank would derive no benefit. In support of its argument, Uptown relies on statements made by this court in Best v. U.S. National Bank, 303 Or. 557, 739 P.2d 554 (1987). Reliance on Best is misplaced in this context. In Best, the court considered whether a bank's fees for processing nonsufficient fund (NSF) checks were so high as to violate the bank's duty of good faith in the performance of its account agreements with its depositors. 303 Or. at 561-66, 739 P.2d 554. Under the bank's contracts with its customers, the bank "had the contractual discretion to set its * * * fees." Id. at 564, 739 P.2d 554. Because the court concluded that there was a "genuine issue of material fact whether the Bank set its * * * fees in accordance with the reasonable expectations of the parties," id. at 565, 739 P.2d 554, the court held that the defendant's motion for summary judgment should not have been granted on that issue, id. at 566, 739 P.2d 554. In reaching that conclusion, the court stated: Relying on Best, Uptown argues that the underlying purpose of Bank's power to foreclose was to secure its loan. That was the reasonable expectation of the parties when they bargained for the foreclosure provision in the contract. Because the value of the property was in excess of the loan balance and because Uptown had located a prospective buyer who was willing to purchase the property for a price in excess of the balance, Uptown argues that "a jury may infer that [Bank] acted for some other purpose not consistent with the parties' expectations when they agreed that [Bank] would have this" contractual right to foreclose. Best is inapposite, because in that summary judgment case that bank had the discretion to fill in an open price term, and no method of setting the NSF fee was spelled out in the depositors' contracts. "Assuming that there was no agreement [about the method of setting the NSF fee], the question before us is whether there is a genuine issue of material fact whether the Bank set its NSF fees in good faith." 303 Or. at 562, 739 P.2d 554 (emphasis added). After examining the evidence before the court on summary judgment, the court concluded that there was a genuine issue of fact concerning the method by which that bank would exercise its discretion to set an NSF fee. Id. at 564-66, 739 P.2d 554. By contrast, in this case, there was a specific agreement. The loan agreement as pleaded by Uptown authorizes foreclosure for any default, not merely for a default that jeopardizes security. More to the point than Best is Tolbert, in which the contract contained an express price term. Tolbert, 312 Or. at 490-91, 823 P.2d 965. In Tolbert, as in Best, this court addressed whether a bank had breached its duty of good faith to its depositors in setting and revising the fees that it charged to depositors for NSF checks. Tolbert originally was accepted as a companion case to Best. Id. at 488, 823 P.2d 965. In Tolbert, the court affirmed the trial court's grant of summary judgment precisely because the bank's customers were apprised of the fees that would be applied to their accounts when they entered their contracts with the bank. Id. at 491-93, 823 P.2d 965. The court in Tolbert. wrote that Here, Uptown has pleaded that it defaulted on the interest payments that it was required to make under the loan and that the remedies pursued by Bank are expressly permitted by the parties' written contract in the event of such a default. Uptown's pleading does not suggest that the contract contained any other precondition on Bank's right to foreclose, except for such a default. The contractually described purpose of Bank's power to foreclose was, then, to remedy a default. Thus, "[i]n the present case, the reasonable contractual expectations of the parties are shown, by the unambiguous terms" of the contract as those terms are relayed in Uptown's pleadings. See Pacific First Bank, 319 Or. at 353, 876 P.2d 761 (stating principle). Under those terms, "the parties agreed tothat is, reasonably expecteda unilateral, unrestricted exercise of discretion" in Bank's choice of foreclosure as a remedy should Uptown breach the contract by failing to make its mortgage payments. See id. at 354, 876 P.2d 761 (stating principle). Accordingly, the trial court did not err when it dismissed the first claim for relief. The Court of Appeals properly sustained that dismissal. Uptown next argues that the Court of Appeals erred when it affirmed the circuit court's dismissal of a claim for "tortious breach of the duty of good faith." Uptown alleged that there was "a special relationship of trust and confidence" between Bank and Uptown, imposing on Bank "a duty not to harm [Uptown's] interests by its conduct." Bank allegedly breached that duty by initiating a foreclosure action and seeking a court-ordered receivership when such a remedy would harm Uptown and be of no benefit to Bank. In Georgetown Realty v. The Home Ins. Co., 313 Or. 97, 831 P.2d 7 (1992), an insured brought a claim against an insurer, alleging that the insurer was negligent when it failed to settle the third party's claim against the insured. This court held that, when the insurer undertook the responsibility to defend the insured, the law imposed a duty on the insurer, independent of the insurance policy, to use reasonable care; the failure of the insurer to exercise reasonable care thus gave rise to a claim for negligence. 313 Or. at 110-11, 831 P.2d 7. The court reasoned: Uptown has pleaded that "[t]here was a special relationship of trust and confidence" between it and Bank, because of their past "course of dealing," which created a standard of care independent of the contract. Uptown's allegations fall into four categories: (1) Uptown alleged that Bank had a selfish incentive for entering into the loan transaction. (For example, Uptown alleged that "[Bank's] personnel used [Uptown] as a means to satisfy their personal and professional goals" and that Bank "advertised [Uptown] as one of its special customers.") (2) Uptown alleged that Bank negotiated aggressively toward the loan agreement and, in the course of those negotiations, made assurances to Uptown that Bank wanted Uptown to succeed. (For example, Uptown alleged *646 that Bank "aggressively solicited the * * * loan, by telling the principals of [Uptown] that [Bank] wanted to continue to be its primary bank and lender [and] that they were the kind of customers [Bank] wanted." Uptown also alleged that Bank expressed assurance "that it would work with [Uptown] to make the project a success.") (3) Uptown alleged that Bank had waived its contractual rights in other contracts with Uptown. (For example, Uptown alleged that, "[d]espite its contractual rights to do so, [Bank] did not enforce reporting and monitoring requirements on several [Uptown] and related entity loans, personal lines of credit or other agreements.") (4) Uptown alleged that one of the principals and his family had a long personal relationship with Bank, during which Bank "did not strictly enforce its rights, conducted business informally and treated [the principal] as a special customer. [Bank] repeatedly told [the principal] that it would not do this, except for his special relationship with [Bank]." Reading the allegations of the complaint in the light most favorable to Uptown, and giving Uptown the benefit of all favorable inferences, none of those allegations suggests a standard of care imposed on Bank in favor of Uptown, apart from the contract. The first two kinds of allegations suggest, to the contrary, that Bank had an arm's-length, commercial relationship of creditor to debtor with Uptown. The facts that Bank used aggressive sales tactics, that it made commercial use of its customer relationship with Uptown, and that its employees sought advancement from that commercial relationship do not impose a standard of care on Bank that is higher than that ordinarily applied to debtor-creditor relationships. The third and fourth kinds of allegations suggest, at most, that Uptown and one of the principals (who is not an individually named plaintiff) had acquired a contractual right to expect forbearance with respect to other contracts, not at issue here. Uptown did not allege that the parties' past course of dealing resulted in any modification to the terms of the loan agreement at issue. Neither did Uptown allege that the parties' past course of dealing was itself of a fiduciary nature. To summarize, none of Uptown's allegations suggests a standard of care imposed on Bank in favor of Uptown, apart from the loan agreement. In the absence of a standard of care independent of the contract, Bank was under no obligation to refrain from invoking its contractual right to foreclose after default. The trial court did not err when it dismissed the second claim for relief, and the Court of Appeals properly sustained that dismissal. Uptown's third, fourth, and fifth claims for relief are for tortious interference with economic relations. We separate our discussion of the fifth claim from our discussion of the other two, because it raises different issues. A. Third and Fourth Claims for Relief In its third and fourth claims, Uptown contends that Bank interfered with contractual relations between Uptown and a prospective "buyer for the Uptown Heights Apartments." To state a claim for intentional interference with economic relations, a party must allege: (1) the existence of a valid business relationship or expectancy, (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect between the interference and damage to economic relations, and (6) damages. Straube v. Larson, 287 Or. 357, 360-61, 600 P.2d 371 (1979); Wampler v. Palmerton, 250 Or. 65, 73-76, 439 P.2d 601 (1968). The dispositive issue here is the fourth element, the accomplishment of an interference through improper means or for an improper purpose. It is settled that "[e]ither the pursuit of an improper objective of harming plaintiff or the use of wrongful means that in *647 fact cause injury to plaintiff's contractual or business relationships may give rise to a tort claim for those injuries." Top Service Body Shop v. Allstate Ins. Co., 283 Or. 201, 205, 582 P.2d 1365 (1978). But, in order to prevail, a plaintiff must establish Uptown makes no allegation of improper means here. Uptown alleges only an improper purpose. The essence of Uptown's argument is that a party who invokes an express contractual remedy by proper means still may be liable for intentional interference with economic relations if that party simply has a malevolent reason for enforcing its written contract. We disagree. When a party invokes an express contractual remedy in circumstances specified in the written Contraetconduct that reflects, by definition, the reasonable expectations of the partiesthat party cannot be liable for intentional interference with economic relations based solely on that party's reason for invoking the express contractual remedy. That is because, if the defendant has interfered with the plaintiff's economic relations, the defendant has done so for a "legitimate" purpose, Straube, 287 Or. at 361, 600 P.2d 371invocation of an express, written contractual remedyin such circumstances.[5] A contrary ruling would contravene public policy and undermine the stability of contractual relations. As this court's decision in Pacific First Bank made clear, courts will not read implied terms into a contract if those terms would contradict the express terms of the contract. It would be anomalous to hold that a party to a contract nonetheless must defend a tort claim when a complaint shows that the party did precisely what the party was entitled to do under the contract. "Economic relations are controlled by contract[,] and the public [as well as the individual contracting party] has an interest in maintaining the security of such transactions." Wampler, 250 Or. at 73, 439 P.2d 601. Uptown's third and fourth claims for relief were properly dismissed by the trial court. The Court of Appeals erred when it reversed that dismissal. Uptown's fifth claim for relief alleges that Bank interfered with economic relations between Uptown and Wright Runstad & Co. (WRC), a third party negotiating with Bank for a loan. Uptown alleges that Bank "made funding in a major unrelated project with [WRC] in Bellevue, Washington, contingent on removing [Uptown] as its joint venture partner." Uptown also alleges: "The defendants' motive in such interference was to injure the business relations to the detriment of plaintiffs[,] and defendants acted in bad faith." Bank argues that Uptown did not sufficiently plead improper means or improper purpose.[6] The general rule is that, ordinarily, one may refuse to deal with another and not be liable in tort for that refusal. See, e.g., Tolbert, 312 Or. at 492-93, 823 P.2d 965 (approving of a bank's policy of not entering into a contract with a depositor if the depositor did not agree to the terms offered by the bank). Prior decisions by this court have not addressed the specific question whether a refusal to deal with another can be the basis of liability for the tort of intentional interference with economic relations. However, the Restatement provides some guidance. See Top Service Body Shop, 283 Or. at 205-10, *648 582 P.2d 1365 (looking to text and comments in Restatement for assistance in formulating and applying tort of intentional interference with economic relations); Straube, 287 Or. at 361, 600 P.2d 371 (same). The Restatement (Second) of Torts § 766 (1979), defines the tort of "Intentional Interference with Performance of Contract by Third Person." Two comments to that section discuss a "refusal to deal." Comment b states: Comment l addresses "[i]nducement by refusal to deal": Applying those principles to the case at hand yields the following discussion. Bank may refuse to deal with WRC for any reasonincluding WRC's relationship with Uptown. Bank's freedom not to deal with WRC is not restricted by WRC's relationship with Uptown. If WRC decides independently not to continue as a joint venturer with Uptown, having learned of Bank's reason, Bank is not liable to Uptown for the harm caused. This is the scenario envisioned by the first illustration quoted above. For Bank to be liable to Uptown on this tort theory, for refusing to deal with WRC, Bank must have used its own refusal to deal as a form of "affirmative inducement, compulsion or pressure" to make WRC break its contract with Uptown. See Restatement (Second) of Torts § 766, comment l at 13 (stating quoted standard). This is the scenario envisioned by the second illustration quoted above. *649 Assuming the truth of all well-pleaded allegations and giving Uptown the benefit of all favorable inferences that may be drawn therefrom, Uptown's fifth claim for relief is closer to the second illustration than to the first. Uptown alleged more than Bank's mere silent refusal to deal with WRC because of WRC's joint venture with Uptown; Uptown's complaint can be read to allege, further, that Bank told WRC that a loan would be forthcoming if WRC were to remove Uptown as its joint venturer and that Bank's purpose in telling that to WRC was to injure Uptown's economic relations with WRC. Under the principles discussed above, those allegations suffice to withstand a motion to dismiss the claim, because they describe a form of affirmative inducement for WRC to remove Uptown from the joint venture, without justification. Therefore, the trial court erred in dismissing Uptown's fifth claim for relief. The Court of Appeals correctly reversed that dismissal. In summary, Uptown failed to state a claim with respect to the first through fourth claims for relief. Uptown stated a claim with respect to the fifth claim for relief. The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed with respect to the first through fourth claims for relief and reversed with respect to the fifth claim for relief, and the case is remanded to the circuit court for further proceedings. UNIS, Justice, concurring. With respect to Uptown Heights' first claim for reliefthe claim for breach of the implied contractual duty of good faith and fair dealingI write separately. I join that part of the court's opinion, because the court correctly states the law as announced by a majority of this court in Pacific First Bank v. New Morgan Park Corp., 319 Or. 342, 876 P.2d 761 (1994) (4-2 decision). Nevertheless, I continue to disagree with the court's method of determining the objectively reasonable expectations of the parties in the performance and enforcement of a contract, because that method is inconsistent with this court's decision in Best v. U.S. National Bank, 303 Or. 557, 562, 739 P.2d 554 (1987). See Pacific First Bank, 319 Or. at 356-64, 876 P.2d 761 (Unis, J., dissenting) (criticizing majority's method and applying the analysis stated in Best). "The purpose of the good faith [and fair dealing] doctrine is to prohibit improper behavior in the performance and enforcement of contracts." Best, 303 Or. at 562, 739 P.2d 554. The court's method of determining objectively reasonable contractual expectations of the parties expressed in Pacific First Bank and in the present case fails to further that purpose. I am hopeful that, in the future, the court will reconsider its analysis and restore vitality to the implied contractual duty of good faith and fair dealing, consistent with its purpose. FADELEY, J., joins in this concurring opinion. [1] In this opinion, we use the term "duty of good faith" to describe a concept developed in several prior cases; that concept has received a variety of labels in the past. See Pacific First Bank v. New Morgan Park Corp., 319 Or. 342, 344 n. 1, 876 P.2d 761 (1994) (explaining use of term). [2] ORCP 21 A provides in part: "Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto, except that the following defense may at the option of the pleader be made by motion to dismiss: * * * (8) failure to state ultimate facts sufficient to constitute a claim[.]" [3] According to the complaint, defendant Seattle-First National Bank acted as defendant SeaFirst Corporation's agent in connection with the events at issue. The roles of the two defendants are interconnected, and our references to "Bank" include both. [4] Although Uptown's claims hinge on the existence of a contract or contracts, Uptown did not attach to its complaint the contract(s) that gave rise to this action. Because this case comes to us on review of a motion to dismiss, and because Uptown's complaint alleges the existence and key terms of a contract or contracts, we can resolve the issues presented in this case based on the pleadings. [5] Our holding is limited to the "improper purpose" prong of the tort. [6] Bank has not argued that the "third party" element of this tort is lacking with respect to Bank's refusal to deal with the joint venture of which Uptown was a constituent part.

60671ca9c8e6ddaabb0ad02818efa13b0b54c3a59afa7c0a61201149d4f6e327

1995-03-30T00:00:00Z

3411067d-02c2-49ff-96d8-06ef67239a38

Atkins v. Dept. of Rev.

320 Or. 713, 894 P.2d 449

oregon

Oregon Supreme Court

894 P.2d 449 (1995) 320 Or. 713 William T. ATKINS, Appellant, and Susan A. Atkins, Plaintiff, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. OTC 3469; SC S41438. Supreme Court of Oregon, In Banc. Argued and Submitted December 8, 1994. Resubmitted December 19, 1994. Decided April 6, 1995. William T. Atkins, argued the cause and filed the briefs pro se. Ted Barbera, Asst. Atty. Gen., Salem, argued the cause and filed the brief for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. GILLETTE, Justice. In this direct appeal from the Oregon Tax Court, taxpayers challenge a judgment that denied their claim for tax refunds of certain state income taxes. Those taxes, paid on their federal retirement income in 1986 and 1987, were assessed in violation of the constitutional doctrine of intergovernmental tax immunity.[1] The Tax Court held that, under *450 ORS 305.765,[2] taxpayers are entitled to a refund of taxes assessed and paid on their federal retirement income in or after 1988, but not before that year. Atkins v. Dept. of Rev., 13 OTR 65, 67-68, 1994 WL 118605 (1994). Taxpayers seek a reversal of the judgment of the Tax Court. Specifically, they seek a refund, not under ORS 305.765, but rather under Oregon's omnibus tax refund statute, ORS 305.270.[3] However, this court in Ragsdale v. Dept. of Rev., 312 Or. 529, 535-37, 823 P.2d 971 (1992), held that ORS 305.765 governs refunds of taxes collected under laws later adjudged invalid. Under ORS 305.765, taxpayers are entitled to a refund of taxes "collected and paid under the law or part thereof invalidated, in or after the year in which the action attacking the validity of the same was instituted." See also ORS 305.780.[4] The "action attacking the validity" of the tax scheme at issue was "instituted" in 1989. Ragsdale, 312 Or. at 539, 823 P.2d 971. Therefore, under Ragsdale, taxpayers are entitled to a refund only of taxes invalidly assessed and collected "in or after" 1988. Ibid. The Tax Court provided that precise remedy to taxpayers. For the reasons that follow, we affirm that decision. Taxpayers are husband and wife. William Atkins, a federal retiree, became an Oregon resident in 1986. Susan Atkins remained a California resident during the years relevant to this appeal. In 1987, William filed an Oregon tax return disclosing his federal retirement income received in 1986. In 1988, taxpayers filed a joint, nonresident return *451 on their 1987 income. The 1987 return reported only one-half of William Atkins' federal retirement income on the theory that, under California's community property law, one-half of that retirement income belonged to his wife. In 1991, after the Supreme Court of the United States issued its opinion in Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 109 S. Ct. 1500, 103 L. Ed. 2d 891 (1989), but before this court's ruling in Ragsdale, the Atkins' 1987, 1988, and 1989 tax returns were audited in Oregon and California. The Oregon Department of Revenue (the Department) noted that William Atkins' federal retirement income was not California "community property" and should have been reported in full on his Oregon tax returns. On March 24, 1991, taxpayers filed an amended 1987 Oregon tax return, which claimed that, under Davis, none of William's federal retirement income received in 1987 was subject to tax in Oregon. The Department audited the amended return and, in January of 1992, issued a notice of assessment of additional tax for the excluded federal retirement income. Taxpayers voluntarily paid the assessment to avoid accrual of interest and then appealed the assessment to the Department. The Department denied taxpayers' claim for refund on July 9, 1993. Taxpayers appealed to the Oregon Tax Court, which held that the taxes included on taxpayers' 1987 return (on one-half of their federal retirement income) could not be refunded. The additional taxes, paid in response to the 1992 assessment by the Department, were refunded. Taxpayers sought direct review of the Tax Court judgment in this court. Taxpayers make two different claims for refund. Their dispute with the Department always has concerned the refund of taxes reported in their 1987 joint tax return. That was the dispute litigated below at the Department and in the Tax Court. In this court, taxpayers now claim, for what appears to be the first time, that they are entitled to a refund of taxes paid by William Atkins for 1986. That claim is not properly before this court, and we do not address it.[5] The sole issue properly before us is whether taxpayers are entitled to a refund of taxes paid on the portion of William Atkins' federal retirement income reported as income in 1987. We now turn to that issue. Taxpayers argue that this court's decision in Ragsdale fails to provide them with the full retroactive application of Davis required by Harper v. Virginia Dept. of Taxation, 509 U.S. ___, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993) (pertaining to a Virginia tax scheme). Taxpayers also assert that Oregon's tax refund statutes, as construed by this court, deny them a "clear and certain remedy" that will meet federal due process requirements. See McKesson Corp. v. Florida Alcohol & Tobacco Div., 496 U.S. 18, 110 S. Ct. 2238, 110 L. Ed. 2d 17 (1990) (setting out federal due process requirements in this context). Taxpayers also argue that, in Ragsdale, this court impermissibly construed ORS 305.765 to deny them the benefit of the three-year statute of limitations for refunds of "excess" taxes that is provided in ORS 305.270 and 314.415(1)(b). See Reich v. Collins, 513 U.S. ___, 115 S. Ct. 547, 130 L. Ed. 2d 454 (1994) (holding that State of Georgia could not hold out what plainly appeared to be a clear and certain post-deprivation remedy and then declare, only after disputed taxes were paid, that no such remedy existed). We shall discuss taxpayers' arguments in three parts. In part one, we discuss whether Oregon statutes provide a "clear and certain" remedy for taxes paid pursuant to a law later held invalid and, if so, what that remedy requires. In part two, we assess taxpayers' argument that Davis and Harper require full retroactive payment of all taxes. In part three, we focus on the due process requirements of McKesson and Reich, to determine *452 whether ORS 305.765 and our holding in Ragsdale violate those requirements. Oregon provides, by statute, a special form of tax refund for taxes assessed and collected pursuant to a tax law that is later invalidated. That statute has particular time limits. The impetus for that refund remedy came in 1930, when Oregon's "intangibles tax" was declared unconstitutional by this court. See Redfield et al. v. Fisher et al., 135 Or. 180, 204, 292 P. 813 (1930), reh. den., 135 Or. 180, 295 P. 461 (1931) (so holding). In 1931, the Oregon legislature enacted what is now ORS 305.765 through 305.785. In Ragsdale, 312 Or. at 536-37, 823 P.2d 971, this court interpreted ORS 305.765 and held thatin the absence of a more specific statute relating to the challenge, invalidation, and refund of taxes paid pursuant to a law later held invalidthe legislature intended ORS 305.765 to apply. The context of the statute, including related statutes enacted by the same legislature, demonstrated that legislative intent. Ibid.; see PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (discussing methodology for interpretation of statutes). Because taxpayers later challenge that interpretation on federal due process grounds, see part III, post, we explain, once again, that interpretation here. In 1929, just before the great stock market crash, Oregon enacted two new tax provisions. The first provision, artfully titled the "Property Tax Relief Act of 1929," established Oregon's first income tax. Or.Laws 1929, ch 448. The second provision taxed "intangibles," including gross interest or dividends, other than stock dividends, derived from "bonds, notes, claims and demands, secured or unsecured * * *, all shares of stock in corporations and any and all other evidences of indebtedness." Or.Laws 1929, ch 429, § 1. Both tax acts included provisions for refunds of "excess" taxes paid, Or.Laws 1929, ch 448, § 21 (income tax); Or.Laws 1929, ch 429, § 10 (intangibles tax), and both authorized the State Tax Commission to use limited amounts of the generated tax revenue for that purpose. The "intangibles tax" almost immediately was challenged and was struck down in Redfield, in which this court held that the intangibles tax violated the Fourteenth Amendment to the Constitution of the United States. 135 Or. at 204, 292 P. 813. Within a matter of weeks after this court announced its Redfield decision, the State Tax Commission requested two opinions from the Oregon Attorney General. The first request asked "whether refunds [could] be made by any of the present state officials either out of funds which have been receipted into the general fund or which have been held by the Treasurer unreceipted, and, if so, by whom, and, if not, what legal steps [were] required in order to authorize the making of refunds." 15 Op Att'y Gen 34 (Or.1930-32). The second request asked whether the Redfield decision had struck down the refund provision of the intangible tax act or whether, instead, that provision could be used to refund the taxes collected unconstitutionally. 15 Op Att'y Gen 37 (Or.1930-32). The opinions given by the Attorney General, in response to those two questions, set the stage for the legislative action that followed. The first opinion distinguished between the refund of a tax later held invalid and the refund of an "overpayment" of a tax. In the Attorney General's view, a refund of a tax, voluntarily paid pursuant to a law later held invalid, could not be made under then-existing Oregon law without specific authorization. "`[T]axes voluntarily paid cannot be recovered, and, in the absence of statute, * * * the payment of illegal taxes "under protest" does not make the payment involuntary so as to authorize the taxpayer to recover the taxes so paid.'" 15 Op Att'y Gen 35 (Or.1930-32) (quoting Johnson v. Crook County, 53 Or. 329, 334-35, 100 P. 294 (1909), and cases cited therein). See also Moffitt v. Salem, 81 Or. 686, 691, 160 P. 1152 (1916) (stating rule); 10 Op Att'y Gen 167 (Or.1920-22) (stating rule and noting cases). The Attorney General concluded that taxes collected under the "intangibles tax" before it was held invalid could not be refunded without specific legislative authorization. *453 The second opinion of the Attorney General advised the State Tax Commission that the limited funds provided by Oregon Laws 1929, chapter 429, section 15, for refunds of "excess" taxes paid were not available to make refunds of taxes assessed and collected under mistake of law. Instead, those funds were 15 Op Att'y Gen at 38. The Attorney General again advised that the existing refund statute, and the limited fund provided for refunds of "excess taxes paid," did not authorize the refund of taxes paid "under a mistake of law." Id. at 37-38. This, he advised, would require legislative authorization. That authorization soon followed. In 1931, the legislature enacted three statutes relevant to this appeal. The first was an omnibus refund provision, which authorized the State Tax Commission to draw directly from the general fund to pay refunds of taxes "in excess of those due or legally assessable." It provided as follows: Or.Laws 1931, ch 229. That statute forms the basis for our present omnibus refund statute, ORS 305.270. Later, during the same legislative session, the legislature enacted two companion statutes that specifically authorized, and limited, refunds of taxes collected pursuant to the "intangibles tax" and any future tax that was held to be invalid. Oregon Laws 1931, chapter 338, dealt specifically with the "intangibles tax" refund. It appropriated an amount to be used for repayment of the tax and directed the Tax Commission to prepare a report of all taxpayers who had paid it. The statute then directed the Secretary of State to audit the State Tax Commission's report before forwarding it to the State Treasurer for payment. If and when the Supreme Court of the United States denied the state's petition for certiorari, or affirmed the judgment of this court, the Treasurer was authorized to pay the refunds. This elaborate refund scheme was repeated in Oregon Laws 1931, chapter 337, which also provided in part: That latter provision now is codified as ORS *454 305.765.[6] Having provided the historical context of the relevant statutes, we now turn to resolution of taxpayers' arguments. Taxpayers rely on the phrase "and if there is no other statute authorizing refund thereof," in ORS 305.765, to argue that Oregon's current omnibus tax refund statute, with its longer statute of limitations, should apply. We do not agree. As this court noted in Ragsdale, the intent of the legislature is clear from the fact that the legislature found it necessary to enact all the above-mentioned statutes in the same legislative session. If the legislature had intended the 1931 omnibus refund statute to apply to all tax refunds, including refunds of taxes paid pursuant to laws later held to be invalid, it would not have enacted Oregon Laws 1931, chapter 337 or 338. A construction of the 1931 omnibus tax refund statute to make that law applicable to all refunds also would have contradicted the Attorney General's contemporaneous opinion that "refunds of amounts paid by taxpayers in excess of the taxes they were legally required to pay" were not the same as refunds of taxes paid pursuant to a law later held invalid.[7] We explained in Ragsdale that, if the 1931 provision for future refunds of taxes paid pursuant to laws later held invalid, Oregon Laws 1931, chapter 337, were to have any effect at the time it was enacted, the legislature could not have intended it to be overshadowed by the earlier enacted omnibus refund statute of that same year. It has long been the rule of this court that "`statutes on the same subject * * * particularly if passed at the same [legislative] session, should receive a construction, if possible, which will give effect to each of them.'" Ragsdale, 312 Or. at 537, 823 P.2d 971 (quoting Daly v. Horsefly Irrigation District, 143 Or. 441, 446, 21 P.2d 787 (1933)). It is clear from the context of ORS 305.765, as illustrated above, that the phrase on which taxpayers rely originally referred to the more specific refund provisions in Oregon Laws 1931, chapter 338, and not the omnibus refund statute enacted as Oregon Laws 1931, chapter 229. We once again hold that, consistent with the clear intent of the legislature, the more specific provisions of ORS 305.765, rather than the more general provision of ORS 305.270, control eligibility for refunds of the kind sought by taxpayers here. Having reaffirmed our earlier analysis in Ragsdale, we now turn to the requirements and limitations imposed by ORS 305.765. To receive a refund under that statute, the invalid state law first must be "attacked" in an "action" and held "invalid" by this court. Once the "time limited for any further proceeding to sustain the validity of the law * * * has expired," refunds can be made. The refund, however, is limited to "all taxes collected and paid under the law or part thereof invalidated, in or after the year in which the action attacking the validity of the same was instituted." ORS 305.765 (emphasis supplied). That limitation is further asserted in ORS 305.780 ("Nothing contained in ORS 305.770 to 305.785 authorizes the refund [of invalidated taxes] due and payable in any year prior to the year in which the suit or action seeking the invalidation of the law or part thereof was instituted"). We turn now to taxpayers' argument that, the Oregon refund statutes notwithstanding, full retroactive payment of all invalidly collected taxes is required by Davis or Harper. In Davis, the Supreme Court of the United States did not discuss the retroactivity question. *455 It merely held: "The State having conceded that a refund is appropriate in these circumstances, to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund." 489 U.S. at 817, 109 S. Ct. at 1509, 103 L. Ed. 2d at 906 (citations omitted; emphasis supplied). Retroactivity was not discussed specifically until Harper. In Harper, the Supreme Court of Virginia had refused to apply the Davis decision to a case pending in Virginia at the time Davis was decided. The Supreme Court of the United States reversed the judgment of the Supreme Court of Virginia and remanded the case for the determination of a proper remedy. The Court held that, when the Court applies a federal rule of law to the parties before it, "that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule." Harper, 509 U.S. at ___, 113 S. Ct. at 2517, 125 L. Ed. 2d at 86. It further held: Neither Davis nor Harper required full retroactive payment of all invalidly collected taxes. Both merely required retroactive application of the Davis decision to all cases pending in state courts at the time that Davis was decideda circumstance not present here. Harper further required that the state's chosen remedy meet the minimum standards of federal due process that are set out in McKesson. We turn now to those requirements. In McKesson, 496 U.S. at 37-39, 110 S. Ct. at 2250-51, 110 L. Ed. 2d at 36-37, the Supreme Court of the United States described the minimum due process requirements in tax cases as follows: "* * * To satisfy the requirements of the Due Process Clause, therefore, [in a post-deprivation refund action] the State must provide taxpayers with, not only a fair opportunity to challenge the accuracy and legal validity of their tax obligation, but also a `clear and certain remedy,' for any erroneous or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one." (Emphasis in original; citations and footnotes omitted.) There is no question that Oregon's statutes encourage payment of a tax before litigation of a claim for relief. See ORS 305.419 (tax, interest, and all penalties assessed shall be paid on or before the filing of a complaint with the regular division of the Tax Court). Taxpayers do not challenge the sufficiency of the post-deprivation process afforded to them. They claim, rather, that ORS 305.765 *456 does not provide a "clear and certain remedy" such that "the opportunity to contest the tax is a meaningful one." McKesson, 496 U.S. at 39, 110 S. Ct. at 2251, 110 L. Ed. 2d at 37. In McKesson, the Supreme Court of the United States spoke directly to the State of Florida's ability to limit its refund remedy and engage in sound fiscal planning. It held: 496 U.S. at 45, 110 S. Ct. at 2254-55, 110 L. Ed. 2d at 41. Oregon, through enactment of ORS 305.765, created such "procedural protections" to ensure stable fiscal planning long ago. As we have already set out, ORS 305.765 requires an early protest before a refund of taxes collected under an invalid law is available. That requirement, in McKesson terms, acts as a "relatively short statute[ ] of limitations." 496 U.S. at 45, 110 S. Ct. at 2254, 110 L. Ed. 2d at 41. If an action attacking the validity of the tax is not instituted within the year following its assessment (viz., the year in which it is due and payable in this case), no refund may be made. Furthermore, the "action" requirement in ORS 305.765 permits the state to prepare for the possibility that refunds of taxes, collected under the challenged tax scheme, might be necessary. That is exactly what the Supreme Court of the United States contemplated when it suggested that a state "place challenged tax payments into an escrow account or employ other accounting devices such that the State can predict with greater accuracy the availability of undisputed treasury funds." McKesson, 496 U.S. at 45, 110 S. Ct. at 2255, 110 L. Ed. 2d at 41. It follows that, contrary to taxpayers' claims, the McKesson court considered, and approved, limitations on refunds of taxes paid pursuant to a law later held invalid. ORS 305.765 established such limitations in 1931. Consistent with that statute, Oregon provided refunds to taxpayers taxed under the invalid tax scheme back to 1988, the tax year preceding the year in which the initial tax challenge was made. Taxpayers now seek a refund of taxes paid two years before any attack or challenge was made. That claim is barred by the limitations that Oregon has placed on such refunds. We turn now to taxpayers' final argument on review. Taxpayers argue that the Supreme Court's decision in Reich requires this court to apply ORS 305.270, the general tax refund statute, rather than ORS 305.765, to their claim. We do not agree. The Reich case involved the State of Georgia, a state that did not make special provision for refunds of taxes paid pursuant to a law later held invalid. Instead, Georgia had only one refund statute, Ga Code Ann § 48-2-35(a) (Supp 1994), which provided in part: In the Reich case, the Georgia Supreme Court had held, without further explanation, that the statute Reich v. Collins, 262 Ga. 625, 628-29, 422 S.E.2d 846, 849 (1992). Accordingly, the Georgia court denied the taxpayers all post-deprivation remedies. The Supreme Court of the United States took a different view. It held that, although a state's remedial scheme was "generally a matter only of state law," a state could not "reconfigure its scheme, unfairly, in midcourseto `bait and switch,' as some have described it." Accordingly, it reversed the Georgia court's decision. Reich, 513 U.S. at ___, 115 S. Ct. at 550, 130 L. Ed. 2d at 459 (emphasis in original). Unlike Georgia, Oregon has not "reconfigured" its scheme or changed it in midcourse. The applicable statute has been the law of this state since 1931. Neither has this court introduced "novel" procedural requirements to "thwart review," such as those that the Supreme Court of the United States found to have been created in Reich. Reich, 513 U.S. at ___, 115 S. Ct. at 551, 130 L. Ed. 2d at 460. To the contrary, neither the controlling statute, nor our method of statutory construction, is "novel." We do not read Reich to require this court to abandon its longstanding rules of statutory construction in order to provide taxpayers a refund to which they would not normally be entitled. That would be novel. Taxpayers have not demonstrated any reason for this court to overrule Ragsdale, and we adhere to it. Under that decision, taxpayers are not entitled to a refund of taxes invalidly collected before the 1988 tax year. Thus, taxpayers' claim for refund of taxes paid in 1987 must fail. The judgment of the Tax Court is affirmed. [1] During the tax years in question, Oregon impermissibly taxed the retirement income of federal retirees while it exempted state retirees from paying tax on their state retirement income. In 1989, the Supreme Court of the United States held that a similar tax scheme violated the doctrine of intergovernmental tax immunity. See Davis v. Michigan Department of Treasury, 489 U.S. 803, 109 S. Ct. 1500, 103 L. Ed. 2d 891 (1989) (holding Michigan tax scheme unconstitutional). Oregon's tax scheme later was challenged in Ragsdale v. Dept. of Rev., 312 Or. 529, 823 P.2d 971 (1992), in which this court held: "Because federal retirement benefits were subject only to a limited exemption from state tax while state retirement benefits were completely exempt, ORS 316.680(1)(c) and (d) (1987) impermissibly discriminated against employees of the federal government in violation of the constitutional doctrine of intergovernmental tax immunity." 312 Or. at 542, 823 P.2d 971 (citation omitted). [2] ORS 305.765 provides: "Whenever, in a proceeding involving the validity of any law whereby taxes assessed or imposed have been collected and received by the state, acting through any department or agency thereof, and paid into the State Treasury, if the court of last resort holds the law or any part thereof invalid, and the time limited for any further proceeding to sustain the validity of the law, or the part thereof affected, has expired, and if there is no other statute authorizing refund thereof, all taxes collected and paid under the law or part thereof invalidated, in or after the year in which the action attacking the validity of the same was instituted, shall be refunded and repaid in the manner provided in ORS 305.770 to 305.785." [3] ORS 305.270 provides in part: "(1) Except as provided in ORS 118.100, if the amount of the tax shown as due on a report or return originally filed with the department with respect to a tax imposed under ORS chapter * * * 316 * * * or collected pursuant to ORS 305.620, or as corrected by the department, is less than the amount theretofore paid, or if a person files a claim for refund of any tax paid to the department under such laws within the period specified in subsection (2) of this section, any excess tax paid shall be refunded by the department with interest as provided in this section and ORS 314.415. "(2) * * * The claim shall be filed within the period specified in ORS 314.415(1)(b) for taxes imposed under ORS chapter[] * * * 316 * * *, or collected pursuant to ORS 305.620 (except where any applicable ordinance specifies another period) * * *." ORS 314.415(1)(b) provides: "No refund shall be allowed or made after three years from the time the return was filed, or two years from the time the tax or a portion thereof was paid, whichever period expires the later, unless before the expiration of such period a claim for refund is filed by the taxpayer in compliance with ORS 305.270, nor shall a refund claimed on an original return be allowed or made in any case unless the return is filed within three years of the due date, excluding extensions, of the return in respect to which the tax might have been credited. If a refund is disallowed for the tax year during which excess tax was paid for any reason set forth in this paragraph, the excess shall not be allowed as a credit against any tax occurring on a return filed for a subsequent year. If the tax owed after offsets for all amounts owed the state is less than $5, no refund shall be made." [4] ORS 305.780 provides: "Nothing contained in ORS 305.770 to 305.785 authorizes the refunding of any tax collected and paid under an invalidated tax law, or invalidated part thereof, where the tax as provided in such law became due and payable in any year prior to the year in which the suit or action seeking the invalidation of the law or part thereof was instituted." [5] By our estimation, nearly eight years have passed since taxpayers filed their 1986 tax return, and never before have they asserted this claim for refund. On review of taxpayers' claims, this court is not a court of first impression. Taxpayers cannot avoid the exhaustion of their administrative remedies merely because they are before this court on another matter. See Nutbrown v. Munn, 311 Or. 328, 811 P.2d 131 (1991) (administrative remedies must be exhausted). [6] In the 1953 revision and recodification of Oregon's statutes, the phrase "and in case there be no other statute authorizing refund thereof" was changed to "and if there is no other statute authorizing refund thereof." Compare OCLA 110-859 (1931) with (former) ORS 306.280 (1953). The change in wording became law by authority of ORS 174.510 (1953) (adopting revised statutes as presented in enrolled House Bill No. 2). We find nothing in that stylistic change suggesting a change in the meaning of the phrase. [7] We do not hold that the legislative intent of the omnibus tax refund statute passed in 1931 is dependent on the Attorney General's opinion addressing refunds. We merely note that the state's chief legal officer used the quoted phrase to refer to refunds of excess taxes, and not refunds of invalidated taxes.

