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State v. Autele

S070046

oregon

Oregon Supreme Court

No. 22 June 13, 2024 489 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. TASI AUTELE, aka Brian Mulivai Autele, aka Tasi Mulivai Autele, Petitioner on Review. (CC 17CR69755) (CA A172873) (SC S070046) En Banc On review from the Court of Appeals.* Argued and submitted March 7, 2024, at University of Oregon School of Law, Eugene, Oregon. Christopher A. Perdue, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Ernest Lannet, Chief Deputy Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. BUSHONG, 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 a new trial. ______________ *  Appeal from Washington County Circuit Court, Ricardo J. Menchaca, Judge. 323 Or App 594 (2023) (nonprecedential memorandum opinion). 490 State v. Autele Cite as 372 Or 489 (2024) 491 BUSHONG, J. This criminal case implicates a fundamental right protected by the Oregon and federal constitutions—the right to counsel—but our resolution of this case turns on the lack of an adequate record demonstrating that the trial court had discretion to deny defendant’s request to be represented by the attorneys that he had retained. The Court of Appeals concluded that the record was insufficient for it to determine whether the trial court had abused its discretion, and, based on that conclusion, affirmed defendant’s conviction because it “[was] not in a position in which [it] [could] say” that the trial court had erred. State v. Autele, 323 Or App 594, 597 (2023) (nonprecedential memorandum opinion). We allowed review and now reverse. We agree with the Court of Appeals’ assessment that the record in this case was inadequate, but we conclude that a trial court’s discretionary decision to deny a defendant’s request to be represented by retained counsel of their choice may be affirmed on appeal only if the record created by the trial court establishes that its exercise of discretion was per- missible. Because the record in this case does not do so, we reverse and remand for a new trial. I.  BACKGROUND A.  Trial Court Proceedings Defendant retained attorneys Mackeson and Hall to represent him after he was indicted on charges of second- degree assault and strangulation. At defendant’s request on the morning of his first trial date, the trial was delayed so that defense counsel could investigate photographs that had been anonymously left at Hall’s office the previous day. On the next date set for trial, defendant sought to exclude the photographs on grounds that they were subject to an ongoing criminal investigation regarding their authenticity. The trial court initially granted defendant’s motion, but, when pressed by the prosecutor, the court indicated that the state might be able to use the photographs in cross-examining defendant. The prosecutor then expressed concerns about defense counsel’s ethical obligations if defendant were to be 492 State v. Autele confronted with those photographs on the stand. That led to an off-the-record discussion in chambers. When they went back on the record, the court provided the following sum- mary of that discussion: “I *  *  * met with the attorneys in chambers, with Mr. Gerhard, Mr. Mackeson and Mr. Hall. It’s my under- standing that Mr. Mackeson [and Mr. Hall] at this point [have] a conflict with—[they have] requested to withdraw. I don’t know that it’s appropriate for me to go into the con- flict, but [they have] motioned the court for a withdrawal. Based on [their] ethical conflict, I’m going to allow the with- drawal. The State opposed that based primarily on the age of the case. It’s a 2017 case. But based on my understanding of the conflict, I don’t know that I have a choice. So I will reluctantly grant the withdrawal.” Defense counsel did not submit a written motion to with- draw, and the court did not identify on the record the pre- cise ethical issue that led to defense counsel’s request. The court told defendant that it would give him some time to retain another lawyer, and, if that effort was unsuccessful, the court would appoint counsel to represent him. The court set a status hearing nine days later. At that hearing, Mackeson and Hall appeared with defendant and asked, on defendant’s behalf, that they be allowed to represent defendant, which led to another off-the- record discussion in chambers. When they went back on the record, counsel did not state whether or how the conflict that they had previously raised had been resolved, but they did ask the court to put defendant’s request on the record: “[DEFENSE COUNSEL]:  Judge, I think I’d like the record to reflect that in chambers, we made the request to be permitted to represent [defendant]. I know the Court’s going to address that—at least I think—that request. And then, otherwise, I have [defendant’s] file.” The state did not object on the record to Mackeson and Hall’s request to represent defendant, and the court did not inquire further on the record or receive any evidence or other information about a conflict or potential conflict. The court denied the request with the following explanation: Cite as 372 Or 489 (2024) 493 “THE COURT:  Okay. I met with the attorneys in cham- bers the last time we were in open court. The exact date escapes me. I want to say it was two weeks ago. Correct me if I’m wrong, both of you. At that point in time, without get- ting into specifics, I—[defense counsel] had made a motion in my office and—and we put it on the record to withdraw based on some ethical considerations, which, in my mind and in his at the time, were significant. And so I withdrew [defense counsel] and set over the trial of this very old case. I directed [defendant] to be here today with new counsel or I would appoint counsel. I met with the attorneys in my office just a few moments ago and Mr. Mackeson and Mr. Hall asked to be reappointed.[1] “The conflict may or may not have resolved itself, but, in my mind, the Court’s mind, my concerns about the ethical obligations that were raised in the last hearing we had, I’m just not willing to reappoint Mr. Mackeson or Mr. Hall to represent [defendant].” The court then appointed counsel for defendant and set another status hearing. Defendant later retained a different lawyer, who represented him for the remainder of the case. The disputed photographs were not used at trial, and the jury found defendant guilty of third-degree assault, a lesser- included offense. Defendant appealed, contending that the trial court had wrongly denied him his constitutional right to be represented by counsel of his choice. B.  Appellate Proceedings On appeal, defendant argued that, because there was no evidence of an existing conflict of interest that would have delayed or disrupted the trial, the trial court erred by interfering with defendant’s choice of retained counsel. The state responded that defendant had failed to make a record adequate for appellate review of that issue. The Court of Appeals agreed with the state and affirmed the conviction, explaining that it could not say whether the trial court had erred: 1  By stating that Mackeson and Hall had requested to be “reappointed,” the court either misspoke or misunderstood the nature of their requested represen- tation. It is undisputed that Mackeson and Hall had been retained by defen- dant; they had not been “appointed” by the court and were not asking to be “reappointed.” 494 State v. Autele “We are faced with a situation in which we do not have the information on which the trial court based its decision. The court stated that it believed defense counsel’s conflict of interest was significant and indicated that it also believed that it presented a risk that defense counsel would again have to withdraw. Also, from the record that was made, we can discern that the conflict was one that would arise, if at all, during the trial. If that happened, it would be a ‘dis- ruption of the orderly processes of justice.’ Without further information about the nature of the conflict or whether the risk of the conflict arising during trial had been resolved, we are not in a position in which we can say that the trial court erred under the circumstances of this case.” Autele, 323 Or App at 596-97 (emphasis added). Given the importance of a criminal defendant’s constitutional right to counsel, we allowed review. II.  DISCUSSION A.  The Parties’ Contentions The parties agree on several predicate issues. The state does not dispute defendant’s contention that his consti- tutional right to counsel includes the right to be represented by retained counsel of choice under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. And defendant does not dis- pute the state’s contention that his right may be overcome if allowing the requested representation would unduly delay or disrupt the trial court proceedings or violate ethical or professional standards of conduct. However, the parties disagree about the application of those principles in this case. Defendant contends that a trial court must do more than allude to general concerns about unspecified ethical obligations to overcome his con- stitutional right to be represented by retained counsel of his choice. And the state contends, as it did in the Court of Appeals, that defendant’s failure to develop a record that is adequate for review requires this court to affirm. Alternatively, the state contends that the trial court prop- erly declined to permit Mackeson and Hall to represent defendant after they withdrew based on an ethical conflict that the trial court described as “significant.” Cite as 372 Or 489 (2024) 495 We begin our discussion with the constitutional right to counsel that is implicated in this case because that context informs our analysis of the record and the appropri- ate disposition of this case. B.  Defendant’s Constitutional Right to Counsel As noted above, the parties do not dispute that a criminal defendant’s constitutional right to counsel includes the right to be represented by counsel of their choice. That important right is well-established under the Sixth Amendment to the United States Constitution.2 United States v. Gonzalez-Lopez, 548 US 140, 144, 126 S Ct 2557, 165 L  Ed 2d 409 (2006) (stating that “an element of [the Sixth Amendment right to counsel] is the right of a defen- dant who does not require appointed counsel to choose who will represent him”); see also Wheat v. United States, 486 US 153, 158-59, 108 S Ct 1692, 100 L Ed 2d 140 (1988) (noting that the Sixth Amendment “secures the right to the assis- tance of counsel, by appointment if necessary” and that the right may include “the right to select and be represented by one’s preferred attorney”); Powell v. Alabama, 287 US 45, 69, 53 S Ct 55, 77 L Ed 158 (1932) (stating that it would violate the Sixth Amendment and “due process in the constitutional sense” if a court “were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him”). Whether the same right also exists under the par- allel provision of the Oregon Constitution—Article I, section 11—has not been as clearly established.3 Accordingly, defen- dant suggests that we could decide this case based on the Sixth Amendment without addressing Article  I, section 11. 2  The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right *  *  * to have the Assistance of Counsel for his defense.” 3  Article I, section 11, provides: “In all criminal prosecutions, the accused shall have the right *  *  * to be heard by himself and counsel[.]” The Article I, sec- tion 11, right to counsel includes the right to court-appointed counsel, see State v. Smith, 339 Or 515, 526, 123 P3d 261 (2005), but it does not include “the right to court-appointed counsel ‘of the defendant’s own choosing.’  ” State v. Stanton, 369 Or 707, 715, 511 P3d 1 (2022) (quoting State v. Langley, 351 Or 652, 664, 273 P3d 901 (2012)). Thus, a trial court “is not required to appoint a substitute lawyer for a defendant in the absence of a legitimate complaint concerning the one already appointed for him.” Stanton, 369 Or at 715 (quotations omitted). But we have not squarely addressed whether a defendant’s Article I, section 11, right to counsel includes a right to be represented by retained counsel of choice. 496 State v. Autele However, defendant fully briefed the issue under Article I, sec- tion 11, and, as noted above, the state does not dispute that Article I, section 11, also protects a criminal defendant’s right to retained counsel of choice. We ordinarily address state con- stitutional issues before turning to the federal constitution, see State v. Babson, 355 Or 383, 393, 326 P3d 559 (2014) (applying that principle), and we adhere to that approach in this case. As explained below, we conclude that Article I, section 11, like the Sixth Amendment, protects a criminal defendant’s right to be represented by retained counsel of choice, and we fur- ther conclude that the Article I, section 11 right, like the Sixth Amendment right, may be overcome by other considerations, including the need to avoid undue delay or disruption of the trial or violation of ethical and professional standards. Article I, section 11, was part of the original Oregon Constitution. When construing such a provision, we exam- ine the text of the provision in its context, the historical cir- cumstances surrounding its adoption, and the case law that has construed it. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). Our goal is “to identify, in light of the mean- ing understood by the framers, relevant underlying princi- ples that may inform our application of the constitutional text to modern circumstances.” State v. Davis, 350 Or 440, 446, 256 P3d 1075 (2011). Employing that analysis in Davis, we concluded that law enforcement officers did not violate the defendant’s Article  I, section 11, right to counsel when they elicited incriminating statements from the defendant before he had been arrested or charged with a criminal offense. Although Davis dealt with a different issue—namely, at what point in a criminal proceeding the right to counsel attaches—its analysis of Article I, section 11, is instructive. The text of that provision—which states that, in criminal prosecutions, the accused “shall have the right *  *  * to be heard by *  *  * counsel”—certainly suggests that, if the accused has the means to retain a lawyer, the accused’s right “to be heard by *  *  * counsel” includes the right to be represented by the lawyer that they chose to retain. Our historical analysis in Davis of the right to counsel under the Sixth Amendment and the state constitutional counterparts that existed when the Cite as 372 Or 489 (2024) 497 Oregon Constitution was adopted support that conclusion. There, we noted that there was “general agreement among historians” that those provisions were originally understood “as a guarantee only of the right to retained counsel.” 350 Or at 467 (emphasis in original). Although that right was later expanded under both the Sixth Amendment and Article I, section 11, to include a right to court-appointed counsel, see, e.g., Gideon v. Wainwright, 372 US 335, 339-40, 83 S Ct 792, 9 L Ed 2d 799 (1963); State v. Smith, 339 Or 515, 526, 123 P3d 261 (2005), the original understanding of the scope of that right certainly supports the conclusion that a defen- dant’s Article  I, section 11, right to counsel includes the right to be represented by retained counsel of choice. The case law also supports that conclusion. As noted above, the United States Supreme Court has inter- preted the Sixth Amendment to include the right to be rep- resented by retained counsel of choice, and this court has suggested that the same is also true under Article I, section 11. See State v. Delaney, 221 Or 620, 639, 332 P2d 71 (1958) (stating that the Article I, section 11, right to counsel went “no further than to assure the defendant that he may be heard by himself and the counsel which he chose to employ” (emphasis added)). Accordingly, we conclude that a criminal defendant’s Article I, section 11, right to counsel includes the right to be represented by retained counsel of choice. We have also recognized, however, that a defen- dant’s Article I, section 11, rights may be overcome by other considerations. For example, in State v. Rogers, 330 Or 282, 301, 4 P3d 1261 (2000), we indicated that a defendant’s Article I, section 11, right to be heard “by himself” may be overcome by the court’s responsibility to conduct a trial in an orderly and expeditious manner: “[A] trial court is obliged to accommodate the exercise of all pertinent constitutional and statutory rights by all par- ties within the context of an orderly and expeditious trial. Nothing in the text of Article I, section 11, suggests that the framers intended that a defendant’s right to be heard ‘by himself’ should override the court’s authority and respon- sibility to conduct the trial as an orderly and expeditious proceeding. The historical circumstances and case law sur- rounding Article I, section 11, support that reading.” 498 State v. Autele Id. at 301; see also State v. Hightower, 361 Or 412, 417-18, 393 P3d 224 (2017) (stating that “a number of interests” can overcome a defendant’s Article I, section 11, rights, including “the trial court’s overriding obligation to ensure the fairness and integrity of the trial and its inherent authority to con- duct proceedings in and orderly and expeditious manner”). In that respect, Article I, section 11, also parallels the Sixth Amendment. The Supreme Court has stated that a criminal defendant’s Sixth Amendment right to be repre- sented by retained counsel of their choice “is circumscribed in several important respects.” Wheat, 486 US at 159. Among them, standards of professional ethics and conduct can be a basis for overcoming a defendant’s Sixth Amendment right to retained counsel of choice. For example, the defendant in Wheat had asked the trial court to allow a substitution of counsel so that he could be represented by an attorney who was also representing two codefendants. Although the defendant attempted to waive any ethical conflict, the trial court refused to accept the waiver and the defendant was convicted. The Supreme Court affirmed the conviction, stating that a trial court, “confronted with and alerted to possible conflicts of inter- est[,] must take adequate steps to ascertain whether the conflicts warrant separate counsel.” Id. at 160. The Court explained that the Sixth Amendment’s “presumption in favor of counsel of choice” may be overcome by a court’s “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession[.]” Id. The Court further explained that a trial court “must be allowed substantial latitude” in refusing a conflict waiver where an actual or potential conflict exists, id. at 163, con- cluding that, “where a court justifiably finds an actual con- flict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants be separately represented.” Id. at 162. The Supreme Court also explained how ethical considerations may overcome a defendant’s right to be rep- resented by retained counsel of choice in Gonzalez-Lopez. There, the trial court had denied a request by the defen- dant’s retained attorney to be admitted pro hac vice because Cite as 372 Or 489 (2024) 499 the attorney had violated a rule of professional conduct.4 In accepting the government’s concession that the defendant had been denied his right to counsel of choice and concluding that harmless error analysis did not apply in that context, the Court acknowledged that a trial court has “an ‘indepen- dent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’  ” 548 US at 152 (quoting Wheat, 486 US at 160). The Court further observed that trial courts have “wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar[.]” Id. (internal cita- tion omitted).5 Because we conclude that defendant’s right to coun- sel of choice under Article I, section 11, reflects the same fundamental interests protected by the Sixth Amendment, we likewise conclude that that right may be overcome by the same general considerations that can override a crimi- nal defendant’s Sixth Amendment right.6 As a result, trial courts have some discretion under Article I, section 11, in assessing whether defendant’s right to be represented by retained counsel of choice is outweighed by ethical require- ments or the potential for unduly delaying or disrupting the trial. 4  An attorney who is a member of the bar in one state may be admitted pro hac vice to appear in court in another state on a particular matter. In Gonzales- Lopez, the defendant retained a California lawyer to represent him on criminal charges in Missouri. The district court denied the attorney’s request for admis- sion pro hac vice stating that, by passing notes to co-counsel, the attorney “had violated a court rule restricting the cross-examination of a witness to one coun- sel.” 548 US at 142. 5  The Court ultimately concluded that “[n]one of [those] limitations on the right to choose one’s counsel [were] relevant” in Gonzales-Lopez because the gov- ernment had conceded the constitutional violation and a violation of the defen- dant’s Sixth Amendment right to counsel of choice “is not subject to harmless- error analysis.” 548 US at 152. 6  By reaching that conclusion, we are not suggesting that we must follow the Supreme Court’s interpretation of the Sixth Amendment when we interpret Article I, section 11. We have interpreted those rights differently in other con- texts. See State v. Prieto-Rubio, 359 Or 16, 26-37, 376 P3d 255 (2016) (discussing how the Article I, section 11, right to counsel in the context of police questioning differs from the Supreme Court’s interpretation of the Sixth Amendment right in Texas v. Cobb, 532 US 162, 168-72, 121 S Ct 1335, 149 L Ed 2d 321 (2001)); State v. Savinsky, 364 Or 802, 814, 441 P3d 557 (2019) (noting that Prieto-Rubio “endors[ed] the conclusion and reasoning of the Cobb dissent”). 500 State v. Autele Defendant contends, however, that, for his convic- tion to be affirmed on appeal, the record must affirmatively demonstrate that the trial court assessed the relevant con- siderations and made a decision that was within the per- missible range of its discretion. Because the record does not demonstrate that in this case, defendant contends that his conviction must be reversed. As explained below, we agree with defendant. C.  The Trial Court’s Obligation to Make an Adequate Record We have not previously addressed the extent to which a trial court has an obligation to make an ade- quate record supporting its decision to deny a defendant’s request to be represented by retained counsel of choice. But we have addressed the trial court’s record-making obli- gations in denying a defendant’s request to waive counsel and exercise their right of self-representation. Because we have recognized that the right to be represented by coun- sel is “the counterpart” to the right of self-representation, Hightower, 361 Or at 416; see also Rogers, 330 Or at 297 (not- ing that Article I, section 11, establishes the right to self- representation “in conjunction with the right to be heard by counsel”), our analysis of the consequences of a trial court’s failure to make an adequate record in connection with a defendant’s waiver of the right to counsel is informative.7 In that context, our cases clearly establish that, where the record is insufficient to show that a defendant knowingly and intentionally waived their right to counsel, thereby exercising their right to self-representation, a defendant’s conviction must be reversed. For example, in State v. Langley, 351 Or 652, 665, 273 P3d 901 (2012), we explained: “Because courts are reluctant to find that a defendant has waived fundamen- tal constitutional rights, we will not presume a waiver of 7  We have explained that the Article I, section 11, right to “to be heard” by oneself “includes the right to self-representation.” Hightower, 361 Or at 416. Thus, a defendant may waive his right to counsel. State v. Meyrick, 313 Or 125, 131, 831 P2d 666 (1992). By waiving the right to counsel, “a defendant necessarily asserts the right to self-representation.” Hightower, 361 Or at 417. Conversely, “by assert- ing the right to counsel, a defendant waives the right to self-representation.” Id. Cite as 372 Or 489 (2024) 501 the right to counsel from a silent record.” See also State v. Meyrick, 313 Or 125, 132, 831 P2d 666 (1992) (a valid waiver of the right to counsel “will not be presumed from a silent record”); State v. Stanton, 369 Or 707, 716, 511 P3d 1 (2022) (same). In that context, we have indicated that “courts should strive to demonstrate on the record that a defendant understands the implications of the waiver.” Meyrick, 313 Or at 133 n 9. Although this case does not involve a waiver of the constitutional right to counsel or a request to exercise the right of self-representation, our decisions in Stanton and Hightower nonetheless inform our conclusion that the bur- den to make a record is on the court exercising discretion to deny retained counsel of choice, rather than on unrepre- sented defendants. The defendant in Stanton had been rep- resented by several different court-appointed lawyers after he was charged with multiple felonies. During trial, there were three motions involving the representation of defen- dant pending at the same time: (1) defendant’s motion for substitute counsel on the ground that his lawyer was not providing adequate representation; (2) the lawyer’s request to withdraw on the ground that she could not continue to represent the defendant under the Rules of Professional Conduct; and (3) the prosecutor’s assertion that defendant had waived his right to counsel through misconduct. The trial court did not address any of those motions expressly, instead proceeding “as if [the] defendant’s only options were to continue with [his current] court-appointed counsel or go without court-appointed counsel.” 369 Or at 719. The defen- dant opted to proceed without counsel for the remainder of the trial. He was convicted and sentenced to a lengthy prison sentence. We reversed and remanded for a new trial. We explained that “the record [was] not clear as to why the trial court allowed the trial to proceed without counsel for [the] defendant.” 369 Or at 722. On the record before it, the trial court “could not conclude that [the] defendant [had] waived his right to counsel, either impliedly or expressly.” Id. Ultimately, we concluded that, “[b]ecause the record does not establish that [the] defendant made an intentional and 502 State v. Autele knowing waiver of his right to counsel, and because we can- not determine what the outcome of the case would have been had [the] defendant been represented by counsel, we must remand this case for a new trial.” Id. at 723. In Hightower, the defendant attempted to waive his right to counsel and begin representing himself in the mid- dle of trial. The trial court denied that request, concluding as a matter of law that the defendant could not invoke the right to self-representation after the trial had commenced. We reversed. We acknowledged that the trial court had some discretion in deciding whether to accept the defendant’s waiver, but concluded that “the record must include some indication of how the trial court actually weighed the rele- vant competing interests for an appellate court to be able to determine whether the trial court abused its discretion[.]” 361 Or at 421. We explained that express findings are not required, “so long as the record reveals the reasons for the trial court’s actions.” Id. at 421 (citing State v. Guzek, 358 Or 251, 269, 363 P3d 480 (2015)). But it was not sufficient, we emphasized, “that an appellate court may be able to speculate about what might have been the trial court’s rationale for its decision.” 361 Or at 421 (emphasis in original). And we rejected the state’s argument that the trial court “reasonably could have deter- mined that the interest in [an] orderly and expeditious trial outweighed any prejudice to defendant’s right to self- representation.” Id. at 422. The applicable test, we explained, “is not whether the court reasonably could have made that determination. The test is whether the record reflects that the trial court’s actual decision amounted to a reasonable exercise of its discretion.” Id. Applying Stanton and Hightower in this case sug- gests that, because the record does not demonstrate that the court’s decision to deny defendant’s constitutional right to be represented by retained counsel of choice was a permissible exercise of its discretion, the appropriate result is to reverse and remand for a new trial. The state protests, arguing that, under the general principle that a party asserting error has the burden to make a record demonstrating the error, the Cite as 372 Or 489 (2024) 503 appropriate result is to affirm.8 But that principle does not apply to every claimed error in a criminal case. As discussed above, the general principle that the party asserting error has the burden to make a record showing that the trial court erred does not apply where the claimed error is the trial court’s acceptance of a defendant’s waiver of the right to counsel, as in Stanton, or the trial court’s refusal to allow a defendant to represent himself, as in Hightower. A defendant claiming that a trial court erred in those contexts is entitled to a reversal and remand for a new trial if the record does not support the trial court’s exer- cise of discretion. In addition, we have recognized in other contexts that trial courts have an affirmative obligation to create a record supporting a discretionary decision affecting a defen- dant’s rights at trial. For example, although we have “long recognized the right of a criminal defendant to appear free of physical restraints during a jury trial,” State v. Washington, 355 Or 612, 627, 330 P3d 596 (2014) (quoting State v. Bowen, 340 Or 487, 495, 135 P3d 272 (2006), cert den, 549 US 1214 (2007)), that right is subject to some limitations. Thus, a trial court “has discretion to order physical restraint of a defendant if there is sufficient evidence of a substantial risk of dangerous or disruptive behavior[.]” Washington, 355 Or at 628. When that occurs, evidence of that risk “should be placed on the record in a hearing for that purpose.” Id. After hearing such evidence, “the trial court must make a record of its factual findings and reasoning in support of its order.” Id. The purpose of making those findings on the record “is to facilitate appellate review.” Guzek, 358 Or at 268. As we have explained, appellate review “is better facilitated by a record of findings that is direct, express, and clearly delineated.” Id. at 269. In that context, “the standard for determining error in the sufficiency of the judicial record is a functional 8  In one of the cases on which the state relies, State v. Bowen, 340 Or 487, 135 P3d 272 (2006), cert den, 549 US 1214 (2007), we declined to address a defendant’s claim that the trial court had erred in excluding testimony because defendant had failed to make an offer of proof of the testimony he expected to elicit. There, we affirmed the conviction, explaining that “[w]ithout an offer of proof *  *  * [the] defendant failed to make an adequate record for this court to review.” Id. at 501. 504 State v. Autele one—namely, whether the record reveals the findings and reasoning for the court’s actions.” Id. Additionally, we held in State v. Lutz, 306 Or 499, 760 P2d 249 (1988), that the trial court’s failure to make a record that the defendant had consented to finishing his criminal trial with eleven jurors after the court excused a juror who had become ill required reversing the defen- dant’s conviction. Although the defendant did not object at the time, the Court of Appeals reversed his conviction, concluding that the defendant’s consent to continuing with fewer than twelve jurors must be stated affirmatively on the record. We agreed, explaining that the trial court’s decision to discharge a juror and proceed with the remaining eleven jurors “are matters of importance bearing on the conduct of a trial.” Id. at 503. We concluded that proceeding “without [the] defendant’s consent on the record was reversible error.” Id. Accordingly, we held that the Court of Appeals “correctly vacated [the] defendant’s conviction.” Id. We further held in Lutz that the Court of Appeals had erred in remanding to the trial court to determine whether the defendant had consented “off the record” to continuing the trial with only eleven jurors. We explained: “A criminal trial should be conducted on the record. The trial courts of this state are courts of record and nothing of importance bearing on the conduct of the trial should be ‘off the record.’  ” Id.; see also State v. Williams, 322 Or 620, 624 n 7, 912 P2d 364 (1996) (“Discussion off the record of mat- ters as to which issues on appeal could arise is ill-advised, either because no official record is made of the matters or because whatever record that is made often is summary in nature.”). Dismissing a juror and continuing a trial with the remaining eleven jurors “are matters of such importance” that the “[f]ailure to show [the defendant’s consent] on the record” may not be cured by a remand. Lutz, 306 Or at 503. Instead, we concluded, the defendant was entitled to a new trial. When a trial court declines to accommodate a criminal defendant’s constitutional right to be represented at trial by their retained counsel of choice, that decision affects an important constitutional right bearing on how Cite as 372 Or 489 (2024) 505 trial is conducted. We should not presume from a silent or inadequate record that a trial court did not err in denying a defendant’s request to be represented by retained counsel of choice, just as we would not presume from a silent or inade- quate record that a trial court did not err in finding that a defendant had waived his right to be represented by coun- sel. The trial court is in the best position to make a record that shows why it determined that overcoming a defendant’s Article  I, section 11, right to be represented by retained counsel of choice was a permissible exercise of its discretion. Accordingly, we conclude that, when a trial court denies a criminal defendant’s request to be represented by retained counsel of their choice, the record must demonstrate that the trial court’s decision was a permissible exercise of its discretion. D.  The Record in this Case The record in this case reveals that: (1) defendant retained attorneys Mackeson and Hall to represent him after he was indicted on criminal charges; (2) on the first scheduled trial date, the court granted defense counsel’s request to postpone the trial so that they could investigate photographs that had been anonymously delivered to Hall’s office; (3) on the next scheduled trial date, the trial court granted defense counsel’s request to withdraw due to an ethical conflict that would likely arise from the prosecutor’s plan to cross-examine defendant about those photographs; (4) nine days later, at the next court appearance, the same attorneys appeared and asked to be allowed to represent defendant; and (5) the trial court noted that the ethical conflict “may or may not have resolved itself,” but it denied defendant’s request due to its “concerns” about the ethical obligations that had been previously raised. Although that record shows that the trial court gen- erally understood that defendant’s right to be represented by retained counsel of his choice could be qualified by ethi- cal or efficiency concerns, it does not demonstrate that the trial court weighed the relevant considerations and acted within the permissible range of its discretion in denying defendant’s request to be represented by Mackeson and Hall. This record does not reveal whether there was a sufficient 506 State v. Autele risk that allowing that representation would unduly delay or disrupt the trial, or whether Mackeson and Hall’s rep- resentation of defendant at trial would have violated any ethical or professional standards of conduct. Here, most of the discussions about a potential con- flict of interest occurred off the record, and the trial court did not make a record sufficiently demonstrating that its concerns about a continuing ethical issue were justified and threatened to delay or disrupt the trial. Instead, the trial court just stated that it had concerns, and although it described the prior ethical conflict as “significant,” it acknowledged that the prior conflict “may or may not” have been resolved. On this record, those generalized concerns do not outweigh defendant’s constitutional right to be repre- sented by retained counsel of his choice. Under the Sixth Amendment, as the United States Supreme Court explained in Wheat, although a trial court has “substantial latitude” in denying a defendant’s right to retained counsel of choice due to ethical concerns, the trial court “must take adequate steps to ascertain” whether taking that action is warranted. 486 US at 163; 160. After taking those steps, where a trial court “justifiably finds” an actual or potential conflict of interest exists, it has dis- cretion under the Sixth Amendment to decline defendant’s choice of retained counsel. Id. at 162. The same analytical process is required under Article I, section 11, of the Oregon Constitution. But the record in this case does not show what steps, if any, the trial court took to “ascertain” whether its concerns about an ethical conflict were justifiable, or even whether an ethical conflict continued to exist. The possibility that one or more of the off-the-record discussions might have justified the trial court’s exercise of discretion is insufficient to uphold defendant’s conviction. As we explained in Lutz, “nothing of importance bearing on the conduct of the trial should be ‘off the record.’  ” 306 Or at 503. And as we stated in Hightower, “the test is not whether the court reasonably could have” denied defendant’s request in the exercise of its discretion. 361 Or at 422. Rather, “[t] he test is whether the record reflects that the trial court’s Cite as 372 Or 489 (2024) 507 actual decision amounted to a reasonable exercise of its dis- cretion.” Id. Applying that test, the record in this case does not reflect that the trial court’s decision amounted to a rea- sonable exercise of its discretion. Because the state did not object on the record to defendant’s request to be represented by Mackeson and Hall, the court’s decision was based on its own lingering concerns about possible ethical issues that might disrupt or delay the trial. But trial courts are always alert for something that might disrupt or delay a trial. To overcome a defendant’s constitutional right to retained counsel of their choice, the record must reflect that those concerns were reasonable under the circumstances, thereby showing that its decision was a permissible exercise of its discretion. Contrary to the state’s assertion, characterizing the ethical conflict that led Mackeson and Hall to withdraw in the first place as “significant” is not enough to support the trial court’s exercise of discretion, especially considering the court’s acknowledgment that the original conflict “may or may not” have been resolved. Instead, to show that its deci- sion was a permissible exercise of discretion, the court itself needed to explain the nature of its concerns, why it deter- mined that those concerns were justifiable under the cir- cumstances, and why it determined that they might unduly delay or disrupt the trial. Making an adequate record does not mean that trial courts must invade the attorney-client privilege or pressure a defendant to waive that privilege, and it may require the court to address the defendant or defense counsel on the record but outside the presence of the prosecutor, and to seal the record to preserve confidentiality. The record in this case does not demonstrate that the trial court’s denial of defendant’s constitutional right to be represented by the attorneys he retained to represent him at trial was a permissible exercise of its discretion. Accordingly, as in Stanton and Hightower, the appropriate result is to reverse and remand for a new trial.9 9  The state does not contend that any error should be considered harmless under Article VII (Amended), section 3, of the Oregon Constitution, “but we have an independent obligation to consider whether defendant was prejudiced.” State 508 State v. Autele The Court of Appeals’ decision is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for a new trial. v. Sperou, 365 Or 121, 140, 442 P3d 581 (2019). The “harmless error” test asks a single question: is there little likelihood that a particular error affected the ver- dict? State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). We cannot say that there was “little likelihood” that this error affected the verdict because, as in Stanton, we “cannot determine what the outcome of the case would have been” if defendant had been represented by different counsel. Stanton, 369 Or at 723; see also State v. Cole, 323 Or 30, 36-37, 912 P2d 907 (1996) (concluding that trial court’s failure to obtain a valid waiver of counsel was prejudicial and not harmless because this court was “unable to determine the outcome” had the hearing been conducted with the assistance of counsel). Because we remand for a new trial based on Article I, section 11, of the Oregon Constitution, we need not decide whether the trial court also violated defendant’s rights under the Sixth Amendment.

a6e1f9e34f000a659d818ef72c7865d7af3e63f1bbb49eefb1f5ea30818905c7

2024-06-13T00:00:00Z

42020fe1-86be-42ff-8ddc-9b0f55539368

BAYRIDGE ASSO. LTD. PART. v. Dept. of Rev.

321 Or. 21, 892 P.2d 1002

oregon

Oregon Supreme Court

892 P.2d 1002 (1995) 321 Or. 21 BAYRIDGE ASSOCIATES LIMITED PARTNERSHIP, formerly known as A & G Builders, Ltd., Respondent, v. DEPARTMENT OF REVENUE, State of Oregon, Appellant. DURHAM PARK LIMITED PARTNERSHIP, Respondent, v. DEPARTMENT OF REVENUE, State of Oregon, Appellant. OTC 3271, OTC 3272; SC S41163. Supreme Court of Oregon, In Banc. Argued and Submitted January 5, 1995. Decided April 21, 1995. *1003 Robert B. Rocklin, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the briefs were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. David P. Weiner and Anne L. Meagher, of Samuels, Yoelin, Weiner, Kantor & Seymour, argued the cause and filed the brief for respondents. GRABER, Justice. This case involves the valuation, for ad valorem tax purposes in the tax year 1990-91, of two apartment complexesthe Durham Park Apartments, located in Tigard, and the Bayridge Apartments, located in Beaverton. The Tax Court found that the true cash value of the Durham Park property was $6,535,000 and that the true cash value of the Bayridge property was $4,412,000. Bayridge Assoc. Ltd. Partnership v. Dept. of Rev., 13 OTR 24, 31, 1994 WL 33368 (1994). On de novo review, ORS 305.445, we affirm. Durham Park Limited Partnership and Bayridge Associates Limited Partnership (taxpayers) receive federal income tax credits, under 26 U.S.C. § 42 (IRC § 42), in return for operating the properties at issue as low-income housing. The Tax Court held that that arrangement, as applied by the Oregon Housing Authority (OHA),[1] constitutes a "governmental restriction as to use" of the properties under ORS 308.205(2) (1989).[2] 13 OTR at 27-28. The Tax Court concluded that the "governmental restriction as to use" made taxpayers' appraisal based on actual or contract rents more accurate in determining the true cash value of the properties than the appraisal based on market rents conducted by the Department of Revenue (department). Id. at 31. The department appealed. The issue presented on appeal is a legal one: whether a property owner's participation in the section 42 low-income housing program constitutes a "governmental restriction as to use" of the property, thereby requiring a reduction in the assessed value of the property pursuant to ORS 308.205(2) (1989). There are no factual issues. The department and taxpayers agree about the operative facts, and they do not quarrel with each other's calculations; we simply must determine whose appraisal to accept. Durham Park was completed in 1989. The project contains 224 living units in 28 eight-unit (8-plex) buildings. The 8-plexes are all three-story buildings. There are separate one-story buildings that contain garages, offices, and a recreation area. Durham Park *1004 was constructed, and is operated, as a low-income housing project. The Bayridge complex is similar to the Durham Park project. It is a multi-building, 246-unit development. Bayridge was constructed, and is operated, as a low-income housing project. Bayridge was 60 percent complete as of the assessment date. Under 26 IRC § 42, the owner of an apartment complex may qualify for substantial income tax credits. As the Tax Court properly noted, "[t]he laws governing income tax credits and low-income housing are complex." 13 OTR at 26. See generally Andrew Zack Blatter and Elena Marty-Nelson, An Overview of the Low Income Housing Tax Credit, 17 U.Balt.L.Rev. 253 (1988) (providing a detailed examination of the operation of the low-income housing tax credit). A brief overview of that law will suffice for our purposes here. The low-income housing tax credit is available for certain low-income housing projects. IRC § 42(a), (c)(2), (g). In order to qualify for that credit, the owner of, or investor in, an apartment complex must make available a certain number of rental units in the project for use by the general public on a residential (i.e., non-transient and non-commercial) basis for not less than 15 years. IRC § 42(g), (i)(1). If the owner or investor qualifies, section 42 provides income tax credits to the owner or investor over a 10-year period, IRC § 42(f)(1), based on the cost of the building and the proportion of the building used by low-income tenants, IRC § 42(a)-(d). The Internal Revenue Code (Code) places a limit of $1.25 per capita on the aggregate amount for each taxable year that may be claimed as credits by all the taxpayers in a given state. IRC § 42(h)(3)(C). The Code requires that "the State housing credit ceiling for each calendar year shall be allocated to the housing credit agency of" each state. IRC § 42(h)(3)(B). The state agency allocates those credits to owners or investors. IRC § 42(h)(3)(A). In 1990, Oregon had $2,643,750 in tax credits to allocate. If a project fails to comply with the tenant and rent limitations in IRC § 42 at any time during the 15-year compliance period, the taxpayer is subject to a recapture of a portion of the credit claimed. IRC § 42(j). Additional taxes, plus interest, will be due as a result. IRC § 42(j)(2). When a sale occurs before the end of the 15-year compliance period, it is possible to avoid recapture on the sale of a low-income housing project that qualifies for tax credits under IRC § 42. To accomplish that, the seller of the project must post a bond in an amount satisfactory to, and for the period required by, the Secretary of the Treasury, if it reasonably is expected that the project will continue to be operated as a qualified low-income project for the remainder of the building's compliance period. IRC § 42(j)(6). The amount of the required bond generally equals or exceeds the value of the credits claimed or available. See Rev.Rul. 90-60, 1990-2, CB 2 (explaining bond). In Oregon, for the tax year in question, the OHA administered the distribution of federal tax credits for low-income housing. ORS 456.559(1)(f) (1989). That agency was established by statute, ORS 456.553(1) (1989), in response to the legislature's conclusion that there was an inadequate supply of low-income housing in Oregon and that it was the desire of the state to ensure an adequate supply of such housing. ORS 456.550 (1989). If a taxpayer received credits under IRC § 42 and later failed to comply with the federal statutory requirement, OHA would report that noncompliance to the Internal Revenue Service. See Treas.Reg. § 1.42-5(e)(1). Under IRC § 42, as already noted, the taxpayer claiming the credit must limit rents in the complex to obtain the tax credits. OHA set additional requirements. For example, OHA's allocation document pertaining to the properties in question incorporated by reference the terms and conditions set forth in taxpayers' applications for tax credits. Those applications provide that taxpayers must "[a]gree to rent, or hold available for occupancy, for 15 years at least 20% of the dwelling as Rent Restricted Units for low-income tenants whose incomes are 50% or less of area median gross income adjusted for family size, or at least 40% of the *1005 dwelling as Rent Restricted Units for low-income tenants whose incomes are 60% or less of area median gross income adjusted for family size." Against that background, we examine the applicable Oregon statutes. ORS 308.232 (1989) required all property to be assessed at 100 percent of its true cash value. ORS 308.205 (1989), quoted at note 1, ante, defined "true cash value" as "the market value" of the property. However, ORS 308.205(2) (1989) also provided that, when a property was "subject to governmental restriction as to use," true cash value must be adjusted to reflect or take into account that restriction. Taxpayers argue (and the Tax Court held) that the federal low-income housing tax credit program, as administered by OHA, constitutes a "governmental restriction as to use" that needs to be taken into account in determining the true cash value of the property pursuant to ORS 308.205(2) (1989). The department counters that the section 42 program is not a "governmental restriction," because a "governmental restriction" must be involuntary and it must not be to a taxpayer's financial advantage. The department further contends that, even if the program is a "governmental restriction," it is not a governmental restriction "as to use" of the property. For the reasons that follow, we agree with taxpayers and the Tax Court. 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). The text of the statutory provision in question is the best evidence of the legislature's intent and the starting point for our inquiry. Id. at 610, 859 P.2d 1143. Words of common usage typically should be given their plain, natural, and ordinary meaning. Griffin v. Tri-Met, 318 Or. 500, 508, 870 P.2d 808 (1994). We use the foregoing principles in interpreting ORS 308.205(2) (1989). That statute did not define "restriction." In ordinary usage, a "restriction" is: A restriction thus is "a limitation placed on the use or enjoyment" of the property, without any necessary reference to the process that led to the placement of that restriction, without any necessary reference to the form of the restriction (e.g., by statute or by contract), and without any necessary reference to the absence of an economic benefit in exchange for placement of that restriction. ORS 308.205(2) (1989) also used, without defining it, the adjective "governmental" to modify the noun "restriction." In ordinary usage, "governmental" means "of or relating to government or to the government of a particular political unit." Webster's Third New Int'l Dictionary at 983. A "governmental" restriction thus is a limitation "of * * * the government of a particular political unit," placed on the use or enjoyment of property. There is no necessary reference to who initiated the process that led to the government's placement of a restriction on the property, nor is there a necessary reference to how the restriction is expressed (e.g., by statute or by contract), nor is there a necessary reference to whether the restriction was placed in exchange for an economic benefit. As noted above, the department first argues that the availability of section 42 tax credits does not create a "governmental restriction," because (a) the taxpayer chooses to participate in the program and (b) the program results in financial gain to the taxpayer. We are not persuaded. Nothing in the text of ORS 308.205(2) (1989) suggests that a "governmental restriction" must be involuntary at its inception. Neither does the text suggest that a taxpayer may not derive an economic benefit from a "governmental restriction." The text of ORS 308.205(2) (1989) does not distinguish between voluntary and involuntary, or between beneficial and non-beneficial, "governmental restrictions." We are not at liberty to read in such requirements. See ORS 174.010 (when this court interprets a statute, it may *1006 not "insert what has been omitted, or * * * omit what has been inserted").[3] Taxpayers entered into an agreement with OHA that limited the rents that taxpayers could charge to tenants residing in taxpayers' properties and limited the pool of tenants to whom they could rent apartments. Taxpayers agreed to those limitations for a period of 15 years. As of the assessment date, those limitations restrained how taxpayers could enjoy their property. Those limitations came from a binding agreement with a governmental agency, the breach of which would entail serious financial consequences to taxpayers. Thus, the limitations were "governmental restrictions." The department next argues that, even if participation in the section 42 low-income housing credit program is a "governmental restriction," it is a "governmental restriction as to income" but not a "governmental restriction as to use." (Emphasis added.) Again, we disagree. The noun "use" means, among other things, "a method or manner of using something"; "the legal enjoyment of property that consists in its employment, occupation, exercise, or practice." Webster's Third New Int'l Dictionary at 2523. Utilizing that definition, a "governmental restriction as to use" includes a governmental restriction as to the method or manner of using the property in question, or as to how the property is employed or occupied. As already explained, taxpayers are subject to governmental restrictions concerning the persons to whom they may rent, as well as how much they may charge those to whom they rent. Furthermore, under those governmental restrictions, taxpayers must provide a certain number of residential housing units. That is, taxpayers must maintain at least a part of the complexes as residential. Even if taxpayers wanted to use the properties for non-residential purposes (such as commercial purposes), and even if those uses were permitted by applicable zoning laws, the governmental restrictions placed on those properties would inhibit such a use. Those limits on what taxpayers may do with their properties, resulting from taxpayers' participation in the section 42 program, constitute "governmental restriction[s] as to use." The context of ORS 308.205(2) (1989) supports the view that the legislature intended that the phrase "governmental restriction as to use" to encompass a broad realm of potential governmental limitations. The context of a statute includes other provisions of the same statute and other related statutes. PGE, 317 Or. at 611, 859 P.2d 1143. The provision that became ORS 308.205(2) (1989), containing the phrase "governmental restriction as to use," was added to the statute in 1977 as part of Senate Bill 827. Or. Laws 1977, ch. 423, § 2. Senate Bill 827 contained six sections: Section 1 added a new provision to ORS chapter 308 to address downzoning, a situation in which "the assessed value of any real property is reduced by reason of the adoption of or a change in the comprehensive plan, zoning ordinance, or zoning designation for such property not at the request of the owner." (Emphasis added.) Section 1 provided that the owner of a downzoned property may have that property reassessed to take into account the loss in value caused by the downzoning. Section 1 is codified as ORS 308.341. Section 2 added what became ORS 308.205(2) (1989), the statute that we are called on to apply in this case. The remaining substantive sections of Senate Bill 827 addressed the notification of property owners and assessors concerning the downzoning of their property and are codified as ORS 308.342 and .343. Section 2 embraced all forms of "governmental restriction[s] as to use," in contrast to *1007 the other sections, which were directed more specifically at downzoning. Moreover, while section 1 expressly limited the tax benefit to involuntary downzoning, section 2 contained no similar requirement for other forms of governmental restriction as to use. In addition, downzoning is defined to result in an economic detriment to the taxpayer, while other forms of governmental restriction as to use are not. This court assumes that, when the legislature includes a provision in one section of an act, but omits it from another, it does so intentionally. PGE, 317 Or. at 611, 859 P.2d 1143. Thus, we must give effect to the distinctions drawn by the legislature (a) between voluntary downzoning, from which a taxpayer may not receive a tax benefit, and other forms of governmental restriction as to use, which omit the concept of voluntariness; and (b) between downzoning, which is defined to result in an economic detriment to the taxpayer, and other forms of governmental restriction as to use, which omit the requirement of economic detriment. We conclude that a "governmental restriction as to use," ORS 308.205(2) (1989), need not be involuntary and may result in an economic benefit to the taxpayer. So understood, ORS 308.205(2) (1989) encompasses, as a "governmental restriction as to use," taxpayers' participation in the section § 42 program. Because the intent of the legislature when it enacted ORS 308.205(2) (1989) is clear from the text and context of the statute, further inquiry is not required. See PGE, 317 Or. at 611, 859 P.2d 1143 (stating principle). As noted at the outset, the parties do not attack the calculations made by each others' appraisers. The department's data do not reflect the limits placed on the properties as a result of the "governmental restriction[s] as to use"; taxpayers' data do reflect the limitations placed on the properties. Accordingly, we adopt taxpayers' valuations. The department does argue that, even if we treat participation in the section 42 program as a "governmental restriction as to use," we should "consider the receipt of tax credits as additional income that increases the value of the property." The Tax Court reasoned that We agree with that reasoning. OAR 150-308.205(A)(1)(a) (1989) defined market value as "the most probable price in terms of money which a property will bring if exposed for sale in the open market." The most probable price depends on what the buyer will receive in exchange for that price; the buyer will pay only for what it will receive. Thus, the most probable price to be received for the properties at issue would not include the tax credits, because the record shows that the credits would be recaptured if the property were not maintained as low-income housing. For the foregoing reasons, we find that, for tax year 1990-91, the true cash value of the Durham Park property was $6,535,000 and the true cash value of the Bayridge property was $4,412,000. The judgment of the Tax Court is affirmed. VAN HOOMISSEN, J., filed a dissenting opinion in which FADELEY, J., joined. VAN HOOMISSEN, Justice, dissenting. ORS 308.205(2) (1989) provided: The question is: "Do the low-income housing restrictions voluntarily placed on the property [by the owner] constitute `governmental restrictions [as to use]' under ORS 308.205(2)?" Bayridge Assoc. Ltd. Partnership *1008 v. Dept. of Rev., 13 OTR 24, 26, 1994 WL 33368 (1994).[1] ORS 308.232 (1989) required all property to be assessed at 100 percent of its true cash value. True cash value was defined by ORS 308.205 as "the market value" of the property. See also ORS 308.235(1) (factors to be considered in assessing taxable real property). The general rule is that market rents are used in appraising income-producing property. OAR 150-308-205(A)(2)(g) (1989).[2] We are asked to determine whether, by enacting ORS 308.205(2) (1989), the legislature intended to change that general rule in the circumstances of this case. The majority holds that taxpayer's voluntary choice to participate in the federal low income housing program to maximize the return on its investment amounts to a "governmental restriction as to use" of the taxpayer's property. 321 Or. at 30, 892 P.2d at 1007. ORS 308.205(2) (1989). I disagree and would hold that taxpayer's voluntary choice to receive federal income tax credits under IRC § 42 in return for charging below-market rents, a choice which I believe it is fair to assume was driven by taxpayer's interest in maximizing the return on its investment, does not create a "governmental restriction" on taxpayer's property.[3] Moreover, even if taxpayer's choice had created a "governmental restriction," the restriction would be as to income only and not as to taxpayer's "use" of the property. ORS 308.205(2). For those reasons, I respectfully dissent. The majority begins its statutory construction analysis with a dictionary definition of "restriction." 321 Or. at 27, 892 P.2d at 1005. That definition indicates that a restriction is "something that restricts." If one looks further in the dictionary at that point, one discovers that "restrict" is defined as: "1: to set bounds or limits to: hold within bounds: as a: to check free activity, motion, progress, or departure of: RESTRAIN ; also: HAMPER, DIMINISH b: to check, bound, or decrease the range, scope, or incidence of: set what is to be included or embraced by: bar or carefully govern addition or increment to 2: to place (land) under restrictions as to use (as by zoning ordinances)." Webster's Third New Int'l Dictionary 1937 (unabridged 1993). (Emphasis added.) Thus, a zoning ordinance is clearly within the common meaning of "restriction." Something of value has been taken from the property owner for the benefit of the public. The majority offers unpersuasive justification for its conclusion that a taxpayer's voluntary choice to participate in a federal low-income housing program for the taxpayer's own financial gain likewise is a "restriction." Nothing of value has been taken from the property owner, because the property owner is compensated by the federal income tax credit. The property owner expects to have more value, i.e., financial return, not less, as a result of its agreement with the federal government. There are numerous differences between a voluntary choice to financially structure one's property in a certain manner in order to maximize the financial return on one's investment, on the one hand, and having the use of one's property restricted without one's consent by the government as a result of a zoning ordinance, on the other.[4] Generally, zoning, by its very nature, is involuntary in *1009 the sense that individual property owners may not elect how they wish to use their property and have it zoned accordingly. Zoning is an absolute governmental restriction on the use of property, in force until the zoning is changed or some sort of variance is obtained from the government. Moreover, zoning is generally, but not always, unilateral. That is, it is imposed by the government rather than the result of voluntary and bilateral consent of the parties. The tax credit available to taxpayers here through IRC § 42, however, involves no such restriction on the "use" of property.[5] These apartments were built for multi-family housing and that is how they are being used by taxpayers. Under IRC § 42, the property owner claiming the credit voluntarily agrees to limit the rents. That is, the owner voluntarily trades reduced rental income for a tax credit. This is nothing more than a financial arrangement, voluntarily *1010 chosen by the owner, for its own financial benefit. It is not a "restriction" on the use of the property involuntarily imposed by the government. As the majority opinion recognizes, 321 Or. at 26, 892 P.2d at 1004, taxpayers may change the use of the property any time it wants to do so. Taxpayers may sell the property to a buyer who may charge market rents. Of course, there may be some financial (tax) consequences resulting from taxpayers' voluntary choice to change the use of the property; however, those consequences are within the control of taxpayers, they are not involuntarily imposed on taxpayers by the government. Moreover, under the IRC § 42 program, the "use" of taxpayers' property is in no way "restricted" by any governmental action. Nothing in the law affects the "use" of the property; rather, income is limited in return for credits usable against federal income tax liability. The property in this case is operated as multifamily apartment buildings, which taxpayers and the department agree is the "highest and best" use of the property. When a taxpayer chooses to participate in a voluntary program that offers certain financial incentives in return for certain detriments, the taxpayer's property is not subject to a "governmental restriction" as to "use." Thus, ORS 308.205(2) (1989) does not support the Tax Court's decision. The majority characterizes taxpayers' use of the property for low-income housing as coming "from a binding agreement with a governmental agency, the breach of which would entail serious financial consequences to taxpayers." 321 Or. at 29, 892 P.2d at 1006. This evidences a misunderstanding of the facts. No "binding agreement" with the federal government is shown. Taxpayers may withdraw from the low-income housing program at any time. It is true that, should taxpayers withdraw from the program, the recapture provisions of the law provide that the claimed tax credits may be lost. In essence, by failing to continue using the apartments as low-income housing for the required number of years, taxpayers may lose certain tax advantages. While the choice not to use the property for low-income housing in the future may indeed result in financial consequences to taxpayers, it is free to make that choice, forego the tax credits provided by IRC § 42, and charge market rents or use the property for another purpose. The availability of tax credits, however, does not "impose" a restriction. Taxpayers voluntarily chose to participate in the federal low-income housing program, because taxpayers thought it was financially advantageous to do so. A choice not to abide by a zoning ordinance, however, results in much more serious consequences than failing to receive a tax incentive in the form of a federal credit. See, e.g., ORS 215.185 (where use violates ordinance implementing a comprehensive plan, local government may "in addition to other remedies provided by law, institute injunction, mandamus, abatement, or other appropriate proceedings to prevent, temporarily or permanently enjoin, abate, or remove the unlawful * * * use"). A zoning ordinance is clearly a "governmental restriction as to use * * * under applicable law[.]" A voluntary choice to make use of one's property in a certain manner to maximize the return on one's investment, however, is not a "governmental restriction as to use." The majority has confused the federal government's offer of a financial incentive (tax credits) to a property owner who voluntarily agrees to use its property in a certain manner and a taxpayer's voluntary acceptance of that offer, i.e., an economic impediment created by contract, with a "governmental restriction as to use" of that property. The text of ORS 308.205 (1989) and IRC § 42 do not support the majority's result. I reject the majority's reliance on the fact that "[e]ven if taxpayers wanted to use the properties for commercial or industrial purposes, and even if those purposes were permitted by applicable zoning laws, the governmental restrictions placed on those properties would inhibit such a use." 321 Or. at 30, 892 P.2d at 1006. Although a sale or a change in use might be in some ways "inhibited" by the tax credit elections, it would not be "prohibited." Taxpayers may withdraw from the federal program and lose the tax credits. Taxpayers *1011 may sell the property to a new buyer, who could raise the rents to market rates and lose the tax credits. The context of the pertinent provisions of ORS 308.205 (1989) does not support the majority's result. The relevant provisions of that statute were added as part of Oregon Laws 1977, chapter 423.[6] The Act pertained to changes in assessed value of land due to changes in zoning. Viewed in context with the rest of the Act, the purpose of the amendment to ORS 308.205 (1989), which provided a definition of "true cash value," was to conform that definition with the newly enacted provisions found in sections 1 and 4 of the Act. Certainly, there is nothing in the text and context of the Act to suggest that the amendment to the definition of "true cash value" was meant to apply to a taxpayer's voluntary choice to use its property in a certain way in order to maximize the return on its investment in commercial real estate. From the text and context of ORS 308.205 (1989), I conclude that taxpayers' voluntary *1012 election to participate in a federal low-income housing program in order to maximize the return on its investment does not make the property subject to "governmental restriction as to use * * * under applicable law or regulation[.]"[7] Nor has the government restricted the "use" of taxpayers' property. This is nothing more than a financial arrangement voluntarily chosen by taxpayers, whereby taxpayers has substituted one income stream (higher rents) for another (lower rents and tax credits), because taxpayers believe that will maximize the return on their investment. The below-market rents charged by taxpayers are not the result of a "governmental restriction"; rather, they are the result of a quid pro quofederal income tax credits (a financial benefit) in return for charging the favored class below-market rents (a financial detriment). The majority's interpretation of ORS 308.205 allows taxpayers to shift the burden of their taxation obligations to other taxpayers within the taxing unit, while reaping the benefits of a federal tax credit as well. Because of this result, taxpayers are able to reduce the valuation of its properties by more than $5,100,000, a loss other taxpayers of the taxing district will be expected to assume.[8] I find no support in the text and context of the statute for the conclusion that the legislature intended to shift the burden of taxation in this manner. The legislature knows how to provide property tax relief to owners of low-income housing. For example, ORS 307.515-.537 provides for exemption from property taxation of low-income rental housing. Similarly, a property tax exemption is provided for low-income housing owned by a non-profit corporation under ORS 307.540-.547. Had the legislature intended owners of property that qualified under IRC § 42 to be entitled to property tax relief on that basis, it surely would have provided for an explicit exemption or reduction. It did not. See generally Keyes v. Chambers et al, 209 Or. 640, 645-46, 307 P.2d 498 (1957) (tax exemption statutes shall be strictly construed). I would hold that the Tax Court erred in considering taxpayers' voluntary financing arrangement to be a "governmental restriction." Bayridge and Durham Park are not subject to "governmental restrictions." And, even if taxpayers' voluntary contractual agreement to accept lower than market rents could be considered to be a "governmental restriction," it is as to income only and not to "use" of taxpayers' property. ORS 308.205(2) (1989). I would reverse the decision of the Tax Court and remand this case for entry of a judgment that the January 1990 true cash *1013 value of the property is as was determined by the department. Accordingly, I respectfully dissent. FADELEY, J., joins in this dissent. [1] The Oregon Housing Authority has been succeeded by the Housing and Community Services Department. ORS 456.555. [2] ORS 308.205 (1989) provided in part: "True cash value of all property, real and personal, means the market value of the property as of the assessment date. True cash value in all cases shall be determined by methods and procedures in accordance with rules adopted by the Department of Revenue and in accordance with the following: "* * * * * "(2) If the property is subject to governmental restriction as to use on the assessment date under applicable law or regulation, true cash value shall not be based upon sales that reflect for the property a market value that the property would have if the use of the property were not subject to the restriction unless adjustments in value are made reflecting the effect of the restrictions." [3] We also note that prior decisions from this court indicate that voluntarily incurred limitations on the use of property may be considered in assessing the value of a piece of property. See, e.g., Tualatin Development v. Dept. of Rev., 256 Or. 323, 473 P.2d 660 (1970) (when the taxpayer voluntarily agreed with county planning commission to set aside "open areas" to be retained as a golf course in return for a zone change permitting a planned residential community, and the golf course is operated at a loss, court affirmed Tax Court's decision that golf course had no "true cash value" for tax years at issue). [1] Taxpayers are Bayridge Associates Limited Partnership and Durham Park Limited Partnership. The persons entitled to the IRC § 42 tax credit are the owners of the limited partnerships. [2] Pertaining to real property valuation for tax purposes, OAR 150-308-205(A)(2)(g) (1989) provided in part that the income to be used in the Income Approach to Valuation "shall be the economic rent that the property would most probably command in the open market as indicated by current rents being paid, and asked, for comparable space." [3] Taxpayer has never suggested that its motivation for participating in the federal low-income housing program is anything other than to maximize the return on its investment (which is a lawful and reasonable motivation). [4] The Tax Court stated: "The fact that governmental restrictions are voluntarily incurred by an owner in exchange for income tax benefits is irrelevant. The statute is not limited to involuntarily incurred governmental restrictions. Many restrictions on property, including zoning restrictions, are sought and obtained at the request of the property owner. This court has previously held that where a landowner voluntarily grants a scenic easement to government, the land in the hands of the owner may have no real market value. Marchel v. Dept. of Rev., 9 OTR 317 (1983). Also, where an owner voluntarily imposes `open space limitations' on property, it may result in a zero taxable value. Tualatin Development v. Dept. of Rev., 256 Or. 323, 473 P2d 660 (1970)." Bayridge Assoc. Ltd. Partnership v. Dept. of Rev., 13 OTR 24, 27-28. The Tax Court's reliance on Marchel and Tualatin Development is misplaced. In each of those cases, the court found that the subject real property had no real market value to the taxpayer. Unlike Marchel, this case is not about taxation of property that has "no immediate market value." Marchel, 9 OTR at 319-20. In Tualatin Development, this court upheld the Tax Court's holding that the golf course in a "planned residential community" had no value for property tax purposes. In Tualatin Development, "restrictions placed upon the initial development of [the property] by the Washington County Planning Commission required the [taxpayer] to set aside `open areas' in various places in the development." 256 Or. at 325, 473 P.2d 660 (quoting Tax Court opinion). In that case, a county ordinance required a developer seeking to develop a planned residential community to apply for and receive certain zoning changes. The taxpayer did so. This court held that "[t]he requirement that [the golf course] be maintained as open space determines or substantially affects its value." Id. at 326, 473 P.2d 660. This court's determination that the golf course had no value was based on two factors: First, the court stated, the taxpayer could not "sell the land free of the zoning restrictions or put it to any use which would interfere with its functions as `open space.'" Id. at 327, 473 P.2d 660. Second, the value of the golf course was reflected in the higher prices commanded by residential lots bordering on the course. Ibid. This court looked to cases from other states after stating that "[t]he question of the proper assessment valuation of land where the use is so severely restricted that its owner derives no benefit from the ownership is a new one in Oregon." Id. at 329, 473 P.2d 660 (emphasis added). The court noted the significance of "the limitations on plaintiff's own use" of the property. Id. at 330, 473 P.2d 660 (emphasis added). The decision in Tualatin Development is consistent with the department's position in this case. The restrictions in Tualatin Development were "governmental restrictions as to use" of the golf course. The restrictions were (1) imposed by a local governmental unit; (2) zoning or land use restrictions; (3) restrictions as to the use of the property; (4) so severe that the taxpayer derived no benefit from the property; and (5) restrictions that resulted in an increased value for surrounding property. In contrast, taxpayers in this case chose to forego certain financial benefits in return for others; they traded one income stream for another. The requirements of IRC § 42 and the Oregon Housing Authority are not so severe as to prevent taxpayers from deriving any benefit from the properties. Nothing in the law affects the use of the property; rather, income is limited in return for the receipt of federal income tax credits. In short, although the zoning law in Tualatin Development created a "governmental restriction as to use" of the golf course, that is not the case with respect to Bayridge and Durham Park. [5] The Tax Court stated: "It is important to note that the restrictions here are not imposed by IRC § 42. That law merely sets forth the requirements to obtain the tax credits. While the property owner must limit the rent to obtain the tax credits, there is no `governmental' restriction on the property. The restriction on the property arises as a condition imposed by the state for receiving the allocation. The owner must specifically agree to limit the rental fees and this agreement is binding on any subsequent owners." 13 OTR at 28 (emphasis added). I disagree. Under IRC § 42, the Oregon Housing Authority (OHA) merely serves as a conduit for the management of the federal low-income housing program. See generally ORS ch 456 (powers of housing authority). OHA's role is little more than that of a policeman, who must report to the federal government if the owner defaults under the program. [6] Oregon Laws 1977, chapter 423, provided: "SECTION 1: (1) If the assessed value of any real property is reduced by reason of the adoption of or a change in the comprehensive plan, zoning ordinance or zoning designation for such property not at the request of the owner, the owner on the date of the adoption or change may file a claim for exemption with the assessor. The claim shall be filed on or before April 1 of any year, but not later than two years after April 1 of the assessment year for which the assessed value was so reduced. The claim shall be on forms furnished by the assessor and approved by the Department of Revenue. "(2) The assessor shall compute the difference in assessed value attributable to such reduction, between the assessed value of the property as of the January 1 assessment date for which the assessed value was so reduced, and the assessed value as of the January 1 immediately prior to such reduction. Beginning in the year in which the claim is filed and for four consecutive years thereafter, the assessor shall reduce the true cash value of the real property so affected by an amount equal to the difference in value so computed. In no case shall the true cash value be reduced below zero. The assessor shall notify the person in whose name the property is assessed of the amount of the reduction in value and of the approximate dollar amount of tax reduction, based upon the tax rate extended against the property on the last tax roll. The notice shall be mailed to the address of the person as indicated on the claim for exemption. "SECTION 2. ORS 308.205 is amended to read: "308.205. True cash value of all property, real and personal, means market value as of the assessment date. True cash value in all cases shall be determined by methods and procedures in accordance with rules and regulations promulgated by the Department of Revenue. With respect to property which has no immediate market value, its true cash value shall be the amount of money that would justly compensate the owner for loss of the property. With respect to property that is subject to governmental restriction as to use on the assessment date under applicable law or regulation, true cash value shall not be based upon sales that reflect for the property a market value that the property would have if the use of the property were not subject to the restriction unless adjustments in value are made reflecting the effect of the restrictions. "SECTION 3. Section 4 of this Act is added to and made a part of ORS chapter 308. "SECTION 4. (1) The directors of county and city planning activities within the county shall notify the county assessor of the adoption of or changes in comprehensive plans, zoning ordinances and zoning designations within 90 days after the date of the change. "(2) The assessor shall notify the owner of property that has received a reduction in assessed value due to the adoption of or change in comprehensive plan, zoning ordinance or zoning designation. The notice shall include a brief description of the plan or zoning change reflected in the reduced assessment. The notice shall inform the owner that he may apply for the exemption granted by section 1 of this 1977 Act and state the address from which further information pertaining to the exemption may be obtained. The notice shall be mailed to the last-known address of the person to whom the property is assessed at the address appearing in the tax records or to any new address reported in writing prior to the mailing of the notice. The notice shall be mailed within the time required and is subject to the provisions for notice of increased assessed valuation contained in subsection (5) of ORS 308.280. "SECTION 5. Sections 1 and 4 of this Act shall apply only to that property assessed pursuant to ORS 308.205 and 308.232 for the assessment year for which a reduction in value as described in section 1 of this Act occurs and for the immediately preceding assessment year. "SECTION 6. Sections 1 and 4 of this Act and the amendments to ORS 308.205 by section 2 of this Act shall first apply to assessment years beginning on or after January 1, 1978, with respect to changes in comprehensive plans and zoning effective on or after January 1, 1977." [7] The Tax Court stated: "The legislative intent in enacting this section is not clear. The law was enacted in 1977 as part of Senate Bill 827 (Or Laws 1977, chapter 423, § 2). The purpose of Senate Bill 827 was to compensate small property owners for loss of value due to `down' zoning. However, that proposal was modified and the law as enacted provides only a partial exemption from taxation. See ORS 308.341." 13 OTR at 27. The parties and the majority opinion here agree that the text and context of the statute are unambiguous, so that resort to legislative history is unnecessary. However, it is interesting to note that one of the sponsors of the bill described it as follows: "The compensation plan I propose uses the existing property assessment and taxation mechanism. Land values, and thus property taxes, are determined by the `highest and best use' of the land. When government restrictions remove some of these uses and thereby reduce[] the value of the land, my compensation formula goes into effect. When the landowner's property is downzoned he qualifies for a property tax credit." Senate Environment and Energy Subcommittee 2 on Land Use, May 9, 1977, Exhibit A (submitted by committee chair, Senator Dell Isham) (emphasis added). "When zoning restrictions remove some of these uses and thereby reduce[] the value of the land and this is reflected in reduced property taxes, the tax relief formula goes into effect." Joint Trade and Economic Development Committee, June 13, 1977, Exhibit 212 (submitted by Senator Dell Isham) (emphasis added). It would appear from these statements that Senator Isham was not drawing any distinction between "zoning restrictions" and "government restrictions." [8] The department found that the true cash value of taxpayers' property was $16,137,900. The Tax Court found that the true cash value was $10,947,000. 13 OTR at 31.

508cb429383df0af2e83fb64d6816cddce94b19387de440ff8889cdc0bc4ce1f

1995-04-21T00:00:00Z

a8d550f5-f16b-4600-8a0e-9d802c3ad12e

STATE, DEPT. OF TRANSP. v. Hewett Professional Group

321 Or. 118, 895 P.2d 755

oregon

Oregon Supreme Court

895 P.2d 755 (1995) 321 Or. 118 STATE of Oregon, By and Through its DEPARTMENT OF TRANSPORTATION, Respondent v. HEWETT PROFESSIONAL GROUP, a joint venture comprised of John B. Brams, Thomas S. Miller, M.D., Corinne D. Miller, and Peter Lyon, M.D., Petitioner on Review, and Capital Consultants, Inc., an Oregon corporation, Defendant. CC 9108-05286; CA A77301; SC S41575. Supreme Court of Oregon. Argued and Submitted January 6, 1995. Decided May 18, 1995. *757 James N. Westwood, of Miller, Nash, Wiener, Hager & Carlsen, Portland, argued the cause for petitioner on review. With him on the petition and brief was Dennis P. Rawlinson. Jas. Adams, 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. Dorothy S. Cofield, Tigard, filed briefs on behalf of amicus curiae Oregonians In Action. Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ.[*] GRABER, Justice. In this condemnation action, defendant appealed from the judgment of the circuit court. Defendant argued that it was improperly precluded from pursuing at trial its affirmative defenses and counterclaims that addressed issues of valuation. The Court of Appeals affirmed, concluding that any error was harmless. Dept. of Transportation v. Hewett Professional Group, 128 Or.App. 480, 483, 876 P.2d 844 (1994). We affirm the decision of the Court of Appeals, but on different grounds. The Oregon Department of Transportation (ODOT) initiated a proceeding in the circuit court to condemn property owned by defendant, Hewett Professional Group, for use in the Westside Corridor Projecta light rail transportation system that was being developed as an alternative to automobile traffic between Washington and Multnomah counties. The condemned property is located near the Sylvan Interchange on Highway 26 in Portland. According to defendant, ODOT misrepresented to defendant that it would not take the property, or that part of the property containing a then-existing structure called the Sylvan Building. At the time ODOT made such alleged representations to defendant, defendant was in the process of planning, and applying for permission from Multnomah County, to demolish the Sylvan Building and to construct a new office facility on the property. By the time that ODOT notified defendant of its intent to take the property, defendant had demolished the Sylvan Building and had started, but not completed, construction of the new facility. In the trial court, defendant asserted that ODOT planned to take the property before the Sylvan Building was demolished, but that ODOT concealed that intention until after the building was demolished. Defendant argued that ODOT effectively minimized the compensable value of the property, by luring defendant into razing the existing structure and leaving only the bare ground and a partially constructed new building at the time of the taking. Defendant argued that ODOT's aim was to eliminate the value of the Sylvan Building from the amount of just compensation that it must pay for the taking. In pursuit of this theory, defendant pleaded affirmative *758 defenses of equitable estoppel and "timing manipulation" in violation of ORS 281.060 and other statutes, and filed counterclaims for misrepresentation, "inverse condemnation," and "condemnation blight." The trial court granted ODOT's motion for partial summary judgment as to those defenses and counterclaims. On ODOT's motion, the trial court also struck defendant's allegations concerning the value of the Sylvan Building. Nonetheless, at trial, the court allowed defendant to introduce evidence about the course of dealings between it and ODOT and about the value of the Sylvan Building before it was demolished. The trial court allowed the jury to consider whether to award compensation for the value of the Sylvan Building, under the following instruction: The jury fixed defendant's compensation at $562,000, which was ODOT's estimate of just compensation for the property. Defendant appealed. On appeal, defendant argued that the trial court erred when it granted summary judgment on the above-listed affirmative defenses and counterclaims and when it struck the allegations concerning the Sylvan Building's value. ODOT argued that, because defendant was able to present all its evidence about the value of the Sylvan Building and ODOT's alleged misconduct, and because the jury was allowed to take into account the value and removal costs associated with the Sylvan Building, the trial court's rulings subtracted nothing of substance from defendant's case. The Court of Appeals agreed with that argument and affirmed the judgment. 128 Or.App. at 483, 876 P.2d 844. On defendant's petition, we allowed review.[1] As noted, the Court of Appeals relied on the doctrine of "harmless error" to resolve the issues relating to summary judgment on the counterclaims and defenses. That court explained: "The defenses and counterclaims that defendant asserted are not the `frame' of a case for just compensation; indeed, the theories in defendant's defenses and counterclaims have no factual or legal bearing on the value of the building and the removal costs independent of the condemnation claim itself. The error, if any, in granting the partial summary judgments, was harmless. So too was the striking of the allegations of value, in view of the fact that defendant was permitted to produce evidence of and argument concerning value at trial. We reject the five assignments that challenge the partial summary judgments and the striking of the allegations." 128 Or.App. at 483, 876 P.2d 844 (emphasis in original). That discussion misses the point. Although defendant was able to present its evidence of ODOT's alleged acts of deception and of the value of the Sylvan Building, being able to present that evidence is not the same as being able to attach that evidence to a legal theory. The jury was instructed: "i[f] you find that the fair market value of the bare land after removal of the Sylvan Building includes the value of the Sylvan Building and the costs associated with its removal, you should include these amounts in your conclusion of just compensation." The jury was not instructed, however, about why and under what circumstances it "should include" the value of the building and its removal costs. If even one of defendant's affirmative defenses or counterclaims was a permissible legal theory, in view of the evidence, then *759 defendant was denied the opportunity to obtain a jury instruction that would have framed the matters of law relevant to its theory of the case. For the foregoing reasons, we disagree with the Court of Appeals that any error was harmless. We therefore turn our attention to the claimed errors. The issues pertinent to our review were decided on summary judgment. Because we are reviewing the trial court's ruling on a motion for summary judgment, we view the evidence and all reasonable inferences to be drawn from it in the light most favorable to the nonmoving party. Fields v. Jantec, 317 Or. 432, 437, 857 P.2d 95 (1993). The following facts were established without contradiction in the record. On February 22, 1991, the governor signed into law Senate Bill 573. Or.Laws 1991, ch. 3. S.B. 573 addressed the development of the Westside Corridor Project. S.B. 573, which was effective upon its passage, was enacted by the legislature to expedite the development of the project, so that the project would qualify for federal funding. Or.Laws 1991, ch. 3, preamble. That statute consolidated final authority for determining the location of the light rail line, and necessary corresponding highway improvements, in the Tri-County Metropolitan Transportation District (Tri-Met). Or.Laws 1991, ch. 3, preamble & § 6.[3] At all material times, defendant owned the Sylvan Building, which was located on the property later condemned in this action. Late in 1990, defendant made plans to develop the property further by demolishing the Sylvan Building and constructing a new office building on the site. In December 1990, defendant filed a design review application with Multnomah County, as a first step toward obtaining a building permit. In January 1991, Mark Hess, a Multnomah County Planner responsible for reviewing requests for building permits, telephoned Brett Richards, an assistant project manager in ODOT's "location design group." Hess asked Richards whether ODOT had any plans to acquire, for the Westside Corridor Project, the property on which the replacement building would be constructed. Richards conferred with his supervisor, James McClure, and returned Hess' call. Richards said that ODOT's plans at the time did not require the property. Nothing in Hess' conversation with Richards suggested that the property might be condemned. Richards was aware that what he told Hess would affect defendant's application for the building permit. If Hess had been aware that the property was slated for condemnation, he would have notified the applicant or the designer of the project that condemnation was possible. If he had known that condemnation was likely for the property, the building permit would not have been issued until the condemnation questions had been resolved between the state and the applicant. Unaware of the possibility of ODOT's taking of the property, Multnomah County issued a building permit to defendant on March 29, 1991. In fact, ODOT was considering the condemnation of defendant's property during the time that defendant's application for a *760 building permit was being processed. One plan under consideration by ODOT from as early as November 1990, known as Option 108, would have placed a roadway immediately next to the Sylvan Building and would have required the taking of the property. ODOT was considering Option 108 in January 1991. On January 14, 1991, Richards asked another ODOT employee for an estimate of what it would cost to take the subject property with the Sylvan Building on it. Richards received an estimate of $1.1 million. On January 18, 1991, Tri-Met and ODOT staff held a joint meeting, at which ODOT employees McClure, Collins, and Richards (along with Tri-Met employees, Multnomah County employees, and a City of Portland employee) were assigned to deal with the "new office building" on the property. ODOT abandoned Option 108 in February 1991. On March 30 and 31, 1991, ODOT developed Option 107A, which called for the taking of the Sylvan Building and property. Richards notified Hess of the plan and said that defendant's property would be taken. On or about April 1, 1991, Hess told Richards that a building permit had been issued for the property. Neither Richards nor anyone from ODOT notified defendant that Option 107A called for the taking of its property. Because implementation of the Westside Corridor Project was a "land use decision," a statutory notice of Tri-Met's proposed final order, concerning the location of the light rail line, was published, and a land use hearing was scheduled. See Or.Laws 1991, ch. 3, § 6 (providing procedure). Defendant acknowledges that that notice was proper. The time and location of the meeting were described in the notice. Pursuant to that notice, Tri-Met held a land use hearing on April 12, 1991. Defendant did not attend. At the hearing, Tri-Met determined the location of the light rail line; the location of the line, with the necessary highway improvements, necessitated the taking of defendant's property. Demolition of the Sylvan Building occurred on or about May 17 through 19, 1991. On May 21, 1991, McClure sent a memorandum to a subordinate in ODOT, stating: "[T]he abandoned office building [the Sylvan Building] * * * has now been torn down. * * * I would like you to advise the property owner that the property will be [taken]." On May 28, 1991, ODOT informed defendant of its plans for the taking. On August 16, 1991, this condemnation proceeding was initiated. In its affirmative defense of equitable estoppel, defendant alleged that ODOT falsely and misleadingly represented to defendant, through the Multnomah County Planning Division, that its real property would not be taken, and that the county thereafter issued a building permit. Defendant alleged that its reliance on ODOT's representation caused it to remove the Sylvan Building and that ODOT was estopped from claiming the nonexistence of the Sylvan Building for the purpose of calculating just compensation. Hewett does not argue that ODOT is estopped from bringing this condemnation action; rather, Hewett argues only that ODOT should be estopped from asserting a specific valuation for the property because of its alleged misrepresentation. This court previously has accepted the general proposition that, under appropriate circumstances, an agency of the government may be estopped to assert a claim inconsistent with a previous position taken by it. See Belton v. Buesing, 240 Or. 399, 411, 402 P.2d 98 (1965) (accepting abstract proposition, but finding no basis for application of doctrine under the specific facts of that case). For estoppel to be established, the party claiming it must (among other things) have relied on the governmental agency's misstatements, and the party's reliance must have been reasonable. Committee in Opposition v. Oregon Emergency Correc., 309 Or. 678, 686, 792 P.2d 1203 (1990).[4]See also Wiggins v. Barrett & Associates, Inc., 295 Or. 679, 697, 669 P.2d 1132 (1983) (one element necessary for reasonable reliance in a *761 claim for equitable estoppel was that it "was within the lawful powers of the [agency]" to make the statements relied on). Those principles dispose of defendant's estoppel claim here.[5] Upon passage of SB 573 in February of 1991, only Tri-Met had the legal authority to determine where the light rail line would go. Or.Laws 1991, ch. 3, preamble & §§ 3, 6. See also Or.Laws 1991, ch. 3, § 7(1)(a) (requiring local and state governments to "[a]mend their comprehensive or functional plans, including public facility plans, and their land use regulations to the extent necessary to make them consistent with a final order [from Tri-Met setting forth the location of the light rail]"). Under those applicable statutes, Tri-Met had to determine where the light rail line would go before ODOT could start condemning property for the highway improvements related to the location of the light rail line. Assuming that the statements made by Richards to Hess in January 1991 (that ODOT's plans at the time did not require the property) were inaccurate or misleading when made, defendant could not reasonably have relied on them after passage of SB 573 in February 1991. Given the publication of the relevant law and the fact that that law did not permit ODOT to reach a final determination as to what property would be condemned, any reliance by defendant in May 1991 (when it destroyed the Sylvan Building) "was patently unreasonable, precluding estoppel." See Committee in Opposition, 309 Or. at 686, 792 P.2d 1203 (stating quoted standard). Additionally, defendant could not reasonably have relied on the alleged representations because of the notice that was published before it acted to demolish the Sylvan Building. Defendant acknowledges that the April 12 meeting was public and that notice of it was proper. The notice effectively told defendant that: (1) the final determination as to where the light rail line will go will be made at the April 12 hearing; (2) Tri-Met, not ODOT, is making that final determination; (3) under plans to be considered at that meeting, the light rail line and concurrent highway improvements are slated to run through your land; and (4) if you do not like this proposal, come to the hearing. Defendant did not attend the hearing. Nonetheless, after notice was published, defendant could not reasonably have relied on a prior statement respecting the location of the light rail line. Defendant acted in alleged reliance on ODOT's statements more than a month after notice was published. The trial court did not err when it granted summary judgment to ODOT on defendant's affirmative defense of equitable estoppel. The Court of Appeals did not err in affirming that ruling. 2. "Timing Manipulation" in Violation of Statutes. As its second affirmative defense, defendant alleged that ODOT violated ORS 281.060(3) and (6), 42 U.S.C. § 4651(7), and ODOT's internal policy, when ODOT "deferred negotiations and condemnation and took other action coercive in nature in order to acquire [defendant's] Property at an unjust and inequitably low price." Specifically, defendant alleged that ODOT had an affirmative, statutory duty to notify it of plans to take the property; that ODOT failed so to notify it; that ODOT knew that it could reduce the cost of the taking by acting in that manner; and that ODOT manipulated the timing of the taking so as to deprive defendant of the value of the Sylvan Building. Defendant refers to this theory as "timing manipulation." Defendant argues that the cited statutes required ODOT to notify defendant of its plans to take the property, at the latest, immediately after Tri-Met entered its final order (in April 1991) concerning the location of the light rail line. ORS 281.060 provides in part: "Whenever any program or project is undertaken by a public entity which program or project will result in the acquisition of real property, notwithstanding any *762 other statute, charter, ordinance, or rule or regulation, the public entity shall: "* * * * * 42 U.S.C. § 4651 provides that, when agencies are condemning land, they "* * * * * 42 U.S.C. § 4602 specifies that the provisions of § 4651 create no rights or liabilities and that the federal law does not give rise to issues of valuation in eminent domain proceedings: "(a) The provisions of section 4651 of this title create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation. In other words, Oregon law looks to federal law to determine how an agency should go about taking land in certain eminent domain proceedings. The referenced federal law expressly provides no basis for a claim. Defendant also relies on 49 CFR § 24.102(b), which provides for notification of a property owner "[a]s soon as feasible" when an agency is interested in acquiring real property, and on two paragraphs in Section 8.170 of ODOT's Right of Way Manual. The first paragraph of Section 8.170 provides that condemnation "shall be carried out in conformance to" federal and state law. The second paragraph contains the same wording as does 42 U.S.C. § 4651(7). Defendant cannot rely successfully on those sources, because ORS 281.060 provides that, "notwithstanding any other statute, charter, ordinance, or rule or regulation, the [agency] shall" be guided by the federal law. The federal law, in turn, pertinently specifies that its timing policy provisions shall not create rights or liabilities. It would be contrary to the federal law, and thus contrary to ORS 281.060, to use a regulation or internal policy to create such rights or liabilities. The trial court did not err when it granted summary judgment to ODOT on defendant's affirmative defense of "timing manipulation." The Court of Appeals did not err in affirming that ruling. With respect to its counterclaim for misrepresentation, defendant asserts that ODOT made material misrepresentations, by false statements and by silence. Defendant argues that the false statement that Richards made to Hess in January 1991that ODOT had no plans for condemnation of defendant's propertywas a misrepresentation. Defendant also argues that, because ODOT knew that defendant was carrying out costly plans for development of the property in reliance on those misrepresentations and failed to inform defendant of the impending condemnation, ODOT's silence was a misrepresentation as well. Finally, defendant argues that it relied on those misrepresentations to its detriment. A claim for misrepresentation requires that there be a representation made with either (a) knowledge of its falsity or (b) awareness of lack of knowledge as to its truth or falsity. Oksenholt v. Lederle Laboratories, 294 Or. 213, 222, 656 P.2d 293 (1982). The "[mis]representation must be justifiably relied upon by [the party] in taking *763 action or in refraining from it to his damage." Meader v. Francis Ford, Inc., 286 Or. 451, 456, 595 P.2d 480 (1979) (emphasis added). As already discussed above, in the circumstances, defendant could not justifiably have relied on the alleged misrepresentations. See 321 Or. at 125-127, 895 P.2d at 760-761 (discussing issue of justifiable reliance). Accordingly, defendant failed to establish an element necessary to sustain its counterclaim for misrepresentation. The trial court did not err when it granted ODOT's motion for summary judgment on defendant's counterclaim for misrepresentation. The Court of Appeals did not err when it sustained that ruling. Defendant's next counterclaim was for an "inverse condemnation." An inverse condemnation occurs when a governmental entity effectively takes property without actually exercising its power of eminent domain. This court's first detailed discussion of such a claim was in Tomasek v. Oregon Highway Com'n, 196 Or. 120, 147-51, 248 P.2d 703 (1952). In Tomasek, the court stated that "it manifestly would be absurd * * * that the state might destroy the right and protection given the owner of property and evade the payment of just compensation, simply through the medium of failing or refusing to institute condemnation proceedings." Id. at 147, 248 P.2d 703. More recently, this court has defined inverse condemnation this way: The dispositive issue, then, in an inverse condemnation claim is whether property was taken, in fact, by the government even though no formal eminent domain proceedings were initiated. Under Article I, section 18, of the Oregon Constitution,[6] a property is taken when there is a "destruction, restriction or interruption of the necessary use and enjoyment of [the] property of a person for a public purpose. Most cases boil this definition down to a test of whether there has been a `substantial' interference with property rights." Hawkins, 315 Or. at 68, 843 P.2d 400 (citations omitted) (internal quotation marks omitted).[7] Under either formulation, the government must interfere with a property owner's rights, and that interference must cause the harm suffered by the property owner. Here, it was defendant, not ODOT, that demolished the Sylvan Building. The diminution in value of the property thus resulted from the acts of defendant, not of the government. ODOT's failure to reveal its plans to condemn property might, in a proper case, support a claim for misrepresentation or other relief, but that failure does not *764 transform a property owner's actions into actions by the government. Additionally, the existence of ODOT's plans to condemn property cannot support a claim for inverse condemnation, as this court's prior cases have explained. In Fifth Avenue Corp. v. Washington Co., 282 Or. 591, 593-95, 581 P.2d 50 (1978), a property owner challenged the validity of a county's zoning plan, on its face and as applied to the landowner's land. The landowner alleged that the zoning regulations adopted by the county had rendered the landowner's property "substantially valueless" and had deprived the landowner "totally of the economic use and benefit" of the property. Id. at 608, 581 P.2d 50. In part, the landowner argued that the "designation for eventual public use of portions of [landowner's] property" constituted a taking. Id. at 610, 581 P.2d 50. This court affirmed the trial court's sustaining of the defendant county's demurrer. Id. at 614, 518 P.2d 50. In reaching that conclusion, the court said: See also Suess Builders v. City of Beaverton, 294 Or. 254, 256-57, 656 P.2d 306 (1982) (noting with approval that, in Fifth Avenue Corp., this court stated that "planning for future acquisition as such does not constitute a compensable taking of property"). Defendant's theory can be read to contend that, because ODOT induced it to demolish the Sylvan Building, defendant's act of demolishing its own property was in fact the act of the government, thus meeting that element of a claim for inverse condemnation. Assuming, without deciding, that such an approach is permissible under a claim for inverse condemnation, our answer to defendant's affirmative defense of equitable estoppel and its counterclaim for misrepresentation fully answers the approach in this case. Defendant was not entitled to rely on what it was told, so its act of demolishing the Sylvan Building cannot be transmogrified into an act of the government. The trial court did not err in granting summary judgment to ODOT on defendant's counterclaim for inverse condemnation. The Court of Appeals did not err in affirming that ruling of the trial court. Finally, defendant counterclaimed for "condemnation blight." We are aware of only one case from this court in which that phrase appears. In Lincoln Loan v. State Hwy. Comm., 274 Or. 49, 51, 545 P.2d 105 (1976), this court used the term "condemnation blight" to describe an inverse condemnation action Condemnation blight, as discussed in Lincoln Loan, occurs when the actions of the government reduce the value of the property before the actual taking. As discussed above, it was defendant, not the government, that reduced the value of the property by demolishing the Sylvan Building. The trial court did not err in granting summary judgment to ODOT on defendant's *765 counterclaim for condemnation blight. The Court of Appeals did not err in affirming that ruling. The Court of Appeals erred when it held that any error in the trial court's grant of summary judgment to ODOT on defendant's affirmative defenses and counterclaims was harmless. On the merits, however, the trial court did not err when it granted ODOT's motion for summary judgment on defendant's affirmative defenses and counterclaims. The decision of the Court of Appeals is affirmed on different grounds. The judgment of the circuit court is affirmed. [*] Unis, J., did not participate in this decision. [1] Defendant did not petition for review with respect to the striking of the allegations concerning the value of the Sylvan Building. Accordingly, we do not consider that issue. [2] ODOT argues that ORS 35.295 does not authorize defendant to assert its affirmative defenses and counterclaims. Because we hold that defendant's affirmative defenses and counterclaims lack merit as a matter of law, we need not decide whether ODOT's procedural argument is well taken. For the same reason, we need not address the constitutional arguments made by defendant and amici. [3] In a separate bill, House Bill 2128, the legislature provided that, once the location of the light rail and corresponding highway improvements had been determined, Tri-Met and ODOT would manage the construction phases of the light rail project. Or.Laws 1991, ch. 575, § 5(1). That act was signed by the governor on July 17, 1991, and was effective upon its passage. Section 5(1), codified at ORS 391.150(1), provides that ODOT will "manage and oversee the construction of highway improvements related to the extension of the light rail system." Defendant's property was taken because of necessary highway improvements related to the extension of the light rail system; thus, it was within ODOT's authority, under ORS 391.150(1), to take defendant's property. Defendant does not contend otherwise. [4] The parties do not dispute those general principles, but dispute only their application in this case. [5] Summary judgment is proper "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, 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." ORCP 47 C. [6] Article I, section 18, of the Oregon Constitution, provides in part: "Private property shall not be taken for public use * * * without just compensation * * *." [7] The Takings Clause of the Fifth Amendment to the Constitution of the United States provides: "[N]or shall private property be taken for public use, without just compensation." The Takings Clause of the Fifth Amendment to the Constitution of the United States 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). Defendant offers no different analysis under the state and federal constitutions. Therefore, we will assume, without deciding, that the analysis is the same. See Dept. of Trans. v. Lundberg, 312 Or. 568, 572 n. 4, 825 P.2d 641 (stating same principle), cert. den. ___ U.S. ___, 113 S. Ct. 467, 121 L. Ed. 2d 374 (1992).

11a55d60d7c65385d8e04bb06984545ad0fe7fba70b9d084498d5e0078e4ff34

1995-05-18T00:00:00Z

9558fc76-2c2d-4ff6-b1ed-7dd06548529f

Morris v. Dept. of Rev.

320 Or. 579, 889 P.2d 1294

oregon

Oregon Supreme Court

889 P.2d 1294 (1995) 320 Or. 579 John D. MORRIS, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. OTC 3435; SC S41275. Supreme Court of Oregon, In Banc. Argued and Submitted October 31, 1994. Decided March 9, 1995. John Eric Wilkes of Callaghan & Wilkes, Salem, argued the cause and filed a reply brief for appellant. John D. Morris, appellant, filed the opening brief pro se. *1295 Jerry Bronner, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Theodore R. Kulongoski, Atty. Gen. CARSON, Chief Justice. This case comes before us on direct appeal of a Tax Court judgment sustaining an assessment of personal income taxes, penalties, and interest by the Department of Revenue (the department) against plaintiff for the 1985 tax year. Plaintiff argues that he was not an Oregon resident in 1985 and that, consequently, he is not required to pay Oregon income tax for that year. The department responds that plaintiff's argument was one that he first had to make before the director of the department, that he did not do so, and that the failure to do so forecloses plaintiff from making that argument now. For the reasons that follow, we agree with the department. Plaintiff did not file an Oregon tax return for the 1985 tax year. He did, however, file a timely federal tax return for 1985, showing an Oregon address. The Internal Revenue Service (IRS) notified the department that plaintiff had filed a federal return with an Oregon address. In December 1988, and in January 1989, the department sent plaintiff letters informing him that the department had not received a 1985 tax return and asking him to file a return. In March 1989, the department sent plaintiff another letter demanding that he file a return within 30 days. Plaintiff did not respond to any of the letters. In July 1989, the department mailed a Notice of Determination and Assessment to plaintiff.[1] The envelope was returned to the department, marked "AttemptedNot Known." Plaintiff again did not respond to the department. All three letters and the notice of determination and assessment were sent to an address in St. Helens, Oregon, which was provided by the IRS and was confirmed by the department by checking the records of the Motor Vehicles Division (MVD). In August 1990, plaintiff communicated with the department about the 1985 assessment, for the purpose of removing a tax lien arising from the unpaid assessment. In April 1991, plaintiff requested an appeal of the assessment before the director of the department. The director granted plaintiff a hearing but, after the hearing, concluded that he would not disturb the final assessment because plaintiff had not appealed from the notice of determination and assessment within 90 days, as required by statute. ORS 305.280(2)[2] ("An appeal * * * from any notice of assessment * * * shall be filed within 90 days from the date of the notice."). The director also determined that plaintiff was not entitled to relief under ORS 305.295,[3] because he was an Oregon resident in 1985, and the State of Oregon may tax all the income of its residents under the Oregon Constitution and federal law. See, e.g., Keller v. Dept. of Rev., 319 Or. 73, 78, 872 P.2d 414 (1994) ("The state's taxing authority extends to all of the income earned by its residents, including income earned outside the state."). The director of the department dismissed the appeal and concluded that plaintiff owed $4,863.68 (plus accruing interest) in income taxes, penalties, and interest. Plaintiff then filed a complaint in the Tax Court, arguing that he had not been an Oregon resident during the 1985 tax year and, therefore, that he was not subject to Oregon *1296 income taxation for that year. The Tax Court concluded that plaintiff had been an Oregon resident during the 1985 tax year and sustained the director's order and opinion. Plaintiff seeks direct review in this court, again arguing that he was not a resident of Oregon during the 1985 tax year and, thus, that he was not subject to personal income taxation for that year. In response, the department argues, among other things, that the Tax Court and this court do not have a basis upon which to address the merits of plaintiff's appeal because an assessment of income taxes by the department becomes final if it is not appealed to the director within 90 days and because plaintiff failed to pursue, and to exhaust, his administrative remedies in a timely manner. Before we turn to the merits of plaintiff's argument, we must decide whether the Tax Court had a basis upon which to hear this appeal. ORS 305.275(4) provides, in part: "[N]o person shall appeal to the Oregon Tax Court * * * on any matter arising under the revenue and tax laws administered by the department unless the person first exhausts the administrative remedies provided before the department and the director." (Emphasis added.) ORS 305.275(1) provides that any person aggrieved by an act of the department "may appeal to the Director of the Department of Revenue in the manner provided by this section." As stated above, ORS 305.280(2) requires that an appeal to the director of the department from a notice of determination and assessment "shall be filed within 90 days from the date of the notice." In order to exhaust administrative remedies sufficient to satisfy ORS 305.275(4), a taxpayer must pursue the available administrative remedies in a timely manner. See, e.g., Ebert v. Dept. of Rev., 307 Or. 649, 652-53, 771 P.2d 1018 (1989) (holding that Tax Court did not have a statutory basis upon which to hear a challenge of an assessment of income tax because plaintiff failed to challenge the assessment before the department within 90 days). ORS 305.265(11) provides that "[m]ailing of notice to the person at the person's last-known address shall constitute the giving of notice as prescribed in this section." Once notice is given, the 90-day appeal period begins to run. ORS 305.280(2). Plaintiff argues that, because the department did not send the notice of determination and assessment to his "last-known address," the department did not provide notice of determination and assessment as required by the statute and, therefore, that plaintiff was not untimely in challenging the assessment. We disagree. Although this court heretofore has not interpreted the meaning of "last-known address," we conclude that the department satisfied its obligation to provide notice under ORS 305.265(11).[4] "Last-known address" ordinarily refers to the address provided on the last Oregon income tax return filed by the taxpayer. Cf. United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. den. 469 U.S. 830, 105 S. Ct. 116, 83 L. Ed. 2d 59 (1984) (under Internal Revenue Code, last-known address is the one on the most recent tax return unless taxpayer gives clear and concise notice of a change of address); Eshweiler v. U.S., 946 F.2d 45, 48 (7th Cir. 1991) (under Internal Revenue Code, last-known address is the one on the return being audited unless taxpayer gives "clear and concise" notification of a change).[5] However, the "last-known address" changes if the department has actual notice that the taxpayer's address has changed. Once the department has such notice, it is required to use reasonable diligence in ascertaining the taxpayer's last-known address. Cf. Eshweiler v. U.S., supra, 946 F.2d at 48 *1297 ("The IRS need only exercise reasonable diligence in attempting to discover the taxpayer's last known address."). In this case, plaintiff's last Oregon tax return was filed in 1981. The department, on its own, determined that that address was too old to use as the last-known address. In October 1988, after the IRS notified the department that plaintiff had filed a return with an Oregon address, the department requested a "federal transcript," which provided the department with the information from plaintiff's 1987 federal tax return. Plaintiff's 1987 return showed a St. Helens address. The department sent the three preliminary letters to that address. The department received no notice that those letters were undeliverable at that address. In May 1989, the department obtained a MVD computer printout, which showed the same St. Helens address. Plaintiff had an obligation to notify the MVD of any change of address. See ORS 807.560 (it is a Class D infraction to fail to notify the MVD within 30 days of a change of address from the address noted on a driver license). Based on the foregoing information, the department concluded that the St. Helens address was the last-known address and, on July 12, 1989, sent the notice of determination and assessment to that address. As previously observed, that letter was returned, marked "AttemptedNot Known." Plaintiff argues that the department was obligated to continue looking for his new address at that point. We disagree. The last-known address is determined at the time when the notice of determination and assessment is sent. Cf. Armstrong v. CIR, 15 F.3d 970, 975 (10th Cir.1994) ("We agree with the Fifth, Seventh, and Ninth Circuits, as well as the [United States] Tax Court, that the IRS's duty to exercise reasonable diligence in ascertaining a taxpayer's last known address extends only to the point in time when the deficiency notice is mailed."). We conclude that the department exercised reasonable diligence in determining that the St. Helens address provided by the IRS and confirmed by the MVD was plaintiff's last-known address. Thus, the department gave notice of the assessment, as required by ORS 305.265(11), on July 12, 1989. Accordingly, plaintiff was required to appeal the assessment to the director within 90 days from that date. Plaintiff did not appeal within the statutorily required time. His appeal to the director was not timely under ORS 305.280(2). Plaintiff argues, in the alternative, that his appeal was not an appeal of the assessment, but rather an appeal from a denial of a claim for a refund under ORS 305.270 (governing claims for refunds). ORS 314.415(1)(b) provides that "[n]o 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." Plaintiff argues that he challenged the denial of a refund within two years and, therefore, that he made a timely claim and exhausted his administrative remedies. That argument is unpersuasive. As this court held in Van Tran v. Dept. of Rev., 320 Or. 170, 174, 880 P.2d 924 (1994), cert. den. ___ U.S. ___, 115 S. Ct. 1112, 130 L. Ed. 2d 1077 (1995), a taxpayer may not fail to appeal an assessment within the appointed time and then later seek a refund, arguing that the basis for the assessment was improper.[6] The taxpayer is required to challenge the assessment within 90 days or the *1298 assessment becomes final. ORS 305.265(14) and 305.280(2). Plaintiff did not challenge the assessment within 90 days; therefore, he failed to exhaust his administrative remedies, and the Tax Court had no basis upon which to address the merits of plaintiff's appeal. ORS 305.275(4). One further issue deserves mention. Plaintiff argued before the director of the department that the department did not have jurisdiction to tax him because he was not a resident of Oregon. The director treated that argument as an appeal of the department's denial of a request to cancel a tax pursuant to ORS 305.295(1). That statute provides, in part: "* * * * * The director considered plaintiff's argument that the department did not have jurisdiction to tax him and concluded that plaintiff was an Oregon resident, giving the department the authority to tax him. Plaintiff is not entitled to review of that decision either in the Tax Court or in this court. ORS 305.295(6). Plaintiff is not excused from the requirement that he exhaust his administrative remedies, nor did he exhaust those remedies; therefore, under Oregon statutory law, the Tax Court had no basis upon which to address plaintiff's claim on the merits. The decision of the Tax Court is vacated. The case is remanded to the Tax Court with instructions to dismiss the proceeding. [1] This notice advised plaintiff that the department had assessed taxes, penalties, and interest against him for the 1985 tax year. [2] The statutes in effect in 1989, the year in which the taxes were assessed, control this case. Because there have been no pertinent changes in the code since that time, we cite to the 1993 version of the statutes throughout this opinion. [3] ORS 305.295(1) provides, in part: "[T]he Department of Revenue may in its discretion, cancel any tax, penalty or interest for which an assessment has become final, if any of the following conditions exist: "(a) The assessment is based upon an asserted tax deficiency calculated upon income that the state is expressly prohibited from taxing under the Oregon Constitution or the laws of the United States." [4] In 1992, the department promulgated a rule that instructs the department how to determine a taxpayer's "last-known address." See OAR 150-305.265(11) (setting forth procedure for ascertaining a taxpayer's last-known address). [5] Federal tax law does not control the tax law of Oregon. We cite federal cases only when we find them persuasive. [6] In fact, plaintiff's argument in this case is even farther afield than the argument made by the taxpayer in Van Tran. In Van Tran, the taxpayer paid the money due pursuant to the assessment before claiming a refund. Van Tran v. Dept. of Rev., 320 Or. 170, 174, 880 P.2d 924 (1994), cert. den. ___ U.S. ___, 115 S. Ct. 1112, 130 L. Ed. 2d 1077 (1995). In this case, plaintiff argues that, even though he did not pay any taxes pursuant to the assessment, he was granted a hardship exception under ORS 305.419(3) by the Tax Court that extends to an appeal of a denial of refund as well as to a challenge of an assessment. Based on that leap of logic, plaintiff claims that he may file for a tax refund before he pays any of the assessed taxes. We do not find that argument persuasive.

a244fea86eb2ff8a41515110b8fe2119554797ba285011b6ea924437df5488d4

1995-03-09T00:00:00Z

60c44be0-bda1-432e-b10f-d6026ca399be

State v. Stewart/Billings

321 Or. 1, 892 P.2d 1013

oregon

Oregon Supreme Court

892 P.2d 1013 (1995) 321 Or. 1 STATE of Oregon, Respondent on Review, v. Matthew Wayne STEWART, Petitioner on Review. STATE of Oregon, Respondent on Review, v. Jesse Allen BILLINGS, aka Running Deer, Petitioner on Review. CC 10-90-07017C; CA A71065; SC S40693; CC 9202-0365, 9202-0366; CA A76560 (Control), A76561; SC S40890. Supreme Court of Oregon. Argued and Submitted January 6, 1995. Resubmitted January 19, 1995. Decided April 21, 1995. Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause for petitioners on review. With him on the briefs were Sally L. Avera, Public Defender, and Louis R. Miles, Deputy Public Defender, Salem. Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the briefs were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Angela Sherbo, Portland, filed a brief on behalf of amicus curiae Juvenile Rights Project, Inc. *1014 Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.[*] VAN HOOMISSEN, Justice. The issue in these consolidated cases is whether the sentencing courts erred in denying defendants' motions to preclude the use of their juvenile adjudications in calculating their "criminal history scores" under the sentencing guidelines. The Court of Appeals affirmed the sentencing courts' rulings. State v. Stewart, 123 Or.App. 147, 151, 859 P.2d 545 (1993), adhered to as modified on reconsideration, 126 Or.App. 456, 868 P.2d 794 (1994); State v. Billings, 124 Or.App. 682, 865 P.2d 1340 (1993). We also affirm. Defendant Stewart was convicted by a jury of two counts of burglary in the first degree. Before sentencing, he moved to preclude the use of his juvenile adjudications for burglary and unauthorized use of vehicle in calculating his criminal history score under the sentencing guidelines.[1] He argued that, because he had not been afforded jury trials in his juvenile proceedings, the use of those juvenile adjudications in assessing his criminal history score violated the jury trial provision of Article I, section 11, of the Oregon Constitution.[2] The sentencing court denied Stewart's motion. The court then determined that Stewart fell within gridblock 8-G on the guidelines matrix and sentenced him to a prison term of 22 months, with 36 months of post-prison supervision, on the primary offense. If the sentencing court had not used Stewart's juvenile adjudications, his maximum presumptive prison sentence would have been 18 months. Thus, his sentence was increased by at least 4 months as a consequence of considering his juvenile adjudications. Defendant Billings was convicted by a jury of first degree sexual abuse and first degree attempted sodomy. Before sentencing, he moved to preclude the use of his juvenile adjudications for burglary, sodomy, and assault in calculating his criminal history score under the sentencing guidelines. Essentially, his argument was the same as that of Stewart. The sentencing court denied Billings' motion. The court then determined that Billings' conviction for sexual abuse fell under gridblock 8-C on the guidelines matrix and, accordingly, sentenced him to a presumptive prison sentence of 34 months. The court separately sentenced Billings on the attempted sodomy conviction under gridblock 8-C and again imposed a presumptive prison sentence of 34 months, to be served consecutively to his sentence for sexual abuse. Billings' juvenile adjudication for sodomy changed his criminal history score from 8-E to 8-C. Stewart and Billings appealed. The Court of Appeals, sitting in banc, rejected Stewart's argument, holding that "[a]n adjudication sufficient to commit a juvenile to a juvenile facility can later be used to enhance a sentence as an adult." Stewart, 123 Or.App. at 151, 859 P.2d 545.[3] In a dissenting opinion in Stewart, four Court of Appeals judges opined that, because Article I, section 11, guarantees adult criminal defendants a right to a jury trial, non-jury juvenile adjudications may not be used in a later criminal proceeding "because [that outcome] is inconsistent with the constitutional underpinnings that permit juvenile adjudications without juries." Stewart, 123 Or.App. at 152, 859 P.2d 545 (De Muniz, J., dissenting). Billings, which presented the same legal issue, was affirmed *1015 from the bench.[4] We allowed review in both cases. We first consider the state's position that defendants' argument under Article I, section 11, is an impermissible collateral attack on the validity of their juvenile adjudications. The state relies primarily on Custis v. United States, 511 U.S. ___, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994). Custis held that, under federal sentencing guidelines, an adult offender may not attack collaterally the validity of a prior state conviction used at the offender's sentencing hearing on the ground that the offender had inadequate assistance of counsel in the prior proceeding. In Custis, the Supreme Court of the United States concluded that federal sentencing guidelines do not provide specific statutory authority for such a challenge and that the Constitution of the United States does not require that collateral attacks be allowed. 511 U.S. at ___-___, 114 S. Ct. at 1735-37, 128 L. Ed. 2d at 525-26. Collateral attacks are permitted only where the prior conviction was obtained in violation of the offender's right to be appointed counsel. Id. at ___- ___, 114 S. Ct. at 1736-39, 128 L. Ed. at 526-28 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)). The Supreme Court's decision in Custis was based on the fact that "failure to appoint counsel for an indigent defendant [is] a unique constitutional defect" that "rises to the level of a jurisdictional defect"; that allowing other collateral attacks during sentencing on a subsequent crime "would require a sentencing court to rummage through" the records of prior cases; and that allowing additional collateral attacks would deprive earlier judgments of their finality and "inevitably delay and impair the orderly administration of justice." Custis, 511 U.S. at___-___, 114 S. Ct. at 1738-39, 128 L. Ed. 2d at 528. We conclude, however, that defendant's argument is not a collateral attack, because defendants could not have made a direct attack on the future consequences of their juvenile adjudications in juvenile court. Thus, defendants' argument is not the sort of impermissible collateral attack discussed by the Court in Custis. We also agree with defendants that, unlike in Custis, there is a statutory basis for their challenge. ORS 137.079 contains the requirement that presentence reports are to be considered by a sentencing court. ORS 137.079(5) provides in part: "* * * * * ORS 138.222(4) provides: "In any appeal, the appellate court may review a claim that: We hold that defendants' state constitutional challenge to the use of their juvenile adjudications in sentencing in these cases is authorized by ORS 137.079(5), that the sentencing courts had authority to hear defendants' challenge on the ground asserted, and that appellate courts have jurisdiction to review that challenge under ORS 138.222(4). We turn to the merits of defendants' claim.[5] Defendants and the Court of Appeals dissenters have relied most heavily on Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980) as persuasive authority for their proposed interpretation of Article I, section 11. However, that case was overruled by Nichols v. United States, 511 U.S. ___, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). As summarized in Nichols: The Court in Nichols then analyzed the conflicting concurrences in Baldasar, further noting that lower courts have had difficulty trying to apply Baldasar and, consequently, have regularly limited its application to its facts. In overruling Baldasar, the Nichols Court said: "[A]n uncounseled conviction valid under Scott [v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979),] may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes which are common in state criminal laws, do not change the penalty imposed for the earlier conviction." Id. at ___, 114 S. Ct. at 1923, 128 L. Ed. 2d at 754 (citations omitted). Noting that sentencing courts have traditionally considered a wide variety of factors, including a defendant's past criminal behavior, the Nichols Court stated: The Nichols Court concluded that prior uncounseled misdemeanor convictions could be used at a later sentencing hearing. Id. at ___-___, 114 S. Ct. at 1928-29, 128 L. Ed. 2d at 755. The state argues that, because a juvenile has no right under Article I, section 11, to a jury trial, State ex rel Juv. Dept. of Klamath County v. Reynolds, 317 Or. 560, 575, 857 P.2d 842 (1993), including consideration of juvenile adjudications in a guidelines criminal history score does not violate Article I, section 11.[6] We are not persuaded by defendants' *1017 argument, based on Baldasar, that, even if their juvenile adjudications are not invalid per se, later consideration of those adjudications for adult sentencing purposes creates a state constitutional infirmity. As Reynolds shows, there was no constitutional infirmity in defendants' juvenile adjudications. Defendants cite no persuasive authority for the proposition that a constitutionally valid juvenile adjudication is not relevant to and may not be used for later adult sentencing purposes. City of Pendleton v. Standerfer, 297 Or. 725, 688 P.2d 68 (1984), and State v. Grenvik, 291 Or. 99, 628 P.2d 1195 (1981), cited by defendants, are inapposite. Those cases involved questions regarding the use of constitutionally invalid convictions in later prosecutions. Before the enactment of the sentencing guidelines, a sentencing judge was entitled to take into consideration a vast array of circumstances in trying to determine the appropriate sentence. The judge frequently considered adjudicated and unadjudicated wrongdoing, other scrapes with the law, and many other types of pertinent information in reaching the sentencing decision. The sentencing guidelines purport to narrow somewhat that range of considerations, but they do not narrow it entirelythey still permit the judge to consider an offender's prior scrapes with the law that have resulted in a formal adjudication by a juvenile court that the offender had committed an act which, had it been committed by an adult, would have been punishable as a felony. Defendants do not suggest that, before the adoption of the sentencing guidelines, it would have been impermissible for a sentencing judge to consider their juvenile adjudications, and they offer no persuasive reason why their use is not permissible now. Defendants also rely on Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977), for the proposition that juvenile adjudications are "criminal prosecutions" for purposes of Article I, section 11. Defendants ask this court to apply the test from Brown and to conclude that in this context their prior juvenile adjudications are "criminal prosecutions." We agree with the state's characterization of defendants' argument as a "thinly veiled attack on this court's recent holding in Reynolds." We decline defendants' invitation to retreat from our analysis and holding in Reynolds.[7] There are any number of circumstances that may have collateral consequences in a later case without transforming the earlier circumstances into criminal prosecutions. In these cases, defendants are being punished for their present crimes only, as to which they each have received a jury trial in accordance with all constitutional requirements. We hold that using defendants' juvenile adjudications in calculating their criminal history scores under the sentencing guidelines did not violate the jury trial provision of Article I, section 11. The decisions of the Court of Appeals are affirmed. The judgments of the circuit courts are affirmed. FADELEY, Justice, dissenting. I agree with the majority that a sentencing judge may consider prior behavior of the convicted person, including behavior as a juvenile, before determining what sentence is appropriate. However, I agree with the dissent that a prior juvenile adjudication, entered without the constitutional safeguards required for criminal cases, may not be treated as the equivalent of an adult conviction. Thus, I think it the law that prior behavior as a juvenile may be used in sentencing, but only as it represents an individual feature of an individual's past, not as if it were a prior criminal conviction. There would be no necessary conflict between the majority and the dissent had the *1018 majority stopped with deciding "the only question" before us. A footnote in the majority opinion states: With that "at all" point, and the bare bones of its resolution by the majority, I have no quarrel. However, the majority goes leagues further, across a stormy sea, to permit use of a juvenile adjudication as, in every respect, the equivalent of a criminal conviction. The juvenile court adjudication was not a criminal conviction. State ex rel. Juv. Dept. v. Reynolds, 317 Or. 560, 857 P.2d 842 (1993). I cannot join in any implication that the law regarding the future effect of a jury-less adjudication permits that adjudication to be used as a criminal conviction. Nor can I join in the holding that all adjudicated juveniles are to be viewed forever as ex-convicts in the eyes of the law. This dissent expresses my separate views, and I concur in the dissent of UNIS, J. UNIS, Justice, dissenting. The majority holds that "using defendants' juvenile adjudications in calculating their criminal history scores under the sentencing guidelines [does] not violate the jury trial provision of Article I, section 11," of the Oregon Constitution. 321 Or. at___, 892 P.2d at 1017. As the primary justification for its holding, the majority states: I find that analysis flawed, incomplete, and unpersuasive. I would hold that, under this court's decision in State ex rel Juv. Dept. v. Reynolds, 317 Or. 560, 857 P.2d 842 (1993), Article I, section 11, of the Oregon Constitution[1] prevents the use of non-jury juvenile adjudications[2] from being used under the sentencing guidelines by a sentencing court to establish a longer sentence for an adult offender than the offender would have received in the absence of those adjudications. I respectfully dissent. The Court of Appeals, in a 5-4 decision, upheld the use of juvenile adjudications under the sentencing guidelines in State v. Stewart, 123 Or.App. 147, 859 P.2d 545 (1993), adhered to as modified on reconsideration, 126 Or.App. 456, 868 P.2d 794 (1994). In State v. Billings, 124 Or.App. 682, 865 P.2d 1340 (1993), a panel of the Court of Appeals affirmed defendant's sentence from the bench. This court allowed review and consolidated the cases of Stewart and Billings. In Stewart, the majority of the Court of Appeals rejected defendant's Article I, section 11 argument, holding that "[a]n adjudication *1019 sufficient to commit a juvenile to a juvenile facility can later be used to enhance a sentence as an adult." Stewart, 123 Or. App. at 151, 859 P.2d 545. In essence, the majority of the Court of Appeals held that, because most due process guarantees are afforded a juvenile during the jurisdictional phase of a juvenile delinquency proceeding, the use of the juvenile adjudication later to enhance an adult offender's criminal sentence does not violate due process. A dissenting opinion, which I find consistent with this court's decision in Reynolds, states: "* * * * * I agree with the dissent in the Court of Appeals that this court's opinion in Reynolds means that Article I, section 11, of the Oregon Constitution prevents the use of juvenile adjudications under the sentencing guidelines to establish a longer sentence for an adult offender than the offender would have received in the absence of those adjudications. In Reynolds, in determining whether a trial by jury was required by Article I, section 11, of the Oregon Constitution or the Sixth Amendment to the federal constitution during the jurisdictional phase of a juvenile delinquency proceeding,[3] this court inquired into the history and purpose of the juvenile system in Oregon. The court concluded that "[f]rom 1907 to the present, juvenile justice in Oregon has been based primarily on a `rehabilitation' model, rather than on a `due process' or `crime control' model." Reynolds, 317 Or. at 567, 857 P.2d 842 (emphasis added). In Reynolds, this court said that the juvenile courts "* * * * * "The clear and unequivocal message of Oregon's juvenile code is to notify and involve parents whenever possible and to focus on the family, to involve schools and appropriate social agencies as early as possible, to handle matters informally, and to approach each child's alleged delinquency *1020 as an equitable problem rather than a criminal problem. * * * "* * * * * "* * * In no way is the adult criminal justice system comparable to that [rehabilitation] model." Id. at 568-74, 857 P.2d 842 (emphasis added) (footnotes and citations omitted). Ultimately, this court concluded: "* * * * * As is clear from the foregoing quotations, this court in Reynolds recognized the crucial difference between adult criminal courts and juvenile delinquency proceedings. Underlying this court's decision in Reynolds is the principle that the juvenile justice system has a greater need for experimentation and flexibility than adult criminal courts because juvenile courts are concerned with rehabilitation, not punishment. Accordingly, the decision in Reynolds implies that formal, adversarial proceedings are unnecessary and that informality in juvenile proceedings is permissible under Article I, section 11, because the focus of juvenile adjudications is on non-criminal, non-punitive (rehabilitative) purposes. In these consolidated cases, however, defendants are not faced with the type of rehabilitative, non-punitive situation described in Reynolds. Rather, defendants are faced with incarceration in the adult criminal justice system, where effective rehabilitation and the best interests of the offender are not among the primary goals stated by the sentencing guidelines. OAR 253-02-001(1) provides that the primary objectives of the sentencing guidelines are "to punish each offender appropriately, and to insure the security of the people in person and property." (Emphasis added.) The sentencing guidelines operate on a matrix system, which uses grid blocks to determine the presumptive sentence to be imposed. One side of the matrix is the "crime seriousness scale," based on the seriousness of the crime for which the person is being sentenced. OAR 253-04-001(1). The other side of the matrix is the "criminal history scale," which increases the penalty range based on the person's prior "criminal" record. Id. Each of the grid blocks formed by the intersection of a crime seriousness category and a criminal history category represents a presumptive sentence classification. OAR 253-04-001(2). The grid block assigned to a defendant is used to establish a presumptive sentence under the guidelines. See ORS 137.669 ("[t]he guidelines * * * shall control the sentences for all crimes committed after the effective date of such guidelines. Except [for departure sentences for specific reasons], the incarcerative guidelines and other guidelines so designated by the board shall be mandatory and constitute presumptive sentences") (emphasis added). In all cases, the sentencing judge must use the grid block to establish the presumptive sentence for the offender. OAR 253-04-001(2). The presumptive sentence in the guidelines is the sentence that should be imposed in the usual case. OAR 253-08-001. In cases of departure, the grid block is used to establish the maximum length of departure that a sentencing court may impose. OAR 253-08-004. The sentencing guidelines combine nonjury juvenile adjudications with adult convictions to determine a person's criminal history category. The criminal history category, which is one of the two factors used to establish *1021 a presumptive sentence, is determined by examining only prior adult convictions and juvenile adjudications. See OAR 253-04-006(2) ("[a]n offender's criminal history is based upon the number of adult felony and Class A misdemeanor convictions and juvenile adjudications in the offender's criminal history at the time the current crime or crimes of conviction are sentenced"). Thus, non-jury juvenile adjudications of "person felonies" are treated identically to "adult person felonies" to determine a person's criminal history category. OAR 253-04-007 (describing calculation of criminal history categories). In addition, non-jury juvenile adjudications of non-person felonies are given a specific value under the guidelines. Id. In Stewart, the trial court used four juvenile adjudications to calculate defendant's criminal history category, which resulted in a longer sentence than he would have received in the absence of those adjudications. Without the juvenile adjudications, defendant's maximum presumptive sentence would have been 18 months. The use of juvenile adjudications to calculate defendant's criminal history category resulted in the imposition of a presumptive sentence of 22 months in prison and 36 months of post-prison supervision. In Billings, the trial court used several non-person felonies and a juvenile adjudication for sodomy to calculate defendant's criminal history category, which resulted in a longer sentence than he would have received in the absence of those adjudications. The trial court imposed a 34-month sentence for each of defendant's convictions. Without the juvenile adjudication for sodomy, defendant's maximum presumptive sentence would have been 26 months under the sentencing guidelines. Thus, in both Stewart and Billings, defendants were sentenced to periods of incarceration, parts of which were attributable to earlier non-jury juvenile adjudications. Incarceration in the penitentiary (or extended incarceration) attributable to non-jury juvenile adjudications does not comport with nonpunitive, rehabilitative consequences that this court envisioned in Reynolds. In each of these cases, the non-jury juvenile adjudication at issue had significant punitive consequences. Thus, the holding of the majority conflicts with the foundational underpinnings of this court's decision in Reynolds. In fact, the majority does not address directly the rationale behind Reynolds. As quoted above, the majority's major argument is that, because judges historically have been able to consider offenders' "prior scrapes with the law," there is no reason why juvenile adjudications may not be considered under the sentencing guidelines. I disagree with that illogical leap. I agree that juvenile adjudications were one of the factors considered by the sentencing judge under an indeterminate sentencing regime. See State v. Scott, 237 Or. 390, 399-400, 390 P.2d 328 (1964) (setting forth considerations sentencing court may use under indeterminate sentencing scheme that preceded sentencing guidelines). That historical fact does not mean, however, that juvenile adjudications arrived at without a trial by jury may be used to enhance an adult offender's sentence under the sentencing guidelines.[4] Unlike the historical method of indeterminate sentencing, under the sentencing guidelines, the trial court is not entitled to weigh the circumstances surrounding a particular non-jury juvenile adjudication or to disregard the adjudication altogether if the trial court believes it is appropriate. The sentencing judge must impose a presumptive sentence, calculated in part by considering juvenile adjudications, unless the judge has "substantial or compelling reasons to impose a departure." OAR 253-08-001. The sentencing guidelines contain a "nonexclusive" list of departure factors that does not include *1022 discretionary review of prior juvenile adjudications in mitigating a presumptive sentence. OAR 253-08-002(1). As a result, unlike the indeterminate sentencing regime, under the sentencing guidelines, juvenile adjudications have significant punitive consequences. The sentencing guidelines require trial courts to consider non-jury juvenile adjudications in a structured, non-discretionary format. Through the use of juvenile adjudications in adult sentencing, those adjudications are used for "crime control" and "punitive" purposes rather than for the rehabilitative purposes touted in Reynolds. In Reynolds, this court held that juries are not constitutionally required in juvenile delinquency proceedings because such proceedings are not criminal prosecutions. Although, under Reynolds, a child may be adjudicated without a jury for the purposes of juvenile, non-punitive proceedings, the constitutionality of that adjudication dissipates when the adjudication is used indistinguishably with an adult criminal conviction to calculate an adult offender's criminal history category.[5] The juvenile justice system cannot be used as both a sword and a shield. Under Reynolds, because juvenile adjudications are designed to ascertain and protect the best interests of the child, the state is shielded from having to provide a trial by jury. I would not allow, as the majority does today, the state to turn around and use a juvenile adjudication obtained without a trial by jury as a sword to imprison a criminal defendant in an adult facility. As this court stated in Reynolds, if the state wishes to punish a juvenile offender, it must remand the child to adult court for a criminal prosecution that includes the right to a trial by jury. Reynolds, 317 Or. at 574, 857 P.2d 842. As the Supreme Court of the United States warned nearly thirty years ago: The majority opinion creates the worst of both worlds for juveniles brought under the jurisdiction of juvenile courts in Oregona juvenile offender need not receive an adjudication by an impartial jury, yet that adjudication later may be used under the sentencing guidelines to establish a longer sentence in adult prison for an offender than that offender would have received in the absence of that adjudication. Moreover, the majority gives the state the best of both worldsthe state need not provide a trial by jury in a juvenile adjudication, yet it later may use that same adjudication to have an adverse effect on an adult offender's length of sentence. Under Reynolds, Article I, section 11, of the Oregon Constitution does not require a *1023 trial by jury in the jurisdictional phase of a juvenile delinquency proceeding. However, I do not believe that a non-jury juvenile adjudication later may be used to establish a longer sentence in an adult prison for an offender than that offender would have received in the absence of that adjudication. Accordingly, I would reverse the decision of the Court of Appeals and the judgment of the circuit court, vacate the sentences of each defendant, and remand the cases to the circuit court for resentencing. I respectfully dissent. FADELEY, J., joins in this dissenting opinion. [*] Durham, J., did not participate in this decision. [1] OAR 253-04-006(2) provides in part: "An offender's criminal history is based upon the number of adult felony and Class A misdemeanor convictions and juvenile adjudications in the offender's criminal history at the time the current crime or crimes of conviction is sentenced." "Juvenile adjudications" are defined as "formal adjudication or finding by a court that the juvenile has committed an act which, if committed by an adult, would be punishable as a felony." OAR 253-03-001(11). [2] Article I, section 11, of the Oregon Constitution, provides in part: "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury[.]" [3] In Stewart, the Court of Appeals remanded for resentencing on Count II. On review, the state does not challenge that decision. [4] In his Court of Appeals brief and in his petition for review, Billings also raised claims under Article I, sections 20 (equal protection) and 21 (ex post facto laws), of the Oregon Constitution. Those claims were not preserved for review and they are not mentioned in defendants' brief on the merits. Accordingly, we do not consider them. Billings also argued in the Court of Appeals that the trial court erred when it used the same criminal history classification to order both of his consecutive sentences. Because that claim has not been asserted on review, we do not consider it. [5] We note here that defendants have based their entire argument on a single theory, viz., that it is impermissible to consider at all their earlier juvenile court adjudications. Therefore, that is the only question that we consider. We do not consider or address issues that might be raised concerning, for example, any limitations that may exist on the weight that may be given to such adjudications, assuming that they may in fact be considered for some purpose. [6] As noted, defendants were convicted after jury trials of the crimes for which they are being sentenced, and the validity of their convictions is not at issue here. [7] During oral argument in these cases, defendants argued that, in Reynolds, this court did not consider the precise issue presented in these cases, viz., the "collateral consequences" of an adjudication for juvenile delinquency. Defendants are mistaken. In Reynolds, that issue was briefed, argued, and ultimately rejected by this court. Reynolds, 317 Or. at 565 n. 3, 857 P.2d 842. [1] Article I, section 11, of the Oregon Constitution provides in part: "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed." [2] "`Juvenile Adjudication' means formal adjudication or finding by a court that the juvenile has committed an act which, if committed by an adult, would be punishable as a felony." OAR 253-03-001(11). [3] "Juvenile court delinquency proceedings have two aspects: (a) the adjudicatory or jurisdictional phase, in which the court must decide whether the young person's conduct warrants juvenile court jurisdiction; and (b) the dispositional phase, in which the judge is faced with the task of what to do with a youth over whom jurisdiction has been established." Robert H. Mnookin and D. Kelly Weisberg, Child, Family and State: Problems and Materials on Children and the Law 1008 (2d ed 1989). [4] In addition, the majority does not analyze whether the use of non-jury juvenile adjudications in (pre-guidelines) indeterminate sentencing was constitutional. It merely asserts that courts did consider that type of adjudication and that these defendants do not argue that it was impermissible for judges to consider such information before the sentencing guidelines. A constitutional holding should not be based on the premise that "it has always been that way" and that "the parties did not raise it." If the majority chooses to rely on historical practice, I believe that the majority should at least do an independent analysis as to whether the earlier practice on which it relies was constitutional. [5] The dissent in the Court of Appeals argued that "[t]he fact that defendant's previous juvenile adjudications were constitutionally valid for certain purposes does not mean that they were `valid for all purposes.' Baldasar v. Illinois, 446 U.S. 222, 226, 100 S. Ct. 1585 [1587], 64 L. Ed. 2d 169 (1980) (Marshall, J., concurring)." State v. Stewart, 123 Or.App. 147, 155, 859 P.2d 545 (1993) (De Muniz, J., dissenting), adhered to as modified on reconsideration, 126 Or.App. 456, 868 P.2d 794 (1994). The majority dismisses that argument by noting that the Supreme Court's opinion in Baldasar was overruled by Nichols v. United States, 522 U.S. ___, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). 321 Or. at 15-16, 892 P.2d 1016-1017. Although that is true, Baldasar was not offered as anything more than persuasive authority. Baldasar involved an uncounselled misdemeanor conviction that was valid at the time that it was imposed because no prison time was actually imposed. In a plurality opinion, the Supreme Court held that the uncounselled conviction was not valid to enhance a later sentence that did involve incarceration. Baldasar, 446 U.S. at 222-23, 100 S. Ct. at 1585. That holding was overruled in Nichols. The analogy is appropriate in this case, regardless of whether Baldasar was overruled. In my view, the majority must grapple with the merits of the argument rather than dismiss it simply because the Supreme Court of the United States ultimately rejected a similar argument. Just because a juvenile adjudication is valid under Article I, section 11, of the Oregon Constitution for its consequences in the juvenile system does not make it valid for all purposes and at all times.

b76cef7f40fafd60b192f3745fe6fc1d3b6b81e6c4ce85377f99bebb70874d11

1995-04-21T00:00:00Z

d87b6330-798b-468e-aebe-f9313ede1ea3

State v. Skotland

S070410

oregon

Oregon Supreme Court

No. 17 May 16, 2024 319 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. JEFFERY JERALD SKOTLAND, Respondent on Review. (CC 19CR77935) (CA A176291) (SC S070410) En Banc On review from the Court of Appeals.* Argued and submitted March 7, 2024, at the University of Oregon School of Law, Eugene, Oregon. Jordan R. Silk, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Stacy M. Du Clos, Deputy Public Defender, Oregon Public Defense Commission, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Deputy Defender, Criminal Appellate Section. JAMES, J. The decision of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for further proceedings. _____________ *  Appeal from Washington County Circuit Court, Erik Buchér, Judge. 326 Or App 469, 533 P3d 55 (2023). 320 State v. Skotland Cite as 372 Or 319 (2024) 321 JAMES, J. In this criminal case, we consider the efficacy of “preemptive objections”—that is, objections made to an anticipated future action by opposing counsel—to preserve an issue for appeal. Defendant raised a preemptive objection prior to closing arguments, contending that the state should not be permitted to make “burden-shifting” arguments or mention related topics; he relatedly informed the trial court of relevant caselaw. The trial court engaged in a lengthy col- loquy on defendant’s objection and largely agreed with the legal principles that he had articulated. The trial court then instructed both counsel on guidelines for closing argument; defendant neither objected to those guidelines nor indicated that he thought that the trial court had erred in its under- standing of the law. The state delivered its closing argument without objection from defendant. On appeal, defendant assigned error to a purport- edly impermissible burden-shifting argument the prosecu- tion made in closing. Defendant’s appellate arguments, on the one hand, argued that the trial court had erred in lim- iting the prosecutor’s closing in advance, and on the other hand, that the prosecutor’s closing was prohibited under the law presented to the trial court in the preemptive objection, and possibly under the trial court’s ruling on the preemp- tive objection. A divided Court of Appeals treated defen- dant’s assignment as preserved, relying on defense counsel’s preemptive objection made before closing arguments, and reversed. State v. Skotland, 326 Or  App 469, 470, 474-77, 533 P3d 55 (2023). As we will explain, focusing on the prac- tical purposes of preservation, we conclude that defendant’s assignment of error was not preserved. We therefore vacate the decision of the Court of Appeals and remand for that court to consider in the first instance whether the purported error that defendant identifies qualifies as plain error, and if not, to address defendant’s other assignment of error. BACKGROUND Defendant was charged with unlawful purchase of a firearm, false information in connection with the trans- fer of a firearm, and attempted felon in possession of a 322 State v. Skotland firearm. Defendant had attempted to buy a firearm; on the form required for purchase, he checked “no” to the question whether he had been convicted of a felony, but he had in fact been previously convicted of two felonies in the State of Washington. At trial, defendant testified that he had “assumed or was hoping” that his prior felony convictions had been expunged, as he had consulted an attorney and filled out paperwork to that end. On cross-examination, defendant declined to identify the attorney, stated that he did not have the paperwork with him, and asserted that his papers at home had all been destroyed in a fire. Prior to closing arguments, defendant made a pre- emptive objection to the state’s closing argument. As that objection was the sole basis for defendant’s later asser- tion that he had preserved the alleged error, we quote the exchange at length. Defendant first offered his objection to any “burden shifting” argument that the state might make in closing argument, and the trial court agreed that defendant was correct: “[DEFENSE COUNSEL]:  So I do want to just make a preemptive kind of objection just to make sure we’re not getting into an issue that comes up during closing. “Not that I’m assuming the state’s going to do any- thing, but I see the potential that the state could be saying that[,] if the defense is going to rely [on the fact] that my client spoke to an attorney, we should be bringing in that attorney. We should bring in whatever documents for the expungement. “*  *  * It’s the state’s burden. I don’t have to present anything, and they can’t stand up and say I should have brought stuff in[.]” The trial court agreed with defense counsel: “THE COURT:  Oh, yeah. They can’t burden shift. So I guess it would be how they make the argument, as long as it’s not burden-shifting, for example, like when someone doesn’t testify. ‘He could have gotten on the stand and said’ you know, it’s like, no. No. We don’t have to do anything.” Cite as 372 Or 319 (2024) 323 The court then added a qualification, and defendant expressly agreed that the qualification accurately stated the law: “[THE COURT:]  But he [the prosecutor] can comment on things your client did state, though. “[DEFENSE COUNSEL]:  Correct. “THE COURT:  [Defendant] did talk about— “[DEFENSE COUNSEL]:  Right. “THE COURT:  —because that’s not burden-shifting because it’s just talking about the facts in evidence.” (Emphases added.) The trial court then gave defendant an opportunity to provide an example of an argument that he would find objectionable: “[THE COURT:]  Do you have more of a specific exam- ple of what that you would find objectionable of what— where [the prosecutor] might go to? “[DEFENSE COUNSEL]:  That— “THE COURT:  Because you can’t unring the bell.” Defendant did not offer any additional examples; instead, he simply restated his position: “[DEFENSE COUNSEL]:  So the idea that we should have brought in the attorney to testify as to what occurred, we should have brought it may be the expungement paper- work as evidence. “THE COURT:  Oh, right. Right. And he can’t do that. “[DEFENSE COUNSEL]  He can’t do that.” The court then reiterated the prior distinction between burden-shifting and commenting on the evidence. If defendant thought at that point that the court had misun- derstood his position, he did not say so: “THE COURT:  But [the prosecutor] could say things like, ‘Hey, the defendant was testifying, and he didn’t say the attorney’s name, and he didn’t have to, but he could 324 State v. Skotland have if he wanted to, you know, because he was asked about that.’ “I told [defendant during trial that] you could—you can say the [attorney’s] name if you want to. I’m not requiring it because I can’t, but you can if you want to. And he decided not to.” The remainder of the trial court’s comments were directed to the prosecutor, summarizing what was and was not permitted: “[THE COURT]:  You can’t say that [defendant] should have brought in the attorney. He should have brought in expungement paperwork or whatever. Yeah. You can just talk about how—what happened on the stand—and he talked about. You said, did you have the stuff with him now—with you now, and he said no. Right? “[PROSECUTOR]:  Right, Judge. “THE COURT:  As opposed to—so it’s a real fine line there. Do you understand? “[PROSECUTOR]:  Yes, Judge. And I intended to say that we don’t have that before us. “THE COURT:  Right, we don’t. Exactly. And you can talk about that. “[PROSECUTOR]:  But I’m not saying—I was not going to say that they should have or that they could have. “THE COURT:  Oh, yeah. Yeah. Yeah. Exactly. Like, ‘This guy, he could have brought this stuff in with him.’ We’re just like, ‘No, no, no. He’s not required to,’ but, yeah. “But you can talk about what he testified to and exactly—you know where that fine line is, but as long as it’s not burden-shifting, you’ll be totally fine. “Anything else for the defense? “[DEFENSE COUNSEL]:  No.” During closing argument, the prosecutor referred to defendant’s testimony about the expungement. Defense counsel did not object to those statements by counsel, although he did respond to it in his own closing. The jury convicted defendant on all three counts. Cite as 372 Or 319 (2024) 325 Defendant appealed. As relevant here, he contended on appeal that the trial court had erred in allowing the pros- ecutor to make comments in closing, discussing defendant’s testimony, that defendant characterized as impermissible “burden-shifting.”1 Specifically, defendant highlighted the following statements: “He claimed that he filled out a bunch of paperwork in the [S]tate of Washington. We don’t have that paperwork here today. He claims that the paperwork was lost in a fire, or his dog ate it, or we don’t know. But perhaps it doesn’t exist. “He also claims that an attorney, who he refused to name, told him that he could mark ‘no’ on the ATF form. And that’s what he told officers when he was confronted. “But, today, he said that attorney who he refuses to name told him that he needed to wait. So which is it? Was he told to wait, or *  *  * was he told he was good to go ahead and write ‘no’? “We don’t know who that attorney is or if that attorney exists because he refuses to tell us.” The state responded (among other things) that defendant had not preserved the error. A majority of the Court of Appeals reversed defen- dant’s conviction. The majority concluded that defendant’s preemptive objection had been sufficient to preserve the issue identified on appeal and that defendant did not need to renew the objection when the prosecutor’s closing argument allegedly exceeded the scope of his proposed rule of law. Skotland, 326 Or App at 476-77. The majority then held that the prosecutor’s closing had in fact impermissibly shifted the burden of proof in a way that invited the jury to convict defendant for his failure to present evidence. Id. at 481. Judge Kamins dissented, disagreeing with the majority’s analysis both as to preservation, and on the mer- its. Id. at 483 (Kamins, J., dissenting). The state petitioned this court for review, which we allowed. 1  Defendant made an additional assignment of error that the Court of Appeals did not reach. Skotland, 326 Or App at 470 n 1. 326 State v. Skotland ANALYSIS The parties did not raise preservation of error in their briefs to this court, instead focusing on the underlying merits of the Court of Appeals’ conclusion that the prose- cutor’s closing argument had improperly shifted the bur- den of proof to defendant.2 However, preservation is not an issue that the parties must raise for this court to consider it; an appellate court has an independent obligation to deter- mine whether a claimed error was preserved. As we have explained in a number of cases, “neither the state’s failure to raise preservation as an issue in the Court of Appeals, nor the state’s erroneous conces- sion that the sanction issue had been preserved at trial, conferred authority on that court to consider defendant’s unpreserved claim of error.” State v. Wyatt, 331 Or 335, 346, 15 P3d 22 (2000); see also Lawrence v. Oregon State Fair Council, 370 Or 764, 770-72, 525 P3d 464 (2023) (noting that, “[a]lthough defendant did not question preservation in the Court of Appeals, it does so here,” and proceeding to determine that the issue had been preserved); State v. Gerhardt, 360 Or 629, 634, 385 P3d 1049 (2016) (citing Wyatt for the proposition that “appellate courts always have [an] obligation to address preservation”). At its heart, preservation is a doctrine rooted in practicality, not technicality. Preservation serves a number of policy purposes, but chief among them is fairness and effi- ciency—affording both opposing parties and trial courts a meaningful opportunity to engage an argument on its merits and avoid error at the outset. As we have previously stated: “Preservation gives a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may obviate the need for an appeal.” Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008); see also Thompson v. Fhuere, 372 Or 81, 102-03, 545 P3d 1233 (2024) (to same effect). 2  The Court of Appeals’ disposition meant that neither party had an incen- tive to raise preservation in this court. The state sought to have the Court of Appeals’ opinion reversed on the merits, while defendant would have injured his own cause by arguing preservation. Cite as 372 Or 319 (2024) 327 To accomplish that goal, preservation requires a party to explain its objection clearly enough for the oppos- ing party, and the trial court, to understand the issue and either avoid an error, or correct an error if one has occurred. See Wyatt, 331 Or at 343 (explanation must be “specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted”). Ideally, this is accomplished through articulating an issue, stating a source of law, and advancing an argument. See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (“We have previously drawn attention to the distinctions between raising an issue at trial, identifying a source for a claimed position, and mak- ing a particular argument. *  *  * The first ordinarily is essen- tial, the second less so, the third least.” (Emphasis in origi- nal.)). But preservation is an inherently contextual inquiry, and it “is not something that can be explained by a neat verbal formula.” State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011). In some cases, a “short-hand reference” may be sufficient to preserve an issue, when “such short-hand refer- ences [are] used in a way and context that the other parties and the court would understand from that single reference the essential contours of the full argument.” State v. K. J. B., 362 Or 777, 790, 416 P3d 291 (2018) (internal quotation marks and citations omitted). In other instances, preserva- tion may require a deeper explanation of the law with sup- porting argument. Preemptive objections can be a useful mechanism to obtain rulings on the legality of anticipated evidence, argument, or other trial events for which an after-the-fact objection may prove ineffective at curing prejudice. In that way, a preemptive objection operates akin to a motion in limine, which we have indicated can, in some circumstances, be wise trial practice: “The reasons for seeking pre-trial rulings are, among others, to obtain guidance on how to conduct voir dire and opening statements and, more importantly, to prevent the jury from hearing a trial scenario [that would lead to the admission of unduly prejudicial evidence] *  *  *. If counsel must wait to make an objection and receive a ruling in front of the jury, the client could be prejudiced even though 328 State v. Skotland the ruling was in the client’s favor. With famous legal rhet- oric, Justice Cardozo addressed this problem in Shepard v. United States, 290 US 96, 104, 54 S Ct 22, 78 L Ed 196 (1933), when he referred to the procedure of a judge telling a jury it may accept part of a statement but must reject other portions of it: ‘The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, not for psychoanalysts, that our rules of evidence are framed.’  ” State v. Foster, 296 Or 174, 183, 674 P2d 587 (1983). It also is possible that preemptive objections can, in the appropriate circumstance, preserve an issue for appeal. In State v. Olmstead, 310 Or 455, 461, 800 P2d 277 (1990), we said that, “[w]hen the trial court excludes an entire class of evidence by declaring, in advance, that it is inadmissible as a matter of law, the ruling renders a further offer futile.” Reasoning from Olmstead, consider the example of a party raising a preemptive objection about an anticipated line of closing argument, but the trial court denies that objection and suggests that such an argument would be permitted, because it disagrees with the moving party about the appli- cable legal requirements. If the disputed line of argument then actually occurs in closing argument, it could be appro- priate for an appellate court to disregard the lack of any con- temporaneous objection, given the nature of the trial court’s response to the preemptive objection. In that instance, we do not foreclose the possibility that an appellate court, weigh- ing the practical nature of preservation, might conclude that a contemporaneous objection would have been unnecessary to preserve the issue. However, as we explain, the preemptive objection in this case did not serve the practical interests of preserva- tion with respect to the arguments raised on appeal. When defendant first made his preemptive objection, the trial court thought that it was ruling in defendant’s favor. The court added that it understood the relevant legal principle relating to impermissible burden-shifting but would allow the prosecutor to make at least some form of comment on defendant’s testimony. Defendant did not dispute that qual- ification. In fact, he expressly agreed that the qualification was correct. Cite as 372 Or 319 (2024) 329 The trial court then invited defendant to give a specific example of a potential problematic argument. Defendant did not do so. After that, the trial court gave the prosecutor detailed directions about what arguments could and could not be made. Defendant, again, did not tell the court that he disagreed. To the extent defendant’s arguments on appeal can be construed to argue that the trial court erred in lim- iting the scope of closing argument, an objection would have needed to occur at this point to render that argument pre- served. But no such objection was made. Finally, when the prosecutor actually addressed defendant’s testimony during the closing argument, defen- dant again did not object. At that time, the question was no longer abstract; the prosecutor’s actual statements were now available, and defendant—as shown by his appeal— thought that they were objectionable. To the extent defen- dant’s arguments on appeal can be construed to claim that the prosecutor had exceeded the scope of the trial court’s earlier ruling, defendant could have, and should have, raised that issue and alerted the trial court. He did not. Sometimes, the winds of preservation can be gauged by looking to the weathervane of trial court surprise: Would the trial court be taken aback to find itself reversed on this issue, for this reason? Here, the answer is yes. That result can be seen from defendant’s interme- diate appeal to the Court of Appeals. As explained earlier, that court reasoned that defendant’s preliminary objection “regarding burden shifting” had preserved an aspect of his later appellate argument that the trial court’s “ruling at the outset” (in response to defendant’s preemptive objection) had not been “properly tailor[ed].” Skotland, 326 Or App at 475. Yet the record shows that the trial court thought that it had ruled in defendant’s favor—that is, that it had “tailored” the prosecutor’s upcoming closing argument in accord with defendant’s request. From the trial court’s perspective, once the prosecutor’s closing argument then proceeded without objection from defendant, the Court of Appeals’ subsequent reversal would have come out of the blue; objectively, the 330 State v. Skotland trial court had been given no reason to think that its ruling had been controversial, contested, or exceeded. In the absence of any objection from defendant to the trial court’s ruling on his pre-closing argument preemp- tive objection, or any subsequent objection by defendant to the actual statements made in the prosecutor’s closing argu- ment that those statements either exceeded the scope of the ruling, or exposed a flaw in that ruling, we cannot conclude that the issue here is preserved. Accordingly, the Court of Appeals should not have reached the merits of the burden- shifting issue that defendant raised on appeal. We therefore vacate the decision of the Court of Appeals. That conclusion does not fully resolve this case, how- ever. Defendant had alternatively argued on appeal that, even if unpreserved, the “burden-shifting” issue qualified for plain error review under ORAP 5.45(1). See, e.g., State v. Vanornum, 354 Or 614, 629-31, 317 P3d 889 (2013) (dis- cussing requirements for plain error review). If the Court of Appeals were to conclude that defendant was correct about plain error review—a matter as to which we offer no opin- ion—then that court might reaffirm its decision on the mer- its. Beyond that, even if the Court of Appeals cannot reach the “burden shifting” assignments of error as plain error, the court would need to address defendant’s remaining assign- ment of error. We therefore remand to permit the Court of Appeals to address those issues in the first instance. The decision of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for further proceedings.

082d73a5e460fb8c3ae9ecb890d004c8efeb715bc13d2ed6123611de9c60f797

2024-05-16T00:00:00Z

aa2b755a-dca1-486e-95d2-62493240d861

State v. Satter

S069880

oregon

Oregon Supreme Court

No. 14 May 9, 2024 273 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. GENE RAYMOND SATTER, Petitioner on Review. (CC 09P50867; 20CR42984; 20CR45176) (CA A175001 (Control); A175002; A175003) (SC S069880) On review from the Court of Appeals.* Argued and submitted May 16, 2023. Nora E. Coon, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Deputy Defender. Joanna L. Jenkins, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, James, and Masih, Justices, and Nakamoto, Senior Judge, Justice pro tempore.** FLYNN, C.J. The order of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. ______________ *  On review of Court of Appeals Order Denying Reconsideration, Erin C. Lagesen, Chief Judge (Sept 7, 2022), of Order of Dismissal, Theresa M. Kidd, Appellate Commissioner (July 8, 2022). Appeal from Polk County Circuit Court, Diane M. Morse, Judge. **  Bushong, J., did not participate in the consideration or decision of this case. Baldwin, Senior Judge, Justice pro tempore, participated in oral argument but did not participate in the consideration or decision of this case. 274 State v. Satter Cite as 372 Or 273 (2024) 275 FLYNN, C.J. After a jury found defendant guilty of driving under the influence of intoxicants, he fled the state. His flight delayed by more than ten years the trial court’s ability to impose a sentence and enter a judgment of conviction, which defendant then asked the Court of Appeals to reverse. The case comes to us because the Court of Appeals dismissed defendant’s appeal based on concerns that the state would suffer delay-based prejudice in any retrial. The court relied on its “former fugitive doctrine,” which presumes that an appellate court has inherent authority to dismiss a criminal defendant’s direct appeal if the defendant formerly was a fugitive from justice and the flight “significantly interfered with the appellate process.” See Sills v. State of Oregon, 370 Or 240, 244, 518 P3d 582 (2022) (explaining but not adopting doctrine). Although this court has long held that appellate courts possess the inherent authority to dismiss an appeal when the criminal defendant is a current fugitive, we have not endorsed the “former fugitive doctrine,” and we decline the state’s request to do so in this context. We share the Court of Appeals’ concerns about the consequences of a defendant’s flight from justice in the event of a retrial and the disregard that the flight shows for the authority of Oregon courts. But because defendant’s flight ended before his case moved to an appellate court, and the delay has not interfered with the appellate court’s ability to address the merits of the appeal, we conclude that defen- dant’s former fugitive status lacks the kind of connection to the appellate process that justifies an appellate court dis- missing his direct appeal. Instead, concerns about potential prejudice that would arise in the trial court in relation to a retrial are most appropriately left for the trial court to address on any remand, should the Court of Appeals deter- mine that a reversible error had occurred. I.  BACKGROUND The facts relevant to our review are undisputed. A jury found defendant guilty of driving under the influence of intoxicants in 2009, and he failed to appear for his sen- tencing. He later sent a letter to the trial court announcing 276 State v. Satter that he had left Oregon and did not intend to return unless the court dismissed his conviction. However, defendant was eventually arrested in Oregon in 2020, permitting the court finally to impose sentence and enter the judgment for defen- dant’s 2009 conviction. Defendant appealed from that judgment, assign- ing error to the trial court’s failure to caution the jury that a defendant’s decision not to testify cannot be considered evidence of guilt. In response, the state asked the Court of Appeals to dismiss defendant’s appeal under the former fugi- tive doctrine. Emphasizing that defendant had demanded a new trial more than a decade after his conviction, the state argued that the “passage of time has undoubtedly preju- diced the state by making it difficult if not impossible to locate witnesses and present evidence” and that “[d]efendant should not be allowed to benefit from his choice to flout the authority of the court by absconding and absenting himself from the jurisdiction for over ten-and-a-half years.” The Appellate Commissioner agreed and dismissed defendant’s appeal. Relying on Court of Appeals’ precedent, the Commissioner reasoned that the court has “inherent judicial authority” to dismiss a former fugitive’s appeal when “the defendant’s former fugitive status significantly interfered with the appellate process.” The Commissioner concluded that dismissal of defendant’s appeal was war- ranted because “(1) there ha[d] been a significant passage of time, caused by defendant, since the incident producing the challenged judgment of conviction; (2) that passage of time makes it difficult for the state to locate key witnesses; and (3) even assuming that those witnesses could be located, their memories of the events surrounding the crime at issue would have likely diminished.” Defendant unsuccessfully sought reconsideration and then petitioned for review in this court, which we allowed. II.  DISCUSSION The Court of Appeals has adopted two related doc- trines under which it will dismiss a direct appeal to address a criminal defendant’s flight from justice. The first is the “fugitive dismissal doctrine,” which this court embraced Cite as 372 Or 273 (2024) 277 nearly a century ago, announcing that “it was ‘unqualifiedly committed’ to the rule that, when ‘a convicted criminal has fled from the jurisdiction of the court, it is within the power of that court to refuse to hear his appeal.’  ” Sills, 370 Or at 247 (quoting State v. Broom, 121 Or 202, 210, 253 P 1044 (1927)); see also State v. Moss, 352 Or 46, 50-54, 279 P3d 200 (2012) (describing history of the fugitive dismissal doc- trine). The second is the “former fugitive doctrine,” on which the Court of Appeals relied to justify dismissing defendant’s appeal. We have described that doctrine as a common-law principle “under which an appellate court will dismiss the direct appeal of a defendant who is no longer a fugitive if the former fugitive status significantly interfered with the appellate process.” Sills, 370 Or at 244 (internal quotation marks omitted). This court has yet to decide whether to embrace that common-law doctrine for Oregon appellate courts. See id. at 245-46 (declining to address “[w]hether to adopt the former fugitive doctrine”). But we limited the possible applications of the doctrine in Sills. That case involved a statutory claim for post-conviction relief filed by a petitioner who had been a fugitive from justice during the underlying criminal trial, resulting in delay that, the state contended, would prejudice it in any retrial. In that context, we held that the state’s concerns about delay-based prejudice on retrial did not jus- tify dismissing the petitioner’s claim for relief, because the identified prejudice lacked “the kind of connection to the proceedings that would justify the reviewing court refusing to carry out a process to which the former fugitive is statuto- rily entitled.” Id. at 250 (internal quotation marks omitted). In reaching that conclusion, however, we noted dif- ferences between a claim for post-conviction relief and a direct appeal, including that the post-conviction relief stat- utory process contemplates delay. Id. at 252-53; see also id. at 254 (emphasizing that the post-conviction court could order a retrial only if the petitioner established “such a sub- stantial denial of constitutional rights that his conviction is rendered void” (internal quotation marks omitted)). And we expressly did not consider whether a defendant’s former fugitive status could ever justify dismissing a direct appeal 278 State v. Satter in order to prevent prejudice in any retrial. Id. at 245-46. That question is now squarely presented by the parties’ arguments in this case. According to the state, appellate courts have inher- ent authority to dismiss an appeal under the former fugitive doctrine to ensure “the dignity, integrity, and efficient func- tioning of the appellate process,” a proposition for which it relies on the United States Supreme Court’s decision Ortega- Rodriguez v. U.S., 507 US 234, 113 S Ct 1199, 122 L Ed 2d 581 (1993), and its progeny. In particular, the state cites cases from other jurisdictions that have “relied on the former fugi- tive doctrine to dismiss appeals where a lengthy flight has so delayed the appeal that the state would be prejudiced in the event [of] a retrial.” See, e.g., U.S. v. Sudthisa-Ard, 17 F3d 1205, 1206 (9th Cir 1994). And the state asserts that dis- missal of defendant’s appeal was similarly justified based on “general delay-based prejudice”—that the “passage of time has undoubtedly prejudiced the state by making it difficult if not impossible to locate witnesses and present evidence.” The state in this court also raises new and more specific reasons that, it argues, would cause prejudice in the event of a retrial. According to the state, one of the officers who testified in the original trial died in 2012, the other officer no longer works in law enforcement, and the state has been unable to locate the video from the traffic stop or the police reports associated with defendant’s case. The state also now argues that it is unlikely “that defendant will appear for retrial,” which the state contends raises concerns that the trial court would be unable to enter an enforceable judgment if defendant’s case were sent back for a new trial. Defendant contends that the Court of Appeals erred in dismissing his appeal. According to defendant, although an appellate court may have inherent authority to take cer- tain actions necessary to perform its judicial function, that authority does not extend to dismissing a direct appeal in order to address the appellant’s flight from the jurisdiction of the trial court. Alternatively, defendant argues, even if this court agrees that appellate courts have some authority to dismiss an appeal because of an appellant’s former fugi- tive status, we should conclude that the Court of Appeals did Cite as 372 Or 273 (2024) 279 not properly exercise that authority when it dismissed defen- dant’s appeal to address prejudice that the state claimed would arise on remand. According to defendant, if former fugitive status is ever a basis to deny a new trial to a defen- dant whose original trial included reversible error, then that decision should be made by the trial court on remand, follow- ing a hearing at which the state would be required to prove that the defendant’s former fugitive status will cause actual prejudice to a retrial. See, e.g., State v. Baughman, 361 Or 386, 410-11, 393 P3d 1132 (2017), abrogated in part on other grounds by State v. Jackson, 368 Or 705, 498 P3d 788 (2021) (describing a similar process of reversal and remand for a post-remand hearing at which the trial court would deter- mine whether a new trial was “necessary or appropriate”). Given the parties’ framing of the dispute, we assume without deciding that the Court of Appeals has inherent authority to dismiss a defendant’s appeal when the defendant’s former fugitive status “significantly inter- fered with the appellate process.”1 Sills, 370 Or at 244; see also id. at 245-46 (declining to decide whether to adopt that formulation of the former fugitive doctrine). And we accept the state’s premise that prejudice resulting from a criminal defendant’s former flight from justice sometimes will jus- tify denying the defendant a new trial. As we will explain, however, when the fugitive status is confined to the trial court and the identified prejudice will arise only on remand, the defendant’s flight lacks “  ‘the kind of connection’  ” to the appellate process that would justify an appellate court “refusing to carry out a process to which the former fugitive is statutorily entitled.” Id. at 250 (quoting Ortega-Rodriguez, 507 US at 251). We are persuaded that defendant’s alternative argu- ment describes the proper exercise of an appellate court’s authority in such cases: When confronted with concerns that 1  In defendant’s briefing to this court, he also argued that any inherent authority that an appellate court possesses to dismiss a defendant’s appeal under the former fugitive doctrine has been constrained by the Oregon Rules of Appellate Procedure (ORAPs) and by the defendant’s statutory right to an appeal in the Court of Appeals. We understand defendant to have abandoned those argu- ments at oral argument. And our determination that the Court of Appeals did not properly exercise its inherent authority in this case makes it unnecessary to determine whether that authority is further limited by rule or statute. 280 State v. Satter a defendant’s former flight from the jurisdiction of the trial court would cause actual prejudice in any retrial, or that the defendant might again fail to appear for any retrial, the Court of Appeals should nevertheless proceed to the merits of the appeal, leaving those concerns to be addressed by the trial court on any remand, as the trial court will be in a superior position to resolve factual disputes and tailor an appropriate remedy—including by determining that actual prejudice to the state justifies denying the defendant a new trial and reinstating the original judgment. Accordingly, we reverse the order of the Court of Appeals and remand for consideration of the merits of defendant’s appeal. This court recently discussed the origins and justi- fications of the former fugitive doctrine in Sills. We observed that the former fugitive doctrine is sometimes described as a “corollary” to the fugitive dismissal doctrine, which to reit- erate, allows appellate courts to refuse to hear the appeal of a defendant who is currently a fugitive from justice. 370 Or at 244-45. We also explained that, in extending the fugitive dismissal doctrine to defendants whose flight and recapture both occurred before they initiated their appeal, the Court of Appeals had relied on dicta in the Supreme Court’s Ortega- Rodriguez decision. Id. at 248. This court likewise relied on Ortega-Rodriguez on review in Sills, but for a different pur- pose: to explain our conclusion that the state’s generic claim of delay-based prejudice lacked “  ‘the kind of connection’  ” to the post-conviction relief “proceedings that would justify the reviewing court refusing to carry out a process to which the former fugitive is statutorily entitled.” Id. at 250 (quoting Ortega-Rodriguez, 507 US at 251). Accordingly, we describe Ortega-Rodriguez in detail, and then turn back to Sills. In Ortega-Rodriguez, the Supreme Court held that the federal circuit court erred in applying a blanket rule of dismissal to all appeals filed by former fugitives—those who had fled while their case was pending in the trial court but had been recaptured before sentencing and appeal. 507 US 234. The Court began its analysis by discussing the various rationales that it had previously offered to justify dismissals in cases pursued by defendants who were current fugitives while their cases were pending in an appellate court. Those Cite as 372 Or 273 (2024) 281 rationales included the concern that any judgment that the Court issued would be unenforceable against the defendant; the theory that flight “disentitles” the defendant to “call upon the resources of the Court” such that their flight is con- strued as “tantamount to waiver or abandonment” of their appeal; and the belief that dismissal “serves an important deterrent function and advances an interest in efficient, dig- nified appellate practice.” Id. at 239-42 (internal quotation marks omitted). The Court then explained that those rationales “all assume some connection between a defendant’s fugi- tive status and the appellate process, sufficient to make an appellate sanction a reasonable response.” Id. at 244. And the Court explained that those “justifications are neces- sarily attenuated when *  *  * a defendant’s fugitive status at no time coincides with [their] appeal.” Id. For example, the Court reasoned that a “defendant returned to custody before [they] invoke[  ] the appellate process presents no risk” that the judgment of the reviewing court will be unenforceable, and a flight that ends before an appeal is filed is unlikely to cause delay or otherwise interfere with the appellate pro- cess. Id. at 244. In addition, the Court observed that, to the extent dismissal is justified as a sanction on the theory that the defendant’s “flight operates as an affront to the dignity of the court’s proceedings,” it is the trial court that “has the authority to defend its own dignity, by sanctioning an act of defiance that occurred solely within its domain.” Id. at 246. Finally, to the extent that dismissal is used as a sanc- tion to deter or punish escape, the court emphasized that those goals are better addressed by the trial court, which can deter flight “with the threat of a wide range of penalties available to” it. Id. at 247. Ultimately, the Court concluded that, “[a]bsent some connection between a defendant’s fugitive status and [their] appeal, as provided when a defendant is at large during the ongoing appellate process, the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply.” Id. at 249 (internal quotation marks and cita- tion omitted). And without “the kind of connection to the appellate process that would justify an appellate sanction of 282 State v. Satter dismissal,” the Court concluded, “fugitivity while a case is pending before a [trial] court *  *  * is best sanctioned by the [trial] court itself.” Id. at 251. The Court in dicta, however, allowed for “the possi- bility that some actions by a defendant, though they occur while [their] case is before the [trial] court, might have an impact on the appellate process sufficient to warrant an appellate sanction.” Id. at 249. The Court offered as an exam- ple the possibility that “a long escape, even if ended before sentencing and appeal, may so delay the onset of appellate proceedings that the Government would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal,” which the Court suggested “might, in some instances, make dismissal an appropriate response.” Id. And the Court declined to “hold that a court of appeals is entirely without authority to dismiss an appeal because of fugitive status predating the appeal.” Id. As we explained in Sills, that dicta from Ortega- Rodriguez was the authority to which the Court of Appeals pointed in adopting its “former fugitive doctrine.” 370 Or at 248. But it was the reasoning and ultimate holding of Ortega-Rodriguez that this court relied on in Sills to explain our conclusion that the lower courts were not justified in applying the former fugitive doctrine to dismiss the peti- tioner’s claim for post-conviction relief. The petitioner in Sills, like defendant here, fled the state immediately after his conviction and had remained in fugitive status for a decade before being returned to Oregon for sentencing. Id. at 242-43. As mentioned above, when that petitioner later pursued a collateral claim for post- conviction relief, the post-conviction court invoked the for- mer fugitive doctrine to dismiss that claim, and the Court of Appeals affirmed. Id. at 243-44. This court accepted review and reversed. Id. at 254. In doing so, we agreed with the Court’s observation in Ortega-Rodriguez that the rationales underlying the fugitive dismissal doctrine “  ‘are necessarily attenuated when applied [by a reviewing court] to a case in which both flight and recapture occur while the case is pending before’ the criminal Cite as 372 Or 273 (2024) 283 trial court.” Id. at 247-48 (quoting Ortega-Rodriguez, 507 US at 244 (brackets in Sills)); see also id. at 249 (observing that the Court in Ortega-Rodriguez had held that “former fugitive status, alone, is insufficient to justify dismissing an appeal”). And we emphasized that nothing about the holding of Ortega- Rodriguez “support[s] extending the fugitive dismissal rule to cases filed by former fugitives.” Id. We assumed “that a petitioner’s former fugitive sta- tus might sometimes justify a post-conviction court refusing to carry out the statutorily prescribed post-conviction relief process,” but we emphasized an “important caution” from the Court in Ortega-Rodriguez: “[N]ot every delay during trial court proceedings has ‘the kind of connection to the appellate process that would justify an appellate sanction of dismissal.’  ” 370 Or at 246, 250 (quoting Ortega-Rodriguez, 507 US at 251). We agreed with that caution and rephrased it to address the post-conviction relief process, explaining that, “[w]hatever merit there may be to dismissing a former fugitive’s challenge to a conviction out of concern that the state would be prejudiced in any retrial,” the claimed preju- dice “must have ‘the kind of connection’ to the proceedings that would justify the reviewing court refusing to carry out a process to which the former fugitive is statutorily enti- tled.” Id. at 250 (quoting Ortega-Rodriguez, 507 US at 251). We allowed for the possibility—as had the Court in Ortega-Rodriguez—”that there could be circumstances under which a flight that predated the appeal ‘might have an impact on the appellate process sufficient to warrant an appellate sanction.’  ” Id. at 245-46, 249 (quoting Ortega- Rodriguez, 507 US at 249). But we explained that the preju- dice on which the state had relied in Sills consisted of obsta- cles to presenting witness testimony in any retrial due to fading memories after the passage of 13 years and aging of the child victims. Id. at 250. And we concluded that the identified prejudice lacked “  ‘the kind of connection’ to the post-conviction process that could justify dismissal without reaching the merits of a petition for post-conviction relief.” Id. Thus, although both Sills and Ortega-Rodriguez rec- ognized the possibility that there might be circumstances 284 State v. Satter under which a former fugitive’s flight during trial court proceedings has had an impact on the appellate court pro- ceedings sufficient to justify dismissal of the defendant’s appeal, neither court endorsed any particular circumstance under which a concluded period of flight would have suffi- cient impact on the appellate process to justify dismissal of the defendant’s appeal. Both opinions emphasized that the rationales that justify dismissal when the defendant is a current fugitive “are necessarily attenuated” when “both flight and recapture occur while the case is pending before” the trial court. 370 Or at 247-48; 507 US at 244. And Sills specifically concluded that general, “delay-based obstacles to the presentation of evidence in a new trial” did not justify invoking the former fugitive doctrine to dismiss the peti- tioner’s claim for post-conviction relief. 370 Or at 252. Nevertheless, the state emphasizes Sills’s acknowl- edgment of that possibility to argue that dismissal of a direct criminal appeal is warranted when the defendant’s former fugitive status affects the “dignity, integrity, and efficient functioning of the appellate process.” And the state contends that those interests are adversely affected in this case in ways that are distinguishable from Sills. First, the state argues that the nature of a direct appeal makes its general, delay-based claim of prejudice more significant than they were in Sills. The state empha- sizes that this court in Sills described delay-based prejudice as “a risk that is inherent” in post-conviction relief proceed- ings, id. at 252, and described other characteristics of post- conviction relief that, the state contends, might make the risk of retrial prejudice in those cases distinguishable from retrial prejudice in a direct appeal. See id. at 254 (emphasiz- ing “that, in this post-conviction case, retrial could be ordered only if petitioner establishes that his criminal trial involved such a substantial denial of constitutional rights that his conviction is rendered void, and only because the legislature has directed that post-conviction relief shall be granted by the court to such a petitioner” (internal quotation marks omitted)). According to the state, those differences between direct criminal appeals and the post-conviction relief process weigh in favor of an appellate court dismissing an appeal to Cite as 372 Or 273 (2024) 285 address general delay-based prejudice, especially when the state identifies actual prejudice from lost evidence. Second, the state contends that it has identified concerns beyond the general, delay-based obstacles that were the source of the claim of prejudice in Sills. It empha- sizes that—in this court—it has offered evidence that a key trial exhibit is missing. And it argues that defendant might again fail to appear if the original judgment is reversed. According to the state, “defendant is no longer in custody or under any form of supervision” and has “previously indi- cated” that “he had no intention of appearing in the case,” and thus is likely to prevent entry of an enforceable judg- ment of conviction if the case is remanded for a new trial. We are not persuaded that those differences between this case and Sills permit a different answer for defendant. We conclude that the Court of Appeals erred in dismissing defendant’s appeal, because—despite the factual and procedural differences between this case and Sills—the concerns on which the state relies here similarly lack “  ‘the kind of connection’  ” to appellate proceedings that justify the appellate court “refusing to carry out a process to which the former fugitive is statutorily entitled.” Sills, 370 Or at 250 (quoting Ortega-Rodriguez, 507 US at 251). Although Sills did not decide whether that stan- dard would govern dismissals of direct appeals, we are persuaded by the reasoning of Ortega-Rodriguez that, even assuming appellate courts have inherent authority to dis- miss a former fugitive’s direct criminal appeal, an appellate court errs in relying on that authority to dismiss the appeal when the defendant’s former fugitive status does not signifi- cantly interfere with the appellate process. And we conclude that neither the generic, delay-based prejudice on which the Court of Appeals based its dismissal, nor the state’s new assertion of actual prejudice and concerns that defendant might again flee, has the kind of impact on the appellate process that is required to justify dismissal.2 We reach that conclusion for three reasons. 2  Like the Court in Ortega-Rodriguez, “[w]e do not ignore the possibility that some actions by a defendant, though they occur while [their] case is before the [trial] court, might have an impact on the appellate process sufficient to warrant 286 State v. Satter First, even the specific prejudice that the state iden- tifies in this court would arise—if at all—only if the Court of Appeals reverses defendant’s conviction and only after the case is remanded to the trial court. In other words, the state’s assertion that it no longer has access to testimony and exhibits that it relied on in the original trial does not describe prejudice to the appellate proceedings, because defendant’s claim of instructional error will be decided on a trial court record that undisputedly is complete. As Ortega- Rodriguez emphasized in explaining why it was vacating the dismissal, there was no “indication in the record below” that the “petitioner’s former fugitivity was deemed to pres- ent an obstacle to orderly appellate review.” 507 US at 251. Accordingly, we are not persuaded that defendant’s former fugitive status affected the “dignity” or “integrity” of the appellate court or that the delay caused by his abscond was “sufficiently disruptive of the appellate process that dis- missal would be a reasonable response.” Id. Second, all of the state’s concerns about enforce- ability of the judgment are limited to enforceability in the trial court; defendant was returned to custody before invok- ing the jurisdiction of the Court of Appeals and served his sentence while this appeal proceeded. Thus, if the Court of Appeals affirms, the punishment for defendant’s conviction has already been enforced. More significantly, however, if the Court of Appeals reverses and remands, any new fail- ure to appear would be a flight from the jurisdiction of the trial court. Although we emphasize that any flight from jus- tice—whether a flight that concluded prior to the appeal or a potential flight if the case is remanded—evinces a lack of respect for judicial authority, that disrespect is aimed most directly at the trial court when the defendant fails to appear in that court. See Ortega-Rodriguez, 507 US at 246 an appellate sanction.” 507 US at 249; see also id. (opining that “a defendant’s misconduct at the [trial] court level might somehow make meaningful appeal impossible, or otherwise disrupt the appellate process so that an appellate sanc- tion is reasonably imposed” (internal quotation marks and citation omitted)). But we emphasize, as we did in Sills, that dismissal of a party’s case under the former fugitive doctrine requires “  ‘the kind of connection’ to the proceedings that would justify the reviewing court refusing to carry out a process to which the former fugitive is statutorily entitled.” Sills, 370 Or at 250 (quoting Ortega-Rodriguez, 507 US at 251). Cite as 372 Or 273 (2024) 287 (emphasizing that the “contemptuous disrespect manifested by [the defendant’s] flight was directed at the [trial court], before which his case was pending during the entirety of his fugitive period”).3 And third, the trial court is a superior forum to resolve and address both the state’s claim of prejudice in a retrial and any new failure to appear on remand. In this case, for example, the state asserts that it has been unable to locate the video or the police reports and that one of the tes- tifying officers has since died. It also argues that the other officer is no longer working as a police officer and likely has a diminished memory. Although defendant acknowledges that the state may be able to prove its factual claim of actual prejudice, he emphasizes that the determination whether evidence has disappeared or witness memories faded is “the stuff of an evidentiary hearing, which trial courts routinely undertake.” We agree. And conversely, appellate courts are ill equipped to undertake the factual inquiry necessary to determine the extent to which a period of flight will obstruct the state’s ability to present evidence in a retrial. Determining how to address actual prejudice to the state in a retrial is a task that is “the daily stuff of our trial courts.” See Baughman, 361 Or at 410 (explaining that “fairly assessing how to ensure a fair trial for all parties” is “the daily stuff of our trial courts”). And only the trial court can address that prejudice with an appropriately calibrated response. See Ortega-Rodriguez, 507 US at 247 (“While an appellate court has access only to the blunderbuss of dis- missal, the [trial] court can tailor a more finely calibrated response.”); see also Sills, 370 Or at 253 (explaining that the trial court can use the rules of evidence to “partly amelio- rate the kind of prejudice that parties can sometimes suffer in a retrial years after the original trial”). Addressing prej- udice with an appropriately calibrated response is critical because, as we observed in Sills, “if we assume that there is merit” to defendant’s appeal, then dismissing that appeal “because of his former fugitive status ‘is tantamount to an 3  We emphasize that defendant’s rejection of the authority of the trial court in this case demonstrates the kind of disregard for the rule of law that ultimately harms the entire justice system. We in no way condone that conduct in concluding that the Court of Appeals is not the appropriate body to address it. 288 State v. Satter additional punishment *  *  * for the same offense of flight’  ” that may be punishable as a separate crime. 370 Or at 254 (quoting Ortega-Rodriguez, 507 US at 248); see also ORS 162.195 (defining crime of second-degree failure to appear); ORS 162.155 (defining crime of second-degree escape). The trial court also is uniquely equipped to address any new failure of defendant to appear on remand, just as it was equipped to address the original failure to appear, through its authority to hold a defendant in contempt or otherwise impose punitive sanctions. See ORS 33.105 (describing the contempt sanctions authorized by statute, including fines, confinement for up to six months, and proba- tion or community service); see also Ortega-Rodriguez, 507 US at 247 (“While a case is pending before the [trial] court, flight can be deterred with the threat of a wide range of pen- alties available to the [trial] court judge.”). Thus, we conclude that neither concerns about the prejudice that the state claims will arise in a retrial nor a generalized interest in addressing defendant’s flouting of judicial authority justified the Court of Appeals dismissing defendant’s appeal to address a period of flight that began and ended while the case was pending in the trial court. Instead, we emphasize, as we have emphasized in other con- texts, the value of leaving to the trial court on any remand those questions that a trial court is in the “best position to assess.” See Baughman, 361 Or at 410-11 (concluding, in the context of evidentiary error, that the trial court on remand should determine “whether a new trial is required or appropriate”). In this context as well, it is the trial court on remand that should determine whether a defendant’s for- mer fugitive status caused prejudice that justifies denying the defendant a new trial. Our opinion in Baughman, and an earlier opin- ion in State v. Cartwright, 336 Or 408, 85 P3d 305 (2004), illustrate how an appellate court can instruct a trial court that additional remand proceedings are necessary to deter- mine whether the defendant is entitled to a new trial. In Baughman, we concluded that the trial court had erred in analyzing whether evidence of the defendant’s uncharged acts could be admitted, but we specified that the trial court Cite as 372 Or 273 (2024) 289 on remand should conduct additional proceedings before deciding whether a new trial was “appropriate.” 361 Or at 406, 410. Accordingly, we reversed the judgment of convic- tion and “remanded to the circuit court for further proceed- ings,” consistent with the opinion. Id. at 411. Baughman modeled that remand approach on Cartwright, in which this court vacated the defendant’s judgment of conviction, because we concluded that the trial court had committed reversible error by failing to require the state to produce evidence, but we remanded with instructions that the trial court address the state’s contention that a new trial was unnecessary. 336 Or at 420-21. The opinion specifies that the trial court on remand would afford an opportunity for a hearing on whether there was any chance the evidence had affected the verdict and then either order a new trial or make findings to support reinstating the original judgment of conviction. Id. at 421. III.  CONCLUSION In sum, we reverse the Court of Appeals’ order dis- missing defendant’s appeal, because we conclude that the delay caused by defendant’s former fugitive status lacked the required connection to the appellate process that would justify dismissing the appeal. Although we accept the state’s premise that a defendant’s former fugitive status may cause such significant prejudice to the state that denying the defendant a new trial could be justified, we conclude that the trial court on any remand would be the appropriate court to make that determination. We emphasize, however, that, if the Court of Appeals determines that the trial court com- mitted reversible error, nothing in this opinion precludes the Court of Appeals from remanding with instructions for the trial court to determine whether actual prejudice to the state in a retrial justifies denying the defendant a new trial and reinstating the judgment of conviction. The order of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

4e9d1f8c3b062a6a2c8fb8b3261eadb17482981696862dd5702c0ce900e584ea

2024-05-09T00:00:00Z

9399742d-df0b-4588-b49f-d9aab95f183c

Dale v. Kulongoski

321 Or. 108, 894 P.2d 462

oregon

Oregon Supreme Court

894 P.2d 462 (1995) 321 Or. 108 Alice DALE and Robert Crumpton, Petitioners, v. Theodore R. KULONGOSKI, Respondent. SC S41780. Supreme Court of Oregon, In Banc. Argued and Submitted December 13, 1994. Decided May 18, 1995. James S. Coon, of Royce, Swanson, Thomas & Coon, Portland argued the cause for petitioners on review. With him on the petition was Paul B. Gamson, of Smith, Gamson, Diamond & Olney, Portland. 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. FADELEY, Justice. In this ballot title review case, petitioners challenge a ballot title proposed for use with an initiative measure. The text of the measure is printed as an appendix hereto. The standards to be applied by this court to the present challenge are spelled out by statutes that in summary provide: The ballot title proposed[1] by the Attorney General for use with the measure in the present case provides: There is no controversy or challenge in this case about the proposed Caption. We therefore certify that Caption. Petitioners contend that the proposed Question does not plainly state the chief purpose of the measure as required by ORS 250.035(1)(b). They argue: "* * * * * "* * * This chief purpose and major effect should be stated * * *, not concealed behind language which misstates existing law." It is clear that the measure prohibits fair share agreements,[2] which are agreements mandating that members of a bargaining unit who are not union members pay a pro rata share of the costs for union representation services concerning employment terms and conditions for everyone within that employment unit.[3] Petitioners argue that the statement in the measure at subparagraph (a) of section (10) that "[i]t is not the primary purpose of this provision that public employees receive union representation at no cost" does not overcome the fact that the measure, if adopted, would entitle public employees who do not join a union to become "free *464 riders"[4] by securing bargaining and representation services without cost. The Attorney General in response relies on the ballot title certified in Crumpton, which he essentially resurrected for use in this measure. However, there are substantial and significant differences between this measure and that addressed in Crumpton. Petitioners here contend that the proposed Question and Summary imply that existing law "requires" union membership and payment of union dues by all public employees against their will. Petitioners' argument in the present case was not addressed or decided in Crumpton. In Ransom v. Roberts, 309 Or. 654, 663 n. 12, 791 P.2d 489 (1990), this court said that, in determining whether a ballot title question states the "chief purpose" of a measure, "`[c]hief purpose' suggests the most significant aim or end which a measure is designed to bring about. The `chief purpose' requirement[ ] suggests that it should be determined in a manner analogous to legislative determination. The proposed measure should be reviewed for its unambiguous language and the context in which it was drafted and for statements made by its sponsors. Context would include the legal context, as well as the more particular circumstances under which a measure is drafted. Glerum v. Roberts, 308 Or 22, 28, 774 P2d 1093 (1989)." Thus, this court reviews the words in a proposed question to determine, among other things, whether they distort the legal context of the measure and thereby misstate the most significant aim or end of the measure. Two cases illustrate this principle. In Christenson v. Paulus, 297 Or. 78, 80, 682 P.2d 266 (1984), this court reviewed a ballot title for an initiative relating to land use and held that the proposed question was statutorily insufficient. That question asked, in part, "[s]hall * * * local comprehensive plans and zoning remain?" The court observed that, if the measure were adopted, what would "remain" was the existing legal requirement to plan and zone, not the plans and zoning already in place. In Fred Meyer, Inc. v. Roberts, 308 Or. 169, 174, 777 P.2d 406 (1989), this court reviewed a ballot title question that asked whether the constitution should "protect" a right of gathering initiative petition signatures in shopping centers. This court found that question to be misleading, because it erroneously implied that the law already recognized the described "right" and that the measure simply asked voters to confirm the existing state of the law. In fact, the existing state of the law was in dispute, and the measure was designed to create, not "protect," a constitutional right to petition in shopping malls. This court modified the question by replacing the word "protect" with "permit" in order to state correctly the measure's chief purpose. Id. at 175, 777 P.2d 406. The court also modified the language of the caption and summary to eliminate the same misleading inference. The manner in which the phrase, "ban requiring," is used in the proposed Question presents difficulties that support petitioners' contention that the proposed ballot title misstates the existing law. The phrase "ban requiring" can be read to imply that compulsory union membership presently is required by law and that the measure bans that requirement. Use of the word "ban," without more, would be sufficient to signify that what the proposed measure would do is prevent compulsory membership. Adding the verb "requiring" creates the mischief. "Ban requiring" is not accurate unless there is a law "requiring." With respect to compulsory union membership, there is none. See Whitty v. Roberts, 309 Or. 448, 452, 788 P.2d 452 (1990) (rejecting argument that word "ban" must be used in ballot title where not all environmentally unsound packaging was "banned" by the measure, and thus use of "banned" would be inaccurate). A ballot title should not misstate existing law, even by implication, and thereby create a spurious argument to support the measure's passage. Fred Meyer, Inc., 308 Or. at *465 174-75, 777 P.2d 406; Christenson, 297 Or at 80, 682 P.2d 266. Joining the word "requiring" with the word "ban"while acceptable with respect to one of the subjects mentioned in the Question, viz., paying a fair share of labor representation costsmay, when related to the subject of union memberships, mislead the voter into believing that the law now requires union membership for all public employees. That is not accurate.[5] Accordingly, we modify the proposed Question as follows: In our view, the Summary of the contested ballot measure fails to comply with ORS 250.035(1)(c), because it fails to state the measure's major effects. It does not disclose that employees who are not members of the union, but who are members of the bargaining unit, will receive representation without cost. The parties agree that that effect is an important change from the present law. The phrase "ban requiring," which is used once again in the Summary, also should be limited in its scope for the reasons stated above. Accordingly, we modify the Summary by including this revised sentence: The measure also prohibits payroll deduction of a member's dues, as noted above in the Question. We modify the Summary to state that effect. The measure at subparagraph (f) of section (10) also declares that: "All expenditures not directly related to * * * bargaining or labor representation shall be considered political expenditures." The measure also would give each union member a right to prevent collection of funds for such expenditures. The measure also states that members of a union have the power to direct that an expenditure be made, in the name of each member, to a recipient chosen by that member. The Summary should state those major effects of the measure. As this court has stated: Accord, Deras v. Roberts, 309 Or. 410, 419, 788 P.2d 987 (1990). We can comply with that rule by using the words of the measure itself to describe those major effects of the measure. Applying that rule, and incorporating the other modifications noted above, we certify the following modified ballot title: SUMMARY: Amends state constitution. Bans requiring nonunion public employees to share union representation costs; unions must represent such employees without charge. Prohibits compelling union membership and dues payment. Bans union security clauses. Bans payroll deduction of dues. Memberships expire each year, may be canceled at any time, or renewed annually. Union each year must tell members of all proposed uses of dues other than for bargaining or labor representation. Members may opt not to pay or *466 may direct a different expenditure of such portion of dues. Ballot title certified as modified. This decision takes effect as provided in ORAP 11.30(9). WHEREAS public employees are as diverse in their political opinions as the rest of society, and should not be required to financially support political candidates, parties or agendas inconsistent with their personal views; to protect and preserve the rights of public employees to free political expression; Be in Enacted by the People of the State of Oregon: Paragraph 1. Notwithstanding any existing State or Federal laws, the Oregon Constitution is amended by creating new sections to be added and made a part of Article XV; the new sections, Sections 10, 11, and 12 shall read: Section 10. (a) No public employee or applicant for a position with the state, local government, or any other taxing district or political subdivision of the state, shall be required or unduly pressured to join or otherwise be connected to, or pay dues, or contribute fair share, or pay fees or assessments to a public employee union, association, or similar organization for any reason. It is not the primary purpose of this provision that public employees receive union representation at no cost, but that public employees have the free choice to have limited association with labor unions or associations, or not be associated with such organizations at all. (b) Public employees shall not be subject to any form of union security clause, or clauses that have the same or similar effect as union security clauses or fair share agreements. (c) No public employee or applicant for a public sector job shall be discriminated against in any way because of affiliation or non-affiliation with a union. (d) Membership in public employee unions, associations, or similar organizations shall automatically expire annually, but may be renewed by the employee each year. Public employees may sever such memberships at will. (e) So as to maintain and preserve the voluntary nature of union or association membership, dues and any other moneys collected from public employees by their unions, associations, or similar organizations may only be collected directly from employees, not garnished or otherwise deducted from their paychecks, and not collected by means of an automatic account withdrawal agreement or similar mechanism. (f) All public employee unions, associations, or similar organizations shall at the end of each calendar year provide each public employee from which dues, fees or assessments were collected during that year, a detailed, comprehensive, easily read report clearly stating each and all expenditures of dues, fees, or assessments, including in-kind contributions, for political purposes during that year. All expenditures not directly related to collective bargaining or labor representation shall be considered political expenditures. (g) Public employees who join public employee unions, associations, or similar organizations may (1) elect to not pay the portion of dues, fees, assessments, or similar payments, which would be used for political purposes, or (2) 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, association, or similar organization, which immediately shall carry out such instruction(s), making the contribution(s) in the name of the employee. Section 11. If any part or parts of Section 10 of this Article is held to be invalid when applied to public employees who are members of public employee unions, associations, or similar organizations at the time of implementation of this Act, the requirements and restrictions set forth in Section 10 shall continue in full force in regard to employees hired after implementation of this Act. *467 Section 12. SEVERABILITY. If any part of Sections 10 or 11 of this Article is held to be invalid, the remaining parts shall remain in full force and effect. GRABER, Justice, dissenting. I would certify the ballot title prepared by the Attorney General and, accordingly, dissent. The majority's ballot title may be "better" than the Attorney General's. The problem is that the Attorney General's ballot title complies substantially with the requirements of ORS 250.035. In other words, the statutorily required premise for modification of this ballot title is absent. This court is required to certify a title that complies substantially with ORS 250.035.[1] ORS 250.085(5). The measure provides in part that the Oregon Constitution be amended to include this wording: There presently is no provision in the Oregon Constitution on that topic. The Attorney General's Caption is: The Attorney General's Question asks, in part: The Attorney General's Summary states, in part: In my view, it takes the most strained of readings to say that the Attorney General's ballot title does not tell voters what the measure says and does. Therefore, I respectfully dissent. CARSON, C.J., joins in this dissent. [1] This opinion labels as "proposed" the title certified to the Secretary of State by the Attorney General to avoid confusion with the "certified title" that this court produces at the end of a ballot title challenge proceeding. [2] The measure uses the term "fair share." ORS 243.650(10) defines the term: "`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." [3] See Elvin v. OPEU, 313 Or. 165, 167, 832 P.2d 36 (1992) (under Public Employees Collective Bargaining Act, ORS 243.650 to 243.782, a union that is an exclusive representative of a bargaining unit "must represent all public employees fairly," including nonunion members). [4] The Supreme Court of the United States used that descriptive terminology in Abood v. Detroit Board of Education, 431 U.S. 209, 222, 262, 97 S. Ct. 1782, 1813, 52 L. Ed. 2d 261 (1977). [5] As noted, use of the phrase"ban requiring"is accurate as to fair-share or union representation costs because such costs presently must to be paid by nonmembers who receive the benefit of those expenditures. But no law requires anyone to join the union or pay union dues, per se, and that difference in statutory context requires a difference in phraseology. [1] No challenge is made in this case under ORS 250.039.

f4583b4204d041280d8bcacef34a735ea85a508a9204b0c39ea0dc3a5e517586

1995-05-18T00:00:00Z

d146fb3c-9929-403b-932c-3b1c0bd2fb4f

Tualatin v. City-County Ins. Serv. Trust

321 Or. 164, 894 P.2d 1158

oregon

Oregon Supreme Court

894 P.2d 1158 (1995) 321 Or. 164 CITY OF TUALATIN, Petitioner on Review, v. CITY-COUNTY INSURANCE SERVICES TRUST, Ted Lopuszynski, Trustee, Kent Taylor, Trustee, Daniel J. Ahern, Trustee, Laura Pryor, Trustee, Nels Hanson, Trustee, Larry Lehman, Trustee, Respondents on Review. DC 91D301739; CA A79184; SC S41660. Supreme Court of Oregon, In Banc. Argued and Submitted March 9, 1995. Decided May 25, 1995. Ridgway K. Foley, Jr. of Foley and Duncan, P.C., Portland, argued the cause for petitioner on review. With him on the petition were M. Elizabeth Duncan of Foley and Duncan, P.C., and Mark E. Pilliod, City Atty., City of Tualatin. James E. Mountain, Jr. of Harrang Long Gary Rudnick P.C., Salem, argued the cause and filed the response for respondent on review. FADELEY, Justice. The question in this case is whether an insurer is obligated to defend a local government officer named in a complaint filed with the Oregon Government Ethics Commission,[1] alleging that the officer violated an ethics statute. Disposition of that issue depends on the proper interpretation of the first sentence *1159 of ORS 30.287(1), which we quote later in this opinion. City-County Insurance Services Trust and its trustees (Defendants, hereafter defendant or defendant insurer) provided comprehensive liability insurance to plaintiff City of Tualatin. The parties dispute whether their insurance contract covers defense of the ethics complaint. The insurance contract promised: The statute sections cited comprise the Oregon Tort Claims Act (OTCA). The trial court determined that a complaint alleging an ethics violation was not a "tort claim or demand" under ORS 30.260(8) and granted defendant insurer's motion for summary judgment. The Court of Appeals affirmed on that basis. City of Tualatin v. City-County Ins. Services Trust, 129 Or. App. 198, 878 P.2d 1139 (1994). Because we conclude that defense of a complaint for an ethics violation does not fall within the parameters of the OTCA, we also affirm. The relevant facts in this case are undisputed. In April 1990, the Oregon Government Ethics Commission (commission) received a complaint against Mayor Stolze of Tualatin. The complaint alleged that the mayor had violated ORS 244.040 when he voted on a particular land use matter that was under consideration by the Tualatin City Council. The complaint alleged that, when the mayor voted, he had a financial interest,[2] because he was a general business competitor of complainant. The mayor tendered the defense of that complaint to the City of Tualatin (plaintiff). Subsequently, plaintiff tendered the defense to its insurer, City-County Insurance Services Trust, which declined to defend the mayor. Defendant insurer justified its refusal to provide coverage to plaintiff for the mayor's defense of the ethics complaint by arguing that the ethics complaint was not a "tort claim or demand" arising under the OTCA, ORS 30.260 to 30.300, and that no other coverage applied. The mayor obtained a defense elsewhere. The ethics complaint was dismissed without hearing. The mayor submitted the bill for his lawyer's fees to plaintiff city, and it requested reimbursement of those defense costs from defendant insurer. Defendant again refused. Plaintiff filed an action for the cost of defense against defendant insurer. The trial court granted defendant's motion for summary judgment. On appeal, the Court of Appeals held that an ethics complaint did not come within the OTCA, because it did not constitute a claim of "tort" as defined in ORS 30.260(8). That court held that, to qualify as a tort claim, the claim must assert a "civil right of action for damages or a protective remedy for specific persons claiming injury due to a violation of [law]," and that state ethics statutes do not provide such a right of action. 129 Or.App. at 202, 878 P.2d 1139. On review, plaintiff first contends that the Court of Appeals erred in holding that ORS 30.287(1) only covers the defense of tort actions. Plaintiff relies on the words of ORS 30.287(1), which provide: "If any civil action, suit or proceeding is brought against any officer, employee or agent of a local public body other than the state which on its face falls within the provisions of ORS 30.285(1), or which the officer, employee or agent asserts to be based in fact upon an alleged act or omission in the performance of duty, the officer, employee or agent may file a written request for counsel with the governing body of the public body. The governing body shall thereupon engage counsel to appear and defend the officer, employee or agent unless after investigation it is determined that the claim or demand does not arise out of an alleged act or omission occurring in the performance of duty, or *1160 that the act or omission complained of amounted to malfeasance in office or willful or wanton neglect of duty, in which case the governing body shall reject defense of the claim." (Emphasis added.) Plaintiff argues that the legislature employed the word "or," emphasized in the above-quoted first sentence of ORS 30.287(1), for the specific purpose of signaling a separate class of claims for which public bodies must provide a defense. Plaintiff contends that ORS 30.287(1) applies either to a "tort claim or demand * * * arising out of an alleged act or omission occurring in the performance of duty" as provided in ORS 30.285(1) or, although no tort claim or demand has been made, to any other kind of complaint against a public officer,[3] whenever the officer asserts that such complaint is "based * * * on an alleged act or omission in the performance of duty." In response, defendant argues that, in context, both the words "claim or demand," which appear in ORS 30.287(1) by reason of an internal reference therein to ORS 30.285(1), and the words "civil action, suit or proceeding," which are found in ORS 30.287(1), and in ORS 30.285(3) alike, refer only to tort claims. Therefore, defendant argues, the reference in ORS 30.287(1) to "an act or omission in the performance of duty," found within the same sentence that refers to "tort claim or demand," also refers only to acts or omissions that give rise to tort claims. "In interpreting a statute, the 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). In attempting to discern the intent of the legislature, the first level of analysis is to examine the text and context of the statute. The context of a statute includes other provisions of the same statute and other related statutes. If the legislature's intent is clear from the text and context, further inquiry is inappropriate. Id. at 611, 859 P.2d 1143. Thus, we first turn to the text and context of the provision to be construed, ORS 30.287(1). We initially focus on the text of the dispositive first sentence of ORS 30.287(1). The subject of the sentence appears in the last clause. That clause provides that the public "officer * * * may file a written request for [defense] counsel" with the local public body. The remaining clauses of that sentence describe the conditions that must be present before the officer "may" file the request for defense. The first of those clauses"[i]f any civil action, suit or proceeding is brought against any officer"requires an action or proceeding and that it be brought against an officer of the government. The next clause specifies that the action or proceeding must either show on its face that it falls within the provisions of ORS 30.285(1) by being, in the words of that referenced subsection, "any tort claim or demand * * * arising out of an alleged act or omission occurring in the performance of duty" or must be an action or proceeding which the public "officer * * * asserts to be based in fact upon an alleged act or omission in the performance of [governmental] duty." The first alternative condition under which a claim for defense may be filed is that the claim shows on its face that it allegedly arose from performance of duty; the second alternative is that the officer asserts that the claim arose from performance of duty. The two alternatives are each introduced by the word "which." In this instance, that word is used as a parallel construction device. The parallel clauses have a common referent. They refer to the "civil action, suit or proceeding" with which the sentence begins. Under context, we begin with the statute directly announcing the disputed duty to defend. ORS 30.285(1) provides: "The governing body of any public body shall defend, save harmless and indemnify any of its officers, employees and agents, whether elective or appointive, against any tort claim or demand, whether groundless or otherwise, arising out of an alleged act *1161 or omission occurring in the performance of duty." (Emphasis added.) Before its amendment by Oregon Laws of 1975, chapter 609, section 16, ORS 30.285(1) provided that any public body "may" defend and indemnify an officer. After those amendments, that subsection mandated that any public body "shall" defend and indemnify against any tort claim or demand arising out of performance of duty as an officer. Section 16 of the 1975 act further amended ORS 30.285 by adding a completely new subsection (3) which spells out the procedure and the conditions under which a state officer may claim entitlement to the new mandatory right to a defense and indemnity. That subsection provides in part: The 1975 act made several other relevant changes to the OTCA. Section 20 of that act created a new statute section which is now codified as ORS 30.287, the section we are called on to interpret in this case.[4] That new section provided the procedure and conditions under which a local government officer or employee may claim entitlement to the new, mandatory right to a defense and indemnity created by section 16. Significantly, subsection (1) of the new section 20, now ORS 30.287(1), used wording identical to that used in the also new subsection (3) of ORS 30.285 to describe the conditions and procedure under which a state officer or employee may claim the new, mandatory right to defense and indemnity. Both subsection (1) of ORS 30.287, relating to local government employees and subsection (3) of ORS 30.285 contain the same internal reference to subsection (1) of ORS 30.285. That subsection, referred to in common, defines the right to defense and indemnity as being "against any tort claim or demand * * * arising out of an alleged act or omission occurring in the performance of duty." This is significant context indicating that ORS 30.287(1) is about a "tort claim or demand." The major difference between ORS 30.287(1) and 30.285(3) is that ORS 30.287(1) extends to local public bodies, including municipalities, while ORS 30.285 applies to the state. Nonetheless, ORS 30.287(1) is almost identical to ORS 30.285(3) which, like ORS 30.287(1), provides a procedure for implementing the public officer's right to a defense under ORS 30.285(1). Also relevant context is ORS 30.287(3), which provides in part: "If the governing body rejects defense of a claim under subsection (1) of this section, no public funds shall be paid in settlement of the claim or in payment of any judgment against such officer, employee or agent. Such action by the governing body shall not prejudice the right of the officer, employee or agent to assert and establish in an appropriate proceedings that the claim or demand in fact arose out of an alleged act or omission occurring in the performance of duty * * *." (Emphasis added.) The wording of ORS 30.287(3) tracks the "claim or demand" and "performance of duty" wording of ORS 30.285(1), wherein that wording is related only to a tort claim. The two sections were enacted by the same 1975 act. The context of ORS 30.287(1) makes it clear that that statute refers to torts, not to other claims. We agree with defendant's construction of the dispositive sentence; it refers only to tort claims. In so doing, we do not overlook the disjunctive "or." Nor do we overlook its grammatical functions. Instead, that word is given full meaning and function by our holding that the word "or" in that sentence functions to separate the two dissimilar methods of describing claims against a public officer *1162 that presumptively fall within the scope of ORS 30.287(1): The first method looks at the allegations of the claim to determine whether the claim shows on its face that it is a tort claim or demand that arises out of performance of duty as a public officer; the second method looks to an assertion by the officer that such a claim or demand arose from performance of duty. Plaintiff next argues that, even if ORS 30.287(1) refers only to tort claims, a complaint alleging an ethics violation comes within the OTCA's definition of a tort. For purposes of the OTCA, a tort is defined by ORS 30.260(8): The Court of Appeals held that an ethics complaint, filed under ORS chapter 244 and claiming that a government ethics law has been violated, cannot provide damages to, or a protective remedy for, specific persons who claim to have been injured by the ethics violation and, therefore, that a claimed ethics violation is not itself a tort claim. 129 Or. App. at 202, 878 P.2d 1139. That court further held that an ethics complaint that turns out to be frivolous or ill-founded serves no public good and provides no "protective remedy" for the public, let alone a remedy that benefits an individual, as would be required to come within the definition of "tort" in ORS 30.260(8). Ibid. We agree with the Court of Appeals. ORS chapter 244 is designed "to deter violation of the legislative policy of safeguarding the public trust inherent in holding a public office." Groener v. Oregon Gov't Ethics Comm., 59 Or.App. 459, 469, 651 P.2d 736 (1982). Thus, the ethics law was created to benefit the public, not to create a civil claim for or against an individual. ORS 244.040, which the complaint alleged that Mayor Stolze violated, does not create a civil right of action for damages or any other protective remedy for an individual.[5] Therefore, violation of that statute does not fit within the definition of a tort in ORS 30.260(8) that is applicable to ORS 30.287. It follows that defendant had no duty to provide a defense for plaintiff's officer in relation to the ethics violation complaint. In summary, ORS 30.287(1) does not impose on municipalities a duty to defend its officers, employees, or agents against an ethics complaint. An ethics violation does not constitute a "tort" under the definition provided in the OTCA. Under the provisions of the insurance contract between the parties, plaintiff had no right arising from ORS 30.287(1) to recover from defendant insurer the cost of defending an ethics complaint filed against plaintiff's officer. The decision of the Court of Appeals and the judgment of the district court are affirmed. [1] The Commission is now named the Oregon Government Standards and Practices Commission. ORS 244.020(4). [2] ORS 244.040 in part provides: "No public official shall use * * * official position or office to obtain financial gain [for the public official] * * * other than official salary, honoraria * * * reimbursement of expenses or * * * for any business with which the public official * * * is associated." [3] This case involves a public officer although ORS 30.287 covers a public "employee or agent" as well. We refer herein only to "officer." [4] Section 20 was, by the provisions of section 18, "added to and made a part of ORS 30.260 to 30.300," the OTCA. [5] Plaintiff contends that the ethics laws provide a protective remedy analogous to "specific relief." Plaintiff's Petition for Review 12. The complaint indicates that the complainant and the mayor are both in the business of land development, that complainant perceives them as competitors in that business and that, when the mayor voted on a land use request of the complainant, the mayor was in a position to further his own business by holding back that of the complainant. The remedies available to the commission do not provide any relief to an individual complainant. Civil penalties and forfeitures assessed by the commission under ORS 244.350 and 244.360 accrue to the state general fund. ORS 244.370(3). Reasonable attorney fees may be awarded only to the officer complained against and then only if the officer "prevails following a contested case hearing under [chapter 244] or a lawsuit under ORS 244.260[ (8) ]." ORS 244.400(1).