9a7241832f0459929e539f0972f49a5b77848bfb392d03ac5b45808347d8f2ec

1995-04-06T00:00:00Z

e8263c6d-ef83-4a38-9ca2-0dbd14a58b79

In Re Conduct of Barber

322 Or. 194, 904 P.2d 620

oregon

Oregon Supreme Court

904 P.2d 620 (1995) 322 Or. 194 In re Complaint as to the CONDUCT OF David John BARBER, Accused. OSB 92-104; SC S41694. Supreme Court of Oregon, In Banc. Argued and Submitted May 5, 1995. Decided October 26, 1995. *621 Mary Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar. Susan D. Isaacs, Beaverton, argued the cause and filed the briefs for the accused. Peter R. Jarvis and Bradley F. Tellam, of Stoel Rives Boley Jones & Grey, Portland, filed an amicus curiae brief. PER CURIAM In this lawyer disciplinary proceeding, the Oregon State Bar filed a formal complaint against the accused, alleging that he had violated several provisions of the Code of Professional Responsibility and a state statute governing lawyer discipline. A trial panel of the Disciplinary Board ordered that he be suspended from the practice of law for three years. Under ORS 9.536(2) and BR 10.1, review by this court is automatic. We review the record de novo, ORS 9.536(3); BR 10.6, find the accused guilty of all the charges and disbar him. We find the following facts from the evidence in the record. The accused was admitted to the Bar in 1986. In October 1987, McKeever and Nelson retained the accused to represent them in a personal injury action arising out of a motor vehicle accident. At that time, the accused shared office space and was associated with lawyer Vernon L. Richards. McKeever and Nelson each signed a separate contingent fee agreement stating in part: During the summer of 1988, the accused learned that insurance proceeds potentially available to satisfy his clients' claims might not be adequate to compensate both clients fully for the injuries that they had suffered in the accident. Realizing that his clients would be competing for limited insurance proceeds, the accused informed McKeever and Nelson of the possibility of a conflict of interest arising from his joint representation of them. The accused told McKeever and Nelson that he could not represent one against the other and that they would have to decide between themselves how to divide any insurance proceeds. In September 1988, the accused learned that Nelson's injuries were more serious and, consequently, that her damages were greater than he previously had thought. However, the accused never disclosed in writing the nature and extent of a likely or actual conflict of interest, nor did he advise his clients to seek independent legal advice to determine whether consent to continued joint representation should be given. The accused continued to represent McKeever and Nelson until they discharged him in October 1988. Meanwhile, a dispute arose between Richards and the accused concerning, among other things, Richards' entitlement to share in the anticipated fees from the accused's representation of McKeever and Nelson. Richards contended that he was entitled to 35 percent of any fees, pursuant to an association agreement between Richards and the accused. On September 7, 1988, the accused sent Richards a letter stating that the accused did not intend to share any fees from the McKeever/Nelson litigation, because *622 McKeever and Nelson were exclusively his clients. Relations between Richards and the accused became increasingly acrimonious. On September 23, 1988, Richards locked the accused out of their shared offices. Richards and his wife, who was working for Richards at the time, packed the accused's belongings and files into boxes and left them on the porch outside the offices for the accused to collect. The accused picked up his belongings and transported them to the law office of John McIlhenny, where the accused resumed his law practice. In January 1989, Richards filed an action against the accused, alleging breach of their association agreement and conversion. Two months after McKeever and Nelson discharged the accused as their attorney, the accused filed a complaint against his former clients alleging that they had breached the contingent fee agreements by failing to pay him attorney fees after recovering insurance proceeds, pursuant to a settlement with the insurer of the other motor vehicle involved in the accident. The accused attached copies of the contingent fee agreements, signed by McKeever and Nelson, to his complaint. Those copies had been altered to delete Richards' name. In January 1989, both McKeever and Nelson filed answers to the complaint, alleging that the contingent fee agreements were voidable for failure to comply with ORS 9.400(1)(c),[1] because they lacked a provision allowing the clients to rescind the fee agreements within 24 hours after signing. McKeever and Nelson asserted in their answers that they were electing to void the fee agreements. Shortly thereafter, McKeever's new lawyer asked the accused to produce an itemization of the time that he had expended on the McKeever case, a copy of the fee agreement and billing, and any supporting documentation. The accused responded that no itemization or supporting documents existed and that he already had produced a billing and the fee agreement. In February 1989, the accused filed an amended complaint, adding a claim for quantum meruit against McKeever and Nelson. Again, he attached the altered contingent fee agreements. The amount sought by the accused in quantum meruit was the same as that which he claimed for breach of the contingent fee agreements. McKeever and Nelson filed motions for summary judgment, on the ground that the agreements were unenforceable under ORS 9.400. McKeever's summary judgment motion also stated that the copies of the contingent fee agreements, attached to the accused's complaint, had been altered unilaterally to remove Richards' name. McKeever attached copies of the original contingent fee agreements, which identified both Richards and the accused as her lawyers, to the motion for summary judgment. The accused filed a response to the motion for summary judgment but did not address the issue of the alteration of the lawyers' names. In May 1989, McKeever's lawyer undertook discovery and again requested documentation for the accused's quantum meruit claim. In response, the accused produced a statement detailing his services and the time spent on McKeever's case. In July 1989, the trial court entered an order denying McKeever and Nelson's motions for summary judgment and transferring the case to inactive status *623 In March 1991, after Richards and the accused had settled their litigation, the accused moved to join Richards as a plaintiff in his action against McKeever and Nelson and to transfer the case back to active status. The trial court granted both motions. In August 1991, the accused filed a second amended complaint and attached, for the first time, unaltered copies of the original contingent fee agreements. This time, McKeever's lawyer asked Richards to produce any records of time that the accused had spent on the McKeever case. Richards produced ledger cards and the accused's original time sheets. Those ledger cards and time sheets reflected the same dates and tasks as indicated in the statement submitted by the accused. However, the accused's statement reported more than twice the time and expenses described in the ledger cards and time sheets submitted by Richards.[2] The issue before us is whether the Bar has proved ethical misconduct by clear and convincing evidence, as required by BR 5.2. "Clear and convincing evidence means that the truth of the facts asserted is highly probable." In re Taylor, 319 Or. 595, 600, 878 P.2d 1103 (1994). In its first cause of complaint, the Bar alleged that the accused violated DR 5-105(A) and (B) (1988),[3] by undertaking representation of McKeever and Nelson, even though his representation of one client likely would adversely affect his representation of the other, without obtaining their consent after full disclosure of the likely conflict of interest. The Bar also alleged that the accused violated DR 5-105(E)[4] by continuing to represent McKeever and Nelson after an actual conflict of interest had developed. The accused concedes that his conduct violated DR 5-105(E) and DR 5-105(A) and (B) (1988). We agree. See In re Altstatt, 321 Or. 324, 330-31, 897 P.2d 1164 (1995) (discussing similar charges). Accordingly, we conclude that the accused violated those disciplinary rules. In its second cause of complaint, the Bar alleged that the accused knowingly attached *624 altered copies of the contingent fee agreements to his complaint against McKeever and Nelson, in violation of DR 1-102(A)(3),[5] DR 7-102(A)(4) to (6),[6] and ORS 9.527(4).[7] With respect to those charges, the trial panel found: The trial panel concluded that the accused was guilty of the charges alleged in the Bar's second cause of complaint. The accused denies altering the contingent fee agreements or causing them to be altered, and he maintains that he was not aware that the copies of those agreements that he attached to his complaint had been altered to delete Richards' name. The accused argues that the evidence establishes that Richards or his wife probably altered the fee agreements to avoid a possible malpractice claim against Richards. The accused also argues that the trial panel erred in excluding testimony that would have bolstered his claim that Richards probably altered the fee agreements. The Bar contends, first, that someone altered the fee agreements. Second, the Bar argues that it presented clear and convincing evidence that the accused had both a motive and an opportunity to do so. In support, the Bar relies on the uncontested fact that the altered fee agreements first emerged from the accused's office at a time when he and Richards were disputing who was entitled to any fees arising from the accused's representation of McKeever and Nelson. Third, the Bar argues that the trial panel correctly found that the accused was not a credible witness. Fourth, the Bar argues that there is no evidence in the record to support the accused's claim that Richards or his wife probably altered the fee agreements. There is clear and convincing evidence that the accused had both a motive and an opportunity to alter the contingent fee agreements signed by McKeever and Nelson and to attach copies of the altered agreements to his complaint. When Richards ended his association with the accused, the accused had the original fee agreements in his possession. At that time, the accused and Richards disputed who was entitled to fees arising from the accused's representation of McKeever and Nelson. The accused claimed that he alone was entitled to those fees, because McKeever and Nelson were his clients alone. By deleting Richards' name from the fee agreements and attaching altered copies of those agreements to his complaint against McKeever and Nelson, the accused could bolster his claim that McKeever and Nelson were his *625 clients and that only he was entitled to fees on their cases. The accused argues that there is evidence in the record that refutes the trial panel's finding that he altered the fee agreements to avoid having to share with Richards any proceeds from his litigation against McKeever and Nelson. The accused first contends that, had he concocted such a scheme, he would have destroyed the original fee agreements so as not to leave them open to discovery. We are not persuaded. There are many possible reasons why the accused would not have destroyed the originals of the altered fee agreements. One possibility is that he did not realize that he still had the original fee agreements after Richards had locked him out of their shared offices. Another possibility is that the accused retained the originals, because he thought that the issue of alteration never would arise. The accused next argues that it is illogical that he would have altered the fee agreements to avoid sharing fees with Richards, because Richards' claim to the fees was based on his association agreement with the accused, not on the fact that the contingent fee agreements bore both Richards' and the accused's names. We also find that argument unpersuasive. Throughout his dispute with Richards, the accused claimed that he alone was entitled to any fees arising from his representation of McKeever and Nelson, notwithstanding his association agreement with Richards. The fact that Richards believed that the terms of the association agreement established conclusively his entitlement to a share of those fees does not establish that the accused had no motive for altering the fee agreements. We next consider whether we should give any weight to the accused's testimony that he did not alter the fee agreements and was unaware that the copies that he had attached to his complaint had been altered. The trial panel found that the accused's testimony was not credible. This court typically has placed substantial reliance on the trial panel's determinations regarding the credibility of witnesses. See, e.g., In re Samuels/Weiner, 296 Or. 224, 226, 674 P.2d 1166 (1983) (so stating). Moreover, in this proceeding, there is direct evidence that the accused presented untruthful testimony to the trial panel. In support of his claim of innocence, the accused relied, in part, on the affidavit of Lackey, who was McIlhenny's secretary at the time when the accused moved his practice to McIlhenny's law office. Lackey's affidavit contains several statements that tend to exculpate the accused, including the statement that Lackey firmly believed that the accused did not alter the fee agreements signed by McKeever and Nelson. During a deposition that occurred prior to the hearing before the trial panel, counsel for the Bar asked the accused whether he had participated in preparing the Lackey affidavit. The accused responded that he had not done so. Later, the accused's present secretary testified that she had transcribed the Lackey affidavit from a tape dictated by the accused and that the accused had edited the transcript on more than one occasion. When counsel for the Bar later questioned the accused about the discrepancy between his deposition testimony and the testimony of his secretary, the accused responded: The trial panel found, and we also find, that the accused's testimony regarding his participation in the preparation of the Lackey affidavit was untruthful. Because the accused presented untruthful testimony that was material to the determination of his guilt, and because the trial panel that observed the accused's demeanor did not credit his testimony, we give no weight to the accused's testimony that he neither altered the fee agreements nor knew that they had been altered. Finally, we consider the accused's claim that Richards or his wife probably altered the fee agreements in order to avoid a possible malpractice claim against Richards. The accused observes that Richards sent him a *626 memorandum, dated September 9, 1988, in which Richards urged him to file an action on McKeever's and Nelson's behalf before the expiration of the statute of limitations on September 26, 1988. According to the accused, that memorandum establishes that Richards or his wife probably deleted Richards' name from the fee agreements in order to avoid a possible malpractice claim against Richards, in the event that the accused failed to file a timely complaint. The accused speculates that Richards or his wife then placed the altered agreements into the boxes of files that the accused picked up after being locked out of Richards' office on September 26, 1988. The Bar argues that the accused's theory that Richards or his wife probably altered the fee agreements to avoid malpractice exposure and then placed the altered agreements into the boxes containing the accused's files is inconsistent with the evidence in the record. We agree. On September 27, 1988, one day after the accused alleges that Richards or his wife deliberately placed the altered fee agreements into the accused's files, Richards wrote a letter to the insurer of the other motor vehicle involved in the accident, stating that Richards also was a party to the contingent fee agreements signed by McKeever and Nelson. In November 1988, Richards wrote a letter to the Bar mentioning that McKeever and Nelson had signed contingent fee agreements in both his name and the accused's name. Throughout this period, Richards consistently maintained that he was a party, with the accused, to the fee agreements signed by McKeever and Nelson. The accused presented no contrary evidence tending to show that Richards sought to erase evidence of his involvement in the McKeever/Nelson litigation once his association with the accused ended. The record does not support the accused's theory that Richards or his wife altered the fee agreements to avoid malpractice exposure. The accused next argues that the trial panel erred by sustaining objections to testimony that, according to the accused, would have bolstered his theory that Richards probably had altered the fee agreements. During the hearing before the trial panel, counsel for the accused asked one of Richards' former associates, Crook, to give his opinion regarding Richards' reputation for truth and veracity. Crook testified that he does not have a high opinion of Richards' truth and veracity. When the accused's lawyer attempted to elicit the basis for that opinion, the trial panel sustained an objection under the Oregon Evidence Code (OEC) 405.[8] The accused argues that the Oregon Evidence Code does not apply in lawyer disciplinary proceedings and that the trial panel thus erred in sustaining an objection to Crook's testimony under OEC 405. We agree that the trial panel erred by applying the Oregon Evidence Code in this proceeding. Lawyer disciplinary proceedings are sui generis, being neither civil nor criminal in nature. BR 1.3. They are governed by rules of procedure adopted by the Board of Governors of the Bar and approved by this court, pursuant to ORS 9.005(6)[9] and ORS 9.542. Those rules of procedure, rather than the Oregon Evidence Code, control whether evidence is admissible in a lawyer disciplinary hearing. The accused argues that Crook's testimony regarding the basis for his opinion concerning Richards' reputation for truth and veracity was admissible under BR 5.1(a): At one point during the hearing, counsel for the Bar asked Richards whether he had any direct or indirect involvement in deleting his name from the contingent fee agreements signed by McKeever and Nelson. Richards responded that he had no involvement in altering the fee agreements. Evidence tending to demonstrate Richards' lack of credibility was relevant to determining how much weight should be given to Richards' testimony that he was not involved in deleting his name from the fee agreements. As Richards' former associate, Crook had personal knowledge of Richards' character and reputation for truth and veracity in the community. Therefore, Crook's testimony regarding the basis for his opinion possessed "probative value commonly accepted by reasonably prudent persons in the conduct of their affairs." BR 5.1(a). The trial panel erred by not permitting Crook to explain the basis for his opinion concerning Richards' reputation for truth and veracity. Next, we must consider whether the trial panel's error in excluding that testimony by Crook deprived the accused of a fair hearing. BR 5.1(b) provides: In this case, even if we were to assume that the erroneously excluded evidence would have destroyed Richards' credibility as a witness, that would not alter our conclusion that evidence in the record does not prove that Richards deleted his name from the fee agreements signed by McKeever and Nelson. Evidence establishing Richards' lack of credibility is relevant only in determining how much weight should be given to Richards' testimony. None of the excluded evidence tends to show affirmatively that Richards altered the contingent fee agreements. We therefore conclude that the trial panel's error in excluding testimony pertaining to Richards' credibility did not deprive the accused of a fair hearing. The accused next argues that the trial panel erred when it prevented him from eliciting both from Richards and from Crook the circumstances surrounding Crook's departure from Richards' law office. The trial panel excluded that evidence on the ground that it was irrelevant. We agree with the trial panel that evidence concerning the circumstances of Crook's departure from Richards' law office was not shown by the accused to be relevant to any issue in this proceeding. The trial panel did not err in excluding that evidence. For the following reasons, we conclude that the Bar established, by clear and convincing evidence, that the accused intentionally altered, or directed someone else to alter, the contingent fee agreements signed by McKeever and Nelson. First, it is undisputed that someone altered the fee agreements. Second, the Bar presented clear and convincing evidence that the accused had both a motive and an opportunity to do so. Third, we give no weight to the accused's testimony that he did not alter the fee agreements or know that the copies of those agreements that he attached to his complaint had been altered. Fourth, we conclude that the record is devoid of evidence to support the accused's theory that someone elseeither Richards or his wifealtered the agreements. Because we can perceive no reasonable likelihood that anyone other than the accused made the alterations, we conclude that the accused made them. We find the accused guilty of violating DR 1-102(A)(3), DR 7-102(A)(4) to (6), *628 and ORS 9.527(4). By intentionally causing deletion of Richards' name from the contingent fee agreements and by attaching altered copies of those agreements to his complaint against McKeever and Nelson, the accused knowingly made a false statement of fact and knowingly created and used false evidence, in violation of DR 7-102(A)(4) to (6). His conduct also involved "dishonesty, fraud, deceit or misrepresentation" in violation of DR 1-102(A)(3) and "willful deceit or misconduct in the legal profession" in violation of ORS 9.527(4). In its third cause of complaint, the Bar alleged that the accused deliberately misrepresented his time and expenses on the statement that he produced to support his quantum meruit claim against McKeever, in violation of DR 1-102(A)(3), DR 7-102(A)(4) to (6), and DR 2-106(A).[11] With respect to those charges, the trial panel found: Based on that finding, the trial panel found the accused guilty of the charges in the Bar's third cause of complaint. The accused argues that the quoted finding is not supported by clear and convincing evidence in the record. He maintains that the statement that he produced is a reasonable estimate of the time and expenses that he incurred on McKeever's behalf. The Bar argues that the evidence in the record establishes that it is highly probable that the accused padded his statement of time and expenses to support his quantum meruit claim against McKeever. In support, the Bar first observes that the statement describes the same tasks and dates as the documents produced by Richards, except that the entries in the statement are, on average, two and one-half times higher than the entries in the billing records produced by Richards. Second, the Bar observes that the accused did not produce the statement until after he had amended his complaint to add a quantum meruit claim. Earlier, the accused had claimed that no documentation or itemization of his time and expenses existed. Third, the Bar observes that the statement supported quantum meruit damages equal to the damages that the accused sought for breach of the contingent fee agreement. Fourth, the Bar argues that the accused offered no plausible explanation for the discrepancies between the statement that he produced and the billing records produced by Richards, nor did he explain credibly the coincidence that the statement supported damages in quantum meruit equal to the damages claimed for breach of the fee agreements. We agree with the Bar. The evidence establishes that it is highly probable that the accused intentionally misrepresented his time and expenses on the statement to support his quantum meruit claim against McKeever. We next consider whether the accused offered a credible explanation for those discrepancies or for the fact that the statement supported damages in quantum meruit equal to the damages that he sought for breach of contract. The accused maintains that the reason why there are discrepancies between the statement that he produced and the billing records produced by Richards is that he did not report all his research time and expenses while working in Richards' office. The accused explains that he had no reason to *629 submit complete records of his time and expenses, because he was representing McKeever and Nelson on a contingent fee basis. He claims that he kept track of additional research time and expenses on separate slips of paper and that, after he was locked out of Richards' office, he directed McIlhenny's secretary, Lackey, to make a computer record of his time and expenses based on the information on those slips of paper. According to the accused, Lackey destroyed the slips of paper after entering the information into computer. In support of that explanation, the accused relies on Lackey's affidavit, which confirmed that she entered the accused's time records into a computer after the accused was locked out of Richards' office and that those time records consisted of slips of paper that she discarded upon entry. The accused also relies on McIlhenny's testimony, which confirmed that Lackey entered the accused's time records shortly after the accused was locked out of Richards' office and that Lackey typically discarded billing slips upon entry. The accused explains that the reason why the dates and tasks described in the statement are identical to those described in the ledger cards and time sheets produced by Richards is that he used Richards' billing records as a reference when reconstructing the time that he actually had spent on McKeever's case, because those records provided the best estimate of when he had performed the work. Finally, the accused relies on the testimony of Palmer, with whom the accused worked as a new lawyer before his association with Richards. Palmer testified that he terminated the accused's employment, because the accused spent more time on research projects than was to be expected for a new lawyer. The accused explains that his propensity to research issues more than necessary explains why he spent so much time researching McKeever's case. We agree with the Bar that the accused's explanation for the discrepancies between the statement and the billing records produced by Richards is not credible. The accused argues that he had no reason to report all the time and expenses incurred while researching McKeever's case, because he represented McKeever on a contingent fee basis. However, the evidence establishes that the accused did produce time sheets, while at Richards' office, detailing services that he performed for McKeever's case. The accused does not explain credibly why he would have reported some of his time and expenses on those time sheets, but kept separate records on slips of paper that he never submitted. In addition, when McKeever's lawyer first requested that the accused produce an itemization of time and expenses incurred on McKeever's behalf, the accused responded that no such documents existed. The accused does not explain why he failed, at that time, to produce the computer record that he now claims Lackey created from the slips of paper that she discarded upon entry. Moreover, even if we were to accept the accused's explanation that he kept additional time records on slips of paper that were later destroyed, we cannot accept that the time and expenses recorded on those slips of paper coincidentally supported damages in quantum meruit equal to the damages sought for breach of the contingent fee agreements. The fact that, as a young lawyer, the accused generally had a tendency to spend more time than necessary researching cases does not explain that specific coincidence. Finally, recalling our earlier discussion concerning the accused's untruthful testimony before the trial panel, we conclude that the accused was not a credible witness. We give no weight to his testimony that the statement was an accurate representation of the time that he spent on McKeever's case. We conclude that there is clear and convincing evidence in the record that the accused intentionally misrepresented his time and expenses in the statement that he produced in support of his quantum meruit claim against McKeever. We therefore find the accused guilty of engaging "in conduct involving dishonesty, fraud, deceit or misrepresentation," in violation of DR 1-102(A)(3), and of creating and using false evidence and making false statements of fact, in violation of DR 7-102(A)(4) to (6). We also find the *630 accused guilty of charging an illegal or clearly excessive fee in violation of DR 2-106(A). In determining the appropriate sanction, we are guided by the American Bar Association Model Standards for Imposing Lawyer Sanctions (1991) (ABA Standards). In re Gresham, 318 Or. 162, 167, 864 P.2d 360 (1993). Pursuant to those standards, we consider the following factors: (1) the nature of the duty violated; (2) the accused's mental state at the time of the violation; (3) the extent of actual or potential injury caused by the misconduct; and (4) the existence of any aggravating or mitigating circumstances. ABA Standard 3.0. The accused breached his duty to his clients to avoid conflicts of interest. He also engaged in two acts of misconduct involving dishonesty, deceit, fraud, or misrepresentation, and attempted to collect an improper fee based on falsified time records. With respect to the accused's mental state, we find that, in altering the contingent fee agreements to delete Richards' name and in producing falsified time records, the accused acted with a conscious objective to accomplish a particular result. That is what the ABA Standards describe as "intent," which is the most culpable mental state. The accused's misconduct caused the potential for serious injury to the legal system and the legal profession. By filing an action in his name only and by deleting Richards' name from the fee agreements signed by his former clients, the accused created the potential to mislead the court and to undermine the judicial process. By producing a falsified billing record, the accused sought to interfere with the outcome of his litigation against McKeever. Those acts of misconduct created the potential to undermine the relationship of trust and confidence between the public and the legal profession. There are several aggravating factors present. The accused's misconduct was undertaken with a dishonest and selfish motive. ABA Standard 9.22(b). The accused engaged in misconduct directed toward his clients at a time when they were particularly vulnerable, having suffered serious injuries in an motor vehicle accident. Id. at 9.22(h). The accused was untruthful in his testimony before the trial panel. Id. at 9.22(f). The accused engaged in a pattern of misconduct, committed multiple ethical violations, and refused to acknowledge the wrongful nature of his conduct. Id. at 9.22(c), (d), and (g). The only mitigating factors that we find applicable are the absence of a prior disciplinary record, id. at 9.32(a), and inexperience in the practice of law, id. at 9.32(f). The following ABA Standards are applicable to our determination of the appropriate sanction. ABA Standard 6.11 provides: ABA Standard 7.1 provides: We conclude that the appropriate sanction is disbarment. The accused is disbarred. [1] ORS 9.400 provides in part: "(1) 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, if an attorney for a plaintiff in respect to any civil action enters into an agreement with the plaintiff whereby the attorney receives as a fee a percentage of the amount of any settlement or judgment awarded to the plaintiff: "* * * * * "(c) The contingent fee agreements must contain a provision allowing the plaintiff to rescind the agreement within 24 hours after signing upon written notice to the attorney. "(2) Any contingent fee agreement entered into on or after September 26, 1987, that does not comply with the requirements of subsection (1) of this section is voidable." [2] For example, according to Richards' documents, the accused spent 42.6 hours on the McKeever case while at Richards' office; but, according to the accused's statement, he spent 102.1 hours during the same period. In addition, Richards' documents indicate that the accused made 142 photocopies; the statement shows 363 photocopies. [3] DR 5-105 (1988) was amended on September 12, 1988. Because the Bar alleged that the accused violated the conflict of interest rules both before and after that date, we refer to both DR 5-105 (1988) and the current version of that rule. DR 5-105 (1988) provided in part: "(A) A lawyer shall decline proffered employment if the exercise of the lawyer's 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 employment if the exercise of the lawyer's independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer's 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 the lawyer 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 the lawyer's independent professional judgment on behalf of each." [4] DR 5-105 currently provides in part: "(E) Except as provided in DR 5-105(F), a lawyer shall not represent multiple current clients in any matters when such representation would result in an actual or likely conflict. "(F) A lawyer may represent multiple current clients in instances otherwise prohibited by DR 5-105(E) when such representation would not result in an actual conflict and when each client consents to the multiple representation after full disclosure." DR 10-101(B)(1) defines the term "full disclosure" to mean "an explanation sufficient to apprise the recipient of the potential adverse impact on the recipient, of the matter to which the recipient is asked to consent." DR 10-101(B)(2) provides that, as used in DR 5-105, "`full disclosure' shall also include a recommendation that the recipient seek independent legal advice to determine if consent should be given and shall be contemporaneously confirmed in writing." [5] DR 1-102(A) provides in part: "It is professional misconduct for a lawyer to: "* * * * * "(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]" [6] DR 7-102(A) provides in part: "In the lawyer's representation of a client * * *, a lawyer shall not: "* * * * * "(4) Knowingly use perjured testimony or false evidence. "(5) Knowingly make a false statement of law or fact. "(6) Participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false." [7] ORS 9.527 provides in part: "The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that: "* * * * * "(4) The member is guilty of willful deceit or misconduct in the legal profession." [8] The accused argues that the trial panel erred in ruling that Crook's opinion about Richards' reputation for truth and veracity was inadmissible. Our review of the record discloses that the trial panel did permit Crook to offer an opinion regarding Richards' truthfulness, but it did not permit Crook to explain the basis for his opinion. No party makes any other challenge to the admissibility of Crook's opinion testimony. [9] Effective January 1, 1996, ORS 9.005(6) is renumbered as ORS 9.005(8). Or.Laws 1995, ch 302, § 15. [10] The accused failed to make an offer of proof regarding the excluded evidence. Henceforth, this court will not consider a claim under BR 5.1(b) that an erroneous ruling excluding evidence denied a party a fair hearing, unless the aggrieved party makes an offer of proof on the record regarding the excluded evidence. [11] DR 2-106(A) provides: "A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee." [12] As noted above, the accused sought identical amounts in his quantum meruit and breach of contract claims.

1c40caadeca4eeb2636b29b7ed013c13d61037dcf90a07ce2f2b5b5a92b5fc78

1995-10-26T00:00:00Z

715ffc73-0d5c-4f54-9512-abed2b1feafc

Oberg v. Honda Motor Co.

320 Or. 544, 888 P.2d 8

oregon

Oregon Supreme Court

888 P.2d 8 (1995) 320 Or. 544 Karl L. OBERG, Respondent on Review, v. HONDA MOTOR CO., LTD.; Honda R & D Co., Ltd.; and American Honda Motor Co., Inc., Petitioners on Review. CC A8709-05897; CA A61587, USSC 93-644; SC S38436. Supreme Court of Oregon, In Banc. Argued and Submitted September 12, 1994. Decided February 2, 1995. *9 Andrew L. Frey, of Mayer, Brown & Platt, Washington, DC, argued the cause for petitioners on review. With him on the briefs were Jeffrey R. Brooke and Paul G. Cereghini, of Bowman & Brooke, Phoenix, AZ, and Thomas W. Brown and James H. Gidley, of Cosgrave, Vergeer & Kester, Portland. Kathryn H. Clarke, Portland, and William A. Gaylord, Portland, argued the cause for respondent on review. With them on the briefs was Raymond F. Thomas, Portland. Thomas W. Sondag, of Lane Powell Spears Lubersky, Portland, filed briefs on behalf of amicus curiae First Interstate Bank of Oregon, N.A. With him on the briefs were James H. Clarke and Jeffrey M. Batchelor. Maureen Leonard, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n. Mildred J. Carmack, of Schwabe, Williamson & Wyatt, Portland, filed a brief on behalf of amicus curiae Oregon Ass'n of Defense Counsel. William L. Hallmark, of Hallmark, Keating & Abbott, P.C., Portland, filed briefs on behalf of amicus curiae Senco Products, Inc., an Ohio corp. Rives Kistler, Asst. Atty. Gen., Salem, filed a brief on behalf of amicus curiae State of Oregon. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. GRABER, Justice. This case is before us on remand from the Supreme Court of the United States. Honda Motor Co., Ltd. v. Oberg, 512 U.S. ___, 114 S. Ct. 2331, 129 L. Ed. 2d 336 (1994). This civil case involves a product liability claim against defendants, who manufactured and sold a three-wheeled all-terrain vehicle (ATV) used by plaintiff. The ATV flipped over backwards while plaintiff was riding it, and plaintiff suffered multiple injuries. A jury returned a verdict in favor of plaintiff, awarding both general and punitive damages. Defendants appealed to the Court of Appeals, which affirmed the judgment. Oberg v. Honda Motor Co., 108 Or.App. 43, 56, 814 P.2d 517 (1991). On review to this court, we also affirmed. 316 Or. 263, 289, 851 P.2d 1084 (1994). The facts are set forth in more detail in those opinions. As now pertinent, defendants argued in their earlier appearance before this court that, under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States,[1] an award of punitive damages must be subject to post-verdict judicial review for excessiveness. 316 Or. at 275, 851 P.2d 1084. They reasoned that, because the Oregon Constitution had been interpreted to preclude post-verdict judicial review of an award of punitive damages, the procedure followed by the Oregon courts did not comport with the requirements of federal procedural due process. This court stated that Article VII (Amended), section 3, of the Oregon Constitution,[2] prevents Oregon trial and appellate courts from reviewing awards of punitive damages.[3]Id. at 275-76, 851 P.2d *10 1084. This court held that, despite that restriction, Oregon's procedure complied with the dictates of federal procedural due process under then-existing Fourteenth Amendment jurisprudence. Id. at 283-89, 851 P.2d 1084. On certiorari, the Supreme Court of the United States reversed. The Supreme Court held that "Oregon's denial of judicial review of punitive damages awards violates the Due Process Clause of the Fourteenth Amendment." Honda Motor Co., ___ U.S. at ___, 114 S. Ct. at 2341. The Supreme Court went on to state: The Supreme Court did not address "the more difficult question of what standard of review is constitutionally required." Id. at ___ n. 10, 114 S. Ct. at 2341 n. 10. The Supreme Court left that question to us. On remand, then, our task is twofold. First, we must identify a standard of post-verdict judicial review of awards of punitive damages that complies with the federal constitution. Then, we must apply that standard to the case before us. Article VII (Amended), section 3, of the Oregon Constitution, quoted in note 2 ante, prohibits a court from re-examining a fact tried by a jury unless there is no evidence to support the jury's verdict. In Van Lom v. Schneiderman, 187 Or. 89, 116, 210 P.2d 461 (1949), this court held that an assessment of punitive damages is a question of fact committed to the decision of a jury, to which Article VII (Amended), section 3, applies.[4] Therefore, a trial or appellate court is prohibited from reviewing an award of punitive damages if there is evidence in the record to support a jury's finding that punitive damages should be awarded. Id. at 110-13, 210 P.2d 461. It is that aspect of the holding in Van Lom, construing Article VII (Amended), section 3, that comes into direct conflict with the decision of the Supreme Court of the United States in this case, concerning the requirements of federal due process. Under the Supremacy Clause,[5] we are bound to follow the requirements of federal due process in the face of that conflict. On remand, we hold that the standard for post-verdict judicial review of an award of punitive damages is as follows:[6] A jury's award of punitive damages shall not be disturbed when it is within the range that a rational juror would be entitled to award in the light of the record as a whole; the range that a rational juror would be entitled to award depends, in turn, on the statutory and common law factors that allow an award of punitive damages for the specific kind of claim at issue. We also hold that the award of punitive damages in this case was not excessive, when reviewed under the foregoing standard. As discussed above, the Supreme Court of the United States held in Oberg that the Due Process Clause of the Fourteenth Amendment requires post-verdict judicial review of awards of punitive damages. ___ U.S. at ___, 114 S. Ct. at 2341. In reaching its conclusion, the Supreme Court noted that, "[i]n the federal courts and in every State, *11 except Oregon, judges review the size of damage awards." Id. at ___, 114 S. Ct. at 2338. The Court then stated that "traditional practice provides a touchstone" for what is required by procedural due process. Id. at ___, 114 S. Ct. at 2339. The Court's discussion of traditional practice, from the era of George III to "modern practice," describes the proper procedure to be followed when it is asserted that a jury's award of punitive damages is excessive. Id. at ___ - ___, 114 S. Ct. at 2335-38. By contrast, the Court does not spell out what standard of review is required by federal procedural due process. Two passages in Oberg offer some guidance, however. First, the Court, in rejecting plaintiff's argument that Oregon provided adequate post-verdict review of a jury's award of punitive damages (because a trial judge or an appellate court can overturn an award of punitive damages if there is no evidence to support such an award, or if the jury was improperly instructed before it gave the award), stated: Second, in a footnote, the Court stated: In those two brief statements, the Supreme Court suggests that a form of post-verdict judicial review that asks whether "a rational basis" exists for the particular amount of punitive damages assessed, or a form of post-verdict judicial review that asks whether a "rational trier of fact" could assess the same award, would meet the requirements of the Due Process Clause. Both of those standards are related to the evidence in the record; some rational nexus must exist between the award and the evidence in the record. There is a range of punitive damages that a reasonable jury may assess in a given case, and an assessment of damages that exceeds that range results in a deprivation of property that is a substantive due process violation.[8] A court, trial or appellate, reviewing an award of punitive damages thus engages in post-verdict review (a procedural due process safeguard) to ensure that the award is within the permissible range of damages (which is limited by substantive due process concerns). *12 With the above considerations in mind, we hold that the legal standard to apply to post-verdict judicial review of a jury's award of punitive damages is as follows: Was the award of punitive damages within the range that a rational juror would be entitled to award in the light of the record as a whole? The range that a rational juror is entitled to award depends, in turn, on the statutory and common law factors that the jury is instructed and permitted to consider when awarding punitive damages for a given claim. Although the trial court did not apply our newly announced standard in the first instance here, we choose not to remand this case, for three reasons. First, on remand from the Supreme Court of the United States, this court has resolved questions of law and has determined how Oregon law will comport with the requirements newly articulated by the Supreme Court. We are in as good a position as would be the trial court to apply a legal standard to the evidence in the record. Second, by applying that new standard to the facts in this case, we may be able to give some guidance to trial courts that will need to follow this standard in the future. Third, the judgment was entered more than five years ago; we see no reason to delay the final resolution of this case any longer.[9] Considering the record as a whole, we hold that the award of punitive damages in this case is within the range that a rational juror would be entitled to award.[10] Our analysis is as follows. As noted, plaintiff brought a product liability claim against defendants. The substantive criteria to be considered by an Oregon factfinder in deciding whether to make an award of punitive damages in a product liability action and, if so, in setting the award, are set out in ORS 30.925: At trial, plaintiff presented evidence that permitted a jury to conclude, by clear and convincing evidence, that defendants acted with wanton disregard for the health and safety of others. ORS 30.925(1). From the evidence, a reasonable jury could conclude that punitive damages should be awarded. There also was evidence respecting the criteria listed in ORS 30.925(3). Evidence was presented that defendants actually knew, or should have known, for many years before developing the ATV model that injured plaintiff, that their ATVs were highly likely to cause serious personal injury or death. See ORS 30.925(3)(a) & (b) (stating relevant standards). The jury heard evidence that defendants, from the time when they developed and began manufacturing ATVs, failed to conduct adequate safety testing of those products for stability and crashworthiness and that defendants failed to consider adequate protections for ATV users against foreseeable roll-over accidents. Evidence was presented that defendants had known from the mid-1970s that ATVs were experiencing accidents and tip-overs; there was evidence that defendants' sales staffs and employees were aware of this. In the early 1980s, the evidence showed, an agency of the United States government undertook to investigate the safety of ATVs. Defendants responded by launching an advertising campaign, advising ATV users to ride safely, and by conducting in-house safety tests that were inadequate to determine potential safety hazards of ATVs. Plaintiff presented evidence that he suffered serious permanent injuries for which defendants denied responsibility. See ORS 30.925(3)(a) & (e) (stating relevant standards). Plaintiff suffered multiple fractures, which required that his eye sockets, cheek bones, jaw, and teeth be wired together. As a result of the accident, plaintiff suffered damage to his inner ear, affecting his balance and cognitive skills; damage to his eye sockets, causing double vision; and damage to his sinuses and deep skeletal structures, causing severe headaches and impairment of mental abilities (including reduced short-term memory). There was evidence that those injuries are permanent. Plaintiff also presented evidence that defendants' misconduct, which started with the failure to conduct reasonable safety tests of the design of ATVs and was enhanced by defendants' disregard of notices that the product was dangerous, continued for more than 15 years; in that period, defendants profited from sales of ATVs that defendants knew or should have known were inherently dangerous. See ORS 30.925(3)(c), (d) & (e) (stating relevant standards). There was evidence that, when plaintiff's injury occurred, defendants had notice, from the federal government agency investigating the safety of ATVs, that numerous injuries were occurring from the use of ATVs and that many of those injuries resulted from rearward tip-overs. According to the evidence, defendants maintained that there was nothing wrong with the design or testing of the product and that there was no reason to add safety mechanisms or to engage in safety tests to avoid the type of accident suffered by plaintiff. Finally, plaintiff presented evidence showing that defendant manufacturer's net worth was $4.9 billion at the time of trial. ORS 30.925(3)(f) (stating relevant standards). The jury assessed $919,390.39 as compensatory damages[11] and $5,000,000 as punitive damages. The punitive damages awarded here are not outside the range that a rational juror would be entitled to award in this instance. The Supreme Court of the United States has recognized that the Due Process Clause of the Fourteenth Amendment imposes a substantive limit on the size of punitive damages awards, but has refused to "draw a *14 mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that general concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus." Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 18, 111 S. Ct. 1032, 1043, 113 L. Ed. 2d 1 (1991). In Haslip, the Court recognized that an award that was four times the amount of compensatory damages, and more than 200 times the amount of out-of-pocket expenses, was permissible but "may be close to the line." Id. at 23, 111 S. Ct. at 1046. In TXO Production Corp. v. Alliance Resources Corp., 509 U.S. ___, ___ - ___, 113 S. Ct. 2711, 2722-23, 125 L. Ed. 2d 366 (1993), the Court upheld a jury award that was 526 times greater than the out-of-pocket damages awarded. In this instance, the jury received correct and complete instructions concerning the requirements for awarding punitive damages, thereby receiving adequate guidance from the trial court. The court in turn received its guidance from the legislature and, thus, in this case, the jury also acted with "legislative guidance expressing the considered judgment of the elected representatives of the community." TXO Production, 509 U.S. at ___, 113 S. Ct. at 2719. The award of punitive damages is about 5.4 times the award of compensatory damages, about 528 times the amount of plaintiff's out-of-pocket expenses, and about one-tenth of one percent of defendant manufacturer's net worth.[12] Although that is a large award, it is neither unreasonable nor grossly excessive in the light of the criteria set out in ORS 30.925, the evidence in the record, and the awards upheld against federal due process challenges in Haslip and TXO Production. A reasonable jury could conclude that this assessment of damages is appropriate to "punish a willful, wanton or malicious wrongdoer and to deter that wrongdoer and others similarly situated from like conduct in the future." See State ex rel Young v. Crookham, 290 Or. 61, 65, 618 P.2d 1268 (1980) (stating quoted standard). The decision of the Court of Appeals is affirmed on different grounds. The judgment of the circuit court is affirmed. [1] The Fourteenth Amendment to the Constitution of the United States provides in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law[.]" [2] Article VII (Amended), section 3, of the Oregon Constitution, provides in part: "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." [3] This court is mindful that Article VII (Amended), section 3, vests authority in this court to determine "what judgment should have been entered in the court below." However, because this court has used that authority in rare instances, Whinston v. Kaiser Foundation Hospital, 309 Or. 350, 358, 788 P.2d 428 (1990), and because review of punitive damages awards in a court of discretionary review would be impractical, we do not consider further that authority. [4] The court in Van Lom referred to Article VII (Amended), section 3, as "Article VII, section 3." The people adopted Article VII (Amended), section 3, in 1910, by initiative petition. [5] Article VI of the Constitution of the United States provides in part: "This Constitution * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." [6] This holding is limited to awards of punitive damages and does not extend to compensatory damages. [7] Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), addressed the appropriate standard of review in federal habeas corpus proceedings resulting from a claim of insufficient evidence to support a state criminal conviction. The Court stated that "the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." 443 U.S. at 324, 99 S. Ct. at 2791-92. [8] The Supreme Court of the United States recognized the existence of such a range. Discussing Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), and TXO Production Corp. v. Alliance Resources Corp., 509 U.S. ___, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993), the Court in Oberg, ___ U.S. at ___, 114 S. Ct. at 2335, stated: "Our recent cases have recognized that the constitution imposes a substantive limit on the size of punitive damage awards. Although they fail to `draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable,' a majority of the Justices agreed that the Due Process Clause imposes a limit on punitive damage awards. A plurality in TXO assented to the proposition that `grossly excessive' punitive damages would violate due process." (Citations omitted.) [9] Our decision to resolve this case here, rather than remand it to the trial court, indicates that an appellate court may conduct post-verdict review, on the merits, of an award of punitive damages, even though the trial court has not done so. We note, therefore, that the Court of Appeals may (when appropriate) conduct such a review of cases that already have been tried and that now are, or will be, on appeal. The foregoing paragraph should not be read to suggest, however, that the issue may be raised for the first time on appeal, without some objection or challenge to an award of punitive damages having been made, on the ground of excessiveness, in the trial court. In this case, there is no question that defendants raised the issue at trial in a timely and appropriate manner. Defendants moved for a directed verdict regarding the punitive damages claim (both at the close of plaintiff's case and at the close of all the evidence), ORCP 60, and moved for judgment notwithstanding the verdict, ORCP 63. They then challenged the jury's award of punitive damages, as excessive, by means of a motion for a new trial under ORCP 64 B(5). That rule of procedure provides for setting aside a judgment and granting a new trial when the evidence is insufficient to justify the verdict or when the verdict "is against law." [10] Because the award of punitive damages in this case is permissible, we need not, and do not, decide what procedures the trial court should follow when an award of punitive damages is excessive. [11] The jury allocated 20 percent of the fault to plaintiff and 80 percent to defendants. The trial court reduced the award of compensatory damages by 20 percent, to $735,512.31. [12] Our recitation is descriptive, not prescriptive. We do not suggest that there is some specific, mathematically precise outer limit on punitive damages. See 320 Or. at ___ - ___, 888 P.2d at 11-12, and 320 Or. at ___ n. 8, 888 P.2d at 11 n. 8.