4fe17d7dad40e6350bbad24b3eaa003bdf3733dd785703653a0123eb61d2d96e

1995-05-25T00:00:00Z

c62dbcac-6484-4ce9-8aaf-034b3f6132f3

Harris v. Board of Parole

288 Or. 495, 605 P.2d 1181

oregon

Oregon Supreme Court

605 P.2d 1181 (1980) 288 Or. 495 Arnold HARRIS, Petitioner, v. BOARD OF PAROLE, State of Oregon, Respondent. No 315335; CA 11130; SC 26265. Supreme Court of Oregon, In Banc.[*] Argued and Submitted December 3, 1979. Decided January 29, 1980. Gene B. Mechanic, Prisoners' Legal Services of Oregon, Salem, appeared for the petitioner. James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and William F. Nessly, Jr., Asst. Atty. Gen., Salem, appeared contra. TONGUE, Justice. Petitioner, an inmate in the Oregon State Penitentiary, filed a petition with the Court of Appeals for review of an order by the Board of Parole setting the initial date of his release on parole for March 1983, following 96 months of imprisonment. Respondent moved to dismiss the petition on the ground that the Court of Appeals had no jurisdiction. The court allowed that motion upon the ground that ORS 144.335(1), as previously construed by it in Sterling v. Board of Parole, 16 Or. App. 481, 519 P.2d 1047, rev. den. (1974), granted that court jurisdiction "only to review orders terminating or revoking parole and orders reinstating parole on the same conditions or granting parole after revocation on modified or different conditions." 39 Or. App. 913, 915, 593 P.2d 1292, 1293 (1979). That court also noted that in 1977 the Oregon Legislature made substantial changes in statutory provisions relating to sentencing and parole (1977 Or. Laws c. 372), but did not amend ORS 144.335(1) or make additional provisions for appeal of Parole Board orders despite its presumed knowledge of the decision by that court in Sterling. Petitioner then filed with this court a petition for review of that decision by the Court of Appeals. In support of that petition it is contended that the decision by the Court of Appeals in Sterling was wrong and that even if it was correct ORS 144.335 was amended by implication by the legislature in 1977, a contention also rejected by the Court of Appeals. We allowed the petition for review because the question whether such orders by the Board of Parole are subject to judicial review is one of importance to the functioning of the statutory program for sentencing and parole of persons convicted of crimes and is also a question of importance to many inmates of the Oregon State Penitentiary. *1182 ORS 144.335(1) provides as follows: In Sterling the Court of Appeals recognized (16 Or. App. at 486, 519 P.2d at 1049) that this statutory provision "standing alone, would seem to support judicial review of the granting process contained in ORS 144.210-144.270 * * *." The court also noted that 1973 Oregon Laws, Chapter 694 extensively amended the parole and probation process and included detailed provisions relating to two kinds or classifications of parole board proceedings one dealing with the granting of parole (Sections 4 through 7) and the other dealing with revocation or modification of parole previously granted (Sections 8 through 17); that ORS 144.335(1) was Section 24 of that Act and that Section 21 of that Act provided that: The Court of Appeals then held (at 487-88, 519 P.2d at 1050) that because ORS 144.310 to 144.400 related to the termination of parole, rather than the granting of parole, which was provided for in ORS 144.210 to 144.270, it followed that by reason of what the court referred to as "the clear language of Section 21," that the legislature must have intended to provide for judicial review of only those parole board orders relating to the termination of parole and that it did not intend to provide for judicial review of board orders relating to the granting of parole. To support that conclusion the court then quoted as follows (at 488, 519 P.2d at 1050) from Curly's Dairy v. Dept. of Agriculture, 244 Or. 15, 21, 415 P.2d 740 (1966): The Court of Appeals also supported that conclusion by references (at 489, 519 P.2d 1047) to testimony at the 1973 legislative hearings on SB 379 (later 1973 Or. Laws, c. 694) from which it concluded that 1973 Oregon Laws, Chapter 694 "had its genesis" in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), which imposed standards of due process relating to the revocation of parole for violations by the parolee and noted (16 Or. App. at 491, 519 P.2d at 1051) that "Morrissey did not deal with the procedural rights of inmates relating to the initial granting of parole." Upon examination of 1973 Oregon Laws, Chapter 694 and its legislative history, we conclude that we must disagree with the analysis of that statute by the Court of Appeals. Chapter 694 of the 1973 Oregon Laws was the result of a combination of two separate bills SB 379 and SB 385 both offered by the same sponsors.[2] SB 379 provided procedures for parole revocation, including a provision (Section 15) for judicial review of any order by the Board of *1183 Parole "affecting his parole * * *." That bill may well have had its "genesis" in Morrissey. SB 385, however, prescribed procedures for granting parole and provided (by Section 8) for "judicial review of any Board order affecting his release on parole * * *." That bill, which related solely to the granting of paroles, could not have had its "genesis" in Morrissey, which was concerned solely with requirements of due process relating to the revocation of parole for violations by the parolee. By "Senate Amendments to SB 379," sections 4, 5, 6 and 7 were added which, for the first time, provided procedures relating to the granting of parole, as did SB 385. Thus, as the result of these amendments which combined the two bills, SB 379 then had two purposes or "objects": one purpose was to provide procedures relating to the revocation of parole and the other purpose to provide procedures relating to the granting of parole. SB 379 thus must be construed "with reference to" both of these "objects" or purposes. Curly's Dairy v. Dept. of Agriculture, supra. Section 22, (later Section 21 of 1973 Or. Laws, c. 694) and Section 25 (later Section 24 of 1973 Or. Laws, c. 694, and now ORS 144.335(1) and (2)) were also added. Section 22 provided: Section 25, however, (now ORS 144.335(1) and (2)) provided as follows: Despite the fact that by Section 22 (later 21), this provision for judicial review was "added to and made a part" of the statutory provisions relating to the revocation of parole, we are unable, for the reasons previously stated, to escape the conclusion that Section 25 demonstrates, by clear and unambiguous terms, a legislative intent to provide for the judicial review of "a final order of the board related to the granting * * * of parole," as well as "a final order of the board related to the * * * revoking or discharge of parole." In addition, it is of interest to note the specific reference in Section 25 to "the inmate." Had the legislature intended to provide for judicial review only of final orders "related to the granting, revoking or discharging of parole," such a reference to "the inmate" would hardly appear to be appropriate because, although a person whose parole is revoked may then be in custody, a person on parole is no longer an "inmate" of the penitentiary, nor is a person being discharged from parole. This specific reference to "the inmate," although by no means controlling, makes it further clear, in our opinion, that the legislature intended to provide for judicial review of final orders related to the granting of parole to "inmates." This conclusion, in our judgment, is confirmed by the fact that as a result of these Senate amendments the subject matters of the original SB 385 (providing procedures for the granting of parole) and SB 379 (providing procedures for the revocation of parole), both of which provided for judicial review, were combined in one bill. We have searched the legislative history of 1973 Oregon Laws, Chapter 694 for any indication, other than the provisions of Section 21, to support a conclusion that the legislature intended to limit judicial review to parole revocation proceedings or that it *1184 intended by the adoption of Section 25 (later Section 24) to mean other than that "a person * * * adversely affected * * by a final order of the board related to the granting * * * parole * * * is entitled to judicial review of the final order," as expressly provided by its terms. We find nothing to support such a conclusion.[3] We have also examined the legislative history of 1977 Oregon Laws, Chapter 372, by which the Oregon Legislature enacted further extensive changes in the statutes relating to the procedure for the granting of parole. We find nothing to indicate that the legislature considered the holding by the Court of Appeals in Sterling and declined to adopt legislation to overrule the effects of that decision.[4] We need not consider or decide whether the legislature intended in 1977 not to overrule Sterling or whether by the adoption of 1977 Oregon Laws, Chapter 372, ORS 144.335 was amended by implication so as to provide for judicial review of final orders relating to the granting of parole, as contended by petitioner, because we have already held that ORS 144.335, as enacted in 1973, provided for judicial review of such orders. It should be noted, however, that by the terms of 1977 Oregon Laws, Chapter 372, which sets forth the legislative plan to eliminate disproportionate sentences, trial courts must consider presentence reports and must state on the record the reasons for sentences imposed (ORS 144.790(1) and 137.120(2)). The sentences imposed by trial courts are for indeterminate periods of time, with the trial court stating only a maximum term to be served and, in its discretion, a minimum sentence up to one-half of that maximum sentence (ORS 137.120(2) and 144.110(1)). Appeals may be taken from sentences claimed to be excessive, and such sentences must be reviewed by the Court of Appeals (ORS 138.040 and 138.050). Moreover, and regardless of the sentences imposed by the courts, the legislature has provided by ORS 144.780 and 144.785 that it is the Board of Parole that determines the actual duration of imprisonment and in doing so it must seek to achieve "[p]unishment which is commensurate with the seriousness of the prisoner's criminal conduct," after considering "aggravating or mitigating circumstances." It would indeed be incongruous to suppose that the Oregon Legislature intended to provide for judicial review of sentences claimed to be excessive, but intended not to provide for judicial review of final orders by the Board of Parole, which determines the actual duration of imprisonment, particularly in view of the express provisions enacted by the legislature as set forth in ORS 144.335. For reasons previously stated, we hold that ORS 144.335 was intended to provide for judicial review of final orders by the Board of Parole relating to the granting of parole and that the Court of Appeals was in error in holding to the contrary. As previously noted, the Court of Appeals dismissed the petition to it for judicial review upon the ground that it had no jurisdiction to consider the petition. As a result, the Court of Appeals did not consider the merits of the petition, including the question whether the order of the Board of Parole was a "final order" for purposes of *1185 ORS 144.335(1) and, if so, whether it was improper, as contended by petitioner. It may well be that not all orders by the Board of Parole relating to the granting of parole are final orders, so as to be subject to judicial review. This case was disposed of by the Court of Appeals, however, by the granting of respondent's motion to dismiss for lack of jurisdiction based solely upon its previous decision in Sterling v. Board of Parole, supra. The only question briefed in the Court of Appeals was the question whether Sterling was correctly decided. The question whether the order of the Board of Parole in this case was such a final order and, if so, the question whether it was an improper order were not briefed either in that court or in this court. On this state of the record, and for these reasons, this case is remanded to the Court of Appeals. Reversed and remanded. [*] Holman, J., did not participate in this decision. [1] The same conclusion was reached by Schwab, C.J., specially concurring, as follows (16 Or. App. at 493, 519 P.2d at 1052-1053): "The legislature, albeit by ambiguous language, provided for judicial review by this court of orders in the revocation and modification classification, but did not provide for review by this court of orders entered pursuant to hearings that determine whether and under what conditions parole should be granted." As also stated by Schwab, C.J.: "We have, and I think properly, resolved this case on a point which the parties did not raise by determining that our statutes do not provide for appellate review by this court of parole board orders denying as distinguished from revoking parole." [2] As stated by Senator Elizabeth Browne, Chairperson of the Senate Committee on Judiciary and Co-sponsor of SB 379 and SB 385, before the Senate Committee on Judiciary on May 16, 1973, "I understand somebody is going to propose an amendment that would put Senate Bill 379, 385 and House Bill 2110 together." Amended SB 379 also included provisions of HB 2110, but those provisions are not relevant to our inquiry. [3] The House and Senate Judiciary Committees relied heavily upon a proposed compromise amendment prepared by Mr. Terry Johnson, a member of the Board of Parole, and Mr. Victor C. Pagel of Marion-Polk County Legal Aid. The compromise amendment was submitted by Mr. Johnson in his letter of May 15, 1973, to Senator Browne, Chairperson of the Senate Committee on Judiciary. Mr. Johnson's letter does not limit review to parole revocations, stating, among other things, that "The Board supports the concept of judicial review based on the record to the Court of Appeals * *." A statement by Mr. Pagel also demonstrates his understanding that the amendments provided for review of orders granting, as well as revoking, parole. (Hearings before the Senate committee on Judiciary on SB 379, SB 385 and HB 2110, May 16, 1973.) [4] We also find that at least some persons appearing before legislative committees, including Mr. Ira Blalock, then Chairman of the Board of Parole, had the understanding that "[a]ll parole decisions are appealable." (House Committee on Judiciary Transcript, April 26, 1977.)

6b311c473e0f5aed18c9ab7818ca49ec6a5d55539c297a0fe0bef4d36f4ed5c4

1980-01-29T00:00:00Z

5551e477-a96b-42b3-9e24-2ffdf065800f

Novick v. Myers

oregon

Oregon Supreme Court

FILED: November 30, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48603) En Banc On petition to review ballot title. Argued and submitted August 7, 2001. Steven Novick, Portland, argued the cause and filed the petition for himself as petitioner. Douglas F. Zier, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With him on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. CARSON, C.J. Ballot title referred to the Attorney General for modification. CARSON, C.J. This ballot title review proceeding under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State has denominated as Initiative Petition 47 (2002). Petitioner challenges the caption, the "yes" and "no" vote result statements, and the summary of the Attorney General's certified ballot title. For the reasons explained below, we hold that the "yes" vote result statement does not comply substantially with the requirements of ORS 250.035(2)(b). We refer the ballot title to the Attorney General for modification. See ORS 250.085(8) (authorizing such disposition); Flanagan v. Myers, 332 Or 318, 323-25, 30 P3d 408 (2001) (explaining why referral to Attorney General ordinarily is appropriate). The proposed initiative measure would amend the Oregon Constitution by adding the following text to Article IX: "Section 3c. Whereas revenue derived from taxes on motor vehicle fuel will decline as vehicles become more efficient and alternative sources of energy are discovered and employed, therefore, for tax years beginning on or after July 1, 2004, 10 percent (10%) of the state's income tax revenue shall be dedicated to the building and maintaining of public roads. These funds shall be divided equally between the Oregon Department of Transportation, which shall receive 50 percent of the aforementioned income tax revenue, and the cities and counties of Oregon, which shall receive the remainder. For purposes of this section 3a, income tax revenue means revenue derived from personal and corporate income taxes and corporate excise taxes. "(a) The Oregon Department of Transportation and each city and county receiving these funds shall maintain a segregated account dedicated solely to the construction, reconstruction, improvement, repair, maintenance, operation and use of public highways, roads, streets and roadside rest areas, and shall place into this fund the aforementioned state income tax revenue, all highway funds received directly or indirectly from the federal government and all other revenue derived from taxes and fees on motor vehicle fuel and use. "(b) The state shall distribute equitably to cities and counties, using a formula established by law, not less than 40 percent of all revenue derived from state taxes and fees on motor vehicle fuel and use, including vehicle registration fees. "(c) To insure that funds dedicated by this Article are indeed used for the purposes to which they are dedicated, the Secretary of State shall audit all such accounts to confirm that the dedicated funds are not commingled with other funds or used for other purposes; and shall pursue any court action necessary to enforce this section and to insure that a public official who uses or authorizes the use of these dedicated funds for a purpose not authorized by this Constitution is held accountable." For that proposed initiative measure, the Attorney General certified the following ballot title: "AMENDS CONSTITUTION: ALLOCATES TEN PERCENT OF INCOME TAX REVENUES FOR HIGHWAYS; DISTRIBUTES SOME REVENUE TO CITIES, COUNTIES "RESULT OF 'YES' VOTE: 'Yes' vote allocates ten percent of state income tax revenue to supplement existing funding for highway construction and maintenance; distributes some revenue to cities, counties. "RESULT OF 'NO' VOTE: 'No' vote retains current manner of funding public highway construction and maintenance through dedicated fuel taxes, registration and licensing fees, and federal and local money. "SUMMARY: Amends constitution. Currently federal and state money, dedicated funds (fuel taxes, registration, licensing fees) finance highway construction and maintenance. Measure supplements existing highway funding by allocating ten percent of state income and excise tax revenue (divided equally between state, local entities) along with federal highway money and all taxes, fees on vehicle fuel and use to segregated fund for highway construction and maintenance. Requires 40 percent or more of state taxes and fees on motor vehicle fuel and use (including vehicle registration fees) to be 'equitably' distributed to cities and counties; they currently receive 39.95 percent. Does not define 'equitably.' Reduces revenue available for other state expenditures; provides no replacement funding. Eliminates current authority to use highway funds for administration, bond retirement, parks. Other provisions." Petitioner challenges all aspects of the ballot title -- the caption, result statements, and summary. We have considered each of petitioner's arguments and conclude that only his challenge to the "yes" vote result statement is well taken. We confine our discussion to that argument. The "yes" vote result statement must contain a "simple and understandable statement of not more than 25 words that describes the result if the * * * measure is approved." ORS 250.035(2)(b). To the extent practicable, the "yes" and "no" vote result statements must be written so that they are parallel. ORS 250.035(3). Petitioner claims that the "yes" vote result statement does not comply substantially with the requirements of ORS 250.035(2)(b) because it fails to state that, in dedicating 10 percent of the income tax to highway funding, the proposed measure correspondingly would result in a reduction in the State General Fund (General Fund). Income tax revenues currently are deposited into the General Fund, which funds education, public safety, health care, and other state services. Because the proposed measure would dedicate 10 percent of the income tax revenues to highway funding, petitioner submits that, if approved, it would result both in an increase in the amount of funds available for highways and in a decrease in the amount of funds available for services paid from the General Fund. The Attorney General concedes that petitioner "is largely accurate" respecting the impact that the proposed measure would have on the General Fund. The Attorney General defends the "yes" vote result statement on the ground that the primary result of the proposed measure would be to establish additional dedicated highway funding. Because the "yes" vote result statement states as much, the Attorney General argues that it substantially complies with the statute. According to the Attorney General, any reduction in the General Fund that would result if the proposed measure is approved would be an incidental fiscal consequence that properly should be, and in fact is, addressed in the summary. (1) We disagree with the Attorney General's characterization that the impact that the proposed measure would have on the General Fund is "incidental." Because the proposed measure does not provide alternative funding sources, a direct result of the proposed measure, if approved, would be a decrease in the source of General Fund revenues. As noted, under ORS 250.035(2)(b), the "yes" vote result statement must describe the result of a proposed measure if approved. Because the Attorney General's "yes" vote result statement does not describe the reduction in the General Fund that would result from the proposed measure the ballot title does not comply substantially with ORS 250.035(2)(b) and must be modified. In addition, although we reject petitioner's challenge to the "no" vote result statement, the Attorney General may modify the "no" vote result statement if he desires. See ORS 250.035(2)(b) (setting out requirements for "no" vote result statement); ORS 250.035(3) (to extent practicable result statements shall be parallel). Ballot title referred to the Attorney General for modification. 1. Specifically, the Attorney General notes that the summary states that the proposed measure "[r]educes revenue available for other state expenditures; provides no replacement funding."

3a5fba97b272c7c8e84b0e1175003770ae22f2f013f74d3266703c59256cce36

2001-11-30T00:00:00Z

83cf5c36-a769-4e44-8690-39c292e0df64

Novick v. Myers (Certification)

oregon

Oregon Supreme Court

Filed: December 17, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48603) En Banc On modified ballot title filed December 7, 2001.* No appearance by petitioner. Douglas F. Zier, Assistant Attorney General, Salem, filed the filing of modified ballot title for respondent. With him on the filing were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). *333 Or 12, ___ P3d ___ (November 30, 2001) (referring ballot title for modification). The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 47 (2002), failed to comply substantially with statutory standards. Novick v. Myers, 333 Or 12, ___ P3d ___ (November 30, 2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 47 (2002) states: "AMENDS CONSTITUTION: ALLOCATES TEN PERCENT OF INCOME TAX REVENUES FOR HIGHWAYS; DISTRIBUTES SOME REVENUE TO CITIES, COUNTIES "RESULT OF 'YES' VOTE: 'Yes' vote allocates ten percent of income tax revenue to supplement highway funding; distributes some revenue to cities, counties; reduces revenue for other state expenditures. "RESULT OF 'NO' VOTE: 'No' vote retains current manner of funding public highway construction and maintenance through dedicated fuel taxes, registration and licensing fees, and federal and local money. "SUMMARY: Amends constitution. Currently federal and state money, dedicated funds (fuel taxes, registration, licensing fees) finance highway construction and maintenance. Measure supplements existing highway funding by allocating ten percent of state income and excise tax revenue (divided equally between state, local entities) along with federal highway money and all taxes, fees on vehicle fuel and use to segregated fund for highway construction and maintenance. Requires 40 percent or more of state taxes and fees on motor vehicle fuel and use (including vehicle registration fees) to be 'equitably' distributed to cities and counties; they currently receive 39.95 percent. Does not define 'equitably.' Reduces revenue available for other state expenditures; provides no replacement funding. Eliminates current authority to use highway funds for administration, bond retirement, parks. Other provisions." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9).

4f7e4d28b88d800e1f33e54994747d57579048add731aaea53c1c492ce60702f

2001-12-17T00:00:00Z

6173e742-d66c-4301-9ab2-92f6baf84608

State v. Meiser

S070059

oregon

Oregon Supreme Court

438 June 13, 2024 No. 21 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. ERIK JOHN MEISER, Petitioner on Review. (CC CR1201547) (CA A166534) (SC S070059) On review from the Court of Appeals.* Argued and submitted September 14, 2023. Daniel J. Casey, Portland, argued the cause and filed the briefs for petitioner on review. Joanna R. Hershey, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Flynn, Chief Justice, and Duncan, Garrett, Bushong, James and Masih, Justices, and Nakamoto, Senior Judge, Justice pro tempore.** DUNCAN, J. The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. Bushong, J., concurred and filed an opinion, in which Nakamoto, S.J., joined. James, J., concurred and filed an opinion, in which Masih, J., joined. ______________ *  Appeal from Clackamas County Circuit Court, Katherine E. Weber, Judge. 323 Or App 674, 524 P3d 130 (2023). **  DeHoog, J., did not participate in the consideration or decision of this case. Cite as 372 Or 438 (2024) 439 440 State v. Meiser DUNCAN, J. This criminal case requires us to construe ORS 161.295, which defines the “guilty except for insanity” (GEI) defense. Subsection (1) of ORS 161.295 provides that “[a] person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in crimi- nal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.” By its terms, ORS 161.295(1) requires a connection between the person’s lack of capacity and the person’s mental dis- ease or defect: The lack of capacity must be “a result of” the mental disease or defect. The issue in this case concerns the meaning of “as a result of.” For the reasons explained below, we conclude that “as a result of” must be given its plain, natural, and ordi- nary meaning, and, therefore, to prove the GEI defense, a defendant must show that their lack of capacity was a “consequence” or “effect” of their mental disease or defect. The defendant’s mental disease or defect may combine with another condition to cause the lack of capacity, and the mental disease or defect need not be sufficient on its own to cause the lack of capacity. Because the Court of Appeals held otherwise, we reverse and remand. I.  BACKGROUND This is the second time that this case is before this court. The historical facts of the case are recounted in the earlier decisions of both the Court of Appeals and this court. State v. Meiser, 308 Or App 570, 572-76, 481 P3d 375 (2021), rev’d, 369 Or 347, 506 P3d 402 (2022) (Meiser I); State v. Meiser, 369 Or 347, 350-52, 506 P3d 402 (2022) (Meiser II); State v. Meiser, 323 Or App 674, 676-77, 524 P3d 130 (2023) (Meiser III). For the purposes of this decision, a summary of the trial and appellate proceedings is sufficient. A.  Trial Court Proceedings Based on an incident in 2012, defendant was charged with multiple crimes, including several counts of Cite as 372 Or 438 (2024) 441 aggravated murder and burglary. The aggravated murder charges were based on the killing of one person, FH. The trial court repeatedly found defendant unfit to stand trial by reason of incapacity. See ORS 161.360 (provid- ing that a defendant may be found incapacitated if unable to understand the nature of the proceedings, to assist and cooperate with defense counsel, or to participate in the defense). Defendant spent nearly four years confined at the Oregon State Hospital before the trial court found him fit to stand trial. Defendant waived his right to a jury, and the case proceeded to a bench trial. Defendant did not dispute that he had committed the charged acts, but he raised a GEI defense. As mentioned, the GEI defense is defined by ORS 161.295, which provides, in full: “(1)  A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in crimi- nal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law. “(2)  As used in chapter 743, Oregon Laws 1971, the terms ‘mental disease or defect’ do not include an abnor- mality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder.” ORS 161.295 (2011), amended by Or Laws 2017, ch 634, § 3.1 1  Because the crimes charged in this case were committed in 2012, the 2011 version of ORS 161.295 applies. All references to the statute in this opinion are to the 2011 version. In ORS 161.295(2), the reference to “chapter 743, Oregon Laws 1971,” is to the Oregon Criminal Code of 1971, of which the GEI defense is a part. Or Laws 1971, ch 743, § 36. In 2017, the legislature amended ORS 161.295 to replace the term “men- tal disease or defect” with the term “qualifying mental disorder,” a term that the legislature thought had fewer negative connotations. Or Laws 2017, ch 634, § 3. In the preamble to the bill that made the change, the legislature explained that it did not intend to “mak[e] a substantive change” in the law and wanted to preserve “the validity of all previous court decisions interpreting” the prior wording. Id., preamble. Although we are mindful of the negative connotations of the phrase “mental disease or defect,” we use it in this opinion because it is the applicable statutory phrase. 442 State v. Meiser The GEI defense is an affirmative defense. ORS 161.305. A defendant bears the burden of proving the ele- ments of the defense by a preponderance of the evidence. ORS 161.055(2). As ORS 161.295(1) provides, to prove the GEI defense, a defendant must prove three elements: (1)  they suffered from a mental disease or defect (2)  that resulted in (3)  a lack of substantial capacity either (a) to appreci- ate the criminality of their conduct or (b) to conform their conduct to the requirements of the law. In addition, as ORS 161.295(2) provides, a mental disease or defect does not include two types of abnormalities, spe- cifically, (1) those manifested only by repeated criminal or antisocial conduct and (2) those constituting solely a person- ality disorder. At trial, defendant called four mental health pro- fessionals to testify in support of his GEI defense. As we recounted in our prior decision, defendant “offered the testimony of a psychologist and three psychia- trists, all of whom opined that defendant was suffering from schizophrenia but recognized that he had a co-occurring diagnosis of antisocial personality disorder. One of the psy- chiatrists explained that, as a symptom of defendant’s schizo- phrenia, defendant experienced ‘command auditory hallu- cinations’—voices that defendant believed to be telepathic communications from unseen entities—although defendant did not experience ‘the kind of overwhelming command audi- tory hallucinations some other psychotic individuals have.’ “Two of the experts addressed the other elements of the GEI defense. Both testified that, at the time of the crimes, defendant lacked substantial capacity to conform his con- duct to the requirements of the law. And both testified that, if not for the psychosis, defendant would not have commit- ted the crimes. One of the experts specifically rejected the suggestion that defendant’s ‘conduct [was] a result of antisocial personality disorder rather than schizophrenia.’ The other opined that both of defendant’s conditions were ‘active’ at the time of the murder but that defendant’s psy- chosis associated with his schizophrenia ‘was more the pre- dominant driver of his behaviors.’  ” Cite as 372 Or 438 (2024) 443 Meiser II, 369 Or at 351-52 (brackets in Meiser II). The state did not offer any contrary expert testimony; instead, it raised arguments about the applicable legal tests for the defense and the sufficiency of defendant’s evidence. Sitting as the factfinder, the trial court found that defendant had proved the GEI defense for some counts, but not for the aggravated murder counts or for one of the bur- glary counts. On the aggravated murder counts, the trial court found defendant guilty of murder as a lesser-included offense and merged the guilty verdicts into a single convic- tion. On the burglary count, the trial court found defendant guilty of second-degree burglary as charged. The trial court did not address either the parties’ disputes regarding what defendant was required to show to prove the elements of the GEI defense or their disputes regarding whether defendant’s evidence was sufficient to prove those elements. Instead, the trial court stated its ver- dicts without elaboration, as a jury does in the absence of a special verdict form. B.  Meiser I Defendant appealed, raising several assignments of error, including one asserting that the trial court had erred by rejecting his GEI defense to the murder charge.2 Because the trial court had not expressed the basis for its rejection of the defense, defendant addressed all three elements of the defense. The first element—that defendant suffered from a qualifying mental disease or defect at the time of the mur- der, specifically, schizophrenia—was not disputed. The sec- ond and third elements—whether, as a result of his schizo- phrenia, defendant lacked the requisite capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law—were disputed. As to each of those elements, the parties disagreed about what a defendant must show to prove the element and whether defendant’s evidence compelled a finding that he had made that showing. 2  Defendant did not challenge the trial court’s rejection of his GEI defense on the burglary charge. 444 State v. Meiser Regarding the second element—that a defendant’s lack of capacity must be “a result of” a mental disease or defect—defendant asserted that, as a legal matter, a defen- dant’s lack of capacity is “a result of” a mental disease or defect if the mental disease or defect is a cause of the lack of capacity, even if it combines with other causes. Therefore, if his schizophrenia was a cause of his lack of capacity, he could establish the second element, even if his personality disorder was also a cause of his lack of capacity. The state, on the other hand, argued that a defendant’s lack of capacity must be solely attributable to the defendant’s mental disease or defect. So, the state urged, if defendant’s schizophrenia combined with his personality disorder to cause his lack of capacity, defendant could not prove the second element. The Court of Appeals agreed with the state, ruling that, to prove the second element of the GEI defense, a defendant must show that their lack of capacity resulted solely from a men- tal disease or defect. Meiser I, 308 Or App at 582. Therefore, the court concluded, the GEI defense is not available to a defendant if the defendant’s lack of capacity resulted from a combination of a mental disease or defect and a personality disorder. Id. The Court of Appeals then applied its understand- ing of the GEI defense to the evidence in the case. Id. at 582- 86. Because the GEI defense is an affirmative defense and the trial court had determined that defendant had failed to carry his burden in proving it, the question for the court was whether the evidence, viewed in the light most favor- able to the state, compelled a conclusion that defendant had proved that his asserted lack of capacity at the time of the murder was solely attributable to his schizophrenia. Id. at 572, 582 (describing standard of review). The court summa- rized defendant’s evidence and noted that he had presented expert testimony that his lack of capacity was caused by his schizophrenia. Id. at 585. But, based on the experts’ tes- timony and defendant’s statements about the crimes, the court concluded that a reasonable factfinder could find that any lack of capacity that defendant experienced was caused by a combination of his schizophrenia and his personality disorder. Id. That is, “the evidence permitted the factfinder to conclude, at the least, that defendant’s schizophrenia and Cite as 372 Or 438 (2024) 445 antisocial personality disorder were both active impair- ments.” Id. “Therefore, defendant did not establish, as a matter of law, the causation element of the GEI defense.” Id. at 585-86.3 C.  Meiser II On defendant’s petition, we allowed review of Meiser I to address the parties’ disagreement about the ele- ments of the GEI defense, specifically, their disagreement “about whether ORS 161.295 requires proof that defendant experienced the requisite incapacity solely ‘as a result of’ his schizophrenia, and not in any part as a result of his co-occurring antisocial personality disorder.” Meiser II, 369 3  The Court of Appeals noted, but did not resolve, the parties’ disputes about the third element of the GEI defense, specifically, their disputes about (1) what a defendant must show to prove that they lacked the requisite capacity to appre- ciate the criminality of their conduct, and (2) whether the evidence compelled either a conclusion that defendant lacked the requisite capacity to appreciate the criminality of his conduct or a conclusion that he lacked the requisite capacity to conform his conduct to the requirements of law. Id. at 586-87 (noting the par- ties’ dispute about whether a defendant’s ability to “appreciate the criminality” of their conduct depends on a “subjective moral standard” and explaining that it did not need to resolve that dispute because “the trial court’s rejection of the GEI defense is already justified by the facts that permit the trial court to have found that defendant’s asserted incapacity, in whatever form, is not the result of a mental disease or defect”); id. at 587-88 (noting that it did not need to determine whether the evidence compelled a finding that defendant had been unable to con- form his conduct to the requirements of law because “[t]he evidence permitted the trial court, sitting as factfinder, to reject the GEI defense” on the ground that defendant had failed to prove that any incapacity he experienced at the time of the murder was solely attributable to his schizophrenia). In addition, the Court of Appeals rejected defendant’s other assignments of error, including one asserting that the trial court had erred by declining to set out its conclusions of law regarding his GEI defense. Id. at 588-92. Defendant based that assignment of error on State v. Colby, 295 Or App 246, 433 P3d 447 (2018). In Colby, the Court of Appeals held that the trial court had erred when, during a bench trial in which the parties disputed the required elements of a crime, it declined the defendant’s request that it identify its understanding of the elements. Id. at 251-53. Based on Colby, the Meiser I court noted that, “in a bench trial, ‘there is no fixed procedural means of preserving a chal- lenge to the trial court’s determinations as to the elements of a crime, nor is the trial court required to express its ruling in a particular way.’ Yet, a request may be appropriate, even if made unconventionally, as when pointing out in a bench trial a dispute that is reflected in conflicting jury instructions before the court.” 308 Or App at 590 (quoting Colby, 295 Or App at 251 (internal citations omitted)). But the Meiser I court did not reach defendant’s argument regarding the trial court’s failure to set out its conclusions of law because defendant “did not ade- quately preserve [his] request for a ruling on a disputed point of law.” Id. 446 State v. Meiser Or at 349 (emphasis in original). Applying our methodology for statutory interpretation, we examined the text and leg- islative history of ORS 161.295. Meiser II, 369 Or at 355-61. We began by looking at ORS 161.295(2), which establishes exclusions to the term “mental disease or defect.” Meiser II, 369 Or at 356. Again, that subsection provides: “As used in chapter 743, Oregon Laws 1971, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antiso- cial conduct, nor do they include any abnormality constitut- ing solely a personality disorder.” ORS 161.295(2). We explained that the exclusion of “  ‘an abnormality manifested only by repeated criminal or other- wise antisocial conduct’  ” has been a part of ORS 161.295 since the statute’s enactment as a section of the Oregon Criminal Code of 1971. Meiser II, 369 Or at 360 (quoting Or Laws 1971, ch 743, § 36 (emphasis in Meiser II)). We fur- ther explained that the exclusion was intended to prevent the GEI defense from being used by “a category of offend- ers whom the drafters did not view as possessing ‘a men- tal disease or defect.’  ” Meiser II, 369 Or at 360. “[T]he cate- gory of concern was ‘psychopaths’ (or ‘sociopaths’),” and the legislature addressed that concern “by specifying that ‘the terms ‘mental disease or defect’ do not include an abnor- mality manifested only by repeated criminal or otherwise antisocial conduct.’  ” Id. (quoting Or Laws 1971, ch 743, § 36 (emphasis in Meiser II)). The purpose of the exclusion was “to prevent ‘recidivists’ from ‘qualify[ing] for the defense merely by being labeled psychopaths.’  ” Meiser II, 369 Or at 360 (quoting Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report §  36, 35 (July 1970) (brackets in Meiser II)). Based on the text of the exclusion and its legislative history, we concluded that, although the legislature intended to pre- clude defendants from using the GEI defense based solely on having been labeled a psychopath or a sociopath, it did not intend to preclude defendants who suffered from both a mental disease or defect and another condition from using the defense. Id. We explained that, Cite as 372 Or 438 (2024) 447 “[b]y structuring the statute to exclude those who were ‘merely’ labeled as ‘psychopaths,’ (or those demonstrating ‘an abnormality manifested only by repeated criminal or otherwise antisocial conduct,’) the legislature left open the possibility that the defense could be available to offenders who suffered from ‘a mental disease or defect’ in addition to whatever label attached to their repeated criminal or antisocial conduct. And we understand the legislature to have intentionally struck that balance.” Id. (emphasis in original; internal citations omitted). We also examined the other exclusion in ORS 161.295(2), that is, the exclusion of “any abnormality con- stituting solely a personality disorder.” Meiser II, 369 Or at 358. We explained that the legislature added that exclusion in 1983, and the legislative history regarding the exclusion showed that the legislature intended to remove “the cate- gory of disorders characterized only as personality disorders from the larger group of ‘mental disease or defect’ that can be relied on for use of the insanity plea under ORS 161.295(1).” Meiser II, 369 Or at 358-59 (internal quotation marks omit- ted). We noted that the legislative history also showed that the legislature’s choice to use the term “only” was intended “to indicate that a person who has ‘a personality disorder plus a psychosis *  *  * may still qualify’  ” for the defense. Id. at 357 (quoting Tape Recording, House Committee on Judiciary, HB 2075, May 13, 1983, Tape 324, Side A (state- ment of Jeffrey Rogers) (ellipses in Meiser II)). Based on its text and legislative history, we concluded that the exclusion “specifies certain mental conditions that are not included within the broader terms ‘mental disease or defect,’ and in doing so, narrows access to the defense set out in subsec- tion (1). But it does not make the defense so narrow as to require that a person who can demonstrate the requisite lack of substantial capacity ‘as a result of mental disease or defect’ also prove that a co-occurring personality disorder in no part contributed to the incapacity.” Meiser II, 369 Or at 360-61. Therefore, we concluded that the Court of Appeals had erred in holding that “defendant could prevail on his GEI defense only if he proved that his co-occurring personality disorder played no part in causing the requisite lack of substantial capacity.” Id. at 361 (emphasis 448 State v. Meiser in original). Because the Court of Appeals “did not consider— except under the ‘sole cause’ test *  *  *—whether the evidence compelled a finding that defendant proved that he had experi- enced any qualifying incapacity ‘as a result of mental disease or defect,’  ” we remanded the case to the Court of Appeals. Id. We noted that, to determine whether defendant had proved the required connection, the Court of Appeals might have to determine whether the legislature intended to require that a mental disease or defect be “sufficient, on its own,” to bring about the requisite lack of capacity, or whether it intended a “lesser degree of causal contribution.” Id.4 D.  Meiser III On remand, the Court of Appeals asked the parties to submit supplemental briefs regarding the nature of the required connection between a defendant’s mental disease or defect and the requisite lack of capacity, and the parties did. Based on the text and context of the phrase “as a result of,” defendant argued that “result” should be given its plain, natural, and ordinary meaning, that is, “something that proceeds or arises as a consequence, effect, or conclu- sion of something else.” Applying that meaning, defendant further argued that the evidence that he had presented compelled the conclusion that, at the time of the murder, he was incapacitated “as a consequence or effect proceeding or arising from his schizophrenia.” The state, on the other hand, argued that the phrase “as a result of” should be construed to impose a “standard of independent sufficiency.” Therefore, the state argued, if a defendant raising a GEI defense has both a mental disease or defect and a personality disorder, the defendant must show that the mental disease or defect would have brought about the requisite lack of capacity on its own. Applying that standard, the state argued that defendant’s evidence did not compel a conclusion that defendant’s schizophrenia was sufficient, on its own, to bring about the requisite lack of capacity. 4  We also noted that the issue of whether defendant’s evidence compelled a conclusion that he had proved the third element of the defense—that he lacked the requisite capacity—was still an open one, because the Court of Appeals had not needed to address it in Meiser I. Meiser II, 369 Or at 361. Cite as 372 Or 438 (2024) 449 The Court of Appeals agreed with the state, rul- ing that, in order for a defendant to prove that their lack of capacity was “a result of” their mental disease or defect, the defendant must show that, “standing alone,” the mental disease or defect “was sufficient, at the time of the crimi- nal conduct, to bring about the incapacity.” Meiser III, 323 Or App at 683; see also id. at 685 (the required causal con- nection is “one of independent sufficiency” (internal quota- tion marks omitted)). Applying that standard, the Court of Appeals held that the record did not show that defendant had proved the causation element of his GEI defense as a matter of law. Id. at 686. That is, the record—viewed in the light most favorable to the state as it had to be, see Meiser I, 308 Or App at 572 (setting out standard of review)—did not compel a finding that, at the time of the murder, defendant’s schizophrenia was sufficient, by itself, to bring about the requisite lack of capacity. Meiser III, 323 Or App at 686. The court acknowl- edged that both a psychologist, Beaver, and a psychiatrist, Choi, had testified that defendant “was experiencing com- mand-auditory hallucinations, a hallmark of schizophre- nia, on the day of the murder.” Id. It also acknowledged that Beaver had testified that, at the time of the murder, defen- dant was “floridly psychotic” and would not have committed the crimes if not for his “active psychosis,” and that Choi had testified that, during and after the murder, defendant was “highly psychotic,” and without the psychosis “would not have committed the crimes.” Id. at 687. The experts’ tes- timony was corroborated by evidence that defendant “was suffering from hallucinations and delusions at the time of his crimes,” including that “he had been ‘deleted’ from society; that he was being ‘sys- tematically persecuted by *  *  * a large portion of American society,’ as well as the police, who would only protect people of a certain class; that he needed a condo to get a ‘toehold into society’ as a property owner so that police would pro- tect him and his family; that his daughter would be turned into a cannibal by the voices he heard; and that his son was being poisoned and would also be harmed by the entities represented by the voices.” 450 State v. Meiser Id. at 687 (ellipses in original). The Court of Appeals con- cluded that the evidence “would certainly permit a finding” that “defendant’s asserted lack of substantial capacity *  *  * was ‘the result of’ his schizophrenia under [an] independent sufficiency measure.” Id. at 688 (emphasis in original). But the court went on to say that that was “not the only find- ing that could reasonably be derived from [the] record.” Id. Pointing to Choi’s testimony that defendant’s schizophrenia and personality disorder “both were active” and defendant’s statement that he had “lashed out” in anger when he killed FH, the court concluded that a factfinder could find that defendant’s schizophrenia was not sufficient, on its own, to bring about his lack of capacity: “[E]ven accepting Choi’s opinion that defendant’s schizo- phrenia ‘played a major role in’ and ‘was more the pre- dominant driver of’ defendant’s criminal conduct in killing FH—and that, if not for that psychosis, defendant would not have committed the act—a reasonable trier of fact would not be required to find that defendant’s schizophre- nia was sufficient—independent of his antisocial personal- ity disorder—to bring about his lack of substantial capacity at the time of the act.” Id. at 689-90 (emphasis in original). Consequently, the Court of Appeals affirmed the trial court’s judgment. Id. at 690. On defendant’s petition, we allowed review to determine the connection that a defendant must establish between their mental disease or defect and their lack of capacity in order to prove the GEI defense. II.  ANALYSIS The issue on review presents a question of statutory interpretation, to which we apply the methodology set out in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). Our goal is to ascertain the intent of the legislature that enacted the provision at issue. SAIF v. Ward, 369 Or 384, 394, 506 P3d 386 (2022). To do so, we look first to the text of the provision, in context, which is the best evidence of the legislature’s intent. Gaines, 346 Or at 171. We may then look to the legislative history of the provision, giving it the weight we deem appropriate. Id. at 172. Cite as 372 Or 438 (2024) 451 A.  Text We begin with the text of ORS 161.295, which we set out again: “(1)  A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in crimi- nal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law. “(2)  As used in chapter 743, Oregon Laws 1971, the terms ‘mental disease or defect’ do not include an abnor- mality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder.” As discussed, to prove the GEI defense, a defendant must show that, “as a result of” a mental disease or defect, they lacked the substantial capacity to appreciate the crim- inality of their conduct or to conform their conduct to the requirements of the law. Thus, the defendant must show a connection between their mental disease or defect and their lack of capacity. The key term in the legislature’s expression of the required connection is “result.” The legislature did not define that term, and it is a term of common usage. “When the legislature has not specially defined a term of common usage, we generally assume that the legislature intended to use the term in a manner consistent with its ‘plain, natural, and ordinary meaning,’ and we often consult dictionaries for guidance in determining what the legislature would have understood a term to mean.” Kinzua Resources v. DEQ, 366 Or 674, 681, 468 P3d 410 (2020). The term “result,” when used as a noun, as it is in ORS 161.295(1), is defined as “something that results as a consequence, effect, issue, or conclusion.” Webster’s Third New Int’l Dictionary 1937 (unabridged ed 2002). That defi- nition uses the verb form of “result,” which means “to pro- ceed, spring, or arise as a consequence, effect, or conclu- sion.” Id. Neither definition indicates that a “result” must be attributable to a single cause or an independently suffi- cient cause. 452 State v. Meiser The definitions of “result” as a noun and a verb use several terms, and, of those terms, “consequence” and “effect” fit best in the context of the GEI defense. See Jenkins v. Board of Parole, 356 Or 186, 194, 335 P3d 828 (2014) (rely- ing on context to determine which, among multiple dictio- nary definitions, the legislature intended); State v. Fries, 344 Or 541, 546, 185 P3d 453 (2008) (same). Although it is possible to say that a person’s lack of capacity “issued from” or was “a conclusion of” their mental disease or defect, it is more natural to say that their lack of capacity was “a conse- quence of” or an “effect of” their mental disease or defect. The definitions of “consequence” and “effect” support the view that a “result” may have multiple causes. The term “consequence” is defined as “something that is produced by a cause or follows from a form of necessary connection or from a set of conditions,” as in the phrase “this refined taste is the [result] of education and habit.” Webster’s at 482. Similarly, the term “effect” is defined as “something that is produced by an agent or cause : something that follows immediately from an antecedent : a resultant condition,” as in the exam- ple “low mortality, the [result] of excellent social services available in every village.” Id. at 724. Thus, the fact that “result” is defined as a “consequence” or “effect” indicates that a “result” may flow from “a set of conditions.” Id. at 482. To summarize, the legislature’s use of the term “result”—a term of common usage—indicates that the GEI defense applies if a defendant proves that they lacked the requisite capacity as a “consequence” or “effect” of their men- tal disease or defect. Id. at 1937. It further indicates that the lack of capacity need not be solely attributable to the mental disease or defect; a “set of conditions” can combine to result in the lack of capacity. Id. at 482.5 5  Because “result” is a word of common usage and there is no indication that the legislature intended it to have a specialized meaning, we look to its common meaning. But, even if we were to assume that the legislature intended “result” to have a legal meaning, the meaning would be the same, because the common meaning of the term, as set out in Webster’s, tracks the legal meaning, as set out in Black’s Law Dictionary. When the Oregon Criminal Code was enacted, Black’s defined the noun “result” to mean “[t]hat which results, the conclusion or end to which any course or condition of thing leads, or which is obtained by any pro- cess or operation; consequence or effect.” Black’s Law Dictionary 1478 (rev 4th ed 1968). Similarly, it defined the verb version of “result” as “[t]o proceed, to spring, or arise, as a consequence, effect, or conclusion *  *  *.” Id. Cite as 372 Or 438 (2024) 453 B.  Context Those indications are supported by the immediate context of the phrase “as a result of.” Notably, the legisla- ture did not modify “result.” ORS 161.295(1) simply provides that “[a] person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in crim- inal conduct,” the person lacked the requisite capacity. The statute does not say, for example, that “a person is guilty except for insanity if, solely as a result of mental disease or defect *  *  *.” Nor does it say that “a person is guilty except for insanity if, primarily as a result of mental disease or defect *  *  *.” Nothing in the text of ORS 161.295(1) suggests that a defendant’s lack of capacity can be “a result of” the defen- dant’s mental disease or defect only if the mental disease or defect rises to a certain degree or amount or accounts for a certain portion of the defendant’s lack of capacity. The provi- sion does not require, for example, that a defendant’s mental disease or defect must be a major cause or an independently sufficient cause of the defendant’s lack of capacity. The fact that, in ORS 161.295(1), the legislature did not modify “result” with a quantitative descriptor is signif- icant on its own. But its significance is heightened because another subsection of the same statute, ORS 161.295(2), shows that, when the legislature first enacted the GEI stat- ute in 1971 and when it later amended it in 1983, it was aware that a person’s mental condition can result from a com- bination of causes. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993) (a statutory term’s context includes other sections of the same statute). As we explained in Meiser II, when ORS 161.295 was originally enacted in 1971, subsection (2) of the stat- ute limited the definition of “mental disease or defect” by providing that “the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated crimi- nal or otherwise antisocial conduct.” Or Laws 1971, ch 743, § 36 (emphasis added). The purpose of that exclusion was “to prevent ‘recidivists’ from ‘qualify[ing] for the defense merely by being labeled psychopaths.’  ” Meiser II, 369 Or at 360 (quoting Commentary § 36 at 35 (brackets in Meiser II; emphasis added)). In 1983, the legislature amended ORS 454 State v. Meiser 161.295(2) to add an exclusion for “any abnormality consti- tuting solely a personality disorder.” Or Laws 1983, ch 800, § 1 (emphasis added). The exclusions in ORS 161.295(2) show that, in both 1971 and 1983, the legislature was alert to the fact that an “abnormality” can result from a combination of conditions. They also show that the legislature intended to prevent abnormalities resulting “only” or “solely” from cer- tain conditions—specifically, psychopathy and personality disorders—from being the basis for a GEI defense. They do not, however, show that the legislature intended to prevent abnormalities resulting from a combination of conditions from being the basis of a GEI defense. If the legislature had intended to limit the availability of the GEI defense to situations where a defendant’s lack of capacity was “only” or “solely” the result of the defendant’s mental disease or defect, it could have. Likewise, if it had wanted to limit the availability of the defense to situations where the defen- dant’s lack of capacity was an “independent” result of the defendant’s mental disease or defect, it could have. The broader context of ORS 161.295 further indi- cates that “result” should be given its plain, natural, and ordinary meaning and that a “result” may flow from a com- bination of conditions. As mentioned, ORS 161.295 was enacted as part of the Oregon Criminal Code. Or Laws 1971, ch 743, § 36. As we will explain, this court has already construed similar causation requirements in other statutes enacted as part of the code and held both that the term “cause” should be given its plain, natural, and ordinary meaning and that, in situations where multiple acts com- bine to bring about a result, each act is a “cause.” We did so first in State v. Murray, 343 Or 48, 162 P3d 255 (2007), and then in State v. Turnidge (S059155), 359 Or 364, 374 P3d 853 (2016). In Murray, we construed ORS 163.165, which pro- vides that a person commits third-degree assault if the per- son “[r]ecklessly causes serious physical injury to another by means of a deadly or dangerous weapon.” (Emphasis added.) The parties disputed the meaning of “cause.” Murray, 343 Or at 51. We noted that the legislature had not defined the Cite as 372 Or 438 (2024) 455 term and that it was a term of common usage, and we looked to the term’s dictionary definition: “The word ‘cause’ is not defined in the criminal statutes. It is, however, a word of common usage, which we presume the legislature intended to be given its plain, natural, and ordinary meaning. The dictionary defines the verb ‘cause’ as follows: ‘1: to serve as a cause or occasion of : bring into existence: MAKE (careless driving *  *  * accidents) *  *  * 2: to effect by command, authority or force.’ Webster’s [at 356].” Id. at 52 (first citation omitted; second ellipses in Murray). Accordingly, we ruled that a person “causes” serious physi- cal injury to another if the person “brings about, makes, or effects by force the serious injury of another person.” Id. We applied that rule to the facts of the case. In Murray, the defendant had been charged with third-degree assault for injuring the victim in a car crash. Id. at 51. The defendant owned an automobile shop that converted conven- tional cars into race cars, and the victim was his employee. Id. at 50. The car crash occurred while the defendant was test driving a race car and the victim was voluntarily riding with him. Id. At trial, the defendant moved for a judgment of acquittal on the third-degree assault charge, asserting that he was not criminally responsible for the victim’s inju- ries because the victim was a voluntary participant in the reckless activity that led to his injuries. Id. at 51. This court rejected that argument, ruling that a person commits third- degree assault if the person recklessly causes serious physi- cal injury to another person, “no matter the role of the other person in the reckless conduct.” Id. at 52. This court followed Murray in Turnidge. In that case, we construed the criminal homicide statute, ORS 163.005(1), which applies when a person “causes the death of another.” We reviewed the text, context, and legislative history of the homicide statute, and we concluded that the term “cause” should be given its plain, natural, and ordi- nary meaning. Turnidge, 359 Or at 483. As in Murray, we derived that meaning from the term’s dictionary definition. Id. at 474-77. We then applied that meaning to the facts of the case and again concluded that a result may follow from a combination of conditions. Id. at 483. 456 State v. Meiser In Turnidge, the defendant was charged with multi- ple crimes, including aggravated murder, attempted aggra- vated murder, and assault. Id. at 380. The charges were based on an incident during which a bomb was found outside a bank and then brought inside the bank, where it exploded when law enforcement officers attempted to disarm it. Id. at 367-69. The explosion killed two persons and injured two others. Id. at 369. The state’s theory was that the defendant had helped build and place the bomb. Id. at 481-82. The state did not contend that the defendant had detonated the bomb; its evidence suggested that the bomb was detonated as a result of how it was handled after it was found or as a result of a stray radio signal. Id. at 458-59. The defen- dant moved for a judgment of acquittal on the ground that the state’s evidence was insufficient to prove that he had caused the deaths and injuries. Id. at 454-55. On review, we rejected that argument, holding that the state’s evidence of the defendant’s conduct provided an ample basis for the jury to find that he had caused the deaths and injuries, and we noted that the defendant’s role “did not have to be the last link in the chain, or the only one, for the jury to make that determination.” Id. at 482. Later, when discussing jury instructions on causation, we stated that “a defendant’s con- duct ‘causes’ a result if it brings about, makes, or effects by force that result, ‘no matter the role’ of another person and regardless of [the] other person’s reckless participation.” Id. at 483 (quoting Murray, 343 Or at 52); see also id. (explain- ing that, for the purposes of the criminal statutes at issue, causation does not “depend on a comparison of a defendant’s causal role with that of the victim or some third party”). To summarize, the context of the phrase “as a result of” in ORS 161.295(1) indicates that “result” should be given its plain, natural, and ordinary meaning. It shows that the legislature was alert to the fact that conditions can combine to cause a lack of capacity and that it knew how to use quantitative descriptors to address situations involving a single condition. The fact that the drafters did not use a quantitative descriptor to modify “result” indicates that the legislature did not intend to impose a quantitative require- ment on the connection between a defendant’s mental dis- ease or defect and their lack of capacity. In addition, the GEI Cite as 372 Or 438 (2024) 457 defense is part of the Oregon Criminal Code, and Murray and Turnidge show that, when construing statutes in the code, this court has given a similar term, “cause,” its plain, natural, and ordinary meaning. Murray and Turnidge also illustrate that multiple factors may combine to bring about a result, and, if they do, each of the factors is a “cause.” Murray, 343 Or at 52; Turnidge, 359 Or at 482-83. And they illustrate that whether a factor is a “cause” does not depend on its relative contribution to bringing about the result. Murray, 343 Or at 52; Turnidge, 359 Or at 483. C.  Legislative History The legislative history does not indicate otherwise. The commentary to the final draft of the Oregon Criminal Code states that section 36 of the final draft, which became ORS 161.295, was based on section 4.01 of the Model Penal Code (MPC). Commentary § 36 at 34. The parties have not identified, and we have not found, anything in the legisla- tive history of either the Oregon Criminal Code or the MPC that indicates that the drafters of either code intended “result” to have anything but its plain, natural, and ordi- nary meaning. They have not identified, and we have not found, any discussions of the nature of the connection that must exist between a defendant’s mental disease or defect and their lack of capacity in order for the GEI defense to apply. Nothing in the legislative history indicates that the legislature intended to make the GEI defense available only if a defendant’s mental disease or defect rose to a certain degree or amount or accounted for a certain portion of their lack of capacity. In other words, nothing in the legislative history indicates that the legislature intended to attach a quantitative requirement to the connection between a defen- dant’s mental disease or defect and their lack of capacity. If we were to attach one, we would be adding words to the stat- ute and wholly speculating about what the degree, amount, or portion should be. It is true, of course, in both 1971 and 1983, the leg- islature intended to put some limits on the GEI defense. They did so through ORS 161.295(2), which narrows the definition of “mental disease or defect.” But, as we explained in Meiser II, the legislative history from 1971 shows that 458 State v. Meiser the legislature did not intend to preclude defendants who suffered from both a mental disease or defect and another condition from being able to use the defense. Meiser II, 369 Or at 360. As we further explained, the 1983 legisla- ture “intended to retain that balanced approach when it amended subsection (2) to also exclude ‘personality disor- ders’ from the definition of ‘mental disease or defect.’  ” Id. That additional exclusion narrowed the availability of the GEI defense, but it did not make the defense “so narrow as to require that a person who can demonstrate the requisite lack of substantial capacity ‘as a result of mental disease or defect’ also prove that a co-occurring personality disorder in no part contributed to the incapacity.” Id. at 360-61. Just as we have not found anything in the legisla- tive history of ORS 161.295 to indicate that the legislature intended a defendant’s mental disease or defect to be the sole cause of their lack of capacity, we have not found any- thing in the legislative history to indicate that the legisla- ture intended a defendant’s mental disease or defect to be an independently sufficient cause of their lack of capacity. Thus, nothing in the legislative history leads to a conclusion other than the one that follows from the plain text and con- text of ORS 161.295. To the contrary, the legislative history reinforces the idea that, in both 1971 and 1983, the legisla- ture was aware that conditions can combine to result in a lack of capacity and that, contrary to the Court of Appeals’ conclusion in Meiser III, it did not intend to limit the avail- ability of the GEI defense to situations where a defendant’s mental disease or defect, “standing alone,” was sufficient to bring about the requisite lack of capacity. D.  Summary and Conclusion As we have explained, the plain text of ORS 161.295(1) states that a person is “guilty except for insan- ity” if, “as a result of” their mental disease or defect, the person “lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.” To determine the meaning of “as a result of,” we have applied our established method of statu- tory interpretation and examined the text, context, and leg- islative history of ORS 161.295(1). Gaines, 346 Or at 171-72. Cite as 372 Or 438 (2024) 459 Each of those indicators of legislative intent support giving “result” its plain, natural, and ordinary meaning: “conse- quence” or “effect.” First, the text. The legislature did not define “result,” and it is a term of common usage that means, as relevant here, “consequence” or “effect.” Webster’s at 1937. And a “consequence” or “effect” may flow from a “set of con- ditions.” Id. at 482. Multiple aspects of the context of ORS 161.295(1) support giving “result” its plain, natural, and ordinary meaning. The legislature did not modify the term “result” in ORS 161.295(1); it did not include any quantitative limita- tions on the term. The legislature’s failure to do so is signif- icant on its own, but its significance is heightened because the legislature used such limitations—specifically, “only” and “solely”—in ORS 161.295(2). Altogether, ORS 161.295 shows that the legislature intended the GEI defense to be available if a defendant’s lack of capacity was a consequence or effect of the defendant’s mental disease or defect, even if it was also the consequence or effect of another condition. In addition, giving “result” its plain, natural, and ordinary meaning and recognizing that a result may flow from a com- bination of conditions is consistent with what this court did in Murray and Turnidge when construing a similar term in criminal statutes that were also enacted as part of the Oregon Criminal Code. In those cases, this court used the dictionary definition of “cause” and held that multiple fac- tors may combine to bring about a result, and that each is a “cause,” regardless of the relative contribution of each factor. Murray, 343 Or at 52; Turnidge, 359 Or at 482-83. The legislative history is consistent with the text and context. It indicates that the legislature intended to impose some limits on the availability of the GEI defense but that it did not intend to impose a quantitative require- ment on the connection between a defendant’s mental dis- ease or defect and their lack of capacity. Consequently, we reject the Court of Appeals’ conclu- sion that a defendant’s mental disease or defect must be “suf- ficient by itself” to bring about the requisite lack of capacity. 460 State v. Meiser E.  Response to Justice Bushong’s Concurrence We now address Justice Bushong’s concurrence, in which he argues that (1) we could have resolved the meaning of “as a result of” in Meiser II; (2) our conclusion that “result” should be given its plain, natural, and ordinary meaning fails to provide sufficient guidance to mental health experts and trial courts; and (3) we should interpret “as a result of” to require application of a “substantial factor” causation standard he draws from civil negligence cases decided in the 1960s and 1970s. ___ Or at ___, ___, ___ (Bushong, J., con- curring) (slip op at 4:8 - 5:5, 6:6 - 7:2, 12:13 - 13:7).6 As we will explain, (1) in Meiser II, we did not address the issue that we resolve in this opinion because the Court of Appeals had not addressed it and the parties had not briefed it; (2) giving “result” its plain, natural, and ordinary meaning is not con- fusing and is consistent with what we have done when con- struing required causal connections in other criminal cases; and (3) we should not import the concurrence’s “substantial factor” causation standard because (a) this court has already stated that civil negligence standards of causation are an “uneasy fit in the criminal law context,” Turnidge, 359 Or at 472 n 62; (b) the concurrence’s assertion that, when the legislature adopted the Oregon Criminal Code, it intended to import a “substantial factor” causation standard from civil negligence law and reject a “but for” causation standard is not supported by the legislative history that the concur- rence relies on; and (c) the concurrence’s “substantial factor” causation standard (i) would cause uncertainty and confu- sion because the term “substantial factor” is not defined and has been understood in different ways, at different times and in different contexts, and (ii) could be misleading because it could suggest a quantitative requirement or a comparison of the relative contributions of different factors, which—as the 6  We note that no party has advocated for use of a “substantial factor” test in this case. The state has argued for an “independently sufficient” test: “[T]o qualify for the GEI defense, a defendant must prove that his mental disease or defect was independently sufficient to bring about the requisite lack of substan- tial capacity.” Defendant has argued that we give “result” its dictionary defi- nition: Based on the “plain-meaning/ordinary-usage definition of ‘result,’  ” the legislature “intended merely that the substantial incapacity be a consequence, effect, issue, or conclusion proceeding or arising from mental disease or defect.” Cite as 372 Or 438 (2024) 461 text, context, and legislative history just discussed show— the legislature did not intend. 1.  The Meiser II remand was appropriate. The concurrence appears to argue that we should have resolved the meaning of “result” in Meiser II. ___ Or at ___ (Bushong, J., concurring) (slip op at 4:8 - 5:5). We dis- agree. In Meiser II, the issue on review was whether the Court of Appeals had erred in ruling that the GEI defense is not available if a defendant’s lack of capacity resulted from both a mental disease or defect and a personality disorder. Meiser II, 369 Or at 349-50 (identifying issue on review); id. at 361 (same). Accordingly, the parties’ briefs focused on whether the legislature intended to allow “combined causation” at all. They did not address whether, if the legislature intended to allow “combined causation,” it also intended to require a certain degree of causal contribution from a defendant’s mental disease or defect. We resolved the issue presented by the Court of Appeals opinion and the parties’ briefing, hold- ing that the Court of Appeals had “erred in concluding that defendant could prevail on his GEI defense only if he proved that his co-occurring personality disorder played no part in causing the requisite lack of substantial capacity.” Meiser II, 369 Or at 361 (emphasis in original). We then explained that “[t]hat conclusion answers the question that this court allowed review to address, but it does not fully resolve whether defendant was entitled to prevail on his GEI defense.” Id. That was, in part, because the Court of Appeals had not considered—“except under the ‘sole cause’ test” that we rejected—“whether the evidence compelled a finding that defendant proved that he had expe- rienced any qualifying incapacity ‘as a result of mental dis- ease or defect.’  ” Id. We observed that, “[a]s the state emphasizes, any answer to [that] question may turn on whether the phrase ‘as a result of’ in ORS 161.295(1) means that the qualifying ‘mental disease or defect’ must be sufficient, on its own, to bring about the requisite incapacity, or whether the legislature intended to require some lesser degree of causal contribution from the qualifying ‘mental disease or defect.’  ” 462 State v. Meiser Id. We also observed that defendant had not argued for a specific standard of causation and that the amicus curiae had argued for a “but for” standard of causation, that is, “but for” the mental disease or defect the incapacity would not have occurred. Id. at 361 n 10. We took no position on the issue, and we remanded the case to the Court of Appeals, so that the parties and the Court of Appeals could address it, id. at 361-62, which they did. On remand, the parties submitted supplemental briefing. Based on that briefing, the Court of Appeals issued Meiser III, in which it ruled that, in order to prove the GEI defense, a defendant must show that their mental disease or defect was an independently sufficient cause of their lack of capacity. 323 Or App at 683. We allowed review to address that new ruling, and we have done so in this opinion. The concurrence comments that, “if the dictionary definition alone is sufficient,” we could have just said so in Meiser II. ___ Or at ___ (Bushong, J., concurring) (slip op at 4:18 - 5:2). To the extent that that comment is critical of our reliance on the dictionary definition, we note that, when construing a statutory term of common usage, “we gener- ally assume that the legislature intended to use the term in a manner consistent with its ‘plain, natural, and ordinary meaning,’ and we often consult dictionaries for guidance in determining what the legislature would have understood a term to mean.” Kinzua Resources, 366 Or at 681. Of course, “[i]n construing statutes, we do not simply consult dictio- naries and interpret words in a vacuum. Dictionaries, after all, do not tell us what words mean, only what words can mean, depending on their context and the particular man- ner in which they are used.” State v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011) (emphasis in original). Accordingly, we apply our method of statutory construction and look beyond the text at issue to its context and legislative history. Id. at 96, 101; Gaines, 346 Or at 171-72. We have done that here, and our conclusion regarding the meaning of “result” is sup- ported by those sources. The concurrence asserts that, in Meiser II, we implicitly suggested that “result” should not be given its dic- tionary definition. ___ Or at ___ (Bushong, J., concurring) Cite as 372 Or 438 (2024) 463 (slip op at 5:6-8). We disagree with that reading. Nothing in Meiser II was intended to prejudge issues that the parties and the Court of Appeals had not yet addressed. The concurrence points out that, in Meiser II, we quoted the definition of “result.” ___ Or at ___ (Bushong, J., concurring) (slip op at 5:2-5). That is true. We did so in the context of explaining that the definition of “result” did not support the Court of Appeals’ conclusion that a defen- dant’s mental disease or defect had to be the sole cause of the defendant’s lack of capacity. We stated: “In ordinary usage, the term ‘result’ is not limited to the concept of sole causation. See Webster’s at 1937 (defining noun ‘result,’ most pertinently, as ‘something that results as a consequence, effect, issue, or conclusion’).” Meiser II, 369 Or at 359-60. That was the full extent of our reference to the dictionary definition of “result.” We used the definition in our analysis of the statutory construction issue presented in Meiser II. We were not addressing any other statutory construction issue. In fact, we explicitly stated that, although, as a matter of judicial efficiency, “this court sometimes resolves issues beyond those as to which we allowed review, rather than remanding to the Court of Appeals to resolve remaining issues,” we were declining to do so because “the remaining statutory construction issue would benefit from consideration in the first instance by the Court of Appeals.” Id. at 361-62. Thus, contrary to the concurrence’s assertion, our reference to the dictionary defi- nition of “result” was not an implicit suggestion that the term should not be given its plain, natural, and ordinary meaning. We used that meaning in our Gaines analysis of the question presented then, just as we have used it in our Gaines analysis of the question presented now. 2.  The plain meaning of “result” is clear and using it is consistent with case law. The concurrence’s second argument is that our opinion does not clearly identify the test that the legislature intended and does not provide adequate guidance to mental health experts and trial courts. ___ Or at ___ (Bushong, J., concurring) (slip op at 6:6 - 7:2). We disagree. We are giving 464 State v. Meiser the term “result” its plain, natural, and ordinary meaning, taken from its dictionary definition. We do not think that that meaning is unclear. It is straightforward, and fact- finders—whether judges or juries—will be able to apply it. Moreover, using the dictionary definition is consistent with our case law. As recounted above, ___ Or at ___ (slip op at 19:2 - 21:19), we did the same thing with “cause” in both Murray and Turnidge. Murray, 343 Or at 52 (applying dic- tionary definition of “cause”); Turnidge, 359 Or at 482-83 (same). 3.  It is not appropriate to import the concurrence’s “sub- stantial factor” causation standard into the GEI statute. Instead of giving “result” its plain, natural, and ordinary meaning, the concurrence would hold that, to deter- mine whether a defendant’s lack of capacity was “a result of” their mental disease or defect, a court must apply a “sub- stantial factor” test for causation. ___ Or at ___ (Bushong, J., concurring) (slip op at 3:5-8). More specifically, it appears that the concurrence would hold that a court must apply the “substantial factor” test used in civil tort cases decided in the 1960s and 1970s. ___ Or at ___ (Bushong, J., concurring) (slip op at 12:13 - 13:7). We do not believe it is appropriate to import the concurrence’s “substantial factor” causation standard into the GEI statute for three reasons. a.  This court has cautioned against importing civil law tort principles into criminal law. First, in Turnidge, we cautioned against import- ing civil law tort principles into criminal law. 359 Or at 472 n 62. We noted that “long-standing observations” by scholars “point out that civil law tort principles of causation are an uneasy fit in the criminal law context,” both because tort and criminal law involve different policy objectives and because tort law issues are generally governed by common law, while criminal law issues are generally governed by statute. Id. Those observations predate the legislature’s enactment of the Oregon Criminal Code. See id. (citing Paul K. Ryu, Causation in Criminal Law, 106 U Pa L Rev 773, 773, 803 (1958) for the proposition that “causation has received ‘scant Cite as 372 Or 438 (2024) 465 attention’ in area of criminal law, as opposed to civil tort law; in criminal law field, courts have not applied a uniform law of causation, and principles should not necessarily track civil law principles, because the policy objectives of tort and criminal law are not the same”). b.  The concurrence’s “substantial factor” test is not supported by legislative history. Second, the legislative history of ORS 161.295 does not support the concurrence’s claim that the legislature intended to adopt a “substantial factor” causation standard. As noted, nothing in the legislative history of either the Oregon Criminal Code or the MPC indicates the nature of the connection that must exist between a defendant’s men- tal disease or defect and their lack of capacity. And, the term “substantial factor” does not appear anywhere in the legis- lative history of the GEI provision to the Oregon Criminal Code. In fact, the term does not appear anywhere in the commentary to the Oregon Criminal Code. Nothing in the legislative history of the GEI statute indicates that the leg- islature intended to import a “substantial factor” causation standard from civil negligence law into the GEI statute. To support its position, the concurrence relies on the fact that the drafters of both the MPC and the Oregon Criminal Code disfavored the rule regarding insanity set out in Durham v. United States, 214 F2d 862, 874-75 (DC Cir 1954), abrogated by United States v. Brawner, 471 F2d 969 (DC Cir 1972). But, as we will explain, Durham did not concern the standard of causation. As we have explained, the GEI statute was based on section 4.01 of the MPC. Commentary § 36 at 34. The commentary to that section of the Oregon Criminal Code explains that both the MPC and Oregon drafters declined to adopt the Durham rule. The Durham rule was that “an accused is not crimi- nally responsible if his unlawful act was the product of men- tal disease or defect.” Durham, 214 F2d at 874-75 (emphasis added). Thus, under the Durham rule, whether a defendant was criminally responsible turned on whether their mental disease or defect caused their conduct, not whether it caused 466 State v. Meiser a lack of capacity. That was a problem because, under the rule, a defendant was not criminally responsible if their conduct was a product of their mental disease or defect, regardless of whether they had the capacity to appreciate the criminality of their conduct or conform their conduct to the requirements of the law. To illustrate the problem, the MPC drafters pro- vided a hypothetical: a situation where a person murders a wealthy relative because, as a result of a mental disease or defect, the person believes that they will inherit a large amount of money. Model Penal Code § 4.01 comment 3 at 173 n  24 (Official Draft and Revised Comments 1985). Under the Durham rule, the person could raise a defense based on their mental disease or defect because there would be a causal connection between the mental disease or defect and their criminal conduct, even if they had been fully capable of understanding the criminal nature of their conduct and conforming their conduct to the requirements of the law. The MPC and Oregon drafters rejected the Durham rule because of that problem. Model Penal Code § 4.01 comment 5 at 159 (Tentative Draft No. 4 1955); Commentary § 36 at 35-36. They wanted to make sure that there was a causal connection between a person’s mental disease or defect and the requisite lack of capacity, and they did that by provid- ing that a person is GEI when, as a result of a mental dis- ease or defect, the person lacks the requisite capacity. Model Penal Code §  4.01(1) (Proposed Official Draft 1962); ORS 161.295(1). Thus, the drafters’ rejection of the Durham rule says nothing about the requisite standard of causation. The rule did not set out any standard of causation, and the draft- ers’ rejection of it does not provide any support for the con- currence’s conclusion that the drafters intended to adopt a “substantial factor” causation standard. The concurrence also mentions United States v. Currens, 290 F2d 751, 774 (3rd Cir 1961), to which the Oregon drafters referred. ___ Or at ___ n 13, ___, ___ n 16 (Bushong, J., concurring) (slip op at 19:5 n  13, 21:7, 21:7 n 16). In Currens, the court stated that “[t]he jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked Cite as 372 Or 438 (2024) 467 substantial capacity to conform his conduct to the require- ments of the law which he is alleged to have violated.” 290 F2d at 774. That rule is essentially the same as the rule in ORS 161.295. It simply provides that the defendant’s lack of capacity must result from the defendant’s mental disease or defect. And, like ORS 161.295, it does not specify an amount of causation. It does not say, for example, that the lack of capacity must result solely from, primarily from, or substan- tially from the mental disease or defect. The Currens court explained that its rule allows for consideration of the “total mental condition.” 290 F2d at 774. That supports our interpretation of “result” as meaning a “consequence” or “effect.” Giving “result” its plain, natural, and ordinary meaning allows for consideration of a defen- dant’s “total mental condition,” because, as discussed above, a “result” may flow from “a set of conditions.” Webster’s at 482. Therefore, a defendant raising a GEI defense can show the required connection between their mental disease or defect and their lack of capacity by showing that their mental disease or defect was a condition that contributed to their lack of the requisite capacity. c.  The concurrence’s test is unclear, would cause uncertainty and confusion, and could be misleading. Third, although the concurrence asserts that using the “substantial factor” causation standard would provide clarity, ___ Or at ___, ___, ___ (Bushong, J., concurring) (slip op at 1:18-19, 7:3-6, 17:2-9), it is difficult to see how that would be the case because the concurrence does not define “substantial factor” causation. This court had not defined the term before 1971, nor had Black’s Law Dictionary. In fact, this court has still not defined the term. The concur- rence notes that the term has been used in civil negligence cases and employment discrimination cases. ___ Or at ___ (Bushong, J., concurring) (slip op at 9:1 - 12:2). In both of those contexts, the commentaries to the uniform jury instructions relating to the term state that this court has not defined “substantial factor.” The comment to the Uniform Civil Jury Instruction on substantial factor causation in the negligence context, UCJI 23.02, states that “the UCJI Committee could 468 State v. Meiser find no Oregon case defining substantial factor in this con- text.” Comment to UCJI 23.02, Oregon State Bar Committee on Uniform Civil Jury Instructions (Dec 2014) (emphasis in original). Likewise, the comment to the “substantial factor” instruction in the employment discrimination context, UCJI 59A.03, states that “[t]he Oregon Supreme Court has estab- lished the ‘substantial factor’ standard but has not defined precisely what substantial factor means.” Comment to UCJI 59A.03, Oregon State Bar Committee on Uniform Civil Jury Instructions (Dec 2011) (emphasis in original). Not only is the term “substantial factor” undefined, it also has been used in different ways at different times and in different contexts. See Burrage v. United States, 571 US 204, 217, 134 S Ct 881, 187 L Ed 2d 715 (2014) (“The judicial authorities invoking a ‘substantial’ or ‘contributing’ factor test in criminal cases differ widely in their application of it.”); see also Restatement (Third) of Torts § 26 comment j (2010) (“The ‘substantial factor’ rubric is employed alter- nately to impose a more rigorous standard for factual cause or to provide a more lenient standard.”). The concurrence relies heavily on civil negligence cases from the 1960s and 1970s. ___ Or at ___ (Bushong, J., concurring) (slip op at 9:1 - 10:13). It asserts that “a sub- stantial factor test was widely used” in those cases, and it further asserts that the legislature intended to import that causation standard into the GEI statute when it enacted the Oregon Criminal Code in 1971. ___ Or at ___, ___ (Bushong, J., concurring) (slip op at 12:13 - 13:1, 18:3 - 21:13). But, as discussed above, nothing in the legislative history indicates that the legislature intended to do so. And there is reason to believe that they did not, given that they were creating a statutory code, as opposed to relying on common law, and given the different policy objectives of civil negligence and criminal law. See Turnidge, 359 Or at 472 n 62. Moreover, even assuming for the sake of argument that the legislature intended to import “substantial factor” causation, it is not clear what they would have understood “substantial factor” to mean because, as we will explain, that term was used in different ways during that time period, including in the authorities cited by the concurrence. Cite as 372 Or 438 (2024) 469 It is important to understand that in the 1960s, civil negligence law was evolving. Commentators and courts were trying to disentangle factual causation, which asks whether the defendant’s conduct was a cause of the plaintiff’s injury, from the other policy limits on the scope of liability that had been included within the element of proximate or legal cause. See Turnidge, 359 Or at 471 (“Legal or proxi- mate cause *  *  * expresses a policy judgment as to whether conduct that factually caused harm should result in liability or responsibility. The idea generally is that some conduct, although an actual cause of harm, nevertheless should not result in liability or responsibility for that harm.” (Emphasis in original.)); see also Stoneburner v. Greyhound Corp. et al, 232 Or 567, 572, 375 P2d 812 (1962) (“  ‘Legal cause,’ or, ‘prox- imate cause,’ in its larger aspect, covers, in general, all of the limitations placed by the law upon the responsibility of a person for his negligent conduct.” (Citing W. Page Keeton et al, Prosser and Keeton on The Law of Torts § 9, 252 (2d ed 1955).)). The concurrence asserts that the term “substan- tial factor” was used to refer to factual causation. ___ Or at ___, ___, ___ (Bushong, J., concurring) (slip op at 9:3, 9:10, 12:14). But that was not how it was always used in the 1960s and 1970s. At times, this court used it to cap- ture legal or proximate cause and concepts of relativity. For example, in Sworden v. Gross, 243 Or 83, 86, 409 P2d 897 (1966), this court stated that whether “proximate cause” existed depended on whether a defendant’s negligence was “a substantial factor in bringing about the injury or damage in question.” Similarly, in Hills v. McGillvrey, 240 Or 476, 482, 402 P2d 722 (1965), this court equated “substantial” and “proximate” cause. See also Furrer v. Talent Irrigation District, 258 Or 494, 511, 466 P2d 605 (1970) (stating that “[t]he term ‘substantial factor’ expresses a concept of relativ- ity which is difficult to reduce to further definiteness”). Moreover, even when the term “substantial factor” was used in connection with factual causation, it was under- stood in different ways, as the authorities cited by the con- currence illustrate. Some of the authorities regarded “but for” causation as overinclusive and preferred “substantial 470 State v. Meiser factor” causation as an alternative that excluded some causes that would satisfy the “but for” test. ___ Or at ___ (Bushong, J., concurring) (quoting Restatement (Second) of Torts § 431 comment a (1965)) (slip op at 12:8-12). But other authorities did not view the “substantial factor” test as excluding any “but for” causes and viewed the “substantial factor” test as an improvement in rare situations where conduct should satisfy the causation element but would fail the “but for” test, such as when there were two independently sufficient causes. ___ Or at ___ (Bushong, J., concurring) (citing Haas v. Estate of Mark Steven Carter, 370 Or 742, 750, 525 P3d 451 (2023)) (slip op at 8:8-13). Thus, even assuming that we should look to authorities from the 1960s and 1970s, those authorities used the term “substantial factor” in different ways. That fact would have been a reason for the legislature not to import the term into the criminal law. The concurrence also cites post-1971 cases to sup- port its view that the GEI statute requires “substantial fac- tor” causation. ___ Or at ___, ___, ___ (Bushong, J., concur- ring) (slip op at 8:8 - 9:8, 10:14 - 12:2, 16:9 - 17:9). Of course, those cases cannot inform our understanding of what the 1971 legislature meant. The concurrence uses them to say that juries have been able to apply “substantial factor” causation. But those cases apply different versions of “sub- stantial factor” causation. If “substantial factor” causation states different standards, then it is not a clear statement of any standard. For example, sometimes “substantial factor” causation is understood as “but for” causation. See, e.g., UCJI 59A.03 (“A substantial factor is one that made a difference in an employment decision; that is, the decision would not have been made without it. It need not be the only factor.”); Comment to UCJI 59A.03 (noting that the Court of Appeals has described the standard as a “but for” test). Sometimes it is understood to exclude remote or trivial but-for causes. See, e.g., California Civil Jury Instructions, CACI No. 430 (2024) (defining “substantial factor” as a cause that is “more than a remote or trivial factor”). And sometimes it is understood to supplement “but for” causation to capture conduct that should satisfy the causation element but would fail the “but Cite as 372 Or 438 (2024) 471 for” test. See, e.g., Turnidge, 359 Or at 470 n 61 (the “sub- stantial factor” test applies in those circumstances where the “but for” test “provides an inadequate test of cause-in- fact” (citing W. Page Keeton et al, Prosser and Keeton on The Law of Torts § 41, 266 (5th ed 1984))); Haas, 370 Or at 750-51 (same). In addition, experience with “substantial factor” causation has led commentators and courts, including this one, to recommend tests and jury instructions that more directly address causation issues. Restatement (Third) § 27 comment b; Haas, 370 at 754 n 8, 757 n 9; see David W. Robertson, The Common Sense of Cause in Fact, 75 Tex L Rev 1765, 1776, 1780 (1997) (“[C]ourts seem to feel that it is appropriate to shift to the substantial factor vocabu- lary whenever the but-for test is proving difficult to work with for whatever reason. *  *  * When courts begin turning to the substantial factor vocabulary in a broader range of cases [beyond multiple sufficient causes], valuable precision of analysis is lost and nothing is gained.”). For example, in Haas, we noted that “a substantial factor instruction may not be the best way to instruct a jury on factual causation because of the ambiguity that it can create.” 370 Or at 757 n 9 (citing Keeton, Prosser and Keeton on The Law of Torts § 41 at 268 (recommending directly instructing the jury on multiple sufficient causes rather than using substantial factor instruction) and Restatement (Third) § 27 comment b); see also Haas, 370 at 754 n 8 (noting that, in situations where a “substantial factor” test has been used to capture causes that would fail the “but for” test, such as a “multi- ple-sufficient-causal-set situation,” it may be appropriate “to use an instruction that is specific to that situation rather than a typical but-for or substantial factor instruction.”). Finally, “a substantial factor instruction that informs a jury that, to find factual causation, it must find that a defendant’s negligence was a ‘substantial’ or ‘import- ant’ factor in causing the plaintiff’s injury may be mislead- ing.” Haas, 370 Or at 755. Such an instruction “can lead a jury erroneously to believe that it must search for a most significant causal factor, when that is not required. This court has made it plain that, in considering the 472 State v. Meiser factual cause element of a negligence claim, the jury is not to examine whether one defendant’s causal role was rela- tively more important than that of another defendant.” Id. at 755 (emphasis added). Thus, the concurrence’s “substantial factor” test would not provide the guidance that the concurrence says is needed. To the contrary, because “substantial factor” is undefined and can mean different things to different fact- finders, and because it may cause factfinders to believe that they must quantify and compare relative contributions of different causes, the “substantial factor” test could cause uncertainty and confusion, and it could cause factfinders to believe—contrary to what the legislature intended, as evi- denced by the text, context, and legislative history of the GEI statute—that the GEI defense does not apply unless a defendant proves that their mental disease or defect accounted for a specific (but unspecified) amount or portion of their lack of capacity. III.  CONCLUSION Because the Court of Appeals erred in its conclu- sion regarding what a defendant must show to prove the required connection between their mental disease or defect and their lack of capacity, we again remand the case to the Court of Appeals. The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. BUSHONG, J., concurring. The majority opinion concludes that the Court of Appeals erred in interpreting ORS 161.295, which required defendant to prove that his requisite lack of capacity occurred “as a result of “ a mental disease or defect to establish his “guilty except for insanity” (GEI) defense. I agree with the majority opinion that the “sufficient by itself” test adopted by the Court of Appeals to establish that causal link was not what the legislature intended, and I agree with the majority opinion that, to establish a GEI defense, a defendant’s mental disease or defect may combine with other conditions to cause Cite as 372 Or 438 (2024) 473 the required lack of capacity. I also agree that the appropriate disposition is to reverse and remand for further proceedings. I write separately because, in my view, the majority opinion’s conclusion that the dictionary definition of the word “result” is sufficient to define the causal link, neither reflects what the legislature intended nor provides enough guidance to mental health experts and trial courts when confront- ing the causation element of a GEI defense. Rather, when the legislature adopted ORS 161.295 as part of Oregon’s Criminal Code in 1971, I conclude that it intended for courts to use substantial factor causation—which was widely used by Oregon courts at that time—as the causal link required to establish the GEI defense. In my view, that interpretation provides appropriate guidance to mental health experts and trial courts in resolving this complex factual issue. The majority opinion declines to adopt substan- tial factor causation, concluding that (1) the absence of a “quantitative descriptor” in ORS 161.295(1) shows that the legislature did not intend to adopt substantial factor causation; (2) substantial factor causation is taken from civil negligence law, and we have cautioned against using civil negligence standards in the criminal law context; and (3) unlike the dictionary definition adopted by the major- ity opinion, substantial factor causation is unclear, would cause uncertainty and confusion, and could be misleading to juries. But the majority opinion reads too much into the absence of a “quantitative descriptor” in the statute, and not enough from the fact that substantial factor causation was widely used in civil negligence and other cases in the 1960s and 1970s. That fact alone suggests that the legisla- ture intended to adopt substantial factor causation when it enacted ORS 161.295(1) in 1971. Many juries have applied substantial factor causation, suggesting that it is not as unclear, uncertain, confusing, or misleading as the majority opinion states. Those criticisms fairly apply to the major- ity opinion’s approach because, although it defines the term “result,” it declines to endorse any established legal test for the causation element of the GEI defense. Ultimately, although the difference between our approaches boils down to the word “substantial,” the 474 State v. Meiser distance between them is relatively short. Under the major- ity opinion’s decision, a defendant asserting a GEI defense could establish the defense if the factfinder concludes that their lack of capacity was “a result” or “a consequence” or “an effect” of a mental disease or defect. That appears to be just another way of saying that the mental disease or defect must be a factor in causing the requisite lack of capacity. Under the approach set forth below, to establish the GEI defense, a defendant’s mental disease or defect must be a substantial factor in causing the requisite lack of capacity. As I will explain, “substantial factor” is no less clear than the dictionary definition of “result” adopted by the majority opinion, and it is more likely what the legislature intended when it enacted ORS 161.295(1) in 1971 against the backdrop of well-established Oregon law at that time. The test is also demonstrably well-suited to juries evalu- ating the factual complexity of co-occurring mental condi- tions. Accordingly, I would conclude that, to prevail on a GEI defense, a defendant must prove that, when they committed the offense at issue, their mental disease or defect was a substantial factor in bringing about their lack of substan- tial capacity to appreciate the criminality of their conduct or to conform their conduct to the requirements of law. And I would remand this case to the Court of Appeals to decide whether the evidentiary record compelled a finding that defendant was GEI under that standard. I begin with a brief explanation of why the majority opinion’s dictionary definition provides no more clarity than substantial factor causation before turning to why substan- tial factor causation is what the legislature likely intended when it adopted the GEI statute. THE MAJORITY OPINION’S DICTIONARY DEFINITION The first time we addressed this case, we deter- mined that the Court of Appeals had erred in State v. Meiser, 308 Or App 570, 481 P3d 375 (2021) (Meiser I), when it con- cluded that “defendant could prevail on his GEI defense only if he proved that his co-occurring personality disorder played no part in causing the requisite lack of substantial Cite as 372 Or 438 (2024) 475 capacity.” State v. Meiser, 369 Or 347, 361, 506 P3d 402 (2022) (Meiser II) (emphasis in original). We remanded to the Court of Appeals to address two unresolved questions: whether the evidence in the record compelled findings that (1) defendant lacked the substantial capacity either to appreciate the crim- inality of his conduct or to conform his conduct to the law; and (2) defendant lacked that requisite capacity “as a result of” a mental disease or defect. Id. We indicated that resolu- tion of the second question “may turn on whether the phrase ‘as a result of’ in ORS 161.295(1) means that the qualifying ‘mental disease or defect’ must be sufficient, on its own, to bring about the requisite incapacity, or whether the legisla- ture intended to require some lesser degree of causal contri- bution from the qualifying ‘mental disease or defect.’  ” Id. Thus, in Meiser II, we identified—but did not decide—another specific statutory interpretation issue regarding the GEI statute, directed the Court of Appeals to interpret that provision, and indicated that one inter- pretation that it could consider was the “sufficient by itself” standard that the Court of Appeals ultimately adopted. Now we reverse, indicating that the Court of Appeals erred in adopting an interpretation that we had suggested it could consider, and concluding that the dictionary definition of “result” is sufficient to define the necessary causal link.1 I do not see the point in allowing review twice in this case to interpret ORS 161.295(1) without clearly decid- ing what causal link the legislature intended. Nor do I think that a dictionary definition of the term “result” provides mental health experts and trial courts adequate guidance when they are confronted with a GEI defense. If the dictio- nary definition alone is sufficient, we could have just said so in our discussion of that definition when we first addressed the statutory interpretation question. See Meiser II, 369 Or at 360 (noting that the dictionary defines “result,” when used as a noun, to mean “something that results as a consequence, 1  In Meiser II, we explained that, to prove the affirmative defense of GEI under this statute, a defendant must establish that three elements existed at the time of engaging in criminal conduct: (1) a mental disease or defect; (2) a lack of substantial capacity either to appreciate the criminality of the conduct or to con- form the conduct to the requirements of law; and (3) “a causal link between the two.” 369 Or at 354. 476 State v. Meiser effect, issue, or conclusion” (citing Webster’s Third New Int’l Dictionary 1937 (unabridged ed 2002) (emphasis added))). The fact that we did not decide the issue when we cited the dictionary definition in Meiser II implicitly sug- gests that the definition of the term “result” does not resolve the issue.2 Moreover, “we have cautioned against relying solely on dictionary definitions to determine the meaning of statutory terms ‘without critically examining how the defi- nition fits into the context of the statute itself.’  ” Marshall v. Pricewaterhouse Coopers, LLP, 371 Or 536, 543, 539 P3d 766 (2023) (quoting State v. Gonzalez-Valenzuela, 358 Or 451, 461, 365 P3d 116 (2015)). That is because “[d]ictionary definitions lack context and often fail to capture the nuanced connota- tions conveyed by the normal use of a term in a particular context.” Gonzalez-Valenzuela, 358 Or at 461. “Dictionaries, after all, do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used.” State v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011) (emphasis in original). And where, as here, a statute uses an ordinary word that has a specific legal significance, we typically do not rely solely on a dictio- nary definition. See Kinzua Resources v. DEQ, 366 Or 674, 681, 468 P3d 410 (2020) (“[C]onsulting a dictionary does not help us to resolve what the legislature intended the term ‘controlling’ to mean.”). If the dictionary definition of the word “result” alone provided the clarity to which the majority opinion aspires, then perhaps it would suffice to adopt that stan- dard, notwithstanding our implicit suggestion in Meiser II that simply defining that term does not resolve the issue. But characterizing that definition as “plain, natural, and ordinary” does not make its meaning any clearer or more precise. A factfinder deciding whether a defendant’s lack of substantial capacity at the time of the charged offense was a 2  The majority opinion indicates we could not have resolved the meaning of “as a result of” in Meiser II because that would have “prejudged” an issue that the parties and the Court of Appeals had not yet addressed. ___ Or at ___ (slip op at 26: 8-10). But interpreting the statute is a legal question and we could have decided that question if we thought that a dictionary definition resolved the issue. My point is that our decision to remand in Meiser II after citing the dictionary definition of “result” suggests that we did not consider the dictionary definition of the statutory term to have provided an adequate and dispositive resolution. Cite as 372 Or 438 (2024) 477 “result,” “consequence,” or “effect” of the defendant’s mental disease or defect in the context of a co-occurring personality disorder must still make a difficult assessment of the com- plex interactions of overlapping disorders that have chal- lenged mental health experts for decades.3 I do not see why the majority opinion believes that telling jurors to apply the dictionary definition of “result” will leave them any more certain or less confused than telling them to assess whether the defendant’s mental disease or defect was a “substantial factor” in causing the requisite lack of capacity. As I will explain, juries in Oregon and nationwide have decided cases using substantial factor causation in var- ious contexts for many decades, demonstrating that substan- tial factor causation has not caused as much uncertainty or confusion as the majority opinion suggests. In my view, when the legislature adopted ORS 161.295(1) in 1971,4 it intended to place this difficult decision in the hands of juries by apply- ing an accepted legal test that was preferred by this court at the time. Additionally, a fair reading of the legislative history of the statute provides some support for the conclusion that the prevailing causation principle strikes the balance that the legislature intended when it enacted the GEI statute. I summarize this court’s case law applying substan- tial factor causation before turning to the legislative history of ORS 161.295. SUBSTANTIAL FACTOR CAUSATION Our case law analyzing causation in civil and crim- inal cases has generally addressed two different tests, “but for” and “substantial factor” causation. In most cases, as we have recognized, the two tests lead to the same result, and 3  As one commentator explained, “[t]he clinical ability to reliably distin- guish the functional impact of impairments arising from personality disorders from those of other co-occurring mental disorders *  *  * is simply not supported in clinical literature and experience.” Robert Kinscherff, Proposition: A Personality Disorder May Nullify Responsibility for a Criminal Act, 38 J L Med & Ethics 745, 750 (2010); see also Natalie Abrams, Definitions of Mental Illness and the Insanity Defense, 7 J Psychiatry & L 441, 448-50, 453 (1979) (describing the difficulty in “show[ing] a causal connection between a ‘mental illness’ and a criminal act”). 4  We noted in Meiser II that the causation test—”’as a result of mental dis- ease or defect at the time of engaging in criminal conduct’  ”—was included in the original statute that was enacted as part of the comprehensive Oregon Criminal Code of 1971. Meiser II, 369 Or at 356 (quoting Or Laws 1971, ch 743, § 36). 478 State v. Meiser we have often used a but-for test to establish causation under both criminal and civil law. State v. Turnidge (S059155), 359 Or 364, 470 n 61, 374 P3d 853 (2016) (noting that “[t]he two tests, in all but rare circumstances, lead to the same conclu- sion”); Joshi v. Providence Health System, 342 Or 152, 162, 149 P3d 1164 (2006) (pointing out that “the two standards produce the same result in most cases”). We recently stated, in Haas v. Estate of Mark Steven Carter, 370 Or 742, 751, 525 P3d 451 (2023), that “the substantial factor standard ‘has not supplanted’ the but-for standard of causation; rather, ‘the two standards apply to different types of negligence cases.’  ” (Quoting Joshi, 342 Or at 162). But we also recognized that there is “at least one situation in which a but-for instruction will not work.” Haas, 370 Or at 749. We explained that substantial factor causation was developed “primarily for that circumstance—the situa- tion in which the concurrent conduct of two or more causes combine to create an injury, and either one of those causes, operating alone, would have been sufficient to produce the same result.” Id. at 750. We made the same observation in Turnidge, 359 Or at 470 n 61, and in Joshi, 342 Or at 161. In Joshi we explained that substantial factor causation “is an improvement over the ‘but for’ rule for [that] special class of cases” and for “two other types of situations which have proved troublesome” for but-for causation. Id. (quoting W. Page Keeton, Prosser and Keeton on The Law of Torts 267-68 (5th ed 1984)). One situation is where “a simi- lar, but not identical result would have followed without the defendant’s act.” Id. The other is where “one defendant has made a clearly proved but quite insignificant contribution to the result, as where he throws a lighted match into a forest fire.” Id. In those situations, we continue to apply substantial factor causation. In addition, substantial factor causation was routinely used in Oregon and nationwide during the 1960s and 1970s to establish factual causation in civil negli- gence cases. See Elk Creek Management Co. v. Gilbert, 353 Or 565, 584, 303 P3d 929 (2013) (noting that, when the Oregon Residential Landlord and Tenant Act was enacted in 1973, “this court used the ‘substantial factor’ test to determine the Cite as 372 Or 438 (2024) 479 ‘cause in fact’ of a plaintiff’s injuries”); Restatement (Second) of Torts § 431 (1965) (stating that a person’s conduct causes harm to another if “his conduct is a substantial factor in bringing about the harm”).5 Before 1971, Oregon juries regularly used sub- stantial factor causation to decide factual causation under the common law. Dewey v. A. F. Klaveness & Co., 233 Or 515, 541, 379 P2d 560 (1963) (O’Connell, J., concurring) (explaining the causation standard as “a substantial factor in physically producing the injury”); Babler Bros. v. Pac. Intermountain, 244 Or 459, 464-65, 415 P2d 735 (1966) (adopting the views of the concurring opinion in Dewey and holding that “it is for the trier of fact to say whether (a) the conduct complained of was a substantial cause of the harm, and (b) whether the conduct in question was negligent”); Stewart v. Jefferson Plywood Co., 255 Or 603, 606, 469 P2d 783 (1970) (describing “[t]he scope of the liability of an actor whose conduct is a substantial factor in causing an injury”); Furrer v. Talent Irrigation District, 258 Or 494, 511, 466 P2d 605 (1970) (approving substantial factor jury instruction but noting that “[t]he term ‘substantial factor’ expresses a concept of relativity which is difficult to reduce to further definiteness”). In Furrer, we made it clear that “[t]he proper use of the substantial factor test” as adopted in the 1948 revision of the Restatement “has limited its application very definitely to the fact of causation alone.” Id. at 510-11 (quoting Prosser on Torts § 49, 297 (3d ed 1964)). And in Babler Bros., this court overruled prior precedent to make it clear that using substantial factor causation to establish factual causation “will, in most cases, avoid the conceptual debate about 5  Substantial factor causation is a factual question to be decided by juries. See Restatement (Second) § 434(2)(a). That distinguishes it from the Restatement’s concepts of “legal” or “proximate” causation. Under the Restatement’s approach, legal or proximate cause presented a legal question that would be decided by courts as a matter of law. Restatement (Second) §§ 431, 453 (explaining that “legal cause” requires a court to decide whether there is any rule of law that relieves a negligent actor from liability “because of the manner in which his negligence has resulted in the harm” even if a jury could find that the actor’s negligence was a substantial factor in causing the harm); see also Hills v. McGillvrey, 240 Or 476, 482, 402 P2d 722 (1965) (noting that the “difficulty” with the 1934 Restatement’s discussion of proximate cause “is that it assumes that it is the function of the court rather than of the jury” to determine proximate cause). 480 State v. Meiser ‘proximate’ cause, and will focus upon the proper function of the jury.” 244 Or at 464-65.6 We have also applied the substantial factor standard to determine factual causation in two different types of med- ical malpractice cases. In McEwen v. Ortho Pharmaceutical, 270 Or 375, 528 P2d 522 (1974), the plaintiff alleged that she was harmed after using oral contraceptives that had been manufactured by two different pharmaceutical companies. This court held that “[t]he respective liability of multiple defendants depends upon whether the negligence of each was a substantial factor in producing the complained of harm.” Id. at 418. In that context, we explained, the plaintiff need not show that each defendant’s negligence was “suffi- cient to bring about the plaintiff’s harm by itself;” rather, it was enough that each defendant “substantially contributed to the injuries eventually suffered by [the plaintiff].” Id. In the other medical malpractice case, Simpson v. Sisters of Charity of Providence, 284 Or 547, 588 P2d 4 (1978), this court held that the trial court did not err in instructing the jury on substantial factor causation to deter- mine whether plaintiff’s injuries were caused by a hospital’s negligent failure to take adequate x-rays of his spine. We explained that “[w]e have approved the use of the substan- tial factor formula in numerous cases” and concluded that, “  ‘as applied to the fact of causation alone, no better test has been devised.’  ” Id. at 560 (quoting W. Prosser, Law of Torts 240, § 41 (4th ed 1971)). Although substantial factor causation is no lon- ger used as widely in civil negligence cases, as we noted in Haas, Oregon courts still routinely use substantial factor causation in employment discrimination cases. See Holien v. Sears, Roebuck and Co., 298 Or 76, 90 n 5, 689 P2d 1292 6  The majority opinion states that civil negligence law was “evolving” during the 1960s, and that substantial factor causation was used in different ways, with the court at times using the term to include the concepts of legal or proximate cause. ___ Or at ___ (slip op at 37:6-10). That was true during the 1950s and 1960s. But using “substantial factor” causation to include legal or proximate cause—which are matters that would be decided by the court—was the reason that this court in Babler Bros. overruled an earlier case that had misapplied the causation analysis. 244 Or at 464. And by 1970, when we decided Furrer, we made it clear that the proper use of substantial factor causation was limited to factual causation. 258 Or at 510-11. Cite as 372 Or 438 (2024) 481 (1984) (stating that “[a] common law or statutory cause of action for wrongful discharge emanating from sex discrim- ination is restricted to cases when sex is for no legitimate reason a substantial factor in the discrimination”); Seitz v. State, 100 Or  App 665, 675, 788 P2d 1004 (1990) (“We use the ‘substantial factor’ test to determine whether [the] plaintiff’s protected activities were the cause of [the] defen- dant’s adverse [employment] actions.”).7 Substantial factor causation was preferred in the 1960s and 1970s in part because, intuitively, it made sense in a way that was easy to understand. See Leon Green, The Causal Relation Issue in Negligence Law, 60 Mich L Rev 543 (1962) (arguing for widespread use of the substantial factor test because it avoids the hypothetical thinking required under the but-for test and directly applies the kind of judg- ments implicit in causal decision-making, thus yielding a lower rate of error)8; Restatement (Second) § 431 comment a (substantial factor test captures the common-sense under- standing of causation, rather than the “philosophic sense” of causation represented by the but-for test, which could include events “so insignificant that no ordinary mind would think of them as causes”). In summary, our case law recognizes that a sub- stantial factor test was widely used in civil negligence cases to establish factual causation during the 1960s and 1970s—contemporaneous with Oregon’s enactment of ORS 161.295(1).9 Additionally, that test is still used to determine 7  A uniform jury instruction used in employment discrimination cases states that “[a] substantial factor is one that made a difference in an employment deci- sion; that is, the decision would not have been made without it. It need not be the only factor.” UCJI 59A.03. 8  Leon Green’s article was cited favorably by the concurring opinion in Dewey, 233 Or at 544 (O’Connell, J., concurring) (stating that “the work of Leon Green most closely relates to the position which I have taken”). As noted above, this court later adopted the views expressed by Justice O’Connell in his Dewey concurrence. See Babler Bros., 244 Or at 464-65 (citing concurring opinion in Dewey and adopting that approach because it avoids “the conceptual debate about ‘proximate’ cause and *  *  * focus[es] upon the proper function of the jury”). 9  The majority opinion states that cases decided after the 1971 enactment of ORS 161.295(1) are irrelevant to determining the legislature’s intent. I agree, but those cases are relevant to my point, which is that substantial factor causation has been applied by juries for decades, and that, as a test of factual causation, it is not as uncertain or confusing as the majority opinions suggests. In fact, 482 State v. Meiser factual causation in employment discrimination and some civil tort cases because we have recognized that, in those situations, substantial factor causation is an improvement over but-for causation. As I will explain, analyzing whether a criminal defendant’s lack of capacity was “a result of” a mental disease or defect in the context of co-occurring men- tal conditions presents another situation where substantial factor is the better test for factual causation. The more common test, but-for causation, is typi- cally applied when assessing the effects of discrete, readily separable links in a causal chain. Turnidge, 359 Or at 471 (conduct occurring “early in the chain of causation *  *  * may be a ‘but-for’ cause by resulting in a series of forces or events that follow to cause the injury, each of which is also a link in the causal chain without which the injury would not have resulted”). We concluded in Turnidge that, for purposes of criminal responsibility in general, “[t]he test of causation for most circumstances is whether, ‘but for’ the defendant’s conduct, the event would not have occurred.” 359 Or at 481. Where the specified result follows from such a chain of events, we explained, the defendant’s role does “not have to be the last link in the chain, or the only one, for the jury to make that determination.” Id. at 482. Similarly, in the civil tort cases that use a but-for test, a jury is often asked to determine whether a defendant’s conduct, or something else within a sequence of events, caused a plaintiff’s injury, as in Haas and Joshi. But where a jury is called on to assess an individual’s motivation, as in employment discrimination cases, we have consistently used substantial factor as the test for causation. See, e.g., Ossanna v. Nike, Inc., 365 Or 196, 214, 445 P3d 281 (2019) (applying substantial factor causation). Assessing a criminal defen- dant’s mental condition to determine whether their lack of capacity was a result of a mental disease or defect is like evaluating an employer’s motivation for an employment deci- sion. Both circumstances require evaluating mental states that exist concurrently in a person’s mind—which are nei- ther discrete links in a causal chain, nor readily separable by 1978, when we decided Simpson, we thought that “no better test has been devised.” 284 Or at 560. Cite as 372 Or 438 (2024) 483 events or conditions. Analytically, that context is different from assessing whether one event in a chain caused a partic- ular result, as is common in many criminal and civil cases. That is why, in my view, assessing a criminal defendant’s co-occurring mental disorders is another situation where substantial factor causation is the superior standard. The majority opinion declines to adopt substantial factor causation, noting that the legislature did not include a “quantitative descriptor” in the statute and the legislative history does not mention “substantial factor” causation at all.10 Those observations are correct, and I do not dispute that they could mean that the legislature intended to reject substantial factor causation. But that is not the only inter- pretation, nor is it necessarily the most natural. Where, as here, the legislature uses the phrase—”as a result of”—to describe a causal link without defining the word “result” or discussing in the legislative history what it was intended to mean, we search for the intended meaning of the term in the context of the statute. The absence of any specific men- tion of “substantial factor” causation in the text or legisla- tive history of the statute might mean that the legislature intended to reject it, as the majority opinion suggests. But it could also mean that the legislature did not consider or discuss the issue, or that it assumed that courts would apply the causation standard that was prevailing at the time. The majority opinion also states that allowing juries to decide whether a criminal defendant is GEI using substantial factor causation would import civil tort law principles into the criminal law, contrary to our caution- ary note in Turnidge. However, our cautionary note in that case primarily addressed the “difficulty with extending the 10  The majority opinion notes that no party has advocated for using substan- tial factor causation for a GEI defense and suggests that defendant argued in favor of a dictionary definition. ___ Or at ___ n 6 (slip op at 26 n 6). Defendant argued that the Court of Appeals misapplied the dictionary definition but advo- cated for a “lesser degree” of causation than the “independent sufficiency” test adopted by the Court of Appeals. Defendant did not take a position on what that “lesser degree” should be, concluding that defining the causal link is not neces- sary because the record in this case shows that defendant’s schizophrenia was “the predominant driver” of his behaviors. Thus, while it is true that no party advocated for using substantial factor causation, it is also true that no party contended that the dictionary definition alone should be used to define the causal link. 484 State v. Meiser common-law doctrine of proximate cause in the criminal law context[.]” 359 Or at 472 n 62. I am not suggesting that we do that. But with due respect to our own admonition, we should import a civil tort principle into criminal law if we conclude that that is what the legislature intended. The majority opinion further observes that, as we stated in Haas, instructing a jury on substantial factor causation can be misleading: “As the Restatement (Third) of Torts section 26 comment j (2010) points out, a substantial factor instruction may cause confusion because it can lead a jury erroneously to believe that it must search for a most significant causal factor, when that is not required.” Haas, 370 Or at 755. But juries have been applying substantial fac- tor causation in employment discrimination and certain civil negligence cases for decades. See, e.g., Lasley v. Combined Transport, Inc., 351 Or 1, 11, 261 P3d 1215 (2011) (jury deter- mined whether defendant’s spilling of glass panes onto the freeway was a substantial factor in causing the decedent’s death); Crosbie v. Asante, 322 Or App 250, 255-56, 519 P3d 551 (2022) (noting that, to prevail on an employment discrim- ination or retaliation claim, a plaintiff must establish that a protected trait or activity “was a ‘substantial factor’  ” in an adverse employment decision). Other courts have not found substantial factor causation to be too confusing. See Mitchell v. Gonzales, 54 Cal 3d 1041, 1052, 819 P2d 872 (1991) (describ- ing substantial factor causation as “  ‘sufficiently intelligible to any layman to furnish an adequate guide to the jury’  ” (quoting Prosser, Proximate Cause in California, 38 Cal L Rev 369, 379 (1950))). Any potential confusion in the context of a GEI defense can be avoided by instructing the jury that “substantial factor” causation does not mean that the jury is to compare the relative importance of multiple causes or search for the most significant causal factor.11 11  Uniform Civil Jury Instruction 23.02 clarifies how juries are to apply the standard: “Many factors may operate either independently or together to cause harm. In such a case, each may be a cause of the harm even though the others by themselves would have been sufficient to cause the same harm. If you find that defendant’s act or omission was a substantial factor in causing the harm to the plaintiff, you may find that the defendant’s conduct caused the harm even though it was not the only cause. A substantial factor is an important factor and not one that is insignificant.” Cite as 372 Or 438 (2024) 485 The majority opinion suggests that substantial factor causation is unclear because the law does not define it. But as noted above, one of the reasons the law favored substantial factor causation at the time was the fact that it reflected a common-sense understanding that juries could apply without further definition. As we stated in Simpson, “as applied to the fact of causation alone, no better test has been devised.” 284 Or at 560 (citing W. Prosser, Law of Torts § 41, 240 (4th ed 1971)). The fact that juries have been able to apply it without difficulty in many civil negligence and employment discrimination cases sufficiently demonstrates that no further definition is needed. Ultimately, the majority opinion’s dictionary defini- tion of “result” and its misgivings about applying substan- tial factor causation in this context do not foreclose applying that standard to give effect to the legislature’s intent when it enacted ORS 161.295(1) in 1971. And, as I will explain next, although the legislative history is not clear, its silence more likely indicates that the legislature intended for juries to use substantial factor causation in determining whether a criminal defendant was GEI when the defendant commit- ted the charged offense. LEGISLATIVE HISTORY OF ORS 161.295 We explained in Meiser II that the “causal link” included in subsection (1) of ORS 161.295 was enacted in 1971 and was left unchanged by the 1983 amendment to subsection (2) of the statute. 369 Or at 359. The statute’s context and legislative history shed some additional light on what the legislature intended in 1971 when it used “as a result of” to describe the causal link between a defendant’s mental disease or defect and the requisite lack of capacity. We noted in Turnidge that Oregon had adopted the 1971 Criminal Code—including the GEI statute—”against the backdrop” of developments in the common law, including specifically Oregon’s rejection of the concept of “proximate cause.” Turnidge, 359 Or at 480. And, as noted above, that common law “backdrop” included the routine use of substan- tial factor causation to determine cause-in-fact. 486 State v. Meiser It reasonably follows that the legislature would have intended to use the same causation standard that was widely used in 1971—substantial factor causation—as the causal link for the GEI defense. The legislative history of that stat- ute does not clearly explain what causal link the legislature intended, as the majority opinion acknowledges. However, in my view, that history provides some support for concluding that substantial factor was the intended causal test. The commentary to the 1971 Criminal Code revi- sions explains that ORS 161.295(1) was taken from section 4.01 of the Model Penal Code with a few minor changes in wording.12 See Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 36, 34 (July 1970). That commentary and the commentary to section 4.01 of the Model Penal Code both use the phrase “as a result of” repeatedly to describe the causal connection without clearly explaining what that phrase was intended to mean.13 However, the commentary to section 4.01 also suggests that the drafters of the Model Penal Code were concerned, generally, about adopting a rule that allowed juries to apply the insanity defense too broadly. That commentary explains why the drafters of the Model Penal Code declined to adopt the “Durham 12  Section 4.01 of the Model Penal Code provides: “(1)  A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. “(2)  As used in this Article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” 13  The commentary to section 4.01 of the Model Penal Code reveals that the drafters focused on the “substantial capacity” standard, not whether a lack of substantial capacity was “as a result of” a mental disease or defect. See Model Penal Code § 4.01 comment 3 at 172 (stating that the adoption of the substantial capacity standard “may well be the Code’s most significant alteration of the pre- vailing tests[,]” acknowledging that “substantial” is “an open ended concept[,]” but concluding that it would be “sufficiently precise for purposes of practical administration”). The “substantial capacity” standard proposed in the Model Penal Code was partially adopted in United States v. Currens, 290 F2d 751, 774 (3d Cir 1961) (“The jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked sub- stantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated.”). Cite as 372 Or 438 (2024) 487 rule”—based on Durham v. United States, 214 F2d 862 (DC Cir 1954)—even though that rule had been “warmly supported by psychiatrists at the time.” Model Penal Code §  4.01 comment 3 at 173-74 (Official Draft and Revised Comments 1985). Under the Durham rule, “an accused is not criminally responsible if [their] conduct was the product of mental disease or defect.” 214 F2d at 874-75 (emphasis added).14 As they explain, the drafters of the Model Penal Code were concerned that using “the product of” to describe the causal link between a mental disease or defect and ille- gal conduct could be interpreted to mean “that the crime would not have been committed but for the presence of the mental disease or defect.” Model Penal Code § 4.01 comment 3 at 173. In their view, “[that] interpretation [was] too broad” because it would capture motivations for criminal activity inspired by delusional beliefs or attitudes, even if the per- son’s capacity to appreciate the criminality or wrongfulness of their conduct was not substantially impaired. Id.15 Thus, the drafters of the Model Penal Code wanted to be clear that a defendant’s lack of substantial capacity—not the illegal conduct itself—must occur “as a result of” the defendant’s mental disease or defect. Unfortunately, the drafters of the Model Penal Code did not elaborate on what “as a result of” was intended to mean, and the commentary to Oregon’s revised Criminal Code does not explain what that phrase was intended to mean either. That commentary reveals only that Oregon, like the Model Penal Code, rejected the Durham rule in part because of the “troublesome causal questions” raised by its application. See Commentary §  36 at 36 (“Like the 14  The DC Circuit later overruled Durham and adopted a rule based on sec- tion 4.01 of the Model Penal Code. United States v. Brawner, 471 F2d 969, 994-95 (DC Cir 1972). 15  The Model Penal Code commentary offered an example. If a person mur- ders a wealthy relative believing, as a result of a mental disease or defect, that they will inherit a large amount of money upon the relative’s death, the murderer would be relieved of responsibility under a but-for test. But the murderer should still be held responsible, the commentary explains, if their capacity for under- standing and control were not otherwise impaired by mental illness, because that situation would be morally indistinguishable from someone who does not have a mental illness and commits a murder to receive an inheritance. Model Penal Code § 4.01 comment 3 at 173 n 24. 488 State v. Meiser Model Penal Code §  4.01, the Currens test[16] recognizes variations in degree and allows wide scope for expert tes- timony without the troublesome causal questions raised by Durham.”). Rejecting the Durham rule and its potentially sweeping application suggests that the drafters of both the Model Penal Code and the Oregon statute were generally concerned about adopting a standard that permitted too broad an interpretation of the causal link between a mental disease or defect and a defendant’s illegal conduct. The majority opinion’s dictionary definition would allow juries to find that a defendant was GEI at the time of the offense if the defendant’s lack of substantial capacity was a “result” or “consequence” or “effect” of a mental dis- ease or defect. In my view, because the legislature was con- cerned, generally, about an overbroad application of the GEI defense, it more likely intended that the mental disease or defect must be a substantial factor in causing a defendant’s lack of capacity—not just a factor—consistent with the pre- vailing causation standard at the time.17 Because I agree with the majority opinion’s disposi- tion of this case, but disagree with some of its reasoning, I respectfully concur. Nakamoto, S.J., joins in this concurring opinion. JAMES, J., concurring. I join fully in the majority opinion except as to sec- tion E(3)(c). Masih, J., joins in this concurring opinion. 16  See Currens, 290 F2d at 774 (stating that “[t]he jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of men- tal disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated”). Like the com- mentary to the Model Penal Code and Oregon’s 1971 revised Criminal Code, the Currens court did not discuss what it meant when it used the term “as a result of” to describe the required causal link. 17  The fact that the majority opinion and this concurrence disagree about the causation analysis that should be used to establish a GEI defense suggests that further legislation clarifying the intended approach might be warranted.

615a7b9a68ca510f4932944686ea2fa39ebd5c2b4e0d5e421285478d5c277e3f

2024-06-13T00:00:00Z

ad3127e8-db1f-4393-907f-390d5dd2e314

Sizemore v. Myers

S48919

oregon

Oregon Supreme Court

Filed: December 28, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON BILL SIZEMORE, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48919) En Banc On petition to review ballot title. Submitted on the record October 24, 2001. Gregory W. Byrne, Portland, filed the petition for petitioner. Janet A. Metcalf, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. PER CURIAM Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(11). PER CURIAM This ballot title review proceeding under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State has denominated as Initiative Petition 103 (2002). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). See ORS 250.085(5) (stating that requirement). Petitioner challenges all parts of the Attorney General's certified ballot title. We have considered petitioner's arguments and determine that they are not well taken. Accordingly we certify to the Secretary of State the following ballot title for the proposed measure: AMENDS CONSTITUTION: ENTITLES VOTERS TO PREVENT SALE, PROTECT PRIVACY OF THEIR PETITION SIGNATURES; CREATES IMPLEMENTING, ENFORCEMENT PROVISIONS RESULT OF "YES" VOTE: "Yes" vote entitles registered voters to prevent sale, protect privacy of their petition signatures; creates provisions implementing, enforcing that right, and requiring fines for violations. RESULT OF "NO" VOTE: "No" vote rejects creation of constitutional right for registered voters to prevent the sale, and protect the privacy of their signatures on initiative, referendum petitions. SUMMARY: Amends Constitution. Entitles registered voters to prevent their signatures on initiative or referendum petitions from being sold. Bars Secretary of State from approving petition for circulation unless petition clearly gives signers opportunity to indicate choice not to have signature sold. If signer so indicates, no one may pay for obtaining signature or transmitting it to Secretary. Names, addresses of signers may not be used for commercial solicitation, other purposes unrelated to qualifying measure for ballot. Requires minimum $250 fine for each unauthorized sale, knowing use, or transfer of information to third party. Does not prohibit payment for signature gathering by hour or on salary where amount of payment not determined by number of signers who have indicated choice not to have signatures sold. Other provisions. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(11).

9b8c2065972e22e9f0a1995588a555dc76fd2bfebc2e009b00820680ed425b4e

2001-12-28T00:00:00Z

21bb27a8-b21f-4967-954d-1f014919fadf

State v. Aranda

S069641

oregon

Oregon Supreme Court

No. 19 May 31, 2024 363 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. STEPHEN ANDREW ARANDA, Respondent on Review. (CC 19CR07375) (CA A171800) (SC S069641) On review from the Court of Appeals.* Argued and submitted February 1, 2023. Patrick M. Ebbett, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. David L. Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for respondent on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section. Aliza B. Kaplan, Lewis & Clark Law School, Portland, filed the brief on behalf of amici curiae Coalition for Prior Conviction Impeachment Reform, Boston University Center for Antiracist Research, and Criminal Justice Reform Clinic at Lewis & Clark Law School. Also on the brief was Anna K. Sortun, Tonkon Torp LLP, Portland. Rosalind M. Lee, Rosalind Manson Lee LLC, Eugene, and Monica Milton, Public Defense Counsel, National Association of Criminal Defense Lawyers, Washington, D.C., filed the brief on behalf of amici curiae Oregon Criminal Defense Lawyers Association and National Association of Criminal Defense Lawyers, respectively. ______________ *  Appeal from Lane County Circuit Court, Charles Zennaché, Judge. 319 Or App 178, 509 P3d 152 (2022). 364 State v. Aranda Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, and Masih, Justices, and Walters and Nakamoto, Senior Judges, Justice pro tempore.** DEHOOG, J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. Walters, S.J., dissented and filed an opinion, in which Duncan, and Masih, JJ., joined. ______________ **  Nelson, J., resigned February 25, 2023, and did not participate in the decision of this case. Bushong and James, JJ., did not participate in the consider- ation or decision of this case. Cite as 372 Or 363 (2024) 365 DEHOOG, J. Oregon Evidence Code (OEC) 609(1) expressly requires a trial court to allow the credibility of a witness to be impeached with evidence that the witness has been convicted of any felony. That rule applies to all witnesses, including criminal defendants who testify in their own behalf. The text of OEC 609 does not allow a trial court to weigh the probative value of a witness’s conviction history against its potential for unfair prejudice, nor does it grant courts discretion to exclude evidence based on the results of such balancing. Moreover, under our case law, trial courts may not subject OEC 609 evidence to that assessment under OEC 403, which, when applicable, provides for such bal- ancing. See State v. King, 307 Or 332, 336-37, 768 P2d 391 (1989) (OEC 609 does not permit trial courts to conduct OEC 403 balancing).1 Nonetheless, relying on our decisions in State v. Williams, 357 Or 1, 346 P3d 455 (2015), and State v. Baughman, 361 Or 386, 393 P3d 1132 (2017), and also on the Due Process Clause of the Fourteenth Amendment to the United States Constitution, defendant contends—as he has consistently contended at all stages of this case—that OEC 403 balancing is required upon a criminal defendant’s request whenever the state seeks to impeach the defendant’s testimony with OEC 609(1) evidence. The Court of Appeals agreed with that argument and, because the trial court had declined to conduct OEC 403 balancing in his case, reversed defendant’s conviction and remanded to the trial court to conduct that balancing. State v. Aranda, 319 Or App 178, 189-90, 509 P3d 152 (2022). 1  When applicable, OEC 403 permits trial courts to exclude evidence upon determining that its “probative value is substantially outweighed by the danger of unfair prejudice[.]” We review the decision whether to exclude evidence on that basis for an abuse of discretion. See State v. Rogers, 330 Or 282, 311, 4 P3d 1261 (2000) (“A decision to exclude evidence under OEC 403 is reserved to the trial court’s discretion. That is so because application of OEC 403 may allow for more than one legally correct outcome. For example, in some cases, the record may support either the admission or exclusion of otherwise admissible evidence under OEC 403, and neither result legally would be incorrect.”) (internal ellipses and citations omitted). In this opinion, we refer to the application of OEC 403 in accor- dance with its terms—that is, balancing the probative value of evidence against its potential for unfair prejudice and making the discretionary decision whether to exclude the evidence—as “OEC 403 balancing.” 366 State v. Aranda On review, the state contends that the Court of Appeals erred. In the state’s view, the admission of evidence that satisfies the requirements of a state evidentiary rule— including OEC 609—does not violate due process. It follows, the state reasons, that due process did not require the trial court to conduct OEC 403 balancing to protect defendant’s due process rights.2 The state further argues that the Court of Appeals’ conclusion that due process required OEC 403 balancing in defendant’s case reflects a misunderstanding of our decisions in Williams and Baughman. We conclude that the Court of Appeals erred, but we do so on more limited grounds than those advanced by the state. Before explaining that conclusion, we will briefly address an argument that defendant raises in his sur-reply brief, namely, that we should affirm the Court of Appeals’ decision as being “right for the wrong reason.” See, e.g., State v. Edmonds, 364 Or 410, 415, 435 P3d 752 (2019) (explain- ing that “the right for the wrong reason doctrine” permits a lower court’s ruling to be affirmed on grounds the court did not consider, provided certain conditions are met). We ulti- mately decline defendant’s “right for the wrong reason” argu- ment and, instead, adhere to this court’s holding in King, in which we held that OEC 609 does not permit trial courts to subject evidence admissible under its terms to OEC 403 balancing. 307 Or at 336-37. Then, turning to defendant’s contention that OEC 403 balancing is nonetheless required as a matter of due process, we conclude, after applying the applicable United States Supreme Court framework, that defendant’s contention is unfounded. Although we recognize that the absence of balancing under either OEC 609 or OEC 403 means that some defendants who wish to testify in their own trials must make a difficult choice—one that effectively balances the benefits of testifying against the potential con- sequences of having their testimony impeached by any qual- ifying conviction history they have—we cannot conclude that due process requires OEC 403 balancing before such 2  We do not understand the state to argue that, if in fact evidence admissible under the terms of OEC 609 would violate defendant’s right to due process, the trial court would nonetheless be required to admit that evidence due to the man- datory language of OEC 609 (stating that evidence that meets requirements of rule “shall be admitted”). Cite as 372 Or 363 (2024) 367 evidence may be admitted. As a result, the Court of Appeals erred in holding that OEC 403 balancing is a constitutional requirement, and we, therefore, affirm the judgment of conviction. I.  FACTS AND PROCEDURAL POSTURE A.  Facts and Trial Court Proceedings In 2019, defendant was charged with first-degree rape after the victim reported that he had forcibly subjected her to sexual intercourse. The charged conduct took place following a birthday party at which both defendant and the victim had been guests. Although numerous other guests from the party testified at trial about the victim and defen- dant’s interactions, many of the guests had been drinking at the party, and their testimony varied dramatically regard- ing those interactions. Defendant did not dispute that he had engaged in sexual conduct with the victim; the issue at trial was whether that conduct had been consensual, and defen- dant intended to take the stand to testify that it had been. Defendant anticipated, however, that, when he took the stand, the state would seek to impeach his credibility by introducing evidence under OEC 609 that, in 2008, he had been convicted of multiple felonies in two separate cases. In one case, defendant had pleaded no contest to two counts of first-degree sexual abuse for events that had occurred in 2002, when he was 15. In a second case, defendant had pleaded no contest to second-degree assault for events aris- ing out of an alcohol-related car accident. As discussed in greater detail later in this opinion, OEC 609(1) permits any witness to be impeached with evi- dence that the witness has previously been convicted of a felony3 or a crime involving a false statement or dishonesty: “(1)  For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of 3  As in prior decisions, we use the term “felony” as shorthand for convic- tions rendered admissible by OEC 609(1)(a) (applying to convictions for crimes “punishable by death or imprisonment in excess of one year under the law under which the witness was convicted”). See, e.g., State v. Phillips, 367 Or 594, 599 n 4, 482 P3d 52 (2021) (so explaining). 368 State v. Aranda a crime shall be admitted if elicited from the witness or established by public record, but only if the crime: “(a)  Was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted; or “(b)  Involved false statement or dishonesty.” Before trial, defendant filed a motion in limine, seeking to limit the state’s introduction of OEC 609 evi- dence to impeach his testimony. Relying on the Due Process Clause of the Fourteenth Amendment to the United States Constitution, defendant contended that, unless the trial court first engaged in OEC 403 balancing regarding his con- victions for first-degree sexual assault and second-degree assault, admitting that evidence as impeachment under OEC 609 would violate his right to due process. When appli- cable, OEC 403 grants trial courts the discretion to exclude otherwise relevant evidence as follows: “Although relevant, evidence may be excluded if its pro- bative 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 pre- sentation of cumulative evidence.” At the motion hearing, defendant acknowledged that this court had previously held as a matter of statutory interpretation that evidence admissible under OEC 609(1) is not subject to OEC 403 balancing. See King, 307 Or at 336-37 (so holding). Defendant contended, however, that OEC 403 balancing was required as a matter of due process. He relied on this court’s decision in Williams, 357 Or 1, contending that we held in that case that due process requires courts to conduct OEC 403 balancing before admitting “other acts” evidence under OEC 404(4). See OEC 404(4) (providing in part that, “[i]n criminal actions, evidence of other crimes, wrongs, or acts by the defendant is admissible if relevant except as otherwise provided by” various other rules of law, including, “to the extent required by the United States Constitution[,]” OEC 403). Defendant argued that, to pre- vent undue prejudice, even if the trial court did not wholly exclude his conviction history, it should at least limit the impeachment evidence to the fact of the felony convictions Cite as 372 Or 363 (2024) 369 and prohibit any naming of the specific crimes for which he had been convicted. In response, the state indicated that it did not intend to offer defendant’s prior convictions for any purpose other than impeachment. The state also explained that it would be asking defendant only whether he had been con- victed of one count of second-degree assault and two counts of first-degree sexual abuse; it did not intend to otherwise mention the specific convictions by name. The trial court denied defendant’s motion to limit the state’s introduction of OEC 609 evidence to impeach his testimony. The court explained its understanding that, if defendant took the stand, OEC 609(1)(a) would allow the state to impeach him with his prior convictions, which would be admissible solely for purposes of attacking his credibility. The court further explained that no other rule of evidence or provision of the Oregon Constitution required it to balance the potentially prejudicial effect of that evidence against its probative value. Moreover, the trial court stated, it was set- tled law in Oregon that the state could identify defendant’s convictions by name; it would not be limited to letting the jury know that defendant had been convicted. In rejecting defendant’s argument that OEC 403 balancing was required under the federal constitution as a matter of due process, the trial court explained that, in its view, there were three reasons not to extend the reasoning of Williams, 357 Or at 4, to defendant’s case. First, in Williams, the state had sought to use “other acts” evidence in its case- in-chief. Here, in contrast, the state would not be permitted to introduce defendant’s conviction history unless he chose to take the stand; defendant, therefore, controlled whether the jury heard that evidence. Second, the court explained, it would be instructing the jurors that they could consider defendant’s conviction history for only its bearing, if any, on his credibility. The court added that jurors were presumed to know their obligations and to follow instructions, and so could be expected to follow them here. And third, the court noted, defendant had been unable to identify any other juris- diction that had held that due process required balancing in the impeachment context. 370 State v. Aranda Before any evidence of defendant’s conviction his- tory was introduced at trial, the court gave a precaution- ary instruction telling the jury that it was not to consider that evidence except for purposes of assessing defendant’s credibility: “If you find the defendant has previously been convicted of a crime, you may consider this conviction only for its bear- ing, if any, on the credibility of the defendant. Specifically, you may not use this evidence for the purpose of drawing the inference that[,] because the defendant was convicted of a previous crime, the defendant may be guilty of the crime charged in this case.” Defense counsel entered a continuing objection to any identification by name of the felonies for which defen- dant had been convicted. When defendant took the stand for direct examination, he acknowledged that he had previously been convicted of three felonies, but he did not identify any conviction by name.4 The state, in turn, asked defendant the following questions on cross-examination: “Q  These *  *  * prior convictions that you have back in 2008, isn’t it correct that one of them is for Assault in the Second Degree, a felony? “A  Yes, sir. “Q  And the other two are for Sexual Abuse in the First Degree, both felonies? “A  Yes, sir.” In its closing instructions to the jury, the trial court again stated that prior convictions were to be used for only purposes of assessing credibility: “If you find that a witness has been convicted of a crime, you may consider this con- viction only for its bearing, if any, on the credibility of the witness.” 4  The exchange between defense counsel and defendant was as follows: “Q  Okay. And—*  *  * well, sir, have you ever been convicted of any felony offenses in Linn County Circuit Court, say, I think in *  *  * 2008, like August of 2008? “A  Yes. “Q  And there were three ** * felony offenses? “A  Yes.” Cite as 372 Or 363 (2024) 371 The state itself made that point in its closing argument: “In your final instructions there—I think it made it into the preliminary, too—but in your final instructions there you see this other one about the defendant’s prior felony convictions. These can only be used by you to deter- mine whether the defendant is a credible witness; that is, whether you believe him or not, okay?” Although the state had previously named defendant’s fel- ony convictions, it did not remind the jury of the specific crimes of conviction during closing argument. The state also focused during closing on how the conviction history bore on the issue of witness credibility, implicitly contrasting defen- dant’s conviction history with that of the witnesses against him, who had no conviction history: “It’s just not like we have two people come and say this and we walk out of here. But I just want you to say to your- selves when you’re sitting there saying, ‘Do I believe [wit- ness KZ]? Do I believe [witness JM]? Do I believe [witness DP]? Do I believe [witness RC]? Do I believe [witness MA]?’ Ask yourselves whether they have any of those felony con- victions when you’re making that determination.” The jury ultimately convicted defendant of first- degree rape. B.  Court of Appeals Decision Defendant appealed his conviction and raised a number of issues in the Court of Appeals. That court agreed with defendant’s due process argument and, on that basis, vacated his conviction and remanded for further proceed- ings. The court expressly rejected defendant’s remaining arguments without discussion. 319 Or App at 179. In considering whether the trial court had violated defendant’s due process rights by admitting his conviction history without first conducting OEC 403 balancing, the Court of Appeals explained that resolving that question required it to determine how the United States Supreme Court would itself resolve the issue. Id. at 182. That, accord- ing to the Court of Appeals, depended primarily on historical 372 State v. Aranda practice. Id. (so stating); id. at 184 (relevant focus is national practice). In reviewing historical practice, the Court of Appeals first observed that, at common law, any person who had previously been convicted of an “infamous crime” was wholly prohibited from testifying—as a result, histor- ically there had been no practice regarding impeachment by prior conviction. Id. at 184. Further developments in the law abolished the rule that such persons were incompetent to testify, but their conviction history became admissible as impeachment evidence. Id. at 184-85. The Court of Appeals observed that, although that development meant that testi- fying defendants faced a substantial risk of prejudice when such evidence was admitted, the historical record did “not provide a definitive answer as to whether the Due Process Clause requires a trial court” to balance prejudice against probative value. Id. at 185-86. The court specifically noted an absence of federal cases since the adoption of Federal Rule of Evidence (FRE) 609, which specifically provides for balancing, and it observed that Oregon “appears to be an outlier” when compared to other states, most of which also had adopted the federal approach. Id. at 187-88. Because of its conclusion that history failed to pro- vide a clear answer, the Court of Appeals turned to “  ‘the principles that animate the Due Process Clause,’  ” id. at 188 (quoting Williams, 357 Or at 18), including that due process prohibits the “admission of evidence that is so extremely unfair that it violates fundamental conceptions of justice,” id. at 188-89 (internal quotation marks and citations omit- ted). The court recognized the risk that a jury might misuse a defendant’s prior conviction to find the defendant guilty on the ground that the defendant has a propensity to com- mit crimes, rendering the defendant’s trial fundamentally unfair. Id. at 189. Allowing trial court discretion to exclude unfairly prejudicial evidence would, in the Court of Appeals’ opinion, “ensure” that the jury did not misuse the evidence. Id. at 190. It followed, in that court’s view, that due process required balancing so as to protect against that possibility. Id. The state sought review, which we allowed. Cite as 372 Or 363 (2024) 373 II.  DISCUSSION A.  Defendant’s Challenge to State v. King As a preliminary matter, we address defendant’s argument that the Court of Appeals’ decision can be affirmed as being “right for the wrong reason.” See Edmonds, 364 Or at 415 (explaining “the ‘right for the wrong reason’ doc- trine”). On review, defendant argues for the first time that this court’s decision in King, 307 Or 332, was incorrectly decided and should therefore be overruled. He argues that OEC 609, properly understood, remains subject to OEC 403 balancing. Therefore, in his view, there is no need for us to reach the question whether OEC 403 balancing is constitu- tionally required, as the Court of Appeals held. The state disputes defendant’s argument on two grounds. Procedurally, the state objects that such an issue should not be raised for the first time in a sur-reply brief. Substantively, the state maintains that King was correctly decided. We need not decide the procedural question, because defendant has not established a basis to overrule King. We have previously explained that “we begin with the assump- tion that issues considered in our prior cases are correctly decided, and the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent.” Farmers Ins. Co. v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011) (internal quota- tion marks and citation omitted). Here, defendant has not meaningfully undertaken that task, much less established that this court’s decision in King was wrongly decided. The enactment history of the rules at issue here com- pels that conclusion. The versions of OEC 609 and OEC 403 adopted in 1981, predating our 1989 decision in King, each con- tained provisions for balancing an evidentiary item’s potential for prejudice against its probative value, but the provisions differed from each other. Compare OEC 403 (1982) (evidence “may be excluded if its probative value is substantially out- weighed by the danger of unfair prejudice”), with OEC 609(1) (1982) (impeachment with prior criminal conviction permit- ted “only if” “the court determines that the probative value 374 State v. Aranda of admitting this evidence outweighs its prejudicial effect to the defendant”). See Laird C. Kirkpatrick, Oregon Evidence, Art VI, Rule 609, 251 (1st ed 1982) (“Rule 609 requires that the probative value outweigh the prejudice before the prior conviction may be admitted, whereas Rule 403 requires that the probative value of evidence be substantially outweighed by prejudice before it will be excluded.”); State v. Pratt, 316 Or 561, 572, 853 P2d 827 (1993) (“OEC 609 provided its own test for balancing probative value against prejudicial effect,” separate from that found in OEC 403). By adopting different balancing tests for prejudice under the two rules, the legis- lature signaled that it did not intend for the more generally applicable test under OEC 403 to apply to cases subject to the specific balancing test contained in OEC 609(1). In 1986, the voters passed an initiative that amended OEC 609 to remove that rule’s balancing test. Or Laws 1987, ch 2, § 9. That amendment thus removed the only balancing test for prejudice that expressly applied to evidence offered to impeach the testimony of criminal defen- dants. Defendant does not contend that the 1986 amend- ment affirmatively extended the OEC 403 balancing test for prejudice to fill that gap.5 Nor does defendant explain why, in his view, this court was mistaken to conclude in King that the voters did not intend that the impeachment evidence that they had just rendered admissible without balancing under OEC 609 would now be subject to balancing under OEC 403. In the absence of a focused argument that our deci- sion in King was the product of a flawed analysis or was otherwise wrongly decided, we are not persuaded that we should reconsider that decision. Accordingly, we proceed with the understanding that evidence admissible under the 5  Defendant does contend that our later decision in Pratt, 316 Or 561, in which we held that OEC 403 balancing is appropriate when evidence is challenged as cumulative, is inconsistent with King. Defendant misreads Pratt, however. In that opinion, this court held that the 1986 amendment to OEC 609 removed balancing as to prejudice, but not balancing as to the needless presentation of cumulative evidence. Id. at 573. OEC 403 had merely codified the common-law discretion to exclude cumulative evidence. Id. The removal of OEC 609 balancing for prejudice, we concluded, did not affect the court’s authority to balance cumu- lative evidence under OEC 403. Id. In Pratt, the court acknowledged King, but it expressly distinguished it on that ground. Id. at 572. Cite as 372 Or 363 (2024) 375 terms of OEC 609(1)—as the impeachment evidence in this case indisputably was—is not subject to balancing under OEC 403 unless such balancing is constitutionally required, the question to which we now turn. B.  Constitutional Question As noted above, the trial court held that no provi- sion of the Oregon Evidence Code or the Oregon Constitution required it to conduct balancing before admitting evidence of defendant’s conviction history. In adhering to this court’s decision in King, we have now rejected defendant’s challenge to that ruling under the evidence code, and defendant has not advanced an argument under the Oregon Constitution on appeal. Thus, the remaining issue before us is purely one of federal constitutional law—specifically, the question whether due process requires OEC 403 balancing in cases such as this. “[W]hen interpreting the federal constitution or applying [United States] Supreme Court rulings that are based on its interpretation of the federal constitution, we must comply with what the Supreme Court has stated.” Page v. Palmateer, 336 Or 379, 386, 84 P3d 133, cert den, 543 US 866 (2004) (citing cases). We cannot interpret the United States Constitution so as to extend its guarantees beyond any limits recognized by the Supreme Court. See Arkansas v. Sullivan, 532 US 769, 772, 121 S Ct 1876, 149 L Ed 2d 994 (2001) (rejecting Arkansas Supreme Court’s holding “that it may interpret the United States Constitution to provide greater protection than this Court’s own federal constitu- tional precedents provide”); Oregon v. Hass, 420 US 714, 719, 95 S Ct 1215, 43 L Ed 2d 570 (1975) (“[A] State may not impose such greater restrictions [on police] as a mat- ter of federal constitutional law when this Court specifically refrains from imposing them.”) (Emphasis in original). Thus, as an initial matter, we must consider whether the United States Supreme Court has previously addressed the issue at hand and, if so, whether defendant’s argument would extend the protections of the Due Process Clause beyond any limitation recognized by the Court. We turn to those questions. 376 State v. Aranda 1.  Spencer v. Texas In its briefing, the state relies on Spencer v. Texas, 385 US 554, 87 S Ct 648, 17 L Ed 2d 606 (1967), suggest- ing that the Supreme Court’s decision in that case controls the outcome here. We recognize that Spencer can plausibly be read as deciding the issue raised in this case and doing so in a manner that would require us to reject defendant’s position. As we will explain, however, we ultimately con- clude that, although instructive, the holding of Spencer is not dispositive. In Spencer, the Supreme Court addressed the con- stitutionality of a Texas law that required the same jury to decide both whether a defendant was guilty of the charged offense and, if so, whether to impose a recidivist sentence upon the defendant. Procedurally, a jury would be “fully inform[ed]” of a defendant’s prior convictions during the guilt phase of the trial, but the jurors were instructed not to consider those convictions until after the jury had reached a decision as to guilt. 385 US at 556-59. The defendants in Spencer had argued, in essence, that permitting the jury to hear such evidence—which necessarily included evidence of convictions for conduct similar to the charged offense—vio- lated the Due Process Clause because of the risk that jurors would vote to convict based upon a defendant’s perceived propensity to commit similar crimes, rather than based upon the prosecution’s evidence of the charged offense. Id. at 559. The Supreme Court rejected that argument. The Due Process Clause, the Court explained, guarantees crimi- nal defendants a fundamentally fair trial. Id. at 563-64. The procedure prescribed by Texas law did not fall short of that guarantee, and therefore the Supreme Court was unwilling to impose further procedural requirements as a matter of due process: “Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. *  *  * But it has never been thought that such cases establish this Court as a rule- making organ for the promulgation of state rules of crim- inal procedure. And none of the specific provisions of the Cite as 372 Or 363 (2024) 377 Constitution ordains this Court with such authority. In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the pos- sibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases. As Mr. Justice Cardozo had occasion to remark, a state rule of law ‘does not run afoul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.’  ” Id. at 563-64 (quoting Snyder v. Commonwealth of Massachusetts, 291 US 97, 105, 54 S Ct 330, 78 L Ed 674 (1934)). Without more, Spencer might be viewed as con- trolling here. That is, if due process permits a prosecutor to place a defendant’s prior convictions before the jury any time that there is a “legitimate state purpose” and a “long- standing and widespread use” of evidence in that man- ner, then it might well follow that allowing prosecutors to freely rely on those convictions for the familiar purpose of impeaching testifying defendants would raise no due pro- cess concerns. See Spencer, 385 US at 560-61 (noting case law permitting testifying defendants to be impeached by prior convictions); see also id. at 577 (Warren, C.J., concur- ring in part, dissenting in part) (distinguishing case at bar from cases in which testifying defendants are impeached with prior convictions). On closer examination, however, Spencer discloses an ambiguity that might have some bearing here. In refus- ing to strike down the evidentiary rule at issue in that case, the Spencer majority expressly noted that Texas law permitted trial courts to exclude “particularly” prejudicial evidence: “The defendants’ [due process] interests are protected by limiting instructions, *  *  * and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence.” 378 State v. Aranda 385 US at 561-62 (citing Texas opinion and secondary sources). Some courts have concluded that that statement in Spencer was not important to the holding of that case; those courts have therefore upheld statutes that gave trial courts no discretion to exclude evidence of prior convictions offered for purposes of impeachment. See, e.g., Commonwealth v. Diaz, 383 Mass 73, 78, 417 NE2d 950, 953-54 (1981) (“the language of Spencer about discretion to exclude has been taken as merely ‘descriptive’ of the practice in many States, and not as suggesting any due process infirmity when the statute or rule allowing impeachment (and the practice thereunder) gives the trial judge no discretion to exclude the convictions when offered”); United States v. Belt, 514 F2d 837, 847-50 (DC Cir 1975) (en banc) (stating view that the majority opinion in Spencer reasoned from analogy regard- ing the admission of prior-crimes evidence and emphasized the Court’s obligation to avoid inflexibility in constitutional interpretation “where local evidentiary rules are involved”; observing that, in context, it is “unlikely that Justice Harlan intended, by his generalized reference to judicial discretion, to declare the invalidity of a statute of the kind now before us”); Dixon v. United States, 287 A2d 89, 94-95 (DC 1972) (upholding constitutionality of statute that made the admis- sion of prior criminal convictions against testifying crimi- nal defendants mandatory, stating that Spencer’s statement “does not amount to a declaration that judicial discretion to exclude prejudicial prior convictions is constitutionally required” (emphasis in original)). Two more recent decisions by the Supreme Court itself, however, suggest that the trial court’s discretion to exclude unduly prejudicial evidence may have played at least some role in Spencer’s conclusion that the Texas evidentiary law at issue there did not violate due process. This court iden- tified one of those cases in Williams, 357 Or at 12: Dowling v. United States, 493 US 342, 110 S Ct 668, 107 L Ed 2d 708 (1990). In Dowling, the defendant was prosecuted for bank robbery, and the trial court admitted testimony regarding a prior offense that the defendant had allegedly committed, but for which he had been acquitted before his robbery trial Cite as 372 Or 363 (2024) 379 began. Id. at 343-46. The Supreme Court held that that tes- timony did not violate the Due Process Clause. Id. at 352- 54. In so holding, however, the Court expressly noted that a balancing test would protect a defendant against prejudice: “Dowling contends that the use of this type of evidence creates a constitutionally unacceptable risk that the jury will convict the defendant on the basis of inferences drawn from the acquitted conduct; we believe that the trial court’s authority to exclude potentially prejudicial evidence ade- quately addresses this possibility.” Id. at 353. A second case recognizing the potential value of balancing is Perry v. New Hampshire, 565 US 228, 132 S Ct 716, 181 L Ed 2d 694 (2012), in which the Supreme Court considered the due process implications of eyewitness testi- mony where an eyewitness’s out-of-court identification of a defendant had been made under suggestive circumstances. See id. at 234-35 (witness had observed defendant in police custody through kitchen window). The defendant in Perry argued that the Due Process Clause required the trial court to make a preliminary inquiry into the reliability of the identification before allowing the jury to hear the evidence. Id. at 236 (summarizing issue). The Court held that due pro- cess did not require such a preliminary inquiry because the police had not been responsible for the circumstances being suggestive. Id. at 248. In so holding, however, the Court “t[ook] account of other safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability.” Id. at 245. One such safeguard specifically identified by the Court was the authority to exclude unduly prejudicial evidence: “State and Federal Rules of Evidence, moreover, permit trial judges to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury.” Id. at 247. The Supreme Court’s repeated reliance on that rationale—that a trial court’s discretion to exclude preju- dicial evidence is sufficiently protective of a defendant’s 380 State v. Aranda due process rights—suggests to us that it remains an open question for the Court whether such discretion is necessar- ily required to afford due process. See also Williams, 357 Or at 17 (“[J]ust because due process is served by a partic- ular evidentiary rule does not mean, at least necessarily, that due process is violated if that rule is not applicable.”). Accordingly, we conclude that Spencer is not dispositive here. We therefore turn to the more general consideration of what due process requires. 2.  The requirements of due process In determining whether “state procedural rules” that “are part of the criminal process”—such as OEC 609(1)—meet the requirements of due process, the “appro- priate [analytical] framework” is set out in Medina v. California, 505 US 437, 443, 112 S Ct 2572, 120 L Ed 2d 353 (1992). See Nelson v. Colorado, 581 US 128, 134-35, 137 S Ct 1249, 197 L Ed 2d 611 (2017) (so explaining). In that respect, we first note that defendant does not contend that his impeachment with prior convictions violated any specific guarantee of the Bill of Rights. And, as the Supreme Court has emphasized, when applied outside those specific guarantees, “due process” has a narrow scope: “  ‘[B]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.’ Dowling v. United States, 493 US [at] 352 *  *  *; accord, United States v. Lovasco, 431 US 783, 790, 97 S Ct 2044, 52 L Ed 2d 752 (1977). The Bill of Rights speaks in explicit terms to many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order. As we said in Spencer *  *  *, [385 US at 564], ‘it has never been thought that [decisions under the Due Process Clause] establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure.’  ” Medina, 505 US at 443-44 (alterations other than first in original); see Clark v. Arizona, 548 US 735, 748-49, 126 S Ct 2709, 165 L Ed 2d 842 (2006) (to same effect as Medina); Cite as 372 Or 363 (2024) 381 Patterson v. New York, 432 US 197, 201-02, 97 S Ct 2319, 53 L Ed 2d 281 (1977) (to same effect). To determine whether a state rule of criminal pro- cedure violates the Due Process Clause, Medina explains, the relevant inquiry is whether it “  ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’  ” Medina, 505 US at 446 (quoting Patterson, 432 US at 202). In answering that question, “[h]istorical practice is probative of whether a procedural rule can be characterized as fundamental.” Id.; see Montana v. Egelhoff, 518 US 37, 43-44, 116 S Ct 2013, 135 L Ed 2d 361 (1996) (plurality opinion) (describing his- torical practice as the “primary guide”). Stated in terms of the parties’ dispute in this case, the question is whether OEC 609 in its current form denies defendants a procedural right so established through historical practice that it has become “fundamental.” Thus, we must determine whether the OEC 403 balancing of impeachment evidence before its admission, which OEC 609 no longer allows, is so reflected in historical practice as to be fundamental in that regard. Accordingly, we next turn to what historical practice shows. a.  Historical practice The Supreme Court has articulated a rather demanding test for one seeking to establish that a given practice is “historical”: “[I]n assessing that [historical] practice, we look primar- ily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions. The question is whether a rule of crim- inal responsibility is so old and venerable—so entrenched in the central values of our legal system—as to prevent a State from ever choosing another. An affirmative answer, though not unheard of, is rare.” Kahler v. Kansas, 589 US 271, 279,140 S Ct 1021, 206 L Ed 2d 312 (2020) (rejecting contention that Due Process Clause required a state to provide insanity defense (citations omit- ted)). “Contemporary practice” may also be considered, but it is “of limited relevance to the due process inquiry.” Medina, 505 US at 447. 382 State v. Aranda It is defendant’s burden to affirmatively show that the principle that he seeks to apply is “entrenched in the central values of our legal system.” That is, it is not suffi- cient that defendant may be able to show that the state’s rule is not deeply rooted; he must demonstrate the funda- mental nature of the rule that he contends is essential to due process. As the Supreme Court explained in Egelhoff, “[i]t is not the State which bears the burden of demonstrat- ing that its rule is ‘deeply rooted,’ but rather respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Thus, even assuming that when the Fourteenth Amendment was adopted the rule Montana now defends was no longer generally applied, this only cuts off what might be called an a fortiori argument in favor of the State. The burden remains upon respondent to show that the ‘new common-law’ rule *  *  * was so deeply rooted at the time of the Fourteenth Amendment (or perhaps has become so deeply rooted since) as to be a fundamental prin- ciple which that Amendment enshrined.” 518 US at 47-48 (first alteration in original; citations omit- ted); see Kahler, 589 US at 279 (following Egelhoff). As applied to this case, then, defendant must show a “deeply rooted” practice of requiring courts to balance prejudice against probative value before allowing the state to impeach testify- ing criminal defendants with their prior felony convictions, because that, in essence, is the “principle of procedure” that OEC 609 purportedly violates and that is “allegedly required by due process.” See Egelhoff, 518 US at 47-48. In turning to whether history discloses such a prac- tice, we first observe, as the Court of Appeals noted, that at common law any person with a felony conviction was deemed incompetent to testify as a witness. See, e.g., Green v. Bock Laundry Mach. Co., 490 US 504, 511, 109 S Ct 1981, 104 L Ed 2d 557 (1989) (so explaining); Mason Ladd, Credibility Tests— Current Trends, 89 U Pa L Rev 166, 174 (1940) (same). Thus, as to such individuals, impeachment was historically not an issue. That does not mean, however, that there is no decisional law from that era relevant to our assessment of Cite as 372 Or 363 (2024) 383 historical practices. To the contrary—there is a long line of common-law cases addressing the effect of a pardon on an individual’s competency to testify. Under those circum- stances, the pardon restored the witness’s capacity to tes- tify, but the conviction was admitted for the jury’s consid- eration in evaluating that person’s credibility. The case of Rookwood’s Trial, Holt 683, 685, 90 Eng Rep 1277, 1278 (KB 1696), which involved a witness who had been pardoned by the king, stated the rule as follows: “[T]he conviction indeed might be objected to his credit, but could not be urged against his being a witness.”6 Lord Hale expressed the rule similarly: “[I]f the king pardon *  *  * offenders, they are thereby ren- dered competent witnesses, tho their credit is to be still left to the jury, for the king’s pardon takes away poenam & culpam in foro humano,[7] *  *  * but yet it makes not the man always an honest man[.]” Sir Matthew Hale, 2 The History of the Pleas of the Crown 278 (1736) (citations omitted). That rule was transplanted to the United States and widely followed until at least the middle of the twenti- eth century: “The current of American decision, following the British cases, is unbroken: an offender, if pardoned, must still face the fact that his conviction is admissible in evidence as bearing on his credibility.” Richards v. United States, 192 F2d 602, 606 (DC Cir 1951), cert den, 342 US 946, reh’g den, 343 US 921 (1952) (footnotes omitted); see also Vedin v. McConnell, 22 F2d 753, 754 (9th Cir 1927) (“The pardon in no wise negatived the implications of the conviction in respect of plaintiff’s character, and the jury was entitled to knowledge of it as bearing on his credibility 6  See also the more detailed report of the case in Trial of Ambrose Rookwood, 13 Howell’s State Trials 139, 185 (KB 1696), available at https://books.google. co.uk/books?id=SwQKAAAAIAAJ&pg=PA185#v=onepage&q=pardon&f=false (reporting Lord Chief Justice’s statement as “the credit of such a [pardoned] wit- ness is left to the jury, but it is no objection to his being a legal witness”) (accessed May 29, 2024). 7  The no-longer used Latin phrase can be understood to mean, essentially, penalty and fault as matters of earthly, as opposed to spiritual, affairs. 384 State v. Aranda as a witness.”); State v. Grant, 33 Del 195, 198, 133 A 790 (Del Ct Gen Sess 1926) (“[F]or the purpose of affecting the credit of the defendant, the fact of the conviction may, there- fore, be brought out either on cross-examination or in rebut- tal.”); Curtis v. Cochran, 50 NH 242, 244-45 (1870) (“The con- viction is an impeachment and condemnation of his general character for truth. *  *  * [A pardon] removes the disability [to testify], but does not change the common-law principle that the conviction of an infamous offence is evidence of bad character for truth.” (Citations omitted.)); Baum v. Clause, 5 Hill 196, 196-97, 1843 N.Y. LEXIS 85, at *1-3 (NY Sup Ct 1843) (although “competency is restored by the pardon, the crime still goes to the credit of the witness”); United States v. Jones, 26 F Cas 644, 647-48, 1824 US App LEXIS 265, at *2-3 (CC D NY 1824) (No. 15,493) (Circuit Justice Thompson) (charging the jury: “His honor observed, he had no doubt of the efficacy of the pardon, and that [the state’s witness] was now a competent witness; his credibility, however, was still a subject for the consideration of the jury.”). Our review of the foregoing case law has given us no indication that the trial courts of the time were required (or even permitted) to balance the probative value of a witness’s conviction history against its potential to cause prejudice before admitting that evidence for impeachment purposes, nor that trial courts were in fact exercising discretion in that regard. Meanwhile, over the course of the nineteenth cen- tury, the general rule of incompetency for persons who had not been pardoned for their crimes began to change, as states enacted statutes restoring the competency of previ- ously convicted persons. See Stuart P. Green, Deceit and the Classification of Crimes: Federal Rule of Evidence 609 (A)(2) and the Origins of Crimen Falsi, 90 J Crim L & Criminology 1087, 1110 (2000); Ladd, 89 U Pa L Rev at 174-75. The same statutes, however, typically allowed the use of a witness’s conviction history to impeach the witness’s credibility. See Green, 90 J Crim L & Criminology at 1110; Ladd, 89 U Pa L Rev at 174-75.8 Functionally, then, the states took the 8  Oregon was one of the states that removed incompetency but permitted the use of prior convictions to attack credibility. As early as 1862, the Oregon Legislative Assembly began permitting persons previously convicted of crimes to testify as witnesses, but it also expressly permitted a witness’s credibility to be questioned “in every case”: Cite as 372 Or 363 (2024) 385 common-law rule applicable to the impeachment of witnesses who had been pardoned and applied it more generally to all persons with prior convictions, without regard to whether a witness had been pardoned for any earlier offenses. As the Supreme Court itself has noted, the consen- sus rule during that period—that is, before the adoption of the Federal Rules of Evidence in 1975—was that trial courts lacked discretion to bar impeachment by prior conviction: “The weight of authority before [Federal Rule of Evidence] 609’s adoption *  *  * admitt[ed] all felonies without exer- cise of judicial discretion in either civil or criminal cases. Departures from this general rule had occurred overtly by judicial interpretation, as in Luck v. United States, *  *  * 348 F2d 763 ([DC Cir] 1965), or in evidence codes, such as the Model Code [of Evidence, 1942] and the Uniform Rules [of Evidence, 1953].” Green, 490 US at 521-22. Moreover, courts of that era specifically authorized the use of prior convictions to impeach criminal defendants who chose to testify in their own behalf. See Right to cross- examine accused as to previous prosecution for, or conviction of, crime, for purpose of affecting his credibility, 161 ALR 233 (1946) (“Even in the absence of a statute to that effect, it has generally been held proper to cross-examine the accused as to his previous conviction for the purpose of affecting his credibility[.]”); see also Goode v. United States, 149 F2d 377, 378 (DC Cir 1945) (no error to “allow[  ] the District Attorney to draw from [the defendant] on cross-examination admis- sions of his prior convictions on two occasions of grand lar- ceny”); State v. Ede, 167 Or 640, 644, 117 P2d 235 (1941) (“[T]he state had a right to show either on the examination “All persons without exception, except as otherwise provided in this title, *  *  * may be witnesses. Therefore neither parties, nor other persons who have an interest in the event of an action, suit or proceeding, are excluded; nor those who have been convicted of crime; *  *  * although in every case, *  *  * the credibility of the witness may be drawn in question[.]” The Code of Civil Procedure and Other General Statutes of Oregon § 700, 174-75 (1863) (emphases added). Furthermore, although witnesses generally could not be impeached with prior wrongful acts, a witness could be impeached with evi- dence disclosed “by the examination of the witness, or the record of the judgment, that he has been convicted of a crime.” Id. at § 830, 203; see also id. at § 837, 205 (“a witness must answer as to the fact of his previous conviction for felony”). 386 State v. Aranda of the defendant or by the record of a judgment that he had been convicted of a crime.”); People v. Braun, 14 Cal 2d 1, 6, 92 P2d 402 (1939) (no error for prosecution to ask defen- dant on cross-examination whether he had previously been convicted of murder, even though murder conviction was on appeal at time of trial and subsequently was reversed); People v. David, 12 Cal 2d 639, 646, 86 P2d 811(1939) (rule permitting witness to “be impeached by proof that he has suffered the prior conviction of a felony” “applies to a defen- dant who testifies in his own behalf in a criminal trial not- withstanding the fact the such evidence tends to prejudice him in the eyes of the jury”); State v. Morgan, 192 Wash 425, 431, 73 P2d 745 (1937) (“clearly proper” for prosecution to ask defendant on cross-examination whether he had previously been convicted of crime); Mansbach v. United States, 11 F2d 221, 224 (3d Cir 1926) (stating, under New Jersey law, that “if the defendant offer[s] himself as a witness, his conviction of another crime may, on cross-examination, be shown for the purpose of affecting his credibility as a witness”). Some of our own decisions from the period predat- ing the adoption of the Oregon Evidence Code had rejected balancing more generally, reasoning that the discretionary aspect of balancing would mean that the same evidence could be treated differently by different judges. See State v. Manrique, 271 Or 201, 210-11, 531 P2d 239 (1975) (rejecting balancing for prior-crime evidence); see also Smith v. Durant, 271 Or 643, 658-60, 534 P2d 955 (1975) (rejecting balanc- ing as to impeachment of a nondefendant witness with prior convictions, noting that “the same evidence admitted in one court might well be excluded by another,” such that “the result in a case might well depend upon what court or judge it is tried before”). Thus, insofar as defendant seeks to establish a historical practice of mandatory judicial bal- ancing before a criminal defendant’s conviction history may be admitted as impeachment, neither this court’s case law, nor that of the other jurisdictions discussed above, readily provides support for defendant’s position. That is not to say that defendant’s concerns are his concerns alone. Despite—or perhaps due to—the wide- spread acceptance of impeachment by prior conviction, the Cite as 372 Or 363 (2024) 387 practice became subject to growing academic criticism in the last century. See Ladd, 89 U Pa L Rev at 184-91 (1940 law review article discussing chilling effect on a defendant’s right to testify and potential for prejudice when jurors hear about prior convictions). Notably, however, even those critical of admitting conviction history for impeachment purposes acknowledged that almost every state allowed the practice. See id. at 187 (when a defendant testifies, “the right of the state to prove convictions of a crime is almost uni- versally admitted as a test of veracity”). And, although the 1942 Model Code of Evidence and the 1953 Uniform Rules of Evidence both would have given trial courts discretion to exclude impeachment evidence deemed unduly prejudicial, see Green, 490 US at 513 (discussing both), those specific provisions were not widely adopted. Moreover, the concerns expressed in academic cir- cles initially gained little traction in the courts. However, in 1965, the United States Court of Appeals for the District of Columbia Circuit held that judicial balancing for prejudice was required before criminal defendants could be impeached with their conviction histories. Luck, 348 F2d at 769-70; see Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 51 FRD 315, 393 (1971) (advisory committee’s note) (discretionary balancing regarding impeachment by prior convictions “finds its genesis in Luck”; “[p]rior to that decision, slight latitude was recognized for balancing proba- tive value against prejudice, though some authority allowed or required the trial judge to exclude convictions remote in point of time”); Roger C. Park, Impeachment with Evidence of Prior Convictions, 36 Sw U L Rev 793, 796 (2008) (identi- fying Luck as the probable first decision). Significantly, the Luck opinion was a statutory ruling, based on the text of a District of Columbia (D.C.) Code provision. As the circuit court explained, that provision: “says, in effect, that the conviction ‘may,’ as opposed to ‘shall,’ be admitted; and we think the choice of words in this instance is significant. The trial court is not required to allow impeachment by prior conviction every time a defen- dant takes the stand in his own defense. The statute, in 388 State v. Aranda our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. *  *  * There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field.” 348 F2d at 768 (footnotes omitted). The authoring judge in Luck would later express in a law review article his view that the Luck decision repre- sented a dramatic change in existing law: “In the District of Columbia, it was common practice for the prosecution in a criminal case automatically to enter in evidence any and all prior convictions, except certain minor misdemeanors, whenever the defendant elected to appear on the witness stand in his own defense. This proce- dure appeared to be the established and accepted mode of proceeding, not only in the District of Columbia but almost everywhere in the United States.” Carl McGowan, Impeachment of Criminal Defendants by Prior Convictions, 1970 L & Soc Order 1, 1 (1970) (footnote omitted). The Luck holding itself did not endure, because in 1970 Congress amended the D.C. Code to overrule that decision’s holding. See Green, 490 US at 514 (citing District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub L 91-358, § 133(b), 84 Stat 551); Victor Gold, Impeachment by Conviction Evidence: Judicial Discretion and the Politics of Rule 609, 15 Cardozo L Rev 2295, 2300 (1993) (same). However, the ensuing adoption of the Federal Rules of Evidence in 1975 continued the controversy over balancing and the Luck decision. The advisory committee’s9 first proposed Federal Rules of Evidence expressly rejected the Luck doctrine and made no provision for discretion or balancing. See Green, 490 9  The advisory committee had been appointed by the Chief Justice of the United States Supreme Court. The committee prepared several preliminary drafts of the Federal Rules of Evidence before submitting the final version to the Supreme Court. The Court, in turn, submitted the draft rules to Congress for enactment. See Gold, 15 Cardozo L Rev at 2298 n 18 (summarizing process). Cite as 372 Or 363 (2024) 389 US at 515; Gold, 15 Cardozo L Rev at 2298-99; Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, 46 FRD 161, 295-99 (1969) (proposed Rule 6-09 and advisory committee’s note). Due to criticism of the first proposal’s rejection of Luck, the advisory committee reversed course and incor- porated Luck’s holding in its revised proposal. See Green, 490 US at 515-16; Gold, 15 Cardozo L Rev at 2299-300; Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 51 FRD 315, 391-93 (1971) (proposed Rule 6-09 and advisory committee’s note). In doing so, however, the committee failed to note or acknowledge that Congress had legislatively overruled Luck by amending the D.C. Code. That perceived affront to the will of Congress led to a legis- lative attempt to limit the rulemaking power of the Supreme Court. Gold, 15 Cardozo L Rev at 2300-01. That attempt ultimately failed. Nonetheless, the advisory committee pre- pared a final draft of the Federal Rules of Evidence that reverted to the original proposal and removed discretionary balancing. See Green, 490 US at 516-17; Gold, 15 Cardozo L Rev at 2301; Rules of Evidence for United States Courts and Magistrates, 56 FRD 183, 269-72 (1972) (proposed Rule 6-09 and advisory committee’s note). That was the version sub- mitted to Congress. Green, 490 US at 517. FRE 609 was equally controversial in Congress. Ultimately, the version of the Federal Rules of Evidence that Congress adopted in 1975 included a version of FRE 609 that codified much of the balancing test of Luck. That out- come was the compromise product of a hard-fought political battle, and the result was quite controversial. See Gold, 15 Cardozo L Rev at 2301-08 (discussing history in detail); id. at 2303 (“The extent of the floor debate in the House over Rule 609(a) far exceeded that relating to any other provision in all the proposed Federal Rules of Evidence.”); id. at 2307 (conference committee forced to reconcile essentially contra- dictory drafts from House and Senate). 390 State v. Aranda One aspect of that compromise was that it limited what evidence would be subject to balancing when a defen- dant took the stand as a witness. Felonies as a general mat- ter would be subject to some form of balancing. FRE 609(a) (1). But any prior conviction—whether or not a felony convic- tion—would be automatically admissible, without balancing, if the crime involved an act of dishonesty or a false state- ment. FRE 609(a)(2) (“[F]or any crime regardless of the pun- ishment, the evidence must be admitted” if “the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.”) (Emphasis added).10 Thus, the federal rule—along with the many states that follow that rule or something close to it—requires bal- ancing as to at least some prior convictions: those for crimes that did not involve false statements or acts of dishonesty. See FRE 609. However, the federal rule and analogous state rules allow a criminal defendant to be impeached by some prior convictions without any balancing of probative value against prejudice. And in the context of convictions for dis- honesty, at least, we are unaware of any case holding that the absence of balancing violates the federal Due Process Clause. With that background in mind, we return to the question of what historical practice shows. Again, defen- dant has the burden of showing that trial court balancing of the probative value of impeachment evidence against its 10  FRE 609 currently provides, in part: “(a)  In General. The following rules apply to attacking a witness’s char- acter for truthfulness by evidence of a criminal conviction: “(1)  for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: “*  *  *  *  * “(B)  must be admitted in a criminal case in which the witness is a defen- dant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and “(2)  for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” Although FRE 609 has been amended in various ways since 1975, none of those amendments affect our assessment of the rule’s enactment history or the degree, if at all, to which that history reflects historical practices. Cite as 372 Or 363 (2024) 391 potential for prejudice—at least with regard to conviction history used to impeach criminal defendants—is a histori- cal practice that is either “entrenched in the central values of our legal system,” Kahler, 589 US at 279, or “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Egelhoff, 518 US at 43. Defendant has not met that burden. To the contrary: The common-law cases regarding witnesses who had been pardoned for their crimes, as well as decisional law into the latter half of the twenti- eth century, show an established practice of allowing wit- nesses—including criminal defendants—to be impeached with prior convictions without any balancing. The novelty of the Luck decision and the battle over FRE 609 confirms that, as late as the mid-1970s, discretionary balancing of the sort that OEC 403 permits was far from established practice with regard to impeachment evidence. And even today, the federal rules do not permit balancing as to some types of convictions, even when offered to impeach testifying defen- dants. That history therefore does not show an “entrenched” practice of requiring trial courts to balance the probative value of impeachment evidence against its potential to prej- udice criminal defendants who choose to testify. Although that history weighs heavily against defen- dant’s position, it does not end our analysis. In the absence of a historical practice, Medina requires us to consider “whether the [challenged] rule transgresses any recognized principle of ‘fundamental fairness’ in operation.” 505 US at 448. (internal citation omitted). Cf. Williams, 357 Or at 18 (characterizing test as “the principles that animate the Due Process Clause”). We turn to that question. b.  Fundamental fairness As a freestanding consideration under the Due Process Clause, an assessment of “fundamental fairness”— at least with regard to the introduction of evidence—asks “whether the introduction of th[e] type of evidence [at issue] is so extremely unfair that its admission violates fundamen- tal conceptions of justice,” Dowling, 493 US at 352, or, stated another way, would “  ‘so infuse[  ] the trial with unfairness as to deny due process of law,’  ” Estelle v. McGuire, 502 US 62, 75, 112 S Ct 475, 116 L Ed 2d 385 (1991) (quoting Lisenba 392 State v. Aranda v. California, 314 US 219, 228, 62 S Ct 280, 86 L Ed 166 (1941)). Before exploring that question with regard to the use of impeachment evidence in this case, it bears empha- sizing that defendant’s position is not that the admission of felony convictions to impeach a criminal defendant’s cred- ibility is itself fundamentally unfair.11 Rather, defendant contends that due process requires the application of a par- ticular procedural rule—specifically, OEC 403 balancing— as a safeguard to ensure that evidence so extremely preju- dicial as to violate due process will not be admitted. Thus, this case differs from cases such as Williams, where the court’s focus was on whether the use of other-acts evidence to prove the defendant’s propensity to commit child sexual abuse was so “extremely unfair” as to violate “fundamen- tal conceptions of justice,” 357 Or at 18 (internal quotation marks omitted), and Baughman, where this court discussed OEC 404(4)’s potential effect of opening the door for the first time to evidence that was historically inadmissible due to its widespread recognition as unfairly prejudicial, 361 Or at 400-01 (concluding that the legislature intended for courts to apply the specific balancing test set out in OEC 403 when due process requires that OEC 404(4) evidence be subject to some form of balancing). Nonetheless, we find it helpful to consider the spe- cific purpose for which the trial court admitted the dis- puted evidence in this case: to impeach, in accordance with a state evidentiary rule, a criminal defendant’s testimony with his felony conviction history. As we have noted, to determine whether due process requires a particular rule of criminal procedure—or, as relevant here, a particular rule of evidence—”we must do our best to determine how the United States Supreme Court would decide that ques- tion.” Williams, 357 Or at 17. And it stands to reason that, if it is unlikely that the Supreme Court would ever consider a particular use of evidence so extremely unfair as to violate fundamental conceptions of justice, then it is equally or even 11  Neither has defendant ever argued that the specific impeachment evidence admitted in this case violated his constitutional rights because it was “extremely unfair,” Dowling, 493 US at 352, or “so infused the trial with unfairness as to deny due process of law,” Estelle, 502 US at 75. Cite as 372 Or 363 (2024) 393 more unlikely that the Court would require trial courts to engage in specific procedures—including OEC 403 balanc- ing—before allowing that use in a given case. Considering that question, although we need not endorse the state’s apparent view that the admission of evi- dence in accordance with a state evidentiary rule will never violate due process, we see little indication that the Supreme Court would hold that permitting a defendant’s testimony to be impeached with the defendant’s felony conviction his- tory violates the Due Process Clause. As our own case law suggests, the assessment of whether evidence is “extremely unfair” appears to depend on not only the character of the evidence itself, but also on the purpose for which the evi- dence may be used. To be sure, using defendant’s felony con- victions to impeach his testimony as OEC 609 contemplates arguably put “other acts” evidence before the jury, even if it is not typically characterized that way. And with regard to “other acts” in general, there are longstanding limits on the purposes for which that evidence may be used. See Williams, 357 Or at 8-10 (recognizing historical practice of prohibit- ing use of other-acts evidence to prove propensity in cases other than child sexual abuse cases); State v. Pinnell, 311 Or 98, 103-04, 806 P2d 110 (1991) (discussing principles); see also OEC 404(3) (stating general prohibition against use of evidence of “other crimes, wrongs or acts *  *  * to prove the character of a person in order to show that the person acted in conformity” with that character). But notably, the use of prior convictions for impeachment purposes does not fall within the strict parameters of that prohibition. That is, the general prohibition against “other acts” evidence applies only if the sole reason for offering evidence of a person’s prior acts is to show that the person has a propensity to engage in such conduct, a distinction that the evidence code itself reflects: “Evidence of other crimes, wrongs or acts is not admissi- ble 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 *  *  *.” OEC 404(3) (emphasis added); see Williams, 357 Or at 7-10 (discussing history of courts excluding other-acts evidence 394 State v. Aranda to show propensity); State v. Johns, 301 Or 535, 547, 725 P2d 312 (1986), overruled in part on other grounds by State v. Skillicorn, 367 Or 464, 493, 479 P3d 254 (2021) (OEC 404(3) is focused on the use of other-acts evidence for the specific purpose of proving a person’s character “as a basis for the further inference that he therefore is guilty of the pres- ent charge” (internal quotation marks and citations omit- ted)). Here, the evidence is offered for another purpose—to impeach defendant’s credibility—to which the presumptive prohibition does not apply. See Edward J. Imwinkelried, 1 Uncharged Misconduct Evidence § 1.11, 44-45 (rev ed 2017) (so noting). We recognize that impeaching a criminal defendant with a prior conviction can give rise to concerns similar to those resulting from the use of “other acts” evidence: There is at least some risk that the jury will misuse the prior conviction as evidence that the defendant is a bad person deserving of punishment and convict the defendant in part for that reason, rather than solely due to the strength of the prosecution’s case. See, e.g., Park, 36 Sw U L Rev at 810 (so noting). Thus, as with “other acts” evidence that is admissi- ble for some but not other purposes, the challenge with OEC 609 evidence is limiting its use to the purpose for which, under our system of justice, it may legitimately be consid- ered. Cf. Michelson v. United States, 335 US 469, 475-76, 69 S Ct 213, 93 L Ed 168 (1948) (explaining that the reason for prohibiting character evidence is that “it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge” (footnote omitted)). Despite that similarity, however, we cannot over- look that there also are significant differences between using “other acts” evidence to prove propensity and using prior convictions to impeach a defendant’s credibility as a witness. For one, unlike propensity evidence, impeachment evidence in the form of a witness’s criminal record has long been recognized as probative of credibility and therefore rel- evant and admissible for that purpose. In contrast, cases holding that the use of other-acts evidence raises due process Cite as 372 Or 363 (2024) 395 concerns have emphasized that propensity evidence, at least historically, has been deemed irrelevant for any legitimate purpose. For example, in McKinney v. Rees, 993 F2d 1378, 1380-84, (9th Cir 1993), cert den, 510 US 1020 (1993), the Ninth Circuit considered whether the admission of certain evidence against the defendant, who had been accused of murdering his mother with a knife, had rendered his trial fundamentally unfair. The disputed evidence included the fact that the defendant was fascinated with knives, that he had previously possessed (but no longer possessed at the time of the murder) “double-edge, dagger-type” knives, and that “on occasion he strapped a knife to his body while wear- ing camouflage pants.” Id. at 1382. Noting that it had previ- ously held that only “if there are no permissible inferences the jury may draw from the evidence can its admission vio- late due process,” id. at 1384 (emphasis in original; internal quotation marks and alterations omitted), the Ninth Circuit held that the admission of that character evidence, which was not only irrelevant to “any fact of consequence,” but also “emotionally charged” and extensive, had rendered the defendant’s trial fundamentally unfair and therefore in vio- lation of due process, id. at 1383-86 (observing as to certain other evidence that, even though it may have been inadmis- sible under California’s version of OEC 403 because it was more prejudicial than probative, the only relevant inquiry for purposes of due process was whether the evidence was relevant); see United States v. Morena, 547 F3d 191, 194- 97 (3rd Cir 2008) (district court plainly erred in admitting extensive evidence of the defendant’s drug-related activities in trial on weapons charges, where evidence was probative of only character and therefore not relevant to any legiti- mate trial issue); see also Estelle, 502 US 62 (rejecting due process challenge to admission of “battered child syndrome” evidence on grounds that evidence was irrelevant due to the Court’s conclusion that the evidence was in fact relevant). In addition to that distinction between admitting potentially prejudicial evidence whose relevance is undis- puted, on the one hand, and prejudicial evidence that is not admissible for any legitimate purpose, on the other, 396 State v. Aranda impeaching a defendant with prior convictions under OEC 609 also involves various procedural mechanisms that the Supreme Court would likely view as safeguards that help to ensure that admitting that evidence without OEC 403 balancing will not render a defendant’s trial “fundamen- tally unfair.” Cf. Perry, 565 US at 245 (“tak[ing] account of other safeguards built into our adversary system that cau- tion juries against placing undue weight on eyewitness tes- timony of questionable reliability” when rejecting argument that due process required trial court to determine whether evidence was reliable). First, under OEC 609, impeachment evidence is subject to restrictions intended to limit the potential for abuse by the state or misuse by the jury. The state may pres- ent “the names and nature of the crimes of which he has been convicted[.]” State v. Wilson, 182 Or 681, 697-98, 189 P2d 403 (1948). Typically, impeachment with a prior con- viction involves asking a witness about the conviction; if the witness denies it, then the state may present the judgment of conviction. Alternatively, the state may simply introduce the judgment of conviction without first questioning the wit- ness about it. In either event, however, nothing further is permitted. As we have summarized: “It is proper to ask a witness if he has ever been convicted of a crime. This may be done with or without a record of conviction being available. If the witness answers ‘No,’ that is the end of the interrogation. If an authenticated record to refute the negative answer is available it may be intro- duced to show an actual previous conviction of crime by the witness. Or, the record may be introduced in the first instance, without a preliminary question to the witness, to show previous convictions.” State v. Rollo, 221 Or 428, 437, 351 P2d 422 (1960). “That *  *  * is the limit permissible by our procedure.” Id.; see also Note, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L J 763, 776-77 (1961) (discussing similar restrictions nationally). Second, the jury must be given an appropriate limiting instruction. See OEC 105 (“When evidence which is admissible *  *  * for one purpose but not admissible *  *  * Cite as 372 Or 363 (2024) 397 for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”). As the Supreme Court explained in Michelson: “We do not overlook or minimize the consideration that ‘the jury almost surely cannot comprehend the judge’s lim- iting instruction,’ which disturbed the Court of Appeals. *  *  * However, limiting instructions on this subject are no more difficult to comprehend or apply than those upon var- ious other subjects; for example, instructions that admis- sions of a co-defendant are to be limited to the question of his guilt and are not to be considered as evidence against other defendants, and instructions as to other problems in the trial of conspiracy charges. A defendant in such a case is powerless to prevent his cause from being irretriev- ably obscured and confused; but, in cases such as the one before us, the law foreclosed this whole confounding line of inquiry, unless defendant thought the net advantage from opening it up would be with him. Given this option, we think defendants in general and this defendant in particu- lar have no valid complaint at the latitude which existing law allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the defense.” 335 US at 484-85 (internal citation omitted); see Spencer, 385 US at 561-63 (defendant’s interests were protected in part by limiting instruction, the jury is “expected to follow instructions in limiting this evidence to its proper func- tion,” and jury instruction at issue was no more difficult for jury to understand than in Michelson); see also Marshall v. Lonberger, 459 US 422, 438 n 6, 103 S Ct 843, 74 L Ed 2d 646 (1983) (reaffirming Spencer and stating that “the crucial assumption underlying the system of trial by jury is that juries will follow the instructions given them by the trial judge” (internal quotation marks and citation omitted)). Finally, a defendant’s conviction history is wholly inadmissible under OEC 609 unless the defendant volun- tarily chooses to testify. That renders such evidence sub- stantially different from “other acts” evidence, which, when permitted, may be introduced in the state’s case-in-chief and is a matter entirely outside the defendant’s control. The admission of prior convictions, on the other hand, is some- thing that a defendant has the power to foreclose, albeit at 398 State v. Aranda the cost of forgoing the right to testify. Although we rec- ognize the difficult tradeoff between important rights that such a choice must entail, we are charged with anticipat- ing how the Supreme Court would rule in a case such as this, and we are unaware of any decision of the Supreme Court suggesting that having to make such decisions some- how renders the trial fundamentally unfair. Indeed, as the Court stated in Michelson in discussing the state’s right to introduce evidence of a defendant’s bad character to rebut the defendant’s own evidence of good character, “[t]he price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.” 335 US at 479.12 Given those procedural mechanisms, as well as the Supreme Court’s pronouncements addressing closely related issues, we conclude that the Supreme Court is unlikely to conclude that impeaching criminal defendants with prior felony convictions is “so extremely unfair” as to “violate[  ] fundamental conceptions of justice” or that doing so would “so infuse the trial with unfairness as to deny due pro- cess of law.” See Dowling, 493 US at 354 (no due process violation in admitting evidence of prior crime for which the defendant had been acquitted); Spencer, 385 US at 564-69 (no violation of due process to permit jury to hear, during guilt phase, evidence of defendant’s prior convictions rele- vant only to sentencing); cf. McGautha, 402 US at 183 (rule allowing impeachment with defendant’s prior convictions did not unconstitutionally burden defendant’s right to tes- tify). And even if the Supreme Court might find particular 12  To be clear, defendant does not contend that the threat of impeachment with his conviction history unconstitutionally burdened his right to testify, and we do not consider that issue here. Although we have not had occasion to con- sider that issue under the Oregon Constitution, we note that that argument, as distinct from defendant’s due process argument, has previously been considered by the Supreme Court under the Sixth Amendment. See, e.g., Ohler v. United States, 529 US 753, 759-60, 120 S Ct 1851, 146 L Ed 2d 826 (2000) (possibility of impeachment with prior convictions may deter defendant from testifying, but it does not unconstitutionally burden the defendant’s right to testify); McGautha v. California, 402 US 183, 215, 91 S Ct 1454, 28 L Ed 2d 711 (1971) (stating that, although “a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions,” “it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify”). Cite as 372 Or 363 (2024) 399 impeachment evidence “extremely unfair” in a specific case—a question not raised by defendant’s appeal—we find no basis to conclude that the Supreme Court would dictate that trial courts conduct OEC 403 balancing in all cases in which it is requested so as to ensure against that occur- rence.13 As a result, we are not persuaded by defendant’s argument that the Due Process Clause requires trial courts to conduct OEC 403 balancing before admitting a criminal defendant’s conviction history as impeachment evidence under OEC 609. C.  The dissent The dissent does not challenge our conclusion that due process does not require a trial court to conduct OEC 403 balancing before admitting OEC 609 impeachment evidence against a criminal defendant. Instead, without refuting the reasoning that brought us to that conclusion, the dissent argues that we should reach a different conclusion, one that answers—or at least partially answers—a different ques- tion. See ___ Or at ___ (Walters, S. J., dissenting) (slip op at 20:2-3) (advocating for rule that trial courts “must, among other things, balance the probative value of the proffered evi- dence against it prejudicial effect” (emphasis added)). In the dissent’s view, we have erroneously focused on whether the Court of Appeals erred in accepting defendant’s argument that OEC 403 balancing is required, when, the dissent con- tends, what is at issue is in this case is whether the trial court erred in accepting the state’s argument and admitting evidence of defendant’s felony conviction history without balancing the probative value of that evidence against its potential for prejudice. Id. at ___ (slip op at 2:4-8). We respectfully disagree that our opinion—which considers whether the trial court’s ruling was in error, not 13  We are not suggesting that trial courts have no authority to consider a defendant’s contention that the use of specific impeachment evidence in a partic- ular case is so extremely unfair as to violate due process, but defendant has not made that contention here. And, although the state in this case has argued that evidence admissible under the terms of OEC 609 does not rise to that level, it also does not suggest that OEC 609 or any other authority requires a trial court to admit evidence that does violate due process. But, because defendant has not presented that argument, our decision in this case should not be viewed as fore- closing it, nor as determining the precise form of analysis that such an argument would require. 400 State v. Aranda whether the trial court or the Court of Appeals accepted the wrong party’s argument—is misdirected. We instead think that, by posing the wrong questions and relying on case law that is largely or even wholly distinguishable, the dissent’s approach is misguided. We address those various issues in turn. 1.  The dissent poses the wrong questions. We begin with the question presented in this case. The dissent expressly acknowledges that, “at trial and on appeal, defendant has argued that due process requires ‘balancing under OEC 403[.]’  ” Id. at ___ (slip op at 9:12-14). But the dissent does not address the question raised by that argument. Rather, based on an erroneous assessment that defendant’s position has never been that the requisite bal- ancing includes OEC 403’s discretionary component—under which trial courts have discretion to exclude evidence whose potential for prejudice substantially outweighs its proba- tive value14—the dissent seemingly finds room to embark on a line of inquiry that wholly sidesteps defendant’s actual argument in favor of questions no one raises in this case: whether OEC 609 unconstitutionally compels courts to admit evidence that will deprive defendants of their right to a fundamentally fair trial, and, if so, what procedure are trial courts constitutionally required to follow to ensure that such evidence is not admitted? The dissent’s root concern is that, in light of OEC 609’s mandatory wording, it might be viewed as somehow overriding a defendant’s due process rights. See id. at ___ (slip op at 2:10-11) (emphasizing that “due process overrides OEC 609 and requires trial courts to exclude ‘extremely unfair’ evidence”). If that were that the only point that the 14  In the trial court, defendant cited this court’s decisions in Williams and Baughman, and argued that, consistent with those decisions, due process required the trial court to subject the state’s impeachment evidence to OEC 403 balancing before allowing its admission. And, as we have explained, those deci- sions collectively established that, when due process requires trial courts to con- duct balancing, OEC 404(4)(a) requires that they conduct OEC 403 balancing in accordance with its terms.___ Or ___(slip op at 35:2-10)); see Baughman, 361 Or at 398 (so stating). Because the terms of OEC 403 expressly grant trial courts discretion whether to exclude potentially prejudicial evidence, defendant’s argu- ment for OEC 403 balancing necessarily included an argument that due process required courts to have that discretion, contrary to the dissent’s understanding. Cite as 372 Or 363 (2024) 401 dissent wished to make, then it would require little response. It is axiomatic that defendant’s right to due process overrides any state rule of criminal procedure that would render his trial fundamentally unfair. But the dissent does not stop at that simple observation. Rather, it relies on that observation as jumping-off grounds for a second due process inquiry, one undertaken without prompting by the parties or the assis- tance of any briefing: Because OEC 609 cannot constitu- tionally serve as a gateway for the admission of “extremely unfair” evidence, what procedure must trial courts follow to ensure that the admission of OEC 609 evidence will not be fundamentally unfair, if it is not the procedure dictated by the terms of OEC 403 as defendant contends? Notably, the dissent undertakes that inquiry even though it recognizes that, when evaluating a due process challenge to the admission of evidence, the focus must be on the evidence itself and whether its admission would be so “extremely unfair” as to deprive the defendant of a fun- damentally fair trial. Dowling, 493 US at 352; see id. at ___ (slip op at 10:21 - 11:1) (agreeing that “due process does not require trial courts to exclude evidence proffered under OEC 609 unless its admission would deny the defendant a fair trial” (emphasis added)). Yet, despite that recognition, the dissent would nonetheless conclude that a particular proce- dure is required, one at least rooted in OEC 403, if not OEC 403 balancing per se. See id. at ___ (slip op at 19:21 - 20:3) (calling for procedural overlay to OEC 609). For the reasons already articulated, we do not conduct that inquiry in this case, much less draw any conclusion as to what process may apply. 2.  The dissent’s reliance on our own case law is misplaced. The dissent purports to find guidance in our own case law, specifically Williams and Baughman, and federal decisions construing the Due Process Clause, but the dissent misunderstands the significance of that case law or places weight on it that it cannot bear. We begin by discussing our own case law, after which we will address the dissent’s mis- placed reliance on federal case law that does not support the dissent’s reasoning. 402 State v. Aranda First, the dissent spends considerable time dis- cussing our decisions in Williams and Baughman before concluding that, “when the state offers other acts evidence for character or noncharacter, propensity or nonpropensity purposes, due process requires that the trial court engage in balancing to consider whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” Id. at ___ (slip op at 7:12-8:2). As we will explain, however, that statement greatly overstates the potential sig- nificance of those decisions here. In Williams, this court properly applied the Supreme Court’s framework by first identifying the procedural rule that the defendant contended was “so fundamental as to be embodied in the federal constitution,” which in that case was the rule against using “other acts” evidence to prove the defendant’s character and related propensity to commit the charged offense. 357 Or at 17. Here, the procedural rule that defendant contends is constitutionally required is one that would compel a trial court to conduct OEC 403 balancing before admitting evidence of a criminal defendant’s felony conviction history to impeach his credibility. However, the dissent never explores the historical underpinnings of any such rule. We recognize that, as the dissent correctly notes, this court in Williams, having not found a historical prac- tice to support the defendant’s proposed rule in that case— one that would require OEC 403 balancing before allowing other-acts evidence in child sexual abuse cases—turned to other “fundamental conceptions of justice” before conclud- ing that balancing was constitutionally required in that context. See Williams, 357 Or at 17-18 (because relevant historical practice was “not as clear,” turning to “principles that animate the Due Process Clause”). However, there are two reasons that our holding in Williams—concluding that balancing was required before other-acts evidence could be admitted—cannot sustain the dissent’s view. The first reason that Williams does not support the dissent’s view is that, as we have already observed, the challenged evidence in Williams was specifically offered to prove the defendant’s character and his propensity to act Cite as 372 Or 363 (2024) 403 accordingly, i.e., to commit the charged crimes. 357 Or at 7. Although we ultimately concluded that such evidence would be admissible (subject to balancing) in child sexual abuse cases, our analysis was against the backdrop that, in all other contexts, “other acts” evidence that was probative only of a defendant’s bad character has historically been rec- ognized as both irrelevant to any legitimate purpose and extraordinarily prejudicial. Here the challenged evidence is defendant’s conviction history, which the state offered to impeach his testimony. In contrast to the propensity evi- dence at issue in Williams, (1) conviction history has long been deemed highly relevant to a person’s credibility; and (2) defendant’s OEC 403-based objection to that evidence is that there is a risk that the jury will improperly rely on it as demonstrating propensity, not that the evidence will be spe- cifically admitted for that purpose. Thus, although there is some risk that the jury will use the impeachment evidence improperly, we do not view that risk to be of the same mag- nitude as the concerns that informed our ultimate holding in Williams, nor do we think that the Supreme Court would equate the two. The second reason that the dissent’s reliance on Williams is misplaced is that, as discussed above, the dis- sent fails to take account of defendant’s argument, which is that due process requires that OEC 609 evidence be subject to OEC 403 balancing, not merely that due process requires the exclusion of evidence that is so extremely unfair that it violates fundamental conceptions of justice. As we explain above, ___ Or at ___ (slip op at 35:17-21), it is one thing to con- tend that a specific evidentiary item is “extremely unfair”; it is another thing altogether to contend that trial courts must engage in specific procedures to ensure that unfair evidence is not admitted. And, whatever legal test due process may require in this context, there is no basis to conclude, as the dissent contends, that the factors that due process requires trial courts to consider are, “among other things,” those dic- tated by OEC 403, much less that courts must be permitted to exclude relevant evidence whenever “its probative value is substantially outweighed by the danger of unfair preju- dice[.]” ___ Or at ___ (Walters, S. J., dissenting) (slip op at 19:21-20:3) 404 State v. Aranda We recognize that Williams stated, with regard to propensity evidence admitted under OEC 404(4), that due process requires OEC 403 balancing. 357 Or at 18. But see id. at 19 n 17 (declining to reach issue of whether due process “balancing” may in any way be distinct from that permitted by OEC 403). But, as the dissent implicitly acknowledges, that decision has little bearing in regard to impeachment evidence offered under OEC 609. First, as we have dis- cussed, other-acts evidence offered to prove propensity has a long history of being categorically inadmissible, whereas impeachment evidence has historically been recognized as relevant and probative. Thus, the dissent’s effort to char- acterize conviction history as the equivalent of other-acts character evidence is unpersuasive. Second, as this court’s subsequent decision in Baughman makes clear, the require- ment that other-acts evidence be subject to OEC 403 balanc- ing is a matter of statutory construction—specifically con- struction of OEC 404(4)—not constitutional interpretation. 361 Or at 399-400 (stating that, where due process requires balancing before evidence may be admitted under OEC 404(4), the legislature intended that OEC 403 supply the standard, not due process itself, as the latter understand- ing would render OEC 404(4)(d) redundant). Thus, neither Williams nor Baughman supports the view that due process requires a balancing of the OEC 403 factors before admit- ting OEC 609 evidence, whether according to the terms of OEC 403, as defendant contends, or as factors to be con- sidered “among other” unidentified factors, as the dissent contends. ___ Or at ___ (slip op at 20:2).15 We agree that the procedural question that the dis- sent identifies is an important one that should be addressed 15  The dissent’s reliance on federal law fares no better. As we explain above, ___ Or at ___ (slip op at 18:5-17), although the Supreme Court in Dowling men- tions the availability of FRE 403, it neither holds that balancing under that pro- vision is a due process requirement nor that evidence that is excludable under that provision is evidence that would deprive a person of a fair trial. Indeed, the Supreme Court might be viewed as having affirmatively held that evidence that must be excluded under FRE 403—which, like OEC 403 weighs the probative value of evidence against its potential for unfair prejudice—does not necessarily violate a person’s right to due process. That is because the Court in Dowling upheld the Third Circuit’s ruling, applying the harmless-error rule applicable to subconstitutional violations, that the district court’s erroneous application of FRE 403 had been harmless. Cite as 372 Or 363 (2024) 405 in an appropriate case, but we disagree that this is such a case. And, even if this were an appropriate case in which to decide how courts determine when evidence is “extremely unfair,” we might hesitate to accept the dissent’s conclu- sion that due process necessarily requires trial courts to balance OEC 609 evidence using the factors found in OEC 403, an assessment that even the dissent concedes “may not, alone, determine whether the admission of the proffered evidence would deny a defendant a fair trial[.]” Id. at ___ (slip op at 12:7-10) (stating that balancing under OEC 403 “is an essential consideration,” but not identifying any other considerations). Ultimately, the dissent disagrees with the conclu- sion that we reach, but the dissent does not demonstrate that we either have identified the incorrect principles to defendant’s case or that we have erroneously applied them. And, while the legislature may well be interested in fur- ther exploring the issues raised by the dissent, particu- larly those attributed to amici, this court is not at liberty to address them itself, at least not when doing so would require us to interpret the Due Process Clause more broadly than we think that the Supreme Court would interpret it. See, e.g., Sullivan, 532 US at 772 (rejecting Arkansas Supreme Court’s conclusion that it could construe the federal con- stitution to provide greater protection than United States Supreme Court’s own precedents would provide). III.  CONCLUSION In deciding whether a particular rule of criminal procedure is required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, we must determine whether either (1) historical practice has established the rule as a fundamental principle of justice; or (2) the failure to honor the proposed rule would otherwise violate a principle entrenched in the central values of our legal system. Defendant has not met his burden of establish- ing such a principle, nor has our review of the case law dis- closed one. And, although we also have considered whether there are grounds to think that the Supreme Court would conclude that admitting defendant’s felony conviction his- tory as impeachment evidence was so extremely unfair that 406 State v. Aranda it violated fundamental conceptions of justice or infused the trial with such unfairness as to deny due process of law, it is ultimately unnecessary to decide that issue, as it is not an argument that defendant has ever advanced in this case. Rather, it suffices for us to conclude that due process does not require OEC 403 balancing to protect against that possibil- ity. It follows that the Court of Appeals erred in holding that OEC 403 balancing was required. Accordingly, we reverse that court’s decision and affirm the circuit court judgment. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. WALTERS, S.J., dissenting. Respectfully, I dissent. The constitutional issue that this case presents is whether OEC 609(1) must be applied as written or whether it is subject to a due process overlay that permits a trial court to exclude evidence proffered under OEC 609, and, if so, whether, in determining if exclusion is required, the court must, as a step in its analysis, balance the probative value of the proffered evidence against its potential for unfair prejudice. The state’s position is that, in enacting OEC 609, “Oregon has made the constitutionally permissible deter- mination that a witness’s qualifying convictions must be admitted when offered to challenge the credibility of the witness.” Defendant’s position, as I understand it, is that, to comply with due process, OEC 609 must provide room for a trial court to exclude proffered evidence and, in determining whether to do so, the court must engage in balancing. Rather than explicitly rejecting the state’s position and addressing the implications of doing so, the majority states defendant’s position more narrowly and rejects it. The majority does not endorse the state’s view, but it also does not address it. Instead, the majority characterizes defen- dant’s argument as an argument that due process requires application of a particular procedural rule—OEC 403—and requires that a trial court conduct “balancing under OEC 403” before admitting evidence proffered under OEC 609. By that, the majority means that a trial court must apply “OEC 403 in accordance with its terms—that is, balancing Cite as 372 Or 363 (2024) 407 the probative value of evidence against its potential for unfair prejudice and making the discretionary decision whether to exclude the evidence[.]” __ Or at __ n 1 (empha- sis added) (slip op at 1 n 1). So characterized, the majority rejects defendant’s argument and concludes that the Court of Appeals erred in accepting it. That, at bottom, is the basis for my dissent. The issue before this court is not whether the Court of Appeals erred, but, rather, whether the trial court erred when it accepted the state’s argument that OEC 609 must be applied as writ- ten and admitted evidence of defendant’s prior convictions without balancing the probative value of evidence against its potential for unfair prejudice. That, in my view, was error. I write for three reasons: (1) to explicitly affirm what the majority apparently assumes but does not articulate—that is, that due process overrides OEC 609 and requires trial courts to exclude “extremely unfair” evidence;1 (2) to explain why, in determining whether proffered evidence rises to that level, a trial court must, as a step in its analysis, engage in balancing; and (3) to call on the legislature to explicitly align the Oregon rules of evidence with those in other state and federal courts law to ensure defendants’ rights to a fair trial. The path to the conclusion that due process over- rides OEC 609 begins with the Supremacy Clause. OEC 609 is unconstitutional if it “  ‘offends some principle of jus- tice so rooted in the traditions and conscience of our peo- ple as to be ranked as fundamental.’  ” Medina v. California, 505 US 437, 446, 112 S Ct 2572, 120 L Ed 2d 353 (1992) 1  I reach that conclusion, in part, from the following statement of the majority: “We are not suggesting that trial courts have no authority to consider a defendant’s contention that the use of specific impeachment evidence in a particular case is so extremely unfair as to violate due process, but defendant has not made that contention here.” __ Or at __ n 13 (slip op at 43 n 13). Thus, the majority does not take the posi- tion that admitting prior felony convictions to impeach a defendant is never so unfair as to violate due process. The majority also states that “it is axiomatic that defendant’s right to due process overrides any state rule of criminal procedure that would render his trial fundamentally unfair,” __ Or at __ (slip op at 45:13- 15), but it does not expressly recognize that, by requiring a trial court to admit evidence proffered under OEC 609, OEC 609 constitutes such a rule. 408 State v. Aranda (quoting Patterson v. New York, 432 US 197, 202, 97 S Ct 2319, 53 L Ed 2d 281 (1977)). One fundamental principle of justice is that a defendant is entitled to a fair trial and to the exclusion of the type of evidence that “is so extremely unfair that its admission violates fundamental conceptions of justice,” Dowling v. United States, 493 US 342, 352, 110 S Ct 668, 107 L Ed 2d 708 (1990) (internal quotation marks omitted), or, stated another way, evidence that would “  ‘so infuse[  ] the trial with unfairness as to deny due process of law,’  ” Estelle v. McGuire, 502 US 62, 75, 112 S Ct 475, 116 L Ed 2d 385 (1991) (quoting Lisenba v. California, 314 US 219, 228, 62 S Ct 280, 86 L Ed 166 (1941)). The concept of unfair prejudice “  ‘speaks to the capacity of some conced- edly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.’  ” Old Chief v. United States, 519 US 172, 180, 117 S Ct 644, 136 L Ed 2d 574 (1997). Consequently, although OEC 609 requires trial courts to admit evidence of qualify- ing convictions, due process overrides that rule of evidence and requires trial courts to exclude such evidence when its admission would deny the defendant a fair trial. See State v. Moore, 349 Or 371, 389, 245 P3d 101 (2010) (“in all events, no evidence may be admitted that would violate state and federal constitutional standards”). Had the majority explicitly recognized that due pro- cess and, thereby, the right to a fair trial override OEC 609, then the majority would better have understood the next question before it: When a defendant objects to the admis- sion of evidence proffered under OEC 609 as violating the defendant’s right to due process, and the trial court must decide whether to exclude it on that basis, must the trial court undertake an analysis that requires it to engage in balancing? In answering that question, I find it helpful to begin with this court’s decisions in State v. Williams, 357 Or 1, 346 P3d 455 (2015), and State v. Baughman, 361 Or 386, 393 P3d 1132 (2017), two cases in which this court interpreted OEC 404(4), and, in doing so, considered the dictates of due process. OEC 404(4) provides: Cite as 372 Or 363 (2024) 409 “In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by: “(a)  [OEC 406 through 412] and, to the extent required by the United States Constitution or the Oregon Constitution, [OEC 403]; “(b)  The rules of evidence relating to privilege and hearsay; “(c)  The Oregon Constitution; and “(d)  The United States Constitution.” In Williams, the state offered evidence of the defen- dant’s “other acts” to prove his propensity to commit the charged act. The defendant argued that the Due Process Clause required balancing under OEC 403. This court agreed, holding that “the only way that a court can ensure that the admission of ‘other acts’ evidence is not unfairly prejudicial and a violation of ‘fundamental concepts of jus- tice’ is to conduct OEC 403 balancing.” 357 Or at 18. That conclusion, the court reasoned, followed from the United States Supreme Court’s decision in Dowling and from other federal court decisions, including United States v. LeMay, 260 F3d 1018 (9th Cir 2001). Id. In Dowling, the government had offered other acts evidence for a noncharacter purpose—to prove identity under FRE 404(b). The Supreme Court considered whether admission of that type of evidence “failed the due process test of ‘fundamental fairness.’  ” 493 US at 352. The Court recognized that the admission of such evidence could pose a “constitutionally unacceptable risk that the jury will con- vict the defendant on the basis of inferences drawn from the [other acts evidence],” but it upheld its admission against the defendant, because it “ believe[d] that the trial court’s authority to exclude potentially prejudicial evidence ade- quately addresse[d] this possibility.” Id. at 353. In LeMay, the Ninth Circuit upheld the constitu- tionality of FRE 414, a federal rule that, in cases in which the defendant is accused of child molestation, permits the admission of other acts of child molestation on any matter to which it is relevant. The court reasoned that the right to a 410 State v. Aranda fair trial was safeguarded by the application of FRE 403, a federal rule that, like OEC 403, permits trial courts to weigh the prejudicial effect of proffered evidence against its proba- tive value. 260 F3d at 1030. The Ninth Circuit explained that the introduction of “other acts” evidence “can amount to a constitutional violation only if its prejudicial effect far outweighs its probative value” and that, “as long as the pro- tections of Rule 403 remain in place to ensure that poten- tially devastating evidence of little probative value will not reach the jury, the right to a fair trial remains adequately safeguarded.” Id. at 1026-27. Based on its understanding of those federal cases, this court held in Williams that due process requires a trial court to conduct balancing under OEC 403 before admitting “other acts” evidence to prove a defendant’s character and propensity to commit the charged act under OEC 404(4). 357 Or at 18-19. The court explicitly left open, however, whether that balancing was “traditional” or “subconstitutional” bal- ancing, or a narrower, more exacting “due process” balanc- ing. Id. at 19 n 17. The trial court had admitted the contested evidence, and this court said that evidence that was admis- sible under “traditional” balancing also would be admissible “under any distinct ‘due process’ balancing test.” Id. In Baughman, the state had offered other acts evi- dence for a number of noncharacter, nonpropensity pur- poses—to establish the defendant’s intent, motive, common plan or scheme, and the absence of mistake or accident. In this court, the parties assumed that, before admitting that evidence, the trial court was required to balance the preju- dicial effect of the proffered evidence against its probative value, but they disagreed about the legal standard that that balancing entailed. The court understood the question before it to be whether the balancing under OEC 403 is “tra- ditional” or “subconstitutional” balancing—balancing that gives the trial court discretion to exclude evidence whose probative value is substantially outweighed by its prejudi- cial effect—or, as the state posited, “due process” balancing that requires the trial court to exclude propensity evidence under OEC 404(4) “if its admission would render the trial Cite as 372 Or 363 (2024) 411 fundamentally unfair as a matter of law.” Baughman, 361 Or at 397. This court decided that, in enacting OEC 404(4)(a), the legislature intended the courts to conduct balancing under OEC 403, “according to its terms,” meaning that, “[u] nder OEC 404(4)(a) and OEC 403, trial courts may exclude evidence, in the exercise of their discretion, when they deter- mine that its probative value is substantially outweighed by the danger of unfair prejudice.” Williams, 361 Or at 402. The court reasoned that OEC 404(4)(a) and OEC 404(d) “provide two independent bases for excluding other acts evidence” and two different legal standards for doing so. Id. OEC 404(4)(a) gives the trial court discretion to exclude otherwise relevant evidence after conducting balancing, and OEC 404(4)(d) makes exclusion of otherwise relevant evidence nondiscre- tionary when, as a matter of law, its admission would render the trial fundamentally unfair.2 Id. Thus, under Williams and Baughman, when the state offers other acts evidence for character or nonchar- acter, propensity or nonpropensity purposes, due process requires that the trial court engage in balancing to consider whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. The court has discretion to exclude evidence if its probative value is sub- stantially outweighed by its prejudicial effect. But in the narrow circumstance in which the trial court determines that the prejudicial effect of the proffered evidence so far outweighs its probative value that its admission would ren- der the trial fundamentally unfair, then due process requires its exclusion as a matter of law. See LeMay, 260 F3d at 1026 2  The court noted, however, that it was “not entirely clear to us that ‘traditional’ balancing and ‘due process’ balancing are as different as the parties assume that they are. *  *  * [B]oth standards are intended to ensure a trial that is fundamentally fair. If a trial court were to determine, in the exercise of its discretion, that the probative value of other acts evidence was substantially outweighed by the danger of unfair prejudice, but, nevertheless, were to admit that evidence, that might well result in a trial that an appellate court would deem fundamentally unfair. We think it important to note that *  *  * no court, state or federal, has distinguished between the balancing required under codified evidentiary rules and some narrower ‘due process’ balancing.” 361 Or at 402 n 7. 412 State v. Aranda (where prejudicial effect of evidence “far outweighs” proba- tive value, constitutional violation occurs). In other words, under Williams and Baughman, there are two different legal standards for the admission of other acts evidence—but no matter which legal standard applies, balancing is the trial court’s starting point for determining the admissibility of the proffered evidence. In this case, defendant does not contend that OEC 404(4) applies to the admission of his past convictions; rather, he contends that, in interpreting that rule, this court has decided that due process requires “balancing under OEC 403” before other acts evidence can be admitted. As noted, the majority understands defendant’s argument to be that a trial court must balance the probative value of prof- fered evidence against its potential for unfair prejudice and must have discretion to exclude the evidence whenever its unfair prejudicial effect substantially outweighs its proba- tive value. Thus, the majority characterizes the question in this case as whether due process requires both a particular mode of analysis—a balancing of the probative value of prof- fered evidence against its potential for unfair prejudice— and a particular legal standard—discretion to exclude the evidence whenever its unfair prejudicial effect substantially outweighs its probative value. I disagree with the majority’s framing. If the majority were to address and explicitly reject the state’s position that application of OEC 609 is manda- tory and hold that due process gives a trial court authority to exclude such evidence when its admission would deny a defendant a fair trial, then the majority would be entitled to proceed to the question of whether, in entertaining defen- dant’s objection to admission of evidence of his prior convic- tions, the trial court was required to consider the probative value and unfair prejudicial effect of that evidence, and to do so without regard to whether that mode of analysis is cor- rectly described as “balancing under OEC 403.” And even the majority’s exclusive focus on defendant’s argument does not obviate the need for that inquiry. The majority is correct that, at trial and on appeal, defendant has argued that due process requires “balancing under OEC 403,” but defendant does not define that term Cite as 372 Or 363 (2024) 413 and never argues that due process requires that trial courts have discretion to exclude evidence proffered under OEC 609 when, in their discretion, they deem the prejudicial effect of that evidence to outweigh its probative value. And, in this case, the state takes a different position than it took in Baughman. In Baughman, the state accepted that the mode of analysis set out in OEC 403—the balancing of probative value and prejudicial effect—was required before other acts evidence could be admitted under OEC 404(3) for nonchar- acter, nonpropensity purposes. Here, however, the state con- tends that trial courts must admit—and do not have author- ity to exclude—qualifying evidence proffered under OEC 609. Thus, because the state contends that admission of evidence proffered under OEC 609 is mandatory, the state necessar- ily takes the position that trial courts do not have authority to engage in balancing to determine whether to exclude such evidence, and the state does not brief the issue of the nature of the balancing—or any other mode of analysis—that a trial court would be permitted or required to conduct should that authority exist. As this court explained in Williams and Baughman, “balancing under OEC 403” can be understood to mean “traditional” or “due process” balancing—that is, as a mode of analysis that must be conducted both when a defendant asks a trial court to exercise its discretion to exclude evidence as well as when a defendant argues that the proffered evidence must be excluded as a matter of law. Particularly given the state’s argument at trial and on appeal—that trial courts must admit qualifying evidence proffered under OEC 609 without engaging in any balanc- ing to satisfy any legal standard—I am loath to read defen- dant’s argument as taking a position that would foreclose consideration of a pressing constitutional question import- ant to courts and counsel: When a defendant objects to the admission of evidence of the defendant’s prior convictions as violating the defendant’s right to due process, is the trial court required to balance the probative value of the evidence against its unfair prejudicial effect? When defendant argues that due process requires trial courts to “engage in balanc- ing under OEC 403,” I understand defendant to mean that, to ensure a defendant’s constitutional right to a fair trial, due process requires trial courts to balance the probative 414 State v. Aranda value of evidence proffered under OEC 609 against its prej- udicial effect. To be as clear as I can be, I agree, as I state above, that due process does not require trial courts to exclude evi- dence proffered under OEC 609 unless its admission would deny the defendant a fair trial. But, once this court decides, as it must, that trial courts have authority to determine whether that legal standard is met, I see this case as pre- senting a second question—that is, whether, in deciding how to rule on an objection to evidence proffered under OEC 609, trial courts must include, as part of its mode of analysis, a balancing of the probative value and the prejudicial effect of the proffered evidence. Dowling and its progeny provide the constitutional answer to that question, along with its historical underpin- nings. As noted, in Dowling, the Supreme Court started from the premise that it is a fundamental principle of justice that a defendant is entitled to a fair trial and to the exclusion of the type of evidence that “is so extremely unfair that its admission violates fundamental conceptions of justice.” 493 US at 352. In Dowling, the government had offered other acts evidence for a noncharacter purpose—to prove identity under FRE 404(b). The Court considered whether admission of that type of evidence “failed the due process test of ‘funda- mental fairness.’  ” Id. The Court recognized that the admis- sion of such evidence could pose a “constitutionally unac- ceptable risk that the jury will convict the defendant on the basis of inferences drawn from the [other acts evidence],” but it upheld its admission against the defendant it “believe[d] that the trial court’s authority to exclude potentially preju- dicial evidence adequately addresses this possibility.” Id. at 353. In LeMay, the Ninth Circuit explained that the intro- duction of “other acts” evidence “can amount to a constitu- tional violation only if its prejudicial effect far outweighs its probative value” and that, “as long as the protections of Rule 403 remain in place to ensure that potentially devastating evidence of little probative value will not reach the jury, the right to a fair trial remains adequately safeguarded.” Id. at 1026-27. In Williams, this court took that reasoning one step further and held that due process requires balancing Cite as 372 Or 363 (2024) 415 under OEC 403 to protect against admission of such evi- dence when offered to prove a defendant’s character and pro- pensity to commit the charged act. In Baughman, this court accepted that due process also requires balancing to protect against the admission of other acts evidence when offered for a noncharacter, nonpropensity purpose. The outcome of that balancing may not, alone, determine whether the admission of the proffered evidence would deny the defendant a fair trial, but it is an essential consideration in deciding whether admission would be so “extremely unfair” that it would vio- late due process. I do not know why the majority is hesitant to reach that same conclusion here, and, instead, treats other acts evi- dence offered under OEC 609 so differently than this court has treated other acts evidence offered under OEC 404. All other acts evidence implicates not only the right to fair trial but also the presumption of innocence, Spencer v. State of Texas, 385 US 554, 575, 87 S Ct 648, 17 L Ed 2d 606 (1967) (Warren, J., concurring); the principle that a defendant “be tried for what he did, not for who he is,” United States v. Myers, 550 F2d 1036, 1044 (5th Cir 1977); and the require- ment of proof beyond a reasonable doubt, In re Winship, 397 US 358, 364, 90 S  Ct 1068, 25 L  Ed 2d 368 (1970).3 The majority recognizes that the admission of evidence of a testi- fying defendant’s prior convictions under OEC 609 can give rise to a risk of misuse, but it sees “significant differences 3  Justice Warren recognized the relationship between those principles in his concurring opinion in Spencer, stating that “[r]ecognition of the prejudicial effect of prior-convictions evidence has traditionally been related to the requirement of our criminal law that the State prove beyond a reasonable doubt the commission of a specific criminal act.” 385 US at 575 (Warren, J., concurring). An authority on the Federal Rules of Evidence did likewise, stating as follows: “The propensity rule shields the jury from evidence that it would likely overvalue or otherwise mishandle, while the proof beyond a reasonable doubt requirement ensures that factual uncertainties are resolved in favor of the accused. Like the reasonable doubt standard, the propensity rule is an essen- tial corollary to the presumption of innocence.” Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 Am Crim L Rev 57, 81 (1995) (footnotes omitted). Those principles are in play even when evidence is not expressly offered for a propensity purpose. As the Supreme Court recognized in Old Chief, whenever evidence of past convictions is offered for a nonpropensity purpose, there is a dan- ger that that evidence may be “arresting enough to lure a juror into a sequence of bad character reasoning” and therefore be unfairly prejudicial. 519 US at 173. 416 State v. Aranda between using ‘other acts’ evidence to prove propensity and using prior convictions to impeach a defendant’s credibility as a witness.” __ Or at __ (slip op at 38:4-5). The majority takes the position that evidence of the former may not be relevant for any legitimate purpose, whereas evidence of the latter is always relevant to prove credibility, and it says that there is a difference between “admitting potentially preju- dicial evidence whose relevance is undisputed, on the one hand, and prejudicial evidence that is not admissible for any legitimate purpose, on the other[.]” __ Or at __ (slip op at 39:12-14). That those differences exist does not mean that, when other acts evidence is offered for the nonpropensity purpose of impeachment, a trial court must engage in a dif- ferent analysis than it would if the evidence were offered to prove propensity or for another nonpropensity purpose. As this court explained in Williams, trial courts will be presented with a spectrum of evidence and its admission will depend on the differing probative value and prejudicial effect of that evidence: “At one end of the spectrum, ‘other acts’ evidence that is offered for nonpropensity purposes—i.e., to prove motive, intent, identity, or lack of mistake or accident—generally will be admissible as long as the particular facts of the case do not demonstrate a risk of unfair prejudice that out- weighs the probative value of the evidence. At the other end of the spectrum, as the state recognizes, when ‘other acts’ evidence goes only to character and there are no permissi- ble inferences the jury may draw from it, it is more likely that the evidence will be excluded. Such evidence generally will have little or no cognizable probative value, and the risk that the jury may conclude improperly that the defen- dant had acted in accordance with past acts on the occasion of the charged crime will be substantial.” 357 Or at 19-20 (emphasis in original) (citation and internal quotation marks omitted). Whether offered to prove char- acter or offered for impeachment or another noncharacter purpose, evidence of past convictions may or may not be rel- evant. And, whether offered to prove character or offered for impeachment or another noncharacter purpose, due process may require that relevant evidence of past convictions be Cite as 372 Or 363 (2024) 417 excluded. The purpose for which the evidence is offered does not change the nature of the analysis that a trial court must use to make that determination. Evidence offered for nonpropensity purposes gen- erally will have greater legitimate probative value than evidence offered only to prove propensity, but that does not mean that there is not a need to consider the extent of the probative value of the evidence in relation to its prejudicial effect. For example, in McKinney v. Rees, 993 F2d 1378 (9th Cir 1993), one of the cases cited by the majority, other acts evidence was offered to prove that the defendant was lying (in other words, to impeach his credibility) and that he had had an opportunity to commit the charged offense. The Ninth Circuit held that, despite the fact that the prosecution had offered that evidence for those relevant nonpropensity purposes, the only inference that the jury could have drawn from the evidence was that the defendant was the type of person who would commit the charged offense, and that fact rendered the defendant’s trial fundamentally unfair in vio- lation of the Due Process Clause. Id. at 1382-83, 1386. In LeMay, the Ninth Circuit explained its decision in McKinney as follows: “In McKinney, we granted a writ of habeas corpus and over- turned a murder conviction where the petitioner’s trial had been infused with highly inflammatory evidence of almost no relevance. See McKinney, 993 F2d at 1384-85. LeMay, of course, emphasizes that McKinney held that the ban on propensity evidence is of constitutional magnitude. What he misses, however, is the fact that we held that such evi- dence will only sometimes violate the constitutional right to a fair trial, if it is of no relevance, or if its potential for prejudice far outweighs what little relevance it might have. Potentially devastating evidence of little or no relevance would have to be excluded under [FRE] 403. Indeed, this is exactly what [FRE] 403 was designed to do. We there- fore conclude that as long as the protections of [FRE] 403 remain in place so that district judges retain the authority to exclude potentially devastating evidence, [FRE] 414 is constitutional.” Id. at 1026-27 (emphasis in original). In other words, the fact that evidence of a testifying defendant’s prior convictions 418 State v. Aranda may have high probative value in one case does not mean that similar evidence will be equally probative in another case. For that reason, a trial court must have authority to determine whether the value of prior conviction evidence to prove a fact at issue is of such little relevance and is so out- weighed by the danger of unfair prejudice that the admission of that evidence would deny the defendant a fair trial, and it must have authority to exclude the evidence on that ground. Similarly, the majority emphasizes the fact that “impeachment evidence is subject to restrictions intended to limit the potential for abuse by the state or misuse by the jury” may be a factor that a trial court will want to consider in determining whether admission of such evidence would deny the defendant a fair trial, __Or at __ (slip op at 39:14 - 40:1). But the existence of those restrictions does not convince me that balancing is not also required. The majority discusses the following restrictions: (1) the fact that only the “names and nature” of the prior crimes of conviction are admissible; (2) the fact that the jury must be given a limiting instruction cautioning against the use of the evidence for an improper purpose; and (3) the fact that a defendant can avoid admission of the evidence by voluntarily choosing not to testify. __ Or at __ (slip op at 40:1 - 42:8). I agree that those restrictions may have the benefit of limiting potential misuse of the evidence, but they do not relieve trial courts of their responsibility to prevent abuse or misuse of evidence by excluding unfairly prejudicial evidence. Nor are they, even in combination, so protective of a defendant’s right to a fair trial that they obvi- ate the need for the trial court to conduct balancing. As to the first restriction cited by the majority, even when limited to the “name and nature,” prior conviction evi- dence may be more or less probative or prejudicial depending on the prior crime and the elements of the charged crime. Therefore, the fact that only the name and nature of the crime may be introduced does not eliminate the potential for misuse of the evidence. With respect to the second restriction, I note that the courts in Dowling and LeMay did not view the availability of a limiting instruction as sufficient to protect against an unfair trial. Instead, those courts relied on the rule permitting trial courts to balance the probative value of Cite as 372 Or 363 (2024) 419 the evidence against its prejudicial effect and to exclude par- ticularly prejudicial evidence as the basis for their decisions. Dowling, 493 US at 353; LeMay, 260 F3d at 1031. Finally, I do not think that the fact that a defendant can avoid admission of evidence of past convictions by choos- ing not to testify changes the calculus. Forbearance of a con- stitutional right is not a price that a defendant should be required to pay to avoid the risk that the prejudicial effect of the evidence proffered so far outweighs its probative value that he would be deprived of a fair trial. The majority cites Michelson v. United States, 335 US 469, 479, 69 S Ct 213, 93 L Ed 168 (1948), for the propo- sition that “[t]he price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.” Perhaps that was a correct statement in that context of that case. In Michelson, the defendant chose to testify and pro- duced evidence of his good character. Fair play permitted the government to answer in kind. But a defendant who testifies that the charged conduct did not occur does not open that door. A defendant who denies having committed the charged offense is exercising a constitutional right to testify. For me, the conclusion that due process protects the right to a fair trial by requiring trial courts to exclude evi- dence that is “extremely unfair” compels the conclusion that, in analyzing whether exclusion is required, a court must “balance[e] the probative value of evidence against its poten- tial for unfair prejudice.” That analysis may not be the end of the trial court’s analysis, but it is surely the beginning. I see the United States Supreme Court, our federal courts, and states throughout this land as in full agreement, and I would hold that the trial court’s contrary ruling was erroneous.4 4  Federal courts are required to weigh the probative value of prior convic- tion evidence against its prejudicial effect before deciding whether to admit it. FRE 609(1)(B) provides that prior conviction evidence “must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant.” And even before the adoption of FRE 609, federal courts engaged in balancing. See, e.g., Gordon v. United States 383 F2d 936, 940-941 (DC Cir 1967) (setting out factors that a court should consider in exercising discretion as to whether probative value of a prior conviction outweighs its prejudicial effect). 420 State v. Aranda In criticizing the majority for failing to agree that the trial court erred, I do not mean to minimize the signif- icance of its apparent recognition that OEC 609 is subject to due process and that trial courts must exclude extremely unfair evidence proffered under that rule if its admission would deny a defendant a fair trial. In recognizing that due process overlay, the majority goes a long way toward ensur- ing that OEC 609 does not violate “fundamental conceptions of justice.” At the same time, however, it is important to rec- ognize that, as amici curiae see it, “a long way” is not far enough. Amici argue that “rules allowing for impeachment by prior convictions replicate witness competency laws by systematically silencing witnesses with criminal records— who are disproportionately people of color—due to racial bias at each stage of policing and criminal proceedings.” They also inform us that the premise that prior convictions provide information about witnesses’ credibility “is unsup- ported by empirical research.” To the contrary, amici assert, research shows “that jurors tend to rely on prior convictions for the improper purpose of assessing a criminal defendant’s culpability” and that evidence of prior convictions “can also trigger implicit and explicit biases among factfinders.” That research certainly provides a reason for the legislature to reconsider the bright line that it drew when it enacted and when the voters amended OEC 609. And it also reminds us that, as a court, we must be mindful that we cannot uphold rules, even longstanding rules, that are “offensive to our judicial sense of what is fundamentally fair in the context of criminal prosecutions.” Watkins v. Ackley, 370 Or 604, 631, 523 P3d 86 (2022) (internal quotation marks omitted). If there ever were a practice of admitting evidence of a testifying defendant’s convictions without permitting a trial court to exclude that evidence if it would deny a defen- dant a fair trial, that practice has long been replaced, not The facts in this case demonstrate the importance of that inquiry. Defendant was charged with first-degree rape. He expressed his desire to testify at his trial, and he argued that evidence that he had previously been convicted on two counts of first-degree sexual abuse would be unduly prejudicial and that the trial court should conduct balancing to determine whether the evidence should be admitted. In the alternative, defendant offered to make a judicial admission that he had committed prior felonies if the court would preclude the state from naming them. The trial court denied defendant’s requests. Cite as 372 Or 363 (2024) 421 only in select locations, but across this nation. Oregon is an outlier, and there is more that Oregon can do to fulfill its obligation to see “that a jury’s decision is based on the evi- dence and not on racial or other similar biases,” id. at 632, and to ensure that, whatever important policies OEC 609 promotes, they give way to the right to a fair trial. As one small step to that end, I would hold that, when the state proffers evidence under OEC 609 and the defendant objects to its admission, the trial court must determine whether admission of that evidence would violate the defendant’s right to a fair trial and, in doing so, must, among other things, balance the probative value of the prof- fered evidence against its prejudicial effect. For the foregoing reasons, I respectfully dissent. Duncan and Masih, JJ., join in this dissenting opinion.

82685d2738e5d46e1645f8227024ed651863230305718dea211fb19139d3ecfa

2024-05-31T00:00:00Z

841fa157-4053-4e59-887d-531243a689a8

Dept. of Rev. v. Glass

S47572

oregon

Oregon Supreme Court

Filed: November 16, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON DEPARTMENT OF REVENUE, Respondent, v. WHELDON E. GLASS, Appellant. (OTC 4385; SC S47572) En Banc On appeal from the Oregon Tax Court.* Carl N. Byers, Judge. Argued and submitted September 11, 2001. Wheldon E. Glass, appellant pro se, argued the cause and filed the briefs and additional authorities. Jerry Bronner, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief and additional authorities was Hardy Myers, Attorney General. CARSON, C.J. The judgment of the Tax Court is affirmed. *15 OTR 117 (2000). CARSON, C.J. Taxpayer appeals a decision of the Tax Court, which denied his claim for a refund of taxes paid for tax years 1992, 1993, and 1994. Dept. of Rev. v. Glass, 15 OTR 117 (2000). At issue is whether taxpayer was a resident, under ORS 316.027 (1991), for the tax years in question. We review for errors of law and substantial evidence in the record to support the Tax Court's decision. ORS 305.445. The Tax Court found the following facts: "Taxpayer lived in Oregon from 1963 until 1975 when he graduated from high school and joined the United States Marine Corps. Taxpayer left the military in 1989 and returned to Oregon. After working at two different jobs, he enrolled in truck-driving school in Eugene. Upon graduation from truck-driving school in 1991, he became employed by KLLM Trucking, a company headquartered in Mississippi. In 1992, he became a driver trainer for KLLM Trucking, and in late 1993 obtained a dedicated run between Salinas, California, and one-of-five other cities, none of which were in Oregon. "During the tax years in question, taxpayer lived in his truck: a four-foot-wide, eight-foot-long, and nine-foot-high unit attached to the cab of the tractor. It contained two bunks, a refrigerator, and a small closet. Taxpayer testified that he used shower and bathroom facilities of truck stops and ate his meals in restaurants. He stayed in motels only about 12 to 13 times per year for which his employer reimbursed him. Taxpayer visited his parents about two weeks every year in Glide, Oregon. Although taxpayer has two siblings who also live in Oregon, there was no evidence that he ever visited them. Taxpayer testified that his life consisted mainly of driving a truck. "The department's evidence established that taxpayer's driver license was issued by Oregon and that taxpayer registered two personal automobiles in Oregon during the years in question. Taxpayer used his parents' mailing address as a permanent mailing address for important papers. Taxpayer was not registered to vote anywhere and had no banking or checking account in Oregon. Taxpayer used a truckers' banking service in Tennessee that enabled his parents to pay his car payments and insurance on his behalf." Glass, 15 OTR at 118-19. Taxpayer asserts that he was not subject to state personal income tax during 1992-94 because his source of income was outside Oregon. Under ORS 316.037(1)(a) (1991), the state may tax an individual for income earned outside Oregon, if that individual was a "resident of this state" at the time that the individual earned the income. ORS 316.027 (1991) provided, in part: "(1)'Resident' or 'resident of this state' means: "(a) An individual who is domiciled in this state unless the individual: "(A) Maintains no permanent place of abode in this state; "(B) Does maintain a permanent place of abode elsewhere; and "(C) Spends in the aggregate not more than 30 days in the taxable year in this state; * * *." This court has interpreted that statute to mean that, if an individual is "domiciled" in Oregon, then he or she is a "resident" unless he or she can satisfy all three conditions under subsection (a). dela Rosa v. Dept. of Rev., 313 Or 284, 288-89, 832 P2d 1228 (1992). (1) The Tax Court concluded that taxpayer was a "resident" because he was "domiciled" in Oregon from 1992-94 and did not "maintain a permanent place of abode elsewhere." Taxpayer challenges both those determinations. We have considered taxpayer's arguments and, for the reasons explained below, affirm the Tax Court's decision. Taxpayer was domiciled in Oregon before 1992. There is substantial evidence in the record to show that taxpayer did not intend to change domiciles after 1992. See Elwert v. Elwert, 196 Or 256, 265, 248 P2d 847 (1952) ("To constitute a change three things are essential: (1) residence in another place, (2) an intention to abandon the old domicil, and (3) an intention to acquire a new domicil."). Consequently, taxpayer was domiciled in Oregon during the relevant tax years. Therefore, under ORS 316.027 (1991), taxpayer was a "resident" during the tax years in question and was subject to Oregon income tax, unless he meets an exception. Taxpayer does not meet an exception. Although taxpayer did not maintain an abode in Oregon, and spent no more than 30 days in Oregon during each taxable year in question, taxpayer's truck does not constitute "a permanent place of abode elsewhere." ORS 316.027(1)(a) (1991) (emphasis added). Therefore, we conclude that the Tax Court did not err in entering judgment against taxpayer. The judgment of the Tax Court is affirmed. 1. We note that dela Rosa interpreted the 1981 version of ORS 316.027. However, the 1991 version is not substantially different from the 1981 version.

04fef86ab66c9610057c1455cd343d51ecc199e905c8f6da9fb40de51250d2e1

2001-11-16T00:00:00Z

b3129c59-94aa-48e8-9c29-4cc7eda7fdca

Marleau v. Truck Insurance Exchange

S46406

oregon

Oregon Supreme Court

Filed: December 13, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON LAWRENCE MARLEAU, MIKELEEN REED, and OREGON TRAIL CUSTOM LOG HOMES, Petitioners on Review, v. TRUCK INSURANCE EXCHANGE and DAVID FLIPPEN, Respondents on Review. (CC CCV 95 08 506; CA A93629; SC S46406) On review from the Court of Appeals.* Argued and submitted September 7, 2000; reassigned June 20, 2001; resubmitted July 3, 2001. Christopher A. Rycewicz, of Rycewicz & Chenoweth, P.C., Portland, argued the cause for petitioners on review. With him on the briefs was Michael J. Knapp, of Meyers & Knapp, Portland. William G. Earle, of Abbott Davis Rothwell Mullin & Earle, PC, Portland, argued the cause and filed the briefs for respondents on review. With him on the briefs was Alan Gladstone. J. Michael Alexander, of Burt, Swanson, Lathen, Alexander & McCann, Salem, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association. Before Carson, Chief Justice, and Gillette, Durham, and De Muniz, Justices.** DE MUNIZ, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *On appeal from Clackamas County Circuit Court, Robert J. Morgan, Judge. 155 Or App 147, 963 P2d 715 (1998). **Van Hoomissen, J. retired December 31, 2000, and did not participate the decision of this case. Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. Leeson, Riggs, and Balmer, JJ., did not participate in the consideration or decision of this case. DE MUNIZ, J. In this insurance case, we must determine whether Truck Insurance Exchange (defendant) (1) had a duty to defend its insured, Marleau, and Marleau's business partner, Reed (plaintiffs), in a tort action alleging intentional infliction of emotional distress. The trial court entered summary judgment in favor of defendant. The Court of Appeals affirmed, holding that, although the insurance policy covered the conduct alleged, public policy against insurance coverage for intentionally inflicting injury upon another precluded coverage. Marleau v. Truck Insurance Exchange, 155 Or App 147, 154-55, 963 P2d 715 (1998). We allowed review and now conclude that the insurance policy at issue does not cover the conduct alleged in the claim for intentional infliction of emotional distress. Accordingly, we do not address the public policy argument upon which the Court of Appeals relied. We affirm the decision of the Court of Appeals and the judgment of the circuit court. The material facts are not in dispute. Plaintiffs Marleau and Reed operated "Oregon Trail Custom Log Homes" (Oregon Trail), a log home construction business. Defendant issued a commercial general liability policy naming Marleau, doing business as Oregon Trail, as the insured. In addition to bodily injury and property damage, the policy covered "personal injury liability" of the insured: "COVERAGE B. PERSONAL * * * INJURY LIABILITY "1. Insuring Agreement. "a. [Truck Insurance Exchange] will pay those sums that the insured becomes legally obligated to pay as damages because of 'personal injury' * * * to which this insurance applies. * * * " A separate section of the policy defined "personal injury": "'Personal injury' means injury, other than 'bodily injury,' arising out of one or more of the following offenses: "a. False arrest, * * *; "b. Malicious prosecution; "c. Wrongful * * * eviction * * *; "d. Oral or written publication of material that slanders or libels a person * * * or disparages a person's * * * goods, products, or services; or "e. Oral or written publication of material that violates a person's right to privacy." The policy excluded "personal injury * * * arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity." Under the policy, defendant had the duty to defend any action seeking damages for "personal injury." The Parletts were customers of Oregon Trail. After Oregon Trail built the Parletts' log home, a dispute arose between plaintiffs and the Parletts. The Parletts brought an action against plaintiffs and against Oregon Trail, alleging breach of contract, breach of warranty, negligence, negligence per se, conversion, fraud, and intentional infliction of emotional distress. As noted above, only the claim for intentional infliction of emotional distress remains at issue in this action. In that claim, the Parletts alleged that: "Reed and Marleau conspired with each other to harass, annoy, disgrace, humiliate, discredit and cause severe emotional distress to [the Parletts] * * * with the intention of causing [the Parletts] so much emotional distress that [the Parletts] would sell their log home and move from the Rhododendron community and abandon all claims against Reed and Marleau. "In intentionally committing their outrageous acts against [the Parletts], * * * Reed and Marleau did so with the knowledge that * * * Jean Parlett suffered from a nervous disorder that was aggravated by stress. * * * Reed and Marleau strategically timed the commission of their outrageous acts when * * * Charles Parlett was out of town and when Jean Parlett was home by herself and without her husband's emotional and physical support." The following "intentional acts" gave rise to the claim: "a. Telling Jean Parlett that her bank loan had been canceled when it was not; "b. Informing representatives of [the Parletts'] lender that [the Parletts] were not paying their debts when such information was false; "c. Telling members of the Rhododendron community * * * that Jean Parlett was committing adultery; "d. Telling a local attorney that [the Parletts] were getting a divorce because Jean Parlett was in love with Defendant Marleau; "e. Telling members of the local community * * * that [the Parletts] were divorced and that Jean Parlett had been forced to move to a campground; "f. Telling local public safety officials that Jean Parlett was insane and had hired someone to shoot at Marleau's and Reed's home from a car, and also that [the Parletts had threatened to] burn down Marleau's and Reed's home; "g. Telling members of the Rhododendron community that Jean Parlett was 'in love' with Defendant Marleau; "h. Telling members of the Rhododendron community that Jean Parlett had recently been released from a mental institution; "i. Telling * * * Charles Parlett over the telephone when he was out of town that his wife was sleeping with * * * Marleau's employees, in love with Marleau and that she was abusing drugs[.]" Finally, the claim alleged: "The foregoing acts were vicious, defamatory, intentional and constituted extraordinary transgressions of the bounds of socially tolerable conduct. As a direct and substantial result, [the Parletts] were humiliated, disgraced and suffered severe emotional distress, all to their general damage of $75,000." Approximately one year after the Parletts had filed their complaint, defendant accepted the tendered defense of plaintiff Marleau under a reservation of the right to deny coverage. (2) Defendant refused the tender as to plaintiff Reed, arguing that she was not an insured. After settling the Parletts' action, plaintiffs brought this action to recover the costs of defending plaintiffs Reed and Marleau during the first year of the pendency of the Parletts' action. Plaintiffs ultimately moved for partial summary judgment, arguing that they were entitled to a defense because the claim for intentional infliction of emotional distress alleged that they had invaded the Parletts' privacy and had defamed the Parletts, and those offenses were covered under the "personal injury" coverage of plaintiffs' policy. They also argued that, if defendant had a duty to defend plaintiff Marleau, then it also had a duty to defend plaintiff Reed, even if she was not a named insured, because of Marleau's potential vicarious liability for Reed's actions. Plaintiffs' theory was that, because they were partners, Marleau could be held vicariously liable for Reed's actions and, thus, the defense of Marleau had to include a defense of Reed. Defendant also moved for summary judgment, arguing that it had no duty to defend because the policy did not cover the Parletts' claim for intentional infliction of emotional distress. (3) The trial court concluded that both the terms of the policy and public policy precluded coverage of the Parletts' claim, and entered summary judgment in defendant's favor. Plaintiffs appealed. As noted above, the Court of Appeals affirmed, concluding that the insurance policy covered the allegations in the Parletts' intentional infliction of emotional distress claim, but that such coverage was against public policy. Marleau, 155 Or App at 154-55. We allowed plaintiffs' petition for review. "We review the record on summary judgment in the light most favorable to the party opposing the motion." Miller v. Water Wonderland, 326 Or 306, 309, 951 P2d 720 (1998). In this case, such review presents several questions of law. The ultimate question is whether defendant had a duty to defend its insured against the Parletts' claim for intentional infliction of emotional distress. The answer to that question depends on whether the policy covered the Parletts' claim and, if so, whether public policy nevertheless precluded such coverage. See Groshong v. Mutual of Enumclaw Ins. Co., 329 Or 303, 307, 985 P2d 1284 (1999) (insurance policy addressed prior to public policy). Accordingly, we turn first to the question whether the insurance policy covered the Parletts' claim. To answer that question, we must examine two documents: the insurance policy and Parletts' complaint. Ledford v. Gutoski, 319 Or 397, 399, 877 P2d 80 (1994). In regard to the insurance policy, we must determine from its terms and conditions what the parties intended the policy to cover. Hoffman Construction Co. v. Fred S. James & Co., 313 Or 464, 469, 836 P2d 703 (1992). We then examine the Parletts' complaint to determine if it, "without amendment, may impose liability for conduct covered by the policy[.]" Ferguson v. Birmingham Fire Insurance Co., 254 Or 496, 507, 460 P2d 342 (1969). According to the terms and conditions of the personal injury provision of the insurance policy (set out ante), the parties to the insurance contract intended the policy to cover personal injury arising out of any of the five enumerated "offenses." Those five "offenses" are essentially five different torts: false arrest, malicious prosecution, wrongful eviction, defamation, and invasion of privacy. In this case, the issue is whether, according to the allegations of the complaint, the Parletts' injury arose out of any one of those "offenses" or torts. (4) That question can be answered only by examining the Parletts' complaint. Because the parties agree that no other claim in the Parlett complaint alleges conduct covered by the policy, our examination of the complaint in this case is limited to the claim identified as a claim for intentional infliction of emotional distress. The parties agree that, as identified in the complaint, that claim alleges that the Parletts' injury arose out of the "offense" of intentional infliction of emotional distress. They also agree that that offense is not covered by the policy. However, they disagree about whether that claim for intentional infliction of emotional distress, without amendment, also may have imposed liability for either invasion of privacy or defamation, offenses that the policy covered. The parties first disagree about how to determine, under Ferguson, 254 Or at 507, whether a particular claim, "without amendment, may impose liability" for both an excluded and a covered offense. Plaintiff argues that, if the allegations in the claim, without amendment, state facts sufficient to constitute a claim for conduct that the policy covers, then the insurer has a duty to defend, even if those facts are not stated separately from facts that constitute a claim for excluded conduct. Defendant argues that, if the claims require any amendment, even an amendment as to form such as one that would be required if the complaint failed to state the claims separately as required under ORCP 16 B, (5) then the complaint does not, "without amendment" (emphasis added) impose liability for a covered offense, and the insurer does not have a duty to defend. As discussed below, the rationale for the Ferguson "without amendment" standard supports plaintiffs' interpretation. In Ferguson, this court explained that the reason for the "without amendment" standard is to ensure that an insurer will not owe a duty to defend unless the complaint provides the insurer with sufficient notice of the insured's potential liability for conduct that is covered under the policy. 254 Or at 507. Thus, the insurer has a duty to defend so long as the complaint contains one claim that the policy covers. Id. at 506. This court consistently emphasizes the "notice" rationale when asked to determine whether an insurer has a duty to defend. See, e.g., Ledford, 319 Or at 400 (insurer should be able to determine from face of complaint whether to accept tender of defense of action). Moreover, this court has recognized that a complaint need not plead a claim in perfect form to provide notice to the insurer. Indeed, if the complaint is unclear, but "may be reasonably interpreted to include an incident within the coverage of the policy, [then] there is a duty to defend." Blohm et al v. Glens Falls Ins. Co., 231 Or 410, 416, 373 P2d 412 (1962). It is the substance of the complaint, not its form, that is at the heart of the inquiry. See Ledford, 319 Or at 402 (court should focus on conduct alleged in complaint in analyzing duty to defend). From those principles, it follows that the insured also has a duty to defend if allegations in a complaint, identified as a single claim for relief, in fact state more than one claim for relief, at least one of which is for conduct covered by the policy. In other words, neither the failure to identify correctly the claims nor the failure to state them separately defeats the duty to defend. As this court previously has stated, "in the absence of any compelling evidence of no coverage, the insurer owes a duty to defend if the injured claimant can recover under the allegations of the complaint upon any basis for which the insurer affords coverage." Casey v. N.W. Security Ins. Co., 260 Or 485, 489, 491 P2d 208 (1971) (emphasis added). Today, we so hold: An insurer has a duty to defend if the factual allegations of the complaint, without amendment, state a claim for any offense covered by the policy. We now turn to apply that standard to the complaint in this case. Plaintiffs contend that the factual allegations of the Parletts' claim for intentional infliction of emotional distress also state claims for invasion of privacy and for defamation, both of which are covered offenses under the "personal injury" provision of the insurance policy. The Court of Appeals agreed that the Parletts' claim stated a claim for defamation, but it did not explain that aspect of its holding. Marleau, 155 Or App at 154. For the reasons discussed below, we conclude that the Parletts' intentional infliction of emotional distress claim did not state a claim for invasion of privacy or defamation. We begin by addressing plaintiffs' argument concerning whether the Parletts' allegations constitute a claim for invasion of privacy. Plaintiffs assert, without elaborating, that the factual allegations of the Parletts' complaint state two different invasion of privacy claims: a "false light" claim and a claim for public disclosure of private facts. First, we address the law concerning invasion of privacy by placing another in a "false light." This court has referred to the definition of the tort of invasion of privacy by "false light" offered by the Restatement (Second) of Torts: "One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if "(a) the false light in which the other was placed would be highly offensive to a reasonable person, and "(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Restatement (Second) of Torts § 625E (1977). See Reesman v. Highfill, 327 Or 597, 607, 965 P2d 1030 (1998) (discussing elements of "false light" claim pursuant to Restatement (Second) of Torts). It requires little analysis to conclude that the Parletts' claim fails to state a claim for invasion of privacy by "false light," under the elements listed above. (6) Invasion of privacy by "false light" requires that the matter be both false (or that it create a false impression) and publicized. The only disclosure in the Parletts' claim that complies with the former requirement, "informing * * * [the Parletts'] lender that [the Parletts] were not paying their debts when such information was false" (allegation "b," ante), does not comply with the latter. Disclosure to the individual lender does not constitute "giving publicity." See Tollefson v. Price, 247 Or 398, 402, 430 P2d 990 (1967) ("publicity" element requires communication either to public generally or to large number of persons). Plaintiffs' argument that the Parletts' claim states a claim for public disclosure of private facts also fails. As the name implies, that tort requires the tortfeasor publicly disclose private facts about another. Id. In contrast to a "false light" claim, the facts disclosed may be true. However, not every disclosure of a private fact will give rise to a claim in tort. The tortfeasor's conduct must be "wrongful" in some respect apart from inflicting emotional distress on the plaintiff. As this court held in Anderson v. Fisher Broadcasting Co., 300 Or 452, 469, 712 P2d 803 (1986): "[I]n Oregon the truthful representation of facts concerning a person, even facts that a reasonable person would wish to keep private and that are not 'newsworthy,' does not give rise to common-law tort liability for damages for mental or emotional distress, unless the manner or purpose of defendant's conduct is wrongful in some respect apart from causing the plaintiff's hurt feelings." The Parletts included four allegations of disclosures that arguably were "public": the disclosures made to "members of the Rhododendron community" (allegations "c," "e," "g," and "h," ante). Assuming, arguendo, that those disclosures constituted disclosures of "private facts," the Parletts' claim does not give rise to tort liability for public disclosure of those facts because the Parletts did not allege facts demonstrating that plaintiffs' conduct in making those disclosures was wrongful. For example, the Parletts did not allege that plaintiffs obtained the information in some wrongful way, see Anderson, 300 Or at 469, citing McLain v. Boise Cascade Corp., 271 Or 549, 533 P2d 343 (1975) (unobtrusive filming surveillance during daylight hours of the plaintiff's activities that could have been observed by passers-by not invasion of privacy), or that plaintiffs violated some obligation of secrecy in disclosing the information about the Parletts, see id. at 469, citing Humphers v. First Interstate Bank, 298 Or 706, 716-17, 696 P2d 527 (1985) (person who knows facts without obligation of secrecy does not commit tort by disclosing them to another). Thus, the Parletts' allegations fail to state a claim for invasion of privacy by public disclosure of private facts. Finally, we turn to plaintiffs' argument that the factual allegations in the Parletts' complaint constitute a claim for defamation. When we review the allegations with the elements of the tort of defamation in mind, we conclude that they fail to state a claim for that covered offense. Again, we begin by reviewing the elements of the tort at issue. To state a claim for defamation, the complaint must state facts sufficient to establish that the defendant published to a third person a defamatory statement about plaintiff. Wallulis v. Dymowski, 323 Or 337, 343, 918 P2d 755 (1996). A defamatory statement is one that would subject another to "* * * hatred, contempt or ridicule * * * [or] tend to diminish the esteem, respect, goodwill or confidence in which [the other] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the other]." Reesman, 327 Or at 603 (internal quotations and citations omitted). Unless a statement constitutes defamation per se, a plaintiff must allege that the statement was false. See Fowler v. Donnelly, 225 Or 287, 293, 358 P2d 485 (1960) (discussing the necessity of alleging the falsity of words complained of in libel and slander claims). The Parletts's complaint does not allege that plaintiffs made the disparaging statements in writing. Therefore, the only possible type of defamation at issue in this case is defamation by spoken words, i.e., slander. An additional pleading requirement applies to cases of slander: Unless the statement constitutes slander per se, the plaintiff must allege special damages. That rule historically applied to all defamation, see Peck v. Coos Bay Times Pub. Co. et al, 122 Or 408, 417, 259 P 307 (1927) (so stating), but, in Hinkle v. Alexander, 244 Or 267, 279, 417 P2d 586 (1966), this court abandoned that rule in cases of libel. When we review the Parletts' complaint with those requirements in mind, we note that the Parletts did not allege special damages as a result of plaintiffs' conduct. Therefore, the complaint does not state a claim for slander unless it states a claim for slander per se. Plaintiffs argue that allegation "c" of the Parletts' claim -- the allegation that plaintiffs told others that Jean Parlett was committing adultery -- constitutes slander per se. In support of that argument, plaintiffs rely on Cook v. Safeway Stores, Inc., 266 Or 77, 82, 511 P2d 375 (1973), which this court referred (in dicta) to an assertion of "unchastity in a woman" as an example of words that were actionable per se. (7) However, although that is the rule in many other jurisdictions, it is not the common-law rule and, as explained below, it is not the rule in Oregon. Spoken words are actionable per se in Oregon only if they are words tending to injure the plaintiff in his or her profession or business, or if they impute to plaintiff the commission of a crime involving moral turpitude. Davis v. Sladden, 17 Or 259, 261, 21 P 140 (1889). At common law, an accusation of unchastity was regarded as a "spiritual" matter and "actionable only with proof of 'temporal' damage, such as the loss of a marriage." Prosser and Keeton on the Law of Torts, § 112, 792-93 (5th ed 1984). That rule was changed in regard to women in England in 1891, under the "Slander of Women Act." Id.; see also Barnett v. Phelps, 97 Or 242, 248, 191 P 502 (1920) (discussing how "Slander of Women Act" changed common law in England). However, Oregon continued to follow the common law. Davis, 17 Or at 261; see also Barnett, 97 Or at 249 (criticizing Davis, yet noting change in common law should be made by legislature, not court). In this jurisdiction at the time of the decision in Davis, asserting that a woman had committed adultery did constitute slander per se, but only because adultery was prosecutable as a crime. Davis, 17 Or at 263. However, adultery no longer is a crime under Oregon law. See Brown v. Vogt, 272 Or 482, 484, 538 P2d 362 (1975) (noting that legislature decriminalized adultery in 1971). Thus, asserting that a woman has committed adultery no longer imputes criminal conduct to her. Accordingly, the allegations of paragraph "c" of the Parletts' claim do not state a claim for slander per se. Plaintiffs do not argue that any other allegation in the Parlett complaint constitutes slander per se. Accordingly, the factual allegations of the Parletts' claim do not state a claim for defamation. In sum, the factual allegations of the Parletts' claim do not state a claim for invasion of privacy by "false light," for public disclosure of public facts, or for defamation. Therefore, they do not state a claim for any "offense" covered under the "personal injury" provision of the insurance policy. Accordingly, we hold that the insurer did not have a duty to defend. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. Defendant Flippen was dismissed from the case and was not a party to the appeal. Marleau v. Truck Insurance Exchange, 155 Or App 147, 149 n 1, 963 P2d 715 (1998). Accordingly, we refer to "Truck Insurance Exchange" as the only defendant throughout this opinion. 2. The parties disagree concerning when plaintiffs first tendered defense of the Parletts' action to defendant. Because we hold that the insurer did not have a duty to defend, infra, we need not resolve that disagreement. 3. Defendant does not dispute that, if it had a duty to defend its insured against one claim in the complaint, then it had a duty to defend against the entire complaint. See Ferguson v. Birmingham Fire Insurance Co., 254 Or 496, 506, 460 P2d 342 (1969) (when complaint contains two counts, one falling outside policy coverage and the other within, insurer has duty to defend). 4. Although "offense" is not always synonymous with "tort," for purposes of this opinion, the difference in meaning between the two words is not significant. We will use the word "offense" in this opinion, because the policy used that word. 5. ORCP 16 B provides, in part: "Each separate claim or defense shall be separately stated. Within each claim alternative theories of recovery shall be identified as separate counts." If a claim is not separately stated, then a party may move to strike under ORCP 21 E: "[T]he court may order stricken * * * any pleading containing more than one claim * * * not separately stated. * * *" 6. Although we need not resolve the question here, we note that we are not certain of the accuracy, by way of dictum, in Reesman that "[t]his court previously has not recognized the tort of invasion of privacy by false light." 327 Or at 607. In Tollefson v. Price, 247 Or 398, 430 P2d 990 (1967), a decision that pre-dates the Restatement (Second) of Torts by ten years, this court sustained a pleading that alleged invasion of privacy by publication of false facts. This court identified the claim at issue as a claim of invasion of privacy by public disclosure of private facts. Id. at 401. However, if we apply the Restatement (Second) definition quoted above to the claim at issue in Tollefson, it is clear that the pleading at issue also stated a claim for invasion of privacy by "false light." In that regard, this court has "recognized" a "false light" claim, although it had not specifically so stated before Reesman. 7. Cook is not the only opinion in which this court has referred to an assertion of "unchastity in a woman" as slander per se. See, e.g., Hinkle, 244 Or at 273 (so referring).

799d27737fdce215467563991ef9de0b64f810e2be5742fd0b128aa0a9a5146d

2001-12-13T00:00:00Z

80933804-040c-4c26-b078-4907ef3df575

State v. Guzek

322 Or. 245, 906 P.2d 272

oregon

Oregon Supreme Court

906 P.2d 272 (1995) 322 Or. 245 STATE of Oregon, Respondent, v. Randy Lee GUZEK, Appellant. CC 87-CR-0373-TM; SC S38455. Supreme Court of Oregon, In Banc. Argued and Submitted March 8, 1995. Decided November 24, 1995. *273 *274 J. Kevin Hunt, Oregon City, argued the cause on behalf of appellant. With him on the briefs was John P. Daugirda of Roost & Daugirda, Eugene. Rives Kistler, Assistant Attorney General, Salem, argued the cause on behalf of respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Brenda JP Rocklin, Assistant Attorney General, Salem. UNIS, Justice. This case is before this court on automatic and direct review of defendant's sentence of death. ORS 163.150(1)(g). For the reasons that follow, we vacate defendant's sentence of death. In 1988, defendant was convicted of two counts of aggravated murder and sentenced to death.[1] On automatic and direct review of that judgment, this court affirmed defendant's convictions, but vacated defendant's sentence on the basis of State v. Wagner, 309 Or. 5, 14-20, 786 P.2d 93, cert. den. 498 U.S. 879, 111 S. Ct. 212, 112 L. Ed. 2d 171 (1990) (Wagner II), and remanded the case for a new trial of the penalty phase or, at the election of the district attorney, for a life sentence. State v. Guzek, 310 Or. 299, 305-06, 797 P.2d 1031 (1990) (Guzek I). In 1991, a new jury was empaneled for the penalty phase pursuant to ORS 163.150(5)(a)(B) (1989). Before the jury was empaneled for that penalty proceeding, defendant moved to exclude the introduction of all "victim impact evidence"[2] by the state, contending, among other things, that it: *275 "[v]iolates the Eighth and Fourteenth Amendments to the United States Constitution[.]"[3] The trial court granted defendant's motion. At that time, the Supreme Court of the United States had held that the Eighth Amendment to the United States Constitution barred the admission of victim impact evidence in the penalty phase of capital trials. Booth v. Maryland, 482 U.S. 496, 509, 107 S. Ct. 2529, 2536, 96 L. Ed. 2d 440, 452 (1987); South Carolina v. Gathers, 490 U.S. 805, 811, 109 S. Ct. 2207, 2211, 104 L. Ed. 2d 876, 883 (1989). After the new sentencing jury was empaneled, but before opening statements were made, the Supreme Court overruled Booth and Gathers in Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991). In Payne, the Supreme Court held that the Eighth Amendment did not erect a per se bar to the admission of victim impact evidence. 501 U.S. at 827, 111 S. Ct. at 2609. Justice O'Connor explained the significance of that holding: Thus, whether victim impact evidence should be admitted during the penalty phase of a capital case is an issue of state law. Believing that Oregon state law permitted the admission of victim impact evidence, the state timely notified the trial court and defendant that it intended to offer such evidence in this case. Defendant renewed his objection to the admission of such evidence, arguing that victim impact evidence was not admissible as a matter of Oregon statutory and constitutional law. The trial court overruled defendant's objection, ruling that such evidence is admissible. During the penalty phase on remand, the state called some family members of the two victims in this case, a husband and wife, to testify. The brother of the husband described that victim's personal characteristics and background. The couple's daughter also described the personal characteristics and background of both victims and the impact of their deaths on the family. After the conclusion of evidence and closing statements, the trial court instructed the jury: "* * * * * * * * The jury deliberated and answered each of the three questions in the affirmative. The trial court scheduled sentencing for five days later and at that time pronounced defendant's death sentence. Defendant raises numerous assignments of error. Defendant first assigns as error the decision of the trial court to admit the victim impact evidence. Defendant makes both statutory and constitutional arguments that the victim impact evidence was not admissible. We begin with defendant's subconstitutional arguments. See State v. Stevens, 319 Or. 573, 579, 879 P.2d 162 (1994) (Stevens II) (court decides subconstitutional issues before addressing constitutional issues). Defendant argues that the victim impact evidence was not admissible because it was not relevant to any of the substantive issues submitted by the court to the jury pursuant to ORS 163.150(1)(b) (1989). We agree. ORS 163.150(1)(a) (1989), which was the statutory scheme in effect at the time, provided that "evidence may be presented as to any matter that the court deems relevant to sentence." The standard of relevance in OEC 401 applies in penalty phase proceedings. Stevens II, 319 Or. at 580, 879 P.2d 162. Under OEC 401, "`[r]elevant 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." "Evidence which is not relevant is not admissible." OEC 402. The function of the doctrine of relevancy is to require that there be some rational relationship between the item of evidence offered by a litigant and the substantive issues properly provable in the case. 22 Wright & Graham, Federal Practice & Procedure: Evidence § 5164, at 37 (1978). Relevancy under OEC 401 is a relational concept that carries meaning only in context. See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 4.1, at 183 (1995) (stating principle). Stated differently, "[r]elevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." OEC 401 Commentary, reprinted in Laird C. Kirkpatrick, Oregon Evidence at 104 (2d ed. 1989). *277 Relevance under OEC 401 merges two traditional conceptsrelevance and materialityinto a single definition, using the term "relevant" to embrace the two. OEC 401 Commentary, reprinted in Kirkpatrick, Oregon Evidence at 105. The traditional concept of relevance concerns the relation between the facts in evidence and the conclusions to be drawn from them, while materiality concerns the relation between the proposition for which evidence is offered and the issues in the case. Id. Under OEC 401, an offered item of evidence may be excluded as irrelevant for either of two quite distinct reasons: (1) because it is not probative (i.e., does not have any tendency to prove or disprove, or to make more probable or less probable) of the fact or proposition at which it is directed, or (2) because that fact or proposition at which the item is directed is not provable in the case, i.e., is not "of consequence [`material'] to the determination of the action." OEC 401. Thus, relevance under OEC 401 is not only a relational concept, it is also a legally substantive or definitional one. Whether a fact or proposition is provable in the case is determined not by the rules of evidence, but by the pleadings, the other evidence introduced in the case, and the applicable substantive law. State v. Clowes, 310 Or. 686, 691-92, 801 P.2d 789 (1990). Defendant does not dispute that the state's victim impact evidence tends to prove the fact or proposition at which it was directed, namely, the victims' personal characteristics and the impact of the victims' deaths on their families. The question before us, therefore, is whether that evidence was "material," i.e., whether the impact of the crime on the victims' families was a matter properly provable in the penalty phase of defendant's capital trial. As the trial court's jury instructions in this case indicate, there were three substantive issues which the jury had to consider. To be relevant, the victim impact evidence must tend to prove one of those three substantive issues. The three issues were presented to the jury pursuant to ORS 163.150(1)(b) (1989), as interpreted by this court in Wagner II, 309 Or. at 19, 786 P.2d 93. ORS 163.150(1)(b) (1989) provided: The first three statutory factors listed above, ORS 163.150(1)(b)(A)-(C) (1989), all require that the jury consider specific aggravating circumstances (i.e., deliberateness, future dangerousness, and unreasonable response to provocation). The existence of an "aggravating circumstance" leads a jury to answer the question "whether the sentence of death [should] be imposed" in the affirmative. The existence of a "mitigating circumstance" weighs against the imposition of the death sentence. The trial court instructed the jury to consider two aggravating circumstances, deliberateness and future dangerousness.[5]*278 The state makes no argument that the victim impact evidence establishes either of those two statutory aggravating circumstances. The state agrees that the victim impact evidence does not tend to prove either defendant's deliberateness in carrying out the crime or defendant's likelihood of future dangerousness. The state argues that the victim impact evidence tends to prove the existence of an aggravating circumstance under the fourth statutory question,[6] "whether a sentence of death [should] be imposed." ORS 163.150(1)(b)(D) (1989). Defendant argues that the fourth question under ORS 163.150(1)(b)(D) (1989) only permits the consideration of mitigating evidence. For the reasons that follow, we conclude that only evidence relating to the existence of mitigating circumstances is relevant to the fourth statutory question provided by ORS 163.150(1)(b)(D) (1989). To determine whether victim impact evidence is relevant to the fourth statutory question, we look to the legislature's intent in drafting the fourth question. In doing so, the first level of analysis is to examine the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). The context of the statute includes other provisions of the same statute and other related statutes. Id. at 611, 859 P.2d 1143. To review, ORS 163.150(1)(b) (1989) provided that the court shall submit to the jury the fourth question as follows: "* * * * * ORS 163.150(1)(b)(D) (1989) focuses on mitigation as the purpose of the fourth question. That statute requires the trial court to instruct the jury to consider the extent to which the defendant's character and background and the circumstances of the offense may "reduce the defendant's moral culpability or blameworthiness for the crime."[7] Thus, the text of the statute, and particularly the word "reduce," suggest that the issue before the jury under the "fourth question" is the existence of mitigating circumstances, not aggravating circumstances. The context of ORS 163.150(1)(b)(D) (1989) further indicates that the issue submitted to the jury under the "fourth question" is the existence of mitigating circumstances. ORS 163.150(1)(d) (1989) provided: "The state must prove each issue submitted under subparagraphs (A) to (C) of paragraph (b) of this subsection [i.e., deliberateness, future dangerousness, unreasonable response to provocation] beyond a reasonable doubt, and the jury shall return a special verdict of `yes' or `no' on each issue considered." The statute imposed no similar burden on the state to prove beyond a reasonable doubt the issue submitted to the jury under the "fourth question." See Wagner II, 309 Or. at 18, 786 P.2d 93 (there is no burden of proof on the fourth question). Thus, for each of the first three questions under ORS 163.150(1)(b) (1989), which required the jury to consider enumerated aggravating circumstances, the state had the burden to establish the aggravating circumstance beyond a reasonable *279 doubt. The "fourth question" (whether defendant should receive a death sentence), however, did not refer to aggravating circumstances, and provided no burden of proof. The statutory requirement that the state must prove beyond a reasonable doubt the issues concerning aggravation submitted under the first three questions indicates that the legislature intended that the death penalty would be imposed only on the basis of the enumerated statutory aggravating factors that the state establishes beyond a reasonable doubt. Interpreting the "fourth question," on which neither party has any burden of proof, to allow proof of non-enumerated aggravating factors would allow the imposition of the death penalty on the basis of non-enumerated aggravating factors that were not established beyond a reasonable doubt. Such an interpretation would be inconsistent with the legislature's intent to require proof beyond a reasonable doubt of the enumerated aggravating circumstances. Thus, the lack of a burden of proof as to the issue submitted to the jury under the "fourth question" indicates that the legislature did not intend that issue to involve a consideration of aggravating circumstances. The context of a statute also includes this court's interpretations of the statute. Gaston v. Parsons, 318 Or. 247, 252, 864 P.2d 1319 (1994). In Wagner II, this court recognized the lack of grammatical clarity of ORS 163.150(1)(b)(D) (1989) and stated that the following jury instruction was correct for the "fourth question" under ORS 163.150(1)(b)(D) (1989): Again, the jury instruction formulated by this court focused solely on whether the evidence of mitigating circumstances justified a sentence of less than death. That statutory interpretation confirmed that the statute referred solely to mitigating circumstances, not to aggravating circumstances. Following Wagner II, this court held on several occasions that the fourth question was enacted to permit the jury to consider the existence of mitigating circumstances. In State v. Miranda, 309 Or. 121, 131, 786 P.2d 155, cert. den. 498 U.S. 879, 111 S. Ct. 212, 112 L. Ed. 2d 171 (1990), this court observed: In Stevens II, 319 Or. at 585, 879 P.2d 162 (quoting Wagner II, 309 Or. at 13, 786 P.2d 93), we also stated: The text and context of ORS 163.150(1)(b)(D) (1989) clearly indicate that the fourth question under that statute only permits the jury to consider mitigating evidence. The dissent reaches the opposite conclusion. To support that conclusion, the dissent looks to the text, context, and legislative history to determine the statute's meaning. See 322 Or. at 274-78, 906 P.2d at 289-92 (Graber, J., dissenting). The dissent argues that legislative history of ORS 163.150(1)(b)(D) (1989) indicates that victim impact evidence is admissible under the fourth question. We disagree. Our review of legislative history supports the opposite conclusion. In order to accurately portray the legislative intent of ORS 163.150(1)(b)(D) (1989), it is necessary to examine *280 the background surrounding the enactment of that statute. Oregon's death penalty scheme originally consisted of three statutory questions. ORS 163.150(2) (1985). Those three questions related to the existence of enumerated aggravating circumstances. See id. (future dangerousness, deliberation, and unreasonable response to provocation). Under that initial statutory scheme, only those three enumerated aggravating circumstances justified the imposition of a sentence of death. In 1989, the legislature added the "fourth question." Or.Laws 1989, ch. 790, § 135b. Thus, the question becomes whether, by adding the "fourth question" to Oregon's death penalty scheme, the legislature intended to allow the jury to consider additional non-enumerated aggravating circumstances in deciding whether a defendant should receive a death sentence. This court recently examined the legislative history of the "fourth question" in Stevens II, 319 Or. at 580-83, 879 P.2d 162. In that case, this court recalled that the "fourth question" was enacted to make Oregon's death penalty scheme comply with the requirements of the Eighth Amendment to the Constitution of the United States, as those requirements were interpreted in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). Stevens II, 319 Or. at 581, 879 P.2d 162. In Penry, the Supreme Court of the United States held that a death sentence imposed under the Texas three-question statutory sentencing scheme, on which Oregon's scheme was based, was unconstitutional, because it did not give the jury a meaningful opportunity to "give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime."[8]Penry, 492 U.S. at 328, 109 S. Ct. at 2952. In Penry, the Supreme Court stated: Thus, under Penry, the Constitution requires that the jury have broad discretion in considering relevant mitigating circumstances, and it imposes "carefully defined standards that must narrow a sentencer's discretion to impose the death sentence." *281 In enacting ORS 163.150(1)(b)(D) (1989), the legislature was attempting to bring Oregon's death penalty scheme in compliance with Penry. Stevens II, 319 Or. at 581, 879 P.2d 162. When the "fourth question" (whether the defendant should receive a death sentence) was added, the Oregon death penalty scheme already had "carefully defined standards" that narrowed the imposition of the death sentence, in the form of three questions relating to enumerated statutory aggravating circumstances. Thus, in order to comply with Penry, the legislature added the fourth question to allow the jury to "consider and give effect to any mitigating evidence relevant to a defendant's background, character, or the circumstances of the crime." Penry, 492 U.S. at 327-28, 109 S. Ct. at 2951-52. In Wagner II, this court explained how adding a fourth question to Oregon's original three-question death penalty scheme was required to satisfy the requirements of Penry. This court explained: When Penry was decided, ORS 163.150 (1987) provided that the jury was to be instructed in the penalty phase of a capital trial as to three issues (deliberateness, future dangerousness, and response to provocation). The statute did not expressly provide for a "fourth question." The court recognized, however, that if the statute did not permit a "fourth question," the statute would be facially unconstitutional. Wagner II, 309 Or. at 8, 786 P.2d 93. The Wagner II court's discussion of the facial validity of ORS 163.150 (1987) makes clear that the focus of the constitutionally required mechanism of a fourth question was on the consideration of mitigating circumstances. This court held that Oregon's death penalty scheme was not unconstitutional because "ORS 163.150 [ (1987) ] permits a general mitigation question." 309 Or. at 14, 786 P.2d 93. The Wagner II court proceeded to adopt the approach suggested by Justice Gillette's dissenting opinion in Wagner I: "Justice Gillette's dissent in Wagner [I] states: "`None of the foregoing [discussion of the federal precedents] necessarily requires holding that the Oregon statutory scheme is unconstitutional on its face. This court could so construe the statute as to permit the admission of all mitigating evidence and to require an instruction to the jury delineating the scope of the jury's authority to reprieve an otherwise death-eligible defendant on the basis of that [mitigating] evidence. "`I do not here propose any particular solution. One solution perhaps would be to instruct the jury that, even if it concludes that all three statutory questions should be [309 Or. at 14, 786 P.2d 93] answered `yes,' it nonetheless should answer one of them `no' unless it unanimously concludes that the mitigating evidence does not call for a lesser penalty. A second alternative might have the jury answer a fourth, constitutionally-required question after the three statutory ones: After considering all the mitigating evidence, does the jury still unanimously conclude that the prisoner should be put to death, rather than spared?' * * * 305 Or. at 232-33, 752 P.2d 1136 (Gillette, J., dissenting). (Emphasis added.) "In view of what we have learned from Penry, it is now clear that mitigating evidence beyond the scope of the statutory issues is indeed constitutionally "relevant to sentence" and, accordingly, statutorily admissible. See State v. Wagner, 305 Or. at 156-67, 752 P.2d 1136; ORS 163.150(1)(a) [ (1987) ]. The step from admissibility of such evidence to meaningful consideration by the jury, suggested by *282 Justice Gillette as a possibility of statutory construction in Wagner and required by the Supreme Court in Penry for a constitutionally valid death sentence, is the step we now take." Wagner II, 309 Or. at 13-14, 786 P.2d 93 (emphasis added). Thus, the fourth question (whether the defendant should receive a death sentence), which this court created in Wagner II, was developed for the sole purpose of giving effect to the constitutional requirement that the jury must consider mitigating evidence. Indeed, the point of the fourth question was to give the jury an opportunity, after considering all mitigating evidence, to decide to spare a defendant's life, notwithstanding affirmative answers to the first three questions which related to the existence of aggravating circumstances. We now turn to the legislative history that followed this court's decisions discussed above. The dissent contends that the legislative history of ORS 163.150 (1989) provides support for their position that the fourth question permits the consideration of aggravating evidence. To that end, the dissent argues that the testimony of Dale Penn, a representative of the Oregon District Attorney's Association, sheds significant light on the purpose of ORS 163.150(1)(b)(D) (1989). 322 Or. at 277, 906 P.2d at 291 (Graber, J., dissenting). There are several problems with the dissent's approach. First, the dissent relies almost exclusively on the inconclusive testimony of one person, Penn. Penn is a witness and representative of a district attorney's association; he is not a legislator. As such, his statements say little about the intent of the Oregon Legislative Assembly as a whole. The majority opinion, on the other hand, attempts to discern the general intent of the Legislative Assembly when it enacted ORS 163.150(1)(b)(D) (1989). Our opinion does so by analyzing ORS 163.150(1)(b)(D) (1989) as a legislative response to the Supreme Court's decision in Penry. The general intent of the Legislative Assembly was to make ORS 163.150 (1989) constitutional in light of Penry by providing a mechanism for the consideration of mitigating evidence. This is the same approach we took when we examined the legislative history of ORS 163.150(1)(b)(D) (1989) in Stevens II, 319 Or. at 581, 879 P.2d 162. It is curious that the dissent relies so heavily on the testimony of one witness. Recently, the author of the dissenting opinion made a general observation about the use of legislative history. The author stated: Penn's opinions concerning ORS 163.150(1)(b)(D) (1989) are merely the views of one witness and do not evidence the general intent of the Legislative Assembly. Even if we were to find Penn's views persuasive, they do not support the dissent's conclusion that ORS 163.150(1)(b)(D) (1989) permits the jury to consider victim impact evidence under the fourth question. Penn testified that the fourth question: First, we point out what Penn did not say. He did not say that the fourth question permits the state to introduce evidence of aggravating circumstances. Rather, he stated that the fourth question would permit both the state and the defense to make arguments "for or against death." Penn's statement simply confirms that the state and defense may make arguments for or against the death penalty under each question. See ORS *283 163.150(1)(a) (1985) ("the state and the defendant * * * shall be permitted to make arguments for or against a sentence of death" "(emphasis added)); ORS 163.150(1)(a) (1989) (same); ORS 163.150(1)(a) (1993) (same). For example, the state may argue that, under the fourth question, any mitigating circumstances offered by defendant should not lead the jury to spare defendant's life. Penn's statement that the state has the right to make arguments for the death penalty is not, as the dissent asserts, the same as saying that the state has the right to introduce aggravating evidence under the fourth question. If the intent of Penn's testimony was that the state has the right to introduce aggravating evidence under the fourth question, it is curious that he concluded his remarks by stating "that's the intent of the Supreme Court's opinion [in Penry ]." The intent of the Supreme Court's opinion in Penry was not to let in more aggravating evidence. In fact, it was just the opposite; the intent of the opinion was to allow the jury to consider mitigating circumstances that may weigh against the imposition of the death sentence. Penry, 492 U.S. at 327-328, 109 S. Ct. at 2951-52. If the dissent believes that we can glean some legislative intent from the statements of witnesses who testified before the legislative committees, the dissent has overlooked the statements of two important witnesses. Both the Attorney General and the Solicitor General, acting in their official capacities, testified as to the purpose of ORS 163.150(1)(b)(D) (1989). The Attorney General, Dave Frohnmayer, remarked: The Solicitor General, Virginia Linder, then added: The comments of the Attorney General and Solicitor General provide additional support to the view that the fourth question was enacted in order to allow the jury to take into account mitigating circumstances that weigh against a sentence of death. This was the view taken by this court in Wagner II. In Wagner II, we concluded that in order to comply with Penry, Oregon's death penalty scheme must include a mechanism that allows the jury an opportunity to spare a defendant's life in light of any mitigating circumstances. 309 Or. at 14, 786 P.2d 93. Accordingly, the "fourth question" was intended as a mechanism to allow the jury to give full effect to any mitigating circumstances. Based on the text, context, and legislative history of ORS 163.150(1)(b)(D) (1989), we conclude that the issue submitted to the jury under the "fourth question" is whether any mitigating circumstances exist that would justify a sentence of life rather than death. To conclude otherwise would allow the jury to consider a non-statutory aggravating factor beyond the three aggravating factors specifically enumerated in the statute. We find nothing in the text, context or legislative history of ORS 163.150(1)(b)(D) (1989) to indicate that the legislature intended that the jury could consider aggravating victim impact evidence under the fourth question. The victim impact evidence presented in this case was not relevant to any of three substantive issues (deliberateness, future *284 dangerousness, and whether defendant should receive a death sentence) that the court instructed the jury to consider in the penalty phase of defendant's capital trial under ORS 163.150(1)(b) (1989). The next issue for this court is whether victim impact evidence is made admissible during the penalty phase of capital cases under ORS 137.013 even though that evidence is not relevant under ORS 163.150(1)(b)(D) (1989). ORS 137.013 provides: In essence, the state argues that ORS 137.013 makes victim impact evidence admissible in the penalty phase of defendant's capital trial, irrespective of its relevance under ORS 163.150(1)(b)(D) (1989). We disagree. For the reasons that follow, we conclude that ORS 137.013 was not intended to render otherwise irrelevant victim impact evidence admissible in the penalty phase of a capital case. Capital cases require our most vigilant and deliberative review. We agree with the United States Supreme Court statement that "[d]eath is a punishment different from all other sanctions in kind rather than degree" so that "there is a difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S. 280, 303-305, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944, 961 (1976). Similarly, in this case, because "death is a punishment different from all other[ ] [sanctions]," we must be certain that the voters in enacting ORS 137.013 as part of Ballot Measure 10 intended that victim impact statements be admitted as evidence in capital cases. Of course, we are not authorized to rewrite a statute or ignore its plain meaning. Lane County v. Heintz Const. Co., et al, 228 Or. 152, 157, 364 P.2d 627 (1961). We cannot insert into a statute what has been omitted, nor omit what has been inserted. ORS 174.010. As previously stated, this court considers the subconstitutional arguments before it examines the state or federal constitutional issues, Stevens II, 319 Or. at 579, 879 P.2d 162. We begin our analysis, therefore, by interpreting ORS 137.013. ORS 137.013 was enacted by the people as part of Ballot Measure 10 (the "Crime Victim's Bill of Rights") in the November 1986 general election. Or.Laws 1987, ch. 2, § 10. This court applies the same method of statutory analysis to a statute enacted by the voters as it would to a statute enacted by the Legislative Assembly. PGE, 317 Or. at 612 n. 4, 859 P.2d 1143. In interpreting a statute enacted by initiative, the court's task is to discern the intent of the voters who passed the initiative. Id. at 610, 859 P.2d 1143. As we said earlier, to determine the intent of the voters, we first look to the text and context of the statute. Id. at 610, 859 P.2d 1143. The text of the statute is the starting point because the text is the best evidence of the voters' intent. Id. at 610, 859 P.2d 1143. Because ORS 137.013 was enacted by the voters as part of Ballot Measure 10, we examine the text of ORS 137.013 in the context of Ballot Measure 10. The text of ORS 137.013 does not, by its terms declare that victim impact evidence shall be admissible as evidence in the penalty phase of capital trials. By contrast, other provisions of Ballot Measure 10 by their terms declare that certain evidence shall be admissible in criminal homicide trials. For example, ORS 41.415, which was enacted as part of Ballot Measure 10, provides: The difference in wording regarding admissibility of evidence is significant. When the legislature uses different terms in related statutes, we presume that the legislature intended different meanings. See PGE, 317 *285 Or. at 611, 859 P.2d 1143 (stating general principle). If the voters intended to require the admission of victim impact evidence in every criminal trialwhether relevant or notthey did not say so explicitly. Indeed, the text of ORS 137.013, in contrast to ORS 41.415 is qualified"[a]t the time of sentencing," a victim has a right "reasonably to express" his or her views. That change does not alter any rule regarding the admissibility of evidence in the penalty phase of a capital trial. The textual differences between ORS 137.013 and ORS 41.135 suggest that ORS 137.013 was not intended to provide for the admission of victim impact evidence in the penalty phase of a capital trial. The text also contains no indication that the voters in enacting ORS 137.013 intended to amend either expressly or by implication the specific penalty phase procedures that ORS 163.150 (1985)[9] required in capital cases. If the voters intended to alter the penalty phase procedures for capital cases set forth in ORS 163.150 (1985), they could have easily done so by expressly amending that statutory provision. However, the voters did not amend ORS 163.150 (1985). ORS 137.013 was specifically added to chapter 137 of the Oregon Revised Statutes. Ballot Measure 10, section 10, provided that "this section [now ORS 137.013] is added to and made a part of ORS Chapter 137." See Ballot Measure No. 10, State of Oregon, 1986; Or.Laws 1987, ch. 2, § 10. Chapter 137 contains general provisions regarding sentencing, parole, and probation for non-capital cases. Specific procedures for sentencing in capital cases, as noted above, are set forth separately in Chapter 163. Nothing in the text of ORS 137.013 suggests that it was intended to alter the standards by which the court makes sentencing decisions under ORS 163.150 (1985). As stated previously, when we interpret a statute, we are prohibited from inserting what the lawmakers omitted. PGE, 317 Or. at 611, 859 P.2d 1143; ORS 174.010. The voters also did not amend ORS 163.150 (1985) by implication when they enacted ORS 137.013. As a matter of statutory interpretation, "[w]e generally do not assume that a statute is intended to repeal or amend another by implication." Wilson v. Matthews, 291 Or. 33, 37, 628 P.2d 393 (1981). Amendment by implication is "disfavored by this court" and is only recognized "when the matter is clear." State ex rel. Med. Pear Co. v. Fowler, 207 Or. 182, 195, 295 P.2d 167 (1956). Construing these two statutes so as to give effect to both, we hold that ORS 137.013 does not amend by implication the penalty phase procedures for capital cases set forth in ORS 163.150 (1985). Wilson, 291 Or. at 37, 628 P.2d 393. Both statutes can be given effect if we interpret ORS 137.013 to apply only to non-capital cases. This construction preserves ORS 137.013 by giving victims the right to make statements in all non-capital cases "at the time of sentencing." Because the voters specifically added ORS 137.013 to the chapter which provides the procedure for sentencing, parole and probation for all non-capital cases, this construction appears consistent with the voters' intent when they enacted ORS 137.013. This construction also gives effect to ORS 163.150 (1985) by preserving the carefully drafted penalty phase procedures that statute requires in capital cases. If the people intended to amend by implication the penalty phase procedures for capital cases set out in ORS 163.150 (1985), that amendment would have the effect of expanding the scope of aggravating circumstances that could be considered in the sentencing decision by the jury. ORS 163.150 (1985) specifically designates the three aggravating factors that justify a sentence of death. Reading ORS 137.013 to require the admission of aggravating evidence that is unrelated to those three aggravating factors would have the effect of implicitly altering the carefully drafted penalty phase procedures set forth in ORS 163.150 (1985). Nothing in the text of ORS 137.013 indicates that the people intended to alter that carefully drafted penalty scheme. The context of Ballot Measure 10 also indicates that the drafters of that measure were *286 aware that special procedures applied to capital cases because certain sections of the measure expressly apply to capital cases. See Or.Laws 1987, ch. 2, § 7 (amending ORS 136.230 to make limits on peremptory challenges apply to "capital offense[s]"); id., § 8 (providing for admission of photograph of the victim "in a prosecution for any criminal homicide"). (Emphasis added.) By contrast, the text of ORS 137.013, also enacted as part of Ballot Measure 10, makes no special reference to changing the penalty phase procedures in capital cases or in cases involving criminal homicide. In light of the express changes made to the penalty phase procedures in capital cases by other provisions of Ballot Measure 10, we conclude that ORS 137.013, which makes no special reference to changing the procedures for capital cases, did not alter the penalty phase procedures for capital cases set forth in ORS 163.150 (1985). Our analysis of the context of the statute also includes consideration of rules of construction because some of those rules "bear directly on the interpretation of the statutory provision in context." PGE, 317 Or. at 611, 859 P.2d 1143; Gaston, 318 Or. at 253, 864 P.2d 1319. One rule of construction which bears directly on the interpretation of ORS 137.013 is set forth in ORS 174.020, which provides: Thus, when one statute deals with a subject in general terms and another deals with the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, while giving effect to a consistent legislative policy. State v. Pearson, 250 Or. 54, 58, 440 P.2d 229 (1968). However, if the two statutes cannot be harmonized, "the specific statute is considered an exception to the general statute." Id.; Smith v. Multnomah County Board of Commissioners, 318 Or. 302, 309, 865 P.2d 356 (1994) (citing Colby v. Larson, 208 Or. 121, 126-127, 297 P.2d 1073, 299 P.2d 1076 (1956)). This case involves the interpretation of two statutes, a general and specific statute. ORS 137.013 is a general statute that appears in a chapter containing the sentencing procedures for non-capital cases. ORS 137.013 gives victims or their next of kin the right to make impact statements in person or by counsel at the time of sentencing in criminal cases generally. ORS 163.150(1) (1989) is a more specific statute. ORS 163.150(1) (1989) sets forth the specific procedures for a jury to follow in the penalty phase prior to the pronouncement of sentence in a capital case. As we previously stated, ORS 163.150(1) (1989) provides four specific questionsthree questions in this casethat a jury must resolve before a trial court sentences a defendant in a capital case. If we were to adopt the state's interpretation of ORS 137.013, that statute would conflict with ORS 163.150(1) (1989). The state maintains that ORS 137.013 provides that victim impact evidence is admissible during the penalty phase of a capital case. ORS 163.150(1)(a) (1989), however, provides that only relevant evidence may be presented during the penalty phase of a capital case. As we have demonstrated earlier in this opinion, victim impact statements are not "relevant to sentenc[ing]" in capital cases under ORS 163.150(1)(b) (1989), because those statements are not relevant to any of the four substantive questions that a jury must answer pursuant to that statute and Wagner II, 309 Or. at 18, 786 P.2d 93. Under the state's interpretation, therefore, there is an inconsistency between the two statutes. ORS 137.013, according to the state, provides that victim impact evidence is admissible in the penalty phase of a capital case. As we have shown earlier in this opinion, ORS 163.150(1)(b)(D) (1989) bars the admission of such evidence in the penalty phase of a capital case. Any inconsistency between those two statutes can be resolved, however, if we construe ORS 137.013 to apply only to sentencing in non-capital cases. That construction gives effect to both statutes. As we stated above, *287 that construction preserves the legislative policy of ORS 163.150(1) (1989) by preserving the carefully drafted sentencing scheme evident in that statute. It also ensures that the jury consider only relevant evidence during their deliberations in the penalty phase of a capital case. That construction also preserves the legislative policy of ORS 137.013. Our interpretation of ORS 137.013 ensures that victims, and their next of kin have the right to make impact statements in person, during sentencing, and before a judge in all non-capital criminal trials. Before the enactment of ORS 137.013, victims did not have the right to make victim impact statements in person. First, the trial court was not required to conduct a sentencing hearing. See ORS 137.080 (1985) (trial judge had discretion as to whether to conduct a sentencing hearing). More significantly, victims only had the right to express their views in writing as part of a presentence report. ORS 137.530(2) (1985) provided in part: Under ORS 137.090 (1985), the trial court was permitted, but was not required, to consider the presentence report before sentencing the defendant. ORS 137.090 (1985). In the context of non-capital indeterminate sentencing, ORS 137.013 removes a trial court's discretion in deciding whether a victim will be heard personally at the time of sentencing, as opposed to having the victim's views expressed through the presentence report. Our analysis of the text and context of ORS 137.013 leads us to these conclusions: ORS 137.013 was not intended to render otherwise irrelevant evidence admissible during the penalty phase of capital trials;[10] rather, ORS 137.013 was intended to give victims or their next of kin the right to appear in person or through an attorney at the time of sentencing in all non-capital criminal trials. In summary, the victim impact evidence presented during the sentencing proceeding in this case was not relevant to any fact or proposition provable under ORS 163.150(1) (1989) and, therefore, was inadmissible under that statute. In addition, an analysis of the text and context of ORS 137.013 indicates that ORS 137.013 did not alter the specific capital sentencing procedures set forth in ORS 163.150(1) (1989). The trial court erred in admitting the victim impact evidence in this case.[11] The error in this case was not harmless. We cannot say that there was little likelihood that the error affected the verdict. See State v. Johnson, 313 Or. 189, 201, 832 P.2d 443 (1992) (standard for determining whether evidentiary error is harmless is consistent with the standard for reversible error set forth in Article VII (Amended), section 3, of the Oregon Constitution. Under that standard, error is harmless if there is little likelihood that the error affected the verdict.). The sentence of death is vacated. This case is remanded to the circuit court for further proceedings. *288 GRABER, J., dissented and filed an opinion in which CARSON, C.J., and GILLETTE, J., joined. GRABER, Judge, dissenting. Because evidence of the victims' character and background was admissible, I dissent. The majority distorts the applicable statutes and thereby thwarts the will of the people. Before the penalty phase of defendant's trial began, defendant moved in limine to prevent the admission of so-called "victim impact" evidence. He relied on the Eighth and Fourteenth Amendments to the United States Constitution and also asserted that such evidence would "[v]iolate[ ] the right to an impartial jury secured by Article I, section 11, of the Oregon Constitution." At the time, Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), described the federal constitutional limits on the presentation of such evidence. The trial court granted defendant's motion. After voir dire, but before opening statements, the Supreme Court of the United States overruled Booth in Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991). The next day, the state informed defendant and the court that it intended to introduce evidence from the victims' family about the victims that was consistent with Payne. The state asserted that it intended to present evidence on two issues: (1) "What kind of people were [the victims]," and (2) "how did the manner of their deaths affect the people directly impacted by them." The state also told the court that it did not intend to ask the family members their opinions of the crime or what the sentence ought to be.[1] The trial court noted that ORS 137.013 appeared to make the evidence that the state proposed to offer admissible as a matter of state law. Defendant argued to the court that ORS 137.013 "does not apply to capital sentencing proceedings" and that, if it does, the statute violates the Oregon Constitution. The court then took the matter under advisement. Three days later, before opening statement, the trial court ruled: "[T]here's no p[er] se prohibition against victim impact evidence, and Oregon has a statute allowing that kind of evidence." The testimony now challenged fell within the parameters described by the state to the trial court. In addition to testifying about facts of the crime (such as the children's description of discovering their parents' bodies and the family members' identification of the victims' personal property that was found in defendant's possession), the family members described what kind of people the victims were and what they did for a living. Defendant did not ask the court to reconsider its initial ruling in the light of that testimony, nor did he argue that the testimony went beyond what ORS 137.013 would allow. As noted, defendant argued (as the majority now holds) that the statute does not apply in a capital case. In my view, the statute on which the trial court relied supports the trial court's ruling. In construing a statute, this court first examines its text and context and, if the legislative intent is clear from that examination, the court inquires no further. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). The same method of analysis applies to initiated statutes. Id. at 612 n. 4, 859 P.2d 1143. In the present case, the text and context of ORS 137.013 make clear the people's intent when they adopted it as part of Ballot Measure 10 (Or.Laws 1987, ch. 2), also known as the "Crime Victims' Bill of Rights." Or.Laws 1987, ch. 2, § 1. The majority's strained interpretation is, in a word, bizarre. ORS 137.013 provides: "At the time of sentencing, the victim or the victim's next of kin has the right to appear personally or by counsel, and has the right to reasonably express any views *289 concerning the crime, the person responsible, the impact of the crime on the victim, and the need for restitution and compensatory fine." By its terms, that statute applies at the time of any sentencing whatsoever, including a sentencing that may (or, of course, may not) lead to imposition of the death penalty. The phrase "next of kin" suggests strongly that the statute applies in homicide cases. Any doubt in that regard is dispelled by ORS 131.007, which defines the term "victim," as it is used in ORS 137.013, to "include[ ], in the case of a homicide * * *, a member of the immediate family of the decedent." The applicable definition draws no distinction between capital and non-capital homicides. It is equally clear that the "Crime Victims' Bill of Rights" did not single out for fewer rights the relatives of victims of the most serious of homicidesthose in which the death penalty is sought. Other sections of Ballot Measure 10 demonstrate that the initiative as a whole encompasses capital cases. For example, Section 7 of Ballot Measure 10 added to ORS 136.230 a provision for additional peremptory challenges for the state in capital cases. Or Laws 1987, ch. 2, § 7. That section indicates that the initiative as a whole was intended to cover capital murder cases. In addition, Section 8 of Ballot Measure 10 adopted ORS 41.415, which provides that, "[i]n a prosecution for any criminal homicide," a photograph of the victim while alive shall be admissible when offered by the state. That section demonstrates that the initiative considered all criminal homicides to be in a single category, covered by the terms of the initiative. Indeed, this court has held that ORS 41.415 applies in capital cases. State v. Williams, 313 Or. 19, 27-28, 828 P.2d 1006, cert. den. ___ U.S. ___, 113 S. Ct. 171, 121 L. Ed. 2d 118 (1992); State v. Nefstad, 309 Or. 523, 560, 789 P.2d 1326 (1990). It also is clear that "sentencing" occurs in capital cases. ORS 163.150 uses the term "sentencing" many times, in describing what happens in a capital case. That sentencing occurs at a "time," the time set for the penalty phase of the trial. Finally, we know from Ballot Measure 10 itself what the people intended to accomplish by its enactment. The preamble to Ballot Measure 10 provided in part that "[t]he purpose of this ballot measure is to declare to our legislature and our courts that victims' rights shall be protected at each stage of the criminal justice system." Or.Laws 1987, ch. 2, § 2. Even if the text and context of ORS 137.013 were not clear, the legislative history would eliminate any uncertainty. The explanatory statement in the November 1986 Voters' Pamphlet stated that the purpose of Ballot Measure 10 was, in part, to "[e]nsure victim[s], in person * * *, the right to express views in court at sentencing." Official 1986 General Voters' Pamphlet at 52 (emphasis added). Again, there is no hint of a limitation that such rights of victims would be ensured only for less serious crimes, but excluded for the most serious crimes. In summary, the intent of the people is clear. ORS 137.013 applies uniformly to all criminal cases at the time of sentencing and contains no exception for capital sentencing proceedings. A fair reading of the text and context (even without resort to confirming legislative history) shows that the purpose of ORS 137.013 was to ensure that no sentencing proceeding in Oregon focuses exclusively on the defendant; every such proceeding also is to include consideration of the costs that the defendant's crime imposed on the victim and, in the case of homicides, on the victim's next of kin. The statute, in other words, makes the impact on the victim relevant to every sentencing proceeding. And, it authorizes the admission of such evidence by making the opportunity of the homicide victim's next of kin to speak on the designated topics a "right." Because ORS 137.013 provides that "victim impact" evidence is to be considered in capital *290 (as well as other criminal) cases, the next question is whether ORS 163.150 (1989) precluded the sentencing jury from hearing such evidence. It did not. The two statutes are consistent. ORS 137.013 specifies that one type of evidence is relevant to the sentencing jury's decision in capital cases; it reflects the people's determination that the harm caused by a defendant's criminal act is relevant to sentencing and is admissible. ORS 163.150 (1989) set out four questions that the jury must answer. The wording of those questions did not preclude the sentencing jury from considering victim impact evidence. The fourth question asked broadly "whether a sentence of death be imposed." ORS 163.150(1)(b)(D) (1989). As worded, the fourth question was neutral, not one-sided. It permitted the jury to take into account the harm that a defendant caused to the victim or victim's next of kin, among other factors, in deciding the appropriate sentence. In State v. Stevens, 319 Or. 573, 580-84, 879 P.2d 162 (1994) (Stevens II), this court considered the legislature's intent in adding the fourth question to ORS 163.150. After tracing the history of the fourth question, the court concluded that the sentencing jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or relevant to the circumstances of the crime. Id. at 583, 879 P.2d 162. The court then held that the defendant's offer of proof included testimony that could provide circumstantial evidence of some mitigating aspect of the defendant's character or background, making it relevant to the fourth question; therefore, the trial court erred in excluding the proffered evidence. Id. at 584-85, 879 P.2d 162. Stevens II construed the requirements of ORS 163.150 respecting what kinds of mitigating evidence must be admitted as relevant. The court was not called on, however, to consider the converse: whether the statute makes non-mitigating evidence irrelevant. Neither does its holding answer that question indirectly. To the extent that Stevens II contains any suggestion at all on the point now in issue, it is an implicit assumption that victim impact statements are relevant and admissible and that the defendant's opportunity to introduce evidence of his or her character and background was meant to parallel or balance the opportunity that already existed to do the same respecting the victim: See also State v. Wagner, 309 Or. 5, 18, 786 P.2d 93 ("[t]here is no burden of proof on the fourth question because it does not present an issue subject to proof in the traditional sense, rather, it frames a discretionary determination for the jury"), cert. den. 498 U.S. 879, 111 S. Ct. 212, 112 L. Ed. 2d 171 (1990). In short, a reading of the text and context of ORS 163.150 (1989) shows that it was compatible with ORS 137.013. Even if the legislative intent were not clear from the text and context, however, the legislative history likewise shows that the legislature did not intend the 1989 amendment to ORS 163.150 to preclude the kind of evidence that is at issue here. See PGE, 317 Or. at 611-12, 859 P.2d 1143 (if the intent of the legislature is not clear from the text and context, this court will consider legislative history). The main messages derived from the legislative history of the 1989 amendment to ORS 163.150 track its text: to add mitigation but not to exclude anything. The Oregon legislature added the fourth question to ORS 163.150 in 1989 in response to the decision of the Supreme Court of the United States in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). Minutes, Senate Committee on Judiciary, HB 2250, June 29, 1989, at 2 (statements of Dave Frohnmayer, Attorney General, and Virginia Linder, Solicitor General). That is the consistent and overarching theme of the legislative history as a whole. See also Stevens II, 319 Or. at 582-83, 879 P.2d 162. *291 It also is clear from the legislative history as a whole, however, that (1) the legislature did not intend to exclude any category of evidence, (2) the legislature did not intend to do any more to benefit capital defendants than what Penry required, and (3) it was assumed that "aggravating" as well as "mitigating" facts would be introduced during the penalty phase of a capital trial. The following example reflects the foregoing points. The following version of the fourth question was proposed: Tape Recording, Senate Committee on Judiciary, June 29, 1989, Tape 256, Side A at 86. One of the senators objected that the proposed wording was confusing. Id. at 144 (remarks of Sen. Shoemaker). In response, the witness who was then testifying, Dale Penn, explained how the fourth question worked. He told the committee that the proposed wording allowed both the state and the defendant to present arguments for and against the death penalty, even though such arguments were not already relevant to the first three questions. Id. at 160-75. Immediately after that explanation, Senator Hill moved to substitute "the language just described" for the prior proposal. Id. at 188. With very minor alterations not pertinent to the issue here, "the language just described" became what was the applicable version of ORS 163.150 (1989). The legislative history shows, as noted, that the fourth question was intended to allow the jury to give effect to a broad range of mitigating evidence that could not be considered in deciding the first three questions. Stevens II, 319 Or. at 582-83, 879 P.2d 162. It does not follow, however, that in adding the fourth question the legislature intended to foreclose the jury from considering non-mitigating evidence that another statute makes relevant to the sentencing decision. To the contrary, in explaining to the Senate Judiciary Committee how the fourth question would work, the witness who described it in essentially the form in which it was adopted said that it would allow "all kinds of arguments by the state * * * for * * * death[,] whether or not" relevant to the other three questions. In other words, the legislative history also shows that the legislature contemplated an open-ended, not one-sided, consideration of the defendant's character, background, and circumstances of the crime. Finally, the legislative history as a whole suggests that the legislature intended to add the minimum protection for defendants that the federal constitution requires. In conclusion, ORS 163.150 (1989) did not preclude the sentencing jury from considering evidence that ORS 137.013 specifies is relevant. Indeed, even in the terms of ORS 163.150(1)(b)(D), "victim impact" evidence was independently relevant. "Victim impact" evidence provides the jury with relevant evidence about the circumstances of the crime." It informs the jury of the reasonably foreseeable harm to the victim's family that the defendant's crime caused. See Payne, 501 U.S. at 838, 111 S. Ct. at 2615-16 (Souter, J., concurring) (so stating). Moreover, such evidence makes real the abstract proposition that a murder ends a particular, unique person's life and affects that person's family. Thus, the loss that the crime causes is one of the circumstances of the crime and is relevant to the reasoned moral decision that the fourth question asks the jury to make. See Penry, 492 U.S. at 319, 109 S. Ct. at 2947 (jury must give reasoned moral response to the defendant's background, character, and crime). Even if there were some tension between the two statutes, ORS 137.013 is more specific than ORS 163.150 (1989) and, therefore, controls. This court already has held that another provision of Ballot Measure 10 is more specific than the general principles of *292 relevance that otherwise would apply. See Williams, 313 Or. at 28, 828 P.2d 1006 (ORS 41.415, which was enacted as Oregon Laws 1987, chapter 2, section 8, specifically declares photographs of the victim while alive to be relevant and not subject to balancing under OEC 403). Defendant's subconstitutional arguments are not well taken. Accordingly, I turn to his constitutional arguments. Defendant preserved only one specific state constitutional argument. He asserted at trial, and asserts in conclusory fashion here, that the introduction of victim impact evidence violated his right to an impartial jury under Article I, section 11, of the Oregon Constitution.[3] That clause of Article I, section 11, governs the composition of the jury panel. See State v. Busby, 315 Or. 292, 300 n. 7, 844 P.2d 897 (1993) (this court, in rejecting argument that evidence admitted at trial violated the defendant's right to an impartial jury, stated: "Defendant does not * * * argue that the jury impaneled for his own trial was influenced * * * by the evidence of his prior conviction, because that evidence was never placed before the jury." (emphasis added)). The impartial jury clause of Article I, section 11, does not govern what type of evidence that an impartial jury, once empaneled, may hear or consider. In this court, defendant asserts that the challenged evidence offends Article I, section 11, as well as the Fourteenth Amendment, because it "was fundamentally unfair and seriously compromised his right to a fair trial." But, this court "repeatedly has stated that Oregon's constitution does not contain a due process clause." State v. Moen, 309 Or. 45, 98, 786 P.2d 111 (1990). Defendant argues that "[a]llowing evidence of the type challenged her[e] would produce wanton and freakish imposition of the death penalty in contravention of the Eighth Amendment."[4] The Supreme Court of the United States held in Payne, however, that the Eighth Amendment does not preclude states from allowing evidence concerning the victim and the effect of the victim's death on his or her immediate family. 501 U.S. at 827, 111 S. Ct. at 2609. The Supreme Court also has held that a state avoids the Eighth Amendment's prohibition against arbitrary imposition of the death penalty if it genuinely narrows the class of murders for which the death penalty may be imposed. Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 2742, 77 L. Ed. 2d 235 (1983). After that occurs, the Eighth Amendment does not bar the introduction of evidence that is relevant to the jury's sentencing decision. 462 U.S. at 886-87, 103 S. Ct. at 2747-48. The Oregon statute genuinely narrows the class of murders for which the death penalty may be imposed, a determination that the jury makes at the guilt phase of the trial. State v. Farrar, 309 Or. 132, 184-85, 786 P.2d 161, cert. den. 498 U.S. 879, 111 S. Ct. 212, 112 L. Ed. 2d 171 (1990). Accordingly, the Eighth Amendment does not bar the introduction of relevant evidence, including the kind of evidence permitted by Payne and specifically authorized by ORS 137.013, during the penalty phase. Defendant reiterates the conclusory argument made under the Oregon Constitution, that admission of this evidence was fundamentally unfair, in violation of the Due Process Clause of the Fourteenth Amendment to *293 the United States Constitution.[5] In death penalty cases, the Due Process Clause is coextensive with the Eighth Amendment. Moen, 309 Or. at 98, 786 P.2d 111. Because the Eighth Amendment does not preclude the victim impact evidence in this case, neither does the Due Process Clause. The victim impact evidence challenged in the present case is relevant under the mandate of ORS 137.013. Its admission is not precluded by ORS 163.150 (1989) or by the constitutional provisions that defendant cited to the trial court. For the foregoing reasons, I dissent from the majority's contrary conclusion. CARSON, C.J., and GILLETTE, J., join in this dissenting opinion. [1] The facts of this case are set forth in this court's opinion in State v. Guzek, 310 Or. 299, 797 P.2d 1031 (1990) (Guzek I). [2] In this opinion, we use the term "victim impact evidence" to mean evidence presented at the penalty phase on remand relating to the victim's personal characteristics and the emotional impact of the victim's death on the victim's family. [3] The Eighth Amendment to the Constitution of the United States provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The cruel and unusual punishments clause applies to the states through the due process clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 667, 82 S. Ct. 1417, 1420-21, 8 L. Ed. 2d 758, 763 (1962). [4] In State v. Wagner, 309 Or. 5, 786 P.2d 93, cert. den. 498 U.S. 879, 111 S. Ct. 212, 112 L. Ed. 2d 171 (1990) (Wagner II), which we discuss more fully below, this court held that the fourth statutory question, ORS 163.150(1)(b)(D) (1989), lacked "grammatical clarity" and, therefore, provided a new standard instruction for trial courts to read to juries during the penalty phase of a capital trial. It is within the context of the fourth statutory question, set out in full following our discussion of Wagner II, that the state argues that victim impact evidence was admissible in this case. [5] The third statutory question, i.e., the issue of unreasonable response to provocation, was not raised by the evidence in this case and, therefore, was not presented to the jury for its consideration. [6] We refer to the query "whether a sentence of death should be imposed" as the "fourth question" because it is the fourth question listed in ORS 163.150(1)(b)(D) (1989). In this case, because there were only three substantive questions at issue, the so-called fourth question was actually the third question presented to the jury. [7] Indeed, the trial court's instructions to the jury focused solely on mitigation. The trial court instructed the jury to consider "any aspect of the defendant's character or background or any circumstances of the offense that you believe would justify a sentence less than death." [8] Penry followed a long line of Supreme Court cases on the Eighth Amendment which required that the factfinder consider the capital defendant as an individual person. In Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), the Court concluded that, in a capital case, the respect for humanity underlying the Eighth Amendment required a trial court to consider the character and record of the individual and the circumstances of the offense. In Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), the sentencing judge refused to hear evidence of the defendant's troubled youth, beatings by her father and severe emotional disturbance; the Supreme Court remanded, holding that the Eighth Amendment required consideration of the defendant's character and record as well as the circumstances of the offense. This concept was carried further in Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986), where the Court held that testimony of two prison officials and a regular visitor of defendant during his incarceration between arrest and trial should have been admitted to show his adaptability to prison life. [9] We consider the 1985 statute at this point because that was the statute in effect at the time the voters enacted ORS 137.013 in the November 1986 election. [10] Our decision is based entirely on statutory law. In Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d 720, 736 (1991), the United States Supreme Court held that the Eighth Amendment to the Constitution of the United States does not create a per se bar to the admissibility of victim impact evidence in the penalty phase of a capital case. Payne did not hold, however, that victim impact evidence must be admitted in capital cases, or even that it should be admitted. Payne made clear that whether such evidence is relevant is a matter of state law. 501 U.S. at 827, 111 S. Ct. at 2609. Nothing in our decision prevents the Oregon legislature from amending ORS 163.150 to change the inquiries relevant to sentencing under ORS 163.150 in such a way as to render victim impact evidence relevant in the sentencing phase of capital trials. Indeed, it appears that the 1995 Legislative Assembly may have done so. See Or.Laws 1995, ch. 531, § 3; Or.Laws 1995, ch. 657, § 23 (amending ORS 163.150). [11] Because of our disposition of this assignment of error, we are not required to consider any of defendant's other assignments of error. [1] Payne held that, "if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." 501 U.S. at 827, 111 S. Ct. at 2609. Payne did not address the holding in Booth that the Eighth Amendment bars admission of opinions of the victim's family about the crime, the defendant, and the appropriate penalty. Payne, 501 U.S. at 830 n. 2, 111 S. Ct. at 2611 n. 2. [2] In 1995, the legislature amended ORS 163.150(1)(a) to allow the admission of victim impact evidence of the type at issue in this case at the sentencing phase of a capital case. Or.Laws 1995, ch. 531, § 2 & ch. 657, § 23. [3] Article I, section 11, of the Oregon Constitution, provides in part: "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *." [4] The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." [5] 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 * * *."

05b2bf68319e6ccdfd0b17a29d1380870cfc32795b77f1274d6044397c5798ab

1995-11-24T00:00:00Z

bd49ff00-a49b-46c1-a93a-3ace0f92099e

Novick v. Myers

oregon

Oregon Supreme Court

Filed: December 20, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48765) En Banc On petition to review ballot title. Argued and submitted October 4, 2001. Steven Novick, Portland, argued the cause and filed the petition. Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. GILLETTE, J. Ballot title referred to the Attorney General for modification. GILLETTE, J. In this ballot title review proceeding, petitioner challenges all four aspects (i.e., the caption, the "yes" and "no" vote result statements, and the summary) of the Attorney General's certified ballot title for a proposed initiative measure that the Secretary of State has denominated as Initiative Petition 72 (2002). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035. See ORS 250.085(5) (setting out standard of review). The proposed measure would amend the present wording of Article IV, section 1, subsection (2), paragraph (d), of the Oregon Constitution, in three respects: "Article IV, section 1, subsection (2), paragraph (d) of the Constitution of the State of Oregon is amended to read: "(d) An initiative petition shall include the full text of the proposed law or amendment to the Constitution. A proposed law or amendment [to the Constitution] shall embrace one subject only and matters [properly] reasonably connected therewith. An initiative shall not be found to contain multiple subjects or amendments unless the subjects or amendments contained therein are in no meaningful way connected or related. A proposed law or amendment that offers voters a coherent package of choices or tradeoffs shall not be invalidated on grounds that it contains more than one subject or amendment." (1) (Wording that would be removed from the present paragraph (d) is set off in brackets and is italicized; wording that would be added is set out in bold.) The substance of the parties' arguments turns on the scope and meaning of the two additional sentences that the proposed measure would add to Article IV, section 1(2)(d). Article IV, section 1(2)(d), commonly is referred to in its present wording as the "single-subject" requirement. Completeness requires us to include reference to another provision of the Oregon Constitution because, as we shall explain, its wording appears to be the reason for some of the content of the last two sentences of the proposed measure. Article XVII, section 1, of the Oregon Constitution, which describes the manner in which the Constitution may be amended, provides, in part: "When two or more amendments [to the Oregon Constitution] shall be submitted in the manner aforesaid[, i.e., either by legislative referral or by initiative,] to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately.* * *" The quoted part of Article XVII, section 1, commonly is referred to as the "separate-vote" requirement. An initiated measure fails the test of Article XVII, section 1, if it submits to the people for a single vote two or more substantive changes to the Oregon Constitution that are not "closely related." Armatta v. Kitzhaber, 327 Or 250, 277, 959 P2d 49 (1998). The "single-subject" and "separate-vote" requirements are related, but they are not the same. See generally id. at 256-75 (explaining origins, meaning, and interrelationship of Article IV, section 1(2)(d), and Article XVII, section 1). The Attorney General certified the following ballot title for the proposed measure: "AMENDS CONSTITUTION: INITIATIVE CONTAINING RELATED PARTS, OFFERING VOTERS COHERENT PACKAGE OF CHOICES CONTAINS SINGLE SUBJECT "RESULT OF 'YES' VOTE: 'Yes' vote accepts proposal stating that initiative contains one subject, amendment, if its parts are related in any 'meaningful way,' offers coherent package of choices. "RESULT OF 'NO' VOTE: 'No' vote rejects proposal stating that initiative contains one subject, amendment, when its parts are related, or it offers voters coherent package of choices, tradeoffs. "SUMMARY: Amends Constitution. Under current law, an initiative measure is limited to a single subject and related matters. An initiative complies with the single-subject requirement if it contains a unifying principle that logically connects all of its provisions. The measure provides that an initiative shall not be found to contain more than one subject or constitutional amendment unless the subjects or amendments in the initiative are not connected or related in any 'meaningful way.' Under the measure, a proposed law or constitutional amendment can not be invalidated on the basis that it contains more than one subject or amendment if the proposed law or constitutional amendment offers voters a coherent package of choices or tradeoffs." As noted, petitioner objects to the ballot title caption, result statements, and summary. Petitioner's primary argument (2) is that the true "subject" of the proposed measure is a change in the criteria that proposed initiatives would have to meet to be eligible to be placed on the ballot. More specifically, he asserts that the proposed measure is a directive to the responsible state officials -- most commonly the Secretary of State and this court -- not to declare invalid future initiatives that meet the proposed measure's rewording of both the "single-subject" and "separate-vote" requirements. It follows that, if petitioner's argument is correct, then the Attorney General's caption, result statements, and summary are insufficient, because none mentions that the proposed measure alters the constitutional criteria for applying those requirements. The Attorney General responds that petitioner's arguments are speculative and that the Attorney General does not have the authority to speculate as to the meaning of a proposed measure in writing a ballot title. See Kane v. Kulongoski, 319 Or 88, 91, 872 P2d 981 (1994) (so holding). We disagree with the Attorney General that petitioner's arguments are speculative. Respecting the effect of the proposed measure on the "single-subject" requirement, we agree with the Attorney General that it may be not possible to state precisely how the proposed measure would alter the meaning of the present wording of Article IV, section 1(2)(d). See, e.g., State ex rel Caleb v. Beesley, 326 Or 83, 89-91, 949 P2d 724 (1997) (discussing test; indicating that enactment does not violate single-subject requirement "merely by including a wide range of connected matters intended to accomplish the goal of that single subject"); Armatta, 327 Or at 273 (citing with approval and relying on Beesley). But it is inescapable that the proposed measure, by its terms, changes the wording of the constitutional test, and the voters must be told at least that much, especially if -- as petitioner contends -- the proposed measure also affects the separate-vote requirement. We turn to that issue. The Attorney General argues that, by its wording, the proposed measure speaks only to Article IV, section 1(2)(d), of the Oregon Constitution, and does not implicate the "separate-vote" requirement of Article XVII, section 1. We disagree. We do not see how the wording in two separate sentences of the proposed measure, viz., "[a]n initiative shall not be found to contain multiple * * * amendments" and "[an] amendment * * * shall not be invalidated on grounds that it contains more than one * * * amendment" (emphasis added), fairly can be read in any other way than as implicating the standard presently found in Article XVII, section 1. The Attorney General's argument that the proposed measure affects only Article IV, section 1(2)(d), because it mentions only that constitutional provision, cannot prevail against the wording of the proposed measure, which implicates Article XVII, section 1, as well as Article IV, section 1(2)(d). We also reject the Attorney General's further assertion that the proposed measure implicates only Article IV, section 1(2)(d), because, as the Attorney General reads it, the wording that the proposed measure would add to that constitutional section focuses on the content of future proposed measures, rather than on the effect of proposed measures on the existing constitution. The Attorney General points out that this court in Armatta differentiated between Article IV, section 1(2)(d), and Article XVII, section 1, on the ground, inter alia, that the former is concerned with the content of a measure, while the latter is concerned with the effect of a measure on the existing constitution. Id. at 270. We are not persuaded by that argument, however, because of the direct instruction in the proposed measure that an initiative not be invalidated on the ground that "it contains more than one * * * amendment." An initiative never would have been invalidated on that ground under Article IV, section 1(2)(d); such an action would have been grounded on Article XVII, section 1. See Armatta, 327 Or at 283-84 (illustrating principle). The caption, the "yes" and "no" vote result statements, and the summary must be revised to reflect that the proposed measure creates new criteria respecting the standards presently found in both Article IV, section 1(2)(d), and Article XVII, section 1, of the Oregon Constitution. Petitioner also asserts that the Attorney General's certified ballot title fails to comply with the requirements of law in that it "misleadingly suggests that an initiative must both have related parts and offer voters a coherent package of choices in order to be considered to contain a single subject, when in fact the measure provides * * * that an initiative must only meet one of the two alternative standards." (Emphasis in original.) Petitioner's complaint arises out of the use of commas in the caption and the "yes" vote result statement. (3) The commas, he asserts, will leave the voter with the impression that, to pass constitutional muster, an initiative both must contain provisions all of which are related in a "meaningful way" and must offer the voters a "coherent package of choices or tradeoffs." That is, petitioner asserts that voters will read the commas used by the Attorney General to mean "and." In fact, however, petitioner claims that the criteria are alternatives, either of which would qualify an initiative for the ballot. We agree with petitioner that the wording of the proposed measure indicates that an initiative that meets either the "related in a meaningful way" or the "coherent package of choices or tradeoffs" standard would pass constitutional muster. We note that the Attorney General apparently agrees with that reading as well, because he used the conjunction "or" in his "no" vote result statement. (4) We also agree with petitioner that voters could misread the commas about which he is concerned in the caption and "yes" vote result statement to mean "and." It follows that the caption and "yes" vote result statement fail to conform to the requirements of law in this respect, as well. Ballot title referred to the Attorney General for modification. 1. We note that the deletion of the repeating phrase, "to the Constitution," is unexplained and, in any event, immaterial to our disposition of the present case. Similarly, the meaning of the substitution of the adverb "reasonably" for the adverb "properly," although a change of uncertain consequence, does not lie at the heart of the present controversy. 2. We combine petitioner's first two arguments in his petition for the purposes of this discussion. 3. As noted, the Attorney General's caption and "yes" vote result statement provide: "AMENDS CONSTITUTION: INITIATIVE CONTAINING RELATED PARTS, OFFERING VOTERS COHERENT PACKAGE OF CHOICES CONTAINS SINGLE SUBJECT." "'Yes" vote accepts proposal stating that initiative contains one subject, amendment, if its parts are related in any 'meaningful way,' offers coherent package of choices." 4. The Attorney General's "no" vote result statement provides: "'No' vote rejects proposal stating that initiative contains one subject, amendment, when its parts are related, or it offers voters coherent package of choices, tradeoffs." (Emphasis added.)

aed888745ed90f3093b62dcc51868d57071d31605324c4bddcff25f0979370a8

2001-12-20T00:00:00Z

9a458f61-9eba-4d31-b9b3-487656ac64a4

Mabon v. Myers (Certification)

oregon

Oregon Supreme Court

FILED: November 26, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON LON T. MABON, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent, and ANN JACKSON, HANNAH DAVIDSON, JEANA FRAZZINI, STEPHANIE VAN ZUIDEN, and JANN CARSON, Intervenors. (SC S48518) En Banc On modified ballot title filed November 16, 2001.* No appearance by petitioner or intervenors. Holly A. Vance, Assistant Attorney General, Salem, filed the filing of modified ballot title for respondent. With her on the filing were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). 332 Or 633, ___ P3d ___ (2001) (referring ballot title for modification). The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 34 (2002), failed to comply substantially with statutory standards. Mabon v. Myers, 332 Or 633, ___ P3d ___ (2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 34 (2002) states: "AMENDS CONSTITUTION. PROHIBITS: ABORTION, PHYSICIAN-AIDED DYING, CERTAIN PAIN/BIRTH-CONTROL METHODS, 'MORTAL HARM' TO 'INNOCENT' PERSONS "RESULT OF 'YES' VOTE: 'Yes' vote prohibits: abortion; physician aid-in-dying; certain pain-control, birth-control methods; 'mortal harm' to 'innocent human life' from fertilization until 'natural death.' "RESULT OF 'NO' VOTE: 'No' vote retains current laws allowing abortion, physician aid-in-dying, pain-control and birth-control methods; rejects 'protecting' 'person' from fertilization until 'natural death.' "SUMMARY: Amends constitution. Under current law, abortion permitted before fetus becomes viable outside womb; after viability, abortion allowed if women's life endangered; woman may use birth-control methods effective after fertilization, including IUD's, morning-after pill, some oral contraceptives; pain control permitted that may hasten death; competent terminally-ill patient may choose physician-hastened death under Death with Dignity Act. Measure declares that 'God Almighty,' not man, establishes 'Human Personhood' at fertilization. Measure requires citizens, 'in humility and obedience to Nature's God,' to 'protect' from 'mortal harm' all 'innocent Human Life,' 'acknowledging,' 'protecting' 'Human Person' from fertilization until 'natural death.' Measure does not define terms quoted above. Measure prohibits abortion, physician aid-in-dying, birth-control methods taken after conception, pain control that may hasten death." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9).