f9dab47b513e5ed344eac9aa84ddde4db9e6ca6c14b8ae85687738f99c916820

1995-02-02T00:00:00Z

d293c013-4eee-40d5-bc2f-a03929484ae2

Meltebeke v. Bureau of Labor and Industries

322 Or. 132, 903 P.2d 351

oregon

Oregon Supreme Court

903 P.2d 351 (1995) 322 Or. 132 James V. MELTEBEKE, Respondent on Review, v. BUREAU OF LABOR AND INDUSTRIES, State of Oregon, Petitioner on Review. BOLI 29-90; CA A68770; SC S40567. Supreme Court of Oregon, In Banc. Argued and Submitted March 9, 1994. Decided October 5, 1995. *352 Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the petition were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General. Kelly E. Ford, Beaverton, argued the cause for respondent on review. David K. Allen and Richard C. Busse, Salem, filed a brief on behalf of amicus curiae the American Civil Liberties Union Foundation of Oregon, Inc. Doug Vande Griend and Jay R. Jackson, Salem, filed a brief on behalf of amicus curiae Western Center for Law and Religious Freedom. FADELEY, Justice. Petitioner, an employer, sought review of a revised final order of the Bureau of Labor and Industries (BOLI), which concluded that he had violated ORS 659.030(1)(b) by discriminating against an employee on the basis of religion. The Court of Appeals reversed, on the basis that petitioner had established an affirmative defense under Article I, sections 2 and 3, of the Oregon Constitution. Meltebeke v. Bureau of Labor and Industries, 120 Or.App. 273, 852 P.2d 859 (1993). We affirm the decision of the Court of Appeals. In this court, there is no challenge to the findings of fact made by BOLI in its revised final order. Those findings, where they are of fact, therefore, are the facts for purposes of our judicial review. See Jefferson County School Dist. No. 509-J v. FDAB, 311 Or. 389, 393 n. 7, 812 P.2d 1384 (1991) *353 (unchallenged findings of fact are the facts for purposes of judicial review of an administrative agency's final order). James Meltebeke (Employer) was, at all material times, an employer subject to the provisions of ORS chapter 659. He was the sole proprietor of a painting business in St. Helens. From June 17 to July 27, 1988, he employed Complainant as a painter. In this small business, Employer was normally Complainant's direct supervisor. They worked near each other from four to eight hours per day. Employer dismissed Complainant for poor work performance.[1] Employer is an evangelical Christian. He believes that he has a religious duty to tell others, especially non-Christians, about God and sinful conduct. That duty, he believes, includes initiation of discussions about religion and includes "preaching" or "witnessing" even when "an individual doesn't want to hear." It also includes denouncing sin by telling others that they are sinners where he believes that is appropriate. In the month during which Employer employed Complainant, Employer invited him to attend church eight times (twice a week). The first such request occurred two days after Complainant was hired. Complainant repeatedly told Employer that he "could not make it" but that he "would think about it." He never did attend. Employer also tried to call Complainant at home to encourage him to attend church. On more than one occasion, Employer told Complainant that he was a sinner who would go to hell, because he slept with his fiancée and because he did not attend church. Employer made similar remarks to the fiancée, whom Complainant later married, and to Complainant's mother. Employer told Complainant that "he had to be a good Christian to be a good painter, and that he should go to church to be a good painter." He also told Complainant that he wanted to work with a Christian, because he believed that a Christian "wouldn't be stealing stuff" while working "in people's homes, inside repainting." Complainant never informed Employer that he felt offended, harassed, or intimidated by anything that Employer said to him or to anyone else. He did not ask Employer to cease. Employer "did not know that his comments were unwelcome or offensive to Complainant," the agency found as fact. Employer did not "criticize[ ] any religion by name" to Complainant or apply any "religious slur" to Complainant or otherwise. Complainant was 22 years old at the time of the hearing. He has completed 10th grade and is considered to be learning disabled. Complainant was a "loner" who had little interest in religion. While in the Job Corps in the mid-1980s, he was issued Bibles, which he "thr[e]w * * * in the garbage[;] [he] didn't want to mess with it." Complainant attended Sunday School and Christmas Eve services when he was "very little" but had not gone to church regularly since he was in kindergarten. While employed by Employer, he did not attend any church. Complainant felt "embarrassed," "very uncomfortable," "humiliated," "bug[ged]," "reluctant to go to work each morning," and "out of place" because of his perception that Employer "was pushing God down his throat, and he did not want to have anything to do with it." Complainant "would come home from work angry. * * * [H]e was coming home after work and `basically exploding.' " Employer's "comments caused Complainant to hate churches. Now he `can't stand looking at them' * * * [and] `can't stand' to talk about religion. He `gets upset' whenever religion is mentioned." Complainant did not complain or request that Employer cease inviting him or discussing religious topics, because "you don't say that to your boss. I mean, at least I don't. I told him I couldn't make it [to church] all the time. He should have got the hint, and I ain't a rude person that tells someone that's his religion, that's not mine."[2] "Complainant *354 thought his job might be affected by his unwillingness to go to church. * * * He did not know what to do because [Employer] was his boss. * * * After two weeks of employment with [Employer], Complainant began looking for other work because he was so uncomfortable about [Employer's] religious comments."[3] Sometime after his termination, Complainant filed a complaint with BOLI, alleging that he was the victim of an unlawful employment practice by Employer. Specifically, Complainant alleged that he had been subjected to religious discrimination in the form of religious harassment. In its final order dated February 4, 1992, BOLI found as ultimate facts that Employer's conduct was directed at Complainant because of Complainant's religious beliefs; that Employer's conduct was subjectively "unwelcome and offensive" to Complainant; and that Employer's conduct "was sufficiently pervasive so as to alter the conditions of employment, and had the effect of creating an intimidating and offensive working environment." BOLI concluded that Employer had violated ORS 659.030(1)(b) by violating BOLI's implementing rule, which is a "test for religious harassment" adopted in In the Matter of Sapp's Realty, No. 11-83, (BOLI 1985).[4] BOLI withdrew and revised its final order after employer objected. In the amended opinion portion, BOLI explained that the evidence demonstrated that Employer's conduct occurred because "[C]omplainant did not share [Employer's] religious beliefs" and that Employer's conduct was unwelcome to Complainant subjectively. BOLI also explained that, under the totality of the circumstances and applying an objective, "reasonable person" standard, Employer's conduct had the effect of creating an "intimidating, hostile, or offensive working environment." Also in its amended opinion, BOLI considered, and rejected, Employer's affirmative defenses, based on Article I, sections 2, 3,[5] and 8, of the Oregon Constitution, and the First Amendment to the United States Constitution.[6] BOLI determined that Complainant was entitled to $3,000 in compensatory damages. It ordered that Employer pay those damages plus interest; that Employer "cease and desist from discriminating against any employee on the basis of religion"; and that Employer post at his work sites copies of ORS 659.030 and related notices. Employer appealed, arguing that BOLI's order violated his rights under the above-enumerated constitutional provisions. The Court of Appeals reversed and remanded the case to BOLI for reconsideration. Meltebeke. The Court of Appeals concluded that BOLI's rule, as applied in this case,[7] violated Article I, sections 2 and 3. That court reasoned that the burden imposed on religion by the rule would be acceptable if the rule were "essential" to accomplish an "overriding governmental interest" and that the rule is not the "least restrictive" means of protecting that interest, because it does not require that the individual "intend" to create a hostile, offensive, or intimidating environment. 120 Or.App. at 278-80, 852 P.2d 859. The court did not reach Complainant's other constitutional claims. Id. at 282, 852 P.2d 859. *355 Judge Edmonds concurred specially, stating that, if the constitutional issues were reached, he would hold that BOLI's rule violated Article I, section 3, on its face, because "it fails to accommodate an employer's expression of religious belief or opinion." Id. at 287-91, 852 P.2d 859. But he reasoned that the court need not reach the constitutional issues presented, for several reasons: BOLI's rule exceeded its statutory rulemaking authority, id. at 283, 852 P.2d 859; the findings of discrimination due to Complainant's religious beliefs, id. at 285, 852 P.2d 859, and that a hostile environment existed were not supported by substantial evidence in the record, id. at 286-87, 852 P.2d 859; and, in any event, BOLI's conclusions did not follow from the findings that it made, id. at 287, 852 P.2d 859. Judge Riggs dissented, reasoning that "freedom from religion is entitled to the same level of constitutional * * * protection in the workplace" as "freedom to practice religion." Id. at 293, 852 P.2d 859 (emphasis in original). He would hold that "[c]onduct is not always protected merely because someone chooses to invoke constitutional guarantees of expression or religion" and that "the intensity of uninvited religious proselytizing by [Employer] constituted common harassment and religious discrimination" that was not constitutionally protected. Ibid. Allowing BOLI's petition for review, this court now holds that the complaint should be dismissed for the reasons that follow. The primary issues in this administrative review are whether the religious harassment rule, adopted by BOLI for the purpose of implementing ORS 659.030(1), violates Article I, sections 2, 3, or 8, of the Oregon Constitution, or the First Amendment to the United States Constitution;[8] and, if not, whether application of that rule to Employer violates any of those constitutional provisions. See ORS 183.482(8)(a), (b) (providing standards of review of a contested case proceeding, for erroneous interpretation of a provision of law and for impermissible exercise of discretion in violation of constitution). Before reaching those questions, however, the court must consider pertinent subconstitutional issues. Zockert v. Fanning, 310 Or. 514, 520, 800 P.2d 773 (1990); Planned Parenthood Assn. v. Dept. of Human Res., 297 Or. 562, 687 P.2d 785 (1984). ORS 659.030(1) provides in part: "[I]t is an unlawful employment practice: "* * * * * In Sapp's Realty, BOLI adopted the following rule implementing that statute: In Sapp's Realty, BOLI also "emphasize[d] that by adopting this test, this [agency] does not mean to state that general expressions of religious beliefs at the workplace, by *356 themselves, constitute a violation of ORS 659.030." Id. at 80. BOLI also analyzed the constitutional guarantees of free exercise of religion and free speech. Id. at 88-94. BOLI's rule has been further interpreted in the present case. Four additional aspects of the Sapp's Realty rule, as further developed in this case, bear on the analysis. (1) The "religious advances" or "other verbal or physical conduct of a religious nature" must be "sufficiently pervasive as to alter the conditions of employment." The employer's conduct will be examined to determine whether, from the objective standard of a "reasonable person," that conduct would actually create an "intimidating, hostile, or offensive working environment." (2) The conduct must in fact be unwelcome to the employee. As to that factor, the test is subjective. (3) The unwelcome conduct must have been directed at an employee because of that employee's religion. (4) Within the meaning of the rule, "religion" for both employer and employee includes nonbelief, as well as belief. The analysis below will consider BOLI's rule as so interpreted by BOLI. The parties do not contend that BOLI lacks authority to promulgate rules[10] or that the rule in this case was promulgated in violation of applicable rulemaking procedures.[11] However, Judge Edmonds reasoned in his special concurrence below that the statute protects an employee from discrimination based on the employee's religion, whereas BOLI's rule permits a finding of discrimination when an employee is offended by an employer's expression of the employer's religious beliefs. 120 Or.App. at 285-86, 852 P.2d 859. Employer argues in this court that BOLI has, impermissibly, expanded the coverage of ORS 659.030(1), in three ways. First, Employer argues that the rule is written to cover "harassment" on the basis of religion, whereas the statutory prohibition against discrimination in terms, conditions, or privileges of employment does not include harassment. Second, Employer argues that the statute focuses on protecting the employee, while the rule focuses on conduct of the employer. Third, Employer argues that guarantees of freedom of religion do not protect nonbelief. Under the applicable standard of review, each of those arguments is flawed. The standard is described in Planned Parenthood, which involved a rule challenge brought under ORS 183.400. This court's discussion of statutory authority in that context is pertinent in the present contested case proceeding, because Employer's argument is, in effect, that the way in which "the agency has erroneously interpreted a provision of law," ORS 183.482(8)(a), is that "the rule * * * [e]xceeds the statutory authority of the agency," ORS 183.400(4)(b). In Planned Parenthood, this court explained: "To the extent that the rule departs from the statutory policy directive, it `exceeds the statutory authority of the agency' within the meaning of those words in ORS 183.400(4)(b). `Authority' in that section cannot be taken to mean only the overall area of an agency's authority or `jurisdiction,' because that construction would leave rules open to substantive review only for constitutional violations under ORS 183.400(4)(a). In effect, such an interpretation would expand every official's rulemaking power on matters within [the *357 official's] general assignment to the limits of constitutional law, whatever the legislative policy of the statute might be. It would contradict the well-established principle to avoid constitutional holdings until it is clear that the challenged policy indeed has been enacted into law by the politically responsible lawmakers, in this case the Legislative Assembly. "`To resolve whether the challenged rule is within the statutory authority of the agency, this court need only determine whether the rule is within the range of discretion allowed by the more general policy of [the statute at issue].'" 297 Or. at 573-74, 687 P.2d 785. The court examined the policies expressed in the enabling statute in that case, including the "explicit[ ] * * * aim" of the statute, and determined that the rule in that case violated the agency's rulemaking authority. Id. at 574, 687 P.2d 785.[12] Here, however, the rule does not "depart[ ] from the statutory policy directive." Id. at 573, 687 P.2d 785. With respect to Employer's first argument, "discriminat[ion] * * * in terms, conditions or privileges of employment," ORS 659.030(1)(b), includes the conduct covered by BOLI's rule. As discussed above, BOLI's rule requires all of the following: that the employer's conduct within one of the statutorily protected areas, such as religion, was so pervasive and severe that it altered the employee's working conditions for the worse to the extent that the conduct created an intimidating, hostile, or offensive working environment when viewed under an objective standard; and that the employee actually suffered a detriment as a result of the conduct. The psychological environment in which a person works is as much a part of working "conditions" as is the physical environment. (That is, the nature, quality, and manner of the relationship with one's employer is one of the terms, conditions, or privileges of a person's employment, some of which come within the categories protected by this civil rights statute, such as religion.) The "reasonable person" or objective standard contained in BOLI's rule is designed, at least in part, to ensure that there is objective evidence on which to base a finding of an actual alteration of those working conditions before BOLI will find a violation of the rule. The rule also requires that the employee have suffered a detrimentin other words, was discriminated against in those terms and conditions of employment. See Webster's Third New Int'l Dictionary 648 (unabridged ed 1993) ("discriminate" means "to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit"). Employer's second statutory argument also fails. ORS 659.030(1) focuses on the conduct of others in the workplace, including the employers' conduct, not just on the protection of employees from discriminatory conduct. ORS 659.030(1) defines as unlawful employment practices certain kinds of conduct engaged in by employers. The statute declares it unlawful "[f]or an employer" to *358 discriminate. The rule in question likewise focuses on employers' conduct. As to Employer's third argument, BOLI's rule comes squarely within the statutory directive to protect employees from discrimination "because of" the employee's religion. A causal connection is required by BOLI's rule. BOLI's rule, as interpreted in this case, is limited to situations in which the employer's discriminatory conduct is directed at an employee based on that employee's religious belief or nonbelief. The term "religion" in the present context commonly includes a lack of such beliefs, as well as a belief-system of faith or worship practiced by a particular sect. See Salem College & Academy, Inc. v. Emp. Div., 298 Or. 471, 489, 695 P.2d 25 (1985) ("Religious pluralism is at the historic core of American guarantees of religious freedom" and includes "`persons of all religious denominations, as well as nonbelievers'" (quoting Judge Matthew P. Deady speaking at Oregon's constitutional convention in 1857));[13]Dilger v. School District 24 CJ, 222 Or. 108, 132, 352 P.2d 564 (1960) (denial of atheist parent's right to excuse that parent's child from religious training "would probably be a violation of the freedom of religion guaranteed by both the Oregon and the United States Constitutions"); see also Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 270, 21 L. Ed. 2d 228 (1968) ("The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." (footnote omitted)); Or. Const. Art. I, §§ 4-7 (no religious test to be required as qualification for office; no money to be appropriated for religious or theological institutions or for religious services in legislature; no religious qualification to be used for witnesses or jurors; oath or affirmation to be administered in manner most consistent with and binding upon conscience of person to whom administered). There is no indication in ORS chapter 659 that the legislature used the term "religion" in a more restrictive sense when prohibiting employment discrimination on the basis of an employee's religion. In addition to being enacted against the foregoing background, ORS 659.030(1) covers categories occupied by every person. That is, every person has a race, color, national origin, marital status, and age; likewise, under this broad-brush statute, every person has a religion. All are to be protected from discrimination. Thus, the policy embodied in ORS 659.030(1) is one of prohibiting employment discrimination because of an individual's religion. BOLI's rule "corresponds to [that] statutory policy" and is "within the range of discretion allowed by" that policy. See Planned Parenthood, 297 Or. at 573-74, 687 P.2d 785 (stating those tests just quoted). C. Application of the Rule to the Facts Employer also argues that, even if the rule is valid because it is within BOLI's authority, there is insufficient evidence, as a matter of law, to permit BOLI to find as fact or to conclude that a reasonable person with Complainant's characteristics would have found this work environment to have been intimidating, hostile, or offensive. As did the Court of Appeals, 120 Or.App. at 276-77 & n. 3, 852 P.2d 859, we disagree. A reasonable person could find a work environment to be intimidating, hostile, or offensive in the totality of the circumstances presented here, including the characteristics of Complainant here. Those circumstances also included, it will be recalled, the employer's repeatedly inviting the employee to attend the employer's church; repeatedly telling the employee that he would go to hell because of his personal living situation and because of his non-attendance at church and calling the employee and members of the employee's family at home, with similar messages; telling the employee that a person could not be good at the employee's work unless the employee was a member of the same generic religious group as the employer *359 and attended church, while informing the employee that the employer wanted to work with someone with a religious preference similar to that of the employer, because such people would not steal at work. For the foregoing reasons, we conclude that Employer's subconstitutional arguments are not well taken. We turn, therefore, to the first of his state constitutional claims. Article I, section 2, of the Oregon Constitution, provides: Article I, section 3, provides: These provisions are obviously worded more broadly than the federal First Amendment, and are remarkable in the inclusiveness and adamancy with which rights of conscience are to be protected from governmental interference. From our current vantage point of a society that is religiously diverse and relatively unconcerned about that diversity, it is difficult to fully appreciate why Oregon's pioneers approved these broad and adamant protections. However, the history of religious intolerance was fresh in the minds of those who settled Oregon, many of whom themselves represented relatively diverse religious beliefs. Reporting on 300 years of governmental intolerance enforced by criminal laws in England, Judge Stephen summarized: Under the criminal laws reported by Stephen, a person was fined for not attending the "Established Church" and imprisoned for attending "conventicles," or meetings, of any other persuasion. The last of these governmental acts of intolerance were not repealed until 1844, well into Queen Victoria's reign, id. at 483, just two years before the Oregon country became territory of the United States by an 1846 treaty between England and the United States. In fact, the law imposing a fine for failing to attend the "Established Church" was not repealed until 1846. Ibid. The text of Article I, sections 2 and 3, and some of the historical circumstances surrounding its adoption, have been discussed in this court's case law. A starting point for examining the case law pertaining to those provisions is Salem College. In Salem College, this court considered the constitutionality of laws that exempted certain religious organizations, but not others, from taxation to fund unemployment benefits for their workers. The court came to two central conclusions, the first of which is pertinent to the resolution of this case. This court concluded, first, that the free exercise of religion and rights of conscience under Article I, section 2, of the Oregon Constitution, do not relieve religious schools from paying payroll taxes for unemployment insurance pursuant to a general statutory scheme imposing taxes for such insurance. Salem College, 298 Or. at 489, 695 P.2d 25. The unemployment insurance statutes are not based on the religious character of the employing entity. Id. at 486, 695 P.2d 25. The court expressly rejected the formula suggested in that case of requiring a "compelling" state interest to be shown to validate the tax. Id. at 492, 695 P.2d 25. A court need not weigh the nature or degree of the state's interest to permit the regulation and participation of all employers, including religious organizations, in an unemployment insurance system. Ibid.[14] *360 This court in Salem College said several additional things of note. As stated earlier, that opinion implied that the prevailing view at the Oregon constitutional convention was that equal constitutional tolerance for various religious beliefs extends to religious believers and nonbelievers alike. Id. at 489, 695 P.2d 25. This court quoted with apparent approval from the Court of Appeals' decision in that case to the effect that the legislature cannot "infring[e] on the right of citizens to develop, independently, their own set of beliefs" or "discourag[e] the multiplicity of sects." Ibid. (quoting Salem College & Academy, Inc. v. Emp. Div., 61 Or.App. 616, 628, 659 P.2d 415 (1983)). The court followed through on that point by stating that, if a statutory exemption were to choose among religions or religious organizations, then all religions are not equally "secure" to exercise their rights under Article I, sections 2 and 3. In such a case, the state may not excuse its uneven conduct by asserting "`compelling' interests in order to discriminate between otherwise indistinguishable religious activities by their sectarian affiliations." Id. at 492, 695 P.2d 25. This court ultimately upheld the statutory scheme to permit taxation of all schools, including religious schools of all types, and held that the statute, so interpreted, does not contravene Article I, sections 2 and 3, of the Oregon Constitution. Id. at 495, 695 P.2d 25. Under Salem College, a general statutory scheme regulating employers, such as the unemployment compensation program, is not subject to a valid challenge based on Article I, sections 2 and 3. In this case, the general regulation of employment discrimination is such a scheme. ORS chapter 659 and its implementing rules prohibit employers from treating employees in a discriminatory manner because of listed factors (such as race, sex, religion, and age) that generally are unrelated to job qualifications and work performance. A general scheme prohibiting religious discrimination in employment, including religious harassment, does not conflict with any of the underpinnings of the Oregon constitutional guarantees of religious freedom identified in Salem College: It does not infringe on the right of an employer independently to develop or to practice his or her own religious opinions or exercise his or her rights of conscience, short of the employer's imposing them on employees holding other forms of belief or nonbelief; it does not discourage the multiplicity of religious sects; and it applies equally to all employers and thereby does not choose among religions or beliefs. The law prohibiting religious discrimination, including religious harassment, honors the constitutional commitment to religious pluralism by ensuring that employees can earn a living regardless of their religious beliefs. The statutory prohibition against religious discrimination in employment and, in particular, the BOLI rule at issue, when properly applied, will promote the "[n]atural right" of employees to "be secure in" their "worship [of] Almighty God according to the dictates of their own consciences," Or. Const. Art. I, § 2, and will not be a law controlling religious rights of conscience or their free exercise. The next case to arise under Article I, sections 2 and 3, added something to the state constitutional analysis. In Smith v. Employment Div., 301 Or. 209, 721 P.2d 445 (1986), vacated and remanded on other, unrelated grounds, 485 U.S. 660, 108 S. Ct. 1444, 99 L. Ed. 2d 753 (1988), Smith was denied state unemployment benefits after he was fired from his job as a drug counselor for using peyote in disregard of his employer's express requirement that he be drug free. He asserted that the use was a religious *361 practice. That use also violated a state criminal law, but the decision was about Smith's disqualification for unemployment benefits because of job-related misconduct. The validity of the discharge was not at issue; only the constitutionality of the denial of unemployment benefits was before the court. This court held that there was no state constitutional violation, reiterating the salient portions of Salem College to the effect that the law denying unemployment benefits for a misconduct-based discharge is part of a general regulatory scheme and is "completely neutral toward religious motivations for misconduct." Smith, 301 Or. at 215, 721 P.2d 445. The Smith court then stated that, "[a]s long as disqualification by reason of the religiously based conduct is peculiar to the particular employment and most other jobs remain open to the worker, we do not believe that the state is denying the worker a vital necessity in applying the `misconduct' exception of the unemployment compensation law." Id. at 216, 721 P.2d 445. That passage appears to mean that the application of a neutral law to misconduct that is being justified as a religious practice does not burden the actor's religious freedoms unconstitutionally where such application does not foreclose the actor's enjoyment or exercise of that religious practice. Smith thus reinforced the position announced in Salem College: A law that is neutral toward religion or nonreligion as such, that is neutral among religions, and that is part of a general regulatory scheme having no purpose to control or interfere with rights of conscience or with religious opinions does not violate the guarantees of religious freedom in Article I, sections 2 and 3. Smith also went further than Salem College, which did not involve a religious practice. The element that Smith added to Salem Collegethe denial of a challenge to a neutral law that, under certain factual circumstances, has an impact on a religious practiceis crucial in the context of this case.[15] We conclude that, under established principles of state constitutional law concerning freedom of religion, discussed above, BOLI's rule is constitutional on its face. The law *362 prohibiting employment discrimination, including the regulatory prohibition against religious harassment, is a law that is part of a general regulatory scheme, expressly neutral toward religion as such and neutral among religions. Indeed, its purpose is to support the values protected by Article I, sections 2 and 3, not to impede them. The statute empowers the agency to punish on-the-job discrimination that is based on religion; it does not empower agency prohibition or punishment of on-the-job religious practices. Discrimination is the key, that is, discrimination that is not itself protected by the state constitution. In the present case, Employer raised an affirmative defense, based on the rights of conscience and religious practices guaranteed by Article I, sections 2 and 3, to excuse violation of the BOLI rule. Employer argued that his conduct was constitutionally privileged even if it violated a statutorily authorized rule that is constitutionally valid on its face. BOLI found, at least implicitly, that Employer's conduct,[16] which violated its rule, constituted a religious practice. BOLI found expressly that Employer had no knowledge that his religious practice created an intimidating, hostile, or offensive working environment. The question is whether Employer is entitled under that circumstance to prevail on his defense. Smith contains an additionalif less explicitrequirement: A person against whom a sanction is to be imposed for conduct that constitutes a religious practice must know that the conduct causes an effect forbidden by law. In Smith, this court regarded it as significant that Smith had received a memorandum from his employer stating its policy against employees' use of drugs and had been told by his employer that ingestion of peyote would result in his termination as a drug counselor. 301 Or at 211-12, 721 P.2d 445. The court noted that Smith knew that he was ingesting peyote and knew that he was violating his employer's work rule (although there is no indication whether he knew that his conduct had a particular legal significance under the unemployment compensation law). Id. at 215-16, 721 P.2d 445. In the present case, BOLI requires for a violation of its rule that the employer act because of the employee's religion or nonreligion. However, BOLI has declined to include any subjective component related to the employer within its anti-harassment rule where the conduct of the employer constitutes a religious practice. Rather, BOLI's objective standard imposes liability when an employer should have known that its conduct causes a specified forbidden effect, whether or not the employer actually did know.[17] Under the reasoning of Smith, more is required. When a person engages in a religious practice, the state may not restrict that person's activity unless it first demonstrates that the person is consciously aware that the conduct has an effect forbidden by the law that is being enforced. (That principle does not mean that the state must show that the person understands the legal conclusion that the activity violates a law or appreciates subjectively or morally that the conduct is wrong.) With respect to an employer whose activity that violates BOLI's rule constitutes a religious practice, as is the case here, the employer must know that that activity created an intimidating, hostile, or offensive working environment.[18]*363 Where religious practice is involved, BOLI's assertion that state constitutional religious values are adequately protected by using a reasonable person's perspective and reaction to the activity is erroneous. The agency's use of a reasonable person standard to provide some relevant evidence as to an employer's knowledge that his activity is harming others is, in itself, unremarkable. In its quest for the facts upon which a contested case may depend, an administrative agency need not eschew logic. That is not the problem in this case. The agency expressly found that Employer did not know that his activity made the workplace intimidating, hostile, or offensive as to this employee or any employee. That is the operative fact in this case, whether or not a reasonable person might have inferred otherwise. Because sections 2 and 3 of Article I are expressly designed to prevent government-created homogeneity of religion, the government may not constitutionally impose sanctions on an employer for engaging in a religious practice without knowledge that the practice has a harmful effect on the employees intended to be protected. If the rule were otherwise, fear of unwarranted government punishment would stifle or make insecure the employer's enjoyment and exercise of religion, seriously eroding the very values that the constitution expressly exempts from government control. Fairly read, BOLI's revised final order found that Employer's actions, in violation of its rule, constituted a religious practice.[19] BOLI also expressly found that Employer did not know that his conduct created an intimidating, hostile, or offensive working environment. That being so, Employer established an affirmative defense under Article I, sections 2 and 3.[20] BOLI's rule, challenged in this case, does not exceed the scope of the authorizing statute. The facts found by BOLI permitted it to conclude that Employer's conduct violated the rule. On its face, the challenged rule does not offend Article I, sections 2 or 3, of the Oregon Constitution, in the manner argued by Employer. However, the rule offends Article I, sections 2 and 3, by not requiring that BOLI find that Employer knew in fact that his actions in exercise of his religious practice had an effect forbidden by the rule. The decision of the Court of Appeals is affirmed. The revised final order of the Bureau of Labor and Industries is reversed, and the case is remanded to that agency with instructions to dismiss the complaint. UNIS, J., filed a specially concurring opinion. UNIS, Justice, specially concurring. I agree with the result reached by the majority in this case. However, I would reach that result under Article I, section 8, of the Oregon Constitution,[1] Oregon's constitutional guarantee of free expression, rather than under Article I, sections 2 and 3, of the Oregon Constitution,[2] which is the basis of the majority's opinion. *364 This court's "free expression of opinion" and "right to speak" jurisprudence under Article I, section 8, of the Oregon Constitution consists of a four-part inquiry that is described in detail in In re Fadeley, 310 Or. 548, 574-78, 802 P.2d 31 (1990) (Unis, J., concurring in part, dissenting in part). "The first inquiry in our assessment whether a governmental enactment violates Article I, section 8, * * * is whether that enactment on its face restrains the `free expression of opinion' or restricts the `right to speak' on any subject whatever." Id. at 575, 802 P.2d 31 (emphasis in original); State v. Moyle, 299 Or. 691, 695, 705 P.2d 740 (1985); see also State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982) (quoting State v. Spencer, 289 Or. 225, 228, 611 P.2d 1147 (1980)). "If the enactment restrains the `free expression of opinion' or restricts the `right to speak,' then a second inquiry is necessary."[3]In re Fadeley, 310 Or. at 575, 802 P.2d 31 (Unis, J., concurring in part, dissenting in part). That inquiry is whether the restraint or restriction (a) was well established when the first American guarantees of freedom of speech were adopted and (b) is one that those guarantees demonstrably were not intended to abolish. State v. Henry, 302 Or. 510, 514, 521, 732 P.2d 9 (1987). If the government demonstrates that the enactment falls within such an established exception, then the enactment does not, on its face, violate Article I, section 8. Moyle, 299 Or. at 695, 705 P.2d 740; Robertson, 293 Or. at 412, 649 P.2d 569. In that event, this court will scrutinize the enactment to determine whether it appears to reach privileged "expression of opinion" or "speech," or "whether it can be interpreted to avoid such overbreadth." Moyle, 299 Or. at 702, 705 P.2d 740 (quoting Robertson, 293 Or. at 418, 649 P.2d 569). If the court is able to discern the intended boundaries of an overbroad law, this court will narrow the law to the constitutional confines intended by the lawmakers. Moyle, 299 Or. at 702-05, 705 P.2d 740. "If the [enactment] potentially reaches substantial areas of communication that would be constitutionally privileged and that cannot be excluded by a narrowing interpretation or left to a case-by-case defense against the application of the [enactment], it [is] unconstitutional." Id. at 701-02, 705 P.2d 740. If the enactment does not restrain or restrict speech historically intended to be excepted from Article I, section 8, a third inquiry is necessary. "That question is whether the focus of the enactment, as written, is on an identifiable, actual effect or harm that may be proscribed, rather than on the communication itself." In re Fadeley, 310 Or. at 576, 802 P.2d 31 (Unis, J., concurring in part, dissenting in part); see Moyle, 299 Or. at 697, 705 P.2d 740; see also Oregon State Police Assn. v. State of Oregon, 308 Or. 531, 541, 783 P.2d 7 (1989) (Linde, J., concurring) ("law must specify expressly or by clear inference what `serious and imminent' effects it is designed to prevent"), cert. den. 498 U.S. 810, 111 S. Ct. 44, 112 L. Ed. 2d 20 (1990). An enactment "directed at an effect of speech may be constitutional, unless the statute is overbroad." Oregon State Police Assn., 308 Or. at 536, 783 P.2d 7. If the enactment identifies the actual harm in its text, rather than prohibiting or restricting the use of words, then the law will not be held, on its face, to violate Article I, section 8. Instead, it will be scrutinized to determine whether it appears to reach protected communications or whether it can be interpreted narrowly to limit its reach to situations in which harm occurs and, thus, to avoid such overbreadth. If the answer to the third inquiry is that the enactment proscribes expression or the use of words, rather than harm, it violates Article I, section 8, unless there is a claim that infringement on otherwise constitutionally protected speech is justified under the "incompatibility exception" to Article I, section *365 8.[4] Before applying the foregoing methodology to this case, it is crucial to understand the enactment to which it will be applied. ORS 659.030(1) provides in part: "[I]t is an unlawful employment practice: "* * * * * In In the Matter of Sapp's Realty, No. 11-83 (BOLI 1985), the Bureau of Labor and Industries (BOLI) adopted the following rule implementing that statute: BOLI's rule has been further interpreted in the present case. Under BOLI's present interpretation, the "religious advances" or "other verbal or physical conduct of a religious nature" must be "sufficiently pervasive as to alter the conditions of employment." The employer's conduct will be examined to determine whether, from the objective standard of a "reasonable person," that conduct would create an "intimidating, hostile or offensive working environment." The conduct must be unwelcome on the part of the employee. Additionally, the unwelcome conduct must have been directed at the employee because of the employee's religion. BOLI's interpretations of the statute are rules implementing that statute. See ORS 183.310(8) (defining a "rule" as "any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy"); ORS 183.355(5) ("if an agency, in disposing of a contested case, announces in its decision the adoption of a general policy applicable to such case and subsequent cases of like nature [i.e., a rule], the agency may rely upon such decision in disposition of later cases"). The rules have the effect of statutory law. Bronson v. Moonen, 270 Or. 469, 476, 528 P.2d 82 (1974). Thus, for purposes of analysis under Article I, section 8, BOLI's interpretation of ORS 659.030(1) in Sapp's Realty and in this case is the "law" that we must analyze under Article I, section 8. This case, therefore, essentially involves a law that provides: Applying this court's established methodology to the present case, it is obvious that *366 BOLI's rule, on its face, restrains the "free expression of opinion" or restricts the "right to speak." The rule, by its terms, proscribes certain "verbal conduct" and "religious advances." It is equally clear that BOLI has not demonstrated that the rule's prohibition against certain "verbal conduct" and "religious advances" is within a well-established, historical exception to the constitutional protection afforded free expression by Article I, section 8. I, therefore, turn to the third inquiry in our analysis under Article I, section 8 namely, whether the focus of the enactment, as written, is on an identifiable actual effect or harm that may be proscribed, rather than on the communication itself. At first glance, BOLI's rule appears to be directed at an identifiable harmnamely, the creation of an intimidating, hostile or offensive working environment. However, BOLI's rule further defines what is meant by an "intimidating, hostile or offensive" working environment in objective terms, i.e., whether a reasonable person would find the religious speech to be intimidating, hostile or offensive. There is no requirement in BOLI's rule that anyone in fact feel intimidation, hostility or offense. In Moyle, 299 Or. at 699, 705 P.2d 740, this court recognized that "[a] difficulty arises * * * when a statute defines a [prohibition] in terms of causing a kind of harm which necessarily results only from speech or writing, so that the statutory definition is only the other side of the coin of a prohibition of the speech or writing itself." This court stated: In my view, BOLI's ruleby measuring an intimidating, hostile or offensive working environment by a purely objective standardis not directed at an identifiable actual harm or effect, but at expression itself. The rule can be violated without any actual harm or effect taking place. A violation of BOLI's rule occurs when an employer engages in religious expression of certain content (i.e., expression that a reasonable person would find to create an intimidating, hostile or offensive working environment), even if no worker is, in fact, made to feel the proscribed effects.[5] In essence, the rule bans the use of certain expression because the government believes that that expression will have a tendency to cause a particular effect or harm. This approach to lawmaking is what Article I, section 8, prohibits: "Our cases under Article I, section 8, preclude using apprehension of unproven effects as a cover for suppression of undesired expression, because they require regulation to address the effects rather than the expression as such." City of Portland v. Tidyman, 306 Or. 174, 188, 759 P.2d 242 (1988). For the foregoing reasons, I conclude that BOLI's rule violates the "free expression of opinion" and "right to speak" guaranteed by Article I, section 8, of the Oregon Constitution. [1] The parties stipulated and BOLI found as fact that the discharge was not related to the religious matters on which this case is based. BOLI also found that Employer made no religious inquiry or test before hiring. [2] "If Complainant had told [Employer] to quit asking him to attend church, [Employer] `might have ceased for awhile, but * * * would check him out again sometime later on * * *.'" [3] Moreover, Complainant testified that Employer's "comments affected [Complainant's] work performance and gave him a bad attitude." And, although Employer discharged Complainant based on the latter's poor work performance, "[a]t the time of his discharge, Complainant thought the reason he was fired was that he had not gone to church." See note 1, above, for the stipulation and finding of fact on that question. [4] The statute and rule are quoted in the discussion below, 322 Or. at 139, 903 P.2d at 355. [5] Those state constitutional provisions are quoted below, 322 Or. at 145-46, 903 P.2d at 358-59. [6] Employer argued that his conduct was privileged, even if it violated a statutorily authorized rule. [7] The Court of Appeals stated that the rule "is not subject to a facial attack" and "is not invalid, because it has other constitutional applications." Meltebeke, 120 Or.App. at 280, 852 P.2d 859. [8] Relevant constitutional provisions are set out in the discussion, below. [9] An anti-discrimination statute was first enacted in Oregon Laws 1947, chapter 508, many years earlier than Congressional adoption of the Equal Employment Opportunity Act. The stated purpose was to "safeguard [the] right to obtain and hold employment without discrimination." Id. at § 1. Such discrimination was declared an unlawful practice in words nearly identical to the present statute by Oregon Laws 1949, chapter 221, section 5. [10] See ORS 659.103 (granting very broad rulemaking authority to BOLI). [11] ORS 183.355(5) provides in part that, "if an agency, in disposing of a contested case, announces in its decision the adoption of a general policy applicable to such case and subsequent cases of like nature the agency may rely upon such decision in disposition of later cases." Accordingly, the method used by BOLI to announce the challenged rule in the course of exercising its adjudicatory authority in Sapp's Realty was permissible. See Trebesch v. Employment Division, 300 Or. 264, 267-70, 710 P.2d 136 (1985) (discussing when method may be used); Marbet v. Portland General Electric, 277 Or. 447, 461, 561 P.2d 154 (1977) (citing the quoted statute and holding that method may be used). [12] PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), does not provide the appropriate framework for the issue presented. In PGE, the question was whether the express terms of a statute conflicted with the agency's rule; the court had to interpret what the legislature meant by that specific statute. Here, instead, the question is whether the agency's rule is within the broad, general delegation for rulemaking. In other words, PGE sets a method of analysis for situations in which the court is asked to interpret what the legislature has specified directly. Here, the court is asked instead to interpret what the legislature has specified in generalities, indirectly; the question is the scope of a broad delegation to an administrative agency for rulemaking. See Springfield Education Assn. v. School Dist., 290 Or. 217, 226-35, 621 P.2d 547 (1980) (describing different kinds of legislative delegation to agencies and discussing whether an agency's interpretation coincides with the legislative policy that inheres in the meaning of the statute). Nonetheless, the result would be the same using the PGE methodology. The text of ORS 659.030(1), read in context, covers the kind of conduct prohibited by BOLI's rule. See PGE, 317 Or. at 610-12, 859 P.2d 1143 (text and context are first level of analysis; no resort to legislative history or maxims of construction if first level clearly discloses legislative intent). Religious discrimination in "conditions" of employment includes acts of religious harassment. [13] Oregon's territorial legislature enacted Sunday closing laws but exempted from them those who celebrated a different "Sabbath" day. When the state constitution was drafted, it protected religious "opinions" and "rights of conscience." Or. Const., Art. I, § 3 (quoted post). [14] The Salem College court's second main conclusion was that, if the state elects to exempt religious schools from paying into the unemployment insurance system, then Article I, sections 2 and 3, of the Oregon Constitution, prohibit the state from discriminating among similar religious schools by virtue of their differing structural relationship with a church or other religious organization. 298 Or. at 489, 695 P.2d 25. Referring to the proceedings of the Oregon constitutional convention, the court asserted that religious pluralism is at the core of America's and Oregon's guarantees of religious freedom and concluded, accordingly, that equality among the various "faiths and kinds of religious organizations" is implicit in Article I, sections 2 and 3. Id. at 488-489, 492, 495, 695 P.2d 25. That conclusion is not directly relevant to the resolution of this case, because the BOLI rule at issue treats all forms of religious belief and nonbelief in the same way. [15] This court has decided two additional cases under Article I, sections 2 and 3, but they are off the point of the issue before us. In Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 723 P.2d 298 (1986), appeal dismissed 480 U.S. 942, 107 S. Ct. 1597, 94 L. Ed. 2d 784 (1987), this court analyzed the constitutionality of a statute prohibiting public school teachers from wearing "any religious dress." The court upheld the statute after construing it to prohibit only the wearing of religious dress as a regular or frequently repeated practice while teaching in the public school. 301 Or. at 381, 723 P.2d 298. Unlike the unemployment compensation law considered in Smith, the statute at issue in Cooper was "not a general regulation, neutral toward religion on its face and in its policy"; instead, the statute "single[d] out a teacher's religious dress because it is religious and to the extent that its religious significance is apparent." Id. at 368-69, 723 P.2d 298. In addition to limiting directly a religious practice, the statute in Cooper did not apply equally to all religions, but had an impact on only those religions whose practices prescribe the wearing of religious dress (such as but not limited to the Sikh teacher in Cooper, certain Islamic adherents, traditional Jews, and certain Roman Catholic priests and nuns). Id. at 360, 369, 371-72, 723 P.2d 298. The BOLI rule at issue here does not expressly or necessarily limit any religious practice, and it does not discriminate among religions. Accordingly, Cooper does not provide guidance here. BOLI relies on Cooper in the present case, but misses its point about the circumstances under which a governmental restriction on governmental conduct may be permitted. Cooper is a case of an agent of the government dramatically espousing a specific religious belief to an audience made captive by other acts of the government. It is about the government restricting itself from such advocacy by restricting its agent while acting in an official, governmental capacity. But in this case, there is no overt religious symbolism expressed or supported by the government. In Cooper, the prohibition was upheld because it could be limited to "actual incompatibility with the [public school] teaching function." Id. at 378, 723 P.2d 298. In Employment Div. v. Rogue Valley Youth for Christ, 307 Or. 490, 770 P.2d 588 (1989), this court considered a challenge to a statute requiring religious organizations that were not churches to pay unemployment compensation taxes. A local organization claimed that it was constitutionally exempt from paying taxes because of its religious purpose. The court construed Oregon's unemployment compensation taxation scheme so as to treat all religious organizations equally and, as so construed, upheld it. Id. at 499, 770 P.2d 588. Before that construction, the statute in that case could be read to discriminate among types of religious organizations. By contrast, here, the challenged BOLI rule does not differentiate among religions. Therefore, Rogue Valley is not on point. [16] Here, BOLI has applied the Sapp's Realty rule to a situation in which the conduct in question was engaged in by the employer personally. We need not and do not consider how to analyze a situation in which an employee seeks to impose vicarious liability for the conduct of persons other than the employer (such as co-workers). [17] The agency bases its decision on the proposition that the moral comments, expressions, and invitations in this case were such that a reasonable person "would know or should know" they would offend workers. [18] Employer argues that BOLI must find that such an employer intended to create an intimidating, hostile, or offensive working environment or, in the alternative, that BOLI must find that the employee placed the employer on notice by complaining explicitly to the employer. Those are two possible ways to demonstrate that an employer knew that its conduct created an intimidating, hostile, or offensive working environment, but they are not the only two ways that such knowledge may be proved, either directly or circumstantially. We decline to limit the means by which such knowledge may be proved by BOLI or gained by the employer. [19] Conduct that may be motivated by one's religious beliefs is not the same as conduct that constitutes a religious practice. The knowledge standard is considered here only in relation to the latter category. In this case, no distinction between those categories is called into play, because a fair reading of BOLI's revised final order is that BOLI found that all of Employer's religious activity respecting Complainant is part of Employer's religious practice. [20] Because Employer obtains complete relief under Article I, sections 2 and 3, of the Oregon Constitution, we need not consider his remaining constitutional arguments. [1] 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." [2] Article I, section 2, of the Oregon Constitution provides: "All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences." Article I, section 3, provides: "No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience." [3] If the law does not, on its face, implicate speech, the court must scrutinize whether the application of the law to a particular defendant violates Article I, section 8, of the Oregon Constitution. See City of Eugene v. Miller, 318 Or. 480, 492-99, 871 P.2d 454 (1994) (Unis, J., specially concurring). [4] In that event, a fourth inquiry must be addressed. The fourth inquiry is whether the speech that may not constitutionally be prohibited outright is, nevertheless, incompatible with the performance of one's special role or function. This court has recognized that there are some activities that lawmakers could not forbid citizens generally from doing, but that they may declare to be incompatible with the role and work of a public official. See, e.g., In re Lasswell, 296 Or. 121, 673 P.2d 855 (1983) (professional disciplinary rule survived the accused's constitutional challenge, because this court narrowly interpreted it so as to limit its coverage, in the words of Article I, section 8, to a prosecutor's "abuse" of the "right to speak, write, or print freely on any subject whatever"). An enactment that infringes on speech, and that is not justified under the "incompatibility exception," cannot survive an Article I, section 8, challenge. This case does not implicate the "incompatibility exception." [5] I recognize that BOLI's rule requires that the religious advances in fact be unwelcome from the subjective standpoint of the employee. This does not mean that the expression will necessarily create actual intimidation, hostility or offense, however. Thus, the only actual "harm" at which BOLI's rule is directed is being subjected to unwelcome offensive speech in the workplace. Such a harm is not proscribable under Article I, section 8.