65cf03099356afd812ab9815b3ac380fd7108acf47faa7859ce4fdd7b27d809f

2001-11-26T00:00:00Z

e6385598-7b62-42d9-8eac-b92e84aed1a2

State v. Baker

S47012

oregon

Oregon Supreme Court

Filed: October 25, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. DAVID ALLEN BAKER, Petitioner on Review. (CC 980745983; CA A104522; SC S47012) On petition for review filed November 23, 1999.* Garrett A. Richardson, Portland, filed the petition for petitioner on review. No appearance contra. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.** MEMORANDUM OPINION The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of State v. Clay, 332 Or 327, 29 P3d 1101 (2001). *Appeal from Multnomah County Circuit Court, Marshall L. Amiton, Judge. 164 Or App 271, 991 P2d 65 (1999). **Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. Justice Thomas A. Balmer did not participate in the consideration or decision of this case.

fd8b3e79eea338d3fe87e52e122b2929f7d394dd42e495d161fb60c8dcc89475

2001-10-25T00:00:00Z

7530cbe3-692e-4a31-b76f-e572ad2c43c2

Mabon v. Myers

oregon

Oregon Supreme Court

FILED: November 8, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON LON T. MABON, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent, and ANN JACKSON, HANNAH DAVIDSON, JEANA FRAZZINI, STEPHANIE VAN ZUIDEN, and JANN CARSON, Intervenors. (SC S48518) En Banc On petition to review ballot title. Submitted on the record July 19, 2001. Lon T. Mabon, pro se, filed the petition. Holly A. Vance, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With her on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Charles F. Hinkle, ACLU Foundation of Oregon, Inc., Portland, filed the memorandum for intervenors Stephanie Van Zuiden and Jann Carson. Eli D. Stutsman, Portland, filed the memorandum for intervenors Ann Jackson, Hannah Davidson, and Jeana Frazzini. LEESON, J. Ballot title referred to the Attorney General for modification. Durham, J., dissented and filed an opinion in which Riggs and Balmer, JJ., joined. LEESON, J. This ballot title review proceeding, brought under ORS 250.085(2), concerns the Attorney General's certified ballot title for a proposed initiative measure that the Secretary of State has denominated as Initiative Petition 34 (2002). (1) Petitioner challenges the caption, the "yes" and "no" vote result statements, and the summary of the Attorney General's certified ballot title. For the reasons explained below, we hold that the caption does not comply substantially with statutory requirements. We refer the ballot title to the Attorney General for modification. ORS 250.085(8); Flanagan v. Myers, 332 Or 318, 323-24, 30 P3d 408 (2001). The proposed measure would amend the Oregon Constitution by adding to Article I, section 1, the following text: "(1) God Almighty gives Human Life. In the womb, He forms a Human Being. At the beginning of that process, it is God, not man, who establishes Human Personhood. Therefore, we the People of the state of Oregon, in humility and obedience to Nature's God, the Lord of Heaven and earth, shall keep safe from mortal harm all innocent Human Life, acknowledging and protecting the Human Person from the moment of fertilization until natural death, so help us God." The Attorney General certified the following ballot title: "AMENDS CONSTITUTION. PROHIBITS: ABORTION; PHYSICIAN AID-IN-DYING; CERTAIN PAIN-CONTROL, BIRTH-CONTROL METHODS; OTHER 'MORTAL HARM' "RESULT OF 'YES' VOTE: 'Yes' vote prohibits abortion, physician aid-in-dying, certain pain-control and birth-control methods, other 'mortal harm'; 'protects' 'person' from fertilization until 'natural death.' "RESULT OF 'NO' VOTE: 'No' vote retains current laws allowing abortion, physician aid-in-dying, pain-control and birth-control methods; rejects 'protecting' 'person' from fertilization until 'natural death.' "SUMMARY: Amends constitution. Under current law, abortion permitted before fetus becomes viable outside womb; after viability, abortion allowed if women's life endangered; woman may use birth-control methods effective after fertilization, including IUD's, morning-after pill, some oral contraceptives; pain control permitted that may hasten death; competent terminally-ill patient may choose physician-hastened death under Death with Dignity Act. Measure declares that 'God Almighty,' not man, establishes 'Human Personhood' at fertilization. Measure requires citizens, 'in humility and obedience to Nature's God,' to 'protect' from 'mortal harm' all 'innocent Human Life,' [']acknowledging,' 'protecting' 'Human Person' from fertilization until 'natural death.' Measure does not define terms quoted above. Measure prohibits abortion, physician aid-in-dying, birth-control methods taken after conception, pain control that may hasten death." ORS 250.035(2)(a) provides that a ballot title for a proposed state measure shall include "[a] caption of not more than 15 words that reasonably identifies the subject matter of the state measure." The caption is the "cornerstone for the other portions of the ballot title." Greene v. Kulongoski, 322 Or 169, 175, 903 P2d 366 (1995). As the "headline" for the ballot title, the caption "provides the context for the reader's consideration of the other information in the ballot title." Id. A caption complies substantially with the requirements of ORS 250.035(2)(a) if it identifies the subject matter of the proposed measure in terms that will not confuse or mislead potential petition signers and voters. Id. at 174-75. A caption that catalogues the effect of a proposed measure, without identifying its subject matter, is inadequate. Carson v. Myers, 326 Or 248, 254, 951 P2d 700 (1998). Petitioner contends that the Attorney General's caption fails to comply substantially with ORS 250.035(2)(a) because it fails to identify reasonably the subject matter of the proposed measure. Instead, petitioner contends, the Attorney General's caption is a "mini-summary" that lists conduct that the proposed measure would prohibit, thereby describing its major effects on Oregonians' existing legal rights and duties. The Attorney General defends the caption on the ground that it provides what the Attorney General believes to be the "critical information" that voters should receive about conduct that the proposed measure would prohibit if it were to become the law of Oregon. In determining whether a caption reasonably identifies the subject matter of a proposed measure, this court examines the text of the proposed measure itself. Earls v. Myers, 330 Or 171, 175, 999 P2d 1134 (2000). In this case, the proposed measure consists of four sentences. The fourth sentence states that the people of the State of Oregon "shall keep safe from mortal harm all innocent Human Life, acknowledging and protecting the Human Person from the moment of fertilization until natural death." The first three sentences in the proposed measure explain the rationale for the fourth sentence. The text of the proposed measure thus makes clear that its subject matter is stated in the fourth sentence, that is, in the promise that the people of Oregon will protect some human life from fertilization until natural death. The Attorney General must identify that subject matter. (2) Although there is no categorical prohibition against also listing certain consequences, such as prohibited conduct, in the caption, any such list may not interfere with reasonably identifying the subject matter of the proposed measure. In this case, the Attorney General's catalogue of conduct that the Attorney General believes the proposed measure would prohibit has interfered with the Attorney General's task of reasonably identifying the subject matter of the proposed measure. To the extent that the Attorney General's caption identifies the subject matter of the proposed measure at all, the caption states only that the proposed measure would prohibit "other 'mortal harm.'" That truncated statement demonstrates the problem of choosing to describe some of the likely effects of the proposed measure, rather than identifying its subject matter. The statement in the caption that the proposed measure would prohibit "other mortal harm" implies that the subject matter of the proposed measure includes a promise to prohibit all "mortal harm" to human life, including abolishing the death penalty. The text of the proposed measure makes clear that its subject matter is a promise to protect only some human life from mortal harm. Because even that part of the Attorney General's caption does not identify reasonably the subject matter of the proposed measure, the caption does not comply substantially with the statutory requirement, and the Attorney General must modify it. We refer the ballot title to the Attorney General for that purpose. We turn to petitioner's challenge to the "yes" and "no" vote result statements. A "yes" vote result statement must describe in simple and understandable terms of 25 words or fewer the result if a proposed measure is approved. ORS 250.035(2)(b). A "yes" vote result statement must describe accurately the result if the proposed measure is approved, Prozanski v. Myers, 326 Or 391, 395, 952 P2d 531 (1998), and it should be written so that an affirmative response to the statement corresponds to an affirmative vote on the proposed measure, ORS 250.035(4). A "no" vote result statement should be written so that, to the extent possible, the wording of the "yes" vote result statement and "no" vote result statement is parallel. ORS 250.035(3). Petitioner asserts that he objects to the Attorney General's "yes" and "no" vote result statements, but he advances no argument about why those statements do not comply substantially with the statutory requirements. We therefore decline to require the Attorney General to modify the "yes" and "no" vote result statements on remand. We note, however, this court's observation that, when a caption must be modified, it also may be appropriate to make conforming changes to the result statements. See Phillips v. Myers, 325 Or 221, 227, 936 P2d 964 (1997) (describing court's practice of making conforming changes to result statements when modifying caption). We turn to petitioner's contention that the Attorney General's summary fails to comply with ORS 250.035(2)(d) because it does not summarize concisely and impartially the proposed measure and its major effect. This court has explained that the purpose of a summary is to "help voters understand what will happen if the measure is approved" and "the breadth of its impact." Fred Meyer, Inc. v. Roberts, 308 Or 169, 175, 777 P2d 406 (1989). We have considered petitioner's arguments in light of that purpose and conclude that his arguments are not well taken. Nonetheless, in light of the changes that the Attorney General must make to the caption and may choose to make to the result statements, he may find it appropriate to reconsider the wording of the summary as well. Our holding that the summary complies substantially with the statutory requirement should not be understood as preventing the Attorney General from modifying the summary, should he find it appropriate to do so. Ballot title referred to the Attorney General for modification. DURHAM, J., dissenting. I dissent from the majority's decision to require the Attorney General to modify the caption of the ballot title certified by the Attorney General. Two errors of law undermine the majority's conclusion. The first concerns the majority's failure to comply with ORS 250.085(6), which 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." ORS 250.085(6) forbids this court to consider any argument about asserted deficiencies in the Attorney General's ballot title unless the petitioner presented the same argument in writing to the Secretary of State. ORS 250.067(1) (describing procedure for submission of written comments to Secretary of State regarding Attorney General's draft ballot title). This court has not hesitated to apply the prohibition in ORS 250.085(6) when other petitioners have attempted to challenge ballot titles on grounds not raised in written comments to the Secretary of State. Starrett/Nichols v. Myers, 330 Or 139, 143-44, 998 P2d 671 (2000) (declining to consider arguments not raised in written comments to Secretary of State); McCoid v. Kulongoski, 321 Or 452, 454, 900 P2d 1028 (1995) (same). In other contexts, this court applies differing standards regarding the preservation of error by a party on appeal. State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (drawing attention to distinctions between raising issue at trial, identifying source for claimed position, and making particular argument; stating that "[t]he first ordinarily is essential, the second less so, the third least"). In the ballot title context, ORS 250.085(6) establishes an unambiguous, bright-line standard that confines the court's review to the arguments that the petitioner raised in comments to the Secretary of State. The statute also permits consideration of arguments regarding wording added to or removed from the draft ballot title after expiration of the comment period, but that qualification plays no role in the present proceeding. The reasons for the legislative policy embodied in ORS 250.085(6) are both obvious and important. The Attorney General has the principal statutory responsibility for preparing ballot titles for certain state measures, ORS 250.065(3), (4) (describing role of Attorney General in drafting ballot titles); ORS 250.067(2) (same), and must do so within short time periods. ORS 250.067(2) requires the Attorney General, in deciding whether to revise a draft ballot title, to "consider any written comments submitted" by members of the public under ORS 250.067(1). Consideration by this court of arguments that a petitioner failed to submit during the comment phase frustrates the Attorney General's responsibility to consider written comments under ORS 250.067(1) before certifying a ballot title, wastes the time of those who perform the ballot title drafting function under demanding conditions, and effectively substitutes this court for the Attorney General as the entity that bears principal responsibility for the preparation of ballot titles. In the present case, petitioner submitted written comments regarding the Attorney General's draft ballot title. Petitioner complained that the beginning phrase, "Bans Abortion," was a main effect of the proposal but not its subject matter. He acknowledged that the proposal also would terminate certain other practices mentioned in the Attorney General's caption. He argued, however, that the Attorney General's caption fell short for one reason: it failed to disclose, in the words of the proposal, that "God Almighty gives Human Life," and he emphasized repeatedly that that was the proposal's subject matter and the very reason for the proposal's emphasis on protecting human life from fertilization until natural death. In summary, petitioner complained that the Attorney General's caption was inadequate because it failed to disclose the reason that the proposed measure would ban certain practices, such as abortion, i.e., "that Almighty God is the Source of that Life and that is why it should be protected." ORS 250.085(6) permits the court to address only the argument that petitioner submitted in writing to the Secretary of State. However, the majority never addresses that complaint. Instead, the majority recasts the issue concerning the caption as a debate over the Attorney General's use of the acknowledged consequences of the proposal to describe its subject matter, rather than the proposal's more general wording that it would protect "innocent human life" from fertilization until natural death. In addition, the majority goes on to consider another argument that petitioner never submitted to the Secretary of State, i.e., whether the Attorney General's phrase, "other mortal harm," might be misleading, because it might suggest that the proposal would abolish the death penalty. At no time, including on review in this court, has petitioner ever claimed, as the majority now suggests, that the phrase "other mortal harm" in the Attorney General's caption is misleading or inaccurate, (3) or conveys a false message about the proposal's possible impact on the death penalty. In my view, the majority's decision to require a modification of the caption for reasons that petitioner never submitted to the Secretary of State or this court violates the prohibition expressed in ORS 250.085(6). The second flaw in the majority's analysis is its failure to conclude that the Attorney General's description of the principal consequences of the proposal substantially complies with his obligation to state accurately the proposal's "subject matter." The parties' legal dispute centers on their differing constructions of the requirement in ORS 250.035(2)(a) that the ballot title caption must "reasonably identif[y]" within 15 words "the subject matter" of the proposed measure. Instead of addressing the meaning of those key statutory phrases, the majority lists a series of words or phrases, drawn from this court's cases, that describe the function of a ballot title caption, such as "cornerstone," "headline," and "context for the reader's consideration of the other information in the ballot title." Mabon v. Myers, ___ Or ___, ___, ___ P3d ___ (September ___, 2001) (slip op at 3) (quoting Greene v. Kulongoski, 322 Or 163, 175, 903 P2d 366 (1995)). That approach to statutory construction fails to answer the legal issue before the court and departs markedly from this court's precedents regarding statutory construction. The majority opinion invites the reader to assume that the statutory phrase, "subject matter," has an accepted definition, which the majority never articulates, and asserts that that unstated definition precludes the Attorney General's description of the subject matter here. As the following discussion demonstrates, the correct construction of "subject matter" in this context supports the Attorney General's approach to drafting the caption. At a minimum, the Attorney General's caption substantially complies with the requirement that it "reasonably identif[y]" the proposed measure's subject matter. The task of determining the meaning of the phrase, "subject matter," involves a search for the legislature's intention in using that phrase in ORS 250.035(2)(a). A plethora of this court's cases describe how this court ordinarily approaches that task, including the following recent statement in Coast Security Mortgage Corp. v. Real Estate Agency, 331 Or 348, 354-55, 15 P3d 29 (2000): "To determine the legislature's intent, we first examine the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). Context includes other provisions of the same statute and other related statutes. Id. at 611. In analyzing text and context, 'words of common usage typically should be given their plain, natural, and ordinary meaning.' Id. If the legislature's intent is clear from the examination of text and context, then our inquiry is at an end. Id." No statute provides a special definition of the statutory phrase "subject matter." Accordingly, we must construe that phrase in accordance with its plain, natural, and ordinary meaning. Webster's Third New Int'l Dictionary, 2276 (unabridged ed 1993), defines "subject matter" in the following pertinent ways: "2 : matter presented for consideration: as a : the essential facts, data, or ideas that constitute the basis of spoken, written, or artistic expression or representation; often : substance as distinguished from the form esp. of an artistic or literary production b : a subject of thought or study; often : conveyable material (as information, knowledge, skill) actually made available by a branch of knowledge or in a course of study : the available factual content of a branch or course as distinct from technique or method of instruction or factors inherent in the individual learner c : the topic of dispute in a legal matter." Several features of that definition are noteworthy. The initiative petition proposes an amendment to the Bill of Rights of the Oregon Constitution. One reasonable method of describing accurately the "matter presented for consideration" in a proposed constitutional amendment is to specify the changes that the initiative would produce regarding the legal rights that Oregon citizens enjoy under the current Oregon Bill of Rights or other laws. The Attorney General has taken that approach, and he contends that his description of the proposed constitutional changes is accurate. Neither petitioner nor the majority makes any attempt to demonstrate that the Attorney General is wrong. The definition of "subject matter" also refers to "the essential facts, data, or ideas that constitute the basis of spoken, written, or artistic expression or representation; often : substance as distinguished from the form * * *." Id. (some emphasis added). That definition permits the Attorney General to focus the caption, as he did here, on the impact of the proposed constitutional amendment on the rights of the people under current law, rather than on the wording that the drafter of the initiative amendment has chosen. The majority knows that those who draft proposed initiatives sometimes seek to achieve significant legal consequences without identifying those consequences in the wording of the proposed measure. In preparing a caption, on the other hand, the Attorney General's touchstones are accuracy and clarity, which often preclude a slavish devotion to the particular words or phrases selected by the proponent of the measure. Indeed, in Earls v. Myers, 330 Or 171, 176, 999 P2d 1134 (2000), this court concluded that the Attorney General had acted improperly in incorporating the phrase "freedom to choose" from the text of a proposed measure into the ballot title caption: "We agree with petitioner that, in this context, the phrase 'freedom to choose' is likely to prejudice voters regarding the measure. Marr v. Thornton, 237 Or 503, 504, 392 P2d 458 (1964) (deleting phrase 'right-to-work' from ballot title caption as slogan that amounted to argument for measure and that likely would create prejudice). It is true that the phrase 'freedom to choose' appears in the measure itself. However the Attorney General and this court are not constrained to certify a ballot title that is slanted toward passage or defeat of the measure. Dirks v. Myers, 329 Or 608, 616, 993 P2d 808 (2000) (court has resisted attempts to incorporate into ballot title terms or phrases that 'tend more to promote or defeat passage of the measure than to describe its substance accurately'). Proponents of a measure are not entitled to engineer a favorable ballot title by incorporating politically inflated terms or phrases in the text of the measure in order to advance its passage. Cf. Bernard v. Keisling, 317 Or 591, 596-97, 858 P2d 1309 (1993) (court will not hesitate to look beyond words of measure if those words obfuscate subject, chief purpose, summary, or major effect of measure)." In this case, the Attorney General has done exactly what this court said that he should have done in Earls. The proposed initiative addresses legal and moral topics that are among the most controversial in contemporary life, i.e., the moment at which human life begins and the extent to which society should regulate activities that affect the beginning and end of human existence. The proposal incorporates repeated references to God as well as various undefined terms and phrases, such as "keep safe from mortal harm" and "innocent Human Life" that, according to the Attorney General, fail to disclose the proposal's substance and simply tend to promote its passage. The Attorney General has resisted inserting undefined and politically charged phraseology from the proposal to avoid creating prejudice or sympathy for the proposed measure. The Attorney General has chosen, instead, to set out the practical consequences of the proposed initiative on the existing legal rights of Oregon's citizens. Earls expressly supports that approach. The majority faults the Attorney General for doing so, but fails to demonstrate why the Attorney General's approach is not within the range of his permissible options under ORS 250.035(2)(a) and Earls to "reasonably identif[y]" the proposal's "subject matter." I agree with the majority's decision to decline to modify the Attorney General's certified "yes" and "no" vote result statements and the summary, because petitioner raises no argument about why those segments of the certified ballot title fall short of statutory requirements. In light of the majority's decision, the Attorney General may alter the result statements or the summary if he deems a change necessary, but he has discretion to decide whether to change those parts of the ballot title. The Attorney General is not under any compulsion from the court to change those parts of the certified ballot title in any way. The only opinion that the court reaches, in its review under ORS 250.085(5) of the Attorney General's result statements and summary, is the unanimous conclusion that those segments substantially comply with the requirements of ORS 250.035(2)(b), (c), and (d). For the reasons stated above, I dissent from the majority's decision to require a modification of the Attorney General's certified caption. Riggs and Balmer, JJ., join in this opinion. 1. Intervenors filed a motion to intervene on June 25, 2001. Petitioner filed a document entitled "Petition for Declaratory Judgment" on July 13 challenging this court's authority to permit intervenors to respond to petitioner's challenge to the Attorney General's certified ballot title. We treat that document as a response to intervenors' motion to intervene and dismiss it as untimely. ORAP 7.05(3) (setting 14-day limit on time for filing response to motion). 2. The text of the proposed measure uses the phrase "innocent human life." This court has criticized the Attorney General for using terminology in a ballot title that mirrors wording used in the proposed measure itself, if the terminology "is not neutral and might mislead voters into supporting the proposal without understanding its true effects." Earls, 330 Or at 176 (declaring phrase "freedom to choose" likely to prejudice voters). The Attorney General might conclude that the adjective "innocent" is not neutral and might mislead voters. Nothing in this opinion prohibits the Attorney General from exercising his judgment in identifying the subject matter of the proposed measure using neutral terms. 3. It is worth noting that petitioner himself incorporated the unqualified phrase "mortal harm" in the caption of the ballot title that he recommended to the Attorney General. Petitioner's recommended caption stated: "Amends Constitution: God Gives Life, All Human Beings Protected from Mortal Harm, From Fertilization until Natural Death." The Attorney General could not have divined, from petitioner's proposed caption and the accompanying argument, that petitioner believed that the reference to a prohibition on "mortal harm" somehow expanded the subject of the measure into a ban on the death penalty, as the majority now claims.

c440ade34794720885bb28013ca0e5d0a8ab4a8503ce5526f8a9b43333bde54e

2001-11-08T00:00:00Z

4f688d0b-09be-4f1b-81de-f1197092062f

Knopp v. Griffin-Valade

S070456

oregon

Oregon Supreme Court

No. 1 February 1, 2024 1 IN THE SUPREME COURT OF THE STATE OF OREGON Tim KNOPP, Daniel Bonham, Suzanne Weber, Dennis Linthicum, and Lynn Findley, Petitioners, v. Lavonne GRIFFIN-VALADE, Oregon Secretary of State, Elections Division, Respondent. (CA A182122) (SC S070456) On certification from the Court of Appeals under ORS 19.405. Argued and submitted December 14, 2023. John DiLorenzo Jr., Davis Wright Tremaine, LLP, Portland, argued the cause and filed the briefs for petitioners. Also on the briefs were Aaron K. Stuckey and Blake Robinson. Dustin E. Buehler, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter, P.C., Portland, filed the brief for amici curiae APANO, Basic Rights Oregon, Oregon AFSCME Council 75, Oregon Education Association, Oregon League of Conservation Voters, Accion Politica PCUNnista, Planned Parenthood Advocates of Oregon, and SEIU Local 503. Also on the brief was Lydia Anderson-Dana. Margaret S. Olney, Bennet Hartman, LLP, Portland, filed the brief for amici curiae Andrea Kennedy-Smith and Reed Scott-Schwalbach. Kelly Simon, American Civil Liberties Union of Oregon, Portland, filed the brief for amicus curiae American Civil 2 Knopp v. Griffin-Valade Liberties Union of Oregon. Also on the brief was Alicia LeDuc Montgomery. Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong and James, Justices, and Walters, Senior Judge, Justice pro tempore.* PER CURIAM The Secretary of State’s Temporary Rules ELECT 12-2023 and ELECT 16-2023 are upheld. ______________ *  Masih, J., did not participate in the consideration or decision of this case. Cite as 372 Or 1 (2024) 3 PER CURIAM In 2022, voters approved Ballot Measure 113, which amended Article IV, section 15, of the Oregon Constitution. That amendment provides that any state legislator who accrues 10 or more unexcused absences during a legislative session shall be disqualified from holding legislative office “for the term following the election after the member’s cur­ rent term is completed.” Or Const, Art IV, § 15. The parties in this proceeding dispute the timing of the disqualification imposed by that amendment. In rules promulgated to implement the amendment, the Secretary of State has applied the disqualification to a legislator’s next term of office—that is, the term immediately following the term in which the legislator accrued 10 or more unexcused absences. Petitioners are legislators who each accrued 10 or more unexcused absences during the 2023 legislative ses­ sion. They challenge the secretary’s rules, contending that the disqualification should apply one term later—that is, that a legislator who accrues 10 or more unexcused absences during a legislative session should be allowed to serve the next term of office, but not the term after that. The resolution of that dispute requires that we apply our well-established methodology to construe the text of the amendment, by determining how the voters who adopted the amendment most likely understood its text, including considering the information presented to the voters through the ballot title and in the voters’ pamphlet. That informa­ tion expressly and repeatedly described the disqualification as occurring immediately following the legislator’s current term. Petitioners concede that that information supports the secretary’s interpretation and not their own. Nevertheless, petitioners argue that what they view as the plain meaning of the amendment’s text must control. They contend that the text clearly applies the disqualification to the term after the next term of office and is not capable of supporting the sec­ retary’s interpretation. As we will explain in greater detail, we disagree. Contrary to petitioners’ argument, the text is capable of sup­ porting the secretary’s interpretation. And that interpretation 4 Knopp v. Griffin-Valade is uniformly supported by the ballot title and the voters’ pam­ phlet, both of which inform voters’ understanding of ballot measures. Reading the text of the amendment in light of the ballot title and the voters’ pamphlet, voters would have understood the disqualification to apply to the term of office immediately following the term in which a legislator accrued 10 or more unexcused absences. Thus, for the reasons that follow, we conclude that voters intended that result and reject petitioners’ challenge to the secretary’s rules. I.  BACKGROUND Each chamber of the Oregon Legislative Assembly may conduct business only if two-thirds of the chamber’s members are present. Or Const, Art IV, § 12. In some cir­ cumstances, therefore, a minority of legislators may prevent a chamber from conducting business by not being present. That practice is commonly known as a legislative walk­ out. Although legislators have used walkouts throughout Oregon’s history, the frequency of walkouts has increased in recent years. Measure 113 was designed to curtail legislative walk- outs. To do so, the measure proposed amending Article IV, section 15. Before the amendment, that constitutional pro­ vision authorized either chamber of the legislature to “pun­ ish its members for disorderly behavior” and, “with the con­ currence of two thirds, [to] expel a member.” Or Const, Art IV, § 15 (2020). Measure 113 proposed adding the following words: “Failure to attend, without permission or excuse, ten or more legislative floor sessions called to transact business during a regular or special legislative session shall be deemed disorderly behavior and shall disqualify the mem­ ber from holding office as a Senator or Representative for the term following the election after the member’s current term is completed.” (Emphasis added.) Measure 113 originated as an initiative petition, for which the Attorney General must prepare a draft ballot title and then, following a comment period, a certified ballot title. ORS 250.065 - 250.067. The ballot title for a state measure Cite as 372 Or 1 (2024) 5 consists of three parts: (1) a caption of not more than 15 words that reasonably identifies the measure’s subject mat­ ter; (2) simple and understandable statements of 25 words or less that describe the results of a “yes” vote and a “no” vote; and (3) a concise and impartial statement of not more than 125 words that summarizes the measure and its major effect. ORS 250.035(2). The certified ballot title plays an important role in the initiative process. The ballot itself—that is, the document that voters use to cast their votes—is required to include the caption and the result statements of the certified ballot title. ORS 254.175(2). Counties also may choose to print the full ballot title, including the summary. ORS 254.145(7). For the initiative petition that became Measure 113, the Attorney General prepared a draft ballot title, which became the certified ballot title after it was neither revised (following a comment period) nor challenged in this court.1 Each part of the ballot title addressed the timing of the proposed disqualification, stating that the measure would disqualify a legislator from holding legislative office for the term immediately following the term in which the legislator accrued 10 or more unexcused absences during a legislative session. The ballot title caption provided: “Amends Constitution:  Legislators with ten unex­ cused absences from floor sessions disqualified from hold­ ing next term of office.” (Emphasis added.) The result statements provided: “Result of ‘Yes’ Vote:  ‘Yes’ vote disqualifies legis­ lators with ten unexcused absences from legislative floor sessions from holding office as legislator for term following current term of office. “Result of ‘No’ Vote:  ‘No’ vote retains existing law. Absent legislators may be punished by legislative chamber (potentially expelled by supermajority); present legislators have legal authority to compel attendance.” 1  As noted, the Attorney General first prepares a draft ballot title, which is subject to a public comment period. ORS 250.067(1). Following any revisions by the Attorney General, any elector who submitted a timely comment on the draft may challenge the ballot title by petitioning this court. ORS 250.085(2). 6 Knopp v. Griffin-Valade (Emphasis added.) And the summary provided, in relevant part: “Measure specifies that ‘disorderly behavior’ includes legis­ lator’s failure to attend ten or more legislative floor sessions during a regular or special legislative session without per­ mission or excuse. Under measure, legislator who engages in ‘disorderly behavior’ through unexcused absences is dis­ qualified from serving as a Senator or Representative for the term following the end of the legislator’s current term.” (Emphasis added.)2 More information about Measure 113 was provided to voters in the voters’ pamphlet, which is sent to every household with a registered voter. OAR 165-022-0060(7). The voters’ pamphlet contained the full text of Measure 113 and the full ballot title—both set out above—as well as an explanatory statement and arguments that advocates sub­ mitted on the merits of the measure. ORS 251.185(1); Official Voters’ Pamphlet, General Election, Nov 8, 2022, 65-71.3 The explanatory statement is “an impartial, simple and understandable statement explaining the measure” in 500 words or less. ORS 251.215(1). The explanatory state­ ment is approved by a committee of five members: two pro­ ponents of the measure, two opponents of the measure, and a fifth member chosen either by the four other members or by the Secretary of State. ORS 251.205(2)-(5). In this case, all five members of the committee voted to approve the explan­ atory statement that appeared in the voters’ pamphlet. See ORS 251.215(4) (requiring statement to show dissenting votes, if any); Official Voters’ Pamphlet at 66 (showing no members dissented or were absent). Like the ballot title, the explanatory statement characterized the measure as dis­ qualifying a legislator from holding legislative office for the term immediately following the term in which the legislator accrued 10 or more unexcused absences: 2  Two people submitted comments on the Attorney General’s draft ballot title during the public comment period. Neither comment challenged how the ballot title characterized the timing of the disqualification that would be created by the measure. 3  Page cites to the Official Voters’ Pamphlet refer to the pamphlet circulated to Marion County voters. Cite as 372 Or 1 (2024) 7 “The measure deems the failure to attend without excuse to be disorderly behavior and disqualifies the legislator from holding office after the legislator’s current term ends.” Official Voters’ Pamphlet at 66 (emphasis added).4 As noted, the voters’ pamphlet also included numer­ ous arguments that advocates submitted on the merits of the measure. By either paying a $1,200 fee or obtaining sig­ natures from 500 voters, any person or organization may submit a written argument—not exceeding 325 words— supporting or opposing the measure for publication in the voters’ pamphlet. ORS 251.255(1)-(2); ORS 251.255(4); OAR 165-022-0050(5). The voters’ pamphlet for the 2022 elec­ tion contained 19 advocate arguments—each supporting Measure 113, and none opposing it. While not all the argu­ ments addressed the timing of the proposed disqualification, those that did described it as disqualifying a legislator from holding legislative office for the term immediately following the term in which the legislator accrued 10 or more unex­ cused absences. Official Voters’ Pamphlet at 67-71.5 Media coverage of Measure 113 was consistent with the statements in the ballot title and voters’ pamphlet. The secretary has cited numerous media accounts that described the measure as disqualifying a legislator with 10 or more unexcused absences during a legislative session from holding office during the next term of office.6 For their 4  The explanatory statement is subject to a public hearing, ORS 251.215(2), and possible challenge in this court, ORS 251.235(1). No challenge to the explan­ atory statement for Measure 113 was filed in this court; the record before us does not reveal whether a public hearing was held, and if so, what happened at any such hearing. 5  See, e.g., Official Voters’ Pamphlet at 68 (argument submitted by Tan Perkins, Vote Yes On 113) (“It would create a consequence for lawmakers who skip 10 sessions without an excuse, by banning them from holding their seat the following term.”); Official Voters’ Pamphlet at 70 (argument submitted by Heather L. Stuart, Fair Shot For All Coalition) (“Under Measure 113, if a politi­ cian has 10 or more unexcused absences, they will be barred from holding their office the following term.”). 6  See, e.g., Claire Withycombe, Midterm ballot measure to decide if Oregon lawmakers will be punished for absences, Statesman Journal, (Sept 19, 2022), https://www.statesmanjournal.com/story/news/politics/2022/09/19/2022-ore­ gon-midterm-election-ballot-measure-113-walk-outs-republicans/66152421007/ (accessed Jan 25, 2024) (reporting that the measure “would disqualify state law­ makers from holding office for the next term” if they accrued enough absences); Editorial Board, Voters can already remove legislators for unexcused absences, 8 Knopp v. Griffin-Valade part, petitioners have not identified any media accounts sug­ gesting that the timing of the disqualification would work differently. At the November 2022 General Election, voters approved Measure 113, thus amending Article IV, section 15, to add the new disqualification. The total vote count was 1,292,127 to 599,204, with 68.3 percent voting in favor and 31.7 percent voting in opposition. The parties report that, during the 2023 legislative session, which was the first ses­ sion after the amendment took effect, 10 senators accrued 10 or more unexcused absences and that petitioners were among those senators. In August 2023, the secretary adopted temporary administrative rule ELECT 12-2023 to, among other things, implement the amendment for the 2024 General Election. That rule adopted, and incorporated by reference, the State Candidate Manual, which applied the amendment’s disqual­ ification to the term of office immediately following the term in which the legislator accrued too many unexcused absences. Specifically, the rule provided that candidates for state repre­ sentative and state senator “must not have 10 or more unex­ cused absences from legislative floor sessions during a regular or special legislative session to be eligible for the term immedi­ ately following their current term.” State Candidate Manual 10 (rev Aug 2023) (emphasis added). In September 2023, the secretary suspended that rule and adopted a revised version of the State Candidate Manual through temporary adminis­ trative rule ELECT 16-2023. No changes were made to the section of the revised State Candidate Manual implementing the amendment. State Candidate Manual 10 (rev Sept 2023). Accordingly, the more recent rule similarly applies the dis­ qualification to the immediate next term of office. Petitioners challenged both rules in the Court of Appeals under ORS 183.400, arguing that the rules violate Article  IV, section 15, by applying the disqualification to the next term of office, rather than the term after that. The Bend Bulletin, (Sept 13, 2022), https://www.bendbulletin.com/opinion/editori­ al-voters-can-already-remove-legislators-for-unexcused-absences/article_152d­ 30ca-3387-11ed-bb34-2f960479e9bd.html (accessed Jan 25, 2024) (reporting that disqualified legislators would be barred “from holding office in the term following the current term”). Cite as 372 Or 1 (2024) 9 Court of Appeals certified the matter to this court under ORS 19.405, and we accepted the certification. II.  DISCUSSION As amended by the voters’ approval of Measure 113, Article IV, section 15, now disqualifies legislators with 10 or more unexcused absences from holding a future term of office: “Failure to attend, without permission or excuse, ten or more legislative floor sessions called to transact business during a regular or special legislative session shall be deemed disorderly behavior and shall disqualify the mem­ ber from holding office as a Senator or Representative for the term following the election after the member’s current term is completed.” (Emphasis added.) The dispute in this case centers on whether the disqualification applies to the immediate next term of office, as the secretary argues, or the term after that, as petitioners argue. Resolving that dispute presents a question of inter­ pretation. We interpret the Oregon Constitution by “exam­ in[ing] the text, in its historical context and in light of rel­ evant case law, to determine the meaning of the provision at issue most likely understood by those who adopted it, with the ultimate objective of identifying relevant underly­ ing principles that may inform our application of the con­ stitutional text to modern circumstances.” Couey v. Atkins, 357 Or 460, 490-91, 355 P3d 866 (2015).7 Therefore, when interpreting a constitutional amendment adopted through an initiated ballot measure, we consider “the voters’ intent,” focusing on the text and context as well as “the measure’s history, should it appear useful to our analysis.” State v. Algeo, 354 Or 236, 246, 311 P3d 865 (2013). A measure’s history includes the ballot title, other materials in the vot­ ers’ pamphlet, and media reports. AAA Oregon/Idaho Auto Source v. Dept. of Rev., 363 Or 411, 418, 423 P3d 71 (2018). We begin with the text. The amendment applies to members of the legislature and provides that a member’s 7  The amendment at issue in this case does not require identifying underly­ ing principles that must be applied to modern circumstances, because the voters adopted this amendment in November 2022. 10 Knopp v. Griffin-Valade failure to attend 10 or more legislative floor sessions without excuse “shall disqualify the member from holding office as a Senator or Representative for the term following the election after the member’s current term is completed.” Or Const, Art IV, § 15 (emphasis added). As an initial matter, the parties agree that “term” refers to a legislator’s term of office. In Oregon, senators are elected to a four-year term of office, while representatives are elected to a two-year term of office. Or Const, Art IV, § 4. The parties also agree that “the member’s current term” refers to the term of office in which a legislator accrues 10 or more unexcused absences during a legislative session. The parties disagree, however, as to the term for which the legislator would be disqualified from holding office—whether it is the term immediately following the legislator’s current term or the term after that. Their dif­ fering interpretations depend on the interplay between the distinct phrases used in the text of the amendment. Petitioners interpret the amendment to mean that a legislator who accrues 10 or more unexcused absences would be allowed to serve the next term of office but would be disqualified from holding office for the term after that. To get there, petitioners read the amendment so that the words “the term” are modified by “following the election,” and then the words “the election” are modified by “after the mem­ ber’s current term is completed.” According to petitioners, to identify “the term following the election after the member’s current term is completed,” we should begin by identifying when the legislator’s current term is completed, then iden­ tify the election after that, and then identify the term that follows that election. For example, as petitioners posit, if a senator accrues 10 or more unexcused absences during a legislative session in a four-year term that begins in January 2021, then the senator’s “current term is completed” in January 2025. See Or Const, Art IV, §  4 (a legislative term shall commence on the second Monday in January following the legislator’s election). Petitioners argue that the phrase “the election after the member’s current term is completed” should be understood to refer to the first general election Cite as 372 Or 1 (2024) 11 for the legislator’s office held after the legislator completes their current term. That election would take place during the next term of office because general elections are held in November of the year before a new term begins. So, if a senator’s current term is completed in January 2025, then the next general election for that senate office would take place in November 2028, for the term beginning in January 2029.8 And if “the election after the member’s current term is completed” refers to the November 2028 General Election, then “the term following the election after the member’s cur­ rent term is completed” must refer to the term that begins after that election—namely, the term beginning in January 2029. So, according to petitioners, a senator who accrued 10 or more unexcused absences during the 2023 legislative session and whose term of office would end in January 2025 would be allowed to serve during the next term of office— beginning in January 2025—but would be disqualified from holding legislative office for the term after that—beginning in January 2029. The secretary interprets the amendment’s text dif­ ferently. She interprets the text to mean that a legislator who accrues 10 or more unexcused absences would not be allowed to serve the immediate next term of office. In her view, the words “the term” (for which a legislator is disqual­ ified) are modified by both the phrase “following the elec­ tion” and the phrase “after the member’s current term is completed.” As a result, whereas petitioners understand the phrase “after the member’s current term is completed” to modify the words “the election,” the secretary understands the phrase “after the member’s current term is completed” to modify the words “the term.” She maintains that reading the amendment that way emphasizes two facts about the term of disqualification: that it follows an election, and that it occurs after the disqualified legislator completes their current term. The secretary thus understands the term “after the member’s current term is completed” to refer to the term immediately following the term in which a legisla­ tor accrues 10 or more unexcused absences. 8  For a member of the Oregon House of Representatives whose term ends January 2025, the next general election after that term is completed would be in November 2026, for a term beginning January 2027. Or Const, Art IV, § 4. 12 Knopp v. Griffin-Valade Applying that interpretation to the same exam­ ple from above, if a senator accrues 10 or more unexcused absences during a legislative session in a four-year term that begins in January 2021, then the senator’s “current term is completed” in January 2025. The term immediately following that term would also begin in January 2025; the election to decide who would serve in that following term would be held in November 2024. The senator would be dis­ qualified from holding legislative office for the term of office that both follows the November 2024 election and comple­ tion of the senator’s current term of office—that is, the term beginning in January 2025. The text of the amendment does not unambiguously support either interpretation. The text would more clearly support petitioners’ reading—and weaken the secretary’s reading—if it referred to “the term following the election [that occurs] after the member’s current term is completed.” Without those bracketed words, the intended interplay among the distinct phrases in the amendment is less imme­ diately apparent, and the secretary’s reading gains plausi­ bility. Still, petitioners are not wrong to argue that their proposed reading is supported by certain interpretative principles. Namely, it conforms with two canons of construc­ tion: the rule against surplusage, which provides that we interpret a provision’s text to give effect to every word and avoid redundancy, State v. Clemente-Perez, 357 Or 745, 755, 359 P3d 232 (2015); and the doctrine of the last antecedent, which provides that “  ‘[r]eferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent,’  ” State v. Webb, 324 Or 380, 386, 927 P2d 79 (1996) (quoting Norman J. Singer, 2A Sutherland Statutory Construction § 47.33 at 270 (5th ed 1992)); see also AAA Oregon/Idaho Auto Source, 363 Or at 418 (explain­ ing that, when examining constitutional text, “we apply rules of construction that bear directly on the provision’s interpretation”). Under the secretary’s interpretation, the amend­ ment to Article IV, section 15, would contain a redundancy, because the amendment would have the same legal effect even if the words “following the election” were deleted from Cite as 372 Or 1 (2024) 13 the text—it would disqualify the “Senator or Representative for the term *  *  * after the member’s current term is com­ pleted.” The secretary contends that the redundancy high­ lights a fact that might otherwise not be apparent to the voters—that a legislator’s disqualification takes effect only after the election to replace them has occurred and not before the newly elected person can take office. The secretary’s interpretation also creates tension with the doctrine of the last antecedent because it does not treat the modifying phrase “after the member’s current term is completed” as modifying the words immediately preced­ ing it, “the election.” Instead, the secretary reads the phrase “after the member’s current term is completed” as modify­ ing the words “the term.” The secretary acknowledges that her interpretation would be clearer if a comma separated the phrases “following the election” and “after the member’s current term is completed.” Petitioners’ interpretation does not present a similar difficulty. Canons of construction, however, are merely guide­ lines for interpreting text that, in any given case, may give way to contrary evidence of intent. See State v. Lane, 357 Or 619, 629, 355 P3d 914 (2015) (describing canons of con­ struction as “mere assumptions that always give way to more direct evidence of legislative intent”); see also State v. Cloutier, 351 Or 68, 97, 261 P3d 1234 (2011) (“[T]he fact that a proposed interpretation of a statute creates some measure of redundancy is not, by itself, necessarily fatal. Redundancy in communication is a fact of life and of law.”); Thomas Creek Lumber and Log Co. v. Dept. of Rev., 344 Or 131, 138, 178 P3d 217 (2008) (adopting interpretation of a tax statute that made “some words *  *  * redundant,” not­ ing that “nothing prohibits the legislature from saying the same thing twice”); Johnson v. Craddock et al, 228 Or 308, 316, 365 P2d 89 (1961) (stating that the “doctrine of the last antecedent is not inflexible and is never applied when a fur­ ther extension is clearly required by the intent and meaning of the context or when to apply a grammatical rule literally would lead to an absurd or unreasonable result, defeating the legislative purpose”). 14 Knopp v. Griffin-Valade For example, both the rule against surplusage and the doctrine of the last antecedent gave way to ballot mea­ sure history in Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 753 P2d 939 (1988). In that case, we were required to interpret a referred constitutional amendment that pro­ vided the governor with the authority to veto “any provision in new bills declaring an emergency.” Or Const, Art V, § 15a. The defendants interpreted the amendment broadly to mean that, in new bills that contained a provision declaring an emergency, the governor could veto any provision within the bill, not only the provision declaring an emergency. The plaintiffs, by contrast, interpreted the amendment narrowly to mean that the governor could veto only the provision that declared an emergency in a new bill. In support of their interpretation, the plaintiffs argued that the word “provi­ sion” was modified by both “in new bills” and “declaring an emergency.” 305 Or at 485. The defendants countered that the plaintiffs’ interpretation created a redundancy because the phrase “in new bills” would have no legal effect—all bills presented to the governor are new bills. Id. The defendants further pointed out that their interpretation conformed with the doctrine of the last antecedent, under which the word “provision” was modified only by “in new bills,” and the word “bills” was modified by “declaring an emergency.” Id. The defendants, therefore, argued that their interpretation rep­ resented the unambiguous meaning of the amendment. We concluded that the amendment was “not as unambiguous as defendants claim.” Id. Ultimately, we held that the canons of construction must yield to the voter understanding demonstrated by the ballot measure his­ tory, including material in the voters’ pamphlet, which supported the plaintiffs’ interpretation. See id. at 486 (“Contemporaneous materials widely available to the voters in 1921, particularly the explanation by a committee of leg­ islators in the official Voters’ Pamphlet, leave no doubt that the amendment to Article V, section 15a, was intended to authorize the Governor to veto a declaration of emergency in a bill so as to protect the opportunity of voters to petition for a referendum.”). Cite as 372 Or 1 (2024) 15 In this case, as the court did in Lipscomb, the sec­ retary relies on the ballot measure history—in particular, the ballot title and explanatory statement—to determine how the voters would have understood the words used in the amendment to Article IV, section 15. As noted above, the bal­ lot title caption and the result statements were printed on every ballot.9 The ballot title caption expressly stated that a legislator with too many unexcused absences would be “dis­ qualified from holding next term of office.” The “yes” result statement characterized the amendment as disqualifying a legislator for the “term following current term of office.” The voters’ pamphlet contained both those statements as well as the ballot title summary, which stated that the disqual­ ification would apply to “the term following the end of the legislator’s current term.” Official Voters’ Pamphlet at 65. Also contained in the voters’ pamphlet was the explanatory statement, which stated that the disqualification would pro­ hibit “the legislator from holding office after the legislator’s current term ends.” Id. at 66. Petitioners acknowledge that the ballot measure history materials uniformly support the secretary’s inter­ pretation. No statements that appeared on the ballot or in the voters’ pamphlet support petitioners’ interpretation. And the parties have not identified any media accounts prior to the election suggesting that anyone understood the amend­ ment to allow a legislator to serve one more term before the disqualification would take effect. Nevertheless, petitioners contend that we must disregard the ballot measure history materials that contradict their proposed interpretation because, according to petitioners, the text of the amendment is capable of only one meaning—as disqualifying a legisla­ tor from holding office for the term after the next term. If petitioners were correct that the text is capable of supporting only one meaning, then no ballot measure his­ tory could justify a different meaning. Cf. State v. Gaines, 346 Or 160, 173, 206 P3d 1042 (2009) (“When the text of a statute is truly capable of having only one meaning, no 9  See Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 575, 871 P2d 106 (1994) (Fadeley, J., concurring) (discussing the importance of the ballot title and results statements because they “are printed on the ballot used by every person who voted to adopt the initiative amendment”). 16 Knopp v. Griffin-Valade weight can be given to legislative history that suggests—or even confirms—that legislators intended something differ­ ent.”). But we disagree with petitioners’ assertion that the amendment in this case is capable of only one meaning. See generally Lipscomb, 305 Or at 485 (“[C]ourts rarely see dis­ putes over interpretation when the opposing party cannot show a possible alternative reading of the words, which it claims to be correct in context.”). While petitioners’ interpretation of the text may be the more grammatical reading, the text is capable of sup­ porting the secretary’s interpretation. The amendment at issue is a complex sentence. The parties’ competing inter­ pretations depend on how they understand the relation­ ship between three phrases within the amendment: (1) “the term”; (2) “following the election”; and (3) “after the member’s current term is completed.” Or Const, Art IV, § 15. Those phrases have no single necessary relationship between them. As explained above, if the sentence had contained the additional phrase “that occurs” immediately after “the election,” petitioners’ reading would be more compelling. Without that or a similar phrase, the intended meaning of the sentence is more uncertain. The words “the term” may be modified by both the phrase “following the election” and the phrase “after the member’s current term is completed,” as the secretary argues. That is the same construction that this court applied in Lipscomb, concluding that one word was modified separately by the two phrases that followed it. See 305 Or at 485 (holding that “provision” was modified by both “in new bills” and “declaring an emergency”). Applying that construction here treats the two phrases—“following the election” and “after the member’s current term is com­ pleted”—as emphasizing two different facts about the dis­ qualification: that voters would retain the right to choose the person who would serve during the next term of office and that the disqualified legislator would be allowed to serve the remainder of the current term of office. If we were required to choose between petitioners’ and the secretary’s interpretations based on the text alone, petitioners would have a strong argument that their read­ ing is the better one. But we do not review the text in a Cite as 372 Or 1 (2024) 17 void. We instead seek to understand how voters would have understood the text in the light of the other materials that accompanied it. And those other materials expressly and uniformly informed voters that the amendment would apply to a legislator’s immediate next terms of office, indicating that the voters so understood and intended that meaning. In arguing against that conclusion, petitioners con­ tend that the ballot measure history materials are categor­ ically insufficient to overcome what they regard as the more natural way to read the amendment’s text. Petitioners sup­ port that argument by relying on statements that this court made in Northwest Natural Gas Co. v. Frank, 293 Or 374, 648 P2d 1284 (1982). There, the court was asked to inter­ pret a constitutional amendment that had been referred by the legislature and adopted by the voters through a ballot measure. The amendment dedicated the revenue from cer­ tain taxes to the Common School Fund. Id. at 378. Applying that ballot measure as it was drafted, however, would have disrupted funding for the Department of Energy, which was evidently not an effect that the legislature had considered or intended when it drafted the measure. Id. The court was asked to apply the ballot measure in a manner that would avoid that unintended consequence compelled by the text of the measure. In rejecting that argument, the court stated: “There is no reliable record of what the voters intended beyond the language of the amendment itself. There are no official committees, no minutes, no formal debates. Given the fact that it is the electorate, the ultimate sovereign, which has adopted the amendment to our Constitution, we are slow to go beyond the face of the enacted language into materials not presented to the public at large.” Id. at 381. Petitioners rely on those statements to argue that ballot measure history is entitled to little weight in inter­ preting constitutional amendments adopted by the voters. We disagree with petitioners’ reading of Northwest Natural Gas. As an initial matter, the court’s statements in that case must be understood in the context of that case. The court was rejecting a specific argument based on the specific ballot measure history offered in that case—namely, that the legislators who had drafted the measure had not 18 Knopp v. Griffin-Valade considered the legal effect of the text that they chose. When the court referred to “materials not presented to the public at large,” the court was referring to materials from legisla­ tive proceedings demonstrating that legislators never con­ sidered how the amendment would affect the Department of Energy’s funding. Id. at 381. Further, in Lipscomb, this court expressly rejected reading Northwest Natural Gas as imposing broad meth­ odological constraints on our constitutional interpretation, noting that Northwest Natural Gas does not confine us “to historically blind exegesis” of constitutional text and that questions of constitutional interpretation “cannot be decided simply by parsing the words of the amendment.” 305 Or at 484-85. Reading Northwest Natural Gas as imposing such constraints would be inconsistent with the court’s practice, both before and after that decision, to routinely consider bal­ lot measure history, “to the extent that it appears useful to our analysis.” AAA Oregon/Idaho Auto Source, 363 Or at 418; see, e.g., Couey, 357 Or at 490 (discussing recent case law on the role of ballot measure history); State ex rel. Chapman v. Appling, 220 Or 41, 68, 348 P2d 759 (1960) (noting that the court had “recognized in a number of cases that arguments in the official Voters’ Pamphlet relative to measures submit­ ted to the people may be resorted to as an aid to construc­ tion” and collecting cases); Allen v. Multnomah County, 179 Or 548, 562, 173 P2d 475 (1946) (“As the amendment was adopted by initiative, we turn to the 1912 Voter’s Pamphlet as an aid to its interpretation.”); Turnidge v. Thompson, 89 Or 637, 175 P 281 (1918) (reviewing the ballot title prepared by the Attorney General, noting that the ballot title “was printed upon the ballots submitted to the electorate”). Instead of making categorical judgments about the role of ballot measure history in our analysis, we assign weight based on the substance and probative qual­ ity of those materials. See generally Gaines, 346 Or at 172 (“[W]hether the court will conclude that the particular legis­ lative history on which a party relies is of assistance in deter­ mining legislative intent will depend on the substance and probative quality of the legislative history itself.” (Emphasis in original.)). Not all ballot measure history materials serve Cite as 372 Or 1 (2024) 19 the same role or are owed the same weight. See, e.g., State v. Sagdal, 356 Or 639, 643, 343 P3d 226 (2015) (expressing caution in relying too heavily on statements in the section of voters’ pamphlet containing arguments from advocates). The ballot measure history materials on which the secretary relies in this case—namely, the ballot title (including the caption, the “yes” result statement, and the summary) and the explanatory statement—directly and unequivocally address the question at issue, each stating that the amendment would disqualify a legislator from hold­ ing office during the immediate next term of office. Further, those materials were widely distributed to the voters. As noted above, the ballot title caption and the result state­ ments are required to be printed on the ballots, ensuring that they were visible to all voters. ORS 254.145(7); ORS 254.175(2). And the complete ballot title and the explana­ tory statement are included in the voters’ pamphlet that is mailed to every household with a registered voter. OAR 165-022-0060(7). Petitioners do not offer any ballot measure his­ tory materials that contradict those materials. Instead, they argue that those materials do not reflect how the vot­ ers would have understood the amendment because those materials neither were drafted by the voters nor purport to record the thoughts of voters. But petitioners misunder­ stand the role of the ballot title and explanatory statement. Those materials reflect voter understanding not because they record that understanding, but because they inform that understanding. For example, the purpose of the bal­ lot title “is to guide and inform the voters.” Richardson v. Neuner, 183 Or 558, 562, 194 P2d 989 (1948). Similarly, the explanatory statement is intended to be “an impartial, sim­ ple and understandable statement explaining the measure,” ORS 251.215(1), drafted by a committee composed of mem­ bers who both support and oppose the ballot measure, ORS 251.205(3)-(5). Here, the explanatory statement reveals that the drafting committee unanimously agreed to the construc­ tion of the amendment on which the secretary now relies. Petitioners maintain, however, that we cannot assume that voters read and understood the ballot title and 20 Knopp v. Griffin-Valade explanatory statement. We disagree. We assume that vot­ ers have familiarized themselves with the issue that is pre­ sented on the ballot, just as we assume that legislators have familiarized themselves with the bills on which they vote. See Anthony et al. v. Veatch et al., 189 Or 462, 498, 220 P2d 493 (1950) (“On the whole, in view of the jealous regard of the people for the initiative process and of the opportuni­ ties which exist for the voters to acquaint themselves with the background and merits of a proposed initiative measure, we are of the opinion that, in the construction of such mea­ sures, the courts should indulge the same presumption as to the knowledge of historical facts on the part of the people, as they indulge with reference to acts passed by the leg­ islature.”). The ballot title and explanatory statement are materials accessible to all voters attempting to familiarize themselves with a ballot measure. Because the text is capable of supporting the sec­ retary’s interpretation, and considering the clear import of the ballot title and explanatory statement in this case, we agree with the secretary that voters would have understood the amendment to mean that a legislator with 10 or more unexcused absences during a legislative session would be disqualified from holding legislative office during the imme­ diate next term, rather than the term after that. Petitioners’ contrary interpretation fails to account for the ballot title and explanatory statement, which expressly and repeatedly described the disqualification as taking place during the next term. Voters would have understood the meaning of the amendment’s text in light of those materials. The uni­ formity of those materials, and their availability to voters, persuades us that the voters would have understood the amendment to disqualify legislators with too many unex­ cused absences from holding office during the next term of office. III.  CONCLUSION After considering the text and the ballot measure history of the amendment to Article  IV, section 15, that voters approved in 2022, we conclude that the phrase “the term following the election after the member’s current term is completed” refers to the term immediately following the Cite as 372 Or 1 (2024) 21 term in which a legislator accrued 10 or more unexcused absences during a legislative session. That construction is consistent with the secretary’s interpretation of the amend­ ment, as reflected in her temporary rules, ELECT 12-2023 and ELECT 16-2023. The Secretary of State’s Temporary Rules ELECT 12-2023 and ELECT 16-2023 are upheld.

6b4fe7d5cda47d1855ccbd511e6ebbcaf22e0428a0b13813b62b1beb984d630a

2024-02-01T00:00:00Z

936d7680-df02-4280-a6da-2b0e109eab90

Umatilla County v. Dept. of Energy

S070517

oregon

Oregon Supreme Court

194 April 18, 2024 No. 10 IN THE SUPREME COURT OF THE STATE OF OREGON In the Matter of the Application for Site Certificate for the Nolin Hills Wind Power Project. UMATILLA COUNTY, Petitioner, v. OREGON DEPARTMENT OF ENERGY, Energy Facility Siting Council, and Nolin Hills Wind, LLC, Respondents. (SC S070517) En Banc On judicial review of a final order of the Energy Facility Siting Council.* Argued and submitted January 11, 2024. Wendie L. Kellington, Kellington Law Group, PC, Lake Oswego, argued the cause and filed the brief for petitioner on review Umatilla County. Kate E. Morrow, Assistant Attorney General, Salem, argued the cause and filed the brief for respondents on review Oregon Department of Energy and Energy Facility Siting Council. Also on the brief were Ellen F. Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; and Jona J. Maukonen, Assistant Attorney General. Rachel C. Lee, Stoel Rives, LLP, Portland, argued the cause and filed the brief for respondent on review Nolin Hills Wind, LLC. Daniel Kearns, Reeve Kearns PC, Portland, filed the brief for amici curiae Morrow County and The Eastern Oregon Counties Association. ______________ *  Judicial review of a final order of the Energy Facility Siting Council issued August 31, 2023. Cite as 372 Or 194 (2024) 195 Daniel Kearns, Reeve Kearns PC, Portland, filed the brief for amicus curiae Blue Mountain Alliance. GARRETT, J. The final order of the Energy Facility Siting Council is affirmed. 196 Umatilla County v. Dept. of Energy GARRETT, J. Umatilla County seeks judicial review of a final order of the Energy Facility Siting Council (the council) that granted a site certificate allowing Nolin Hills Wind, LLC, to construct a wind energy facility in the county. This case comes to us on direct review of the council’s final order. See ORS 469.403(3) (providing for direct review by this court in such cases). The proposed facility includes, among other things, wind turbines, energy-transmission lines, and other related or supporting facilities. Umatilla County challenges the council’s final order on the ground that the council should have required Nolin Hills to comply with a siting criterion—a two-mile setback between any turbine and a rural residence—that the county had recommended to the council under ORS 469.504(5). For the reasons set out below, we agree with the council that it has authority under ORS 469.504(1)(b)(B) to approve Nolin Hills’s proposed energy facility notwithstanding the facility’s failure to comply with that siting criterion. We therefore affirm the council’s final order. I.  BACKGROUND A.  Brief Overview of the Dispute As we will explain, state law sets out a complex framework that governs the council’s approval of a site cer­ tificate. That framework makes the council responsible for the final determination whether a proposed facility complies with legal requirements and may be approved. However, it also provides a role for local governments, a role that includes recommending “applicable substantive criteria” (which we will explain later in this opinion) that bear on the coun­ cil’s determination. Central to this case is precisely what role those applicable substantive criteria play—specifically whether, in this case, as the county contends, those applica­ ble substantive criteria should have been given dispositive effect, or whether, as the state respondents1 contend, the council was authorized to approve Nolin Hills’s application despite its failure to comply with all of those criteria. Two 1  The council and the Department of Energy jointly filed an answering brief. They refer to themselves as the state respondents, and we do the same in this opinion. Cite as 372 Or 194 (2024) 197 subsidiary questions are presented by the parties’ argu­ ments. One is whether—assuming that the proposed facil­ ity is required to comply with the “applicable substantive criteria” recommended by the county—the two-mile setback requirement qualifies as one of those criteria. The state respondents argue that it does not. The other is whether the proposed facility passes through more than three land use zones. If it does, then it is undisputed that the council was authorized to approve the site certificate without con­ sidering the applicable substantive criteria at all. As we will explain, we conclude that the council was authorized to approve Nolin Hills’s site certificate even if the proposed facility does not pass through more than three land use zones and even if it does not comply with all of the county’s recommended substantive criteria. That conclusion obviates the need for us to resolve those two subsidiary issues. B.  The Council Generally The council is an independent body composed of seven volunteers appointed by the Governor and confirmed by the Senate. ORS 469.450. The council works hand in hand with the Department of Energy (DOE), which is charged with implementing the state’s energy goals and policies. ORS 469.030. Although it is the council that ulti­ mately issues the site certificate, each entity plays a role in the energy facility siting process. As we recently explained in Friends of Columbia Gorge v. Energy Fac. Siting Coun., 368 Or 123, 125, 486 P3d 787 (2021), “[t]he council oversees the development of large energy facilities in Oregon, including electric power gener­ ating plants, high-voltage transmission lines, gas pipelines, and radioactive waste disposal sites, among other projects.” See ORS 469.470 (listing powers and duties of the council); ORS 469.501 (requiring the council to adopt standards for siting, construction, operation, and retirement of energy facilities2); ORS 469.300(11)(a) (defining “energy facility”). The council carries out that task by issuing site certificates to developers. See ORS 469.320(1) (“[N]o facility shall be constructed or expanded unless a site certificate has been 2  Those standards are adopted as DOE regulations. OAR chapter 345, divi­ sions 22-26. 198 Umatilla County v. Dept. of Energy issued for the site.”); ORS 469.503 (setting out requirements for the council’s issuance of site certificate). To issue a site certificate, the council must find, among other things, that the proposed facility “complies with the statewide planning goals adopted by the Land Conservation and Development Commission.” ORS 469.503(4). A site certificate authorizes the holder to construct, operate, and retire a facility on an approved site, subject to the conditions that the council includes in the certificate. ORS 469.401(1); see ORS 469.300(26) (defining “site certificate”). To obtain a site certificate, an applicant first submits to the council a Notice of Intent to apply for a site certificate. ORS 469.330(1). DOE then issues a project order that identifies all statutes, administrative regulations, and other requirements that the applicant must satisfy to obtain the site certificate. ORS 469.330(3). The applicant submits its evidence of compli­ ance with all project order requirements to the council in an Application for Site Certificate. See ORS 469.350(1) (requir­ ing applicants to submit their application to the council). DOE reviews the application, and, if the agency determines that an application is complete, it issues a draft proposed order, which triggers a period for public comment. See ORS 469.350(4) (requiring DOE to notify applicant when application is complete); ORS 469.370(1), (2) (requir­ ing DOE to prepare a draft proposed order and the coun­ cil to hold one or more public hearings as necessary). After reviewing the public comments, DOE issues a final proposed order recommending approval or rejection of the applica­ tion. ORS 469.370(4). The council then conducts a contested case hearing on the application before an administrative law judge (ALJ). ORS 469.370(5). Only issues raised with sufficient specificity in the public comments may be raised in the contested case. ORS 469.370(3), (4). The ALJ issues a proposed contested case order, to which the parties may take exception. OAR 345-015-0085. The council then issues a final order approving or denying the application for a site certificate. ORS 469.370(7); OAR 345-015-0085(7), (8). Any party to the contested case may seek review in this court of the council’s decision approving or rejecting the site certifi­ cate. ORS 469.403(2), (3). Cite as 372 Or 194 (2024) 199 C.  Historical Facts In September 2017, Nolin Hills filed a Notice of Intent to file an application for a site certificate for a pro­ posed 350-MW wind energy facility, along with related or supporting facilities, including a 230-kV transmission line, to be located on approximately 44,900 acres in Umatilla County. The proposed wind facility and the transmission line as described in the Notice of Intent would be entirely on land that is zoned for exclusive farm use (EFU). The Notice of Intent stated that the wind energy transmission line would connect the wind facility to the proposed Bonneville Power Administration (BPA) Stanfield Substation, located about eight miles north of the “site boundary”—the outer perimeter of the acreage comprising the proposed facility.3 That proposed transmission line would span 18 miles and is referred to as the “BPA Stanfield Route.” The BPA Stanfield Route also would be entirely on EFU land. After Nolin Hills filed its Notice of Intent, DOE asked Umatilla County’s Board of Commissioners (county board) to recommend “applicable substantive criteria”—a set of local land use rules and regulations to be used by the council to evaluate Nolin Hills’s eventual application.4 3  The term “site boundary” is defined in OAR 345-001-0010(31) and means “the perimeter of the site of a proposed energy facility, its related or supporting facilities, all temporary laydown and staging areas and all corridors and micro- siting corridors proposed by the applicant.” 4  ORS 469.504(5) provides that, on request by DOE, the “special advisory group established under ORS 469.480” shall recommend to the council the “appli­ cable substantive criteria” that will be used to evaluate a proposed facility. ORS 469.480 does not expressly define the term “special advisory group,” but ORS 469.480(1) requires the council to “designate as a special advisory group the governing body of any local government within whose jurisdiction the facility is proposed to be located.” Umatilla County had designated its county board as the special advisory group. The “applicable substantive criteria” that the special advisory group must recommend to the council are approval criteria based on “the affected local government’s acknowledged comprehensive plan and land use regulations that are required by the statewide planning goals.” ORS 469.504 (1)(b)(A); see also OAR 345-022-0030(3) (providing same definition of “applicable substantive criteria”). “Acknowledgment” is defined in ORS 197.015(1) to mean that the Land Conservation and Development Commission [LCDC] has issued an order certifying that a comprehensive plan and land use regulations complies with the “goals,” which, in turn, is defined in ORS 197.015(8) to mean “the manda­ tory statewide land use planning standards adopted by [LCDC] pursuant to ORS chapters 195, 196, 197 and 197A.” In addition, OAR 345-015-0180(4)(b)(A) defines the phrase “applicable substantive criteria” to mean “the criteria and standards 200 Umatilla County v. Dept. of Energy The county board then timely recommended that the coun­ cil apply several Umatilla County land use ordinances as applicable substantive criteria, including, as relevant here, Umatilla County Development Code 152.616(HHH)(6)(a)(3), which requires a two-mile setback between any wind tur­ bine and rural residence on EFU-zoned land. The county had adopted that ordinance pursuant to ORS 215.283(2)(g), which allows the county to conditionally approve commer­ cial utility facilities as non-farm uses on EFU-zoned land. The county board designated that ordinance as “Criterion 3” in its list of recommended applicable substantive criteria. In February 2020, Nolin Hills submitted to DOE a preliminary application for a site certificate for the pro­ posed wind energy facility and related facilities. That pro­ posal was identical in all material respects to the proposal set out in the Notice of Intent. In November 2020, however, Nolin Hills submitted a revised preliminary application that increased the size of the facility to about 48,000 acres and added several additional features, including, as perti­ nent here, an alternative energy transmission route (that is, an alternative to the BPA Stanfield Route).5 The alterna­ tive route, referred to as the Umatilla Electric Cooperative (UEC) Cottonwood Route, would connect the wind facility to the BPA transmission system via transmission lines to the UEC Cottonwood Substation. The UEC Cottonwood Route would span about 25 miles (seven miles longer than the BPA Stanfield Route). Whereas the BPA Stanfield Route would be located entirely on EFU land, the UEC Cottonwood Route would be located mostly on EFU land with small segments in two other land-use zones: Light Industrial (0.4 mile) and Rural Tourist Commercial (0.3 mile). In addition, part of the total acreage within the site boundary associated with the UEC Cottonwood Route is located within a fourth zone— Agri-Business (0.35 acre). The county board provided timely comments on the preliminary application, asserting that the proposed facil­ ity does not comply with all of the applicable substantive that the local government would apply in making all land use decisions neces­ sary to site the proposed facility in the absence of a Council proceeding.” 5  The revised application also included solar energy facilities. Cite as 372 Or 194 (2024) 201 criteria. Specifically, the county board objected that the facility would not comply with Criterion 3 because several of the proposed wind turbine locations would be within two miles of numerous rural residences. Nolin Hills then sub­ mitted a second revised preliminary application; that pro­ posal also did not comply with Criterion 3, which the county board pointed out in its comments. In January 2022, Nolin Hills submitted its applica­ tion. The application did not comply with Criterion 3, as it continued to include wind turbines that were less than two miles from rural residences. DOE issued a draft proposed order recommending that the council find that the proposed facility complies with all applicable requirements. The draft proposed order acknowledged that the facility would not comply with Criterion 3, but it concluded that Criterion 3 is not an “applicable substantive criterion.” It also stated that, even if Criterion 3 were an applicable substantive criterion, the council was authorized to approve the proposed facility under ORS 469.504(1)(b)(B), so long as the council finds that the project “otherwise compl[ies] with the applicable state­ wide planning goals.” DOE then issued its final Proposed Order, in which it found that the proposed facility complies with all applica­ ble substantive criteria. In so concluding, DOE determined that Criterion 3 is not an applicable substantive criterion, because, under ORS 469.504(1)(b)(A), applicable substantive criteria are land use regulations that are “required by the statewide planning goals,” and no statewide planning goal requires a two-mile setback between a wind turbine and a residence. Alternatively, DOE stated, even if Criterion 3 were an applicable substantive criterion, noncompliance with that criterion would not be fatal to the application, because, under ORS 469.504(5), if a proposed facility passes through more than three land use zones, the council has the option to evaluate the proposal against statewide planning goals instead of the applicable substantive criteria.6 Noting that Nolin Hills’s application included the possibility that the facility would use the UEC Cottonwood Route, which, it 6  We set out and discuss the text of ORS 469.504(5) later in this opinion. 202 Umatilla County v. Dept. of Energy stated, “passes through” more than three land use zones, DOE concluded that the failure to comply with Criterion 3 was not dispositive. Finally, DOE stated that, even if Criterion 3 were an applicable substantive criterion as defined in ORS 469.504 (1)(b)(A), and even if the proposed facility does not pass through more than three land use zones, the council could still approve the proposed facility under yet another provision, ORS 469.504(1)(b)(B), because the proposed facility otherwise complies with the applicable statewide planning goals.7 Umatilla County objected to DOE’s Proposed Order. The county argued that, contrary to DOE’s reasoning, the UEC Cottonwood Route does not pass through more than three land use zones; therefore, the applicable substantive criteria govern. The county further argued that, contrary to DOE’s reasoning, Criterion 3 was one of those applicable substantive criteria. In the ensuing contested case proceed­ ing, Umatilla County, DOE, and Nolin Hills each moved for summary determination. In May 2023, an ALJ issued a con­ tested case order denying Umatilla County’s motion, grant­ ing DOE’s and Nolin Hills’s motions, and proposing that the council issue a final order granting Nolin Hills’s application. In the contested case order, the ALJ determined that the proposed facility complies with all applicable substantive criteria. Like DOE, the ALJ concluded that Criterion 3 is not an “applicable substantive criterion,” because the two- mile setback required by the Umatilla County ordinance is not specifically required by the statewide planning goals. The ALJ further determined that, even if Criterion 3 were applicable, the proposed facility otherwise complies with applicable statewide planning goals. The council issued its final order in August 2023. The final order incorporated DOE’s Proposed Order and the ALJ’s Contested Case Order, and it approved Nolin Hills’s application. 7  ORS 469.504(1)(b)(B) allows the council to approve a proposed facility not­ withstanding its failure to comply with all applicable substantive criteria if the council determines that the facility “does otherwise comply with the applicable statewide planning goals, or that an exception” to the goals applies. We set out and discuss the text of ORS 469.504(1)(b) later in this opinion. Cite as 372 Or 194 (2024) 203 II.  ANALYSIS This court reviews final orders of the council for errors of law, abuses of agency discretion, and lack of sub­ stantial evidence in the record to support challenged find­ ings of fact. See Friends of Parrett Mountain v. Northwest Natural, 336 Or 93, 96, 79 P3d 869 (2003) (so stating); Save Our Rural Oregon v. Energy Facility Siting, 339 Or 353, 356, 121 P3d 1141 (2005) (same); ORS 469.403(6) (Supreme Court review same as Court of Appeals’ review described in ORS 183.482); ORS 183.482(7), (8) (setting out those standards). A.  Statutory Framework Before turning to the parties’ contentions on appeal, we lay out the relevant statutes in detail. ORS 469.503 sets out the requirements for approval of energy facility site certificates: “In order to issue a site certificate, the [council] shall deter­ mine that the preponderance of the evidence on the record supports the following conclusions: “(1)  The facility complies with the applicable standards [for facility siting, construction, operation, and retirement] or the overall public benefits of the facility outweigh any adverse effects on a resource or interest protected by the applicable standards the facility does not meet. “(2)  *  *  *  *  *  [8] “(3)  Except as provided in ORS 469.504 for land use compliance and except for those statutes and rules for which the decision on compliance has been delegated by the federal government to a state agency other than the council, the facility complies with all other Oregon statutes and administrative rules identified in the project order, as amended, as applicable to the issuance of a site certificate for the proposed facility. *  *  * “(4)  The facility complies with the statewide planning goals adopted by the Land Conservation and Development Commission [LCDC].” Only ORS 469.503(4) is at issue in this case. That is, Umatilla County disputes only the council’s determination 8  Subsection (2) applies to fossil-fueled power plants and is not relevant here. 204 Umatilla County v. Dept. of Energy that the proposed facility complies with statewide planning goals notwithstanding its failure to comply with Criterion 3, the county rule requiring a two-mile setback between wind turbines and rural residences. A different statute, ORS 469.504, sets out the cir­ cumstances under which a proposed facility “shall be found in compliance” with statewide planning goals under ORS 469.503(4). Of the various subsections in ORS 469.504, three are most relevant here: subsections (1), (4), and (5). First, subsection (4) provides that an applicant for a site certificate “shall elect whether to demonstrate compliance with the statewide planning goals under [ORS 469.504(1)(a) or ORS 469.504(1)(b)].” ORS 469.504(4). In other words, the circumstances in which the proposed facility “shall be found in compliance” depend initially on the applicant’s choice between two alternative ways to proceed, which are set out in subsection (1). The first of those statutory alternatives, ORS 469.504(1)(a), provides that the council must find the pro­ posed facility to be in compliance with statewide planning goals if “[t]he facility has received local land use approval under the acknowledged comprehensive plan and land use regulations of the affected local government.” In other words, ORS 469.504(1)(a) allows the applicant to elect to demon­ strate that the proposed facility complies with local land use requirements to the satisfaction of the local government, in which case, if the applicant is successful, the council must conclude that the facility complies with statewide planning goals. In this case, Nolin Hills did not seek local land use approval under Umatilla County’s acknowledged compre­ hensive plan, and it did not elect to demonstrate compliance under ORS 469.504(1)(a). Rather, it elected to demonstrate compliance under the second statutory alternative, ORS 469.504(1)(b), which is considerably more complex. When an applicant elects to demonstrate compli­ ance under ORS 469.504(1)(b), then the way in which the council must proceed depends on the particular circum­ stances presented by the application. That statute provides Cite as 372 Or 194 (2024) 205 that the proposed facility must be found in compliance with statewide planning goals if the council determines that: “(A)  The facility complies with applicable substantive criteria from the affected local government’s acknowledged comprehensive plan and land use regulations that are required by the statewide planning goals and in effect on the date the application is submitted, and with any Land Conservation and Development Commission administra­ tive rules and goals and any land use statutes that apply directly to the facility *  *  *; “(B)  For an energy facility or a related or supporting facility that must be evaluated against the applicable sub­ stantive criteria pursuant to subsection (5) of this section, that the proposed facility does not comply with one or more of the applicable substantive criteria but does otherwise comply with the applicable statewide planning goals, or that an exception to any applicable statewide planning goal is justified under subsection (2) of this section; or “(C)  For a facility that the council elects to evaluate against the statewide planning goals pursuant to subsec­ tion (5) of this section, that the proposed facility complies with the applicable statewide planning goals or that an exception to any applicable statewide planning goal is jus­ tified under subsection (2) of this section.” ORS 469.504(1)(b) (emphases added). As explained in greater detail below, the italicized terms are important to the par­ ties’ arguments in this case. The third subsection relevant here is subsection (5), which is cross-referenced in subparagraph (1)(b)(B), as set out above. ORS 469.504(5) provides: “Upon request by the State Department of Energy, the special advisory group established under ORS 469.480 shall recommend to the council, within the time stated in the request, the applicable substantive criteria under subsection (1)(b)(A) of this section. If the special advisory group does not recommend applicable substantive criteria within the time established in the department’s request, the council may either determine and apply the applicable substantive criteria under subsection (1)(b) of this section or determine compliance with the statewide planning goals under subsection (1)(b)(B) or (C) of this section. If the special 206 Umatilla County v. Dept. of Energy advisory group recommends applicable substantive criteria for an energy facility *  *  * or a related or supporting facility that does not pass through more than one local government jurisdiction or more than three zones in any one jurisdiction, the council shall apply the criteria recommended by the spe­ cial advisory group. If the special advisory group recom­ mends applicable substantive criteria for an energy facility *  *  * or a related or supporting facility that passes through more than one jurisdiction or more than three zones in any one jurisdiction, the council shall review the recommended criteria and determine whether to evaluate the proposed facility against the applicable substantive criteria recom­ mended by the special advisory group, against the state­ wide planning goals or against a combination of the appli­ cable substantive criteria and statewide planning goals. *  *  *” (Emphases added.) Thus, subsection (5) concerns what the council is required to do with the “applicable substantive criteria” that may have been recommended by the “spe­ cial advisory group,” which, in this case, was the Umatilla County board. The county and the state respondents describe sub­ section (5) as containing different “tracks,” a term that we adopt here.9 Track 1, the second sentence in subsection (5), applies if the special advisory group does not timely recom­ mend applicable substantive criteria. In that situation, the council “either” may determine the applicable substantive criteria itself and apply those criteria, or it may “determine compliance with the statewide planning goals under subsec­ tion (1)(b)(B) or (C).” Here, the special advisory group—the Umatilla County board—timely recommended applicable substantive criteria, so track 1 undisputedly does not apply. 9  We recognize that we are using the shorthand term “tracks” in this opin­ ion differently than did this court in Save Our Rural Oregon. In that case, the court referred to the three subparagraphs in ORS 469.504(1)(b) as “tracks.” 339 Or at 363. However, there was no need to refer to those three subparagraphs as “tracks” in Save Our Rural Oregon, because they are easily referred to and identified by their citations. By contrast, the descriptions of the ways the council is to use the applicable substantive criteria in the three circumstances set out in ORS 469.504(5) are all part of one section and are not separately identifiable by citation. For ease of reference, therefore, we refer to those three circumstances as “tracks.” Cite as 372 Or 194 (2024) 207 Track 2, the third sentence in subsection (5), applies if the special advisory group timely recommends applicable substantive criteria for a facility or a related or supporting facility that does not pass through more than one jurisdic­ tion or more than three land use zones. In that circum­ stance, the council “shall apply” the special advisory group’s recommended applicable substantive criteria. Finally, track 3, the fourth sentence in subsection (5), applies if the special advisory group recommends applica­ ble substantive criteria for an energy facility or related or supporting facility that does pass through more than one jurisdiction or more than three zones in any one jurisdic­ tion. In that circumstance, the council must review the rec­ ommended criteria and “determine whether” to evaluate the proposed facility against the recommended criteria, against the statewide planning goals, or against a combination of the two. In this case, the council evaluated Nolin Hills’s application under ORS 469.504(1)(b)(A), concluding that the proposed facility complies with all “applicable substan­ tive criteria from the affected local government’s acknowl­ edged comprehensive plan and land use regulations that are required by the statewide planning goals.” As discussed, it based that conclusion on its finding that, although the pro­ posed facility does not comply with Criterion 3, the two-mile setback rule, that criterion is not an “applicable substantive criterion” because it is not “required by the statewide plan­ ning goals.” In addition, the council made “the separate and alternative findings” that, even if Criterion 3 were an appli­ cable substantive criterion, “the facility meets the Land Use standard under ORS 469.504(1)(b)(B) and ORS 460.504(5).” The council went on to state that, as a first alternative basis for approving the proposed facility, the council found that track 3 applied because the UEC Cottonwood Route passes through more than three land use zones, and therefore the council was entitled to, and did, evaluate the proposed facility against a combination of the applicable substantive criteria and the statewide planning goals. In addition, as a second alternative basis for its ruling, the council stated that it had 208 Umatilla County v. Dept. of Energy evaluated the proposed facility under ORS 469.504(1)(b)(B), which allows it to approve a proposed facility that does not comply with all the local government’s applicable substantive criteria if it “does otherwise comply with the applicable state­ wide planning goals.” The council considered all the state­ wide planning goals that it considered to be applicable to the proposed facility, and it concluded that the proposed facility did comply with them. B.  The Parties’ Arguments on Review On review, the core of Umatilla County’s argument is that the council erred in approving Nolin Hills’s appli­ cation because the proposed facility includes multiple wind turbines that are less than two miles from rural residences and thus does not comply with Criterion 3. That argument has three main parts. First, the county argues that the council erred in concluding that Criterion 3 is not “required by the statewide planning goals” and therefore is not among the “applicable substantive criteria” that the council must consider under ORS 469.504(1)(b)(A). The county asserts that Criterion 3 is a conditional land use standard that it adopted in con­ formance with Statewide Planning Goal 2, OAR 660-015- 0000(2). Among other things, Statewide Planning Goal 2 requires local governments to adopt a “land use planning process and policy framework” that would serve as a “basis for all decision[s] and actions related to use of land.” According to the county, Criterion 3 is a part of that frame­ work and addresses issues relevant to several statewide planning goals, and, because Criterion 3 was adopted pur­ suant to Goal 2, it is “required by” Goal 2. Second, the county argues that the council erred, as a matter of fact and as a matter of law, in concluding that the UEC Cottonwood Route “passes through” more than three land use zones. That is important because, for facilities that pass through more than three land use zones, ORS 469.504(5) allows the council to evaluate the proposed facility against the applicable substantive criteria, against the statewide planning goals, or against a combination of the two. As a result, the proposed facility’s failure to comply Cite as 372 Or 194 (2024) 209 with Criterion 3 would not be a reason to deny the applica­ tion. Third, Umatilla County argues that, because Criterion 3 is an applicable substantive criterion, and because the pro­ posed facility does not pass through more than three zones, the council was required to analyze Nolin Hills’s application under track 2 in ORS 469.504(5). The county argues that that is important because track 2 provides that the council “shall apply” the applicable substantive criteria. In the coun­ ty’s view, that wording means that the council was required to apply Criterion 3 and must deny Nolin Hills’s application for a site permit because the proposed facility violates the two-mile setback requirement. Put another way, Umatilla County contends that the statutory directive in track 2 that the council “shall apply” the local criteria necessarily means that, if the proposed facility does not comply with the local criteria, then the council may not approve the application. The state respondents argue that, even if track 2 in ORS 469.504(5) does apply for the reasons that the county contends—that is, even assuming that Criterion 3 is one of the applicable substantive criteria, and further assuming that the proposed facility does not pass through more than three zones—the council was nevertheless authorized to approve the application under ORS 469.504(1)(b)(B). Again, that provision applies when a proposed facility “must be evaluated against” the applicable substantive criteria, and it allows the council to approve a facility that does not com­ ply with all the applicable substantive criteria if the facility “does otherwise comply with the applicable statewide plan­ ning goals.” In response to that argument by the state respon­ dents, the county contends that ORS 469.504(1)(b)(B) applies only to track 1—situations in which the special advisory group does not recommend applicable substantive criteria to DOE and the council then exercises its option to determine applicable substantive criteria itself. Moreover, Umatilla County argues, nothing in track 2 suggests that the leg­ islature intended for ORS 469.504(1)(b)(B) to override the directive in track 2 that the council “shall apply” Umatilla County’s applicable substantive criteria. On that point, the 210 Umatilla County v. Dept. of Energy county argues that the state respondents’ interpretation of ORS 469.504(1)(b)(B)—that it gives broad authority to the council to grant a site certificate for a proposed facility that falls within track 2, regardless of compliance with local cri­ teria—cannot be correct, because that would make it point­ less for ORS 469.504(5) to differentiate between proposed facilities that pass through more than three land use zones and those that do not: In each case, the council would be free to disregard the proposed facility’s failure to comply with all applicable substantive criteria and simply evaluate the proposed facility against the statewide planning goals. Although, as is apparent from the foregoing, the par­ ties dispute numerous points of law and fact in this appeal, we conclude that it is unnecessary to resolve most of those disputes. Specifically, we need not decide whether Criterion 3 is “required by the statewide planning goals” and is there­ fore an applicable substantive criterion; nor need we decide whether the council erred as a matter of fact or of law in concluding that the proposed facility passes through more than three land use zones. That is because, even assuming for purposes of this opinion that Umatilla County is correct as to both those points—and that the council, therefore, was required to evaluate the proposed facility under track 2 in ORS 469.504(5)—we conclude that ORS 469.504(1)(b)(B) authorized the council to grant Nolin Hills’s application for a site permit for the proposed wind facility notwithstanding the failure of the proposed facility to comply with Criterion 3. C. ORS 469.504(1)(b)(B) Applies to Track 2 in ORS 469.504(5). We review the council’s interpretation of ORS 469.504 for errors of law. In doing so, we attempt to dis­ cern the legislature’s intent by employing the framework for statutory construction set out in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009): We examine the text and context of the relevant statute, and we consider legislative history to the extent that we find it useful to our analysis. ORS 469.504(1)(b)(B) confers broad authority on the council. It provides that the council may approve a proposed facility if it determines that the facility “does not comply Cite as 372 Or 194 (2024) 211 with one or more of the applicable substantive criteria but does otherwise comply with the applicable statewide plan­ ning goals, or that an exception to any applicable statewide planning goal is justified under subsection (2) of this sec­ tion.” Thus, if that provision is applicable, the proposed facil­ ity need not comply with all local recommended criteria, and it need not even comply with all statewide planning goals if the council determines that an exception to a goal is justi­ fied. However, by its terms, that provision’s applicability is limited to situations when “an energy facility or a related or supporting facility *  *  * must be evaluated against the appli­ cable substantive criteria pursuant to [ORS 469.504(5)].” (Emphasis added.) The statute thus appears to contemplate that a situation may arise in which a proposed facility “must be evaluated against” the applicable substantive criteria, yet may still be approved even if it does not comply with one or more of those criteria. According to the state respondents, the statute means exactly that. In response, Umatilla County argues that ORS 469.504(1)(b)(B) does not apply to this case, because this was not a circumstance in which a facility “must be evaluated” against the “applicable substantive criteria” pursuant to ORS 469.504(5). The county makes several points in support of that contention, none of which we find persuasive. According to the county, the only time that the council “must” evaluate the proposed facility against the “applicable substantive criteria” is when track 1 applies— i.e., when the special advisory group has not recommended applicable substantive criteria and the council decides to determine them itself. To repeat, track 1 provides: “If the special advisory group does not recommend appli­ cable substantive criteria within the time established in the department’s request, the council may either determine and apply the applicable substantive criteria under subsec­ tion (1)(b) of this section or determine compliance with the statewide planning goals under subsection (1)(b)(B) or (C) of this section.” ORS 469.504(5). We agree with the county that, if the special advisory group has not timely recommended applicable substantive 212 Umatilla County v. Dept. of Energy criteria for a proposed facility and the council decides to determine and apply them itself as allowed in track 1, that is a situation in which the proposed facility “must be eval­ uated against the applicable substantive criteria” pursuant to subparagraph (1)(b)(B). Indeed, this court said as much in Save Our Rural Oregon. In that case, the special advisory group did not timely recommend applicable substantive cri­ teria, and the council determined the local criteria itself by looking at the local land use comprehensive plan and zoning ordinances and directly applicable statutes and rules. 339 Or at 362-63. This court held that, once the council opted to “determine and apply the applicable substantive criteria” under track 1, “the facility was one that ‘must’ be evaluated against the applicable substantive criteria [and therefore] ORS 469.504(1)(b)(B) was an appropriate mechanism for reviewing the proposed facility.” Id. at 368 n 10. But it does not follow from Save Our Rural Oregon that track 1 is the only circumstance in which the council must evaluate a proposed facility against the applicable sub­ stantive criteria. The wording of track 2 arguably suggests even more clearly a legislative intent to make ORS 469.504 (1)(b)(B) an “appropriate mechanism” for review. Again, track 2 states that, where a proposed facility does not pass through more than three land use zones, the council “shall apply the criteria recommended by the special advi­ sory group.” ORS 469.504(5) (emphasis added). “Shall,” like “must,” is a word denoting an obligation or a command. See Preble v. Dept. of Rev., 331 Or 320, 324, 14 P3d 613 (2000) (“  ‘Shall’ is a command: it is ‘used in laws, regulations, or directives to express what is mandatory.’  ” (Citation omit­ ted.)); Stanley, Adm. v. Mueller, 211 Or 198, 208, 315 P2d 125 (1957) (“Words or phrases which are generally regarded as making a provision mandatory, include ‘shall,’ and ‘must.’  ”). The phrase “shall apply the [applicable substantive] criteria,” then, appears to make the proposed facility one that “must be evaluated” against the applicable substantive criteria. Umatilla County argues that that is not correct, because “evaluate” in ORS 469.504(1)(b)(B) means some­ thing different than “apply” in track 2. That is, Umatilla County argues that, under track 2, the council is required to Cite as 372 Or 194 (2024) 213 apply the criteria, but evaluation is not required. The county does not, however, explain how such a distinction could make practical sense. Again, ORS 469.504(1)(b)(B) is trig­ gered when, under ORS 469.504(5), the council must evalu­ ate the proposed facility “against the applicable substantive criteria.” It is difficult to understand how the council, acting pursuant to track 2, could “apply” the applicable substantive criteria to a proposed facility without also evaluating the proposed facility against those criteria, and the county does not explain how that could be so. Umatilla County also argues that applying ORS 469.504(1)(b)(B) to track 2 would make a nullity of the com­ mand in track 2 that the council “shall apply” the applicable substantive criteria. That is, according to Umatilla County, it does not make sense to interpret the statutory scheme in a way that requires the council, acting pursuant to track 2, to “apply” the substantive criteria, but then allows the council to use ORS 469.504(1)(b)(B) to effectively disregard those criteria by approving a project that does not comply with them. That seeming anomaly, according to the county, is a reason to conclude that ORS 469.504(1)(b)(B) does not apply to track 2. We disagree. The unspoken premise underlying the county’s argument is that the requirement in track 2 that the council “shall apply” the recommended substan­ tive criteria means that a proposed facility must be rejected if it does not comply with those criteria. That is a possible interpretation of “shall apply,” but it is not the only plausi­ ble one. “Apply” means “to make use of as suitable, fitting, or relevant” or “to put to use[,] esp. for some practical pur­ pose.” Webster’s Third New Int’l Dictionary 105 (unabridged ed 2002). Under that ordinary meaning, one might “apply” the applicable substantive criteria in evaluating a proposed facility—meaning, “make use of” them by examining the degree to which the facility is consistent with those criteria— even if one may also approve a proposed facility that does not comply with one or more of them. Contrary to the coun­ ty’s argument, such an interpretation does not render the local criteria irrelevant. Rather, it requires the council to 214 Umatilla County v. Dept. of Energy consider those criteria in determining whether to ultimately approve a proposed facility. Finally, the county points to two other land use stat­ utes, ORS 215.283(2)(g) and ORS 215.190, as context for its interpretation of ORS 469.504(1)(b)(B). ORS 215.283(2)(g) requires county approval of commercial utility facilities for the purpose of generating power for public use on high- value farmland in areas zoned for exclusive farm use.10 ORS 215.190 prohibits, among other things, construction of any structure in violation of an ordinance or regulation.11 The county argues that those statutes mean that a facility such as Nolin Hills proposes can be approved only if it meets local conditional use standards, and if the facility does not meet those standards, the application must be denied. According to Umatilla County, it follows that ORS 469.504(1)(b)(B) cannot apply to track 2. Again, we disagree. ORS 469.504(7) alleviates any tension between ORS 469.504, on the one hand, and ORS 215.283(2)(g) and ORS 215.190, on the other. That subsec­ tion specifically contemplates council approval of a facility that violates local land use rules: “On or before its next periodic review, each affected local government shall amend its comprehensive plan and land use regulations as necessary to reflect the decision of the council pertaining to a site certificate or amended site certificate.” ORS 469.504(7). In other words, if the council issues a site certificate for a proposed facility that does not comply with all of a local government’s land use regulations adopted pursuant to ORS 215.283(2)(g) and ORS 215.190, including 10  ORS 215.283(2)(g) provides: “(2)  The following nonfarm uses may be established, subject to the approval of the governing body or its designee in any area zoned for exclusive farm use *  *  *: “*  *  *  *  * “(g)  Commercial utility facilities for the purpose of generating power for public use by sale.” 11  ORS 215.190 provides: “No person shall locate, construct, maintain, repair, alter, or use a build­ ing or other structure or use or transfer land in violation of an ordinance or regulation authorized by [various land use statutes].” Cite as 372 Or 194 (2024) 215 those recommended as applicable substantive criteria in an energy facility siting proceeding, the county must amend its conflicting regulations to conform to the site certificate and issue any permits necessary for the construction of the facili­ ty.12 Notably, nothing in subsection (7) limits its applicability to proposed facilities approved under tracks 1 and 3.13 Once the local government amends its regulations to conform to the site certificate, there is no longer a conflict between a site certificate and the local conditional use standards. Our analysis thus far points to the conclusion that ORS 469.504(1)(b)(B) applies to track 2 and that it authorizes the council to issue a site certificate for a proposed facility notwithstanding that the proposed facility does not comply with all applicable substantive criteria, so long as it “does otherwise comply with the applicable statewide planning goals.” That interpretation of the statute is consistent with the overarching goal of the energy facility siting process: to 12  As the council’s final order states, “[I]t is the [c]ounty that must amend its comprehensive plans and regulations to be consistent with the [council’s] deci­ sion, not vice versa.” 13  We also observe that, if Umatilla County were correct that ORS 215.283(2)(g) and ORS 215.190 mean that a proposed facility that does not comply with local land use regulations must be denied, then it would not matter whether track 2 or track 3 applied, because the council would never be able to approve a proposed facility that did not comply with all of the local government’s applicable substan­ tive criteria. But the legislature has expressly authorized facilities to obtain site certificates without the local governing body’s approval in ORS 469.504(1)(b), and both ORS 469.504(1)(b)(B) and (C) clearly contemplate approval when a facility does not comply with all applicable substantive criteria. As we have discussed, ORS 469.504(1)(b)(B) does so expressly, but ORS 469.504(1)(b)(C) also applies implicitly when a facility does not comply with all applicable substantive criteria. That subparagraph applies when the council “elects to evaluate [a proposed facil­ ity] against the statewide planning goals” and clearly applies to track 3, which applies to a proposed facility that passes through more than three land use zones, because only track 3 gives the council that option. Track 3 requires the council to review the recommended criteria and then determine whether to evaluate the proposed facility against the recommended criteria, against the statewide plan­ ning goals, or against a combination of the two. Obviously, if the council chooses the first option—if it determines to evaluate the proposed facility against the applicable substantive criteria—and it further determines that the facility fully complies with the applicable substantive criteria, then the council can approve the proposed facility under ORS 469.504(1)(b)(A). But ORS 469.504(1)(b)(C) would apply both when the council elects to evaluate the proposed facility under the statewide planning goals alone and when it elects to evaluate the facility against a combination of the applicable substantive criteria and the statewide planning goals, having determined that the proposed facility does not comply with all of the applicable substantive criteria. 216 Umatilla County v. Dept. of Energy ensure that energy facilities comply with Oregon’s statewide planning goals. ORS 469.503(4). We disagree with Umatilla County that that interpretation makes a nullity of the dif­ ferent treatment in ORS 469.504(5) for proposed facilities that pass through more than three land use zones and those that do not. Rather, our interpretation reflects a legislative intent to ensure that local government interests are given robust consideration, while at the same time giving the council ultimate decision-making authority to approve pro­ posed facilities that comply with statewide planning goals. D. The Legislative History Confirms Our Interpretation of ORS 469.504. The legislative history of ORS 469.503 and ORS 469.504 confirms, generally, our understanding that the leg­ islature intended, in ORS 469.504(1)(b), to provide a role for local land use regulations in the energy facility siting pro­ cess while making clear that the council, and not the local government, makes the ultimate determination whether to issue a site certificate for a proposed facility.14 In particu­ lar, it confirms our understanding of the interrelationship between ORS 469.504(1)(b)(B) and track 2, and it reveals that, although ORS 469.504(5) provides in track 2 that the council “shall apply” the local criteria, the legislature did not intend to require compliance with all local criteria as a prerequisite for issuance of a site certificate for facilities evaluated under track 2. The statutes setting requirements for approval of energy facility site certificates and facility compliance with statewide planning goals, ORS 469.503 and ORS 469.504, began to take their present form in 1993. In that year, the legislature repealed the list of standards, set out in former ORS 469.500 and former ORS 469.510, that the council was required to adopt governing the safety, siting, construc­ tion, and operation of thermal power plants and nuclear installations, and it enacted new standards for the siting, 14  As discussed, there is one exception: the council cedes its authority to the affected local government when the applicant elects to demonstrate compliance with the statewide planning goals by seeking approval from the local govern­ ment under its acknowledged comprehensive plan and land use regulations. ORS 469.504(1)(a), (4). Cite as 372 Or 194 (2024) 217 construction, operation, and retirement of “energy facili­ ties.”15 Or Laws 1993, ch 569, §§ 22-23. The 1993 bill, as enacted, reflected the legislature’s overarching concern that proposed facilities comply with statewide planning goals, and it clarified the ways in which the council could make that determination.16 Compare former ORS 469.503(1)(c) (1993), renumbered as ORS 469.503(4) (1997) (to issue a site certificate, the council shall determine by a preponderance of the evidence that “[t]he facility complies with the state­ wide planning goals adopted by the Land Conservation and Development Commission”), with former ORS 469.510 (1991), repealed by Or Laws 1993, ch 569, § 21 (containing no provision regarding land use or statewide planning goals). Like ORS 469.504(1)(a) and (b) today, former ORS 469.503 (1993) anticipated two types of circumstances in which a proposed facility could or must be found in com­ pliance with statewide planning goals: where the applicant had sought and received local land use approval for the pro­ posed facility, former ORS 469.503(2)(a) (1993), and where the applicant had not sought local land use approval and instead asked the council to make the determination, former ORS 469.503(2)(b) (1993). Former ORS 469.503(2)(b) (1993), in turn, set out two circumstances in which the council was required to find that a proposed facility was in compliance with the statewide planning goals: (1) when the proposed facility complied with all the local government’s applicable substantive criteria, as well as LCDC’s rules and goals and any applicable land use statutes (former ORS 469.503(2)(b)(A) and (B) (1993)), and (2) when the proposed facility “[did] not comply with the applicable local government criteria,” but the council found that the proposed facility did “other­ wise comply with the statewide planning goals,” (former ORS 469.503(2)(b)(C) (1993)). Further, former 469.503(6) (1993) provided, “In accordance with subsection (2)(b) of 15  The definition of “energy facility” covered more types of facilities than merely thermal power plants and nuclear installations; it covered any electric power generating plant with a generating capacity of 25 megawatts or more. Former ORS 469.300(10) (1993). That definition is substantially identical to the definition of “energy facility” set out in ORS 469.300(11)(a). 16  As enacted in 1993, the provisions of the statute that are analogous to those found today in ORS 469.503 and ORS 469.504 all were found in former ORS 469.503 (1993). 218 Umatilla County v. Dept. of Energy this section, the council shall apply the substantive crite­ ria recommended by the special advisory group.” (Emphasis added.) The original wording of former ORS 469.503(6) (1993) shows that the council was required to “apply” the local criteria in both circumstances set out in former ORS 469.503(2)(b) (1993)—it “shall apply” them. If the council applied the local criteria and found that the proposed facil­ ity complied with them, then it was required to find that the proposed facility was in compliance with the statewide planning goals and approve the site certificate. However, it also could approve the site certificate if it determined that the proposed facility did not comply with the local criteria but that it “does otherwise comply with the statewide plan­ ning goals.” Thus, former ORS 469.503 (1993) reflects not only a legislative intent to allow the council to approve pro­ posed facilities that do not comply with the applicable sub­ stantive criteria, it also shows that the legislature intended the phrase “shall apply” to be understood as we interpret it here: The phrase directs the council to consider the local criteria, but it does not require the council to reject a pro­ posed facility simply because it does not comply with a local criterion.17 Nothing in the later amendments to that statute suggests a different legislative intent. In 1995, the leg­ islature considered a bill to amend former ORS 469.503 (1993)—SB 951. As introduced, SB 951 would have allowed the council to consider compliance with the statewide planning goals without first considering compliance with the local criteria. See Exhibit D, Senate Committee on Agriculture, Natural Resources and Environment, SB 951, April 10, 1995 (proposed amendments). Many stakeholders, including DOE, opposed those amendments on the ground that they would render local criteria unnecessary to the council’s determination. See Exhibit H, Senate Committee 17  This interpretation is consistent with the written statement of then- Senator Joyce Cohen, equating “applying” with “considering.” Senator Cohen stated that, in the proposed amendments to former ORS 469.503 (1993), “we have made sure that the local governments[’] comprehensive plans will be considered by the Siting Council.” Exhibit A, House Committee on Natural Resources, SB 1016, June 29, 1993 (accompanying testimony of Senator Joyce Cohen). Cite as 372 Or 194 (2024) 219 on Agriculture, Natural Resources and Environment, SB 951, Apr 10, 1995 (accompanying testimony of DOE Acting Director John Savage) (opposing proposed amendments because the bill would allow the council “to make a deter­ mination of consistency with statewide planning goals with­ out considering local government plans”); see also Exhibit F, Senate Committee on Agriculture, Natural Resources and Environment, SB 951, April 10, 1995 (accompanying tes­ timony of the council’s Vice Chair Terry Edvalson) (“[The bill] allows developers to ignore local comprehensive plans and zoning ordinances, and instead apply the broader state land use goals to demonstrate land use compliance.”); Tape Recording, Senate Committee on Agriculture, Natural Resources and Environment, SB 951, Apr 10, 1995, Tape 71, Side B (statement of Senior Staff Associate for the League of Oregon Cities Jane Cummins) (the League of Oregon Cities opposed “language which allow[ed] the local plan criteria to be ignored”). Ultimately, the legislature amended former ORS 469.503 (1993) to repeal former ORS 469.503(2)(b)(C) (1993) and replace it with the following two subparagraphs: “(C)  For an energy facility or a related or supporting facility that must be evaluated against the applicable sub­ stantive criteria pursuant to subsection (6) of this section, that the proposed facility does not comply with one or more of the applicable substantive criteria but does otherwise comply with the applicable statewide planning goals, or that an exception to any applicable statewide planning goal is justified under subsection (3) of this section; or “(D)  For a facility that the council elects to evaluate against the statewide planning goals pursuant to subsec­ tion (6) of this section, that the proposed facility complies with the applicable statewide planning goals or that an exception to any applicable statewide planning goal is jus­ tified under subsection (3) of this section.” Or Laws 1995, ch 505, § 21. Those provisions are identical in all material respects to the current statute, ORS 469.504 (1)(b)(B) and (C). In addition, the legislature amended former ORS 469.503(6) (1993) to include two additional “tracks” now present in ORS 469.504(5). That is, in addition to track 1, which applies when the special advisory group does not 220 Umatilla County v. Dept. of Energy recommend applicable substantive criteria (and which was already a part of former ORS 469.503(6) (1993)), former ORS 469.503(6) (1995) included the following: “If the special advisory group recommends applicable sub­ stantive criteria for an energy facility *  *  * or a related or supporting facility that does not pass through more than one local government jurisdiction or more than three zones in any one jurisdiction, the council shall apply the criteria recommended by the special advisory group. If the special advisory group recommends applicable substantive criteria for an energy facility *  *  * or a related or supporting facil­ ity that passes through more than one jurisdiction or more than three zones in any one jurisdiction, the council shall review the recommended criteria and determine whether to evaluate the proposed facility against the applicable substantive criteria recommended by the special advisory group, against the statewide planning goals or against a combination of the applicable substantive criteria and statewide planning goals.” Or Laws 1995, ch 505, § 21. That wording is identical in all material respects to the second and third tracks that now appear in ORS 469.504(5). Notably, former ORS 469.503(6) (1995) continued to provide that the council “shall apply” the local criteria, although that directive was then limited to circumstances in which the proposed facility did not pass through more than one jurisdiction or more than three land use zones in any one jurisdiction. There is little explanation in the legislative history as to why the legislature concluded that those particular amendments were necessary.18 However, DOE did not object 18  The legislative history suggests that, in differentiating between pro­ posed facilities that pass through more than one jurisdiction or more than three land use zones and those that do not, the legislature was attempting to address “problems associated with the siting of transmission lines and pipelines that go through multiple zones and multiple jurisdictions.” Exhibit B, Senate Committee on Agriculture, Natural Resources and Environment, SB 951, Apr 10, 1995 (accompanying testimony of Margaret D. Kirkpatrick). Kirkpatrick explained that, under current law, it was unclear how “multiple provisions of different zon­ ing ordinances and comprehensive plans come into play when you have a large linear facility” that goes through multiple zones or jurisdictions. Tape Recording, Senate Committee on Agriculture, Natural Resources and Environment, SB 951, Apr 10, 1995, Tape 70, Side A. Tracks 2 and 3 appear to be a compromise that requires the council to consider the applicable substantive criteria when the pro­ posed facility does not pass through more than one jurisdiction or more than three land use zones but allows the council to elect to apply only the statewide Cite as 372 Or 194 (2024) 221 to the proposed amendments and, in a section-by-section analysis of SB 951, explained that the proposed amendments “allow the [council] to evaluate the land use impacts of a facility under the statewide planning goals rather than local land use criteria if: (i) the relevant local government fails to provide [the council] with the applicable local cri­ teria; (ii) [the council] finds that one or more of the local criteria are not met; or (iii) the facility passes through more than one jurisdiction or more than three zoning districts in one jurisdiction.” Exhibit E, House Legislative Rules Committee, SB 951, May 17, 1995 (DOE section-by-section analysis of SB 951). In addition, in a memorandum submitted with that section- by-section analysis, a lawyer for DOE stated that “[t]he existing [land use] system is maintained, except that the council is authorized—but not required—to apply the state­ wide land use goals directly (rather than applying the appli­ cable substantive criteria from the local government)” in the three circumstances set out above. Id. (memorandum of Assistant Attorney General Meg Reeves).19 The legislative history pertaining to the 1995 amendments, therefore, confirms that the legislature intended to allow the council to apply the statewide plan­ ning goals rather than the local applicable substantive criteria for a proposed facility that does not comply with one or more of the applicable substantive criteria. In addi­ tion, nothing in the legislative history suggests that the 1995 legislature intended the phrase “shall apply” to have a different meaning than it had in the 1993 version of the statute. planning goals for a facility that does pass through more than one jurisdiction or more than three land use zones. However, the legislative history does not shed light on precisely what the legislature intended in using the words “must be eval­ uated” in ORS 469.504(1)(b)(B) and “elects to evaluate” in ORS 469.504(1)(b)(C). 19  Subsequent amendments did not change the statute in any material way. In 1997, the legislature moved the provisions governing the council’s determina­ tion of a proposed facility’s compliance with statewide planning goals, without substantive change, from former ORS 469.503 (1993) to 469.504. See Or Laws 1997, ch 428, § 5; Exhibit F, Senate Livability Committee, HB 3283, May 13, 1997 (section-by-section analysis of HB 3283). ORS 469.504 was subsequently amended in 1999, 2001, 2003, and 2005 in ways that do not affect our analysis of this case. 222 Umatilla County v. Dept. of Energy E.  Umatilla County Has Not Shown that the Proposed Facility Fails to Comply with the Applicable Statewide Planning Goals. We turn to address Umatilla County’s final argu­ ment: that the council erred in concluding that the proposed facility “otherwise compl[ies] with the applicable state­ wide planning goals.” Umatilla County argues that Goal 2 applies to the proposed facility and “requires that all state agency actions respecting land use comply with the compre­ hensive plans of local governments,” and that includes their implementing ordinances. It follows, according to Umatilla County, that the facility’s failure to comply with Criterion 3 necessarily means that it does not comply with Goal 2.20 The county’s argument is untenable. It is true that Goal 2 states that, in general, state agency plans and actions “shall be consistent with the comprehensive plans of cities and counties.” OAR 660-015-0000(2). However, a dis­ tinct statutory scheme sets out the specific powers and obli­ gations of the council. Those powers include the authority to take an exception to any of the statewide planning goals when considering approving a proposed energy facility if the council deems such an exception justified. ORS 469.504 (1)(b)(B), (C); ORS 469.504(2). Moreover, under ORS 469.504(6), the council is expressly exempted from ORS 197.180(b), which otherwise provides that state agencies shall “carry out their planning duties, powers and responsibilities and take actions that are authorized by law with respect to pro­ grams affecting land use *  *  * [i]n a manner compatible with acknowledged comprehensive plans and land use regula­ tions.” Finally, ORS 469.504(7) provides that “each affected local government shall amend its comprehensive plan and land use regulations as necessary to reflect the decision of the council pertaining to a site certificate or amended site certificate.” Thus, it is the local government’s comprehen­ sive plan that must ultimately conform to a council siting decision—not the other way around. Taken together, those statutes demonstrate that the legislature has devised a 20  Goal 2 is “[t]o establish a land use planning process and policy framework as a basis for all decision[s] and actions related to use of land and to assure an adequate factual base for such decisions and actions.” OAR 660-015-0000(2). Cite as 372 Or 194 (2024) 223 specific plan for the siting of energy facilities that controls over the more general requirements of Goal 2. Accordingly, we reject Umatilla County’s argument that the council erred in concluding that the proposed facility “does other­ wise comply with the applicable statewide planning goals.” III.  CONCLUSION To summarize, based on our analysis of the text, context, and legislative history of ORS 469.504(1)(b)(B) and (5), we conclude that the legislature intended ORS 469.504(1)(b)(B) to apply to track 2. In other words, we con­ clude that, in enacting ORS 469.504(1)(b)(B), the legislature intended to allow the council to evaluate a proposed facility that does not pass through more than three land use zones against a local government’s applicable substantive criteria and to approve a site certificate for it even if the facility does not comply with all of the applicable substantive criteria, if it determines that the facility does otherwise comply with applicable statewide planning goals. Thus, we conclude that compliance with local land use regulations is one way for a facility to demonstrate compliance with statewide planning goals, but it is not the only way. If a facility does not com­ ply with all applicable local land use criteria, then, under ORS 469.504(1)(b), compliance with the statewide planning goals themselves is also a sufficient basis for the council’s approval of a site certificate. The final order of the Energy Facility Siting Council is affirmed.

0a45b8c40b3c6a5ea1344c282b05305e129c32f2739162e1fa8b789961f1f935

2024-04-18T00:00:00Z

cdcad3d9-2d75-49c3-a494-af0ce46074ab

Brown v. Kotek

S071034

oregon

Oregon Supreme Court

260 May 8, 2024 No. 13 IN THE SUPREME COURT OF THE STATE OF OREGON TERRI LEE BROWN, Plaintiff, v. TINA KOTEK, Governor of the State of Oregon; Nichole Brown, Superintendent, Coffee Creek Correctional Facility; and Tasha Petersen, Administrator of Oregon Department of Corrections Offender Information Sentence Computation Unit, Defendants. (SC S071034) En Banc Original proceeding in habeas corpus. Argued and submitted May 2, 2024. Steven T. Wax, Oregon Justice Resource Center, Portland, argued the cause for plaintiff. Julia Yoshimoto, Oregon Justice Resource Center, Portland, filed the petition, the memorandum in support of the petition, and the reply for plaintiff. Also on those filings was Malori Maloney. Kirsten Naito, Assistant Attorney General, Salem, argued the cause for defendants. Paul L. Smith, Deputy Solicitor General, Salem, filed the memorandum in opposi­ tion. Also on the memorandum were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. GARRETT, J. It is hereby ordered that plaintiff immediately be dis­ charged from her illegal imprisonment. Pursuant to ORAP 1.20(5) and notwithstanding ORAP 9.25 and ORAP 14.05 (3)(b), the State Court Administrator shall issue the appel­ late judgment immediately. Cite as 372 Or 260 (2024) 261 262 Brown v. Kotek GARRETT, J. Plaintiff has petitioned for a writ of habeas corpus, requesting that this court exercise its original jurisdiction and order her immediate release from prison. Or Const, Art VII (Amended), § 2 (“[T]he supreme court may, in its own discretion, take original jurisdiction in *  *  * habeas corpus proceedings.”).1 Plaintiff is incarcerated as the result of an order of Governor Tina Kotek that revoked an earlier condi­ tional commutation of one of plaintiff’s sentences.2 Plaintiff had received that earlier commutation in December 2020 from then-Governor Kate Brown and finished serving all of her sentences in February 2023. Governor Kotek’s order of revocation issued in December 2023. For the reasons explained in this opinion, we conclude that, because plaintiff had finished serving all of her sentences when the Governor revoked the conditional commutation, the Governor lacked authority, under the terms of the commutation, to issue the revocation. We also reject the state’s argument that plaintiff waived her right to challenge her present imprisonment. Plaintiff’s imprisonment is unlawful. Accordingly, we order that she immediately be discharged from custody. FACTUAL AND PROCEDURAL BACKGROUND The relevant facts are procedural and uncontested.3 Plaintiff pleaded guilty to two counts of mail theft or receipt of stolen mail. ORS 164.162. On Count 1, she was sentenced to 30 months of incarceration and 24 months of post-prison supervision (PPS). On Count 2, she was sentenced to 30 months of incarceration, consecutive to Count 1, and no 1  See also ORS 34.310 (providing that every person who is “imprisoned or otherwise restrained of liberty,” with exceptions, “may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom”). 2  Defendants are Governor Kotek, the Superintendent of Coffee Creek Correctional Facility (where plaintiff is currently in custody), and the Administrator of the Oregon Department of Corrections Offender Information Sentence Computation Unit. Throughout this opinion, individual defendants are referred to by name, and defendants collectively are referred to as “the state.” 3  Throughout this opinion, we refer to various dates and time periods regard­ ing plaintiff’s convictions and sentences. Those dates and time periods were likely determined based on a variety of considerations. In all events, because those dates and periods are undisputed, we need not—and do not—explain how they were determined. Cite as 372 Or 260 (2024) 263 PPS. As of December 2020, plaintiff’s term of incarcera­ tion was set to be completed in August 2021. That is, she had approximately eight months of incarceration remaining before being released to serve 24 months of PPS. In December 2020, Governor Brown issued com­ mutations of sentences in connection with the COVID-19 pandemic. In plaintiff’s case, Governor Brown ordered a “Conditional and Revocable Commutation of Sentence.” The commutation order stated that, as to Count 2, plaintiff was “scheduled to complete her term of incarceration on August 22, 2021.” The Governor then commuted the remaining term of incarceration “from incarceration to post-prison supervi­ sion.” The commutation was subject to a variety of condi­ tions, including that (1) “[f]rom the effective date of [the] order through the end of her [PPS] calculated to August 22, 2021, [plaintiff] shall not violate any state or federal law”; (2) the commutation order “[did] not relieve [plaintiff] of [PPS]”; (3) plaintiff shall “agree to, and abide by, the terms speci­ fied in the Agreement Accepting Conditional and Revocable Commutation” (hereinafter, the acceptance agreement); and (4) if the Governor, in her judgment, should determine that plaintiff “has violated any of the conditions of this conditional and revocable commutation,” or that plaintiff’s “continued release in the community no longer serves the interests of the State of Oregon,” the “commutation may be revoked, at which time [plaintiff] shall be returned to prison to serve out her sentence that was remaining at the time this commutation was granted according to the terms of the Judgment of Conviction.” The acceptance agreement stated that “the Governor [was] willing to grant a commutation to [plaintiff] only as provided in this agreement[.]” Among other things, the agreement provided that (1) “[f]rom the effective date of the [commutation order] through August 22, 2021, [plaintiff] shall not violate any state or federal law”; and (2) plain­ tiff “shall abide by the terms and conditions of any post- prison supervision that is imposed in connection with the conditional and revocable commutation and her Judgment of Conviction.” The agreement included a waiver provi­ sion, stating that plaintiff waived any legal challenges to 264 Brown v. Kotek future revocation of the commutation and to being returned to prison, including through a petition for a writ of habeas corpus: “If the Governor of the State of Oregon should determine in his or her sole judgment that [plaintiff] has violated any of the conditions of this conditional and revocable commu­ tation, the Governor may revoke such commutation and require that [plaintiff] return to prison to serve out her sentence that was remaining at the time her commutation was granted according to the terms of the Judgment of Conviction. [Plaintiff] hereby waives any potential objection or challenge to having the commutation revoked and being returned to prison under such a determination, including an application for a writ of habeas corpus.” (Emphasis added.) Plaintiff signed the acceptance agree­ ment, which included an acknowledgement that she had “carefully reviewed” both the agreement and the commuta­ tion order and that she “hereby agree[d] to its terms.” The Governor’s conditional commutation became effective on December 23, 2020. Plaintiff was released from prison and placed under the authority of the Board of Parole and Post-Prison Supervision (BOPPS) to serve her PPS. In May 2021—approximately four months after her release from prison—plaintiff pleaded no contest to violat­ ing a general condition of her PPS (i.e., that she “[o]bey all laws, municipal, county, state, and federal”). A hearings officer found her in violation of her PPS, and a 30-day jail sanction was imposed. The parties do not dispute that plain­ tiff’s conduct constituted a violation of the conditions of her commutation. Other than the imposition of the sanction, we are unaware of any other actions being taken at that point. Almost two years later, in February 2023, BOPPS issued a “Certificate of Supervision Expiration,” stating that plaintiff had “completed the period of post-prison supervision imposed, and *  *  * is expired from supervision.” In other words, plaintiff had fulfilled her PPS obligations and was no longer subject to any sentence. The state does not dispute that point. In February 2024, approximately one year after BOPPS issued its certificate of supervision expiration, Cite as 372 Or 260 (2024) 265 plaintiff was arrested and sent to Coffee Creek Correctional Facility. According to plaintiff, several days after her arrest, she learned that her commutation had been revoked. The record reflects that Governor Kotek had issued an order in December 2023, stating that she had “determined in [her] sole judgment that [plaintiff had] violated conditions of [the] Conditional and Revocable Commutation of Sentence.” A warrant was issued for plaintiff’s arrest, leading to her present imprisonment. Thereafter, plaintiff filed a petition for a writ of habeas corpus in this court, contending that she is unlaw­ fully incarcerated. Her petition was accompanied by a sup­ porting memorandum in which she argues that Governor Kotek’s revocation of her earlier conditional commutation violates a variety of state and federal constitutional princi­ ples, including that the Governor lacks authority to revoke a commutation after the expiration of a sentence. In response to our order requiring the state to show cause why a writ of habeas corpus should not issue, the state filed memoranda contending that (1) the Governor had authority to revoke plaintiff’s commutation after her sentence had expired; (2) plaintiff, in accepting Governor Brown’s conditional commutation, had waived her right to seek habeas relief or otherwise challenge the revocation; and (3) plaintiff’s con­ stitutional challenges are meritless. Plaintiff counters that the purported waiver in the acceptance agreement that she signed is invalid or otherwise unenforceable. After considering those filings, the court allowed plaintiff’s petition and issued a writ of habeas corpus, and then heard oral argument on May 2. Having now considered the parties’ filings and their oral arguments, we conclude that, when the Governor revoked plaintiff’s conditional com­ mutation, she lacked the authority to do so under the terms of the commutation. ANALYSIS The Governor has the constitutional authority to grant clemency, including commutations. Specifically, Article V, section 14, of the Oregon Constitution provides, in part: 266 Brown v. Kotek “[The Governor] shall have power to grant reprieves, com­ mutations, and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law. Upon conviction for treason [the Governor] shall have power to suspend the execution of the sentence until the case shall be reported to the Legislative Assembly, at its next meeting, when the Legislative Assembly shall either grant a pardon, commute the sentence, direct the execution of the sentence, or grant a farther [sic] reprieve.” The Governor is the “sole repository” of this consti­ tutional authority. Eacret et ux v. Holmes, 215 Or 121, 126, 333 P2d 741 (1958). In exercising her authority, however, “the Governor is responsible for determining the constitutional­ ity of [her] actions in the first instance, and, to the extent that this court may review those actions, the court does so with that consideration in mind.” Haugen v. Kitzhaber, 353 Or 715, 720, 306 P3d 592 (2013), cert den, 571 US 1167 (2014) (citing Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 478-79, 753 P2d 939 (1988)); see Lipscomb, 305 Or at 478-79 (“Governors, legislators, and other public officials are responsible in the first instance for determining their con­ stitutional duties[.]”). However, as we explained in Haugen, that principle “does not exempt the Governor’s actions from judicial review.” 353 Or at 720. In so explaining, we relied on Lipscomb, in which the court had declined to adopt an argument that the court should defer to a Governor’s under­ standing of her constitutional powers if arguably correct. Id. Thus, although this court does not have a role in reviewing a governor’s exercise of discretion either to grant or to revoke a conditional commutation, we can review whether the revo­ cation of plaintiff’s commutation exceeded the Governor’s authority under these circumstances—when plaintiff was no longer subject to any sentence at all. For reasons that we will explain, even assuming (without deciding) that the state and federal constitutions permit a Governor to revoke a commutation after a commutee’s sentence has expired, we conclude that the terms of the conditional commutation in this case—which represents an agreement between the Governor and plaintiff—preclude that result. The Governor’s plenary power includes the power to grant unconditional forms of clemency that require no Cite as 372 Or 260 (2024) 267 assent by the commutee. Haugen, 353 Or at 739, 743 (con­ cluding that an unconditional reprieve was “valid and effective, regardless of [the recipient’s] acceptance of that reprieve”). Here, however, Governor Brown exercised her plenary power through the issuance of a conditional com­ mutation order. In exchange for plaintiff having her remain­ ing term of incarceration commuted to post-prison supervi­ sion, the Governor required plaintiff to agree to be bound by the acceptance agreement. In other words, the Governor structured the exercise of her clemency power as something akin to a contractual arrangement that required plaintiff’s acceptance.4 As pertinent here, the acceptance agreement required that plaintiff “abide by the terms and conditions of any post-prison supervision that is imposed in connection with the conditional and revocable commutation and her Judgment of Conviction.” The text of the agreement thus reflects that the Governor chose to incorporate the statu­ tory and regulatory PPS framework. The state acknowl­ edges as much in this court, stating that, when plaintiff was released, “[s]he was placed on community supervision under the authority of [BOPPS].” See OAR 213-005-0003 (“When a term of post-prison supervision is imposed as part of a sentence, the offender shall serve the term of supervision in the community under the supervision of the Department of Corrections or a corrections agency designated by the Department.”). And the record reflects that, when plain­ tiff was alleged to have violated the conditions of her PPS during the term of her supervision, a hearings process was quickly initiated, plaintiff pleaded no contest and was found in violation by a hearings officer, and she received a 30-day jail sanction. See OAR ch 255, div 75 (describing procedures for addressing alleged violations of PPS). The acceptance agreement also included a provi­ sion, similar to the one in Governor Brown’s conditional commutation, which provided that the Governor “may” revoke the commutation if the Governor determined, in her 4  Given the circumstances of this case, where Governor Brown chose to require plaintiff’s acceptance of the conditions in the commutation, we need not—and do not—decide whether the Governor’s plenary power includes the authority to impose conditions without a commutee’s consent. 268 Brown v. Kotek discretion, that plaintiff had violated one of its conditions, which would lead to plaintiff being required to “return to prison to serve out her sentence that was remaining at the time her commutation was granted according to the terms of the Judgment of Conviction.” Before this court, the state takes the broad and categorical position that, even though plaintiff’s sentence had expired before her commutation was revoked, the revocation provision allows any Governor—at any time during plaintiff’s natural life—to revoke the com­ mutation and return her to prison upon a determination that she violated the terms of the commutation while she had been under supervision. As the state acknowledged at oral argument, under its interpretation, revocation could occur 50 years after plaintiff’s sentence had expired, result­ ing in her arrest and imprisonment at that time. However, the state’s argument is inconsistent with the Governor’s express incorporation of PPS—which is cir­ cumscribed by a statutory and regulatory framework—into the terms of the commutation order and plaintiff’s accep­ tance agreement. PPS is a “term of community supervi­ sion.” OAR 213-005-0002(1) (emphasis added). That term is determinate. See ORS 144.103 (providing for duration of PPS); OAR 213-005-0002(2)(a) (same). Offenders5 are required to “serve the term of supervision.” OAR 213-005- 0003 (emphasis added). If an offender is alleged to have violated a condition of PPS, then, during the term of super­ vision, the offender may be arrested and a hearing is initi­ ated to determine if the offender violated the condition. See ORS 144.350(1)(a)(A) (providing that a supervisory author­ ity “may order the arrest and detention of any person then under the supervision, custody or control” of the supervisory authority if there are “reasonable grounds to believe” that the person has “[v]iolated the conditions of *  *  * post-prison supervision” (emphasis added)). The initiation of a hear­ ing means that a “person under supervision is presented a Notice of Rights.” OAR 255-075-0001(3) (emphasis added); see also OAR 255-075-0005(3) (providing that, generally, 5  See OAR 255-005-0005(39) (defining “offender” as “[a]ny person under the supervision of the Department of Corrections or a local supervisory authority who is not presently in the custody of a correctional facility, including persons on *  *  * post-prison supervision”). Cite as 372 Or 260 (2024) 269 “the Sanction Authority shall impose administrative sanc­ tions or shall initiate a hearing within fifteen (15) days of arrest or detention for the violation of parole or post-prison supervision conditions”). Once initiated, jurisdiction over the offender is retained until the proceedings are resolved. See OAR 255-094-0020(1) (“During the pendency of vio­ lation proceedings, *  *  * the Releasing Authority retains jurisdiction over the offender until the proceedings are resolved.”). If an offender is found to have violated the con­ ditions of PPS after the hearing, or if the offender waives the right to a hearing, administrative sanctions may be imposed or PPS may be revoked. See OAR 255-075-0067 (describing authority to impose administrative sanctions or revoke supervision). Ultimately, a term of PPS ends and the sentence expires. See OAR 255-094-0020(3) (“After expira­ tion of the sentence of an offender on *  *  * post-prison super­ vision, the Releasing Authority shall send written notice of the expiration to the offender and the supervisory author­ ity.”); see also ORS 144.085(6) (“The board shall send writ­ ten notification to the supervised offender of the expiration of the sentence.”). Thus, the PPS framework imposes a temporal limit on the authority to sanction or revoke an offender’s post- prison supervision for a violation of a condition: As a general proposition, violation proceedings must be initiated while the offender is under supervision (i.e., before the offender’s sentence has expired) and not after the term of supervi­ sion has ended and the offender is no longer subject to any sentence. See ORS 144.350(1)(a)(A) (providing that, if there are “reasonable grounds to believe” that the person has “[v]iolated the conditions of *  *  * post-prison supervision,” a supervisory authority “may order the arrest and detention of any person then under the supervision, custody or control” of the supervisory authority (emphasis added)); OAR 255- 075-0001(3) (providing that a hearing is initiated when a “person under supervision is presented a Notice of Rights” (emphasis added)). By specifying that plaintiff was obligated to serve PPS, which is governed by a statutory and regulatory scheme, her conditional commutation—together with the acceptance 270 Brown v. Kotek agreement to which she was bound—incorporated the gen­ eral principle that the authority to sanction an offender for a PPS violation, or to revoke the offender’s PPS altogether, is time-limited and must be initiated before the offender’s PPS term ends and while the offender remains subject to a sentence. In this case, although the commutation and the agreement clearly stated that the Governor, in her sole dis­ cretion, could revoke the commutation for a violation of its conditions, there is no indication that the authority to revoke would survive the expiration of plaintiff’s sentence. Nor is there any indication that, contrary to the ordinary applica­ tion of the statutes and rules governing PPS, plaintiff would face the prospect of revocation and future imprisonment for the remainder of her life. Thus, by requiring plaintiff to serve PPS, and without clearly expressing an intent to depart from the temporal limitations that otherwise apply to PPS, the Governor limited her own ability, and the ability of any future holder of that office, to revoke the commutation to the period of time before plaintiff’s PPS had ended and her sentence had expired. Here, it is undisputed that, in February 2023, BOPPS issued its certificate stating that plaintiff had “com­ pleted the period of post-prison supervision imposed” and that she was “expired from supervision.” At that point, plain­ tiff was no longer subject to any sentence. Accordingly, when the Governor revoked plaintiff’s commutation in December 2023, she lacked the authority to do so under the terms of the December 2020 order of conditional commutation.6 We emphasize that the foregoing conclusion is a function of the way in which we understand Governor Brown to have structured plaintiff’s conditional commutation. The parties’ dispute before this court has focused on whether the state and federal constitutions permit the Governor to revoke a commutation following the expiration of a sentence. That is a difficult question of first impression in Oregon, and one on which other state courts have reached competing 6  Because it is undisputed in this case that plaintiff was not subject to any sentence when the Governor revoked her conditional commutation, we need not— and do not—decide the precise point at which the Governor’s authority to revoke plaintiff’s conditional commutation of sentence ended. Cite as 372 Or 260 (2024) 271 conclusions.7 But we need not resolve that question today, because, even assuming that such authority exists, we conclude that the December 2020 commutation order and the acceptance agreement are self-limiting. By specifying that plaintiff was obligated to serve PPS, without expressly reserving the right of the Governor to revoke the commuta­ tion even after plaintiff’s sentence had expired, the commu­ tation and acceptance agreement preclude that authority. That conclusion does not fully resolve this matter. The state alternatively contends that plaintiff waived her right to seek habeas relief and to challenge both Governor Kotek’s revocation and her current imprisonment. It is true that the acceptance agreement includes a broadly worded waiver of plaintiff’s rights. Plaintiff contests the validity of that waiver, asserting, among other things, that the process resulting in her acceptance of the commu­ tation was “rushed” and that the implications of the waiver were never explained to her; thus, she did not knowingly and voluntarily agree to waive her right to challenge the Governor’s revocation, or her current imprisonment, or her right to seek habeas corpus under the circumstances. In this case, however, we conclude that it is unnec­ essary to address those points. That is because, even if we assume that plaintiff effected a valid waiver of some kind, we decline to read the text of this waiver as broadly as the state’s argument requires. The waiver provision can be interpreted in a manner consistent with the ordinary understanding of the PPS framework described above—i.e., that plaintiff was waiving the right to challenge a revocation that was initiated before the expiration of her sentence. By taking the position that plaintiff forfeited the ability to challenge a revocation that was ordered even after the completion of her sentence, the state would have us conclude that plaintiff, in 7  Compare Rowell v. Dutton, 688 SW2d 474, 477 (Tenn Crim App 1985) (“Thus we hold that the Governor’s authority to revoke exists only so long as the commutee’s sentence has not expired. Any other result would mean that the Governor and his successors in office would retain the power to revoke a commu­ tation throughout the balance of a commutee’s life, regardless of the offense, and could lead to absurd results.”), with Beal v. Mayo, 70 So 2d 367, 368 (Fla 1954) (“[R]ecommitment for breach of condition is proper notwithstanding the fact that the period of original sentence has expired when the conditional pardon is revoked.”). 272 Brown v. Kotek exchange for being released from prison eight months early, chose not only to accept the risk of future imprisonment for a violation of the conditions of the commutation—without process or the right of judicial review—but to run that risk for the remainder of her life. Even assuming that a choice of such gravity by a commutee could be enforceable—a ques­ tion we do not decide—we would require it to be expressed with the utmost clarity. The acceptance agreement in this case does not meet that standard. See State v. Meyrick, 313 Or 125, 131, 831 P2d 666 (1992) (observing that courts “are reluctant to find that fundamental constitutional rights have been waived”). Accordingly, under the circumstances of this case, we conclude that Governor Kotek lacked authority to revoke plaintiff’s conditional commutation and that, as a result, plaintiff’s present imprisonment is unlawful. We order defendants to discharge plaintiff from custody immediately. See ORS 34.700(1) (“If it appears that the party detained is imprisoned or restrained illegally, judgment shall be given that the party be discharged forthwith[.]”). We further waive otherwise applicable appellate rules relating to recon­ sideration and the issuance of the appellate judgment, and we direct the State Court Administrator to issue the appel­ late judgment immediately. See ORAP 1.20(5) (permitting the court, for good cause and on its own motion, to waive any rule of appellate procedure); ORAP 9.25 (providing for reconsideration); ORAP 14.05(3)(b) (providing for the timing of the issuance of the appellate judgment).8 It is hereby ordered that plaintiff immediately be discharged from her illegal imprisonment. Pursuant to ORAP 1.20(5) and notwithstanding ORAP 9.25 and ORAP 14.05(3)(b), the State Court Administrator shall issue the appellate judgment immediately. 8  ORS 34.700(2) provides that a court “shall include in the judgment an order that the defendant pay the attorney fees incurred by the petition, not to exceed $100,” if “[t]he court enters a judgment requiring that the plaintiff be discharged” and “[t]he court finds that the allegations or defenses in the return were frivo­ lous.” Under the circumstances, we do not find that the state’s position was frivo­ lous. For that reason, plaintiff is not entitled to attorney fees under the statute.

482e1697163d5c07c2594c12aaa8f5bdc0bb5bf0267f739adac8d0dc02de0448

2024-05-08T00:00:00Z

c538e96c-943b-4af3-83e9-4c6ba98c5929

Sizemore v. Myers

S48863

oregon

Oregon Supreme Court

FILED: NOVEMBER 8, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON BILL SIZEMORE, Petitioner, v. HARDY MYERS, Attorney General, Respondent. (SC S48863) En Banc On petition to review ballot title. Submitted on the record October 10, 2001. Gregory W. Byrne, Portland, filed the petition for petitioner. Janet A. Metcalf, Assistant Attorney General, filed the answering memorandum for respondent. With her on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. PER CURIAM Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(11). In this ballot title review proceeding, petitioner challenges the "no" vote result statement of the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State has denominated as Initiative Petition 95 (2002). We review the Attorney General's certified ballot title to determine whether it complies substantially with the requirements of ORS 250.035(2)(a) to (d). ORS 250.085(5) (setting out standard of review). We have considered petitioner's argument and conclude that it is not well taken. Accordingly, we certify to the Secretary of State the following ballot title for the proposed measure: AMENDS CONSTITUTION: ALLOWS INITIATIVE, REFERENDUM SIGNERS TO PREVENT SALE OF THEIR PETITION SIGNATURES; CREATES IMPLEMENTING, ENFORCEMENT PROVISIONS. RESULT OF "YES" VOTE: "Yes" vote allows signers to prevent sale, barter, exchange of their signatures on initiative, referendum petitions; creates implementing, enforcement provisions; requires minimum fine for violation. RESULT OF "NO" VOTE: "No" vote rejects creation of constitutional right allowing signers to prevent the sale, barter or exchange of their signatures on initiative or referendum petitions. SUMMARY: Amends Constitution. Allows signers to prevent their signatures on initiative, referendum petitions from being sold, bartered or exchanged for anything of value. Secretary of State shall not approve any petition for circulation unless petition clearly indicates signer's right not to have signature sold, bartered, exchanged, and gives signers opportunity to make that choice. If signer refuses permission, no person or entity may directly or indirectly pay for obtaining that signature or transmitting it to Secretary. Requires minimum $250 fine per occurrence; each unlawful sale of signature is separate occurrence. Does not prohibit payment for signature gathering by hour or on salary where amount of payment is not determined directly or indirectly by number of signers who have chosen not to have signatures sold, bartered, exchanged. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(11).

a629911b66415424b02c41c9c525abd61ee3ae77e8c200aa5749455eaa08ce92

2001-11-08T00:00:00Z

ae42df77-4fc6-4500-b2d7-47d8e8d1cf3f

Brown v. GlaxoSmithKline, LLC

S070082

oregon

Oregon Supreme Court

No. 11 May 2, 2024 225 IN THE SUPREME COURT OF THE STATE OF OREGON PROVIDENCE HEALTH SYSTEM - OREGON, Petitioner on Review, v. Thomas BROWN, Respondent on Review, and Maria Del Carmen Espindola GOMEZ, Respondent on Review. (CC 15CV23066) (CA A169544) (SC S070082) En Banc On review from the Court of Appeals.* Argued and submitted November 9, 2023. David R. Fine, K&L Gates LLP, Harrisburg, Pennsylvania, argued the cause and filed the briefs for peti- tioner on review. Also on the briefs were Elizabeth H. White, K&L Gates, LLP, Portland, and Robert B. Mitchell, K&L Gates, LLP, Seattle, Washington. Travis Eiva, Eiva Law, Eugene, argued the cause and filed the brief for respondents on review. Hillary A. Taylor, Keating Jones Hughes, P.C., Portland, filed the brief for amicus curiae Oregon Association of Hospitals and Health Systems. Keith J. Bauer, Parks, Bauer, Sime, Winkler & Walker, LLP, Portland, filed the brief for amicus curiae Salem Health Hospitals & Clinics. Also on the brief was Michael Walker. Shayna M. Rogers, Cosgrave Vergeer Kester, LLP, Portland, filed the brief for amici curiae Oregon Medical Association and American Medical Association. ______________ *  Appeal from Multnomah County Circuit Court, Gregory F. Silver, Judge. 323 Or App 214, 523 P3d 132 (2022). 226 Brown v. GlaxoSmithKline, LLC David W. Cramer, MB Law Group, LLP, Portland, filed the brief for amicus curiae Oregon Association of Defense Counsel. Sage R. Vanden Heuvel, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, filed the brief for amici curiae The Chamber of Commerce of the United States of America and The Oregon Liability Reform Coalition. Kristi Gifford, Callahan Law Office, Milwaukie, filed the brief for amicus curiae Oregon Trial Lawyers Association. Also on the brief was Kirc Emerson, Richardson Wang, LLP, Portland. FLYNN, C.J. The decision of the Court of Appeals is affirmed. The judg- ment of the trial court is reversed, and the case is remanded to the trial court for further proceedings. Cite as 372 Or 225 (2024) 227 FLYNN, C.J. The Oregon legislature long ago codified a rule of strict product liability that applies to “[o]ne who sells” an unreasonably dangerous, defective product, if the seller is “engaged in the business of selling” such a product. ORS 30.920(1). At issue in this case is whether that statute applies to a hospital that supplies and administers a drug that causes harm. The trial court concluded that the stat- ute was inapplicable under those circumstances and, on that basis, granted the hospital-defendant’s motion for sum- mary judgment. The Court of Appeals disagreed with the trial court’s construction of the statute and reversed and remanded. Brown v. GlaxoSmithKline, LLC, 323 Or  App 214, 523 P3d 132 (2022). This court allowed review, and we now affirm the decision of the Court of Appeals. As we will explain, we conclude that (1) the legislature did not intend to exclude hospitals from the scope of ORS 30.920(1); (2) a hospital that supplies and administers a dangerously defec- tive drug in conjunction with providing a healthcare service can be a “seller” that is “engaged in the business of sell- ing” for purposes of liability under ORS 30.920; and, con- sequently, (3) the trial court erred in granting the motion for summary judgment. Thus, we affirm the decision of the Court of Appeals, reverse the trial court’s judgment, and remand for further proceedings. I.  BACKGROUND On review of a grant of summary judgment, this court views “all parts of the record” before the court in the light most favorable to the nonmoving party—here plain- tiffs, Brown and Gomez. Two Two v. Fujitec America, Inc., 355 Or 319, 331, 325 P3d 707 (2014); ORCP 47 C. We describe the pertinent facts consistent with that standard. Brown and Gomez are the parents of M, who suf- fered irreparable heart defects as a result of in utero expo- sure to the drug Zofran, which Providence Health System - Oregon administered to Gomez. Gomez was seven weeks pregnant with M when she went to the emergency room of Providence’s Newberg Medical Center complaining of nau- sea, vomiting, and other symptoms. A Providence emergency 228 Brown v. GlaxoSmithKline, LLC department physician evaluated Gomez and prescribed her four milligrams of injectable Zofran, which a Providence nurse administered. That prescription was fulfilled by Providence’s internal pharmacy. Because the parties do not dispute that the physician, nurse, and pharmacy’s actions are attributable to Providence, we refer to those individuals and institutions collectively as Providence. As part of her emergency department visit, Gomez signed a “Conditions for Services” form, which stated that she agreed “to pay for the services or products provided by Providence.” Providence billed Gomez specifically for the emergency room visit. Although that bill did not list a spe- cific charge for Zofran, the parties agree that Gomez was prescribed and administered Zofran as part of her emer- gency room visit for which the bill was sent. Gomez later gave birth to M, who was diagnosed with irreparable heart defects. Brown and Gomez brought suit as plaintiffs, on their own behalf and as guardians ad litem for M, against Providence, as well as against the manufacturer of Zofran.1 As pertinent to this appeal, plaintiffs asserted a claim for strict liability under ORS 30.920, alleging that Providence was a “seller” of Zofran “engaged in the business of selling Zofran and products of the kind,” that Providence “sold, distributed, vended, administered and/or supplied Zofran” to Gomez while she was pregnant with M, that Zofran was “unreasonably dangerous and defective” in multiple ways, and that, as a result of the defective condition of Zofran, M “suffers from permanent and life-threatening congenital heart defects.”2 Providence moved for summary judgment, con- tending that, as a matter of law, “[a]s a provider of health services, [Providence] is neither a seller in the business of selling Zofran injectable nor is it a distributor of Zofran,” so it could not be subject to liability under ORS 30.920. Although Providence did not dispute that it supplied and 1  Plaintiffs’ claims against the manufacturer of Zofran, GlaxoSmithKline, LLC, are not before this court. 2  Plaintiffs voluntarily withdrew an additional claim for negligent misrepre- sentation that they also had alleged against Providence. Cite as 372 Or 225 (2024) 229 administered Zofran to Gomez, it emphasized that “[t]he undisputed evidence in this case establishes plaintiff Gomez came to [Providence] not to purchase Zofran injectable or any other medication but for the provision of emergency medical services.” Providence also emphasized that it sup- plies drugs like Zofran through its in-house “institutional drug outlet” (or internal pharmacy), which—unlike a retail pharmacy—dispenses Zofran and other drugs only for phy- sicians to administer to a patient in the hospital. Providence argued that the legislature did not intend ORS 30.920 “to create a new statutory claim against hospitals for products used in the course of providing health services to patients.” The trial court agreed and granted Providence’s motion. The Court of Appeals reversed. The court concluded that “one ‘sells’ a product” within the meaning of ORS 30.920 “when one transfers ownership of the product to another in exchange for valuable consideration; a ‘seller’ is one who car- ries out such a transfer; and ‘selling’ is the act or process of such a transfer.” Brown, 323 Or App at 223. That court also construed “seller engaged in the business of selling” to mean one who “carries on commercial activity composed in part of the act of selling the product, viz., transferring ownership of the product to another in exchange for valuable consid- eration.” Id. at 223-24. Accordingly, the Court of Appeals concluded that, under the facts alleged, one could determine that “Providence was a ‘seller *  *  * engaged in the business of selling’ within the meaning of ORS 30.920” when Providence provided Zofran to Gomez for valuable consideration, and when Providence kept a stock of Zofran in its internal phar- macy for distribution to patients. Id. at 232-33. Providence then petitioned for review, which we allowed. II.  ANALYSIS Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party— here Providence—is entitled to judgment as a matter of law. ORCP 47. Here, Providence sought summary judgment on the basis that, as a matter of law, this case fails to sat- isfy two of the requirements for strict liability under ORS 230 Brown v. GlaxoSmithKline, LLC 30.920. Providence contends that it did not “sell” the Zofran to Gomez, within the meaning of ORS 30.920, because it did not transfer “the full panoply of rights attendant to owner- ship” in the dose of Zofran when it administered the drug to Gomez. Providence also contends that it is not a “seller *  *  * engaged in the business of selling” Zofran, either because the legislature did not intend the statute to apply when the “essence of the transaction” with a consumer is providing a service, or because the legislature did not intend the stat- ute to apply to hospitals. Plaintiffs disagree. They urge this court to adopt the Court of Appeals’ construction of the stat- ute and conclude that, under the plain terms of ORS 30.920, hospitals are sellers of drugs when they dispense drugs through their internal pharmacy. The parties’ arguments raise questions of stat- utory construction that we resolve by employing the ana- lytical framework set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), and modified in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Under that framework, we examine the text and context of ORS 30.920, together with legislative history to the extent that it aids our analysis, all with the “paramount goal” of determining the legislature’s intent. Gaines, 346 Or at 171-72. As we will explain, our examination of the text, con- text, and legislative history of ORS 30.920 leads us to the following conclusions about the legislature’s intent: “Sells” includes transactions of the type through which Providence both supplied and administered the Zofran to Gomez, and a hospital that charges for supplying a dangerously defective drug in conjunction with providing a healthcare service can be a “seller” that is “engaged in the business of selling” for purposes of strict liability under ORS 30.920. Accordingly, we agree with the Court of Appeals that the trial court erred in granting Providence’s motion for summary judgment. A.  Statutory Construction 1.  Text and context Plaintiffs’ strict liability claim is governed by ORS 30.920. As pertinent, that statute describes the require- ments for strict products liability in Oregon: Cite as 372 Or 225 (2024) 231 “(1)  One who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer or to the property of the user or consumer is subject to lia- bility for physical harm or damage to property caused by that condition, if: “(a)  The seller or lessor is engaged in the business of selling or leasing such a product.” The statute also specifies how questions about those require- ments should be resolved: “(3) It is the intent of the Legislative Assembly that the rule stated in subsections (1) and (2) of this section shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965).” We turn first to the parties’ dispute over the meaning of the terms “sells,” and “seller,” neither of which is defined, before addressing what it means to be “engaged in the busi- ness of selling.” When determining what the legislature intended an undefined statutory term to mean, “it is helpful to understand” how the term was used when the legislature enacted the statute. Marshall v. PricewaterhouseCoopers, LLP, 371 Or 536, 540, 539 P3d 766 (2023). If the term is one of common usage, we generally presume that the legislature intended the ordinary meaning of the term, for which we often consult contemporaneous dictionaries. Id. at 540-41; see also Comcast Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768 (2014) (observing that “we frequently consult dictio- nary definitions of the terms, on the assumption that, if the legislature did not give the term a specialized definition, the dictionary definition reflects the meaning that the legisla- ture would naturally have intended”); id. at 296 n 7 (noting that this court relies on dictionaries “contemporaneous with the enactment of the statute”). “But if the context or legislative history of a statute indicate that the legislature intended a term to have a mean- ing drawn from a specialized trade or field, so-called terms of art, we consider the meaning and usage of those terms in the discipline from which the legislature borrowed them.” Marshall, 371 Or at 541 (internal quotation marks omitted). And for terms drawn from the legal field, we often look, “for starters at least,” to contemporaneous legal dictionaries to 232 Brown v. GlaxoSmithKline, LLC determine what specialized meaning the legislature may have intended. Id. (internal quotation marks omitted). The Court of Appeals looked to a dictionary of common usage to determine the “ordinary meaning” that the legislature presumably intended for all of the disputed terms. See 323 Or App at 223 (quoting Webster’s Third New Int’l Dictionary (unabridged ed 2002)). But, as our discus- sion in Marshall cautions, some terms of common usage also are used as terms of art in the context of a specialized field, such as the legal field. Id. at 542. And when a statute uses such terms, consulting both ordinary usage and contem- poraneous legal dictionaries can supply a helpful starting point to understand how the legislature intended to use the term. See id. at 542-43 (considering definitions in both ordi- nary and legal dictionaries to determine the legislature’s intended meaning for terms “injury” and “property”). a.  “Sells” and “seller” The term “sell”—the root of both “sells” and “seller”—is a term of common usage that sometimes is used as a term of art in the legal field, but both common-usage dictionaries and legal dictionaries identify a similar range of meanings, including simply an act of transferring prop- erty to another for consideration. At the time that the leg- islature enacted ORS 30.920, common usages of the term “sell,” included “to give up (property) to another for money or other valuable consideration,” to “hand over or transfer title (as goods or real estate) for a price,” “to offer for sale,” and “to give up in return for something else.” Webster’s Third New Int’l Dictionary 2061 (unabridged ed 1976);3 Webster’s Collegiate Dictionary 786 (7th ed 1970). And as a legal term of art, “sell” was defined as simply “[t]o dispose of by sale.” See Black’s Law Dictionary 1220 (5th ed 1979) (defining “sell”). 3  An advantage in consulting definitions set out in Webster’s Third New Int’l Dictionary to understand how the legislature would have understood the words that it uses in statutes—and one reason that this court consults that dictionary so frequently—is that, unlike other dictionaries, which set out to prescribe the “  ‘correct’ usage” for words, Webster’s “is a dictionary with a ‘descriptive’ focus, reporting ordinary usage.” Kohring v. Ballard, 355 Or 297, 304 n 2, 325 P3d 717 (2014). Cite as 372 Or 225 (2024) 233 Definitions of the term “sale,” in turn, referred to a broad range of transactions. As a term of common usage, “sale,” referred (somewhat circularly) to “the act of selling” and also more particularly to “a contract transferring the absolute or general ownership of property from one person or corporate body to another for a price.” Webster’s at 2003 (unabridged ed 1976); see also Webster’s Collegiate at 759 (defining “sale” as “the act of selling” and also “the trans- fer of ownership of and title to property from one person to another for a price”). The definitions of “sale” as a legal term of art were extensive, but included both broad references to the “[t]ransfer of property for consideration either in money or its equivalent” and “[a]n agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.” Black’s at 1200. Those definitions, collectively, suggest that the legislature enacted ORS 30.920 with the intent that one who “sells” or is a “seller” of a product could include anyone who transfers the product to another in exchange for money or other valu- able consideration.4 Providence, nevertheless, urges this court to pre- sume that the legislature intended “sell” for purposes of ORS 30.920 to incorporate the legal definition of “ownership”—as meaning the “[c]ollection of rights to use and enjoy prop- erty, including the right to transmit it to others,” Black’s at 997—or the definition of “sale” that appears in Oregon’s Uniform Commercial Code, which specifies that, “[i]n this chapter, unless the context otherwise requires *  *  * [a] ‘sale’ consists in the passing of title from the seller to the buyer for a price.” ORS 72.1060(1). From those definitions, Providence concludes that it did not “sell” the Zofran that it supplied and administered to Gomez, because a patient in that con- text does not acquire the right to “use the medication as she 4  Our statement that the term “sells” includes an exchange for valuable con- sideration accommodates some contextual indications that the legislature may have intended that liability under ORS 30.920 would not be contingent on a con- sumer purchasing the product. See Restatement (Second) of Torts § 402A comment l (1965) (explaining that, for the rule of strict product liability to apply, “[i]t is not even necessary that the consumer have purchased the product at all”; instead,”[h] e may be a member of the family of the final purchaser, or his employee, or a guest at his table, or a mere donee from the purchaser”); ORS 30.920(3) (specifying leg- islative intent that liability under the statute “shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965)”). 234 Brown v. GlaxoSmithKline, LLC wishes, nor can she transfer it to someone else.” According to Providence, a “  ‘sale’ involves the transfer of title and ownership in a product, and that means that the transferee receives the full panoply of rights attendant to ownership.” But we are not persuaded. Although Providence’s incorpora- tion of the rights of “ownership” is understandable given the Court of Appeals’ reliance on “ownership” to define “sell,” see 323 Or App at 223, the reliance is misplaced. As an initial matter, the words “ownership” or “title” do not appear in the text of ORS 30.920. The Court of Appeals included the term “ownership” in its definition of “sells” through an exercise of linking definitions: Webster’s defines “sell,” in part, as referring to offering an item “for sale”; and one of its definitions of “sale” refers to transfer- ring “ownership of property from one person or corporate body to another for a price (as a sum of money or any other consideration)”; therefore “one ‘sells’ a product when one transfers ownership of the product to another in exchange for valuable consideration.” 323 Or at 223 (quoting Webster’s at 2003, 2061-62 (unabridged ed 2002)). And Providence takes the exercise a step farther by linking to a legal defini- tion of “ownership” and what it assumes to be a restrictive concept of “title.” But the fact that transferring “ownership” or “title” is included in some definitions of “sale”—which, in turn, appears in some definitions of “sell”—does not mean that the legislature intended the term “sells” to convey that strict liability under ORS 30.920 is limited to transactions in which a consumer acquires the defective product in a form that accommodates transfer to a new owner. As a matter of logic, the fact that a transfer of the “full panoply” of the rights of ownership is a “sale,” does not mean that every “sale” transfers what Providence views as the “full panoply” of the rights of ownership, let alone that “sells” is limited in that way. And, as a matter of statutory construction, we reiterate our oft-repeated caution that dictionary defi- nitions are only a useful starting point for understanding what the legislature may have intended the terms of a stat- ute to mean. Marshall, 371 Or at 543. Some of the defini- tions of “sale” that we quoted above make no reference to Cite as 372 Or 225 (2024) 235 transferring “title” or ownership rights. But even when dic- tionary definitions supply clear definitions of the terms used in a statute, we do not rely “solely on dictionary definitions to determine the meaning of statutory terms ‘without crit- ically examining how the definition fits into the context of the statute itself.’  ” Id. (quoting State v. Gonzalez-Valenzuela, 358 Or 451, 461, 365 P3d 116 (2015)). Here, the context of the statute as a whole persuades us that strict liability for one who “sells” a defective prod- uct is not limited to those who transfer the “full panoply” of ownership rights to the product, or “title” to the product in the formal sense contemplated by Providence. As the text of ORS 30.920(1) makes clear, the legislature created strict liability that applies equally to one who “sells or leases” a defective product if the “seller or lessor is engaged in the business of selling or leasing such a product.” (Emphasis added.) The legislature’s decision to create identical liabil- ity for transactions consisting of a lease, which transfers fewer than all rights of ownership, suggests that the legisla- ture was not concerned about limiting liability to those who transfer all rights of ownership in a product, which makes it more likely that it did not intend liability for one who “sells” a defective product to be limited in that way. See, e.g., State v. Hubbell, 371 Or 340, 351, 537 P3d 503 (2023) (describ- ing and applying the “oft-invoked principle of statutory con- struction” under which, “when a word appearing in a list or grouping is capable of more than one meaning, the meaning that is more consistent with the other words in the group may better reflect legislative intent”); Black’s at 800 (defin- ing “lease” with respect to “tangible personal property” as meaning “a contract by which one owning such property grants to another the right to possess, use and enjoy it for specified period of time”). Equally significant, ORS 30.920(3) specifies that the liability provisions of the statute are to “be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965).” That section of the Restatement addresses strict products liability, and the comments explain- ing the scope of that liability are context for what the legis- lature intended ORS 30.920 to cover. Griffith v. Blatt, 334 Or 236 Brown v. GlaxoSmithKline, LLC 456, 467-68, 51 P3d 1256 (2002). Neither the terms “owner- ship” or “title,” nor the concept “rights of ownership,” appears in the comments to section 402A. Moreover, comment l illus- trates that liability can be based on transactions in which a product is entirely consumed by being administered to the consumer. The comment explains that a “customer in a beauty shop to whose hair a permanent wave solution is applied by the shop” may recover in strict liability. Id. As with a drug that is administered intravenously, the application of a permanent wave solution leaves the consumer no ability to transfer the solution to anyone else, because the product is consumed—which is its intended purpose.5 Accordingly, we are unpersuaded by Providence’s argument that we should construe ORS 30.920 as if the legislature had intended to exclude from the meaning of “sells” the transfer of defective products that the consumer fully consumes. b.  “Engaged in the business of selling” Next, we consider the parties’ dispute regarding what the legislature intended by the requirement that strict liability for a defective product applies to a “seller” that is “engaged in the business of selling such products.” According to Providence, the phrase “engaged in the business of sell- ing” does not include hospitals that supply pharmaceutical drugs to consumers in conjunction with health care services. Providence proposes two reasons for that exclusion: First, it contends that the phrase limits strict liability to businesses for which the “essence of the transaction” with the public is selling a product,6 and, second, it contends that the legisla- 5  The concept of transferring the rights of ownership may look different in the context of a product that is consumed in the process of transfer. For example, Providence argues that it did not transfer ownership of the Zofran to Gomez, but it also did not retain ownership of the Zofran, which leaves the question, “Where did ownership of the Zofran go?” Similarly, the concept of transferring “title” that is used for Oregon’s Commercial Code is flexible enough to explain what happens when a cafe serves a glass of wine or plate of scrambled eggs to a customer. See ORS 72.3140 (under UCC, “sale” includes serving food or drink to be consumed on the premises); Gardyjan v. Tatone, 270 Or 678, 680, 528 P2d 1332 (1974) (observ- ing that plaintiff, seeking recovery from restaurant that sold an omelet tainted with staphylococcal germs, “could have alleged a breach of the implied warranty of merchantability” under the commercial code “or strict liability in tort”). 6  Providence maintains that the “essence” of its transaction with Gomez was not the “selling” of Zofran. Although the supplying of Zofran to treat Gomez’s nau- sea arguably was part of the essence of the transaction, we accept Providence’s characterization for purposes of this opinion. Cite as 372 Or 225 (2024) 237 ture did not intend strict liability to extend to hospitals that sell a medication to consumers in the course of providing medical services. Neither the common meaning of “engaged in the business of selling” nor that phrase in the context of the statute supports Providence’s limiting construction. Looking first to the contemporaneous meaning of the terms, “seller” was defined similarly in both ordinary-usage and legal dictionaries as simply meaning one that “offers for sale,” Webster’s at 2062 (unabridged ed 1976), or “sells anything,” Black’s at 1220. Common usages of “engage” were “to begin and carry on an enterprise, esp[ecially] a business or profes- sion,” “to employ or involve oneself,” or “to take part : par- ticipate.” Webster’s at 751 (unabridged ed 1976). “Business,” as used in this context, commonly means “a usu[ally] com- mercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some indepen- dence of judgment and power of decision.” Id. at 302. And “selling” was used to refer to “the act, process, or art of offer- ing goods for sale.” Id. at 2062; see Black’s at 1200, 1220 (defining “sell”—the root of “selling”—as “[t]o dispose of by sale” and the term “sale” as meaning “[t]ransfer of property for consideration”). Accordingly, we understand the ordi- nary usage of the phrase “engaged in the business of sell- ing” products to include those whose business activity reg- ularly involves transferring products to others in exchange for consideration. The context of the statute as a whole further sug- gests that the legislature intended the phrase “engaged in the business of selling” to have a meaning consistent with the ordinary usages of the terms. As described above, the comments to section 402A of the Restatement provide important context that informs our understanding of what the legislature intended by “engaged in the business of sell- ing.” ___ Or at ___ (slip op at 12:9-11). As we will explain, those comments point to a construction of “engaged in the business of selling” that is not compatible with Providence’s contention that the phrase excludes businesses for which the “essence of the transaction” between the business and consumer is providing a service. 238 Brown v. GlaxoSmithKline, LLC As an initial reference point, the beauty-salon example in comment l suggests that the legislature did not intend to limit the scope of strict liability to transactions in which the “essence of the transaction” with the consumer is the sale of a product. Although comment l is focused on who qualifies as a “user or consumer” of a product, it makes clear that liability can arise even when the only transaction in which the consumer participates is primarily the purchase of a service. The scope of the rule comes through even more clearly in comment f, which clarifies what engaged in the “business of selling” a product means: “It is not necessary that the seller be engaged solely in the business of selling such products. Thus the rule applies to the owner of a motion picture theatre who sells popcorn or ice cream, either for consumption on the premises or in packages to be taken home.” Restatement § 402A comment f. As that example illustrates, however, a business can be engaged in the business of sell- ing a type of product even when selling such products is ancillary to the service (entertainment) that represents “the essence” of the business’s interaction with consumers. In fact, the comment suggests that the primary limitation on what qualifies as “engaged in the business of selling” is that it excludes “the ordinary individual who makes the isolated sale.” Id. As comment f explains: “The rule does not, however, apply to the occasional seller of food or other such products who is not engaged in that activity as a part of his business. Thus it does not apply to the housewife who, on one occasion, sells to her neighbor a jar of jam or a pound of sugar. Nor does it apply to the owner of an automobile who, on one occasion, sells it to his neighbor, or even sells it to a dealer in used cars, and this even though he is fully aware that the dealer plans to resell it.” Id. Relatedly, comment f specifies that, even for merchants otherwise engaged in the business of selling products, the rule of liability does not apply to sales made “out of the usual course of business, such as execution sales, bankruptcy sales, bulk sales, and the like.” Id. Cite as 372 Or 225 (2024) 239 Thus, construing ORS 30.920 in accordance with the comments to section 402A—as the legislature has directed—we conclude that the distinction between one who is “engaged in the business of selling” a product and one who is not depends on whether the seller sells the product as part of the usual course of its business, even if selling the prod- uct is ancillary to providing services to the consumer. That construction is bolstered by the purpose of imposing strict liability on one “engaged in the business of selling”: “The basis for the rule is the ancient one of the special responsibility for the safety of the public undertaken by one who enters into the business of supplying human beings with products which may endanger the safety of their per- sons and property, and the forced reliance upon that under- taking on the part of those who purchase such goods.” Id. Finally, relevant context for interpreting the text of ORS 30.920 comes from this court’s prior decisions addressing strict products liability under the common law, of which we presume the legislature was aware when it enacted ORS 39.920. See, e.g., Montara Owners Assn. v. La Noue Development, LLC, 357 Or 333, 341, 353 P3d 563 (2015) (“The context for interpreting a statute’s text includes the preexisting common law, and we presume that the leg- islature was aware of that existing law.”). Although strict products liability in Oregon is now governed exclusively by the statutory framework in ORS 30.920, Griffith, 334 Or at 466, this court had previously adopted and applied section 402A as Oregon’s common-law standard for strict products liability claims, Heaton v. Ford Motor Co., 248 Or 467, 470, 435 P2d 806 (1967). But concerns that the rules of liability might continue to evolve if left entirely to the courts, at least in part, motivated the legislature to “stabilize the rules of [product] liability” by codifying section 402A, albeit with a few modifications that expanded liability beyond what 402A described. Ewen v. McLean Trucking Co., 300 Or 24, 28, 706 P2d 929 (1985); see also Allen v. The Heil Company, 285 Or 109, 119 n 5, 589 P2d 1120 (1979) (“It should be remem- bered that [section] 402A is not a statute and that as an attempted restatement of common law it is binding upon 240 Brown v. GlaxoSmithKline, LLC this court only so long and in such particulars as we may find appropriate.”). One of the decisions of which the 1979 legisla- ture presumably was aware when codifying the strict lia- bility described in section 402A is Hoover v. Montgomery Ward & Co., 270 Or 498, 528 P2d 76 (1974). Significantly, in the course of examining whether the defendant could be strictly liable under section 402A for negligently installing a tire that was not defective, this court in Hoover described a “series” of “sale-service hybrid” cases from other juris- dictions, which held that a party that provides a danger- ously defective product in the course of providing a service may be subject to strict liability—when it was “clear that the product, as opposed to the service, was defective.” Id. at 501-02 (citing Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 NE 407 (1918) (restaurant could be liable for sup- plying tainted food); State Stove Manufacturing Company v. Hodges, 189 So 2d 113 (Miss 1966), cert den, 386 US 912 (1967) (contractor could be liable for supplying defective hot water heater); Worrell v. Barnes, 87 Nev 204, 484 P2d 573 (1971) (carpenter could be liable for supplying defective gas pipe fittings); and Carpenter v. Best’s Apparel, Inc., 4 Wash App 439, 481 P2d 924 (1971) (beauty shop could be liable for supplying defective permanent wave solution)). Although Hoover ultimately rejected that approach as “inapposite to the case at hand,” because the plaintiff alleged only that the service was defective, id., at 501-2, we presume that the legislature was aware of our discussion of the cases imposing strict liability on those who sell defective products as part of “sales-service hybrid” transactions. That context suggests that, if the legislature had intended to pre- clude liability for businesses engaged in selling products in conjunction with providing a service, it would have under- stood the need to make that limitation explicit. For all of the reasons described above, we are persuaded that the text and context of ORS 30.920 point to a legislative intent that strict liability for those “engaged in the business of selling” a product reaches those who supply the product in conjunc- tion with providing a service, regardless of the “essence of the transaction.” Cite as 372 Or 225 (2024) 241 Providence nevertheless argues that the legislature did not intend that a hospital would be considered a seller “engaged in the business of selling” for purposes of ORS 30.920. Although nothing in the text of the statute suggests an intent to exclude hospitals from the scope of liability under ORS 30.920, Providence points to what it contends are other contextual indications to support that legislative intent. First, Providence contends that applying ORS 30.920 to a hospital that supplies a drug in the course of providing healthcare services would not fit the justification for strict liability that is described in comment c. The com- ment explains, in part, that “the justification for the strict liability has been said to be that the seller, by marketing his product for use and con- sumption, has undertaken and assumed a special respon- sibility toward any member of the consuming public who may be injured by it[.]” According to Providence, “marketing” a product involves making “goods available to buyers in a planned way that encourages people to buy more of them,” and it did noth- ing to encourage patients to seek Zofran. And Providence faults the Court of Appeals for describing “market” as sim- ply a synonym for “sell.” See Brown, 323 Or App at 226. Even accepting Providence’s premise that “market” in comment c has a meaning distinct from “sell,” however, Providence’s reliance on comment c is misplaced. In our view, the por- tion of comment c that Providence emphasizes simply illus- trates that a business that markets its products should be held strictly liable—not that proof of marketing should be required for liability. In fact, the rest of the comment explains another justification for strict liability that is fully applicable to a hospital in Providence’s circumstances: “[T] he public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods.” Restatement § 402A comment c. Pursuant to ORS 30.920(3), we are directed to construe the liability pro- visions of ORS 30.920 consistently with all the comments from a to m, and—as explained above—the comments as a 242 Brown v. GlaxoSmithKline, LLC whole persuade us that a hospital supplying drugs that it also administers can be subject to strict liability. Second, Providence insists that relevant context can be found in the definitions of “hospital” that are set out in a different, current statute and in a 1979 administrative rule, both of which treat a hospital as a service provider, and not a seller of products. See ORS 442.015(15); OAR 333-23- 114(a) (1979). We are not persuaded. ORS 442.015(15) defines a “hospital,” for purposes of chapters governing Public Health and Safety, as: “(a) A facility with an organized medical staff and a per- manent building that is capable of providing 24-hour inpa- tient care to two or more individuals who have an illness or injury and that provides at least the following health services: “(A)  Medical; “(B)  Nursing; “(C)  Laboratory; “(D)  Pharmacy; and “(E)  Dietary; or “(b)  A special inpatient care facility *  *  *.” But ORS 442.015(15) provides no relevant context for whether the 1979 legislature intended to exempt hospitals from strict product liability. Beyond the fact the statute does not purport to prohibit hospitals from selling products, the definition of “hospital” was not adopted until 2001, and the statute defines terms for an area of law that is unrelated to tort liability for a defective product. Or Laws 2001, ch 104, § 181; see Ogle v. Nooth, 355 Or 570, 585, 330 P3d 572 (2014) (explaining that “[a] statute’s context includes other provi- sions of the same or related statutes”). Although the administrative rule to which Providence cites may have been in effect when the legisla- ture enacted ORS 30.920, it also supplies no relevant con- text for the scope of the statute. OAR 333-23-114(a) (1979) was a rule promulgated by the Health Division of the for- mer Oregon Department of Human Resources. Providence Cite as 372 Or 225 (2024) 243 argues that the rule defined a “hospital”—for purposes of the Health Division’s regulatory framework—”entirely with regard to the professionals who work there and the variety of healthcare services they provide,” with no hint that the department “regarded them as sellers of anything.”7 Even accepting that characterization, however, the existence of an administrative rule from that distinct regulatory context provides no reason to conclude that the legislature intended to exclude hospitals from the liability established by ORS 30.920. Nothing in the rule suggested that hospitals were precluded from selling medical products to their patients. Moreover, Providence offers no reason that an administra- tive rule identifying the entities that were regulated by the health authority in 1979 would supply relevant context for what the legislature intended when it enacted a statute addressing tort liability for the seller of a defective product. Third, Providence cites decisions from courts in other states that have applied some variation on Providence’s “essence of the transaction” rule to conclude that hospitals are not strictly liable for harm caused by the defective prod- ucts that they supply. For the most part, those cases were decided after the enactment of ORS 30.920 and, therefore, cannot inform our understanding of what the legislature intended. Moreover, they rely on common-law principles from other states and policy considerations that are not part of this court’s framework for construing an Oregon statute. See, e.g., Hector v. Cedars-Sinai Medical Center, 180 Cal App 3d 493, 502, 508, 225 Cal Rptr 595, 598, 602 (1986) (deciding case based on California common law and policy considerations); Easterly v. HSP of Texas, Inc., 772 SW 2d 211, 213 (Tex Civ App 1989) (deciding case based on Texas common law); Cafazzo v. Cent. Medical Health Services, 542 Pa 526, 532, 534-36, 668 A2d 521, 525-26 (1995) (deciding case based on other jurisdictions’ cases and policy consider- ations); Royer v. Catholic Medical Center, 144 NH 330, 332- 35, 741 A2d 74, 76-78 (1999) (deciding case based on New 7  OAR 333-23-114(a) (1979) defined a hospital, in relevant part, as “an estab- lishment with an organized medical staff, with permanent facilities that include inpatient beds, and with medical services, including physician services and con- tinuous nursing services under the supervision of registered nurses, to provide diagnosis with medical or surgical treatment.” 244 Brown v. GlaxoSmithKline, LLC Hampshire common law and policy considerations). As we have explained, “this court’s consideration” of limitations to the liability created under ORS 30.920 “begins and ends with our construction of the pertinent product liability stat- utes.” Griffith, 334 Or at 466. Because two cases were decided before 1979, they could be relevant to what the 1979 legislature intended. As we will explain, however, the bare existence of those cases does not persuade us that the legislature intended to include a similar limitation on liability for hospitals in Oregon. The first case is Perlmutter v. Beth David Hospital, 308 NY 100, 107, 123 NE 2d 792, 796 (1954), in which the New York court decided that a hospital was not liable under the state’s Sales Act for breaching implied warranties when it transfused “bad blood” into a patient. The court explained that the Sales Act, New York’s precursor to the Uniform Commercial Code, had long been recognized as excluding transactions in which the transfer of personal property was “an incidental feature of the transaction,” id. at 104, and the court high- lighted policy concerns about imposing liability under the Act “upon the institution or agency actually seeking to save or otherwise assist the patient.” Id. at 107. Providence offers no reason to conclude that the 1979 legislature was aware of Perlmutter. Nor is there any reason to presume that the legislature would have been influenced by a decision involving principles of New York sales law when codifying a strict product liability rule that is based on principles of tort law. See Heaton, 248 Or at 470 (explaining that the liability that the court had recog- nized for dangerously defective products “was specifically rationalized as strict liability in tort”); see also Restatement § 402A comment l (“The liability stated is one in tort, and does not require any contractual relation, or privity of con- tract, between the plaintiff and the defendant.”). The other case decided prior to 1979 is a decision by the California Court of Appeal. In that case, the court declined to extend the state’s common-law doctrine of strict products liability to a hospital for harm that a patient suf- fered when a defective surgical needle broke and became embedded in the patient while the surgeon was suturing a Cite as 372 Or 225 (2024) 245 wound. Silverhart v. Mount Zion Hospital, 20 Cal App 3d 1022, 1025, 1027, 98 Cal Rptr 187, 189, 190-91 (1971). The court reasoned, in substantial part, that the hospital could not be a “seller,” because “the hospital itself was a user of the needle since such needle was supplied to the hospital for its use in performing medical services incident to the normal and ordinary business of the hospital.” Id. at 1028 (empha- sis added). In other words, the California scenario did not involve a hospital engaging in a transaction that involved supplying a product to a patient. Thus, even assuming that the Oregon legislature was aware of decisions from the California Court of Appeal, we are not persuaded that the Silverhart opinion would have influenced the legislature to exclude hospitals from the reach of ORS 30.920 when they engage in commercial transactions involving a sales-ser- vice hybrid. In short, the text and relevant context of ORS 30.920 indicate that the legislature intended the liability for one “engaged in the business of selling” a product to include those who supply products to their customers in conjunction with providing a service, and without any exception for a hospital that engages in such hybrid transactions. 2.  Legislative history The parties have not offered any useful legislative history to assist in our construction of ORS 30.920, and, as we will describe, we have found none. The liability provisions set out at ORS 30.920 have remained essentially unchanged since their adoption in 1979.8 Or Laws 1979, ch  866, §  2. The 1979 legislation added the strict liability provisions now set out at ORS 30.920 as well as a provision governing the recovery of punitive damages in a product liability civil action and provisions governing insurers providing “product liability insurance.” Or Laws 1979, ch 866, § 2. As explained above, the 1979 legislature was motivated, at least in part, to “  ‘stabilize the rules of [product] liability,’  ” which until then was developing in Oregon entirely through court deci- sions. ___ Or at ___ (quoting Ewen, 300 Or at 28) (slip op at 17:7-8). In developing the new statute, the legislature heard 8  Oregon Laws 1979 chapter 866, section 2 originally used the phrase “to his property” instead of “to the property of the user.” Compare Or Laws 1979, ch 866, § 2 with ORS 30.920(1). 246 Brown v. GlaxoSmithKline, LLC from business groups concerned about rising costs for liabil- ity insurance that “they attributed to the unpredictability of potential exposure in what was then a rapidly evolving branch of the law.” Ewen, 300 Or at 28. They also heard com- peting concerns from other witnesses and legislators “that legislation not reduce the financial protection under exist- ing Oregon law for persons injured by dangerous products.” Id. But we have found no record indicating that the 1979 legislature heard concerns about applying strict liability to hospitals or other service providers whose transactions with consumers involve supplying products in conjunction with providing a service. Plaintiffs contend that some indication of legisla- tive intent can be found in later-enacted statutes, which create exceptions to the strict liability set out in ORS 30.920 for limited circumstances in which a product is supplied in the context of medical services, echoing reasoning of the Court of Appeals. 323 Or  App at 228-30 (describing ORS 30.902, 30.908(5), and former 97.300 (1991), renumbered as ORS 97.968 (1995) and renumbered as ORS 97.985 (2007)). Although recognizing that the later-enacted statutes were “not indicative of the legislature’s intent” when it enacted ORS 30.920, the Court of Appeals nevertheless reasoned that the exceptions—none of which exempt a hospital sup- plying a drug in conjunction with medical services—would have been unnecessary if ORS 30.920 already “exclude[d] those who sell products in the provision of services.” Id. at 228. We acknowledge that this court has occasionally con- sulted later legislative history in determining the meaning of a statute. State v. Cloutier, 351 Or 68, 103-04, 261 P3d 1234 (2011). But, as we ultimately reasoned in Cloutier, the subsequent “legislative history, at best, arguably confirms what we have determined to be the intended meaning” of ORS 30.920, so “we need not address the weight, if any, to which the [later] legislative history is entitled in this case.” Id. at 104. In short, the legislative history adds nothing to the conclusions that we reached, based on our analysis of text and context, about the intended scope of strict liability under ORS 30.920. First, the legislature intended that liability Cite as 372 Or 225 (2024) 247 for one who “sells” a dangerously defective product would include transactions in which the product is transferred for consideration even if the product is fully consumed as part of the transaction. Second, the legislature intended that a “seller” includes one who engages in such a transaction and that a “seller” could be “engaged in the business of selling” a product when the transfer of such products for consideration is part of the seller’s usual course of business, regardless of whether the seller transfers such products only in conjunc- tion with providing a commercial service. And third, the legislature did not intend to exempt hospitals that other- wise meet the definition of a “seller or lessor engaged in the business of selling or leasing such a product.” B.  Application to this Case As described at the outset, this case reaches us from a grant of summary judgment to Providence. A party is entitled to summary judgment “if the pleadings, deposi- tions, affidavits, declarations, and admissions on file show 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. We explained above that Providence moved for summary judgment on the basis of its legal argu- ment that, “[a]s a provider of health services, [Providence] is neither a seller in the business of selling Zofran inject- able nor is it a distributor of Zofran,” for purposes of liability under ORS 30.920, and only supplies drugs to be admin- istered to patients in the hospital. Our conclusion that the legislature did not intend ORS 30.920 to be construed in the limited manner that Providence proposes demonstrates why the trial court erred in granting the motion for summary judgment. But Providence’s arguments on appeal add a new challenge to the premise underlying plaintiffs’ allegation that Providence “sold” the Zofran that Gomez received at the emergency room. It notes that although the Court of Appeals asserted that Providence had specifically charged Gomez for Zofran, 323 Or App at 232, the record does not support that assertion. However, to the extent that Providence asserts that the record does not demonstrate that it sold Zofran to Gomez—because Gomez’s hospital bill did not include a 248 Brown v. GlaxoSmithKline, LLC specific charge for that drug—we do not reach that argu- ment because Providence failed to raise that issue in its motion for summary judgment. As we emphasized in Two Two, “[p]arties seeking summary judgment must raise by motion the issues on which they contend they are entitled to prevail as a mat- ter of law,” and a party opposing summary judgment has no burden to produce evidence on an issue that the moving party has not raised. 355 Or at 326. In other words, had Providence raised in its motion for summary judgment the factual issue whether it had charged Gomez for Zofran, plaintiffs—who bear the burden of persuasion on that issue at trial—would have been required under ORCP 47 C to pro- duce evidence on the issue to defeat summary judgment. See id. at 325 (explaining significance of a defendant raising an issue in its motion for summary judgment). But Providence’s failure to raise that factual issue means that plaintiffs had no burden to produce evidence regarding their allegation that Providence “sold” the Zofran that it supplied to Gomez, and it means that “we accept as true” the uncontested alle- gations in the complaint for purposes of the summary judg- ment motion. See Bagley v. Mt. Bachelor, Inc., 356 Or 543, 545-46, 340 P3d 27 (2014) (so holding with respect to issues of negligence, causation, and damages that the defendant did not raise in its motion for summary judgment). Providence sought summary judgment on the basis that, as a matter of statutory construction, a hospital that supplies and administers a drug to a patient is not a “seller” of the drug or “engaged in the business of selling” such drug, as required for liability under ORS 30.920. And we have explained why we disagree with Providence’s construction of the statute. Thus, Providence has not established that it was entitled to prevail as a matter of law on plaintiffs’ claim under ORS 30.920. The decision of the Court of Appeals is affirmed. The judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings.