7e93ee76f4477101f442df2f016c05fd45247e101dbcc3a545feccc16f6ab5c2

1995-10-05T00:00:00Z

d9d73965-3863-4509-8d10-a818eac1b632

State v. Dominguez-Martinez

321 Or. 206, 895 P.2d 306

oregon

Oregon Supreme Court

895 P.2d 306 (1995) 321 Or. 206 STATE of Oregon, Respondent on Review, v. Jose Aramis DOMINGUEZ-MARTINEZ, Petitioner on Review. CC 91CR3018FE; CA A77460; SC S41182. Supreme Court of Oregon, In Banc. Argued and Submitted November 1, 1994. Decided June 2, 1995. Eric R. Johansen, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition and brief was Sally L. Avera, Public Defender. Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen. CARSON, Chief Justice. On December 8, 1991, an Oregon State Police Trooper saw a 1980 Cadillac with California license plates traveling north on Interstate 5. The automobile exhibited characteristics that the trooper associated with narcotics trafficking.[1] The trooper followed the automobile and, after observing it change lanes twice without signaling, he turned on his overhead flashing lights and stopped the automobile. The trooper approached the driver's side of the automobile. Defendant, Jose Aramis Dominguez-Martinez, who was driving, told *307 the trooper that Julio Alberto-Mirabal, the passenger, was the registered owner of the automobile. The trooper then took defendant's driver license and Alberto-Mirabal's registration back to his patrol car, where he learned by radio that the license and registration were in order. The trooper took a tape recorder from his patrol car and returned to the automobile. This time, the trooper went to the passenger side of the automobile, where Alberto-Mirabal was sitting with the passenger door open. The trooper stood in the opening of the door with his arm resting on the upper part of the window and leaned forward to speak with defendant and Alberto-Mirabal. The trooper told the two men that he was tape recording the conversation. The trooper tested the turn signals on the automobile and found that one was defective. The trooper advised defendant and Alberto-Mirabal that he would not issue a citation, but that they should have the signal repaired in the next town. While still leaning forward into the automobile, the trooper returned the license and the registration and said, "You guys are free to go, adios." Defendant began to start the automobile, but the trooper did not remove his arm from the automobile door. Within one or two seconds, the trooper asked: "Do you mind if I ask you a few more questions?" The trooper told the two men that there was a narcotics trafficking problem on Interstate 5. He asked if they were transporting any drugs, large sums of money, or weapons. They denied transporting any of those things. The trooper then asked if he could take a "quick look" in the automobile. Alberto-Mirabal stepped out of the automobile. The trooper then asked defendant to step out, and defendant complied. Alberto-Mirabal went around and opened the trunk of the automobile and propped it open with a baseball bat. The trooper searched the trunk and found nothing of significance. Then, the trooper signaled to Alberto-Mirabal and asked whether he also could search the passenger compartment of the automobile. Alberto-Mirabal said that he could continue the search. The trooper searched the passenger compartment and, under the back seat, discovered three kilograms of a substance that later was determined to be cocaine. Defendant and Alberto-Mirabal each were charged with delivery of a controlled substance and possession of a controlled substance. Before trial, both defendant and Alberto-Mirabal moved to suppress the evidence found during the search of the automobile. After a hearing, the trial court denied the motions. That court concluded that, "[b]ecause the officer extended the stop after he had concluded his investigation of the traffic infraction, he violated his statutory authority to detain the defendants." Nonetheless, the trial court denied the motions to suppress because Alberto-Mirabal "freely and voluntarily" consented to the search of the automobile. Pursuant to plea negotiations, defendant and Alberto-Mirabal waived a jury trial and were tried on stipulated facts. Both were found guilty of possession of a controlled substance,[2] and the other counts were dismissed. Defendant and Alberto-Mirabal appealed to the Court of Appeals, arguing, by way of a joint brief, that the trial court erred in denying their motions to suppress. The Court of Appeals affirmed the convictions without opinion. State v. Alberto-Mirabal, 126 Or. App. 544, 871 P.2d 133 (1994). Defendant petitioned this court for review, again arguing that the trial court erred in denying his motion to suppress.[3] Defendant *308 relies on both statutory and constitutional grounds. Before reaching defendant's constitutional claim, we first consider the extent of the trooper's statutory authority in the context of a stop for a traffic infraction. See State v. Holmes, 311 Or. 400, 404, 813 P.2d 28 (1991) ("Before reaching defendant's state and federal constitutional claims, we first examine whether the deputy sheriff acted lawfully under proper authorization by a politically accountable lawmaker."). ORS 810.410(3)(b) defines the parameters of police authority to detain and investigate during a traffic stop: "A police officer: "* * * * * "(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation." (Emphasis added.) This court considered the scope of that statute in State v. Porter, 312 Or. 112, 817 P.2d 1306 (1991). In that case, a police officer stopped the defendant because a computer records check showed that there was an arrest warrant for the registered owner of the automobile that the defendant was driving. During the detention, the officer noticed an open beer can behind the driver's seat. After the officer arrested the defendant and put him in the back seat of the patrol car, the officer picked up the can and confirmed that it contained some beer. The facts that the can contained beer and that the can was in the car were sufficient to cite the defendant for an open container violation. See ORS 811.170 (making it a Class B traffic infraction to keep an open receptacle of liquor in a motor vehicle upon a highway). The officer saw no other evidence of a crime. After examining the beer can, the officer searched the automobile and found methamphetamine, a mirror, and a "cut down straw." Porter, 312 Or. at 114-15, 817 P.2d 1306. The defendant in Porter argued that the police officer exceeded the statutorily permissible scope of the detention and investigation by continuing to investigate after having found one open container of alcohol. Id. at 116, 817 P.2d 1306. This court agreed with the defendant and suppressed the evidence found in the search, holding that "the search * * * exceeded the scope of investigation permitted by ORS 810.410(3)," because the officer had the authority to investigate only the traffic infraction, and the officer had ended that investigation when he determined that there was beer in the can. This court determined that there was no basis for further investigation and that the officer exceeded the scope of his authority when he searched the automobile. Id. at 121, 817 P.2d 1306. This court concluded: This court also explored the scope of a lawful traffic stop in State v. Farley, 308 Or. 91, 775 P.2d 835 (1989). In that case, a police officer stopped the defendant because his automobile had no visible license plates. As the officer walked toward the defendant's automobile, however, the officer saw a valid temporary vehicle permit on the windshield, making it permissible to operate the vehicle without plates. Nonetheless, the officer asked the defendant to produce his driver license. The defendant gave the officer his license and told the officer that he had no insurance. The officer then checked the defendant's license on the computer and cited *309 the defendant for driving while suspended and for driving without insurance. Id. at 93, 775 P.2d 835. Upon review, this court held that, although the initial stop was lawful, the officer had no authority to proceed with the traffic stop after he saw the temporary permit because the officer's authority under the statute ended when he discovered that the traffic infraction that he was investigating had not occurred. Id. at 94, 775 P.2d 835.[4] From those cases, it is clear that, under ORS 810.410, a police officer has authority to stop a vehicle and detain the occupants in order to investigate a traffic infraction that he or she has witnessed.[5] It also is clear, however, that an officer who stops a person for a traffic infraction may investigate only that infraction, unless the state can point to some basis other than the traffic infraction to broaden the scope of the investigation. Moreover, it is clear that, after the investigation reasonably related to the traffic infraction is complete, an officer does not have authority under ORS 810.410 to continue to detain the person stopped for the traffic infraction. In this case, the trooper stopped defendant for making unsignaled lane changes. Under ORS 810.410(3)(b), the trooper was authorized to conduct an investigation "reasonably related to the traffic infraction." In other words, in relation to the traffic infraction of unsignaled change of lane, the officer had authority to inspect the turn signals on the automobile, to decide whether to cite defendant or Alberto-Mirabal, and to issue a warning about the defective turn signal. See ORS 816.120 and 816.300 (prescribing standards for turn signals and imposing penalty for failure to comply with those standards). All those acts were "reasonably related to the traffic infraction * * * and issuance of citation." ORS 810.410(3)(b). But, the trooper did not stop with that limited detention and focused investigation. As this court held in Farley: In this case, at the same time that the trooper was telling defendant and Alberto-Mirabal that they were free to go, he stood in the open doorway, and defendant could not have driven away. The trooper immediately began to question defendant and Alberto-Mirabal about narcotics trafficking and illegal weapons.[6] The trooper then asked defendant and Alberto-Mirabal to consent to a search of the automobile in which they were traveling. He asked defendant and Alberto-Mirabal to get out of the automobile while he fully searched its interior. The trooper's authority to detain the two men dissipated when he completed the investigation "reasonably related to the traffic infraction * * * and issuance of citation." ORS 810.410(3)(b). Thus, as in Farley, the officer's authority to detain defendant under *310 the statute had dissipated, and the men should have "been allowed to proceed" without further detention. Accordingly, the trooper exceeded his authority to stop and detain a motorist in order to conduct a traffic investigation under ORS 810.410(3).[7] Moreover, in the circumstances of this traffic stop, we know of no other basis for this police action. We hold that the trooper had no authority to continue to detain defendant and Alberto-Mirabal beyond the time it took to investigate the unsignaled lane changes. Finally, the state argues that, even if the trooper acted illegally in continuing the investigation beyond the scope of the traffic stop, any evidence found in the search of the automobile need not be suppressed because Alberto-Mirabal freely consented to the search. We disagree. As this court held in Porter, "because the object of [ORS 810.410(3) ] is to define the authority of officers to respond to a traffic infraction," the evidence should be suppressed when police officers exceed that authority. 312 Or. at 121, 817 P.2d 1306. See also State v. Davis, 295 Or. 227, 236, 666 P.2d 802 (1983) ("[W]hen the object of the statute is to define the authority of officers to seize or to search a person or property * * * the court has drawn the logical consequence and has given effect to the statute by denying the state the use of evidence that it would not have secured if its officer had respected the rights that the statute was designed to protect." (Emphasis added.)). As in Porter, the trooper in this case exceeded his authority to detain defendant in the context of a traffic stop, and the evidence that the trooper found during the ensuing investigation should be suppressed. See also Farley, 308 Or. at 94-95, 775 P.2d 835 (suppressing evidence that came to an officer's attention through an unlawful request for the defendant's driver license). Accordingly, the trial court 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 that court. VAN HOOMISSEN, Justice, concurring. For the reasons that follow, I agree that the trial court erred in denying defendant's motion to suppress. The stop here was lawful. ORS 810.410(3)(b).[1] After advising defendant that he would not issue a citation for a defective turn signal, the trooper returned defendant's driver license and the car registration and told the men that they were free to go. However, because the trooper stood in the open car doorway and did not remove his arm from the car door, in fact, the men were not free to go. Their continued detention, after the purpose of the stop for a traffic infraction had been completed, was unlawful. While defendant was being unlawfully detained, the trooper began to question him and his passenger about possible criminal activity unrelated to the traffic infraction for which defendant had been lawfully stopped. On those narrow facts, I am prepared to accept the conclusion in this case that the evidence later found in the passenger compartment *311 of the car should have been suppressed. GRABER, J., joins in this concurring opinion. [1] The trial court found that the characteristics to which the trooper referred were: the type of vehicle; California plates; travel from California to Washington; young, Hispanic, male occupants; and minimal clothing or luggage. [2] ORS 475.992(4) provides, in part: "It is unlawful for any person knowingly or intentionally to possess a controlled substance * * *. Any person who violates this subsection with respect to: "* * * * * "(b) A controlled substance in Schedule II, is guilty of a Class C felony." Cocaine is a Schedule II substance. OAR 855-80-022(1)(d). [3] Originally, Alberto-Mirabal did not petition this court for review of the Court of Appeals' decision. In June 1994, after this court allowed review in this case, Alberto-Mirabal moved for an extension of time in which to file his petition for review, for relief from default, and for consolidation of his petition for review with the one filed in this case. This court denied that motion and severed the cases. [4] The state argues that this court's holding in State v. Farley, 308 Or. 91, 775 P.2d 835 (1989) does not apply in this case because ORS 153.110(3) controls. We disagree. ORS 153.110(3) does not apply in traffic infraction cases at all; that statute concerns infractions committed in state parks. See Or.Laws 1981, ch. 692 ("[r]elating to enforcement of state park regulations"). This court's decision in Farley did not depend upon its citation of ORS 153.110(3) because it also relied upon ORS 810.410(3), which adequately supports the decision. [5] Defendant does not challenge the validity of the stop itself but only the officer's authority to continue the detention and investigation after the investigation of the traffic infraction was completed. [6] There is nothing in the record to suggest that the trooper had probable cause or even reasonable suspicion that defendant or Alberto-Mirabal had committed a crime. The trooper relied upon a hunch based upon certain non-criminal characteristics. See supra note 2 (type of vehicle; California plates; travel from California to Washington; young, Hispanic men; and lack of luggage). [7] The state argued that, notwithstanding ORS 810.410, the trooper's request for consent to search was authorized by the general statute empowering the Oregon State Police to enforce all criminal laws, ORS 181.030. That argument ignores this court's construction of ORS 810.410 in Porter as both a specific grant of authority and a specific limitation on authority to stop and detain a motorist in order to investigate a traffic infraction. Absent some further development within the scope of the traffic stop, such as the observation of evidence that provides probable cause to suspect criminal activity, the specific grant and limitation of authority is a legislatively created closed loop, fully defining the process for stopping and detaining a motorist for the purpose of investigating a traffic infraction. [1] The policy implicit in ORS 810.410(3)(b) is determined by the legislature, not this court. If it is to be modified, the legislature must make the modification. The correct interpretation of the statute is the responsibility of this court.

0398eed9fd048c3c8b039f935cdd79f538acc8349ac4686531bdf3cf7a5323ad

1995-06-02T00:00:00Z

523d5825-e23a-4c1b-bc6b-302e463c12d8

Davis v. O'BRIEN

320 Or. 729, 891 P.2d 1307

oregon

Oregon Supreme Court

891 P.2d 1307 (1995) 320 Or. 729 A.J. DAVIS, By and Through Lorie DAVIS-TOEPFER, Special Conservator, Petitioner on Review, v. Steven O'BRIEN and Nancy O'Brien, doing business under the assumed name "O'Brien & Sons Logging," Respondents on Review. CC 911478; CA A79007; SC S41621. Supreme Court of Oregon, In Banc. Argued and Submitted January 12, 1995. Decided April 6, 1995. *1308 Edward J. Harri, Salem, argued the cause for petitioner on review. With him on the brief was Michael B. Brink, of Weatherford, Thompson, Quick & Ashenfelter, P.C., Albany. Joel S. DeVore, of Luvaas, Cobb, Richards & Fraser, P.C., Eugene, argued the cause and filed the brief for respondents on review. Kathryn H. Clarke, Portland, appeared and filed a brief on behalf of amicus curiae Oregon Trial Lawyers Ass'n. VAN HOOMISSEN, Justice. At issue in this case is whether the trial court erred in the manner in which it entered judgment on the jury's verdict for plaintiff. The special verdict assigned 96.5 percent of the fault for plaintiff's injuries to a non-party and 3.5 percent to defendants O'Brien (hereinafter "O'Brien"). The trial court reduced plaintiff's damages recoverable from O'Brien to 3.5 percent of plaintiff's total damages, in the light of the jury's allocation of proportionate fault, and entered judgment accordingly. On appeal, the Court of Appeals affirmed, holding that "plaintiff has failed to preserve or assign as error the predicates for the jury's determination of proportionate fault under ORS 18.480." Davis v. O'Brien, 128 Or.App. 428, 431, 875 P.2d 1193 (1994). For the reasons that follow, we reverse. In 1989, plaintiff and his sister, Tiara Toepfer, were passengers in a car driven by their grandmother, Eunice Holt, when their car collided with O'Brien's log truck. Holt was killed in the accident. Before filing this action, plaintiff settled with Holt's estate for $100,000. Plaintiff and his sister, Tiara, filed a complaint against both Holt's estate and O'Brien alleging negligence. Because plaintiff already had settled with the Holt estate, his only claim was against O'Brien. Tiara's claim was against both the Holt estate and O'Brien. Before trial, Tiara settled with the Holt estate and O'Brien, and the trial court entered a judgment of dismissal as to Tiara. Plaintiff then filed an amended complaint, naming only O'Brien, who responded with an affirmative defense that plaintiff's injuries were caused by Holt's negligence. Before trial, plaintiff moved in limine to exclude evidence of Holt's fault and of his settlement with Holt's estate, arguing that the comparative fault statutes, ORS 18.470.485,[1] allow the jury to assess only the relative fault of parties before the court. *1309 Plaintiff relied on this court's decision in Mills v. Brown, 303 Or. 223, 735 P.2d 603 (1987). A degree of uncertainty was added to the argument by the question whether a 1987 legislative amendment to ORS 18.485 had changed the rule of law stated in Mills. "* * * * * "* * * * * The trial court and counsel then discussed what to tell the jury about plaintiff's settlement with the Holt estate, and what the appropriate form of verdict would be. When the court stated that the jury would be asked whether Holt was negligent in any respect, plaintiff's counsel objected, stating: The trial court replied: During trial, O'Brien's evidence focused on Holt's fault in causing the accident. "Also in this case, a settlement has occurred between the plaintiff and the estate of Eunice Holt, deceased. You are not to infer from the settlement that the defendants, Steven and Nancy O'Brien, doing business as O'Brien Logging, are or are not liable to plaintiff. I further instruct you that if the veryour verdict is for the plaintiff, and in accordance with the other instructions I have and will give you, and if you find that plaintiff has been damaged, you are to return a verdict for the full *1310 amount of plaintiff's damages. Do not reduce the amount of the plaintiff's damages, if any, by reason of the settlement, or by reason of the percentage of negligence on either of the drivers. The jury returned the following special verdict: O'Brien submitted a proposed form of judgment that allowed plaintiff recovery of 3½% percent of the total damages awarded. Plaintiff submitted an alternative form of judgment that would have reduced the damages found by the jury by the amount of the Holt settlement, allowing plaintiff to recover $94,175 from O'Brien. The trial court accepted O'Brien's form of proposed judgment and rejected plaintiff's form. Over plaintiff's objection to the form of judgment submitted by O'Brien, the trial court entered judgment for plaintiff in the sum of $6,794.38[2] plus costs and disbursements. On appeal, plaintiff assigned as error the trial court's entry of "judgment comparing *1311 the fault of O'Brien with a non-party (Holt estate) rather than with Plaintiff A.J. Davis." The Court of Appeals affirmed, stating: Plaintiff petitioned this court for review, arguing that his assignment of error was sufficiently raised and preserved in the trial court, and briefed in the Court of Appeals, and urging this court to reach the substantive issue regarding apportionment of fault. O'Brien responded that, because plaintiff failed to assign as error the trial court's ruling on the motion in limine and had acquiesced in the instruction of the jury and the use of the special verdict form requiring the jury to apportion fault between O'Brien and Holt, any error was not preserved. O'Brien also argued that a 1987 amendment of ORS 18.485 permitted the jury to consider Holt's fault in making its determination. Before oral argument, this court asked the parties to address the following question: Plaintiff responded that the issue of comparative fault was thoroughly briefed and argued in the trial court in the motion in limine and that plaintiff's arguments at that time, as well as plaintiff's submission of an alternative form of judgment and his objection to entry of the judgment form submitted by O'Brien, adequately preserved the issue in *1312 the trial court. O'Brien responded that raising the issue in the motion in limine was insufficient to preserve any later error in the verdict form or in the entry of the judgment, as distinct from preserving evidentiary error. O'Brien argues that plaintiff was required to object to the trial court's instructions to the jury and to the form of the verdict that memorialized the trial court's pre-trial ruling on plaintiff's motion in limine in order to preserve the issue respecting the form of judgment. No claim of error was preserved in the trial court as to the trial court's instructions to the jury[4] or as to the form of the verdict.[5] In addition, plaintiff's assignment of error on appeal does not challenge the jury instructions or the form of the verdict. Rather, plaintiff's assignment challenges the form of the judgment, an issue that plaintiff raised at trial by proposing an alternative form of judgment. It is only the trial court's choice between the alternative forms of judgment that plaintiff assigned as error on appeal. This court has indicated that the rules pertaining to preservation of error in trial courts are intended to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument. See generally Hitz, 307 Or. at 188, 766 P.2d 373 (so noting). In this case, there was no lack of clarity with respect to the issue presented to the trial court by plaintiff's motion in limine. The issue was squarely presented to the trial court, and O'Brien had ample opportunity to meet plaintiff's argument. Indeed, O'Brien does not argue lack of clarity, and the Court of Appeals did not hold that there was a lack of clarity. O'Brien argued only, and the Court of Appeals agreed, that a clearly presented issue was waived later by the inaction of plaintiff's counsel at critical junctures. The specific question to be addressed is: If a party raises a substantive issue by motion before trial, but does not raise the issue again when the court instructs the jury and submits the special verdict form, does that conduct waive that party's argument on the issue, or may the party raise the issue again when it comes time to enter the judgment? O'Brien argues that plaintiff waived the right to claim error by acquiescing in the trial court's ruling on plaintiff's motion in limine and by promoting consideration of Holt's fault during trial. O'Brien relies on Ingram v. Allen, 273 Or. 890, 544 P.2d 167 (1975), for the proposition that acquiescence waives any argument about error. In Ingram, the plaintiff made no objection to a trial court's failure to instruct a jury and made no objection to the form of the special verdict submitted to that jury. Because plaintiff made no objection on those points, this court refused to consider his assignments of error based on those points. 273 Or. at 893, 544 P.2d 167. By contrast, here there was an earlier objection, the logic of which carried through all the way to the judgment. Plaintiff's motion in limine sought to exclude all evidence "comparing or contrasting the fault of non-parties, with that of any party or parties, in terms of percentage or proportion." Arguably, that could have prevented O'Brien from contending that they were not at fault at all, because Holt caused the accident (the so-called "empty chair" defense). The trial court asked plaintiff's counsel if he was proposing "to take Mrs. Holt's car out of this? This child standing on the road?" Counsel responded that he was not and that the jury should be told that the present case was about O'Brien's truck, not Holt's car, and that it is the function of the court to prevent double recovery. In the course of that discussion, the court ruled on what the jury would be told and what it would be asked. Thus, the subjects of jury instructions and verdict form were not separate from the question raised in the motion *1313 in limine about comparative fault. Plaintiff's counsel made it clear in that discussion what he thought was wrong with the court's conclusions on those points. Later, counsel did help to draft the jury instructions and verdict form, but only in compliance with those rulings.[6] Plaintiff's failure to object to the jury instructions and to the verdict form did not operate as a waiver in this unusual case, because plaintiff's ability to object to the judgment was not dependent on an earlier objection to the jury instructions or to the verdict form.[7] As this particular case was tried, the jury made all the findings that needed to be made on both parties' theories, and the trial judge had been made aware of those theories at the beginning of the trial. In the circumstances, the trial court logically could have chosen to use plaintiff's or defendant's verdict form. This scenario does not show a waiver by plaintiff of his objection to the form of the judgment. In Mills, 303 Or. at 225, 735 P.2d 603, this court addressed the issue of whether Oregon's comparative fault statutes, ORS 18.470 and 18.480, require that the fact-finder consider the fault of persons not in the case when making the comparative fault determination. This court stated: After an extensive review of the legislation, this court inferred that the legislature intended to include in a comparative fault analysis only a person still a party at the time the fact-finder makes the comparative fault decision: Under the rule of law from Mills, Holt's fault would not have been an issue for the trier of fact in this case. O'Brien argues, however, that Mills is no longer the law in the light of legislative amendments to ORS 18.485 in 1987. We disagree. At the time Mills was decided, ORS 18.485 (1985) provided: As part of a legislative package enacted during the 1987 session, the legislature amended that statute to provide in part: In the present case, the trial court interpreted ORS 18.485, as amended, to require a determination of whether a defendant was less than 15-percent at fault even when there were no claims against multiple defendants going before the trier of fact. O'Brien maintains that the trial court was correct and that the 1987 legislature's intent in amending the statute was that a defendant would pay only in proportion to its own fault. O'Brien asserts that the legislature did not foresee the problem of a potential defendant who settled with a plaintiff and that the legislature appeared to assume that all tortfeasors would be named as defendants and all would be before the jury. In interpreting a statute, this court's role is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). To do that, the court examines both the text and context of the statute. That is the first level of our analysis. In this first level of analysis, the text of the statutory provision itself is the starting point for interpretation and is the best evidence of the legislature's intent. Ibid. Also at the first level of analysis, the court considers the context of the statutory provisions at issue, which includes other provisions of the same statute and other related statutes. If the legislature's intent is clear from the above-described inquiry into text and context, further inquiry is unnecessary. Id. at 611, 859 P.2d 1143. As part of the text and context, the court includes consideration of its own prior interpretations of the statute. See Stephens v. Bohlman, 314 Or. 344, 350 n. 6, 838 P.2d 600 (1992) (when this court interprets a statute, that interpretation becomes a part of the statute as if written into it at the time of its enactment). Nothing in the text of ORS 18.485, as amended, indicates that the legislature intended to affect the questions presented to the trier of fact under ORS 18.480(1)(b), regarding the "degree of each party's fault expressed as a percentage of the total fault attributable to all parties represented in the action." (Emphasis added.) The statute, as amended, makes no reference to the fault or liability of anyone who is not a "defendant." However, if ORS 18.485(3), as amended, is read in isolation, the question arises whether the statute requires a determination regarding less than 15-percent of fault only when there are multiple defendants, or whether it applies when there is only "a defendant." Read in context with ORS 18.480 and its provision regarding jury determinations of "each party's fault expressed as a percentage of the total fault attributable to all parties," *1315 the most apparent interpretation of ORS 18.485 as amended is that it applies to the jury's determination of percentages made under ORS 18.480 and, thus, involves only percentages of fault attributable to parties to the action. On the other hand, it is plausible that the legislature's use of the words "a defendant" in ORS 18.485 indicates that the 15-percent limit applies even when there is only one defendant and when it has been stipulated that the plaintiff was not at fault, as was the case here. From our examination of text and context, we are unable to conclude that the legislature's intent is clear. Thus, we turn to the second level of analysis, which is to consider the legislative history of ORS 18.485, as amended in 1987, to determine whether the legislature intended the 15-percent limitation on joint and several liability to apply to circumstances such as these. See PGE, 317 Or. at 611-12, 859 P.2d 1143 (explaining method of analysis). Senate Bill 323 (1987) was a comprehensive bill that dealt with a large number of liability and insurance issues, of which the proposed limitations on joint and several liability were but a small part. However, the joint and several liability provisions were discussed in several committees that considered the bill. One of the concerns voiced most strongly in the various hearings and work sessions was that the 15-percent limit on joint and several liability for economic damages would encourage defendants to join other third-party defendants in cases, often judgment-proof or "shallow pocket" defendants, in order to reduce the likelihood of being allocated a percentage of the damages greater than 15-percent.[8] Had the legislature contemplated that its changes to ORS 18.485 would allow juries to allocate fault to non-parties, this would not have been a concern; a defendant would have had no need to join third-party defendants in order to reduce its damages in this manner. In the Senate Judiciary Committee, where SB 323 originated, committee staff presented an exhibit that compared the relevant portions of SB 323 with HB 2625, another measure dealing with a similar subject. That exhibit stated that, under SB 323: On the other hand, the parallel provisions of HB 2625 were described as: Had SB 323's provisions been intended to have the same effect as the described provisions of HB 2625, as O'Brien now argues, some member of the legislature probably would have commented on it. However, no comment was made on this point. The subject of joint and several liability also was discussed by the House Judiciary Committee in a session that addressed the effects that another proposed measure, SB 222, would have on the pertinent provisions *1316 of SB 323.[9] That bill would have limited third-party practice in tort cases. Senator Frye explained that the purpose of SB 222 was to abolish third-party practice in tort cases only, but not in contribution cases, stating that the intent was to preclude named defendants from filing claims against third parties in the original case. He said: SENATOR FRYE: "Well, it would affect joint and several liabilitywell, the theory of joint and several liability wouldn't apply if there was only one defendant." That exchange makes it clear that several legislators involved in committee work on SB 323 did not intend SB 323 to provide for allocation of percentages of fault to potential tortfeasors who were not defendants. Although isolated statements made in committee are not necessarily indicative of the intent of the entire legislature, in view of the fact that we have found no suggestion, either by a legislator or any witness in committee, that SB 323 was intended to have the effect of allocating percentages of fault to anyone other than defendants and plaintiffs, those comments are significant. We conclude that the legislative history supports the proposition that the 1987 amendment did not overrule Mills or revise that portion of the statute that Mills interpreted.[10] In sum, we conclude that the most plausible reading of the statute's text and context, as well as the legislative history of the 1987 amendments to ORS 18.485, supports plaintiff's contention that fault should not have been apportioned between O'Brien and a non-party. We hold, therefore, that the trial court erred in determining that the jury should be instructed to assign percentages of fault to Holt's estate and to O'Brien.[11] We now turn to the question whether, in the light of the jury verdict, the trial court could have entered an appropriate judgment in this action. Plaintiff argues that, under the doctrine of surplusage, the court should have disregarded the irrelevant material contained in questions and answers 2 and 3, because the remainder of the verdict answered all material issues in the case. O'Brien responds that plaintiff failed to object to the verdict and that plaintiff's objection to the judgment came too late. Essentially, O'Brien's argument is that the trial court could not have entered the judgment that plaintiff wished, considering the jury's response to questions 2 and 3 on the special verdict form. In Martin v. Cambas, 134 Or. 257, 293 P. 601 (1930), the jury returned a verdict that included general damages against one defendant as well as an apportionment of punitive damages among all three defendants. Noting that the law did not allow the jury to apportion damages among joint tortfeasors, this court stated: "* * * * * Plaintiff argues that the present case is similar to Martin; the law does not allow the jury to allocate fault to non-parties, and that *1318 part of the verdict attempting to do so should be treated as surplusage and deleted. O'Brien first argues that cases involving surplusage in verdicts typically concern situations in which the jury, on its own, spontaneously adds extraneous matter to the verdict. Apparently, O'Brien is contending that the doctrine does not apply where the extraneous matter is solicited on the verdict form. We do not find that distinction to be persuasive. In State ex rel. Sam's Texaco & Towing v. Gallagher, 314 Or. 652, 655-57, 842 P.2d 383 (1992), the jury was unable to agree on answers to all the questions on a special verdict form and, instead, took the questions out of order and reached decisions on several of them. The jurors were unable to reach agreement as to whether one of the defendants had been negligent, but all agreed that any negligence on the part of the defendant had not been a substantial factor in causing the plaintiff's injuries. Id. at 655-56, 842 P.2d 383. The trial court refused to enter judgment on the verdict and granted a mistrial. This court issued a peremptory writ of mandamus, directing the trial court to receive the verdict, holding that the answer to the second question was sufficient to require that a verdict be entered in favor of that defendant. Id. at 660, 842 P.2d 383. Although that case does not address directly the question of surplusage as part of a jury's verdict, it does undermine O'Brien's suggestion here that the remainder of an otherwise sufficient verdict should not be allowed to stand when the jury has been given questions on a special verdict form that are unnecessary. O'Brien next argues that the doctrine of surplusage should not be applied when the issue in the surplus material is interrelated with the necessary findings. O'Brien suggests that, had the jury been asked to make a choice "between no fault or assessing [O'Brien] with all the damages, the jury might have found zero fault [by O'Brien] rather than 3½ percent fault." We note, however, that the jury was not instructed as to how, or even if, its apportionment of fault between Holt and O'Brien would affect the amount of damages assessed against O'Brien. Nor was the jury told how plaintiff's settlement with Holt's estate would affect the amount of damages assessed against O'Brien. The jury was specifically told, both in instructions and on the verdict form, that making any required deductions in the amount of damages was not its jobthat that was the job of the trial court. Moreover, the verdict form specifically required the jury to decide Question 1, regarding O'Brien's negligence, before moving on to the questions regarding percentages of fault. We assume that a jury has followed its instructions. State v. Walton, 311 Or. 223, 250, 809 P.2d 81 (1991). We are not persuaded that the surplusage included in Questions 2 and 3 affected the jury's answer to Question 1. We hold that the trial court erred in entering a judgment that reduced plaintiff's damages recoverable from O'Brien's based on an apportionment of fault to a non-party. We further hold that the Court of Appeals erred in determining that the issue was not properly before it. The decision of the Court of Appeals is reversed. The judgment of the circuit court is vacated. The case is remanded to the circuit court for entry of a judgment for plaintiff against defendants O'Brien in the sum of $94,175. [1] ORS 18.470 provides: "Contributory negligence shall not bar recovery in an action by any person or the legal representative of the 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." ORS 18.480 provides: "(1) When requested by any party the trier of fact shall answer special questions indicating: "(a) The amount of damages to which a party seeking recovery would be entitled, assuming that party not to be at fault; "(b) The degree of each party's fault expressed as a percentage of the total fault attributable to all parties represented in the action. "(2) A jury shall be informed of the legal effect of its answer to the questions listed in subsection (1) of this section." ORS 18.485 provides in part: "(2) 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 noneconomic damages awarded to plaintiff shall be several only and shall not be joint. "(3) The liability of a defendant who is found to be less than 15 percent at fault for the economic damages awarded the plaintiff shall be several only. "(4) The liability of a defendant who is found to be at least 15 percent at fault for the economic damages awarded the plaintiff shall be joint and several, except that a defendant whose percentage of fault is less than that allocated to the plaintiff is liable to the plaintiff only for that percentage of the recoverable economic damages." [2] Although $6,794.38 is not exactly 3½ percent of $194,175, no issue has been raised concerning this discrepancy. [3] Plaintiff did not assign as error on appeal the trial court's ruling on the motion in limine. We are not called upon to consider whether plaintiff was required to object to the jury instructions, form of verdict, or form of judgment in order to preserve and raise a claim that the ruling on the motion in limine was error requiring reversal on appeal. See generally Hitz, 307 Or. at 188-89, 766 P.2d 373 (preservation of error); Foster, 296 Or. at 183-84, 674 P.2d 587 (motion in limine). [4] See ORCP 59 (regarding preservation of claims of error in jury instructions). [5] See State ex rel. Sam's Texaco & Towing v. Gallagher, 314 Or. 652, 662, 842 P.2d 383 (1992) (regarding preservation of claims of error on the form of the verdict). [6] Preservation rules generally require that a point be raised earlier rather than later. See, e.g., OEC 103(1)(a); McEwen v. Ortho Pharmaceutical, 270 Or. 375, 421, 528 P.2d 522 (1974) ("[A] motion to strike improper testimony must be made as soon as the ground for such a motion is disclosed"). Here, this concern has been satisfied by the raising and resolution of the issue in limine. [7] This outcome differs from what would be required to assign error to a ruling on a motion for a judgment notwithstanding a verdict. That motion must be preceded by a timely motion for a directed verdict. ORCP 63 A. [8] See, e.g., Senate Judiciary Committee, March 3, 1987, Tape 47, Side B (Senator Cohen's remarks that proposed changes in joint and several liability would not reduce problem of "dragnet" of defendants being brought into lawsuits); House Judiciary Committee, May 12, 1987, Tape 545 (Mr. Bendorf, a trial lawyer, suggested that, if joint and several liability is eliminated, then defendant's opportunity to bring in judgment-proof third-party defendants in order to reduce liability should also be eliminated); House Judiciary Subcommittee 1, May 20, 1987, Tape 609 (Representative Phillips expressed concern that jury only allocating percentage among parties could increase the number of parties to an action); Conference Committee, June 17, 1987, Tape 1, Side A (Senator Frye noted that the limitation on joint and several liability would increase the likelihood that initial defendants would look for others to share the blame to reduce their percentage, resulting in more defendants being brought into cases). [9] Senate Bill 222 was not approved by the 1987 legislature. [10] Defendant argues that, technically, Holt's estate was a "party," because it had been a named defendant in the Tiara Toepfer claim, and the dismissal of that claim did not specifically dismiss Holt's estate from the case. However, in Mills v. Brown, 303 Or. 223, 230-31, 735 P.2d 603 (1987), this court stated: "We infer that the legislature intended to include in a comparative fault analysis only a person still a party at the time the fact-finder makes the comparative fault decision. Because ORS 18.480 expressly provides that when requested by a party, `the trier of fact shall answer special questions indicating * * * the degree of each parties' fault expressed as a percentage of the total fault attributable to all parties represented in the action,' a once-named party who settles a case prior to or during a trial is no longer a party in the action." (Emphasis in original.) [11] The Court of Appeals reached a similar result on March 22, 1995, in Faverty v. McDonald's Restaurants of Oregon, 133 Or.App. 514, ___ P.2d ___ (1995).

774ec3a32691da15fbf2ba2eebc0be3e5df08d0c556f9a0d1ab2b87395bdbdc9

1995-04-06T00:00:00Z

46cbc145-45fb-4155-8dc1-545b67e7fb08

Santa Fe Natural Tobacco Co. v. Dept. of Rev.

S069820

oregon

Oregon Supreme Court

No. 23 June 20, 2024 509 IN THE SUPREME COURT OF THE STATE OF OREGON SANTA FE NATURAL TOBACCO COMPANY, Plaintiff-Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Defendant-Respondent. (TC 5372) (SC S069820) En Banc On appeal from the Oregon Tax Court.* Robert T. Manicke, Judge. Argued and submitted November 9, 2023. Mitchell A. Newmark, Blank Rome LLP, New York, argued the cause and filed the briefs for appellant. Also on the briefs were Eugene J. Gibilaro, Blank Rome LLP, New York, and Carol Vogt Lavine, Carol Vogt Lavine, LLC, Milwaukie. Darren Weirnick, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Dustin Buehler, Assistant Attorney General. MASIH, J. The judgment of the Tax Court is affirmed. ______________ *  25 OTR 124 (2022). 510 Santa Fe Natural Tobacco Co. v. Dept. of Rev. Cite as 372 Or 509 (2024) 511 MASIH, J. This appeal concerns whether Santa Fe Natural Tobacco Company (“Santa Fe”) is liable for Oregon income tax for tax years 2010-13. Santa Fe is a New Mexico cor- poration selling branded tobacco products to wholesalers, who in turn sell to Oregon retailers. The primary issue is whether a federal statutory limit on a state’s ability to impose income tax on out-of-state corporations, 15 USC section 381 (“Section 381,” frequently also referred to as “Public Law 86-272”), precludes Oregon from taxing Santa Fe because its business in Oregon is limited. In its simplest form, Section 381 creates a safe harbor against state income tax for out- of-state businesses that limit their in-state actions to the “solicitation of orders,” provided that the orders are accepted out of state and the goods are shipped from out of state. The Oregon Department of Revenue (department) concluded that Santa Fe’s various actions in Oregon had taken it out­ side the safe harbor of Section 381, thus rendering Santa Fe liable to pay Oregon tax. The Tax Court agreed with the department that Santa Fe’s actions had made it subject to taxation in this state. Santa Fe Natural Tobacco Co. v. Dept. of Rev., 25 OTR 124, 165 (2022).1 Santa Fe has appealed that decision. For the rea­ sons that follow, we agree with the Tax Court that Santa Fe, by having its representatives take “prebook orders” from Oregon retailers, took itself outside the safe harbor of Section 381(a)(2). Accordingly, we conclude that Santa Fe is subject to tax by this state, and we affirm the judgment of the Tax Court.2 1  Strictly speaking, the tax at issue is Oregon’s corporate excise tax, rather than its corporate income tax. Those taxes are related but distinct. See Capital One Auto Fin. Inc. v. Dept. of Rev., 363 Or 441, 442-45, 423 P3d 80 (2018) (so explaining). The distinction, however, does not affect the proper resolution of the issues here; the parties do not dispute that, if the federal statute applies, it pro­ tects Santa Fe against being subject to Oregon’s corporate excise tax. See 15 USC § 383 (“For purposes of this chapter, the term ‘net income tax’ means any tax imposed on, or measured by, net income.”). To avoid confusing shifts of terminol­ ogy, we will use the term “income tax” as a shorthand throughout this opinion. 2  We need not reach the department’s other contentions or the other aspects of the Tax Court’s holding, for reasons discussed at 372 Or at 526 n 12. 512 Santa Fe Natural Tobacco Co. v. Dept. of Rev. I.  BACKGROUND LAW As noted, the issue in this case involves the proper interpretation of 15 USC section 381. As explained below, Congress enacted that law because the United States Supreme Court’s prior interpretation of constitutional limits on state power to tax out-of-state businesses had resulted in too much uncertainty. We begin by summarizing the cir­ cumstances that led Congress to enact that statute, then turn to an overview of the statute itself. A.  Prior Law Regarding State Taxation of Interstate Commerce The Commerce Clause of the United States Constitution gives Congress plenary authority to control state taxation of interstate commerce, but for most of the nation’s existence Congress had never exercised it. Jerome R. Hellerstein, Foreword: State Taxation under the Commerce Clause: An Historical Perspective, 29 Vand L Rev 335, 335 (1976); see also US Const, Art I, § 8, cl 3 (setting out Commerce Clause). As a result, the only limits on state taxation of inter­ state commerce were imposed by the United States Supreme Court, mainly as “violations of the unexercised power of Congress to regulate interstate commerce.” Id. (so noting and adding that due process and equal protection were involved to a lesser extent).3 Up until the New Deal Era, that amounted to a simple prohibition on states taxing interstate com­ merce. See Jerome R. Hellerstein, State Franchise Taxation of Interstate Businesses, 4 Tax L Rev 95, 95 (1948) (noting “the traditional view that under the Commerce Clause interstate commerce may not be taxed at all”). During that earlier period, the Supreme Court had observed a distinction between “drummers” and “peddlers.” Itinerant salespeople carrying goods for immediate delivery after sale were classified as “peddlers”; they were considered 3  The underlying restriction comes from an aspect of the Commerce Clause. The Commerce Clause itself grants positive authority for Congress “[t]o regulate Commerce *  *  * among the several States.” US Const, Art I, § 8, cl 3. The United States Supreme Court, however, has “consistently held this language to contain a further, negative command, known as the dormant Commerce Clause, prohibiting certain state taxation even when Congress has failed to legislate on the subject.” Comptroller of Treasury of Maryland v. Wynne, 575 US 542, 548-49, 135 S Ct 1787, 1794, 191 L Ed 2d 813 (2015) (internal quotation marks and citation omitted). Cite as 372 Or 509 (2024) 513 to be engaged in intrastate commerce and thus subject to state taxation. Comment, Taxation of Itinerant Salesmen, 40 Yale LJ 1094, 1094-95 (1931) (discussing distinction and cit­ ing cases); Andrew T. Hoyne, Public Law 86-272 - Solicitation of Orders, 27 St Louis U LJ 171, 181-82 (1983) (same, and including more recent decisions); see, e.g., Memphis Steam Laundry v. Stone, 342 US 389, 394 & n 12, 72 S Ct 424, 427, 96 L Ed 436 (1952) (explaining that the Court “has sustained state taxation upon itinerant hawkers and peddlers on the ground that the local sale and delivery of goods is an essen­ tially intrastate process whether a retailer operates from a fixed location or from a wagon”). By contrast, itinerant sales­ people who solicited orders for goods that would be later deliv­ ered from outside the state were classified as “drummers”; they were considered to be engaged in interstate commerce because they were only “drumming” up business, not selling and delivering products within the state, so they were con­ sidered immune from state and local taxation. Comment, 40 Yale LJ at 1094-95; Hoyne, 27 St Louis U LJ at 181-82; see, e.g., West Point Grocery Co. v. Opelika, 354 US 390, 391, 77 S Ct 1096, 1097, 1 L Ed 2d 1420 (1957) (holding that “a munic­ ipality may not impose a *  *  * tax on an interstate enterprise whose only contact with the municipality is the solicitation of orders and the subsequent delivery of goods at the end of an uninterrupted movement in interstate commerce”). That understanding of the Commerce Clause grad­ ually changed during the twentieth century, when the Supreme Court began to allow states to tax a broader range of activities than would have been permitted by the earlier blanket protection against taxing interstate commerce. “[S]uch levies were [now] regarded as invalid only if the Court thought they subjected interstate commerce to a risk of multiple taxation not borne by local commerce.” Hellerstein, 29 Vand L Rev at 337. As long as each state’s tax was apportioned to reasonably measure that state’s nexus with income, it was constitutional. Id.4 4  The current test for the constitutionality of state taxation of interstate com­ merce is somewhat more complex. As the United States Supreme Court noted in Complete Auto Transit, Inc. v. Brady, 430 US 274, 97 S Ct 1076, 51 L Ed 2d 326, reh’g den, 430 US 976 (1977), the Commerce Clause does not prohibit state taxa­ tion of interstate commerce as long as “the tax is applied to an activity with a sub­ stantial nexus with the taxing State, is fairly apportioned, does not discriminate 514 Santa Fe Natural Tobacco Co. v. Dept. of Rev. B.  Enactment of Section 381 Three decisions by the Court in 1959, however, led Congress to have substantial concerns about the state of the law. That year, the Court decided Northwestern Cement Co. v. Minn., 358 US 450, 79 S Ct 357, 3 L Ed 2d 421 (1959), fol­ lowed shortly afterward by the Court dismissing an appeal in Brown-Forman Distillers Corp. v. Collector of Revenue, 234 La 651, 101 So 2d 70 (1958), appeal dismissed, 359 US 28 (1959), and then denying certiorari in International Shoe Co. v. Fontenot, 236 La 279, 280, 107 So 2d 640 (1958), cert den, 359 US 984 (1959). The details of those rulings are not important here, but all three decisions effectively upheld a state’s ability to tax out-of-state businesses whose in-state activities were largely limited to the solicitation of orders.5 Congress became concerned that the constitutional standards for when an out-of-state business could be subject to state income tax were so unpredictable that that lack of predictability would itself burden interstate commerce. See Heublein, Inc. v. South Carolina Tax Comm’n, 409 US 275, 280 n 5, 93 S Ct 483, 34 L Ed 2d 472 (1972) (“ ‘Persons engaged in interstate commerce are in doubt as to the amount of local activities within a State that will be regarded as forming a sufficient “nexus,” that is, connection, with the State to support the imposition of a tax on net income from inter­ state operations *  *  *.’  ” (Quoting S Rep No. 658, 86th Cong, 1st Sess at 2-3.)). The burden of compliance could be sub­ stantial, especially for small or medium-sized businesses. They might have to “file tax returns in what may eventually be each of the 50 States as well as an unpredictable num­ ber of cities, even where the firm maintains no fixed estab­ lishment in those States and cities.” HR Rep No. 936, 86th Cong, 1st Sess, at 2. That would require those businesses to against interstate commerce, and is fairly related to the services provided by the State.” Id. at 279 (summarizing prior case law). See Charles A. Trost, Federal Limitations on State and Local Tax § 2:22 (Westlaw 2d ed, updated Nov 2023) (identifying Complete Auto Transit as the “landmark case” on the subject). 5  Those decisions are reviewed briefly in Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 US 214, 220-21, 112 S Ct 2447, 120 L Ed 2d 174 (1992). Substantially more details on all three decisions are available in Brian S. Gillman, Wisconsin Department of Revenue v. William Wrigley, Jr., Co.: A Step out of the Definitional Quagmire of Section 381, 78 Iowa L Rev 1169, 1171-75 (1993). Cite as 372 Or 509 (2024) 515 retain “legal counsel and accountants who are familiar with the tax practice of each jurisdiction.” Id. The result would be “increases in overhead charges, in some cases to an extent that will make it uneconomical for a small business to sell at all in areas where volume is small.” Id. Those concerns led Congress to enact Section 381. See Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co., 505 US 214, 222, 112 S Ct 2447, 2453, 120 L Ed 2d 174 (1992) (so explaining); Paul E. Guttormsson, Gumming Up the Works: How the Supreme Court’s Wrigley Opinion Redefined Solicitation of Orders under the Interstate Commerce Tax Act (15 U.S.C. 381), 1993 Wis L Rev 1375, 1379-80 (1993); Paul J. Hartman, Solicitation and Delivery under Public Law 86-272: An Uncharted Course, 29 Vand L Rev 353, 358-59 (1976). C.  Relevant Provisions of Section 381 The case before us involves Section 381(a). Section 381(a), which has two related restrictions, provides, in part: “(a)  Minimum standards. No State *  *  * shall have power to impose *  *  * a net income tax on the income derived within such State by any person from interstate commerce if the only business activities within such State by or on behalf of such person during such taxable year are either, or both, of the following: “(1)  the solicitation of orders by such person, or his representative, in such State for sales of tangible per­ sonal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by ship­ ment or delivery from a point outside the State; and “(2)  the solicitation of orders by such person, or his rep­ resentative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1).” The first provision, Section 381(a)(1), generally pro­ tects an out-of-state business from taxation so long as it restricts the actions of its representatives to the solicitation of orders for sales within the taxing state. The solicitation 516 Santa Fe Natural Tobacco Co. v. Dept. of Rev. must stop short of closing the sale, though; the order must be accepted outside the state, and the goods must be shipped from outside the state. 15 USC § 381(a)(1); see Charles A. Trost, Federal Limitations on State and Local Tax §  10:9 (Westlaw 2d ed, Nov 2023 update) (summarizing provision).6 The requirement that the order be accepted outside the taxing state implies an actual decision taking place out­ side the state. As one commentator noted: “[I]n-state acts which tend to diminish the need for or make a total sham of the already highly formal out-of-state approval or rejection phase of the interstate solicitation process would seem to be properly outside the protection intended by Congress.” Berndt Lohr-Schmidt, Developing Jurisdictional Standards for State Taxation of Multistate Corporate Net Income, 22 Hastings LJ 1035, 1083-84 (1971). The second provision, Section 381(a)(2), explicitly incorporates Section 381(a)(1) and functionally extends the same protections one additional step beyond direct custom­ ers. As noted, Section 381(a)(1) allows a business to solicit orders directly from customers, provided the resulting orders are accepted outside the taxing state. Though the phrasing is cumbersome, Section 381(a)(2) allows the business to also solicit orders from indirect customers—persons who will order, not from the business itself, but from the business’s in-state direct customers.7 But the business’s solicitation of 6  The provision bears a strong resemblance to the Supreme Court’s ear­ lier case law allowing regarding state and local taxation of “peddlers” but not “drummers.” 7  To make that abstraction more concrete: A business’s direct customers may be wholesalers, while its indirect customers are retailers. Orders from the retailers go to the wholesalers, and the wholesalers in turn fill their inventory by ordering from the business. Under Section 381(a)(2), the business’s represen­ tatives can solicit retailers to order from wholesalers, provided that (1) the solici­ tation is designed “to enable” the wholesalers to fill the orders; and (2) the whole- salers’ orders to the business will still come within the safe harbor of Section 381(a)(1)—that is, the wholesalers’ orders are approved, and the products are shipped, from outside the taxing state. See 15 USC § 381(a)(2); Trost, Federal Limitations on State and Local Tax §  10.9 (summarizing provision); Wrigley, 505 US at 233-34 (explaining that Section 381(a)(2) “shields a manufacturer’s ‘missionary’ request that an indirect customer (such as a consumer) place an order, if a successful request would ultimately result in an order’s being filled by a [Section] 381 ‘customer’ of the manufacturer, i.e., by the wholesaler who fills the orders of the retailer with goods shipped to the wholesaler from out of state.”). Cite as 372 Or 509 (2024) 517 such orders is limited to activities that “enable” the busi­ ness’s in-state customers to fill those orders. Under both parts of Section 381(a), however, the statutory text requires that the business’s “only busi­ ness activities” in the taxing state fall within the scope of “solicitation of orders” for interstate sales. 15 USC § 381(a) (emphasis added); see Wrigley, 505 US at 223 (same); Herff Jones Co. v. Tax Com., 247 Or 404, 412, 430 P2d 998 (1967) (same). “Solicitation of orders” stops short of the business making sales. See 15 USC § 381(c) (which permits indepen­ dent contractors not only to solicit orders, but also to make sales); Wrigley, 505 US at 229 n 5 (noting that the “activities that are most clearly not immunized by the statute” include “actual sales” (emphasis in original)). Although de minimis violations will not take a business outside the protections of Section 381(a), see Wrigley, 505 US at 231, the statute pro­ tects a business whose activities are limited to “solicitation of orders” alone. That is the point on which this case turns: whether the in-state actions of Santa Fe’s representatives went beyond the “solicitation of orders.” D.  Limits on “Solicitation of Orders” The meaning of the term “solicitation of orders,” as used in Section 381(a), has been one of the most difficult issues for courts attempting to interpret that statute. Prior to the Court’s decision in Wrigley, the state courts had offered various interpretations. See Guttormsson, 1993 Wis L Rev at 1381-85 (reviewing state court cases to date). This court had addressed the issue more than once. See Herff Jones Co., 247 Or at 411-12 (discussing “broad interpretation” seemingly adopted in Smith Kline & French v. Tax Com., 241 Or 50, 403 P2d 375 (1965), but later rejected by Cal-Roof Wholesale v. Tax Com., 242 Or 435, 410 P2d 233 (1966)). In Wrigley, the United States Supreme Court inter­ preted the term “solicitation of orders” in detail. Because that interpretation guides our decision in this case, we dis­ cuss the facts and the Court’s opinion in that case in some detail. William Wrigley, Jr., Co., a gum manufacturer, was headquartered in Chicago, but it sent sales representatives 518 Santa Fe Natural Tobacco Co. v. Dept. of Rev. into Wisconsin. 505 US at 216. The Supreme Court had to determine whether actions taken by Wrigley’s representa­ tives exceeded the safe harbor of Section 381(a). It concluded that they did. Id. at 232-33. The Court first considered what “solicitation of orders” meant as used in the statute. It began by examining the meaning of “solicitation” generally: “  ‘Solicitation,’ commonly understood, means ‘asking’ for, or ‘enticing’ to, something, see Black’s Law Dictionary 1393 (6th ed 1990); Webster’s Third New International Dictionary 2169 (1981) (‘solicit’ means ‘to approach with a request or plea (as in selling or begging)’).” Id. at 223 (brackets omitted). The Court went on to conclude that “solicitation of orders” was not limited to the request for a purchase; instead, it included “the entire process asso­ ciated with the invitation.” Id. at 225. Nor was “solicitation of orders” limited to activities “essential” to the request to purchase: If the wording were limited in that way, the Court explained, then “it would not cover salesmen’s driving on the State’s roads, spending the night in the State’s hotels, or displaying within the State samples of their product. We hardly think the statute had in mind only day-trips into the taxing juris­ diction by emptyhanded drummers on foot.” Id. at 226. Again, however, “solicitation of orders” does not include “actual sales”—which the Court described as one of the “activities that are most clearly not immunized by the statute.” Wrigley, 505 US at 229 n 5 (emphasis in original). At the same time, the Supreme Court also rejected the suggestion that “solicitation of orders” should be under­ stood to mean whatever conduct might be considered rou­ tine or customary in the course of a solicitation. Accepting that suggestion, the Court reasoned, would “convert[  ] a standard embracing only a particular activity (‘solicitation’) into a standard embracing all activities rou­ tinely conducted by those who engage in that particular activity (‘salesmen’). If, moreover, the approach were to be applied (as respondent apparently intends) on an indus­ try-by-industry basis, it would render the limitations of Cite as 372 Or 509 (2024) 519 [Section] 381(a) toothless, permitting ‘solicitation of orders’ to be whatever a particular industry wants its salesmen to do.” Id. at 227 (footnote omitted). The Court instead concluded that a business activ­ ity would be a protected “solicitation of orders” as long as the only business purpose for the activity was to help solicit orders. The “clear line” separating a protected “solicitation” from unprotected activities was drawn “between those activities that are entirely ancillary to requests for purchases—those that serve no independent business function apart from their connection to the solicit­ ing of orders—and those activities that the company would have reason to engage in anyway but chooses to allocate to its in-state sales force.” Id. at 228-29 (emphasis in original; footnote omitted). The Supreme Court then offered some examples of how that test would apply. A business activity would not exceed the scope of the “solicitation of orders” if it involved giving a sales representative a car and a stock of samples: “the only reason to do it is to facilitate requests for pur­ chases.” Id. at 229. But having sales representatives repair or service the business’s products would exceed the “solicita­ tion of orders,” and so would not be protected by Section 381, because “there is good reason to get that done whether or not the company has a sales force. Repair and servicing may help to increase purchases; but it is not ancillary to requesting purchases, and cannot be converted into ‘solicitation’ by merely being assigned to salesmen.” Id. (citing Herff Jones for proposition that there is “no [Section] 381 immunity for sales representatives’ collection activities”). The Court then turned to the facts before it and considered whether the activities by Wrigley’s representa­ tives exceeded the scope of “solicitation of orders.” Three activities were important to the Court’s decision. The first two involved representatives contacting Wrigley’s indi­ rect customers—retailers—on behalf of Wrigley’s direct 520 Santa Fe Natural Tobacco Co. v. Dept. of Rev. customers—wholesalers. See 505 US at 218; William Wrigley, Jr. Co. v. Dept. of Rev., 160 Wis 2d 53, 64-65, 465 NW2d 800, 804 (1991), rev’d on other grounds, Wrigley, 505 US 214 (pro­ viding additional details). First, the representatives would offer free gum displays and seek to have them prominently displayed. Wrigley, 505 US at 218. If the retailer did not have sufficient gum in stock to fill the displays, then the represen­ tative would fill the display with a stock of gum that the rep­ resentative had brought. Id. The retailer would be charged for the gum, however, by a mechanism—the “agency stock check”—that involved the retailer paying the wholesaler, not directly paying Wrigley. Id. Second, the representatives would check the retailer’s stock and replace any gum that had gone stale. Id. at 218-19. The replacement of stale stock was done without charge. Id. And third, Wrigley gave its sales representatives—who resided in Wisconsin—approx­ imately $1,000 worth of gum each to perform those two actions. Id. at 217-18. The Court concluded that all three of those activities exceeded the scope of “solicitation of orders.” First, the Supreme Court explained that Wrigley’s representatives had exceeded the scope of “solicitation of orders” when they replaced stale gum: “Wrigley would wish to attend to the replacement of spoiled product whether or not it employed a sales force. Because that activity serves an independent business function quite separate from requesting orders, it does not qualify for [Section] 381 immunity.” Id. at 233. The Court rejected the argument that replace­ ment was a “  ‘promotional necessity’ designed to ensure con­ tinued sales.” Id. For an activity to be protected by Section 381’s safe harbor, the Court explained, “it is not enough that the activity facilitate sales; it must facilitate the requesting of sales, which this did not.” Id. (emphases in original; foot­ note omitted). Second, the Court concluded that Wrigley’s repre­ sentatives had exceeded the scope of “solicitation of orders” when they placed gum into retailers’ displays (the “agency stock checks”). Specifically addressing Section 381(a)(2), the Court explained that Wrigley’s actions had an independent business purpose beyond mere solicitation: Cite as 372 Or 509 (2024) 521 “It might seem *  *  * that setting up gum-filled display racks, like Wrigley’s general advertising in Wisconsin, would be immunized by [Section] 381(a)(2). What destroys this analysis, however, is the fact that Wrigley made the retailers pay for the gum, thereby providing a business pur­ pose for supplying the gum quite independent from the purpose of soliciting consumers. Since providing the gum was not entirely ancillary to requesting purchases, it was not within the scope of ‘solicitation of orders.’  ” Id. at 234 (emphasis in original; footnote omitted). Even though the retailers were making those payments to the wholesalers and not to Wrigley directly, the payments were sufficient to take Wrigley out of the safe harbor of Section 381(a)(2). Finally, the Court concluded that Wrigley, by stor­ ing gum in-state, also exceeded the scope of “solicitation of orders” because the vast majority of that gum was used to replace stale gum or the “agency stock checks,” which were not themselves protected activities. Id. With that understanding of the background of Section 381 and how it has been interpreted by the Supreme Court, we turn to the facts developed in the Tax Court regard­ ing the scope of Santa Fe’s activities in relation to wholesalers and retailers in Oregon, before explaining why those activi­ ties took Santa Fe outside of Section 381’s safe harbor. II.  FACTS AND PROCEEDINGS A.  Facts The parties stipulated to the underlying facts. We set out below only those facts relevant to our decision, taken from the stipulation and its attached exhibits. All facts should be understood to refer to tax years 2010-13. Santa Fe is a New Mexico corporation operating out of state. Santa Fe had no offices or inventory of its own located in Oregon. During the relevant tax years, Santa Fe sold tobacco products only to wholesalers.8 Wholesalers in turn 8  During 2010, Santa Fe made some direct sales to Oregon retailers. The department does not rely on those sales to establish Santa Fe’s tax liability. Accordingly, our analysis will proceed as though Santa Fe had not made any in-state sales during the relevant tax years. 522 Santa Fe Natural Tobacco Co. v. Dept. of Rev. sold Santa Fe’s products to retailers; retailers then resold the products to consumers. Santa Fe sent its employees into Oregon to persuade Oregon retailers to order Santa Fe’s products from whole- salers. Many of those wholesalers were also located in Oregon. When a representative visited an Oregon retailer in person and convinced the retailer to agree to order Santa Fe’s products from a wholesaler, the representative could take one of two actions. One option was for the representative to leave the retailer a “sell sheet order.” The sell sheet order forms were prepared by Santa Fe. They were captioned “Santa Fe Natural Tobacco Account Profile” and included blank spaces for the retailer’s account name, number, shipping informa­ tion, and Santa Fe product selection. The representative would “write the quantities of each item on the appropriate wholesaler sell sheet and leave the sheet with the retailer” for the retailer to send to the wholesaler. A sell sheet order was just a “suggestion” to buy; “[i]t is up to the retailer to follow through and purchase the product.” Thus, a sell sheet order would seem to be a classic example of the type of solic­ itation that falls within the safe harbor of Section 381, and the department does not contend that Santa Fe’s actions regarding sell sheet orders took it outside the safe harbor of Section 381. Another option for the representative, however, was to take a “prebook order.” In some ways, prebook orders were similar to sell sheet orders. Like the sell sheet order forms, the prebook order forms were also prepared by Santa Fe and had a caption at the top identifying Santa Fe rather than the wholesaler. A prebook order would also be filled out by Santa Fe’s representative. The prebook order process, however, diverged from the sell sheet order process in ways that, as we will explain, made the process more like the facilitation of sales within Oregon, rather than solicitation of orders that could be accepted or rejected by Santa Fe’s Oregon wholesalers. Below the caption “Santa Fe Natural Tobacco Company Prebook Order Form,” the form included the words “Sold To,” “Date,” Cite as 372 Or 509 (2024) 523 and “Delivery Date.” The prebook order form would imme­ diately be signed by the retailer on the line labeled “Buyer Name” and “Buyer Signature.” The representative would then personally send the order to the wholesaler by hard copy, phone, fax, or email/electronic delivery (but usually by fax). When a wholesaler received a prebook order, that triggered a provision of a contractual agreement with Santa Fe: the “Distributor Incentive Program Agreements” (“incen­ tive agreements”). As relevant here, the incentive agree­ ments required every wholesaler to “accept and process” prebook orders. The 2011 incentive agreement, for example, provided that wholesalers must “[a]ccept and process pre-book orders initiated by [Santa Fe] on behalf of their retail accounts. These pre-books will be in the form of hard copy, fax, and/or email.” The other incentive agreements were functionally identical. As we will explain, the incentive agreements imposed sub­ stantial economic penalties on any wholesaler who refused to accept a prebook order. The incentive agreements provided for wholesalers to receive incentive payments as a rebate from Santa Fe for each carton that the wholesaler sold.9 Each of the incentive agreements provided that a breach of the agreement would be cause for Santa Fe to cease making incentive payments on cartons sold. Beginning with the 2011 version of the incen­ tive agreement, Santa Fe’s declaration of a breach would not only entitle it to discontinue future payments to the wholesaler; Santa Fe expressly had the right to require the wholesaler to repay all those payments already made under the incentive agreement. Santa Fe was also given exclusive discretion to determine whether a wholesaler had complied 9  Under the 2010 incentive agreement, the rebate was 20 cents per carton, rising to 40 cents per carton for every carton sold beyond the previous year’s sales. Under the 2011 and 2012 incentive agreements, a wholesaler could receive up to 50 cents per carton: 20 cents credited to the invoice when the product was shipped, with additional quarterly payments of 30 cents per carton “to those [wholesalers] which fully meet *  *  * all [incentive agreement] Rules and Procedures.” Whether a wholesaler had fully met all incentive agreement rules and procedures was “to be determined by [Santa Fe] in its sole discretion.” 524 Santa Fe Natural Tobacco Co. v. Dept. of Rev. with the terms of the incentive agreements. Moreover, a wholesaler was not permitted to purchase Santa Fe’s prod­ ucts “unless [the wholesaler] entered into a[n] [incentive agreement].”10 Because the incentive agreements expressly required wholesalers to accept and process prebook orders and imposed substantial economic penalties on any whole­ saler who refused to do so, Santa Fe trained its trade rep­ resentatives to emphasize prebook orders, not sell sheet orders. Those materials expressly described a prebook order as “a guaranteed order.” Those materials added that pre­ book orders “ensure the order will be placed” and “ensure that line extensions sold in [sic] during the sales call will be ordered and placed in distribution within the outlet/ account.” Santa Fe also set a “specific prebook goal” for its trade representatives; “only valid prebooks [could] be counted towards that goal.” Santa Fe’s materials for its rep­ resentatives directed them to “[a]lways attempt to place pre- booked orders.” Santa Fe had a “role play” for its representa­ tives where the stated objective was “[t]o get a pre-book”; it concluded with the representative asking the retailer, “How about if I prebook these styles through your wholesaler for you today[?]” During the relevant tax years, Santa Fe’s trade rep­ resentatives placed an average of 13.3 prebook orders per month from Oregon retailers. In contrast to prebook orders, none of the incentive agreements addressed sell sheet orders in any way. Sell sheet orders, the materials state, are not guaranteed and are a mere “suggestion” for the retailer to order. 10  The 2011 and 2012 incentive agreements were emphatic on the point: “[The wholesaler] agrees that all of its obligations under this [incentive agreement] are material, that full performance of all of its obligations under this [incentive agreement] is essential, and that [Santa Fe] has no obliga­ tion to accept any product orders from, or make any monetary payments to, [the wholesaler] if [the wholesaler] breaches or in any way fails to perform in whole or part any provision or requirement of this [incentive agreement].” Cite as 372 Or 509 (2024) 525 B.  Proceedings Below During the relevant years, Santa Fe timely filed Oregon tax returns. It reported no Oregon taxable income, instead asserting that its activities in Oregon fell within the protections of Section 381. The department audited Santa Fe’s tax returns and rejected Santa Fe’s claimed immunity. The depart­ ment assessed deficiencies for every tax year, from a low of $395,947 for tax year 2010, to a high of $771,122 for tax year 2013 (not including substantial understatement penalties and interest for each year). Santa Fe appealed to the Regular Division of the Tax Court,11 where the matter was tried on stipulated facts. Santa Fe argued that prebook orders were the mere solici­ tation of orders from indirect customers and so protected by Section 381(a)(2). Santa Fe contended that prebook orders differed from sell sheet orders only through the “ministerial act” of having Santa Fe’s sales representative, rather than the retailer, transmit the order by pressing the button on a fax machine. The department conceded that prebook orders, “in isolation,” could have been protected by Section 381(a)(2). But it emphasized that the prebook orders did not exist in isolation, because Santa Fe had used the incentive agree­ ments to require wholesalers to “accept and process” those orders. The department contended that Santa Fe “went beyond mere solicitation” because its employees, while in Oregon, delivered signed orders to wholesalers who had already agreed, in advance, to “accept and process” orders transmitted by Santa Fe’s employees. On that point, Santa Fe replied that the incentive agreements only required wholesalers to “accept and pro­ cess” prebook orders, not to “fulfill” them. 11  There was an initial appeal to the Magistrate Division of the Tax Court. For purposes of this opinion, it is sufficient for us to discuss only the proceedings in the Regular Division; the Magistrate Division is not a court of record, and the Regular Division hears appeals from the Magistrate Division de novo. See Village at Main Street Phase II v. Dept. of Rev., 356 Or 164, 167-68, 339 P3d 428 (2014) (so explaining). We will generally use “Tax Court” to refer to the Regular Division. 526 Santa Fe Natural Tobacco Co. v. Dept. of Rev. Although the Tax Court ultimately was not per­ suaded by the department’s argument regarding the “accept and process” requirement of the incentive agreements (the court concluded that “accept” was ambiguous, see 25 OTR at 151-53), the court nevertheless ruled in favor of the depart­ ment. Relying on the Supreme Court’s decision in Wrigley, the court held that the prebook orders were more than a “solicitation” because those orders had served an indepen­ dent business purpose for Santa Fe beyond requesting the orders. “Writing down and forwarding the order for the [r]etailer on the spot made the difference between a poten­ tially meaningless oral ‘yes’ and an actual order that was more likely to result in a sale.” 25 OTR at 155-56. The Tax Court also concluded that Santa Fe’s actions had exceeded the scope of Section 381 in a way that was not de minimis. Id. at 156-58. Because Santa Fe had exceeded the protections of Section 381(a)(2), the court concluded that it was subject to taxation in Oregon.12 Santa Fe appealed that decision to this court. III.  DISCUSSION The only issue before us is whether Section 381 “cuts off” Oregon’s authority to tax Santa Fe’s transactions within this state. It is undisputed that Oregon otherwise has authority to tax Santa Fe for income obtained here.13 In 12  The Tax Court also ruled in favor of the department on a separate ques­ tion. The department had made an alternative argument that, because the incen­ tive agreements required wholesalers to accept any and all returns of products by retailers, Santa Fe had also exceeded the protections of Section 381(c). That sub­ section provides that an out-of-state business is protected against being taxed in-state for the actions of “independent contractors,” provided that the activities of the independent contractors on behalf of the business “consist solely of mak­ ing sales, or soliciting orders for sales, of tangible personal property.” 15 USC § 381(c). The department contended—and the Tax Court agreed—that Santa Fe’s act of requiring wholesalers to accept all returns took Santa Fe outside the pro­ tections of Section 381. 25 OTR at 134-50. As related to the “prebook orders,” however, Santa Fe’s representatives were not “independent contractors,” but Santa Fe employees, and so they were not enti­ tled to make in-state “sales” by Section 381(c); instead, their activities were lim­ ited to “solicitation of orders.” And because we conclude in this opinion that Santa Fe’s activities in Oregon fell outside the safe harbor of Section 381(a)(2), we need not reach the merits of the Tax Court’s alternative holding that Santa Fe had also fallen outside the safe harbor created by Section 381(c). 13  Santa Fe does not contend, for example, that Oregon’s income tax here would violate the federal constitutional limitations imposed by the “dormant Commerce Clause.” Cite as 372 Or 509 (2024) 527 other words: Santa Fe is liable for Oregon income tax unless the Section 381 safe harbor applies. A.  Standard of Review and Burden of Proof In the Tax Court, Santa Fe (as the party challeng­ ing the department’s decision) had the burden to show, by a preponderance of the evidence, that its actions fell within the protections of Section 381. See ORS 305.427 (both before Tax Court and on appeal, “the party seeking affirmative relief” has burden of proof by “a preponderance of the evidence”); Baisch v. Dept. of Rev., 316 Or 203, 211, 850 P2d 1109 (1993) (“A taxpayer seeking relief from a decision of the Department denying a deduction bears the burden of showing by a pre­ ponderance of the evidence that the deduction is allowable.”). We rely on the stipulated facts and exhibits, and we review the Tax Court’s legal conclusions for errors of law. ORS 305.445. B.  Analysis As we will explain, Santa Fe’s representatives went beyond soliciting orders on behalf of wholesalers. Because the wholesalers had already been committed by the terms of their incentive agreements to accept any prebook order, Santa Fe’s representatives were doing more than “enabling” wholesalers to sell Santa Fe products to retailers. Instead, they were “requiring” wholesalers to sell those products and facilitating those sales. That exceeded the scope of the per­ mitted “solicitation of orders.” We begin with the “prebook order” itself. As noted, such orders used a form prepared by Santa Fe and filled out by Santa Fe’s representatives on behalf of their indirect customers, the Oregon retailers. Under the terms of all the incentive agreements, wholesalers were contractually obli­ gated to accept and process those orders, and their right to receive future payments under the incentive agreements was contingent on complying with that contractual require­ ment.14 Starting in 2011, Santa Fe added “sticks” to the 14  We do not suggest that that the prebook order requirements were the only duties that the incentive agreements required wholesalers to undertake. The incentive agreements imposed at least one other primary and affirmative duty on the wholesalers: to accept product returns. The wholesalers had other duties, 528 Santa Fe Natural Tobacco Co. v. Dept. of Rev. incentive agreements to match the “carrot” of future pay­ ments. See 372 Or at 523-24 (discussing in detail). First, all wholesalers had to participate in the incentive agree­ ments, so all future business with Santa Fe depended on the wholesalers accepting and processing those prebook orders. Second, a wholesaler who breached the incentive agreements by failing to accept and process prebook orders would not only lose those future payments under the incen­ tive agreements, it would also be required to repay any pay­ ments already received. Again, the 2011 and 2012 incentive agreements expressly provided that “all of [the wholesaler’s] obligations under this [incentive agreement] are material, that full performance of all of its obligations under this [incentive agreement] is essential, and that [Santa Fe] has no obligation to accept any prod­ uct orders from, or make any monetary payments to, [the wholesaler] if [the wholesaler] breaches or in any way fails to perform in whole or part any provision or requirement of this [incentive agreement].” When Santa Fe contractually required wholesalers to “accept and process” prebook orders, then, the wholesaler understood that it must comply with that obligation or the wholesaler would face substantial economic penalties and lose the right to continue selling Santa Fe products. As a result, the incentive agreements went beyond “facilitat[ing] the requesting of sales” and instead “facilitate[d] sales” by Santa Fe’s representatives, Wrigley, 505 US at 233 (empha­ sis omitted), because the wholesalers had already been com­ mitted, by contract and by financial penalties, to complete the transaction. As such, prebook orders went beyond the scope of “solicitation of orders.”15 though those largely seem to have been negative (e.g., wholesalers were prohib­ ited from selling Santa Fe’s products in a manner that would violate state or federal law) or in support of the main duties (e.g., wholesalers were required to retain records and permit Santa Fe to perform audits). The point remains, how­ ever: Santa Fe considered the acceptance and processing of prebook orders to be so important that it put the requirement into a contract that imposed substantial economic penalties for any breach. 15  As noted, the Tax Court had concluded that the “accept and process” pro­ vision was ambiguous in a legal sense. For wholesalers, however, the economic realities represented by the phrase were entirely unambiguous: wholesalers had to accept prebook orders or become subject to immediate economic penalties by Santa Fe. That economic reality is much more relevant than the mere possibility Cite as 372 Or 509 (2024) 529 The term “solicitation of orders” is used in both Section 381(a)(1) and Section 381(a)(2). The Supreme Court’s ordinary principles of statutory interpretation direct us to construe “solicitation of orders” to have the same meaning in both sections. See Sullivan v. Stroop, 496 US 478, 484, 110 S Ct 2499, 2504, 110 L Ed 2d 438 (1990) (the “normal rule of statutory construction [is] that identical words used in dif­ ferent parts of the same act are intended to have the same meaning” (internal quotation marks and citations omitted)); Wrigley, 505 US at 225 (noting same principle). Section 381(a)(1) shows that a “solicitation” does not include accepting the order (or shipping the goods). Again, that subsection protects “solicitation of orders” so long as “[the] orders are sent outside the State for approval or rejec­ tion, and, if approved, are filled by shipment or delivery from a point outside the State.” The requirement that the approval occur outside the state might seem to be a mere formality, see Lohr-Schmidt, 22 Hastings LJ at 1083-84 (so noting), but it is necessary. The requirement that acceptance occur outside the state does not apply to Section 381(a)(2), of course; the text of Section 381(a)(2) shows that a business’s representatives may solicit orders on behalf of direct customers within the taxing state. But in both contexts, the activity must be lim­ ited to a “solicitation” of orders. In Wrigley, the Supreme Court explained that “solicit” means “asking for” or “enticing to” or “approach with a request or plea.” 505 US at 223 (internal quotation marks and citations omitted)). Nothing suggests that Santa Fe’s representatives told retailers about the provision of the incentive agreements requiring wholesalers to “accept and process” prebook orders, much less that the represen­ tatives used it as a selling point to encourage the retailer that expensive litigation might eventually lead to a court decision that would permit a wholesaler to refuse a prebook order without penalty. For its part, Santa Fe argues that it is significant that the incentive agree­ ments use the words “accept and process,” rather than “fulfill.” “Fulfill” is not a legal term of art, however. Santa Fe offers no authority or support for its implicit suggestion that the phrase “accept and process” unambiguously excludes a requirement that the wholesalers “fulfill” the order. 530 Santa Fe Natural Tobacco Co. v. Dept. of Rev. to buy Santa Fe’s products. To the contrary: The sample “role plays” for representatives did not mention the “accept and process” obligation at all. From the perspective of the retailer, a prebook order was just a sell sheet order that someone else turned in for them. But it was no such thing from the perspective of a wholesaler—or from the perspec­ tive of Santa Fe, which had used the incentive agreements to make prebook orders amount to “guaranteed order[s].” Prebook orders, as something that wholesalers had already committed themselves to accept, thus facilitated the sale and not the solicitation. See Wrigley, 505 US at 233 (“[I]t is not enough that the activity facilitate sales; it must facilitate the requesting of sales, which this did not.” (Emphases in original.)). That conclusion also follows from the full definition of “solicitation of orders” that the Supreme Court articu­ lated in Wrigley. The “accept and process” obligation that Santa Fe imposed was not “entirely ancillary to requests for purchases.” Id. at 228 (emphasis omitted). The prebook order process, as set up by the incentive agreements, instead served an “independent business function apart from their connection to the soliciting of orders,” id. at 228-29: It allowed Santa Fe’s representatives to go beyond requesting sales and into facilitating sales on behalf of wholesalers, and to quickly have orders filled from stock that Oregon whole­ salers were, in effect, holding for Santa Fe in-state. A whole­ saler could not refuse to “accept and process” a single Santa Fe prebook order without risking future incentive payments for every Santa Fe product that it sold to every retailer, and, starting in 2011, a wholesaler risked being required to repay every incentive payment that it had already received for sales to every retailer. Thus, Santa Fe was doing far more than simply “enabling” Oregon wholesalers to sell Santa Fe’s products.16 16  The Tax Court reached a similar conclusion, but on much narrower grounds. It correctly recognized that prebook orders increased the chances of a sale of Santa Fe’s products, but the court’s analysis seems to have relied almost entirely on the act of Santa Fe’s representative transmitting the prebook order to the wholesaler. See 25 OTR at 154-56. Our holding does not rely on the narrow act of transmission. We conclude that prebook orders should be considered in light of the contractual obligations and economic realities that Santa Fe’s incen­ tive agreements imposed on wholesalers. Cite as 372 Or 509 (2024) 531 As we will explain, Santa Fe used prebook orders— bolstered by the incentive agreements—in the same way that the gum manufacturer in Wrigley used “agency stock checks.” Again, Wrigley’s representatives would fill free gum displays using the stock of gum that the representative had brought into the state, requiring the retailer to pay a wholesaler for the gum. See Wrigley, 505 US at 218. Wrigley thus had exceeded the scope of Section 381(a)(2) in two dif­ ferent ways. First, “Wrigley made the retailers pay for the gum, thereby providing a business purpose for supplying the gum quite independent from the purpose of soliciting consumers.” Id. at 234 (emphasis in original). Second, the representatives’ in-state stock of gum to fill the displays—a stock that the retailers had to pay for—also exceeded the protections of Section 381. Id. That parallels what Santa Fe did here. When Santa Fe’s representatives obtained a prebook order from an Oregon retailer, they were not just soliciting orders. They were facilitating sales on behalf of wholesalers, who were for practical purposes already committed to accept those sales. And, because Oregon wholesalers had no true ability to decline the sale, the wholesaler’s stock of Santa Fe prod­ ucts functioned as if Santa Fe itself had stored the stock in-state—also falling outside the scope of Section 381(a). In our view, then, prebook orders cannot be reduced to a Santa Fe representative performing the “ministerial” act of “push[ing] the button on a fax machine,” as Santa Fe argues. (Emphasis omitted.) That framing would ignore the economic structure that Santa Fe had constructed around “prebook orders,” using its incentive agreements with whole- salers. Considered in its factual and legal context, then, Santa Fe and its representatives exceeded the scope of “solic­ itation of orders” as that term is used in Section 381(a)(2) when they obtained prebook orders from Oregon retailers. C.  Prebook Orders Were Not De Minimis That does not end our analysis. In Wrigley, the Supreme Court further explained that “the venerable maxim de  minimis non curat lex (‘the law cares not for trifles’)” 532 Santa Fe Natural Tobacco Co. v. Dept. of Rev. applies to Section 381. 505 US at 231. A company should not become “liable for hundreds of thousands of dollars in taxes if one of its salesmen sells a 10-cent item in state.” Id. In the context of Section 381, the Court held that “whether in-state activity other than ‘solicitation of orders’ is sufficiently de  minimis to avoid loss of the tax immu­ nity conferred by [Section] 381 depends upon whether that activity establishes a nontrivial additional connection with the taxing State.” Id. at 232. The Court then explained why it concluded that the de  minimis principle did not protect Wrigley under those facts: “Wrigley’s sales representatives exchanged stale gum, as a matter of regular company policy, on a continuing basis, and Wrigley maintained a stock of gum worth several thou­ sand dollars in the State for this purpose, as well as for the less frequently pursued (but equally unprotected) purpose of selling gum through ‘agency stock checks.’ Although the relative magnitude of these activities was not large com­ pared to Wrigley’s other operations in Wisconsin, we have little difficulty concluding that they constituted a nontriv­ ial additional connection with the State.” Id. at 235. Here, the parties stipulated that Santa Fe’s repre­ sentatives obtained an average of 13.3 prebook orders per month from Oregon retailers. That, combined with exhibits showing Santa Fe’s strong emphasis on its representatives obtaining prebook orders, is sufficient for us to conclude that its actions were not de minimis. Like Wrigley, Santa Fe was engaging in the unprotected activity “as a matter of regu­ lar company policy, on a continuing basis.” Id. The number of such orders per month is also not de minimis. Thus, “we have little difficulty concluding that they constituted a non­ trivial additional connection with the State.” Id.17 17  Although the record does not give the value of prebook orders or compare the size of those orders to Santa Fe’s other sales within the state, we agree with the Tax Court: In this context, the burden rested on Santa Fe to come forward with evidence that the sales were trivial. ORS 305.427 (both before Tax Court and on appeal, “the party seeking affirmative relief” has burden of proof by “a preponderance of the evidence”); see 25 OTR at 157-58 (so concluding). Cite as 372 Or 509 (2024) 533 III.  CONCLUSION For the reasons set out above, we conclude that Santa Fe’s business activities—specifically, the pursuit of prebook orders by its representatives in Oregon, invoking incentive agreement contractual provisions used by Santa Fe to ensure that wholesalers treated each one of those orders favorably—exceeded the scope of permitted “solici­ tation of orders” under Section 381(a)(2). We further agree that Santa Fe’s activities were not de minimis. Accordingly, Santa Fe was subject to Oregon income tax. The judgment of the Tax Court is affirmed. Unlike the Tax Court, however, we would add that it is far from clear that the size of a business’s protected activities has any bearing on whether the unpro­ tected activities create a nontrivial additional connection. See Wrigley, 505 US at 235 (unprotected activities made nontrivial additional connection, even though “the relative magnitude of these activities was not large compared to Wrigley’s other operations in Wisconsin”).