22f516f6b66fda5954f588ae8f920294a84c17fdd1e3c0942aa8efc98ad234b5

2024-05-02T00:00:00Z

aeee73db-8ea2-4d1c-a090-91283e430c0b

Thompson v. Fhuere

S070162

oregon

Oregon Supreme Court

No. 5 March 14, 2024 81 IN THE SUPREME COURT OF THE STATE OF OREGON MATTHEW DWIGHT THOMPSON, Appellant, v. Corey FHUERE, Superintendent, Oregon State Penitentiary, Respondent. (CC 20CV29516) (CA A179314) (SC S070162) En Banc On certification from the Court of Appeals under ORS 19.405.* Argued and submitted September 19, 2023. Jeffrey E. Ellis, Law of Office of Alsept & Ellis, Portland, argued the cause and filed the briefs for appellant. Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. GARRETT, J. The judgment of the post-conviction court is affirmed. ______________ *  Appeal from Marion County Circuit Court, Thomas M. Hart, Judge. 82 Thompson v. Fhuere Cite as 372 Or 81 (2024) 83 GARRETT, J. Petitioner committed capital crimes in 1994 and was sentenced to death. Decades later, petitioner filed a successive petition for post-conviction relief, claiming that his death sentence and two of the penalty-phase ques­ tions that had been posed to the jury at sentencing were unconstitutional. Because of then-recent changes in the law, the parties agreed that petitioner’s death sentence had to be vacated. However, the parties disagreed about the proper remedy. The superintendent requested that the post-conviction court modify petitioner’s sentence to life without the possibility of parole, while petitioner sought to remand the case for resentencing. The post-conviction court vacated petitioner’s death sentence, modified his sentence to life without the possibility of parole, and ruled that his remaining claims concerning the penalty-phase questions were procedurally barred. Petitioner appealed the judgment to the Court of Appeals, arguing, among other things, that the post- conviction court had erred by failing to remand the case for resentencing. While petitioner’s appeal was pending, then-Governor Kate Brown commuted the death sentences of 17 individuals—including petitioner—to sentences of life without the possibility of parole. We accepted certification from the Court of Appeals to consider, among other issues, the effect of the Governor’s commutation on this case. See ORS 19.405 (describing procedures for certification of an appeal). For reasons that we will explain, we conclude that petitioner has presented no basis for reversing the post- conviction court’s judgment. Petitioner’s argument that he is entitled to a remand for resentencing because the death sentence that he originally received was unconstitutional fails because, as a result of the Governor’s commutation, petitioner is not serving a death sentence. Further, peti­ tioner failed to preserve his challenge to the post-conviction court’s ruling that his constitutional challenges to the two penalty-phase questions were procedurally barred, and, for that reason, we do not reach the merits of petitioner’s con­ stitutional challenges to those questions. Accordingly, we affirm. 84 Thompson v. Fhuere I.  BACKGROUND AND PROCEDURAL HISTORY A.  History of the Case The basic procedural facts are undisputed. Petitioner was convicted of four counts of aggravated murder involving the murder of two victims in 1994. Two counts were based on the aggravating circumstance that petitioner had com­ mitted multiple murders as part of the same criminal epi­ sode. ORS 163.095(1)(d) (1993). The other two counts were based on the aggravating circumstance that he had “person­ ally and intentionally committed” murder in the course of and in furtherance of committing or attempting to commit a statutorily enumerated felony (i.e., first-degree burglary in one count and first-degree robbery in the second count). ORS 163.095(2)(d) (1993); ORS 163.115(1)(b)(C), (G) (1993). During the penalty phase, the jury was instructed that there were three possible penalties: death, life impris­ onment without the possibility of parole, and life imprison­ ment with the possibility of parole. As described in more detail below, 372 Or at 85-86, 85 n 3, the jury answered cer­ tain questions that were legally required at that time for the imposition of a death sentence, including two pertaining to whether petitioner posed a “continuing threat” and whether he “deserved death.” Petitioner was sentenced to death.1 On automatic and direct review, this court affirmed the judgment of conviction and sentence of death. State v. Thompson, 328 Or 248, 971 P2d 879, cert den, 527 US 1042 (1999). Petitioner then sought post-conviction relief, chal­ lenging his convictions and sentence on numerous grounds. The Court of Appeals affirmed the post-conviction court’s judgment denying petitioner relief, and this court denied review.2 Thompson v. Belleque, 268 Or App 1, 341 P3d 911 (2014), rev den, 357 Or 300 (2015). 1  Petitioner was sentenced to death on each of the four counts of aggravated murder. State v. Thompson, 328 Or 248, 253 n 2, 971 P2d 879, cert den, 527 US 1042 (1999). For convenience, however, we refer to those sentences collectively as either petitioner’s “sentence” or “death sentence.” 2  Petitioner then filed a petition for a writ of habeas corpus in federal district court. Thompson v. Premo, No 6:15-cv-01313-SI (D Or 2015). That case is cur­ rently stayed pending the outcome of this appeal. Cite as 372 Or 81 (2024) 85 B.  Senate Bill 1013 Several years later, in 2019, the legislature passed Senate Bill (SB) 1013, which significantly changed Oregon’s death penalty statutes. Or Laws 2019, ch 635; see State v. Bartol, 368 Or 598, 496 P3d 1013 (2021) (describing SB 1013, its legislative history, and its effects). As pertinent here, SB 1013 “created a new category of murder, ‘murder in the first degree’; reclassified all the forms of murder that previ­ ously had been ‘aggravated murder’ as ‘murder in the first degree’; and provided a maximum sentence of life impris­ onment without the possibility of parole for ‘murder in the first degree.’  ” Bartol, 368 Or at 601 (citing Or Laws 2019, ch 635, §§ 1, 3(1), (2)). Thus, SB 1013 eliminated the death penalty for all the forms of murder that previously had been eligible for it, which included the forms that petitioner had committed. “SB 1013 did not eliminate the death penalty entirely[,]” however. Id. at 601. Instead, SB 1013 “redefined ‘aggravated murder’ to include different forms of murder, most of which are more serious forms of murder than those *  *  * previously *  *  * classified as ‘aggravated murder[,]’  ” and provided that those forms of aggravated murder can be pun­ ished by death. Id. 601-02; see id. at 602 n 2 (describing con­ duct constituting aggravated murder under SB 1013). In addition, SB 1013 changed the requirements for imposing a death sentence. “Prior to SB 1013, the jury had to answer four questions in the affirmative in order for a defen­ dant to be sentenced to death.” Bartol, 368 Or at 602 n 3 (citing ORS 163.150(1)(b) (2013), amended by Or Laws 2019, ch 635, § 5).3 Specifically, ORS 163.150(1)(b) (2013) provided: “Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: “(A)  Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result; 3  The penalty-phase questions in ORS 163.150(1)(b) (2013) that we discussed in Bartol were same questions that had applied when petitioner was sentenced to death. 86 Thompson v. Fhuere “(B)  Whether there is a probability that the defendant would commit criminal acts of violence that would consti­ tute a continuing threat to society; “(C)  If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and “(D)  Whether the defendant should receive a death sentence.” Under that statute, if the jury answered any of those four questions in the negative, a death sentence could not be imposed. Instead, the trial court was required to sentence the defendant to life imprisonment without the possibil­ ity of parole, unless “10 or more members of the jury fur­ ther [found] that there [were] sufficient mitigating circum­ stances” to warrant life imprisonment with the possibility of parole, in which case the trial court was required to impose that lesser sentence. ORS 163.150(2)(a) (2013). SB 1013 eliminated the second of the four questions, ORS 163.150(1)(b)(B) (2013), relating to whether a defendant constitutes a “continuing threat.” Bartol, 368 Or at 602 n 3. The bill also added a “  ‘proof beyond a reasonable doubt’  ” standard to the question of whether a defendant “should receive a death sentence.” Id. Significantly, the legislature did not make SB 1013 retroactive as to sentences imposed before the effective date of the bill. Instead, SB 1013 applied “only to sentencings that occur after its effective date, regardless of when the crime was committed.” State v. Rogers, 368 Or 695, 700, 499 P3d 45 (2021) (citing Or Laws 2019, ch 635, § 30). This court construed that applicability provision in Bartol to demon­ strate that “the legislature did not regard conduct commit­ ted before the effective date as more culpable than conduct committed after it.” Bartol, 368 Or at 624. Thus, “[a]lthough the legislature did not make SB 1013 retroac­ tive as to sentences imposed before its effective date, the enactment of the bill itself reflect[ed] a judgment that con­ duct that [had been] previously classified as ‘aggravated murder’ [did] not fall within the narrow category of conduct that [could] be punished by death, as opposed to lesser sen­ tences, including life imprisonment.” 368 Or at 625. Cite as 372 Or 81 (2024) 87 Bartol held that, so understood, SB 1013 created a proportionality problem under Article I, section 16, of the Oregon Constitution, which provides, in part, that “all pen­ alties shall be proportioned to the nature of the offense.” Id. at 624. That was so, because SB 1013 allowed “the execution of persons whose conduct the legislature has determined is not the worst of the worst and whose culpability is no dif­ ferent from those who cannot be executed.” Id. (emphases in original). Put simply, “whether a person who committed con­ duct that was previously classified as ‘aggravated murder’ but is now classified as ‘murder in the first degree’ can be sentenced to death depends on the person’s sentencing date, not on the relative gravity of the conduct.” Id. Accordingly, in Bartol—a death penalty case on automatic and direct review—we explained that carrying out that defendant’s death sentence “would allow the execution of a person for conduct that the legislature has determined no longer justifies that unique and ultimate punishment, and it would allow the execution of a person for conduct that the legislature has determined is no more culpable than conduct that should not result in death.” Id. at 625. Having concluded that the defendant’s death sentence violated Article I, section 16, we vacated the sen­ tence and remanded the case for resentencing. Id. at 626; see Rogers, 368 Or at 701 (same). C.  Petitioner’s Post-Conviction Proceeding Following the enactment of SB 1013 and the issu­ ance of our decisions in Bartol and Rogers, petitioner filed the successive post-conviction petition that is the subject of this appeal. He raised the following three claims for relief.4 In his first claim, petitioner asserted that his death sentence was unconstitutional. He explained that, pursu­ ant to SB 1013, the conduct that he had been found guilty of committing was no longer classified as aggravated mur­ der and was no longer punishable by death; thus, under the holdings in Bartol and Rogers, his death sentence was unconstitutional. 4  Petitioner alleged two additional claims that were voluntarily dismissed. 88 Thompson v. Fhuere In his second claim, petitioner contended that the “continuing threat” question that had been posed to the jury in his case was unconstitutional (i.e., the second penalty- phase question, ORS 163.150(1)(b)(B) (2013) (“[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”)). According to petitioner, that question failed to serve its constitutionally required function to rationally “narrow the class of death-eligible criminal defendants.” In support of that proposition, petitioner referred to empirical evidence, including research pertaining to jurors’ ability to predict future dangerousness. He further asserted that the elimination by SB 1013 of the “continuing threat” question was an acknowledgment that the question “did not comport with the current understanding of modern circumstances and contemporary standards of decency.” In his third claim, petitioner challenged the consti­ tutionality of the version of the “deserves death” question that was posed to his jury (i.e., the fourth penalty-phase question, ORS 163.150(1)(b)(D) (2013) (“[w]hether the defen­ dant should receive a death sentence”)). As noted above, that version of the question did not require proof beyond a rea­ sonable doubt, which, according to petitioner, made the ques­ tion inconsistent both with “[m]odern circumstances and contemporary standards of decency,” and with the intent of the voters when they reinstated the death penalty in 1984. Again, petitioner cited SB 1013 in support of that claim. As a remedy for each of those three claims, peti­ tioner asked the post-conviction court to vacate his death sentence and remand the case to the trial court for resen­ tencing under the provisions of SB 1013. The parties filed cross-motions for summary judg­ ment. See ORCP 47 C (providing that summary judgment shall be granted if “there is no genuine issue as to any mate­ rial fact and *  *  * the moving party is entitled to prevail as a matter of law”). With regard to petitioner’s first claim, they agreed that petitioner’s death sentence had to be vacated, but disagreed as to the remedy. Petitioner argued that a remand for resentencing under the provisions of SB 1013 was required; the superintendent countered that the post-conviction court Cite as 372 Or 81 (2024) 89 could modify petitioner’s sentence to life without the possi­ bility of parole because that was the only legally permissible sentence—that is, it was “the next lower sentence that [was] both statutorily authorized and constitutionally permissible” based on the jury’s findings. The parties also had differing views about petitioner’s remaining two claims concerning the “continuing threat” and “deserves death” questions, which the post-conviction court would need to address if it declined to remand for resentencing on petitioner’s first claim. Petitioner contended that, if the post-conviction court concluded that either question was unconstitutional, a remand for resentenc­ ing was required; the superintendent argued that the claims were procedurally barred, were moot in light of the parties’ agreement that the death sentence had to be vacated, and, in all events, lacked merit. Following a hearing, the post-conviction court granted petitioner summary judgment, in part, on his first claim (i.e., the court vacated petitioner’s death sentence). But, as the superintendent had requested, instead of remanding, the court modified the judgment of conviction pursuant to ORS 138.520 to impose a sentence of life without the possibility of parole on each of petitioner’s four aggravated murder convic­ tions. See ORS 138.520 (providing that the relief that a post- conviction court may order “shall include *  *  * modification of sentence”). As to petitioner’s remaining two claims concern­ ing the penalty-phase questions, the post-conviction court granted summary judgment to the superintendent, conclud­ ing that petitioner’s claims were procedurally barred under ORS 138.510(3) and ORS 138.550(3). See ORS 138.510(3) (providing, as pertinent here, that “[a] petition *  *  * must be filed within two years” of the date of the denial of cer­ tiorari “unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition”); ORS 138.550(3) (providing, in part, that “[a]ll grounds for relief *  *  * must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition”). Specifically, the court ruled that the constitutionality of those questions 90 Thompson v. Fhuere previously had been challenged in this court and upheld, and that petitioner had “had direct appeal, post-conviction *  *  *, and other options” to challenge them. D.  The Governor’s Commutation While petitioner’s appeal of the post-conviction court’s judgment was pending in the Court of Appeals, then-Governor Brown commuted petitioner’s death sen­ tence to life in prison without the possibility of parole. The Governor’s order stated that it was “limited to reducing [petitioner’s] death sentence to life in prison without the pos­ sibility of parole” and did “not in any way affect the under­ lying criminal conviction.” According to the Governor, her action “remove[d] the possibility” that petitioner would be “put to death” and brought “all of us a significant step closer to finality.” However, the order explicitly stated that “[n]oth­ ing in [the] Commutation Order [was] intended to preclude [petitioner] from seeking other or further relief from the courts that [he] may be entitled to.”5 E.  The Parties’ Appellate Contentions Despite the fact that the Governor had issued her commutation around the time that the parties were fil­ ing their briefs in the Court of Appeals, that briefing paid relatively little, if any, attention to the legal effect of the commutation on this case. Petitioner’s briefing focused on 5  In the same commutation order, Governor Brown also commuted the death sentences of 16 other people. The order provided, in pertinent part: “[B]y virtue of the authority vested in me under Article V, Section 14, of the Oregon Constitution, I, Kate Brown, Governor of the State of Oregon, hereby commute the death sentence of each Commutee, in the respective case refer­ enced in Exhibit A, to life in prison without the possibility of parole, effective as of the 14th day of December, 2022. This Commutation Order is limited to reducing each Commutee’s death sentence to life in prison without the possibility of parole, and shall not in any way affect the underlying crimi­ nal conviction. Nothing in this Commutation Order is intended to preclude a Commutee from seeking other or further relief from the courts that they may be entitled to. Although in many cases commutations are granted in recognition of extraordinary reform on the part of the individual, that is not the basis for my actions here. Instead, the sole basis for commuting the death sentences of each Commutee to life in prison without the possibility of parole is that the death penalty is dysfunctional and immoral, in all circumstances. My action today removes the possibility that any of these Commutees will be put to death by the State and brings all of us a significant step closer to finality in each of these cases.” Cite as 372 Or 81 (2024) 91 the post-conviction court’s rulings and raised four assign­ ments of error, contending that the post-conviction court had erred in (1) summarily modifying petitioner’s sentence to life without parole instead of remanding for resentencing after it vacated his unconstitutional death sentence; (2) con- cluding that his claims concerning the penalty-phase ques­ tions were “untimely” when the state had “conceded other­ wise”; (3) failing to remand for resentencing because the “continuing threat” question was unconstitutional as mea­ sured by evolving standards of decency and events that had occurred after petitioner’s trial, direct appeal, and prior post-conviction proceeding; and (4) failing to remand for resentencing because the “deserves death” question was unconstitutional for similar reasons. Petitioner’s briefing did not mention the Governor’s commutation. The superintendent called the court’s attention to the commutation in his answering brief, noting that the Governor’s order made it “unnecessary to address the effect of the Bartol decision on the validity of the death sentence imposed in petitioner’s case.” The superintendent also con­ tended that the commutation order “effectively moot[ed]” petitioner’s claims concerning the penalty-phase questions and that the court should not consider them. In support of that contention, the superintendent reiterated his argu­ ment that the jury’s answers to the penalty-phase questions necessarily established that life without the possibility of parole is the proper sentence now that the death sentence cannot be carried out. The Court of Appeals then certified the appeal to this court, and we accepted the certification and received supplemental briefing. Again, however, the parties’ briefing did not devote much attention to the legal effect of the Governor’s commuta­ tion. Petitioner explained that, although this court’s rulings in Bartol and Rogers “likely made all then-existing death sen­ tences unconstitutional,” the commutation had “ended any uncertainty when [the Governor] commuted those sentences” and expressly “preserve[d] all existing rights for every com­ mutee.” In other words, petitioner acknowledged that, as a result of the commutation, he is serving the commuted sen­ tence of life without parole, but, nonetheless, contended that 92 Thompson v. Fhuere the express terms of the Governor’s commutation permitted him to “seek[  ] other or further relief from the courts that [he] may be entitled to”—including relief that could result in an even lesser sentence than his commuted one. The relief to which petitioner claims an entitlement is a remand for resentencing, based, as we understand his argument, on four distinct theories. First, because the jury had found petitioner guilty of aggravated murder based on conduct that (under SB 1013) can no longer be punished by death, there is a heightened possibility that his death sen­ tence was influenced by the classification of his conduct as “the worst form of murder” and so created a “bias in favor of the death penalty,” and, for that reason, he is entitled to a remand for resentencing. Second, because this court vacated the defendants’ unconstitutionally disproportion­ ate death sentences in Bartol and Rogers and remanded those cases for resentencing, petitioner is entitled to the same remedy for the same constitutional violation. Third, because the post-conviction court had vacated petitioner’s death sentence (as both parties had agreed was necessary), he was subject to being resentenced under the provisions of SB 1013. Fourth, because the “continuing threat” and “deserves death” penalty-phase questions that were posed to petitioner’s jury were unconstitutional, petitioner is entitled to a remand for resentencing as would be the case with any other prejudicial penalty-phase error. In his supplemental brief, the superintendent argued that the parties’ dispute about the post-conviction court’s authority to modify petitioner’s sentence had been rendered moot by the Governor’s commutation, because petitioner “is no longer subject to a death sentence or the possibility of one, and he is now serving a true-life sentence instead.” As a consequence, the superintendent reasoned, “this court need not consider whether ORS 138.520 authorized the post- conviction court to modify the judgment *  *  * to impose a true-life sentence.” The superintendent also contended that petitioner was not entitled to a resentencing, because the theories that he had advanced lacked merit. During oral argument, we sought to further clarify the parties’ positions about the legal effect of the commutation Cite as 372 Or 81 (2024) 93 on this case. Both parties agreed that, as a result of the commutation, petitioner is serving a life sentence without the possibility of parole. According to the superintendent, the commutation rendered moot the parties’ dispute about the post-conviction court’s authority to modify petitioner’s sentence, because the Governor did that herself. However, the superintendent conceded that, if we conclude that there was a penalty-phase error that requires a remand for resen­ tencing, the terms of the commutation order do not preclude that relief. As discussed further below, the Governor’s com­ mutation order fundamentally changed the circumstances of this case and the nature of what had been litigated, up to that point, in the post-conviction court. In this appeal of the post-conviction court’s judgment resolving petition­ er’s claims for post-conviction relief, our task is to address whether petitioner’s assignments of error present a basis for reversing that judgment—now that petitioner’s death sen­ tence has been commuted. II.  ANALYSIS To resolve the parties’ contentions in this case, we must determine the legal effect of the Governor’s commuta­ tion order. Accordingly, we begin there. The Governor has the power to grant clemency, including commutations, under Article V, section 14, of the Oregon Constitution, which provides, in part: “[The Governor] shall have power to grant reprieves, com­ mutations, and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law. Upon conviction for treason he shall have power to suspend the execution of the sentence until the case shall be reported to the Legislative Assembly, at its next meeting, when the Legislative Assembly shall either grant a pardon, commute the sentence, direct the execution of the sentence, or grant a farther [sic] reprieve.” The Governor is the “sole repository” of this constitutional clemency power. Eacret et ux v. Holmes, 215 Or 121, 126, 333 P2d 741 (1958). This court has repeatedly concluded that “  ‘it is not within judicial competency to control, interfere with, 94 Thompson v. Fhuere or even to advise the Governor when exercising [her] power to grant reprieves, commutations, and pardons.’  ” Haugen v. Kitzhaber, 353 Or 715, 720, 306 P3d 592 (2013), cert den, 571 US 1167 (2014) (quoting Eacret, 215 Or at 125-26); see also Eacret, 215 Or at 127 (“Where the constitution thus confers unlimited power on the Governor to grant reprieves, com­ mutations and pardons, his discretion cannot be controlled by judicial decision.”).6 A Governor’s grant of clemency is not a “  ‘private act of grace from an individual happening to possess power.’  ” Haugen, 353 Or at 742 (quoting Biddle v. Perovich, 274 US 480, 486, 47 S  Ct 664, 71 L  Ed 1161 (1927) (emphases in Haugen)). Instead, it is “an important part of the constitu­ tional scheme envisioned by the framers” that “permits the chief executive to determine that ‘the public welfare will be better served’ by clemency.” Id. (quoting Biddle, 274 US at 486). Ultimately, “[t]he Governor’s ability to grant clemency is a direct and complete check on specific actions of the judicial branch that is entrusted to the chief executive.” Id. at 726. One form of clemency is a “commutation,” which is what petitioner received in this case. See State v. Link, 367 Or 625, 663, 482 P3d 28 (2021) (“Commutation *  *  * is an ad hoc exercise of executive clemency.” (Internal quotation marks omitted.)). A commutation is “a change of punishment to which a person has been condemned to one less severe.” Fehl v. Martin, 155 Or 455, 459, 64 P2d 631 (1937); see Black’s Law Dictionary 350 (11th ed 2019) (defining “commutation” 6  “[T]o the extent that limits are imposed on the clemency power, those limits must come from the constitution itself, or from the people.” Haugen, 353 Or at 726. As we have previously stated, “[t]he most fundamental limit [on the Governor’s power] is imposed through the actions of the people, if they choose not to reelect the Governor.” Id. at 742; see Eacret, 215 Or at 128 (noting that, if a Governor abuses the clemency power, the people have recourse “at the polls”). The “text, history, and case law surrounding Article V, section 14,” also demonstrate that “the Governor’s power may be checked by the legislative branch, as in cases of treason convictions and through the legislature’s authority to establish regula­ tions regarding the Governor’s power.” Haugen, 353 Or at 742-43. The legislature has enacted a few statutory provisions addressing the Governor’s clemency power. ORS 144.649 - 144.670. “Most of those provisions address procedural issues, such as the procedure for reporting acts of clemency to the legislature and the proce­ dure for applying for clemency.” Haugen, 353 Or at 727 n 7. The one statutory pro­ vision that addresses the scope of the Governor’s power, ORS 144.649, “restates the Governor’s constitutional power, but also expresses the legislature’s intent to defer to the Governor’s judgment regarding the exercise of that power[.]” Id. Cite as 372 Or 81 (2024) 95 to include “[t]he executive’s substitution in a particular case of a less severe punishment for a more severe one that has already been judicially imposed on the defendant”); see also Duehay v. Thompson, 223 F 305, 307-08 (9th Cir 1915) (explaining that, in commuting a sentence, “the executive has superimposed its mind upon the judgment of the court; but the sentence remains, nevertheless, the judgment of the court, and not of the executive, and is subject to the regula­ tions of law respecting its enforcement”). In addition, “[a] commuted sentence has the same legal effect as though the sentence had originally been for the commuted term.” Pardon and Parole, 67A CJS § 6 (2023); see also, e.g., Pardon and Parole, 59 Am Jur 2d § 52 (2023) (“In effect, a commuted sentence replaces the sentence imposed by the original judgment. Since it is a mere substitution of a lesser for a greater punishment, it has the same legal effect, and the status of the prisoner is the same as though the sentence had originally been for the commuted term.” (Footnote omitted.)). The Court of Appeals has recognized that principle—that is, that a commuted sentence has the same legal effect as though the sentence had originally been for the commuted term—for almost 50 years. See Marteeny v. Brown, 321 Or App 250, 288, 517 P3d 343, rev den, 370 Or 303 (2022) (explaining that a “commuted sentence stands as though it had originally been for the commuted term, and entitles the offender to benefits of the commuted term—for example good time” (citing Ferguson v. Cupp, 23 Or  App 122, 124-25, 541 P2d 489 (1975) (internal quotation marks omitted)); see also Ferguson, 23 Or App 122 (concluding that, after the Governor unconditionally commuted the petition­ er’s life sentence for murder to a term of 25 years in 1974, the petitioner was entitled to credits resulting in the reduc­ tion of his commuted sentence computed from the date of his original life sentence in 1957 (citing State ex rel. Murphy v. Wolfer, 127 Minn 102, 148 NW 896 (1914)); Murphy, 127 Minn at 103, 148 NW at 897 (“A few principles applicable to the case are, however, well settled. It is well settled that a commutation of a sentence is a substitution of a less for a greater punishment. After commutation[,] the commuted sentence is the only one in existence, and the only one to be considered. After commutation, the sentence has the same 96 Thompson v. Fhuere legal effect, and the status of the prisoner is the same, as though the sentence had originally been for the commuted term.”)). Thus, the issuance of a commutation significantly affects the trajectory of a case and the cognizable challenges to the originally imposed judicial sentence. Applying those general principles is complicated because this case comes to us in an unusual posture. At the time that the Governor commuted petitioner’s death sen­ tence to a sentence of life without the possibility of parole, the following key events already had occurred: (1) SB 1013 had been enacted; (2) this court had issued its decisions in Bartol and Rogers, vacating the defendants’ death sentences and remanding their cases so that new sentences could be imposed; (3) petitioner had sought post-conviction relief, claiming that his death sentence and two of the penalty- phase questions were unconstitutional; (4) the parties had agreed that defendant’s unconstitutional death sentence had to be vacated but disagreed as to how a new sentence would be determined (i.e., whether the case should be remanded for resentencing or whether the post-conviction court should modify petitioner’s sentence to life without the possibility of parole); and (5) petitioner had appealed the post-conviction court’s judgment, challenging several of that court’s rulings. Nonetheless, while the appeal was pending, the Governor exercised her constitutional authority to commute petition­ er’s death sentence and to substitute, in its place, a sentence of life without the possibility of parole. Thus, following the commutation, petitioner’s sentence of life without the possi­ bility of parole has been imposed, not by judicial decree, but as a function of the Governor’s constitutional authority. However, the commutation order expressly reserved to petitioner the right to seek other or further relief from the courts: “Nothing in this Commutation Order is intended to preclude a Commutee from seeking other or further relief from the courts that they may be entitled to.” Therefore, the timing of the Governor’s commutation gives rise to the ques­ tion whether, as petitioner contends in his first assignment of error, he would be entitled to a remand for resentencing if we were to conclude on appeal that the post-conviction court erred in imposing a modified sentence rather than Cite as 372 Or 81 (2024) 97 remanding for a new sentence to be imposed. For the inter­ related reasons that follow, we conclude that, in light of the commutation, petitioner is not entitled to such relief. In response to petitioner’s first claim for post- conviction relief, in which he challenged his death sentence as unconstitutional, the post-conviction court vacated the death sentence and modified petitioner’s sentence to life without the possibility of parole, rather than remanding for resentencing. On appeal, petitioner contends that the post- conviction court’s ruling was erroneous and that his case should have been remanded for a resentencing, where, theo­ retically, a different and lesser sentence of life with the pos­ sibility of parole could be imposed. The problem with peti­ tioner’s theory is that, even if we were to assume that the post-conviction court erred at the time that it made its rul­ ing and should have remanded for resentencing, petitioner would not be entitled to that relief on appeal. That is so because the Governor has since exercised her constitutional authority to impose a sentence of life without the possibil­ ity of parole. As previously explained, the legal effect of the commutation is that the sentence of life without the possi­ bility of parole stands as if it had been originally imposed. Following the Governor’s exercise of her constitutional clemency power, petitioner’s judicially imposed sentence is deemed not to have existed, and a new sentence, derived from a different source, became effective as if it were the original sentence. It is plain that, if the Governor had commuted peti­ tioner’s sentence before he petitioned for post-conviction relief, or even during the pendency of the post-conviction proceeding, his challenge to the constitutionality of his death sentence would not have been cognizable, because there would have been no death sentence to challenge. The post-conviction court would have had no death-sentence claim to dispose of, and petitioner consequently would have had no opportunity to assign error to any such disposition on appeal. As it happened, the Governor’s commutation did not occur until after petitioner had filed his appeal, but that does not change the fact that we must now proceed as if peti­ tioner had received a sentence of life without the possibility 98 Thompson v. Fhuere of parole from the beginning. If a post-conviction claim challenging the constitutionality of a nonexistent death sen­ tence is not cognizable, it follows that no assignment of error to the disposition of such a claim can be cognizable, either. Essentially, petitioner is asking us to resolve this appeal as though the Governor had not stepped in and commuted his sentence to life without the possibility of parole and to ignore the legal effects of that exercise of con­ stitutional authority. We cannot do so. The validity of the Governor’s action has not been challenged here—or, to our knowledge, in any other proceeding. The parties agree that petitioner is serving the Governor’s commuted sentence. Thus, for present purposes, we must treat the commutation as a valid exercise of the Governor’s constitutional authority to impose a new sentence that stands as if it had been the sentence originally imposed. To the extent that petitioner argues that, regard­ less of the commutation, he nonetheless remains entitled to a resentencing because that is what SB 1013 required or because he is entitled to the same remedy that the defen­ dants in Bartol and Rogers received, we disagree. “[T]he legislature did not make SB 1013 retroactive as to [death] sentences imposed before its effective date[.]” Bartol, 368 Or at 625. Instead, SB 1013 applied only to sentencings that occurred thereafter. Rogers, 368 Or at 700. Thus, SB 1013 itself did not provide an entitlement to a resentencing. Instead, that entitlement must be found elsewhere. As to petitioner’s argument concerning Bartol and Rogers, the cir­ cumstances of this case are qualitatively different. In those cases, the defendants were serving unconstitutional death sentences, and, on direct appeal, we vacated those sentences and remanded for resentencing so that a new sentence could be imposed. Here, unlike the defendants in Bartol and Rogers, petitioner is not serving a death sentence. Instead, he is serving the commuted sentence of life without parole. Petitioner’s argument that he is entitled to the same remedy as the defendants in Bartol and Rogers ignores the fact that the Governor commuted his sentence. In sum, in his first assignment of error on appeal, petitioner contends that, having vacated his death sentence, Cite as 372 Or 81 (2024) 99 the post-conviction court erred in declining to remand for resentencing so that a new sentence could be imposed. However, the Governor has since exercised her constitu­ tional authority to commute petitioner’s death sentence and impose a new sentence of life without the possibility of parole. The legal effect of the commutation is that the commuted sentence is treated as though it had been origi­ nally imposed, and it has been substituted for the judicially imposed death sentence that had been the focus of the post- conviction court’s inquiry. Petitioner’s first assignment of error is predicated on a sentence that does not exist and, for all relevant purposes, is deemed never to have existed. Accordingly, even if the post-conviction court erred at the time that it granted relief from the death sentence, petition­ er’s first assignment of error does not present a basis for reversing that court’s ruling. We emphasize that this resolution of petitioner’s first assignment of error is a product of how petitioner pleaded his first claim for post-conviction relief. Unlike his other claims for relief, which essentially challenge the judi­ cial proceeding that led to his death sentence, petitioner’s first claim for relief challenges the sentence itself. Petitioner alleges that it violates the constitution for petitioner to be “under a death sentence,” and, therefore, that his “death sen­ tence should be vacated.” As we have explained, the death sentence that the first claim for relief purports to challenge does not exist. Because of the commutation, any claim chal­ lenging the constitutionality of the death sentence per se necessarily fails. That is not to say that the commutation in this case precludes other claims for relief that challenge the underlying judicial proceeding that ultimately resulted in petitioner’s sentence. Petitioner’s later claims for relief are of that nature. As we next explain, petitioner is not entitled to relief as to those claims, but for reasons unrelated to the commutation of petitioner’s sentence. Petitioner’s remaining assignments of error con­ cern the post-conviction court’s resolution of his claims that the “continuing threat” and “deserves death” questions, pre­ sented to the jury in his original sentencing proceeding, were unconstitutional. Unlike petitioner’s first claim for 100 Thompson v. Fhuere post-conviction relief, which challenged the constitutional­ ity of a death sentence that subsequently was commuted, the gravamen of his other post-conviction claims is that the jury’s consideration of unconstitutional questions in deter­ mining which sentence to impose (i.e., death, life without parole, or life with the possibility of parole) amounted to a prejudicial penalty-phase error that entitled him to a remand for resentencing. We agree with the parties that, if petitioner is correct that he suffered such a prejudicial error and was entitled to a remand for resentencing, the express terms of the Governor’s commutation order do not preclude that result.7 That is so even though any sentencing proceed­ ing would now occur under the provisions of SB 1013 and, at least in the abstract, could result in an even lesser sentence of life with the possibility of parole. Accordingly, we turn to the parties’ contentions concerning the penalty-phase questions. At the outset, we reject the superintendent’s argu­ ment that we need not consider petitioner’s assignments of error concerning those questions because, even if petitioner’s claims concerning the constitutionality of the penalty-phase questions had merit, he would not be entitled to a remand for resentencing. Specifically, the superintendent argues that, if petitioner “were correct that either of the trial jury’s ‘yes’ verdicts on the second and fourth questions must be converted into a ‘no’ because the question that was answered was ‘unconsti­ tutional,’ that would provide a basis only to invalidate the death sentence; but it would not undermine the factual and legal basis for imposition of a true-life sentence instead. “In other words, once the death sentence is eliminated, the jurors’ determination of whether to impose either a true-life sentence or a sentence of life imprisonment with the possibility of parole depends, under ORS 163.150(2), on whether ‘10 or more members of the jury further find that there are sufficient mitigating circumstances to warrant life imprisonment.’ Because the trial jury unanimously 7  Because the Governor’s commutation order expressly permitted petitioner to “seek[  ] other or further relief from the courts that [he] may be entitled to,” we need not decide, and express no opinion about, the effects of a commutation that lacks such wording. Cite as 372 Or 81 (2024) 101 found that those mitigating circumstances did not warrant a sentence less than death, the jurors’ verdict necessarily included within it their determination that fewer than ten of them believed that *  *  * those mitigating circumstances warranted a sentence less than true life.” (Emphases in original.) In short, the superintendent contends that, once the death sentence was vacated, the only legally permissible sentence was life without the possibility of parole, because the jury’s answers to the penalty-phase questions demon­ strated that, as between a sentence of life without parole and life with the possibility of parole, the jury would have chosen the former. But that argument rests on an internal contradiction. The superintendent’s position on appeal is predicated on the assumption that the “continuing threat” and “deserves death” questions are unconstitutional and, as a result, the jury’s unanimous “yes” answers to those ques­ tions must be disregarded.8 But, if that is so, then one cannot simultaneously rely on those same answers—as the super­ intendent does—to infer that, if the jury had been required to choose between life with parole and “true life,” the jury would have chosen the latter. Without those answers, no other basis exists for assuming that the necessary number of jurors would have declined to find sufficient mitigating circumstances to impose a sentence of life with parole.9 Accordingly, we reject the superintendent’s threshold argu­ ment and turn to petitioner’s remaining assignments of error concerning his claims that the “continuing threat” and “deserves death” questions are unconstitutional. As we will explain, however, petitioner failed to pre­ serve his second assignment of error challenging the post- conviction court’s ruling that those claims were procedurally 8  See ORS 163.150(1)(e) (providing now, as it did when defendant was con­ victed and sentenced, that the court shall instruct the jury that it may not answer any of the death penalty questions “yes” unless “it agrees unanimously”). 9  See ORS 163.150(2)(a) (providing now, as it did when defendant was con­ victed and sentenced, that, if the jury answered any of the death-penalty ques­ tions in the negative, the trial court was required to sentence the defendant to “life imprisonment without the possibility of release or parole,” unless “10 or more members of the jury further find that there are sufficient mitigating circum­ stances to warrant life imprisonment,” in which case the trial court is required to sentence the defendant to life imprisonment with the possibility of parole). 102 Thompson v. Fhuere barred. Because that failure obviates the need for us to con­ sider petitioner’s third and fourth assignments concerning the merits of those claims (i.e., whether each question was unconstitutional), we do not address them further and limit our discussion to petitioner’s second assignment. In that assignment, petitioner contends that the post-conviction court erred in ruling that his claims concern­ ing the “continuing threat” and “deserves death” questions were “untimely” when the state had “conceded otherwise.” Petitioner’s entire argument in support of that assignment of error in his opening brief is as follows: “The [superintendent] could have but did not assert that [petitioner’s] petition was untimely. In fact, it expressly conceded timeliness. In any event, the issue was waived. “[‘The state] could have raised the Statute of Limitations as an affirmative defense in an answer or in a motion to dismiss. ORCP 19 B; ORCP 21 A(9). [The state] did nei­ ther, and thereby waived that defense. ORCP 21 G(2). “[‘Allowing [the state] to raise the Statute of Limitations for the first time on appeal would deprive petitioner of any opportunity to present evidence that would show why the petition raises grounds for relief that could not reasonably have been raised in a timely fashion. ORS 138.510(2). [The state] may not do so.[’]” “Palmer v. State [of Oregon], 121 Or App 377, 380, 854 P2d 955 *  *  * (1993), aff’d [in part on other grounds], 318 Or 352, 867 P2d 1368 (1994).”10 As we will explain, the fundamental problem for petitioner is that he never raised those bases (i.e., concession and waiver) in the post-conviction court, and they are therefore unpreserved. “The general requirement that an issue, to be raised and considered on appeal, ordinarily must first be pre­ sented to the trial court is well-settled in our jurisprudence.” Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008). Among other things, “[p]reservation gives a trial court the chance to consider and rule on a contention, thereby possibly 10  ORCP 21 A(9) is now set out at ORCP 21 A(1)(i), and ORS 138.510(2) is now set out at ORS 138.510(3). Cite as 372 Or 81 (2024) 103 avoiding an error altogether or correcting one already made, which in turn may obviate the need for an appeal,” and it “also ensures fairness to an opposing party, by permitting the opposing party to respond to a contention and by other­ wise not taking the opposing party by surprise.” Id. Here, to demonstrate that petitioner failed to preserve his appellate contention that the post-conviction court erred in ruling that his claims concerning the penalty-phase questions were pro­ cedurally barred, we describe the pleadings and proceedings before the post-conviction court in some detail. In his successive petition for post-conviction relief, petitioner conceded that the petition had been “filed more than two years after finality,” but he contended that, because it was “premised” on SB 1013, Bartol, and Rogers, “the grounds for relief *  *  * could not reasonably have been raised previously or in [his] previous [post-conviction] peti­ tion.” Put simply, petitioner alleged that his claims “were not available previously” and were “timely, not improperly successive, and meritorious pursuant to ORS 138.530(1)(c),” which provides, in part, that post-conviction relief shall be granted when a petitioner establishes the “unconstitution­ ality of [his] sentence.” The superintendent admitted, in his answer, that petitioner’s death sentence could not be main­ tained and that “petitioner could not reasonably have raised the claims based on SB 1013 and [Bartol] in his previous petition for post-conviction relief and within the time limita­ tion set by ORS 138.510(3).” (Emphasis added.) However, the superintendent “otherwise denie[d]” petitioner’s allegation that “the grounds for relief *  *  * could not reasonably have been raised previously or in [his] previous [post-conviction] petition.” In other words, as the superintendent explained, he “agreed that petitioner ‘could not reasonably have raised’ in his previous petition the claims that he alleged in this petition but only to the extent that those actually are ‘based on SB 1013 and *  *  * Bartol.’  ” (Emphasis in original.) In moving for summary judgment on the claims concerning the penalty-phase questions, petitioner clari­ fied that, although his arguments drew “support from the legislative changes brought about by SB 1013,” his claims were “founded on the contention that both questions were 104 Thompson v. Fhuere unconstitutional at the time of [petitioner’s] trial—before SB 1013 became law.” (Emphasis added.) Petitioner sub­ sequently filed a memorandum in support of his motion, explaining why, in his view, those penalty-phase questions were unconstitutional. In his cross-motion, the superintendent asserted that—“[a]s explained in [his] supporting memorandum,” which also served as his response to petitioner’s summary judgment motion—petitioner’s claims concerning the two penalty-phase questions did not provide “any legal basis for [the] court to grant petitioner post-conviction relief.” Specifically, in the supporting memorandum, the superin­ tendent argued, among other things, that those two claims were procedurally barred under ORS 138.510(3) and ORS 138.550(3), and, in all events, lacked legal merit. Petitioner did not file a response to the superintendent’s cross-motion or seek to file a reply to the superintendent’s response to his summary judgment motion, explaining why, in his view, the superintendent had conceded timeliness (or otherwise waived that issue). At the summary judgment hearing, the parties’ arguments focused on whether the post-conviction court had authority to modify petitioner’s sentence or whether a remand for resentencing was required. At the conclusion of the hearing, the post-conviction court ruled that the “con­ tinuing threat” and “deserves death” questions were “both time-barred and procedurally barred,” noting that those questions had been “on numerous occasions challenged at the Oregon Supreme Court and upheld as appropriate,” and that petitioner had had “direct appeal, post-conviction relief, and other options to challenge that.” Again, petitioner did not alert the post-conviction court that, in his view, the superintendent had conceded timeliness (or otherwise waived that issue). Following the hearing, the superintendent, as directed, prepared an order and judgment for the post- conviction court’s signature; however, the parties disagreed about the court’s ruling as to the claims concerning the penalty-phase questions. In a letter to the court, the super­ intendent explained, “Petitioner’s counsel has informed me Cite as 372 Or 81 (2024) 105 that he believes [the court] ruled that [those claims] have no merit. My recollection of the ruling is that those claims are procedurally barred. Because of counsels’ disagreement as to your ruling, I have prepared two different orders.” Even at that point, petitioner did not seek to alert the post- conviction court to the contentions that he now raises on appeal. Ultimately, the post-conviction court issued an order providing that the superintendent was entitled to summary judgment on petitioner’s second and third claims for relief, explaining, as it had at the conclusion of the hearing, that those claims were “procedurally barred by ORS 138.510(3) and ORS 138.550(3).” See ORS 138.510(3) (generally pre­ cluding untimely petitions); ORS 138.550(3) (generally pre­ cluding improperly successive petitions). In sum, petitioner’s successive petition included an allegation that his claims could not reasonably have been raised earlier. Thereafter, the superintendent disputed that assertion, yet petitioner did nothing to alert the post- conviction court to his view that the superintendent none­ theless had somehow “waived” or “conceded” that issue, as petitioner now asserts. On review, in contending that the post-conviction court erred, petitioner relies on the superin­ tendent’s concession that petitioner’s claims were timely to the extent that they were based on SB 1013 and Bartol, and on his related assertion that the claims could not “be subject to any procedural bar” because SB 1013’s elimination of the “continuing threat” question and its imposition of a “beyond a reasonable doubt” standard on the “deserves death” ques­ tion demonstrate that both questions are unconstitutional as measured by evolving standards of decency and events that occurred after petitioner’s trial, direct appeal, and prior post-conviction proceeding. (Emphasis added.) But that argument disregards the fact that the superintendent expressly argued to the post-conviction court that petition­ er’s claims could have been raised even before SB 1013 and Bartol, and that the procedural bars therefore applied. In light of those arguments, it was incumbent on petitioner to inform the post-conviction court of his position that the 106 Thompson v. Fhuere superintendent had conceded timeliness or, in all events, had waived the issue. He did not do so. Accordingly, petitioner did not preserve his chal­ lenge to the post-conviction court’s ruling that his claims for relief concerning the penalty-phase questions were pro­ cedurally barred under ORS 138.510(3) and ORS 138.550(3). III.  CONCLUSION After the post-conviction court entered its judgment resolving petitioner’s first claim for post-conviction relief by vacating his death sentence and modifying the sentence to life without the possibility of parole instead of remanding for resentencing, the Governor stepped in and commuted petitioner’s death sentence to a sentence of life without the possibility of parole. As we have explained, even if the post- conviction court erred at the time that it made its ruling, petitioner is not entitled to the relief that he requests on appeal (i.e., a reversal of the post-conviction court’s judg­ ment and a remand for resentencing). That is so because the Governor’s commuted sentence became the operative sen­ tence, as though it had been the sentence originally imposed, and, as a result, petitioner is not entitled to relief concerning the judicially imposed sentence that had been the focus of the post-conviction court’s inquiry. In addition, petitioner failed to preserve his challenge to the post-conviction court’s ruling that his claims concerning two of the penalty-phase questions were procedurally barred. Accordingly, we affirm. The judgment of the post-conviction court is affirmed.

99131f147d7bd954a2fdfcf500330c817acf9a707925e17e5ce6448938f071b0

2024-03-14T00:00:00Z

3dbcfae2-869b-424b-9c36-89c11cb10109

Lingel v. Maudlin

188 Or. 147, 212 P.2d 751

oregon

Oregon Supreme Court

Reversed and remanded December 20, 1949. Petition for rehearing denied February 15, 1950. *148 George T. Cochran, of La Grande, and John R. Ewing, of Caldwell, Idaho, argued the cause for appellant. On the brief were Cochran & Eberhard, of La Grande, and Smith and Ewing, of Caldwell, Idaho. Harold Banta, of Baker, argued the cause for respondent. On the brief were Hallock, Donald, Banta & Silven, of Baker. Before LUSK, Chief Justice, and BRAND, BAILEY, HAY and PAGE, Justices. *149 BRAND, J. This is a suit in equity brought by Elizabeth L. Lingel, the divorced wife of defendant Nathan B. Maudlin wherein the plaintiff seeks an order awarding to her the custody of the minor children of the parties and the consequent modification of the order of an Idaho court which gave to the defendant the custody of said children subject only to plaintiff's right of visitation at reasonable times and places. The Oregon court denied plaintiff's prayer for general custody of the children but did enlarge plaintiff's right of visitation and granted to her the custody and control of the minor children for a period of two months during the summer vacation of each year and the custody during the Christmas school vacation in every other year beginning with the year 1950. The decree also contains certain other provisions limiting and defining the above mentioned rights of visitation and custody. From this decree the defendant has appealed. *150 On 25 November 1944 the plaintiff secured a divorce from the defendant in the state of Idaho and was granted custody of the minor children, the issue of the marriage. On 22 November 1946 the defendant applied to the Idaho court for modification of the divorce decree so as to award to him the custody of the minor children upon the ground that conditions had changed since the entry of the divorce decree. Upon trial of the issue the Idaho court made findings of fact to the effect that the plaintiff had failed properly to care for, support, train and educate the children during the period of her custody, and that since the entry of the divorce decree she had shown herself unfit, neglectful and irresponsible in caring for the children and that the continuance of her custody would do irreparable harm to the personality and character of the children. It also found that the defendant was a fit and proper person to have the custody of the children and that the welfare of the children required that they be given into the custody of the defendant. The Idaho court on 21 February 1947 entered the decree awarding to the defendant the custody of the two minor children. The plaintiff appealed to the Supreme Court of the state of Idaho which on 2 January 1948 affirmed the lower court. Maudlin v. Maudlin, 68 Ida. 64, 188 P.2d 323. The defendant established residence for himself and the minor children in La Grande, Union County, Oregon. Relying upon the decision of this court in Bartlett v. Bartlett et al., 175 Or. 215, 152 P.2d 402, the plaintiff brought this equity suit as an expeditious form of procedure instead of instituting proceedings in the nature of habeas corpus, for the purpose of securing custody of the children. Plaintiff alleges in her complaint *151 that there has been a decided change in conditions since the decree of the Idaho court. She alleges that after the Idaho divorce she was compelled to earn her own living and was obliged to leave the children, Beverly Joan Maudlin, now about nine years of age and Bernard Nathan Maudlin, now about five years of age, with her parents; that she has since remarried and is living with her husband on a sixty acre dairy and stock farm near Emmett, Idaho; that there is a comfortable dwelling house on the premises; that her husband is earning a fair livelihood and that she will be able to devote her full time in making a home and caring for the children. She alleges that the defendant has also remarried and that his present wife has a daughter who would now be about five years of age, and in substance that the defendant, her former husband, has no permanent or steady employment and is unable properly to maintain a family of five. She alleges further that the defendant has deliberately and intentionally obstructed and interfered with her reasonable rights of visitation of the children and has never permitted her to be with them except in the presence of the defendant or his wife. The prayer of plaintiff's complaint is for an order awarding the custody of the minor children to her. The defendant by way of answer alleges that the plaintiff wrongfully interfered with his custody of the children after it had been awarded to him by the Idaho court. He alleges that he is employed as a carpenter, has a comfortable home, that the children are being well taken care of and that the plaintiff is an unfit person to have the custody of the children. In her reply the plaintiff, as further evidence of material change of conditions, alleges that at the time of the *152 Idaho order awarding custody to the defendant, the defendant resided at Huntington, Oregon, and the plaintiff near Weiser, Idaho, a distance of only fifteen or twenty miles, but that the plaintiff now lives near Emmett, Idaho, and the defendant has moved to La Grande, Oregon, so that the parties now reside about 160 miles apart rendering it difficult to exercise her right of visitation at the home of the defendant. Defendant assigns as error the provisions of the Oregon decree which give to the plaintiff the right of visitation and which authorize "taking them [the children] from the home of the defendant for such visits for a period of not more than three hours of the fourth Saturday or Sunday of each month, or on both of said days, if she so desires; such visits to be during the day time and at such hours as not to interfere with the normal times of rising and retiring for said children, but otherwise to be at the convenience of the plaintiff." He also complains of the order awarding to the plaintiff the care and custody of the children during the summer months of the school vacation and during the Christmas school vacation in every other year. Defendant asserts that there is no substantial change of conditions warranting a change of custody or any change in the order of the Idaho court and that the order of the Oregon court therefore violated the rule of res adjudicate. 1-6. The divorce decree of the Idaho court, in so far as it pertained to the rights of custody and visitation, being subject to modification in that state, was not a final decree. Nor was the Idaho order of modification final. It follows that the full faith and credit clause of the federal constitution did not bar the Oregon court from hearing the case on its merits after the *153 defendant and the children had established residence in this state. Bartlett v. Bartlett, supra, and cases cited. Nevertheless it was incumbent upon the plaintiff to show that conditions had so changed since the order of the Idaho court as to warrant a change in its provisions. No change of legal custody should be made unless the evidence establishes such change of condition relative to the welfare of the children as justifies modification. Leverich v. Leverich, 175 Or. 174, 152 P.2d 303; Griffin v. Griffin, 95 Or. 78, 187 P. 598. It is true, as alleged, that the homes of the plaintiff and defendant are now further apart than was formerly the case, a circumstance which undoubtedly increases the difficulties involved in the exercise of the right of visitation by the plaintiff, but that change of condition is not one which, in our opinion, materially affects the welfare of the children. We have laboriously reviewed 300 pages of transcript and lengthy exhibits, and are of the opinion that the trial court properly denied the request of the plaintiff for change of custody of the children. No contention is made by the plaintiff that the defendant is an unfit person to have the care and custody of the children. The evidence satisfies us that he is able to assume the burden of their support at his home. On the other hand, the evidence raises serious doubts as to the character of the plaintiff and tends to support the finding of the Idaho court to the effect that she was not a suitable person to have the custody of said children. The evidence also indicates that the conditions found by the Idaho court have continued down to the date of trial of this suit. The defendant offered in evidence a certified copy of the complaint in a suit for divorce brought against the plaintiff by her husband, Lester Lingel. While the allegations in that complaint should not be treated *154 as proof of the facts alleged, nevertheless the fact that a divorce suit is pending between the plaintiff and her husband is material, especially in view of her allegation that she is living with her present husband who is earning a comfortable livelihood, making it possible for her to devote her full time to the care of home and children. The trial court rejected the offer in evidence of the divorce complaint upon the apparent ground that it was not filed until after the filing of the complaint in the case at bar and the court refused to permit a supplementary pleading to be filed setting up the fact of the divorce suit. The copy of the complaint was nevertheless received under the equity rule and is before us. We think it was admissible in evidence as bearing upon the probable ability of the plaintiff to care for the children if placed in her custody. The evidence of numerous witnesses and certain admissions by the plaintiff establish that plaintiff had herself intended to divorce her present husband for a considerable period of time and had so declared. Other evidence raises serious doubt as to the character and reputation of the plaintiff. We deem it unnecessary to review the testimony in detail. In the opinion of this court the plaintiff has failed to establish by a preponderance of the evidence that any conditions relative to the welfare of the children have materially changed since the order of the Idaho court, with the exception of the matter of visitation rights now to be discussed. In plaintiff's brief it is emphatically asserted that "all that is really involved in the present appeal is visitation rights". The great bulk of the voluminous testimony heard by the trial court relates to bitter, unreasonable and unjustified controversies and quarrels *155 between the plaintiff and defendant, involving also plaintiff's parents and the defendant's present wife, concerning the exercise of the rights of visitation. When the plaintiff was in possession of the children during the pendency of the Idaho litigation, the quarrels related to the right of the defendant to visit. In that connection the evidence satisfies us that the plaintiff on several occasions threatened violence, either to the defendant or to the children, if they should be taken from her, although we do not mean to say that she intended to carry out her threats. After the defendant had secured the possession of the children and when the plaintiff attempted to exercise her legal right of visitation, we find that the defendant was as cantankerous and unreasonable as the plaintiff had been. Plaintiff was never permitted to be with the children unless the defendant or his wife was present. We quote the testimony of the defendant Maudlin: 7, 8. This case is typical of many in which bitter enmity arises between the divorced parents of children in connection with the rights of visitation, especially when the divorced mother seeks to exercise her rights in the home and in the presence of her former husband and his present wife. We think the court erred in providing that the plaintiff should have the actual *156 custody and control of the minor children for two months in the summer and during the Christmas holidays in every other year. If the children are not to become a shuttlecock in the bitter game of competition over their custody and affection they must be assured of settled habits of life. It is through no fault of the children or of this court that they cannot enjoy the concurrent affection of both the father and mother. On the other hand, even if no provision were made in the decree, the plaintiff would have the right of reasonable visitation of the children. Of this she has been wrongfully deprived. The plaintiff is entitled to a decree which will protect her in the full enjoyment of that right and for the purpose of avoiding other disputes, her rights should be made specific. We find that she is entitled to visit either or both of the children at her option; to take one or both of them with her from the home of the defendant for the purpose of such visits; that she is entitled to make such visits on the fourth Saturday or Sunday of each month or on both the fourth Saturday and the fourth Sunday of each month, and each such visit may at her option extend from one o'clock p.m. until 6 o'clock p.m. of each such day. During the period of such visits she may at her option have the children either at the home of the defendant or away from the home of the defendant and in the absence of the defendant or of his wife or of any person representing the defendant. 9. To the end that the rights herein granted shall be exercised without excess by the plaintiff and without interference by the defendant and without discourtesy by either party, this case will be remanded to the circuit court with directions to enter a decree in accordance with the provisions of this opinion by the terms of *157 which the plaintiff shall be directed and required to serve notice upon the defendant by mail of any intended visit to the children, such notice to be given at least five days prior to said visit. Plaintiff shall further be required and directed to safely keep said children while in her temporary control for the purpose of visitation, not to remove them at any time to any distance greater than fifty miles from the home of defendant and to safely return them in accordance with the terms of the decree. The said decree shall further enjoin and restrain the defendant from causing or permitting any interference with or interruption of the rights of visitation hereby granted to the plaintiff or until further order of any court having jurisdiction. The said decree shall further provide that the violation of the requirements thereof may be punished as a contempt of court. 27 C.J.S., Divorce, § 316, p. 1184. In accordance with the ruling in the recent case of Levell v. Levell, 183 Or. 39, 190 P.2d 527, we hold that any further failure on the part of either party to comply in good faith with the orders of the decree would also constitute ground for a reconsideration by the trial court concerning the extent of visitation rights. The specific provisions which shall be incorporated in the decree of the circuit court shall be without prejudice to the rights of the parties to make specific voluntary agreements for additional visitations at times other than those specified in the decree. The cause is remanded to the circuit court with directions to enter a decree in conformity with the directions contained in this opinion. Neither party will recover costs.

c7ed8dbf3425dd384aa91d1156d0ef24016899944c72103f893c7c92927d6724

1949-12-20T00:00:00Z

06acee1b-76a8-47b1-8e9e-792f79aab3cb

Rose Et Ux. v. Denn Et Ux.

188 Or. 1, 213 P.2d 810

oregon

Oregon Supreme Court

Affirmed December 13, 1949. Petition for rehearing denied January 24, 1950. *2 Avery W. Thompson and William D. Green, Jr., of Roseburg, argued the cause and filed a brief for appellants. Carl M. Felker, of Roseburg, argued the cause for respondents. With him on the brief was Paul E. Geddes, of Roseburg. *3 Before LUSK, Chief Justice, and BRAND, ROSSMAN, BAILEY, HAY and PAGE, Justices. ROSSMAN, J. This is an appeal by the defendants from a decree of the Circuit Court which held that the plaintiffs "are the owners and users of an easement and way of necessity, more particularly described as follows, * * *. The defendants and each of them be and they hereby are perpetually restrained and enjoined from in any manner closing or interfering with the use and travel of said easement and way of necessity by the plaintiffs * * *." The easement and way of necessity sustained by the challenged decree extends across a tract of land which is owned by the defendants-appellants, Henry Denn and Nora Denn, husband and wife. The other defendants-appellants have an interest in the Denns' property, but the interest is immaterial to the issues in this case. Our use of the term "the appellants" will hereafter mean the defendants-appellants, Henry Denn and Nora Denn. All of the lands involved in this suit are situated in Sections 25, 26 and 35, Township 29 South, Range 9 West, Willamette Meridian, and are near Camas Valley in Douglas County. *4 A glance at the following sketch, which makes no pretense at accuracy, will facilitate an understanding of the facts which we shall presently narrate. *5 The ownership by the respondents, who are husband and wife, of the Northeast quarter of the Northwest quarter of Section 35, being the 40-acre tract which our sketch shows, is conceded. The respondents were the plaintiffs in the Circuit Court. Likewise conceded is the fact that the appellants own the tracts attributed to them by our sketch. Their lands are: From the appellant's brief, we quote the following: *6 The quoted language mentions a conveyance made by Jacob Denn to Henry J. Denn in 1894. The conveyee, Henry J. Denn, was the son of the conveyor and father of the appellant, Henry Denn. It is the contention of the respondents that since the conveyed tract lay between the public road and other tracts which the conveyor owned, an implication arose that the conveyor reserved an easement or way of necessity across the conveyed lands. The thoroughfare shown on our sketch and marked "public road" is a county road which was opened in 1874. Thus, the easement, recognized by the decree, is not imposed upon the retained land, but upon the conveyed property. The quoted statement speaks of the "present" existence of the road which it mentions, but the appellant, Henry Denn, as a witness, conceded that the road was in use as long ago as 1914. That road is the "easement and way of necessity" claimed by the respondents and mentioned in the part of the decree which we quoted. We made no effort to trace it upon our map. Hereafter when we employ the term, "the road", we will mean the purported "easement and way of necessity"; that is, the road described in the sentence which we just took from the appellants' brief. It will be observed from the statement which we quoted that the road terminates at its western extremity in the respondents' 40-acre tract of land. Its eastern end leads into the county road which shortly, in its southerly course, joins the Coos Bay Highway. The road (easement) is the same one which was the subject matter of Baum v. Denn, decided by us November 15, 1949. The respondents' tract contains a stand of timber and is unimproved. The appellants' land is improved with a dwelling house and farm structures. *7 The complaint alleges: That averment is denied by the answer, but the part concerning deraignment of title from a common source was conceded, as well as established, by evidence at the trial. The complaint alleges that January 10, 1945, the appellants erected a barrier across the road and denied the respondents the privilege of using it any further. The respondents' brief claims that they obtained their right to the use of the road in the following ways: (1) "By implied right or grant"; (2) "right to travel the same by reason of the way of necessity"; (3) "if, as the appellants contend, there is no implied right, then the respondents and their predecessors have acquired their rights to the same by adverse use, as shown by the testimony of both appellants and respondents as to the many years that the roadway was in use and travel." The appellants present the following contentions: (1) "The record does not show evidence *8 that the respondents acquired the described easement by prescription"; (2) "the doctrine of implied easement does not apply"; and (3) "the doctrine of a way of necessity does not apply." Although the parties express their contentions in the words just quoted, the issues to which they devoted their major efforts during the trial were these: (1) Does any public road lead to the tract owned by the respondents? and (2) was it necessary for the respondents to travel upon the appellants' land in order to reach a public thoroughfare? During the trial the respondents contended that no public road reached their property and that the appellants' land lay between respondents' and the public thoroughfare. The appellants controverted those propositions. During the trial they contended that a public road known as the Amstein Camas Valley road touched the respondents' tract and that another known as the Southwick road or the Holmes Creek road was available to them. Further, they contended that the predecessors in interest of the respondents, in going to or from the land now owned by the respondents, did so by passing through an area termed by the appellants "the back pasture." The answer affirmatively alleges: *9 The affirmative averments of the answer also say: We shall now take notice of the evidence applicable to those contentions. Jacob Denn, whom we have mentioned, received a deed in 1893 which conveyed to him a thousand acres lying in Sections 25, 26 and 35, and which included all of the land now owned by the parties to this suit. April 9, 1894, he gave to his son, Henry J. Denn, the father of the appellant, Henry Denn, a deed which conveyed to him the Southeast quarter of Section 26. There was no consideration for the deed; the transfer was a gift. The Southwest corner of that quarter touches the Northeast corner of the 40-acre tract now owned by the respondents. When that conveyance was made, the conveyor owned land to the west of the quarter section which he was giving to his son. Neither the retained land nor the conveyed quarter section bordered upon or in any other way touched a public road. One Zack Murray, a witness for the respondents, who has lived in Camas Valley for more than seventy years, testified: By "a road" he meant the road in question. Going on, he said: *10 By "he" he meant the appellant, Henry Denn. When this witness first saw the road it ran between the house now occupied by the appellants and a barn. Later, its course was altered so that it turned to the left where it came to the barn lot and no longer passed through it. No other material change in the road was mentioned by any witness. Mr. Murray swore that the road "has been used for better than seventy years." He also testified: Upon cross-examination, the following occurred: *11 There was a man by the name of Doney, he had the Southeast of the Southwest quarter and I think Fred Southwick owns that now of Section 35 and this road crossed right in the forty that Mr. Rose owns and went off and came out at the south side of his forty. Mr. Murray's testimony, if true, warrants a belief that long before Jacob Denn gave his son the quarter section, a road had been established across the quarter and was used as a means of access to and egress from land west of the quarter, including the 40-acre tract now owned by the respondents. The part of that road which lay between the county road and the conveyed quarter afforded access to the latter. That part crossed land owned by Jacob Denn. Mr. A.F.C. Frear, for twenty-six and one-half years, has been county road master of Douglas County. Prior to that he worked under a former road master and at one time was deputy county surveyor. He testified that no public road touches, crosses or affords access to the respondents' property. Bert Nealy, a witness for the respondents, who has lived for forty years in Camas Valley, has been familiar with the road across the appellants' land during all of those years. We quote from his testimony the following: Anna Nealy, another witness for the respondents, began forty-five years ago a course of residence upon the 40-acre tract immediately to the east of the plaintiffs'. While living there she went in and out upon the road in question. Her means of transportation, as described by her, were "horseback and with wagon once in a while." She made it clear that the road over which she traveled as long ago as forty-five years was the road in question, by saying: "The same road they are using now, only change that went through by Mr. Denn's house and barn." As we have explained, in its earlier stages the road went between the house and the barn. In some previous year, unmentioned by any witness, the course of the road was changed so that it went to the rear of the barn. The witness explained that the county road into which the alleged way of necessity empties at its eastern extremity "has been there years longer than my time." *13 The foregoing is a brief synopsis of the testimony given by some of the respondents' witnesses. The credibility of none of them was challenged. It will be seen that this evidence indicates that seventy years ago a roadway extended across the appellants' property which had its western end in the 40-acre tract now owned by the respondents and its eastern extremity at a county road. The appellant, Henry Denn, 42 years of age, was born upon the property which he now owns, but he added, "I lived in town most of the time." Evidently his familiarity with the adjacent property is not intimate, for, upon cross-examination, he protested, "I don't know much about them. I don't pretend to know." He recalled the road in question from the time he was a boy, "just playing marbles." Like the other witnesses, he indicated that the present road follows its original course, with the exception of the change around the barnyard. In 1940 one Jacob Denn, a cousin of the appellant, Henry Denn, owned the 40-acre tract which the respondents now own. That Jacob Denn was a grandson of the Jacob Denn to whom we have frequently referred, and derived his title from him. In February, 1940, Jacob Denn (the cousin) was negotiating a sale of the forty acres to one Oran C. Standley, and in its course showed Standley the property. It was the appellant, Henry Denn, who took his cousin, as prospective vendor, and Standley to the property. In going there, the party traveled over the road in question. The appellant, as a witness, made no claim that he told Mr. Standley or his cousin that they had no right to travel the road or that the latter could be barricaded at any time. In fact, if he mentioned the road during the trip *14 he failed to disclose that matter when testifying. Standley received a deed of conveyance February 8, 1940, and four years later conveyed the property to the respondents. The appellant, Henry Denn, testified that during the time his grandfather owned the forty acres which the respondents now hold, he cut down and removed from it some timber, but swore that the logs were taken out "through the back pasture and around the other road." We find it impossible to gain any clear impression from this witness' testimony as to the whereabouts of the "other road." Efforts were made to elicit from others testimony concerning a road which lay in the back pasture, but their vague statements give no clear impression as to where it lay or how it connected with any existing public road. One witness, in telling about this elusive "other road", indicated that its course entered into Section 23 and "the Barney Carey place." There is no evidence that Jacob Denn owned any property in that section. It is clear that this "other road" was not a public thoroughfare. Other testimony presented by the appellants indicates that there were gates upon the road; that is, the alleged way of necessity. Still other evidence that came from the same source endeavored to show that there was a road which led from land to the east of the respondents' and which, pursuing a southeasterly course, connected with the county road. Some of the witnesses referred to that road as the Southwick road and others termed it the Holmes Creek road. The major part of it is owned by a concern engaged in the logging industry. If we have gained the correct conception of it, it is scarcely passable at its northwestern extremity. It is clear that it is not a public road and that the respondents have no right to use it. *15 The appellants offered much evidence in an effort to show that a public road known as the Amstein Camas Valley road exists and that it affords the respondents access to and egress from their property. According to the record, a petition was filed in February, 1903, for the establishment of that road. Later the county surveyor and the viewers who were appointed performed the functions exacted of them by our laws. But, so far as the record shows, nothing further was done. Section 4785, Bellinger and Cotton's Code, which was then in effect, said: So far as we know, that action was never taken and the road was never established. Mr. Frear, whom we have already mentioned, testified that the Amstein Camas Valley road is "only a road on paper, a paper road" and that the county never opened it nor spent a cent upon it. The trial judge took the commendable course of visiting the areas we have mentioned in an effort to gain a clearer conception of the facts. While one of the appellants' witnesses was upon the stand giving testimony which indicated that the Amstein Camas Valley road was open and subject to public use, the trial judge addressed him as follows: The witness replied: We think that the Amstein Camas Valley road never achieved even the status attributed to it by Mr. Frear's expression, "a paper road." Evidently the efforts to establish it were abandoned before the time occurred for the county court to enter the order authorized by § 4785, Bellinger and Cotton's Code. In March, 1907, Jacob Denn, father of Henry J. Denn, who still owned large tracts east of the quarter section which he conveyed to his son in 1894, deeded to the latter: In May, 1921, the heirs of the aforementioned Jacob Denn signed a quitclaim deed which conveyed to appellant Henry Denn's father the Northwest quarter of the Southwest quarter of Section 25, The respondents argue that the provisions in those deeds for roadways warrant an inference that when Jacob Denn conveyed additional lands to his son he wished the assurance of written words that he would have access to his remaining lands which lay far west of the county road. They make the same argument concerning the deed executed by the heirs. In any event, the reservations indicate that the owners of land in the vicinity of the respondents got in and out by the contested road. The deed which Jacob Denn and his wife gave to their son, Henry J. Denn in 1894 said: The above is a review of all the evidence which indicates whether or not the property now owned by the respondents has had at any time access to and egress from a public highway except over the road which leads across the appellants' lands. *18 We believe that the evidence clearly warrants a finding that for about seventy years before this suit was filed a road extended across the land now owned by the appellants. Evidently the road was in use for fifteen years or more before Jacob Denn, the grandfather of appellant Henry Denn, received the conveyance in 1893 of the thousand acres, which included all of the land now owned by the appellants and the respondents. It is that road which the decree of the Circuit Court holds is a way of necessity available to the respondents. We think that the road was clearly defined and that its purpose was obvious in 1894 when Jacob Denn gave his son a deed to the Southeast quarter of Section 26. It will be observed that the son, Henry J. Denn, father of appellant Henry Denn, upon receiving his father's deed, could not reach the quarter section which was given to him without crossing land owned by his father and which the latter retained. The father's retained land lay between the county road and the conveyed quarter section. Likewise, the father had no practical, if any, way of getting to or from his lands which lay west of the conveyed Southeast quarter of Section 26 without crossing the quarter section. Obviously, the route which both father and son were compelled to employ was the road in question. In short, the father crossed his son's land and the son crossed his father's. No one claims that either of them ever endeavored to deny the other use of the road. According to the evidence, a gate, or possibly more than one, was encountered along the road. We think, however, that the purpose of the gates was not to exclude those who were traveling to properties remote from the county road, but to restrain wandering livestock. The presence of the gates, of course, indicates that they were a part of fences which *19 bordered the road; in fact, some witnesses mentioned the fences. The latter further defined the course of the easement and set it apart from the adjacent fields. Finally, we are satisfied that no effort was made until recently to prevent anyone from using the road who had occasion to go to the respondents' 40-acre tract. 1. From § 474, Restatement of the law, Property, we take the following: Manifestly, no one probed the mind of Jacob Denn in 1894 when he handed the aforementioned deed to his son, Henry J. Denn, and in that manner discerned his wishes concerning the contested road. But, as we see from the language just quoted, we are justified in analyzing the circumstances of which we have taken notice for the purpose of ascertaining whether the conveyor, by implication, reserved an easement over the conveyed tract. From § 476, Restatement of the Law, Property, we quote: It will be recalled that the deed which Jacob Denn gave to his son in 1894 was a general warranty deed. Although the appellants do not claim that the terms of that instrument preclude the existence of the alleged easement, we believe that it is well to take note of the following comment appended to § 476 of the Restatement, at page 2980: That statement is followed with the following illustration: At page 2981, the comment says: The comment following § 476 says, at page 2982: Going on we find at page 2983: We resort again to the comment. This time to page 2985: Finally, we take the following from page 2988: Most of the above principles governing the implication of an easement by way of necessity have received recognition by this court. Some of our holdings are: Ford v. White, 179 Or. 490, 172 P.2d 822; Penn Mutual *24 Life Ins. Co. v. Nelson, 170 Or. 248, 132 P.2d 979; Dean v. Colt, 151 Or. 331, 49 P.2d 362; Beck v. Lane County, 141 Or. 580, 18 P.2d 594; Fendall v. Miller, 99 Or. 610, 196 P. 381; Tucker v. Nuding, 92 Or. 319, 180 P. 903; Brown v. Kemp, 46 Or. 517, 81 P. 236. A well-reasoned decision by the Pennsylvania court, which the respondents called to our attention, is Liquid Carbonic Co. v. Wallace, 219 Penn. State 457. For a good short discussion, see 19 Or. Law Rev. 362. Nothing said in Malsch v. Waggoner, 62 Wash. 470, 114 P. 446, which has been submitted to us, detracts in any way from the rules interpreting the effect of evidence submitted for the establishment of an implied way of necessity. That decision says: Those appellants were the owners of tract C. We deem it unnecessary to discuss the controlling principles of law any further. They are well set forth in the material we quoted from the Restatement. Most of the language which we took from the Restatement is not law, but common-sense reasoning. It appeals to us as sound and practical. It shows a superior method of determining whether or not an inference is warranted that an easement, of necessity, was impliedly granted or reserved. *25 2. There remains for expression only our application of those principles to the facts before us. When Jacob Denn, in 1894, made his son, Henry J. Denn, a gift of the Southeast quarter of Section 26, he still owned large tracts of land west and east of the conveyed quarter section. Unless he employed the road in question, he could not reach his lands west of the conveyed quarter section except by pursuing a circuitous course through an undefined area which some of the witnesses termed "the back pasture." That route seemingly involved passage over the property of others. We know of nothing in the record which shows that any appreciable use was ever made of the back pasture route. We are satisfied that Jacob Denn never used it as a means of reaching the county road. The equivocal references to that route made by a couple of witnesses certainly cannot justify a holding that it constituted a practical means of reaching the property now owned by the respondents. The road in question was, we think, indispensable to both conveyor and conveyee. It was of reciprocal value to each. It afforded the father the means of reaching the lands to the west of the conveyed quarter section, and enabled the son to go from his newly-acquired tract eastward across his father's land to the public thoroughfare. When the father, in 1894, gave his son the deed, the road was well defined upon the ground and obvious to both conveyor and conveyee. It would be absurd to believe that the father who gave the deed as a gift, possibly in the nature of a family distribution, intended that the easement, of great value to him, should be blotted out. In view of all the circumstances and the fact that the conveyee paid nothing for the conveyance, we do not believe that the language of the deed, which is quoted in a preceding paragraph, forecloses *26 the alleged implied easement. We think that it is clear that both grantor and grantee intended to reserve, across the conveyed quarter section, a way of necessity, and that a similar easement was reserved in subsequent conveyances. In short, we believe that the alleged way of necessity exists, and that the decree of the Circuit Court is correct. That decree is affirmed. Avery W. Thompson and William D. Green, Jr., of Roseburg, for appellants. Geddes & Felker, of Roseburg, for respondents. PETITION DENIED. ROSSMAN, J. 3. The appellants' petition for a rehearing says: Exhibit J was the inventory filed in the estate of Jacob Denn, deceased. It was signed in 1915 and listed the property which the deceased owned at the time of his death in 1915. The list included some land in Section 23, but, of course, does not indicate when it was acquired. As stated in our previous opinion, in language which the petition does not challenge, Jacob Denn received a deed in 1893 which conveyed to him approximately 1,000 acres of land lying in Sections 25, 26 and 35. The deed conveyed nothing situated in Section 23. One year after he received the conveyance *27 just mentioned he gave to his son, Henry J. Denn, the quarter section across which, our previous opinion held, he reserved an easement in the form of a road. The reservation which we recognized was not by express grant, but by implication. So far as the record indicates, Jacob Denn owned nothing in Section 23 when he made the gift. In determining whether or not the parties intended to reserve to Jacob Denn, the conveyor, an easement across the conveyed land, the court is, of course, controlled by the facts and circumstances as they existed at the time of the gift, that is, in 1894. We do not know when Jacob Denn came into ownership of the property in Section 23 which the inventory lists. When we wrote our criticized sentence, we assumed that all would understand that we had reference to the crucial year, 1894. The facts mentioned in Exhibit J are immaterial. The petition for a rehearing also says: After receipt of the petition for a rehearing, we read the transcript of evidence again and once more examined all of the exhibits. The latter consist in large part of copies of deeds and other records. During the trial the court received in evidence, upon the proffer of appellants, copies of a county court record which was intended to establish as a public road a thoroughfare to be known as the Amstein Camas Valley Road. The record comprised many documents and the exhibit consisted of copies of the latter. The copies, *28 with the exception of one, were photostatic and all of the latter were fastened together. The single exception was a typewritten copy of an order which we will presently quote. It was not attached to the others. Across the top of the first page of the photostatic copies was written in large script this appellation: "Amstein Camas Valley Road." The single unattached typewritten sheet had no appellation. The brief which the appellants filed when this cause was submitted mentioned no part of any of the records just designated. It did not allude to Exhibit 1 or to any document included within it and nowhere employed the name, Amstein Camas Valley Road. Before quoting the sole reference in the brief to that road, we explain that the word "roadway" and the phrase "another route to the county road through his own `back pasture'" in the quoted passage do not refer to the Amstein Camas Valley road. We now quote from the brief: Thus, the only allusion in the entire brief to the purported Amstein Camas Valley road was this: "the other routes south and east." 4, 5. Due to the above circumstances, we overlooked *29 the typewritten copy of the part of the County Court's record which the appellants' petition for a rehearing mentions. The material part of that record follows: We explained the circumstances in order to show how it happened that we overlooked the order and for the purpose of suggesting that whenever an exhibit consists of several papers they should be fastened together and marked in such a manner that they will be a unit. A brief should refer to an exhibit by an identifying name or symbol whenever reliance is placed upon it. In view of the fact that the appellants' brief did not depend upon the alleged Amstein Camas Valley road, we would have been justified in ignoring the purported road, but since it commanded attention during the trial in the Circuit Court, our opinion gave it consideration. When the order above quoted was made, § 4785, Bellinger and Cotton's Code, was in effect. The material part of that section is quoted in our original opinion. We do not believe that the order which the County Court entered met the requirements of *30 § 4785. It did not declare that the court was "satisfied that such road will be a public utility" nor did it order that the "report, survey and plat" be recorded. But, even if the order could be deemed adequate, still we do not believe that the order alone helped the appellants' cause. 6. Normally, an easement in the form of a way of necessity terminates when the necessity ceases, as through the construction of a public thoroughfare which serves the dominant estate. Since it was in 1894 that the father gave his son the quarter section over which it is said he reserved a roadway, the easement was created in that year if it was created at all. The order which it is claimed created the Amstein Camas Valley road was not signed until 1903. The appellants claim that it terminated the necessity for using the easement and thereby extinguished the easement. As our previous opinion points out, the Amstein Camas Valley road was never improved. The route which the surveyors selected for it remained in its natural state and was still in that condition on the day of the trial. For one to reach the respondents' land from the county road by means of the route surveyed for the unbuilt Amstein Camas Valley road would have necessitated travel for about a mile and a half through primeval land and, unless we are mistaken, over an unbridged stream. Our previous decision quotes from the testimony of Mr. A.F.C. Frear, who for 26 1/2 years has been the roadmaster of Douglas County, that the county never spent a cent upon the purported Amstein Camas Valley road. He referred to the latter as "a paper road." The trial judge who, as our opinion says, visited the area in which the properties in controversy are situated, could find no *31 trace of the Amstein Camas Valley road. Although diligent efforts were made by the appellants to show that this or that person had traveled upon some part of the so-called Amstein Camas Valley road, no one testified that he had done so. Even the name was a stranger in the ears of some of the witnesses. Plainly the route was never used or traveled. 7. In 1903, when the order which the petition cites was entered, the road upon which the respondents depend was twenty or so years old and had served Jacob Denn for nine years. We do not think that the mere adoption of the order of the County Court above quoted ended the necessity to use the road. The necessity was unaffected by the adoption of the order. The latter, if valid, and we do not think that it was, was immaterial to the issues of this case. Had the contemplated road been rendered usable, that fact would have been material. The fact that the appellants' petition for a rehearing mentions the above details indicates that they misconstrued our opinion. In inferring that the father reserved, and that the son granted to the father, an easement over the conveyed land, we did not draw our inference from necessity alone. The necessity for a passageway was only one of the circumstances which we deemed significant. It may be that our use of the term "way of necessity" misled the appellants. That type is only one form of an implied easement. We will attempt to make matters clearer by going over some phases of the case again. We did not interpret the evidence as indicating that when Jacob Denn, in 1894, gave to his son the quarter section over which the respondents claim he reserved an easement, the property which the father *32 retained west and southwest of the conveyed quarter section was landlocked. We thought that we made it clear that the father owned land to the north and east of the quarter section. That land extended all of the way to the county road which is indicated upon the plat which accompanies our previous decision. Possibly the father could have made his way to the county road by going over that land. The distance was about two miles. As nearly as we can glean from the record, the land north and east of the conveyed quarter section was partially covered with timber and crossed by a stream. It is through that area that the father would have been compelled to wend his way in going from the land which the respondents now own to the county road. No witness testified that anyone ever took that course, but, in theory at least, it was possible. Witnesses spoke of the "back pasture" route, but, as our previous decision indicates, that route went through Section 23, and it does not appear that the father owned any land there in 1894. Our opinion reviewed the testimony of witnesses who swore positively that the only means of getting from the land which the respondents now own to the county road was by means of the lane which our decision recognized as an easement. Very likely those witnesses, who were farmers and settlers, were concerned with practical matters and not with a theoretical way of going through the untamed land. We think that their testimony reflects the truth. We know of nothing in the record which shows that anyone drove a wagon from the property now owned by the respondents to the county road by any route except over the lane which we held is an easement. We reviewed these phases of the evidence again for the purpose of making it clear that (1) when *33 the father gave to his son a deed to the quarter section, the land which the respondents now own was not landlocked; and (2) the only practical method of going from the land now owned by the respondents to the county road was over the alleged easement. As we have said, Jacob Denn in 1893 purchased a piece of land comprising one thousand acres which included the tracts now owned by the appellants and the respondents. It embraced all of the land over which the road extends. The thousand-acre tract was, roughly speaking, rectangular in shape and the road somewhat paralleled the longer sides of the rectangle. The road was nothing more than a wagon road in 1893, but its contours were plainly visible. Witnesses, in mentioning it, spoke of fences, gates and a cattle guard. Hence, it seems permissible to infer that the course of the road was defined, not only by the clearings through which it ran and the wagon tracks left behind by vehicles which had passed over it, but also by stretches of fence. The road was used by those who had occasion to leave the county road and visit the land which lay west of it comprising that which Jacob Denn acquired in 1893 and other land beyond his. The western extremity of the road was in the 40-acre tract which the respondents now own. Its eastern end was in the county road to which we have made frequent reference. Thus, the entire length of the road, about two miles, was upon property of which Jacob Denn was the owner. Frequently when the owner of real property so employs it that one part of it receives a service which another part renders through the medium, for example, of a drain or a road, we term the road or drain a quasi easement in order to express more readily the *34 manner in which the favored part has become dominant and the other servient. When, in such instances, we use the term quasi easement, we realize the inaccuracy and recognize that normally no one can possess an easement over land which he himself owns. Yet the term quasi easement, when used in such situations, facilitates understanding. In 1893, as we have seen, the western extremity of the road in question was in the 40-acre tract which the respondents now own, but which Jacob Denn had purchased in that year. When the road left that tract it shortly entered and then crossed the quarter section which the appellants now own, but which Jacob Denn then owned. Had Denn been familiar with legal terms and principles, he would have deemed the 40-acre tract as the dominant tenement, the quarter section as the servient tenement and the road as a quasi easement. The terms would have been inaccurate, but they would have served their purpose. One year after the father made his purchase and the property had assumed the features which we just described, he gave to his son, Henry J. Denn, the quarter section which the appellants now own. We have just deemed it as the servient tenement. The conveyance severed the ownership and made possible a technical easement with its accompaniment of dominant and servient estates. The question which this appeal propounds is this: When the father made that gift, did he then intend to forego the road, surrender up his right to use it and authorize his son to erect a barrier where the road leading from the dominant tenement entered the servient one? Or did father and son intend to preserve the relationship of the two tenements to each other and reserve to the father an *35 easement across the conveyed property so that he could get in and out of his retained land without constructing a new road about two miles long? We shall mention another fact. It received attention in our previous opinion. When the son received the conveyance of the quarter section, he had no way of getting to his property without using the very road with which we are concerned. The quarter section was completely landlocked. On three sides of it lay land owned by the father and on its fourth side was an area held by strangers. The road in question, after originating upon the 40-acre tract now owned by the respondents and crossing the quarter section, extended a mile easterly over lands held by the father, and in that manner reached the county road. Thus, the son himself needed a way of necessity, and the road in question was the very right of way which he required. It appears that he and his successors, the appellants, have constantly used it. It can, therefore, be inferred that when the father gave his son the quarter section he also gave him, as an appurtenance to the quarter section, an easement across the father's large tract to the east. That easement, in the form of a way of necessity, was a one-mile stretch of the road with which we are concerned. When the dispute about the road arose about four years ago, both father and son were dead and, hence, no help could come from their lips. When the transaction between them took place nothing was written except the deed and, as our previous opinion states, it included a warranty. The latter is adverse to the respondents' contentions, but not fatal to them. The evidence which indicates whether or not the father reserved, and the son granted, the alleged easement must be found in the circumstances which attended *36 the making of the gratuitous conveyance. There is nothing novel about the fact that we must look to circumstantial evidence, for the courts frequently resort to evidence of that kind. The circumstances which show whether or not father and son intended that the road should remain open to the former are these: (1) The father after giving his son the quarter section still owned property west and southwest of the conveyed quarter section. (2) The conveyance to the son was unaccompanied by any consideration and was a gift. (3) The father had no practical means of access to or egress from his land west and southwest of the conveyed quarter section except by the road. (4) The son, after receiving the quarter section, had no means of going to or from it except over the part of the road which lay upon property owned by the father east of the quarter section; in other words, he had need of a way of necessity over the father's land. (5) The road had been in use for many years; its contours were well defined and plainly visible; its purposes were self-evident. (6) The land which the father retained west and southwest of the conveyed land lay almost two miles from the county road, and although no witness estimated the cost of building a road from the retained land to the county road, it is obvious that the cost would have been large. (7) The land over which the easement is claimed is the conveyed land. (8) Since the son had need for the part of the road which lay upon his father's land east of the quarter section, the easement in its entirety extended over land owned by both the father and the son. The authorities devote much space to a delineation of the circumstances under which an implication may *37 be drawn that a quasi easement became a technical one upon severance of ownership. It is apparent that discord exists in the decisions and that many of them employ rules difficult of application. In 28 C.J.S., Easements, § 34, page 694, it is said: Thompson on Real Property, Perm. Ed., § 502, says: Tiffany, Real Property, 3d Ed., § 781, states: From 17 Am. Jur., Easements, § 34, page 948, we take the following: 8. It is seen from the passages which we quoted from the above authorities that the courts have employed various conflicting tests in determining whether upon severance of ownership a quasi easement became a technical one. One of the tests, it will be noticed, was whether or not the servitude was continuous or discontinuous. German Savings & Loan Society v. Gordon, 54 Or. 147, 102 P. 736, bestowed considerable analysis upon the distinction between a continuous and a discontinuous servitude, and then held: To that extent at least that decision simplified the test for determination whether or not the parties intend, when severance of ownership occurs, that an existing servitude should become an easement. "Continuous or discontinuous" is no longer the test in this *41 state. "Conspicuity" was substituted by that decision for that phase of the text. Restatement of the Law, Property, § 476, expresses that feature of the test thus: The German Savings & Loan Society decision was concerned with still another detail of the test. The case involved lots 1, 2, 7 and 8 of a subdivision of Portland. Lots 1 and 2 fronted upon Hood Street; lots 7 and 8, immediately to the rear of those lots, fronted upon Corbett Street. Upon lots 1 and 2 stood a dwelling house facing Hood Street. It was occupied by one Mrs. Leaner Gray, owner of the lots. In 1891 she conveyed lot 7, with the exception of a strip 5.125 feet wide off its north side, to the defendant who presently improved the part conveyed to him with dwelling house. Mrs. Gray converted the narrow strip she reserved into a passageway leading from Corbett Street to the rear of her house. Thus, her house, fronting as it did upon Hood Street, had access by means of the passageway to Corbett Street. The passageway was 5.125 feet wide and about 90 feet long. Later, Mrs. Gray mortgaged lots 1, 2 and 8 to the plaintiff, and still later defaulted in meeting the mortgage indebtedness. Through foreclosure sale the plaintiff became the owner of lots 1, 2 and 8. After the foreclosure sale and after a deed had been delivered to the plaintiff, Mrs. Gray conveyed to the defendant the fractional strip we have mentioned. The defendant then closed the passageway. This court affirmed the decree of the Circuit Court which held that the servitude to which Mrs. Gray subjected the strip when she was owner of the entire estate became an easement upon severance *42 of ownership. In so doing and in affirming the award of an injunction, the decision said: That language renders it clear that reasonable necessity suffices. It should be observed that notwithstanding Mrs. Gray's home fronted for the width of two city lots upon Hood Street, access to Corbett Street by means of the contested passageway was sustained. That decision is by no means a novelty. Several others to like effect from other jurisdictions could be cited. Each depended, in part, upon the element of necessity although, in defining the latter, terms like "necessary for convenience and comfortable enjoyment" were used. Therefore, in the present instance, even though Jacob Denn might have been able to reach the county road through the back pasture, that circumstance would not in itself be fatal to the alleged easement. By reverting to our original decision, it will be seen that it quoted in large part the test written by Restatement of the Law, Property, § 476. We believe that that test is in harmony with our prior opinions, although its phraseology is an improvement over the language which they employed. That test permits courts which are confronted with an alleged implied grant or reservation of an easement to give proper weight to all the evidence which bears upon the intention of conveyor and conveyee. It will be recalled *43 from the passage we quoted from Tiffany on Real Property that that writer deemed it "unfortunate that the courts, in determining whether in a particular case, an easement corresponding to a pre-existing quasi easement has passed with the land, have usually failed to recognize that the question is primarily one of construction." The rule offered by the Restatement deems the question one of construction and permits the courts to weigh all of the circumstances attendant upon the conveyance for the purpose of determining whether conveyor and conveyee intended that an easement should be created. So-called necessity is only one of the items to which attention should be given. In some instances, like those in which (1) an adequate consideration was paid, (2) the claimant is the conveyor and executed a warranty deed, (3) no reciprocal benefits resulted, and (4) the servitude was not clearly defined, necessity must be more pressing than in instances where other elements speak up in behalf of the alleged easement. The test suggested by the Restatement is merely a method of determining from the available circumstantial evidence whether or not conveyor and conveyee intended when the conveyance took place that a servitude, then in existence, should be preserved as an easement. If the parties had no thoughts at all upon the subject, then, since no easement was intended, none can be awarded by the court's decree. If they intended that the servitude should become an easement, the court's decree should give effect to their wishes. 9. As stated in our previous decision, we think that the circumstances clearly indicate that father and son intended that the existing servitude should remain as an easement, affording the father access to the county *44 road from the land which he retained west and southwest of the tract he gave to his son. The above suffices for a consideration of everything submitted by the petition for a rehearing. The petition is denied. Page, J., did not participate in this decision. Bailey, J., dissents. LUSK, C.J. I think that the evidence establishes the easement in question, and therefore concur in the denial of the petition for rehearing.

62b1a92106630f7ad57727d2eb5f40134c6345f1a58932b86fe0bba1fc7de1fd

1949-12-13T00:00:00Z

2c2d5534-2638-4cd5-907f-53e56ebc932b

Bosak v. Myers

oregon

Oregon Supreme Court

FILED: November 30, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON TRICIA BOSAK and JAMES SAGER, Petitioners, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48536) En Banc Submitted on the record July 31, 2001. Margaret S. Olney, Smith, Gamson, Diamond & Olney, Portland, filed the petition for petitioners. Rolf C. Moan, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. PER CURIAM Ballot title referred to the Attorney General for modification. PER CURIAM Petitioners challenge the Attorney General's certified ballot title for a proposed initiative denominated by the Secretary of State as Initiative Petition 40 (2002). ORS 250.085(2). The proposed initiative, if approved, would incorporate into the Oregon Constitution several new provisions concerning the negotiation of wages and working conditions in public sector workplaces in Oregon. The Attorney General's certified ballot title is insufficient for the reasons described by this court with respect to a similar ballot title for a similar proposed measure in Novick/Bosak v. Myers, ____ Or ____, ____ P3d ____ (2001) (decided this date). For the same reasons, we refer the ballot title in this proceeding to the Attorney General for modification. ORS 250.085(8). Ballot title referred to the Attorney General for modification.

25102a20f132a0958a187564700201028ce92cf149bdf7be94658084694d7e2a

2001-11-30T00:00:00Z

57a24bb4-15dd-4d1b-b2b4-f08d5b85cf0e

Con. Freightways v. West Coast Freight

188 Or. 117, 214 P.2d 475

oregon

Oregon Supreme Court

Affirmed December 20, 1949. Petition for rehearing denied February 7, 1950. *118 James P. Cronan, Jr., of Portland, argued the cause for appellant. With him on the brief were Schafer & Holbrook and James A. Nelson, of Portland. Earl F. Bernard, of Portland, argued the cause for respondent. On the brief were Merwin Rankin and Collier & Bernard, of Portland. Before LUSK, Chief Justice, and BRAND, ROSSMAN, BAILEY and HAY, Justices. *123 LUSK, C.J. This is an appeal by the plaintiff from the judgment of the Circuit Court in an action tried to the court without jury. The action arose out of a collision on a public highway in the state of Washington between trucks owned and operated by the respective parties. The plaintiff, charging negligence against the defendant, sought to recover for the damages to its truck; the defendant denied negligence on its part, and, in a counterclaim which alleged that the accident was caused by the negligence of the plaintiff, asked judgment for the damages to its truck. After a trial the court entered detailed findings of fact, the effect of which is that the accident was proximately caused by the negligence of the plaintiff and that the defendant was free from negligence. As a conclusion of law the court found that the defendant was entitled to recover a judgment in the sum of $1,332.82 and judgment was entered accordingly. No objection to the findings or request for other different or additional findings was made by the plaintiff. The plaintiff's brief contains two assignments of error, to the effect that the court erred in finding that the plaintiff was negligent and that such negligence, *120 if any, was the proximate cause of the accident, both assignments being based on the claim that there is no substantial evidence to support the findings. Counsel for the defendant urge that these assignments present no question for the consideration of this court, for the reason that the plaintiff made no objections to the findings entered and failed to request other, additional or different findings. 1. The procedure to be followed in cases of this sort is outlined in § 5-502, O.C.L.A., which is printed in the margin.[*] As originally enacted in 1862 this statute, while requiring the court to make and file findings of fact and conclusions of law, contained no express provision for objections to, or requests for, findings. § 216, General Laws of Oregon 1845-1864 (Deady). Such provisions were added by amendments, first by Ch. 211, General Laws of Oregon 1925, and later by Ch. 165, General Laws of Oregon 1927. But whether under the statute in its original, or in its present form, it has uniformly been held that, in order to raise in the Supreme Court the question of the failure to make findings in accordance with a party's theory, the failure to find on an issue claimed to be material, or the sufficiency of the evidence to support a finding, the question *121 must first be brought to the attention of the trial court by objections to proposed findings or requests for other, different or additional findings. The most recent decision is McPherson v. State Industrial Accident Commission, 169 Or. 190, 196, 127 P. (2d) 344 (1942). Among many others applying the rule are School Dist. No. 106 v. New Amsterdam Casualty Co., 132 Or. 673, 676, 288 P. 196; Maddox v. McHattan, 111 Or. 324, 326, 327, 224 P. 833, 226 P. 427; Stroberg v. Merrill, 67 Or. 409, 410, 135 P. 335; Taffe v. Smyth, 62 Or. 227, 229, 125 P. 308; Harris v. Harsch, 29 Or. 562, 568, 46 P. 141; Tatum v. Massie, 29 Or. 140, 147, 44 P. 494; Noland v. Bull, 24 Or. 479, 481, 33 P. 983; Umatilla Irrigation Co. v. Barnhart, 22 Or. 389, 390, 30 P. 37; In re Fenstermacher, 19 Or. 504, 507, 508, 25 P. 142; Hicklin v. McClear, 18 Or. 126, 138, 22 P. 1057. 2, 3. Three of our decisions are cited by the plaintiff to the proposition that "It is error to make a finding of fact with no satisfactory evidence to support it." Northwest Oil Co. v. Haslett Warehouse Co., 168 Or. 570, 123 P. (2d) 985; Pacific Wool Growers v. Draper & Co., 158 Or. 1, 73 P. (2d) 1391; Silver Falls Timber Co. v. Eastern & Western Lumber Co., 149 Or. 126, 184, 40 P. (2d) 703. With the substitution of the word "substantial" for "satisfactory", there can be no doubt of the correctness of the rule stated. But the question here, is how the error shall be made to appear, and, as has been frequently said, it is not error alone, but error legally excepted to, which constitutes ground for reversal. While formal exceptions are no longer required, except in the specific instances mentioned in Ch. 257, Oregon Laws 1941, it is still required that the appellant must first, in some fashion, have made his objection or request for a ruling to the trial court *122 (Williams v. Ragan, 174 Or. 328, 337, 143 P. (2d) 209); in this instance in the manner already pointed out. As to the cases above cited, on which the plaintiff relies, it appears that in each of them the appellant made his record by objections to the findings and requests for findings. The plaintiff also cites Burke Machinery Co. v. Copenhagen, 138 Or. 314, 6 P. (2d) 886, in which this court considered the question of the sufficiency of the evidence. It is true, as counsel for the plaintiff say, that the printed abstract does not show that objections to the findings were made in that case. The original record, however, which is on file here, discloses that the appellant filed with the trial court both objections to the challenged findings and a request for a finding that there was no evidence to support certain allegations of the complaint. The case is not authority for the plaintiff's position. There is no contention that the findings do not support the judgment, and, as there is no other question properly before us, the judgment is affirmed. PETITION FOR REHEARING DENIED. Schafer, Holbrook & Cronan, James P. Cronan, Jr., and James A. Nelson, of Portland, for the petition. Collier & Bernard and Merwin Rankin, of Portland, contra. Before LUSK, Chief Justice, and BRAND, ROSSMAN, BAILEY and HAY, Justices. LUSK, C.J. The argument of the appellant in support of the petition for rehearing is to the following effect: The statute in effect when many of the decisions cited in our former opinion were rendered, and which stand for the necessity of objections to, or requests for, findings, in order to raise in this court the question of the sufficiency of the evidence, did not mention such objections or requests. That statute (§ 216, General Laws of Oregon 1845-1864 (Deady)) read: 5. Specific provisions as to objections to, and requests for, findings did not come into the statute until its amendment by Ch. 165, General Laws of Oregon 1927, now § 5-502, O.C.L.A., which is set out in full in our former opinion. It is conceded that the decisions of this court, prior to 1927, support the view that the question of the sufficiency of the evidence cannot be *124 raised on appeal unless it has first been raised in the trial court in the manner heretofore stated. It is argued, however, that the 1927 amendment changed all this because its provisions are purely permissive and do not require a party either to object to findings or to request findings. It is sought to fortify the argument by reference to the principle that, where the legislature has permitted to stand undisturbed over a period of years an interpretation of a statute by this court, an assumption of legislative approval of such interpretation may be indulged. Ryan v. State Industrial Accident Commission, 154 Or. 563, 567, 568, 61 P. (2d) 426. From these considerations the conclusion is drawn that the legislature, by the 1927 amendment, intended to provide a different practice on appeal than that which had formerly prevailed. 6. We think the conclusion is a non sequitur. Since the original statute said nothing of objections to findings or requests for findings, the decisions prior to 1927 were not an interpretation of that statute. They were simply the application to a particular situation, and against the background of the statute, of a settled general rule of practice in this state, to wit: that in actions at law, whether tried to a jury or by the court without a jury, error of law, such as is assigned here, will not be considered on appeal unless it is made to appear by a bill of exceptions. This is the basis of the decisions in Stroberg v. Merrill, 67 Or. 409, 135 P. 335; Taffe v. Smyth, 62 Or. 227, 229, 125 P. 308, and in the other cases cited in our former opinion. 7. Consequently, we think that there is no merit in the suggestion that the legislature intended by the 1927 enactment to deal in any way with appellate procedure. That amendment was an implementation *125 of the prevailing practice. Its purpose was to prescribe rules for that practice: to fix the time within which requested findings, either special or general, must be served on the opposing party, the time for presenting objections to such requested findings, and to allow time for objections to findings prepared by the court. In one sense there has never been any requirement of statute, or otherwise, that the defeated party in the Circuit Court must follow the practice of objecting to findings or requesting findings. He could always do as he liked about it. But, in another sense, if he wished to appeal and invoke this court's consideration of certain types of error, including the error assigned on this appeal, the practice is today, and always has been, compulsory: the objection must be made or the finding requested, and the adverse ruling thereon brought to this court, with the evidence, in a bill of exceptions. The 1927 amendment discloses no intention to change that practice. The petition for rehearing will, therefore, be denied. [*] "Upon the trial of an issue of fact by the court, its decision shall be given in writing, and filed with the clerk during the term or within twenty days thereafter. The decision shall consist of either general or special findings without argument or reason therefor. All parties appearing in the case shall have the right to request either special or general findings, and if any findings are requested by any party litigant such requested findings shall be served upon all the other parties who have appeared in the case and such adverse parties may, within ten days after such service, present to the trial judge objections to such proposed findings or any part thereof and request other, different, or additional findings. When the findings are prepared by the court or judge thereof, a copy of such findings shall be served upon, or mailed to, all parties appearing in the case or their attorneys ten days before the same are filed, and any party litigant may, within such ten days, object thereto and request other, different, or additional findings. Nothing herein contained shall prevent the court from shortening the time in which to file objections or request other, different, or additional findings or prevent the parties to the case stipulating or agreeing to the findings to be entered."

2179f8a75d5b59201b069b379ef2befca3ceca2a25e2c303071e67b76daf6cc0

1949-12-20T00:00:00Z

ac54bf05-888b-4679-9a03-c0c0a8f6d5ae

Bacote v. Johnson

S47861

oregon

Oregon Supreme Court

FILED: November 30, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON DENNIS BACOTE, Petitioner on Review, v. DAN JOHNSON, Superintendent, Snake River Correctional Institution, Respondent on Review. (CC 98-06-29826M; CA A105109; SC S47861) On review from the Court of Appeals.* Argued and submitted September 7, 2001. Bob Pangburn, Caldwell, Idaho, argued the cause and filed the brief for petitioner on review. With him on the brief was Rebecca Neal-Richardson, Caldwell, Idaho. Daniel J. Casey, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and Balmer Justices.** LEESON, J. The decision of the Court of Appeals regarding assessment of costs is reversed. The judgment of the circuit court regarding assessment of costs is reversed. The case is remanded to the circuit court for further proceedings. *Appeal from Malheur County Circuit Court, J. Burdette Pratt, Judge. 169 Or App 44, 7 P3d 729 (2000). **De Muniz, J., did not participate in the consideration or decision of this case. LEESON, J. In this post-conviction proceeding, petitioner alleged that he had received inadequate assistance of counsel at trial and that his sentences were illegal. The circuit court denied relief and assessed costs against petitioner in the amount of $975. The Court of Appeals affirmed. Bacote v. Johnson, 169 Or App 44, 46, 7 P3d 729 (2000). That court declined to address petitioner's argument regarding costs of appointed counsel, because it believed that petitioner had not preserved that argument. Id. This court allowed review of only two issues: whether petitioner preserved his argument and whether the circuit court erred in assessing $975 in costs of appointed counsel without first determining petitioner's ability to pay those costs. For the reasons that follow, we reverse the decision of the Court of Appeals regarding costs, reverse the circuit court's assessment of costs, and remand the case to the circuit court. The following facts are not in dispute. In June 1998, petitioner filed a petition for post-conviction relief alleging that the sentences he had received after pleading guilty to charges of attempted assault and delivery of a controlled substance were illegal and that he had received inadequate assistance of counsel. Petitioner also filed an affidavit of indigence and requested appointed counsel to represent him in the post-conviction proceeding. The circuit court appointed counsel to represent petitioner. After the court denied relief on the merits of petitioner's claim, the court stated that it intended to order petitioner to repay the costs of his appointed counsel. The parties agree that the court was relying on ORS 151.505 (1) as authority for ordering petitioner to repay the costs of court-appointed counsel. Petitioner objected to the assessment of costs as follows: "[COUNSEL]: * * * On behalf of [petitioner] I object to the imposition of the $975.00 in attorney reimbursement fees. The basis for my objection is that there's been no showing that [petitioner] has the ability to pay. There has not even been an inquiry as to whether he has the ability to pay that he -- without undue hardship. He is indigent, he has been declared indigent by this Court. He [is] scheduled to be in the institution for still some period of time and he is -- and those rare occasions when he is employed he is making maybe less than one twentieth of minimum wage. Consequently -- and that money still has to go to pay for shaving supplies, health care products * * *, tennis shoes, things of that nature. Consequently, we believe that he is unable to pay and that it should not be imposed." "THE COURT: Your objection is noted. I'll have -- indicate copies of the order and judgment need to be sent to the parties. Anything else we need to address?" (Emphasis added.) The court included in its judgment an order requiring petitioner to repay $975, the amount that petitioner's court-appointed counsel had charged the state to represent him in the post-conviction proceeding. On appeal, petitioner assigned error to the circuit court's failure to make a determination that petitioner is or may be able to pay costs. As noted, a panel of the Court of Appeals, with one judge dissenting, declined to address that claim on the ground that petitioner had not preserved it. Bacote, 169 Or App at 46. We begin with the preservation issue. Petitioner contends that his objection challenged the circuit court's authority to impose the costs of appointed counsel under ORS 151.505 because there had been no determination that petitioner is or may be able to pay costs. Petitioner's objection at the post-conviction hearing stated, in part, that "[t]here has not even been an inquiry as to whether [petitioner] has the ability to pay." That objection was sufficient to alert the court and defendant to petitioner's claim that the court erred in assessing costs under ORS 151.505 without first determining his ability to pay those costs. See State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000) (holding party must provide trial court with explanation of objection specific enough to ensure that court can identify alleged error and correct it immediately if correction warranted). The Court of Appeals erred in holding that petitioner had failed to preserve that issue. We turn to the merits, namely, whether the circuit court erred in assessing $975 in costs of appointed counsel without first determining petitioner's ability to pay those costs. Petitioner contends that ORS 151.505(4) requires the court to determine that a person is or may be able to pay the costs of appointed counsel before the court may impose costs. He argues that nothing in the record indicates that the court made that kind of determination in his case. Defendant responds that petitioner's objection to the assessment of costs demonstrated that he had the ability to pay costs, because his objection established that he earns at least some money when he works in prison. Moreover, defendant contends, a reviewing court should presume that the circuit court complied with the requirements of ORS 151.505(4) so long as there is evidence in the record to support its order. To resolve the parties' dispute over what a court must do in determining a person's ability to pay costs under ORS 151.505, we must construe the statute. Our task is to discern the intent of the legislature. ORS 174.020; (2) see PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993) (summarizing methodology for construing statutes). By its terms, ORS 151.505(1) authorizes a trial court, at the conclusion of a case or matter filed after January 1, 1998, to include in its judgment an order requiring a person who has received appointed counsel to repay in full or in part the costs of the legal and other services related to the provision of appointed counsel. ORS 151.505(2) identifies the costs that are repayable under ORS 151.505, which include a reasonable attorney fee and a reasonable amount of expenses authorized under ORS 135.055. ORS 151.505(3) provides that costs under the statute do not include costs imposed and paid under a previous order under ORS 151.487. However, costs under the statute may include costs imposed under ORS 151.487 that are unpaid at the time when the judgment is filed. ORS 151.505(4) is the source of the interpretive dispute in this proceeding regarding a person's ability to pay costs. That subsection contains a limitation on the authority that is granted in ORS 151.505(1). A court may not order a person to pay costs unless the person "is or may be able to pay" the costs. The words "is" and "may be able to" refer to the person's present or future ability to pay costs. Only a person who presently is able, or who may be able in the future, to pay costs may be ordered to do so. Subsection (4) further provides that the determination of the person's ability to pay costs and the amount of costs to be repaid "shall be subject to the guidelines and procedures issued by the State Court Administrator under ORS 151.487." The term "shall" is a command expressing what is mandatory. See Preble v. Dept. of Rev., 331 Or 320, 324, 14 P3d 613 (2000) (so stating). Finally, subsection (4) directs the court to determine the amount and the method of payment of costs. The statute provides that the court, in making that determination, "shall take account of" the person's financial resources and the nature of the burden that payment of costs will impose. ORS 151.505(4) thus contemplates a two-step process. First, the court must determine if the person is or, in the future, may be able to pay costs and the amount of costs to be repaid. The determination of the person's ability to pay costs and the amount of costs to be repaid is subject to the guidelines and procedures issued by the State Court Administrator. Next, assuming that the person has the ability to pay costs, the court must determine the amount and the method of payment of costs. In making that determination, ORS 151.505(4) directs the court to "take account of" the person's financial resources and the nature of the burden that payment of costs will impose. As noted, this case involves only the first step of that two-step process. Under that step, the statute provides that the determination of a person's ability to pay and the amount of costs to be repaid is subject to the guidelines and procedures issued by the State Court Administrator. Because the legislature has declared in mandatory terms how the court is to determine the person's ability to pay costs and the amount of costs to be repaid, the record must indicate that the court made that determination subject to the guidelines and procedures issued by the State Court Administrator. In this case, after petitioner objected to the imposition of costs on the ground that there had been no inquiry about his ability to pay, the circuit court merely noted the objection and then imposed costs equal to the amount that petitioner's court-appointed counsel had charged the state to represent petitioner. We find no indication in the record that the court made the determination of petitioner's ability to pay costs and the amount of costs to be repaid in the manner prescribed by ORS 151.505(4), namely, subject to the guidelines and procedures issued by the State Court Administrator. The decision of the Court of Appeals regarding assessment of costs is reversed. The judgment of the circuit court regarding assessment of costs is reversed. The case is remanded to the circuit court for further proceedings. 1. ORS 151.505 provides, in part: "(1) At the conclusion of a case or matter in which the first accusatory instrument or petition in the trial court was filed after January 1, 1998, and in which the court appointed counsel to represent a person, a trial * * * court may include in its judgment an order that the person repay in full or in part * * * the costs of the legal and other services that are related to the provision of appointed counsel. "(2) Costs repayable under this section include a reasonable attorney fee for counsel appointed to represent the person and a reasonable amount for expenses authorized under ORS 135.055. * * * "(3) Costs repayable under this section do not include costs imposed and paid under a previous order under ORS 151.487, but may include costs imposed under an order under ORS 151.487 that are unpaid at the time the judgment is filed. "(4) The court may not order a person to pay costs under this section unless the person is or may be able to pay the costs. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the person and the nature of the burden that payment of costs will impose. The determination of the ability of a person to pay costs and the amount of costs to be paid shall be subject to the guidelines and procedures issued by the State Court Administrator under ORS 151.487." 2. The legislature amended ORS 174.020 in 2001. Or Laws 2001, ch 438. Those amendments relate, in part, to a court's use of legislative history in the interpretation of statutes. Those amendments apply only to actions commenced on or after June 18, 2001. Or Laws 2001, ch 438, §§ 2 & 3. Petitioner filed his petition for post-conviction relief on June 24, 1998. Therefore, the amendments to ORS 174.020 do not apply in this case.

ef116887de750488b17b8700b0f8b9a07b1f3b95758263599db511e1ea753b75

2001-11-30T00:00:00Z

8222f85c-8457-4f7e-ac39-13adc6baae68

Bosak v. Myers (Certification)

oregon

Oregon Supreme Court

Filed: October 19, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON TRICIA BOSAK and JAMES SAGER, Petitioners, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48563) On modified ballot title filed October 11, 2001.* No appearance by petitioners. David F. Coursen, Assistant Attorney General, Salem, filed the filing of modified ballot title for respondent. With him on the filing were hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.** The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). *332 Or 552, ___ P3d ___ (2001) (referring ballot title for modification). **Balmer, J., did not participate in the consideration or decision of this case. The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 45 (2002), failed to comply substantially with statutory standards. Bosak v. Myers, 332 Or 552, ___ P3d ___ (2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 45 (2002) states: "AMENDS CONSTITUTION: ALLOWS WORKPLACE EMPLOYEES REPRESENTED BY RECOGNIZED UNION TO REFUSE TO PAY FOR UNION REPRESENTATION 'SERVICES' "RESULT OF 'YES' VOTE: 'Yes' vote allows individual employee in workplace represented by union to refuse payment for undesired union 'services' without modifying union's obligation to represent each employee. "RESULT OF 'NO' VOTE: 'No' vote retains current law, rejects allowing union workplace employee to refuse payment for undesired union 'services' without modifying union's obligation to represent each employee. "SUMMARY: Amends constitution. Under current law, when majority of workplace employees select union as collective bargaining representative, that union must fairly represent all employees, may negotiate agreement requiring all employees to contribute to representation costs. Measure allows an individual employee to refuse to pay for representation 'services' by identifying unwanted 'services' in writing. Measure does not change union's existing obligation to bargain for and represent all covered employees. Measure does not define 'service' or provide formula for valuing specific 'services.' Measure affects existing contract provisions that require payment for representation; expressly prohibits future contracts from requiring such payment. Measure requires union to notify employees of right to withhold payment to union and prohibits discrimination or harassment of employee for exercising that right. Imposes penalties. Other provisions." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9).

cd931f53497ea26633240952622acd2767fd0c63fa2d86630e2c50b3844ba338

2001-10-19T00:00:00Z

675dddeb-6b5f-4ed7-81b7-36931bd3a1ba

State v. Riley

S46399

oregon

Oregon Supreme Court

Filed: October 25, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. WENDY LOUISE RILEY, Petitioner on Review. (CC 97-CR-0081-AB; CA A98342; SC S46399) On petition for review filed April 29, 1999.* Jesse Wm. Barton, Deputy Public Defender, Salem, filed the petition for petitioner on review. With him on the petition was David E. Groom, State Public Defender. No appearance contra. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.** MEMORANDUM OPINION The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of State v. Fugate, 332 Or 195, 26 P3d 802 (2001). *On appeal from Deschutes County Circuit Court, Alta J. Brady, Judge. 158 Or App 649, 976 P2d 79 (1999). **Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. Justice Thomas A. Balmer did not participate in the consideration or decision of this case.

0b305b338853fc7d9bbca4e15414e96083e0190c52135e31e91aabccb056e20b

2001-10-25T00:00:00Z

ac05d9f8-fd60-475d-a3df-2750107ce7c0

Sasinowski v. Legislative Assembly

S070879

oregon

Oregon Supreme Court

292 May 16, 2024 No. 15 IN THE SUPREME COURT OF THE STATE OF OREGON James SASINOWSKI, Petitioner, v. LEGISLATIVE ASSEMBLY OF THE STATE OF OREGON, Respondent. (SC S070879) En Banc On petition to review ballot title filed February 27, 2024; considered and under advisement on April 23, 2024.* James Sasinowski, Eugene, filed the petition and reply memorandum pro se. Carson L. Whitehead, 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. Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter PC, Portland, filed the brief for amici curiae Oregon Ranked Choice Voting Advocates and Blair Bobier. GARRETT, J. The ballot title is referred to the Attorney General for modification. ______________ *  Ballot title for Legislative Referral 403 (2024), prepared by the Joint Legislative Committee for LR 403 on February 16, 2024. Cite as 372 Or 292 (2024) 293 GARRETT, J. Petitioner seeks review of the ballot title prepared for Legislative Referral 403 (2024) (LR 403), which the 2023 Legislative Assembly referred for the voters’ consideration at the upcoming November 2024 General Election. Or Laws 2023, ch  220. Petitioner challenges all parts of the ballot title, asserting lack of compliance with requirements set out in ORS 250.035(2). Or Laws 2023, ch  366, §§  1, 4(1).1 We review the ballot title to determine whether it substantially complies with those requirements. See id. § 4(4) (setting out that standard). For the reasons explained below, we agree with petitioner in part, and we refer the ballot title to the Attorney General for modification of the caption and the “yes” result statement. See id. § 4(6) (explaining modifica- tion process). We begin by providing a summary of LR 403. The referral would amend ORS chapter 254 to require “ranked choice voting” for the primary and general elections for President of the United States, United States Senators and Representatives, Governor, Secretary of State, Treasurer, Attorney General, and Commissioner of the Bureau of Labor and Industries; it also would permit local governments to adopt ranked-choice voting in their elections (unless prohib- ited by home-rule charter). Or Laws 2023, ch 220, §§ 2, 3. As defined in LR 403, ranked-choice voting would permit— but not require—a voter to rank on their ballot multiple candidates and write-in candidates, in order of the voter’s preference. Each cast ballot would be counted as one vote for each voter’s “highest-ranked active candidate.”2 Ballots then would be tallied in rounds; if an active candidate were 1  In addition to permitting a challenge asserting lack of compliance with ORS 250.035(2), section 4(1) of Oregon Laws 2023, chapter 366, permits a peti- tioner to contend that the ballot title did not substantially comply with a different section of that Oregon Laws chapter. Petitioner’s challenge is limited to ORS 250.035(2). As noted later below, the ordinary word-count limits set out in ORS 250.035(2) do not apply to the ballot title for LR 403; all other provisions of ORS 250.035(2) apply, however. 2  An “[a]ctive candidate” means a candidate who has not withdrawn, been defeated, or been nominated or elected. Or Laws 2023, ch 220, § 4(6)(a). A “[h] ighest-ranked active candidate” means the active candidate “assigned to a higher ranking on a ballot than any other active candidate.” Id. § 4(6)(b). 294 Sasinowski v. Legislative Assembly to receive a majority of votes cast in the first round, then that candidate would be elected (or nominated, as applica- ble). Id. § 4(2)(a), (b)(A). But, if no active candidate were to amass a majority of votes, then (1) the candidate with the fewest votes would be defeated (and so no longer would be an active candidate); (2) the votes that had been counted for that defeated candidate would be “transferred to each ballot’s next highest-ranked active candidate”; and (3) a new round of tallying would begin. Id. § 4(2)(b)(B). That same process would continue until an active candidate amassed a majority of votes in a final round of tallying. Id. LR 403 contains several other provisions, including a series of definitions. Id. at § 4(6). It also would direct the Secretary of State to (1) adopt implementing rules, includ- ing as to the number of candidates and write-in candidates that could be ranked on a ballot, as well as to educate voters about ranked-choice voting; and (2) analyze current election laws and make a report to the legislature about any incon- sistency with LR 403 and its cost of implementation. Id. §§ 5, 16. As to local governments, LR 403 expressly would not limit, restrict, or preempt the authority of any home- rule jurisdiction that adopted ranked-choice voting between November 8, 2016, and the effective date of LR 403. Id. § 3(4) (b). If approved by the voters at the November 2024 General Election, all the provisions of LR 403 described above (except the provision about the Secretary of State’s analysis of election laws and report to the legislature) would become operative on January 1, 2028, and would apply to elections conducted after that date. Id. §§ 18(1), 19.3 After the 2023 session, a joint legislative commit- tee prepared a ballot title for LR 403 and filed it with the Secretary of State. See Or Laws 2023, ch 366, § 1 (setting out that process for any legislative referral approved during the 2023 session). The ordinary word limits for ballot titles do not apply to LR 403; however, the content requirements 3  LR 403 would enact other statutory changes that are not summarized in the joint legislative committee’s ballot title, all of which would become operative on January 1, 2028. Or Laws 2023, ch  220, §  18. The provision directing the Secretary of State to analyze the election laws and make a report to the legis- lature, id. § 16, would be effective 30 days after the 2024 General Election and would be repealed on January 2, 2027. Id. § 17; see also Or Const, Art IV, § 4(d) (specifying effective date for initiative or referendum measures generally). Cite as 372 Or 292 (2024) 295 for each element of a ballot title for a state measure to be ini- tiated or referred—set out in ORS 250.035(2) and discussed further below—do apply. Id. §§ 1(1), 4(1). We review the bal- lot title for substantial compliance with those requirements. Id. §  4(4). If we determine that modification is required, then we may refer the ballot title to the Attorney General for modification. Id. § 4(6). The joint legislative committee prepared the follow- ing ballot title for LR 403: “GIVES VOTERS OPTION TO RANK CANDIDATES IN ORDER OF PREFERENCE; CANDIDATE RECEIVING MAJORITY OF VOTES WINS. “Result of ‘Yes’ Vote: ‘Yes’ vote gives voters the option to rank candidates in order of preference for specified federal and statewide offices. Establishes process for tallying votes in rounds, with the candidate receiving the fewest votes in each round being defeated and votes for the defeated candidate going to the voter’s next-highest ranked active candidate. Requires that candidate must receive majority of votes to win election. “Result of ‘No’ Vote: ‘No’ vote maintains current voting system. Voter selects one candidate for federal and state- wide offices. Candidate with most votes wins. Majority of votes not required for candidate to win election. “Summary: Current state law requires voters to select only one candidate for each office on the ballot. The candi- date with the most votes after a single vote tally wins, even if not a majority. This measure gives voters the option to rank candidates in order of preference using ‘ranked choice voting.’ Under the measure, voters may choose to rank only one candidate or multiple candidates for each office, as well as write in candidate(s). Votes are counted toward each vot- er’s highest-ranked candidate. If no candidate receives a majority of votes, votes are tallied automatically in rounds. The candidate receiving the fewest votes in each round is defeated. A defeated candidate’s votes go to the voter’s next highest-ranked candidate. The process continues until one candidate has a majority of votes. The measure applies to the nomination and election of President, United States Senator, Representative in Congress, Governor, Secretary of State, State Treasurer and Attorney General, and election of the Commissioner of the Bureau of Labor and Industries. 296 Sasinowski v. Legislative Assembly The measure requires the Secretary of State to establish a program to educate voters about how ranked choice voting elections will be conducted. Authorizes local governments to adopt ranked choice voting for elections for local offices. Local governments that adopted ranked choice voting before 2025 may continue to use current method or modify it. The measure applies to elections beginning in 2028.” Petitioner challenges all parts of the ballot title. See Or Laws 2023, ch 366, § 4 (describing process to file a peti- tion in this court, seeking a different title). We agree with one of petitioner’s arguments—as applied to the caption and the “yes” result statement—as explained next.4 Petitioner contends that, throughout the ballot title for LR 403, the word “majority” is used inaccurately and without proper context. He specifically argues that “majority of votes” suggests that a candidate has received the major- ity of total votes cast, but, in operation, ranked-choice vot- ing—as LR 403 would establish—can produce a winner who does not receive that type of “majority” vote. That is most notably so, petitioner explains, because rounds of tallying after the first round do not count all votes cast; instead, they count only votes cast for active candidates, while other votes may be discarded. He argues that, without that important context, the words “majority of votes” inaccurately describe ranked-choice voting and thus render the ballot title non- compliant with applicable statutory requirements.5 For its part, the Legislative Assembly agrees that receiving a “majority of votes” under ranked-choice 4  Petitioner raises an additional challenge to the ballot title for LR 403, con- cerning a purported transition to centralized tabulation, which we reject without discussion. Petitioner also raises arguments that appear to challenge LR 403 itself— namely, that ranked-choice voting violates various constitutional provisions. We do not address those arguments, which do not fall within the scope of this ballot title proceeding. See Nearman v. Rosenblum, 358 Or 818, 825-26, 371 P3d 1186 (2016) (explaining and citing cases for the proposition that determinations as to the constitutionality of a proposed measure are not within the scope of the ballot title certification process). 5  Petitioner characterizes votes counted for active candidates in ensuing rounds of tallying as “active votes,” but LR 403 does not use that wording. By con- trast, as noted earlier, it defines an “[a]ctive candidate” as a candidate who, “for the election at which ballots are being tallied,” has not withdrawn, been defeated, or been elected (or nominated). Cite as 372 Or 292 (2024) 297 voting—as set out in LR 403—means the majority of votes counted for active candidates in the final round of tallying, as opposed to the majority of total votes cast. The Legislative Assembly argues, though, that the word “majority” through- out the ballot title is unlikely to meaningfully mislead vot- ers. For example, both the “yes” result statement and the summary add clarifying detail, explaining that the tally- ing of votes proceeds in rounds, such that a candidate who receives a “majority of votes”—meaning in the final round of tallying (which necessarily would include active candidates only)—wins. Alternatively, in the event that we agree with petitioner that the word “majority” is so inaccurate as to ren- der the ballot title noncompliant with ORS 250.035(2), the Legislative Assembly suggests that we could refer the ballot title to the Attorney General for modification of the caption and the “yes” result statement, to state that the “candidate receiving majority of votes in the final round wins.” We agree with petitioner that the caption must be modified. The caption of a ballot title for a referred state measure must “reasonably identif[y] the subject matter” of the measure. ORS 250.035(2)(a). As set out in the caption of the ballot title for LR 403, the words “Candidate Receiving Majority of Votes Wins” would most readily be understood by voters to mean the majority of votes cast, but that does not accurately describe the measure. (Emphasis added.) As the parties agree, the word “majority” in the caption does not mean the majority of votes cast; instead, under the ranked- choice voting process set out in LR 403, it means the majority of votes counted for active candidates in a final round of tal- lying. And, importantly, no accompanying contextual word- ing appears in the caption to help voters understand that intended meaning. It follows that the caption does not rea- sonably identify the subject matter of LR 403 and therefore requires modification. See Hurst v. Rosenblum, 366 Or 260, 263, 461 P3d 978 (2020) (caption should “state or describe the proposed measure’s subject matter accurately and in terms that will not confuse or mislead *  *  * voters” (inter- nal quotation marks omitted)); Towers v. Rosenblum, 354 Or 125, 129, 310 P3d 1136 (2013) (caption is the “headline” of the ballot title, “provid[ing] the context for the reader’s con- sideration of the other information in the ballot title[,] and 298 Sasinowski v. Legislative Assembly must describe the proposed measure’s subject matter accu- rately” (internal quotation marks omitted)).6 Similarly, we agree with petitioner that the “yes” result statement also must be modified. A “yes” result state- ment must set out a “simple and understandable statement *  *  * that describes the result” if a referral for a state measure is approved. ORS 250.035(2)(b). The “yes” result statement in the ballot title for LR 403 describes the ranked-choice voting process of counting votes in rounds of tallying, including the elimination of some candidates, with only “active” candidates remaining; it then states, in its final sentence, that a candidate “must receive majority of votes”—again meaning the majority of votes counted for active candidates in the final round—to win election. On one hand, unlike the caption, the first part of the “yes” result statement provides some preceding context to help suggest that, in the final sentence, “majority of votes” means the majority of votes counted in a final round, for only active candidates. However, a voter just as easily could under- stand the final sentence as standing apart from the sentence that precedes it; that is, regardless of the preceding context, a reader might erroneously understand the words “[r]equires that candidate must receive majority of votes to win election” to mean that a candidate must receive the majority of votes cast. In light of those competing readings, we conclude that the “yes” result statement does not substantially comply with ORS 250.035(2)(b) and therefore requires modification. See Hurst, 366 Or at 268 (“yes” result statement required modifi- cation because it was “ambiguous and therefore open to mis- interpretation by a reasonable voter”). We disagree with petitioner, however, that the “no” result statement and the summary in the ballot title for LR 403 require modification. The “no” result statement must set out a “simple and understandable statement *  *  * that describes the result” if 6  Petitioner further contends that, in addition to adding context about count- ing votes for only active candidates in a round of tallying, the ballot title for LR 403 must add contextual information about counting only “active votes.” We dis- agree. As noted earlier, LR 403 does not use the wording “active votes”; moreover, with the inclusion of contextual information about counting votes for only active candidates, the ballot title will necessarily convey that some votes—for defeated candidates—ultimately may not be counted. Cite as 372 Or 292 (2024) 299 the referral or measure “is rejected.” ORS 250.035(2)(c). To explain current law, the second sentence of the “no” result statement in the ballot title for LR 403 first states that a voter selects only one candidate. Then, the third sentence states that the candidate with the “most votes wins.” (Emphasis added.) Together, those sentences accurately describe the result if LR 403 is rejected. Although the final sentence of the “no” result statement—which in effect describes LR 403 as a contrast to current law—uses the phrase “[m]ajority of votes” without providing additional contextual informa- tion about how ranked-choice voting works, that sentence does not detract from the import of the second and third sentences. The “no” result statement therefore substantially complies with statutory requirements. The summary must set out a “concise and impar- tial statement *  *  * summarizing the *  *  * measure and its major effect.” ORS 250.035(2)(d). The summary in the ballot title for LR 403 thoroughly describes the ranked-choice vot- ing process, including the elimination of one or more candi- dates through rounds of tallying. That description provides sufficient context for voters to understand that the words “majority of votes” in the summary means the majority of votes counted for active candidates in a final round of tally- ing. Stated differently, the word “majority” is not inaccurate, ambiguous, or likely to mislead the voters. The summary therefore substantially complies with statutory require- ments. See McCann v. Rosenblum, 354 Or 701, 710, 320 P3d 548 (2014) (rejecting arguments that a ballot title summary was misleading, in light of additional wording in the sum- mary that provided sufficient context to adequately describe a key component of the measure).7 In sum, we conclude that the caption and “yes” result statement in the joint legislative committee’s ballot title for LR 403 require modification, to more accurately con- vey that a “majority” of votes means a majority of the votes counted for active candidates in a final round of tallying. We 7  As already explained, we reject petitioner’s argument that the ballot title— including the “no” result statement and the summary—fails to substantially comply with statutory requirements because it omits information about counting only “active votes” in ensuing rounds of tallying. 300 Sasinowski v. Legislative Assembly therefore refer the ballot title to the Attorney General for modification. The ballot title is referred to the Attorney General for modification.

47bb4d36b17b9b332f5588d6928aaadd3127b35e878cd11046496a1775a06484

2024-05-16T00:00:00Z

68c256df-d20e-4863-ad83-2d10a21b6092

Hotchalk, Inc. v. Lutheran Church--Missouri Synod

S069765

oregon

Oregon Supreme Court

No. 12 May 2, 2024 249 IN THE SUPREME COURT OF THE STATE OF OREGON HOTCHALK, INC., both individually and derivatively on behalf of Concordia University, aka Concordia University—Portland, Plaintiff-Relator, v. LUTHERAN CHURCH—MISSOURI SYNOD; Lutheran Church Extension Fund—Missouri Synod, Concordia University System; Concordia University, St. Paul; Concordia University, aka Concordia University—Portland; Charles E. Gerken; Kathleen Hone; Terry Wilson; Jerry Baltzell; David O. Berger; Michael Borg; Charles E. Brondos; Gerald Koll; Paul Linnemann; Jeff Oltmann; Kurt Onken; Timothy Pauls; Bev Peloquin; Rod Wegener; Sam Wiseman; Brian T. Yamabe; Thomas John Zelt; Thomas Ries; Richard Doughty; Concordia Foundation; Chris Dunnaville; George Thurston; Lutheran Church Extension Fund; John Andrea, Defendants-Adverse Parties. (CC 20CV15620) (SC S069765) Original proceeding in mandamus.* Argued and submitted June 22, 2023.** James T. McDermott, McDermott Weaver Connelly Clifford LLP, Portland, argued the cause and filed the briefs for plaintiff-relator. Also on the briefs was Gabriel M. Weaver. ______________ *  On petition for writ of mandamus from an order of Multnomah County Circuit Court, Eric L. Dahlin, Judge. **  Bushong, J., did not participate in the consideration or decision of this case. Nakamoto, J., Senior Judge, Justice pro tempore, participated in oral argument, but did not participate in the consideration or decision of this case. 250 HotChalk, Inc. v. Lutheran Church–Missouri Synod Timothy R. Volpert, Tim Volpert. P.C., Portland, argued the cause and filed the brief for defendant-adverse party Lutheran Church—Missouri Synod. Also on the brief were Thomas L. Hutchinson and Laura C. Caldera Loera, Bullivant House Bailey PC, Portland. In a combined brief, Rian Peck, Visible Law LLC, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association; Peter Janci, Crew Janci LLP, Portland, filed the brief for amici curiae CHILD USA, Zero Abuse Project, and Oregon Abuse Advocates & Survivors in Service, with Shiwanni Johnson, Crew Janci LLP, also on the brief; Meg Garvin, The National Crime Victim Law Institute at Lewis & Clark Law School, filed the brief for amicus curiae The National Crime Victim Law Institute; and Kristian Roggendorf, The Zalkin Law Firm, San Diego, California, filed the brief for amicus curiae The National Center for Victims of Crime. Colton L. Stanberry, The Becket Fund for Religious Liberty, Washington, D.C., filed the brief for amicus curiae The Jewish Coalition for Religious Liberty. Also on the brief were Eric C. Rassbach and Nicholas R. Reaves. Herbert G. Grey, Portland, filed the brief for amici cur- iae Religious Organizations the General Conference of Seventh-Day Adventists, Queens Federation of Churches, and The Church of Jesus Christ of Latter-day Saints. Also on the brief were Gene C. Schaerr and James C. Phillips, Schaerr | Jaffe LLP, Washington, D.C. Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, James and Masih, Justices, and Walters, J., Senior Judge, Justice pro tempore.** JAMES, J. The alternative writ of mandamus is dismissed as improvi- dently allowed. Cite as 372 Or 249 (2024) 251 252 HotChalk, Inc. v. Lutheran Church–Missouri Synod JAMES, J. HotChalk, LLC1 filed suit against the Lutheran Church—Missouri Synod (Synod) and 22 other defendants, alleging breach of contract and fraud, among other claims, in the closure of Concordia University - Portland (the uni- versity). HotChalk alleges that the Synod orchestrated the university’s closure to financially enrich itself and its affili- ates while freezing out the university’s creditors. During the course of discovery, the Synod sought a protective order under ORCP 36 C to shield from disclosure a subset of documents related to internal religious matters. The trial court con- ducted in camera review, then issued the protective order— in essence, denying a motion to compel discovery of those documents. HotChalk filed a petition for mandamus, and we issued an alternative writ. As we now explain, our statu- tory authority to issue a writ of mandamus is limited: “[A] writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law.”2 ORS 34.110. Because we conclude that HotChalk has not established that the normal appellate process would not constitute a plain, speedy, and adequate remedy in this case, we dismiss the alternative writ as improvidently allowed. I.  BACKGROUND We take the facts from the record in the underlying trial court proceedings. Barrett v. Union Pacific Railroad Co., 361 Or 115, 117 n 1, 390 P3d 1031 (2017). In 2018, HotChalk and the university entered into a 20-year contract—the Administrative Services Agreement (ASA)—under which the parties agreed to share costs and tuition revenue to sup- port and grow the university’s educational programs. The ASA required the university to make weekly revenue share payments to HotChalk. In return, HotChalk was responsi- ble for a proportional amount of operational expenses and for providing services to support the university’s marketing, 1  HotChalk was originally registered as a corporation but has since changed corporate form to a limited liability company. 2  We are not called upon to decide, and do not decide, whether this court’s constitutional mandamus authority is so limited, see Oregon Const, Art VII (Amended), § 2 (“[T]he supreme court may, in its own discretion, take original jurisdiction in mandamus[.]”). Cite as 372 Or 249 (2024) 253 recruiting, enrollment, student support services, and infor- mation technology. After that contract was executed, the Synod—which is a synodical union of certain Lutheran congregations— closed the university. HotChalk filed this civil action against the Synod raising claims that focused on the alleged role that the Synod played in the university’s closure. HotChalk sent the Synod its first request for production, requesting that the Synod produce all Synod board meeting minutes, all communications between the defendants, all documents and communications related to the university’s closure, and any documents and communications concerning HotChalk. After the parties agreed on search terms, the Synod pro- duced more than 33,000 documents, including handbooks, bylaws, other governing documents for the Synod and its reli- gious affiliates, and final minutes of its Board of Directors meetings since 2016.3 The Synod moved under ORCP 36 C for a protec- tive order limiting the scope of permissible discovery by prohibiting HotChalk “from discovering (1) internal church communications related to religious doctrine; (2) internal church communications regarding church governance; and (3) internal church communications regarding employment decisions, including who, if anyone, should be approved as the president of [the university].”4 The Synod argued that the production of those “private religious communications” would violate the Synod’s First Amendment right to freely exercise its religious beliefs, including church governance and selection of ministers and other employees. The Synod argued that the framework articulated by the Ninth Circuit Court of Appeals in Perry v. Schwarzenegger, 591 F3d 1147 (9th Cir 2010), applied to this case. Under that framework, the party opposing discovery must make a “prima facie 3  By the time of this mandamus proceeding, the Synod had produced “about 180,000 documents” in response to HotChalk’s requests for production. The total ultimately withheld pursuant to the trial court’s protective order was roughly 1500, approximately 0.83% of the total discovery in the case. 4  Another defendant, Concordia University System (CUS), joined the Synod in the motion for a protective order. CUS advanced the same arguments as the Synod and was ultimately subject to the trial court’s protective order before the trial court granted CUS’s motion to dismiss. HotChalk is currently pursuing an appeal of that dismissal order in the Court of Appeals (A179825). 254 HotChalk, Inc. v. Lutheran Church–Missouri Synod showing of arguable First Amendment infringement.” Id. at 1160.5 After that showing has been made, the burden then shifts to the party requesting discovery to show, among other things, that the information being sought is “highly relevant” to the requesting party’s claims and that discov- ery would not unduly infringe on protected activity. Id. at 1161. In response, HotChalk argued that the trial court should deny the motion for a protective order because there was no First Amendment privilege for the documents that the Synod sought to protect. Instead, HotChalk argued that the trial court should apply the regular discovery standard provided in ORCP 36 B(1), which allows parties to “inquire into any matter, not privileged, that is relevant to the claim or defense of the party seeking discovery.”6 Under that rule, discovery is not limited to information that would be admis- sible at trial “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. During a hearing on the Synod’s motion for a pro- tective order the trial court equated the Synod’s motion to a motion under ORCP 36 C to restrict discovery “to protect a party or person from *  *  * embarrassment.”7 Rather than issuing any substantive rulings, the trial court deferred 5  In Perry, the Ninth Circuit’s reasoning relied solely on case law dealing with associational rights protected under the First Amendment. Id. at 1160-61. Because we decide this case on jurisdictional grounds, we do not decide whether Perry can be appropriately applied to other First Amendment rights, including those at issue in this case. 6  ORCP 36 B(1) provides: “For all forms of discovery, parties may inquire regarding any matter, not privileged, that is relevant to the claim or defense of the party seek- ing discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter. It is not a ground for objection that the information sought will be inadmissible at the trial if the informa- tion sought appears reasonably calculated to lead to the discovery of admis- sible evidence.” 7  ORCP 36 C provides, in part: “On motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including *  *  * that the discovery not be had.” Cite as 372 Or 249 (2024) 255 full argument and decision until it could perform in camera review of the withheld documents. The trial court ordered the Synod to compile a numbered list of those documents so that it could randomly select a subset of them for review.8 After completing its final in camera review, the trial court granted the Synod’s motion for a protective order. After some further hearings clarifying the order, HotChalk ulti- mately filed a timely petition for mandamus in this court. This court issued an alternative writ of mandamus direct- ing the trial court to either vacate its order or show cause why the trial court should not do so. The trial court declined to vacate its order. As a result, the parties proceeded to argument in this court. Among other issues addressed in the briefing, the Synod argued that the writ should be dis- missed because HotChalk has a plain, speedy and adequate remedy in the ordinary course of the law. II.  ANALYSIS “Mandamus is an extraordinary remedy and serves a limited function.” Lindell v. Kalugin, 353 Or 338, 347, 297 P3d 1266 (2013). ORS 34.110 governs the issuance of a writ and provides, in part: “A writ of mandamus may be issued to any inferior court *  *  * to compel the performance of an act which the law spe- cially enjoins *  *  *; but though the writ may require such court *  *  * to exercise judgment, or proceed to the discharge of any functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law.” To determine whether mandamus will lie, we engage in a two-pronged inquiry. First, we assess whether the trial court had a legal duty to act in a certain way. State ex rel. Maizels v. Juba, 254 Or 323, 327, 460 P2d 850 (1969) 8  Initially, the Synod had withheld approximately 2,017 documents. While compiling the numbered list for the trial court, the Synod removed several doc- uments from its asserted privilege because they were (1) third-party documents or (2) publicly available. The Synod also discovered and produced two documents that mentioned the university’s finances. Ultimately, the Synod provided the trial court with a list of 1,534 documents that it sought to withhold from production. 256 HotChalk, Inc. v. Lutheran Church–Missouri Synod (“Generally, the court has said that when the facts are not in dispute and there is a clear rule of law requiring the matter to be decided in a certain way, mandamus will lie.”). Accordingly, mandamus is appropriate to review only obligatory—not dis- cretionary—action. See, e.g., State ex rel. Ricco v. Biggs, 198 Or 413, 421-22, 255 P2d 1055 (1953), overruled on other grounds by Maizels, 254 Or 323 (“It has become hornbook law in this state that the writ of mandamus cannot be used as a means of controlling judicial discretion, nor as a substitute for appel- late review. The statute restricts its use to instances involv- ing the performance of an act which the law specially enjoins. Mandamus will never lie to compel a court to decide a matter within its discretion in any particular way.”). The second preliminary question that we consider is whether the party seeking the writ has other means of recourse and, if so, whether the relief provided thereby is “plain, speedy, and adequate[.]” ORS 34.110; see also Durham v. Monumental S. M. Co., 9 Or 41, 44 (1880) (“The existence, or non-existence, of an adequate and specific remedy at law under the ordinary forms of legal procedure, is *  *  * one of the first questions to be determined in all applications for the writ of mandamus[.]”). The fact that this court issued an alternative writ at the outset of a mandamus proceeding does not resolve whether those preliminary requirements are met. See, e.g., Fredrickson v. Starbucks Corp., 363 Or 810, 813, 429 P3d 727 (2018) (dismissing writ after briefing and argument); State ex  rel. Portland Habilitation Center, Inc. v. PSU., 353 Or 42, 51 n 4, 292 P3d 537 (2012) (considering a circuit court’s issuance of an alternative writ and explaining that the cir- cuit court was required to dismiss that writ if it later deter- mined that the preliminary requirements were not met); State ex rel. Le Vasseur v. Merten, 297 Or 577, 582, 686 P2d 366 (1984) (dismissing alternative writ after concluding that relators had an adequate remedy at law); State ex rel. Boe v. Straub, 282 Or 387, 389-90, 578 P2d 1247 (1978) (same). Before us, the Synod argues that HotChalk is not entitled to mandamus relief because the issues that it raises can be resolved on direct appeal and that HotChalk has not established that direct appeal is not an adequate remedy Cite as 372 Or 249 (2024) 257 in this instance. The Synod cites State ex rel. Anderson v. Miller, 320 Or 316, 324, 882 P2d 1109 (1994), and State ex. rel. Automotive Emporium, Inc. v. Murchison, 289 Or 265, 611 P2d 1169 (1980), for the proposition that, generally, relief from a discovery ruling must be pursued through an ordinary appeal and that “[d]irect appeal is an adequate remedy unless the relator would suffer a special loss beyond the burden of litigation by being forced to trial.” Murchison, 289 Or at 269; see also Fredrickson, 363 Or at 813-14 (to same effect). The Synod is correct that we have previously cau- tioned that the availability of mandamus to resolve a discov- ery dispute is limited: “[N]ot every pretrial discovery order is subject to mandamus,” because “[m]any pretrial discovery errors do not have systemic implications and can be reme- died on appeal.” Anderson, 320 Or at 324; Murchison, 289 Or at 268 (stating that mandamus in the discovery context is generally inappropriate because “direct appeal is a plain, speedy and adequate remedy”). In Murchison, this court rea- soned that “the prospect of suffering the burden of litigation” was insufficient in itself to justify mandamus. 289 Or at 269. The court concluded that appeal was a “plain, speedy and adequate” remedy so long as the relators did not “suffer[  ] an irretrievable loss of information and tactical advantage [that] could not be restored to them on direct appeal.” Id. That rule is not absolute, and, on occasion, we have issued writs of mandamus to resolve issues of pretrial dis- covery. For example, in Anderson, this court concluded that appeal was not a sufficient remedy where the trial court had denied the relator’s request to record a deposition via vid- eotape. 320 Or at 323. In that case, the trial court issued a “protective order requiring that the deposition be recorded stenographically only and that videotape not be used.” Id. at 318. This court concluded that appeal would not remedy that error because the method used to record and present deposition testimony at trial could have a subtle yet signifi- cant impact at trial: “Use of tape recorders, video tape, and similar devices may facilitate less expensive procedures. They have a further advantage in that the finder of fact at trial often will gain 258 HotChalk, Inc. v. Lutheran Church–Missouri Synod greater insight from the manner in which an answer is delivered and recorded by audio-visual devices. Moreover, a recording, video tape, or a motion picture of a deposition will avoid the tedium that is produced when counsel read lengthy depositions into evidence at trial.” Id. at 323 (quoting 8 Wright & Miller, Federal Practice and Procedure 426, § 2115 (1970) (footnotes omitted)). As another example, in Gwin v. Lynn, 344 Or 65, 70-71, 176 P3d 1249 (2008), the relator had sought to depose a witness who, although designated as an expert, was also involved in the cases in a direct and personal way. When the relator sought to depose the witness because of her direct involvement in the actions giving rise to that case, the opposing party objected on the grounds that they planned to call her as an expert witness at trial, and the trial court sustained that objection. Id. at 69.9 Before this court, the relator argued that he had a right to depose the witness on matters not covered by the bar on expert discovery. Id. at 70-71. We issued the writ, concluding that a witness may be both an expert and a fact witness and, therefore, may be deposed concerning only those facts pertinent to the wit- ness’s direct involvement in or observation of the relevant events. Id. at 67. In this case, in its petition for a writ of manda- mus, HotChalk claimed that mandamus was appropriate “because the trial court’s order proscribes discovery into key aspects of HotChalk’s complaint” and “direct appeal is not *  *  * adequate [to] remedy” that purported error. At the petition stage, HotChalk asserted that, “without knowing the content of the communications improperly withheld as privileged, [it] will be prejudiced in prosecuting its validly pleaded tort and contract claims.” However, in its briefing in this court, HotChalk does not reply to the Synod’s argu- ment in its brief on the merits or to the cases that it cites. HotChalk asserts only that relief on appeal would “come too late.” But, HotChalk does not give us more. 9  As this court has previously stated, while ORCP 36 B authorizes discovery of any relevant nonprivileged matter, it does not authorize trial courts to order pretrial disclosure of the identity and intended testimony of expert witnesses. Stevens v. Czerniak, 336 Or 392, 84 P3d 140 (2004). Cite as 372 Or 249 (2024) 259 HotChalk has not addressed Murchison at all, let alone persuaded us that the general rule of Murchison—that “[a]ny claim of prejudice arising from a denial of discovery is reviewable on direct appeal”—is not applicable. 289 Or at 268. HotChalk has not persuaded us that whatever harm it may have suffered as a result of the trial court court’s rul- ing equates to the type of irretrievable loss of information and loss of tactical advantage discussed in Murchison. In particular, we note that the trial court ordered the Synod to produce a detailed privilege log with entries for each of the withheld documents. Given that log, the nature of the dispute and parties’ arguments, and the records in the pro- ceeding below, HotChalk does not explain how direct appeal would be inadequate, and, on this record, we perceive no impediment to meaningful appellate review sufficient to make traditional appeal an inadequate remedy so as to jus- tify the extraordinary relief of mandamus. Accordingly, we now conclude, as we did in Fredrickson, that “the questions raised in the mandamus petition are better resolved in the ordinary trial and appel- late process.” 363 Or at 813. We therefore exercise our discre- tion to decline to resolve those questions on mandamus, and we dismiss the alternative writ as improvidently allowed. The alternative writ of mandamus is dismissed as improvidently allowed.

e8b7357c2b69da0f370514064a79ff0c5e1dfc57e65e02c4007fd234fdcfd800

2024-05-02T00:00:00Z

65c09d63-2fec-4749-8444-a06db3e472cc

State v. Villeda

S070188

oregon

Oregon Supreme Court

108 March 21, 2024 No. 6 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. JULIO CESAR VILLEDA, Respondent on Review. (CC 19CR08759; 20CR10192) (CA A175679 (Control); A175680) (SC S070188) En Banc On review from the Court of Appeals.* Argued and submitted November 9, 2023. Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Brett J. Allin, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Deputy Defender, Criminal Appellate Section. James S. Coon, Thomas, Coon, Newton & Frost, Portland, filed the brief for amicus curiae Gary Walter Higgs. Rosalind M. Lee, Oregon Criminal Defense Lawyers Association, Eugene, filed the brief for amicus curiae Oregon Criminal Defense Lawyers Association. Also on the brief were Stacy M. Du Clos, Nora E. Coon, and Daniel C. Silberman. BUSHONG, J. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed. ______________ *  Appeal from Washington County Circuit Court, Oscar Garcia, Judge. 324 Or App 502, 526 P3d 1213 (2023). Cite as 372 Or 108 (2024) 109 110 State v. Villeda BUSHONG, J. A jury convicted defendant of two domestic violence offenses, acquitting him on more serious charges, including rape, sodomy, and sexual abuse of his domestic partner. Before trial, during jury selection, a prospective juror stated that she did not think that she could be fair and impartial because she had several close friends who had been sexually assaulted and that would influence her if she sat on the jury. The trial court denied defendant’s request to excuse that prospective juror for actual bias after hearing her responses to additional questions posed by the court and the prosecutor. The prospec­ tive juror did not sit on the jury that decided the case because defendant used one of his peremptory challenges to excuse her. In appealing his convictions, defendant contended that the trial court abused its discretion in denying defendant’s for-cause challenge to that juror. The Court of Appeals agreed and further concluded that the error was prejudicial because it resulted in the loss of a peremptory challenge. State v. Villeda, 324 Or App 502, 526 P3d 1213 (2023). We agree with the Court of Appeals that the trial court abused its discretion in denying defendant’s challenge for cause, but we conclude that the error did not prejudice the defendant “in respect to a substantial right” as required for reversal under ORS 131.035. As explained below, the error did not interfere with defendant’s right to a fair trial before impartial jurors, and whatever impact the error may have had on how defendant used his peremptory challenges did not prejudice him in respect to a substantial right. Accordingly, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court. I.  BACKGROUND A.  Standard of Review We review the trial court’s ruling on a challenge to a juror for cause for abuse of discretion. State v. Fanus, 336 Or 63, 83, 79 P3d 847 (2003), cert den, 541 US 1075 (2004). Because the trial court has the advantage of observing the juror’s demeanor, a trial court’s decision on a challenge for cause “is entitled to deference and will not be disturbed absent a manifest abuse of discretion.” Id. The trial court’s Cite as 372 Or 108 (2024) 111 discretion, however, is limited by the law that governs chal­ lenges for cause for actual bias. See ORCP 57 D(1)(g) (defin­ ing actual bias);1 ORS 136.210(1) (adopting ORCP 57 D(1)(g) standards for jury selection in criminal cases); State v. Barone, 328 Or 68, 74, 969 P2d 1013 (1998) (describing abuse of discretion standard). The fact that a juror “has preconceived ideas about a matter relevant to the case is not determinative.” Barone, 328 Or at 74. Rather, the test “is whether the prospective juror’s ideas or opinions would impair substantially [their] performance of the duties of a juror to decide the case fairly and impartially on the evi­ dence presented in court.” Id. B.  The Jury Selection Process in This Case The relevant facts—involving the steps taken by the trial court during the jury selection process, also known as voir dire—are procedural and undisputed. At the start of the jury selection process, the court read the charges in the indictment and asked if any of the prospective jurors had personal views about this type of case—involving allegations of domestic violence, including charges of rape, sodomy, and physical assault—that might affect their ability to be fair and impartial jurors. Juror 155 raised her hand. When defense counsel asked juror 155 why she might not be able to be fair and impartial, she stated, “I have several close friends who have been sexually assaulted or raped” and “that would influence how I would participate in this.” When asked to explain further, juror 155 stated, “Well, I think generally when I hear about cases of sexual 1  ORCP 57 D(1)(g) provides that challenges for cause may be taken for actual bias. The rule defines actual bias as “the existence of a state of mind on the part of a juror that satisfies the court, in the exercise of sound discretion, that the juror cannot try the issue impar­ tially and without prejudice to the substantial rights of the party challenging the juror. Actual bias may be in reference to the action; either party to the action; the sex of the party, the party’s attorney, a victim, or a witness; or a racial or ethnic group of which the party, the party’s attorney, a victim, or a witness is a member, or is perceived to be a member. A challenge for actual bias may be taken for the cause mentioned in this paragraph, but on the trial of such challenge, although it should appear that the juror challenged has formed or expressed opinion upon the merits of the cause from what the juror may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.” 112 State v. Villeda abuse or rape, I tend to give credibility to the survivor. And, so, while I can still presume that [defendant] is innocent, I think my natural inclination is [to] stand with the survivor.” When defense counsel asked the juror if she could put that view aside, she stated, “I’m not sure if I could put it aside.” Defense counsel then asked the juror if she had “a reasonable doubt about [her] ability to be fair to [defendant] in this case,” and she replied, “Yes.” Defense counsel then asked the court to excuse juror 155 for cause. The court did not immediately rule on that request. Instead, the court spoke to the pool of prospective jurors about the role of the jury, explaining that, although the cir­ cumstances of the case might remind a person of their own life experiences, that does not necessarily mean that the person cannot be a fair and impartial juror. The court then asked juror 155 the following question: “Do you think you could put those feelings aside *  *  * and be neutral, fair when you hear the evidence here *  *  * and then if it’s creeping back, wait, I know I have these feelings, but I can’t let them—no, no, I got to listen. I got to be fair to both sides *  *  *. “And then hear the evidence and then follow the law as I give it to you and just in essence, you know, to be fair. I mean, do you think you could do that *  *  * if you were a juror in this case?” Juror 155 replied: “Yes, I think so. I think, again, that my natural inclina­ tion would be to lend more support to the victim survivor, but I think I could check my biases and my past under­ standing of these issues.” At that point, the court permitted questioning of the pro­ spective jurors to continue. Later, defense counsel asked the prospective jurors if anyone believed that a woman would not lie about being raped. Juror 155 raised her hand and confirmed that her con­ cern was the same as what she previously explained. Juror 155 also indicated that she agreed with defense counsel’s statements that a woman would not lie about being raped by someone that she was in a relationship with, and that a Cite as 372 Or 108 (2024) 113 woman would not lie “in court” about being raped. Defense counsel then asked juror 155 if she thought she would be a good juror for this case, and she replied that she thought she would be “biased” or “really emotional.” The court and prosecutor then inquired further: “THE COURT:  Ma’am, *  *  *we gave you a chance to hear other folks*  *  *? And again, you know, you heard my defini­ tion of what we’re looking for, everybody here *  *  * to be fair and * *  * kind of keep *  *  * those emotions aside if you can* *  *. So, do you think, ma’am, that you can do it in this case? “[JUROR 155]:  I don’t think I could keep my emotions to the side. Even just being in the room is just difficult. “THE COURT:  And would those emotions not allow you to be fair to one side. “[JUROR 155]:  Yeah. I don’t think they would allow me to be fair.” The court then allowed the state to inquire further: “[THE PROSECUTOR]:  Thank you. [Juror 155], I can see you’re getting a little upset, and I totally understand. The good news is that we’re not here to decide whether or not rape is a crime. There are certainly—it’s a crime within the books, and there are other heinous crimes that defi­ nitely happen in the courthouse that *  *  *would be hard to listen to. There’s child abuse. There’s murder. And nobody is asking you not to be a human when you’re hearing that. The question is when the judge tells you that, you know, you’re to follow the law and to weigh the evidence as it’s presented, do you think that’s something you could do? “[JUROR 155]:  To weigh the evidence as it’s presented? “[THE PROSECUTOR]:  Mm-hmm. The evidence and the law as its presented. “[JUROR 155]:  Yes.” Defense counsel again challenged juror 155 for cause, and the court denied the challenge. The court also denied defense counsel’s request for additional peremptory challenges. At the end of the jury selection process, defense counsel used one of defendant’s six peremptory challenges to excuse juror 155 and used the other five peremptory 114 State v. Villeda challenges to excuse other prospective jurors. Defense coun­ sel did not challenge for cause any of the jurors who were eventually seated on the jury, although counsel did state that the defense would have used peremptory challenges to excuse jurors 128 and 305 if two more peremptory challenges had been available.2 Defense counsel did not challenge those jurors for cause, contend that they did not qualify as fair and impartial jurors, or explain why he would have excused those jurors peremptorily if he had more peremptory challenges. At the conclusion of the trial, the jury found defen­ dant guilty of endangering a person protected by an order under the Family Abuse Prevention Act, ORS 163.192, and assault in the fourth degree constituting domestic violence, ORS 163.160(2). The jury found defendant not guilty on the other charged offenses, including rape, sodomy, and sexual abuse of his domestic partner. Defendant appealed his convictions, and the Court of Appeals reversed, concluding that the trial court abused its discretion in rejecting defendant’s for-cause challenge to juror 155, Villeda, 324 Or App at 512, and that the conse­ quence of that error “was to force defendant to use a peremp­ tory challenge, effectively reducing the number of peremp­ tory challenges available for other prospective jurors.” Id. at 514. That amounted to prejudice within the meaning of Article VII (Amended), section 3, of the Oregon Constitution, the court reasoned, in part based on this court’s description of “prejudice” in State v. Montez, 309 Or 564, 577, 789 P2d 1352 (1990). Thus, the court concluded that “prejudice arises from the erroneous rejection of a for-cause juror challenge if, as here, the defendant makes a record that a lost peremp­ tory challenge would otherwise have been used against a juror who sat.” Villeda, 324 Or App at 514. II.  DISCUSSION A.  Defendant’s Challenge for Cause Based on Actual Bias In all criminal prosecutions, the defendant has the right to a trial “by an impartial jury.” Or Const, Art I, § 11. That right “is a matter which is and should be guarded 2  Juror 305 sat on the jury that decided the case. Juror 128 was empaneled to sit on the jury but was later released due to illness and replaced by an alternate juror. Cite as 372 Or 108 (2024) 115 zealously by the courts, and the courts should guarantee that juries consist of impartial persons.” Lambert v. Srs. of St. Joseph, 277 Or 223, 230, 560 P2d 262 (1977). “The test of a juror’s disqualification [for actual bias] is the probabil­ ity of bias or prejudice” as determined by the trial court. Montez, 309 Or at 575; see also State v. Lotches, 331 Or 455, 474, 17 P3d 1045 (2000) (stating that the trial court deter­ mines excusal for actual bias “by looking at the totality of the potential juror’s voir dire testimony to discern whether it suggests the probability of bias”) (internal quotation marks omitted). In considering the totality of the circumstances, we have explained that a court must give more weight to a juror’s unprompted statements of bias, and less weight to any statements made in response to statements or leading questions by counsel or the court designed to “rehabilitate” a juror who had disclosed a preexisting bias. For example, in Lambert, at the beginning of the jury selection process in a medical malpractice case, one prospective juror indicated that he knew one of the defendant doctors and stated that he would be biased in favor of that doctor. 277 Or at 226. Because the plaintiffs had exhausted their peremptory chal­ lenges, that juror was seated on the jury, which returned a verdict for the defendants. On appeal, we reversed, concluding that the trial court should have excused that juror for cause because his “substantial probability of bias” deprived the plaintiffs “of the right to have their issues determined by an impartial juror.” Id. at 231. We explained that the trial court’s fail­ ure to excuse the juror for cause amounted to “a manifest abuse of the discretion vested in the court,” because a juror’s “[i]nitial reactions or answers given in voir dire without undue debate and confinement of issues should be afforded much greater weight in determining [the juror’s] true frame of mind.” Id. That is because “[e]arly answers or reactions more truly indicate the juror’s frame of mind as opposed to later generalized statements that the juror would be fair.” Id. Thus, we concluded that answers given by a juror early in the jury selection process—before any efforts at reha­ bilitating the juror—must be given “[s]pecial emphasis” or 116 State v. Villeda “particular significance” in assessing a prospective juror’s actual bias. Id. We apply the same principles in criminal cases. For example, in State v. Nefstad, 309 Or 523, 531, 789 P2d 1326 (1990), a capital case, we held that a trial court did not err in excusing one prospective juror for actual bias where, “[w]ith­ out equivocation, [the juror] explained his views and the effect that they would have on his ability to be an impartial juror at the beginning of his voir dire testimony.” The defendant in Nefstad argued that the trial court had erred in excusing the prospective juror for cause because the defendant had not been “given a chance to rehabilitate [the juror] on issues the trial court felt provided a legal basis for exclusion” in violation of his statutory and constitutional rights. Id. We disagreed, noting that ORS 136.210(1) gave the defendant a statutory right to examine prospective jurors as to their qualifications, and the defendant’s counsel had been given two opportunities to question the juror. Id. at 531-32. Moreover, we explained, examining a juror is different from rehabilitating the juror, because “the purpose of the voir dire examination was inves­ tigation, not persuasion.” Id. at 533. We therefore concluded, “  ‘[w]hen it satisfactorily appears from the examination of a person called as a juror that [they possess] such a state of mind that [they] cannot try the issues impartially, the intro­ duction of further testimony would be superfluous.’  ” Id. (quot­ ing State v. Miller, 46 Or 485, 487, 81 P 363 (1905)).3 Thus, we recognized in both Lambert and Nefstad that (1) a party does not have a right to rehabilitate a biased juror; (2) a juror’s unprompted statements of bias should be given special weight; and (3) attempting to persuade a juror that they could be fair despite their expressed biases inter­ feres with the court’s effort to assess whether the prospective 3  We also noted that the statements of another prospective juror in Nefstad “were equivocal” and that that juror had “given admittedly contradictory responses” regarding his personal views about the death penalty. Id. at 536, 538. We concluded that the trial court did not abuse its discretion in dismissing that juror for actual bias because the juror’s voir dire testimony, taken as a whole, “established that his views on the death penalty would have interfered substan­ tially with and impaired his performance as a juror in accordance with his oath and the court’s instructions.” Id. at 538. We explained that a prospective juror in a capital case “may be excused on [those] grounds without violating the defen­ dant’s right to an impartial jury.” Id. Cite as 372 Or 108 (2024) 117 juror’s “probability of bias” is sufficient to excuse the juror for cause. Legal scholars and empirical studies support those conclusions. One commentator observed that juror reha­ bilitation “gets little support from social science research as a method to ensure impartial juries.” Kathleen Wright, Friends and Foes in the Jury Box: Walls v. Kim and the Mission to Stop Improper Juror Rehabilitation, 53 Mercer L Rev 929, 941 (2002) (examining the practice of juror reha­ bilitation in Georgia in the context of a specific case).4 Other research has confirmed what we recognized in Lambert: Juror “rehabilitation” is ineffective at best and likely detri­ mental to the court’s goal of ensuring that all jurors are fair and impartial.5 See Christopher A. Cosper, Rehabilitation of the Juror Rehabilitation Doctrine, 37 Ga L Rev 1471, 1487 (2003) (noting that judicial rehabilitation of jurors is a com­ mon tool that is used to increase the efficiency of trials and advocating for “close scrutiny” of the practice of juror reha­ bilitation); Barbara O’Brien & Catherine Grosso, Judges, Lawyers, and Willing Jurors: A Tale of Two Jury Selections, 98 Chi Kent L Rev 107, 112 (2023) (noting that, “[w]hen jurors say something to suggest a bias of any sort, judges often attempt to rehabilitate that juror” but concluding that that effort is ineffective in addressing juror bias); Jessica M. 4  In the case addressed by the Wright article, Walls v. Kim, 250 Ga App 259, 259, 549 SE2d 797, 799 (2001), aff’d, 275 Ga 177, 563 SE2d 847 (2002), the Georgia Court of Appeals noted that some trial judges attempt to “rehabilitate” jurors by asking them if they can set aside their biases and decide the case solely on the evidence and the law, and then retain “these purportedly rehabilitated jurors.” The court explained that “the better practice is for judges *  *  * to remove such partial jurors, even when the question of a particular juror’s impartiality is a very close call.” Id. 250 Ga at 260, 549 SE2d at 799. 5  Several commentators have noted that juror rehabilitation is especially inef­ fective when it is done by a judge. See Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv L & Pol’y Rev 149, 160 (2010) (stating that “empirical research suggests that potential jurors respond more candidly and are less likely to give socially desirable answers to questions from law­ yers than from judges” (citing Susan E. Jones, Judge- Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, 11 Law & Hum Behav 131 (1987))); Caroline B. Crocker & Margaret Bull Kovera, The Effects of Rehabilitative Voir Dire on Juror Bias and Decision Making, 34 Law & Hum Behav 212, 213 (2010) (describing an empirical study that revealed that, “not only do venirepersons pro­ vide less candid information to judges than to attorneys, but also judges elicit inac­ curate information from venirepersons due to their choice of questions”). 118 State v. Villeda Salerno, John C. Campbell, Hannah J. Phalen, Samantha R. Bean, Valerie P. Hans, Daphna Spivack & Lee Ross, The Impact of Minimal Versus Extended Voir Dire and Judicial Rehabilitation on Mock Jurors’ Decisions in Civil Cases, 45 Law & Hum Behav 336, 336 (2021) (noting that “[j]udicial rehabilitation did not reduce the biasing impact of their pre­ existing attitudes on case judgments but did result in mock jurors reporting that they were less biased, despite evidence that judicial rehabilitation did not actually reduce their bias” (emphasis in original)).6 As one study explained, “[i]n a typical juror reha­ bilitation, the judge asks jurors individually, in front of the remaining panel, whether they can set aside bias they have already confessed and be fair. Social science evi­ dence strongly [suggests] *  *  * that jurors confronted with this question from the bench almost invariably say, yes.” Wright at 941-42 (internal quotation marks omitted). Those results support this court’s conclusion in Lambert that a juror’s unprompted statements regarding bias must be given “much greater weight” than statements made after the court or counsel attempt to “rehabilitate” the juror by asking whether the juror can set aside her bias and be fair. 277 Or at 231. Posing close-ended questions to “rehabilitate” a juror is an ineffective way to discern a juror’s actual biases and achieve the goal of selecting a fair and impartial jury. In this case, the trial judge gave greater weight to juror 155’s responses to the judge’s questions, and, to some extent, the prosecutor’s follow-up question asking the juror if she could set aside her expressed bias and be fair, than to her initial, unprompted statements of bias. The trial court’s reliance on the juror’s responses to those questions and its failure to give “much greater weight” to the juror’s unprompted statements about her bias at the start of the jury selection process exceeded the range of discretion 6  Although this case involves a juror’s express, rather than implicit, bias, commentators have noted that juror rehabilitation is especially ineffective to address a juror’s implicit bias. See Bennett at 160 (stating that the question often asked by judges to rehabilitate a juror—Can you be fair and impartial in this case?—“does not begin to address implicit bias, which by its nature is not consciously known to the prospective juror”); id. (noting that “the trial judge is probably the person in the courtroom least able to discover implicit bias by ques­ tioning jurors”). Cite as 372 Or 108 (2024) 119 afforded under Lambert. Accordingly, we agree with the Court of Appeals that the trial court abused its discretion in denying defendant’s for-cause challenge to juror 155. B.  Whether the Error Is Grounds for Reversal In criminal cases, an error is grounds for rever­ sal only if it “has prejudiced the defendant in respect to a substantial right.” ORS 131.035; see also State v. Davis, 336 Or 19, 28, 77 P3d 1111 (2003) (stating that, under Article VII (Amended), section 3, of the Oregon Constitution, this court “must affirm a judgment, despite any error commit­ ted at trial, if, after considering all the matters submit­ ted, the court is of the opinion that the judgment ‘was such as should have been rendered in the case’  ”). In Davis, we explained that assessing whether there is little likelihood that an error affected the outcome is the “constitutional test for affirmance despite error.” 336 Or at 32. Although ORS 131.035—whether the error “has prejudiced the defendant in respect to a substantial right”— is worded differently, we noted in Davis that the constitu­ tional analysis “is similar to” the analysis required by stat­ utes that “preclude reversal of a judgment for trial error in the absence of a demonstration that the error affected the substantial right of a party.” 336 Or at 29 n 7. In another case, we cited both provisions without identifying any meaningful difference between them, and no party in this case contends that there is any difference between the stat­ utory and constitutional standards. See State v. Dulfu, 363 Or 647, 676, 426 P3d 641 (2018) (citing Or Const, Art VII (Amended), § 3, and ORS 131.035 in determining whether an error was harmless). Accordingly, in this case, our con­ clusion that the erroneous denial of defendant’s for-cause challenge did not prejudice defendant in respect to a sub­ stantial right as required for reversal under ORS 131.035 also means that there was little likelihood that the error affected the outcome, consistent with the constitutional test for affirmance despite error described in Davis. The state contends that the erroneous denial of defendant’s for-cause challenge to juror 155 was not prejudi­ cial under State v. Megorden, 49 Or 259, 88 P 306 (1907), and 120 State v. Villeda Barone. We stated in Megorden that the erroneous denial of a challenge for cause to a juror excused peremptorily is not prejudicial unless “the challenger was compelled to accept an objectionable juror.” 49 Or at 263-64. We concluded in Barone that peremptory challenges “have no constitutional significance in and of themselves, and the fact that a defen­ dant is forced to use them to achieve an impartial jury does not offend the right to a fair trial.” 328 Or at 72-73. The state contends that an “objectionable juror” for purposes of Megorden is a juror who should have been excluded for cause, and that any “loss” of a peremptory challenge in this context cannot be prejudicial under Barone unless the error deprived a defendant of his right to a fair trial. Defendant counters that the erroneous denial of his for-cause challenge was prejudicial because it caused him to use a peremptory challenge on juror 155 that he otherwise could have used on one of two other jurors that he identi­ fied at the time, and one of those jurors served on the jury. Defendant argues that this “loss” of a peremptory challenge is prejudicial automatically under Highway Commission v. Walker et  ux, 232 Or 478, 485, 376 P2d 96 (1962), and that we confirmed that presumption of prejudice in Montez. Alternatively, defendant contends that our prior cases have treated any juror that a party would have excused peremp­ torily as an “objectionable juror” for purposes of Megorden, making the erroneous denial of defendant’s for-cause chal­ lenge in this case prejudicial because it forced him to accept an “objectionable juror” that he would have been able to excuse peremptorily if the court had not denied his for-cause challenge.7 The state disagrees with defendant’s understanding of Megorden and suggests that we should overrule Walker if we conclude that it conflicts with this court’s decisions in Megorden and Barone. As we shall explain, we conclude that the trial court’s erroneous denial of defendant’s challenge to juror 155 for cause did not “prejudice the defendant in respect to a substantial right” as required for reversal under 7  Defendant assigned error solely to the trial court’s decision not to excuse juror 155 for cause. Defendant did not separately assign error to the trial court’s “rehabilitation” statements during voir dire. Accordingly, we are not called upon to decided how prejudice is to be evaluated in that circumstance. Cite as 372 Or 108 (2024) 121 ORS 131.035. To reach that conclusion, we need not overrule Walker because the error in that case is different than the error in this case. We begin with defendant’s argument that his “loss” of a peremptory challenge is presumed to be prejudicial under Walker. In that condemnation action, both parties had a statutory allotment of three peremptory challenges. After each party had exercised two peremptory challenges, the plaintiff—the State Highway Commission—declined to use its final challenge on any of the 12 jurors that had been seated on the panel. Defendants then exercised their third peremptory challenge, and a new juror was seated. The state then attempted to exercise its third peremptory challenge on the new juror, but the trial court ruled that the state had waived its third peremptory challenge by declining to exer­ cise it on any of the jurors on the previous panel. The only issue on appeal was whether “the trial [court] erred when [it] refused to permit the state to exercise its third peremp­ tory challenge.” Walker, 232 Or at 481. To resolve that question, we cited the general rule that applies when the parties “exercise their peremptory challenges alternately, beginning with the plaintiff and con­ tinuing until one of them is satisfied with the jury as it is then constituted and waives his next challenge.” Id. at 484. When that occurs, we explained, a peremptory challenge “waived by either party upon its becoming satisfied with the jury as then constituted may later be exercised upon a juror who is called to the box subsequent to the time the challenge was waived.” Id. We concluded that the trial court had erred because it did not allow the state to exercise its third peremptory challenge “upon a juror who [was] called to the box” after the state had passed on the 12 jurors who had been seated on the previous panel. Id. We said that the error “should be deemed prejudicial automatically” because, otherwise, the statutory right to three peremptory chal­ lenges “is an empty one.” Id. at 485. Thus, the error that was presumed prejudicial in Walker was the trial court’s determination that the state had “waived” one of the three peremptory challenges allot­ ted to it by statute. The error in this case is different. Here, 122 State v. Villeda we agree with the Court of Appeals that the trial court erred in denying defendant’s for-cause challenge to juror 155. But the trial court did not find that defendant had “waived” any of the six peremptory challenges allotted to him by stat­ ute, as in Walker. Because defendant was able to use all six peremptory challenges allotted to him by statute, the error in this case is different from the error that we presumed to be prejudicial in Walker. In addition, we determined in Baker v. English, 324 Or 585, 932 P2d 57 (1997), that Walker’s presumptive preju­ dice rule should be limited to the circumstances presented in that case. In Baker, we noted that Walker had identified “a narrow exception to the general principle that a party’s rights ordinarily are not substantially affected by an error that likely did not affect the outcome of the case,” but we indicated that Walker’s “per se rule specifically for the pur­ pose of analyzing error pertaining to peremptory challenges *  *  * should not be interpreted to reach beyond that context.” Id. at 592 n 6. Accordingly, we decline to extend Walker’s per se rule beyond the context of that case. Thus, the only error pertaining to peremptory challenges that will be “deemed prejudicial automatically” under Walker is errone­ ously denying a party the number of peremptory challenges allotted by statute. See also State v. Durham, 177 Or 574, 164 P2d 448 (1945) (holding that the trial court commit­ ted reversible error “in denying [the] defendant the right of peremptory challenge” when the court refused to allow the defendant any peremptory challenges in selecting a jury for sentencing under Oregon’s Habitual Criminal Act).8 There is no such error here. Defendant used all six of the peremptory challenges allotted to him by statute, and he does not contend in this court that the trial court erred in refusing to allow him more than six peremptory 8  The Habitual Criminal Act applied in Durham was a 1927 statute that pro­ vided for an enhanced sentence of up to life imprisonment for a felony conviction if the defendant had three prior felony convictions. The trial court in Durham empaneled a jury at the time of sentencing to consider whether defendant had been convicted of the requisite four felonies (including the current charge), but the trial court determined in that special proceeding that defendant “was not entitled to any peremptory challenge[s].” 177 Or at 579. This court reversed, con­ cluding that the legislature did not intend to deny defendant the right of peremp­ tory challenge when it enacted the Habitual Criminal Act. Id. at 581. Cite as 372 Or 108 (2024) 123 challenges. Defendant contends, however, that he was effec­ tively denied the use of six peremptory challenges because he was “forced” to use a peremptory challenge on juror 155, leaving him with only five peremptory challenges to use on other jurors. Defendant argues that we confirmed in Montez that such a “loss” of a peremptory challenge is grounds for reversal. We disagree with both contentions. The erroneous denial of defendant’s for-cause chal­ lenge did not “force” him to use a peremptory challenge on juror 155. Peremptory challenges are granted by statute “as [a] matter of favor” or as a “privilege” to litigants. State v. White, 48 Or 416, 425, 87 P 137 (1906). A peremptory chal­ lenge is something that a party may “use at [the party’s] own discretion.” State v. Humphrey, 63 Or 540, 544, 128 P 824 (1912). Denying a for-cause challenge does not “force” a party to use a peremptory challenge to excuse a juror it had challenged for cause because a party might choose not to use a peremptory challenge to excuse that juror. For example, in Humphrey, the defendants chose to leave on the jury a juror that they had previously challenged for cause, even though they still had peremptory challenges available at the end of jury selection. Id. at 544-45 (noting that the defendants had challenged six jurors for cause, used peremptory challenges to excuse five of those jurors, and did not use “any of the remaining seven peremptory challenges allowed them by statute” to excuse the other juror that they had challenged for cause). If we assume that defendant’s objective was to accomplish what he would have accomplished if the trial court had dismissed juror 155 for cause—removing that juror from the jury—then the only way he could accomplish that result was to use one of his peremptory challenges to remove that juror. As explained below, we have described that use of a peremptory challenge as “curing” the error, but we have never described it as a prejudicial denial of a substantial right. Defendant argues that we “confirmed” in Montez, a capital case, that an erroneous denial of a chal­ lenge for cause is prejudicial error where a party uses one of the allotted peremptory challenges to excuse the juror in question, leaving it with one less peremptory challenge 124 State v. Villeda to exercise on other jurors. That argument relies on our “exhaustive discussion of the merits” of a for-cause chal­ lenge to a prospective juror in Montez, suggesting that we undertook that discussion because we were “apparently sat­ isfied that the prejudice issue did not present an easy way out.” But defendant reads too much into the fact that we reviewed the merits of the for-cause challenges in Montez. There, the defendant contended that the trial court erred in excluding two prospective jurors who had expressed opposition to the death penalty, and in denying the defen­ dant’s for-cause challenges with respect to two other pro­ spective jurors who had expressed support for the death penalty. The defendant argued that those decisions “denied him his right to an impartial jury” in violation of the Oregon and United States Constitutions. Montez, 309 Or at 573. We began our discussion on the merits of the defendant’s chal­ lenge to one of those prospective jurors with the observation that, “[b]ecause [that juror] did not serve on the jury, the only ‘prejudice’ to [the] defendant was that [the] defendant had no remaining peremptory challenge to later excuse [another prospective juror], who did serve on the jury.” Id. at 577. Stating that “the only ‘prejudice’  ” to the defendant was the fact that he had no remaining peremptory chal­ lenge to excuse a different juror does not mean that we had decided that the error was prejudicial. Ultimately, we found no basis in the record “to conclude that the trial court’s decision not to excuse [that prospective juror] for cause was reversible error.” Id. at 593. We further concluded that the trial court did not abuse its discretion “in refusing to excuse [the other juror] for cause.” Id. at 594. Because we found no error in the trial court’s denial of any of the defendant’s for-cause challenges in Montez, it was not necessary for us to decide whether any error was prejudicial. See Parks v. Farmers Ins. Co., 347 Or 374, 384, 227 P3d 1127 (2009) (the fact that the court previously mentioned without deciding an issue “simply reflects” that we “had no reason to consider the issue”). Defendant alternatively contends that, because the error in this case resulted in seating a juror that he would Cite as 372 Or 108 (2024) 125 have excused peremptorily, it was prejudicial under Megorden, because he was “compelled to accept an objectionable juror.” 49 Or at 263-64. Defendant asserts that our case law has recognized that any juror whom a party would have excused peremptorily is an “objectionable” juror for purposes of estab­ lishing prejudice under Megorden. But, as explained below, none of the cases cited by defendant held that an “objection­ able juror” for purposes of Megorden is a juror whom a party would have excused peremptorily if another challenge had been available. We begin our discussion of those cases with Ford v. Umatilla County, 15 Or 313, 16 P 33, reh’g den, 15 Or 323, 16 P 38 (1887), which does provide some support for defendant’s argument. The plaintiff in Ford sued Umatilla County for damages after a bridge collapsed while plaintiff was driving his team of horses and a wagon across it, killing two horses, and badly damaging his personal property. During jury selection, plaintiff’s counsel argued that jurors who were taxpayers in Umatilla County should be excused for implied bias. The trial court generally agreed and excused several prospective jurors on that basis.9 The county then sought to excuse a juror for cause on the same grounds; plaintiff objected, and the trial court sustained the objection, deny­ ing the county’s for-cause challenge. The county then used a peremptory challenge to remove that juror and contended on appeal that the trial court had committed reversible error in denying its challenge for cause. This court disagreed, concluding that the county, “having afterwards challenged the juror peremptorily, thereby waived [its] challenge for cause.” 15 Or at 322. The county moved for rehearing, but the court adhered to its ruling, noting that the only reason given for excusing the juror for cause was that he was a tax­ payer in Umatilla County. The court explained that “being a tax-payer of the county interested him in deciding in [the county’s] favor” so the county “must have had other reasons for objecting to his sitting.” Ford v. Umatilla County, 15 Or 9  Unlike actual bias, a challenge for cause for “implied basis” is based solely on a prospective juror’s relationship to the parties involved, prior involvement in the case, or interest in the outcome of the case. See ORCP 57 D(1)(c) - (f) (listing reasons). The Ford court did not explain why it thought that being a taxpayer of a county that had been sued for damages gave rise to implied bias; taxpayer status would not be a basis for a challenge for cause for implied bias under current law. 126 State v. Villeda 323, 325-26, 16 P 38 (1887) (on petition for rehearing). Under those circumstances, the court continued, the county “was not compelled to resort to a peremptory challenge in order to exclude the juror for grounds for which he had been chal­ lenged for cause.” Id. at 325. Rather, the court concluded, if a party chooses to use a peremptory challenge to excuse a juror for reasons other than the reasons given for challeng­ ing the juror for cause, the party “should be deemed to have waived his right to insist upon the former objection.” Id. at 326. The court then stated: “If the grounds of the challenge for cause had been of such a nature as would have been likely to prejudice the juror against [the county], and [the county] had been put to its peremptory challenge in order to exclude him, there would be more reason for claiming that the error was prejudicial.” Id. (emphasis added). But the court went on to explain that, “under the circumstances, as they exist, no such presumption can be drawn.” Id. Given that context, the statement that there would be “more reason” to find prejudicial error under circumstances not presented in that case is clearly dicta and, as our subsequent cases (discussed next) demonstrate, we have never adopted that dicta in determining whether using a peremptory challenge to excuse a juror who should have been excused for cause makes the error prejudicial. In some cases, we have indicated that using a peremptory challenge to excuse a juror who should have been excused for cause “cures” the error. See, e.g., Humphrey, 63 Or at 544 (“It is well settled that, although the court sit­ ting in the trial of the cause may have erred in overruling a challenge for cause, yet the error is cured by the exercise of a peremptory challenge against the juror in question.”); Twitchell v. Thompson, 78 Or 285, 289, 153 P 45 (1915) (where plaintiff used peremptory challenges to excuse jurors that plaintiff had challenged for cause, any claim that the court erred in denying the for-cause challenges was “dis­ posed of” by the decision in Humphrey); State v. Layton, 174 Or 217, 234, 148 P2d 522 (1944) (rejecting the defendant’s argument that the trial court erred in denying his for-cause challenges to two jurors because defendant removed those Cite as 372 Or 108 (2024) 127 jurors peremptorily, so “[i]f any error was committed, it was cured by the exercise of the peremptory challenges”). Other cases have framed the issue in terms of waiver or lack of prejudice, but none followed the dicta in Ford. For example, in State v. Rathie, 101 Or 339, 349, 199 P 169 (1921), overruled in part on other grounds by State v. Brewton, 238 Or 590, 395 P2d 874 (1964), we stated that “[i]t is the rule in this state that error of the court in refusing to allow a chal­ lenge to a juror for cause is waived if the party objecting, after exhausting his peremptory challenges, accepts with­ out objection other jurors to complete the panel.” In State v. Douglas, 310 Or 438, 441-42, 800 P2d 288 (1990), we con­ cluded that, where the defendant exhausted his peremptory challenges to remove a juror whom he had challenged for cause, there was a “lack of demonstrated prejudice” because the defendant had failed to show “that the final jury panel was inappropriate in any way.”10 Two other cases cited by defendant merely apply the principle established in Humphrey that an erroneous denial of a challenge for cause is not prejudicial error if the defen­ dant does not exhaust the allotted peremptory challenges. See Mount v. Welsh et al, 118 Or 568, 579, 247 P 815 (1926) (stating that “[t]he rule in this jurisdiction” is that “until a defendant’s peremptory challenges are exhausted, [they are] not in a position to complain of the overruling of [their] challenge for cause to any particular juror who afterwards serves on the panel”); State v. Farrar, 309 Or 132, 158, 800 P2d 288 (1990) (holding that, where a defendant “did not exhaust his statutory allocation” of peremptory challenges and did not establish “that any member of the jury panel that actually decided his guilt should have been excused for cause[,]” defendant has failed “to identify any prejudice that may have resulted from the ruling [on a challenge for cause] even if it were error”). Thus, none of the cases that defendant cites held that an “objectionable juror” for purposes of determining prejudicial 10  Rathie’s characterization of a party’s failure to object to any remaining jurors for cause after exhausting all peremptory challenges as a “waiver” was discarded in Douglas, where we stated that Megorden “more accurately described the reason for the rule, which is a lack of demonstrated prejudice.” 310 Or at 441. 128 State v. Villeda error under Megorden is a juror whom a party would have excused peremptorily. Although dicta in Ford suggests other­ wise, no other case has adopted that position. To the contrary, our recent cases have suggested—also without expressly hold­ ing—that an “objectionable” juror for purposes of determining prejudicial error under Megorden is a juror who would have been excused for cause. For example, in Douglas, after quot­ ing the “objectionable juror” rule in Megorden, we concluded that there was no prejudicial error absent a showing that “the final jury panel was inappropriate in any way.” 310 Or at 442. Although we did not explain in Douglas what we meant by “inappropriate,” we had earlier stated in Farrar that any error in denying a for-cause challenge was not prejudicial, in part, because defendant did not show “that any member of the jury panel that actually decided his guilt should have been excused for cause.” 309 Or at 158 (emphasis added). That statement suggests that an “objectionable” or “inappropriate” juror for purposes of determining prejudice is a juror who should have been excused for cause. That is what happened in Lambert. There, as noted above, we con­ cluded that the trial court abused its discretion in denying the plaintiffs’ challenge for cause to a juror based on his actual bias. That juror sat on the jury that decided the case because the plaintiffs had exhausted their peremptory chal­ lenges. We concluded that the trial court’s error was preju­ dicial, because, by allowing a juror who should have been excused for cause to sit on the jury, the court “deprived [the plaintiffs] of the right to have their issues determined by an impartial juror.” 277 Or at 231. Our observation in Farrar and our conclusion in Lambert are supported by other cases that describe peremp­ tory challenges as a tool that can be used to help avoid infringing upon a party’s right to a fair trial with impartial jurors. None of those cases suggests that, when a party uses one of its allotted peremptory challenges to excuse a juror when the party might have preferred to use the challenge to excuse a different qualified juror amounts to prejudice to a substantial right. For example, we stated in Barone that peremptory challenges “have no constitutional signif­ icance in and of themselves.” 328 Or at 72. We explained Cite as 372 Or 108 (2024) 129 that peremptory challenges help “guarantee the impartial­ ity of the jury that sits on the case,” but “the fact that a defendant is forced to use them to achieve an impartial jury does not offend the right to a fair trial.” Id. at 72-73. And, as we stated in Humphrey, “the law has provided not only challenges for cause, but also those peremptory to enable the defendant to protect his right to a fair and impartial jury.” 63 Or at 545 (emphasis added). That suggests that, although a defendant certainly has a “substantial right” to a fair trial with impartial jurors, denying a defendant the opportunity to seat a juror that the defendant would prefer over another qualified juror is not prejudicial to any substantial right.11 That suggestion is supported by our description of the nature of peremptory challenges in Megorden, where we framed the issue as follows: “The simple question, after the peremptory challenges are exhausted, is: Is the jury which finally tries the case impartial?” 49 Or at 264 (internal quo­ tation marks omitted). If so, we explained, there is no prej­ udicial error because “[a]ll that the [c]onstitution, all that the law, requires and demands is a trial by an impartial jury.” Id. (internal quotation marks omitted). We further explained that “[t]he right to challenge is the right to reject, not to select, a juror. If from those who remain, an impartial jury is obtained, the constitutional right of the accused is maintained.” Id. (quoting Hays v. Missouri, 120 US 68, 71, 7 S Ct 352, 30 L Ed 578 (1887)).12 11  The conclusion that a party does not have a protected “right” to seat one qualified juror over another is supported by the well-documented abuse of peremptory challenges for racially discriminatory purposes, which led Arizona to abolish them entirely. See Arizona Supreme Court Order No. R-21-0020 (Aug 30, 2021) (amending rules of criminal and civil procedure to eliminate peremp­ tory challenges); see also Batson v. Kentucky, 476 US 79, 102-03, 106 S Ct 1712, 90 L  Ed 2d 69 (1986) (Marshall, J., concurring) (“The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory chal­ lenges entirely.”). Other states have limited the use of peremptory challenges for the same reason. See Willamette University College of Law Racial Justice Task Force, Remedying Batson’s Failure to Address Unconscious Juror Bias in Oregon, 57 Willamette L Rev 85 (2021) (calling for reform and describing court rules adopted in Washington and California that specify presumptively invalid reasons for exercising peremptory challenges). 12  The Megorden court cited with approval its then-recent decision in State v. White, 48 Or 416. In White, we held that the trial court did not abuse its dis­ cretion in excusing two jurors for cause—and seating two new jurors—after the defendant had used all his peremptory challenges. We explained that the fact 130 State v. Villeda That position is also supported by our more recent decision in Barone, a capital case, where we rejected the defendant’s argument that the erroneous denial of his chal­ lenges for cause was prejudicial. Although the denial of those challenges resulted in the defendant using peremp­ tory challenges “that he could have used to exclude other jurors who were objectionable to him, who did remain on the jury,” he was not required to accept a juror who should have been excused for cause. 328 Or at 72. We acknowledged that, if the trial court had excused the challenged prospec­ tive jurors for cause, the defendant “would have used his peremptory challenges differently and, as a result, would have been tried by a jury with a different membership.” Id. But, we explained, the state and federal constitutions do not give a defendant “a right to exclusive control over the composition of the trial jury.” Id. Rather, peremptory chal­ lenges help “guarantee the impartiality of the jury that sits on the case.” Id. Thus, although those challenges play a role in ensuring an impartial jury, they “have no constitutional significance in and of themselves, and the fact that a defen­ dant is forced to use them to achieve an impartial jury does not offend the right to a fair trial.” Id. at 72-73. In summary, as explained above, an error is grounds for reversal only if the error prejudiced the appel­ lant in respect to a substantial right.13 Even if we pre­ sume that defendant effectively “lost” a peremptory chal­ lenge when the trial court denied his for-cause challenge to juror 155, peremptory challenges “have no constitutional that a party had exhausted his peremptory challenges before a juror was excused for cause “invaded no right” of that party, because a peremptory challenge “is not aimed at disqualification, but is exercised upon qualified jurors as a matter of favor to the challenger.” Id. at 425 (quoting O’Neil v. Lake Superior Iron Co., 67 Mich 560, 562, 35 NW 162, 163 (1887) (emphasis added)). Thus, we held that, if a party “has exercised the privilege [of peremptory challenges] to the extent given by the statute, it cannot be alleged as error that qualified jurors are afterwards drawn or placed in the panel.” Id. The reason, we explained, is that the party’s “right to have his case tried before a fair, impartial and qualified jury remains unimpaired[.]” Id. 13  In light of our conclusion that the trial court’s error in denying defendant’s for-cause challenge was not prejudicial in respect to a substantial right, we do not think it is necessary to remand to the Court of Appeals to consider whether the trial court abused its discretion in declining to grant defendant an additional peremptory challenge, as he asserted in his second assignment of error in the Court of Appeals. Cite as 372 Or 108 (2024) 131 significance in and of themselves.” Barone, 328 Or at 72. Peremptory challenges also have no statutory significance in and of themselves other than the right to use the number of peremptory challenges allotted by statute.14 Defendant’s statutory right to use six peremptory challenges is a right “to reject, not to select, a juror.” Megorden, 49 Or at 264. Thus, any error in denying defendant’s for-cause challenge to juror 155 meant, at most, that defendant lost the ability to reject another qualified juror that he would have preferred to excuse from the jury. That “loss” was not prejudicial to defendant in respect to a substantial right, as required for reversal under ORS 131.035.15 That conclusion is consistent with our cases holding that an erroneous denial of a challenge for cause is reversible error only if a juror who decided the case was not fair and impartial. It is also consistent with the nature and purpose of peremptory challenges as a tool to help protect the funda­ mental right to a trial to a fair and impartial jury. Defendant does not contend that any of the jurors who decided this case were not fair and impartial. Accordingly, the trial court’s error in denying defendant’s challenge for cause to juror 155 was not prejudicial to defendant in respect to a substantial right. III.  CONCLUSION We agree with the Court of Appeals that the trial court abused its discretion when it denied defendant’s chal­ lenge for cause to juror 155 on the grounds of actual bias but conclude that that error is not grounds for reversal 14  Defendant does not contend that peremptory challenges have any stat­ utory significance in and of themselves other than as recognized in our prior cases. But as we have explained, the only statutory significance of peremptory challenges that we have recognized is the right to use the number of peremptory challenges allotted by statute. 15  To be clear, we are not saying that the only right that would be considered a “substantial right” under ORS 131.035 is a right that affects a party’s right to a fair trial or is otherwise constitutionally significant. Statutory rights may also be “substantial” for purposes of ORS 131.035. For example, as explained above, we held in Walker and in Durham that erroneously refusing to allow a party to exercise the number of peremptory challenges allotted by statute would be deemed prejudicial error. But an erroneous denial of a for-cause challenge is not prejudicial under ORS 131.035 where the challenged juror is excused perempto­ rily unless the error affected the defendant’s right to a fair trial before impartial jurors. 132 State v. Villeda under ORS 131.035 because it did not prejudice defendant in respect to a substantial right. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

b3e3a4c9954e80e845304a87783bc466c10a4a42c54fcbc2df1fc375bc7095a0

2024-03-21T00:00:00Z

60c32565-e3ca-400f-96eb-ed902a8cb78b

Walton v. Neskowin Regional Sanitary Authority

S069004

oregon

Oregon Supreme Court

No. 18 May 23, 2024 331 IN THE SUPREME COURT OF THE STATE OF OREGON William B. WALTON, an individual; James Jefferson WALTON, JR., an individual; and Victoria K. WALTON, an individual, Petitioners on Review, v. NESKOWIN REGIONAL SANITARY AUTHORITY, Respondent on Review, and Evelyn A. HARRIS, Trustee of the Harris Living Trust et al., Defendants. (CC 17CV10996) (CA A168358) (SC S069004) On review from the Court of Appeals.* Argued and submitted November 29, 2022. Paul J. Sundermier, Saalfeld Griggs PC, Salem, argued the cause for petitioners on review. Jennifer C. Paul filed the brief. Also on the brief was Paul J. Sundermier. Christopher T. Griffith, Haglund Kelley LLP, Portland, argued the cause and filed the brief for respondent on review. Also on the brief was Joshua J. Stellmon. Kathryn D. Valois, Pacific Legal Foundation, Palm Beach Gardens, Florida, argued the cause for amicus curiae Pacific Legal Foundation. Christina M. Martin filed the brief. ______________ *  Appeal from Tillamook County Circuit Court, Jonathan R. Hill, Judge. 314 Or App 124, 498 P3d 325 (2021). 332 Walton v. Neskowin Regional Sanitary Authority Nicole M. Swift, Cable Huston LLP, Portland, argued the cause and filed the brief for amici curiae League of Oregon Cities, Association of Oregon Counties, and Special Districts Association of Oregon. Also on the brief were Clark I. Balfour and Nicole A.W. Abercrombie. Before, Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong, James, and Masih, Justices.** DUNCAN, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. ______________ **  Balmer, J., retired December 31, 2022, and did not participate in the decision of this case. Walters, J., retired December 31, 2022, participated at oral argument, but did not participate in the decision of this case. Nelson, J., resigned February 25, 2023, and did not participate in the decision of this case. Cite as 372 Or 331 (2024) 333 DUNCAN, J. In 2017, petitioners on review (plaintiffs) filed a complaint asserting an inverse condemnation claim against respondent on review (defendant), a local sewer authority. An inverse condemnation claim is a claim that a property owner can bring for “just compensation” under the state and federal constitutions when a governmental entity or its del- egate has taken the owner’s property for public use without instituting condemnation proceedings. Plaintiffs alleged that defendant had installed sewer lines on their property and that the installation constituted a “taking” for which they were entitled to “just compensation” under Article I, section 18, of the Oregon Constitution, and the Fifth Amendment to the United States Constitution.1 Defendant moved for summary judgment, asserting that plaintiffs’ claim was time barred because it was not brought within the six-year limitations period established by ORS 12.080(3), which applies to claims “for interference with or injury to any interest of another in real property.” According to defendant, plaintiffs’ claim accrued when the sewer lines were installed, which was no later than 1995, and, there- fore, the six-year limitations period expired in 2001, sixteen years before plaintiffs filed their complaint. In response, plaintiffs made three arguments. First, they argued that, because their takings claim was based on the takings clauses of the state and federal constitutions, it could not be subject to a statute of limitations. Second, they argued that, even if some types of takings claims—specifi- cally, “regulatory” takings claims—can be subject to stat- utes of limitations, claims like theirs—which are “physical occupation” takings claims—cannot be. Third, they argued 1  Article I, section 18, of the Oregon Constitution provides that “[p]rivate property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, with- out such compensation first assessed and tendered[.]” The Fifth Amendment to the United States Constitution provides that “[n]o person shall *  *  * be deprived of life, liberty, or property, without due process of law; nor shall private prop- erty be taken for public use, without just compensation.” The Fifth Amendment’s Takings Clause applies to the states through the Fourteenth Amendment. Dept. of Transportation v. Hewett Professional Group, 321 Or 118, 131 n 7, 895 P2d 755 (1995) (citing Nollan v. California Coastal Comm’n, 483 US 825, 827, 107 S Ct 3141, 97 L Ed 2d 677 (1987)). 334 Walton v. Neskowin Regional Sanitary Authority that, even if “physical occupation” takings claims can be sub- ject to statutes of limitations and ORS 12.080(3) applies, the point at which their claim accrued was not when defendant installed the sewer lines, but instead when defendant affir- matively denied plaintiffs “just compensation,” which, they alleged, occurred in 2014. Therefore, according to plaintiffs, the six-year limitations period did not expire until 2020, three years after they filed their complaint. The trial court granted defendant’s motion and entered a judgment dismissing plaintiffs’ claim. Plaintiffs appealed, and the Court of Appeals affirmed. Walton v. Neskowin Regional Sanitary Authority, 314 Or  App 124, 126, 498 P3d 325 (2021). On plaintiffs’ petition, we allowed review. For the reasons we explain below, we hold that (1) plaintiffs’ claim is subject to the six-year limitations period established by ORS 12.080(3); (2) given the facts of this case, plaintiffs’ claim accrued when defendant installed the sewer lines; and (3) because plaintiffs did not initiate their claim within the six-year limitations period, it is time barred. Therefore, we affirm the Court of Appeals’ decision and the trial court’s judgment. I.  BACKGROUND A.  Historical Facts When reviewing a trial court’s ruling on a motion for summary judgment, we view the summary judgment record in the light most favorable to the nonmoving party, in this case, plaintiffs. Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 332, 83 P3d 322 (2004). Viewed in that light, the relevant historical facts are as follows. Sometime before or during 1995, defendant, the Neskowin Regional Sanitary Authority, installed two sewer lines on property that belonged to plaintiffs’ predecessor in interest, their father. According to plaintiffs, defendant “dug a trench in [the] front yard and installed and buried a main sewer line and a feeder line.” Defendant did not have plaintiffs’ father’s permission to install the sewer lines, and it did not make any payments to plaintiffs’ father when it installed the lines. Cite as 372 Or 331 (2024) 335 Three years after the sewer lines were installed, plaintiffs’ father made an agreement with defendant about them. According to plaintiffs’ complaint, “[o]n or around November of 1998,” defendant told their father that it needed an easement for the sewer lines and their father granted defendant an easement “on the condition that” defendant provide “a free hook-up to the [sewer system] when required.” But defendant “never prepared an easement document” and “never recorded an easement.” In 2014, defendant informed plaintiffs—who, by that time, had acquired the property from their father— that the property’s septic system had failed and they needed to connect to the sewer system. Plaintiffs invoked the 1998 agreement and requested a free connection to the sewer sys- tem. In an April 2014 letter, defendant informed plaintiffs that it was denying their request. B.  Procedural Facts In 2017, plaintiffs filed the complaint in this case, asserting an inverse condemnation claim against defen- dant. As explained further below, an inverse condemnation claim is a claim that a property owner can bring to obtain “just compensation” when a governmental entity or its del- egate has taken the owner’s property for public use without first initiating condemnation proceedings. Dunn v. City of Milwaukie, 355 Or 339, 347, 328 P3d 1261 (2014) (so holding with respect to “just compensation” under Article I, section 18, guarantees); United States v. Clarke, 445 US 253, 257, 100 S Ct 1127, 63 L Ed 2d 373 (1980) (so holding with respect to “just compensation” under Fifth Amendment guarantees). In their complaint, plaintiffs alleged that defendant had installed the sewer lines on their property “without the legal acquisition of a part of the fee or an easement” over the property and that the installation of the sewer lines constituted a “taking.” Plaintiffs further alleged that defen- dant is a “public sewer authority” with “statutorily dele- gated authority to use the state’s power of eminent domain to acquire real property interests *  *  * pursuant to ORS 450.815(4)” and that defendant had installed the sewer lines “for the public purpose of providing [defendant’s] utility 336 Walton v. Neskowin Regional Sanitary Authority services.”2 Plaintiffs asserted that, under Article I, section 18, and the Fifth Amendment, they were entitled to “just compensation,” which “is, at a minimum, the value of the *  *  * hook-up” to the sewer system. Regarding the timing of their complaint, plaintiffs asserted that, because they were making “a direct claim for compensation under both constitutions as a per se ‘physical invasion or occupation’ *  *  * no state statute or court rule can limit the time within which to bring an action for the remedy mandated by each constitutional provision.” In other words, plaintiffs asserted that their claim could not be subject to a statute of limitations. Plaintiffs’ inverse condemnation claim was their only claim. Although plaintiffs alleged that defendant had made an agreement with their father for a free connection to the sewer system and that defendant had breached that agreement, plaintiffs did not assert a contract or quasi- contract claim. In its answer, defendant admitted that it is a public sewer authority with the powers set out in ORS 450.815, that it had installed the sewer lines “on and under property near or on Plaintiffs’ property” no later than 1995, and that, in 2014, it had informed plaintiffs that they needed to connect to the sewer system because the property’s septic tank had failed. Defendant denied all the other allegations in plain- tiffs’ complaint, including the allegation that it had entered into an agreement with plaintiffs’ father regarding the sewer lines. Defendant raised several affirmative defenses and counterclaims. As one affirmative defense, defendant asserted that, to the extent that plaintiffs were relying on an oral agreement between defendant and their father, the agreement was unenforceable due to the statute of frauds, ORS 41.580, which provides, in part, that an agreement for the sale of an interest in real property is void unless writ- ten and signed. As another affirmative defense, defendant asserted that plaintiffs had failed to file their claim within the applicable statutory limitations period. 2  ORS 450.815(4) authorizes sanitary authorities to “[a]cquire by purchase, gift, devise, condemnation proceedings, or otherwise” real property necessary for the exercise of its powers. Cite as 372 Or 331 (2024) 337 Thereafter, defendant moved for summary judg- ment on the ground that plaintiffs’ inverse condemnation claim was untimely. Defendant asserted that plaintiffs’ inverse condemnation claim was subject to ORS 12.080(3), which establishes a six-year limitations period for actions “for interference with or injury to any interest of another in real property.” For support, defendant relied on two cases in which courts applied ORS 12.080(3) to takings claims. The first case was Suess Builders v. City of Beaverton, 294 Or 254, 268, 256, 656 P2d 306 (1982), where this court applied ORS 12.080(3) to a “regulatory” takings claim in which the plaintiffs had alleged that the defendants had “tempo- rarily deprived them of the rental value of [their] property and caused a permanent depression of its market value by designating the major part of the property as a future park site in the city’s comprehensive land use plan.” The second case was The Foster Group, Inc. v. City of Elgin, Oregon, 264 Or App 424, 441, 332 P3d 354 (2014), where the Court of Appeals applied ORS 12.080(3) to a “physical occupation” takings claim in which the plaintiffs had alleged that the defendant had constructed a road that encroached on their property. Defendant asserted that there was no dispute about the facts relevant to its summary judgment motion, specif- ically, that plaintiffs had alleged an inverse condemnation claim based on the installation of the sewer lines, that the lines were installed no later than 1995, and that plaintiffs did not file their complaint until 2017. Defendant contended that the six-year limitations period began to run no later than 1995 and, therefore, expired in 2001, sixteen years before plaintiffs filed their complaint. Plaintiffs filed a response to defendant’s summary judgment motion. They did not dispute the facts that defen- dant had identified as relevant to its motion, but they made three alternative arguments against the motion. First, plaintiffs argued that, because takings claims are based on constitutional provisions, they cannot be subject to any statutory limits, including statutory time limits. They contended that “the legislature cannot pass 338 Walton v. Neskowin Regional Sanitary Authority statutes that contravene the constitution, nor should the courts enforce [such] statutes[.]” Second, plaintiffs argued that, even if some types of inverse condemnation claims, like the “regulatory” takings claim in Suess Builders, are subject to ORS 12.080(3), “phys- ical occupation” takings claims are not. Thus, plaintiffs contended, Suess Builders was not controlling. They also argued that, although Foster involved a “physical occupa- tion” taking, the parties in that case did not dispute whether the six-year limitations period under ORS 12.080(3) applied. Third, plaintiffs argued that, even if “physical occu- pation” takings claims are subject to ORS 12.080(3), the stat- ute’s six-year limitations period does not begin to run until “the putative condemner refuses to pay just compensation after taking private property for a public use.” Therefore, according to plaintiffs, the limitations period for their claim did not begin to run until defendant affirmatively denied plaintiffs “just compensation” in the April 2014 letter. After a hearing, the trial court granted defendant’s summary judgment motion. The trial court held that plain- tiffs’ claim was subject to the six-year limitations period established by ORS 12.080(3) and that it accrued when the sewer lines were installed, which was no later than 1995. Therefore, the six-year limitations period expired in 2001, sixteen years before plaintiffs filed their complaint in 2017. The trial court entered a limited judgment dismissing plain- tiffs’ inverse condemnation claim.3 It later entered a supple- mental judgment with a money award in defendant’s favor. Plaintiffs appealed both judgments. On appeal, the parties renewed the arguments they had made in the trial court. The Court of Appeals affirmed on the ground that, 3  Although plaintiffs’ inverse condemnation claim was their only claim, defendant raised counterclaims. The trial court’s limited judgment dismissing plaintiffs’ claim was authorized by ORCP 67B, which provides, “When more than one claim for relief is presented in an action, whether as a claim, coun- terclaim, cross-claim, or third-party claim, *  *  * the court may render a limited judgment as to one or more but fewer than all of the claims[.]” The limited judg- ment resolved plaintiffs’ claim and made it possible for plaintiffs to appeal the trial court’s summary judgment ruling while the parties continued to litigate defendant’s counterclaims, which they did for a time before agreeing to stay the proceedings pending resolution of plaintiffs’ appeal. Cite as 372 Or 331 (2024) 339 as the trial court had concluded, plaintiffs’ inverse condem- nation claim was time barred. Walton, 314 Or App at 126. Plaintiffs petitioned for review, which we allowed. II.  DISCUSSION We begin our discussion, in Section A, with an over- view of the relevant law: the law regarding a government’s power of eminent domain; the state and federal constitu- tional limits on that power, specifically, Article I, section 18, and the Fifth Amendment, which require a government to pay “just compensation” for property that it takes through an exercise of the power of eminent domain; and the pro- cesses through which a property owner can obtain “just com- pensation.” Then, in Section B, we apply that law to address plaintiffs’ three alternative arguments for why their inverse condemnation claim is timely. For the reasons that we will explain, those arguments are unavailing. Inverse condem- nation claims, including those based on “physical occupa- tion” takings, can be subject to statutes of limitations, and plaintiffs’ claim is subject to ORS 12.080(3), which estab- lishes a six-year limitations period. That period began to run for plaintiffs’ claim when the sewer lines were installed in 1995 and expired in 2001. Therefore, plaintiffs’ 2017 com- plaint was untimely. A.  Relevant Law The state and federal governments have the power of eminent domain, which is the power to take private prop- erty for public use without the property owner’s consent. Dunn, 355 Or at 346; PennEast Pipeline Co. v. New Jersey, 594 US 482, 487, 141 S Ct 2244, 210 L Ed 2d 624 (2021) (“Eminent domain is the power of the government to take property for public use without the consent of the owner.”). “The power of eminent domain requires no grant of author- ity for its exercise, but instead is an inherent attribute of sovereignty.” Dunn, 355 Or at 346; Georgia v. Chattanooga, 264 US 472, 480, 44 S  Ct 369, 68 L  Ed 796 (1924) (“The power of eminent domain is an attribute of sovereignty, and inheres in every independent State.”). The power of eminent domain is limited by the state and federal constitutions. Article I, section 18, and the Fifth 340 Walton v. Neskowin Regional Sanitary Authority Amendment each provide that private property shall not be taken for public use without “just compensation.” Dunn, 355 Or at 347; United States v. Carmack, 329 US 230, 241-42, 67 S Ct 252, 91 L Ed 209 (1946). This case involves the physical occupation of property. A government can exercise its power of eminent domain to physically take property in two ways. Dunn, 355 Or at 347; United States v. Dow, 357 US 17, 21, 78 S Ct 1039, 2 L Ed 1109 (1958). It can initiate condemnation proceed- ings, through which the amount of compensation due to the owner is determined and a court order awarding the prop- erty to the government can be obtained, or it can physically occupy the property without a court order. Dunn, 355 Or at 347; Dow, 357 US at 21. Usually, a government exercises its eminent domain power by initiating condemnation proceedings before tak- ing property. Dunn, 355 Or at 347; Cereghino et al v. State Highway Com., 230 Or 439, 443-44, 370 P2d 694 (1962) (“Ordinarily, when the state takes private property for a public use and it cannot agree with the owner on the value of the property, it institutes a condemnation proceeding in which the amount of just compensation is determined and a judgment therefor entered in favor of the property owner.”); First Lutheran Church v. Los Angeles County, 482 US 304, 316, 107 S Ct 2378, 96 L Ed 2d 250 (1987) (observing that “the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain”). Such proceedings are sometimes referred to as “direct” con- demnation proceedings. Knick v. Township of Scott, 588 US 180, 186, 139 S Ct 2162, 204 L Ed 2d 558 (2019). In some circumstances, a government exercises its power of eminent domain by taking property without initiat- ing condemnation proceedings. Dunn, 355 Or at 347 (explain- ing that the power of eminent domain can be exercised de jure or de facto). Those circumstances include, for exam- ple, circumstances where the government physically occupies property that it mistakenly believes that it owns and circum- stances where the government’s actions on its own property result in the “destruction, restriction, or interruption of the common and necessary use and enjoyment” of a neighboring Cite as 372 Or 331 (2024) 341 property. Morrison v. Clackamas County, 141 Or 564, 568, 18 P2d 814 (1933); see, e.g., Cereghino, 230 Or at 443 (collection of surface water and dirt on the plaintiff’s property caused by the state highway commission’s relocation of a highway constituted a taking); Morrison, 141 Or at 569 (the plaintiff’s complaint, alleging that the county’s construction of a jetty diverted river flow onto the plaintiff’s property, causing the property’s “destruction,” stated a cause of action for a taking). When a government takes property without initi- ating a condemnation proceeding, the property owner can bring an inverse condemnation claim. “An ‘inverse condem- nation’ claim is any claim against a governmental agency to recover the value of property taken by the agency although no formal exercise of the power of eminent domain has been completed by the taking agency.” West Linn Corporate Park v. City of West Linn, 349 Or 58, 64, 240 P3d 29 (2010) (inter- nal quotation marks omitted); Knick, 588 US at 186 (an inverse condemnation claim is a claim “  ‘against a govern- mental defendant to recover the value of property which has been taken in fact by the governmental defendant’  ” (quoting Clarke, 445 US at 257)). The term “inverse condemnation” is not a constitu- tional or statutory term. Suess Builders, 294 Or at 258 n 3; Clarke, 445 US at 257. Instead, it is a “popular” or “short- hand” description of a claim to recover the value of property that has been taken through an exercise of the power of emi- nent domain outside of a direct condemnation proceeding. Thornburg v. Port of Portland, 233 Or 178, 180 n 1, 376 P2d 100 (1963) (“Inverse condemnation is the popular descrip- tion of a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.”); Clarke, 445 US at 257 (The term “  ‘inverse condemnation’ appears to be one that was coined simply as a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.”). “[I]nverse condemnation” simply describes a pro- ceeding that “is the ‘inverse’ or ‘reverse’ of a condemnation 342 Walton v. Neskowin Regional Sanitary Authority proceeding.” Clarke, 445 US at 257; see also City of Keizer v. Lake Labish Water Control Dist., 185 Or App 425, 429, 60 P3d 557 (2002). An inverse condemnation claim is denomi- nated as “inverse” because “the taking occurs before the ini- tiation of condemnation proceedings, which is the inverse of the ordinary sequence of events when a governmental entity exercises its power of eminent domain.” City of Keizer, 185 Or App at 429. Thus, condemnation proceedings are brought by governmental entities before taking property, whereas inverse condemnation proceedings are brought by property owners after a governmental entity has taken property. The two types of proceedings differ both in who initiates them and when they are initiated. “Actions to recover compensation for such a gov- ernmental taking long preceded the [‘inverse condemna- tion’] label.” Suess Builders, 294 Or at 258 n 3 (citing, e.g., Morrison, 141 Or 564); Morrison, 141 Or at 575 (holding that, where county’s construction of a jetty diverted river water onto the plaintiff’s property, the plaintiff’s complaint seek- ing “just compensation” under Article I, section 18, stated a cause of action). A property owner can bring an inverse condemna- tion claim even if the legislature has not provided for such a claim. Morrison, 141 Or at 574. As this court has observed, “[i]t is the general rule, except where an exclusive remedy has been provided by statute, [that] the owner of property, appropriated or injured for a public use without just com- pensation having been made, may maintain an action at law for the damages sustained thereby.” Id. Such an action is distinct from a tort action, from which a government may be immune. Id. (“We recognize the rule, *  *  * that a county of the state of Oregon is not liable for ordinary torts or for the wrongful acts or omissions of its officers, servants, or employees unless made so by statute or some constitutional provision. But the present case [alleging flooding of the plain- tiff’s land], we think, plainly comes within the provisions of the constitution ordaining that private property shall not be taken for public use without just compensation and, there- fore, the county is made liable.” (Citations omitted.)). An inverse condemnation claim may be brought against “the state itself” or “one of its lawfully constituted Cite as 372 Or 331 (2024) 343 agencies, such as a county, a school district, the State Fish and Game Commission, or the State Highway Department.” Tomasek v. Oregon Highway Com’n, 196 Or 120, 147, 248 P2d 703 (1952); Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419, 432 n 9, 102 S Ct 3164, 73 L Ed 2d 868 (1982) (“A permanent physical occupation authorized by state law is a taking without regard to whether the State, or instead a party authorized by the State, is the occupant.”). “  ‘Successful litigation [of an ‘inverse condemna- tion’ claim] against the governmental agency is a factual determination that there has been a ‘taking’ and in effect forces the governmental agency to purchase the interest taken.’  ” Hawkins v. City of La Grande, 315 Or 57, 67, 843 P2d 400 (1992) (quoting Restatement (Second) of Property § 8.1 comment d (1997)). “The dispositive issue, then, in an inverse condemnation claim is whether property was taken, in fact, by the government even though no formal eminent domain proceedings were initiated.” Dept. of Transportation v. Hewett Professional Group, 321 Or 118, 131, 895 P2d 755 (1995) (italics omitted). There is no unitary test for what constitutes a “tak- ing” of property under either Article  I, section 18, or the Fifth Amendment. Dunn, 355 Or at 348-49. Because of the “nearly infinite variety of ways in which government actions or regulations can affect property interests,” there is “no magic formula” that “enables a court to judge, in every case, whether a given government interference with property is a taking.” Arkansas Game and Fish Comm’n v. United States, 568 US 23, 31, 133 S Ct 511, 184 L Ed 2d 417 (2012). But all takings of property involve the appropriation of the prop- erty without the consent of the owner. Dunn, 355 Or at 346; PennEast Pipeline Co., 594 US at 487. Although there is no unitary test for what con- stitutes a taking, both this court and the United States Supreme Court have drawn some bright lines. This court has “consistently found a taking when government has inten- tionally authorized a physical occupation of private property that substantially has interfered with the owner’s rights of exclusive possession and use.” Dunn, 355 Or at 348 (so stat- ing regarding Article I, section 18). Similarly, the Supreme 344 Walton v. Neskowin Regional Sanitary Authority Court has ruled that “a permanent physical occupation of property authorized by the government is a taking.” Arkansas Game and Fish Comm’n, 568 US at 31 (so ruling regarding the Fifth Amendment). Thus, “[i]f the nature of the govern- mental intrusion amounts to a ‘permanent physical occupa- tion of property,’ the inquiry ends, regardless of ‘whether the action achieves an important public benefit or has only min- imal economic impact on the owner.’  ” GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458, 469, 900 P2d 495 (1995) (quoting Loretto, 458 US at 434-35 (so ruling under the Fifth Amendment)); see, e.g., Loretto, 458 US at 438 (hold- ing that television company’s installation of cable lines on the plaintiff’s apartment building constituted a taking).4 A government can acquire private property for pub- lic use without “taking” the property, that is, without appro- priating the property without the consent of the owner. For example, a government can negotiate with a property owner to purchase property, in which case the government has not “taken” the property because it has acquired the property with the owner’s consent. Woodward Lbr. Co. v. Un. Comp. Com., 173 Or 333, 338, 145 P2d 477 (1944) (holding that where property owner and federal government agreed upon purchase price and sale of property after the government threatened to exercise its power of eminent domain, the property was acquired by “purchase” and not by “eminent domain”); see also In re Estate of Moore, 190 Or 63, 67, 223 P2d 393 (1950) (rejecting argument that Article I, section 18, precludes the government’s receipt of property by will or gift because Article I, section 18, applies only “to a ‘taking’ under the power of eminent domain, and has nothing whatever to do with taking of title to real property by devise”); Janowsky v. U.S., 23 Cl Ct 706, 712-13 (1991), rev’d and vac’d in part on other grounds, 989 F2d 1203 (Fed Cir 1993) (collecting cases and observing that “when a citizen delivers property to the 4  As explained, a permanent physical occupation of private property is a taking. The Court of Appeals has had the opportunity to apply that rule to the installation of sewer lines. See Courter v. City of Portland, 286 Or App 39, 48, 398 P3d 936 (2017) (stating that “if the city’s pipes are occupying plaintiffs’ property” outside the scope of the city’s easement, “there has been a taking” for the purposes of Article  I, section 18); Ferguson v. City of Mill City, 120 Or  App 210, 214-15, 852 P2d 205 (1993) (holding that ordinance that required city property owners to grant city an easement for sewer lines and tanks was a taking for the purposes of Article I, section 18). Cite as 372 Or 331 (2024) 345 government pursuant to an agreement, an inverse condem- nation claim does not arise simply because the government does not pay; the property owner’s consent to the arrange- ment vitiates a claim that the government took the property for public use within the meaning of the Fifth Amendment”); see, e.g., id. at 711-12 (property owners’ allegations that FBI breached an implied-in-fact contract to compensate owners for use of their property during an undercover investigation failed to state a claim for inverse condemnation because own- ers had freely agreed to allow the FBI to use their property; property owners’ claim was contractual in nature). Thus, not all government acquisitions of property for a public use result from an exercise of the government’s eminent domain power. Consequently, not all government acquisitions of property for a public use are subject to Article I, section 18, and the Fifth Amendment. To prevail on a takings claim, a plaintiff must show that their property was “taken,” that is, that their property was appropriated for a public purpose through the exercise of eminent domain authority. B.  Responses to Plaintiffs’ Arguments In this case, plaintiffs brought an inverse condem- nation claim, and the issue on review is whether their claim is time barred. As mentioned, plaintiffs have made three alternative arguments regarding that issue: (1) inverse condemnation claims cannot be subject to statutes of lim- itations; (2) even if some types of inverse condemnation claims, like the “regulatory” takings claim at issue in Suess Builders, can be subject to statutes of limitations, “physical occupation” takings claims cannot; and (3) even if “physi- cal occupation” takings claims can be subject to statutes of limitations and the six-year limitations period established by ORS 12.080(3) applies to them, the period does not begin until “the putative condemner refuses to pay just compen- sation after taking private property for a public use.” We address those arguments in turn.5 5  As recounted, in the trial court and Court of Appeals, plaintiffs made three arguments. We allowed review to address plaintiffs’ third argument, relating to when an inverse condemnation claim accrues. However, because plaintiffs’ three arguments are related and were fully litigated below, we address all three of them. See ORAP 9.20(2) (providing that the Oregon Supreme Court may consider issues that were before the Court of Appeals). 346 Walton v. Neskowin Regional Sanitary Authority 1.  Whether inverse condemnation claims can be subject to statutes of limitations Plaintiffs’ first argument is that inverse condem- nation claims cannot be subject to statutes of limitations because they are constitutional claims. That argument is unavailing for three reasons: (1) both this court and the Supreme Court have already subjected takings claims to statutes of limitations; (2) Article I, section 18, is based on the Indiana Constitution’s Takings Clause and, prior to the adoption of the Oregon Constitution, the Indiana Supreme Court had held that that clause could be subject to statutory requirements; and (3) this court has long held that Article I, section 18, claims can be subject to statutory limits. First, plaintiffs’ argument that, because state and federal takings claims are based on constitutional provi- sions, they cannot be subject to statutes of limitations, is at odds with decisions by this court and the Supreme Court. As mentioned, in Suess Builders, this court held that the six-year limitations period established by ORS 12.080(3) applied to a takings claim. Suess Builders, 294 Or at 268. Similarly, in United States v. Dickinson, 331 US 745, 747, 67 S Ct 1382, 91 L Ed 1789 (1947), the Supreme Court applied a six-year limitations period to the plaintiff’s federal takings claim. See 28 USC § 1491(a)(1) (Court of Federal Claims has jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution” or any federal law, or for contract damages “in cases not sounding in tort”); Knick, 588 US at 189 (observing that 28 USC sec- tion 1491(a)(1) “provides the standard procedure” for bring- ing Fifth Amendment takings claims against the federal government); 28 USC § 2501 (claims brought under 28 USC section 1491(a)(1) are “barred unless the petition thereon is filed within six years after such claim first accrues”).6 6  We note that Congress has imposed statutes of limitations on other consti- tutional rights. See 28 USC § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”); 28 USC § 2255(f) (“A 1-year period of limitation shall apply” to a motion to vacate, set aside, or correct a federal sentence by a person in federal custody.). The Oregon State Legislature has done the same. See ORS 147.515(1) (“A victim who wishes to allege a violation of a right granted to the victim in a criminal proceeding by Article I, section 42 or 43, of the Oregon Constitution, shall inform the court within 30 days of the date the victim knew or reasonably should have known of the facts supporting the allegation.”). Cite as 372 Or 331 (2024) 347 Second, as to Article I, section 18, plaintiffs’ argu- ment is contradicted by a case decided by the Indiana Supreme Court, which construed the Takings Clause of the Indiana Constitution of 1851, on which Article  I, sec- tion 18, was based: New Albany & S.R. Co. v. Connelly, 7 Ind 32 (1855), overruled in part on other grounds by Graham v. Columbus & I.C. Ry. Co., 27 Ind 260 (1866). Because New Albany was decided before the adoption of the Oregon Constitution, it informs our construction of Article I, section 18. Putnam v. Douglas Co., 6 Or 328, 331 (1877), overruled in part on other grounds by State Highway Com. v. Bailey et al, 212 Or 261, 319 P2d 906 (1957) (“The provisions contained in our constitution and statute in relation to the taking of pri- vate property for public use appear to have been taken from the Indiana Constitution and statute; and, having adopted them after they had been judicially construed by the courts of that state, it must be presumed that we adopted along with them the construction of those courts.”).7 In New Albany, the Indiana Supreme Court held that a statute that prescribed procedures for bringing a claim for “just compensation” under the Indiana Constitution was enforceable, stating that “where the statute pointed out a special constitutional mode for the assessment of dam- ages, in cases like the present, none but that mode could 7  Indiana decisions that predate the adoption of Oregon’s constitutional Takings Clause are relevant to our analysis because Article I, section 18—for- merly Article I, section 19, under the Oregon Constitution of 1857—was derived from Article I, section 21, of the Indiana Constitution of 1851. Claudia Burton & Andrew Grade, A Legislative History of the Oregon Constitution of 1857—Part I (Articles I & II), 37 Willamette L Rev 469, 486 (2001). Compare Or Const, Art I, § 19 (1857) (“Private property shall not be taken for public use, nor the particu- lar services of any man be demanded, without just compensation; nor except in case of the State, without such compensation first assessed and tendered.”), with Ind Const, Art I, § 21 (1851) (“No man’s particular services shall be demanded without just compensation. No man’s property shall be taken by law without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.”). Article I, section 21, of the Indiana Constitution of 1851 was, in turn, an amended version of the takings provision contained in the Indiana Constitution of 1816. See Ind Const, Art I, § 7 (1816) (“[N]o man’s particular services shall be demanded, or property taken, or applied to public use, without the consent of his representatives or without just compensation being made therefor.”); see also State v. Cookman, 324 Or 19, 28, 920 P2d 1086 (1996) (relying on an Indiana Supreme Court decision construing the meaning of a clause in the Indiana Constitution of 1816 to inform the meaning of the parallel clause in the Oregon Constitution of 1857). 348 Walton v. Neskowin Regional Sanitary Authority be adopted to recover them.” 7 Ind at 35. In doing so, the Indiana Supreme Court relied on Null v. White Water Valley Canal Co., 4 Ind 431 (1853), in which it had held that a property owner’s claim for compensation under the Indiana Constitution of 1816 was time barred because it was not brought within a statutorily prescribed two-year limitations period. New Albany, 7 Ind at 35 (citing Null, 4 Ind 431). In Null, the court held that the legislature “had power to enact” the statute of limitations and commented that “two years is a reasonable time for asserting a claim for damages [and] a party is not necessarily entitled to any more.” 4 Ind at 435. Applying that conclusion, the court held that, if a claim “is not asserted in that time, it shall be dis- regarded.” Id. at 435. Thus, New Albany contradicts plaintiffs’ argument that the legislature cannot impose statutory requirements— like limitations periods—on constitutional claims for “just compensation” under Article  I, section 18. It shows that, prior to the adoption of the Oregon Constitution, the Indiana Supreme Court had held that the Indiana Constitution’s Takings Clause on which the Oregon Constitution’s Taking Clause was based could be subject to statutory require- ments. New Albany, 7 Ind at 35; see also Null, 4 Ind at 435 (so holding under the Indiana Constitution of 1816); Nelson v. Fleming, 56 Ind 310, 321 (1877) (“[W]here a party whose land had been appropriated to the [state] failed to file his application for damages within the time thus limited, he must be regarded as having waived any claim for damages, and that upon the lapse of the time limited, no such claim for damages having been filed, the title to the land appropri- ated vested in the State as thoroughly and completely as if damages had been assessed and paid.”).8 Third, also as to Article I, section 18, plaintiffs’ argu- ment that the legislature may not impose statutory require- ments on constitutional takings claims is contrary to our cases holding that property owners seeking compensation 8  Because Nelson was decided after the adoption of the Oregon Constitution, it is not evidence of the Oregon drafters’ intent regarding Article I, section 18, but it confirms our understanding of New Albany and Null, which are relevant to the Oregon drafters’ intent. Cite as 372 Or 331 (2024) 349 under Article I, section 18, must comply with statutes that prescribe the processes for obtaining such compensation. Kendall v. Post, 8 Or 141 (1879), is illustrative. In Kendall, a property owner sought compensation for rocks and stone that a county road supervisor had taken from the owner’s land. Id. at 143-44. The road supervisor was authorized by statute to take private property for road building and repair. General Laws of Oregon, Crim Code, ch L, § 28, p 728 (Deady & Lane 1843-1872). If the road supervisor took a person’s property, the person could seek compensation through a pro- cess prescribed by a statute, specifically, by making a writ- ten complaint “to the county court, at any regular meeting within six months after the cause of such complaint shall exist.” Kendall, 8 Or at 145 (quoting General Laws of Oregon, Crim Code, ch L, § 29, p 729 (Deady & Lane 1843-1872)). The property owner argued that the statute was unconstitu- tional because it did not provide for a jury trial regarding the amount of compensation. Id. at 146. This court rejected that argument, distinguishing between claims for compensation under Article  I, section 18, and civil claims, to which the Article I, section 17, right to a jury trial applies. Id. at 146. Regarding claims for compensation under Article I, section 18, this court held that, “in the absence of special provision in the organic law, giving the right to have a jury assess the damages, it is competent for the legislature to provide for assessments by any other just mode,” and that, if the property owner “felt aggrieved by the acts of the supervisor, he should have applied to the county court, composed of the county judge and the county commissioners, while transact- ing the county business.” Id. (internal quotation marks omit- ted); see also Branson v. Gee, 25 Or 462, 466-68, 36 P 527 (1894) (holding that, under Article  I, section 18, the state could appropriate private property for public use “without compensation first assessed and tendered, but it must make provision by which the party whose property has been seized can obtain just compensation for it” and that property owner had to comply with statutory procedures for seeking compen- sation); id. at 467 (holding that statutory procedures did not violate federal Due Process Clause, even though the property owner bore the burden of initiating them); Cherry v. Lane County, 25 Or 487, 489, 36 P 531 (1894) (following Branson 350 Walton v. Neskowin Regional Sanitary Authority and holding that property owner aggrieved by exercise of eminent domain had to submit their claim to the circuit court as required by statute). Thus, this court has long held that claims for compensation under Article I, section 18, may be subject to statutory requirements.9 2.  Whether “physical occupation” takings claims can be subject to statutes of limitations Plaintiffs’ second argument is that, even if some types of takings claims—like the “regulatory” takings claim in Suess Builders—can be subject to a statute of limitations, “physical occupation” takings claims cannot. Plaintiffs are correct that Suess Builders addressed a “regulatory” tak- ings claim; the issue was whether the defendants had taken the plaintiffs’ property by designating part of it as the site of a future park. Plaintiffs are also correct that, under the law, “physical occupation” takings and “regulatory” takings are treated differently in some ways. For example, what a plain- tiff must show to establish a “physical occupation” taking differs from what must be shown in a “regulatory” takings case. See Hall v. Dept. of Transportation, 355 Or 503, 511-12, 326 P3d 1165 (2014) (observing that, under Article I, section 18, a “physical occupation” taking results “when a govern- mental actor physically occupies private property or invades a private property right in a way that substantially inter- feres with the owner’s use and enjoyment of the property, thereby reducing its value,” and that a “regulatory” taking can result when (1) a government regulation “restricts a property owner’s right of possession, enjoyment, and use,” and that, as a result, “the property retains no economically viable or substantial beneficial use”; or (2) a government zoning or planning action reduces the property’s value, and the property owner “  ‘is precluded from all economically fea- sible private uses pending eventual taking for public use,’  ” 9  In arguing otherwise, plaintiffs rely on Morrison and Tomasek, but those cases are not on point. They did not involve whether the state may impose proce- dural requirements on takings claims. In Morrison, this court held that, although a county may be immune from tort liability, Article I, section 18, requires it to pay “just compensation” for property taken in an exercise of eminent domain. 141 Or at 574. In Tomasek, this court held that a property owner’s constitutional right to “just compensation” does not depend on whether the state has failed or refused to institute direct condemnation proceedings; a property owner may bring an inverse condemnation claim. 196 Or at 147. Cite as 372 Or 331 (2024) 351 or “  ‘the designation results in such governmental intrusion as to inflict virtually irreversible damage.’  ” (quoting Fifth Avenue Corp. v. Washington Co., 282 Or 591, 614, 581 P2d 50 (1978))); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 US 302, 322-23, 122 S  Ct 1465, 152 L  Ed 2d 517 (2002) (observing that, under the Fifth Amendment, whether the government’s physical occu- pation constitutes a taking “involves the straightforward application of per se rules,” but whether the government’s regulation constitutes a taking “  ‘necessarily entails complex factual assessments of the purposes and economic effects’  ” (quoting Yee v. Escondido, 503 US 519, 523, 112 S Ct 1522, 118 L Ed 2d 153 (1992)). But plaintiffs are incorrect that “physical occupation” takings claims cannot be subject to statutes of limitations. As noted, the Supreme Court has applied stat- utes of limitations to “physical occupation” takings claims. Dickinson, 331 US as 747. As for Article I, section 18, as just discussed, prior to the adoption of the Oregon Constitution, the Indiana Supreme Court held that claims for “just compensation” could be subject to statutory requirements, including stat- utes of limitations. Those cases involved physical occupation and appropriation of private property for public use. In New Albany, the alleged taking was the construction of a railroad on the claimant’s property, and, in Null, the alleged tak- ing involved the construction of a canal through the plain- tiffs’ property and the diversion of the plaintiffs’ water. New Albany, 7 Ind at 33; Null, 4 Ind at 432. Thus, prior to the adoption of the Oregon Constitution, the Indiana Supreme Court applied statutory requirements to “physical occupa- tion” takings claims. Similarly, the Oregon cases in which this court held that the plaintiffs had to comply with statutory require- ments when seeking “just compensation” under Article  I, section 18, include cases involving the physical appropria- tion of property. Kendall involved the removal of gravel and dirt from the plaintiff’s property for road construction and repair, as did Branson and Cherry. Kendall, 8 Or at 143; Branson, 25 Or at 462; Cherry, 25 Or at 488. In those cases, 352 Walton v. Neskowin Regional Sanitary Authority property was literally taken by the government, and this court held that the property owners had to comply with the statutory procedures for seeking compensation. In light of Dickinson, and the Indiana and Oregon cases upholding the application of statutory requirements on takings claims involving the physical occupation and appropriation of property, we reject plaintiffs’ argument that such claims cannot be subject to statutes of limitations. Consequently, we conclude that ORS 12.080(3) applies to “physical occupation” takings claims. 3.  Whether the limitations period on a takings claim does not begin to run until a government entity refuses or ignores a request for compensation Plaintiffs’ third argument is that, even if takings claims based on the physical occupation of property can be subject to a statute of limitations, the limitations period does not begin to run “until the entity with the power of eminent domain refuses to pay or ignores a demand for compensation for what it took.” A limitations period begins to run when a claim accrues. ORS 12.010 (requiring actions to be commenced within limitations periods “after the cause of action shall have accrued”). Under Oregon law, the general rule is that a claim accrues when a plaintiff “has a right to sue on it.” Duyck v. Tualatin Valley Irrigation Dist., 304 Or 151, 161, 742 P2d 1176 (1987). That is, a claim accrues when all the facts necessary to prove the claim exist. U.S. Nat’l Bank v. Davies, 274 Or 663, 666-67, 548 P2d 966 (quoting Michael Franks, Limitation of Actions 11 (1959)). Similarly, under federal law, a claim accrues when a plaintiff has “a complete and present cause of action,” meaning that “the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 US 192, 201, 118 S Ct 542, 139 L Ed 2d 553 (1997) (internal quotation marks omitted).10 As we will explain, under both the state and federal constitutions, a property owner may 10  In addition to the general rule, there is a discovery accrual rule, which applies to some claims. As discussed later in this opinion, we need not decide whether plaintiffs’ inverse condemnation claim is subject to a discovery accrual rule. See ___ Or at ___ n 11 (slip op at 29 n 11). Cite as 372 Or 331 (2024) 353 bring a “physical occupation” takings claim when the phys- ical occupation occurs. However, the reasons why an owner may bring such a claim at that point differ under state and federal law. Under the Oregon Constitution, a property owner has a right to “just compensation,” but not necessarily at the time that their property is taken. Again, Article I, section 18, provides, “[p]rivate property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, with- out such compensation first assessed and tendered[.]” Thus, Article I, section 18, does not require the state to pay for prop- erty before taking it for a public use. Instead, as this court has explained, the state may appropriate property “without compensation being first assessed and tendered, but it must make provision by which the party whose property has been seized can obtain just compensation for it.” Branson, 25 Or at 466; see also Tomasek, 196 Or at 147 (“[T]he assessment and tender of just compensation is not a condition precedent to a taking. The taking may occur and the amount of compensa- tion be determined and paid later.”); Branson, 25 Or at 467 (holding that statutes that established procedure for com- pensation after taking did not violate Article I, section 18, because the state “is not bound to make or tender compensa- tion before [the] actual appropriation [of private property],” and the provisions of the statutes “afford[  ] an opportunity for the party aggrieved, whose property has been taken by the [state], to propound his claim for compensation”). The state can delegate its eminent domain author- ity to other governmental entities, and when it does, its delegates are also allowed to take property for public use without first paying “just compensation.” Baker County v. Benson, 40 Or 207, 215, 66 P 815 (1901) (“When the property is taken directly by the state, or by any municipal corpora- tion by state authority, it has been repeatedly held not to be essential to the validity of a law for the exercise of the right of eminent domain that it should provide for making com- pensation before the actual appropriation.” (Internal quota- tion marks omitted.)). 354 Walton v. Neskowin Regional Sanitary Authority An Article I, section 18, claim for “just compensa- tion” from the state or other governmental entity is best understood as an assertion of a constitutional entitlement. An owner can bring such a claim as soon as their property is taken. As discussed above, the physical occupation of an owner’s property constitutes a taking. The physical occupa- tion triggers the entitlement to “just compensation” and pro- vides the basis for a takings claim. Plaintiffs argue that, before a property owner can bring a takings claim, the owner must request compensa- tion and be denied. We find no legal support for that argu- ment. The Indiana and Oregon cases that we have discussed indicate that, when an owner’s property is taken, the owner can seek compensation. We see no reason why, as plain- tiffs would have it, a property owner should be required to request compensation and be denied before being able to bring a takings claim to obtain that same compensation. Plaintiffs appear to suggest that, because Article I, section 18, allows the state and other governmental entities to take property before paying “just compensation,” a taking is not adverse to a property owner’s interests until the owner requests and is denied compensation. That is incorrect. A “physical occupation” taking, like the one alleged here, is a substantial interference with an owner’s “rights of exclusive possession and use.” Dunn, 355 Or at 348; Hall, 355 Or at 511 (explaining that “a de facto taking results when a govern- mental actor physically occupies private property or invades a private property right in a way that substantially inter- feres with the owner’s use and enjoyment of the property, thereby reducing its value”); Tahoe-Sierra, 535 US at 322- 23 (explaining that a “categorical taking” results “[w]hen the government physically takes possession of an interest in property for some public purpose”). It is necessarily adverse. Therefore, we conclude that a property owner can bring a takings claim as soon as the state or other governmental entity physically occupies the owner’s property.11 11  It is possible that accrual of a “physical occupation” takings claim could be subject to a “discovery rule.” Generally speaking, under a “discovery rule,” a cause of action does not accrue “until the claim has been discovered or, in the exercise of reasonable care, should have been discovered.” FDIC v. Smith, 328 Or 420, 428, 980 P2d 141 (1999). But we need not determine whether a “physical Cite as 372 Or 331 (2024) 355 We reach the same conclusion regarding takings claims under the Fifth Amendment, but for a different rea- son. Unlike Article I, section 18, the Fifth Amendment does not expressly provide that a government may take prop- erty before paying for it. And, in Knick, the Supreme Court recently held that, “because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking, the property owner can bring a federal suit at that time.” 588 US at 194 (emphasis added). Therefore, a property owner can bring a takings claim alleging a vio- lation of the Fifth Amendment “as soon as the government takes [the property owner’s] property without paying for it.” Id. at 190. Plaintiffs make two arguments against that con- clusion. The first is based on a sentence in Knick, and the second is based on a subsequent Supreme Court case: Cedar Point Nursery v. Hassid, 549 US 139, 141 S  Ct 2063, 210 L  Ed 369 (2021). We address each of those arguments in turn. First, plaintiffs point to a sentence in Knick in which the Court stated that its holding did not “as a practi- cal matter mean that government action or regulation may not proceed in the absence of contemporaneous compensa- tion.” 588 US at 202. The Court made that statement in response to a concern that its interpretation of the federal Takings Clause would prevent governments from taking necessary actions because property owners would be able to enjoin those actions. Id. at 201-02. In that context, the Court opined that, because “just compensation” remedies are generally available to property owners, there is, in most cases, “no basis to enjoin the government’s action effecting a occupation” takings claim is subject to a discovery rule because, in this case, there is no dispute that plaintiffs’ father was aware of, or had reason to be aware of, the installation of the sewer lines by 1995. Moreover, even if there was a dispute about whether plaintiffs’ father was aware of, or had reason to be aware of, the installation of the sewer lines in 1995, plaintiffs themselves allege that their father entered into an agreement with defendants in 1998, and that allegation shows that their father knew about the lines by 1998. So, even assuming a discovery rule applies and that plaintiffs’ father did not know, or have reason to know, of the sewer lines in 1995, plaintiffs’ claim would have accrued in 1998, and the statute of limitations would have run by 2004, thirteen years before plaintiffs filed their claim. 356 Walton v. Neskowin Regional Sanitary Authority taking.” Id. at 201. Therefore, the Court continued, as long as post-taking compensation is available, prospectively pre- venting the government from committing the violation in the first place is unwarranted. Id. at 202. Contrary to plaintiffs’ argument, the Court did not suggest that the reason the government may proceed with an uncompensated taking is because the availabil- ity of post-taking compensation prevents the taking from being unconstitutional; that is, it did not suggest that an uncompensated taking is not a constitutional violation unless and until post-taking compensation is denied. To the contrary, the Court explained that, “[g]iven the availabil- ity of post-taking compensation, barring the government from acting will ordinarily not be appropriate.” Id. at 202. “But that is because *  *  * such a procedure is a remedy for a taking that violated the Constitution, not because the avail- ability of the procedure somehow prevented the violation from occurring in the first place.” Id. at 201 (emphasis added). To be clear, the Court stated, irrespective of the remedies avail- able, “the violation is complete at the time of the taking,” and “a property owner may bring a Fifth Amendment claim *  *  * at that time.” Id. at 202. Thus, Knick does not support plaintiffs’ position that a federal takings claim includes as an element a denial of requested compensation. Plaintiffs’ second argument is based on Cedar Point Nursery, which was decided two years after Knick. But, as we will explain, Cedar Point Nursery did not involve a ques- tion of when a property owner can bring a federal takings claim, and it did not cite Knick, much less address Knick’s holding regarding when a property owner may bring a such a claim. Moreover, unlike plaintiffs here, the petitioners in Cedar Point Nursery were not seeking compensation, they were seeking declaratory and injunctive relief from future entries onto their property. In Cedar Point Nursery, a California regulation that took effect in 1975 required agricultural employers to per- mit union organizers onto their property “for up to three hours per day, 120 days per year.” 594 US at 143; see id. at 166 (Breyer, J., dissenting) (noting that the access reg- ulation was enacted in 1975). In 2015, union organizers Cite as 372 Or 331 (2024) 357 entered one petitioner’s property under that regulation. Cedar Point Nursery, 594 US at 144-45. The union organiz- ers also attempted to enter the other petitioner’s property, but that petitioner blocked them from entering. Id. at 145. Believing that the union organizers would attempt to enter their properties again, the petitioners filed a claim against the California Agricultural Labor Board for declaratory and injunctive relief to prohibit the enforcement of the regulation against them, arguing that the access regulation effected a per se physical taking that violated the Fifth Amendment to the United States Constitution. Id. On review, the Court held that the access regulation effected a per se physical taking, reasoning that “[w]henever a regulation results in a physical appropriation of property, a per se taking has occurred.” Id. at 149. Plaintiffs point out that the access regulation that effected the taking in Cedar Point Nursery was enacted in 1975, but that the petitioners did not initiate their tak- ings claim until 2015 upon the union workers’ actual and attempted invasions pursuant to that regulation. That gap, plaintiffs reason, demonstrates that the petitioners’ takings claim in that case could not have accrued at the time of the “taking” in 1975, because by 2015, a claim that accrued in 1975 would have been time barred. Thus, they maintain, Cedar Point Nursery demonstrates that “it was not the taking of the right to exclude that violated the Fifth Amendment— it was the non-payment of just compensation” that violated the Fifth Amendment and gave rise to an actionable tak- ings claim in that case. (Emphasis in original.) Contrary to plaintiffs’ assertion, Cedar Point Nursery does not indicate that Knick is no longer good law. Cedar Point Nursery did not involve the issue whether the petitioners’ claim in that case was time barred. As men- tioned, the Cedar Point Nursery Court did not cite Knick or address Knick’s holding about when a takings claim is actionable. Moreover, Cedar Point Nursery did not involve a claim for “just compensation” based on past interference with the petitioners’ property rights; instead, it involved claims for declaratory and injunctive relief. Plaintiffs seek a rule that a claim for “just compensation” does not accrue 358 Walton v. Neskowin Regional Sanitary Authority unless and until the government refuses compensation. Nothing in Cedar Point Nursery indicates that the Court considered such a rule. Indeed, it does not appear that the petitioners in Cedar Point Nursery themselves complied with such a rule because there is no indication that the peti- tioners were denied any requested relief before they brought their takings claim in federal court. For all those reasons, we conclude that Cedar Point Nursery did not alter the Knick Court’s holding regarding when a federal takings claim is actionable.12 C.  Application of the Statute of Limitations to Plaintiffs’ Claim Having concluded that takings claims under Article I, section 18, and the Fifth Amendment can be sub- ject to statutes of limitations and that “physical occupation” takings claims can accrue when the physical occupation occurs, we apply those conclusions to the facts of this case. As recounted above, the summary judgment record, viewed in the light most favorable to plaintiffs, establishes that defen- dant installed the sewer lines by 1995 and that it did so for a public purpose and without the consent of plaintiffs’ father, who owned the property at the time. Based on those facts, plaintiffs’ father could have brought an inverse condemna- tion claim by 1995. Therefore, plaintiffs’ claim accrued, and the six-year statute of limitations began running, in 1995. Because that period expired in 2001, plaintiffs’ 2017 claim is time barred. In arguing against that conclusion, plaintiffs rely on the 1998 agreement. They appear to contend that they had no basis for bringing their claim until defendant breached that agreement. There are two problems with that argument. 12  That conclusion is supported by numerous federal court decisions issued since Cedar Point Nursery that have continued to apply Knick as good law. See, e.g., St. Maron Properties, L.L.C. v. City of Houston, 78 F4th 754, 762 (5th Cir 2023); Fox v. Saginaw County, Michigan, 67 F4th 284, 290 (6th Cir 2023); Beaver Street Investments v. Summit County, Ohio, 65 F4th 822, 826-27 (6th Cir 2023); Kreuziger v. Milwaukee County, Wisconsin, 60 F4th 391, 394 (7th Cir 2023); Bruce v. Ogden City Corp., 640 F Supp 3d 1150, 1161 (D Utah 2022), aff’d, No. 22-4114, 2023 WL 8300363 (10th Cir Dec 1, 2023); Knight v. Richardson Bay Regional Agency, 637 F Supp 3d 789, 798-99 (ND Cal 2022); Vargo v. Barca, No. 20-CV-1109-JDP, 2023 WL 6065599, * 4 (WD Wis Sept 18, 2023). Cite as 372 Or 331 (2024) 359 First, as just discussed, any takings claim based on the installation of the sewer lines accrued when defen- dant installed the lines, which was by 1995. At that point, plaintiffs’ father could have initiated a takings claim. So, the 1998 agreement would matter only if it somehow tolled the running of the limitations period. But plaintiffs have not made a tolling argument. That is, they have not argued that, if their claim accrued in 1995, it was somehow tolled in 1998. They have argued only that their claim did not even accrue until 2014. The second problem with plaintiffs’ reliance on the 1998 agreement is that, if, as they have alleged, their father gave defendant an easement over the property in exchange for a free hook-up to the sewer system, then their father voluntarily transferred a property interest to defendant in exchange for a payment. And, if he did that, defendant’s occu- pation of the property from the point of the agreement forward was not an exercise of defendant’s eminent domain authority. Consequently, that occupation is not subject to Article I, sec- tion 18, or the Fifth Amendment. That is because, if a govern- ment acquires property as a result of an agreement, then it has acquired the property with the owner’s consent. It has not exercised its eminent domain authority. See Woodward Lbr. Co., 173 Or at 338 (transfer of property interest for agreed upon price was a purchase, not an exercise of eminent domain authority); Janowsky, 23 Cl Ct at 712 (property owner’s claim that government breached contract to compensate owners for use of property sounded in contract, not the Takings Clause). Therefore, if defendant acquired plaintiffs’ property pursuant to an agreement, its acquisition of the property is not subject to the constitutional limits on the exercise of eminent domain power, and it cannot be the basis for a takings claim under Article I, section 18, or the Fifth Amendment. Plaintiffs are understandably concerned by what they believe to be defendant’s breach of the 1998 agreement. The Court of Appeals addressed a similar concern in City of Ashland v. Hoffarth, 84 Or App 265, 733 P2d 925 (1987). In that case, the defendant brought a counterclaim for inverse condemnation against a city, alleging that he had dedicated a 20-foot strip of land to the city in exchange for a promise of 360 Walton v. Neskowin Regional Sanitary Authority payment and that the city had failed to make the payment. Id. at 269. The defendant “alleged that he would not have dedicated the strip to the city had he known that he would not be reimbursed for it and that, as a result of the city’s representation, the city obtained possession of the 20-foot-strip without providing just compensation.” Id. The Court of Appeals concluded that the defendant failed to state a claim for inverse condemnation because the city’s actions did not constitute a taking. Id. at 270. The court explained that, at best, the “counterclaim alleges a promise by the city to pay for the strip in the future and his reliance on that promise. The mere fact that as a result of the promise the city now owns the strip and defendant has not been paid does not show that there was a ‘taking.’ Defendant’s remedy, if any, was contractual.” Id. (citation omitted). We agree with the Court of Appeals’ reasoning in Hoffarth. The defendant’s concern related to the breach of an agreement; it was not a claim that his prop- erty had been taken without his consent. Consequently, he needed to bring a contract or quasi-contract claim, not an inverse condemnation claim. The same is true here. Plaintiffs’ concern is that, as a result of the 1998 agreement, they are entitled to a free sewer connection and that defendant has refused to provide them with that connection. That concern relates to the breach of an agreement. But, again, plaintiffs have not raised a breach of contract claim or a quasi-contract claim, which would have different accrual dates than their takings claim. III.  CONCLUSION For the reasons explained above, we conclude that plaintiffs’ inverse condemnation claim is subject to the six-year limitations period set out in ORS 12.080(3), that the limitations period began to run when defendant had installed the sewer lines, and that, because plaintiffs’ claim was not filed within the limitations period, it is time barred. The decision of the Court of Appeals and the judg- ment of the circuit court are affirmed.

74bd28ea1e8d6701e2ef76907965974a5f755ec9c2724f6216421ee0561a03d1

2024-05-23T00:00:00Z

fe46b01c-f516-4062-8dd4-e89e7e59792a

Bosak v. Myers (Certification)

oregon

Oregon Supreme Court

Filed: October 19, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON TRICIA BOSAK and JAMES SAGER, Petitioners, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48606) On modified ballot title filed October 11, 2001.* No appearance by petitioners. Erika L. Hadlock, Assistant Attorney General, Salem, filed the filing of modified ballot title for respondent. With her on the filing were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.** The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). *332 Or 537, ____ P3d ____ (2001) (referring ballot title for modification). **Balmer, J., did not participate in the consideration or decision of this case. The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 49 (2002), failed to comply substantially with statutory standards. Bosak v. Myers, 332 Or 537, ___ P3d ___ (2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 49 (2002) states: "AMENDS CONSTITUTION: LIMITS ANNUAL INCOME-TAX REVENUE SPENDING GROWTH TO FOUR PERCENT; RETURNS REVENUE EXCEEDING LIMIT "RESULT OF 'YES' VOTE: 'Yes' vote limits the annual growth in spending of state income-tax revenue to four percent; state must return all revenue exceeding limit to taxpayers. "RESULT OF 'NO' VOTE: 'No' vote rejects four-percent limit on annual growth in spending of state income-tax revenue; rejects requiring state to return revenue exceeding that limit. "SUMMARY: Amends Oregon Constitution. Oregon statutes currently limit biennial growth of state appropriations for general governmental purposes to previous biennium's growth rate for personal income in Oregon. Under Oregon Constitution, the state currently must return excess income- and excise-tax revenue to taxpayers when it collects at least two percent more than it estimated it would collect. This measure adds constitutional provision limiting annual rate of growth in spending of 'state income tax revenue' (personal and corporate income taxes, corporate excise taxes) to four percent; growth limit not adjusted for population change or inflation. Measure requires state to return to taxpayers all 'state income tax revenue' collected in excess of growth limit. Measure limits state spending of income-tax revenues without providing replacement revenues. Other provisions." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9).

6266803ec78f44ccfa9415943c5810122fee3c0f973a1c76e7445d17da32b162

2001-10-19T00:00:00Z

c8c0d9cb-2f46-47bc-9ba4-3434daa68413

State v. Ray

S48637

oregon

Oregon Supreme Court

Filed: October 25, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. TRAVIS JOHN RAY, Petitioner on Review. (CC C96-2920CR; CA A98561; SC S48637) En Banc On petition for review filed July 9, 2001.* Louis R. Miles, Deputy Public Defender, Salem, filed the petition for petitioner on review. No appearance contra. MEMORANDUM OPINION The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of State v. Fugate, 332 Or 195, 26 P3d 802, (2001). *Appeal from Washington County Circuit Court, Timothy P. Alexander, Judge. 164 Or App 145, 990 P2d 365 (1999).

321efa87c966604ff947947704969f6ca39e2f8395534823785b79ad7b0231aa

2001-10-25T00:00:00Z

fd18e612-14f5-4c8d-bfc5-f3c3e3ae766c

Oregon v. Haugen

S059519

oregon

Oregon Supreme Court

Filed: November 21, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Adverse Party, v. GARY HAUGEN, Defendant-Relator. (CC 04C46224; SC S059519) En Banc Joseph Guimond, Judge. On Request for Court and/or the Chief Justice to Act on its Own Motion and Issue an Order Enforcing the Alternative Writ of Mandamus, Issued June 29, 2011, filed October 17, 2011; considered and under advisement on November 2, 2011. Jeffrey E. Ellis, Oregon Capital Resource Center, Portland, filed the request and reply on behalf of Oregon Capital Resource Center. Timothy A. Sylwester, Assistant Attorney General, Salem, filed the response for Adverse Party State of Oregon. With him on the response were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General. Greg Scholl, of Metropolitan Public Defender, Hillsboro, filed the response for Relator Gary Haugen. BALMER, J. The request submitted by Oregon Capital Resources Center to enforce the June 29, 2011, writ is denied. Walters, J., dissented and filed an opinion in which De Muniz, C. J., and Durham, J., joined. De Muniz, C. J., dissented and filed an opinion in which Durham and Walters, JJ., joined. 1 BALMER, J. 1 This matter comes to this court on a "request" that it enforce, on its own 2 motion, an alternative writ of mandamus that it previously issued in connection with Gary 3 Haugen's death-warrant proceeding. After that writ issued, this court determined that it 4 had been complied with, and then sua sponte dismissed it. The request to now enforce 5 the dismissed writ is premised on an assertion that the trial court did not comply with the 6 writ. The request is filed by Oregon Capital Resource Center (OCRC), an organization 7 that, when it attempted to participate in the earlier mandamus proceeding, failed to 8 establish any right or authority to do so.1 As we will explain, we deny OCRC's request, 9 without deciding whether OCRC properly may make it, because we conclude that the 10 judge to whom the writ was addressed has taken the actions that the writ required. 11 We begin by describing the procedural posture in which OCRC's request 12 arises. We then turn to the contrary arguments advanced by OCRC and the contrary legal 13 analysis urged by the dissenting members of the court. 14 I. BACKGROUND 15 This court affirmed Haugen's aggravated murder conviction and death 16 1 Specifically, this court concluded that OCRC had not made the necessary showing of legal authority to bring the action under ORS 34.105 to ORS 34.320. In particular, under ORS 34.105(4), a relator in a mandamus proceeding must be "the beneficially interested party on whose relation" the proceeding is brought. OCRC brought the petition alleging Haugen to be the relator, while also acknowledging that it did not represent Haugen. The court decided that OCRC had not made the necessary showing of legal authority to bring the proceeding on Haugen's behalf. 2 sentence. State v. Haugen, 349 Or 174, 243 P3d 31 (2010). Judge Guimond, who had 1 been the trial judge, then held a hearing on whether to issue the death warrant. Haugen 2 was represented at the hearing by two lawyers, Simrin and Goody. Before the hearing, 3 Haugen had made clear his desire to waive all further challenges to his conviction and 4 sentence. Simrin and Goody, however, believed that Haugen was not competent to be 5 executed. They filed a motion to declare Haugen incompetent, supported by Goody's 6 declaration that Haugen had been interviewed and evaluated by a neuropsychologist, Dr. 7 Lezak, who had had concluded that Haugen was not competent to be put to death. 8 At the hearing, before considering Simrin and Goody's motion, Judge 9 Guimond received a letter from Haugen, asking him to remove Simrin and Goody as his 10 lawyers and to permit him to proceed pro se. Simrin and Goody objected to being 11 removed as Haugen's lawyers, arguing that Judge Guimond had to hold a so-called 12 "Faretta" hearing before accepting Haugen's waiver of counsel and permitting him to go 13 forward without representation; Simrin and Goody urged that Lezak's evaluation was 14 relevant and necessary to that issue.2 Judge Guimond disagreed on the necessity of an 15 2 A "Faretta" hearing refers to a hearing comporting with Faretta v. California, 422 US 806, 95 S Ct 2525, 45 L Ed 2d 562 (1975), in which the United States Supreme Court articulated the test for a valid waiver of the Sixth Amendment right to counsel. See generally State v. Meyrick, 313 Or 125, 831 P2d 666 (1992) (discussing requirements of inquiry into a defendant's exercise of the right to waive counsel under both state and federal constitution). This court has explained that a colloquy on the record between the court and a defendant in which the court, "in some fashion, explains the risks of self-representation" is generally the preferred means of assuring that the defendant understands those risks. Meyrick, 313 Or at 133-34. Simrin and Goody did not cite or otherwise refer to the procedures under ORS 137.464, which, as we later 3 evidentiary hearing, and instead conducted a colloquy with Haugen. After doing so, and 1 after advising Haugen of the risks of proceeding without counsel, Judge Guimond found 2 Haugen to be competent, concluded that he was knowingly choosing to proceed pro se, 3 and discharged Simrin and Goody. Judge Guimond, however, simultaneously appointed 4 Simrin and Goody as "stand by" counsel to provide legal advice to Haugen at any point at 5 which he might want that advice. Judge Guimond then asked Haugen a series of 6 questions. Based on Haugen's responses to those questions, Judge Guimond concluded 7 that Haugen was validly waiving his rights to further challenge his conviction and 8 sentence. Judge Guimond issued a death warrant setting a date for Haugen's execution. 9 After the death warrant issued, OCRC filed a petition for a writ of 10 mandamus contending that the trial court had discharged Haugen's lawyers and issued the 11 death warrant without a sufficient inquiry into Haugen's competence. In support of that 12 petition, OCRC filed an affidavit by Lezak attesting that, in her opinion, Haugen was not 13 competent to be executed. Simrin and Goody, Haugen's discharged lawyers, submitted a 14 letter supporting the petition. The state opposed the petition, arguing that OCRC lacked 15 standing to file it. Haugen, appearing pro se, also opposed the petition, arguing 16 principally that neither OCRC nor Simrin and Goody had authority to represent him or to 17 seek relief on his behalf. Haugen also claimed that Simrin and Goody had divulged 18 explain, apply at a death warrant hearing in which the defendant wants to waive counsel and there is a substantial question about the defendant's mental capacity to represent himself or herself adequately. 4 privileged and confidential attorney-client communications in their letter to the court, 1 without his authorization. 2 This court concluded that OCRC had not made the necessary showing that 3 it had any legal authority to bring the proceeding on Haugen's behalf. The court further 4 concluded, however, that Simrin and Goody, as Haugen's former lawyers, had authority 5 to challenge Haugen's competency to discharge them. We therefore construed Simrin 6 and Goody's letter as a petition for an alternative writ challenging certain findings, 7 rulings, and orders that Judge Guimond had entered, including the order discharging 8 Simrin and Goody without adequate procedures to determine Haugen's competence to 9 waive counsel and proceed pro se. Having so construed Simrin and Goody's letter, this 10 court issued an alternative writ of mandamus directed to Judge Guimond. 11 In the order issuing the writ, the court described the state of the record at 12 that point -- Simrin and Goody had obtained Lezak's evaluation, Lezak had concluded 13 Haugen was not competent to be executed, and Simrin and Goody had sought an 14 evidentiary hearing on the issue of Haugen's competency, which Judge Guimond had 15 denied. Given those facts, this court concluded that Judge Guimond had been obligated 16 to follow certain statutory procedures -- ones that he had not followed -- before 17 discharging Simrin and Goody and allowing Haugen to proceed pro se. In particular, the 18 court noted, ORS 137.464 provides that, at a death warrant hearing, if a defendant wishes 19 to waive his or her right to counsel and the trial court has "substantial reason to believe 20 that, due to mental incapacity, the defendant cannot engage in reasoned choices of legal 21 strategy and options," then the trial court "shall order" that the Oregon Health Authority 22 5 or its designee assess the defendant's mental capacity. The writ therefore directed Judge 1 Guimond to vacate his related findings, rulings, and orders, including "[t]he finding that 2 defendant Haugen is competent to waive his right to counsel" and "[t]he order removing 3 Simrin and Goody as counsel for defendant Haugen[.]" Judge Guimond was ordered to 4 then take the following further actions or to show cause for not doing so: 5 "1. Pursuant to ORS 137.464, order that the Oregon Health 6 Authority or its designee perform an assessment of the defendant's mental 7 capacity to engage in reasoned choices of legal strategies and options; 8 "2. Pursuant to ORS 137.463(3) and (4), after completion of the 9 assessment by the Oregon Health Authority or its designee and any other 10 inquiry you deem appropriate, and before issuing a death warrant, hold an 11 evidentiary hearing and 12 "a. permit Simrin and Goody to offer evidence pertinent to 13 defendant Haugen's mental capacity to make a competent, knowing, and 14 voluntary waiver of his rights and to the question of whether defendant is 15 competent for the purposes of being executed; 16 "b. advise defendant Haugen that he is entitled to counsel in any 17 post-conviction proceeding and that counsel will be appointed if the 18 defendant is financially eligible for appointed counsel at state expense; 19 "c. determine whether defendant [Haugen] wishes to waive counsel, 20 and whether that waiver is competent, knowing, and voluntary; 21 "d. make findings on the record whether defendant Haugen suffers 22 from a mental condition that prevents Haugen from comprehending the 23 reasons for the death sentence and its implication; and 24 "e. determine whether defendant Haugen intends to pursue any 25 challenges to the sentence or conviction and, if not, advise defendant 26 Haugen of the consequences and make a finding on the record whether the 27 defendant competently, knowingly, and voluntarily waives the right to 28 pursue available challenges to his death sentence." 29 The alternative writ issued on June 29, 2011. Immediately after it issued, 30 Haugen wrote letters to this court vigorously objecting to its issuance. Among other 31 6 points, he objected to having Simrin and Goody reinstated as his attorneys, asserting that 1 they had a conflict of interest in representing him. Haugen also objected to any use or 2 disclosure of Lezak's evaluation or her opinion of his competency without his written 3 consent. Haugen asserted that his interview with Lezak was confidential and subject to a 4 privilege that he had not waived; that Simrin and Goody had not adequately advised him 5 in connection with Lezak's evaluation; and that Simrin and Goody's actions in disclosing 6 Lezak's opinion without his consent were both unethical and illegal. Haugen asked this 7 court, if it determined that Haugen did not have a right to object to the release of 8 information about Lezak's examination, to appoint independent counsel to represent him 9 on that issue. 10 This court responded to Haugen by letter, advising him that the case had 11 been returned to the circuit court, where further proceedings were to be conducted. The 12 court informed Haugen that copies of his letters raising his objections would be provided 13 to Judge Guimond. The court's letter also acknowledged Haugen's request to have 14 separate counsel appointed to represent him on "medical records and other issues." The 15 letter advised Haugen that copies of his letters would be forwarded to the Office of Public 16 Defense Services for "their consideration and further action as warranted." The court's 17 letter so advising Haugen was copied to, among others, Judge Guimond and all counsel 18 involved, including Simrin and Goody. 19 Meanwhile, Judge Guimond opted to comply with the writ rather than show 20 cause for not doing so. Judge Guimond promptly reinstated Simrin and Goody as 21 Haugen's counsel. He also directed the Oregon Health Authority to assess Haugen's 22 7 competence. Finally, he scheduled an evidentiary hearing to determine Haugen's 1 competence, to be held after that evaluation was completed. 2 On July 14, 2011, Haugen notified Judge Guimond that he wanted Simrin 3 and Goody to be removed as his counsel. Haugen did not, however, ask to proceed pro 4 se. Instead, Haugen requested substitute counsel. In making that request, Haugen raised 5 substantially the same issues that he had raised with this court immediately after the writ 6 issued -- including that Simrin and Goody had violated the confidentiality of his 7 examination by Lezak by disclosing the results without his consent and that they had 8 acted unethically and illegally. Judge Rhoades, rather than Judge Guimond, presided at 9 the hearing on Haugen's motion for substitution. She determined that a conflict of 10 interest existed between Haugen and his counsel, based on an irremediable breakdown in 11 their attorney-client relationship. Judge Rhoades accordingly removed Simrin and 12 Goody as Haugen's counsel and ordered a substitution of counsel. Within a few days, 13 different lawyers -- Scholl and Gorham -- were appointed to represent Haugen. 14 On July 15, 2011, Simrin and Goody filed a second petition for a writ for 15 mandamus, challenging Judge Rhoades's decision to remove them as Haugen's counsel 16 and to substitute different counsel in their place. This court denied that petition three 17 days later. 18 On August 5, 2011, this court on its own motion dismissed the alternative 19 writ that had issued on June 29, 2011, directing Judge Guimond to take particular actions 20 in connection with the death warrant proceedings. The court did so, reciting that Judge 21 Guimond had notified the court that he would comply with the alternative writ and that, 22 8 "[f]rom our review of [the] OJIN [register] entries, it appears that Judge Guimond has 1 taken the actions necessary to comply with that writ." As noted, Judge Guimond had 2 vacated his earlier orders and had taken certain other actions directed by the writ. The 3 evidentiary hearing that the writ contemplated, although scheduled, had not yet occurred 4 when that dismissal order issued. Neither the parties to the writ proceeding nor OCRC 5 objected to the writ's dismissal, however. 6 After substitute counsel were appointed to represent Haugen, Dr. Hulteng 7 was selected to perform the evaluation of Haugen on behalf of the Oregon Health 8 Authority. Hulteng performed that evaluation and submitted his assessment that Haugen 9 is competent. Judge Guimond then held a hearing at which the lawyers for the parties 10 were permitted to offer further evidence on Haugen's competency.3 At that hearing, 11 Scholl, Haugen's lead counsel, did not offer Lezak's affidavit or other evidence of Lezak's 12 opinion of Haugen's competency. Rather, the only expert evidence presented at that 13 hearing was Hulteng's evaluation. Hulteng's written report was placed in evidence, and 14 Hulteng testified at the hearing. Counsel for both sides questioned Hulteng about his 15 assessment of Haugen's mental competence. At the conclusion of the hearing, based on 16 Hulteng's written report and in-court testimony, Judge Guimond concluded that Haugen 17 was competent to waive any further challenges to his conviction and sentence and that he 18 3 What we describe as a single hearing was held on September 27, 2011, and October 7, 2011, and encompassed proceedings relevant to both the evidentiary hearing on competency, as well as other proceedings required as part of the death warrant hearing. 9 is competent to be executed.4 1 II. COMPLIANCE WITH THE WRIT 2 A. OCRC's Request and Status 3 On October 17, 2011, OCRC filed the "request" that brings this matter 4 before the court. OCRC's specific request is for "this court and/or the Chief Justice to act 5 on its own motion and issue an order enforcing [the] alternative writ of mandamus." 6 The threshold problem with OCRC's request is that it is made by OCRC, 7 rather than by a party with a demonstrated interest in the proceeding. In the order issuing 8 the alternative writ of mandamus, we stated that "OCRC has not made the necessary 9 showing of legal authority to bring this proceeding on behalf of Haugen under ORS 10 34.105(4)." We concluded that Simrin and Goody had authority to seek mandamus, 11 because the trial court had permitted Haugen to discharge them and proceed pro se 12 without first holding a hearing to determine his competence to do so. In its request to 13 now enforce the writ of mandamus, OCRC has not offered any additional reason why it 14 was entitled in that original petition to seek mandamus on Haugen's behalf. If OCRC 15 lacked authority to seek a writ of mandamus in the first place, it necessarily follows that 16 it lacks authority to seek to enforce the writ that we issued. 17 4 When OCRC filed the request for this court to enforce the writ, Judge Guimond had not signed a death warrant setting the date of Haugen's execution. Judge Guimond, on November 18, 2011, did so. Haugen's execution is now scheduled for December 6, 2011. 10 For present purposes, however, we assume that this court, having dismissed 1 the writ on its own motion, could reinstate the writ on its own motion, if the dismissal 2 had been issued by mistake or in error. And we assume further that, although OCRC has 3 not established any authority to make the request that it makes, we are not precluded from 4 considering its arguments in determining whether to act on our own motion. We look 5 past those potential issues because the trial court fully complied with the writ. 6 B. Judge Guimond's Actions after the Writ Issued 7 We have already quoted the writ, at length and verbatim. The operative 8 directives were straightforward in what they required. As pertinent here, the terms of the 9 June 29, 2011, alternative writ stated four directives to Judge Guimond: to vacate certain 10 findings and orders; to order the Oregon Health Authority or its designee to conduct an 11 assessment of defendant Haugen's competence; to hold a hearing to determine Haugen's 12 competence after receiving that assessment; and to permit Haugen's counsel at that 13 hearing to offer evidence bearing on Haugen's competence. 14 Judge Guimond has complied with those directives. In particular, he 15 vacated his earlier orders and, in doing so, reinstated Simrin and Goody as 16 Haugen's counsel; 17 ordered the Oregon Health Authority to perform an assessment of Haugen's 18 mental capacity pursuant to ORS 137.464, which Hulteng then performed; 19 held an evidentiary hearing to determine Haugen's mental capacity before 20 issuing a death warrant; and 21 permitted Haugen's counsel at that hearing to offer further evidence pertinent 22 to Haugen's mental capacity. 23 Those were the actions that the writ contemplated. When this court 24 11 dismissed the writ on August 5 after concluding that it had been complied with, the 1 evidentiary hearing had not yet occurred. But it was scheduled to occur. That was 2 sufficient for this court to determine that Judge Guimond had complied with the writ. 3 Compliance did not require that the court know what evidence would be offered or 4 admitted at the hearing; compliance did not require the court to know the outcome of the 5 hearing. 6 Our dismissal of the writ was correct when it issued on August 5. It 7 remains correct now. The writ required Judge Guimond to take the steps outlined above, 8 which he had committed to doing when the dismissal occurred, and which he has since 9 done. Judge Guimond followed through on all procedural actions that our writ required. 10 No further enforcement of the writ is necessary or appropriate.5 11 III. THE ARGUMENTS TO THE CONTRARY 12 We turn to the arguments to the contrary advanced by OCRC and the two 13 dissenting opinions. Those arguments center on three issues: (1) whether our writ 14 commanded that Simrin and Goody have a role in the death warrant proceedings 15 5 The fact that a writ of mandamus has been complied with does not mean that this court has no authority to direct further or different actions on the official's part based on circumstances that may arise after a writ issues. But for the court to have that authority requires a further petition for a writ of mandamus, one addressed to any further or different actions to be ordered and to the official's legal duty to perform them. And that petition must be brought by someone who makes the necessary showing of interest to bring it. No one has come before the court seeking a new or further writ of mandamus. OCRC's request is limited to a claim that the trial court did not comply with the writ that the court issued on June 29. Our disposition is limited to a denial of that request. 12 regardless of their status as Haugen's lawyers; (2) whether our writ commanded that 1 Lezak's opinion on Haugen's competency be considered by Judge Guimond regardless of 2 whether any party to the proceeding offered it in evidence; and (3) whether the 3 evidentiary hearing held by Judge Guimond comported with due process requirements. 4 We address those issues in turn. Although we ultimately disagree with the conclusions 5 reached in the dissenting opinions, we do so with respect for the legal analyses that are 6 offered in those opinions and for the views of the members of the court who have 7 authored and have joined them. 8 A. The Role of Simrin and Goody 9 Both dissenting opinions argue that Judge Guimond failed to comply with 10 this court's writ because he did not have Simrin and Goody present evidence regarding 11 Haugen's competency at the evidentiary hearing conducted after issuance of the writ. The 12 dissents rely on the fact that the writ referred to Simrin and Goody by name. Their 13 position in that regard, however, fails to take into account (a) the context in which the 14 writ issued; (b) the text of the writ itself; (c) the proceedings in the trial court and this 15 court following the June 29, 2011, writ; and (d) the events that did and did not transpire 16 at the post-writ evidentiary hearing held by Judge Guimond. 17 First, the court issued the writ because it concluded that Simrin and 18 Goody's status as Haugen's "stand by" counsel after the trial court had allowed Haugen to 19 discharge them permitted them to take -- or at least did not prohibit them from taking -- 20 "any legal action to challenge Haugen's competency to discharge them." Accordingly, 21 we construed Simrin and Goody's letter to the court as a petition for an alternative writ of 22 13 mandamus and, on that basis, issued the writ. Simrin and Goody thus were not lawyers 1 who were strangers to the case petitioning to participate in the proceedings; rather, as our 2 order explained, they were Haugen's recently discharged counsel -- now serving as "stand 3 by" counsel for him in the death warrant proceeding at issue. Moreover, Haugen had just 4 been found by the trial court to be competent (without the trial court having the benefit of 5 expert testimony), had waived his rights to further challenges to his sentence, and had 6 been given an execution date -- all at a hearing in which he was not represented by 7 counsel. For those reasons (among others), we issued the June 29 writ directing Judge 8 Guimond to vacate his earlier rulings, to order an examination by the Oregon Health 9 Authority, and to hold an evidentiary hearing pursuant to the procedures prescribed by 10 ORS 137.463 and ORS 137.464. 11 It was in that context that we directed Judge Guimond to "permit Simrin 12 and Goody to offer evidence pertinent to defendant Haugen's [competence]." Nothing in 13 the court's order issuing the writ conferred any special "ombudsman," "next friend," or 14 similar status on Simrin and Goody. Rather, it identified them by name because they 15 were Haugen's recently discharged lawyers and had filed the petition that resulted in the 16 issuance of the writ. 17 Second, the text of the writ itself stated that the trial court should "permit" 18 Simrin and Goody to offer evidence pertaining to Haugen's mental state. The writ 19 conferred no right on them to appear in any capacity other than as Haugen's counsel. It 20 did not require Judge Guimond to permit them, as opposed to other counsel for Haugen, 21 to appear at the hearing. The writ did not require Simrin and Goody to offer any 22 14 evidence. It did not require Simrin and Goody to offer, or the trial court to admit, any 1 particular evidence, including the Lezak affidavit. 2 If there were any question about Simrin and Goody's role as contemplated 3 by the June 29 writ, that question is answered by events that occurred following the 4 issuance of the writ. As we have noted, Haugen wrote this court asserting that Simrin 5 and Goody had a conflict of interest with him, had not advised him adequately in 6 connection with Lezak's evaluation, and had disclosed Lezak's opinion in violation of his 7 claims of privilege and confidentiality. Haugen requested independent counsel on the 8 "medical and other issues" if this court concluded he could not object to disclosure of 9 Lezak's opinion. This court did not treat those issues as resolved by the writ. Instead, 10 this court referred Haugen's objections to the circuit court, and forwarded his request for 11 independent counsel on those issues to the appropriate appointing entity. Haugen then 12 moved for a substitution of counsel at the circuit court level. Judge Rhoades held a 13 hearing on Haugen's motion, determined that Simrin and Goody had a conflict of interest, 14 and removed Simrin and Goody. Judge Rhoades also appointed Scholl and Gorham to 15 represent Haugen. Simrin and Goody filed a mandamus petition seeking reversal of the 16 order, and this court -- unanimously -- denied that petition on July 18, 2011. 17 This court was aware that those events had taken place on August 5, when 18 it determined on its own motion that Judge Guimond had complied with the writ and 19 dismissed it. If this court had viewed the June 29 writ as requiring Simrin and Goody 20 specifically -- as opposed to other duly appointed counsel -- to participate at the death 21 warrant hearing, it would have granted their mandamus petition challenging their 22 15 removal. Likewise, if this court had viewed the writ as requiring Simrin and Goody 1 specifically -- as opposed to other duly appointed counsel -- to participate in the death 2 warrant hearing, this court would not have concluded that Judge Guimond had complied 3 with the June 29 writ and would not have dismissed it on its own motion. Simply put, 4 those actions by this court cannot be reconciled with the dissents' views that the June 29 5 writ required that Simrin and Goody personally participate in the death warrant hearing 6 and present evidence despite their status as lawyers who no longer represented Haugen 7 and who have a conflict of interest with him.6 8 Finally, what occurred at the post-writ evidentiary hearing itself 9 demonstrates that no one, including Simrin and Goody, interpreted the writ as mandating 10 that they appear personally and present evidence on Haugen's competency, regardless of 11 their status. At that hearing, Haugen was represented by counsel; he did not appear pro 12 se, as he had in the initial death warrant hearing that led to issuance of our writ. Judge 13 Guimond did not find Haugen to be competent based solely on his own colloquy with 14 Haugen, as happened in the initial death warrant hearing. Instead, Judge Guimond also 15 relied on the evidence presented by the parties at the evidentiary hearing, as our writ 16 6 Justice Walters suggests that this court denied the mandamus petition that Simrin and Goody filed to challenge their removal as counsel and the substitution of Scholl and Gorham, assuming that Scholl and Gorham would take the same positions in representing Haugen (including introducing evidence that he was not competent) as Simrin and Goody had. Nothing in the record supports that assertion, and the court took no official action consistent with it. As discussed elsewhere in this opinion, this court does not and should not purport to control the choices made by counsel in representing their clients. We did not do so here. 16 required. The evidence both parties chose to present was Hulteng's evaluation -- which 1 was the expert evaluation contemplated by the statutory procedure that our writ ordered 2 Judge Guimond to invoke. Simrin and Goody did not appear at the hearing, did not seek 3 to participate, and did not offer evidence. Their inaction at least suggests that they, too, 4 understood the writ to be directed to them only insofar as they remained Haugen's 5 lawyers.7 6 B. The Lezak Affidavit 7 In urging that the writ must be enforced because Judge Guimond has not 8 complied with it, OCRC's arguments rest principally on the assertion that the writ 9 required Judge Guimond to consider Lezak's evaluation in making the competency 10 determination. The dissenting opinions agree. Our writ, however, did not order Judge 11 Guimond to do so. 12 To state the obvious first: the text of the June 29 writ does not direct Judge 13 Guimond to consider the Lezak affidavit. Had this court concluded that a reliable 14 determination of Haugen's competence could not be made without evidence of Lezak's 15 expert opinion, it would have directed Judge Guimond specifically to consider the Lezak 16 affidavit, in terms that expressed that obligation. The writ, however, contained no such 17 7 Worth noting is that OCRC does not dispute the propriety of removing Simrin and Goody based on their conflict of interest with Haugen. Nor does OCRC, unlike the dissenting members of this court, assert that Simrin and Goody, once they were removed as Haugen's lawyers and different counsel were appointed to represent Haugen, had any proper role to play at the evidentiary hearing held pursuant to our writ. 17 directive. Insofar as Lezak's opinion of Haugen's mental competency in particular was 1 concerned, the writ did not refer to it at all in the directives issued to Judge Guimond.8 2 Rather, the writ was open-ended: Haugen's lawyers could "offer evidence pertinent to 3 defendant Haugen's mental capacity to make a competent, knowing, and voluntary waiver 4 of his rights and to the question of whether defendant is competent for the purposes of 5 being executed." The writ did not order Judge Guimond to consider evidence regardless 6 of whether it was offered by any party and was determined to be admissible. Nothing in 7 the writ prejudged what evidence Haugen's lawyers might offer or preempted any 8 disputes that might arise over evidence offered by either side. Instead, the writ 9 commanded Judge Guimond to hold an evidentiary hearing, which he has done. It also 10 commanded Judge Guimond to permit Haugen's lawyers to offer evidence pertinent to 11 Haugen's competency, which he has also done. The writ ordered nothing more, and 12 nothing less. 13 As events transpired, Simrin and Goody were replaced by Scholl and 14 8 The order issuing the June 29 writ, as opposed to the writ itself, discussed Lezak's opinion and relied, in part, on Simrin and Goody's attempt to present that evidence to Judge Guimond. The significance of Lezak's opinion to the issuance of the writ was that Simrin and Goody's attempt to offer evidence of her opinion at the initial death warrant hearing triggered Judge Guimond's obligation under ORS 137.464 to order an evaluation by the Oregon Health Authority and to hold an evidentiary hearing afterwards. Our writ concerned only what procedures Judge Guimond was required to follow. The dissenters view this court as having decided what evidence should be offered and considered by Judge Guimond in following the required procedures, but that was not an issue before us or one that we could have or should have resolved, given the limitations of our record and the procedural posture of the case. We did not address or resolve that issue when we issued the writ. 18 Gorham because Simrin and Goody had a conflict of interest with Haugen. Scholl, as 1 Haugen's lead counsel, independently assessed the evidence on Haugen's competency, the 2 legal issues involved, and his own ethical obligations to his client. Scholl properly did 3 not consider himself bound to pursue whatever legal strategies and positions Simrin and 4 Goody had pursued, as opposed to assessing those matters anew. Scholl decided to rely 5 on Hulteng's evaluation, which was the expert evaluation contemplated by the statutory 6 procedure that our writ ordered Judge Guimond to follow. Scholl specifically decided 7 not to submit the Lezak affidavit at the evidentiary hearing.9 By directing Judge 8 9 In response to OCRC's request to enforce our writ, Scholl, as Haugen's lead counsel, has submitted an affidavit explaining his decision. Scholl knows Hulteng's work well, having worked with and against him on many different cases. Scholl was present during Hulteng's evaluation interviews of Haugen, and Hulteng allowed Scholl to question him and Haugen during the evaluation. In addition, Hulteng allowed Scholl to record the interviews by filming them. Based on his knowledge of Hulteng's work, Scholl considers Hulteng "a fair evaluator and a knowledgeable * * * expert." With regard to Hulteng's assessment of Haugen's mental competence specifically, Hulteng "is credible and unbiased in [Scholl's] opinion." Scholl states that, "[i]n the end, Dr. Hulteng's opinion about defendant's competency was very similar to my own view and that of defendant himself." In his affidavit, Scholl explains that, in contrast to Hulteng's expert evaluation and opinion, Lezak's affidavit "does not offer a diagnosis, or present any detailed client history. It does not establish defendant's incompetence. As an attorney with experience in this area, I would not try to establish anyone's incompetency in court or otherwise with the information in that document." Scholl emphasizes that he "could have offered [Lezak's affidavit]" during the death warrant hearing if that affidavit was "thought credible and if it furthered the objectives of the representation." For Scholl, however, Lezak's affidavit seemed neither thorough nor complete. He declined to offer it at the evidentiary hearing on Haugen's competency. Scholl, of course, is not a medical professional. However, he explained that, in the course of his work as the Director of the Washington County Section of 19 Guimond to permit Haugen's lawyers to offer evidence pertinent to Haugen's 1 competency, the writ deferred to the judgment of Haugen's lawyers to decide what 2 evidence to offer. That deference is consistent with how this court approaches virtually 3 all significant legal proceedings, including those in death penalty proceedings. 4 The dissenting opinions question how a majority of this court can now 5 conclude that Judge Guimond complied with this court's writ, when Simrin and Goody 6 did not participate in the hearing and the Lezak affidavit was not considered. The reasons 7 we have set forth above answer their question: Simrin and Goody presumably (and 8 correctly) understood that, once they had been replaced as counsel by Judge Rhoades 9 (with this court unanimously declining to vacate that action), they had no role to play in 10 the hearing; they did not seek to appear at or participate in the hearing or to introduce the 11 Lezak affidavit; and nothing in the order required Judge Guimond to sua sponte consider 12 the Lezak affidavit. 13 C. The Evidentiary Hearing on Haugen's Competency 14 As noted, after Hulteng performed his evaluation of Haugen as the designee 15 for the Oregon Health Authority, Judge Guimond held an evidentiary hearing to 16 determine Haugen's competency. At that hearing, Haugen was represented by Scholl and 17 Gorham, rather than by Simrin and Goody. As required by our June 29 writ, Judge 18 Metropolitan Public Defender, he has "litigated competency issues in my own cases, and assessed competency questions in the cases of other attorneys in the office. My work has required regular client competency analysis, and in more areas than just a client's ability to aid and assist in their own defense." 20 Guimond permitted Scholl and Gorham, as Haugen's counsel, "to offer evidence pertinent 1 to defendant Haugen's [competence]," and they did so. As already described, Scholl, as 2 Haugen's lead counsel, decided not to offer the Lezak affidavit; he relied on Hulteng's 3 expert evaluation instead. Judge Guimond was presented with both Hulteng's written 4 report and his testimony. Both parties examined Hulteng about his conclusions. No one 5 has come to this court -- including OCRC -- challenging Hulteng's credentials, the 6 thoroughness of his evaluation, or even his expert opinion. Judge Guimond made 7 findings of fact based on the evidence so presented and concluded that Haugen was 8 competent. 9 Justice Walters argues in dissent that Judge Guimond failed to comply with 10 the writ because he did not hold a hearing at which "one side contends that Haugen is 11 competent" and the "other side takes the contrary position * * *." However, our writ did 12 not direct "one side" to present evidence of Haugen's competence and the "other side" to 13 present evidence to the contrary. Rather, the writ simply ordered that a hearing be held at 14 which the parties could "offer evidence pertinent to defendant Haugen's mental capacity 15 to make a competent, knowing, and voluntary waiver of his rights and to the question of 16 whether defendant is competent for the purposes of being executed[.]" The two "sides" at 17 the hearing were the state and Haugen. Consistent with Oregon statutes and our 18 adversarial legal system, the parties to the proceeding were permitted to present what 19 counsel for each side determined to be appropriate evidence -- and they did so. Judge 20 Guimond conducted the hearing required by the writ, and he permitted full participation 21 by the parties as contemplated by the writ. 22 21 To the extent that OCRC and the dissents argue that the United States 1 Supreme Court's decisions in Panetti v. Quarterman, 551 US 930, 127 S Ct 2842, 168 L 2 Ed 2d 662 (2007), and Ford v. Wainwright, 477 US 399, 106 S Ct 2595, 91 L Ed 2d 335 3 (1986), require a different result, they read those cases for more than they hold. Those 4 cases stand for the principle that, when a prisoner seeks a stay of execution and makes a 5 "substantial threshold showing of insanity," due process requires that the state provide the 6 prisoner with a hearing at which both the prisoner and the state are free to put on 7 evidence. Panetti, 551 US at 949-50 (summarizing Justice Powell's opinion concurring 8 in part and concurring in the judgment in Ford).10 Neither the controlling opinion in 9 Ford nor the majority opinion in Panetti suggests that the procedure that the trial court 10 followed in this case violates the Due Process Clause. 11 IV. CONCLUSION 12 This court's June 29 writ commanded Judge Guimond to take four actions 13 pertinent here. He was to vacate certain findings and orders; to order the Oregon Health 14 Authority or its designee to conduct an assessment of defendant Gary Haugen's 15 competence; to hold a hearing to determine Haugen's competence after receiving that 16 10 As the Court explained in Panetti, Justice Powell's opinion concurring in the judgment in Ford was narrower than Justice Marshall's plurality opinion regarding the procedures for determining competence. Panetti, 551 US at 949. Accordingly, because Justice Powell's opinion was necessary to form a majority position, it controls. Id. We note that OCRC relies on Justice Marshall's plurality opinion, even though it is not the controlling precedent on the process that the constitution requires to determine a prisoner's competency to be executed. 22 assessment; and to permit Haugen's counsel at that hearing to offer evidence bearing on 1 Haugen's competence. Four members of this court so understood the writ in voting to 2 issue it; four members of this court so understand it still. A fortiori, those are the writ's 3 terms. Judge Guimond has complied with those directives. 4 The writ set out the directives described above. It did not require that 5 particular evidence be provided to or considered by Judge Guimond, and it did not direct 6 Judge Guimond to consider the Lezak affidavit regardless of whether Haugen's lawyers 7 offered it in evidence. The writ did not give Simrin and Goody a personal right or legal 8 role entitling them to present evidence on Haugen's competence -- their status was, and 9 is, that of former lawyers for Haugen who have been discharged due to a conflict of 10 interest and replaced by other duly appointed counsel. The writ did not preempt 11 Haugen's counsel from choosing what evidence to offer at the evidentiary hearing based 12 on their assessment of the evidence, the law, and their ethical responsibilities to their 13 client. The adversarial process would be ill-served were we to prevent Haugen's lawyers 14 from making those choices, or were we to take action to override or circumvent those 15 choices. We did not do so in issuing the writ, and we decline to do so now, on our own 16 motion, by enforcing the writ on revised terms. 17 Our conclusion that Judge Guimond has complied with the writ, of course, 18 does not make this case any less fraught or sobering. We agree with the dissenting 19 opinions that, as this court and the United States Supreme Court have said, "death is 20 different." Woodson v. North Carolina, 428 US 280, 305, 96 S Ct 2978, 49 L Ed 2d 944 21 (1976); State v. Haugen, 349 Or 174, 203, 243 P3d 31 (2010). And we agree that the 22 23 procedures established by the legislature that can lead to an execution must be followed 1 scrupulously. We share the dissenters' premise that every death penalty case raises the 2 most profound issues of morality and social justice. The record before us, however, 3 demonstrates no legal error in Judge Guimond's conduct of the proceedings to determine 4 Haugen's competence, nor any failure on his part to comply with the terms of our writ. 5 The request submitted by Oregon Capital Resources Center to enforce the 6 June 29, 2011, writ is denied. 7 1 WALTERS, J., dissenting. 1 Because the law requires Judge Guimond to decide whether Haugen is 2 mentally competent to be executed and because Judge Guimond has not yet considered 3 expert testimony relevant to that issue, this court should not conclude that Judge 4 Guimond "has complied" with this court's alternative writ of mandamus. That writ 5 permitted counsel to present a challenge to Haugen's mental competence and evidence of 6 Haugen's incompetence. Until Judge Guimond hears and considers that challenge and 7 evidence, no death warrant should issue. 8 Before the death warrant hearing that Judge Guimond conducted on May 9 18, 2011, Haugen's lawyers, Simrin and Goody, filed a motion pursuant to ORS 10 137.463(4)(a), asking Judge Guimond to find that Haugen was not mentally competent to 11 be executed or to set a hearing to consider evidence on that issue. Simrin and Goody 12 explained that a neuropsychologist, Dr. Muriel Lezak, had conducted a 13 neuropsychological assessment of Haugen's mental capacity and had informed them that 14 she was prepared to testify to her opinion that Haugen was not mentally competent to be 15 executed.1 Judge Guimond declined to entertain Simrin's and Goody's motion or the 16 1 With their motion, Simrin and Goody filed a declaration summarizing the conclusion that Dr. Lezak had reached and to which they expected Dr. Lezak would testify. OCRC later attached a sworn affidavit from Dr. Lezak to the petition for writ of mandamus that it filed with this court. In that affidavit, Dr. Lezak states that Haugen suffers from a delusional disorder that "prevents him from comprehending the reasons for his death sentence or its implication[,]" rendering him incompetent to be executed under Panetti v. Quarterman, 551 US 930, 127 S Ct 2842, 168 L Ed 2d 662 (2007), Ford v. Wainwright, 477 US 399, 106 S Ct 2595, 91 L Ed 2d 335 (1986), and ORS 2 evidence that they proffered. Instead, after discharging Simrin and Goody at Haugen's 1 request, Judge Guimond permitted Haugen to withdraw the motion. Judge Guimond then 2 conducted a colloquy with Haugen and issued a death warrant. 3 This court issued its alternative writ of mandamus on June 29, 2011. This 4 court explicitly ordered Judge Guimond to conduct a new "evidentiary hearing" and, at 5 that hearing, to permit "Simrin and Goody" to "offer evidence pertinent to * * * the 6 question of whether defendant Haugen is competent for the purposes of being executed." 7 (Emphases added.) The terms and context of that order required Judge Guimond to 8 conduct the evidentiary hearing that Simrin and Goody had sought and to hear the 9 evidence that they had proffered. This court's direction to Judge Guimond was not 10 limited to ensuring that Haugen was represented by competent counsel or was mentally 11 competent to waive his right to counsel. This court ordered Judge Guimond to reinstate 12 Simrin and Goody -- lawyers who intended to challenge Haugen's competence to be 13 executed -- and to permit them to present evidence pertaining to that challenge -- the 14 testimony of Dr. Lezak. 15 This court anticipated that, at the evidentiary hearing that it ordered, the 16 state and Haugen would take the position that Haugen is mentally competent to be 17 executed. This court anticipated that Simrin and Goody would take the contrary position 18 that Haugen is not mentally competent to be executed and to offer Dr. Lezak's testimony 19 137.463(6)(a). 3 to prove that fact. This court adhered to the view that "truth * * * is best discovered by 1 powerful statements on both sides of the question[,]" United States v. Cronic, 466 US 2 648, 655, 104 S Ct 2039, 80 L Ed 2d 657 (1984) (internal citations omitted), and issued 3 its writ to ensure that the issue of Haugen's mental competence to be executed would be 4 tested, as our system tests all questions of fact, by subjecting it to the crucible of the 5 adversary process. 6 This court now knows that Simrin and Goody no longer represent Haugen 7 and that no lawyer has filled the role that it anticipated that Simrin and Goody would fill. 8 No lawyer has challenged Haugen's mental competence to be executed or presented 9 Lezak's opinion that he is incompetent. Because Judge Guimond has not heard or 10 considered that challenge or that evidence, this court cannot conclude that Judge 11 Guimond "has complied" with this court's order. 12 When this court entered its order dismissing the alternative writ of 13 mandamus, it acted prematurely. ORS 34.250(6) provides that if the judge or court 14 whose action is being challenged by a petition for a writ of mandamus "performs the act 15 * * * required by the alternative writ," the relator shall notify, and the judge, court, or any 16 party may notify, the Supreme Court that the judge or court "has complied." (Emphases 17 added.) In this case, after this court entered its writ, Judge Guimond notified this court 18 that he "would comply," and this court dismissed its writ on that basis. In fact, however, 19 neither the relator, the judge, nor any party has notified us that Judge Guimond "has 20 complied" with this court's order as ORS 34.250(6) requires. At the time that the court 21 entered its order of dismissal, Judge Guimond had not held an evidentiary hearing as to 22 4 Haugen's mental competence to be executed, and this court did not know what evidence 1 he would consider on that issue. This court should recall its order of dismissal and enter 2 further orders enforcing and, if necessary, clarifying its writ. 3 This court should order Judge Guimond to vacate the findings and 4 conclusions that he entered on October 7, 2011, stay Haugen's execution, and hold an 5 evidentiary hearing on the issue of Haugen's mental competence to be executed. This 6 court should order Judge Guimond to grant Simrin and Goody the status necessary to 7 permit them to challenge Haugen's mental competence, or appoint alternate counsel to 8 serve in that role. See Wright v. Thompson, 324 Or 153, 157, 922 P2d 1224 (1996) 9 (assuming, arguendo, that Oregon law may provide third-party standing to seek relief for 10 an incompetent convicted defendant); Ford v. Haley, 179 F3d 1342 (11th Cir 1999) 11 (capital defendant's former lawyer retained standing to file appeal challenging district 12 court's finding that capital defendant is mentally competent to discharge former counsel 13 and its dismissal of habeas action); Mason by and through Marson v. Vasquez, 5 F3d 14 1220, 1223 (9th Cir 1993) (for purpose of competency hearing, court permitted 15 participation of lawyer that defendant had discharged); and Lenhard v. Wolff, 603 F2d 91, 16 92-93 (9th Cir 1979) (per curiam) (dismissing writ of habeas corpus filed by capital 17 defendant's former lawyers for lack of standing, but suggesting that result would have 18 been different if there had been evidence that defendant was incompetent). This court 19 should require Simrin and Goody, or alternate counsel, to present relevant evidence of 20 Haugen's incompetence, including Dr. Lezak's assessment, opinion, and testimony. 21 Finally, this court should grant Judge Guimond the alternative of contesting this court's 22 5 order and proceeding with briefing and oral argument. 1 Clearly, those are actions that this court has the jurisdiction and authority to 2 order. Article VII (Amended), section 2, of the Oregon Constitution expressly confers on 3 this court authority to, "in its own discretion, take original jurisdiction in mandamus * * * 4 proceedings." If this court chooses to exercise that discretion (as it did in this case when 5 it originally issued its June 29 order allowing the requested alternative writ of 6 mandamus), it has at its disposal "all the means to carry [that jurisdiction] into effect[,]" 7 ORS 1.160,2 including, particularly, the authority to recall its own erroneous dismissal of 8 a writ so that it may enforce or clarify that writ or determine whether the acts required 9 have been performed.3 10 2 ORS 1.160 provides: "When jurisdiction is, by the Constitution or by statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding is not specifically pointed out by the procedural statutes, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the procedural statutes." 3 The authority of this court and, indeed, of any court of record in this state, to act to recall its previous orders cannot be denied. See, e.g., Bailey v. Steele, 263 Or 399, 401, 502 P2d 586 (1972) ("the authority of a court to vacate or set aside its own judgments is an inherent power of all courts of record or of general jurisdiction and may be exercised without any special statutory authority"). This court has exercised that power previously, in the context of orders disposing of petitions for review. See, e.g., State v. Saner, 342 Or 254, 149 P3d 1213 (2006) (on own motion, vacating order denying review); Zimmerlee v. Baldwin, 330 Or 281, 6 P3d 1100 (2000) (vacating on own motion denial of petition for review 14 months later); Ponder v. Baldwin, 330 Or 281, 6 P3d 1100 (2000) (on own motion, granting reconsideration and withdrawing order denying review); Cooper v. Maass, 329 Or 10, 994 P2d 119 (1999) (on own motion, reconsidering 6 In this case, Judge Guimond's failure to hear and consider Dr. Lezak's 1 opinion that Haugen is incompetent to be executed presents serious constitutional 2 implications. The Eighth Amendment to the United States Constitution, applicable to the 3 states through the Fourteenth Amendment, prohibits a state from carrying out a sentence 4 of death when a prisoner is not competent to be executed. Panetti v. Quarterman, 551 5 US 930, 127 S Ct 2842, 168 L Ed 2d 662 (2007); Ford v. Wainwright, 477 US 399, 106 S 6 Ct 2595, 91 L Ed 2d 335 (1986). If a prisoner makes "'a substantial threshold showing of 7 insanity,' the protection afforded by procedural due process includes a 'fair hearing' in 8 accord with fundamental fairness." Panetti, 551 US at 949 (quoting Ford, 477 US at 426 9 (Powell, J., concurring)). Such a hearing must include the opportunity to submit 10 "'evidence and argument from the prisoner's counsel, including expert psychiatric 11 evidence that may differ from the State's own psychiatric examination.'" Id. at 950 12 (quoting Ford, 477 US at 427 (Powell, J., concurring)). To ensure that Oregon acts 13 consistently with those constitutional mandates, Oregon law requires that a trial judge 14 conduct a death warrant hearing in every case in which a defendant is sentenced to death, 15 make an "appropriate inquiry" as to the defendant's mental capacity, and make findings 16 petition for review previously denied and withdrawing order denying review). Although, as indicated, the power to correct may be exercised without any special statutory authority, there also are statutes that explicitly address that authority. See, e.g., ORCP 71A, C (providing that certain errors may be corrected by trial court at any time on its own motion and that "[t]his rule does not limit the inherent power of a court to modify a judgment within a reasonable time"); ORS 19.270(6)(a) (appellate court, which normally loses jurisdiction over cause when appellate judgment issues, retains jurisdiction to "[r]ecall the appellate judgment as justice may require"). 7 on the record on that issue. ORS 137.463(2), (4)(a). 1 When this court reviewed the letter from Simrin and Goody that it 2 construed as a petition for a writ of mandamus, it was not convinced that the death 3 warrant hearing that Judge Guimond had conducted on May 18, 2011, satisfied those 4 constitutional and statutory requirements. This court knew that a man's life hung in the 5 balance, and it was not willing to tolerate the risk that, because Judge Guimond had failed 6 to conduct an evidentiary hearing on the issue of Haugen's mental competence and to 7 consider the expert evidence of Haugen's mental incompetence that his lawyers had 8 proffered, Judge Guimond had wrongly issued a death warrant. See Beck v. Alabama, 9 447 US 625, 637-38, 100 S Ct 2382, 65 L Ed 2d 392 (1980) (Supreme Court decided that 10 it could not tolerate a risk created by the lack of a different procedural safeguard -- the 11 opportunity for a jury to consider convicting the defendant of a lesser-included offense). 12 Death is different in kind from all other sentences and requires heightened 13 judicial scrutiny: 14 "[T]he penalty of death is qualitatively different from a sentence of 15 imprisonment, however long. Death, in its finality, differs more from life 16 imprisonment than a 100-year prison term differs from one of only a year 17 or two. Because of that qualitative difference, there is a corresponding 18 difference in the need for reliability in the determination that death is the 19 appropriate punishment in a specific case." 20 Woodson v. North Carolina, 428 US 280, 305, 96 S Ct 2978, 49 L Ed 2d 944 (1976). See 21 also Lockett v. Ohio, 438 US 586, 605, 98 S Ct 2954, 57 L Ed 2d 973 (1978) (when 22 choice is between life and death, risk of improper sentence is "unacceptable and 23 incompatible with the commands of the Eighth and Fourteenth Amendments"). "Oregon 24 8 law also has long imposed stricter safeguards on potential capital cases than on other 1 criminal proceedings." State v. Wagner, 305 Or 115, 189, 752 P2d 1136 (1988) (Linde, 2 J., dissenting), vac'd and rem'd sub nom, Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 3 106 L Ed 2d 583 (1989). 4 The majority agrees that death is, indeed, different, see State v. Haugen, 5 349 Or 174, 203, 243 P3d 31 (2010) ("To state the obvious, the penalty of death is 6 different in kind from incarceration"), and apparently assessed OCRC's request that we 7 enforce our writ of mandamus in that light. However, in declining to take action in 8 response to the information that OCRC provided, the majority does not meet this court's 9 obligation to see that Judge Guimond follows the constitutional and statutory procedures 10 necessary to ensure the reliability of his decision. 11 The majority concludes that Judge Guimond "has complied" with this 12 court's order because it does not interpret the writ to require Judge Guimond to consider 13 Dr. Lezak's opinion. In the majority's view, it is enough, under the express terms of the 14 writ, that Haugen had counsel -- Scholl -- and that Scholl chose not to present Dr. Lezak's 15 opinion. The problem with that view is that Scholl's representation does not meet the 16 terms or the purpose of the writ. The terms and purpose of the writ require that Judge 17 Guimond hear from lawyers who take a position contrary to Haugen's and consider expert 18 evidence that Haugen is mentally incompetent to be executed. In the affidavit that Scholl 19 filed with this court, Scholl acknowledges that he did not advocate for that position or 20 present that evidence. Scholl explains his belief that he is ethically required to abide by 21 Haugen's decisions and to advance Haugen's personal position as Haugen directs. 22 9 The stark problem that this court faces is that two sets of lawyers have 1 reached two contrary conclusions as to Haugen's mental competence to be executed. If 2 Haugen is mentally competent, then he is entitled to determine his legal strategy and ask 3 to be executed. Scholl represents that position. If Haugen is not mentally competent, the 4 court must appoint lawyers to represent his best interests and advance legal positions in 5 accordance with those interests. Simrin and Goody represent that position.4 No neutral 6 judge has decided which of those two sets of lawyers is correct. To this date, Judge 7 Guimond has not conducted an evidentiary hearing at which one side contends that 8 Haugen is competent, and the other side takes the contrary position, and presents Dr. 9 Lezak's testimony and other evidence in support of that position, as Simrin and Goody 10 were prepared to do. Haugen may be correct that he is mentally competent to be 11 executed, and he certainly is entitled to the assistance of counsel in pressing that point. 12 However, Oregon law requires a neutral judge, and not Haugen or lawyers acting at his 13 direction, to decide that question of fact. ORS 137.463(4)(a). And a neutral judge cannot 14 make that decision until the judge conducts a "fair hearing" in accordance with the 15 Constitution of the United States and makes an "appropriate inquiry" as required by 16 4 That fact that Simrin and Goody questioned Haugen's mental competence is an important factor in assessing Haugen's contentions that Simrin and Goody had a conflict of interest and should not have had him examined by Dr. Lezak or disclosed her opinion to the court. The ethical rules anticipate that a lawyer may need to take action against a client's personal wishes when the client suffers from diminished capacity. See Oregon Rules of Professional Conduct (RPC) 1.14(b) (lawyer may take necessary action to protect client with diminished capacity even if action against client's wishes). 10 Oregon law, considering not only the evidence that Haugen, or lawyers acting at his 1 direction, wish to offer, but also the evidence of Haugen's incompetence. See Panetti, 2 551 US at 949 (requiring "fair hearing"); ORS 137.463(4)(a) (requiring "appropriate 3 inquiry"). 4 The majority decides otherwise and finds significance in this court's denial 5 of Simrin and Goody's petition for a writ of mandamus, in which they objected to the 6 substitution of Scholl as counsel for Haugen. At the time that this court denied that 7 petition, however, this court did not know that Scholl would not proceed as Simrin and 8 Goody had and would not challenge Haugen's mental competence or offer relevant 9 evidence of Haugen's incompetence, including Dr. Lezak's testimony. Had Scholl done 10 so, there would have been no question that the terms and purpose of the writ had been 11 met. And, in any event, denial of a petition for writ of mandamus does not constitute a 12 ruling on the merits of the issues raised. See North Pacific v. Guarisco, 293 Or 341, 346 13 n 3, 647 P2d 920 (1982) (because mandamus is extraordinary and discretionary remedy, 14 denial of petition is not binding on determination of issue); State ex rel Venn v. Reid, 207 15 Or 617, 633, 298 P2d 990 (1956) (nothing said in denying writ "is res judicata as to the 16 merits of the controversy"). 17 The majority also suggests that Scholl's decision not to present Dr. Lezak's 18 opinion was manifestly correct and this court should defer to Scholl's expertise. The 19 majority notes that Scholl stated that he could have offered Dr. Lezak's affidavit if he had 20 thought that it would be useful, but that he had decided not to do so because the affidavit 21 "did not seem thorough or complete," and he "would not try to establish anyone's 22 11 incompetency in court or otherwise with the information in that document." However, 1 when OCRC filed Dr. Lezak's affidavit in this court, it did not intend that that affidavit 2 would substitute for Dr. Lezak's testimony. 5 It is therefore not surprising that Dr. Lezak's 3 affidavit summarized her conclusions and itself was not thorough or complete. If Simrin 4 and Goody, or alternate counsel, had been permitted to offer Dr. Lezak's opinion, they 5 certainly would have offered more than Dr. Lezak's affidavit. 6 In the affidavit that he filed with this court, Scholl does not aver that he had 7 actually interviewed Dr. Lezak to learn the basis for her conclusions or that he had asked 8 her for a more complete report. Nevertheless, Scholl decided that Haugen was mentally 9 competent and that he must abide by Haugen's directions. Whether Scholl was correct in 10 that decision is not, however, the question before us. The question before us is, instead, 11 whether Judge Guimond himself should hear, consider, and evaluate all of the relevant 12 evidence. 13 It is true that Judge Guimond held an evidentiary hearing on September 27, 14 5 As Simrin and Goody explained to this court in the letter that we construed as a petition for a writ of mandamus, the death warrant hearing that was held on May 18, 2011, was originally scheduled for May 13, 2011. Before that date, Simrin and Goody had been operating under the assumption that the hearing would be continued to give Dr. Lezak time to write a complete report and testify in person. However, on May 13, Judge Guimond agreed with the state that the applicable statute required the hearing to be conducted within 30 days of the issuance of the appellate judgment and, therefore, declined to continue it. Because Dr. Lezak was then out of the country, Simrin and Goody filed their own declaration summarizing Dr. Lezak's opinion. Later, as noted, Dr. Lezak also signed a sworn affidavit summarizing her conclusions, which OCRC attached to the petition for writ of mandamus that it filed with this court. 12 2011, and that Haugen had legal counsel at that hearing.6 But at that September hearing, 1 as at the May hearing, Judge Guimond again heard only the evidence that Haugen chose 2 to present. That Haugen was represented by counsel in September does not change the 3 fact that, on both occasions, Haugen controlled the evidence of his own competence that 4 Judge Guimond heard and considered. It is wrong for this court to refuse to acknowledge 5 that that circumstance resulted in a flawed procedure -- one in which Judge Guimond 6 failed to consider relevant expert evidence of Haugen’s incompetence. And it is wrong 7 for this court to refuse to correct that error. 8 I firmly believe that the writ that this court issued required Judge Guimond 9 to permit Simrin and Goody, or if necessary, other alternate lawyers, to present a 10 challenge to Haugen's mental competence to be executed and the opinion of Dr. Lezak 11 that Haugen is incompetent. If, however, because this court failed to anticipate Simrin 12 and Goody's discharge as counsel for Haugen, the writ was not sufficiently clear, then 13 this court should accept responsibility and issue a more specific order now. But either 14 way, this court should act.7 15 In a death warrant proceeding, it is the trial judge who decides whether, as a 16 matter of fact, a defendant who is sentenced to death is mentally competent to be 17 6 That hearing was continued on October 7, at which time Judge Guimond entered findings of fact and conclusions of law. 7 We also should not consider ourselves bound by the arguments of OCRC. We can determine the procedure that the constitution and statutes require and mandate that it be followed. 13 executed. ORS 137.463(4)(a). This court must ensure that the procedure that the trial 1 judge uses to make that factual decision accords with constitutional and statutory 2 mandates. If the required procedure is followed, then, like the rest of society, this court 3 trusts that whatever factual decision the trial judge makes will be the correct one. The 4 correct procedure helps ensure the reliability of the result. In a death warrant hearing, the 5 result affects not only the defendant, who has committed unthinkable crimes warranting a 6 death sentence, but also the people of this state who impose that penalty. For society, 7 what is at stake is "'our collective right as a civilized people not to have cruel and unusual 8 punishment inflicted in our name.'" Whitmore v. Arkansas, 495 US 149, 172,110 S Ct 9 1717, 109 L Ed 2d 135 (1990) (Marshall, J., dissenting) (quoting Franz v. Lockhart, 700 10 F Supp 1005, 1024 (ED Ark 1988)). The majority errs in concluding that the procedure 11 that has been followed in this case is sufficient to that end. 12 Every day I trust that truth will be the victor if the facts are subjected to a 13 fair adversary process. When I am assured that a fair process has been followed, I trust 14 the decision of the judge or jury to such an extent that I can join my colleagues in 15 affirming the sentence that results -- even a death sentence that will be carried out, at 16 least in part, in my name. But here, I have no such assurance, and I can neither trust nor 17 join. 18 I can only, respectfully, dissent. 19 De Muniz, C. J., and Durham, J., join in this dissenting opinion. 20 1 DE MUNIZ, C. J., dissenting. 1 I join with Justice Walters's dissent, but write separately in an effort to 2 clarify the issues, at least as they appear to me. 3 The alternative writ of mandamus that this court issued was clear on its 4 face. It expressly required the trial court to take certain actions or show cause for not 5 doing so. Those actions were: (1) order the Oregon Health Authority to assess Haugen's 6 mental capacity; (2) hold an evidentiary hearing to determine whether, as a matter of law, 7 he was competent to be executed; and (3) permit lawyers Simrin and Goody -- identified 8 by name in the writ -- to submit evidence regarding Haugen's capacity to make a 9 competent, knowing and voluntary waiver of his right to counsel, as well as evidence 10 pertaining to his mental competency. The trial court, for its part, agreed to follow the 11 requirements set out in the writ. 12 With regard to the competency hearing that was to follow, it is a certainty 13 that Simrin and Goody would have offered into evidence the opinion and testimony of 14 Dr. Muriel Lezak, Ph.D., a neuropsychologist licensed to practice psychology in Oregon 15 and a Professor Emerita, Neurology, at Oregon Health Sciences University -- that is, had 16 they been given the opportunity to do so. Dr. Lezak is an acknowledged authority in the 17 field of neuropsychology and her book, Neuropsychological Assessment, is recognized as 18 an authoritative text on the subject.1 At the behest of Simrin and Goody, Dr. Lezak 19 1 In U.S. v. Hammer, 404 F Supp 2d 676, 706 (2005) a United States District Court made the following findings regarding Dr. Lezak's professional credentials: 2 conducted a five-hour neuropsychological assessment of Haugen and executed a sworn 1 affidavit that was subsequently tendered to this court setting out her ultimate conclusions 2 in writing. In it, Dr. Lezak stated that, in her professional opinion, Haugen 3 "does not have a 'rational understanding' of the connection between the 4 crime and the punishment in this case. Instead, in my opinion he suffers 5 from a delusional disorder that makes him incompetent to be executed."2 6 She also stated that she was willing to testify regarding that opinion and the reasons 7 underlying it at a hearing. 8 The trial court, however, never afforded Dr. Lezak the opportunity to so 9 testify. Before her opinion could be received as evidence at Haugen's competency 10 hearing, the trial court granted Haugen's pro se motion to discharge Simrin and Goody, 11 and appointed new counsel to represent him. The trial court then granted a second pro se 12 request made by Haugen and excluded Dr. Lezak's opinion from consideration during the 13 "221. Muriel Lezak is an authority in the field of neuropsychology and she wrote the text, Neuropsychological Assessment. (U) [undisputed]." "222. Neuropsychological Assessment is an authoritative text in the field of neuropsychology." 2 As the Supreme Court held in Panetti v. Quarterman, 551 US 930, 960, 127 S Ct 2842, 168 L Ed 2d 662 (2007): "Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose. It is therefore error to derive from Ford and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted." 3 death warrant hearing.3 As a result, this court's express requirement in the writ that 1 Simrin and Goody be permitted to submit evidence regarding Haugen's mental 2 competence was not followed. As the court of last resort in this state, we should not 3 allow a mistake of that magnitude to go uncorrected. 4 If I appear jealously protective of the Oregon Supreme Court's authority in 5 this matter, it is because I am. The legislature has assigned this court an extraordinary 6 responsibility when a man or woman in this state has been sentenced to die for crimes 7 that they have committed. ORS 138.012(1) charges this court with "direct and automatic 8 review" of a death sentence, an appellate procedure that takes place whether or not a 9 defendant asks for it. See ORAP 12.10 (1) (automatic review of death sentence occurs 10 without defendant filing notice of appeal). The purpose of our automatic review is to 11 ensure to a legal certainty that the trial courts have fully and fairly carried out the 12 processes leading to the execution of a human being, including the careful consideration 13 of all relevant evidence. 14 In this case, we determined that lawyers Simrin and Goody must be 15 permitted to submit evidence from Dr. Lezak regarding Haugen's competency to the trial 16 3 The fact that the trial court apparently sealed Dr. Lezak's written assessment of Haugen's competence in September 2011 is of no moment here. This court received Dr. Lezak's affidavit stating her ultimate conclusions in June 2011 as part of the documents originally submitted by the OCRC in this matter and it has freely considered those documents during its deliberations ever since. 4 court with the expectation that that evidence -- like all the evidence that preceded it -- 1 would be given due consideration. The trial court was entitled to give Dr. Lezak's 2 testimony and her opinions as much or as little weight as they deserved, and it was 3 certainly within the trial court's authority to allow Haugen to discharge his lawyers after 4 that evidence was taken. The trial court, however, was not authorized to simply ignore 5 evidence relevant to Haugen's competence to be executed, whether that was Haugen's 6 wish or not. 7 This court has the authority to "make and enforce all rules necessary for the 8 prompt and orderly dispatch of the business of the court[.]" ORS 2.120 (emphasis 9 added). It should do so here. The legislature has mandated that, after a death warrant 10 hearing has taken place, there shall be no appeal from a trial court's decision to issue the 11 resulting death warrant and set an execution date. ORS 137.463(8). As part of that 12 hearing, however, the legislature has also required Oregon trial courts to conduct an 13 "appropriate inquiry" into the defendant's mental condition and to "make findings on the 14 record whether the defendant suffers from a mental condition that prevents the defendant 15 from comprehending the reasons for the death sentence or its implication." ORS 16 137.463(4)(a). This court's purpose in issuing a writ of mandamus here was to ensure 17 absolute compliance with those procedures before a nonappealable death warrant was 18 issued and Haugen's execution date was set. A death warrant proceeding in which 19 relevant evidence goes unconsidered by a trial court, in direct contravention of a 20 determination made by this court, is not the "appropriate inquiry" statutorily mandated by 21 the legislature, and is not consistent with state and federal constitutional requirements. 22 5 Haugen has repeatedly expressed his desire to be executed, and he may well 1 be legally competent to receive that penalty for his horrible crimes. His desire to be put 2 to death, however, does not excuse this court's failure to require strict adherence to the 3 legislature's mandated procedures in this, and every other, death penalty proceeding. 4 I respectfully dissent. 5 Durham and Walters, JJ., join this dissenting opinion. 6 7

1348dd7f0902bd279f51fea3444b8a1688251e85805cdab84ebfaa9467675e71

2011-11-21T00:00:00Z

7fa52147-b3f8-4485-88c1-a7c7044fbc01

Kain v. Myers (Certification)

oregon

Oregon Supreme Court

FILED: DECEMBER 31, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON KRIS KAIN and TRICIA BOSAK, Petitioners, v. HARDY MYERS, Attorney General, State of Oregon, Respondent, and BILL SIZEMORE, Intervenor. (SC S48796) En Banc On modified ballot title filed December 20, 2001.* No appearance by petitioners. Jennifer S. Lloyd, Assistant Attorney General, Salem, filed the filing of modified ballot title for respondent. With her on the filing were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). *333 Or 75, ___ P3d ___ (December 13, 2001) (referring ballot title for modification). The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 91 (2002), failed to comply substantially with statutory standards. Kain v. Myers, 333 Or 75, ___ P3d ___ (December 13, 2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 91 (2002) states: "AMENDS CONSTITUTION: PUBLIC EMPLOYERS IN UNIONIZED WORKPLACE CANNOT SIGN CERTAIN LABOR CONTRACTS, UNIONS NOT REPRESENT NONMEMBERS "RESULT OF 'YES' VOTE: 'Yes' vote prohibits public employers in unionized workplace from signing contracts requiring union nonmembers to pay money to union; union may refuse to represent nonpayers. "RESULT OF 'NO' VOTE: 'No' vote rejects amendment prohibiting public employers from signing contracts requiring union nonmembers to pay money to union; retains laws requiring unions to represent nonpayers. "SUMMARY: Amends constitution. Currently, public employers in workplace where majority of employees have voted to be represented by union may sign labor contracts requiring employees who are not union members to make payments in lieu of dues to union for representation in collective bargaining. Unions must represent all employees in bargaining unit, including nonmembers. Measure prohibits public employers in unionized workplaces from signing contracts requiring nonmember employees to pay money to union for any purpose and from deducting money from paycheck of any nonmember for transfer to union without employee's authorization. Unions not required to represent public employees who are not union members or who do not pay for union services. Prohibits discrimination against public employees for not joining or being represented by union. Other provisions." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9).

1f7378dc380e0d24401c155ff40a445c0b4e77bf8684ddd7833b7e5aff23eaa9

2001-12-31T00:00:00Z

10b81e9a-a06c-44c4-84e8-51ce9ceac9f7

Shilo Inn v. Multnomah County

oregon

Oregon Supreme Court

Filed: December 20, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON SHILO INN Appellant, v. MULTNOMAH COUNTY, CITY OF PORTLAND, and PORTLAND DEVELOPMENT COMMISSION, Respondents, and DEPARTMENT OF REVENUE, Intervenor Below. (OTC 4370; SC S46816) On appeal from the Oregon Tax Court.* Carl N. Byers, Judge. Argued and submitted May 15, 2000. Gregory W. Byrne, Portland, argued the cause and filed the briefs for appellant. Jeannette N. Launer, Pacific City, argued the cause for respondent Portland Development Commission. With her on the brief were Sandra Duffy, Chief Assistant County Counsel, Portland, for respondent Multnomah County; Linda Meng, Chief Deputy City Attorney, Portland, for respondent City of Portland; Karen Williams, Portland, for respondent Portland Development Commission; Douglas M. Adair, Assistant Attorney General, Salem, and Hardy Myers, Attorney General, for intervenor Department of Revenue. Glenn Klein, of Harrang, Long, Gary, Rudnick, P.C., Eugene, filed the brief for amici curiae League of Oregon Cities and Association of Oregon Development Agencies. Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.** GILLETTE, J. The decision of the Tax Court is reversed and the case is remanded to that court for further proceedings. *15 OTR 36 (1999). **Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of the case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz and Balmer, JJ., did not participate in the consideration or decision of this case. GILLETTE, J. In this ad valorem property tax case, the issue is whether all taxes assessed on property located within an urban renewal area and used to pay urban renewal indebtedness must be characterized as taxes "raised to fund government operations other than the public school system," as that phrase is used in Article XI, section 11b(1), of the Oregon Constitution. The Oregon Tax Court held that they need not be so characterized. Shilo Inn Portland/205, LLC v. Multnomah County, 15 OTR 36 (1999). That court concluded that a part of the taxes in question that was disbursed to urban renewal agencies properly is characterized as taxes "raised specifically to fund the public school system," as that phrase is used in the same constitutional provision. Id. at 44-45. For the reasons that follow, we reverse the decision of the Tax Court. This case comes to us on review of the Tax Court's grant of summary judgment to the Portland Development Commission (PDC), which was one of the respondents in the Tax Court proceeding. No material facts are in dispute. Taxpayer owns two parcels of real property within the City of Portland. Each is located in an urban renewal area that was established by the city and PDC, which is an urban renewal agency, in 1986. The real market value of taxpayer's property for the 1998-99 tax year was $15,297,600, and the assessed value was $11,155,970. For the 1998-99 tax year, taxpayer paid $234,005.06 in ad valorem property taxes. Those taxes were distributed among the various taxing districts in which taxpayer's property is located, principally to the Parkrose School District, the City of Portland, Multnomah County, and to PDC. (1) Taxpayer contends, and respondents concede, that part of the taxes reflected on taxpayer's property tax bill as taxes for "schools" actually was disbursed to PDC. As taxpayer reads the constitution, however, Article XI, section 11b(1) (hereafter called "Measure 5"), (2) requires that all taxes ultimately disbursed by the tax collector to the urban renewal agency for payment of urban renewal indebtedness be treated as having been raised for a nonschool purpose and be added to the "government operations other than schools" amount shown on the tax statement. By a series of calculations, taxpayer arrives at the part of its property tax that was characterized as for "schools" that taxpayer contends instead was paid over to the urban renewal agency for the tax year in question. According to taxpayer, when that amount is subtracted from the amount on taxpayer's tax bill that is designated for schools, and is added to the amount on taxpayer's tax bill that is designated for government operations other than schools, the total amount of taxpayer's tax bill attributable to taxes for government operations other than schools becomes $159,099. (3) Taxpayer points out that, under Measure 5, the taxes that constitutionally could be imposed on its property for the 1998-99 tax year for government operations other than the public school system could not exceed $10 per $1,000 of the property's real market value -- in this case, $152,976. Because the $159,099 that taxpayer claims is attributable to government operations other than schools is $6,123 more than the amount that Measure 5 permits, taxpayer claims to have been overcharged by the taxing authority by that amount. (4) As noted, the Tax Court denied relief. To place the present dispute in context, some background is necessary. In 1990, the voters approved Measure 5, which added Article XI, section 11b, to the Oregon Constitution. Subsection (1) of that measure provides: "[T]axes imposed upon any property shall be separated into two categories: One which dedicates revenues raised specifically to fund the public school system and one which dedicates revenues raised to fund government operations other than the public school system. The taxes in each category shall be limited as set forth in the table which follows and these limits shall apply whether the taxes imposed on property are calculated on the basis of the value of that property or on some other basis: "MAXIMUM ALLOWABLE TAXES "Property tax revenues are deemed to be dedicated to funding the public school system if the revenues are to be used exclusively for educational services, including support services, provided by some unit of government, at any level from pre-kindergarten through post-graduate training." Or Const, Art XI, § 11b(1) (emphasis added). In addition, Measure 5 created a third category of property taxes for, among other things, "bonded indebtedness authorized by a specific provision of this Constitution." Or Const, Art XI, § 11b(3)(a). That last category was not subject to the foregoing limitations. Id. To address the situation in which taxes imposed by the various taxing districts exceed the limits for the school or nonschool categories, or for both, Measure 5 included a procedure for "compression" of taxes within each category. Subsection (4) of Article XI, section 11b, provides: "In the event that taxes authorized by any provision of this Constitution to be imposed on any property should exceed the limitation imposed on either category of taxing units defined in subsection (1) of this section, then, notwithstanding any other provision of this Constitution, the taxes imposed upon such property by the taxing units in that category shall be reduced evenly by the percentage necessary to meet the limitation for that category." (5) In 1997, the legislature proposed and the people adopted Measure 50, which repealed, among other things, the then-existing Article XI, section 11, and replaced it with an entirely new section 11. (6) Measure 50 transformed the ad valorem property tax scheme from a "levy-based" system to a "rate-based" system. Among its other effects, the measure reduced the assessed value of property to 10 percent below 1995 levels, Or Const, Art XI, § 11(1)(a), limited the amount of any increase in assessed value to three percent per year, Or Const, Art XI, § 11(1)(b), and required each "local taxing district" (7) to certify a "permanent limit on the rate of ad valorem property taxes imposed by the district for tax years beginning after July 1, 1997" (the "permanent rate"), Or Const, Art XI, § 11(3), to be applied to each property in that district. Simply stated, that permanent rate is calculated, first, by determining the taxes that could have been imposed for tax year 1997-98 under Measure 5, had Measure 50 not been adopted (and not taking into account Measure 47), then reducing that amount by 17 percent, and, finally, dividing those taxes by the assessed value of property in the district. Or Const, Art XI, §§ 11(3)(a)(A) and 11(3)(b). Measure 50 also includes a detailed compression formula to ensure that no district exceeds the "$5 (public school system) and $10 (other government)" limits. (8) Or Const, Art XI, § 11(11)(b) and (c). The foregoing constitutional provisions were superimposed on a tax scheme that already authorized the division of taxes to pay urban renewal indebtedness. Since 1960, property within an urban renewal area has been subject to "tax increment" financing, or division, under Article IX, section 1c, of the Oregon Constitution. (9) Under that constitutional provision and the statutory system that implemented it, urban renewal agencies, have had no authority to levy taxes themselves. Instead, the taxing districts in which an urban renewal area is located, such as cities, counties, and school districts, levy the taxes that ultimately are used to repay the indebtedness for urban renewal projects. The county assessor certifies the value of property located within an urban renewal area on the effective date of the adoption of the urban renewal plan (the "frozen value" or "frozen base") and segregates that amount from the (presumably higher) assessed value of the property for the later tax year in question. Then, taxes derived by imposing the district's tax rate on the frozen base are disbursed to the taxing districts that levied the tax, while taxes derived by applying that rate to the increase in property value over the frozen base are disbursed to the urban renewal agency to pay indebtedness incurred for the urban renewal project. Over the last decade, with the adoption of Measures 5 and 50, the procedures for allocating funds to pay urban renewal indebtedness have changed. Under the former, "levy-based" system, and before the adoption of Measure 5 in 1990, each taxing district notified the assessor of the amount of revenue to be raised for that district. In an urban renewal area, the assessor then calculated the levy rate for each taxing district by dividing the amount to be raised by the frozen value of the property in that district and then "extended" that rate to the entire assessed value of the property. Because the increase in property value over the frozen base, or increment, was excluded in setting the tax rate, applying the rate to the higher value generated funds beyond the budgeted needs of the taxing districts. The taxes generated on the frozen base were allocated to the budgeted requirements of the taxing districts, while the additional, often called "excess," taxes were allocated to the urban renewal agency. See Dennehy v. Dept. of Rev., 305 Or 595, 598-99, 756 P2d 13 (1988) (explaining that process). Measure 5, which, as noted, retained the levy-based system, did not mention urban renewal or redevelopment funding or otherwise provide a specific method for categorizing or dividing taxes that were to be applied for an urban renewal purpose. After the adoption of Measure 5 in 1990, the legislature amended the urban renewal statutes to reconcile the division of taxes for urban renewal purposes with the Measure 5 limits. See ORS 457.420 to ORS 457.450 (1991) (so providing). Under those statutes, urban renewal taxes were calculated in a manner similar to the pre-Measure 5 calculation method, that is, the taxing districts notified the assessor of the amount of taxes needed, the assessor then calculated a levy rate based on the frozen value and extended that rate to the increment to raise "excess" funds, which in turn were to be used to pay for urban renewal. However, the assessor's statutory duty to collect taxes that would be divided for urban renewal purposes expressly was made "subject to section 11b, Article XI of the Oregon Constitution [Measure 5]." ORS 457.440(6) (1991). (10) In 1996, the voters approved Measure 47, which, as we have explained, also was a constitutional amendment aimed at reducing and limiting property taxes. Like Measure 5, Measure 47 contained no references to urban renewal. Then, in 1997, the voters approved Measure 50, which replaced Measure 47. As noted, Measure 50 transformed the tax scheme from a levy-based system to a rate-based system and imposed new limits on the growth of property taxes. Unlike Measure 5 or Measure 47, Measure 50 does contain several provisions directly dealing with urban renewal taxes. The first references in Measure 50 to urban renewal taxes pertain to the calculation of the permanent rate. Subsection (3) of Article X1, section 11, specifically excepts from the mandatory 17 percent reduction in taxes, inter alia, taxes to pay bonded indebtedness and "taxes described in section 1c, Article IX of this Constitution," which authorizes taxes levied against the increase in value of directly affected properties to fund redevelopment or urban renewal programs. Or Const, Art XI, § 11(3)(a)(B). Only those reduced taxes, that is, those taxes that would have been imposed other than for bond repayment and urban renewal, are used to calculate the permanent rate. Or Const, Art XI, § 11(3)(b). The permanent rate, therefore, raises only the taxing districts' operating taxes; it is not intended to generate taxes that pay the cost of urban renewal. That conclusion is confirmed in subsection (3)(g) of Article 11, section 11, which provides: "Urban renewal levies described in this subsection shall be imposed as provided in subsections (15) and (16) of this section and may not be imposed under this subsection." (Emphasis added.) A necessary result of that scheme, however, is that the permanent rate does not generate sufficient taxes to pay both the various taxing districts' operating taxes and the taxes needed to pay existing urban renewal indebtedness. That is so because, under Measure 50, in existing urban renewal areas, the district's operating taxes themselves must be divided to fund urban renewal programs. Article XI, section 11(15), mandates in those circumstances that taxes on the increment be used "exclusively" for urban renewal. Or Const, Art XI, § 11(15). (11) At the same time, however, the new Measure 50 system does not contemplate the existence of "excess" taxes, as were generated under the old levy-based system, because the permanent rate is based on the entire assessed value of the property, not just the frozen base. Or Const, Art XI, § 11(3)(b). The remaining references in Measure 50 to urban renewal are located in subsections (15) and (16). Those provisions address the funding of existing and future urban renewal indebtedness. We turn first to subsection (15). In addition to its other effects, subsection (15) provides the mechanism for funding urban renewal programs instituted after the adoption of Measure 50. That section provides: "If ad valorem property taxes are divided as provided in section 1c, Article IX of this Constitution, in order to fund a redevelopment or urban renewal project, then notwithstanding subsection (1) of this section, the ad valorem property taxes levied against the increase shall be used exclusively to pay any indebtedness incurred for the redevelopment or urban renewal project." (12) As described above, a taxing district's permanent rate raises its operating taxes. If an urban renewal plan eventually is instituted in a district in which there was no urban renewal area when Measure 50 was adopted, then the assessed value of each property in the district on the date that the permanent rate was set necessarily would be equal to its frozen base. The increment would begin to accrue thereafter, as the urban renewal plan took effect. The urban renewal program, therefore, would be funded by the familiar process of extending the permanent rate against the increment and, under subsection (15) of Article XI, section 11, the taxes raised thereby would be used "exclusively to pay any indebtedness incurred for the redevelopment or urban renewal project." Subsection (16) of Article XI, section 11, by contrast, provides the mechanism for funding existing urban renewal programs. It directs the legislature to enact laws ensuring that indebtedness incurred to carry out existing urban renewal projects is repaid, with the caveat that urban renewal taxes still must not exceed the "dollar limits" set out elsewhere in Measure 50. That subsection provides: "The Legislative Assembly shall enact laws that allow collection of ad valorem property taxes sufficient to pay, when due, indebtedness incurred to carry out urban renewal plans existing on December 5, 1996. These collections shall cease when the indebtedness is paid. Unless excepted from limitation under section 11b of this Article, as modified by subsection (11) of this section, nothing in this subsection shall be construed to remove ad valorem property taxes levied against the increase from the dollar limits in paragraph (b) of subsection (11) of this section." (13) Or Const, Art XI, § 11(16). Paragraph (b) of subsection (11) of Article XI, section 11, provides, in turn, as follows: "The $5 (public school system) and $10 (other government) limits on property taxes per $1000 of real market value described in subsection (1) of section 11b of this Article shall be determined on the basis of property taxes imposed in each geographic area taxed by the same local taxing districts." Pursuant to the foregoing delegation of authority, the legislature that referred Measure 50 to the voters enacted legislation that, among other things, effectively grants urban renewal agencies limited taxing authority. Those agencies are permitted to impose a "special levy" to fund urban renewal programs existing before December 6, 1996. ORS 457.010(5)(a) (defining "existing urban renewal plan" as one that existed on December 6, 1996, the effective date of Measure 47); ORS 457.435(1) (authorizing special levies to pay indebtedness incurred for existing urban renewal plans). The special levy authority allows an urban renewal agency to make up for the shortfall caused by the Measure 50 reductions in assessed value and taxes. For purposes of Measure 5 and applicable statutes, special levies are treated as taxes for "government operations other than the public school system." OAR 150-457.440(9)(4)(d)(D); OAR 150-457.440(9)(5)(c)(F); OAR 150-457.440(9)(6)(e)(D). Second, the statutory scheme provides taxing districts in which existing urban renewal areas are located with an alternative to the permanent rate provided for in Article XI, section 11(3)(b). As discussed above, a district's constitutional permanent rate does not generate sufficient funds to pay existing urban renewal indebtedness. The legislature therefore created a substitute, "statutory rate limit" for tax years after 1997-98, for taxing districts in which urban renewal areas exist. ORS 310.236(4)(a)-(b). Simply stated, that statutory rate is calculated in a manner similar to the constitutional permanent rate, but taxes are divided by the frozen base, rather than by the entire assessed value of the property, as required by Article XI, section 11(3)(b). ORS 310.236(4)(b); ORS 310.232. As in the pre-Measure 50 scheme, excluding the increment in calculating the statutory tax rate and then imposing that rate on the assessed value of property in the district again results in the generation of "excess" funds (that is, funds in excess of the district's operating taxes), which are used to pay existing urban renewal indebtedness. In addition to the foregoing, the 1997 Legislature amended the procedures for assessing compliance with applicable constitutional limits and for collecting taxes to pay urban renewal indebtedness. The procedure that was in place during the tax year at issue in this case, and that remains in place today, generally is as follows: Each taxing district files a written notice with the assessor certifying, among other things, its ad valorem property tax rate to be imposed on properties within the district, which must be within either the constitutional or statutory permanent rate limit. ORS 310.060(2)(a). That notice must be accompanied by a validly adopted ordinance or resolution (14) designating the taxes as either subject to or not subject to the Measure 5 limits and "identified by the categories set forth in ORS 310.150." ORS 310.060(1). In addition, the notice itself must list which rates are subject to the Measure 5 limits, identified by the categories of taxes set out in ORS 310.150. ORS 310.060(3)(a). ORS 310.150, in turn, generally restates the Measure 5 categories of taxes, viz., school, other government, and exempt bonded indebtedness. ORS 310.150(1)(a) to (c). Notably, however, ORS 310.150(7) expressly directs each taxing district to characterize its tax rates without regard to the fact that part of the taxes raised as a result of application of that rate to the entire assessed value, including the increment, will be used to fund urban renewal: "The determination of the appropriate category for an item of tax is based on the tax as certified by the taxing district under ORS 310.060 and not based on the tax imposed on the urban renewal increment as described in ORS chapter 457." In addition, if a taxing district incorrectly categorizes the taxes as subject to or not subject to the Measure 5 limits, ORS 310.070 directs the Department of Revenue to so notify the taxing district and the assessor, and then requires the assessor to extend the taxes on the rolls in a manner that is consistent with the constitution. ORS 310.070(1). That statute provides, further, that taxes are categorized incorrectly only if the taxing district does not have statutory authority to impose a tax in a particular category or if the Oregon Tax Court or this court has determined that the correct manner for categorizing the tax is different. ORS 310.070(2). The assessor synthesizes the notices filed by all the taxing districts in the county into "code areas," which represent "all of the various combinations of taxing districts * * * in which a piece of property was located in the county * * *." ORS 310.147(1). For each code area, the assessor computes a tentative consolidated ad valorem property tax rate, which is the sum of all the rates identified on the notices as being within each category set out in ORS 310.150. ORS 310.090; ORS 310.147(2). The assessor then determines if the amount of tax that will be imposed on the properties in each category under the tentative consolidated ad valorem property tax rate is within the applicable constitutional limits and, if the amount in either or both of the categories is not within the limits, then the assessor compresses all the rates in the affected category proportionately to ensure compliance with those limits. ORS 310.150(3) to (6). The assessor thereby arrives at a consolidated tax billing rate, which ultimately serves as the basis for the tax statement sent out to each property owner. ORS 310.153; ORS 311.105 to 311.115. Meanwhile, the urban renewal agency notifies the assessor of the amount of money that needs to be raised to pay urban renewal indebtedness through the division of taxes and any special levy. ORS 457.440(2). To ensure that the amount requested through the division of taxes will be available for distribution to the urban renewal agency, the assessor also determines the maximum amount available for urban renewal by extending the consolidated tax billing rate for each code area in which an urban renewal area is located against the increment in that code area. (15) ORS 457.440(5). The assessor certifies that amount to the tax collector. ORS 457.440(6)(a). Once the taxes have been collected, the county treasurer distributes the taxes derived from the increment to the urban renewal agency and distributes the remaining funds to the taxing units that levied the taxes. Id.; ORS 310.390; ORS 310.395(5) to .395(6). Under the foregoing statutory procedures, for the tax year in question, the "school" taxing districts in taxpayer's tax code area notified the assessor of their rates. The assessor then used the total amount of taxes generated by imposing those rates on the assessed value of the properties in the area to evaluate compliance with the Measure 5 limits for "school" taxes, and compressed, if necessary. Later, that total amount of collected taxes was divided, and the part of those taxes attributable to the urban renewal increment was disbursed to PDC. Thus, a part of the taxes that were levied by extending the school taxing districts' rates to the assessed value of taxpayer's property for the 1998-99 tax year ultimately was not used "to fund the public school system," at least as Measure 5 defines that phrase. However, that part was not placed in the "other than schools" category on taxpayer's property tax statement or treated as falling in that category for purposes of assessing compliance with the Measure 5 ad valorem property tax limits. The issue in this case is whether Measure 5, Measure 50, or both, required the assessor to treat that part as "revenue [dedicated] to fund government operations other than the public school system." Measure 5 was an initiative measure, while Measure 50 was referred to the voters by the legislature. When we interpret either initiated or referred constitutional provisions, we attempt to discern the intent of the voters. Stranahan v. Fred Meyer, Inc., 331 Or 38, 56-57, 11 P3d 228 (2000). That is so because, "with respect to [such] provisions, it is the people's understanding and intended meaning of the provision in question * * * that are critical to [this court's] analysis." Id. at 57. The best evidence of the voters' intent is the text of the provision itself. Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 559, 871 P2d 106 (1994); Roseburg School Dist. v. City of Roseburg, 316 Or 374, 378, 851 P2d 595 (1993). If the voters' intent is clear after consideration of text and context, then the court's inquiry is over. Ecumenical Ministries, 318 Or at 559. The court, however, will not lightly conclude that the text is so clear that further inquiry in unnecessary. If any doubt remains, the court will consider the history of an initiated or referred constitutional provision in an effort to resolve the matter. Id. As noted, taxpayer's principal argument focuses on the wording of Article XI, section 11b(1). We, too, start with that section. The first sentence of section 11b(1) requires the "separat[ion]" of "taxes" into categories. It provides: "[T]axes imposed upon any property shall be separated into two categories: One which dedicates revenues raised specifically to fund the public school system and one which dedicates revenues raised to fund government operations other than the public school system." Taxpayer contends that that wording unambiguously requires the assessor to evaluate compliance with the Measure 5 limits by considering the ultimate use to which the tax revenues will be put, regardless of the character of the taxing district whose rate was extended to generate those revenues. We agree with taxpayer that the plain wording of the first sentence of subsection (1) indicates that it is the taxes imposed, and not particular taxing districts, that are to be separated into categories and, accordingly, that it is the rates derived by reference to those taxes, and not the rates of particular taxing districts generally, that are to be limited. The last sentence of subsection (1) confirms that interpretation by setting out, effectively, a definition of property tax revenues "raised specifically to fund the public school system." That sentence provides: "Property tax revenues are deemed to be dedicated to funding the public school system if the revenues are to be used exclusively for educational services, including support services, provided by some unit of government, at any level from pre-kindergarten through graduate training." (Emphasis added.) The emphasis in the first and last sentences is on the taxes themselves, the purpose to which those taxes are dedicated, and the use to which those taxes are to be put. It also is noteworthy that subsection (1) does not refer to the taxing districts that impose those taxes, except to the extent that it refers indirectly to those districts that use the taxes dedicated to educational services. In spite of the foregoing, the Tax Court concluded, essentially, that other text in Article XI, section 11b, dictates a different conclusion. That court pointed to subsection (4) of Article XI, section 11b, which provides that, in the event that property taxes "exceed the limitation imposed on either category of taxing units defined in subsection (1) * * * the taxes imposed upon such property by the taxing units in that category shall be reduced evenly by the percentage necessary to meet the limitation for that category." (Emphasis added.) Relying in part on its earlier opinion in Glenn v. Morrow Cty. Unified Recreation Dist., 14 OTR 344 (1998), the Tax Court concluded that the foregoing provision demonstrates that "the constitution's emphasis is on the governmental unit categorizing the tax and not on the use of the tax." Shilo Inn, 15 OTR at 42. In a similar vein, the court concluded that, "'[a]s enacted by the people, section 11b evidences an intent to limit the taxes imposed by each category based upon the function of the unit of government imposing the tax.'" Id. (quoting Glenn, 14 OTR at 352). The Tax Court had attempted to reconcile the different wording (i.e., "taxes," "revenues," and "taxing units") in subsections (1) and (4) in its earlier case, Glenn. In that case, the court stated that the wording of subsection (4) suggests that every taxing district falls into one of the two ("school" and "other") Measure 5 categories and the limitation, therefore, is on the category of taxing unit. 14 OTR at 351. The Tax Court in Glenn acknowledged that that interpretation was "somewhat at variance with the language in subsection (1)" but reasoned that, in light of the fact that Measure 5 provides no mechanism for tracking actual expenditures of tax dollars, the limitations on taxes in Measure 5 must be based on their intended use. Id. It follows, according to the Tax Court, that the voters must have presumed an identity between the category or function of a taxing district and the purpose for which the taxes are raised by that taxing district. (16) Id. at 352. As a starting point, we agree with the Tax Court that, in employing different phraseology in subsections (1) and (4), the voters well may have assumed an identity between the function of the taxing district imposing a tax and the use to which that tax will be put. However, in the case of taxes raised for urban renewal by extending a school taxing district's rate to the increment, there is no such identity in fact. In light of the statutory scheme that was in effect when Measure 5 was adopted, and in light of the present constitutional and statutory scheme, we cannot conclude that taxes levied on the increment to fund urban renewal were, or are, "dedicated to funding the public school system" or "used exclusively for educational services," regardless of the function of the taxing district whose rate was used to generate the tax. The tax rates of school taxing districts, together with the rates of all the other taxing districts in an urban renewal area, have always been used to calculate the amount of taxes to be paid for urban renewal purposes. Former ORS 457.440(4) (1989), in place when Measure 5 was adopted, directed that the taxes so generated "shall be used to pay the principal and interest or indebtedness incurred by the [urban renewal] agency to finance or refinance the carrying out of the urban renewal plan." Moreover, Measure 50 placed a similar mandate in the constitution. Under Article XI, section 11(15), taxes on the increment expressly are dedicated "exclusively to pay any indebtedness incurred for the redevelopment or urban renewal project." Put differently, those directives affirmatively establish that taxes on the increment that are based on the extension of a school taxing district's rate have not been, and are not, "dedicated to funding the public school system," as Measure 5 defines that latter phrase. Measure 5 itself contains no reference to urban renewal. It may be that, in adopting that measure, the voters did not anticipate a situation in which, as we have shown, there is a lack of identity between the function of the taxing district and the use to which at least part of the tax derived from extending that taxing district's rate is put. Indeed, we may assume that the disparate wording of subsections (1) and (4) arose out of an expectation that the principal function of a taxing district always would be identical to the use made of a tax generated by extending that district's rate. But it does not follow that, in a case in which there is no such identity, the voters intended the function of the taxing district imposing the tax, rather than the intended use of the tax, to determine the appropriate category for evaluating compliance with the Measure 5 limits. This court has stated that the "basic directive" of Measure 5 is to "limit[] the taxes that may be imposed on any property by limiting the tax rates." Coalition for Equit. School Fund. v. State of Oregon, 311 Or 300, 310, 811 P2d 116 (1991). Thus, the limits themselves are featured prominently -- they are set out at the beginning of the measure, in subsection (1) of Article XI, section 11b, and provide its foundation. Essential to the implementation of those limits are the categories to which they apply. In keeping with that position of prominence, subsection (1) is drafted in specific terms, even to the point that it contains an explanation of the categories and a definition of one of them, viz., property tax revenues "dedicated to funding the public school system." Subsection (4), by contrast, merely provides a procedural mechanism -- compression -- for ensuring that the limits on rates of taxation set out in subsection (1) are not exceeded. The subsection refers to and is dependent on "the limitation imposed on either category of taxing units defined in subsection (1)." (Emphasis added.) Subsection (1) does not "define" categories of taxing units. Thus, in spite of its use of the words "taxing units" rather than "taxes," that reference to "either category * * * in subsection (1)" only can be read to refer to the two categories that actually are labeled as such in subsection (1), viz., the category of taxes dedicated to funding the public school system, and the category of taxes dedicated to funding the rest of government. The cross-reference in subsection (4) shows that we must turn to subsection (1) for insight concerning the parameters of the pertinent categories, and not vice versa. As we have explained, when the inquiry is made in that way, it is clear that taxes devoted to urban renewal do not fall within the description of use for the public school system found in subsection (1). We recognize that the description of the compression scheme in subsection (4) is not a perfect analytical fit. Specifically, that subsection requires the even reduction of "the taxes imposed upon * * * property [on which the taxes exceed the Measure 5 limits] by the taxing units in that category * * * by the percentage necessary to meet the limitation for that category." Further, it provides that the "percentage used to reduce the taxes imposed shall be calculated separately for each category and may vary from property to property within the same taxing unit." That wording appears to assume that the taxing district's rate would be reduced as a whole and then applied to the entire assessed value. The wording does not address different reduction percentages for the frozen base and for the increment, or the reduction of one but not the other, either of which might become necessary in the event that the school and other-government limits within an urban renewal area are exceeded to varying degrees, or in the event that one limit is exceeded but the other is not. Having noted that seeming anomaly in subsection (4), however, we nevertheless conclude that the wording of that subsection provides no basis for overriding the clear import of the wording of subsection (1), nor does it otherwise justify a contrary interpretation of Measure 5's categories. Based on the foregoing, we conclude that, in a case in which there is an arguable inconsistency between the purpose for which a tax is raised and the function of the taxing district whose rate is the source of the tax, subsection (1), which describes the categories in terms of the purpose of the tax, controls. That is, in adopting section 11b, the voters limited taxes according to their intended use, not according to the principal function of the taxing district whose rate generated those taxes. (17) Having concluded that Measure 5, standing alone, requires the categorization of urban renewal taxes according to their intended use, we examine whether any provision in Measure 50 signals the voters' intent to alter that scheme. Measure 50 contains three references to categories of taxing districts, all of which are found in subsection (11)(c)(B) of Article XI, section 11. That subsection provides: "If property taxes exceed the limitations imposed under either category of local taxing district under paragraph (b) of this subsection: "(i) Any local option ad valorem property taxes imposed under this subsection shall be proportionally reduced by those local taxing districts within the category that is imposing the local option ad valorem property taxes; and "(ii) After local option ad valorem property taxes have been eliminated, all other ad valorem property taxes shall be proportionally reduced by those taxing districts within the category, until the limits are no longer exceeded." (Emphasis added.) As is evident from the foregoing, all three references in Measure 50 to categories of taxing districts are contained in the part of that constitutional amendment dealing with compression of property taxes in the event that those taxes exceed the Measure 5 limits. The Measure 50 compression provisions do not modify the compression procedure set out in Measure 5, except to the extent that they ensure that local option taxes that are authorized separately by Measure 50 also are included in the procedure. Under the circumstances, we conclude that the fact that subsection (11) of Measure 50 is consistent with subsection (4) of Measure 5 is no evidence of the voters' intent to change the directive in subsection (1) of Measure 5 to limit taxes according to their intended purpose. The Tax Court found support for its contrary conclusion in another paragraph of Article XI, section 11(11), as well as in Article XI, section 11(15), and Article XI, section 11(16). For the reasons that follow, we conclude that, in each case, the Tax Court's reliance was misplaced. Article XI, section 11(11)(b), provides: "The $5 (public school system) and $10 (other government) limits on property taxes per $1,000 of real market value described in subsection (1) of section 11b of this Article shall be determined on the basis of property taxes imposed in each geographic area taxed by the same local taxing districts." With regard to that provision, the Tax Court stated: "[Section 11(11)(b)] uses terms indicating that the limits of 11b are based on the taxes imposed, not the taxes expended. Specifically, section 11(11)(b) states that the limits 'shall be determined on the basis of property tax imposed in each geographic area taxed by the same local taxing districts.' * * * Although section 11b obviously contemplated that taxes would be used for the purposes as categorized, it contains no mechanism for ascertaining or verifying the actual expenditure of taxes. It provides only for the categorization at the time of imposition. Consequently, if taxes are properly categorized and the rate imposed in each category is within the limits of section 11b, that is the end of the 11b inquiry." Shilo Inn, 15 OTR at 44 (emphasis added by Tax Court). We find the Tax Court's reliance on the fact that neither Measure 5 nor Measure 50 provides a "mechanism for ascertaining or verifying the actual expenditure of taxes" to be something of a non-sequitur. Both measures are tax limitation provisions. Certainly, one need not trace every dollar spent by a taxing district to see that taxes on the increment (no matter which taxing district's tax rate was extended to raise them) that are distributed to an urban renewal agency to pay for urban renewal projects are not "raised specifically to fund the public school system." Turning to the essence of the Tax Court's analysis of subsection (11)(b), we observe that, in the material quoted above, the court focused on the reference in subsection (11)(b) to "taxes imposed" when describing how compliance with the Measure 5 limits should be evaluated. Based on that wording, the court determined that each taxing district must categorize its tax rate as either "school" or "other government" at the time that it is imposed. In the Tax Court's view, the inquiry is over at that point: A statutory scheme that allows some urban renewal taxes to be treated as "dedicated to funding the public school system" does not violate the constitution. The unspoken premise on which that ultimate conclusion is based is that a taxing district cannot "impose" taxes for more than one purpose. Therefore, the Tax Court seems to have reasoned, taxes "imposed" on a property by application of a school taxing district's tax rate to a property must be categorized as being dedicated to the public school system, even if the part that is imposed on the increment is dedicated to urban renewal. The problem with the foregoing reasoning is that it lacks a textual predicate. Nothing in the text of subsection (11)(b) suggests that taxes that are imposed by a local taxing district for two different purposes cannot be categorized separately. That paragraph merely provides that the applicable limits are to be "determined on the basis of property taxes imposed in each geographic area taxed by the same local taxing districts." Consistent with that approach, in a geographic area that includes an urban renewal district, compliance with the "$5 (public school system)" limit is to be determined on the basis of taxes imposed on the frozen base by the same school taxing districts. Similarly, compliance with the "$10 (other government)" limit is to be determined on the basis of taxes imposed on the increment by the same local taxing districts, some of which also are schools. We also observe that the wording of subsection (11)(b) of Measure 50 is virtually identical to that used in subsection (1) of Measure 5. Measure 5 requires that "taxes imposed upon any property shall be separated into two categories * * *" according to the purpose for which they are raised. Or Const, Art XI, § 11b(1). Under Measure 50, it still is the taxes themselves, and not the rates of particular taxing districts, that are subject to the school and other government limits: The "limits * * * shall be determined on the basis of property taxes imposed * * *." Or Const, Art XI, § 11(11)(b) (emphasis added). In addition, Measure 50 does not purport to redefine the Measure 5 categories; instead, it refers to the "limits * * * described in subsection (1) of section 11b of this Article," i.e., the Measure 5 limits. Id. Because subsection (11)(b) of Measure 50 is not inconsistent with subsection (1) of Measure 5, it follows that the reference in subsection (11)(b) to "taxes imposed" does not reflect the voters' intent to change the way in which urban renewal taxes are categorized for purposes of assessing compliance with the Measure 5 limits. The Tax Court also concluded that Article XI, section 11(15), of the Oregon Constitution, suggests that property taxes are to be categorized according to the function of the taxing district. That subsection provides: "If ad valorem property taxes are divided as provided in section 1c, Article IX of this Constitution, in order to fund a redevelopment or urban renewal project, then notwithstanding subsection (1) of this section, the ad valorem property taxes levied against the increase shall be used exclusively to pay any indebtedness incurred for the redevelopment or urban renewal project." With regard to that provision, the Tax Court stated: "When read in light of the issue before the court, this provision clearly affirms that taxes will continue to be divided as permitted by section 1c, Article IX of the Oregon Constitution to fund urban renewal projects. To avoid this result, section 11b or section 11 would have to indicate that a school's tax rate is only to be applied to the frozen value. There is no such language anywhere in the constitution.2 ____________ "2 It is important to note that because urban renewal agencies do not levy taxes, such a result would leave urban renewal districts without funds to meet their obligations." Shilo Inn, 15 OTR at 43. It is, of course, beyond dispute that subsection (15) affirms that property taxes may continue to be divided as provided in Article IX, section 1c. As we understand taxpayer's arguments, however, taxpayer never has contended that either Measure 5 or Measure 50 changed the way that taxes are to be divided for urban renewal. Moreover, the Tax Court's statement concerning the failure of either Measure 5 or Measure 50 to specify that schools' tax rates apply only to the frozen base is another non-sequitur. The categorization of property taxes for Measure 5 purposes is a process entirely separate from the division of taxes for urban renewal funding. In sum, Article XI, section 11(15), does not support the Tax Court's analysis. Finally, the Tax Court turned to subsection (16) of Article XI, section 11, which expressly authorizes the legislature to enact laws ensuring that existing urban renewal obligations are paid. That section concludes: "Unless excepted from limitation under section 11b of the Article, as modified by subsection (11) of this section, nothing in this subsection shall be construed to remove ad valorem property taxes levied against the increase from the dollar limits in paragraph(b) of subsection (11) of this section." The Tax Court stated that the foregoing "indicates that any * * * taxes imposed [to pay urban renewal debts], 'unless excepted from limitation under section 11b,' remain subject to the limits of section 11b. Hence, taxes imposed 'against the increase' are not exempted from 'the dollar limits' of section 11b. Section 11b does not refer to just the limit on taxes for government operations other than schools. Use of the plural 'limits' refers both to the $5 per $1,000 limit for public schools and to the $10 per $1,000 limit for governmental operations other than schools. This evidences an intent that such limits are applied to the categories as made by the taxing districts when the taxes are imposed." Shilo Inn, 15 OTR at 44. Respondents make the same point. They contend that the reference to the plural "limits" in subsection (16), rather than the singular "limit," clearly means that the voters intended that urban renewal taxes could be subject both to the school and to the "other government" limits. According to respondents, had the voters intended urban renewal taxes to be treated exclusively as "other government" for purposes of the Measure 5 limits (as modified by Measure 50), Measure 50 would have referred only to the single other-government limit, either specifically or by using the singular word "limit." Amici elaborate on the foregoing argument by contending that the history of the House Joint Resolution that eventually was referred to the voters as Measure 50 shows that the legislature made a deliberate choice to include the plural word "limits," rather than the singular "limit," in subsection (16) and that that choice reflects the legislature's intent to subject urban renewal taxes to both the school and other government limits. Along the same lines as the foregoing arguments of the parties, there is one other aspect of the "dollar limits" phrase in subsection (16) that warrants closer inspection. The last sentence of that subsection provides that, unless excepted from limitation under "section 11b of this Article, as modified by subsection 11 of this section" (that is, under Measure 5, as modified), urban renewal taxes remain subject to "the dollar limits in paragraph (b) of subsection (11) of this section," that is, Measure 50. As discussed above, "paragraph (b) of subsection (11)" includes a shorthand reference to the Measure 5 limits: "The $5 (public school system) and $10 (other government) limits * * *." Under ordinary rules of construction, the use of two different phrases in the same subsection to refer to the limits is presumed to be intentional and suggests that the phrases refer to different kinds of limits. One plausible interpretation of the reference at the end of subsection (16) to "paragraph (b) of subsection (11) of this section" is that the Measure 50 limits are combined dollar limits, as respondents and amici contend and the Tax Court held, and the parenthetical notation of categories is included in subsection (11)(b) only for the purpose of identifying the source of each dollar cap. To determine whether, in subjecting urban renewal taxes to the "dollar limits of paragraph (b) of subsection 11 of this section" rather than to the "other government" limit alone or to the Measure 5 limits, the voters intended to alter the way in which urban renewal taxes were treated under Measure 5, we turn to the methodology that this court set out in Ecumenical Ministries, 318 Or at 559. That is, we first consider the text of the initiated or referred constitutional provision and its context. Id. If the voters' intent remains unclear after consideration of the text and context of the provision, then the court turns to its history. Id. We first observe that neither subsection (11) nor any other provision of Measure 50 directly refers to a combined $15 limit. Instead, paragraph (b) of subsection (11) continues to refer to the dollar limits according to their categories: "The $5 (public school system) and $10 (other government) limits on property taxes per $1000 of real market value described in subsection (1) of section 11b of this Article * * *." Or Const, Art XI, § 11(11)(b). Moreover, that paragraph provides that those limits are "described in subsection (1) of section 11b of this Article." That suggests that Measure 50 imports the Measure 5 limits in their entirety and that the category references in subsection (11)(b) are not merely parenthetical explanations intended only to identify the source of each dollar cap but, rather, are a shorthand reaffirmance of the Measure 5 limits. Context also provides an indication that the use of the phrase "dollar limits" in subsection (16) does not represent a manifestation of the voters' intent to change the way urban renewal taxes are treated. Subsection (6) of Article XI, section 11, is similar to subsection (16), inasmuch as it uses the plural word "limitations" when limiting taxes covered by that subsection. Subsection (6) specifies that "[a]d valorem property taxes described in this subsection shall be subject to the limitations imposed under section 11b of this Article, as modified by subsection (11) of this section." Or Const, Art XI, § 11(6)(b) (emphasis added). The phrase "taxes described in this subsection" in subsection (6) refers to the "ad valorem property tax of a local taxing district, other than a * * * school district, that is used to support a hospital facility." Or Const, Art XI, § (6)(a) (emphasis added). It is incontrovertible, under any reading of the pertinent provisions of Measure 5 and Measure 50, that a tax imposed by a taxing district other than a school district, used to support a hospital facility (clearly a nonschool purpose), is a tax "raised to fund government operations other than the public school system." It cannot be seen as a tax "raised specifically to fund the public school system." Under that circumstance, it is apparent that the provision in Article XI, section 11(6)(b), subjecting that tax to the "limitations" (plural) of Measure 5, as modified, merely reflects a general intent not to exclude that tax from the Measure 5 limits, and does not reflect a conscious decision on the part of the voters to broaden those categories beyond their defined parameters. Similarly, nothing in subsection (16) of Article XI, section 11, suggests that the last sentence of that subsection is anything more than a limitation on the legislature's authority to enact laws protecting existing urban renewal programs. That is to say, it is more likely that the voters intended, by that sentence, to preclude the legislature from exempting urban renewal taxes from the Measure 5 limits as a means to ensure that existing urban renewal indebtedness is paid. As is clear from the foregoing, our analysis of the text and context of the last section of subsection (16) suggests that the reference to the "dollar limits" does not manifest the voters' intent to subject urban renewal taxes generated by extending the school taxing districts' tax rate to the increment to the five dollar "school system" limit on property taxes. Nonetheless, as we have stated in the past, "caution is required in ending the analysis before considering the history of an initiated [or referred] constitutional provision." Ecumenical Ministries, 318 Or at 559 n 7; see also Stranahan, 331 Or at 57 (stating principle). We therefore choose to exercise our discretion by examining the history of Measure 50. Contrary to amici's suggestion, however, the history that we consider does not include early drafts of the legislative bill that later was referred to the people, nor does it include statements made by legislators in hearings on that matter. Those materials may be indicative of the legislature's intent in crafting Measure 50 but, as we stated most recently in Stranahan, 331 Or at 57, "it is the people's understanding and intended meaning of the provision in question -- as to which the text and context are the most important clue -- that is critical to our analysis." (Emphasis added.) It follows that only those materials that were presented to the public at large help to elucidate the public's understanding of the measure and assist in our interpretation of the disputed provision. Id. at 64-65. Those materials include, inter alia, materials that are included in the Voters' Pamphlet, such as the ballot title, the explanatory statement, and the legislative argument in support. See Ecumenical Ministries, 318 Or at 559 n 8 (so stating). We turn to a review of those materials. First, neither the ballot title summary of Measure 50, the explanatory statement, nor the Legislative Argument in Support mention urban renewal. Moreover, the ballot title summary and the explanatory statement imply that, under Measure 50, the Measure 5 limits remain unchanged. For example, the ballot title summary states that: "The measure retains the existing total property tax rate for all property taxes, including local option taxes but excluding taxes for bonds, at $5 per $1000 of value for schools and $10 per $1000 of value for nonschool government." Official Voters' Pamphlet, Special Election, May 20, 1997, 5 (emphasis added). The Explanatory Statement contains a similar statement but includes a direct reference to Measure 5: "Retains existing property tax rate limitation of $5 per $1000 of value for schools and $10 per $1000 of value for nonschool government (1990 Measure 5)." Id. at 7 (emphasis added). Second, those materials prominently inform the voters that Measure 50 was intended to repeal and replace Measure 47, which, according to the Legislative Argument in Support, had "unintended consequences." Id. Measure 47, however, did not address urban renewal in any respect. Thus, the voters would not have had a reason even to suspect that Measure 50 would change the way in which urban renewal taxes would be treated. In short, nothing in the history establishes that, in adopting Measure 50 and, in subsection (16) of that measure, subjecting urban renewal taxes to the "dollar limits of paragraph (b) of subsection (11)," the voters intended to change the way that urban renewal taxes are to be categorized for purposes of assessing compliance with the Measure 5 limits. In summary, the text of subsection (1) of Measure 5 provides that the limits set out in that subsection apply to taxes that are to be separated into categories according to the uses to which those taxes are dedicated. Nothing in the context of other provisions of Measure 5 alters that conclusion. Moreover, nothing in the later-enacted Measure 50 changes that method of categorization to a system in which the function of the taxing district imposing the tax, rather than the use to which the tax is dedicated, is the determinative factor in evaluating compliance with the Measure 5 limits. As noted, the problem in this case arises because certain parts of the statutory scheme that the legislature enacted to implement Measure 50 expressly direct the categorization of urban renewal taxes according to the function of the taxing district whose rate is used to generate the tax. Specifically, ORS 310.150(7) provides: "The determination of the appropriate category for an item of tax is based on the tax as certified by the taxing district under ORS 310.060 and not based on the tax imposed on the urban renewal increment as described in ORS chapter 457." Thus, under that statute, the assessor treats all taxes generated by extending a school taxing district's tax rate to the assessed value of a property within an urban renewal area as being subject to the school system limit for purposes of assessing compliance with Measure 5. The Tax Court, based on its construction of the various provisions of Measure 5 and Measure 50, concluded that ORS 310.150(7) is consistent with the Oregon Constitution. As is evident from the foregoing discussion, however, that conclusion was incorrect. The Oregon Constitution requires that the assignment of an item of tax to the "school" or "other government" category be based on the purpose to which that item of tax is dedicated. In an urban renewal area, only taxes on the frozen base specifically are dedicated to funding the public school system. Taxes on the increment, by contrast, regardless of which taxing district's ad valorem property tax rate is used to calculate their amount, are dedicated to pay indebtedness incurred for the redevelopment or urban renewal project. Thus, for purposes of assessing compliance with the Measure 5 property tax limits, taxes on the increment, including those that are generated by extending a school taxing district's tax rate to the increment, are taxes that belong in the category that "dedicates revenues raised to fund government operations other than the public school system." Or Const, Art XI, § 11b(1). To the extent that ORS 310.150(7) is in conflict with that requirement, it is unconstitutional. Notwithstanding any conflict with Article XI, section 11b(1), amici suggest that the legislature was within its authority to enact ORS 310.150(7). They contend, first, that the legislature's actions should be given deference because, in subsection (16), Measure 50 specifically calls for the legislature to adopt implementing legislation. Article XI, section 11(16), provides that: "The Legislative Assembly shall enact laws that allow collection of ad valorem property taxes sufficient to pay, when due, indebtedness incurred to carry out urban renewal plans existing on December 5, 1996." Amici suggest that, under that grant of authority, the legislature "made a number of deliberate choices to ensure that urban renewal agencies would continue to receive the tax revenues necessary to carry out the [existing] urban renewal plans * * * includ[ing] making certain that the taxes were spread, for purposes of property tax limits, between both the $10 and the $5 limits." Amici also contend that the statutory scheme allowing urban renewal taxes to be treated in some cases as subject to the school system limit should be construed as constitutional because the same legislature that crafted Measure 50 also adopted its implementing legislation, which includes the provisions subjecting urban renewal taxes to the $5 school system tax limit if they are raised by extending a school taxing district's rate to the increment. For the reasons that follow, neither of those positions is persuasive. It is true that the directive to the legislature in subsection (16) to "enact laws" to ensure the payment of urban renewal obligations purports to be a broad grant of authority to protect existing urban renewal funding in any way that the legislature sees fit. Nevertheless, that authority expressly is made subject to the Measure 5 limits. The last sentence of subsection (16) provides: "[N]othing in this subsection shall be construed to remove ad valorem property taxes levied against the increase from the dollar limits in paragraph (b) of subsection (11) of this section." Moreover, nothing elsewhere in the text of Measure 50 suggests that that amendment to the constitution was intended to change the way that the categories to which the Measure 5 limits apply are construed. As we already have discussed at length, the Measure 5 limits apply to categories of taxes according to the purpose to which those taxes are dedicated. Measure 50 neither directs the legislature, nor grants it the power, to enact laws that change that constitutional structure. We also reject amici's argument that ORS 310.150(7) is entitled, in effect, to a presumption of constitutionality, simply because it was drafted by the same legislature that crafted Measure 50 itself. This court considered a contention similar to amici's in State v. Kuhnhausen, 201 Or 478, 266 P2d 698, on reh'g 201 Or 478, 272 P2d 225 (1954). In that case, the court was asked to consider whether a statute adopted pursuant to constitutional authority "defined" the relevant constitutional provision, such that compliance with the statute became equivalent to compliance with the constitutional provision. The court stated "[s]o long as the doctrine of separation of powers remains basic in our system, the ultimate power and duty of the courts to construe the constitution must rest with the courts alone. That power should not be lightly whittled away by any rule which recognizes the power of the legislature to authoritatively construe the constitution. * * * "It has been suggested that there is an exception to the general rule in the case of a contemporaneous legislative construction of the constitution. * * * Conceding, for the sake of argument, that the legislature had power to bind this court as to the construction of the constitution, it would necessarily follow that the only constitutional provision which the legislature could 'construe and define' would be the constitution which was in force at the time that the statute was enacted." Kuhnhausen, 201 Or at 517-18. The same reasoning applies in the present case. Even if the legislature had the power to construe and define Measure 50 through the statute at issue in this case, it had no such power with respect to Measure 5. Therefore, even if the legislature believed when it referred Measure 50 to the voters that that measure, if adopted, would permit the categorization of taxes according to the principal function of the taxing district whose rate was used to generate the tax, this court is not bound by that interpretation. We already have concluded that Measure 5 requires the categorization of taxes according to their dedicated purpose and that no provision of Measure 50 changes that method of categorization. The fact that the legislature that proposed Measure 50 to the people and enacted its implementing legislation might have held a different view does not inform our analysis of Measure 5 and, therefore, cannot dictate derivatively how we interpret Measure 50. In summary, under Measure 5, for purposes of assessing compliance with the ad valorem property tax limits, taxes must be separated into two categories, "school system" and "other than schools," according to the use to which those taxes are dedicated. Taxes on the increment to fund urban renewal projects belong in the Measure 5 category that "dedicates revenues raised to fund government operations other than the public school system." The decision of the Tax Court is reversed and the case is remanded to that court for further proceedings. 1. Ad valorem property taxes are assessed in a combined statement by each county, which then allocates the taxes to the various entities, such as cities, school districts, and other governmental units within the county to which the taxes actually are owed. PDC is not specifically identified on petitioner's tax statements as a recipient of taxes. 2. Article XI, section 11b(1), of the Oregon Constitution, is the first section of an amendment to the Oregon Constitution that the voters adopted in 1990 and was (and still is) known as "Measure 5." As adopted, Measure 5 included Article XI, section 11b-11f, of the Oregon Constitution. The voters repealed section 11f on May 20, 1997, as part of Measure 50, which is discussed at length elsewhere in this opinion. Throughout this opinion, we refer at times to the constitutional provisions at issue by their measure numbers, rather than referring to them exclusively by the pertinent citations to the constitution, because the measure numbers continue to be used in common parlance by the bench, bar, and public. 3. Although respondents assert that the process that taxpayer used to arrive at that figure is flawed, they did not contend either to the Tax Court or to this court that the figures set out in the text are incorrect. 4. Taxpayer also claimed in its complaint to the Tax Court that it was bringing the present action for the benefit of all similarly situated taxpayers who, it contended, collectively were overcharged over $7.5 million for the 1998-99 tax year. Accordingly, taxpayer also moved for class action status and claimed entitlement to attorney fees under ORS 305.587, which authorizes the Tax Court to order such relief as it considers appropriate. Because the Tax Court granted summary judgment against taxpayer on the merits, that court did not consider whether to certify the class. 5. Part of the basis for the present dispute stems from the fact that subsection (4) of Article XI, section 11b, refers to categories of taxing units, rather than to categories of taxes, and suggests that categories of taxing units were "defined" in subsection (1). Subsection (1), however, does not provide such a definition. For the moment, we need note only that the contrasting wording in the two sections is inartful, at the least. 6. The new section 11 did not repeal section 11b, which, as we have explained, is the official label for Measure 5. Former section (11), which Measure 50 repealed, provided for tax base limitations. Importantly, Measure 50 also repealed another property-tax-limiting initiative measure, Measure 47, which the voters had approved a year earlier, in 1996. Measure 47 was a short-lived constitutional amendment aimed at closing what its supporters considered to be a significant loophole in the property tax limitation goal of Measure 5. Former Or Const, Art XI, 11g, 11h, 11i and 11j. Certain practical and technical difficulties in the application of Measure 47 led the legislature to propose, and the people to adopt, Measure 50 as its effective replacement. 7. We note that Measure 50 employs the phrase "local taxing district," while Measure 5 and Article IX, section 1(c), use the phrases "taxing units" and "governmental units." In addition, the statutes implementing Measures 5 and 50 employ still different phraseology in various sections. Neither party has suggested that we ascribe a difference in meaning based on the difference in phraseology, and we perceive no reason to do so. Accordingly, we assume for purposes of this opinion that the foregoing terms, viz., "local taxing district," "taxing units," and "governmental units," are interchangeable. For the sake of consistency, we use the phrase "taxing district" throughout this opinion. 8. That formula, similar to the one contained in Measure 5 (Or Const, Art XI, § 11b(4)), refers numerous times to "categories" of "local taxing districts" that are subject to the Measure 5 limits. See, e.g., Or Const, Art XI, § 11(c)(B) ("If property taxes exceed the limitations imposed under either category of local taxing district * * *"); Or Const, Art XI, § 11(c)(B)(i) ("[a]ny local option * * * taxes * * * shall be proportionally reduced by those local taxing districts within the category * * *); Or Const, Art XI, § 11(c)(B)(ii) ("* * * all other ad valorem property taxes shall be proportionally reduced by those taxing districts within the category * * *"). 9. That section, as amended in 1997 by Measure 50, provides as follows: "The Legislative Assembly may provide that the ad valorem taxes levied by any taxing unit, in which is located all or part of an area included in a redevelopment or urban renewal project, may be divided so that the taxes levied against any increase in the assessed value, as defined by law, of property in such area obtaining after the effective date of the ordinance or resolution approving the redevelopment or urban renewal plan for such area, shall be used to pay any indebtedness incurred for the redevelopment or urban renewal project." 10. Although the statutes implementing Measure 5 themselves did not specify how taxes used to pay urban renewal indebtedness were to be treated, the Attorney General had issued an opinion in 1990, before the election at which the people adopted Measure 5, concluding that, "[e]xcept for revenue used to pay bonded indebtedness, revenue generated by tax increment financing that funds the activities of an urban renewal agency, is subject to the 'other than schools' limit under the proposed measure." 46 Op Atty Gen 388, 429 (1990). In addition, the Attorney General specifically addressed urban renewal revenues derived from school district levies: "All urban renewal tax increment revenues are subject to the nonschool limit, whether or not the amount of those revenues is determined in part by the rate applicable to a school district levy, because those revenues are not dedicated to be used 'exclusively for educational purposes.'" Id. at 431-32. The Department of Revenue also promulgated a regulation codifying that conclusion. Former OAR 150-457.440(7)(h) (1990, amended 1991). 11. Subsection (15) is quoted at page 13. 12. We observe in passing that the reference in the above-quoted passage to "subsection (1) of this section" makes no sense in context. Subsection (1) of section 11 sets new maximum assessed values of properties for ad valorem tax purposes. 13. Subsection (16)) effectively adopts this court's holding in City of Portland v. Smith, 314 Or 178, 192, 838 P2d 568 (1992). In Smith, the City of Portland brought an action, soon after the adoption of Measure 5, challenging the application of the Measure 5 limits to urban renewal taxes. The city contended that taxes imposed under Article IX, section 1c, to pay urban renewal indebtedness were, in the words of Measure 5, Or Const, Art XI, § 11B(3)(a), "taxes imposed to pay the principal and interest on bonded indebtedness authorized by a specific provision of this Constitution" and, therefore, exempt from the Measure 5 limits. This court held to the contrary, on the ground that Article IX, section 1c, does not specifically authorize urban renewal agencies to incur bonded indebtedness. 14. ORS 310.145 authorizes units of local government to adopt such ordinances and resolutions. 15. As noted, at the time when an urban renewal plan is approved, the county assessor for the area in which the urban renewal area is located prepares a certified statement of the total assessed value of all the taxable real property contained in the urban renewal area in the county. ORS 457.430(1). That certified statement, as adjusted to account for changes in assessed value under Measure 50, ORS 457.430(6)(b), then provides the base from which the increment is calculated. ORS 457.440(4). 16. On that basis, the court upheld the constitutionality of ORS 310.355, which permits the categorization of a particular, voter-approved levy as either dedicated to funding the public school system or not, depending on the principal function of the governmental unit imposing the tax, unless the sole purpose of the levy is for a use in the other category. Glenn, 14 OTR at 352. 17. As noted above, at n 10, the Attorney General effectively came to the same conclusion at the time that Measure 5 was adopted, as did the Department of Revenue in thereafter adopting implementing regulations, when designating that urban renewal taxes were to be treated as "other government" for purposes of the Measure 5 limits.