ebe7c345ac2f8ccac603bf016b5266bb0ea85eb504d862b93db1a21b5b051998

2024-06-20T00:00:00Z

73db4f19-5bef-49c3-ba7c-fb14f5d3f1a5

Brian v. OREGON GOVERNMENT ETHICS COM'N

320 Or. 676, 891 P.2d 649

oregon

Oregon Supreme Court

891 P.2d 649 (1995) 320 Or. 676 State Representative Thomas M. BRIAN, Petitioner on Review, v. STATE of Oregon, acting By and Through the OREGON GOVERNMENT ETHICS COMMISSION, Respondent on Review. Nos. CC C920337CV; CA A77344; SC S41348. Supreme Court of Oregon, In Banc. Argued and Submitted December 8, 1994. Decided March 30, 1995. *650 *651 Marc D. Blackman, of Ransom, Blackman & Weil, Portland, argued the cause and filed the petition on behalf of petitioner on review. John T. Bagg, Asst. Atty. Gen., Salem, argued the cause on behalf of respondent on review. With him on the briefs were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. DURHAM, Justice. The issue in this case is whether the trial court properly enjoined the Oregon Government Ethics Commission[1] (Commission) from investigating petitioner, a state representative, for an alleged violation of the "Code of Ethics," set forth in ORS 244.040. The Court of Appeals held that the trial court improperly enjoined the investigation, because the trial court applied the wrong standard in determining whether the Commission had authority to conduct the investigation and improperly assessed the weight of the evidence before the Commission at the pre-investigation stage. Brian v. Oregon Government Ethics Commission, 126 Or. App. 358, 868 P.2d 1359 (1994). We affirm the decision of the Court of Appeals. The Commission is responsible for enforcing prohibitions on the conduct of certain public officials, as provided in ORS chapter 244.[2] Petitioner is subject to the Commission's authority because he is a "legislative official"[3] and a "public official,"[4] as those terms are defined by the statute. ORS 244.260 divides the Commission's investigation process into various "phases." The first phase, called the "preliminary review phase," begins either on the filing of a written complaint by any person or at the Commission's own instigation. ORS 244.260(1).[5] The purpose of the "preliminary review phase," which may not last more than 90 days, ORS 244.260(6),[6] is to determine *652 whether sufficient evidence exists to warrant an investigation. Before the Commission may proceed to the second phase, the investigation, ORS 244.260(1) requires that the Commission "make a finding that there is cause to undertake an investigation." The term "cause" is defined in ORS 244.260(9): On February 25, 1992, the Commission found that it had "cause," within the meaning of ORS 244.260(9), to investigate petitioner for an alleged violation of ORS 244.040(1) and (2).[7] That finding was based on evidence that petitioner had received a $10,000 check from Seiyu International Corporation (Seiyu) and that Seiyu had given petitioner the choice of how to allocate the funds "between his re-election campaign and compensation to him for future services to be rendered." The source of the evidence was a sworn statement by petitioner in a separate proceeding. Petitioner responded to the allegation at the Commission's meeting on April 9, 1992. Petitioner explained that he had allocated $2,500 of the $10,000 check toward his re-election campaign and that the remaining $7,500 was compensation for his efforts, undertaken after receiving the check, in assisting Seiyu to obtain refinancing for real estate that it had purchased earlier. Petitioner did not submit any documentation, such as a fee agreement or consulting contract, to support his contention that the $7,500 was compensation. He denied that any portion of the $10,000 was a gift. At the end of the meeting, a motion to dismiss the investigation failed on a tie vote, and the Commission voted to postpone the matter for one month. On April 15, 1992, petitioner filed in the circuit court a petition for judicial review of the Commission's February 25, 1992, order finding "cause" to investigate him. Petitioner sought, among other things, a preliminary injunction barring the Commission from continuing the investigation, on the ground that the Commission was "proceeding without probable cause," under ORS 183.480(3), when it found "cause" to investigate him, on February 25, 1992. The circuit court orally granted the preliminary injunction on May 7, 1992, and entered an injunction order on May 29, 1992, stating that the Commission lacked a "reasonable suspicion" that the funds were anything other than a campaign contribution and compensation for services rendered. The Commission held a telephonic meeting on May 26, 1992, to discuss the issuance of the preliminary injunction. The Commission understood the trial court's order to allow the Commission to continue with the "preliminary review phase" of its investigation. Although it lacked additional evidence that petitioner had violated ORS 244.040, the Commission nevertheless passed a second motion, finding "cause" to investigate petitioner, and also passed a motion to move from an investigation to a contested case proceeding, charging *653 petitioner with a violation of ORS 244.040(1). The trial court issued a second preliminary injunction on June 15, 1992, and a permanent injunction on October 6, 1992, barring the Commission from investigating petitioner any further. The court found that, on May 26, 1992, the Commission continued to lack a "reasonable suspicion" to believe that petitioner had violated ORS 244.040(1) or (2). The court also concluded that, even if the Commission did have "cause" to investigate petitioner on May 26, 1992, its action was untimely under ORS 244.260(6).[8] The Commission's finding of "cause" to investigate petitioner is an agency "order," as the term is defined by the Administrative Procedures Act (APA).[9] Petitioner acknowledges, however, that the finding is not a "final order," within the meaning of ORS 183.310(5)(b).[10] ORS 183.480(3) precludes judicial review of agency orders, other than final orders, "except upon showing that the agency is proceeding without probable cause, or that the party will suffer substantial and irreparable harm if interlocutory relief is not granted." (Emphasis added.) The APA does not define the phrase "proceeding without probable cause." The Court of Appeals construed the phrase as meaning "without a reasonable basis for the action or inaction." Brian, 126 Or.App. at 363, 868 P.2d 1359 (quoting Mongelli v. Oregon Life and Health Guaranty, 85 Or.App. 518, 524, 737 P.2d 633 (1987)). Accordingly, the Court of Appeals held that the proper inquiry, in assessing whether the Commission was "proceeding without probable cause," is to consider "whether the Commission had a reasonable or a substantial, objective basis for believing that [petitioner] may have violated ORS 244.040." Brian, 126 Or.App. at 364, 868 P.2d 1359 (emphasis in original). The court held that the evidence before the Commission permitted the inference that petitioner may have violated ORS 244.040 and that, therefore, the Commission had a reasonable basis for proceeding with an investigation. Id. Petitioner argues that the Court of Appeals erroneously infused the "without probable cause" standard of ORS 183.480(3) into the definition of "cause" in ORS 244.260(9). According to petitioner, in determining whether the Commission was "proceeding without probable cause," the court should have considered whether the Commission was proceeding in the absence of facts or circumstances that would lead a reasonably prudent person to believe that petitioner had violated ORS 244.040. In discerning what the legislature meant by the phrase "proceeding without probable cause," in ORS 183.480(3), we begin by examining the statute's text and context. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (describing methodology for statutory construction). In interpreting the text of a statutory provision, we consider "rules of construction that bear directly on the interpretation of the statutory provision in context," including the "well-established rule * * * that words in a statute that have a well-defined legal meaning are to be given that meaning in construing the statute." Gaston v. Parsons, 318 Or. 247, 253, 864 P.2d 1319 (1994) (citations omitted). *654 The legislature first authorized judicial review of nonfinal agency orders, "upon showing that the agency is proceeding without probable cause," as part of the 1971 amendments to the APA. See Or.Laws 1971, ch. 734, § 18.[11] As we noted in our recent decision in State v. Matthews, 320 Or. 398, 403 n. 3, 884 P.2d 1224 (1994), we may look to the constitutional standard of "probable cause" because, in 1971, the legislature had not defined "probable cause," as the term is used in ORS 183.480(3). In 1971, the term "probable cause" had a settled meaning in the criminal context. In State v. Jones, 248 Or. 428, 435 P.2d 317 (1967), the court explained that "probable cause" to arrest "is the existence of circumstances which would lead a reasonably prudent [person] to believe in the guilt of the arrested party. Mere suspicion or belief, unsupported by facts or circumstances, is insufficient." 248 Or. at 432, 435 P.2d 317 (citing State v. Duffy et al., 135 Or. 290, 295 P. 953 (1931)).[12] Under ORS 183.480(3), a court must determine whether the agency "is proceeding without probable cause" when it issues the challenged "order." Applying the settled definition of "probable cause" in this context, we conclude that an agency has "probable cause" to proceed, i.e., to issue the "order" in question, if the facts and circumstances provide an objectively reasonable basis for the agency to proceed.[13] In assessing whether an agency "is proceeding without probable cause," a reviewing court should not give deference to the agency's determination that it has an objectively reasonable basis to proceed. The determination of "probable cause" is a legal question for the court. Gustafson v. Payless Drug Stores, 269 Or. 354, 357, 525 P.2d 118 (1974). To determine whether a particular agency has an objectively reasonable basis to proceed, the reviewing court must look to the legislature's delegation of authority to the agency whose action is challenged. In this case, the Commission's authority "to proceed" with an investigation is constrained by the requirement, in ORS 244.260(1), that it must have "cause" to investigate. In determining whether the Commission had "probable cause to proceed," the proper inquiry, therefore, is whether the Commission had an objectively reasonable basis for concluding that it had "cause," within the meaning of ORS 244.260(1), to investigate petitioner. We next must discern what the legislature meant by the term "cause." Again, we begin with the text and context of the statutory definition. ORS 244.260(9) defines "cause" to mean When interpreting a statutory provision, we typically give words of common usage their plain, natural, and ordinary meaning. PGE, 317 Or. at 611, 859 P.2d 1143. The dictionary defines the word "substantial" to mean, as pertinent, "having a solid or firm foundation: soundly based: carrying weight," or "considerable in amount." Webster's Third *655 New Int'l Dictionary 2280 (unabridged 1993). The term "substantial" may thus refer to the quantity or quality of the noun that it modifies. Read in context, the term "substantial," in ORS 244.260(9), refers qualitatively to the Commission's "basis" for believing that an accused "may" have committed an offense or violation. The word "objective," read in context, means: "expressing or involving the use of facts without distortion by personal feelings or prejudices." Webster's at 1556. Read together, the phrase "substantial, objective basis" means a basis that is rooted in evidence with a "solid or firm foundation" and that does not derive from facts "distort[ed] by personal feelings or prejudices." Petitioner contends that the term "cause" in ORS 244.260(9) controls the Commission's determination regarding its investigation and does not affect the court's "probable cause" determination under ORS 183.480(3). In addition, petitioner argues that the APA requires a showing of probable guilt of a violation, whereas the term "may" in ORS 244.260(9) arguably authorizes the Commission to investigate on the basis of virtually any evidence of, or even mere speculation about, a violation. Petitioner's proposed construction regarding the court's authority seems unlikely, because ORS 183.480(3) necessarily requires inquiry into the Commission's authority to investigate a potential violation. Logically, a determination that certain facts justify commencement of an investigation should not depend on a showing, before the investigation, of probable guilt of a violation. Nevertheless, because text and context are not entirely conclusive, we look to legislative history for guidance regarding the legislature's intent. See PGE, 317 Or. at 612, 859 P.2d 1143 (court looks to legislative history if text and context do not make legislature's intent clear). The definition of "cause," in ORS 244.260(9), was enacted as part of the 1991 amendments to the statute. Or. Laws 1991, ch. 272, § 1; Or. Laws 1991, ch. 770, §1a. Before 1991, the statute required the Commission to make a finding of "probable cause" before commencing an investigation. ORS 244.260(1) (1989). The legislature did not define the term "probable cause." In 1991, several bills were introduced in the Oregon Senate to amend the government ethics law. They were referred to the Senate Committee on Government Operations. During a public hearing held on January 21, 1991, several committee members expressed a desire that the bills provide a definition of the term "probable cause." Following the hearing, Senate staff members drafted the following definition, as part of Senate Bill 292: At a work session held on February 15, 1991, Gayle Ryder, the Senior Committee Administrator, discussed the definition before the Senate Government Operations Committee: Senator Jim Bunn objected to the suggestion that the term "probable cause" be replaced with a less stringent standard of "cause." He stated: Senator Tricia Smith responded: Senator Smith later moved that the term "probable cause," as used throughout SB 292, be replaced with the term "cause" and that the term be defined as "a reasonable objective basis to believe that an offense or violation may have been committed and the person to be investigated may have committed the offense or violation." The motion passed. On February 20, 1991, the Senate Government Operations Committee held a work session on SB 292. Senator Bunn proposed amending the bill to replace the term "cause" with "probable cause" and to leave the term undefined. He explained: Senator Jane Cease responded: Senator Bunn countered: Senator Smith then stated: The Committee rejected Senator Bunn's proposed amendment and voted to send SB 292 to the Senate floor with a do-pass recommendation. Senator Bunn prepared a minority report, which substituted the term "probable cause" for "cause" and omitted any definition of the term. On the floor, the Senate rejected a motion to substitute the minority report for the majority report and passed SB 292 on March 4, 1991. Following the Senate's passage of SB 292, that bill, along with related measures amending the government ethics law, were transmitted to the House of Representatives and were referred to the House Committee on Legislative Rules and Reapportionment. The committee held a public hearing on May 22, 1991. John DiLorenzo, a lawyer testifying on his own behalf, urged the committee to amend the bill to replace the term "cause" with "probable cause" and to omit the definition, as Senator Bunn had previously attempted to do. DiLorenzo's efforts failed. *657 On May 24, 1991, the committee held a public hearing on SB 296, an omnibus bill that incorporated SB 292 and elements of the other bills amending the government ethics law. Representative Ray Baum stated that he was "happy" with the language defining "cause." He explained: On June 18, 1991, the legislature enacted SB 296, including the incorporated elements of SB 292 relating to "cause." The statute's legislative history reveals that the legislature understood that, by amending the statute to substitute the term "cause" for "probable cause," and by enacting the definition in ORS 244.260(9), it was imposing a less stringent standard on the Commission, at the pre-investigation stage, than had existed before the amendments. The legislature understood that, by using the term "may" in the definition of "cause," it was imposing a "soft" standard on the Commission at the pre-investigation stage. In the light of the statute's legislative history, we conclude that the Court of Appeals correctly held that, on February 25, 1992, the Commission had an objectively reasonable basis to support its finding of "cause" to investigate petitioner for a possible violation of ORS 244.040(1) and (2).[14] The evidence before the Commission, that petitioner received a $10,000 check from Seiyu and that he was given the unfettered choice of how to allocate the funds between his re-election campaign and compensation for future services to be rendered, provided an objectively reasonable, factual basis for the Commission to conclude that it had "cause," within the meaning of ORS 244.260(9), to investigate whether petitioner had violated ORS 244.040(1) and (2). The evidence indicated that petitioner may have used his "official position or office to obtain financial gain," ORS 244.040(1), and that petitioner may have received a "gift * * * with an aggregate value in excess of $100 from any single source," ORS 244.040(2). That evidence was "substantial" in that it had a "solid or firm foundation," stated in petitioner's sworn statement about facts relevant to the elements of the charges under investigation, and it was "objective" in that it described facts, not mere feelings or conclusions, regarding conduct about which the witness had personal knowledge. Petitioner argues that his receipt of the $10,000 check from Seiyu cannot constitute an unlawful "gift," under ORS 244.040(2), because he reasonably could not have known that Seiyu had a "legislative or administrative interest," as defined by ORS 244.020(12): "`Legislative or administrative interest' means an economic interest, distinct from that of the general public, in one or more bills, resolutions, regulations, proposals or other matters subject to the action or vote of a person acting in the capacity of a public official." (Emphasis added.) At its meeting on April 9, 1992, the Commission's executive director, L. Patrick Hearn, explained the basis for the Commission's *658 February 25, 1992, determination that Seiyu had a "legislative or administrative interest": Assistant Attorney General Twist elaborated: Petitioner contends that the Commission cannot rely on that evidence because the size of a company's assets does not give it an economic interest in legislation that is distinct from that of the general public. He relies on Caragol v. Oregon Government Ethics Commission, 98 Or.App. 593, 600, 780 P.2d 751 (1989), and the Commission's conclusion in another case that an Oregon corporation with assets exceeding $4.9 billion did not have a "legislative or administrative interest," that was distinct from that of the general public, within the meaning of ORS 244.020(12). Those authorities are not persuasive, because they concerned final determinations regarding alleged violations of ORS chapter 244, not a determination whether "cause" existed to investigate a potential violation. We conclude that the evidence before the Commission on February 25, 1992, provided an objectively reasonable basis for the Commission to conclude that Seiyu may have had a "legislative or administrative interest," within the definition in ORS 244.020(12). Petitioner also argues that we should uphold the injunction on the alternative ground that, under ORS 183.480(3), he "will suffer substantial and irreparable harm if interlocutory relief is not granted." The circuit court did not find that petitioner proved the existence of such harm. In any event, we reject that argument, because we agree with the Court of Appeals that the types of harm on which petitioner relies, e.g., damage to reputation that attends a lawful Commission investigation, "are inherent incidents of the open and public administrative process that the legislature has created in connection with the ethics laws," Brian, 126 Or.App. at 364, 868 P.2d 1359, and that, if harms of that kind could prevent an agency from lawfully investigating a potential violation, the exception provided by ORS 183.480(3) would swallow the rule requiring a final order to invoke jurisdiction for judicial review. We hold that the trial court improperly enjoined the investigation. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed. [1] The Oregon Government Ethics Commission is now known as the Oregon Government Standards and Practices Commission. Or. Laws 1993, ch. 743, § 32. [2] In this opinion, we refer, in both present and past tenses, to the 1991 version of chapter 244, which was in effect when the Commission acted in this case. That chapter was amended by Oregon Laws 1993, chapter 743. Those amendments are not at issue in this case. [3] ORS 244.020(13) (1991) defined "legislative official" to mean, among other things, "any member * * * of the Legislative Assembly." [4] ORS 244.020(16) (1991) provided: "`Public official' means any person who is serving the State of Oregon or any of its political subdivisions or any other public body of the state as an officer, employee, agent or otherwise, and irrespective of whether the person is compensated for such services." [5] ORS 244.260(1) (1991) provided: "Upon its own instigation or signed complaint of any person, the commission may make investigations with respect to statements filed under this chapter or resolution adopted pursuant thereto, alleged failure to file any required statement, or any other alleged violation of any provision of this chapter, and shall report findings together with supporting reasons. The public official who is the subject of a complaint or of the commission's own action shall be notified immediately upon receipt of the complaint or upon adoption of a motion by the commission to undertake any action concerning the public official. The notice shall be given by telephone if the official can be reached and shall also be in writing mailed to the official. The notice shall include the nature of the complaint or motion. Before investigating any complaint or an investigation on its own instigation, the commission shall make a finding that there is cause to undertake an investigation, notify the public official who is the subject of the investigation, identify the issues to be investigated and shall confine its investigation to those issues. If the commission finds reason to expand its investigation, it shall move to do so and shall record in its minutes the issues to be investigated before expanding the scope of its initial investigation and formally notify the complainant and the public official who is the subject of the complaint of the expansion and the scope thereof. If the commission does not make a finding of cause, it shall dismiss the complaint or rescind its motion and shall formally enter the dismissal or rescission on its records. The commission shall notify the public official of the dismissal or rescission. After dismissal or rescission, the commission shall take no further action involving the public official unless a new and different complaint is filed or action at its own instigation is undertaken based on different conduct." [6] ORS 244.260(6) (1991) provided, in part: "The period of time from the filing of a complaint or from acting on the commission's own instigation to the finding of cause or dismissal of the complaint or rescission of the motion shall be termed the Preliminary Review Phase and shall not exceed 90 days unless a delay is stipulated to by both the public official and the Oregon Government Ethics Commission with the commission reserving a portion of the delay period to complete its actions." [7] ORS 244.040(1) and (2) (1991) provided: "The following actions are prohibited regardless of whether potential conflicts of interest are announced or disclosed pursuant to ORS 244.120: "(1) No public official shall use official position or office to obtain financial gain for the public official, other than official salary, honoraria or reimbursement of expenses, or for any member of the household of the public official, or for any business with which the public official or a member of the household of the public official is associated. "(2) No public official or candidate for office or a member of the household of the public official or candidate shall solicit or receive, whether directly or indirectly, during any calendar year, any gift or gifts with an aggregate value in excess of $100 from any single source who could reasonably be known to have a legislative or administrative interest in any governmental agency in which the official has or the candidate if elected would have any official position or over which the official exercises or the candidate if elected would exercise any authority." [8] The trial court found that the Commission's finding of "cause" on May 26, 1992, was untimely, because the Commission had commenced the "Preliminary Review Phase" of its investigation on or before February 18, 1992, and, under ORS 244.260(6), the Commission was required to complete that phase by May 18, 1992. [9] ORS 183.310(5)(a) (1991) provided, in part: "`Order' means any agency action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of an agency. `Order' includes any agency determination or decision issued in connection with a contested case proceeding." [10] ORS 183.310(5)(b) (1991) provided: "`Final order' means final agency action expressed in writing. `Final order' does not include any tentative or preliminary agency declaration or statement that: "(A) Precedes final agency action; or "(B) Does not preclude further agency consideration of the subject matter of the statement or declaration." [11] Before 1971, ORS 183.420 provided, in part: "This section shall not be construed as authorizing any agency to proceed against any person unless there is reasonable cause for such action." (Emphasis added.) No provision of the APA expressly authorized a court to review whether an agency had "reasonable cause" to take action. In 1971, the legislature repealed ORS 183.420 and enacted ORS 183.480(1)(c), which permitted judicial review of a nonfinal agency order on a showing either that the agency "is proceeding without probable cause" or that "the party will suffer substantial and irreparable harm if interlocutory relief is not granted." Or. Laws 1971, ch. 734, §§ 18, 21. That provision was later re-enacted as ORS 183.480(3). Or. Laws 1975, ch. 759, § 14. The legislature has amended ORS 183.480(3) in other respects that are not at issue in this case. [12] The legislature has since defined "probable cause," in the context of an arrest, as "a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it." ORS 131.005(11). [13] This understanding of the term "probable cause" also comports with this court's interpretation of the term in another, noncriminal context. In Broyles v. Brown, 295 Or. 795, 800, 671 P.2d 94 (1983), this court construed the phrase "probable cause for appeal," as used in ORS 19.160, to mean an "objective legal basis for the appeal." [14] Because we conclude that the Commission had "probable cause," within the meaning of ORS 183.480(3), to proceed on February 25, 1992, we need not address petitioner's argument that the Commission's second finding of "cause," on May 26, 1992, was untimely. If the Commission properly found "cause" to investigate petitioner on February 25, 1992, there was no need for the Commission to make a second finding of "cause" on May 26, 1992. Because we do not reach the issue of the untimeliness of the Commission's May 26, 1992, order finding "cause," we also need not address the Court of Appeals' implicit holding that such a claim of untimeliness is not reviewable under ORS 183.480(3). Brian, 126 Or.App. at 364-65, 868 P.2d 1359.

c42ae1d4c74079849fa8634ff78efe7851b6cc0f5e84023400f34d4ac13b5c99

1995-03-30T00:00:00Z

6f2e2e24-87a3-4513-bc28-534cef8ebcf7

Hampton Tree Farms, Inc. v. Jewett

320 Or. 599, 892 P.2d 683

oregon

Oregon Supreme Court

892 P.2d 683 (1995) 320 Or. 599 HAMPTON TREE FARMS, INC., Petitioner on Review, v. Kate W. JEWETT, Personal Representative of the Estate of William W. Jewett, Deceased, and Erickson Hardwood Company, Respondents on Review. Daniel A. ERICKSON, Appellant, v. John C. HAMPTON and Diamond Wood Products, Inc., an Oregon corporation, Respondents. CC 9004-02368; CA A70222; SC S41148. Supreme Court of Oregon. Argued and Submitted November 3, 1994. Decided March 30, 1995. *685 Jeffrey M. Batchelor, of Lane Powell Spears Lubersky, Portland, argued the cause for petitioner on review. With him on the petition was David G. Hosenpud, Portland. John L. Langslet, of Martin, Bischoff, Templeton, Langslet & Hoffman, Portland, argued the cause for respondents on review Erickson Hardwood Co., and Kate W. Jewett and Daniel A. Erickson. With him on the responses was Julie K. Bolt, Portland. VAN HOOMISSEN, Justice. Plaintiff, Hampton Tree Farms, Inc. (Hampton), seeks review of a Court of Appeals decision reversing the trial court's grant of Hampton's motion for summary judgment as to the counterclaims of defendant Erickson Hardwood Company (EHC).[1]Hampton Tree Farms, Inc. v. Jewett, 125 Or.App. 178, 865 P.2d 420 (1993). The issue is whether the trial court correctly determined that there is no genuine issue as to any material fact on EHC's claims and that Hampton is entitled to a judgment as a matter of law. ORCP 47 C. For the reasons that follow, we affirm the decision of the Court of Appeals. EHC owned a lumber and pallet manufacturing plant in Garibaldi and another plant and dry kilns in Grande Ronde. Hampton was EHC's major supplier of logs, which were essential to EHC's pallet industry. In February 1986, William Jewett obtained for Hampton's benefit an irrevocable letter of credit as security for logs sold by Hampton to EHC. The letter required the issuing bank to make immediate payment to Hampton *686 of up to $100,000 if EHC's debt to Hampton became more than 11 days overdue. EHC's account was more than 11 days overdue most of the time, but Hampton did not draw on the letter of credit. Jewett extended and increased the letter of credit several times. By the fall of 1987, EHC owed Hampton over $300,000. Hampton was unwilling to continue supplying logs to EHC without further assurance that EHC would pay its debt. In October 1987, in order to induce Hampton to continue selling logs to EHC, Erickson and Jewett signed a guaranty agreement in favor of Hampton. That agreement provided that Erickson and Jewett jointly and severally guaranteed prompt payment to Hampton "at maturity of every note, check, loan, advance, contract for payment of logs and all other claims or indebtedness for which [EHC] is now liable or shall become liable to Hampton in the future." The guaranty was "continuing." It was to "remain in full force until revoked." Erickson and Jewett also agreed that, in the event of EHC's default, they personally would "pay on demand all sums due and to become due." In December 1987, EHC filed for protection under Chapter 11 of the Bankruptcy Code. Hampton continued to supply EHC with logs, and EHC's debt grew to $810,000. In February 1988, Hampton prepared an order for approval by the bankruptcy court, containing the following terms: Hampton would continue to supply logs to EHC and, in return, Hampton would be given a post-petition first-priority security interest and lien on the logs, products, accounts, and proceeds from the sale of the products. The proposed order also provided that EHC would give Hampton projected operating cash flow budgets, weekly invoices, and monthly financial reports; that a separate account would be established for deposit of cash proceeds of Hampton's collateral; that Hampton would receive at least 40 percent of the funds deposited in the account; that, if that amount was insufficient to pay outstanding balances, then EHC would pay more, so that no invoices would be over 30 days old; and that Hampton's approval was required for any purchase by EHC over $2,000. Hampton and EHC signed the proposed order. Also in February 1988, Jewett replaced the letter of credit with a $250,000 certificate of deposit, issued in Jewett's and Hampton's names jointly, subject to the terms of a pledge agreement that gave Hampton the sole right to redeem the certificate in the event of EHC's default. In July 1988, Smith, Hampton's vice-president, wrote a letter "To Whom it May Concern," stating in part: EHC's Chapter 11 reorganization was confirmed by the bankruptcy court in November 1988. The plan indicated that EHC had secured a steady supply of logs from Hampton and that Hampton had "agreed to supply the logs and to receive payments only after the Debtor [EHC] is paid for the finished product." John Hampton understood the plan to require Hampton to purchase logs from outsiders for EHC's use should Hampton be unable to meet EHC's requirements. All parties understood that the success of the plan was contingent on Hampton's continuing to supply logs to EHC, because EHC had no other source of logs. John Hampton told Jewett that he believed that EHC was a viable business and, in reliance on that statement, Jewett increased the amount of his guaranty. EHC and Hampton worked together closely, and financial statements show that, by the spring of 1989, EHC's income exceeded its expenses and its debts were diminishing. By May 1989, EHC had significantly reduced its debt to Hampton. However, EHC still owed Hampton more than $600,000. Hampton became concerned about the ratio of EHC's inventory to its receivables. During *687 a meeting with Erickson and Jewett, John Hampton stated that Hampton would require additional security. When asked if Hampton would renege on its agreement to supply logs to EHC, John Hampton said that it would not. The parties then agreed to additional security, and EHC agreed to increase the percentage of its receivables to be paid to Hampton. At that same meeting, John Hampton suggested that EHC should sell its Garibaldi mill. Erickson and Jewett agreed that John Hampton would "explore the market" and report back to them. John Hampton stated that he would assure potential buyers of the mill that Hampton would continue to supply logs to EHC and that no shutdown of the mill was anticipated. In June 1989, John Hampton told Jewett that a deal had been made to sell the mill to Diamond Wood Products (Diamond). Later, John Hampton told Erickson that he had sold the mill to Diamond for $2.5 million. Erickson pleaded with John Hampton not to sell, arguing that the mill was becoming profitable and would succeed. John Hampton responded that EHC should seek outside financing, because Hampton was unwilling to continue supplying logs to EHC on the previously agreed terms. That same month, Hampton began reducing the supply of logs to EHC. Erickson thereafter met with potential investors who expressed an interest in purchasing lumber from EHC and in providing financing. Erickson told them that he needed to consult with John Hampton, because Hampton was EHC's sole supplier of logs. Erickson met with John Hampton, who refused to agree to the arrangement with the potential investors. John Hampton again told Erickson that the mill had been sold to Diamond, that Diamond would get all of Hampton's logs, and that Erickson should discontinue seeking outside financing. In July 1989, John Hampton met with Diamond to negotiate the details of the sale of EHC's mill. EHC was not informed of that meeting. John Hampton proposed that Diamond buy the mill for $1.5 million in cash and the release of Erickson and Jewett from their guarantees, and that a payment of $1 million be made later. John Hampton prepared a memorandum of understanding that included those terms, which Diamond's president signed. Diamond thereafter made a counterproposal, which it presented to John Hampton at another meeting. EHC was not informed of that meeting. Diamond's counterproposal reflected Diamond's concern that EHC's creditors would continue to have liens on EHC's equipment after the sale. Diamond proposed, therefore, that EHC should petition the bankruptcy court for modification of its reorganization plan, to require liquidation following acceptance of Diamond's offer to buy the Garibaldi mill for $800,000, or its offer to buy both the Garibaldi and the Grande Ronde mills for $1,200,000. Under Diamond's counterproposal, all but one of EHC's secured creditors would have been paid. Diamond also indicated to John Hampton that Diamond might just wait for EHC to collapse, hoping to acquire EHC's assets at a lower price. Hampton continued to assure EHC that a sale to Diamond would go through.[2] Because of his experience, John Hampton knew, or should have known, that the mill had more value if it was operating than if it was closed. Because Hampton controlled EHC's log supply, EHC, Jewett and Erickson were forced to agree to sell the mill and other assets and to drop their negotiations with the potential investors. In July 1989, an earnest money agreement was executed by Diamond, EHC, Erickson, and Jewett, which provided that Diamond would pay $1,400,000 for the mills at Garibaldi and Grande Ronde, with a further payment of $900,000 to be made at a future date. The agreement contained in the earnest money agreement differed from the prior proposal of John Hampton and from Diamond's counterproposal. Thereafter, without explanation to EHC, Hampton discontinued supplying logs to EHC. By August 1, 1989, EHC closed its Garibaldi mill due to a lack of logs. *688 In early August 1989, Diamond notified EHC that it would not close the sale as agreed but, instead, proposed to buy the Garibaldi mill for $700,000, on condition that EHC release any claim that it might have against Diamond. EHC rejected that offer, telling Diamond that EHC might consider selling the Garibaldi mill for $700,000 if Diamond would represent that it had not acted alone or in concert with John Hampton to harm EHC. Diamond did not respond. In September 1989, Erickson met with his lawyers to discuss potential claims against Hampton and Diamond. In October 1989, John Hampton advised Jewett of his intention to redeem the certificate of deposit. That same month, EHC's creditors declared a default, and EHC's Chapter 11 reorganization was converted to a Chapter 7 liquidation. EHC thereafter moved in bankruptcy court to dismiss the Chapter 7 case, stating: None of EHC's creditors opposed the dismissal. In November 1989, the bankruptcy court dismissed the case without prejudice. Several days before the dismissal was ordered, EHC's lawyers recommended that EHC bring claims against Hampton for breach of contract and breach of fiduciary duty. In February 1990, the Small Business Administration sold both mills to Diamond for $210,000. Since that time, Hampton has supplied logs to Diamond. In April 1990, Hampton filed this action to enforce the guaranty and pledge agreement made by Jewett. The trial court granted Jewett's motion to have EHC and Daniel Erickson joined as defendants, pursuant to ORCP 29A.[3] In July 1990, EHC, Erickson, and Jewett filed counterclaims against Hampton for breach of contract to sell the mill and to supply logs, breach of the duty of good faith and fair dealing, breach of fiduciary duty, and negligence. Hampton moved for summary judgment on all of EHC's claims, arguing that, in the light of EHC's representation to the bankruptcy court that it had no assets other than those pledged as collateral to the Small Business Administration, EHC should be "judicially estopped" from asserting any of its claims against Hampton. Alternatively, Hampton argued that there were no genuine issues of material fact on any of EHC's claims and that Hampton was entitled to judgment as a matter of law. On the basis of the record before it, the trial court granted summary judgment to Hampton on EHC's claims, on the ground that EHC was judicially estopped from asserting them because, before securing a dismissal of its Chapter 7 liquidation, EHC had represented to the bankruptcy court that it had no assets, knowing that it intended to assert claims against Hampton. The trial court ruled that the claims of Jewett and Erickson were derivative and that they were likewise barred. Hampton's breach of guaranty claim against Jewett *689 went to trial and resulted in a jury verdict for Hampton.[4] EHC, Erickson, and Jewett appealed, arguing that the trial court erred in granting summary judgment on their claims and in failing to grant their motion for a directed verdict on Hampton's claim. Hampton cross-appealed, arguing that the trial court erred in failing to award it attorney fees, because it prevailed on EHC's counterclaims. The Court of Appeals determined that the doctrine of judicial estoppel was not applicable to bar EHC from asserting claims, because Hampton had not shown that EHC had benefited by the dismissal of EHC's bankruptcy proceeding.[5] The court also determined that Hampton had not shown that it had relied to its detriment on the position taken by EHC in the bankruptcy proceeding. Hampton Tree Farms, 125 Or.App. at 186-89, 865 P.2d 420. The court concluded that there were genuine issues of material fact regarding each of EHC's claims and, therefore, that Hampton was not entitled to summary judgment. Id. at 189-93, 865 P.2d 420. Accordingly, the court remanded the case to the trial court for further proceedings. Id. at 198, 865 P.2d 420.[6] Hampton petitioned this court for review, arguing that the Court of Appeals erred in holding that judicial estoppel did not bar EHC's claims and in holding that Hampton was not entitled to summary judgment on EHC's claims. We allowed review and first consider the issue of judicial estoppel. Hampton contends that the Court of Appeals erred in not applying the doctrine of judicial estoppel to EHC's claims. Hampton argues that the Court of Appeals erroneously concluded that judicial estoppel depends for its application on a showing that one party benefited from its representations to the first tribunal and that the other party "detrimentally relied" on the first party's prior representation. Judicial estoppel is a common law equitable principle that has no single, uniform formulation in the several jurisdictions in which it has been recognized. See generally Note, Judicial Estoppel: The Refurbishing of a Judicial Shield, 55 Geo Wash L Rev 409 (1987) (summarizing approaches used by courts). The purpose of judicial estoppel is "to protect the judiciary, as an institution, from the perversion of judicial machinery." Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982). The doctrine may be invoked under certain circumstances to preclude a party from assuming a position in a judicial proceeding that is inconsistent with the position that the same party has successfully asserted in a different judicial proceeding. See generally Caplener v. U.S. National Bank, 317 Or. 506, 516, 857 P.2d 830 (1993) (stating principle); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 417 (3d Cir.) cert. den. 488 U.S. 967, 109 S. Ct. 495, 102 L. Ed. 2d 532 (1988) (same).[7] Some courts have stated that judicial *690 estoppel should apply when a litigant "is playing fast and loose with the courts." Sandstrom v. Chemlawn Corp., 904 F.2d 83, 87-88 (1st Cir.1990) (citing Scarano v. Central R.R., 203 F.2d 510 (3d Cir.1953)); Grant v. Lone Star Co., 21 F.3d 649, 651 n. 2 (5th Cir.) cert. den. ___ U.S. ___, 115 S. Ct. 574, 130 L. Ed. 2d 491 (1994); Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 121-22 (3d Cir. 1992) (judicial estoppel is intended to protect the courts rather than the litigants) cert. den. ___ U.S. ___, 113 S. Ct. 1645, 123 L. Ed. 2d 267 (1993); Rockwell Intern. v. Hanford Atomic Metal Trades, 851 F.2d 1208, 1210 (9th Cir.1988) (same). Other courts have said that judicial estoppel should be used only to preclude a party from taking an inconsistent position in a later proceeding if that party has "received a benefit from the previously taken position in the form of judicial success." Water Technologies Corp. v. Calco, Ltd., 850 F.2d 660, 665 (Fed.Cir.) cert. den. 488 U.S. 968, 109 S. Ct. 498, 102 L. Ed. 2d 534 (1988). See Bates v. Long Island R. Co., 997 F.2d 1028, 1038 (2d Cir.) (the prior inconsistent position must have been adopted by the court in some manner) cert. den. ___ U.S. ___, 114 S. Ct. 550, 126 L. Ed. 2d 452 (1993); Edwards, 690 F.2d at 599 (judicial estoppel cannot be applied in a subsequent proceeding unless a party has successfully asserted an inconsistent position in a prior proceeding); Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C.Cir.1980) (success in the prior proceeding is an essential element of judicial estoppel); see also Comment, Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel, N.W.U.L.Rev. 1244 (1986) (favoring "prior success" rule). In this case, the Court of Appeals concluded that an essential component of the defensive application of judicial estoppel is that the party sought to be estopped must have benefited as a result of its earlier assertion of an inconsistent position in a different judicial proceeding. Hampton Tree Farms, 125 Or. App. at 188-89, 865 P.2d 420. Although this court has never specifically stated that the party sought to be estopped must have benefited as a result of its earlier assertion of an inconsistent position taken in a different judicial proceeding, in the only case in which this court has discussed the doctrine of judicial estoppel, Caplener, this court considered the fact that the party sought to be estopped had benefited from its prior inconsistent position in a different judicial proceeding. In Caplener, the party against whom judicial estoppel was asserted had its debts discharged in bankruptcy. Caplener, 317 Or. at 509, 857 P.2d 830. The issue was whether that party's underdisclosure in bankruptcy court of its state court claims against one of its creditors precluded the party from later increasing the amount of those claims in a civil action. This court stated: Thus, the party being estopped in Caplener had benefited as a result of its earlier assertion of an inconsistent position taken in the bankruptcy court, first by being able to obtain interim financing, and later by having all its debts discharged without disclosure of its $11 million claim against the bank. Notwithstanding, in Caplener, this court made no attempt to formulate the general principles of the doctrine of judicial estoppel. *691 We now turn to the specifics of the present case to determine whether Hampton properly may assert the affirmative defense of judicial estoppel. That inquiry involves three issues: benefit in the earlier proceeding, different judicial proceedings, and inconsistent positions. The Court of Appeals concluded that the doctrine of judicial estoppel should not be applied in this case. First, the court was not persuaded that EHC's position in bankruptcy court was necessarily inconsistent with its position in this case. 125 Or. App. at 188, 865 P.2d 420. Second, the court was not persuaded that EHC had benefited as a result of the court's dismissal without prejudice of the bankruptcy proceeding. 125 Or.App. at 188-89, 865 P.2d 420. We can find no evidence in the record from which the trial court could have concluded as a matter of law that EHC obtained any benefit by having its Chapter 7 proceeding dismissed without prejudice. The dismissal of its Chapter 7 proceeding without prejudice did not discharge EHC's debts, and it provided EHC with no protection from enforcement of its creditors' claims. In fact, it would appear that EHC only increased its exposure to its creditors by leaving the protective cloak of bankruptcy. Compare Caplener, 317 Or. at 509, 857 P.2d 830 (debts of party being judicially estopped had been discharged in bankruptcy). Because we conclude that Hampton has not shown that EHC benefited in the bankruptcy proceeding, we need not determine whether the Court of Appeals correctly determined that Hampton had not shown that EHC's position in the bankruptcy proceeding was "inconsistent" with its position in this case. Accordingly, we hold that the trial court erred in granting summary judgment for Hampton on EHC's claims on the ground that EHC was judicially estopped from bringing those claims. Before proceeding to consider the trial court's summary judgment rulings on their merits, we note that in dictum the Court of Appeals recognized a requirement that the party raising judicial estoppel as an affirmative defense must also show "that it relied to its detriment on the position taken by the other party in the earlier proceeding." Hampton Tree Farms, 125 Or.App. at 187, 865 P.2d 420. Although this court in Caplener considered the fact that the bank would not have offered interim financing in the bankruptcy had the Capleners' claim been fully disclosed and, thus, might be said to have "detrimentally relied" on the underdisclosure, this court did not hold in that case that detrimental reliance was a necessary component of judicial estoppel. Because judicial estoppel is primarily concerned with the integrity of the judicial process and not with the relationship of the parties, it does not depend for its application on a showing that the party raising judicial estoppel as an affirmative defense detrimentally relied on the other party's prior inconsistent position. We now specifically reject the Court of Appeals' suggestion that the party raising judicial estoppel as an affirmative defense has the burden to show that it relied to its detriment on the inconsistent position taken by the other party in the earlier judicial proceeding. See Ward Cook, Inc. v. Davenport, 243 Or. 301, 310-11, 413 P.2d 387 (1966) (plaintiff is bound by choice of a substantive right in earlier judicial proceeding and, thus, is precluded from making wholly inconsistent claim in a subsequent judicial proceeding; detrimental reliance not required); Bakker v. Baza'r, Inc., 275 Or. 245, 272 n. 15, 551 P.2d 1269 (1976) (Tongue, J., dissenting) (detrimental reliance not required); Oneida Motor Freight, Inc., 848 F.2d at 419 (judicial estoppel looks to the connection between the litigant and the judicial system, while equitable estoppel focuses on the relationship between the parties); Konstantinidis, 626 F.2d at 937 (judicial estoppel does not require proof of privity, reliance, or prejudice); 1 B., Moore's Federal Practice § 0.405[8] (1994) (a party may invoke the doctrine without having to show reliance or prejudice); Note, Judicial Estoppel: The Refurbishing of a Judicial Shield, 55 Geo.Wash.L.Rev. at 416-17 (in contrast to equitable estoppel, judicial estoppel requires neither privity, nor reliance, nor detriment). The harm to the judicial system that arises from allowing a party in a later judicial proceeding to contradict a position successfully taken in an earlier judicial proceeding arises whether or not there is any *692 detrimental reliance by another party.[8] We proceed to consider the trial court's summary judgment rulings on their merits. On review of a summary judgment, this court determines whether there was a genuine issue as to any material fact and whether the moving party was entitled to judgment as a matter of law. ORCP 47 C. In reviewing a trial court's ruling on a motion for summary judgment, this court views the evidence and all reasonable inferences to be drawn from it in the light most favorable to the nonmoving party, including all reasonable inferences of fact therefrom. On Hampton's motion for summary judgment, the burden falls on Hampton even though EHC would have had the burden of establishing its claims at the time of trial. Welch v. Bancorp Management Services, 296 Or. 713, 716, 679 P.2d 866 (1984). The record on summary judgment consists of all exhibits and depositions submitted by the parties in support of, or in opposition to, the motion for summary judgment, and that is the record that we review here. Fields v. Jantec, 317 Or. 432, 437, 857 P.2d 95 (1993). Hampton contends that the Court of Appeals erred in reversing the trial court's award of summary judgment to Hampton on EHC's claim for breach of contract to supply logs.[9] Hampton argues that its oral promise to supply logs was not sufficiently definite to result in an enforceable contract and that the indefinite duration of the agreement is fatal to its enforcement. Viewing the record on summary judgment in the light most favorable to EHC, there is evidence in the record to support EHC's claim that a contract to supply EHC with logs was formed. That evidence includes the 1988 order prepared by Hampton and presented to the bankruptcy court, Hampton's acceptance of EHC's approved Chapter 11 reorganization plan that reiterated Hampton's commitment to supply logs, and Hampton's 1988 "To Whom it May Concern" letter soliciting business for EHC. There also is evidence from which a jury could find that the alleged contract to supply logs was intended to continue until EHC had satisfied its debt to Hampton and the mill had become profitable. Moreover, in May 1989, John Hampton told EHC that Hampton would not renege on its agreement to supply logs and in return EHC agreed to increase the percentage of its receivables to be paid to Hampton and provided other security for its debt. Hampton argues in the alternative that, because no time period was specified regarding how long Hampton would supply logs, no contract exists. However, the absence of an explicit term regarding the time period of a contract is not necessarily fatal. See ORS 72.2040; ORS 72.3090.[10] Nor is the absence of a specific "quantity" term necessarily fatal to a claim that a requirements contract has been formed. See, e.g., ORS 72.3060 (relating to output, requirements, and exclusive dealings contracts for the sale of goods). Moreover, there is evidence in the record from which a jury could infer, for example, that, in the light of the *693 bankruptcy court's order and the approved reorganization plan, the parties intended an agreement to supply logs for the duration of EHC's Chapter 11 reorganization. We conclude that there is a genuine issue of material fact with respect to the alleged contract to supply logs. We hold that the trial court erred in granting summary judgment to Hampton on EHC's claim for breach of contract to supply logs. Hampton contends that the Court of Appeals erred in reversing the trial court's award of summary judgment to Hampton on EHC's claim for breach of the duty of good faith and fair dealing. Hampton argues that there was no duty of good faith and fair dealing, because there was no contract to supply logs. Hampton makes no argument with respect to whether the record supports EHC's claim on its merits. The law imposes a duty of good faith and fair dealing in the performance and enforcement of every contract. That duty serves to effectuate the objectively reasonable expectations of the parties. Pacific First Bank v. New Morgan Park Corp., 319 Or. 342, 349-53, 876 P.2d 761 (1994); Sheets v. Knight, 308 Or. 220, 233, 779 P.2d 1000 (1989); Best v. U.S. National Bank, 303 Or. 557, 561-64, 739 P.2d 554 (1987). We already have concluded that summary judgment was inappropriate on EHC's claim for breach of contract to supply logs. Viewing the record on summary judgment in the light most favorable to EHC, there is evidence in the record from which a jury could find that, with respect to the alleged contract to supply logs, Hampton did not at all times act in good faith and deal fairly with EHC. For example, after an earnest money agreement was executed in July 1989 for Diamond to buy both mills, Hampton, without explanation, discontinued supplying logs to EHC, resulting in the closure of the Garibaldi mill by August 1. A jury could find that Hampton's unilateral action in discontinuing to supply logs frustrated EHC's objectively reasonable expectation that Hampton would continue to supply logs. We hold that the trial court erred in granting summary judgment to Hampton on EHC's claim for breach of the duty of good faith and fair dealing. Hampton contends that the Court of Appeals erred in reversing the trial court's award of summary judgment to Hampton on EHC's claim for breach of fiduciary duty. Hampton argues that, because the relationship between the parties was a relationship of debtor and creditor, their relationship was "the antithesis of a fiduciary" relationship and that nothing Hampton did could transform it into a fiduciary relationship. EHC's theory was that the parties had "agreed that John Hampton would investigate the possibility of selling the Erickson Hardwood mill," and that Hampton undertook to sell the Erickson Hardwood mill on behalf of and for the benefit of and therefore as an agent and fiduciary of EHC. This court's decision in Georgetown Realty v. The Home Insurance Co., 313 Or. 97, 106, 831 P.2d 7 (1992), is the starting point for determining whether a tort claim is available to a contracting party: "The lesson to be drawn from this court's cases discussing the choice between contract and tort remedies is this: When the relationship involved is between contracting parties, and the gravamen of the complaint is that one party caused damage to the other by negligently performing its obligations under the contract, then, and even though the relationship between the parties arises out of the contact, the injured party may bring a claim for negligence if the other party is subject to a standard of care independent of the terms of the contract. If the plaintiff's claim is based solely on a breach of a provision in the contract, which itself spells out the party's obligation, then the remedy normally will be only in contract, with contract measures of damages and contract statutes of limitation. That is so whether the breach of contract was negligent, intentional, or otherwise. In some situations, a *694 party may be able to rely on either a contract theory or a tort theory of both." Here, EHC and Hampton allegedly were contracting parties, inasmuch as they had an agreement to buy and sell logs. A fiduciary relationship did not arise simply from that agreement. The dispositive issue is whether Hampton was subject to a standard of care independent of the contract. If Hampton was not subject to a standard of care independent of the contract, then no tort claim is available against it. As noted, EHC claimed the existence of a principal-and-agent relationship between EHC and Hampton. An agent owes duties of care and loyalty to the principal. Onita Pacific Corp. v. Trustees of Bronson, 315 Or. 149, 161, 843 P.2d 890 (1992). An agent must exercise reasonable care on behalf of the principal's interest. Id. at 160, 843 P.2d 890. An agent thus is subject to a standard of care independent of the terms of an agreement between the parties. This court has defined "agency" as follows: In reviewing a trial court's ruling on a motion for summary judgment, this court views the evidence and all reasonable inferences to be drawn from it in the light most favorable to the nonmoving party. Fields, 317 Or. at 437, 857 P.2d 95. If facts were established from which we could infer that a principal-and-agent relationship existed, then, EHC's claim for breach of fiduciary duty would survive this motion for summary judgment. There is evidence in the record from which one could infer that Hampton had consented and undertaken to act as EHC's agent to sell the mill and that EHC retained some control over Hampton in that regard. John Hampton stated in his deposition that he understood that he was "to go out and try to find a buyer for the mill," but that he lacked the authority to sell the mill. John Hampton did find a buyer for the mill. One reasonably could infer, based on that evidence, that John Hampton consented to act on behalf of EHC to find a buyer for the mill and that EHC retained some element of control over the actual sale of the mill. We next turn to whether EHC consented to having John Hampton act as its agent. Such a "manifestation of consent by one person to another that the other shall act on his behalf and subject to his control" is necessary to find an agency relationship between the parties. Ruddy, 179 Or. at 702, 174 P.2d 603. There is evidence in the record from which one reasonably could infer that EHC consented to Hampton's acting as its agent. One could infer, from the statements made in John Hampton's deposition, that John Hampton understood EHC to have consented to his acting as EHC's agent for the sale of the mill. Those statements create a question of fact as to whether EHC consented to have Hampton act as its agent, sufficient to defeat a motion for summary judgment. On summary judgment, EHC has established facts from which one reasonably could infer that a principal-and-agent relationship existed between the parties for the sale of the mill, that such a relationship imposed a standard of care independent of the terms of the parties' alleged contract to sell logs, and that, accordingly, the trial court erred in granting summary judgment to Hampton on EHC's claim for breach of fiduciary duty. On review in this court, Hampton argues that EHC's claim for negligence based on the relationship between the parties should fail, for the sole reason that no fiduciary relationship existed between the parties. Because there was evidence from which a trier of fact reasonably could find a principal-and-agent relationship, we conclude that there is evidence in the recordthe same evidence discussed with respect to the previous *695 claimfrom which one reasonably could infer that Hampton was negligent when it failed to exercise reasonable care to market and sell the mill. In summary, Hampton was not entitled to summary judgment on EHC's counterclaims on the basis of judicial estoppel. Except on EHC's claim for breach of contract to sell the mill, the trial court erred in granting summary judgment to Hampton on EHC's claims. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed in part and reversed in part. The case is remanded to the circuit court for further proceedings.[11] [1] The claims at issue before this court involve only plaintiff Hampton Tree Farms, Inc., and defendant Erickson Hardwood Company. John Hampton was president of Hampton. Daniel Erickson was EHC's president and its sole shareholder. Natalie Jewett is the personal representative of the estate of William Jewett, deceased, an officer of EHC who signed a guaranty in favor of Hampton. The trial court granted Hampton's motion for summary judgment on counterclaims brought individually by Erickson and Jewett, on the ground that their claims were derivative of EHC's counterclaims. That ruling is not at issue on review. Defendants' third-party claims against John Hampton and Diamond Wood Products, Inc., were dismissed by the trial court and are not at issue on review. [2] It is not clear exactly when Erickson and Jewett became involved in the negotiations with Diamond. [3] ORCP 29 A provides: "A person who is subject to service of process shall be joined as a party in the action if (1) in that person's absence complete relief cannot be accorded among those already parties, or (2) that person claims an interest relating to the subject of the action and is so situated that the disposition in that person's absence may (a) as a practical matter impair or impede the person's ability to protect that interest or (b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reasons of their claimed interest. If such person has not been so joined, the court shall order that such person be made a party. If a person should join as a plaintiff but refuses to do so, such person shall be made a defendant, the reason being stated in the complaint." [4] Hampton's claims to enforce the guaranty and pledge agreement against Jewett are not at issue on review. [5] The Court of Appeals also stated that, because the events that form the basis for EHC's claims against Hampton did not occur until August 1989, almost two years after EHC had filed for bankruptcy reorganization under Chapter 11 and after the reorganization plan had been approved, "[i]t is not clear that [EHC's] claims would have been considered assets of the [bankruptcy] estate." Hampton Tree Farms, Inc. v. Jewett, 125 Or.App. 178, 188, 865 P.2d 420 (1993). [6] In view of its disposition of the appeal, the Court of Appeals did not reach Hampton's crossappeal for attorney fees. 125 Or.App. at 198, 865 P.2d 420. [7] The doctrine of "judicial estoppel" has been applied by federal courts to hold that a debtor who invokes the protection of the bankruptcy court and purports to disclose all of its assets, including claims that it might assert in litigation, is precluded from later asserting a claim that existed at the time of the bankruptcy but was not disclosed. In Matter of Howe, 913 F.2d 1138, 1147 (5th Cir.1990); In re Louden, 106 B.R. 109, 112 (Bkrtcy.E.D.Ky.1989); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3rd Cir.) cert. den. 488 U.S. 967, 109 S. Ct. 495, 102 L. Ed. 2d 532 (1988). Courts also rely on the principles of res judicata and equitable estoppel in holding that a failure to disclose existing claims during the pendency of a bankruptcy proceeding bars the debtor's later assertion of the undisclosed claims. In re Hoffman, 99 B.R. 929 (Bkrtcy.N.D.Iowa 1989). [8] Although detrimental reliance is not a component of judicial estoppel, it may be a relevant consideration. See Davis v. Wakelee, 156 U.S. 680, 689, 15 S. Ct. 555, 558, 39 L. Ed. 578 (1895) (party may not assume a contrary position in later judicial proceeding, "especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him"). [9] The Court of Appeals affirmed the trial court's award of summary judgment to Hampton with respect to EHC's claim for breach of contract to sell the mill. 125 Or.App. at 195-97, 865 P.2d 420. That issue is not before this court on review. [10] ORS 72.2040 provides in part: "(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. "* * * * * "(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy." ORS 72.3090(2) provides that a contract involving successive performances which is indefinite in duration may be valid "for a reasonable time." Under ORS 72.3090(3), "[t]ermination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party[.]" [11] We do not decide what effect, if any, the jury verdict on Hampton's claim for breach of guaranty might have on remand of these counterclaims (e.g., in terms of issue preclusion).