9682675a1dc6e14213232779f6578c680396a920e609ad40f259642da0a9fe1d

2001-12-20T00:00:00Z

16a8378a-7ba8-4227-8474-f88b58e7ac47

In re Eadie

S47751

oregon

Oregon Supreme Court

FILED: December 6, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON In re Complaint as to the Conduct of L. BRITTON EADIE, Accused. (OSB 96-80, 97-105, 97-109, 97-114; SC S47751) On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted September 10, 2001. L. Britton Eadie, West Linn, argued the cause and filed the brief in propria persona. Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar. Before Carson, Chief Justice, and Gillette, Durham, Leeson, De Muniz, and Balmer.* PER CURIAM The accused is suspended for three years, effective 60 days from the date of the filing of this decision. *Riggs, J., did not participate in the consideration or decision of this case. PER CURIAM In this lawyer discipline proceeding, the Oregon State Bar (Bar) charged the accused with statutory violations and multiple violations of the Code of Professional Responsibility in connection with his representation of several clients: Disciplinary Rule (DR) 1-102(A)(3) (dishonesty and misrepresentation); DR 1-102(A)(4) (conduct prejudicial to administration of justice); DR 6-101(A) (incompetence); DR 6-101(B) (neglect of client matter); DR 7-102(A)(5) (false statement during representation); DR 7-106(C)(1) (alluding to inadmissible evidence); DR 7-106(C)(7) (intentionally or habitually violating rules of procedure or evidence); DR 7-110(B) (ex parte communications); ORS 9.460(2) (misleading statements); and ORS 9.527(4) (willful deceit or misconduct). A trial panel of the Disciplinary Board concluded that the accused had violated DR 1-102(A)(3), DR 1-102(A)(4), DR 6-101(A), DR 7-102(A)(5), DR 7-106(C)(7), and ORS 9.460(2), and recommended that the accused be disbarred. Our review is automatic. BR 10.1. On de novo review, BR 10.6, we find that the accused violated DR 1-102(A)(3), DR 1-102(A)(4), DR 6-101(A), DR 7-102(A)(5), DR 7-106(C)(1), and DR 7-106(C)(7). We conclude that a three-year suspension from the practice of law is the appropriate sanction. I. FACTS AND TRIAL PANEL FINDINGS The Bar has the burden of establishing misconduct by clear and convincing evidence. BR 5.2. "Clear and convincing evidence" means evidence establishing that the truth of the facts asserted is highly probable. In re Johnson, 300 Or 52, 55, 707 P2d 573 (1985). We find proof of the following facts by clear and convincing evidence. A. Burke Matter The accused represented Shon in a dispute with her neighbor, Burke, regarding an easement. On January 31, 1995, the accused filed a complaint seeking to terminate Burke's easement over Shon's property. The complaint also sought costs and disbursements. Burke did not retain a lawyer to represent her, and the parties thereafter negotiated a settlement agreement. The agreement provided that Shon would dismiss the complaint in return for Burke's promises to execute and return a quitclaim deed, and to remove structures and debris from the property. Burke did not file an answer to the complaint. On March 8, 1995, in response to a letter that Burke had written to the accused about the settlement, the accused wrote a letter to Burke summarizing the terms of the settlement and concluding: "The easement is terminated as indicated in your letter. The complaint will be dismissed when the properly executed quit-claim deed is returned and recorded, as indicated above." (Emphasis added.) Burke executed and returned the quitclaim deed, and fulfilled her other duties under the settlement agreement. The accused thereafter submitted a proposed form of judgment to the trial court, with a copy to Burke, that included an award of costs to Shon. In his cover letter, the accused informed the court that he was seeking a prevailing-party fee. The trial court returned the proposed judgment to the accused, explaining that, unless stipulated, Shon was not a prevailing party and that she therefore was not eligible to recover costs. Burke also wrote a letter to the accused stating that she "d[id] not agree to pay [Shon's] costs and disbursements. The accused thereafter attempted to recover costs by applying to the trial court for a default judgment against Burke, alleging that Burke had "failed to answer or appear" and not mentioning the settlement agreement. The accused did not serve a copy of the application on Burke. The court entered the default judgment, which included an award of costs. Burke became aware of the entry of the default judgment only after the accused demanded payment under the judgment. Burke moved to set aside the default judgment on the basis of "fraud, misrepresentation, or other misconduct." ORCP 71 B(1)(c). The trial court denied the motion. In its cause of complaint relating to the Burke matter, the Bar charged the accused with violating DR 1-102(A)(3), DR 1-104(A)(4), and DR 7-110(B), in the Burke matter. The Bar maintained that the accused made a misrepresentation and engaged in prejudicial conduct when he reached an agreement with Burke that did not mention costs, then later attempted to improve on the settlement by filing a judgment of dismissal that included an award of costs. The Bar also alleged that the accused engaged in a written communication with the court on the merits of an adversary proceeding without delivering a copy to the opposing party when he submitted the proposed default judgment to the court without serving a copy on Burke. The trial panel concluded, apparently on grounds of issue preclusion, that the trial court's denial of Burke's motion to set aside the default judgment under ORCP 71 B(1)(c) precluded the trial panel from finding a disciplinary violation. The trial panel also found that, because Burke had not filed an answer to Shon's complaint, she "had not filed an appearance in the litigation that would have entitled her to notice" from the accused regarding the accused's application for a default judgment. Accordingly, the trial panel concluded that the accused had not violated DR 1-102(A)(3), DR 1-102(A)(4), or 7-110(B) as charged. B. Collins Matter In 1996, the accused represented Collins in a personal injury action against Harbertson, the driver of a car that allegedly had struck Collins. Safeco, Harbertson's insurer, retained lawyers Brisbee, Mead, and Johnston to represent Harbertson. After the accused had filed a complaint against Harbertson, the trial judge set pretrial conference and trial dates. Harbertson's lawyers thereafter moved to strike portions of the complaint. After successfully arguing the motion to strike, Mead gave the accused a proposed order for submission to the judge. The accused objected to the proposed order and added: "* * * My notes indicate that [the judge] specifically stated that this matter would be put back on the trial docket, I think he intended that it would be scheduled for trial earlier than May 1996? [Question mark in original.] An order to that effect would be appropriate." The accused then submitted a proposed order to the judge, rescheduling the pretrial conference and trial dates. In a letter accompanying the proposed order, the accused stated: "I believe that this proposed form of order accurately reflects your findings and rulings on defendants' motion and your intent as to rescheduling the pre-trial and trial dates in this case." (Emphasis added.) After the judge signed the accused's proposed order, Brisbee reminded the judge that he had not discussed changing the pretrial conference and trial dates, and questioned whether the judge had contemplated doing so. The judge agreed with Brisbee and modified the order to delete the date changes that the accused had submitted to the judge. In April 1996, Brisbee scheduled a hearing before a different judge on a motion to compel production. The day before the hearing, the accused, without serving Harbertson's lawyers, filed a written motion to disqualify that judge. Harbertson's lawyers did not learn about the accused's motion until they appeared before the judge, who sent them to a courtroom where a different judge was presiding. When they arrived at that courtroom, however, the accused announced that he planned to file an affidavit of prejudice against that judge as well. After a period of delay, a third judge heard the defense motion to compel production. Several months later, on October 6, 1996, a judge in the Collins litigation imposed a sanction on the accused for filing a meritless discovery motion. Ten days later, on October 16, 1996, the accused served a subpoena duces tecum on a Safeco employee to produce Safeco's file on the Collins/Harbertson accident by October 24, 1996. Brisbee told Johnston to file a motion to quash the subpoena. Because the accused's subpoena required production in only eight days, Johnston acted quickly. On October 16, the day that the accused served the subpoena, Johnston called the accused and left a telephone voice message, stating that she wanted to discuss her intent to file a motion to quash and that, if she did not hear from him, she would appear in court ex parte on October 18, 1996, to request an expedited hearing on the motion. Johnston's secretary also telephoned the accused and told him of Johnston's plan. In response to that information, the accused told the secretary, among other things, "I object," and hung up. Later, Johnston's secretary attempted to send the accused a facsimile copy of the motion to quash, but the facsimile would not go through, and no one answered the telephone at the accused's office. Johnston then told her law clerk, Morrow, to deliver a copy of the motion to the accused's office. Morrow went to the accused's office on the evening of October 17, 1996. Morrow saw the accused through a glass door and told him that he had documents to deliver. The accused would not open the door, so Morrow told the accused that he was leaving the documents and placed them in the door jamb while the accused watched. (1) On October 18, 1996, Johnston appeared in court and received a date for the hearing on the motion to quash. The accused did not appear. Johnston then sent the accused a facsimile letter stating the date and time for the hearing. The accused responded by writing a letter that accused Brisbee and Johnston of "judge shopping," and stated that the accused neither had been served with the motion to quash nor had been advised that Johnston planned to appear in court to request a hearing date on the motion. The accused sent copies of that letter to two Washington County judges. At a hearing on October 22, 1996, the accused told the judge: "[T]hey didn't even attempt to confer with me. There was no one that made any effort to communicate with me in my office in any way whatsoever." The case of Collins v. Harbertson eventually was tried to a jury, which returned a defense verdict. The court thereafter imposed sanctions on the accused for failing to obey discovery orders. In its causes of complaint relating to the Collins matter, the Bar alleged that the accused had violated DR 1-102(A)(3), DR 1-102(A)(4), DR 7-102(A)(5), ORS 9.460(2), and ORS 9.527(4) by seeking to have the judge change the pretrial conference and trial dates. The Bar alleged that the accused had violated DR 1-102(A)(3), DR 1-102(A)(4), DR 7-102(A)(5), ORS 9.460(2), and ORS 9.527(4) by telling several judges that opposing counsel had made no effort to notify him of Johnston's ex parte court appearance. Finally, the Bar alleged that the accused had violated DR 7-106(C)(7) and DR 7-110(B) by failing to serve the written motion to disqualify the trial judge on Harbertson's lawyers. According to the Bar, an established rule of procedure required him to do so. The trial panel found that the accused had violated DR 1-102(A)(3), DR 1-102(A)(4), and ORS 9.460 by misrepresenting to the court its intentions regarding scheduling in Collins v. Harbertson. However, the trial panel held that the accused did not violate ORS 9.527(4) or DR 7-110(B). (2) The trial panel also found that it could not determine whether the accused had received the telephone messages from Johnston or her secretary, or Johnston's facsimile about the hearing on scheduling the defense motion to quash. However, the trial panel accepted Morrow's testimony that Morrow had delivered the papers, and it specifically refused to credit the accused's testimony on that point. The trial panel found that the accused violated DR 1-102(A)(3) and DR 1-102(A)(4). (3) C. Cassady Matter The accused represented Cassady against Huber in a personal injury action in which the sole issue was damages. During jury selection in the case, the accused improperly mentioned Huber's insurance coverage. See OEC 411 (limiting admissibility of evidence concerning liability insurance); Johnson v. Hansen, 237 Or 1, 4, 389 P2d 330 (1964) (unnecessary injection of insurance information prejudicial). Although the jury selection proceedings were not transcribed, the judge who presided over the trial testified at the disciplinary hearing that, when a potential juror raised the issue of insurance, the accused responded that there was plenty of insurance to go around and that the jury should not worry about it. During trial, the accused again raised the issue of Huber's insurance coverage, contrary to the judge's repeated admonitions not to do so. During the course of the trial in Cassady v. Huber, the accused did not appear to be prepared for trial and was either unfamiliar with or unwilling to comply with the rules of evidence. For example, during his direct examination of a physician that the accused had called as an expert on Cassady's behalf, he handed the witness a stack of medical bills that the witness had not seen previously and asked him whether the bills were reasonable and necessary. It also became evident during the trial that the accused had failed to order a copy of the transcript of Cassady's deposition. Accordingly, he was unprepared when defense counsel used that deposition transcript at trial to impeach Cassady. The accused also ignored the trial court's evidentiary rulings. For example, the accused repeatedly attempted to introduce hearsay, despite the trial court's repeated rulings that those reports and opinions were inadmissible. Moreover, during his direct examination of Cassady's treating physician, the accused asked the physician questions about which the physician had no personal knowledge and then ignored the court's rulings about those questions. The jury began its deliberations in Cassady v. Huber late on the second day of trial. According to the trial judge, the case could have been tried more quickly if the accused had been prepared and competent. The jury awarded Cassady compensatory damages. Huber promptly paid the amount that she owed under the judgment, and the accused accepted satisfaction of the judgment on Cassady's behalf. Thereafter, the accused filed a motion for a new trial. Huber opposed the motion, arguing that there was no legal basis for the motion and requesting sanctions against the accused for having filed it. See Nickerson and Nickerson, 296 Or 516, 520, 678 P2d 730 (1984) (party cannot accept benefits of judgment and also pursue course that might overthrow right to benefits). The court set a hearing date on the motion for a new trial and notified the accused of that date. The accused failed to appear despite the court's efforts to contact him. The court held the accused in contempt and, in its contempt order, noted that the accused's affidavit accompanying his motion for a new trial was "full of inaccuracies." (4) The court also denied Cassady's motion for a new trial. Following a subsequent hearing on the defense motion for sanctions against the accused for having filed the motion for a new trial, the trial court imposed sanctions on the accused for filing the baseless motion for a new trial and for making false statements in the affidavit that accompanied the motion. (5) In its cause of complaint relating to the Cassady matter, the Bar charged the accused with violating DR 6-101(A), DR 6-101(B), DR 7-106(C)(1), and DR 7-106(C)(7). (6) The trial panel concluded that the accused had failed to represent Cassady competently, in violation of DR 6-101(A), and that he intentionally or habitually had violated procedural and evidentiary rules, in violation of DR 7-106(C)(7). However, the trial panel concluded that the Bar had not shown that the accused had neglected a legal matter in representing Cassady, in violation of DR 6-101(B), or that he had alluded to inadmissible evidence, in violation of DR 7-106(C)(1). (7) D. Martin Matter The accused represented Martin in a personal injury case for injuries that she received when a kitchen cabinet in her apartment fell on her. The complaint that the accused filed on Martin's behalf named many defendants, including various subcontractors and others, some of whom later provided evidence that they should not have been named as defendants. Several of the defendants named in the complaint filed motions for summary judgment, and the accused delegated responsibility for opposing those motions to a new associate in his office, Gresham. Gresham had minimal legal experience and never before had opposed a motion for summary judgment. The accused was aware of Gresham's inexperience, but he assigned the matter to Gresham nonetheless. To respond to each defendant's motion for summary judgment, Gresham needed to submit documents or affidavits on Martin's behalf that would show the court that there was a genuine issue of material fact requiring a trial. ORCP 47 C. Rather than doing so, Gresham opposed the motions orally, relying solely on legal arguments. The trial court granted the defense motions, then stated: "I will be fairly blunt. I suspect that at least half the motions I just granted could have been overcome by appropriate documents had they been filed. Without their being filed, I can't do the right thing. I have to do the legally required thing * * *." Thereafter, the trial court imposed sanctions on the accused for failing to investigate information suggesting that claims against several of the defendants whom he had named in the complaint should have been dismissed. See ORCP 17 C (authorizing imposition of sanctions against lawyers who file pleadings not based on lawyer's "reasonable knowledge, information and belief, formed after the making of such inquiry as is reasonable under the circumstances"). According to the court, the accused's conduct was "the most egregious set of circumstances I have ever seen." In its cause of complaint relating to the Martin matter, the Bar charged the accused with violating DR 6-101(A) and DR 6-101(B). The trial panel concluded that the accused did not represent Martin competently, in violation of DR 6-101(A). However, the trial panel concluded that the Bar had not shown that the accused had neglected a legal matter entrusted to him, and it therefore dismissed the charge under DR 6-101(B). E. Trial Panel Sanction Determination The trial panel concluded that, in view of the prior disciplinary record and the ethical violations found by the trial panel arising out of four separate cases, and involving numerous and factually separate circumstances, "disbarment is the only way to protect the public and the integrity of the profession." II. ISSUES ON REVIEW A. Burke Matter 1. DR 1-102(A)(3) It is professional misconduct for a lawyer to "[e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation." DR 1-102(A)(3). To violate the rule, an accused's misrepresentations, whether direct or by omission, must be knowing, false, and material in the sense that the misrepresentations would or could significantly influence the hearer's decision-making process. See In re Kluge, 332 Or 251, 255, 19 P3d 938 (2001) (so stating). As a threshold matter, we address whether the trial court's denial of Burke's motion to set aside the default judgment under ORCP 71 B(1)(c) precluded the trial panel from holding that the accused had violated DR 1-102(A)(3). Although there may be circumstances in which the doctrine of issue preclusion would prevent consideration of a claim that a lawyer had violated a disciplinary rule, issue preclusion plays no role here. Issue preclusion requires, among other things, that the party sought to be precluded was a party (or was in privity with a party) to the prior proceeding and that the party sought to be precluded had a full and fair opportunity to be heard on that issue. See Nelson v. Emerald People's Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993) (setting out elements of issue preclusion). The Bar neither was a party nor was in privity with a party in Shon v. Burke. Even assuming that the terms "fraud, misrepresentation, or other misconduct" under ORCP 71 B(1)(c) mean the same as "dishonesty, fraud, deceit, or misrepresentation" under DR 1-102(A)(3), the Bar did not have a full and fair opportunity to be heard in the hearing on Burke's motion under ORCP 71 B(1)(c) to set aside the default judgment. The trial panel was not constrained by principles of issue preclusion from finding that the accused intentionally had misrepresented the question of payment of court costs in his settlement letter to Burke and that Burke had relied on the omission to her detriment. We turn to the merits on this issue. The Bar contends that the accused violated DR 1-102(A)(3) and DR 1-102(A)(4) by making a misrepresentation by omission to Burke in the settlement agreement and by applying for a default judgment that included costs after he had told Burke that he would dismiss the complaint once she had complied with the terms of the settlement agreement. The accused contends that his conduct was not unethical. We find that the accused intentionally omitted from the settlement agreement his intent to seek costs. The complaint that the accused filed in Shon v. Burke made clear that the accused sought costs. However, Burke objected to paying costs. Burke's objection indicates that, to her, the matter of costs was an important element of the settlement. The settlement agreement that the accused sent to Burke made no mention of costs, leading Burke to believe that the settlement did not include them. The accused intentionally failed to disclose a material fact -- namely, that he intended to seek costs -- to obtain Burke's acquiescence to settle her dispute with Shon. The accused violated DR 1-102(A)(3). We turn to the accused's submission of a default judgment to the court that contained an award of costs to Shon after the parties had settled the case. As we have explained, the accused concealed his intent to recover costs against Burke by not including them in the settlement agreement. After Burke had agreed to the settlement and had complied with its terms, she was entitled to believe that the matter was resolved and that the accused would dismiss the action. The accused did not inform Burke that he intended to seek a default judgment notwithstanding the settlement. The accused's failure to correct a false impression created by nondisclosure of a material fact -- that the settlement agreement did not resolve completely the case of Shon v. Burke -- was a misrepresentation under DR 1-102(A)(3). 2. DR 1-102(A)(4) It is professional misconduct for a lawyer to "[e]ngage in conduct that is prejudicial to the administration of justice." DR 1-102(A)(4). To establish a violation of that rule, the Bar must show: (1) that the accused lawyer engaged in "conduct" by doing something that the lawyer should not have done or by failing to do something that the lawyer was supposed to do; (2) that the conduct occurred during the course of a judicial proceeding or another proceeding that has the trappings of a judicial proceeding; and (3) that the conduct was prejudicial because it involved several acts that caused some harm to the administration of justice or because it involved a single act that caused substantial harm to the administration of justice. In re Gustafson, 327 Or 636, 643, 968 P2d 367 (1998). The Bar argues that the accused violated DR 1-102(A)(4) by applying for a default judgment for costs against Burke, contrary to the settlement agreement that called for dismissal of Shon's action against Burke, and by failing to give Burke notice, under ORCP 69 A(1), of his intent to apply for a default judgment. The Bar contends that Burke's "substantive interests were substantially and adversely affected by the Accused's conduct." As we have explained above, to establish a violation of DR 1-102(A)(4), the Bar must satisfy all three prongs of the test summarized in Gustafson. Here, the Bar has not demonstrated that the accused's conduct in applying for the default judgment was an act that caused substantial harm to the administration of justice. To the extent that the Bar makes an argument regarding the "prejudice" prong of that test in this matter, it focuses solely on prejudice to Burke, not on prejudice to the administration of justice. The Bar has not met its burden of proving that the accused violated DR 1-102(A)(4). 3. DR 7-110(B) Unless otherwise authorized by law, it is professional misconduct for a lawyer to communicate in writing on the merits with a judge or an official before whom the proceeding is pending unless the lawyer "promptly delivers a copy of the writing to opposing counsel or to the adverse party if the adverse party is not represented by a lawyer." DR 7-110(B)(2). This court has construed the term "on the merits" in that rule to include procedural as well as substantive matters. In re Schenck, 320 Or 94, 103, 879 P2d 863 (1994). The Bar contends that the accused violated DR 7-110(B) by failing to notify Burke of his intent to apply for a default judgment. The accused responds that he was not required to provide Burke with notice because he was "authorized by law" under ORCP 69 A(1) not to do so. ORCP 69 A(1) requires a party seeking a default judgment to provide the opposing party with written notice at least ten days prior to the entry of the order of default "[i]f 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[.]" (Emphasis added.) It is undisputed that Burke did not file an answer to Shon's complaint and sought instead to settle the case. The Bar contends that, by informing the accused before the settlement that she objected to paying his costs, Burke triggered the ten-day notice requirement in ORCP 69 A(1). The Bar relies on Morrow Co. Sch. Dist. v. Oreg. Land and Water Co., 78 Or App 296, 300 n 4, 716 P2d 766 (1986), for the proposition that "almost anything that indicates that a party is interested in the case will suffice" to trigger the ten-day notice requirement in ORCP 69 A(1). The Bar reads too much into that statement in Morrow. By its terms, ORCP 69 A(1) requires notice to an opposing party only if the party has filed an appearance or provided written notice of an intent to file an appearance. The legal meaning of the word "appearance" is "[a] coming into court as a party" or "[a] formal proceeding by which a defendant submits himself to the jurisdiction of the court." Black's Law Dictionary, 97 (6th ed 1990). Burke's letter to the accused stating that she was opposed to paying costs was not an "appearance" as that term is used in ORCP 69 A(1). The accused was not required to serve Burke with notice that he intended to apply for a default judgment. See ORCP 9 A (no service required on parties in default for failure to appear). Because an exception to the general rule requiring notice was "authorized by law," the accused did not violate DR 7-110(B). B. Collins Matter 1. DR 1-102(A)(3) and DR 7-102(A)(5) As we have discussed above, a lawyer commits professional misconduct by knowingly engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. DR 1-102(A)(3). The misrepresentation must be material. Moreover, in representing a client or the lawyer's own interests, the lawyer shall not "[k]nowingly make a false statement of law or fact." DR 7-102(A)(5). The Bar contends that the accused knowingly caused the trial judge in the Collins matter to sign an order containing a provision that the judge had not considered regarding the pretrial and trial dates in Collins v. Harbertson. The accused does not respond. At the trial panel hearing, the accused testified that he recalled hearing the judge mention that he wished to change the pretrial conference and trial dates in Collins v. Harbertson. Harberton's lawyers testified that the judge had made no such statement. Assessing the witnesses' testimony, which was the only evidence regarding those charges, we agree with the trial panel that the accused knowingly misrepresented the judge's intent regarding the scheduling of Collins v. Harbertson. The misrepresentation was material in that it affected the judge's decision-making process about the scheduling of the trial. The accused violated DR-102(A)(3) and DR 7-102(A)(5). We agree with the trial panel's finding that the accused made a knowing misrepresentation to two Washington County judges when he stated that Johnston and Brisbee had made no effort to notify him before filing the motion to quash the accused's subpoena. Even assuming that the accused did not receive either Johnston's voice mail message or the facsimile, the record nonetheless establishes that Johnston and Brisbee attempted to consult with the accused through Morrow, and that the accused's contrary assertion was a knowing misrepresentation in violation of DR 1-102(A)(3) and DR 7-102(A)(5). 2. DR 1-102(A)(4) Our finding that the accused made misrepresentations in violation of DR 1-102(A)(3) establishes that the accused did something that he was not supposed to do, thus satisfying the first prong of the three-pronged test for finding a violation of DR 1-102(A)(4), described earlier in this opinion. See Gustafson, 327 Or at 643 (summarizing three-pronged test). The accused's conduct occurred during the course of a judicial proceeding in the case of Collins v. Harbertson, thereby satisfying the second prong. The proposed order that the accused submitted to the judge changing the pretrial and trial dates contained a misrepresentation that was calculated to induce the judge to acquiesce to a trial date that the accused preferred. Changing the trial date substantially harmed the administration of justice, satisfying the third -- or prejudice -- prong. The accused's misrepresentation made it necessary for the judge to resolve the dispute that arose as a result of the accused's misrepresentation and to redraft his order. See In re Meyer (I), 328 Or 211, 214, 970 P2d 652 (1999) (harm under DR 1-102(A)(4) can occur when procedural functioning of a case or hearing is impaired; harm may be actual or potential). The accused violated DR 1-102(A)(4). 3. DR 7-110(B) As previously noted, DR 7-110(B) provides that, unless otherwise authorized by law, it is professional misconduct for a lawyer to communicate in writing on the merits with a judge or an official before whom the proceeding is pending unless the lawyer "promptly delivers a copy of the writing to opposing counsel or to the adverse party if the adverse party is not represented by a lawyer." The Bar contends that the accused violated that rule by failing to serve opposing counsel with his written motion to disqualify the trial judge. The motion was "on the merits" in Collins v. Harbertson. The accused does not dispute that he filed a written motion on the merits. However, he contends that he filed his motion to disqualify under ORS 14.270 (8) and that nothing in that statute requires service "upon anyone or any entity other than the court." The accused's reliance on ORS 14.270 is misplaced. That statute provides that, under certain circumstances, notice to the court may be oral. The statute creates no exception to the general rule regarding service of a written motion on opposing counsel. See ORCP 9 A (unless excepted by rule, "every written motion * * * shall be served upon each of the parties"). The accused violated DR 7-110(B) by failing to serve notice of the written motion to disqualify on opposing counsel. (9) C. The Cassady Matter 1. DR 6-101(A) A lawyer must provide "competent representation to a client," which requires "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." DR 6-101(A). This court has held that determining whether a lawyer acted incompetently, in violation of that rule, is a fact-specific inquiry: "The question whether a lawyer has competently represented a client is, of course, a fact-specific inquiry. A review of this court's cases shows that incompetence often is found where there is a lack of basic knowledge or preparation, or a combination of those factors. "In contrast, lawyers have been found not guilty of providing incompetent representation where the lawyers showed experience and professional ability to perform work, or where the Bar failed to prove that a position taken by the lawyer was 'advanced in pretense or bad faith, or in culpable ignorance.' In sum, competence or incompetence can best be measured on a case-by-case basis using the standard stated in DR 6-101(A) itself." In re Gastineau, 317 Or 545, 553-54, 857 P2d 136 (1993) (footnote and citations omitted). In its cause of complaint, the Bar alleged that the accused failed to represent Cassady competently at trial. The Bar identifies many deficiencies in the accused's performance, ranging from repeatedly asking witnesses questions about which they had no knowledge and asking witnesses to give opinions about reports that were not in evidence, to his inability to authenticate or establish proper foundations for evidence. The accused responds that Greene "did not offer any specific basis * * * as to whether the accused had performed his duties in a competent manner in the Cassady trial." Our review of the record substantiates the Bar's contention that the accused did not represent Cassady competently at trial. Several examples demonstrate the accused's lack of legal knowledge, skill, or preparation. First, the accused repeatedly attempted to inject the issue of Huber's insurance at the trial. The trial judge admonished the accused many times not to mention insurance. Nonetheless, the accused continued to do so. The accused persists in his belief that the jury was entitled to hear evidence about Huber's insurance coverage and that the evidence would have been admissible had it not been for the judge's bias against the accused. Second, the accused was not prepared for trial. Greene testified that it is "absolutely essential" for a lawyer to have a copy of the client's deposition transcript at trial so that the client does not mistakenly make statements inconsistent with the client's prior testimony. The accused did not order a copy of Cassady's deposition transcript for use at trial. In addition, the accused failed to show Cassady's medical bills to his own medical expert before trial, causing the expert to be unprepared to testify at trial. Third, during the trial, the accused attempted to show the jury through the testimony of Cassady's treating physician that Cassady had a good work ethic, even though the physician had no knowledge of her work ethic. The accused appeared to be oblivious to that problem. Fourth, the accused repeatedly posed questions to witnesses seeking hearsay or other incompetent evidence, a practice that he continued even after the trial judge had ruled the evidence inadmissible. Fifth, the accused made multiple unfounded objections during the trial. Finally, the accused moved for a new trial after accepting satisfaction of judgment on Cassady's behalf, despite the long-established rule that a party cannot move for a new trial after accepting the benefits of a judgment in its favor. See Snipes v. Beezley, 5 Or 420, 422 (1875) (too late to move for new trial after receiving payment on judgment). The accused's conduct at Cassady's trial reveals a lack of understanding of basic legal concepts concerning the conduct of a trial and the consequences of accepting satisfaction of a judgment. Both the trial judge in the Cassady trial and Greene testified that the accused had performed incompetently in the Cassady trial. According to the judge, "in 14 years, it was the worst presentation by an attorney I've ever seen." On de novo review, we find that the accused performed incompetently in his representation of Cassady at trial. The accused violated DR 6-101(A). 2. DR 7-106(C)(1) and DR 7-106(C)(7) In appearing in the lawyer's professional capacity before a tribunal, a lawyer shall not "[s]tate 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," DR 7-106(C)(1), or "[i]ntentionally or habitually violate any established rule of procedure or of evidence," DR 7-106(C)(7). The Bar contends that, in the Cassady matter, the accused violated both those rules by referring to Huber's insurance coverage during voir dire and during the trial itself after the judge had admonished him not to do so. The accused acknowledges that he made several references to insurance but apparently believes that he was entitled to do so. The Bar's expert witness, Greene, testified that the rules do not allow a lawyer to discuss insurance during voir dire in a personal injury case and that the accused's repeated references to Huber's insurance could have caused a mistrial. Even without instruction from the court, the accused should have known that evidence of Huber's insurance was not admissible. However, in light of the judge's repeated warnings that the accused was not to mention insurance coverage, the accused had no reasonable basis for believing that he was entitled to do so. The accused's reference to insurance was intentional. The accused had filed a motion in limine to prevent Huber's witnesses from mentioning any collateral sources of payment that Cassady might have received. That motion established that the accused understood that insurance could be a sensitive subject at trial. Although he had sought the trial court's aid in preventing Huber's witnesses from referring to insurance payments that Cassady might have received, the accused nonetheless repeatedly attempted to inform the jury that Huber had insurance coverage. The accused violated DR 7-106(C)(1) and DR 7-106(C)(7). D. Martin Matter 1. DR 6-101(A) As discussed above, DR 6-101(A) requires a lawyer to represent clients competently. The Bar alleged that the accused had violated that rule by delegating Martin's response to the defense motions for summary judgment to Gresham and then failing to supervise Gresham adequately. The accused responds that he provided what he believed to be reasonable supervision of Gresham, but he faults Gresham for failing to confer with the accused on important matters. The accused also contends that Gresham's testimony that the accused did not give him any guidance in preparing to oppose the summary judgment motions was biased, that Gresham obviously had been coached by the Bar regarding his testimony, and that time records should clearly demonstrate Gresham's failure to confer with the accused on important matters. Before the trial panel, Gresham testified that, when the accused assigned him to oppose the defense motions for summary judgment in the Martin case, Gresham had had no experience in handling such matters and that he had received no guidance from the accused. In his deposition, the accused stated that he had not conferred with Gresham about how to oppose the motions for summary judgment and that, when the accused learned that Gresham had not filed the documents required to create material issues of fact, the accused, like everyone else in his office with whom he spoke about the matter, was appalled. Before the trial panel, by contrast, the accused testified that he thought he had supervised Gresham adequately. As noted, the accused contends before this court that he provided Gresham what the accused believed to be reasonable supervision in the Martin case. The accused does not dispute that he had supervisory responsibility for Gresham or that he was Martin's attorney of record. We find it highly probable that, consistent with the accused's deposition testimony, the accused did not supervise Gresham's opposition to the defense motions for summary judgment in the Martin matter. The accused violated DR 6-101(A). See In re Spies, 316 Or 530, 538, 852 P2d 831 (1993) (lawyer failed to act competently, in part, by failing to prepare certified law student to handle hearing). 2. DR 6-101(B) DR 6-101(B) provides that a lawyer "shall not neglect a legal matter entrusted to the lawyer." The Bar also alleged that, by entrusting opposition of the summary judgment motions to Gresham, the accused violated that rule. The accused responds that Gresham had the requisite qualifications to be an effective advocate for clients in litigation. To prove a violation of DR 6-101(B), the Bar must show a "course" of negligent conduct. In re Meyer (II), 328 Or 220, 225, 970 P2d 647 (1999). The Bar has failed to prove by clear and convincing evidence that the accused has engaged in a "course" of negligent conduct in violation of DR 6-101(B). E. Summary In sum, we find that the accused violated DR 1-102(A)(3) in both the Burke and Collins matters; DR 1-102(A)(4), DR 7-102(A)(5), and DR 7-110(B) in the Collins matter; DR 6-101(A), DR 7-106(C)(1) and DR 7-106(C)(7) in the Cassady matter; and DR 6-101(A) in the Martin matter. Those violations fall into four categories: misrepresentation and conduct prejudicial to the administration of justice; incompetence; ex parte contact; and misconduct at trial. We turn to the appropriate sanction. In that regard, the Bar argues that this court should affirm the trial panel sanction and disbar the accused. The accused responds that the complaint should be dismissed. III. SANCTION In arriving at the appropriate sanction for lawyer misconduct, this court makes a preliminary determination by consulting the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards). Gustafson, 327 Or at 652. The ABA Standards direct us to analyze the accused's misconduct in light of the following factors: the duty violated, the accused's mental state at the time of the misconduct, the actual or potential injury that the accused's misconduct caused, and the existence of any aggravating or mitigating circumstances. ABA Standard 3.0. Finally, we analyze this court's case law to determine the sanction that should be imposed in the particular situation. In re Devers, 328 Or 230, 241, 974 P2d 191 (1999). We analyze the factors described above with respect to each of the categories of misconduct identified in this case: misrepresentation and conduct prejudicial to the administration of justice; incompetence; ex parte contact; and misconduct at trial. A. Preliminary Determination 1. Misrepresentation and Conduct Prejudicial to Administration of Justice The accused's misrepresentations in the Burke and Collins matters violated his duty to the public to maintain personal integrity. ABA Standard 5.1. The accused violated his duty to the legal system to refrain from making false statements and misrepresentations. ABA Standard 6.1. We find that the accused's misrepresentations were intentional. That is, the accused acted with a conscious objective or purpose to accomplish a particular result. ABA Standards at 7. In the Burke matter, the accused intentionally submitted a default judgment for the purpose of being awarded costs after leading Burke to believe that he would dismiss Shon's action if Burke agreed to the settlement. The accused's dishonesty caused Burke actual injury, because a default judgment was entered against her. In the Collins matter, the accused wanted the pretrial and trial dates changed, and he intentionally misrepresented to the trial judge that the judge had intended to change those dates. The accused also intentionally told several judges in the Collins matter that opposing counsel had made no effort to notify the accused of the hearing to quash the subpoena that the accused had issued to the Safeco employee, apparently with the motive to impugn the integrity of opposing counsel. The accused's intentional misrepresentations created the potential for significant injury. As noted, the accused's misrepresentations to the trial judge regarding the "changed" pretrial conference and trial dates caused substantial harm to the administration of justice. The accused's misrepresentations in the Burke and Collins matters seriously adversely reflect on his fitness to practice law. ABA Standard 5.11(b) makes disbarment the appropriate sanction when a lawyer engages in intentional, albeit noncriminal, misconduct that involves dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects upon the lawyer's fitness to practice law. ABA Standard 6.11 generally makes disbarment the appropriate sanction when a lawyer, with the intent to deceive the court, makes a false statement and causes serious or potentially serious injury to a party or causes a significant or potentially significant adverse effect on the legal proceeding. The ABA Standards call for such a harsh sanction because, as explained in the introduction to ABA Standard 5.0, "[t]he most fundamental duty which a lawyer owes the public is the duty to maintain the standards of personal integrity upon which the community relies." The ABA Standards suggest that disbarment is the appropriate sanction for the accused's misrepresentations. 2. Incompetence Having agreed to represent a client, a lawyer must be competent to perform the services requested. ABA Standard 4.0. It is evident from the record that the accused tenaciously represented Cassady and believes that he did so competently. However, tenacity is not the same as competence, and, as our review of the record has shown, the accused did not represent either Cassady or Martin competently. In the Cassady litigation, the accused's incompetent trial techniques harmed the legal system and the parties. In the Martin matter, the accused's incompetence harmed his client. Disbarment generally is appropriate when a lawyer demonstrates a lack of understanding of the most fundamental legal doctrines or procedures and the client is actually or potentially injured. ABA Standard 4.51. However, disbarment as a sanction should be imposed only on lawyers "whose course of conduct demonstrates that they cannot or will not master the knowledge and skills necessary for minimally competent practice." Commentary to ABA Standard 4.51. Suspension generally is appropriate when a lawyer engages in an area of practice in which the lawyer knows that he or she is not competent and causes injury or potential injury to the client. ABA Standard 4.52. Reprimand generally is appropriate when a lawyer: (1) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or (2) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client. ABA Standard 4.53. Our review of the record in this case leads to the conclusion that disbarment would not be an appropriate sanction for the accuse's incompetence in the Cassady and Martin matters, because we are not persuaded that the accused is incapable of mastering the knowledge and skills necessary for minimally competent practice. Neither is it clear to us that the accused engaged in practice in an area of the law in which he knew he was not competent. However, the records of the Cassady and Martin matters reveal that the accused failed to understand relevant legal doctrines or procedures, and caused actual injury. In light of the significant sanction we impose for all the accused's misconduct, discussed below, we need not address what sanction would be appropriate if this proceeding involved only the accused's incompetence. 3. Ex parte contact The accused violated his duties as a lawyer by engaging in ex parte communications with a judge in the Cassady matter. ABA Standard 6.3. We find the accused's mental state in filing the written disqualification motion without serving opposing counsel to be negligent, as he misunderstood his legal obligation to do so. In failing to serve opposing counsel with the disqualification motion, the accused caused actual injury. Opposing counsel arrived to argue the motion to compel, only to discover that the accused had succeeded in disqualifying the judge who was assigned to hear the motion and delaying the hearing. ABA Standard 6.33 provides that reprimand generally is appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party. Standing alone, the accused's misconduct regarding his ex parte contact would merit a reprimand. 4. Trial misconduct The accused abused the legal process by repeatedly raising the issue of Huber's insurance to the jury during the Cassady trial. ABA Standard 6.2. As we have explained, we find that the accused acted intentionally. Injecting the existence of Huber's insurance at trial caused potential injury, because the threat of a mistrial hung over the proceedings after the accused mentioned insurance. The trial judge testified that he would have granted a mistrial if the defense had moved for one. ABA Standard 6.21 provides that disbarment generally is appropriate when a lawyer knowingly violates a rule with the intent to obtain a benefit for the lawyer or another and causes serious injury or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding. It appears that, in raising the issue of Huber's insurance in the Cassady trial, the accused intended to obtain a benefit for Cassady, namely, assuring the jury that it could award Cassady damages without harming Huber. The ABA Standards indicate that disbarment is the appropriate sanction for the accused's misconduct in intentionally and persistently attempting to interject the fact of Huber's insurance at trial. In summary, the ABA Standards point to disbarment as the appropriate sanction for the accused's intentional misrepresentations and his trial misconduct. The ABA Standards point to a sanction short of disbarment for the accused's incompetence and his ex parte contact. We turn to aggravating and mitigating circumstances. B. Aggravating and Mitigating Circumstances "[A]ggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline to be imposed." ABA Standard 9.21. The first aggravating factor in this proceeding is that the accused has a prior disciplinary offense. ABA Standard 9.22(a). In 1994, the accused stipulated to discipline for contacting a represented party without the permission or presence of that party's counsel, in violation of DR 7-104(A)(1). The accused received a public reprimand for that violation. (10) In weighing the prior offense as an aggravating circumstance, we consider its relative seriousness and the resulting sanction; the similarity of the prior offense to the offense in the present case; the number of prior offenses; the relative recency of the prior offense; and the timing of the current offenses in relation to the prior offense and resulting sanction. We also consider whether the accused lawyer had been sanctioned for the prior offense before engaging in the misconduct at issue in the present case. In re Jones, 326 Or 195, 200, 951 P2d 149 (1997). Applying those considerations, we conclude that the accused's prior offense deserves little weight as an aggravating factor in this proceeding. His record of discipline is limited to one instance of misconduct for which he received only a public reprimand. That sanction regarded a matter that is not similar to the misconduct at issue here, and the misconduct occurred several years ago. We turn to other aggravating circumstances. The accused has engaged in misconduct involving four different client matters. In three of those matters, the accused committed multiple ethical violations. ABA Standard 9.22(d). The accused has failed to acknowledge the wrongful nature of any of his misconduct. ABA Standard 9.22(g). The accused has substantial experience in the practice of law, having been admitted to the bar in 1987. ABA Standard 9.22(i). Mitigating circumstances are "any considerations or factors that may justify a reduction in the degree of discipline to be imposed." ABA Standard 9.31. The only mitigating factor here is that the accused cooperated with the Bar during its initial investigation. ABA Standard 9.32(e). C. Oregon Cases In past cases, when this court has found misrepresentation in addition to other misconduct, the court has imposed lengthy suspensions or disbarment. See In re Gallagher, 332 Or 173, 190, 26 P3d 131 (2001) (two-year suspension for two misrepresentations plus other misconduct); In re Wyllie, 327 Or 175, 184, 957 P2d 1222 (1998) (two-year suspension for submitting false MCLE forms and failing to cooperate with investigation); In re Recker, 309 Or 633, 641, 789 P2d 663 (1990) (two-year suspension for misrepresentation to court plus other disciplinary rule violations). However, multiple misrepresentations to courts, the Bar, or clients, combined with other serious ethical violations, has led to disbarment. For example, this court disbarred a lawyer who notarized false documents and made misrepresentations to clients in an unlawful living trust scheme. In re Morin, 319 Or 547, 566, 878 P2d 393 (1994). The accused in that proceeding also failed to respond truthfully to the Bar's inquiries during its investigation. Id. at 564. This court also disbarred a lawyer who filed a false affidavit with a probate court, committed a misdemeanor, and violated several other disciplinary rules. In re Hawkins, 305 Or 319, 326, 751 P2d 780 (1988). Further, this court disbarred a lawyer who, among other things, made multiple misrepresentations to clients and court staff, represented a client incompetently, and neglected a legal matter. Spies, 316 Or at 541. However, the lawyer's conduct in that proceeding was part of a downward personal spiral of "increasingly irresponsible" conduct. Id. at 540. Other situations in which this court has disbarred a lawyer have involved serious misconduct on the heels of an already lengthy record of disciplinary violations. See, e.g., In re Miller, 310 Or 731, 739, 801 P2d 814 (1990) (multiple misrepresentations, excessive fee, lengthy disciplinary record). In this proceeding, the accused not only made misrepresentations in the Burke and Collins matters, he provided incompetent representation in the Cassady and Martin matters. We note that, in Spies, misrepresentation and incompetence played a significant role in the decision to disbar the lawyer. Spies, 316 Or at 540. However, in the case that is most similar factually to this case, this court imposed a lengthy suspension rather than disbarring the lawyer. In In re Chambers, 292 Or 670, 642 P2d 286 (1982), the lawyer negligently failed to prepare and return a proper summons and failed to communicate with his client. In a criminal matter, the lawyer was incompetent in conducting his investigation of exculpatory evidence on behalf of his client and subsequently trying the case "by the seat of his pants." Id. at 678. In a third matter, the lawyer knowingly made a false statement of fact when he represented to an accident victim that he was an insurance agent. Id. at 680-81. When Chambers was decided, the maximum suspension possible short of disbarment was three years. See BR 6.1(a)(iii) (three-year suspension maximum length for proceedings commenced before January 1, 1996). (11) This court held that a two-year suspension was the appropriate sanction. Chambers, 292 Or at 682. In this proceeding, the Bar, like the trial panel, asserts that disbarment is required to protect the public and the integrity of the profession. However, this court's case law does not support disbarment for the accused's misconduct, although it does support a lengthy suspension. The accused's conduct is more egregious than the conduct in Chambers. The accused acted dishonestly in submitting a default judgment after settling the dispute with Burke. The accused intentionally misrepresented to the trial judge that the judge had ordered a change in the pretrial conference and trial dates in the Collins matter. The accused intentionally sought to impugn the integrity of opposing counsel in the Collins matter when he claimed that opposing counsel had made no effort to notify him of a hearing to quash the subpoena that he had served on a Safeco employee. The accused deliberately and repeatedly injected the issue of insurance into a trial to prejudice the jury in favor of his client, Cassady. The trial judge found the accused's representation of Cassady to have been the worst performance he had seen as a trial judge, resulting in prejudice to Cassady's interests. The accused's failure to assure that evidence was presented to defeat the motions for summary judgment in the Martin matter also damaged his client. The foregoing examples, taken together, reveal a disturbing pattern of a lawyer who disrupts the functioning of the legal system and the interests of parties in that system through a combination of intentional and negligent misconduct. Considering together the ABA Standards, the aggravating factors, and this court's case law, we conclude that a three-year suspension from the practice of law is the appropriate sanction. Requiring the accused to show the requisite character and fitness to practice law for readmission under BR 8.1(a)(iv) following that suspension will protect the public and the integrity of the profession. The accused is suspended for three years, effective 60 days from the date of the filing of this decision. 1. The accused admitted that he had heard pounding on his office door that evening and had seen someone outside, but he denied that he had seen Morrow deliver anything or that he had found documents left in the door jamb. 2. The trial panel stated that the accused had not violated DR 7-102(A)(5) when he failed to serve opposing counsel with the motion to disqualify the trial judge. However, it is clear from the trial panel's opinion that it meant to state that the accused had not violated DR 7-110(B). The trial panel did not address the Bar's allegation that the accused also had violated DR 7-102(A)(5) by knowingly making a false statement of law or fact in the Collins matter. 3. The trial panel did not address the Bar's allegation that the accused had violated DR 7-106(C)(7) by intentionally or habitually violating rules of procedure or evidence in his handling of the Collins matter, and the Bar has abandoned that issue on review. 4. The court eventually vacated the contempt order so that the matter could be heard by another judge. The record does not reveal the outcome. 5. The court thereafter vacated that order for lack of jurisdiction, because the accused already had filed an appeal from the order denying his motion for a new trial. 6. Although the Bar's cause of complaint alleged that the accused had made misleading statements to the court and in affidavits in connection with a discovery dispute over a photograph of Cassady's damaged car that fell out of the accused's file during the trial, the Bar did not charge the accused with violating DR 7-102(A)(5) or ORS 9.460. Nonetheless, as we note below, the trial panel concluded that the accused violated DR 7-102(A)(5) and ORS 9.460 by making misleading statements regarding the photograph. The Bar does not ask this court to hold that the accused violated any disciplinary rules in connection with the photograph incident at Cassady's trial. 7. The trial panel also concluded that the accused had violated DR 7-102(A)(5) and ORS 9.460 in the Cassady matter, even though the Bar did not charge those violations in its complaint. The Bar does not argue those violations on review. In addition, on review, the Bar has abandoned its charge of neglect under DR 6-101(B) in the Cassady matter. 8. ORS 14.270 provides: "An affidavit and motion for change of judge to hear the motions and demurrers or to try the case shall be made at the time of the assignment of the case to a judge for trial or for hearing upon a motion or demurrer. Oral notice of the intention to file the motion and affidavit shall be sufficient compliance with this section providing that the motion and affidavit are filed not later than the close of the next judicial day. No motion to disqualify a judge to whom a case has been assigned for trial shall be made after the judge has ruled upon any petition, demurrer or motion other than a motion to extend time in the cause, matter or proceeding; except that when a presiding judge assigns to the presiding judge any cause, matter or proceeding in which the presiding judge has previously ruled upon any such petition, motion or demurrer, any party or attorney appearing in the cause, matter or proceeding may move to disqualify the judge after assignment of the case and prior to any ruling on any such petition, motion or demurrer heard after such assignment. No party or attorney shall be permitted to make more than two applications in any action or proceeding under this section." (Emphasis added.) 9. We decline to address the Bar's charges under ORS 9.460(2) and ORS 9.527(4), because they are redundant of its charges under DR 1-102(A)(3) and DR 7-102(A)(5), and the Bar does not argue that a finding that the accused had violated those statutes would enhance or otherwise affect the sanction. See In re Kimmell, 332 Or 480, 487, 31 P3d 414 (2001) (illustrating point); In re Lawrence, 332 Or 502, 511, 31 P3d 1078 (2001) (same). 10. The Bar had charged the accused with violating several disciplinary rules, but the stipulation for discipline involved only DR 7-104(A)(1). 11. Under BR 6.1(a)(iv), the maximum period of suspension short of disbarment in proceedings commenced after December 31, 1995, is five years.

38f45833fd710364104401c68745d8d6147aa01a16181235fab9c2a8a290528f

2001-12-06T00:00:00Z

ada9aa3d-588e-469a-9f43-653809ee83ed

Trebelhorn v. Prime Wimbledon SPE, LLC

S069417

oregon

Oregon Supreme Court

No. 3 February 15, 2024 27 IN THE SUPREME COURT OF THE STATE OF OREGON Robert TREBELHORN, Petitioner on Review, and ATTORNEY GENERAL, Judgment Creditor, v. PRIME WIMBLEDON SPE, LLC, a Delaware limited liability company; and Prime Administration, LLC, a Delaware Limited liability company, dba Prime Group, dba Wimbledon Square, dba Wimbledon Square Apartments, Respondents on Review, and Andrea SWENSON, Defendant. (CC 16CV40959) (CA A170010) (SC S069417) On review from the Court of Appeals.* Argued and submitted November 29, 2022. Kathryn H. Clarke, Portland, argued the cause for peti­ tioner on review. Mark McDougal, Kafoury & McDougal, Portland, filed the brief for petitioner on review. Also on the brief was Gregory Kafoury. Raffi Melkonian, Wright Close & Barger, LLP, Houston, Texas, argued the cause for respondents on review. Matthew C. Casey, Bullivant Houser Bailey PC, Portland, filed the brief for respondents on review. Also on the brief were Jessica Z. Barger, Raffi Melkonian, and Brian J. Cathey, Wright Close & Barger, LLP, Houston, Texas. ______________ *  Appeal from Multnomah County Circuit Court, Karin J. Immergut, Judge. 316 Or App 577, 500 P3d 675 (2021). 28 Trebelhorn v. Prime Wimbledon SPE Kristian Roggendorf, The Zalkin Law Firm P.C., San Diego, California, filed the brief for amicus curiae Oregon Trial Lawyers Association. Before Flynn, Chief Justice, and Duncan, Garrett, James, and Masih, Justices, and Kistler and Balmer, Senior Judges, Justices pro tempore.** FLYNN, C.J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. ______________ **  Walters, J., retired December 31, 2022, and did not participate in the deci­ sion of this case. Nelson, J., resigned February 25, 2023, and did not participate in the decision of this case. DeHoog and Bushong, JJ., did not participate in the consideration or decision of this case. Cite as 372 Or 27 (2024) 29 FLYNN, C.J. This case requires us to determine whether the jury assessed a “grossly excessive” amount of punitive damages, contrary to the prohibition of the Due Process Clause of the Fourteenth Amendment against arbitrary deprivations of liberty or property. Plaintiff suffered a serious knee injury at his apartment complex when his leg punched through a section of elevated walkway that had been weakened by dry rot. Defendants Prime Wimbledon SPE, LLC, and Prime Administration, LLC, who owned and managed the apartment complex, were aware that the walkway and other structures at the complex had deteriorated to the point that they required “life safety” repairs, but they had chosen not to repair the walkway on which plaintiff was injured. Plaintiff sued defendants for negligence and violation of Oregon’s Residential Landlord-Tenant Act and prevailed. In addi­ tion to awarding plaintiff just under $300,000 in economic and noneconomic damages, the jury found that defendants’ conduct justified imposing punitive damages of $10 million against each defendant. On post-verdict review of the punitive damages verdict, the trial court concluded that the evidence permit­ ted the jury to find defendants liable for some amount of punitive damages but that imposing $10 million in puni­ tive damages would violate defendants’ due process rights. The trial court also determined that the maximum amount of punitive damages that due process will permit on this record is nine times the amount of compensatory damages awarded by the jury and, accordingly, entered judgment for the reduced amount of just under $2.7 million in punitive damages against each defendant. On cross-appeals from the parties, the Court of Appeals agreed with all of the trial court’s decisions and affirmed, and this court allowed review. In briefing to this court, plaintiff argues that the jury’s full amount of punitive damages must be reinstated, and defendants urge us to simply affirm the trial court’s judgment for the reduced amount of $2.7 million in punitive damages against each defendant. Those arguments frame and narrow the scope of our inquiry. As we will explain, 30 Trebelhorn v. Prime Wimbledon SPE the sole question that we answer is whether the trial court correctly concluded that the Due Process Clause precluded the court from entering judgment for the full amount of punitive damages found by the jury. We agree with the trial court that, on this record, $10 million in punitive damages would violate defendants’ due process rights. Accordingly, we affirm the judgment of the trial court and the decision of the Court of Appeals. I.  BACKGROUND We state the facts in the light most favorable to plaintiff because he was the prevailing party before the jury. Hamlin v. Hampton Lumber Mills, Inc., 349 Or 526, 528, 246 P3d 1121 (2011). At the time of his injury, in February 2016, plaintiff was 47 years old. He lived an active lifestyle, work­ ing as a high school baseball coach and running an after- school sports program for children. He was living in an apartment complex owned and managed by defendants in Portland, Oregon. One night, plaintiff was walking across a second-story concrete walkway, connecting his apartment building to a parking structure, when a portion of the con­ crete gave way under his right foot, creating a hole in the walkway of approximately nine by 18 inches. Plaintiff’s right leg dropped into the hole up to his thigh, and he landed in a sitting position on the walkway. His right knee was in pain, but he was able to lift himself out of the hole and noti­ fied apartment staff of the hazard. The next day, plaintiff’s knee remained in pain and was swollen. He went to the hospital and was instructed to return if the swelling did not go down. In the weeks that followed, the swelling did not go down, and the pain and weakness in plaintiff’s knee prevented him from partici­ pating in his normal activities. After five weeks without improvement, plaintiff returned to the hospital. The doctor diagnosed plaintiff with an acute meniscus tear in his right knee, resulting from his fall at the apartment complex. Plaintiff tried to improve his knee through phys­ ical therapy and activity modification. But nearly a year after the fall, his activities were still significantly limited by knee weakness and instability. He was not able to coach Cite as 372 Or 27 (2024) 31 as he previously had, by demonstrating to the kids how to perform certain actions, and he was no longer able to par­ ticipate in many of the sports programs that he was tasked with running. Plaintiff then underwent surgery to repair the injury to his knee, participated in physical therapy, and exercised his knee to improve strength and stability. By the time of trial, in May 2018, plaintiff had largely been able to return to his normal activities, but he still experienced lingering pain and weakness in his knee when engaging in more strenuous physical activities. His coaching career path had been disrupted. And, according to plaintiff’s doctor, the surgery left plaintiff with an increased chance of developing arthritis in his knee. Plaintiff sued defendants for negligence and vio­ lation of Oregon’s residential landlord-tenant laws, and he sought economic damages of just over $45,000 plus noneco­ nomic damages of $350,000. Plaintiff also obtained leave to amend his complaint to add a claim for punitive damages against each defendant in the amount of $10 million. See ORS 31.725 (describing process for pleading a request for punitive damages). At trial, both defendants admitted that they had negligently maintained the walkway through which plaintiff fell and that they had violated the obligations of a landlord under the Residential Landlord-Tenant Act. Specifically, defendants admitted that they were negligent in failing to properly repair or replace cracked concrete on the walkway, in patching the walkway in a manner that was insufficient to withstand the weight of a pedestrian, and in failing to warn plaintiff of the defect in the walkway. Defendants, however, disputed the extent of damages that plaintiff suf­ fered as a result of the incident and specifically denied the claim for punitive damages. Before the case was submitted to the jury, defendants moved for dismissal of the claim for punitive damages, argu­ ing that the evidence was insufficient to support a punitive damage award. By statute, punitive damages are unavail­ able “unless it is proven by clear and convincing evidence 32 Trebelhorn v. Prime Wimbledon SPE that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outra­ geous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.” ORS 31.730(1). The trial court rejected defendants’ arguments and denied their motion. At the conclusion of trial, the jury was instructed on the proof required for it to award punitive damages and on how to determine the amount for each defendant, if it decided to award punitive damages. Those instructions included that the jury should consider “separately for each [d]efendant”: “(a)  How reprehensible was that defendant’s conduct, con­ sidering the nature of that conduct and the defendant’s motive? “(b)  Is there a reasonable relationship between the amount of punitive damages and plaintiff’s harm? [and] “(c)  In view of that defendant’s financial condition, what amount is necessary to punish them and discourage future wrongful conduct?” The jury also was instructed that it “may not punish a defen­ dant merely because a defendant has substantial financial resources” and that it could “not award punitive damages to punish the defendant for harm caused to persons other than the plaintiff,” but that evidence “of harm suffered by persons other than the plaintiff as a result of the defendant’s con­ duct” could “be considered in evaluating the reprehensibility of defendant’s conduct.” After deliberating, the jury found that defendants’ conduct caused plaintiff to suffer $45,597.06 in economic damages for medical expenses (the full amount sought) and $250,000.00 in noneconomic damages for pain and emo­ tional distress. The jury also found that plaintiff had proved that both defendants had engaged in conduct that met the statutory standard for punitive damages and awarded $10 million in punitive damages against each defendant. Following the jury’s verdict, defendants asked the trial court to reduce the jury’s punitive damages award, argu­ ing that the amount set by the jury was “grossly excessive” Cite as 372 Or 27 (2024) 33 and would violate defendants’ rights under the Due Process Clause. The trial court agreed. The trial court concluded that, under the case law of this court and the United States Supreme Court, a punitive damages award that exceeds compensatory damages by a double-digit ratio will violate due process except in exceptional circumstances. Here, the amount of punitive damages that the jury assessed against each defendant was 33 times more than the amount that the jury found to be plaintiff’s damages for the harm that he suffered, and the trial court concluded that the facts did not present the type of exceptional circumstances that would justify such a disparity. The trial court concluded that the maximum constitutionally permissible amount of punitive damages for each defendant on this record was nine times the actual damages awarded by the jury—$2,660,373.54— and, accordingly reduced the punitive damages against each defendant to that amount. Plaintiff appealed the trial court’s order reducing the punitive damages award, and defendants cross-appealed, arguing that the evidence was insufficient to support any amount of punitive damages. The Court of Appeals affirmed the trial court’s judgment without opinion. Trebelhorn v. Prime Wimbledon SPE, LLC, 316 Or App 577, 500 P3d 675 (2021). Plaintiff filed a petition for review in this court, which we allowed. II.  ANALYSIS As indicated above, plaintiff urges this court to conclude that the Due Process Clause requires no reduction of the punitive damages in this case. Pointing primarily to what he contends was extremely reprehensible conduct, plaintiff asks that we reinstate the $10 million in punitive damages that the jury assessed against each defendant. Plaintiff does not separately argue that, if due process requires a reduction of the punitive damages verdict, the trial court nevertheless reduced the award more than due process requires. And defendants simply urge us to affirm the reduced amount of punitive damages imposed by the trial court; in this court, they do not dispute that the evi­ dence permitted the jury to award punitive damages, and they do not contend that the reduced amount imposed by 34 Trebelhorn v. Prime Wimbledon SPE the trial court is constitutionally excessive given the record in this case. Thus, the single question before us is whether the trial court and Court of Appeals correctly concluded that $10 million in punitive damages exceeds the amount that the Due Process Clause permits in this case.1 The question of whether a jury’s punitive damages award is constitutionally excessive is entirely governed by federal law because there is “no state law excessiveness chal­ lenge under the Oregon Constitution.”2 Goddard v. Farmers Ins. Co., 344 Or 232, 256, 179 P3d 645 (2008) (internal quo­ tation marks omitted). Indeed, under Oregon law, the jury’s assessment of punitive damages is a determination of fact subject to the prohibition in Article VII (Amended), section 3 of the Oregon Constitution that “no fact tried by a jury shall be otherwise re-examined in any court of this state.” DeMendoza v. Huffman, 334 Or 425, 447, 51 P3d 1232 (2002). That uniquely Oregon prohibition must yield, however, to the prohibition of the Due Process Clause of the Fourteenth Amendment against arbitrary deprivations of liberty or property. Honda Motor Co. v. Oberg, 512 US 415, 434-35, 114 S Ct 2331, 129 L Ed 2d 336 (1994). The Due Process Clause prohibits states from imposing “grossly excessive” punitive damages awards.3 State Farm Mut. Automobile Ins. Co. v. 1  In the course of responding to plaintiff’s arguments, defendants suggest that the appropriate punitive damages amount for purposes of our due process analysis inquiry might be $20 million in punitive damages (combining the $10 million that the jury assessed against each defendant). But defendants do not develop a due process argument for that approach and, in any event, do not ask us to correct any aspect of the trial court’s due process analysis. Thus, we assume that the trial court correctly framed the due process inquiry as whether $10 mil­ lion in punitive damages against either defendant is constitutionally excessive given the record of harm that plaintiff suffered. 2  Oregon statutes impose limits on the imposition of punitive damages that are not in dispute in this case. Specifically, ORS 31.730(1) provides that “[p]uni­ tive damages are not recoverable in a civil action unless it is proven by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.” And ORS 31.735(1) provides that 70 percent of any assessment of punitive damages is payable to the Attorney General—60 percent “for deposit in the Criminal Injuries Compensation Account of the Department of Justice Crime Victims’ Assistance Section” and 10 percent “for deposit in the State Court Facilities and Security Account.” 3  The Due Process Clause of the Fourteenth Amendment provides, in rel­ evant part, that no state shall “deprive any person of life, liberty, or property, without due process of law.” Cite as 372 Or 27 (2024) 35 Campbell, 538 US 408, 416, 123 S Ct 1513, 155 L Ed 2d 585 (2003).4 A.  Framework and Standard of Review We have previously emphasized that “  ‘[s]tates nec­ essarily have considerable flexibility in determining the level of punitive damages that they will allow,’  ” and the Due Process Clause permits states to impose punitive damages in amounts that are “  ‘reasonably necessary to vindicate the State’s legitimate interests in punishment and deterrence.’  ” Hamlin, 349 Or at 533 (quoting BMW of North America, Inc. v. Gore, 517 US 559, 568, 116 S Ct 1589, 134 L Ed 2d 809 (1996)). Thus, “[o]nly when an award can fairly be cat­ egorized 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.” Hamlin, 349 Or at 533 (quoting Gore, 517 US at 568). There is no easy answer to whether a particular award of punitive damages is “grossly excessive.” Indeed, the Supreme Court has repeatedly refused “to set any ‘rigid benchmark’ beyond which a punitive damages award becomes unconstitutional.” Hamlin, 349 Or at 533 (cit­ ing Campbell, 538 US at 424-25 and Gore, 517 US at 582). Instead, the Supreme Court has required courts to consider three “guideposts” when reviewing whether a punitive dam­ ages award is “grossly excessive”: “  ‘(1) the degree of repre­ hensibility of the defendant’s misconduct; (2) the disparity [or ratio] 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 compa­ rable cases.’  ” Id. at 418 (citing Gore, 517 US at 575). And the Court has required appellate courts to consider those guide­ posts without any deference to the determinations of the trial court, in order to “ensure[  ] that an award of punitive damages is based upon an application of law, rather than a 4  Campbell is the most recent Supreme Court decision to consider whether a punitive damages award was “grossly excessive” in violation of the Due Process Clause, but this court has subsequently examined that question on multiple occasions. Thus, we rely significantly on those more recent Oregon decisions to explain the governing law. 36 Trebelhorn v. Prime Wimbledon SPE decisionmaker’s caprice.” Campbell, 538 US at 418 (internal quotation marks omitted). In determining the factual predicate for the award of punitive damages, we view “the evidence in the record that is relevant to [the] award in the light most favorable to the party who won the award.” Goddard, 344 Or at 261; see also Parrott v. Carr Chevrolet, Inc., 331 Or 537, 556, 17 P3d 473 (2001) (court views the historical facts “in the light most favorable to the jury’s verdict if there is evidence in the record to support them”). But whether a particular punitive damages award is grossly excessive is a question that we resolve by employing “the applicable legal criteria (including the three Gore guideposts) to determine if, as a matter of law, the jury’s punitive damages award is grossly excessive.” Goddard, 344 Or at 263; see also Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 US 424, 437, 121 S  Ct 1678, 149 L Ed 2d 674 (2001) (emphasizing that, under fed­ eral due process principles, “the level of punitive damages is not really a ‘fact’ ‘tried’ by the jury” (internal quotation marks omitted)). Thus, in determining whether a particular punitive damages award is grossly excessive, we “must in some sense reexamine the evidence in the record—not to redecide the historical facts as decided by the jury, but to decide where, for purposes of the [three] guideposts, the con­ duct at issue falls on the scale of conduct that does or might warrant imposition of punitive damages.” Goddard, 344 Or at 262. B.  Guidepost Analysis Our analysis, therefore, is framed around the three guideposts that the Supreme Court has identified: repre­ hensibility, ratio, and civil penalties. We begin by assess­ ing each guidepost separately, based on “the historical facts that a rational juror could find, based on the evidence in the record,” and then consider the guideposts together in deter­ mining whether the punitive damages imposed by the jury was “grossly excessive.” See Goddard, 344 Or at 262. 1.  Reprehensibility guidepost The degree of reprehensibility of a defendant’s con­ duct is “[t]he most important indicium of the reasonableness Cite as 372 Or 27 (2024) 37 of a punitive damages award.” Campbell, 538 US at 419 (quoting Gore, 517 US at 575). The Supreme Court has spe­ cifically identified five factors to consider in assessing the degree of reprehensibility: whether “the harm caused was physical as opposed to economic; [whether] the tortious con­ duct evinced an indifference to or a reckless disregard of the health or safety of others; [whether] the target of the conduct had financial vulnerability; [whether] the conduct involved repeated actions or was an isolated incident; and [whether] the harm was the result of intentional malice, trickery, or deceit, or mere accident.” Id. Before analyzing those repre­ hensibility factors, we describe the historical facts related to reprehensibility that a rational jury could find and the reasonable inferences that the jury could draw from that evidence. a.  Historical facts related to reprehensibility The hole that formed in the elevated walkway as plaintiff walked across it occurred because defendants had ignored the safety risks posed by the failing staircases and walkways at their property. The property consists of two adjacent apartment complexes known as Wimbledon Square and Wimbledon Gardens. The two complexes were built in the 1970s and, between them, consist of nearly 600 apart­ ment units in 72 buildings that are two- to three-stories high. The apartments above the first floor are accessed through exterior staircases and elevated walkways con­ necting the buildings. Those staircases and walkways were originally constructed by pouring concrete over untreated wooden posts and beams. Over the years, the concrete would settle and wear, leading to cracks that allowed water to enter those structures. The water rotted the untreated wooden posts and beams, compromising the structural integrity of the staircases and walkways, as well as the railings that are intended to prevent people from falling over the sides of the staircases and walkways. Defendant Prime Wimbledon SPE, LLC, purchased Wimbledon Square in the early 2000s and, soon after, acquired Wimbledon Gardens. Prime Wimbledon SPE, 38 Trebelhorn v. Prime Wimbledon SPE LLC, as the owner of the properties, contracted with defen­ dant Prime Administration, which provides management services, to run the day-to-day operations at the properties, including maintenance. The maintenance staff had a yearly maintenance budget, but expenses of more than $5,000 required management approval. And larger maintenance projects would be budgeted annually by ownership and management. The record contains no evidence prior to 2011 of whether defendants knew of potential risks posed by struc­ turally compromised staircases, walkways, and handrails, or whether they took steps to address the structurally com­ promised conditions. In 2011, defendants brought in a con­ tractor to submit bids to repair some of the staircases and walkways. That contractor later testified that many stair­ cases and walkways needed immediate repair due to dry rot and that he had never seen dilapidation at that scale before. Although the contractor submitted bids, defendants did not hire him to repair the rotted structures. Instead, defendants hired another contractor, Larsen, to replace a few landings in 2012 and 2013. Those projects revealed some rotted structures in the staircases, raising concerns among Prime Administration, employees that there was severe dry rot in similar structures through­ out the property. Employees were concerned that, if the prob­ lems were not fixed, then someone could fall from a walkway or balcony and get seriously injured or die. Employees tes­ tified that Prime Administration’s management was aware of the risks but did not take them seriously. For example, the onsite regional manager avoided a certain route to her office because it required crossing an uneven walkway that she joked might collapse. Prime Administration’s chief oper­ ating officer joked that the property was so dilapidated that they should just burn it down. Larsen assessed the entire property to identify needed repairs in 2014 and 2015, often accompanied by onsite maintenance staff and members of the upper man­ agement who were involved in developing the maintenance budget—namely, Prime Administration’s vice president of capital and regional maintenance supervisor. According to Cite as 372 Or 27 (2024) 39 Larsen, “[t]here were a lot of areas that needed to be fixed, more than about any other property that I can recall looking at.” He put together a spreadsheet consisting of hundreds of items that needed repairs, including about $750,000 in repairs to address “life safety” issues. According to Larsen, “life safety” issues referred to staircases, balconies, land­ ings, railings, and elevated walkways that were structur­ ally compromised because a collapse of those structures “would cause life-or-death injury.” The items covered by the $750,000 proposal addressed only those structures that could be identified as compromised before beginning the repairs. Larsen was certain that they would discover more rotted areas by opening up the concrete. One of the areas that Larsen specifically identi­ fied as needing repairs was the elevated walkway where plaintiff was later injured. Concrete on the walkway was visibly cracked, and there was an area of one- to two-inch depression—like a puddle in the concrete—that was covered with a skim-coat of patching material. Those changes to the concrete indicated that the structural components of the walkway had been compromised. Indeed, when the concrete was removed from that walkway after plaintiff’s injury, it showed that the wood joists underneath were “very rotten” and had been “for quite some time.” The joists were covered by plywood with the concrete on top, and the weight of the concrete pushing down had caused compression of the “soft, wet wood” below. Identifying and restoring all the compromised staircases and walkways would require expenditures well beyond the normal maintenance budget, necessitating approval from both management and ownership. Larsen’s proposal was sent to management and ownership as part of the 2015 budgeting process. But defendants rejected most of Larsen’s proposed “life safety” repairs. Rather than spending the approximately $750,000 that Larsen recom­ mended for repairs to resolve the “life safety” issues, defen­ dants spent about $225,000 on “life safety” issues and spent another $225,000 on non-”life safety” issues, such as replac­ ing trim and siding. The only reason defendants gave for 40 Trebelhorn v. Prime Wimbledon SPE rejecting the proposal to address all “life safety” repairs was that the $750,000 cost “was too much.” Although Larsen was directed to replace some of the rotted structures, for others, he was directed to perform superficial repairs that he did not think were adequate to make the structures safe, such as fabricating brackets for the top of rotted posts that supported some walkways. That direction came from Prime Administration’s vice president of capital. According to Larsen, those repairs were simply a “Band-Aid” that would provide support for “a year or two, maybe five. You never know.” But, because the rot remained, it would continue to grow and eventually compromise the bracketed posts. Other items identified as posing “life safety” risks did not even receive those superficial fixes. Prime Administration management instead directed staff to paint over rotted wood and rusted metal brackets supporting the staircases, walkways, and handrails. Although painting over rotted wood makes the wood appear to be in sound con­ dition, it accelerates the rate of deterioration by trapping moisture inside the wood. The walkway where plaintiff was later injured was among the proposed “life safety” repairs that defendants did not make. The regional maintenance supervisor instructed onsite maintenance staff to put a skim coat of concrete over the crack in that walkway. That made the walkway look better, but it did nothing to address the structural deterioration that was causing the walkway to sag. Maintenance staff stated that management con­ sistently preferred putting cheap “Band-Aids” on a prob­ lem rather than fixing it, including after plaintiff’s injury. Maintenance staff indicated that management did not provide them with the resources to properly fix problems. Instead of addressing the underlying safety risks, the regional manager directed leasing agents to take prospec­ tive tenants along certain pathways to avoid dilapidated areas. The onsite maintenance manager left shortly after plaintiff’s injury because he was tired of “constantly having to fight to try to get things fixed between upper manage­ ment.” The next onsite maintenance manager encountered Cite as 372 Or 27 (2024) 41 the same resistance. He sent an email to management in March 2017 raising what he considered to be urgent safety concerns at the property—namely, a sagging elevated walk­ way that was pulling away from the building. He was rep­ rimanded by the regional supervisor for making an email record of the safety problems. Later that year, the mainte­ nance manager was a second victim of deteriorating condi­ tions at the complex. Approximately a year after plaintiff’s injury, the manager injured his back when a deteriorated concrete stair tread broke when he stepped on it. In 2017, plaintiff described his injury to an acquain­ tance who worked as a fire code inspector. Concerned about potential fire code violations, the inspector examined the 58 buildings at Wimbledon Square. The inspector identified cracked concrete stairs, sagging elevated walkways, loose railings, and risers on staircases that were rusted or affixed to rotted wood. A maintenance staff member showed the fire inspector a rotted wooden beam that was supporting two stories of elevated walkways. The beam was so rotted that the staff person could push a pin through it. Each of those problems posed risks to tenants attempting to exit the prop­ erty in an emergency. The fire inspector testified that he had never seen an occupied building in worse or more dangerous condition. The inspector cited defendants for code violations at each of the 58 buildings, requiring defendants to “repair loose or broken walkways, staircases, stairs, and railings in the exit path.” In preparation for trial, plaintiff hired a building code expert with 35 years’ experience, who examined the property in 2018. When asked about the structural integ­ rity of the staircases, railings, and elevated walkways, he testified: “This is probably the worst multifamily or occupancy build­ ing I have ever seen, as far as the means of egress go in regards to the stairs, the balconies. I just have not seen any worse. I have seen one small area as bad as many of the areas are in this case, but never a totality of dilapidation and rot that I’ve seen at this building’s property.” He pointed to numerous examples of unsafe stair­ cases and walkways, including unsafe conditions that resulted 42 Trebelhorn v. Prime Wimbledon SPE from the cheap fixes that defendants had carried out. He cited many places where staff had painted over dry rot and rusted metal fasteners and said that it would take many years of neglect to accumulate the amount of dry rot and corrosion that he saw at the property. He testified that there was “imminent danger” in many places at the property, it was one of the “most dangerous” residential properties he had seen in commercial use, and he did not believe that it was “safe for occupancy.” b.  The degree of reprehensibility According to plaintiff, we should conclude that defendants’ conduct falls “at the extreme end” of each of the factors that the Supreme Court has instructed us to consider in assessing the reprehensibility of a defendants’ conduct. We agree that the evidence permitted the jury to draw factual inferences favorable to plaintiff with respect to at least four of the factors: “the harm caused was phys­ ical as opposed to economic”; defendants’ “conduct evinced an indifference to or a reckless disregard of the health or safety of others” and “involved repeated actions”; and the harm that plaintiff suffered “was the result of intentional malice, trickery, or deceit.”5 Moreover, viewing the historical facts in the light most favorable to plaintiff, a rational juror could draw reasonable inferences with respect to those fac­ tors that place the conduct of both defendants at the high end of reprehensible conduct that a state may punish. But, as we will explain, we are not persuaded by plaintiff’s asser­ tion that defendants’ conduct falls at the “extreme end” of the range of reprehensible conduct that justifies punitive damages of the magnitude found by the jury. There is no dispute that defendants caused plain­ tiff to suffer physical harm. And, given the jury instructions and verdict form, we know that the jury found that each defendant at least had “shown a reckless and outrageous indifference to a highly unreasonable risk of harm and ha[d] 5  Plaintiff contends that defendants’ tenants were financially vulnerable “because all were in low-income housing” and at risk of becoming homeless. Although defendants insist that no evidence supports those assertions, and we are inclined to agree, our assessment of reprehensibility does not ultimately turn on plaintiff’s failure to identify the evidence that would permit a reasonable inference that defendants’ tenants were financially vulnerable. Cite as 372 Or 27 (2024) 43 acted with a conscious indifference to the health, safety and welfare of others.” See ORS 31.730 (describing statutory standard for recovery of punitive damages in a civil action). That statutory threshold for awarding any punitive damages describes conduct that is well onto the scale of reprehensible conduct that a state may punish. See Campbell, 538 US at 419 (explaining that whether conduct “evinced an indiffer­ ence to or a reckless disregard of the health or safety of oth­ ers” informs the degree of reprehensibility of that conduct (emphasis added)). And, viewing the historical facts in the light most favorable to plaintiff, a rational juror would have no difficulty finding that the conduct of both defendants rose to that level—as the trial court concluded. Moreover, the jury could find that defendants were aware, for at least five years prior to plaintiff’s injury, that structurally compromised stairs, balconies, and elevated walkways pervaded the complex and posed a risk of serious physical injury if not death to the tenants and others using the complex. The jury could find that defendants consciously rejected needed repairs to many of the deteriorated struc­ tures, including the walkway on which plaintiff was injured. And the jury could find that defendants’ tortious conduct put at risk many hundreds of people who lived in the apartment complex over the years, in addition to those who visited, and caused actual injury to a second person after plaintiff was injured. In fact, the jury could find that defendants contin­ ued to reject performing other needed repairs for more than a year after plaintiff’s injury, leading to a second injury. That actual and threatened harm to others is expressly relevant to our assessment of the degree to which defendants’ conduct was reprehensible. See Philip Morris USA v. Williams, 549 US 346, 357, 127 S Ct 1057, 166 L Ed 2d 940 (2007) (empha­ sizing that, although “the Due Process Clause prohibits a State’s inflicting punishment for harm caused strangers to the litigation, *  *  * conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few” and that “a jury consequently may take this fact into account in determining reprehensibility”); see also Williams v. Philip Morris, Inc., 340 Or 35, 55, 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) 44 Trebelhorn v. Prime Wimbledon SPE (explaining that the jury, “in assessing the reprehensibility of [the defendant’s] actions, could consider evidence of simi­ lar harm to other Oregonians caused (or threatened) by the same conduct”). And the jury could further infer from that evidence that defendants’ decision not to address the dete­ rioration of the walkway on which plaintiff was injured was part of a repeated pattern. A rational jury also could reasonably infer that the harm that plaintiff suffered “was the result of intentional malice, trickery, or deceit.” From the evidence described above, the jury could find that defendants covered up defects to make the structures appear safe to current and prospec­ tive tenants even though they knew that the defects actually posed an unreasonable “life safety” risk. Indeed, according to one of defendants’ maintenance supervisors, “fresh paint over rotting wood” was “the Wimbledon Way.” And a rational jury could find that defendants were motivated to disguise, rather than repair, the deteriora­ tion, because they put their profits ahead of the safety of the residents, believing that the misconduct would not be discovered. As the Supreme Court has emphasized, “[a]ction taken or omitted in order to augment profit represents an enhanced degree of punishable culpability.” Exxon Shipping Co. v. Baker, 554 US 471, 494, 128 S Ct 2605, 171 L Ed 2d 570 (2008). Finally, we highlight defendants’ admission that the condition of its walkway violated the Oregon Residential Landlord-Tenant Act. See ORS 90.730(6)(a) (specifying that a “common area is considered unhabitable if it substan­ tially lacks,” among other things, “[b]uildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses”). As we have previously concluded, “the Oregon legislature’s affirmative action to protect qualitatively similar state interests permits us to consider defendant’s statutory violation in our reprehensi­ bility analysis.” Hamlin, 349 Or at 541; see also Gore, 517 US at 576-77 (explaining that “evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant Cite as 372 Or 27 (2024) 45 support for an argument that strong medicine is required to cure the defendant’s disrespect for the law”). In sum, the evidence permitted the jury to draw reasonable inferences about defendants’ conduct that sug­ gest a high degree of reprehensibility. That conclusion “does not generate numerical answers at all, because the [repre­ hensibility] guidepost itself, and the ‘subfactors’ that go into it, are all qualitative, not quantitative.” Goddard, 344 Or at 257. But we have emphasized that it can be helpful to “compare the level of reprehensibility exhibited in various cases, and that comparison may lead us to a conclusion that the constitutionally permissible limit in a particular case is ‘high’ or ‘low,’ relative to the limit in another case.” Id. Thus, although the scale of reprehensible conduct is not exclusively defined by a comparison to past cases, those cases nonethe­ less provide useful guidance. At the most extreme end of the range of reprehen­ sible conduct exhibited by defendants in our punitive dam­ ages cases is the conduct of the cigarette manufacturer Philip Morris, which the jury in Williams found liable for the wrongful death of a smoker. In that case, the jury found $821,485.50 in economic and noneconomic damages, and this court affirmed a $79.5 million punitive damages award as constitutionally permissible based largely on the repre­ hensibility of the defendant’s conduct. Williams, 340 Or at 44, 63-64. In upholding the amount as within constitutional limits, we emphasized that “there can be no dispute that [the defendant’s] conduct was extraordinarily reprehensible.” Id. at 55. As we described, the defendant “knew that smoking caused serious and sometimes fatal disease, but it never­ theless spread false or misleading information to suggest to the public that doubts remained about that issue.” Id. The defendant had “engaged in a massive, continuous, near-half- century scheme to defraud the plaintiff and many others,” even though it “always had reason to suspect—and for two or more decades absolutely knew—that the scheme was dam­ aging the health of a very large group of Oregonians—the smoking public—and was killing a number of that group.” 340 Or at 63; see also id. at 55 (noting that the defendant’s 46 Trebelhorn v. Prime Wimbledon SPE “deceit thus would, naturally and inevitably, lead to signifi­ cant injury or death”).6 For cases involving harm to a person, however, the exercise of comparing to other cases is of limited value, because Williams provides the only relevant reference point on the scale. Every other case from this court and every case from the Supreme Court has addressed reprehensi­ bility in the context of conduct that caused only economic harm. Given the significance that the Court has placed on the distinction between reprehensible conduct that causes “physical as opposed to economic” harm, a comparison to those cases tells us that defendants’ conduct was signifi­ cantly more reprehensible and could justify a more signif­ icant amount of punitive damages. See, e.g., Goddard, 344 Or at 260 (emphasizing that “reprehensibility depends, to a large degree, on whether the harm caused was physical as opposed to economic” (internal quotation marks omitted)). On the other hand, a comparison to Williams tells us that this case does not fall at the extreme end of repre­ hensible conduct for which the state may impose punitive damages. Two significant differences between the evidence here and the evidence in Williams require a conclusion that defendants’ conduct is less reprehensible than the “extraor­ dinarily reprehensible” conduct that allowed us to justify the award in Williams. First, although defendant’s repre­ hensible conduct was more than an isolated occurrence, the earliest indication that defendants were aware of the need for “life safety” repairs was 2011—five years prior to plain­ tiff’s injury. Second, although defendants acted with indif­ ference to the risk of life-threatening harm to their tenants, there is no evidence that defendants’ conduct had caused 6  The Supreme Court later vacated our first Williams decision based on its concern that the jury may have punished the defendant for harm that its mis­ conduct had caused to strangers to the litigation. Philip Morris, 549 US at 357. The Court explained that, although the jury may consider the risk of harm to others when determining the reprehensibility of the defendant’s conduct, it may not punish the defendant for harm caused to others. Id. But the Court declined to consider whether the award in Williams was “grossly excessive.” Id. at 358. And this court on remand adhered to its original decision. Williams v. Philip Morris Inc., 344 Or 45, 61, 176 P3d 1255 (2008), cert dismissed 556 US 178 (2009). We therefore treat our reasoning and conclusions in our original Williams decision as approved of in the remand decision. Cite as 372 Or 27 (2024) 47 actual harm prior to plaintiff’s injury and no evidence that it caused life-threatening harm at any point. Thus, the degree of reprehensibility in this case is not comparable to the “extraordinarily reprehensible” conduct of the defendant in Williams. See 340 Or at 63 (explaining that, “for two or more decades [the defendant] absolutely knew” that its rep­ rehensible conduct “was damaging the health of a very large group of Oregonians—the smoking public—and was killing a number of that group”). As indicated above, however, the degree of reprehensibility is high and, accordingly, the con­ stitutionally permissible amount of punitive damages also is high. Goddard, 344 Or at 259. 2.  Ratio guidepost The next guidepost that the Supreme Court has directed us to consider is the “disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award.” Campbell, 538 US at 418. Although the Supreme Court has “consistently rejected the notion that the constitutional line is marked by a simple mathematical formula,” Gore, 517 US at 582, the so-called “disparity,” or “ratio,” guidepost “comes closest to providing numerical lim­ its.” Goddard, 344 Or at 257. That is because the Supreme Court has, “at various times, alluded to specific numerical ratios” that provide a place to start. Id. at 257-58. For exam­ ple, in one early case involving purely economic harm, the court concluded that a four-to-one ratio might be “  ‘close to the line,’ [but that] it did not ‘cross the line into the area of constitutional impropriety.’  ” Gore, 517 US at 581 (quot­ ing Pacific Mutual Life Insurance Co. v. Haslip, 499 US 1, 23-24, 111 S Ct 1032, 113 L Ed 2d 1 (1991)). In another early case, the Court upheld an award of punitive damages where the “relevant ratio” between punitive damages and poten­ tial economic harm from the defendant’s conduct “was not more than 10 to 1.” Id. (describing TXO Production Corp. v. Alliance Resources Corp., 509 US 443, 462, 113 S Ct 2711, 125 L Ed 2d 366 (1993)). But the Court in Gore readily con­ cluded that due process precluded the jury’s finding of puni­ tive damages that was “a breathtaking” 500 times greater than the fraudulently caused economic harm that the defendant caused by selling the plaintiff a new car without 48 Trebelhorn v. Prime Wimbledon SPE disclosing that the car had been repainted. Id. at 583, 585- 86. Goddard drew from those cases “a very general rule of thumb” that “the federal constitution prohibits any punitive damages award that significantly exceeds four times the amount of the injured party’s compensatory damages, as long as the injuries caused by the defendant were economic, not physical.” 344 Or at 260. As indicated above, the Court has yet to consider a due process challenge to punitive damages in the context of reprehensible conduct that causes physical harm, but the Court has said that, “in practice, few awards exceed­ ing a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Campbell, 538 US at 425. The Court later characterized that holding of Campbell as meaning that “a single-digit maxi­ mum is appropriate in all but the most exceptional of cases,” albeit in the context of deciding a case that did not turn on the due process limitation on an award of punitive damages. Exxon Shipping, 554 US at 514-15; see Goddard, 344 Or at 275 (“Campbell suggests that, except in extraordinary cir­ cumstances, a punitive damages award that is more than nine times the amount awarded in compensatory damages violates due process, no matter what the tort.”). That is the guidance that the trial court followed in this case. As noted above, the trial court concluded that $10 million in punitive damages was grossly excessive. The trial court arrived at that conclusion by comparing the amount of punitive damages that the jury imposed against each defen­ dant to the actual damages that the jury awarded—a ratio of 33 to one—and determining that the facts did not present the type of exceptional circumstances to justify that dispar­ ity. The court concluded that, on this record, due process required the court to limit punitive damages to an amount nine times more than the damages that the jury awarded for plaintiff’s actual harm. Plaintiff contends that the court erred in calculat­ ing the ratio under the second guidepost because it failed to account for the potential harm to plaintiff. In argument to the trial court, plaintiff cited the testimony of Larsen—the contractor that defendants hired to make repairs in 2012 Cite as 372 Or 27 (2024) 49 and 2013—as permitting an inference that the walkway on which plaintiff was injured, like the other walkways through­ out the complex, had deteriorated to a condition that pre­ sented “life safety issues.” He also insisted that there was no need for evidence of how he potentially could have suffered greater harm because “that’s nothing for the jury to decide.” Instead, he contended that “the Court is invited, in its wis­ dom, to take a look at how dangerous this thing was” and conclude that the potential harm could have included death or paralysis. In briefing to this court, plaintiff repeats his argument that the relevant ratio should reflect the poten­ tial “that plaintiff could easily have sustained catastrophic injuries from a fall through a second-story walkway.” Citing appellate cases involving jury awards of “many millions of dollars” for catastrophic injuries, plaintiff urges this court to conclude that his “potential harm” falls in that range. And he emphasizes that a ratio that takes into account mil­ lions of dollars in potential harm would be “vastly reduced” compared to the ratio that the trial court calculated. Defendants insist, however, that the trial court cor­ rectly compared the punitive damages only to the amount of compensatory damages that the jury actually awarded in this case. They contend that plaintiff “misconceives” the law of “potential harm” in seeking to compare punitive damages to harm from injuries that plaintiff “did not suffer at all (but could have).” Defendants also insist that, even if potential harm can be based on injuries that plaintiff did not actu­ ally suffer, potential harm must be based on the record, not merely what a reviewing court can conceive of. And the record here, they contend, requires us to reject plaintiff’s potential harm argument because there was no jury finding or instruction on potential harm and no evidentiary basis for plaintiff’s “catastrophic injury” theory of potential harm. As we will explain, we agree with plaintiff that it generally is appropriate to compare the amount of punitive damages to the actual and potential harm to the plain­ tiff, even if that produces a number that is substantially greater than the amount of damages that the jury actually awarded. But we agree with defendant that the extent of potential harm to a plaintiff is a fact that must be based 50 Trebelhorn v. Prime Wimbledon SPE on permissible inferences from the evidence. And poten­ tial harm must be closely related to the harm that actually occurred, rather than an alternative injury scenario that is merely conceivable. Ultimately, we also agree with defen­ dants that, on this record, there is no basis to infer that the possibility of plaintiff suffering a catastrophic injury was more than merely a conceivable alternative scenario. For that reason, we conclude that the trial court did not err in using the jury’s determination of actual damages to evalu­ ate the ratio guidepost. a.  Potential harm in the ratio in general Although short-hand descriptions of the ratio guide- post sometimes describe a comparison between the puni­ tive damages and the “compensatory damages,” which rep­ resent the actual harm to a plaintiff, the Supreme Court has repeatedly emphasized that the relevant constitutional comparison focuses on “the disparity between the actual or potential harm suffered by the plaintiff and the puni­ tive damages award.” Campbell, 538 US at 418 (emphasis added); see also TXO, 509 US at 460 (explaining that the Court had “eschewed an approach that concentrates entirely on the relationship between actual and punitive damages” and that “[i]t is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had suc­ ceeded” (emphasis added)); Hamlin, 349 Or at 534 (“[T]he 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.”). We emphasized in Goddard that, “[b]y permitting a punitive damages award to be a multiple of ‘potential harm,’ the Court [in Campbell and Gore] demonstrated that the punitive damages award is not limited to some multiple of the compensatory damages actually awarded by the trial court.” 344 Or at 269. Defendants, nevertheless, cite this court’s decision in Goddard for the proposition that “the correct amount to use in calculating the maximum constitutionally permis­ sible punitive damages award under Oregon law” is the amount of compensatory damages that the jury awarded Cite as 372 Or 27 (2024) 51 plaintiff. But our decision in Williams makes clear that, under Oregon law as well as under federal law, the amount of punitive damages can be compared to a plaintiff’s “potential harm,” not just the amount of compensatory damages actu­ ally awarded by the jury. There, we described Gore’s ratio guidepost as requiring the court to compare a “numerator” that “is fixed by the punitive damages award” to a “denomi­ nator” that includes “not only the harm actually suffered by [the] plaintiff, but also the potential harm to [the] plaintiff.”7 340 Or at 60. And in considering the size of the ratio, we observed that the plaintiff’s decedent had died “shortly after being diagnosed with cancer” and that, had he lived longer, his “economic damages could easily have been 10 or more times the amount awarded.” Id. Goddard, on which defendants rely, did not change that principle, although we recognize the potential confu­ sion. In Goddard, the jury awarded $20 million in punitive damages against an insurance company that had failed to settle a wrongful death action against its insured. The plaintiff argued that the punitive damages were not “grossly excessive” if compared to what the plaintiff understood to be “potential harm”—the amount of damages that the complaint in the underlying wrongful death action had alleged against the insured driver. This court rejected that view of “potential harm” and announced, without elaboration, that the concept of potential harm “has nothing to do with the amount that a jury could conceivably have awarded to plaintiff.” 344 Or at 268 (emphasis in original). “Rather,” this court emphasized, “the actual and potential harm suffered by a plaintiff is a fact to be decided by the jury.” Id. at 268-69. Defendants rely on Goddard’s reference to what a jury “could conceivably have awarded” as meaning that the ratio must compare the amount of punitive damages found by the jury to the amount of compensatory damages that the same jury actually awarded for the plaintiff’s actual harm. But in context, our reference in Goddard to what “a jury could conceivably have awarded” was a reference to the 7  As a mathematical concept, “numerator” and “denominator” generally refer to the terms of a fraction. Although a ratio is sometimes expressed as a fraction, we will refer to the relevant components as the “first term” (punitive damages) and the “second term” (actual or potential harm) of the ratio. 52 Trebelhorn v. Prime Wimbledon SPE jury in the underlying wrongful death action, which was the source of the harm for which the plaintiff sought dam­ ages against the insurer. And, although unexplained, our statement that the amount alleged in the wrongful death case was simply the amount that the jury in that case “could conceivably have awarded” reflects the long-established rule that the relevance of the amount alleged as damages in a complaint is to provide notice to the defendant of the maximum amount that could conceivably be awarded. See ORCP 67 C (“A judgment for relief different in kind from or exceeding the amount prayed for in the pleadings may not be rendered unless reasonable notice and opportunity to be heard are given to any party against whom the judgment is to be entered.”). Because “the actual and potential harm suffered by a plaintiff is a fact to be decided by the jury,” like all facts, “potential harm” must be based on more than the mere assertions of counsel in a pleading. Thus, we disagree with defendants here that the jury’s actual award of com­ pensatory damages is “the correct amount to use in calcu­ lating the maximum constitutionally permissible punitive damages award under Oregon law.” b.  Potential harm as a fact Goddard, however, presents a problem for plaintiff for a different reason. As we emphasized, “the actual and potential harm suffered by a plaintiff is a fact to be decided by the jury.” 344 Or at 268-69. Identifying potential harm as a fact to be decided by the jury means that the review­ ing court is limited to considering the potential harm “that a rational juror could find, based on the evidence in the record.” Id. at 262; see also id. at 263 (describing the appli­ cable standard of review for predicate facts relevant to the three constitutionally prescribed guideposts). Consistent with that principle, in the two cases in which this court or the Supreme Court has upheld a punitive damages award based on “potential harm,” the evidence of what actually occurred as a result of the wrongful conduct permitted a reasonable inference that the harm to the plaintiff could have been much worse. The Supreme Court applied the concept of “poten­ tial harm” in affirming the award of punitive damages Cite as 372 Or 27 (2024) 53 in TXO. There, the litigation involved allegations that TXO was attempting to interfere with Alliance Resources Corporation’s (Alliance) oil and gas development rights. Alliance brought a slander of title claim to prevent the interference from succeeding, and the jury found in favor of Alliance, awarding $19,000 in compensatory damages and $10 million in punitive damages. 509 US at 450-51. Although the punitive damages award was 526 times greater than the actual compensatory damages award, the Court neverthe­ less rejected TXO’s constitutional challenge to the punitive damages award. Id. at 459, 462. A plurality of the Court specifically relied on the potential harm that might have resulted had TXO succeeded in its effort to deprive the plaintiff of development rights. Id. at 462. After considering the parties’ arguments about evidence in the record, including the full value of the rights with which TXO attempted to interfere, a plurality of the court reasoned that “the jury could well have believed” that the amount potentially at stake was multiple millions of dol­ lars. Id. at 461. As the plurality opinion explains, “[w]hile petitioner stresses the shocking disparity between the punitive award and the compensatory award, that shock dissipates when one considers the potential loss to respon­ dents, in terms of reduced or eliminated royalties payments, had petitioner succeeded in its illicit scheme.” Id. at 462.8 Considering that potential harm, the plurality concluded that “the disparity between the punitive award and the potential harm” did not “jar one’s constitutional sensibili­ ties.” Id. (internal quotation marks omitted). This court’s decision in Williams offers another example of a record that provided a basis for including poten­ tial harm in the ratio that we consider under the second guidepost. 340 Or at 60. In Williams, after emphasizing that Campbell’s ratio takes into account “not only the harm actu­ ally suffered by [the] plaintiff, but also the potential harm 8  At trial, Alliance had introduced evidence that “the anticipated gross rev­ enues from oil and gas development—and therefore the amount of royalties that TXO sought to renegotiate—were substantial.” 509 US at 450; see also id. at 450 n 10 (describing the detailed evidentiary record that Alliance created to support its calculation of the size of the income stream for TXO if it succeeded in its effort to acquire Alliance’s development rights). 54 Trebelhorn v. Prime Wimbledon SPE to [the] plaintiff,” we reasoned that the “economic damages could easily have been 10 or more times” the amount of eco­ nomic damages that the plaintiff actually suffered had the decedent “lived long enough to incur substantial medical bills.” Id. In explaining that statement, we pointed to evi­ dence that the decedent had “died shortly after being diag­ nosed with cancer”—the disease caused by the defendant’s wrongful conduct—and evidence of the amount of economic damages incurred during the six months that the decedent had lived. Id. Thus, both TXO and Williams illustrate ways in which evidence of the actual wrongful conduct and the actual resulting harm support using a ratio that takes into account potentially greater harm that the defendant’s con­ duct could have caused to the plaintiff. In other words, both cases illustrate applications of our holding in Goddard that “the actual and potential harm suffered by a plaintiff is a fact to be decided by the jury.” See 344 Or at 268-69. And we do not question that holding. But neither TXO nor Williams supports defendant’s suggestion that there must be an express jury finding on “potential harm,” because neither TXO nor Williams relied on an express jury finding regard­ ing potential harm.9 c.  Conceptual limits on what counts as “potential harm” The evidence of potentially greater harm to which plaintiff has pointed is the testimony from the contrac­ tor who repaired other walkways that had deteriorated to the point that they were at risk of collapsing and causing life-threatening injuries. We agree with plaintiff that the evidence permits an inference that the walkway on which plaintiff was injured also was deteriorated to the point that 9  The jury in this case was instructed that, in determining the amount of punitive damages, it was to consider whether there was “a reasonable relation­ ship between the amount of punitive damages and the plaintiff’s harm.” Although defendants insist that plaintiff’s “potential harm” argument must fail because the jury was not specifically instructed to consider “potential harm,” the concept arguably was included within the unqualified reference to “plaintiff’s harm” in the given instruction. Because we ultimately conclude that plaintiff’s argument fails for other reasons, we leave for another day questions about the extent to which either party must request a jury instruction on “potential harm.” Cite as 372 Or 27 (2024) 55 it was capable of collapsing and causing catastrophic injury. But defendants insist that plaintiff’s theory of catastrophic harm relies on an alternative injury scenario that is too dif­ ferent from what actually occurred to constitute “potential harm” for purposes of the ratio guidepost. We are persuaded by defendants’ argument. Although neither TXO nor Williams defines “poten­ tial harm” or articulates a limitation on what the concept includes, those and other cases make clear that there are limitations. The first is that the ratio takes into account only the potential harm to the plaintiff. Although harm (or threatened harm) to others is relevant in assessing the rep­ rehensibility of a defendant’s wrongful conduct, we empha­ sized in Williams “that harm to others should not be con­ sidered as part of the ratio guidepost.” 340 Or at 61 (citing Campbell, 538 US at 426-27). Considering potential harm in the context of what actually occurred keeps the focus on how the defendant’s wrongful conduct has affected the plaintiff. Another important limitation is described by our emphasis in Goddard that the concept of potential harm “has nothing to do with” harm that the plaintiff “conceivably” could have incurred. We recognize that the line between “potential harm” and harm that is merely conceivable could be more clear. But both TXO and Williams illustrate poten­ tial harm that was more than merely conceivable. Those cases, thus, offer some guidance regarding what the concep­ tual limit means. In both cases, the wrongful conduct set in motion a chain of events that resulted in the actual harm to the plaintiff—in TXO, conduct to cause the plaintiff to lose development rights and, in Williams, conduct that caused the decedent to smoke and develop lung cancer. And in both cases, those actual events could have ended in far greater harm to the plaintiff. As this court reasoned in Williams, the decedent’s early death meant that “[o]nly chance saved [the defendant] from” being liable for a much greater amount of economic damages. 340 Or at 60. In later describing TXO, the Supreme Court assigned a label to the relationship between the actual events and the potential harm, which informs our understanding of what we may consider to be “potential harm.” According to the 56 Trebelhorn v. Prime Wimbledon SPE Court in Gore, TXO endorses a ratio standard that consid­ ers the “relationship between the punitive damages award and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred.” 517 US at 581 (emphasis in original; internal quotation marks omitted). We do not understand the Court, in describing potential harm as harm likely to result from the defendant’s conduct, to mean that the potential harm must have been more likely than not to result. Nothing in TXO’s discussion of the potential harm to the plaintiff, if the defendant’s attempted plan had succeeded, can be understood to sug­ gest that the defendant’s success was more likely than the actual result. But Gore directs us to understand “potential harm” as “likely” under the circumstances. The nature of the ratio guidepost suggests a related conceptual limitation on harm that was “likely to result from the defendant’s conduct.” As we discussed above, the ratio of punitive damages to actual and potential harm is a sig­ nificant indicator of whether the jury has found an amount of punitive damages that is a constitutionally permissible punishment. 372 Or at 46-47. The ratio “comes closest to providing numerical limits,” Goddard, 344 Or at 257, and as a practical matter, the ratio can easily be dispositive of the due process inquiry. See Campbell, 538 US at 425. But that significance is easily lost if the size of the ratio can be too easily modified, such as by substituting alternative injury scenarios that are too remote from what actually occurred to the plaintiff as a result of the defendant’s wrongful conduct. To some extent, every consideration of “potential harm” involves the proposition “if _____ had happened, then plaintiff’s harm could have been greater.” Contrasting Williams and TXO with Goddard tells us that, if the vari­ ables that must be inserted to complete the proposition are too attenuated from the evidence of what actually happened, then the alternative harm is merely conceivable. d.  Application That guidance persuades us that the possibility of catastrophic injury that plaintiff identifies does not qualify as “potential harm.” The evidence of what actually occurred Cite as 372 Or 27 (2024) 57 is that a portion of a second-story walkway gave way under plaintiff’s right foot. Plaintiff describes the incident as his foot “puncturing through” the walkway. And the record doc­ uments a hole of approximately nine by 18 inches that was open to the ground below and into which plaintiff’s leg slid up to his thigh. The extent to which plaintiff suffered actual harm as a result of that incident is established by the jury’s findings regarding compensatory damages. And defendants contend that the record permits no inference that cata­ strophic injury, and much greater potential harm, was a likely result. We agree with defendants that the evidence of what actually occurred does not permit a reasonable infer­ ence that plaintiff could have, instead, suffered catastrophic injury. It is possible to add variables to the “if _____ had happened” proposition to create a scenario under which plaintiff could have suffered a catastrophic injury. For example, if the hole had been big enough for his body to fall through, if—instead of punching through a hole—plaintiff’s weight had triggered collapse of one of the cross-beams sup­ porting a large section of the walkway, or if plaintiff had fallen sideways toward the railing and the railing collapsed under his weight, then plaintiff could have suffered a cata­ strophic injury. But those scenarios are not what actually happened to cause plaintiff’s injury. Larsen’s testimony, to which plaintiff pointed, may have permitted an inference that the wooden structures supporting the concrete had deteriorated to such a degree that the walkway posed a risk of collapsing under the weight of a person walking across it, and causing catastrophic injury. There is no evidence, however, that the catastrophic injury scenario that Larsen described was any more likely to occur to plaintiff on the night that his foot punched through the concrete than to any other person walking across at any other time. And that generic risk of catastrophic injury, if the walkway had failed in an entirely different way than it failed on the night that plaintiff was injured, depends on the kind of reasoning that we rejected in Goddard. It depends on an alternative sce­ nario that is conceivable but too remote from the evidence of what actually happened for us to count it as “potential harm” under the ratio guidepost. 58 Trebelhorn v. Prime Wimbledon SPE We in no way discount the risk of catastrophic harm that defendants’ conduct presented or the actual physical and emotional harm that plaintiff experienced when his foot punched through the walkway. But those are considerations that the jury addresses in awarding actual damages and in assessing the reprehensibility of the defendant’s conduct. Thus, we understand that something different is meant by the “potential harm” that we may use in calculating the ratio. On this record, the trial court did not err in conclud­ ing that there was no basis for adding catastrophic “poten­ tial harm” to the ratio. 3.  Comparable sanctions guidepost The final guidepost instructs courts to consider “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in compa­ rable cases.” Campbell, 538 US at 418. As this court has pre­ viously noted, “comparable sanctions suggest a legislative determination about what constitutes an appropriate sanc­ tion for the conduct” and “may give a defendant fair notice of the penalties that the conduct may carry.” Williams, 340 Or at 57. In assessing comparable sanctions, we look at the “relative severity of the comparable sanctions” to determine the seriousness of the misconduct. Id. at 58. “The guidepost may militate against a significant punitive damage award if the state’s comparable sanctions are mild, trivial, or non­ existent. However, the guidepost will support a more signif­ icant punitive damage award when the state’s comparable sanctions are severe.” Id. Plaintiff primarily relies on evidence from the fire inspector, who testified that he had the ability to “shut down” an apartment complex if he determined that the condition was “imminently dangerous” but that he generally does not exercise that authority because doing so at a complex like Wimbledon Square “would immediately displace hundreds of families.” Given the 600 rental units at the complex, with an average rent of $1,250, plaintiff argues that the “shut- down sanction would presumably result in many millions of dollars of lost rents.” Defendants do not dispute that a fire inspector has the authority to “shut down” an “imminently dangerous” apartment complex, and we agree with plaintiff Cite as 372 Or 27 (2024) 59 that the record permits factual inferences from which to conclude that regulatory action to address the dangerous condition could have cost defendants many millions of dol­ lars of lost rents. Although that consequence is not technically a penalty for wrongful conduct, defendant also acknowledges that the City of Portland could impose monthly enforcement fees, totaling $643 per unit, for violating Portland’s property maintenance regulations. Although defendant argues that such a penalty militates against a significant punitive dam­ ages award, we disagree. A fee of $643 per unit multiplied by 600 units easily could add up to multiple millions of dollars. We therefore conclude that the “comparable sanctions are severe” and support a significant punitive damages award. See Williams, 340 Or at 58. C.  Final Considerations Our final task is to determine, in light of the three guideposts and other applicable legal criteria, whether the $10 million in punitive damages that the jury assessed against each defendant is grossly excessive in this case as a matter of law. See Goddard, 344 Or at 262-63 (describing that inquiry). We have concluded that two of the guideposts that govern our due process review of the punitive dam­ ages in this case—reprehensibility and comparable civil sanctions—support a significant punitive damages award. But the amount of punitive damages that the jury assessed against each defendant exceeds the approximately $300,000 in actual compensatory damages by a ratio of 33:1. And we have concluded that there is no evidentiary basis for increas­ ing the second term of the ratio by inferring significantly greater “potential harm” to plaintiff, so the relevant ratio of punitive damages to the harm to plaintiff remains 33:1. That disparity is dramatically greater than the “single-digit ratio” that the Supreme Court has suggested is—“except in extraordinary circumstances”—the limit of what due process will permit, “no matter what the tort.” Id. at 275 (describing Campbell, 538 US at 425). Despite our obser­ vation above that the Supreme Court’s general pronounce­ ments about proportionality limits has never been tested by a case involving wrongful harm to a person, the caution 60 Trebelhorn v. Prime Wimbledon SPE best reflects that Court’s view of the due process limits on a state’s interest in punishing and deterring reprehensible conduct. Thus, as we acknowledged in Goddard, the second guidepost “suggests that due process normally will not per­ mit a punitive damages award in excess of a single-digit ratio.” 344 Or at 259. The qualifier regarding the ratio that due process “normally will not permit,” of course, allows that there are limited exceptions. See id. at 260-61 (allowing that, higher ratios “might be appropriate in unusual circumstances”). Goddard catalogs the “few narrow circumstances” in which the Supreme Court or this court has held that due process does not preclude a greater disparity in the magnitude of punitive damage to harm: “(1) when a particularly egre­ gious act causes only a small amount of economic injury; (2) when the injury is hard to detect; (3) when it is difficult to place a monetary value on noneconomic harms; and (4) when ‘extraordinarily reprehensible’ conduct—roughly comparable to the defendant’s conduct in Williams—is involved.” Id. at 270. The four examples described in Goddard share a com­ mon theme that, in those circumstances, limiting punitive damages to a single-digit ratio would “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.” Hamlin, 349 Or at 537. The purpose of such examples is “to caution against the categorical use of ratios,” not “to set forth an exclusive list of exceptions to a ratio requirement.” Id. at 535. But plaintiff’s justification for imposing $10 million in punitive damages against each defendant falls within the fourth cat­ egory that we identified in Goddard. Plaintiff insists that due process permits the unusually great disparity in this case between the amount of punitive damages and the harm to plaintiff, because it serves the state’s legitimate interest in deterring and punishing wrongful conduct that easily could have gone undiscovered or unpunished. According to plaintiff, defendants engaged in the “egregious” misconduct of choosing not to pay for “life safety” repairs having “every reason to believe that their conduct would never be subject Cite as 372 Or 27 (2024) 61 to any significant sanctions whatsoever”—because the wit­ nesses who came forward had “nothing to gain and every­ thing to lose from” bringing defendants misconduct to light. Plaintiff is correct that deterring such misconduct is part of the state’s legitimate interest in imposing punitive damages in civil cases. See Hamlin, 349 Or at 533. And, as described above, an inference that defendants were moti­ vated to disguise, rather than repair, the deterioration in part because they believed that the misconduct would not be discovered and punished “represents an enhanced degree of punishable culpability.” See Exxon, 554 US at 494. Indeed, we pointed to that inference in concluding that defendants’ wrongful conduct demonstrates a high degree of reprehen­ sibility. 372 Or at 43-44. But we have also concluded that defendants highly reprehensible conduct was, nevertheless, not comparable to the “  ‘extraordinarily reprehensible’ con­ duct on the part of the defendant” in Williams. Thus, we are not persuaded that the evidence in this case permits the kind of inferences that “may provide a basis for over­ riding” our due process concerns that arise from the jury’s assessment of punitive damages that exceed the damages for harm to plaintiff by a ratio of 33:1. See Goddard, 344 Or at 258. Although we do not rule out the possibility that some amount greater than (or less than) a nine-to-one ratio might be the maximum constitutionally permitted award in a case like this, neither party has challenged the trial court’s determination that $2.7 million in punitive dam­ ages against each defendant is the correct reduced amount. Their arguments presented the single question of whether $10 million in punitive damages exceeds the amount that the Due Process Clause permits in this case, and we have answered that question.10 Accordingly, we affirm. 10  We recognize that, in Goddard, we described the methodology for perform­ ing a due process review in a way that arguably suggests a court must always determine the maximum constitutionally permitted amount of punitive damages. See 344 Or at 261-62 (explaining that, “[i]f the court determines that the award is grossly excessive, it then uses the same guideposts to determine the highest lawful amount of punitive damages that a rational juror could award, consis­ tent with the Due Process Clause”). And we reiterate, to the extent that a court determines that due process requires any reduction to a jury’s punitive dam­ ages verdict—an act that is otherwise prohibited by the Oregon Constitution— the court must give effect to both constitutional provisions by entering judgment 62 Trebelhorn v. Prime Wimbledon SPE The decision of the Court of Appeals and the judg­ ment of the circuit court are affirmed. for a reduced amount that is not lower than the reduction that due process requires. See Parrott, 331 Or at 556 (explaining that “the federal requirement of judicial review for excessiveness directly conflicts with the re-examination clause of Article VII (Amended), section 3, of the Oregon Constitution”). But, as Goddard describes, that is a separate determination the court must make. We reviewed that determination in Goddard, because we were presented with arguments that challenged both to the trial court’s determination that the jury’s punitive dam­ ages verdict was grossly excessive (by the plaintiff) and the trial court’s deter­ mination of the reduced amount that was the maximum amount permitted by due process (by defendant). Id. at 251. Here, neither party has argued that, if the court correctly determined that the jury’s punitive damages were grossly excessive, the court nevertheless incorrectly determined that $2.7 million is the maximum, reduced amount of punitive damages that due process permits, and we decline to take up that question unilaterally.

966f225567af2eb9722b78b4bc6cdf411561649ebffa92d675fb17f243c0b2ae

2024-02-15T00:00:00Z

c14b5048-88ca-48c2-bdbb-4beffc039375

State v. Cruz-Aguirre

S46254

oregon

Oregon Supreme Court

Filed: October 25, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. FROYLAN CRUZ-AGUIRRE, Petitioner on Review. (CC 95CR3094FE; CA A97471; SC S46254) On petition for review filed March 17, 1999.* Andy Simrin, Deputy Public Defender, Salem, filed the petition for petitioner on review. No appearance contra. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs and De Muniz, Justices.** MEMORANDUM OPINION The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of State v. Fugate, 332 Or 195, 26 P3d 802, (2001). *Appeal from Douglas County Circuit Court, Joan G. Seitz, Judge. 158 Or App 15, 972 P2d 1206 (1999). **Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. Balmer, J. did not participate in the decision of this case.

df67bd0f3c075640b00ef90b2509b4873608866c43c4491cb1737549d0a2e9da

2001-10-25T00:00:00Z

a5f97b5c-f55d-4fa3-8635-12d24c4d9818

Certain Underwriters v. TNA NA Manufacturing

S070083

oregon

Oregon Supreme Court

64 March 7, 2024 No. 4 IN THE SUPREME COURT OF THE STATE OF OREGON CERTAIN UNDERWRITERS AT LLOYD’S LONDON REPRESENTED BY XL CATLIN SYNDICATES 2003 AND 1209, Liberty Syndicate 4472, and Novae Syndicate 2007, Petitioners on Review, v. TNA NA MANUFACTURING, INC., dba FOODesign Machinery & Systems, and Food Design, Inc., an Oregon corporation, Respondents on Review. (CC 18CV15868) (CA A175864) (SC S070083) En Banc On review from the Court of Appeals.* Argued and submitted November 9, 2023. Sara Kobak, Schwabe, Williamson & Wyatt, P.C., Portland, argued the cause and filed the briefs for petition- ers on review. Also on the briefs were William J. Ohle, and Aukjen T. Ingraham. Dayna J. Christian, Immix Law Group PC, Portland, filed the brief for respondent on review TNA NA Manufacturing, Inc. Also on the briefs was Nicole McMillan. Ashley L. Vulin, Davis Wright Tremaine LLP, Portland, argued the case and filed the brief for respondent on review Food Design, Inc. Also on the brief was P. Andrew McStay, Jr., and Meagan A. Himes. JAMES, J. ______________ *  Appeal from Clackamas County Circuit Court, Henry Breithaupt, Judge. 323 Or App 447, 523 P3d 690 ( 2022). Cite as 372 Or 64 (2024) 65 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. 66 Certain Underwriters v. TNA NA Manufacturing JAMES, J. The issue in this case is the specificity of contract language required to disclaim tort liability under Oregon law. SunOpta, Inc. (SunOpta), purchased food process- ing equipment from Food Design, Inc. (FDI), for use in its sunflower seed production.1 Following a listeria outbreak that resulted in a recall costing SunOpta’s insurer, Lloyd’s London (Lloyd’s), nearly 20 million dollars, Lloyd’s brought claims for negligence and product liability against FDI and TNA NA Manufacturing, Inc. (TNA), FDI’s successor in interest. On summary judgment, the trial court held that SunOpta had waived any action in tort through its purchase contract with FDI, and specifically looked to four provisions of that contract—sections 5, 7, 11, and 12—reasoning that, when read together, those provisions reflected a waiver of tort liability. The Court of Appeals affirmed the trial court, on narrower grounds, concluding that one provision, section 11, when viewed in the context of the contract as a whole, constituted a waiver of tort liability because the provision, “implicates liability beyond that arising under the contract.” Certain Underwriters v. TNA NA Manufacturing, 323 Or App 447, 454, 523 P3d 690 (2022). Lloyd’s petitioned for review, which we allowed. We conclude that both the trial court and the Court of Appeals erred. Oregon law establishes that “a presump- tion will be indulged against an intention to contract for immunity from the consequence of one’s own negligence.” Waterway Terminals v. P.S. Lord, 242 Or 1, 19, 406 P2d 556 (1965). In considering whether that presumption has been overcome, “a contract will not be construed to provide immu- nity from the consequences of a party’s own negligence unless that intention is clearly and unequivocally expressed.” Estey v. MacKenzie Engineering Inc., 324 Or 372, 376, 927 P2d 86 (1996) (quoting Transamerica Ins. Co. v. U.S. Nat’l Bank, 276 Or 945, 951, 558 P2d 328 (1976)). As we will explain, to waive tort liability, contract language must be clear and explicit; waiver will not simply be deduced from inference or implication. The text of the contract must show, clearly and 1  Throughout this opinion, we refer to the parties by name and use the term “defendants” to refer collectively to FDI and TNA. Cite as 372 Or 64 (2024) 67 unambiguously, that the parties intended to disclaim actions outside of contract, i.e., actions in tort. Generic text that purports to waive all liability, or any loss, will typically be insufficiently specific to overcome the presumption against the waiver of tort liability. Accordingly, 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.2 THE CONTRACT PROVISIONS Before reciting the underlying facts, for ease of ref- erence, we set forth the pertinent provisions of the contract between FDI (the seller) and SunOpta (the purchaser) on which the parties and the lower courts relied. Section 5, entitled “WARRANTIES,” states: “Seller’s warranties are limited as follows: “There are no warranties which extend beyond the descrip- tion on the face hereof. “Seller warrants to the original Customer that the equip- ment is free from manufacturing defects. Seller agrees to repair or replace, F.O.B. any part of standard commercial manufactured items which are, within the warranty period of the manufacturer’s item in question, found defective or otherwise unsatisfactory owing to faulty material or work- manship. The warranty shall not apply to any product which has been damaged by improper usage, accident, neglect, alteration or abuse. The liability of the manufacturer is limited solely to replacing the defective product. In no event shall the manufacturer be liable for special or consequen- tial damages to any Purchaser, user or other person.” Section 7, entitled “MATERIALS AND WORKMANSHIP,” provides, in relevant part: “Purchaser agrees to defend and indemnify Seller against any loss, cost, damage or expense (including reasonable attorney’s fees) resulting from any claims by Purchasers or by third parties (including Purchaser’s employees) of 2  At the Court of Appeals, plaintiffs raised an additional assignment of error, arguing that the trial court abused its discretion when it ordered plaintiffs to pay FDI attorney fees as a discovery sanction under ORCP 46 A(4). Certain Underwriters, 323 Or App at 449. The Court of Appeals affirmed the attorney fee award, id. at 457, and plaintiffs do not challenge that part of the decision before this court. 68 Certain Underwriters v. TNA NA Manufacturing damage to property or injury to persons resulting from faulty installation or negligent operation of the equipment.” Section 11, entitled “DISCLAIMERS,” states: “There are no warranties, express or implied, including the warranty of merchantability and the warranty of fitness for a particular purpose extending beyond those set forth in [s]ection 5. Seller’s liability shall be limited to the repair or replacement of any defective equipment and the parties agree that this shall be Purchaser’s sole and exclusive rem- edy. Seller shall not be liable, in any event, for loss of prof- its, incidental or consequential damages or failure of the equipment to comply with any federal, state or local laws. Seller shall under no circumstances be liable for the cost of labor, raw materials used or lost in testing or experimen- tal or production operations of any equipment sold, whether such testing, production or experimentation is done under the supervision of a representative of the Seller or of any employee or other representative of the Purchaser.” Section 12, entitled “DEFAULT, DAMAGES, AND REMEDIES,” provides, in relevant part: “In the event of default by either party, all rights and reme- dies shall be governed by the law of the State of Oregon and venue for any litigation shall be laid in the Circuit Court of Oregon for the County of Clackamas. “Seller shall further not be liable for any consequential damages.” BACKGROUND Because the trial court granted defendants’ motion for summary judgment, we recount the facts in the light most favorable to Lloyd’s, the nonmoving party. ORCP 47 C. SunOpta is a plant-based food company that expe- rienced $20 million in damages after it issued a voluntary product recall in 2016 due to the discovery of the bacterium Listeria monocytogenes (listeria) in its processed sunflower seeds. The recalled sunflower seeds had been processed using equipment that SunOpta had purchased from FDI in 2012. Following the recall, Lloyd’s paid SunOpta the insurance policy limit of $20 million to cover the company’s Cite as 372 Or 64 (2024) 69 property losses, and SunOpta subrogated its claims related to FDI’s potential tort liability to Lloyd’s. Lloyd’s then sued defendants, FDI and its succes- sor in interest, TNA, alleging tort claims for negligence and strict products liability under ORS 30.920. Lloyd’s alleged that “the food contamination was caused by unreasonably dangerous design and manufacturing defects in FDI’s cool- ing conveyor system that wrongly impeded access to fully inspect and sanitize all areas of the equipment.” Lloyd’s also alleged that the equipment had serious design and manu- facturing flaws that improperly allowed water intrusion into hidden parts of the equipment that dangerously concealed product buildup and other conditions promoting the growth of listeria. Defendants moved for summary judgment, argu- ing that the purchase contract for the cooling equipment barred Lloyd’s tort action. That contract, a five-page doc- ument containing FDI’s standard terms and conditions, had been included as part of FDI’s sales proposal for the custom cooling conveyor system.3 SunOpta executed that proposal without objecting to FDI’s terms and conditions, and FDI then manufactured and delivered the equipment to SunOpta for approximately $32,000. Defendants argued that four provisions of that purchase contract—sections 5, 7, 11, and 12—reflected an “unmistakable mutual agreement for SunOpta, as an equipment buyer, to exculpate FDI from any tort liability for damages caused by FDI’s own negli- gence or product defects.”4 In response, Lloyd’s argued that those provisions of the sales contract did not satisfy the requirement that provisions limiting tort liability must be “clear and unequivocal.” The trial court granted summary judgment in favor of defendants. Relying on American Wholesale Products v. 3  There was no evidence offered at summary judgment that FDI engaged in any kind of explanation or discussion with SunOpta about any of FDI’s standard terms and conditions. There was also no evidence that FDI ever offered any kind of price concession, or otherwise bargained with SunOpta for a release of tort liability as a condition for the sale of FDI’s food-processing equipment. 4  Initially FDI did not claim that its standard terms and conditions included a waiver of tort liability. Rather, FDI asserted that the contractual terms at issue were intended to “disclaim[  ], in whole or in part, warranties” in the equipment. 70 Certain Underwriters v. TNA NA Manufacturing Allstate Ins. Co., 288 Or App 418, 406 P3d 163 (2017), the trial court read the relevant contract provisions together to “determine whether the liability allocation in the contract, including liability for defendants’ own negligence or tort exposure, [was] clear and unequivocal.” After noting that none of the provisions contradicted each other, the trial court stated that “nothing in the documents suggests that defendants’ liability extends beyond repair or replacement.” The court found that, “most importantly, no language in the agreement suggests that defendants have any responsibil- ity for damage to person or property—that is[,] tort[-]type damages.” The trial court then entered a general judgment, dismissing Lloyd’s claims with prejudice. Lloyd’s appealed, and the Court of Appeals affirmed, although on different grounds than the trial court. The Court of Appeals “disagree[d] with the trial court’s rea- soning suggesting that sections 5, 7, and 12 shielded FDI from tort liability, because they all could be plausibly read as limitations to contract damages.” Certain Underwriters, 323 Or App at 455. On the other hand, the Court of Appeals concluded that section 11 “[could not] be read in a way that restricts it to damages related to contract liability” and therefore “agree[d] with the trial court’s ultimate conclusion that the text of the sales contract unambiguously limited FDI’s tort liability.” Id. The court invoked Estey for the proposition that “[a] limitation of liability clause need not use the word ‘negli- gence’ in order to be effective against a negligence claim.” Id. at 450 (quoting Estey, 324 Or at 378). Although the Court of Appeals disagreed with the trial court that sections 5, 7, and 12 immunized defendants from tort liability, it affirmed the trial court’s grant of summary judgment on the grounds that section 11 of the sales contract “unambiguously disclaimed any liability in tort when viewed in the context of the con- tract as a whole.” Id. at 453. The court stated that section 11, “[b]y disclaiming liability of the seller ‘in any event,’ in a sec- tion separate from the one titled ‘[WARRANTIES]’ and with broad language as to the types of damages disclaimed, *  *  * the contract unambiguously expressed the parties’ intent to immunize FDI from tort liability.” Id. Cite as 372 Or 64 (2024) 71 The Court of Appeals based that decision on one of its own cases where it had held that “[a] contract that contains a broad reference to ‘any liability’ suggests that the parties intended for the provision to limit ‘any liability’ regardless of whether that liability arose in tort or contract.” Id. at 453-54 (quoting Kaste v. Land O’Lakes Purina Feed, LLC, 284 Or App 233, 246, 392 P3d 805, rev den, 361 Or 671 (2017)). The court concluded that “[s]ection 11’s statement that FDI ‘shall not be liable, in any event’ is substantially similar to a disclaimer of any liability.” Id. at 454. The court further noted that the fact that the terms at issue were not included in the “WARRANTIES” provision but instead in the “DISCLAIMERS” provision indicated an intention for those disclaimers to apply beyond contract liability. Id. Finally, the Court of Appeals agreed with the trial court that the “disclaimer of any liability related to a violation of law necessarily implicates claims for negligence per se, which is a concept in tort.” Id. After concluding that the contract clearly and unambiguously immunized defendants from tort liability, the Court of Appeals proceeded to assess “the possibility of a harsh or inequitable result that would fall on one party if the other party was immunized from the consequences of its own negligence.” Id. at 455 (quoting American Wholesale Products, 288 Or App at 423). The court concluded that “[t]he language of the contract indicates that the parties expected that issues involving the use of FDI’s equipment would be remedied by either repairing or replacing the equipment. Nothing in the nature of the parties’ relation- ship or bargaining power suggests that the parties reason- ably held different expectations and, thus, it would not be harsh or inequitable to limit FDI’s liability.” Id. at 456. Lloyd’s petitioned for review, which we allowed. ANALYSIS Oregon law recognizes a “policy favoring the free- dom to contract as one pleases *  *  * unless there is some contravening policy which outweighs it.” Irish & Swartz Stores v. First Nat’l Bk., 220 Or 362, 378, 349 P2d 814 72 Certain Underwriters v. TNA NA Manufacturing (1960). Accordingly, absent a public policy impediment,5 so long as the parties have “expressed their intent with rea- sonable clarity, contractual immunity from a party’s own negligence” can be “a matter for negotiation.” Commerce & Industry Ins. v. Orth, 254 Or 226, 232, 458 P2d 926 (1969). However, because “public policy favors the deter- rence of negligent conduct,” Bagley v. Mt. Bachelor, Inc., 356 Or 543, 572, 340 P3d 27 (2014), the allocation of liability in tort is one area where public policy may outweigh the gen- eral freedom to contract. In light of the strong public interest in promoting the exercise of reasonable care, it has been the established rule in Oregon for over sixty years that “a pre- sumption will be indulged against an intention to contract for immunity from the consequence of one’s own negligence and that a contract will not be given that meaning unless so expressed in unequivocal language.” Waterway Terminals, 242 Or at 19 (citing So. Pac. Co. v. Morrison-Knudsen Co., 216 Or 398, 410, 338 P2d 665 (1959); Glens Falls Indem. Co. v. Reimers, 176 Or 47, 53, 155 P2d 923 (1945); Southern Pac. Co. v. Layman, 173 Or 275, 280, 145 P2d 295 (1944); and U. S. Fid. & Guar. Co. v. Thomlinson Co., 172 Or 307, 324-25, 141 P2d 817 (1943)) (emphasis added). In determining when a contract will overcome the presumption against the waiver of tort liability, exculpatory contracts are strictly construed to ensure that the releas- ing party did, in fact, knowingly bargain for the release of tort liability. Commerce & Industry Ins., 254 Or at 231. “A contract will not be construed to provide immunity from consequences of a party’s own negligence unless that inten- tion is clearly and unequivocally expressed[.]” Estey, 324 Or at 376 (internal quotation marks and additional brack- ets omitted); see also Restatement (Third) of Torts: Products Liability § 2 comment d (1997) (“Courts normally construe exculpatory contracts strictly, finding that the plaintiff has 5  For example, this court has held that “a clause in a contract for insurance purporting to indemnify the insured for damages recovered against him as a consequence of his intentional conduct in inflicting injury upon another is unen- forceable by the insured on the ground that to permit recovery would be against public policy.” Isenhart v. General Casualty Co., 233 Or 49, 53, 377 P2d 26 (1962). As another example, ORS 30.140 voids, on public policy grounds, any provision in a construction agreement for indemnification against liability for personal-injury or property damage due to the indemnitee’s sole negligence. Cite as 372 Or 64 (2024) 73 assumed a risk only if the terms of the agreement are clear and unequivocal.”). In considering whether a contract “clearly and unequivocally” waives tort liability, Oregon courts “consider both the language of the contract and the possibility of a harsh or inequitable result that would fall on [the releas- ing] party by immunizing the other party from the con- sequences of [their] own negligence.” Estey, 342 Or at 376. The “heavy burden” to satisfy the “clear and unequivocal” standard means that the exculpatory contract must “put[  ] it beyond doubt,” and the contract must make it crystal clear that the releasing party has absolved the other party from the consequences of the party’s own negligence and prod- uct defects. Layman, 173 Or at 281 (citation and quotation marks omitted). With those principles in mind, we turn to the con- tract at issue here. We readily conclude that sections 5, 7, and 12 fail to effect a waiver of tort liability. We agree with the Court of Appeals that, with respect to section 5, “warranties” are “typically a contract concept.” Certain Underwriters, 323 Or App at 451. The types of damages limited under section 5—special or consequen- tial damages—are ordinarily types of damages under the Uniform Commercial Code (UCC), and they are naturally associated with contract disputes, not tort claims. See ORS 72.7150(2) (defining “consequential damages” as damages “resulting from the seller’s breach”); Parker v. Harris Pine Mills, Inc., 206 Or 187, 208, 291 P2d 709 (1955) (explaining that “  ‘special damages’ [are] those naturally but not nec- essarily resulting from the breach” of a contract (emphasis omitted)). Defendants argue that, “[e]ven if the limitation of liability in [s]ection 5 relates only to breaches of warranty *  *  *, [that provision] uses *  *  * language showing the intent to limit liability even for harm to third parties.” Even if that language shows an intent to limit liability for harm to third parties, that does not compel the conclusion that the par- ties were intending to cover third-party tort liability. Third- party liability can arise under contract as well. Sisters of 74 Certain Underwriters v. TNA NA Manufacturing St. Joseph v. Russell, 318 Or 370, 374, 867 P2d 1377 (1994) (recognizing third party liability under contract; explain- ing that, “[a]s a general proposition, a third party’s right to enforce a contractual promise in its favor depends on the intention of the parties to the contract”). For much the same reason, section 12 is insufficient to limit FDI’s tort liability. Section 12—which covers default and limitations on liability for consequential damages— addresses contract requirements and remedies. Nothing in the text of section 12 reflects the clear and unambiguous language required to disclaim tort liability. Nor does section 7 immunize FDI from all tort lia- bility. That provision indemnifies FDI from some tort liabil- ity, but critically, only some. By its terms, section 7 shifted tort liability to SunOpta only for tort claims “resulting from faulty installation or negligent operation of the equipment.” A reader could reasonably infer that only the referenced sub- set of tort claims is being addressed by that provision, and that, by negative implication, the contract does not waive other liability in tort. We turn now to section 11, which formed the basis for the Court of Appeals’ holding that tort liability had been contractually disclaimed in this case. For convenience, we set out the terms of section 11 again: “DISCLAIMERS: “There are no warranties, express or implied, including the warranty of merchantability and the warranty of fitness for a particular purpose extending beyond those set forth in [s]ection 5. Seller’s liability shall be limited to the repair or replacement of any defective equipment and the parties agree that this shall be Purchaser’s sole and exclusive rem- edy. Seller shall not be liable, in any event, for loss of prof- its, incidental or consequential damages or failure of the equipment to comply with any federal, state or local laws. Seller shall under no circumstances be liable for the cost of labor, raw materials used or lost in testing or experimen- tal or production operations of any equipment sold, whether such testing, production or experimentation is done under the supervision of a representative of the Seller or of any employee or other representative of the Purchaser.” Cite as 372 Or 64 (2024) 75 The Court of Appeals did not identify any specific language of tort disclaimer in section 11 but reasoned that the inclusion of the wording “  ‘’in any event,’ in a section sep- arate from the one titled ‘[WARRANTIES]’ and with broad language as to the types of damages disclaimed” was suf- ficient. Certain Underwriters, 323 Or App at 453. In short, the Court of Appeals found the intent to waive tort liabil- ity through inference or implication, and through the use of broad language. We disagree with both of those approaches. First, and most critically, nothing in section 11 plainly, directly, and unequivocally speaks to liability out- side of that arising under contract. The words “in any event” do not clearly waive tort liability because the types of dam- ages that are “disclaimed” in any event—loss of profits, inci- dental or consequential damages, or failure of the equipment to comply with federal, state, or local laws—can reasonably be understood to refer to damages other than those arising from the seller’s own negligence. Because there is no clear, unequivocal waiver of that liability, any waiver can only be found by inference from the broad words used in section 11. The problem with finding a waiver of tort liability by inference is that, at least in this case, there is not a single permissible inference. Section 11 could reasonably be read as a disclaimer of implied warranties other than section 5’s express warranty. Much like section 5’s remedy limita- tions for any breach of the express warranty, section 11 pre- scribes the exclusive remedy of repair or replacement of the equipment, and then it follows with an alternative remedy limitation in the event that the exclusive remedy does not apply—that is, it sets out the alternative remedy limitation providing that FDI is not liable “in any event” for “loss of profits, incidental or consequential damages or failure of the equipment to comply with any federal, state or local laws.” Additionally, it is not the case that the only per- missible inference to be drawn from the location of the dis- claimer, in a provision separate from one under the heading “WARRANTIES,” is that the parties intended to disclaim tort liability. The requirements of the UCC provide a rea- son for commercial contracts for the sale of goods to have separate headings in contracts for warranties and warranty 76 Certain Underwriters v. TNA NA Manufacturing disclaimers. The UCC requires that disclaimers of implied warranties of merchantability or fitness be “conspicuous.” See ORS 72.3160 (“to exclude or modify the implied warranty of merchantability” or “implied warranty of fitness,” exclusion must be “conspicuous”). Under the UCC, a “printed head- ing in capitals” is conspicuous, ORS 71.2010(10), and Oregon courts have previously held that warranty disclaimers are not sufficiently conspicuous if placed under a heading titled “warranty.” See Seibel v. Layne & Bowler, Inc., 56 Or App 387, 391, 641 P2d 668 (1981) (declining to give effect to war- ranty disclaimers because “[o]nly the paragraph headings, e.g., ‘WARRANTY,’ stand out, but such a heading suggests the making of warranties, not their exclusion”). Nor does the reference to “federal, state or local laws” require the inference that the parties intended to waive tort liability. Commercial contracts—especially in highly reg- ulated industries such as food processing—often impose requirements for parties to comply with governing laws and regulatory standards, and compliance with such standards may be part of the basis of an implied warranty of fitness for a specific purpose. See, e.g., Millenkamp v. Davisco Foods Int’l, Inc., 562 F3d 971, 977 (9th Cir 2009) (analyzing how compliance with government regulations can be relevant to claims asserting breach of an implied warranty of fitness for a particular purpose); Durrett v. Baxter Chrysler-Plymouth, Inc., 198 Neb 392, 395-96, 253 NW2d 37, 39 (1977) (explain- ing how compliance with government standards and reg- ulations can be used to defend in cases involving implied or express warranties); Clausing v. DeHart, 83 Wash 2d 70, 73-75, 515 P2d 982, 984-85 (1973) (assessing a breach of warranty claim where a contract for the sale of securities in a nursing home warranted that sellers’ operations were “maintained in accordance with all applicable government rules”). Contract damages—including consequential dam- ages from regulatory penalties, manufacturing shutdowns, or other “down time” when equipment is out of service—also may result from failures to fulfill a contractual duty to com- ply with governing laws. See, e.g., NextSun Energy Littleton, LLC v. Acadia Ins. Co., 494 F Supp 3d 1, 4 (2020) (uphold- ing breach-of-contract claim to recover lost income during mandatory shutdown of operations from governmental Cite as 372 Or 64 (2024) 77 red-tag orders requiring the testing, inspection, and repair of equipment). We reiterate that, to affect a waiver of liability in tort, a contract must be clear, explicit, unequivocal, and place the waiver beyond doubt. Arguments that seek to infer such an express waiver through inference or implication are unlikely to succeed. Our decision in Estey, 324 Or at 372, is illustrative. In that case, the plaintiff brought negligence and breach-of-contract claims against the defendant engi- neering firm after it provided a faulty inspection report. The contract between those parties set out an estimated contract sum of $200 and provided that “[t]he liability of [defendant] and the liability of its employees are limited to the Contract Sum.” Id. at 374. On review, we found that the term lacked sufficient clarity to absolve the defendant of tort liability because the “plaintiff reasonably might have interpreted ‘liability’ to refer only to liability arising from breach of contract” and not to liability for negligence. Id. at 378-79. Because of the ambiguity in the limitation of liability, we could not “conclude that the parties ‘clearly and unequiv- ocally’ intended a broader interpretation that would have required plaintiff to bear the risk of defendant’s negligence.” Id. at 379. In reaching our conclusion in Estey, “we declin[ed] to hold that the word ‘negligence’ must expressly appear in order for an exculpatory or limitation of liability clause to be effective against a negligence claim.” Id. at 378. That state- ment in Estey should not be read to obscure its core holding: The text of the contract must clearly and unambiguously show that the parties intended to disclaim liability outside of contract. Our decision in K-Lines, Inc. v. Roberts Motor Co., 273 Or 242, 541 P2d 1378 (1975), illustrates effective contract language. In that case, the defendant manufacturer sought to avoid tort liability to a commercial purchaser based on a term in the sales contract providing that the manufacturer’s liability was limited to repair or replacement of the prod- uct as the purchaser’s “sole and exclusive remedy whether in contract, tort or otherwise, and [the defendant manufac- turer] shall not be liable for injuries to persons or property.” Id. at 245. In upholding the enforceability of that explicit 78 Certain Underwriters v. TNA NA Manufacturing limitation on tort liability, we held that the provision was “not ambiguous or confusing” as a matter of law. Id. at 254. We adhere to our statement in Estey that no magic words are, per se, required. However, to overcome the strong presumption against waiver of tort liability, the contract must make explicit that the liability being waived is out- side of liability arising under contract. Perhaps it is possible to accomplish that goal without the use of the word “negli- gence,” or “tort,” and we do not entirely foreclose the possi- bility that an effective waiver could be constructed without those terms. But use of the terms negligence or tort may certainly prove helpful, and prudent and cautious contract drafters in Oregon might consider their use. Finally, the Court of Appeals relied on its holding in Kaste for the proposition that “[a] contract that contains a broad reference to ‘any liability’ suggests that the parties intended for the provision to limit ‘any liability’ regardless of whether that liability arose in tort or contract.” Certain Underwriters, 323 Or  App at 453-54 (quoting Kaste, 284 Or App at 246). We disagree with that proposition. As we said in Estey, because the issue arose in the context of a contract, the “plaintiff reasonably might have interpreted ‘liability’ to refer only to liability from breach of contract” and not to lia- bility for negligence. 324 Or at 378-79. Broad language may encompass tort liability in theory, but as a practical matter, in a contract, where the parties are naturally interpreting terms in the context of contractual obligations, broad lan- guage may obscure as much as it clarifies. Accordingly, we have rejected similar broad language disclaiming “any loss.” In Layman, we considered a contractual waiver written in very broad terms: “The agreement is on a printed form prepared by the rail- way company. The plaintiff is termed the ‘Licensor’ and the defendant the ‘Licensee’. The clause thereof which plaintiff seeks to enforce reads: ‘Licensee shall and hereby expressly agrees to indemnify and save harmless the Licensor and its lessor from and against any and all loss, damage, injury, cost and expense of every kind and nature, from any cause whatsoever, resulting directly or indirectly from the main- tenance, presence or use of said crossing.” Cite as 372 Or 64 (2024) 79 173 Or at 276-77. Despite the terms specifying “any and all loss *  *  * from any cause whatsoever,” we reasoned that such broad language was insufficient to meet the “clear and unequiv- ocal” language requirements for contractual waiver of tort liability. In so reasoning, we began by noting that “[i]t is a firmly established rule that contracts of indemnity will not be construed to cover losses to the indemnitee caused by his own negligence unless such intention is expressed in clear and unequivocal terms.” Id. We reiterated the strong policy rationale behind that strict rule: “  ‘The liability on such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it.’  ” Id. (quoting Perry v. Payne, 217 Pa 252, 255, 66 A 553, 554 (1907)). We then considered the specific language of the indemnity clause at issue, noting that it was “undoubtedly broad and general enough to include loss caused solely by the plaintiff’s negligence.” Id. at 281. However, we surveyed the treatment of similar language by a range of courts and concluded that such “language has not deterred the courts from finding that no such meaning was intended by the par- ties.” Id. (citing Mynard v. Syracuse, B & NYR Co., 71 NY 180, 183 (1877) (“General words from whatever cause arising may well be satisfied by limiting them to such extraordi- nary liabilities as carriers are under without fault or negli- gence on their part. When general words may operate with- out including the negligence of the carrier or his servants, it will not be presumed that it was intended to include it.” (Emphasis in original.)); Manhattan Ry. Co. v. Cornell, 7 NYS 557, 558 (Gen Term 1889), aff’d, 130 NY 637, 29 NE 151 (1891) (“For while the language of this part of the con- tract is very general, it cannot reasonably be so construed as to impose upon the contractors the obligation to protect the plaintiff against the carelessness or negligence of persons in its own employment.”). 80 Certain Underwriters v. TNA NA Manufacturing The treatment we observed in our survey of other jurisdictions in Layman, in 1944, continues to find support in other jurisdictions today. See, e.g., Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P3d 1260, 1265 (Colo App 2010) (reviewing appellate case law; holding that “any liabil- ity” language did not waive personal injury claim as no excul- patory provisions had previously been upheld in the absence of “some reference to waiving personal injury claims”); Hyson v. White Water Mountain Resorts Of Connecticut, Inc., 265 Conn 636, 829 A2d 827 (2003) (concluding that a party can- not be released from liability for injuries resulting from its future negligence in the absence of language that expressly invokes negligence); Wright v. Loon Mountain Recreation Corp., 140 NH 166, 169, 663 A2d 1340, 1342 (1995) (provid- ing that the validity of a release turns on whether a rea- sonable person would have known of an exculpatory provi- sion and stating that a reasonable person would understand the provision only if the language “  ‘clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence’  ” (quoting Barnes v. New Hampshire Karting Ass’n, Inc., 128 NH 102, 107, 509 A2d 151, 154 (1986))); Sivaslian v. Rawlins, 88 AD2d 703, 704, 451 NYS2d 307, 309 (1982) (concluding that provision that covered “any and all manner of actions” was insufficient to disclaim tort liability). Accordingly, we continue to adhere to our analysis in Layman. Disclaimers written in generic broad language, such as “any liability” or “any loss” may be insufficiently specific to meet the standard of “clear and unequivocal” lan- guage sufficient to overcome the strong presumption against the waiver of tort liability. 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.

f2a663a2bc80e45dd0055c98aeeba8a4165d42d2821db48dd7bf51ac3928c629

2024-03-07T00:00:00Z

256c2aaa-d901-488b-96b7-eef43d031ea0

Gorham v. Thompson

S46642

oregon

Oregon Supreme Court

FILED: October 18, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON A. KENT GORHAM, Petitioner on Review, v. S. FRANK THOMPSON, Superintendent, Oregon State Penitentiary, Respondent on Review. (CC 96C-12929; CA A100889; SC S46642) On review from the Court of Appeals.* Argued and submitted November 3, 2000. Marc D. Blackman, Ransom Blackman, Portland, argued the cause and filed the briefs for petitioner on review. With him on the briefs was Kendra M. Matthews. Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.** LEESON, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Marion County Circuit Court, Rodney M. Miller, Judge. 159 Or App 570, 978 P2d 443 (1999). **Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case. Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. De Muniz and Balmer, JJ., did not participate in the consideration or decision of this case. In this post-conviction proceeding, petitioner contends that his convictions for sex abuse and rape must be set aside because he received inadequate assistance of trial counsel in violation of Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. (1) The post-conviction court held that, by not investigating experts regarding impeachment and credibility issues for petitioner's third trial before deciding not to use them, petitioner's trial counsel had not exercised reasonable professional skill and judgment. Nonetheless, that court denied relief on the ground that petitioner had not shown prejudice. The Court of Appeals affirmed. Gorham v. Thompson, 159 Or App 570, 978 P2d 443 (1999). We allowed petitioner's petition for review and now affirm the decision of the Court of Appeals and the judgment of the post-conviction court on a different ground. The relevant events giving rise to petitioner's post-conviction challenge in this proceeding are as follows. In 1991, a grand jury indicted petitioner on three counts of first-degree rape and three counts of first-degree sexual abuse against his daughter L, (2) in 1989 and 1991, when she was five and seven years old. Petitioner was tried three times. The first trial, in July 1992, ended in a mistrial. Thereafter, petitioner retained Morrow, the lawyer whose conduct is at issue in this proceeding, to represent him at the second trial. Petitioner's second trial began in October 1992. At that trial, Morrow cross-examined prosecution witnesses and presented defense witnesses to undermine the reliability of L's reports of petitioner's sexual acts. Morrow also offered the testimony of two expert witnesses, a physician, Dr. Moore, and a child psychiatrist, Dr. Boverman. The purpose of Moore's testimony was to challenge the physical examination methodology that a pediatrician, Dr. Young, had used when she had examined L's genitalia in 1990 and 1991, and had reported "nonspecific" findings of sexual abuse, based in part on "bumps" and "dips" in L's hymen. The purpose of Boverman's testimony was to establish that children of L's age are susceptible to suggestion, that inappropriate questioning can lead children to make false disclosures of sexual abuse, that the inconsistencies in L's accounts of what had occurred were the result of improper questioning and "contamination" through play therapy with a psychologist, Gregory-Mull, and that Gregory-Mull inappropriately had used anatomically correct dolls with L before L had made a clear disclosure of sexual abuse. During its deliberations in the second trial, the jury informed the trial court that it had seen an exhibit that it did not believe had been introduced as evidence. The court had the exhibit removed, instructed the jury to disregard it, and told the jury to continue its deliberations. The jury convicted petitioner on all counts. After the verdict, Morrow talked to one of the jurors. He learned that, before seeing the exhibit, five of the twelve jurors had voted to acquit petitioner. However, after seeing the exhibit, at least three of the five jurors who had voted to acquit changed their votes. Morrow also learned that, in the jury's view, the prosecution's cross-examination had discredited both Moore's and Boverman's testimony. Morrow then wrote a letter to petitioner explaining that the information that he had obtained from the juror meant that the trial court probably would grant a motion for mistrial, that petitioner had a chance of prevailing in a third trial, and that "[t]here are things we can do better next time." The trial court subsequently granted petitioner's motion for a mistrial. Petitioner's third trial began in May 1993, approximately seven months after the second trial had begun. Before trial, Morrow learned that the prosecution's case at the third trial would be a replay of the second trial and that the prosecution would call the same witnesses. According to Morrow's affidavit in this proceeding, he decided that it would be "a better tactic at the third trial not to call expert witnesses, subjecting them to cross-examination by the prosecutor." The accused testified on his own behalf at the third trial, as he had previously. He denied having had any sexual contact with L. After hearing all the evidence, the jury returned guilty verdicts on all counts, and the Court of Appeals affirmed the convictions. State v. Gorham, 131 Or App 267, 884 P2d 1230, rev den 320 Or 493 (1994). As noted, petitioner brought this post-conviction proceeding, alleging that he had received inadequate assistance of counsel at his third trial. See ORS 138.530(1)(a) (post-conviction relief available for substantial denial of rights under state and federal constitutions). (3) To prevail on his claim of inadequate assistance of counsel, petitioner had to make two showings. First, petitioner had to demonstrate by a preponderance of the evidence that Morrow had failed to exercise reasonable professional skill and judgment. See Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991) (identifying two-pronged test for post-conviction relief). Second, even if Morrow had failed to exercise reasonable professional skill and judgment, petitioner had to demonstrate that that failure would have had a tendency to affect the result. Id. As relevant to the issue on review in this proceeding, petitioner alleged that Morrow had failed to exercise reasonable professional skill and judgment in failing to present expert opinion evidence on credibility and impeachment matters. Petitioner submitted an affidavit from Dr. Bruck, a developmental psychologist, stating that, in Bruck's opinion, L's trial testimony "* * * is characterized by so many poor investigative techniques as to render the reports unreliable. Their reports appear to be products of coercive and pressurized interview techniques conducted over a period of 18 months. As well there are a number of milder suggestive influences that could interact with these more coercive techniques to produce her testimony." The petition also averred that a "behavior pediatrician," Dr. Sabin, would testify that the manner in which Young had conducted her examination and obtained L's medical history did not meet minimum professional standards, and that Young's interpretation of her findings conflicted with medically accepted standards. At the post-conviction hearing, petitioner submitted Bruck's affidavit as well as the testimony of a defense lawyer, Matasar. Matasar expressed the opinion that, to provide adequate assistance of counsel, Morrow had to present expert testimony to the jury at petitioner's third trial, that it was unreasonable not to present such testimony, that there was no tactical reason not to present expert testimony if it were available, and that he, Matasar, had found no evidence that Morrow had investigated the use of expert witnesses at petitioner's third trial. Matasar expressed no opinion about Morrow's investigation and use of experts at petitioner's second trial. Following the hearing, the post-conviction court found that Morrow had presented expert testimony from Moore and Boverman at petitioner's second trial; that Boverman had testified about circumstances that could create a risk that children would make false accusations of sexual abuse; that the prosecution had discredited both Moore and Boverman on cross- examination; that Morrow had chosen not to use expert witnesses in the third trial; and that Morrow instead had "extensively cross-examined the complaining witness and the prosecution's witnesses, including experts." Those findings are not contested. The post-conviction court then held: "1. Trial counsel, in failing to investigate experts on the impeachment and credibility issues, failed to exercise reasonable professional skill and judgment in defending petitioner. "2. Petitioner did not establish that the trial counsel's decision to rely on extensive cross-examination of the complaining witness and the prosecution witnesses had a tendency to affect the result of the prosecution. "3. Trial counsel's omissions cannot be regarded as of a constitutional magnitude. "4. In the underlying criminal proceedings resulting in petitioner's conviction, petitioner was not denied assistance of trial counsel as guaranteed by either the United States Constitution or the Constitution of the State of Oregon." (Emphasis added.) In a letter to counsel that clarified its findings and conclusions about Morrow's failure to investigate experts before deciding not to use them at petitioner's third trial, the post-conviction court explained: "The credibility and the impeachment of the complaining witness issue was a major focus of defense counsel. * * * A decision not to pursue expert witnesses for possible impeachment of the child and to preclude cross examination by the District Attorney should logically be made after investigating what experts had to say on the subject. It does not seem that 'a tactic' could be determined to be the 'better' until the experts' input was known. The same rationale carries to defense counsel's decision to focus solely on cross examination of the child witness. "Trial counsel, in failing to investigate experts on the impeachment and credibility issues, failed to exercise reasonable professional skills and judgment in defending petitioner. "* * * Petitioner must make a showing that the omission of trial counsel prejudiced the defense." (Emphasis added.) On appeal, petitioner assigned error to the post- conviction court's holding that petitioner had failed to establish prejudice. The state cross-assigned error to the post-conviction court's holding that Morrow had failed to exercise reasonable skill and judgment in deciding not to use experts at the third trial without first investigating what they would say. The state argued that, having been through the second trial -- at which he had both investigated and presented expert testimony -- Morrow already knew what experts would say. Under those circumstances, the state contended, Morrow's decision not to use experts at the third trial was an informed tactical choice that did not require additional investigation. Petitioner asserted that the post-conviction court had found that Morrow had provided inadequate assistance of counsel by not presenting expert testimony at the third trial. The Court of Appeals assumed, without discussion, that "[Morrow's] decision not to call experts in the third trial after his experts had been discredited in the second trial was not a reasonable tactical decision." Gorham, 159 Or App at 575. Nonetheless, that court affirmed the post-conviction court on the ground that petitioner had failed to establish that Morrow's decision to rely on extensive cross-examination of L and the other prosecution witnesses at the third trial had a tendency to affect the result of the prosecution. Id. On review, petitioner contends that the Court of Appeals misapplied the second, or "prejudice," prong of the post- conviction relief test. The state defends that court's analysis of the prejudice prong. However, the state contends that the Court of Appeals erred in not addressing the first prong of the post-conviction analysis. It argues that Morrow was not required to treat preparation for the third trial as though he were writing on a "clean slate." Rather, Morrow was entitled to rely on his investigation and use of experts at petitioner's second trial to inform his decision not to call such experts at petitioner's third trial. If the state's argument on that point is well taken, then it is dispositive. Accordingly, we turn to the state's argument. It is well established that a reviewing court will not second-guess a lawyer's tactical decisions in the name of the constitution unless those decisions reflect an absence or suspension of professional skill and judgment. Krummacher, 290 Or at 875-76. However, tactical decisions must be grounded on a reasonable investigation. Id. at 875; Stevens v. State of Oregon, 322 Or 101, 108, 902 P2d 1137 (1995). The question in each case is whether trial counsel's investigation was legally and factually appropriate to the case. Stevens, 322 Or at 108. In this case, by the time that Morrow began preparing for petitioner's third trial, he had both investigated and used expert witnesses only a few months earlier at petitioner's second trial. Nothing changed during the time between the two trials that would have compelled Morrow to investigate anew expert testimony; the facts, law, and theories that the experts had relied on remained the same. Morrow also had learned after the second trial that the state intended to present the same case at the third trial that it had presented at the second trial and that it would call the same witnesses in its effort to prove petitioner's guilt. Based on his investigation and use of experts on credibility and impeachment issues at the second trial, Morrow believed that it would be a better strategy at the third trial not to subject defense experts to the prosecution's cross-examination. Accordingly, he decided not to call experts on those issues at petitioner's third trial. (4) On those facts, the post-conviction court erred in holding that Morrow failed to exercise reasonable professional skill and judgment by not investigating experts regarding impeachment and credibility issues for petitioner's third trial before deciding whether to present such experts. The facts of this case differ from the situation in which a lawyer makes a tactical decision about how to conduct a trial without ever having undertaken any investigation on which to ground that decision. In Stevens, for example, in preparing for the petitioner's trial on charges of sexual abuse, trial counsel did not interview potential witnesses whose testimony might have had a bearing on the complaining witness's credibility, and trial counsel did not investigate at all whether any medical evidence supported the petitioner's claim that he was sexually impotent. 322 Or at 105-06. This court held that trial counsel's investigation was not legally and factually appropriate to the case, id. at 108-09, and that trial counsel had not exercised reasonable professional skill and judgment, id. at 110. In this case, by contrast, Morrow recently had both investigated and used experts on credibility and impeachment issues at petitioner's second trial. The second trial turned out to be a "dry run" for the third trial a relatively short time later. Morrow's decision not to present expert testimony at the third trial was grounded on his investigation and use of experts at petitioner's second trial. As we have explained, the post-conviction court and the Court of Appeals denied relief in this proceeding on the ground that petitioner had not satisfied the second -- or prejudice -- prong of the test for post-conviction relief. Because we hold that petitioner has not demonstrated that Morrow failed to exercise reasonable professional skill and judgment under the first prong of the post-conviction test, we do not address petitioner's arguments under the prejudice prong of the post-conviction test. (5) The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. Article I, section 11, provides, in part: "In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel[.]" The Sixth Amendment to the United States Constitution 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 United States Constitution. Gideon v. Wainwright, 372 US 335, 342-45, 83 S Ct 792, 9 L Ed 2d 799 (1963). 2. We refer to the minor child by her initial. 3. In this case, the inquiry under the Sixth and Fourteenth Amendments to the United States Constitution is the same as the inquiry under Article I, section 11, of the Oregon Constitution. See Krummacher v. Gierloff, 290 Or 867, 871, 627 P2d 458 (1981) (determining that "[i]t is sufficient for the purposes of this case to examine the right to counsel as if the rights assured under each constitution are identical"). 4. Petitioner does not challenge Morrow's preparation for and conduct at the third trial in any other respect. 5. Petitioner also contends that the evidence that the state presented against him at his third trial was so unreliable that due-process principles precluded his conviction. Petitioner did not challenge the reliability of the state's evidence at trial or on direct appeal. See Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368 (1994) (failure to raise issue at trial that reasonably could have been raised at trial generally precludes post-conviction relief on that ground). We decline to address petitioner's due-process argument on review.