b7d62efb69f3d59d37c7e3289d349936aef08c5113977de6d9520bee8549eaa5

1995-03-30T00:00:00Z

4413c39f-f022-4ed9-a413-999807c1ec20

In Re Porter

320 Or. 692, 890 P.2d 1377

oregon

Oregon Supreme Court

890 P.2d 1377 (1995) 320 Or. 692 In re Complaint as to the Conduct of Charles O. PORTER, Accused. OSB 92-118; SC S41229. Supreme Court of Oregon, In Banc. Argued and Submitted September 1, 1994. Decided March 30, 1995. Reconsideration Denied May 16, 1995. *1379 John Glenn White, Eugene, argued the cause for the accused. Charles O. Porter filed the brief pro se. With him on the reply brief was John Glenn White. Jeffrey D. Sapiro, Disciplinary Counsel, argued the cause and filed the response for the Oregon State Bar. PER CURIAM. In this lawyer disciplinary proceeding, the accused is charged with violating Disciplinary Rules (DR) 1-102(A)(3) (conduct involving dishonesty)[1] and 7-106(C)(5) (failure to comply with known local customs of courtesy)[2] of the Code of Professional Responsibility. A trial panel of the disciplinary board found the accused guilty on both counts and suspended him from the practice of law for 30 days. The accused requested direct review by this court. Bar Rules of Procedure (BR) 10.3. On de novo review, ORS 9.536(3), we find the accused guilty of the DR 1-102(A)(3) charge and suspend him for 63 days. The charges against the accused stem from an exchange of letters between the accused and lawyer Bodyfelt. The letters concerned the possible entry of a default by the accused against Bodyfelt's client, without prior notice to Bodyfelt, in federal district court. The Bar's complaint alleges that (1) in a letter to Bodyfelt, the accused represented that he would not seek a default against Bodyfelt's client without prior notice and (2) the accused thereafter applied for and obtained a default against Bodyfelt's client without giving Bodyfelt the prior notice that the Bar alleges is required by custom among federal court practitioners in Eugene. We begin our discussion with the charges of dishonesty and misrepresentation under DR 1-102(A)(3). After careful review of the record, we make the following findings of fact. In 1991, the accused represented the Nolans, a husband and wife, with respect to a recreational motor home that they had purchased and that they believed to be defective. The accused explored claims against Beaver Coaches, Inc. (Beaver), the dealer that sold the mobile home to the Nolans, and Caterpillar, Inc. (Caterpillar), the manufacturer of the motor home's engine. The accused had discussions with representatives of Beaver and Caterpillar. On November 12, 1991, before a complaint was filed against Caterpillar, Bodyfelt wrote to the accused, advising him that Bodyfelt would be representing Caterpillar in any ensuing litigation. The letter stated: "Dear Charlie: After the accused received Bodyfelt's letter, but before he sent a reply, the accused discussed with the Nolans the possibility of obtaining a default judgment against Caterpillar. The accused testified to the trial panel as to the nature of that discussion: "* * * * * The Nolans told the accused that they wished to seek a default, and the accused acquiesced. The accused testified: On November 14, 1991, after his conversation with his clients,[4] the accused replied to Bodyfelt's letter as follows: "Dear Dick: On November 19, 1991, the accused, on behalf of the Nolans, filed an action against Caterpillar. The accused served Bodyfelt by mail, as Bodyfelt had suggested, and Bodyfelt began to prepare for his appearance in the case. The parties had no further contact with regard to an extension of time or an application for default. The accused testified at trial, however, that the Nolans called repeatedly to find out whether Caterpillar's time to file an answer to the complaint had expired. *1381 On December 31, 1991, without prior notice to Bodyfelt, the accused obtained a default order against Caterpillar. The accused testified that he did not contact Bodyfelt before applying for the default, because "[his] client wanted to have an opportunity [to obtain a default] and [he] was not going to deny [his] client an opportunity by tipping off Mr. Bodyfelt." On January 3, 1992, Bodyfelt was served by mail with copies of the accused's "application for default" and "notice for entry of default by the court." Bodyfelt immediately moved to set aside the entry of default against Caterpillar.[5] The accused resisted the motion. On February 18, 1992, the court granted Caterpillar's motion to set aside the entry of default. The litigation then proceeded in a normal manner. The foregoing facts, on which the misrepresentation charge is based, are not in dispute. The letters quoted above contain the only relevant communication between Bodyfelt and the accused. The accused now emphasizes the word "anticipate" in his letter to Bodyfelt and argues that the response was not intended as a "yes" answer to Bodyfelt's question. The accused testified: The accused also testified that his letter to Bodyfelt "was accurate to the extent it should have told himit was meant to tell him, `You ask and I will see what I can do, but I can't promise you that you are going to get an approval. It's chancy.'" The accused's protestations cannot be reconciled either with what he wrote or with the discussion concerning default that he had just had with Bodyfelt and that the accused himself acknowledges. The accused did not write to Bodyfelt and tell Bodyfelt, as the accused now claims, that Bodyfelt could call and ask for more time and might be given it. In the sentence immediately preceding the accused's statement that he "anticipate[d] no problem in allowing extra time for [Caterpillar's] appearance," the accused wrote, "you might give me a call if you think further extending the statute of limitations could lead to an appropriate settlement." (Emphasis supplied.) The contrast between those two sentences illustrates that the accused knew how to invite a response when it was in his interest to do so (i.e., to extend the statute of limitations), and he knew how to make a response appear unnecessary when such a response was not desired. The accused knew that his client wished to seek a default judgment against Caterpillar before the accused replied to Bodyfelt that he "anticipate[d] no problem in allowing extra time for [Caterpillar's] appearance." The accused planned to seek that default, unless Bodyfelt inquired again about extending the time for Caterpillar's appearance. For the accused to couch his letter in a manner designed to mask that intent and not "tip[ ] off Mr. Bodyfelt" is the worst sort of sharp practice. We find by clear and convincing evidence that the accused is guilty of making a misrepresentation in violation of DR 1-102(A)(3). We turn now to a discussion of "known local customs of courtesy or practice of the bar or a particular tribunal," as that concept is used in DR 7-106(C)(5). This court has not interpreted DR 7-106(C)(5) in any previous disciplinary proceeding. We note at the outset of our discussion that we conclude that we need not decide in this case whether the accused is guilty of this charge. As we shall explain, the accused's misrepresentation so overshadows any finding that we might make as to this charge that resolution of the issue of guilt or innocence of this charge is irrelevant. We would noton the facts before usimpose a greater sanction on this accused for violating DR 7-106(C)(5) than the sanction that we would in any event impose for the accused's violation of DR 1-102(A)(3) alone. We therefore do not decide, in this case, whether there was in fact the alleged custom in the federal court bar in Eugene. We nonetheless address certain arguments made by the parties concerning this disciplinary rule, in order to provide guidance in future cases. The accused argues as an overarching matter that, if a lawyer complies with all of the procedural courtesies required by the Federal Rules of Civil Procedure (FRCP), the lawyer cannot be guilty of an ethical violation. To hold otherwise, he argues, would be to recognize an "amendment" to the FRCP in the Code of Professional Responsibility (Code). That argument is unpersuasive. The Code does not "amend" the FRCP, or any other set of statutes or rules, by imposing ethical restrictions on a lawyer's conduct. Instead, the Code is a separate source of applicable substantive law. A lawyer is not absolved of all professional responsibility merely because the lawyer practices in federal court.[6] The accused also argues that, so long as the lawyer's actions are in strict accordance with the dictates of FRCP 12(a) (1987) and 55(a), the lawyer should not be found guilty of a disciplinary rule violation. This appears to be a claim that, although the Code and the FRCP may co-exist, compliance with a federal rule should be deemed to be a valid defense to a violation of DR 7-106(C)(5). The history, text, and context of DR 7-106(C)(5) defeat that argument. DR 7-106(C)(5) is a part of Disciplinary Rule 7, which deals with "Zealously Representing Clients Within the Bounds of the Law." Each provision of DR 7-106(C) provides a limitation on the actions of a lawyer appearing in the lawyer's "professional capacity before a tribunal."[7] All but two of those provisions relate to rules of procedure or evidence. The remaining two, DR 7-106(C)(5) and (6), provide sanctions for conduct in violation of "known local customs of courtesy or practice of the bar or a particular tribunal" and for "undignified or discourteous conduct * * * degrading to a tribunal," respectively. The very next provision, DR 7-106(C)(7), *1383 makes any intentional or habitual violation of established rules of procedure or evidence an ethical violation. It is clear from the text and context of DR 7-106(C) that its provisions prohibit violations of "customs" and "rules" separately. History shows how that came about. Oregon's ethical rules and standards of professional conduct began as customs of courtesy and practice. There was nothing else. Until 1881, no state had a "code" of ethics. A bar could govern itself only through social sanctions for failure to comply with local customs and courtesies. The first nationwide body of professional "Canons" did not appear until 1908, when the American Bar Association (ABA) approved 32 "Canons of Professional Ethics." See Henry Jessup, The Professional Ideals of the Lawyer, xxiii-xxvii (1925) (providing early history). Those Canons were adopted, in part, by this court and the then-recently organized Oregon State Bar (Bar) in 1935. Rule 29 of those "Rules of Professional Conduct of the Oregon State Bar" (ABA Canon 24) provided: The "Canons," as adopted by the Bar, were not mandatory disciplinary rules but were, instead, a set of hortatory principles voluntarily followed. Geoffrey C. Hazard, Jr., Ethics in the Practice of Law, 19 (1978). It was not until January 1, 1970, that the ABA adopted a more stringent set of rules aimed at the regulation of professional conduct. This "Model Code of Professional Responsibility," under which the Bar largely still operates, was adopted by the Bar on December 30, 1970.[8]See Burke v. Rachau, 262 Or. 323, 334 n. 2, 497 P.2d 1154 (1972) (providing history of the "customs of courtesy or practice" provisions in the Code of Professional Responsibility). Although DR 7-106(C)(5) is an outgrowth of the ABA's Model Code, it is entirely consistent with Oregon's prior practice. For example, in Ainsworth v. Dunham, 235 Or. 225, 231, 384 P.2d 214 (1963), counsel argued before this court that his decision not to provide notice of default to opposing counsel was in part due to the "accepted ethical admonition to put one's client's cause foremost." This court answered: "`13. The lawyer, and not the client, has the sole discretion to determine the accommodations to be granted opposing counsel in all matters not directly affecting the merits of the cause or prejudicing the client's rights, such as extensions of time, continuances, adjournments and admission of facts. In such matters no client has a right to demand that his counsel shall be illiberal or that he do anything therein repugnant to his own sense of honor and propriety. "`14. (a) * * * When he knows the identity of a lawyer representing an opposing party, he should not take advantage of the lawyer by causing any default or dismissal to be entered without first inquiring about the opposing lawyer's intention to proceed. "`(b) A lawyer should avoid disparaging personal remarks or acrimony toward opposing counsel, and should remain wholly uninfluenced by any ill feeling between the respective clients. * * *.'" Ibid. (emphasis supplied). The context of DR 7-106(C)(5), as explained by this court in Burke, further illustrates *1384 how the disciplinary rule codified an existing Oregon expectation. The Code, as adopted by the Bar in 1970, included "canons," "ethical considerations," and "disciplinary rules." "Canon 7 of that Code, * * * after providing that `a lawyer should represent a client zealously within the bounds of the law' added various `ethical considerations', including the following: "`EC 7-38 * * * He should follow local customs of courtesy or practice, unless he gives timely notice to opposing counsel of his intention not to do so.'" Burke, 262 Or. at 334-35 n. 2, 497 P.2d 1154. This court noted in Burke that a claim under DR 7-106(C)(5) was "similar," and in accordance with Ainsworth. Id. at 334, 497 P.2d 1154. The Burke court added: "`A lawyer should adhere strictly to all express promises and agreements with opposing counsel, whether oral or in writing, and should adhere in good faith to all agreements implied by the circumstances or by local custom.'" Burke, 262 Or. at 334 n. 2, 497 P.2d 1154 (emphasis supplied). The court then proceeded to cite the aforementioned rule, canons, ethical considerations, and DR 7-106(C)(5) as standing for equivalent propositions. It is true that neither Ainsworth nor Burke was a disciplinary case. In both cases, the question before this court was whether a default judgment, entered by the trial court, should have been set aside by the trial court due to "mistake, inadvertence, surprise or excusable neglect." See former ORS 18.160 (now ORCP 71 B(1)(a)) (stating standard). In Ainsworth, the default was set aside, and the lawyer taking the default was criticized for not providing notice of the default to the opposing lawyer. In Burke, the defaulted party, an insurance company, had expressly agreed with the opposing party's lawyer that it would obtain a lawyer and file an appearance by December 19, 1969. This court held that the agreement between the defaulted party and the opposing lawyer provided adequate notice that default would be taken after that date. Although neither Ainsworth nor Burke dealt exclusively with the ethics question, both holdings were consistent with DR 7-106(C)(5) of the Code and both serve to illuminate the history and spirit behind that Disciplinary Rule. Both stand for the proposition that a customary practice of civility or courtesy should be followed, despite the absence of a rule requiring such courtesy. See Rules of Professional Conduct of the Oregon State Bar, Rule 29 (1935) ("a member of the State bar shall not ignore known customs or practices of the bar or of a particular court, even when the law permits, without giving timely notice to opposing counsel"). Accordingly, we hold that it is no defense to a charged violation of DR 7-106(C)(5) that the offender's acts were in compliance with another rule, where what is requiredas opposed to what simply is permittedby that other rule is not inconsistent with the obligation imposed by DR 7-106(C)(5). We turn now to our discussion of the accused's remaining arguments. The accused argues that, to prove the existence of a custom, the Bar must prove that a practice was "ancient, notorious, uniform, not opposed to a well settled rule of law, and not inconsistent with the contract of the parties." See Port Invest. Co. v. Oregon M.F. Ins. Co., 163 Or. 1, 18, 94 P.2d 734 (1939) (citation omitted) (stating that standard). We agree that the strong influence of the common law on the enacted rule requires that the definition of "custom" also derive from the common law, but disagree with the accused as to the common law definition of "custom" that is applicable to this case. We turn now to that question. The term "custom" has been used in Oregon jurisprudence, in varying contexts, to mean as little as "a practice or course of acting," Hughes v. Heppner Lumber Co., 205 Or. 11, 41, 283 P.2d 142 (1955) (Warner, C.J., dissenting) (interpreting a contract), reh. den. 205 Or. 11, 286 P.2d 126 (1955), or as much as an ancient, continuous, peaceful, reasonable, certain, obligatory, practice not inconsistent with other customs or laws, State ex rel Thornton v. Hay, 254 Or. 584, *1385 595-98, 462 P.2d 671 (1969) (applying English common law doctrine of custom to a land dispute). The accused offers, as the appropriate definition of "custom," an opinion that purportedly applied the English common law definition of custom to a contract dispute. Port Invest. Co., 163 Or. at 18, 94 P.2d 734 (citing Coxe v. Heisley, 19 Pa.St. 243 (1852) (applying English common law)). In fact, however, the Port Invest. Co. court never reached the question whether the "custom" in question was "ancient, notorious, uniform, [or] not opposed to a well settled rule of law[.]" The alleged "custom" in Port Invest. Co. contradicted the specific terms of the contract in that case and, thus, could not be admitted to "change" those terms. Ibid. (citing Interior Warehouse Co. v. Dunn, 80 Or. 528, 534, 157 P. 806 (1916)). The Port Invest. Co. case, thus, is a case that only contains a dictum on what the idea of "custom" means. We decline to rely on that dictum. The practice of law is a professional calling. With respect to such an enterprise, it seems most logical to us to look to the way the concept of "custom" has developed in our common law with respect to a trade or calling. In that area, we generally require that, in order to be called a "custom," a practice must be uniform, Barnard & Bunker v. Houser, 68 Or. 240, 243, 137 P. 227 (1913), and well known to the community, Green Mt. L. Co. v. C. & N.R.R., 141 Or. 188, 195, 16 P.2d 1106 (1932). This court has held: Id. at 195-96, 16 P.2d 1106. "`A custom has the force of law, and furnishes a standard for the measurement of many of the rights and acts of men. It must be certain, or the measurements by this standard will be unequal or unjust. It must be uniform; for, if it vary, it furnishes no rule by which to mete. It must be known, or must be so uniform and notorious that no person of ordinary intelligence who has to do with the subject to which it relates, and who exercises reasonable care, would be ignorant of it; * * *.'" Hellbusch v. Rheinholdt, 275 Or. 307, 312, 550 P.2d 1199 (1976) (quoting Samuel Williston, 5 Law of Contracts 10-11, § 649 (Walter H.E. Jaeger ed., 3d ed 1961)). The existence of a custom or usage is a matter of fact and not of opinion. Green Mt. L. Co., 141 Or. at 192, 16 P.2d 1106. "The method of proving custom is analogous to that of proving reputation." Ibid. "[Custom] is proved, not by witnesses testifying as to their opinions, but as to its existence from facts within their own knowledge, obtained by observation of what is practiced by themselves and others in the trade or business to which it relates." Holmes v. Whitaker, 23 Or. 319, 325, 31 P. 705 (1892) (citations omitted). The foregoing discussion of the law of custom appears to us to be most compatible with the concept of a custom used in a profession. We hold that, in the context of DR 7-106(C)(5), a custom is a particular course of acting or dealing "so general and uniform" that it has taken on the status of an unwritten law governing practitioners in a particular community. It must also be "certain" and "known, or * * * so uniform and notorious that no person of ordinary intelligence who has to do with the subject to which it relates, and who exercises reasonable care, would be ignorant of it." Hellbusch, 275 Or. at 312, 550 P.2d 1199. The accused alternatively argues that, in order for a lawyer to violate DR 7-106(C)(5), the lawyer must personally know of the alleged custom. DR 7-106(C)(5) provides for the discipline of lawyers who "fail to comply with known local customs of courtesy or practice of the bar." (Emphasis supplied.) The accused interprets that wording to require "actual knowledge" of the existence of the custom as it is defined by common law. We disagree. Indeed, placing such a burden would negate the concept of "custom," placing a premium on studied stupidity by practitioners who assiduously avoid learning about the community in which they practice. *1386 A party at common law, seeking to establish the existence of a custom, need not prove that the person to be bound had "actual knowledge" of each element of the custom. The party need only prove the existence of the custom to the finder of fact. Holmes, 23 Or. at 325, 31 P. 705; Green Mt. L. Co., 141 Or. at 192, 16 P.2d 1106. If the custom exists in the "community," i.e., the trade or calling in the relevant locale to which the person to be bound belongs, the person to be bound is deemed to know of it and, by nature of its being a "custom," is bound by it. We do not understand the word "known," in DR 7-106(C)(5), to place the burden of proving "actual knowledge" by the accused of each element of a custom on the Bar, where the custom, by its very definition, is "known." Put differently: The word "known" modifies the word "custom," not the lawyer's state of mind. If a custom is demonstrated by clear and convincing evidence at a hearing, and it must be generally known for it to be demonstrated, the accused "knows" of it by operation of law. As noted, we have included the foregoing discussion of DR 7-106(C)(5) in this opinion in order to assist the Bar and its members in future proceedings under that rule. However, and also as noted, we do not make any evidentiary findings under the rule in this case, because no such findings would affect our choice of sanction. We turn to that final issue now. When imposing a sanction for unethical conduct, this court follows the American Bar Association's Model Standards for Imposing Lawyer Sanctions: (1992). Under those standards, we consider four factors: (1) the duty violated; (2) the accused's mental state; (3) the potential or actual injury caused by the misconduct; and (4) aggravating or mitigating factors. ABA Standard 3.0. The duties violated in this case are substantial. By misrepresenting his intent to seek a default in the Nolan case, the accused violated his duty to maintain the standards of personal integrity on which the legal community, and the larger community, rely. This most fundamental duty, owed by a lawyer to the public, is critical to public confidence in the legal profession and is undermined by dishonest or discourteous conduct. ABA Standard 5.0. In the absence of aggravating or mitigating circumstances, the ABA Standards recommend a reprimand for conduct that involves "dishonesty, fraud, deceit, or misrepresentation * * * that adversely reflects on the lawyer's fitness to practice law." ABA Standard 5.13. The accused's misconduct was also a blatant violation of his duty owed to the profession as a professional. Conduct by which one lawyer seeks to dupe another lawyer (and the latter's client) tears at the fabric of the legal profession, which can expect to have no better reputation for trustworthiness in the community than that of its worst actors. Misconduct of the kind demonstrated here not only damages the reputation of the legal profession, but also breeds distrust among practitioners, tempting rational lawyers to follow suit, rather than be made the fool. ABA Standard 7.2 recommends suspension "when a lawyer knowingly engages in conduct that is a violation of duty owed as a professional, and causes injury or potential injury to * * * the legal system." ABA Standard 7.2. ABA Standard 8.2 further recommends suspension "when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to * * * the profession." The accused has been the subject of numerous prior disciplinary reprimands. See In re Charles O. Porter, 268 Or. 417, 521 P.2d 345, cert. den. 419 U.S. 1056, 95 S. Ct. 639, 42 L. Ed. 2d 653 (1974) (five separate improper statements to the media with respect to pending litigation); In re Charles O. Porter, 283 Or. 517, 584 P.2d 744 (1978) (representing parties with conflicting interests). Further, the accused was admonished in 1985 for improperly soliciting clients. Finally, and perhaps most importantly, the accused was admonished again, in 1991, for engaging in conduct involving a misrepresentation *1387 to a court[9] that was prejudicial to the administration of justice. The mental state of the accused is clear from the record at trial. The evidence that the accused knew that he was walking the line between acceptable and unacceptable conduct is manifest. The accused's own testimony demonstrated that he knew at the time that he wrote his reply to Bodyfelt that his client wished to seek a default in the case. He also knew that Bodyfelt planned to make an appearance. The accused's reply to Bodyfelt's letter, communicating that the accused "anticipate[d] no problem in allowing extra time for [Bodyfelt's] appearance," was a deliberate misrepresentation designed to avoid a direct answer to Bodyfelt's question, while not "tipping off" Bodyfelt to the fact that the Nolans planned to seek a default. The injury caused by the accused's misconduct has already been discussed. The accused's actions caused unnecessary delay in the Caterpillar case and threatened actual or potential injury to the substantive legal interests of the party against which the default was taken. The last factor that the ABA Standards direct us to consider is whether aggravating or mitigating factors act to increase or decrease the recommended sanction. We find the existence of the following aggravating factors: Prior disciplinary offenses (ABA Standard 9.22(a)), dishonest motive (ABA Standard 9.22(b)), a pattern of misconduct (ABA Standard 9.22(c)), and substantial experience in the practice of law (ABA Standard 9.22(i)). In mitigation of the offenses, the accused demonstrated full and free disclosure to the trial panel and a cooperative attitude toward the proceedings (ABA Standard 9.32(e)). The aggravating factors predominate. On balance, the ABA Standards call for a period of suspension in cases such as the present one. The trial panel imposed a sanction of suspension from the practice of law for 30 days. The Bar also asks this court to suspend the accused from the practice of law for a period of 30 days, although the Bar makes special note of the temporal proximity between the earlier admonition for misrepresentation and the accused's present offense. We, too, find that proximity particularly troubling. Although we always consider the sanctions chosen by the trial panel, this court's authority in the selection of a sanction is plenary. We have on many occasions increased a sanction on review, based on our independent assessment of the totality of the circumstances. See, e.g., In re Leonard, 308 Or. 560, 572, 784 P.2d 95 (1989) (accused suspended for 35 days, although trial panel recommended only a reprimand); In re Miller, 303 Or. 253, 260, 735 P.2d 591 (1987) (accused disbarred where Bar did not seek that sanction). The accused's history, including a prior act of misrepresentation and two published opinions of this court admonishing him for his conduct, together with earlier decisions of this court that dealt with violations of DR 1-102(A)(3),[10] lead us to conclude that a longer suspension is warranted in this case. We suspend the accused from the practice of law for 63 days.[11] The accused is suspended from the practice of law for 63 days. FADELEY, Justice, concurring. I concur in the portion of the opinion finding a violation of DR 1-102(A)(3). The accused's letter and the other circumstances surrounding the application for default without *1388 notice, when taken together, show conduct involving dishonesty and misrepresentation in violation of DR 1-102(A)(3). I write separately to underline the difference between that rulerequiring probity in transactions between members of the law professionand the legal norm or rule that a majority has applied, over my dissent, to transactions between persons engaged in business in Onita Pacific Corp. v. Trustees of Bronson, 315 Or. 149, 166, 168, 843 P.2d 890 (1992) (Fadeley, J., concurring in part and dissenting in part: concurring that there is a tort of negligent misrepresentation, recognized in Oregon; but dissenting from the view that the tort remedy is not applicable to business negotiations conducted "at arm's length"). DR 1-102(A)(3) enforces the same standard of conduct as stated in Restatement (Second) of Torts § 552(1) (1977).[1] The Restatement rule, requiring honest representations, evenhandedly applies that rule to "business, profession or employment, or in any other transaction in which he [or she] has a pecuniary interest." However, Onita renders that standard inapplicable to the plaintiff and defendant in this case, because those parties were dealing "at arm's length" in a business transaction. The legally mandated standard governing the conduct of lawyers amongst themselves while engaged in the practice of law is one that this court, erroneously, will not apply to transactions between business people. Put another way, a lawyer's business client is able to engage in sharper practices in relation to the persons with whom the business person is completing a business transaction than may the lawyer. Certainly the lawyers in this case had clients who were dealing with each other at arm's length, and the lawyers were under a duty to advocate for their clients to the limit the law allowed. The accused's client required him to take a default, as permitted by a federal rule of procedure, and to do so without notifying the lawyer on the other side. Under those circumstances, the accused's letter to the other lawyer, quoted in the lead opinion, misrepresented the accused's intention. Applying Onita, the accused's conduct, were this simply a business transaction, would have been permissible.[2] Under the Code of Professional Responsibility, however, it is not. Thus, DR 1-102(A)(3) preventsas between the lawyerswhat the Onita majority expressly allows as between their respective clients. In short, the client has a right to mislead that the lawyer-advocate does not. Recently, a majority of the court has also relegated the implied covenant of good faith and fair dealing between business persons to some sort of legal museum for former remedies that are no longer used. Compare Best v. U.S. National Bank, 303 Or. 557, 562, 739 P.2d 554 (1987) (holding that the purpose of that covenant "is to prohibit improper behavior in the performance and enforcement of contracts"), with Pacific First Bank v. New Morgan Park Corp., 319 Or. 342, 876 P.2d 761 (1994) (a 4-2 decision). In my view, however, the law applicable to the business world requires it to live by the same standard as applies to transactions between lawyers. I would also apply to "business" transactions the same rule of honesty and good faith that we require within the legal profession. I believe that is the community norm today, in both Oregon's *1389 business and legal communities. I want that norm to continue. I write separately here in the hope that the majority will see the light and return our commercial law to principles requiring rectitude between business people equal to that required between lawyers in the representation of clients. Perhaps my point regarding the importance of requiring honesty of representation in all areas of law, not just between lawyers, is thoughtfully illustrated by Margaret Thatcher in a 1994 lecture delivered at Hillsdale College in Michigan. She said: [1] DR 1-102(A)(3) provides: "It is professional misconduct for a lawyer to: "* * * * * "(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation." [2] DR 7-106(C)(5) provides: "In appearing in the lawyer's professional capacity before a tribunal, a lawyer shall not: "* * * * * "(5) Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the lawyer's intent not to comply." [3] ORCP 69 A requires a party seeking default to give 10 days' written notice to opposing parties and provides in part: "If the party against whom an order of default is sought has filed an appearance in the action, or has provided written notice of intent to file an appearance to the party seeking an order of default, then the party against whom an order of default is sought shall be served with written notice of the application for an order of default at least 10 days, unless shortened by the court, prior to entry of the order of default." The Federal Rules of Civil Procedure do not contain such a notice requirement. FRCP 12(a) (1987) provided in part: "A defendant shall serve an answer within 20 days after the service of the summons and complaint upon that defendant * * *." FRCP 55(a) provides: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." [4] The accused testified: "[BAR PROSECUTOR]: So that discussion you had with your client was before the letter went out? "[THE ACCUSED]: Oh, yes." [5] FRCP 55(c) provides: "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." FRCP 60(b) provides in part: "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for * * * mistake, inadvertence, surprise, or excusable neglect * * *." [6] Indeed, the local federal court rules recognize as much. Rule 110-3 of the "Local Rules of Practice for the United States District Court for the District of Oregon" provides that "[e]very member of the Bar of this court and any attorney permitted to practice in this court shall be familiar and comply with the standards of professional conduct required of members of the Oregon State Bar * * *." [7] DR 7-106(C) provides: "In appearing in the lawyer's professional capacity before a tribunal, a lawyer shall not: "(1) State or allude to any matter that the lawyer has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. "(2) Ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person. "(3) Assert the lawyer's personal knowledge of the facts in issue except when testifying as a witness. "(4) Assert the lawyer's personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant or as to the guilt or innocence of a criminal defendant but the lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated herein. "(5) Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the lawyer's intent not to comply. "(6) Engage in undignified or discourteous conduct which is degrading to a tribunal. "(7) Intentionally or habitually violate any established rule of procedure or evidence." [8] The Bar presented the Disciplinary Rules in the then-newly adopted Model Code to this court under the title "Oregon Code of Professional Responsibility." This court adopted the Disciplinary Rules as binding authority on August 11, 1971. In re Tonkin, 292 Or. 660, 664, 642 P.2d 660 (1982). The ABA adopted a new set of "Model Rules of Professional Conduct" on August 2, 1983. Those "Model Rules" do not include a provision analogous to DR 7-106(C)(5); neither have they been adopted in Oregon. [9] In the earlier misrepresentation case, the accused was admonished for petitioning a court for approval of the sale of certain probate assets, without disclosing to the court that those assets already had been sold. The accused's acts of misrepresentation in the present case occurred less than three months after he had received the earlier admonition. [10] See, e.g., In re Smith, 315 Or. 260, 264-67, 843 P.2d 449 (1992) (four-month suspension, fewer aggravating factors); In re Magar, 312 Or. 139, 142, 817 P.2d 289 (1991) (60-day suspension). [11] We emphasize that our choice of sanction is not based on any implicit conclusion that the accused is also guilty of violating DR 7-106(C)(5). We have not made any determination of the accused's guilt or innocence under that charge, becauseagain, as we have explaineda finding one way or the other on that charge would not have altered our choice of sanction. [1] Restatement (Second) of Torts § 552(1) provides: "One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." [2] In Onita, the younger Bronson told a buyer-assignee that lots in a Deschutes County residential development would be released for development or resale by the buyer after certain payments were made. The buyer plowed about a million dollars of assets into those payments, but the elder Bronson, who benefited from the payments and acquired the ability to release the lots in question to his own joint venture because of those payments, refused to release them to his buyer-assignee, thereby financially breaking the buyer. Bronson was, by the Onita majority, held legally blameless because the negotiations had been at arm's length and, therefore, no account could be taken of the misrepresentation by which Bronson profited and the buyer who received nothing in return for his money went belly-up.

3155ed29d5de60d35e7493f11c8364c7ea64ac38ebe102114ca49fdea6d19037

1995-03-30T00:00:00Z

fe9f9e8b-8c98-4dec-8940-a5abca219d19

State Ex Rel Juv. Dept. v. MT

321 Or. 419, 899 P.2d 1192

oregon

Oregon Supreme Court

899 P.2d 1192 (1995) 321 Or. 419 In the Matter of M.T., A Child. STATE EX REL JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent on Review, v. M.T., Petitioner on Review. CC 8605-80305; CA A78160; SC S41466. Supreme Court of Oregon, In Banc. Argued and Submitted March 6, 1995. Decided August 10, 1995. Peter Miller, Portland, argued the cause and filed the brief for petitioner on review. Michael C. Livingston, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Lynn M. Travis, Kathryn Worden Underhill, and Ellen K. Jones, Portland, filed a brief on behalf of amicus curiae Juvenile Rights Project. GILLETTE, Justice. In this juvenile delinquency case, we are asked to determine whether a specific "order," entered by a Multnomah County Juvenile Court referee and granting child a "conditional postponement" of his delinquency hearing, is subject to appeal. The Court of Appeals held that the order had "all the earmarks of a [final] dispositional order pursuant to former ORS 419.507"[1] and was, therefore, appealable. State ex rel. Juv. Dept. v. M.T., 128 Or.App. 25, 31, 874 P.2d 836 (1994). The Court of Appeals then reversed the referee's order granting the "conditional postponement" and remanded the matter to the juvenile court for a finding of jurisdiction over the child. Id. On review, *1193 we conclude that the order was not appealable. We therefore vacate the decision of the Court of Appeals. On July 30, 1992, the state filed a delinquency petition against child, alleging that he had committed five acts that, if committed by an adult, would have constituted sodomy in the first degree. At the dispositional hearing, held on November 18, 1992, child and his lawyer submitted to the referee a signed document entitled "Order Accepting Conditional Postponement Between the Minor and State." In that document, child acknowledged that: (1) he was a minor child who lived within the county; (2) he had a lawyer; (3) he understood the charges against him; (4) he understood that he had the right to a speedy trial, to confront witnesses, to present witnesses of his own, and to choose not to testify; (5) he and his lawyer had signed the document; and (6) he understood that by signing the document he was admitting to the charges and giving up his rights to a trial. Paragraph (7) of the document provided: The rest of the document stated the conditions that the child agreed would be attached to the conditional postponement. They were: (1) "Obey school attendance laws and other school rules" and (2) "Comply with offense-specific Case Management." The referee adopted and signed child's proposed order. Although the dispositional proceeding was not recorded, a second order of the referee, referred to in a notation to the child's proposed order, summarizes what occurred: In the Matter of MT, No. 8605-80305 (REF 40) (Order and Disposition, November 24, 1992). The order of the referee then announced: "Have no unsupervised contact with females 12 years of age or younger; "Complete any other counseling as directed by the Juvenile Court Counselor." The referee's order also allowed the state to request a review hearing every six months and terminated temporary commitment of child to the Children's Services Division (CSD). On November 20, 1992, after the hearing but before the order was signed, the district attorney filed a "Request for Rehearing" before the juvenile court judge pursuant to former ORS 419.581(6)-(7) (1981),[2] and *1194 419.561(7)(a) (1991) (set out post). The request was denied. The state appealed the referee's order of "conditional postponement" to the Court of Appeals. In doing so, it did not assign the ruling on its request for rehearing as error. As noted, the Court of Appeals held that the referee's order of conditional postponement was a "final order" appealable under former ORS 419.561(1) (1991). We allowed review to address the important jurisdictional question presented. The right of appeal, and the procedures for appeal, are statutory. See Henry and Henry, 301 Or. 185, 188, 721 P.2d 430 (1986) (right to appeal springs from statute); Higgins v. Fields, 150 Or. 528, 534, 47 P.2d 235 (1935) (appellate court has only such authority and jurisdiction as is conferred upon it by statute). The dispositional question in this case is: Does any statute authorize the present appeal? Special statutes govern appeals in juvenile cases. At the time in question, both former ORS 419.561(1) and (7) spoke to the issue of appellate court jurisdiction of appeals from juvenile court. Our initial task is to determine whether either or both of those statutory subsections conferred jurisdiction on the Court of Appeals to hear and decide this case. See Meyer v. Joseph, 295 Or. 588, 590, 668 P.2d 1228 (1983) (appellate courts have duty to examine jurisdiction to hear case). If either subsection conferred jurisdiction on the Court of Appeals, then this court has jurisdiction to review the decision of that court. ORS 2.520. If we determine that the Court of Appeals did not have jurisdiction, we must vacate that decision. As discussed below, we hold that, whatever appellate rights the legislature initially may have provided to the state by former ORS 419.561(1), the legislature superseded those rights when it enacted the more specific former ORS 419.561(7). Under former ORS 419.561(7), the Court of Appeals did not have jurisdiction to review the order at issue in this case. We now turn to those statutes. When interpreting a statute, this court's task is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). We first analyze the text and context of the statute. If the intent is clear from the text and context, further inquiry is unnecessary. If, however, the intent of the legislature is not clear from the text and context of a statute, the court will proceed to the second level of analysis, which is to consider the legislative history of the statute. Id. 317 Or. at 611-12, 859 P.2d 1143. The text of former ORS 419.561(1)[3] granted to "any person whose right or duties are adversely affected by a final order of the juvenile court" a general right of appeal "[e]xcept as provided in ORS 419.578". Former ORS 419.578 (1979)[4] provided: "Except as provided in ORS 153.585 (1),[5] proceedings in adult criminal court and other juvenile court adjudicatory proceedings based on an act alleged in a petition or citation to have been committed by a child or allegations arising out of the same conduct are barred when the juvenile court judge or referee has begun taking evidence in an adjudicatory hearing or has accepted a child's admission or answer of no contest to the allegations of the *1195 petition or citation. This section shall not prevent appeal of any preadjudicatory order of the court which could be appealed in a criminal case, including, but not limited to, an order suppressing evidence." (Emphasis supplied.) Together, those statutes are far from clear. Former ORS 419.561(1) appears to grant a general right of appeal from final orders of the juvenile court to "persons" whose rights or duties are adversely affected by an order. As noted, the Court of Appeals held that an appeal in the present case was permissible under former ORS 419.561(1). That right, however, is limited by reference to former ORS 419.578. The relationship of former ORS 419.578 to former ORS 419.561(1) is somewhat disjointed. Apart from the last sentence of former ORS 419.578, which purports to preserve the right to appeal certain preadjudicatory orders of the juvenile court, the section does not speak in terms of "appeals" at all. Instead, it bars "proceedings" in adult or juvenile court, once a juvenile court has begun taking evidence in, or has accepted a juvenile's admission in, a case involving the same acts or conduct, i.e., it is a statutory former jeopardy provision. Presumably, the exception in former ORS 419.461(1) for what was "provided in [former] ORS 419.578" was, therefore, simply a reminder that the state's ability to appeal was subject to traditional former jeopardy rules. Whatever ambiguities may exist in or between former ORS 419.561(1) and 419.578, however, turn out to be irrelevant, because there is another statutory subsection that specifically speaks to appeals in delinquency cases like the present one. Former ORS 419.561(7)[6] provided: Former ORS 419.561(7) was enacted after both former ORS 419.561(1) and 419.578. Or Laws 1983, ch 815, § 14. The substantive rights provided in the text of that statute are specific and clear. Our task is to determine whether the legislature intended former ORS 419.561(7) to supersede former ORS 419.561(1) and 419.578 with respect to the state's right to appeal. We hold that it did. The specificity of former ORS 419.561(7) demonstrates the legislature's intent to supersede former ORS 419.561(1) with respect to state appellate rights in delinquency proceedings. Former ORS 419.561(7) specifically limits the state's right to appeal in delinquency cases to four enumerated areas. When a general statute and a specific statute both purport to control an area of law, this court considers the specific statute to take precedence over an inconsistent general statute related to the same subject. The specific statute is considered an exception to the general statute. Smith v. Multnomah County Board of Commissioners, 318 Or. 302, 309, 865 P.2d 356 (1994); Colby v. Larson, 208 Or. 121, 126-27, 297 P.2d 1073 (1956). In addition, former ORS 419.561(7)(b) limits appeals of postadjudicatory final orders to those "setting aside the petition for delinquency" and, thus, contradicts the general right to appeal from "final orders" of the court. The legislature itself has indicated how we should interpret inconsistent statutes. ORS 174.020 provides: Despite the specificity of the text, the state argues that the legislature did not intend to *1196 limit former ORS 419.561(1) when it enacted former ORS 419.561(7). It argues that the latter statute is not "inconsistent" with the former and did not alter the state's general right to appeal. In the face of the specificity of the text, we find that argument unpersuasive. We hold that former ORS 419.561(7) fully enumerated the orders subject to appeal by the state in delinquency proceedings. We now turn to the question whether jurisdiction for the present appeal existed under that statute. The order in the present case was issued after a disposition hearing, but before the court found child to be within the jurisdiction of the juvenile court. Because paragraph (b) of former ORS 419.561(7) applies only to "[a]n order made after an adjudicatory hearing in which the juvenile is found to be within the jurisdiction of the court," it is inapplicable. Paragraphs (a), (c), and (d) provide rights to appeal certain "order[s] made prior to an adjudicatory hearing." Although those provisions might conceivably apply to the present order, closer scrutiny shows that they do not. Paragraph (a) applies to an order "dismissing" or "setting aside" a delinquency petition. Neither of those forms of disposition occurred here. For the duration of the three-year "postponement" order, child's petition was to remain pending before the court. If child were to get into any troubleeither at home or at schoolthe referee was prepared to take child's delinquency petition up and exercise his continuing authority to assume jurisdiction over the child. Paragraph (c) does not apply to this case, because the order of postponement did not pertain to evidence. Paragraph (d) also is inapplicable, because the order was not "for the return or restoration of things seized." It follows from the foregoing that the preadjudicatory postponement order at issue in this case is not subject to appeal under former ORS 419.561(7). Because that statute provides the exclusive rights to appeal by the state in juvenile delinquency proceedings, we also conclude that the Court of Appeals did not have jurisdiction to review the order of the juvenile court referee on direct appeal.[7] The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals with instructions to dismiss the appeal. [1] Oregon's Juvenile Code was revised and recodified by the legislature in 1993. Or Laws 1993, ch. 33. The juvenile code statutes relevant to this appeal survived the 1993 revision, however, and were recodified as part of the new Juvenile Code. Apart from their recodification, and renumbering, they remain substantially unchanged. Because the facts of this case arose before the 1993 recodification, we apply the statutes in effect at that time. Current statute numbers for the relevant provisions will be noted in footnotes. [2] Former ORS 419.581 (1981) (now revised and codified as ORS 419A.150) provided in relevant part: "(6) A judge of the juvenile court may, on own motion, order a rehearing of any matter heard before a referee. "(7) At any time prior to the expiration of 10 days after notice of the order and findings of a referee, a child, the parent, guardian or other person appearing in behalf of the child or the petitioner may apply to the juvenile court for a rehearing. The application may be directed to all or to any specified part of the order or findings." [3] Former ORS 419.561(1) (1991) (now codified as ORS 419A.200(1)), provided: "Except as provided in ORS 419.578, any person whose right or duties are adversely affected by a final order of the juvenile court may appeal therefrom. An appeal from a circuit court shall be taken to the Court of Appeals, and an appeal from a county court shall be taken to the circuit court." [4] Now codified as ORS 419 A. 190. [5] That exception is not relevant to this case. ORS 153.585(1) provides: "Notwithstanding ORS 131.505 to 131.535, if a person commits both a crime and a traffic infraction as part of the same criminal episode, the prosecution for one offense shall not bar the subsequent prosecution for the other. However, evidence of the first conviction shall not be admissible in any subsequent prosecution for the other offense." [6] Now codified as ORS 419A.200(7). [7] Our holding is limited to whether an appeal may be taken from a juvenile court order of the type involved in this case. We express no opinion as to whether there are other means by which the juvenile court referee's order in this case could have been challenged.

99e86884ef62f7523ff8eb5827040afacfd0d98fbbefdc373d5a81cd73f2c44f

1995-08-10T00:00:00Z

0907f775-8696-4ebf-879f-32017ed63463

Chung v. Rosenblum

S070965

oregon

Oregon Supreme Court

422 June 6, 2024 No. 20 IN THE SUPREME COURT OF THE STATE OF OREGON Sandy CHUNG, an individual, and Yvonne Garcia, an individual, Petitioners, v. Ellen ROSENBLUM, Attorney General, State of Oregon, Respondent. (SC S070965) On petition to review ballot title filed March 21, 2024; considered and under advisement on May 7, 2024.* Kelly Simon, American Civil Liberties Union Foundation of Oregon, Inc., Portland, filed the petition and reply memorandum for petitioners. Also on those filings was Alicia LeDuc Montgomery. Shannon T. Reel, Assistant Attorney General, Salem, filed the answering memorandum for respondent. Also on the memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Duncan, Garrett, DeHoog, Bushong, James, and Masih, Justices.* DEHOOG, J. The ballot title is referred to the Attorney General for modification. ­ ______________ *  Flynn, C.J., did not participate in the consideration or decision of this case. Cite as 372 Or 422 (2024) 423 DEHOOG, J. Petitioners seek review of the Attorney General’s certified ballot title for Initiative Petition 54 (2024) (IP 54), contending that the summary does not comply with the requirements set out in ORS 250.035(2)(d). We review the ballot title to determine whether it substantially complies with those requirements. See ORS 250.085(5) (setting out that standard). For the reasons explained below, we refer the ballot title for IP 54 to the Attorney General for modifi- cation of the summary. I.  OVERVIEW OF IP 54 We begin with an overview of IP 54, a copy of which is attached as an Appendix. IP 54 would enact an “Oregon Crimefighting Act,” which, among other provisions, would change current law that applies to the pretrial release of persons charged with “serious crime[s].” IP 54 defines a “seri- ous crime” as any felony or Class A misdemeanor charged in circuit court. IP 54, Part A, § 1.a. Part A of IP 54 contains the operative provisions relating to pretrial release. It first expressly prohibits release before arraignment of any defendant charged with a serious crime. IP 54, Part A, § 2. It next provides that, when a defen- dant is arraigned, the judge shall review the charges and the defendant’s record, and then decide whether the defen- dant shall be released pending trial, based on the follow- ing required considerations: (1) the seriousness of both the charges and the defendant’s criminal record, which includes, to the extent practicable, all arrests and convictions outside of Oregon; and (2) rights established in either the state or federal constitutions, including the right of a crime victim to be reasonably protected from the defendant throughout the criminal justice process, Or Const, Art I, § 43(1)(a), and to have pretrial release decisions be based on the principle of reasonable protection of the victim and the public, as well as the likelihood that the defendant will appear for trial, id. at (1)(b). IP 54, Part A, § 3. Also at arraignment, for any serious crime, the judge is “empowered to establish security 424 Chung v. Rosenblum as to the appearance” of a defendant, “without restrictions previously imposed by statute.”1 Id. § 4. Part A includes two other provisions. First, for any person arrested and charged with a serious crime in any Oregon circuit court, municipal court, or justice court, all state or local agencies “shall cooperate with and comply with any custodial hold or order associated with such person[,]” including one from any other state or territory, any federal agency, any other Oregon county, and any tribal agency. Id. § 5. Second, “the state shall not approve, facilitate, or rec- ognize any name change” for any person convicted of any felony sex crime, first-degree assault, or murder in Oregon, or in any United States jurisdiction with substantially sim- ilar crimes, unless a court finds that extraordinary circum- stances justify a name change. Id. § 6. Part B of IP 54 provides that local governments shall have the power to criminally prohibit or restrict the following activities: public intoxication, public drinking of alcohol or use of any drug illegal under federal law, disor- derly conduct, and trespassing on public property. Id. § 1. Part C of IP 54 pertains to funding. It first pro- vides that the state, through the Department of Corrections (DOC), shall reimburse each county for the cost of pretrial incarceration of persons charged with serious crimes (with related provisions). Id. Part C, § 1. It also provides that DOC shall provide—at the state’s expense and using DOC per- sonnel—incarceration facilities for adults in custody housed by a county, for any county jail exceeding 90 percent of its capacity for 30 days or more (and continuing until the super- visory authority confirms that the capacity problem has been resolved). Id. §5. Part C also sets out a reimbursement rate for the cost of pretrial incarceration, id. at §§ 2 - 4, and it provides that none of the reimbursement or housing pro- visions described in Part C may be set off by any other fund- ing obligation of the state to any county. Id. § 6. 1  As do current Oregon statutes, IP 54 uses the term “security” to mean the more commonly understood term, “bail.” See, e.g., ORS 135.265(1) (referring to “security amount”). In this opinion, we use the term “security release” to refer to release on bail, but we use the simpler term, “bail,” to refer to the setting of a “security” amount. Cite as 372 Or 422 (2024) 425 If approved by the voters, IP 54 would “super- sede[  ] all inconsistent provisions of Oregon law.” Id. Part D. It would become effective on passage and would apply to crimes committed on or after January 1, 2025. Id. Part E. II.  PROCEDURAL BACKGROUND The Attorney General prepared a draft ballot title for IP 54, ORS 250.065(3), and the Secretary of State circu- lated that ballot title for public comment, ORS 250.067(1). After considering the substantive comments received, the Attorney General modified her draft ballot title, ORS 250.067(2)(a), and certified the following ballot title to the Secretary of State: “Limits pretrial release, increases state incarcera- tion costs; requires enforcement of other jurisdic- tions’ custodial holds/orders “Result of ‘Yes’ Vote: ‘Yes’ vote limits pretrial release, increasing jail costs; requires enforcing other jurisdictions’ custodial holds/orders; transfers county incarceration costs/duties to state in certain circumstances. “Result of ‘No’ Vote: ‘No’ vote retains current pretrial release system using risk level assessment, county/state incarceration funding system; no requirement to enforce other jurisdictions’ custodial holds/orders. “Summary: Currently, arrested persons may be released before first court appearance, depending on crime charged, risk level assessment. Counties responsible for pretrial incarceration and incarceration sentences under one year. State may agree to house county inmate at county expense. Persons may legally change name unless change inconsis- tent with public interest. “Measure prohibits release of persons charged with felo- nies/Class A misdemeanors before first court appearance, expands judge’s authority to set bail, and requires state to pay counties’ pretrial incarceration costs; state/local agen- cies must enforce custodial holds/orders from other jurisdic- tions for those persons. State must house county inmates at state expense if jail exceeds established capacity threshold. Prohibits persons convicted of certain felonies from chang- ing name. Local governments may prohibit/restrict certain activities. Other provisions.” 426 Chung v. Rosenblum Petitioners are electors who timely submitted com- ments about the Attorney General’s draft ballot title for IP 54 and who are dissatisfied with the summary of the cer- tified ballot title. See ORS 250.085(2) (describing who may challenge certified ballot title). We conclude, as explained below, that the summary must be modified. III.  DISCUSSION The summary of a ballot title for a state mea- sure must contain a “concise and impartial statement” not exceeding 125 words that “summariz[es] the *  *  * measure and its major effect.” ORS 250.035(2)(d). Petitioners contend that the summary in the certified ballot title for IP 54 does not comply with that standard because it neither sufficiently nor accurately describes the proposed measure’s impacts, which, they contend, “will result in a total revamp of exist- ing law and practice in several significant areas,” most notably, the law governing pretrial release and bail. They relatedly identify specific aspects of both current law and IP 54 that the summary either omits or—they contend— inaccurately describes. The Attorney General responds that the summary substantially complies with ORS 250.035(2) (d) because it uses the available limited words to both tell the voters about current law pertaining to pretrial release and then describe the substantive changes that IP 54 would make. A.  Comparison of Current Law to IP 54 We first briefly summarize the relevant current law governing pretrial release, contrasted against Part A of IP 54, as that contrast relates to petitioners’ arguments. As to release before arraignment, current law tex- tually emphasizes statewide consistency, the reduction of the reliance on security release, and the balancing of an arrested person’s rights and a presumption of pretrial release against community and victim safety and the risk of failure to appear. See ORS 135.233(1) (presiding judge of each judicial district shall issue a pretrial release order that categorizes arrested persons and offenses in one of three ways—those subject to release on recognizance, those sub- ject to release with special specified conditions (conditional Cite as 372 Or 422 (2024) 427 release), and those not eligible for release until arraignment (hold for arraignment)); ORS 135.233(2) (Chief Justice shall establish release guidelines for those pretrial release orders, with the stated purposes of providing a consistent release decision-making structure statewide, reducing reliance on the use of security, and balancing the defendant’s rights and “presumption of pretrial release” against community and victim safety and the risk of failure to appear).2 In contrast to current law, for any person arrested for a felony or Class A misdemeanor, IP 54 would prohibit prearraignment release, regardless of the type of crime charged and also regardless of any other considerations.3 Then, as to release decisions made at arraignment, current law requires consideration of several release criteria, including review of the defendant’s prior criminal record. See ORS 135.230(7); (11) (setting out criteria4); ORS 135.230(10) 2  Pursuant to those statutes, a Chief Justice Order (CJO) is in effect that establishes guidelines for the judicial district’s pretrial release orders. Among other things, that CJO requires considering the categorization of the crime charged (recognizance release, conditional release, and hold for arraignment), as well as other objective, nondiscretionary, and person-based considerations, per- missively including a risk level assessment. CJO 24-014 (May 22, 2024), https:// www.courts.oregon.gov/rules/ Documents/CJO_2024-014.pdf (last accessed May 30, 2024). 3  Current law does prohibit pretrial release—and describes related decision- making procedures—for certain felonies. See ORS 135.240 (person charged with murder, aggravated murder, or treason not subject to release when “the proof is evident or the presumption strong” that person is guilty; setting out decision- making process as to release if those circumstances do not exist; otherwise set- ting out process for determining whether release shall be denied when defendant charged with violent felony and for making related determinations); see also Or Const, Art I, § 14 (offenses except murder and treason “shall be bailable by suffi- cient sureties”; “[m]urder or treason, shall not be bailable, when the proof is evi- dent, or the presumption strong”); Or Const, Art I, § 43(1)(b) (other than murder, aggravated murder, and treason, violent felonies “shall not be bailable” when there is probable cause to believe that the defendant has committed the crime and the court finds, by clear and convincing evidence, that there is a “danger of physical injury or sexual victimization” to the victim or the public by the defen- dant while on release). 4  ORS 135.230(7) lists the following “[p]rimary release criteria”: the rea- sonable protection of the victim or public; the nature of the current charge; the defendant’s prior criminal record (if any, but not defined) and whether the defen- dant appeared for any previously required pretrial appearance; any facts indi- cating the possibility of violations of law if the defendant were released without regulations; and any other facts tending to indicate that the defendant is likely to appear. ORS 135.230(11) sets out “[s]econdary” release criteria, including the defendant’s employment status history and financial condition, nature and extent of family relationships, and past and present residences; the names of 428 Chung v. Rosenblum (magistrate makes release decision based on criteria); see also ORS 135.240 (distinguishing releasable offenses from nonreleasable offenses); ORS 135.245(3) (referring to per- sons having a “right to release”). Current law also requires a judge to (1) release a defendant on their own recognizance, unless the release criteria establish otherwise; (2) consider whether conditional release is warranted before considering whether security release is warranted; and (3) ultimately impose the least onerous type of release reasonably likely to ensure the safety of the public and the victim, as well as the defendant’s later appearance. ORS 135.245(3) - (4). Finally, current law requires, when imposing security release, that bail be set in an amount “that will reasonably assure the defendant’s appearance.” ORS 135.265(1). As summarized earlier, for persons charged with felonies and Class A misdemeanors, Part A of IP 54 would apply different requirements at arraignment. First, a judge would be required to consider a different list of criteria to determine the appropriateness of release (namely, rights established in the state and federal constitutions, and the seriousness of the new charges and of the defendant’s crim- inal record).5 Second, consideration of a criminal record would include all arrests and convictions outside Oregon (as practicable). Third, the judge would more simply be charged with “decid[ing] whether the *  *  * defendant shall be released” pending trial, without sequentially considering the appropriate type of release (if any). IP 54, Part A, § 3. Finally, the judge would be “empowered to establish security *  *  * without restrictions previously imposed by statute”—in contrast to the current requirement that a judge ordering security release must impose bail in an amount sufficient to reasonably ensure appearance at trial. Id. § 4. persons who agree to assist the defendant in attending court; and any facts tend- ing to indicate that the defendant has strong ties to the community. 5  While the criteria set out in IP 54 overlap to some extent with the primary release criteria set out in ORS 135.230(7), we note that IP 54 does not expressly mention or refer to either the criterion of any facts indicating the possibility of violations of law if the defendant were released without regulations or the crite- rion of any other facts tending to indicate that the defendant is likely to appear. IP 54 also does not expressly mention or refer to any of the secondary release criteria set out in ORS 135.230(11). Cite as 372 Or 422 (2024) 429 B.  Parties’ Arguments and Analysis We turn to the parties’ arguments. Petitioners argue that the summary in the ballot title for IP 54 is under- inclusive and misleading because it does not fully commu- nicate that IP 54 would “significantly re-writ[e]” Oregon’s current pretrial detention and bail system. In petitioners’ words, the summary “minimizes” a significant shift toward pretrial incarceration that IP 54 would effectuate, while also failing to inform voters that IP 54 would repeal current law designed to ensure consistent statewide pretrial release decision-making, based on objective and nondiscretion- ary risk assessment tools. Petitioners relatedly highlight particular changes that, they assert, collectively amount to the “major effect” of IP 54: new and expanded criteria that judges must consider when making release decisions at arraignment; increased judicial discretion in setting bail that would permit setting “unrestricted” amounts; and other changes that would result from moving away from the current decision-making approach. The Attorney General disagrees. She contends that the summary tells voters that, currently, arrested persons may be released before arraignment depending on the crime charged and a risk assessment, whereas IP 54 would pro- hibit prearraignment release for certain crimes. And the summary tells the voters that judges have expanded author- ity to set bail amounts. As noted earlier, the summary must contain a “con- cise and impartial statement” not exceeding 125 words that “summariz[es] the *  *  * measure and its major effect.” ORS 250.035(2)(d). When a measure includes multiple subjects, purposes, or effects, they should be recognized to the extent permitted by the word limits. Witt v. Kulongoski, 319 Or 7, 10 n 3, 872 P2d 14 (1994). To identify the actual major effect (or effects) of a measure, we consider the changes that it would make, “in the context of existing law”; we then exam- ine the disputed ballot title component—here, the sum- mary—to determine whether it “reasonably identifies those effects.” Rasmussen v. Kroger, 350 Or 281, 285, 253 P3d 1031 (2011). In assessing petitioners’ arguments about the sum- mary, we are mindful that its purpose is to help voters both 430 Chung v. Rosenblum “understand what will happen if the measure is approved,” as well as the “breadth of its impact.” Fred Meyer, Inc. v. Roberts, 308 Or 169, 175, 777 P2d 406 (1989). We begin with petitioners’ argument that the sum- mary does not adequately capture the breadth of the changes that IP 54 would effectuate. We agree with petitioners that, for persons arrested for felonies and Class A misdemean- ors, IP 54 would create a new pretrial release framework that would replace the framework set out in current law. That potential change is a major effect of IP 54—perhaps its predominant effect. See Rasmussen v. Kroger, 351 Or 195, 202, 262 P3d 777 (2011) (“[a]n ‘effect’ that is at the heart of a proposed measure—such as a shift in the existing stat- utory paradigm for dealing with a subject of interest to the government and the public—qualifies as the proposed measure’s ‘subject matter’  ”). Indeed, IP 54 announces that major effect by expressly stating that it “supersedes all inconsistent provisions of Oregon law.” IP 54, Part D. As an initial matter, we conclude that, to accurately convey the nature of that replacement, the summary must state that IP 54 supersedes, or overrides, current law. See generally Mitchell v. Paulus, 292 Or 577, 580, 640 P2d 1390 (1982) (in rejecting an argument that the words “would repeal” should be removed from a ballot title, court explained that those words were “not a statement of arguable consequences of the initiative”; rather, they were “a statement of what the initiative expressly provides”).6 As discussed next, we also agree with petitioners that, to sufficiently convey the scope of the change that IP 54 would effectuate at arraignment, the summary must more fully describe current law and then more fully and accurately describe the comparative provisions of IP 54. In that regard, petitioners first argue that the summary must convey that IP 54 adds to the criteria that judges are required to consider at arraignment, such as an 6  Our conclusion should not be understood to mean that, whenever a pro- posed ballot measure would amend or repeal an existing law, the ballot title sum- mary necessarily must include words such as “amends,” “repeals,” “supersedes,” or “overrides.” Some changes can be sufficiently summarized, and major effects sufficiently explained, without using those words. Cite as 372 Or 422 (2024) 431 expanded definition of a defendant’s criminal record. More generally, they also contend that the summary fails to reflect the significant impact on release and bail decisions made at arraignment. And, they add, the summary does not accurately describe the provision of IP 54 that “increase[s]” judicial discretion to impose a bail amount, without any restrictions existing in current law. We agree with petitioners that the summary is deficient in that regard as well. Notably, the summary con- tains no description whatsoever about the current law that governs pretrial release decisions at arraignment—namely, that the judge must consider certain criteria; must consider conditional release before considering security release; and must, if ordering security release, set a bail amount that will reasonably ensure the defendant’s appearance. That omission, in turn, means that the voters would have no abil- ity to compare current law governing pretrial release deci- sions made at arraignment to the new provisions proposed in IP 54, applicable to persons arrested for felonies or Class A misdemeanors. Compounding the problem, as petitioners point out, the summary provides only partial information about the provisions of IP 54 that apply to such persons at arraignment: It mentions only the judge’s authority to set bail; it does not mention that IP 54 changes the criteria that the judge must consider before making a pretrial release decision. And finally, the information that it does pro- vide—”expands judge’s authority to set bail”—is confusing and could be misunderstood; that is, voters could mistakenly understand those words to mean that, under IP 54, judges would have increased authority to release persons arrested for felonies and Class A misdemeanors upon payment of bail or otherwise, when, instead, the measure expands the dis- cretion judges have in setting bail in a way that is no longer bound by current considerations or limitations. We conclude that the summary must provide some description to the voters about the current law that applies to pretrial release at arraignment—including the require- ments to consider conditional release before security release and to set bail in an amount that will reasonably ensure appearance. Further, it must describe, accurately but within 432 Chung v. Rosenblum the statutory word limit, the key changes that IP 54 would make to that law for persons arrested for felonies and Class A misdemeanors, namely, that it changes the criteria that the judge must consider and also removes current limits on setting bail amounts.7 See Fletchall v. Rosenblum, 365 Or 98, 116, 442 P3d 193 (2019) (requiring modification of a summary “to make the comparison between the current and projected decisional arrangements more sensible”). IV.  CONCLUSION In sum, we conclude that, to substantially comply with ORS 250.035(2)(d), the summary in the ballot title for IP 54 must be modified in several respects. First, the sum- mary must clarify that, for persons arrested for felonies and Class A misdemeanors, IP 54 would override existing law. Second, as to decision-making at arraignment, the sum- mary must explain that (1) current law requires that con- ditional release be considered before security release and that bail amounts be set to ensure appearance; and (2) IP 54 would both change the criteria for making prerelease deci- sions and remove current limits on setting bail amounts.8 The ballot title is referred to the Attorney General for modification. 7  We observe that, with the addition to the summary that IP 54 changes the release criteria that a court must consider, the summary by implication would sufficiently convey that current law imposes certain criteria (which would change if the voters were to approve IP 54). Petitioners in particular emphasize one change to the release criteria— consideration of an expanded criminal record, which, under IP 54, includes all arrests and convictions outside of Oregon (to the extent practicable). To the extent that petitioners argue that the summary should include that level of detail, we disagree. 8  To modify the ballot title in accordance with this opinion, the Attorney General could choose to use fewer words to describe other aspects of IP 54 (in particular, the current law and provision of IP 54 relating to name changes). We have considered petitioners’ other challenges to the summary in the bal- lot title for IP 54 and have concluded that none has merit under the “substantial compliance” standard set out in ORS 250.085(5). We therefore reject those chal- lenges without further discussion. Cite as 372 Or 422 (2024) 433 APPENDIX OREGON CRIMEFIGHTING ACT The People of Oregon hereby adopt the following statute, to be known as the “Oregon Crimefighting Act.” This Act improves public safety in several ways, and has three prin- cipal objectives: End the “Catch and Release” system as to those charged with felonies and Class A misdemeanors; empower counties and cities to pass ordinances to fight local crime, including public use of drugs which are illegal under federal law; require the state to pay for jail space as to those charged with felonies and Class A misdemeanors who need to be held until the trial process is complete. Part A. End “Catch and Release” of criminal defendants. Section 1. For purposes of this Part A of this Act: a.  “Serious crime” means any felony, and any Class A mis- demeanor, charged in Circuit Court. b.  “Pretrial release” means a release of a criminal defen- dant from incarceration (usually jail) before trial. c.  “Arraignment” means an appearance in front of a Circuit Court Judge, either in person or by electronic means such as video. Section 2. Each criminal defendant charged with a seri- ous crime shall not be eligible for pretrial release from incarceration until the criminal defendant is presented for arraignment. Section 3. When a criminal defendant charged with a serious crime appears at arraignment, the Circuit Court Judge pre- siding at the arraignment shall review the criminal defen- dant’s record, and the charges pending against the criminal defendant, and the Judge shall decide whether the crimi- nal defendant shall be released from incarceration pending trial. In making this decision, the judge shall consider: a.  Rights established in the Constitution of the United States. b.  Rights established in the Constitution of Oregon; these include but are not limited to the provisions of Article I, 434 Chung v. Rosenblum Section 43 of the Oregon Constitution which provide the right of a crime victim to be reasonably protected from the criminal defendant throughout the criminal justice process and the right of the public and the vic- tim to have decisions regarding the pretrial release of a criminal defendant be based upon the principle of reasonable protection of the victim and the public, as well as the likelihood that the criminal defendant will appear for trial. c.  The seriousness of the criminal defendant’s criminal record and the seriousness of the new charges against the criminal defendant. The defendant’s criminal record shall include all arrests and convictions, and all citations in lieu of arrest, in Oregon. The criminal record shall also include, to the extent practicable, all arrests and convictions outside Oregon. Section 4. The Circuit Court Judge is empowered to estab- lish security as to the appearance of the criminal defendant for trial, without restrictions previously imposed by statute, as to any serious crime. Section 5. As to any person arrested for any felony or any Class A misdemeanor charged in any Oregon Circuit Court, Municipal Court, or Justice Court, all Oregon State or local government agencies shall cooperate with and comply with any custodial hold or order associated with such person. This includes any custodial hold or order from any other state or territory, any federal agency, any other Oregon county, and any tribal agency. Each Oregon state or local government agency shall, when appropriate, transfer such arrested per- son to the custody of the jurisdiction presenting the custo- dial hold or order. Section 6. In order to prevent certain convicted criminals from hiding their identity, the state shall not approve, facili- tate, or recognize any name change for any person convicted of any felony sex crime, assault in the first degree, or any degree of murder. This restriction applies as to any convic- tion for a crime in any jurisdiction within the United States where the crime is substantially similar to any of the listed Oregon crimes. This restriction may only be set aside by an Oregon court which finds extraordinary circumstances which justify a name change. Cite as 372 Or 422 (2024) 435 Part B. Allow local governments to better protect public safety. Section 1. Notwithstanding any other provision of state law, local governments have the power to criminally prohibit or restrict the following: a.  Public intoxication as to alcohol or drugs. b.  Public drinking of alcohol. c.  Public use of any drug which is illegal under federal law. d.  Disorderly conduct. e.  Trespassing on public property. Section 2. The powers listed in Section 1 of Part B are in addition to any power which may be held by a unit of local government. Part C. Ensure sufficient jail space and funding for each jail. Section 1. The state shall reimburse each county for the costs of pretrial incarceration of all persons charged with felonies or Class A misdemeanors. The reimbursement shall cover the costs of incarceration for each day that a person charged with a felony or Class A misdemeanor is in in the custody of the supervisory authority of the county, from the date of the person’s arrest until the resolution of the crimi- nal charge. Section 2. Every month, the county shall submit to the Oregon Department of Corrections a written request for reimbursement for the cost of incarcerating persons described in Section 1 of this Part C. Section 3. The Department of Corrections shall reimburse a county that submits a request under Section 2 of this Part C within 30 days of receiving the request. The reimbursement shall occur at the rate of $145 per person per day of incar- ceration or the actual daily cost of incarcerating a person, whichever is higher. Section 4. If the Department of Corrections determines that the reimbursement request by a county under Part C 436 Chung v. Rosenblum is excessive, the issue shall be immediately submitted for consideration and resolution by the Circuit Court of that county. The decision of the Circuit Court as to the amount to be reimbursed shall be final and not subject to appeal. Section 5. If any county jail exceeds 90% of its capacity for 30 days or more, the supervisory authority for the county shall report this to the Department of Corrections, which shall provide incarceration facilities, staffed by Department of Corrections personnel, to house inmates from that county, at state expense. This shall continue until the supervisory authority confirms that the capacity problem has been resolved. Section 6. None of the reimbursement or housing of inmates provisions of Part C of this Act may be set off by any other funding obligations of the state to any county. Part D. This Oregon Crimefighting Act supersedes all inconsistent provisions of Oregon law. Part E. This Act is effective upon passage. The provisions of this Act apply to crimes committed on or after January 1, 2025.

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