6d5c2756ff8b828a2a4ad89d49ff654bc024dbe0f03818ba3ffbf078586fe61c

2001-10-18T00:00:00Z

854f2933-f840-4e8a-a6d3-802f4a9492e0

Nesbitt v. Myers

S48783

oregon

Oregon Supreme Court

FILED: November 30, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON TIM NESBITT, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48783) En Banc On petition to review ballot title. Argued and submitted October 4, 2001. Lynn-Marie Crider, Salem, argued the cause and filed the petition for petitioner. Brendan C. Dunn, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. PER CURIAM Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(11). PER CURIAM In this ballot title review proceeding, petitioner challenges an aspect of the Attorney General's certified ballot title for a proposed initiative measure that the Secretary of State has denominated as Initiative Petition 83 (2002). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). See ORS 250.085(5) (setting out standard of review). Petitioner challenges the "no" vote result statement in the Attorney General's certified ballot title. We have considered petitioner's arguments and determine that they are not well taken. Accordingly, we certify to the Secretary of State the following ballot title for the proposed measure: AMENDS CONSTITUTION: PROHIBITS ESTABLISHING, EXPANDING INMATE WORK PROGRAMS DISPLACING, SIGNIFICANTLY REDUCING OPPORTUNITIES FOR PRIVATE ENTERPRISES, NON-INMATE WORKERS RESULT OF "YES" VOTE: "Yes" vote prohibits establishing, expanding inmate work programs displacing, significantly reducing: opportunities for pre-existing private enterprises or non-inmate workers; government, nonprofit programs employing developmentally-disabled. RESULT OF "NO" VOTE: "No" vote retains laws granting corrections director discretion to establish, expand inmate work programs displacing, significantly reducing: pre-existing private enterprises' opportunities; programs employing developmentally-disabled. SUMMARY: Amends constitution. Constitution currently requires inmate work programs for state corrections institutions. Constitution currently instructs the corrections director to avoid, but grants director discretion to establish or expand, inmate work programs that would: provide goods or services to the private sector and displace or significantly reduce opportunities for pre-existing private enterprises; or displace or significantly reduce government or nonprofit programs that employ developmentally-disabled persons. Measure prohibits director, cities, and counties from establishing or expanding inmate work programs that would: provide goods or services to the private sector and displace or significantly reduce opportunities for preexisting private enterprises; or displace or significantly reduce either non-inmate workers' work opportunities or government or nonprofit programs that employ developmentally-disabled persons. Others provisions. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(11).

478ecb35f50a2e4c905056215dad86cdc9ee42c2f0dd2a423a84594e92c1dfc1

2001-11-30T00:00:00Z

26006f09-c75b-416a-b3f6-30b2cdbc4afc

Rivera v. Dept. of Rev.

S48386

oregon

Oregon Supreme Court

FILED: September 20, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON VICTORIO C. RIVERA, Appellant, v. DEPARTMENT OF REVENUE, Respondent. (OTC 4487; SC S48386) On appeal from the Oregon Tax Court. William C. Richardson, Judge pro tempore. Argued and submitted September 7, 2001. Victorio C. Rivera, appellant pro se, argued the cause and filed the brief. Melisse S. Cunningham, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With her on the brief was Hardy Myers, Attorney General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. PER CURIAM The judgment of the Oregon Tax Court is affirmed. PER CURIAM This is an appeal from a judgment of the Oregon Tax Court that dismissed taxpayer's complaint (1), denied taxpayer's motion for summary judgment, and denied taxpayer's motion for change of judge. We have considered each of taxpayer's various submissions in support of his appeal and conclude that none is well taken. The judgment of the Oregon Tax Court is affirmed. 1. The complaint sought various forms of relief, the precise natures of which are not pertinent to our disposition of this case.

62e0439d8efecfe600a6d13a0e53cb7a874a509745d0b69aeb5136c18dea625a

2001-09-20T00:00:00Z

7cc3e70f-2835-46be-afbf-dc6d01796721

State v. Jaehnig

S48941

oregon

Oregon Supreme Court

Filed: December 13, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. JEFFREY J. JAEHNIG, Petitioner on Review. (CC 97NB0467; CA A99180; SC S48941) En Banc On motion to reverse and remand filed October 8, 2001.* Robin A. Jones, Senior Deputy Public Defender, Salem, filed the motion for petitioner on review. Timothy A. Sylwester, Assistant Attorney General, Salem, filed the response for respondent on review. MEMORANDUM OPINION The motion to reverse and remand is construed as a petition for review. The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of State v. Fugate, 332 Or 195, 26 P3d 802 (2001). *Appeal from Coos County District Court, Paula M. Bechtold, Judge. 158 Or App 348, 978 P2d 1011 (1999).

e28d04d612c105b4ea67e18233981ba3fa4103060852092a64fefc1c5532a67a

2001-12-13T00:00:00Z

5b2e2e65-a4b5-4b1d-8c4a-ea80704c7425

Marcus v. Myers

S48720

oregon

Oregon Supreme Court

FILED: October 18, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON LEWIS MARCUS, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent, and JAMES SAGER, TRICIA BOSAK, and OREGON EDUCATION ASSOCIATION, Intervenors. (SC S48720) En Banc On petition to review ballot title. Submitted on the record August 24, 2001. Gregory W. Byrne, Portland, filed the petition for petitioner. Jas. Jeffrey Adams, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Margaret S. Olney, of Smith, Gamson, Diamond & Olney, Portland, filed the intervenors' memorandum in support of Attorney General's certified ballot title. PER CURIAM Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). In this ballot title review proceeding, petitioner challenges each aspect of the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 66 (2002). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). See ORS 250.085(5) (setting out standard of review). We considered each of petitioner's arguments and find none to be well taken. Accordingly, we certify to the Secretary of State the following ballot title for the proposed measure: AMENDS CONSTITUTION: REQUIRES INITIATIVE PROPONENTS, BEFORE OBTAINING UNBIASED BALLOT TITLE, TO SUBMIT 50% OF NECESSARY VOTER SIGNATURES RESULT OF "YES" VOTE: "Yes" vote requires proponents of initiative measures, before obtaining unbiased ballot title, to submit 50% of voter signatures necessary to get measure on ballot. RESULT OF "NO" VOTE: "No" vote rejects constitutional requirement that, before obtaining unbiased ballot title, initiative proponents must submit 50% of voter signatures necessary for placement on ballot. SUMMARY: Amends constitution. Current statutes require proponents of statewide initiative measures to obtain a ballot title, before circulating petition to gather voter signatures necessary to get the measure on the ballot. Currently, process to obtain impartial ballot title, including drafting and revision by Attorney General and potential Supreme Court review, commences when initiative proponent submits to Secretary of State document signed by 25 persons qualified to vote. Measure requires that before ballot title process can begin, proponents of initiative measures must submit to Secretary of State for verification 50% of the voter signatures necessary to get measure on ballot. Measure places in constitution requirement that ballot title be unbiased. Provides that legislature shall prescribe form for ballot titles and procedures for drafting and appealing them. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10).

e63dc213dac08532d9688409bb4862275729be85406b9675d42b25da34971821

2001-10-18T00:00:00Z

795e975c-7adf-47c7-926d-400f60925f60

State v. Terry

S42818

oregon

Oregon Supreme Court

Filed: December 28, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent, v. KARL ANTHONY TERRY, Appellant. (CC 94-1337; SC S42818) On automatic and direct review of the judgment of conviction and sentences of death imposed by the Clackamas County Circuit Court. Raymond Bagley, Judge. Argued and submitted September 6, 2001. Eric Johansen, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs were David. E. Groom, State Public Defender, and Ingrid MacFarlane, Deputy Public Defender. Robert E. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Kathleen Cegla and Doug M. Petrina, Assistant Attorneys General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.* DE MUNIZ, J. The judgment of conviction and sentences of death are affirmed. *Balmer, J., did not participate in the consideration or decision of this case. DE MUNIZ, J. This case is before us on automatic review of defendant's convictions for two counts of aggravated murder and sentences of death. See State v. Lotches, 331 Or 455, 457 n 1, 17 P3d 1045 (2000) (explaining that judgment of conviction and sentence of death now subject to automatic and direct review in this court under ORS 138.012(1)). Defendant challenges the pre-trial, guilt, and penalty phases of his trial in 22 assignments of error. For the reasons set out below, we reject each of defendant's assignments of error and affirm the convictions for aggravated murder and sentences of death I. FACTS Because the jury found defendant guilty of the crimes charged, we view the evidence presented at trial in the light most favorable to the state. State v. Thompson, 328 Or 248, 250, 971 P2d 879 (1999). On August 6, 1994, Jeffrey Brown (Jeff) invited defendant to celebrate the birthday of Jeff's brother Dale Brown (Dale). Defendant and Jeff had spent a lot of time together. According to defendant's writings, they belonged to an organization that defendant called the "Order of the Black Dove." The creed of the Order of the Black Dove, as reflected in defendant's journals, celebrated violence and other anti-social behavior. Defendant accepted the invitation and met Jeff and Dale at approximately 2:30 or 3:00 p.m. that day. The three of them drank beer together and, eventually, decided to go camping on the Willamette River. The brothers collected their gear, and Jeff brought a samurai or ninja knife that he owned. The group obtained cash from an ATM machine and purchased a six-pack of beer. At the river, they drank more beer and argued about where to camp. Witnesses recalled seeing defendant with Jeff and Dale at the river before 9:00 p.m., and also recalled that defendant was wearing a black leather jacket. Defendant was seen alone at the river at about 9:15 p.m. The next day, Bennie Garry and his two sons went fishing at the Jefferson Milwaukee boat landing. The younger son tired of fishing and decided to play elsewhere. A few minutes later, he returned and reported that there was a dead man nearby. The older son investigated and returned to tell his father that the man had a hole in his neck. Garry then found two bodies, one that appeared to be sleeping on the ground and one that was in a sleeping bag. He notified police. The police concluded that the victims had been killed where they were found. Although the police surveyed the area, they did not find a weapon. The victims were identified as Jeff and Dale. Jeff had lived in an apartment above a restaurant where he worked. The owner of the restaurant let the police into the apartment, where they made a brief, preliminary search. The owner noticed that Jeff's keys were on the counter and that the deadbolt, usually locked, was unlocked. After notifying the parents and obtaining permission, the police searched Jeff's apartment more thoroughly and discovered defendant's black motorcycle jacket inside a backpack. A witness had seen defendant leaving Jeff's apartment on the night of the murders at about 9:30 p.m. Defendant was not wearing a jacket at that time. On August 8, 1994, the police again went to Jeff's apartment. While searching the apartment, Detective Corson noticed that the telephone had a redial function. He pressed the button. The person who answered the call identified himself as "Karl," i.e., defendant. Defendant acknowledged that he was a friend of Jeff's. Corson asked if he could speak with defendant in person at his apartment in Portland. Defendant agreed. When Corson arrived at defendant's apartment, defendant gave him a paper sack containing a knife, saying that he was aware that the police were looking for knives. According to defendant, the knife had belonged to Jeff. Defendant also handed Corson a written statement, and agreed to go to a Portland police station to give an interview. At the interview, Corson advised defendant of his Miranda rights and recorded defendant's oral statement. In that statement, defendant indicated that he had left Dale and Jeff at the river at about 8:00 p.m. He denied that he had fought with them. Corson and Detective Kidd then took defendant home but, on the way, stopped for some cigarettes. At his apartment, defendant invited the police inside and permitted them to look around. The officers explained to defendant that they had no right to look inside his apartment without a warrant and that anything incriminating that they might find could be used against him. Defendant was cooperative and signed a consent-to-search form. The police searched the apartment but did not seize anything. On August 9, 1994, Kidd telephoned defendant and obtained defendant's consent to take a polygraph examination. The next day, when Kidd arrived at defendant's apartment, defendant refused to submit to the polygraph examination and walked away, stating that he had given the police all the information that he had. On August 19, 1994, the police obtained a search warrant for defendant's apartment. Four officers -- Corson, Kidd, Trooper Nguyen, and Sergeant McCrum -- went to defendant's apartment to execute the warrant. The officers talked to defendant through the front door. When that discussion was unavailing, the police forced the door open. Once the police were inside, defendant sat calmly at a table and watched the officers. Corson informed defendant that he was not under arrest and that he was free to leave while the officers conducted the search. Despite that invitation, defendant remained in the apartment and even assisted the officers in their search. The police seized various items from the apartment and obtained defendant's consent to take a polygraph test and to have his blood drawn. The police took defendant to the hospital to obtain a blood sample and then returned him to his apartment. On August 22, 1994, Corson and Nguyen transported defendant to the location of the polygraph examination. Before the examination, the examiner, Detective Bryant, advised defendant of his Miranda rights. After the examination, Bryant informed defendant that his answers were deceptive. Defendant indicated that he wanted to talk to Corson and the others about his test. During the ensuing conversation with the officers, McCrum referred to inconsistencies in defendant's statements. Defendant became agitated and responded, "How about if I let you talk to my attorney? I want to go home." McCrum responded, "That's fine." Defendant then sat down and asked McCrum questions about the investigation, and stated, "How do you expect me to remember everybody that was outside there that day? I was drunk." McCrum answered defendant's questions, and defendant calmed down. Defendant then went outside with the officers to smoke a cigarette. Once outside, he discussed with the officers whether he would have interfered in a fight between Dale and Jeff. He then began to ramble about having blackouts. He also asked about what the DNA analysis of the blood on his jacket might reveal. He was told that, according to preliminary tests, the blood might be Dale's, but that further testing would be undertaken. Defendant responded, "I just want to go home. Maybe you guys should talk to my attorney." McCrum replied, "Okay. Fine." They began to walk toward the police vehicle. On the way to the vehicle, defendant asked more questions of the officers and speculated about why a person might black out. Defendant asked more questions about the blood on the jacket. After the officers answered his questions, defendant declared, "I want to go home." About 7:00 p.m., the officers drove him home. When they arrived at defendant's apartment, defendant stated, "I'm fucked either way. No matter what I tell you, the D.A. is going [to] put me in prison, that's for sure." Corson told defendant that the district attorney would review the information that the police provided to him. Defendant inquired whether the police would appoint him an attorney. Corson said he could not appoint an attorney for defendant, and explained that, if defendant wanted an attorney, he should say so, and then asked whether defendant wanted the officer not to ask any further questions without an attorney present. Corson elaborated that, "If you want to have an attorney, you need to tell me and I will not have any contact or conversation with you." Defendant replied that he knew his rights and asked for Corson's business card. Defendant took the card and said that he might call Corson later that night. He then said that he definitely would call Corson the next day. The officers left. About a half-hour later, Corson suggested that Nguyen call defendant at his apartment. Nguyen called defendant and asked how he was doing. Nguyen intimated that he knew that defendant wanted to talk to them, but was having difficulty doing so. Defendant indicated that he was worried about going to jail and no longer receiving his social security checks. Nguyen explained that the police gather information and give that information to the district attorney to make a charging decision. Defendant agreed to speak with the police again that evening. Corson and Nguyen arrived at defendant's residence and defendant spoke to them in an unmarked patrol car. After being advised of his rights, and after acknowledging that he was speaking voluntarily, he told the police his version of the events that led to the killings. According to defendant, Dale and Jeff started fighting, Dale killed Jeff, and defendant killed Dale in Jeff's defense. Defendant agreed to help the police search for the murder weapon at the scene. Corson wanted to advise defendant of his constitutional rights again, but defendant refused, stating that he did not want a lawyer and that he knew what his rights were. Defendant recited his rights to the officers. He described to them how and where he had disposed of a sword. They then drove to the crime scene and engaged in a fruitless search for the sword. Defendant identified the area in which the sword should be located. It was getting late in the evening, and defendant indicated that he would help the police again the next day. Defendant said that he was hungry, so an officer took him to buy some food and then took him home. The next day, Corson and Nguyen arrived at the front door of defendant's apartment and found a note fixed to the door stating that defendant did not wish to cooperate further. Later that day, the police arrested defendant. The police also found a samurai sword near the location that defendant had identified. DNA testing of blood on the sword indicated that the blood belonged to Dale and Jeff. Defendant's black leather jacket also had Dale's and Jeff's blood on it. In October 1994, while in detention in the Clackamas County Jail, defendant told a fellow prisoner that Jeff had wanted out of the Order of the Black Dove. Defendant also told the prisoner that the only way out was death, and that he had killed Jeff with a "big knife." Defendant was tried and convicted of the murders of Dale and Jeff, and sentenced to death. This automatic review followed. ORS 138.012(1). II. ADMISSIBILITY OF DEFENDANT'S STATEMENTS TO POLICE Defendant contends that the trial court erred in permitting defendant's statements to be admitted into evidence. Before trial, defendant moved to suppress his statements to the police, in which he claimed that he had killed Dale in Jeff's defense, citing Article I, sections 9, (1) 11, (2) and 12, (3) of the Oregon Constitution, and the Fourth, (4) Fifth, (5) Sixth, (6) and Fourteenth Amendments (7) to the United States Constitution. Following a hearing, the trial court denied the motion, concluding "that in each of the interviews defendant was not in custody. To the extent his comments regarding an attorney could be construed to be an exercise of his right to counsel, it was waived by his continuing the conversations with police." On appeal, defendant argues that his statements were involuntary and that the trial court should have suppressed them because his mental health had been fragile, the police had made an express or implied promise of leniency, and police questioning had been persistent and involved the "false friend" investigation technique. In addition, defendant argues that the trial court should have suppressed his statements because he "equivocally invoked" his right to counsel, and the police had not clarified his intent. Although defendant identifies a number of statements that he made, he challenges only the substance of the interview that took place on August 22, 1994, during which he confessed to killing Dale in Jeff's defense. A. Alleged Involuntariness of Statements In reviewing the voluntariness of defendant's statements, this court is bound by the trial court's findings of historical fact if the evidence supports them. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). We are not bound by the trial court's ultimate holding as to voluntariness, however, and we assess anew whether the facts are sufficient to meet constitutional standards. State v. Stevens, 311 Or 119, 135, 806 P2d 92 (1991). Defendant has failed to identify any evidence in the record that provides a basis for a conclusion that the police made an offer of leniency to defendant or employed some other fraudulent tactic to obtain defendant's statement. He offers instances of contact with the police that do not indicate any misconduct on their part or anything that would have encompassed some form of deception. He argues that the police obtained a statement from him "by leading [him] to believe that they cared about him and were interested in his well-being," and that his statement "was derived through the implied representation of leniency that one would expect of a friend." Defendant thus attempts to construe courtesy and civility as some form of deceit. The police did not mislead defendant and, indeed, defendant understood that the police had thought that he was the prime suspect. He acknowledged that fact, for example, when he told the police that "the D.A. is going to put me in prison, that's for sure." Similarly, defendant's reference in his argument to his "mental health" is not sufficiently developed to conclude that his state of mind made his statement involuntary. B. Right to Counsel Although a trial court's findings of historical fact are binding on this court if the evidence supports them, we review legal conclusions regarding the invocation of the right to counsel for legal error. State v. Montez, 309 Or 564, 572-73, 789 P2d 1352 (1990). Defendant's references to his right to counsel during questioning are not a basis for reversal for two reasons. First, defendant was not in custody when he mused that the police perhaps should talk to his attorney. The invocation of the right to counsel under Article I, section 12, of the Oregon Constitution, requires police questioning to cease only when a defendant is in custody, i.e., not free to leave. However, when a person gives an interview, even at a police station, of his own free will, and is "free to answer questions, or not to answer, or simply to end the meeting," that person is not in custody. State v. Smith, 310 Or 1, 8, 791 P2d 836 (1990). Similarly, under the Fifth Amendment to the United States Constitution, a person is in custody only if his or her freedom has been "significantly restrained"; voluntary participation in a police interview at the police station generally does not constitute a significant restraint. Id. (citing Oregon v. Elstad, 470 US 298, 309, 105 S Ct 1285, 84 L Ed 2d 222 (1985) and Oregon v. Mathiason, 429 US 492, 495, 97 S Ct 711, 50 L Ed 2d 714 (1977). Here, defendant referred to an attorney on four occasions. However, in each instance, which we set out below, he was free to leave, and he chose not to. 1. After the polygraph examination, when defendant had indicated that he wanted to talk to the officers about the test, defendant made an ambiguous statement about "How about if I let you talk to my attorney" and expressed a desire to "go home." An officer responded, "That's fine." At that point, defendant sat back down in his chair. 2. Defendant went outside to smoke a cigarette. He talked to the officers about the testing of the blood on his jacket. Defendant stated, "I just want to go home. Maybe you guys should talk to my attorney," to which an officer responded, "Okay," and began walking toward the police vehicle to leave. Defendant then persisted in asking more questions of the officers. After the officers responded to his questions, defendant stated again that he wanted to go home, and the officers took him home. 3. When they arrived at his residence, defendant asked whether the police would provide him with an attorney. Corson told defendant that, if he wanted an attorney, he should say so. Corson asked defendant whether he wanted an attorney. Defendant replied that he knew his rights; he then accepted a business card from Corson and discussed when they would speak again. 4. Defendant agreed to speak with the officers again. When Corson attempted to advise defendant of his rights, defendant stated that "he didn't want a lawyer and he knew what his rights were." He acknowledged that his statement that he had killed Dale was voluntary. In each of those four instances, defendant was free to leave, yet he remained. We conclude that defendant was not in custody when he mentioned the subject of counsel. Second, each time that defendant mentioned counsel, he rejected the idea in favor of cooperating with the police and engaging in further conversation about the investigation, thereby waiving any protection from interrogation. See State v. Meade, 327 Or 335, 341, 963 P3d 656 (1998) (suspect who has made equivocal request for counsel thereafter may waive right to have counsel present during that or later interrogation). In each instance noted above, defendant appeared to have weighed his options of remaining silent versus cooperating with the police and decided that he wanted to cooperate, or at least engage in dialogue. At times, defendant refused to cooperate, thereby demonstrating that he was aware of his rights. In fact, he was so aware of his rights that he could recite them. We conclude that defendant's constitutional right to counsel under the Oregon Constitution and the United States Constitution was not violated, and that his statements properly were admitted at trial. III. REFERENCE TO POLYGRAPH AT TRIAL Defendant maintains that the court erred in denying his motions to dismiss and for a mistrial because a witness made a passing reference to the fact that defendant had taken a polygraph test. Trooper Nguyen testified at trial that he had been present when defendant was interviewed at the police station on August 22, 1994, and that he had accompanied Corson when they drove defendant home. Specifically, Nguyen testified on direct examination: "Q: [Prosecutor] And after you got back to the police station at about 7:40, did you place a telephone call to the defendant? "A: [Nguyen] That's correct, I did. "Q: Before doing that, did you discuss that with Detective Corson? "A: Yes, I did. "Q: What did you -- what was the conversation you had with [defendant] on that occasion? "* * * * * "A: On that day what I did was I placed a telephone call to [defendant] and spoke to him in general conversation at first. And then [defendant] initiated conversation with me further. "Q: What did you tell him about why you called when you first called him? "A: Oh. I stated to [defendant] that I called because I wanted to see how he was doing because I knew that the polygraph examination that he took and the interviews --" Defense counsel cut off the witness, stating that he had a matter for the court. Outside the jury's presence, defense counsel stated that, "[i]t was our understanding, Your Honor, that all witnesses had been cautioned not to get into the issue of polygraphs taken, polygraphs not taken." The prosecutor apologized that he had forgotten to caution Nguyen about referring to any polygraph and did not know that Nguyen was going to mention one. Defendant moved for a mistrial or, alternatively, for a curative instruction. The trial court observed that Nguyen's answer was not responsive to the question asked and that no one in the room had expected the answer that followed. The court adjourned for the day before making a decision. The next day, defendant moved to dismiss the case or, alternatively, for a mistrial, and argued that a curative instruction was insufficient because implicit in Nguyen's statement was an inference that defendant had failed the polygraph examination. The trial court denied those motions and opined that a curative instruction would be adequate: "[W]hen words are said in a courtroom, they ring in our ears and I don't know what they ring to the juror's ears. I think it was stated in a context that didn't indicate a result. That, at best, an instruction that is neutral along the line prepared by the State that 'disregard the last response' won't bring that response back to their attention. And I assume the jurors follow the instructions that judges give them, that they disregard that evidence." Consistent with the foregoing observations, the trial court instructed the jury as follows: "Yesterday there was an answer given by the witness on the stand, Mr. Nguyen, that wasn't responsive to the question asked. That testimony is stricken. You will disregard it." This court reviews a trial court's decision to deny a mistrial motion for abuse of discretion. State v. Larson, 325 Or 15, 22, 933 2d 958 (1997). We recognize that "[t]he trial judge is in the best position to assess the impact of the complained-of incident and to select the means (if any) necessary to correct any problem resulting from it." State v. Wright, 323 Or 8, 12, 913 P2d 321 (1996). With respect to the polygraph, this court has held that evidence of the results of a polygraph examination is inherently prejudicial. See State v. Lyon, 304 Or 221, 233-34, 744 P2d 231 (1987) (polygraph evidence not admissible by stipulation); State v. Brown, 297 Or 404, 445, 687 P2d 751 (1984) (polygraph evidence inadmissible over proper objection); State v. Middleton, 295 Or 485, 492, 668 P2d 371 (1983) (polygraph evidence "inherently prejudicial"). Despite the general inadmissibility of polygraph evidence, law enforcement agencies often use polygraph tests in the course of investigation and, despite vigilant efforts, reference to them occasionally finds its way into courtroom testimony. This court has held that it is not an abuse of discretion to refuse a motion for a mistrial based on a passing reference to a polygraph examination when that reference did not disclose the results of that examination. For example, in State v. Farrar, 309 Or 132, 786 P2d 161 (1990), defense counsel asked a state witness whether he had reviewed his statement with the police or a prosecutor, to which he replied, "[w]e went over roughly the same questions that were asked during the lie detector test and during tapings they took at [the] police station." Id. at 162. The defendant moved for a mistrial, which the trial court rejected. This court affirmed, reasoning that "[t]he reference did not warrant a mistrial because it was isolated and made only in passing, the results of the test were not disclosed, and the state never argued that the test had any significance to the witness's credibility or to any other issue in the case." Id. at 164. Likewise, in State v. Eby, 296 Or 63, 673 P2d 522 (1983), this court affirmed a lower court's decision to deny a mistrial motion based on a witness's brief reference to a polygraph examination, because "reference to the word 'polygraph,' without more, was so indefinite as to render any prejudicial effect speculative at best." Id. at 77-78. In this instance, the trial court found that the witness's testimony referring to the polygraph examination was inadvertent and did not imply the results of the examination. The court was uncertain whether the jury might have understood the reference to it at all. Although Nguyen's telephone call to defendant possibly could have indicated a sign of concern on Nguyen's part that defendant had failed the test, the call also could have suggested that defendant's performance in the test had been favorable, because defendant had been released and Nguyen was calling him at home. Hence, Nguyen's testimony was ambiguous as to whether defendant's polygraph results were favorable or unfavorable to defendant. In such circumstances, a curative instruction is sufficient to neutralize the possibility of prejudice to the defendant. "Jurors are assumed to have followed their instructions, absent an overwhelming probability that they would be unable to do so." Smith, 310 Or at 26. The instruction did not mention the critical testimony and informed the jurors to disregard as unresponsive what Nguyen had mentioned. We conclude that the trial court did not err in denying defendant's motions to dismiss and for a mistrial, in light of the curative instruction given. IV. PENALTY PHASE ISSUES A. Admissibility of Victim-Impact Evidence Defendant argues that the trial court erred in admitting victim-impact evidence in the form of a statement that the victims' mother had read to the jury during the penalty phase. At the outset of the proceedings, the law did not provide specifically for the admission of victim-impact evidence during the penalty phase of an aggravated murder trial. See ORS 163.150 (1993) (outlining penalty-phase procedures prior to allowance of victim-impact evidence consideration by Oregon juries). Thus, the trial court granted defendant's motion to limit victim-impact evidence and ordered the state to notify defendant of any victim-impact evidence that it intended to present. Defendant's motion did not raise any federal or state issues regarding prohibitions on ex post facto laws. Effective July 7, 1995, the legislature amended ORS 163.150(1)(a) to permit a jury to consider, during the penalty phase, "victim impact evidence relating to the personal characteristics of the victim or the impact of the crime on the victim's family[.]" State v. Hayward, 327 Or 397, 412, 963 P2d 667 (1998). As a result of the legislature's enactment of the new statute, the trial court reversed its prior ruling and decided to permit the state to offer victim impact evidence. In accordance with that ruling, the state offered a written statement from the victims' mother that the defense had reviewed. The victims' mother read the following statement to the jury: "Jeffrey Ray Brown, 23 and a half years, Dale Archie Brown, 22 years, I had the privilege of being their mother. "Jeffrey was my first born, my obedient child. After all, he was told to get off the table before he fell and broke something in our nursery, so he did fall off the table and [break] his arm. "Dale was my baby. My loving child. He would be outside playing, suddenly stop, come running inside to say, 'Mommy, I love you,' and run back outside to continue to play. "They will never marry, have children, grow old. They will walk with God forever. They made that choice as young children. I will miss seeing them grow, but this I know, I will be with them in God's good time. "Jeffrey Ray Brown, 23 and a half years, Dale Archie Brown, 22 years, I had the privilege of being their mother. "This past year at family gatherings as I listened to my sister-in-law talking about their daughters-in-law, grandchildren, and even a great grandchild, I delighted in hearing the stories and I hope they will always continue. And yet at the same time I was greatly saddened as I will never enjoy the pleasure of a daughter-in-law. I will never enjoy the pleasure of a grandchild and I will never enjoy the pleasure of a great grandchild. Mr. Terry, you took those opportunities from me when you murdered my sons, Jeffrey and Dale. "During this past year, as my brothers and I rallied around my mother to lend her emotional and physical support in dealing with her first year as a widow, I was pleased and proud of our willing ability to do so, and yet at the same time I was greatly saddened as I realized that when either my husband or I reached that stage in life, we will be truly alone, no children to lift us up as my brothers and I lifted my mother. Mr. Terry you have taken that from us when you murdered our sons, Jeffrey and Dale." Afterwards, defendant renewed his objection to the victim impact testimony: "I believe that earlier in the case that there was a motion regarding victim impact. I am certainly aware of the recent statute. We'll stand on our previous objections over the impact." The trial court then overruled the objection in light of the amended statute. On appeal, defendant maintains that the victim impact evidence at trial violated the ex post facto prohibitions set out in Article I, section 21, of the Oregon Constitution, (8) and Article I, section 10, of the United States Constitution. (9) The ex post facto clause of the Oregon Constitution, for example, forbids the retroactive application of certain types of criminal statutes. See generally State v. Fugate, 332 Or 195, 211, 26 P3d 802 (2001) (discussing doctrine). In this instance, however, defendant failed to preserve the issue for review, because he made no objection in the trial court that referred to either the federal or state ex post facto doctrine. (10) Ordinarily, this court will not consider any matter assigned as error unless it was preserved in the lower court. ORAP 5.45(4)(a); see State v. Montez, 324 Or 343, 356, 927 P2d 64 (1996) (claim of error not preserved when defendant failed to object to testimony on grounds asserted on appeal). Indeed, defendant admits that "[i]t does not appear on the record * * * that defendant specifically asserted that application of the 1995 version of ORS 163.150 violated the ex post facto provisions of the Oregon and U.S. Constitutions." Defendant suggests, without citing a basis in the record, that the issue may have been raised "off the record." This court, however, will not look outside the record to find objections. We also reject defendant's alternative argument that his more generalized objections preserved the issue for review, when those objections did not include a citation or other reference either to Article I, section 21, of the Oregon Constitution, or to Article I, section 10, of the United States Constitution, or otherwise suggest that applying the new statute somehow was constitutionally impermissible. Defendant failed to preserve the ex post facto issue. See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (stressing justifications for raising issues before trial court). Defendant next requests that this court review his ex post facto arguments as error apparent on the face of the record. "Even if a party fails to preserve a claim of error, appellate courts nonetheless possess discretion to consider it if it is plain error, also known as error 'apparent on the face of the record.'" State v. Reyes-Camarena, 330 Or 431, 435-36, 7 P3d 522 (2000). The elements of "error apparent on the face of the record" are that: "(1) the error is one of law; (2) the point of law is obvious, i.e., is not reasonably in dispute; and (3) the error is not one respecting which the court must go outside the record or select among competing inferences." Lotches, 331 Or at 472. (11) The first and third elements are present here, because the issue is whether the mother's testimony should have been admitted into evidence. Thus, the only issue is whether the error was "obvious," assuming that admitting the evidence in question was error at all. At the time of trial in this matter, and even now, the purported error is not obvious. Ex post facto claims frequently require an intricate constitutional analysis. See, e.g., Fugate, 332 Or at 211, (engaging in ex post facto analysis). When the victims' mother testified in October 1995, no case from this court or the Court of Appeals had determined whether the retroactive application of a statute permitting victim-impact evidence at trial would violate either Article I, section 21, of the Oregon Constitution, or Article I, section 10, of the United States Constitution. The first such case was not decided until four years later. See State v. Metz, 162 Or App 448, 461, 986 P2d 714 (1999) (1995 revision to ORS 163.150 fundamentally changed what evidence may be relevant to the issue before the jury and thus violated the ex post facto provision of Article I, section 21, of the Oregon Constitution). Deciding whether an error even occurred would require this court to engage in the same kind of extensive analysis that the Court of Appeals undertook in Metz. As a result, we conclude that the alleged error is not obvious. Defendant failed to preserve his ex post facto argument for purposes of appeal, and we decline to address that argument as error apparent on the face of the record. B. Alleged Error in Jury Instructions Defendant argues that the trial court erred by instructing the jury that it could consider any aspect of defendant's life in answering the penalty-phase questions. Quoting the pertinent jury instruction in full illustrates the alleged error: "The first question asked by the law as to Count I is, was the conduct of the defendant that caused the death of Jeffrey Brown committed deliberately and with the reasonable expectation that the death of Jeffrey Brown would result. "The first question asked by the law as to Count II is, was the conduct of the defendant that caused the death of Dale Archie Brown committed deliberately and with the reasonable expectation that the death of Dale Archie Brown would result. "The word deliberately means that state of mind that examines and considers whether a contemplated act should or should not be done. Deliberation is present if the thinking is being done in such a cool mental state under such circumstances and for such a period of time as to permit a careful weighing of the proposed decision. The law, however, does not prescribe a particular period of time as necessary to constitute deliberation. "The second question asked by the law in each count is, is there a probability, meaning is it more likely than not, that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. "The third question asked by the law in each count is, shall a death sentence be imposed. "The burden of proof beyond a reasonable doubt does not apply to the third question. As to this question, neither side bears any burden of proof. You must answer this question no if there is any aspect of the defendant's character or background or any circumstance of the events that one or more of the jurors believes justifies a sentence less than death. "You may consider any aspect of the defendant's life in your determination of the answers to these questions. And in answering these questions, you are to consider any mitigating circumstances received in evidence including but not limited to the defendant's age and the extent and severity of the defendant's prior criminal conduct. "Mitigating circumstances include those circumstances that do not justify or excuse the events, but that in your sole [judgment] may be considered as extenuating or reducing the degree of culpability and the appropriate punishment. The defendant need not establish the existence of a mitigating circumstance beyond a reasonable doubt. If you reasonably believe that a mitigating circumstance exists, then you may consider it as established. "If you unanimously answer all three of the [preceding] questions yes, the law requires that the penalty should be death. You may answer any of the first three questions in any order. * * *." (Emphasis added.) The questions presented to the jury followed those set out in the then-current version of ORS 163.150(1)(b) (1995). (12) Defendant admits that he failed to object at trial to the sentence in the jury instructions that he now challenges. Accordingly, defendant requests that this court review the alleged error as an error of law apparent on the face of the record. As noted above, this court, in its discretion, may review such alleged errors if the error is a legal error discernable in the record, and the point of law is not reasonably in dispute. Defendant makes no argument that the purported error is an obvious one. Indeed, the error is not obvious because Oregon appellate courts have not ruled on the inclusion of that particular sentence in penalty-phase jury instructions. In fact, in conjunction with a slightly different suggested formulation of the four questions set out in ORS 163.150(b) (1993), this court previously had approved in substance an instruction that stated: "You may consider any aspect of defendant's life in your determination on the fourth question [here, the third question] and any aspect of defendant's life that may be relevant in your determination of the first three questions." Farrar, 309 Or at 177. (13) There is little, if any, substantive difference between the two instructions. Defendant has not demonstrated that the error, if it existed at all, is obvious. Defendant failed to preserve his argument that the jury was improperly instructed, and we decline to address the argument as error apparent on the face of the record. C. Allegedly Defective Indictment Defendant asserts that the trial court erred in sentencing him to death. He maintains that, because the penalty phase instruction must include an element of "deliberation" to make him death eligible, the indictment that charged him had to specify that he had acted deliberately. He bases that argument on this court's decision in State v. Quinn, 290 Or 383, 623 P2d 630 (1981), and on a relatively recent United States Supreme Court case, Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000). The indictment in this case stated: "The above-named defendant is accused by the Grand Jury of the County of Clackamas, State of Oregon, by this indictment of the crimes of AGGRAVATED MURDER (TWO COUNTS) committed as follows: "COUNT I (ORS 163.095) "The said defendant on or about the 7th day of August 1994, in the County of Clackamas, State of Oregon, did unlawfully and intentionally cause the death of another human being, to-wit: Jeffrey Ray Brown by stabbing him, the said defendant having unlawfully and intentionally, in the course of the same criminal episode caused the death of an additional human being, to-wit: Dale Archie Brown by stabbing him * * *. "COUNT II (ORS 163.095) "The said defendant on or about the 7th day of August 1994, in the County of Clackamas, State of Oregon, did unlawfully and intentionally cause the death of another human being, to-wit: Dale Archie Brown by stabbing him, the said defendant having unlawfully and intentionally, in the course of the same criminal episode caused the death of an additional human being, to-wit: Jeffrey Ray Brown by stabbing him * * *." Defendant thus was charged with aggravated murder under ORS 163.095(d) (1993), which required that the murder be committed intentionally and that there be more than one murder victim during the same criminal episode. See ORS 131.505(4) (1993) (defining "criminal episode"). During the penalty phase, the jury was asked to determine "whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result." See ORS 163.150(1)(b)(A) (1993) (setting out first question that must be asked in penalty phase). As noted, defendant contends that, under Quinn and Apprendi, "deliberateness" is an element that had to be set out in the indictment. Defendant admits that he "did not object in the trial court to his sentence on the grounds asserted here." However, defendant argues that the state's failure to plead "deliberation" in the indictment deprived the trial court of subject matter jurisdiction and that lack of subject matter jurisdiction can be raised at any stage of the proceedings. See Ailes v. Portland Meadows, Inc., 312 Or 376, 383, 823 P2d 956 (1991) (lack of subject matter jurisdiction may be raised at any time, including on appeal). Defendant also argues that this court should review the matter as "error apparent on the face of the record." Even assuming that defendant were correct that deliberateness is an element of the crime that must be pled in the indictment -- a claim that we consider and reject for the reasons explained below -- such a defect would not have deprived the court of subject matter jurisdiction. Subject matter jurisdiction defines the scope of proceedings that may be heard by a particular court of law and is conferred by statute or the constitution. (14) See Charles E. Torcia, Wharton's Criminal Procedure, §11 at 95 (13th ed 1989) ("A criminal court has jurisdiction, i.e., the power to determine whether an accused is guilty of a particular crime and, if so, to impose a punishment therefor, if it has jurisdiction of the subject matter and of the person of the accused."); see also State v. Webb, 324 Or 380, 393, 927 P2d 79 (1996) (holding that legislature granted two separate kinds of jurisdiction to district courts, i.e., same criminal jurisdiction as justice court and concurrent jurisdiction with circuit courts of misdemeanors for which punishment may not exceed $3,000 fine). Under the Oregon Constitution, circuit courts have subject matter jurisdiction over all actions unless a statute or rule of law divests them of jurisdiction. See Or Const, Art VII (Amended), § 2 (not changing jurisdictional scheme set out in original Article VII); Or Const, Art VII (Original), § 9 (all jurisdiction not vested by law in another court shall be vested in circuit courts). In particular, the Oregon Constitution states that, once a person has been indicted by a grand jury, that person can be charged "in a circuit court with the commission of any crime punishable as a felony." Or Const, Art VII (Amended), § 5(3). The trial court therefore had subject matter jurisdiction to try defendant for the crime of aggravated murder, even if the indictment arguable was defective. (15) Defendant claims that, even if his jurisdictional challenge is not well taken, this court should address the merits of the issue as an "error apparent on the face of the record." As noted, for this court to do so, the alleged error must be "obvious, i.e., not reasonably in dispute." Lotches, 331 Or at 472. An analysis of Quinn and Apprendi, in appropriate context, demonstrates that, not only is the alleged error not obvious, in fact, there was no error. In Quinn, this court stated that the new death penalty statute enacted by initiative in 1978 and at issue in that case "restore[d] deliberation as an additional element of murder for which a greater penalty, death, may be imposed much as it was under the pre-1971 statutory scheme. Although it is in the form of an enhanced penalty statute, an effect of the new statute is to indirectly reestablish a crime of deliberate first degree murder punishable by death." 290 Or at 403 (footnote omitted). Thus, under the statutory scheme at issue in Quinn, "deliberation" served to enhance the penalty for intentional murder from life imprisonment to death, and indirectly created a separate crime of deliberate murder. Following this court's decision in Quinn, the legislature enacted statutes creating the crime of aggravated murder. Separate crimes of murder and aggravated murder are now defined statutorily. Because defendant was charged under a different statutory scheme from the one at issue in Quinn, that case does not support defendant's argument. In fact, in State v. Wagner, 305 Or 115, 172, 752 P2d 1136 (1988), vacated and remanded on other grounds 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989), this court rejected an argument much like the one defendant makes here. In Wagner, the court described the aggravated-murder statutes and accompanying pleading requirements as follows: "The offense with which this defendant is charged is aggravated murder as defined in ORS 163.095(2)(a)(E) [murder of a witness], * * *. The ultimate facts that make up that offense are clearly alleged in the indictment. To be guilty of aggravated murder one does not need to act 'deliberately.' If one is guilty of aggravated murder but the jury does not unanimously find that the perpetrator acted deliberately, the guilty one is not sentenced to death but is yet guilty of aggravated murder. There is no requirement of pleading an indictment that requires the indictment to set forth possible penalties that the law may fix for guilt on a particular charge." 305 Or at 172 (emphasis added); see State v. Moen, 309 Or 45, 53, 786 P2d 111 (1990) (Wagner "holds only that the three [penalty-phase] questions need not be alleged" in the indictment). Furthermore, the Oregon Constitution now provides that: "[T]he penalty for aggravated murder as defined by law shall be death upon unanimous affirmative jury findings as provided by law and otherwise shall be life imprisonment with minimum sentence as provided by law." Or Const, Art I, § 40. Defendant's reliance on Apprendi also is misplaced. Apprendi involved a defendant who fired several shots into the house of an African-American family. The indictment did not charge any "hate crime" sentencing enhancement under New Jersey law. The defendant pleaded guilty to several counts set out in the indictment, including second-degree possession of a firearm for an unlawful purpose. In the penalty phase, however, the sentence corresponding to that count was enhanced as a hate crime beyond the statutory maximum for the underlying crime of second-degree unlawful firearm possession. The United States Supreme Court held that, under the Due Process Clause of the Fourteenth Amendment, any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. See Apprendi, 530 US at 476, 120 S Ct at 2362-63. Under Apprendi, in the absence of a jury trial to determine the enhanced sentence, the defendant would have had to plead guilty to an indictment that contained the factual findings necessary to support the sentence enhancement. In this case, however, and unlike Apprendi, the prescribed maximum statutory penalty for the crime of aggravated murder is death and, moreover, the jury, not the trial court, decided that defendant acted deliberately. In summary, under the current aggravated murder scheme, a sentence of death is not a "penalty enhancement." Rather, a sentence of death is one of the penalties, as is life imprisonment, that may be imposed for the commission of the crime of aggravated murder. Because a sentence of death is not an enhancement under the aggravated murder scheme, the state is not required to allege in the indictment that the murder was committed deliberately. V. CONCLUSION We have considered defendant's other assignments of error and every argument made in support of those assignments. Based on our review, we conclude that no error occurred as claimed in any of the assignments of error, including the ones not discussed in this opinion. The judgment of conviction and sentences of death are affirmed. 1. Article I, section 9, of the Oregon Constitution, provides: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." 2. Article I, section 11, of the Oregon Constitution, provides, in part: "In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel[.]" 3. Article I, section 12, of the Oregon Constitution, provides, in part: "No person shall be * * * compelled in any criminal prosecution to testify against himself." 4. 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 Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 5. The Fifth Amendment to the United States Constitution provides, in part: "No person * * * shall be compelled in any criminal case to be a witness against himself[.]" 6. The Sixth Amendment to the United States Constitution provides, in part: "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence." 7. Section 1 of the Fourteenth Amendment of the United States Constitution provides, in part: "No State shall * * * deprive any person of life, liberty, or property, without due process of law[.]" 8. Article I, section 21, of the Oregon Constitution, provides, in part: "No ex post facto law * * * shall ever be passed[.]" 9. Article I, section 10, of the United States Constitution, provides, in part: "No State shall * * * pass any * * * ex post facto Law * * *." 10. Defendant's prior objections to the victim-impact evidence were tendered before the legislature changed the law. 11. Once those elements have been satisfied, an appellate court must exercise discretion whether to review the purported error. In deciding whether to review an error of law apparent on the face of the record, an appellate court may consider: the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court, in some manner, was presented with both sides of the issue and given an opportunity to correct any error. Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991). 12. ORS 163.150(1)(b) (1995) provided: "Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: "(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result; "(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; "(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and "(D) Whether the defendant should receive a death sentence." In this case, the jury did not consider subsection (C), regarding provocation, so that subsection (D), ordinarily the "Fourth Question," became in this case the "Third Question." 13. The court in Farrar suggested that the four questions that ORS 163.150(b) requires could be asked in the following manner: "1. Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that death of the deceased or another would result? "2. Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? In determining this issue, you shall consider any mitigating circumstances offered in evidence, including, but not limited to, the defendant's age, the extent and severity of the defendant's prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed. "(If raised by the evidence) 3. Was the conduct of the defendant in killing the deceased unreasonable in response to the provocation, if any, by the deceased? "4. Should defendant receive a death sentence? You should answer this question 'no' if you find that there is any aspect of defendant's character or background, or any circumstances of the offense, that you believe would justify a sentence less than death." Farrar, 309 Or at 177. 14. Subject matter jurisdiction differs from personal jurisdiction, which governs the assertion over the person of the accused. See ORS 131.205-235 (1993) (defining principles of personal jurisdiction in criminal matters). 15. An indictment, if it is defective, may be reviewed for error rather than for lack of subject matter jurisdiction. See, e.g., State v. Trueax, 315 Or 396, 845 P2d 1291 (1993) (discrepancy between caption of indictment charging sodomy in third degree, required remand for entry of conviction for sodomy in third degree, not new trial); State v. Woodson, 315 Or 314, 845 P2d 203 (1993) (amendment of indictment to allege attempted rape rather than rape was not error).

c40df556e3f87ce72dd149330df2189ea134b85e2139139dd98675821682c3dd

2001-12-28T00:00:00Z

994b0d0b-a54b-4e50-a197-22f818e9814c

Kain v. Myers

oregon

Oregon Supreme Court

Filed: December 13, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON KRIS KAIN and TRICIA BOSAK, Petitioners, v. HARDY MYERS, Attorney General, State of Oregon, Respondent, and BILL SIZEMORE, Intervenor. (SC S48796) En Banc On petition to review ballot title. Argued and submitted November 1, 2001. Margaret S. Olney, Smith, Gamson, Diamond & Olney, Portland, argued the cause and filed the petition for petitioners. Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Gregory W. Byrne, Byrne & Associates, Portland, argued the cause and filed the memorandum in support for intervenor. DURHAM, J. Ballot title referred to the Attorney General for modification. DURHAM, J. This is a proceeding under ORS 250.085(2) in which petitioners challenge a ballot title certified by the Attorney General for Initiative Petition 91 (2002). The proposed initiative, if adopted, would amend the Oregon Constitution by restricting the authority of government employers to sign certain agreements regarding payment of money to unions and by relieving public employee unions of the duty to represent or provide services to employees who do not join the union or pay for its services. Initiative Petition 91 (2002) provides: "BE IT ENACTED BY THE PEOPLE OF THE STATE OF OREGON: "The Constitution of the State of Oregon is amended by adding the following section: "Section 1. No government employer shall sign or otherwise make a contract or agreement (including an extension to a contract or agreement in existence as of the effective date of this section) that (a) requires a public employee who is not a member of a union to pay money to a union for any reason, or (b) authorizes deducting money from the paycheck of a public employee who is not a member of a union, and transferring the money to a union or its agent or assign without the employee's written authorization. No public employee union shall be required to represent or provide other services to a public employee who is not a member of the union or does not pay the union for its services. No employee shall be discriminated against for not joining or being represented by a public employee union." The Attorney General certified the following ballot title for the proposed initiative: "AMENDS CONSTITUTION: PUBLIC EMPLOYERS IN UNIONIZED WORKPLACE CANNOT SIGN CERTAIN LABOR CONTRACTS, UNIONS NEED NOT REPRESENT NONMEMBERS "RESULT OF 'YES' VOTE: 'Yes' vote prohibits public employers in unionized workplace from signing contracts requiring nonunion employees to pay money to union; union may refuse to represent nonpayers. "RESULT OF 'NO' VOTE: 'No' vote rejects amendment prohibiting public employers from signing contracts requiring nonunion employees to pay money to union; retains laws requiring unions to represent nonpayers. "SUMMARY: Amends constitution. Currently, public employers in workplace where majority of employees have voted to be represented by union may sign labor contracts requiring employees who are not union members to make payments in lieu of dues to union for representation in collective bargaining. Unions must represent all employees in bargaining unit, including nonmembers. Measure prohibits public employers in unionized workplaces from signing contracts requiring nonmember employees to pay money to union for any purpose and from deducting money from paycheck of any nonmember for transfer to union without employee's authorization. Unions not required to represent public employees who are not union members or who do not pay for union services. Prohibits discrimination against public employees for not joining or being represented by union. Other provisions." This court reviews a ballot title for "substantial compliance with the requirements of ORS 250.035." ORS 250.085(5). Petitioners challenge the sufficiency of the caption, result statements, and summary of the Attorney General's ballot title. We have reviewed petitioners' challenges and, with the exception of the argument regarding the result statements discussed below, we conclude that the Attorney General's ballot title substantially complies with statutory requirements. ORS 250.035(2)(b) requires a "yes" vote result statement that is a "simple and understandable statement of not more than 25 words that describes the result if the state measure is approved." ORS 250.035(2)(c) requires a "no" vote result statement that is a "simple and understandable statement of not more than 25 words that describes the result if the state measure is rejected." Petitioners argue that the term "nonunion" in each result statement is not appropriate, because it is either inaccurate or confusing. They point out that the phrase "nonunion employees" does not appear in the proposed initiative, is not synonymous with and does not describe employees who are not union members, and generally refers (inaccurately, they assert) to any employees who are not members of the union's bargaining unit, such as confidential, supervisory, or managerial employees. (1) The statutory requirements that the result statements be "understandable" and "describe[] the result" of approval and rejection of the proposed initiative, ORS 250.035(2)(b), (c), are designed to protect the voters' interest in an accurate disclosure of those respective results. This court has stated that misstatements, even by implication, of either existing law or the law that the proposed measure would enact are not appropriate in a ballot title. Novick/Bosak v. Myers, 333 Or 18, ___, ___ P3d ___ (November 30, 2001) (slip op at ___); Dale v. Kulongoski, 321 Or 108, 113, 894 P2d 462 (1995). Such misstatements potentially invite misleading arguments to support passage or defeat of the proposed initiative. We believe that the Attorney General intends the phrase "nonunion employees" in the result statements to refer to members of a public employee bargaining unit who are not union members and who, therefore, do not pay union dues, but who may make fair-share payments in lieu of dues to the union. (2) The question before the court is whether "nonunion employees" accurately describes that group of public employees. The dictionary definition of "nonunion" is: "1 : not belonging to or affiliated with a trade union * * * 2 : not recognizing or favoring trade unions or trade unionists." Webster's Third New Int'l Dictionary, 1539 (unabridged ed 1993). The first of those definitions is broader in scope than the employee group to which the Attorney General intends to refer. That definition includes any employee "not belonging to or affiliated with" a union, i.e., a group that embraces not only bargaining unit members who pay no money to a union but also all other employees of the public employer, including supervisory and confidential employees. (3) The second of the dictionary's definitions refers to a distinct employee group, i.e., those who do not recognize or favor unions. That definition carries the implication of political or philosophical opposition to unions. Indeed, the dictionary's word for that belief system is a related term, "nonunionism," which the dictionary defines as follows: "[T]he theories, opinions, or practices of those who do not support trade unions[.]" Id. The foregoing discussion indicates that the term chosen by the Attorney General, "nonunion," does not describe accurately the employee group to which the Attorney General meant to refer. Moreover, the inaccuracy of that term likely will produce voter confusion. Voters familiar with the definitions discussed above could infer incorrectly from the Attorney General's result statements that the proposed initiative would preclude contractually mandated payments to unions by supervisory and confidential employees, as well as all employees who politically oppose unions. Another term in the result statements contributes to the likelihood of voter confusion from the term "nonunion." The Attorney General uses the term "nonpayers" in each result statement, apparently intending to refer to a union's bargaining unit members who do not pay money to the union. However, because the result statements imply that the terms "nonpayers" and "nonunion employees" are synonyms, the term "nonpayers" simply reinforces, rather than eliminates, the problems noted above regarding the term "nonunion." The Attorney General argues that petitioners' criticism of the Attorney General's phrase, "nonunion employees," is faulty because there is no meaningful difference between that phrase and the phrase that petitioners recommend to the court, "non-union members." That argument is unresponsive to the question before the court, that is, whether the ballot title certified by the Attorney General substantially complies with statutory requirements. ORS 250.085(5). Consequently, we do not address that argument. (4) We conclude that, because the term "nonunion" is incorrect and confusing in this context, the Attorney General's result statements do not state accurately "the result" if the voters approve or reject the proposed initiative. ORS 250.035(2)(b), (c). Ballot title referred to the Attorney General for modification. 1. Petitioners rely in part on ORS 243.650(19), which defines "public employee" as follows: "'Public employee' means an employee of a public employer but does not include elected officials, persons appointed to serve on boards or commissions, incarcerated persons working under section 41, Article I of the Oregon Constitution, or persons who are confidential employees, supervisory employees or managerial employees." 2. ORS 243.650(10) defines "fair-share agreement" in part as follows: "'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." 3. ORS 243.650(23) defines "supervisory employee" in part as follows: "'Supervisory employee' means any individual having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection therewith, the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment." ORS 243.650(6) defines "confidential employee" as follows: "'Confidential employee' means one who assists and acts in a confidential capacity to a person who formulates, determines and effectuates management policies in the area of collective bargaining." 4. Because ORS 250.085(5) focuses the court's review on the Attorney General's ballot title, the Attorney General's criticisms of alternative words or phrases suggested by a ballot title challenger often play no role in the court's analysis. See generally Order Adopting Temporary Amendments to ORAP 11.30, Chief Justice Order No. 01-111 (October 24, 2001), Oregon Appellate Court Advance Sheets No. 23 at A-13 (November 12, 2001) (deleting from ORAP 11.30(4)(b) requirement that petitioner include in body of petition proposed ballot title that petitioner believes would comply substantially with statutory requirements).

1a4389eeebcc03a896f2ef37b98707ce7056380faea3b35a3c8ba314b71d6027

2001-12-13T00:00:00Z

56e536d7-54e8-44ac-aaf9-adbf280a687c

State ex rel SOSCF v. Stillman

S47733

oregon

Oregon Supreme Court

Filed: December 20, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON In the Matter of Jacara Murelle Ahlgren-Stillman, a Minor Child. STATE ex rel STATE OFFICE FOR SERVICES TO CHILDREN AND FAMILIES, Petitioner on Review, and LAURA AHLGREN, Respondent, v. DONALD E. STILLMAN, aka Donnie Stillman, Respondent on Review. _____________________________ In the Matter of Keith Alexander Stillman, a Minor Child. STATE ex rel STATE OFFICE FOR SERVICES TO CHILDREN AND FAMILIES, Petitioner on Review, and LAURA AHLGREN, Respondent, v. DONALD E. STILLMAN, aka Donnie Stillman, Respondent on Review. (CC 96-275J-05; CA A107034; SC S47733) On review from the Court of Appeals.* Argued and submitted January 9, 2001. Denise G. Fjordbeck, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. James A. Palmer, Eugene, argued the cause and filed the brief for respondent on review. Lynn M. Travis and Mary Kane, of the Juvenile Rights Project, Inc., Portland, filed a response for minor children. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.** GILLETTE, J. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed. *Appeal from Lane County Circuit Court, Jack A. Billings, Judge. 167 Or App 446, 1 P3d 500 (2000). **Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; Balmer, J., did not participate in the consideration or decision of this case. GILLETTE, J. In this termination of parental rights case, the trial court terminated father's parental rights in his two minor children, because of his incarceration and drug-related activities. See ORS 419B.504 (1997) (providing for termination of parental rights if court finds, inter alia, parent unfit by reason of conduct or condition seriously detrimental to child). The Court of Appeals reversed, holding that the evidence did not demonstrate that father was unfit at the time of the termination hearing. State ex rel SOSCF v. Stillman, 167 Or App 446, 1 P3d 500 (2000). For the reasons that follow, we affirm the decision of the Court of Appeals. In reviewing a decision of the Court of Appeals that is essentially an appeal from a suit in equity, ORS 419A.200(5); ORS 19.415(3), this court may review de novo or may limit its review to questions of law. ORS 19.415(4); see also Ken Leahy Construction, Inc. v. Cascade General, Inc., 329 Or 566, 571, 994 P2d 112 (1999) (so stating). In this instance, because we reach issues that the majority opinion of the Court of Appeals did not address, and some of those issues are fact-dependent, we elect to review the record de novo. Before his most recent conviction and incarceration, father abused methamphetamines and, before father met mother, he had been convicted twice on drug charges. In fact, father met mother when both were in a drug treatment program. They eventually had a daughter (born in 1991) and a son (born in 1993). After father's third arrest in 1996 on a federal charge of possession with intent to manufacture methamphetamine, and in light of mother's persistent drinking and methamphetamine use, the State Office of Services to Children and Families (SOSCF) (1) sought to terminate their parental rights. SOSCF postponed action on that petition, notwithstanding father's impending criminal trial and likely incarceration, and ultimately withdrew the petition in January 1998, after father entered prison, because mother appeared to be doing well in her efforts to overcome her own drug problem. However, mother again relapsed and, in August 1998, SOSCF filed another petition to terminate both mother's and father's parental rights. At the subsequent termination hearing in June 1999, mother conditionally stipulated to terminating her rights; father did not. (2) When father was arrested, SOSCF initially placed the children for a short period in temporary care. Soon afterwards, however, SOSCF placed the children with a foster parent in the extended family, namely, mother's former step-mother. At the time of the termination hearing, that foster parent could retain the children only for a few more months. Thus, at least one transition was in the offing for the children, although that transition likely would to be to another member of the highly supportive extended family. At the termination hearing, SOSCF's case centered on the children's need for permanence. A social worker who provided counseling to the children testified on behalf of SOSCF that the children needed permanency, predictability, and stability in their lives, and that changes, such as those that might follow from the pending termination proceeding, created tension for them. For example, she testified that the older child exhibited "parentified" behavior in the months preceding the termination hearing, in that the child assumed an adult role in the foster home in trying to take control of her situation. The child also had gained a significant amount of weight during that period. According to the social worker, that weight gain indicated "a great deal of anxiety in her life and that she was probably overeating to try to reduce that." Further, the social worker testified: "[T]hese children are very similar to other children I work with that have been in long-term foster care. They need permanency, they need safety, they need to know where they're going to be next week, next month, next year, and where they go to high school and where they're going to be coming home from vacations. "* * * * * "Their life goes on hold, it continues to be on hold developmentally. It's very difficult for a child to continue to make progress in their life, go through the developmental stages that they need to go through to become adults if even their present is tentative, that they don't know what's going to be predictable for them. "* * * Sometimes I've referred to children like this as the ghost children because they seem insubstantial in their connection with the world and with reality and with present time because they're so insecure about what's going to happen for them." Other than that general testimony, which principally concerned the effect of foster care on the children, there is very little psychological evidence in the record pertaining to the children. The record contains no written mental health evaluation of either child. Indeed, the only testimony concerning the psychological condition of the younger child was that he was relatively quiet and reserved, and that he worried about his parents. Moreover, there is virtually nothing in the record that sheds light on any ill effects that the children might have suffered from their parents' involvement with drugs before the children were placed in foster care. (3) SOSCF also focused on the possibility that father would be unable to overcome his addiction to drugs and the likelihood of a relapse. The agency introduced a psychological evaluation of father, which was performed over two years before the termination hearing, and several months before father's conviction and sentencing. The psychologist who examined father concluded that father at that time was likely to relapse because he was externally motivated, i.e., he was motivated to cooperate with counseling and treatment not through a sincere desire to improve himself, but merely out of a desire to avoid the consequences of noncompliance. The psychological report concluded, however, that "[c]hemical dependency is the primary psychological problem that would impair [father's] ability to function as a parent." At the termination hearing, the psychologist elaborated, testifying that, other than chemical dependency, father had no serious mental health problems: "He has * * * the ability to [be a good parent] and lacks any serious psychological problems that would * * * make that impossible or prevent him from doing that if that is what he tried to do." SOSCF presented no more recent evidence of father's mental health status. Father, on the other hand, submitted evidence that he had made progress in rehabilitation during his incarceration. Father completed a multi-phase drug treatment program that began before father's trial on the drug charges. The clinical supervisor in charge of that program testified that, when father entered the program, he was angry and resistant, he minimized the significance of his addiction, and he was motivated to complete the program out of a desire to obtain a lighter sentence at his trial. However, after several weeks, the counselor observed that father had made a significant turnaround in his attitude. At the completion of the first phase of his treatment, father asked for an additional four weeks of treatment. He was highly successful in that program. The clinical supervisor also testified that father sincerely came to appreciate the effect that his drug use had had on his children and was addressing the deficits in his life so that he could maintain custody of the children. In addition, father's therapist for the second phase of the drug treatment program stated that, notwithstanding a brief relapse before beginning that phase, father was the most successful client with whom she had ever worked. (4) Father also took parenting classes, including an extensive, 72-hour parenting class accredited through Chemeketa Community College. He completed a 12-week human sexuality class and a 62-hour real estate class. Father organized a prison 12-step program and worked for the forest service. In all those endeavors, father drew uniformly high praise from the officials in charge. (5) At the time of the termination hearing, father's remaining prison time was approximately four months. After that, father predicted that he would reside in a halfway house or possibly in home confinement. Father admitted that the children might have to remain in foster care for as long as a year, until he was able to find a job and provide a home for them. An SOSCF representative testified that, given the amount of time that the children already had spent in foster care, that period was simply too long. She stated that SOSCF "is not willing to consider [father] and is not able to consider him as a resource for his children because he is incarcerated. What the children need is permanency." The representative also testified that it was "in the best interests of these children not to continue to wait any longer as they've already waited for three years." She added that "the concern is his current incarceration, the length of time it would take him to transition back into the community to demonstrate that he is in fact clean and sober. And that will take a long period of time in order for him to demonstrate that. Based on that, the agency does not feel it's in the children's best interest to have them remain in foster care indefinitely while the father demonstrates that to the agency and to the community." The trial court found by clear and convincing evidence that father was unfit. See ORS 419B.521(1) (setting clear and convincing evidence standard). It based that finding on what that court styled as father's "criminal conduct which impairs his ability to adequately care for [the children], that's by virtue of his incarceration." It also found that the children needed permanency immediately. It found that father's desire to make the children wait until he had established himself was an example of father putting his needs ahead of the children's. The court also thought that father's continued incarceration and the likelihood that father would relapse into addiction upon release from prison "pose[d] an unacceptable risk to the mental and emotional well being of the children." The trial court therefore terminated father's parental rights and committed the children to the care of SOSCF. On father's appeal, the Court of Appeals reversed. The court reviewed the evidence regarding father's incarceration and noted that, in light of the short duration of the balance of his sentence and potential time to be spent in a halfway house, "such a relatively short period of separation" does not render a parent unfit. Stillman, 167 Or App at 457. In addition, the court held that SOSCF had not proved that father's prior drug use had made him unfit as a parent. "[T]he point is not that we are certain that father will succeed. Rather, the record does not show, by clear and convincing evidence, that he will not." Id. at 459. The court concluded: "On this record, neither father's incarceration nor the possibility of a relapse provides clear and convincing evidence that father is presently unfit under ORS 419B.504 (1997). Accordingly, we need not decide whether the conduct or condition that makes father unfit also makes integration of his children into his home improbable within a reasonable time." Id. (citations omitted). Chief Judge Deits dissented, maintaining that father was unfit and that the children's integration into the father's home was improbable within a reasonable time. Id. at 459-67 (Deits, C. J., dissenting). We granted SOSCF's petition for review. Generally, a court may terminate parental rights for the purpose of freeing a child for adoption if the court finds that termination is in the best interest of the child. ORS 419B.500. The specific bases for termination are set out in ORS 419B.502 to ORS 419B.508. Those statutes provide for termination based on such circumstances as extreme parental misconduct, unfitness, neglect, or abandonment. The statute that sets out the formula for a termination upon a finding of parental unfitness, ORS 419B.504, provides: "The rights of the parent or parents may be terminated as provided in ORS 419B.500 if the court finds that the parent or parents are unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change. In determining such conduct and conditions, the court shall consider but is not limited to the following: "(1) Emotional illness, mental illness or mental deficiency of the parent of such nature and duration as to render the parent incapable of providing proper care for the child for extended periods of time. "(2) Conduct toward any child of an abusive, cruel or sexual nature. "(3) Addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired. "(4) Physical neglect of the child. "(5) Lack of effort of the parent to adjust the circumstances of the parent, conduct, or conditions to make the return of the child possible or failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected. "(6) Criminal conduct that impairs the parent's ability to provide adequate care for the child." (Emphasis added.) The emphasized parts of the statute were added in 1997. Or Laws 1997, ch 873, § 7. Until 1997, ORS 419B.504 had provided that "integration of the child into the home of the parent or parents is improbable in the foreseeable future due to conduct or conditions not likely to change." ORS 419B.504 (1995) (emphasis added); see Or Laws 1997, ch 873, § 7 (indicating changes to statute). The effect of the amendment was to substitute the phrase "reasonable time" for the phrase "foreseeable future." The former version of the statute did not define "foreseeable future." By contrast, a "reasonable time" now is defined. It "means a period of time that is reasonable given a child's emotional and developmental needs and ability to form and maintain lasting attachments." ORS 419A.004(21). The legislative intent respecting the statute is crucial to this case. To determine that intent, we look first to the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). The text of the statute is the best evidence of legislative intent. Id. at 610. If that intent is clear from the text, read in context, further analysis is unnecessary. Id. ORS 419B.504 sets out a two-part test for determining whether to terminate parental rights, both parts of which must be met before the court orders termination. First, the court must address a parent's fitness: The court must find that the parent is "unfit by reason of conduct or condition seriously detrimental to the child." That, in turn, requires a two-part inquiry: The court must find that: (1) the parent has engaged in some conduct or is characterized by some condition; and (2) the conduct or condition is "seriously detrimental" to the child. Second -- and only if the parent has met the foregoing criteria -- the court also must find that the "integration of the child into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change." That second part of the test for termination requires the court to evaluate the relative probability that, given particular parental conduct or conditions, the child will become integrated into the parental home "within a reasonable time." The use of that phrase, "within a reasonable time," reflects a legislative concern that SOSCF and the courts achieve a permanent home for a child more promptly than the phrase that formerly was in the statute, "the foreseeable future," suggested. In amending the statute, the legislature did not provide for a specific time period for integration, but provided instead for such a period of time as "is reasonable given a child's emotional and developmental needs and ability to form and maintain lasting attachments." ORS 419A.004(21). That inquiry is child-specific. It calls for testimony in psychological and developmental terms regarding the particular child's requirements. ORS 419B.090 demonstrates the broader context of the two inquiries under ORS 419B.504. That statute declares that it is the "policy of the State of Oregon to recognize that children are individuals who have legal rights." ORS 419B.090(2)(a). Those rights include the right to "[p]ermanency with a safe family." ORS 419B.090(2)(a)(A). The legislature added that statement of policy in 1997, during the same session in which it revised ORS 419B.504. See Or Laws 1997, ch 873, § 2a (adding statement). Consistent with the foregoing legislative policy, the focus of both parts of the test for termination under ORS 419B.504 is on the detrimental effect of the parent's conduct or condition on the child, not just the seriousness of the parent's conduct or condition in the abstract. Thus, the court first must identify the parent's conduct or condition, and then measure the degree to which that conduct or condition has had a seriously detrimental effect on the child. In ORS 419B.504, the legislature has provided a non-exclusive list of six examples of conduct and conditions that courts must consider, both in determining whether a parent is unfit and in determining whether the parent's disqualifying circumstances are not likely to change. But those statutory examples are just that -- examples. The focus of that part of the statute is on the parent's conduct or condition. A significant part of the discussion and briefing in this case has centered on the directive to the court to consider "criminal conduct that impairs the parent's ability to provide adequate care for the child." ORS 419B.504(6). As noted, the trial court relied on that factor in concluding that father is unfit and it was one of the bases for SOSCF's petition to terminate father's parental rights. The wording of ORS 419B.504(6) is broad. It authorizes the court to consider any "[c]riminal conduct" that "impairs the parent's ability to provide adequate care for the child." "Criminal conduct" refers to an act -- under this statute, a criminal act of the parent; it is not a reference to a "condition" that affects the parent. Moreover, the criminal conduct must "impair" the parent's ability to provide adequate care for the child. Criminal conduct that meets those statutory requirements could include such conduct as abetting the child's own criminal conduct, stealing the child's property, or soliciting the child to commit a crime. The question is, however: Do the sequellae of a parent's criminal acts, such as flight, concealment, or incarceration, also qualify as "criminal conduct" under ORS 419B.504(6)? That depends. The plain words of the statute require the conduct to be "criminal." Flight and concealment -- to use but two examples -- themselves may be criminal acts and, hence, "criminal" conduct. Incarceration, on the other hand, is a possible consequence of criminal conduct, but it is not, itself, such conduct. Thus, it would be error for a court to rely on an incarceration as "criminal conduct" and to base a decision to terminate parental rights specifically on the basis of ORS 419B.504(6). (6) However, the foregoing discussion does not place incarceration, and its consequences for the children, outside the purview of the court. A parent's imprisonment for a criminal act is, in any event, a "condition" of the kind that the court is entitled to consider under the wording of the first part of ORS 419B.504. It cannot be disputed reasonably that any prolonged incarceration could be a condition so "seriously detrimental to the child" as to warrant a finding of unfitness." (7) With that in mind, we return to the analysis that the Court of Appeals majority followed in this case. The Court of Appeals began its analysis of father's fitness by considering his conduct or condition. In so doing, the court focused principally on father's history of substance abuse and the possibility that he would relapse. The court concluded that the record did not establish, by clear and convincing evidence, that that conduct or condition rendered father presently unfit under ORS 419B.504, given father's activities while in prison in attempting to overcome his addiction and to become a more responsible parent. Stillman, 167 Or App at 459. We agree with the Court of Appeals that, given father's sincere and substantial efforts to address his drug problem while in prison, father's history of drug abuse was not "conduct or condition" that rendered him unfit at the time of the termination hearing. In reaching that conclusion, we do not mean to minimize the significant risks to which father subjected the children by operating a drug manufacturing laboratory in the family home, both in terms of the danger from the laboratory itself and of the risks associated with having dangerous individuals in the home. Indeed, it even might be true that, as the Court of Appeals suggested, an attempt by SOSCF to terminate father's parental rights at around the time of his arrest might have led to a different outcome. But all that has occurred since that time indicates that father's irresponsible behavior will not be repeated. The statute requires us to evaluate whether father presently, i.e., at the time of the termination hearing, was unfit. On this record, the state has not shown that he was. The Court of Appeals considered only briefly the fact of father's incarceration. It noted that, at the time of trial, father had four months left on his federal sentence and then would have to spend several more months in a halfway house establishing his ability to care for the children. The court concluded that, in light of that relatively short period of separation remaining before the family could be reunited, father's incarceration also did not render him unfit. (8) That line of analysis, however, improperly conflated the requirements of the two parts of the test for determining whether termination of parental rights is appropriate. It is only under the second, "integration" part of the test under ORS 419B.504 that the court considers whether there is a probability of integration of the child into the parent's home "within a reasonable time." As we have explained, the "fitness" inquiry comes first, and the period of time that father's inability personally to care for the children would continue adds nothing to the court's initial determination respecting father's fitness. As we have said, father's incarceration is a condition of the kind that we may consider under ORS 419B.504 and, if it were seriously detrimental to the children, would be sufficient to warrant a finding of unfitness, notwithstanding the relatively short period that it was likely to continue. Clearly, father's unfinished incarceration and the period of time that he would be required to spend in a halfway house precluded him personally from providing adequate care for the children or otherwise maintaining a normal parental role as the children's father. Having concluded that father's "conduct or condition" satisfies one of the statutory criteria for a finding of unfitness, we turn to the second part of that fitness inquiry, viz., whether that conduct or condition is "seriously detrimental" to the children. (9) On that subject, the trial court found that the children suffered serious anxiety about their future. Our own de novo review of the record shows that evidence concerning the "detriment" that the children have suffered was related to and stemmed principally from the children's worry about their parents' well-being and the uncertainty surrounding the termination proceeding itself. (10) Generally, the record demonstrates that the children are relatively happy and well-adjusted. The foster mother testified at length that the children have friends, play sports, are actively involved in other extra-curricular activities, and do well in school. Indeed, virtually all the evidence of detriment in the record concerned the older child (her "parentified" behavior, her recent problems in school, and her weight gain) and appeared to have been tied either to SOSCF's curtailing of telephone conversations between father and the children or to the pending termination proceeding itself. Testimony concerning the younger child was simply that he was quiet and worried about his parents. The children's therapist summarized the effect on the children as follows: "They need permanency, they need safety, they need to know where they are going to be next week, next month, next year, and where * * * they're going to be coming home from vacations." The question before this court, then, is whether the children's anxiety about their future, caused by father's incarceration, is the sort of serious detriment contemplated in the parental rights termination statute. This court has considered the phrase "seriously detrimental" in ORS 419B.504 on only one previous occasion, in State v. McMaster, 259 Or 291, 486 P2d 567 (1971). In that case, the child initially was removed from the parents' home as a baby and placed in foster care because of the parents' neglect. The child subsequently was not returned to the parents; the state moved to terminate parental rights, based on the parents' inability to stabilize themselves financially or to find and maintain adequate housing. With regard to the detriment to the child, this court stated the following: "There was testimony which was uncontradicted that if the child were now taken from the foster parents and placed with her natural parents it would have a seriously detrimental effect upon the child. This same testimony developed, however, that this is primarily because the child has lived with foster parents for almost all of her now almost six years. The detrimental effect is not necessarily because of the conduct of her natural parents, except that the child may resent being taken from the better all-around environment provided by her foster parents as compared to that which would be provided by her natural parents. "* * * * * "We are of the opinion that the state of the McMaster family is duplicated in hundreds of thousands of American families, - transiency and incapacity, poverty and instability. The witness was undoubtedly correct when he stated that living in the McMasters' household would not 'allow this child to maximize her potential.' However, we do not believe the legislature contemplated that parental rights could be terminated because the natural parents are unable to furnish surroundings that which would enable the child to grow up as we would desire all children to do. When the legislature used the phrase, 'seriously detrimental to the child,' we believe that they had in mind a more serious and uncommon detriment than that caused by the conduct of parents such as the McMasters." Id. at 302-03 (emphasis added). We recognize that father's "conduct or condition" is substantially different from that of the McMasters. We also recognize that the legislature amended ORS 419B.504 after this court's decision in McMaster to include conduct similar to the McMasters' as grounds for termination. See Or Laws 1993, ch 33, § 140 (adding, among other things, rule that parent's lack of effort to adjust circumstances to make return of child possible itself may be ground for termination). Nonetheless, the evidence concerning the resulting detriment to the children, viz., anxiety relating to an impending transition, was similar. It does not strike us as extraordinary that children involved in a termination proceeding would experience anxiety about their future. However, as in McMaster, we do not think that the level of anxiety that the children have experienced here is the sort of serious detriment that the legislature contemplated as providing the basis for a conclusion that a parent is unfit. This court has stated that "[t]he reason for terminating parental rights ought to be related to the parent's conduct as a parent." Simons et ux v. Smith, 229 Or 277, 280, 366 P2d 875 (1961). In this case, nothing in the record suggests that father's personal relationship with his children was anything but loving, strong, and positive. (11) The evidence was uncontroverted that the children have enjoyed their visits with father and are attached to him, and that father consistently has written and telephoned the children throughout his incarceration. We are aware that the fact that the children are doing as well as they are, and even the fact that father has been able to maintain the relationship with the children that he has, is due largely to the fortuitous circumstance of a strong extended family structure, which includes relatives who are willing to serve as foster parents. In another case, given similar conduct or condition on the part of the parent, but absent the strong family support that has been and is present here, the children might suffer such serious detriment as to satisfy the requirements of ORS 419B.504. However, on this record, SOSCF has failed to show by clear and convincing evidence that father's conduct or condition was seriously detrimental to his children so as to warrant a finding of unfitness. The Court of Appeals' similar conclusion was correct. Based on the foregoing, we conclude that the trial court erred in terminating father's parental rights. The decision of the Court of Appeals reversing the trial court was correct. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed. 1. The 2001 Legislature abolished SOSCF and transferred all its functions to the Department of Human Services. Or Laws 2001, ch 900, §§ 1, 5. That action has no effect on this proceeding. 2. Mother stipulated that, if father's parental rights were terminated, then her rights would be terminated as well. Father's testimony--which we accept--was that he intended to divorce mother, because mother either was unable or unwilling to abandon her lifestyle of drug abuse. Thus, although this opinion concludes that father's parental rights will not be terminated, it should not be read as a basis for a similar disposition--or any disposition--of mother's case. 3. In that regard, there is evidence in the record to the effect that, after the arrest, the older child told the foster mother that she remembered having seen a green liquid being stirred in the family home. The trial court found, on that basis, that "[f]ather was engaged in full-scale drug manufacturing and the children knew it." Our own review of the record does not support that finding with respect to the children, for two reasons. First, the reference to a "green liquid," without more, is not a sufficient basis for concluding that either child had seen drugs. Indeed, the foster mother's testimony indicated that even she was not certain that that was a reference to drugs. Second, the older child was no more than four years old at the time and, thus, even if the green liquid had been drugs, it is not reasonable to infer that the child knew that her father was involved in criminal activity. What the record does support--and we so find--is that father's drug manufacturing activity for a time placed the children in serious physical danger. 4. In fact, father had contacted the therapist and requested individual counseling to address the relapse. The second phase of the drug treatment program ended in September 1997. Father was convicted and sentenced in June 1997 and entered prison in November 1997. As of the time of the termination hearing, father had been clean and sober for 26 months. The psychologist who testified on behalf of SOSCF expressed his opinion at the termination hearing that the fact that father was able to maintain his sobriety in prison was not a valid indicator of whether father would be able to do the same outside of the controlled prison setting. The psychologist conceded, however, that he had not seen father in over two years and that additional information on father's behavior while in prison, such as his voluntarily quitting smoking, organizing a 12-step program for the prison, and working cooperatively with SOSCF, might alter the psychologist's opinion of father's chances for success. 5. For example, the instructor of the prison parenting class stated that father's "positive outlook and enthusiasm served as a model for other students." The instructor of the human sexuality class stated that father had shown himself to be "a man of high principles and consistent sincerity." He concluded that father was sincerely motivated by a desire to enhance his parenting skills and found him to be "an engaging and motivated student." The instructor of the real estate class stated that father "has shown extreme discipline and desire to learn. At his request I have provided him personal attention because of his exhibited desire and obvious ability to comprehend the subject matter. I * * * have offered this acknowledgment because [father] is one of the few that deserves recognition for his devotion to his family and his future in Society." The forestry crew supervisor stated that father "demonstrated outstanding work ethics in whatever he does." 6. In the present case, as noted, the trial court did rely on father's incarceration to establish the "criminal conduct" factor. However, father did not make an objection on that basis and, therefore, the error was not preserved. In any event, however, we do not believe that the mislabeling of incarceration as "criminal conduct" rather than as a "condition" made a difference. All the parties were aware, at all pertinent times, that it was the fact of the incarceration and its effect on the children that were at issue in the case. 7. In State v. Grady, 231 Or 65, 371 P2d 68 (1962), this court declined to terminate the parental rights of a young mother simply because she was incarcerated. Subsequently, that case was cited for the proposition that "imprisonment was not held conduct 'seriously detrimental to the child.'" State v. McMaster, 259 Or 291, 299, 486 P2d 567 (1971). Whether or not that statement in McMaster was a fair characterization of the holding in Grady, it is not a fair characterization of the determination that a trial court is authorized to make. The court may inquire into the extent to which a parent's imprisonment is detrimental to the child. If the court finds that the incarceration is seriously detrimental to the child, then the first part of ORS 419B.504 permits--but does not require--the court to find that the parent is unfit by reason of that condition. 8. In that connection, we observe that the Court of Appeals did not cite ORS 419B.504(6) or otherwise acknowledge in its analysis of the weight to be given father's incarceration that the trial court based its finding of unfitness on its conclusion that father's incarceration established that statutory factor. 9. Because the Court of Appeals concluded that neither father's incarceration nor his substance abuse made him unfit, that court did not need to, and did not, address the detrimental effect of father's conduct on the children. Neither did it need to address whether integration of the children into father's home was improbable within a reasonable time. 10. In that regard, we note that, other than the hearing testimony of the children's therapist, the record contains no psychological reports or evaluations of the children's mental or emotional health; neither does it contain any evidence shedding light on the effects of father's conduct or condition as a parent on the children. 11. In that connection, we note that the trial court stated that father's view that the children would not be harmed seriously by waiting a few more months for him to become available to parent them is "an example of father's continued inability to put the children's needs ahead of his own." With that comment, the trial court effectively told father that, by asserting his desire to continue to parent the children, he placed his own needs ahead of the children's; concomitantly, the way to demonstrate his commitment to parenting the children was to cease his efforts to do so. That clearly placed father in an untenable position. This court took the opposite view of similar behavior in State v. Grady, 231 Or at 68, commenting that "[w]e deem it of no little significance and a display of the depth of [mother's] maternal regard that, notwithstanding her penal situation, she elected to contest the effort to take the child away from her forever, and failing in the trial court, initiated this appeal."

79c47b3cf07937e1842fc37a84961e05ad70ce23ab9278654c49369fb610014d

2001-12-20T00:00:00Z

261bc438-0f6a-4f99-9f17-0603f4ab9006

Novick v. Myers (Certification)

oregon

Oregon Supreme Court

Filed: August 24, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General for the State of Oregon, Respondent. (SC S48605) On modified ballot title filed August 16, 2001.* Douglas F. Zier, Assistant Attorney General, Salem, filed the Filing of Modified Ballot Title for respondent. With him on the filing were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. No appearance contra. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). * Novick v. Myers, 332 Or 340, ___ P3d ___ (2001) (referring ballot title for modification). The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 48 (2002), failed to comply substantially with statutory standards. Novick v. Myers, 332 Or 340, ___ P3d ___ (2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 48 (2002) states: "AMENDS CONSTITUTION: DISTRIBUTES FIFTEEN PERCENT OF ALL STATE INCOME TAX REVENUE TO SOME LOCAL GOVERNMENTS, SERVICE DISTRICTS "RESULT OF 'YES' VOTE: 'Yes' vote requires distribution of fifteen percent of state income tax revenue (reduced by amount of certain local taxes) to some local governments, service districts. "RESULT OF 'NO' VOTE: 'No' vote retains the current tax system where personal and corporate income tax revenue collected by the state is directed to the state general fund. "SUMMARY: Amends Constitution. Currently, state tax revenue collected from personal and corporate income is directed to the state general fund and is used to fund education, public safety, human services, and other state programs. Measure requires percentage of all state income tax revenue to be 'equitably' distributed for unrestricted use to the general funds of some local governments and local service districts providing 'essential services.' Measure does not define 'equitably' or 'essential services.' Excludes local school districts, metropolitan service districts from 'local government' definition. Distributes five percent in 2003; ten percent in 2004; fifteen percent thereafter. Reduces share distributed to local governments imposing taxes on personal or business income, revenue, or profits. Reduces revenue available for state government expenditures and provides no replacement funds. Other provisions." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9).

4d53b9c347d4fde555c02f069b42faa222d46255bee57225afdbbed944fa3d5e

2001-08-24T00:00:00Z

69730bd4-5862-44c4-bdba-1bb44bc0effd

Novick v. Myers (Certification)

oregon

Oregon Supreme Court

FILED: SEPTEMBER 18, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48524) On modified ballot title filed September 10, 2001.* No appearance by petitioner. Brendan C. Dunn, Assistant Attorney General, Salem, filed the filing of modified ballot title for respondent. With him on the filing were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). *332 Or 493, ____ P3d ____ (August 31, 2001) (referring ballot title for modification). The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 38 (2002), failed to comply substantially with statutory standards. Novick v. Myers, 332 Or 493, ___, P3d ___ (2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 38 (2002) states: "AMENDS CONSTITUTION. FOR PUBLIC-WORKS CONTRACTS: ELIMINATES COMPETITIVE-BIDDING EXEMPTIONS, REGULATING WAGES/BENEFITS; PROHIBITS REQUIRING LABOR AGREEMENTS "RESULT OF 'YES' VOTE: For public-works contracts, 'yes' vote eliminates competitive-bidding exemptions, regulating wages/benefits, and requiring prevailing wages; prohibits union-worker preferences and requiring labor agreements. "RESULT OF 'NO' VOTE: 'No' vote retains laws requiring awarding some (but not all) public contracts to lowest responsible, qualified bidder; and payment of prevailing wages/benefits and overtime. "SUMMARY: Amends constitution. Current law requires awarding certain public contracts through competitive bidding to lowest responsible, qualified bidder; exemptions allow other contracting methods for other contracts; requires paying prevailing wages (wages/benefits paid locally on similar projects) and increased pay for overtime. Measure requires that all contracts for public-works projects (including contracts for public buildings' furnishings, fixtures) be awarded to contractor submitting lowest bid to provide not less than the quality of work or product necessary to meet project specifications. Prohibits project requirements that: include any project labor agreement, regulate laborers' or subcontractors' wages/benefits (including requiring prevailing wages), require contractors to pay wages/benefits in amounts greater than amounts that would be required in Oregon's private sector, prefer contractors using union workers. Other provisions." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9).

51a487601edd99aac5df00f59cff7fd2075879baa41f0b65f686fa3a0871c82a

2001-09-18T00:00:00Z

b1600d34-721d-483c-8b1f-cc89429a5190

Bosak v. Myers (S48563)

oregon

Oregon Supreme Court

Filed: October 4, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON TRICIA BOSAK and JAMES SAGER, Petitioners, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48563) On petition to review ballot title. Argued and submitted July 31, 2001. Margaret S. Olney, of Smith, Gamson, Diamond & Olney, argued the cause and filed the petition for petitioners. David F. Coursen, Assistant Attorney General, Salem, argued the cause for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.* DE MUNIZ, J. Ballot title referred to the Attorney General for modification. *Balmer, J., did not participate in the consideration or decision of this case. Petitioners in this ballot title review proceeding challenge two aspects of the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 45 (2002). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035. See ORS 250.085(5) (setting out standard of review). The proposed measure would amend the Oregon Constitution to allow an employee to refuse to pay for union services that the employee does not wish to receive. The Attorney General certified the following ballot title for the proposed measure: "AMENDS CONSTITUTION: ALLOWS WORKPLACE EMPLOYEES REPRESENTED BY RECOGNIZED UNION TO REFUSE TO PAY FOR UNION REPRESENTATION 'SERVICES' "RESULT of 'YES' VOTE: 'Yes' vote allows individual employee in workplace represented by union to refuse payment for undesired union 'services' without modifying union's obligation to represent each employee. "RESULT OF 'NO' VOTE: 'No' vote retains current law, rejects allowing union workplace employee to refuse payment for undesired union 'services' without modifying union's obligation to represent each employee. "SUMMARY: Amends constitution. Under current law, when majority of workplace employees select union as collective bargaining representative, that union must fairly represent all workplace employees and may require all employees to contribute to representation costs. Measure allows an individual employee to refuse to pay for representation 'services' by identifying unwanted 'services' in writing. Measure does not change union's existing obligation to bargain for and represent all covered employees. Measure does not define 'service' or provide formula for valuing specific 'services.' Measure affects existing contract provisions that require payment for representation; expressly prohibits future contracts from requiring such payment. Measure requires union to notify employees of right to withhold payment to union and prohibits discrimination or harassment of employee for exercising that right. Imposes penalties. Other provisions." Petitioners challenge the caption and the summary of the certified ballot title. Petitioners' argument regarding the caption is not well taken. We turn to petitioners' argument regarding the summary. Petitioners argue that the clause in the summary stating that a "union must fairly represent all workplace employees and may require all employees to contribute to representation costs" misstates current law. See Dale v. Kulongoski, 321 Or 108, 113, 894 P2d 462 (1995) (ballot title should not misstate existing law, even by implication). Petitioners maintain, and we agree, that a union may require cost sharing by employees only through a negotiated collective bargaining agreement. (1) Petitioners contend that the Attorney General's wording incorrectly implies that unions unilaterally may require all employees in the workplace to contribute to representation costs. The Attorney General appears to agree that union representation costs may be assessed against employees who are not union members only as part of a negotiated collective bargaining agreement, but denies that the disputed clause could create any other impression. We agree with petitioners. The Attorney General's clause likely will mislead voters into believing that, under current law, a union unilaterally may require employees to pay for representation services that they do not desire. Because the Attorney General's summary impliedly misstates current law, it does not comply substantially with ORS 250.035(2)(d) (requiring a "concise and impartial statement * * * summarizing the state measure and its major effect"). Having concluded that the summary does not comply substantially with ORS 250.035(2)(d), we refer the ballot title to the Attorney General for modification. Ballot title referred to the Attorney General for modification. 1. Unions and employers operating in the private sector negotiate various forms of union security agreements. See Patrick Hardin et al., eds., The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act (3rd ed 1992). In Oregon's public sector, ORS 243.666 authorizes the negotiation of "fair share" agreements, as defined in ORS 243.650(10), to address union security. See Elvin v. OPEU, 313 Or 165, 170, 832 P2d 36 (1992) (discussing "fair share" agreements). Union and employers negotiate union security agreements to avoid the "free rider" problem. See Dale v. Kulongoski, 321 Or 108, 111-12, 894 P2d 462 (1995) (discussing "free rider" issue).

ee2b207e81cdaff895c8ffac7524f98853b3f2b811b2347600baba6d24a78da4

2001-10-04T00:00:00Z

e01d5616-f199-4f8d-9d4e-bfcf56e52996

State v. Azar

S069578

oregon

Oregon Supreme Court

No. 9 April 11, 2024 163 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. RAJI AFIFE AZAR, Petitioner on Review. (CC 18CR28295) (CA A170612) (SC S069578) On review from the Court of Appeals.* Argued and submitted March 3, 2023. Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section. Joanna Hershey, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong and Masih, Justices, and Balmer, Senior Judge, Justice pro tempore.** DeHOOG, J. The decision of the Court of Appeals is reversed in part. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings. Bushong, J., dissented and filed an opinion, in which Garrett, J., and Balmer, S.J., joined. ______________ *  Appeal from Multnomah County Circuit Court, Kenneth R. Walker, Judge. 318 Or App 724, 509 P3d 668 (2022). **  James, J., did not participate in the consideration or decision of this case. Baldwin, Senior Judge, Justice pro tempore, participated in oral argument, but did not participate in the consideration or decision of this case. 164 State v. Azar Cite as 372 Or 163 (2024) 165 DeHOOG, J. Under the Oregon Criminal Code, a person com­ mits the offense of “computer crime” if, in relevant part, the person accesses or uses (or attempts to access or use) a com­ puter, computer system, or computer network for the pur­ pose of committing theft. ORS 164.377(2)(c).1 At issue in this case is whether defendant’s conduct fell within the scope of that provision. That is, does knowingly selling stolen prop­ erty using the online auction site eBay—conduct that defen­ dant does not dispute would constitute theft by receiving under ORS 164.0952—constitute computer crime? The Court of Appeals, in a divided opinion, con­ cluded that such conduct constitutes computer crime, and it upheld the trial court’s denial of defendant’s motion for judgment of acquittal as to the relevant charges against him. State v. Azar, 318 Or App 724, 738, 509 P3d 668 (2022). As we explain below, we conclude that the legislature did not intend for the computer crime statute to reach conduct such as defendant’s, which may constitute “theft” within the meaning of the Criminal Code but neither interferes with another’s protected interests in—or electronically located on—a computer, computer system, or computer network 1  ORS 164.377(2) provides, in part: “Any person commits computer crime who knowingly accesses, attempts to access or uses, or attempts to use, any computer, computer system, com­ puter network or any part thereof for the purpose of: “*  *  *  *  * “(c)  Committing theft, including, but not limited to, theft of proprietary information or theft of an intimate image.” 2  Under ORS 164.095(1), “[a]  person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft.” Although “disposes” is not defined by statute, defendant does not dispute that selling property that a person knows or should know is stolen constitutes theft by receiving. See State v. Farmer, 44 Or App 157, 160, 605 P2d 716 (1980) (reach­ ing that conclusion based upon ORS 164.055(1)(c), which provides that theft by receiving constitutes theft in the first degree when “committed by buying, selling, borrowing or lending on the security of the property”). We assume for purposes of the present discussion that selling stolen property with the requisite mental state constitutes theft by receiving, but we express no opinion on when in the course of a transaction an online sale qualifies as “dispos[ing],” whether at the time of the sale, at the time the property is physically transferred, or at some other time. 166 State v. Azar (computer),3 nor depends on computer technology as the means of gaining access to the thing that the person seeks to unlawfully obtain. Here, the conduct with which the state charged defendant involved the theft of merchandise that bore no relationship to eBay’s or anyone else’s protected interests in computers, their contents, or rights held in dig­ ital form, and defendant was not dependent on computer technology to gain access to something he sought to steal. Thus, we conclude that the trial court erred in denying defendant’s motion for judgment of acquittal and, accord­ ingly, reverse, in part, the decision of the Court of Appeals.4 I.  BACKGROUND A.  Facts When reviewing the denial of a motion for judgment of acquittal, “we view the evidence in the light most favor­ able to the state to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Hubbell, 371 Or 340, 343, 537 P3d 503 (2023). The Court of Appeals opinion sets forth the relevant facts—which are undisputed—in some detail. Azar, 318 Or App at 727-28. In brief, eBay is an inter­ net site on which individuals can post items for sale either through an online auction or at fixed, “buy-it-now” prices. The eBay website processes purchasers’ payments using— among other services—PayPal, an online payment platform. Sellers can then transfer funds received via PayPal into their own bank accounts. 3  The parties do not distinguish whether, for purposes of the computer crime statute, using eBay’s online sales platform should be considered using (or access­ ing) a “computer,” a “computer system,” a “computer network,” or some combina­ tion of all three, nor do they suggest that any such distinction might bear on our assessment of the arguments or our interpretation of ORS 164.377(2)(c). Thus, we use those terms largely interchangeably and use the term “computer” to collec­ tively reference all three terms. 4  At trial, the jury convicted defendant of three counts of computer crime and other offenses. Four of those convictions were nonunanimous. On appeal, the Court of Appeals reversed and remanded defendant’s four nonunanimous convic­ tions—including the three counts of computer crime at issue here—under Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). Azar, 318 Or App at 726. Our decision regarding defendant’s three computer crime convictions does not affect the Court of Appeals’ ruling as to the remaining nonunanimous conviction. Cite as 372 Or 163 (2024) 167 As part of an investigation into a series of thefts from several retail stores, undercover investigators sold defendant various items of merchandise, falsely telling him that the items had been stolen. Law enforcement officers were then able to track the “stolen” merchandise by pur­ chasing items from an eBay account associated with defen­ dant and confirming that those items were the ones that they had sold to defendant. Police later arrested defendant, who admitted that he had used his sister’s eBay account to sell stolen property. Defendant further admitted that he had obtained the sales proceeds by transferring the funds from his sister’s PayPal account into his own PayPal account, and from there into his bank account. B.  Procedural History As a result of that conduct, the state charged defendant with, in relevant part, three counts of “computer crime,” ORS 164.377(2)(c).5 The state’s theory, as set out in the indictment, was that, by selling merchandise on eBay that he believed to be stolen, defendant had “access[ed] and use[d] a computer, computer system, and computer network for the purpose of committing theft of property” by receiv­ ing. At trial, defendant moved for judgment of acquittal as to those counts, arguing that the state had not proved that he had engaged in “computer hacking,” which, he asserted, was required to establish computer crime.6 Defendant further argued that, if the computer crime statute could be applied broadly enough to encompass his conduct, then it would be unconstitutionally vague. The trial court denied defendant’s 5  Defendant also was charged with and ultimately convicted of multiple counts of attempted first-degree theft (ORS 161.405 and ORS 164.055), launder­ ing a monetary instrument (ORS 164.170), and conspiracy (ORS 161.450). Those other convictions are not at issue on review. 6  In State v. Nascimento, 360 Or 28, 42, 379 P3d 484 (2016), this court addressed a different subsection of the computer crime statute, ORS 164.377(4), which prohibits, in part, the unauthorized use or accessing of computers, com­ puter systems, computer networks, or the data they contain. We observed that such intrusion or unauthorized access by third parties was commonly referred to as “hacking.” Nascimento, 360 Or at 42 (observing more generally that, as intro­ duced, the bill that later encompassed “computer crime” was initially concerned with the theft of cable television services). We understand defendant to use the term “hacking” in the same way. See Webster’s Third New Int’l Dictionary 1018 (unabridged ed 2002) (defining “hacking,” as relevant here, to mean “the gaining of unauthorized access to data in a system or computer”). 168 State v. Azar motion, and a nonunanimous jury convicted defendant of those counts. Defendant appealed, reprising his arguments from the trial court. The Court of Appeals reversed and remanded defendant’s nonunanimous convictions for a new trial, but it otherwise affirmed. Azar, 318 Or App at 726. In a split decision, the majority held that “a person violates [ORS 164.377(2)] when the person’s use or access of a computer is the direct, necessary means by which the person accom­ plishes one of the prohibited purposes in ORS 164.377(2)(a) through (c).” Id. at 737. The court rejected defendant’s argu­ ment that computer crime is limited to computer hacking, as well as his contextual argument that “theft” under ORS 164.377(2)(c) is limited to taking something from a computer and does not encompass all conduct that might satisfy one of the various statutory definitions of “theft.” In concluding otherwise, the court reasoned that, because “theft” has an “established legal meaning” in the Criminal Code, “theft” as used in ORS 164.377(2)(c) encompasses each of the forms of theft described in ORS 164.015, including theft by receiv­ ing, see ORS 164.015(5) (incorporating ORS 164.095 (defin­ ing that offense)). Id. at 733-34. As to defendant’s vagueness challenge, the court explained that, because it construed the computer crime statute to require that a defendant’s “use or access[ing]” of a computer be “more than incidental” and “the direct, necessary means” by which the defendant “accomplishes one of the prohibited purposes” identified in ORS 164.377(2)—including “[c]ommitting theft”—the stat­ ute “would allow a person of ordinary intelligence to under­ stand the scope of what is prohibited *  *  *.” Id. at 737-38. That, the majority opinion concluded, resolved any constitu­ tional concerns. Id. Judge Pagán disagreed. He reasoned that the legis­ lative history of ORS 164.377 indicated that the statute “was intended to address the type of criminal activity we most associate with hacking or other nefarious access to networks or computers, not simply the use of electronics to commit crimes.” Id. at 743 (Pagán, J., concurring in part and dis­ senting in part). Based in part on subsequent amendments to ORS 164.377(2)(c), Judge Pagán viewed the computer Cite as 372 Or 163 (2024) 169 crime statute as somewhat “analogous to burglary—that is, accessing a place a person is not allowed to be with the intention of committing a crime in that place.” Id. at 740 (emphasis in original). Judge Pagán further reasoned that, due to the ubiquitous nature of computer technology in mod­ ern society, the majority’s understanding of the statute would encompass far more conduct than the legislature could have anticipated and would elevate any number of minor offenses to Class C felonies, which could not, in his view, have been what the legislature intended. Id. at 743. Defendant sought review in this court, which we allowed. II.  DISCUSSION Defendant argues on review that, as relevant here, computer crime under ORS 164.377(2)(c) is limited to “accessing or using another person’s computer, computer system, or computer network to commit an unauthorized taking of information or data from that computer, computer system, or computer network *  *  *.” It follows, defendant rea­ sons, that his conduct in utilizing eBay for the purpose of selling merchandise that he believed to be stolen—conduct that defendant appears to accept would be theft by receiv­ ing under ORS 164.095 if successfully carried out—does not constitute computer crime. More specifically, because “theft” as that term is used in ORS 164.377(2)(c) does not, in his view, encompass theft by receiving, his conduct of using or accessing eBay online to commit that offense is not “us[ing]” or “access[ing]” a computer “for the purpose of *  *  * [c]ommitting theft” within the meaning of that paragraph. Defendant thus concludes that the trial court erred when it denied his motion for judgment of acquittal. A.  The Text and Context of ORS 164.377(2)(c) “When, as here, a trial court denies a defendant’s motion for judgment of acquittal based on an interpreta­ tion of a statute, we review the denial for errors of law.” State v. Haley, 371 Or 108, 112, 531 P3d 142 (2023). The specific statutory question in defendant’s case is whether ORS 164.377(2)(c) encompasses his undisputed conduct of selling purportedly stolen merchandise on eBay. We resolve 170 State v. Azar that question under the framework set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Our goal is to determine the intent of the legislature that enacted that provision. Id. at 171. In making that determination, we consider the dis­ puted statutory text in context, together with any available legislative history that we find helpful. Id. at 172. If a stat­ ute’s intended meaning remains unclear to us following our examination of its text, context, and legislative history, we may turn to general maxims of statutory interpretation for additional guidance. See, e.g., Chaimov v. Dept. of Admin. Services, 370 Or 382, 398 n 7, 520 P3d 406 (2022) (noting lim­ ited circumstances in which it may be appropriate for courts to consider general maxims of statutory interpretation). In this case, the state charged defendant with com­ puter crime based on his alleged violation of ORS 164.377 (2)(c), which provides: “Any person commits computer crime who knowingly accesses, attempts to access or uses, or attempts to use, any computer, computer system, computer network or any part thereof for the purpose of: “*  *  *  *  * “(c)  Committing theft, including, but not limited to, theft of proprietary information or theft of an intimate image.”7 The disputed text here is “accesses *  *  * or uses *  *  * any computer *  *  * for the purpose of *  *  * [c]ommitting theft.” On its face, that language is quite broad and can plausibly be understood to capture utilizing eBay to facilitate theft as defined by Oregon law, including theft by receiving under ORS 164.095, the specific form of “theft” underlying defen­ dant’s charges. But, as we will explain, an examination of the text and context of ORS 164.377(2)(c) leaves open the question whether the legislature intended to capture conduct such as defendant’s—specifically, the lawful use of another’s computer system in the course of committing theft—when it prohibited using or accessing computers “for the purpose” of committing theft. That is, when—if ever—might using or 7  As originally enacted, the conduct addressed under ORS 164.377(2)(c) was limited to “[c]ommitting theft.” Or Laws 1985, ch 537, § 8 (enacting House Bill (HB) 2795 (1985)). Cite as 372 Or 163 (2024) 171 accessing a computer in the course of committing a theft not constitute use or access for the purpose of committing theft? As noted, the Court of Appeals effectively concluded that a person lacks that purpose when their use or accessing of a computer is merely “incidental,” and not the “direct, neces­ sary means” of committing the theft. See Azar, 318 Or App at 737. As the following indicates, our ultimate conclusion in this case aligns with the implicit reasoning of the Court of Appeals—as well as that of the dissenting opinion in this court—which we understand to be that, despite the facially broad language of ORS 164.377(2)(c), the legislature did not intend that provision to apply as expansively as its plain terms could possibly reach. However, despite our agreement on that point, we ultimately disagree as to what limitation applies. We turn to the relevant terms. Some of those terms are defined within the computer crime statute itself. Those include “access,” which means “to instruct, communicate with, store data in, retrieve data from or otherwise make use of any resources of a computer, computer system or computer network.” ORS 164.377(1)(a). At a minimum, con­ ducting sales transactions through eBay necessarily entails “communicat[ing]” with “a computer, computer system or computer network,” and defendant does not contend that he did not “access” eBay when he used that platform to market items that he believed to be stolen. Similarly, although “uses” is not statutorily defined, that term too is quite broad and, in isolation, would seem to capture availing oneself of an online service, such as eBay. The various meanings of “use” include “to carry out a purpose or action by means of : make instru­ mental to an end or process : apply to advantage : turn to account : utilize.” Webster’s Third New Int’l Dictionary 2524 (unabridged ed 2002); see also PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (explain­ ing that “words of common usage typically should be given their plain, natural, and ordinary meaning”). Thus, the term “uses,” like the term “access,” might be understood to apply to defendant’s alleged conduct: One who employs eBay to conduct online sales “uses,” for at least that purpose, eBay and, by extension, the computer, computer system, or com­ puter network on which eBay operates. 172 State v. Azar And, if all that ORS 164.377(2)(c) required were that a person use or access a computer for any purpose bear­ ing some nonincidental connection to an act of theft, then our inquiry would likely be complete. However, even an ini­ tial examination of the statutory context suggests certain parameters around those otherwise broad terms. “A statute’s context includes, among other things, its immediate con­ text—the phrase or sentence in which the term appears— and its broader context, which includes other statutes on the same subject.” Shepard Investment Group LLC v. Ormandy, 371 Or 285, 290, 533 P3d 774 (2023). As noted above, the various meanings of “use” include “to carry out a purpose or action by means of,” Webster’s at 2524, and ORS 164.377(2)(c) expressly states which “purpose” brings the “use” of a com­ puter within the statute’s coverage: “the purpose of *  *  * [c]ommitting theft *  *  *.” Moreover, given the legislature’s chosen phrasing—“uses *  *  * for the purpose of,” rather than, for example, “uses in the course of”—the legislature may have sought to limit the application of ORS 164.377(2)(c) to uses that in fact “carry out” that purpose, and not any use that in some way facilitates “theft.”8 Under that reading, defendant’s conduct would constitute computer crime only if the act itself of using eBay constituted a theft within the meaning of ORS 164.377(2)(c). That qualifying language in ORS 164.377(2)(c)— “for the purpose *  *  * of “[c]ommitting theft”—does not inde­ pendently shed much light on the intended scope of the stat­ ute. The word “purpose” commonly means “something that one sets before [themselves] as an object to be attained: an end or aim to be kept in view in any plan, measure, exertion, or oper­ ation: design.” Webster’s at 1847. So, for defendant’s conduct of using or accessing the eBay platform to constitute computer crime in this case, he must at least have had a certain objec­ tive in mind, specifically, “[c]ommitting theft.” But, as noted above, the word “use” itself appears to imply purpose-driven conduct, and the fact that the state must prove a specific pur­ pose does not provide any further indication whether having 8  As noted, the plain meanings of “use” include “to carry out a purpose,” Webster’s at 2524, and, in turn, “carry out” conveys the idea of bringing some­ thing to its conclusion, see id. at 344 (meanings of “carry out” include “to bring to a successful issue” and “to continue to an end or stopping point”). Cite as 372 Or 163 (2024) 173 that objective is sufficient to render a “use” of a computer “computer crime” or, if not, what else the state must prove to establish a violation of ORS 164.377(2)(c). “Committing,” in turn, means, as pertinent here, to engage in specific conduct that the law makes punishable as a crime. See Black’s Law Dictionary 248, 334 (5th ed 1979) (defining “commit” as “[t]o perpetrate *  *  * a crime” and “crime” as a “positive or negative act in violation of penal law”); see also DCBS v. Muliro, 359 Or 736, 746, 380 P3d 736 (2016) (“When a term is a legal one, we look to its estab­ lished legal meaning as revealed by, for starters at least, legal dictionaries.” (Internal quotation marks omitted.)) And as ORS 164.377(2)(c) expressly provides, the relevant crime for purposes of our analysis is “theft.” Again, however, noth­ ing in the word “[c]ommitting” or its immediate context tells us whether ORS 164.377(2)(c) contemplates anything more than facilitating a theft by using or accessing a computer, whether it be the extraction of something from that com­ puter (as defendant argues), the successful completion of some form of theft—even if, as here, the theft involves prop­ erty wholly external to any computer—or the realization of some other theft-related goal. That brings us, finally, to the term “theft,” which raises one of the parties’ central disputes in this case: whether “theft,” as used in ORS 164.377(2)(c), is intended to encompass the various meanings of theft found in other parts of the Criminal Code (as the state contends), or, instead, “theft” has a narrower meaning when it comes to computer crime, one that (as defendant argues) limits ORS 164.377(2)(c) in a way that excludes theft by receiving, the form of theft prosecuted in this case. For the reasons that follow, we conclude that, under ORS 164.377(2)(c), “theft” has the same meaning as it does elsewhere in the property crimes chapter of the Criminal Code. As we also explain, however, that conclusion does not resolve the ultimate ques­ tion raised by defendant’s appeal, namely, whether that pro­ vision reaches his specific conduct in this case. We begin by observing, as defendant emphasizes, that ORS 164.377 does not define “theft,” despite defining many of the other terms that the statute uses. See, e.g., ORS 174 State v. Azar 164.377(1)(a) (defining “access”); ORS 164.377(1)(b) (defining “computer”); ORS 164.377(1)(j) (defining “property”). Nor does it expressly incorporate the meaning of that term from the theft section of the property crimes chapter, including the offenses identified in ORS 164.015 (stating that one “commits theft” by, among other things, “commit[ting] theft by receiving as provided by ORS 164.095”). Defendant relies on those contextual clues as evidence that the legislature intended for “theft” in ORS 164.377(2)(c) to have its plain and ordinary meaning, which he argues is “an unauthorized taking.” See Webster’s at 2369 (defining “theft” as “the act of stealing; *  *  * the felonious taking and removing of personal property with intent to deprive the rightful owner of it” or “the taking of property unlawfully (as by robbery, embezzle­ ment, fraud)”); see also The American Heritage Dictionary of the English Language 1334 (1st ed 1969) (defining “theft” as “the act or an instance of stealing; larceny”). Under that reading, “theft” would seem not to include theft by receiv­ ing—at least as alleged here—because that crime does not appear to require a “taking.” See ORS 164.095 (“A person commits theft by receiving if the person receives, retains, conceals or disposes of property *  *  *.”). The state responds that the legislature had no need to define “theft” for purposes of the computer crime statute, because that term already had a well-defined legal meaning in Oregon when it enacted that law: the meaning found in ORS 164.015, which is not limited to theft by taking. And because the two statutes appear in the same chapter of the Criminal Code, the state would rely on this court’s “general assumption” that “the legislature intended the same word to have the same meaning throughout related statutes unless something in the text or context of the statute suggest a contrary intention.” Village at Main Street, Phase II v. Dept. of Rev., 356 Or 164, 175, 339 P3d 428 (2014); see also State v. Cloutier, 351 Or 68, 99, 261 P3d 1234 (2011) (so stating). The state also compares the computer crime statute to ORS 164.235, which narrows the scope of “theft” to “theft by a physical taking” in prohibiting possession of burglar’s tools. It argues that, because the legislature did not similarly narrow the scope of “theft” in the computer crime statute, we should not narrow it ourselves as a matter of statutory construction, Cite as 372 Or 163 (2024) 175 because that would violate our duty under ORS 174.010 to avoid “insert[ing] what has been omitted” by the legislature. We conclude that “theft” as used in ORS 164.377(2)(c) encompasses, as a general matter, those offenses identified as theft in ORS 164.015, including theft by receiving.9 The legis­ lature enacted ORS 164.377 in 1985, Or Laws 1985, ch 537, § 8, over a decade after it “eliminate[d] the traditionally distinct crimes of larceny, larceny by trick, embezzlement, obtaining property by false pretenses, receiving stolen property and extortion and *  *  * consolidate[d] them into one crime called ‘theft.’  ” Commentary to Criminal Law Revision Commission Proposed Oregon Code, Final Draft and Report § 123, 132 (July 1970); see also Or Laws 1971, ch 743, § 123 (providing five circumstances in which a person commits “theft”). Thus, as the state notes and the Court of Appeals reasoned, “theft” had a well-established legal meaning when the legislature enacted the computer crime statute, a meaning not limited to theft by taking. Moreover, House Bill (HB) 2795 (1985), which included the computer crime provisions now compiled at ORS 164.377, also contained provisions amending the theft provi­ sions of ORS chapter 164. Accordingly, we can safely assume that the legislature was aware of the meaning of “theft” in ORS 164.015 when it enacted ORS 164.677(2)(c). See Jack L. Landau, Oregon Statutory Construction, 97 Or L Rev 583, 638 (2019) (noting that “  ‘context’ for a statute is essentially any­ thing of which the legislature could have been aware at the time of a given enactment”). Additionally, ORS 164.015 and ORS 164.377 are closely related, in that they both address the wrongful interference with property rights of others and appear in the same chapter of the Criminal Code. As a result, unless something else about the text or context of either stat­ ute suggests a contrary intention, we assume that the legisla­ ture intended “theft” to have the same meaning in both. See State v. Colgrove, 370 Or 474, 483, 521 P3d 456 (2022) (stating that principle). 9  We need not determine whether “theft” as used in ORS 164.377(2)(c) also encompasses forms of theft defined by other statutes, including ORS 164.125 (theft of services) and ORS 164.162 (mail theft). Further, although we conclude that, in theory, ORS 164.377(2)(c) encompasses theft by receiving, ORS 164.095, which is a form of theft identified in ORS 164.015, we discuss below whether, as a practical matter, it was intended to capture conduct of the sort admitted by defendant. 176 State v. Azar In our view, nothing suggests a contrary intention. Defendant contends otherwise. He offers various contex­ tual clues that he asserts support the view that “theft” in ORS 164.377(2)(c) has a meaning independent of its statu­ tory definitions, one limited to the unauthorized taking of property from a computer. Among other things, defendant argues that, because ORS 164.377(2)(a) and (2)(b) crimi­ nalize conduct analogous to theft by deception, it would be illogical for ORS 164.377(2)(c) to criminalize that same con­ duct, which would result if we accepted the state’s meaning of “theft.” We are not persuaded. It is true that, in addition to prohibiting using or accessing a computer for purposes of committing theft, ORS 164.377(2) also proscribes two other “theft-like” forms of conduct: “Any person commits computer crime who knowingly accesses, attempts to access or uses, or attempts to use, any computer, computer system, computer network or any part thereof for the purpose of: “(a)  Devising or executing any scheme or artifice to defraud; [or] “(b)  Obtaining money, property or services by means of false or fraudulent pretenses, representations or promises[.]” And, as defendant points out, both ORS 164.377(2)(a) and (2)(b) proscribe conduct analogous to theft by deception, which is both separately defined in ORS 164.08510 and one of the forms of theft listed in ORS 164.015. Defendant reasons that, if the legislature had intended for ORS 164.377(2)(c) to capture those other forms of theft, it would have had no 10  ORS 164.085(1) provides, in part: “A person, who obtains property of another thereby, commits theft by deception when, with intent to defraud, the person: “(a)  Creates or confirms another’s false impression of law, value, inten­ tion, or other state of mind that the actor does not believe to be true; “(b)  Fails to correct a false impression that the person previously created or confirmed; [or] “*  *  *  *  * “(e)  Promises performance that the person does not intend to perform or knows will not be performed.” Cite as 372 Or 163 (2024) 177 reason to separately define computer crime to include the conduct proscribed by ORS 164.377(2)(a) and (b). We acknowledge that, as defendant observes, there would appear to be considerable overlap between the con­ duct that paragraphs (2)(a) and (b) proscribe and the conduct that paragraph (2)(c) encompasses if, as the state argues, “theft” in paragraph (2)(c) wholly incorporates ORS 164.015. Notably, however, paragraphs (2)(a) and (b) are not entirely coextensive with any form of theft listed in ORS 164.015. Among other differences, paragraph (2)(a) prohibits simply devising a fraudulent scheme—whereas theft by deception requires actually obtaining property—and paragraph (2)(b) applies to fraudulently obtaining services, not just property, and therefore is broader than theft by deception and any other form of theft defined in ORS 164.015.11 Moreover, as we have recognized, “the fact that a proposed interpretation of a statute creates some measure of redundancy is not, by itself, necessarily fatal. Redundancy in communication is a fact of life and of law.” Cloutier, 351 Or at 97; see also State v. Fonte, 363 Or 327, 343, 422 P3d 202 (2018) (noting that “it may be possible for the same person to commit acts that constitute more than one type of theft under ORS 164.015”). And here, given the broad scope of the computer crime statute, we find it likely that any perceived redundancy is the product of the legislature’s effort to enact a comprehensive statute, and not evidence that the legislature intended for ORS 164.377— including its reference to “theft”—to be wholly self-contained. In sum, the text and context of ORS 164.377(2)(c) do not support defendant’s narrow construction, one that would limit the scope of that provision to using or access­ ing a computer for the purpose of taking something from that or another computer. However, that conclusion does not answer the question at the core of this case: When does using or accessing a computer in the course of committing theft amount to using or accessing the computer “for the purpose of *  *  * [c]ommitting theft”? Is it whenever the use or access facilitates a theft? Is it when, as the Court of Appeals 11  A separate theft statute, ORS 164.125 (theft of services), does cover obtain­ ing services by deception, but the state has not argued that theft of services is another form of theft covered by ORS 164.377(2)(c), nor has that statute been offered as additional context for the computer crime statute. 178 State v. Azar concluded, “the person’s use or access[ing] of a computer is the direct, necessary means by which the person accom­ plishes” a theft? See Azar, 318 Or App at 737.12 Or did the legislature intend some different scope when it enacted the computer crime statute? Because our assessment of the text and context of ORS 164.377(2)(c) leaves open the question whether that provision encompass defendant’s conduct, any legislative history that sheds light on that question could inform our final conclusion regarding the intended scope of the statute. Thus, we now turn our attention to whether anything in the legislative history of ORS 164.377 is helpful in that regard. B.  The Legislative History of ORS 164.377 This court recognized in Nascimento, 360 Or at 42, that the legislature’s primary concern in adopting the com­ puter crime provisions of HB 2795 was computer “hacking”— the unauthorized use or accessing of computers or the data they contained. Defendant relies on that point to support his argument that we should narrowly construe what it means to “use” or “access” a computer system for purposes of com­ mitting theft. Although the state agrees that the primary concern of the legislature that established the offense of computer crime was hacking, it attaches less significance to that point than defendant. The state contends that the 1985 legislative history pertinent to that conduct focused on what later became ORS 164.377(4) (prohibiting unauthorized use or accessing of computers and their contents) and ORS 164.377(3) (prohibiting unauthorized alteration, damage, or destruction of same), and not ORS 164.377(2), the provision at issue in this case. The state further argues that, despite having the principal goal of addressing computer hacking, the legislature may well have had other objectives in mind 12  The Court of Appeals did not elaborate on its test, and it is not clear to us whether, by requiring that the use of a computer be the “direct, necessary means” of accomplishing a theft (and not merely “incidental”), that court intended to require more than a causal relationship between the use and the result, and, if so, what degree of necessity would suffice. We note that, although defendant’s use of eBay may well have enhanced his ability to market the spoils of his crimes—as well as to avoid apprehension—it is less than obvious how eBay was “necessary,” at least if, by “necessary,” the Court of Appeals meant that defendant could not have committed theft by receiving without his reliance on eBay, or on any com­ puter technology for that matter. Cite as 372 Or 163 (2024) 179 when it passed HB 2795. See Nascimento, 360 Or at 44 (not­ ing that the “legislature may and often does choose broader language that applies to a wider range of circumstances than the precise problem that triggered legislative atten­ tion” (Internal quotation marks omitted.)). Having reviewed the legislative history of the com­ puter crime statute, we conclude that it does not support as expansive an application of ORS 164.377(2)(c) as the Court of Appeals’ opinion would allow. When it was first introduced in the legislature, HB 2795 was directed at the theft of tele­ vision cable services and included text amending the exist­ ing theft of services statute, ORS 164.125. Tape Recording, House Committee on Judiciary, Subcommittee 1, Apr 11, 1985, Tape 425 (statement of Rep Randy Miller); see also Or Laws 1985, ch 537, §§ 1-7. The “computer crime” text came later at the request of the American Electronics Association and was introduced as an amendment to HB 2795 by repre­ sentatives of General Telephone Company of the Northwest (General Telephone). Tape Recording, House Committee on Judiciary, Subcommittee 1, May 6, 1985, Tape 576 (state­ ment of Chair Richard Springer). Sterling Gibson, a security officer for General Telephone, testified that the purpose of the amendment was to “prevent people from calling into someone’s computer” and manipulating a business’s data. Id. When Chairperson Springer asked whether the existing theft of services statute already criminalized the conduct described in the amend­ ment, Gibson responded that “a lot of times it may not be theft[.]” Id. He continued that, even though “it may be con­ strued as theft, *  *  * the actual act was the manipulation, or changing of documents” that are “vital” to an organization’s survival. Id. He further explained that that conduct “isn’t theft, that’s manipulation” and later reiterated that “we’re not necessarily dealing with the theft of something, [we’re dealing with] manipulation.” Id. Gibson said that, in his experience, when law enforcement sought to prosecute acts of computer hacking, they had found the theft of services statutes “too broad” and “not useable.” Id. Echoing Gibson’s testimony, Legislative Counsel Leslie Hammond later explained to the full House Committee 180 State v. Azar on Judiciary that HB 2795 was intended to address “the idea of people who use their computers or instruments to get access to computer systems or networks and then gain by using the information or program that belongs to someone else.” Tape Recording, House Committee on Judiciary, HB 2795, May 13, 1985, Tape 613, Side A; see also id. (explaining that the bill makes “it a crime for people to access a computer system to which they don’t belong or to destroy or damage the property”). Hammond also prepared a staff summary for the committee explaining that the bill was intended to address the problem of people “using computers to break into com­ puter systems to steal information or programming.” Staff Measure Summary, House Committee on Judiciary, HB 2795 (1985). The bill passed the committee without further discussion. Tape Recording, House Committee on Judiciary, HB 2795, May 13, 1985, Tape 613, Side A. That legislative history readily supports what is undisputed here: HB 2795’s proponents were most concerned with the sort of conduct criminalized by subsections (3) and (4) of ORS 164.377, which explicitly address the protection of computers and their contents from intrusion. Admittedly less clear is what conduct the legislature was targeting when it chose to also criminalize using or accessing computers for the purposes of “[c]ommitting theft,” ORS 164.377(2)(c). But what evidence there is in the legislative history indicates to us that, like subsections (3) and (4), ORS 164.377(2)(c) was enacted to protect computers and their contents; it was not enacted to provide broad protection from computers and their potential value as instruments of crime, whether or not a person’s crime bore any relationship to the computer used or the contents accessed. In other words, the evidence suggests a more limited understanding of ORS 164.377(2)(c), one that, like computer hacking, was focused on computers, their contents, and the access that computer technology could give would-be thieves to electronically stored or man­ aged data and services. That evidence includes (1) the mea­ sure summary’s identified concern that individuals were stealing “information or programming” from computers, Staff Measure Summary, House Committee on Judiciary, HB 2795 (1985); (2) legislative counsel’s explanation that the underlying concern was “people who use their computers or Cite as 372 Or 163 (2024) 181 instruments to get access to computer systems or networks” and “using the information or program that belongs to some­ one else,” Tape Recording, House Committee on Judiciary, HB 2795, May 13, 1985, Tape 613, Side A; (3) proponents’ accounts of electronically stored business data being manip­ ulated or altered; and (4) the fact that HB 2795’s original objective was to address those who were surreptitiously acquiring cable television services—an electronically dis­ tributed commodity—for free. We turn next to what that limitation is; that is, what qualifies as “use” or “access”? C.  What qualifies as “use” or “access” under ORS 164.377 (2)(c)? As we have just discussed, the legislative history suggests that the legislature that enacted ORS 164.377(2)(c) never intended that provision to reach every act of theft that somehow involved using or otherwise accessing a computer. Rather, the legislature’s overriding goal was to stop people from getting into computer systems for nefarious purposes, as Judge Pagán observed. That understanding suggests the need for some limiting principle as to what constitutes use or access for purposes of theft under the statute. We are cognizant that our understanding of the legislative history can only inform our construction of the legislatively enacted text; it cannot justify the adoption of limitations that the text of ORS 164.377(2)(c) cannot support. See ORS 174.010 (in construing statutes, courts may not insert what the legislature has omitted). For that reason, we have already rejected defendant’s argument that “theft” as used in ORS 164.377(2)(c) is limited to taking things from a computer— the only permissible limitation on what constitutes a qualify­ ing theft is that the person must have “use[d]” or “access[ed]” a computer “for the purpose of” committing it.13 And, based on our review of the text and context of ORS 164.377(2)(c), we have also concluded that a qualifying theft may take any one of the various forms of theft listed under ORS 164.015, including, at least arguably, theft by receiving. However, our review of the legislative history persuades us—as the 13  Indeed, nothing in the statute even limits its scope to crimes completed entirely within the confines of a computer system. We address the implications of that fact below. 182 State v. Azar Court of Appeals seems to have been persuaded by other considerations—that not every act of using or accessing a computer in the course of engaging in theft qualifies as use or access “for the purpose of *  *  * [c]ommitting theft.” Before determining which acts do qualify, we first note that we disagree with the Court of Appeals’ test, which we understand to be that the person’s use or accessing of a computer must be the “direct, necessary means” by which the person committed a theft and that the use or access must be more than “incidental.” Azar, 318 Or App at 738. For one thing, that test does not adequately reflect the purpose for which the legislature enacted the computer crime stat­ ute, as reflected in its legislative history. And for another, the Court of Appeals’ test is, in our view, unworkable. That is, “direct [and] necessary” is susceptible to myriad mean­ ings, and nothing in the Court of Appeals’ decision explains which meaning applies.14 Notably, although defendant in this case chose to employ computer technology in the course of his criminal conduct, it is far from apparent that he could not have committed the underlying offense without using eBay, as the crime of “fencing” stolen property was commit­ ted far before the advent of the internet or of electronics of any sort. Thus, at least to the panel majority in the Court of Appeals, “necessary” must mean something less than truly “necessary,” but what may qualify is far from clear. See Webster’s at 1511 (including, among other definitions of “nec­ essary,” the ideas of being absolutely required, essential, or indispensable). Relatedly, the Court of Appeals’ requirement that a person’s use or access of a computer be more than 14  The word “direct” is relatively clear and, when used in the term “direct means,” appears to mean “leading by the *  *  * shortest way to a point or end” and suggests immediacy between the use or accessing and its objective. See Webster’s at 640 (defining the adjectival form of “direct”). But when such use or accessing might be “necessary” is far less clear. It may require a merely practical necessity, such that it suffices if the person’s decision to use a computer bears a “but for” relationship with a prohibited outcome—e.g., “if he had not used a computer, he would not have committed a theft”—or, instead, it may require that computer technology play an essential or indispensable role in the commission of the per­ son’s crime, such that the person could not have committed the charged offense had they not had been able to use or access a computer. See id. at 1511 (defining “necessary” to include “that cannot be done without : that must be done or had : absolutely required : essential, indispensible”). Cite as 372 Or 163 (2024) 183 “incidental” does not improve matters. There is no way to anticipate when a particular prosecutor, jury, or court will view one or another use of computer technology as merely “incidental.” We therefore do not share the Court of Appeals’ optimism that its test is sufficient to “allow a person of ordi­ nary intelligence to understand the scope of what is pro­ hibited” so as to alleviate defendant’s vagueness concerns.15 See Azar, 318 Or App at 738. Thus, although we agree with the Court of Appeals that it is appropriate to articulate the intended scope of ORS 164.377(2)(c), we disagree with its ultimate determination as to what that scope is. We, therefore, describe the scope of ORS 164.377(2)(c) differently, in a way that is both workable—that is, under­ standable and predictable—and true to the legislature’s principal goal in enacting the computer crime statute, spe­ cifically, to deter the targeting of computers and the data they contain. In so doing, however, we find it significant that the legislature also had in mind those who were using tech­ nology as a means of surreptitiously gaining access to ser­ vices they could not otherwise access—specifically, free cable television services. Thus, in determining the scope of ORS 164.377(2)(c), we allow for the possibility that the legislature intended for “computer crime” to capture at least some con­ duct that reaches beyond the strict confines of any computer, computer system, or computer network. Synthesizing those principles, we conclude that, for a person’s use or accessing of a computer to be “for the purpose of *  *  * [c]ommitting theft” under ORS 164.377(2)(c), the theft at issue must either interfere with another’s property rights in—or electronically located on—a computer, computer system, or computer net­ work, or depend on such computer technology as the means 15  Like the Court of Appeals majority, the dissent in this court appears to recognize that, without some limiting principle, ORS 164.377(2)(c) has the poten­ tial to capture significantly more conduct than the legislature intended. 372 Or at 189-90 (Bushong, J., dissenting) (recognizing that some computer uses would likely be too “incidental” to be what legislature intended to reach; observing that the Court of Appeals described defendant’s computer use as the “principal mechanism” of fencing operation). But neither the Court of Appeals majority nor the dissent here suggests that, under ORS 164.377(2)(c), a person’s computer use must be the “principal” means by which they accomplish their theft. Thus, like the Court of Appeals, the dissenting opinion in this court offers only the unwork­ able standard of computer use that is not “incidental.” 184 State v. Azar of accessing the thing that the person seeks to unlawfully obtain. D.  ORS 164.377(2)(c) does not apply to defendant’s conduct. Turning to the application of that standard to this case, we emphasize that, despite the limits that our construc- tion may impose on the computer crime statute, ORS 164.377 (2)(c) remains broadly applicable. In addition to protecting a broad range of property interests existing—physically or in electronic form—on computers, computer systems, or com­ puter networks, we have also construed that provision to capture forms of theft that rely on the special access to pro­ tected interests that computer technology might allow. Thus, although we need not for purposes of this case delineate the full range of conduct that ORS 164.377(2)(c) might reach, we observe, for example, that it would necessarily capture such conduct as manipulating computerized bank records or other conduct that takes place via a computer but that affects interests existing outside the digital realm. That being said, even with that rather broad understanding of what it means to access or use a computer for purposes of theft, it does not encompass defendant’s conduct here. In this case, defendant does not dispute that his conduct in selling purportedly stolen property on eBay con­ stituted theft by receiving. That conduct, however, did not interfere with any interest that eBay or anyone else had in a computer, computer system, or computer network, or in any electronic contents thereof. Nor did defendant use eBay or any other computer technology to gain access to property that he sought to unlawfully obtain—to the extent that any­ one actually accessed the purportedly stolen merchandise at issue in this case, it is apparent that they did so by phys­ ically entering the retail locations where such items were sold. Under those circumstances, defendant’s conduct can­ not have constituted computer crime.16 16  The dissent suggests that there is an incongruity between suggesting that it might well be computer crime for a person to obtain the fruits of theft through eBay, but not to dispose of them through the same platform. 372 Or at 190-91 (Bushong, J., dissenting). Even assuming that the dissent’s premise is correct, we disagree that our construction leads to incongruous results. Much like the crime of burglary focuses on the entry or remaining upon premises to commit a crime, not on the departure from premises with the fruits of that crime, the legislature’s Cite as 372 Or 163 (2024) 185 III.  CONCLUSION We conclude that a person does not violate ORS 164.377(2)(c) merely by permissibly using an online platform such as eBay in the course of committing a theft, whether theft by receiving or some other form of theft. Although ORS 164.377.(2)(c) broadly prohibits using or accessing a computer to commit theft, the theft at issue must either (1) interfere with another’s protected interests in either the computer or its contents, or (2) depend on computer technology to gain access to whatever it is that the person seeks to unlawfully obtain. As alleged in this case, defendant’s conduct of theft by receiving, while conducted on a computer, did not relate to anything about the computer he used or its contents, and defendant did not depend on a computer to gain access to the purportedly stolen property. The trial court therefore erred in denying defendant’s motion for judgment of acquittal as to the allegations of computer crime. We reverse the trial court’s denial of defendant’s motion for judgment of acquit­ tal, reverse, in part, the decision of the Court of Appeals, and remand for further proceedings. The decision of the Court of Appeals is reversed in part. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings. BUSHONG, J., dissenting. Defendant used a computer to sell stolen merchan­ dise on eBay, obtaining money from those sales through PayPal accounts that he accessed using a computer.1 The majority opinion concludes that defendant’s use of a com­ puter to commit those crimes does not constitute “computer crime” in violation of ORS 164.377 because the legislative focus in enacting the computer crime statute was on the use of computers as means of—and protecting computers against—intrusion. 372 Or at 180-81 (dis­ cussing that focus). 1  eBay is an internet platform that allows “private sellers to list goods they wish to sell, either through an auction or at a fixed price.” eBay Inc. v. MercExchange, LLC, 547 US 388, 390, 126 S Ct 1837, 164 L Ed 2d 641 (2006). The eBay website processes purchasers’ payments using PayPal, which is an internet service that allows “business[es] or private individual[s] to send and receive payments” online. Comb v. PayPal Inc., 218 F Supp 2d 1165, 1166 (ND CA 2002). Sellers can transfer funds processed through PayPal into their own bank accounts. Id. 186 State v. Azar history suggests “a more limited understanding” of what conduct the legislature intended to prohibit when it adopted the computer crime statute in 1985. I disagree with that conclusion. In my view, the majority opinion misreads the legislative history to reach a result that is contrary to the text of the statute. Accordingly, I respectfully dissent. As the majority opinion points out, a person com­ mits computer crime in violation of ORS 164.377(2)(c) if the person knowingly “accesses” or “uses” a computer, computer system, or computer network, for the purpose of “commit­ ting theft.”2 The majority opinion explains that “theft” had a well-established meaning when the computer crime statute was enacted and that theft by receiving as defined in ORS 164.015 was included in the conduct covered by the statute. I agree with that reading of the statute’s text. But the major­ ity opinion goes astray when it interprets “access” or “use” narrowly to cover only conduct that “either interfere[s] with another’s rights in—or electronically located on—a com­ puter, computer system, or computer network, or depend[s] on such computer technology as a means of accessing the thing that the person seeks unlawfully to obtain.” 372 Or at 183-84. That interpretation finds no support in the text or context of the statute, and the majority opinion does not sug­ gest that it does. Instead, the majority opinion relies on the legislative history to support its narrow interpretation of the statutory text. But that interpretation conflicts with the plain meaning of the text, and we have long recognized that “there is no more persuasive evidence of the intent of the legislature than the words by which the legislature under­ took to give expression to its wishes.” State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (internal quotations marks omitted). The words used here—to “access” and “use”—a computer to commit theft are not limited by any words sug­ gesting that the “rights” a person may have obtained or 2  The computer crime statute defines “computer,” “computer system,” and “computer network.” See ORS 164.377(1)(b) - (d). Defendant does not dispute that, by engaging eBay and PayPal online, he accessed a computer, a computer system, or a computer network. Cite as 372 Or 163 (2024) 187 interfered with when the person used or accessed a computer must be “in or located on” a computer to constitute computer crime. Nor are there any words limiting the reach of the statute to using computer technology “as a means of access­ ing the thing that the person seeks unlawfully to obtain.” Instead, paragraph (1)(a) of the computer crime statute broadly defines “access” to mean “to instruct, communicate with, store data in, retrieve data from or otherwise make use of any resources of a computer, computer system or computer network.” ORS 164.377(1)(a) (emphasis added). The major­ ity opinion interprets that definition to include a limitation that the legislature omitted, contrary to accepted rules of statutory interpretation. See ORS 174.010 (in interpreting statutes, courts may not “insert what has been omitted”). The majority opinion’s interpretation also overlooks the fact that subsection (2) of the computer crime statute expressly states what the purpose of using or accessing a computer must be for the conduct to be considered computer crime. That provision states that a person commits com­ puter crime when the person knowingly uses or accesses a computer “for the purpose of” (among other things) “[c] ommitting theft.” ORS 164.377(2)(c). The statute does not say that, to constitute computer crime, a person must use or access a computer for “the purpose of” obtaining or interfer­ ing with rights “in or located on” a computer, nor does it say that the thief’s purpose must be to “access the thing that the person seeks unlawfully to obtain.” But that is the effect of the majority opinion’s interpretation. Moreover, although the legislative discussions lead­ ing to the enactment of the statute focused primarily on the problem of “computer hacking,” as the majority opinion points out, the legislature ultimately adopted a statute that broadly covers conduct beyond “hacking.” That commonly occurs during the legislative process. See, e.g., State v. Nascimento, 360 Or 28, 44, 379 P3d 484 (2016) (recognizing that the legislature “  ‘may and often does choose broader lan­ guage that applies to a wider range of circumstances than the precise problem that triggered legislative attention’  ” (quoting South Beach Marina, Inc. v. Dept. of Rev., 301 Or 524, 531, 724 P2d 788 (1986))); Hamilton v. Paynter, 342 Or 188 State v. Azar 48, 55, 149 P3d 131 (2006) (“[T]he statutory text shows that, even if the legislature had a particular problem in mind, it chose to use a broader solution.”). That does not mean that we must interpret the statute “in the broadest sense that the text might permit.” Nascimento, 360 Or at 44. Rather, “  ‘legislative history would be a basis on which we appropri­ ately may construe the text more narrowly’  ” if that history “  ‘reveals that the legislature had a narrower understanding of the term in mind, and if that narrower meaning is consis­ tent with the text, even if not compelled by it[.]’  ” Id. (quoting State v. Walker, 356 Or 4, 17, 333 P3d 316 (2014)). Here, the words used in the computer crime stat­ ute—“access” and “use”—broadly apply to a wider range of circumstances than the hacking problem that triggered the legislative enactment in 1985. As explained above, the “narrower meaning” adopted by the majority opinion is inconsistent with the text enacted by the legislature, and as explained below, there is no evidence in the legislative history that the legislature had a narrower understanding of those terms in mind when it included that text in the com­ puter crime statute. In fact, if the legislature were to recon­ sider the computer crime statute in 2024 and wanted to be certain that the statute covered this type of conduct—using a computer to access eBay to sell stolen goods for payments processed through PayPal—it would not need to amend the statute at all. The words in the existing statute—“using” or “accessing” a computer, computer system, or computer net­ work to commit theft (including theft by receiving)—work just fine to encompass that conduct. The legislative history confirms that the legislature did not have a narrower meaning in mind when it defined computer crime to include any use or access of a computer to commit theft. The widespread use of computer technol­ ogy was in its early stages when the bill that became ORS 164.377 was enacted in 1985. When the need for a computer crime bill was initially discussed during a 1981 hearing of the Senate Committee on Justice, Senator Kulongoski asked whether it would be “a fair statement to say that the purpose of the bill is not so much necessarily [the] problems [of] today, as problems that could arise as we move into Cite as 372 Or 163 (2024) 189 an age where we utilize computers more and more[.]” Tape Recording, Senate Committee on Justice, SB 439, Mar 25, 1981, Tape 83, Side B (statement of Sen Ted Kulongoski). Two years later, one witness told the Senate Committee on Judiciary that they were “living during a period of his­ tory which has seen an incredible explosion of technological advances,” and that “[e]very indicator predicts the 1980s to be a decade of overwhelming technological change, proba­ bly exceeding in impact all the years preceding them. In all likelihood, in the next very few years ‘a computer in every home’ will become a reality.” Testimony, Senate Committee on Judiciary, SB 149, Feb 23, 1983, Ex A (statement of Terry Hippenhammer). That witness further explained that col­ leges and universities across the country were consider­ ing requiring all students to own a microcomputer and he broadly described the “potential abuse” that could occur. Id. Another witness described computer crime as “the crime of the future that is rapidly becoming the crime of the pres­ ent.” Testimony, Senate Committee on Judiciary, SB 149, Feb 23, 1983, Ex B (statement of Jim Mattis). Thus, by the time the computer crime legislation passed in 1985, the legislature was aware that its under­ standing of how computers could be “used” or “accessed” to commit crimes was limited and that the technology was changing rapidly. Instead of enacting a law that nar­ rowly addressed “hacking” and related problems that were brought to the legislature’s attention at the time, the legis­ lature chose to broadly define “computer crime” to include “using” or “accessing” a computer for the purpose of com­ mitting theft, regardless of how the computer was used to commit the theft, the nature of the information or property rights obtained or affected by a wrongdoer’s use or access of a computer, or the wrongdoer’s ability to “otherwise access” the property without using a computer. That broad wording does not mean that the leg­ islature necessarily intended “computer crime” to include using a computer in any way to facilitate the commission of a crime. Some uses are so incidental—sending an email to confirm the time and place of a meeting before committing a theft or using the internet to locate a store to shoplift, for 190 State v. Azar example—that it is unlikely that the legislature would have considered them to rise to the level of “computer crime.” But where a defendant’s use of a computer is integral to the operation of a criminal enterprise—the Court of Appeals described defendant’s use of a computer in this case as “the principal mechanism for his extensive fencing operation,” State v. Azar, 318 Or App 724, 738, 508 P3d 668 (2022)—I would conclude that the conduct is covered by the computer crime statute.3 That conclusion is consistent with a common-sense understanding of what it means to “access” or “use” a com­ puter for the purpose of committing a crime. The defendant in this case built a criminal enterprise centered on using a computer to access eBay and PayPal to facilitate his illegal fencing operation. The eBay website allowed defendant to market stolen goods to millions of internet users, something he could not have done without the website and a computer to access it. The PayPal platform allowed defendant to receive payments for those stolen goods without risk, something he could not have done without that internet platform.4 And given the scope of defendant’s fencing operation, using eBay and PayPal instead of selling stolen goods in person may have reduced the risk of attracting the attention of neigh­ bors and law enforcement. Under the majority opinion’s test, using a computer “as a means of accessing the thing that the person seeks unlawfully to obtain” would be a computer crime covered by the statute. 372 Or at 183-84. Thus, under that test, using a computer to obtain stolen goods as part of an illegal fencing operation would be a computer crime but using a computer to sell stolen goods as part of the same criminal enterprise 3  The majority opinion and this dissenting opinion attempt to discern how the legislature intended a statute enacted in 1985 would apply to present day circumstances. Given the evolution of our understanding of how computers can be used to commit crimes, further legislation to clarify what was intended to be a “computer crime” could remove any uncertainty in this area. 4  Without PayPal or a similar internet payment platform, defendant would have to receive payment via the mail—which by its nature involves some risk of loss—or in person. A person receiving payment for stolen goods in those ways runs the risk that a check may bounce, that counterfeit currency may be given, or that the buyer might choose to rob the seller instead of paying for the stolen goods. Cite as 372 Or 163 (2024) 191 would not be a computer crime. The majority opinion cites no evidence in the statutory text, context, or legislative his­ tory for such a distinction, nor does it offer any good reason why the legislature would intend to criminalize as computer crime using a computer to obtain stolen goods but not to sell them. Defendant’s use of a computer to conduct an illegal fencing operation—which is theft by receiving under Oregon law—falls squarely within the conduct that is prohibited by the computer crime statute. The majority opinion’s contrary conclusion based on its narrow interpretation of the statute is, in my view, wrong. Accordingly, I respectfully dissent. Garrett, J., and Balmer, S.J., join in this dissenting opinion.

a80d64743e62a0339d1a13e9f57932b90f099db82a4644347d9018b0f67c7a8e

2024-04-11T00:00:00Z

e538e5b6-a604-40cc-a0a9-096e6bfabd2e

Sizemore/Bosak v. Myers (Certification)

oregon

Oregon Supreme Court

Filed: August 24, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON BILL SIZEMORE, Petitioner, v. HARDY MYERS, Attorney General for the State of Oregon, Respondent. _____________________________ TRICIA BOSAK and JAMES SAGER, Petitioners, v. HARDY MYERS, Attorney General for the State of Oregon, Respondent. (SC S48390; S48391) (Consolidated for Opinion) On modified ballot title filed August 16, 2001.* Janet A. Metcalf, Assistant Attorney General, Salem, filed the Filing of Modified Ballot Title for respondent. With her on the filing were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. No appearance contra. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). * Sizemore/Bosak v. Myers, 332 Or 335, ___ P3d ___ (2001) (referring ballot title for modification). The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 28 (2002), failed to comply substantially with statutory standards. Sizemore/Bosak v. Myers, 332 Or 335, ___ P3d ___ (2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 28 (2002) states: "AMENDS CONSTITUTION: ELIMINATES BY 2007 MOST RESIDENTIAL PROPERTY TAXES SENIORS PAY; REQUIRES GOVERNMENT PAYMENT TO SENIOR RENTERS "RESULT OF 'YES' VOTE: 'Yes' vote first incrementally reduces, then within five years eliminates, most residential property taxes seniors pay; also requires counties to make payments to senior renters. "RESULT OF 'NO' VOTE: 'No' vote retains current property tax laws; rejects proposal to eliminate within five years most property taxes seniors pay, and to require payments to renters. "SUMMARY: Amends Oregon Constitution. Current laws tax residential property owners equally, but allow low income seniors to defer property taxes. Measure would eliminate within five years most property taxes on seniors' primary residence. Measure does not affect temporary voter-approved property taxes. Maximum tax reduction is 150 percent of property tax due on average home in same county as taxpayer's primary residence. In first year, seniors 80 and older receive maximum reduction; seniors 65- 79 receive 25 percent reduction. By fifth year, seniors 65 and older receive maximum reduction. Measure also would require counties to pay senior renters amount equal to tax reduction they would have received as owners. Measure would reduce revenues available for schools and other government services funded by property taxes. Other provisions." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9)

f3f6b4ad28ec06607bc8f71db92cd05afed903fee5418c72569ceb518a7187f5

2001-08-24T00:00:00Z

f53a4536-1bc3-41e1-8947-4a41828c72bc

Pennzoil Co. v. Dept. of Rev.

S47561

oregon

Oregon Supreme Court

FILED: October 4, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON PENNZOIL COMPANY AND SUBSIDIARIES, Appellants, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. (OTC 4301; SC S47561) On appeal from the Oregon Tax Court.* Carl N. Byers, Judge. Argued and submitted March 2, 2001. Paul H. Frankel, of Morrison & Foerster LLP, New York, New York, argued the cause for appellants. Carol Vogt Lavine and Timothy R. Volpert, of Davis Wright Tremaine LLP, Portland, filed the briefs for appellants. Marilyn J. Harbur, Assistant Attorney General, Salem, argued the cause for respondent. With her on the briefs was Hardy Myers, Attorney General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs and De Muniz, Justices.** DE MUNIZ, J. The judgment of the Tax Court is affirmed. *15 OTR 101 (2000). **Balmer, J., did not participate in the consideration or decision of this case. DE MUNIZ, J. The issue in this tax case is whether proceeds that taxpayer Pennzoil Company (Pennzoil) received in settlement of a tort judgment constitute business income under Oregon's tax code and, if so, whether apportionment of that income is constitutionally permissible. The Tax Court held that the proceeds were apportionable business income. Pennzoil Co. v. Dept. of Rev., 15 OTR 101 (2000). For the reasons that follow, we affirm. The facts are drawn from the parties' stipulations and the Tax Court's findings. In January 1984, Pennzoil agreed to purchase 3/7 of Getty Oil (Getty) stock. In return, Getty agreed to place Pennzoil officers in key positions on the Getty board of directors. The agreement provided that Pennzoil and the Getty Trust would be the sole owners of Getty, holding 3/7 and 4/7 of the company respectively. Another term of the agreement provided for the two shareholders to divide Getty's assets if Pennzoil and the Trust could not agree on a plan to restructure the company; those assets included Getty's substantial and proven oil and gas reserves. A short time later, Pennzoil was surprised by a public announcement that Texaco had acquired all of Getty's stock. Pennzoil first sued Getty for specific performance in Delaware. After losing that action, Pennzoil sued Texaco in Texas for tortious interference with a contract. In that action, Pennzoil claimed damages based on the loss of its bargain with Getty in an amount equal to the cost of finding and developing one billion barrels of oil reserves. A jury awarded Pennzoil more than $11.1 billion, including $3 billion in punitive damages. Texaco filed for Chapter 11 bankruptcy protection and, following a period of negotiation, Pennzoil agreed to accept $3 billion in satisfaction of the outstanding judgment. Pennzoil received the settlement proceeds under a carefully structured payment plan, initially investing the money in high-grade securities. (1) Pennzoil segregated the securities from ordinary operating business accounts so that it could avoid classification as an "investment company" under federal securities law and take advantage of a federal tax exemption for income received by "involuntary conversion." The latter strategy was only partially successful. The Internal Revenue Service (IRS) applied the exemption to part of the proceeds, but decided that approximately $2.1 billion was taxable income for 1988. The question here is whether Oregon may apportion, for tax purposes, that $2.1 billion. Pennzoil's only activity in Oregon during the 1988 tax year was the operation of a facility designed to blend, package, and distribute motor oil and related automotive products. None of Pennzoil's Oregon employees played a role in the Texas litigation or the negotiations that followed. In 1988, and the two years preceding, the Oregon facility operated at a reported loss. Pennzoil's 1988 Oregon tax return treated the settlement proceeds as nonbusiness income. However, the Department of Revenue (department) disagreed and assessed an additional corporate excise tax based on Oregon's share of the $2.1 billion. These proceedings ensued. The Tax Court held that the proceeds were business income, subject to apportionment under ORS 314.650 (1987), (2) because: (1) the income arose from Pennzoil's agreement with Getty Oil; (2) Pennzoil's purpose in negotiating the Getty contract was to acquire some of Getty's oil reserves; (3) Pennzoil is in the business of acquiring and developing oil and gas reserves; (4) negotiating the contract with Getty was therefore in the regular course of Pennzoil's business; (5) the transaction with Getty was inherently an integral part of Pennzoil's regular business; and (6) income arising from that transaction was apportionable as business income under the Uniform Division of Income for Tax Purposes Act (UDITPA), ORS 314.605 to 314.670 (1987). Pennzoil challenges the Tax Court's ruling in three assignments of error. First, Pennzoil asserts that the Tax Court erred in determining that the proceeds were "business income." Second, Pennzoil asserts that the Due Process and Commerce Clauses of the United States Constitution prohibit Oregon from taxing the proceeds. Finally, Pennzoil asserts that the Tax Court erred by apportioning the proceeds under ORS 314.670 (1987) in a manner that grossly and unconstitutionally distorts Pennzoil's activity in Oregon. We begin with Pennzoil's statutory argument. See Stelts v. State, 299 Or 252, 257, 701 P2d 1047 (1985) (pertinent statutes are considered before state and federal constitutions). Income earned outside Oregon may be apportioned if it is "business income." However, "nonbusiness income" that is earned elsewhere may not be apportioned. (3) Pennzoil asserts that the proceeds are "nonbusiness income" and, therefore, not subject to apportionment. "Nonbusiness income" is defined as "all income other than business income." ORS 314.610(5) (1987). "Business income" is "income arising from transactions and activity in the regular course of the taxpayer's trade or business and includes income from tangible and intangible property if the acquisition, the management, use or rental, and the disposition of the property constitute integral parts of the taxpayer's regular trade or business operations." ORS 314.610(1) (1987). Previously, this court has recognized that ORS 314.610(1) has two parts: (1) income derived from "transactions and activity in the regular course of the taxpayer's trade or business[;]" and (2) income derived from property "if the acquisition, the management, use or rental, and the disposition of the property constitute integral parts of the taxpayer's regular trade or business operations." Willamette Industries, Inc. v. Dept. of Rev., 331 Or 311, 316, 15 P3d 18 (2000). Each part involves a separate test: part one requires a "transactional test" and part two requires a "functional test." If the income in question satisfies either test, then it may be apportioned as "business income." Id. Under the transactional test, "business income" is "income arising from transactions and activity in the regular course of the taxpayer's trade or business." The first question, therefore, is: What transaction or activity gave rise to the disputed income? See Hoechst Celanese Corporation, v. Franchise Tax Board, 106 Cal Rptr 2d 548, 563, 22 P3d 324 (2001) (nature of transaction or activity that gave rise to income is critical factor); Western Natural Gas Co. v. McDonald, 202 Kan 98, 101, 446 P2d 781 (1968) (same). In addressing that question, we may consider the frequency or regularity of the transaction and how the income created by the transaction is used. Kemppel v. Zaino, 91 Ohio St 3d 420, 422, 746 NE2d 1073 (2001); Hoechst, 106 Cal Rptr 2d at 563. Here, the parties do not agree on what transaction or activity gave rise to the settlement proceeds. Pennzoil contends that the settlement proceeds arose from Texaco's tortious interference with the contract between Pennzoil and Getty. The department, however, asserts that the agreement itself gave rise to the proceeds. The Tax Court agreed with the department, concluding that "it does not matter whether the contract was sold, stolen, condemned, interfered with, or canceled; the income realized from it by Pennzoil was income 'arising from' that contract." 15 OTR at 109 (emphasis added). Pennzoil challenges the Tax Court's decision, arguing that that court ignored several important facts, including: (1) Texaco's agreement to indemnify Getty for any litigation arising out of the earlier deal between Getty and Pennzoil; (2) Texaco's bankruptcy; and (3) Texaco's creditors opposition to Pennzoil's efforts to enforce the judgment. Those facts, Pennzoil contends, illustrate that Texaco's conduct gave rise to the jury award and, ultimately, the settlement proceeds. For many years, courts determining the tax consequences of income received through litigation or settlement have asked: "In lieu of what were the damages awarded?" See, e.g., Raytheon Production Corporation v. Commissioner of Internal Revenue, 144 F2d 110, 113 (1st Cir 1944) (discussing that recoveries that represent a reimbursement for loss of profits are "income"); see also Getty v. Commissioner of Internal Revenue, 913 F2d 1486, 1490 (9th Cir 1990) (maintaining that any accession to wealth received by taxpayer is presumed to be gross income includable in taxpayer's return); accord Simpson Timber Company v. Dept. of Rev., 326 Or 370, 375, 953 P2d 366 (1998) (condemnation proceeds treated as income from voluntary sale of asset held by taxpayer for purpose of producing "business income"). Substantial evidence supports the Tax Court's finding that Pennzoil sought damages against Texaco based on the loss of its contract with Getty. See ORS 305.445 (setting out substantial evidence standard of review). We conclude that Pennzoil received the settlement proceeds in lieu of its agreement with Getty and that the agreement gave rise to the disputed income. The second question under the transactional test is: Did the agreement with Getty occur in the "regular course of [Pennzoil's] trade or business?" Again, we may consider the frequency or regularity of the transaction, and how Pennzoil used the resulting income. Kemppel, 91 Ohio St 3d at 422, Hoechst, 106 Cal Rptr 2d at 563. Pennzoil contends that the agreement with Getty was for stock, a transaction that Pennzoil characterizes as infrequent, irregular, and not in the course of its trade or business. The department, on the other hand, observes that during Pennzoil's action against Texaco, Pennzoil repeatedly emphasized that the reason for its agreement with Getty was to gain access to Getty's oil reserves. That objective was reflected by a provision requiring Getty's assets to be distributed in the event that the two shareholders could not agree on a plan to restructure the company. Because Pennzoil's purpose was to acquire access to (or possession of) Getty's oil reserves, the department argues, it is reasonable to conclude that Pennzoil made the agreement in the regular course of its business, i.e., extracting, processing, and selling petroleum, natural gas and minerals. The frequency or regularity of a given transaction or activity may be considered but is not determinative of whether that transaction is in the "regular course of the taxpayer's trade or business"; neither is the manner in which the taxpayer spends income created by that transaction. Thus, even if it is rare for Pennzoil to purchase stock in other oil companies -- an argument weakened by the fact that Pennzoil used the settlement proceeds to acquire nine percent of Chevron Oil, Katz, 22 Cal App 4th at 1362 -- we are persuaded that steps taken to acquire an interest in established oil reserves are steps taken in the "regular course of [Pennzoil's] trade or business." The Tax Court's finding that Pennzoil sought and received damages from Texaco based on the cost of developing one billion barrels of oil reserves supports that conclusion. We conclude that the proceeds are business income under the transactional test. Accordingly, it is unnecessary to apply the functional test. Having resolved the statutory question, we turn to Pennzoil's second assignment of error. Pennzoil argues that Oregon's apportionment of the proceeds violates limitations imposed under the Due Process and Commerce Clauses of the United State Constitution. Under those clauses, states may tax income that is earned elsewhere only if there is "some definite link, some minimum connection, between [the taxing] state and the person, property or transaction it seeks to tax." Miller Brothers Co. v. Maryland, 347 US 340, 344-45, 74 S Ct 535, 98 L Ed 744 (1954). The constitutional parameters for taxing nondomiciliary corporations are defined by the unitary business principle that permits states to "tax a corporation on an apportionable share of the multistate business carried on in part in the taxing State." Allied Signal, Inc. v. Director, Division of Taxation, 504 US 768, 778, 112 S Ct 2251, 119 L Ed 2d 533 (1992). The unitary business principle supports a basis for apportionment. Specifically, states may apportion capital transactions that serve an operational function. Allied Signal, 504 US at 787. Taxpayers challenging apportionment must prove that "the income was earned in the course of activities unrelated to [those carried out in the taxing] State." Id. (quoting Mobile Oil Corp. v. Commissioner of Taxes of Vt., 445 US 425, 439, 100 S Ct 1223, 63 L Ed 2d 510 (1980) (brackets in original)). Pennzoil argues that its unitary business was unaffected by the agreement with Getty or by Texaco's interference with the agreement and that the disputed income has no role in Pennzoil's Oregon operations. We are not persuaded. As already explained, the agreement between Pennzoil and Getty generated $2.1 billion of income that Texaco paid in lieu of Pennzoil's right to acquire an interest in Getty's oil reserves. The acquisition of oil reserves is related -- indeed is vitally important -- to the continued blending and distribution of motor oil in Oregon. See Corn Products Refining Co. v. Commissioner, 350 US 46, 50, 76 S Ct 20, 100 L Ed 29 (1955) (taxpayer's purchase of corn futures to insure adequate supply of raw material was "vitally important to the company's business"). Pennzoil has failed to meet its burden. The disputed income arose from activity that serves an operational function and, therefore, Oregon may apportion that income. Pennzoil's third and final assignment of error asserts that its 1988 assessed tax liability in Oregon is unconstitutional because it is out of proportion with the amount of business it actually did in the state. Pennzoil argues that formulary apportionment of the proceeds is per se unconstitutional, because it results in a tax liability that is approximately 844% larger than it would have been under a separate accounting method. (4) As we understand Pennzoil's argument, Oregon must sever large capital transactions from unitary business income, because state apportionment of business income is limited to business income generated within the state. In other words, Pennzoil argues that the unitary business principle does not apply to large capital transactions. Our answer to Pennzoil's argument mirrors the Tax Court's. First, we disapprove of the separate accounting method that Pennzoil advocates. Indeed, the difficulty in applying a separate accounting method to a multistate business is the very reason for apportionment and the unitary business principle. Second, if Oregon could sever a single capital transaction from unitary business income simply because apportionment of that income would result in distortion, then there would be little point in maintaining the unitary business principle. Pennzoil's unitary business succeeded in 1988 largely because of the settlement proceeds received from Texaco. In 1988, Pennzoil conducted part of its unitary business in Oregon. As a result, Oregon is entitled to apportion the settlement proceeds as unitary business income. The judgment of the Tax Court is affirmed. 1. Pennzoil eventually used the proceeds to purchase about nine percent of Chevron Oil's common stock. See Katz v. Chevron Corporation, 22 Cal App 4th 1352, 1362, 27 Cal Rptr 2d 681 (1994) (shareholder derivative suit challenging corporate directors' defensive strategy in dealing with Pennzoil's purchase of 31.5 million shares for $2.1 billion). 2. ORS 314.650(1) (1987) provides: "(1) All business income shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is three." 3. Under UDITPA, "nonbusiness income" is allocated entirely to the state in which it was earned. ORS 314.625 to 314.645 (1987). 4. In support of its argument, Pennzoil relies on Hans Rees' Sons v. North Carolina ex rel Maxwell, 283 US 123, 51 S Ct 385, 75 L Ed 879 (1931), in which the Supreme Court held that, although the taxpayer's business was unitary, the statutory apportionment method operated "unreasonably and arbitrarily," because it attributed to the taxing state "a percentage of income out of all appropriate proportion to business transacted" in the state. Id. at 135. Modernly, Hans Rees' is of limited value because Oregon, like the majority of states, has a multi-factor apportionment formula and, so far, the Court has refused to test the application of a multi-factor apportionment formula to a unitary multistate business by the principles of separate accounting. See Development in the Law -- Federal Limitations on State Taxation of Interstate Business, 75 Harv L Rev 955, 1015 (1962) (discussing judicial treatment of apportionment formulas).

841c79387ff67c388bfc1eeff4d8ec1b54d883d5349722ceee15cc13637fdce6

2001-10-04T00:00:00Z

d8901a38-3023-4d8e-b59d-cdd377e8434c

Johnson v. Eastern Oregon State College

S48663

oregon

Oregon Supreme Court

Filed: October 25, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON In the Matter of the Compensation of Barbara Johnson, Claimant. BARBARA JOHNSON, Petitioner on Review, v. EASTERN OREGON STATE COLLEGE and SAIF CORPORATION, Respondents on Review. (WCB 95-07224, 95-05888; CA A98381; SC S48663) En Banc On petition for review filed June 27, 2001.* Christopher D. Moore, Malagon, Moore, Johnson & Jensen, Eugene, filed the petition for petitioner on review. No appearance contra. MEMORANDUM OPINION The appellate judgment is recalled. The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of Koskela v. Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000). *Judicial review from the Workers' Compensation Board, 159 Or App 663, 978 P2d 451 (1999).

3c270c8cb2f6cf804e5b688cf9a452b7143baba6d77d0add48000006b624d29c

2001-10-25T00:00:00Z

3357affe-bf5e-45a2-b729-65bf3ad3f548

Mount v. DCBS

S48664

oregon

Oregon Supreme Court

FILED: October 4, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON In the Matter of the Compensation of Cindy Mount, Claimant. CINDY M. MOUNT, Petitioner on Review, v. DEPARTMENT OF CONSUMER AND BUSINESS SERVICES and SAIF CORPORATION, Respondents on Review. (WCB 99-06487, CA A103636; SC S48664) On petition for review filed July 12, 2001.* Christopher D. Moore, Eugene, filed the petition for petitioner on review. No appearance contra. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.** MEMORANDUM OPINION The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of Koskela v. Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000). *Judicial Review from the Workers' Compensation Board. 161 Or App 664, 986 P2d 28 (1999). **Balmer, J., did not participate in the consideration or decision of this case.

cad0afd491d03eed118ffbc1fb12dfc1a4ced4d47b22b795e8821ee946f73b40

2001-10-04T00:00:00Z

49bcb528-4ecd-4c49-924b-20adb6894828

Novick v. Myers (S48605)

oregon

Oregon Supreme Court

Filed: August 9, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48605) En Banc On petition to review ballot title. Submitted on the record July 19, 2001. Steven Novick, in propria persona, filed the petition. Douglas F. Zier, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. GILLETTE, J. Ballot title referred to Attorney General for modification. GILLETTE, J. This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, denominated by the Secretary of State as Initiative Petition 48 (2002). The proposed measure, if adopted, would phase in a revenue sharing procedure in which 15 percent of state personal and corporate income tax revenue would be distributed "to local governments and those local service districts providing essential services." Petitioner is an elector who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore is entitled to seek review in this court. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). ORS 250.085(5). Petitioner challenges only the "yes" result statement in the Attorney General's ballot title. That statement provides: "'Yes' vote requires distribution of fifteen percent of all state income tax revenue to some local governments, service districts that do not tax business income." A "yes" result statement must set out a "simple and understandable statement of not more than 25 words that describes the result if the state measure is approved." ORS 250.035(2)(b). Petitioner asserts that the Attorney General's "yes" result statement fails to comply with the requirements of ORS 250.035(2)(b), in that it suggests -- incorrectly -- that the only local governments that are eligible to receive shared tax revenues are those governments that do not themselves tax business income. In fact, as petitioner points out, several such governments will be qualified to receive shared tax revenues, but their ordinary share will be reduced by the amount that they raise through their own local taxes on personal or business income, revenue, or profits. The Attorney General concedes that petitioner's criticism of the "yes" result statement is well taken, and we agree. We hold that the Attorney General's "yes" result statement fails to comply substantially with the requirements of ORS 250.035(2)(b). Under ORS 250.085(8), Or Laws 2001, ch 802, § 2 (House Bill 2213 (2001), section 2), the ballot title is referred to the Attorney General for modification. See Flanagan v. Myers, 332 Or 318, ___ P3d ___ (2001) (explaining procedure under 2001 legislative amendments to ORS 250.085). Ballot title referred to Attorney General for modification.

2924114dd0dd5d38b81d73b222bce2171ddfe5d04fde0a93a54f26398e2bd0d4

2001-08-09T00:00:00Z

96a85300-da7b-4785-8a6b-fc5ffce71435

State v. Peppard

S48401

oregon

Oregon Supreme Court

Filed: October 25, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. JOHN H. PEPPARD, Petitioner on Review. (CC 951127; CA A93616; SC S48401) On petition for review filed April 18, 2001.* David Groom, Oregon Public Defender, and Rebecca Duncan, Deputy Public Defender, Salem, filed the petition for petitioner on review. No appearance contra. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs and De Muniz, Justices.** MEMORANDUM OPINION The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of State v. Fugate, 332 Or 195, 26 P3d 802 (2001). *Appeal from Clatsop County Circuit Court, Paula Brownhill, Judge. 172 Or App 311, 18 P3d 488 (2001). **Kulongoski, J., resigned June 14, 2001, and did not participate in the consideration or decision of this case. Balmer, J., did not participate in the consideration or decision of this case.

c3de2daa573a4c01d371d9a5affc0216c7c4428edf6695021a2d98391a91d22c

2001-10-25T00:00:00Z

bd2ad4f6-4c3d-45ef-a173-81710fe3c12b

State v. Suter

S48779

oregon

Oregon Supreme Court

Filed: October 25, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. STEVEN MICHAEL SUTER, Petitioner on Review. (CC 96-1052; CA A95862; SC S48779) On petition for review filed August 21, 2001.* Mary M. Reese, Deputy Public Defender, Salem, filed the petition for petitioner on review. With her on the petition was David E. Groom, State Public Defender. No appearance contra. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.** MEMORANDUM OPINION The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of State v. Fugate, 332 Or 195, 26 P3d 802 (2001). *Appeal from Clackamas County Circuit Court, Robert R. Selander, Judge. 157 Or App 107, 969 P2d 1035 (1998). **Balmer, J., did not participate in the consideration or decision of this case.

1e3aa95655a19b2d2fe253659767cc4fd20356dc358e40ff18a7b99cb6fccad9

2001-10-25T00:00:00Z

d41cc46c-06b0-45f8-8a48-95a2d4baf9ea

State v. Cook

S47104

oregon

Oregon Supreme Court

FILED: October 18, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. JEFFREY DALE COOK, Petitioner on Review. (CC 1396-08502; CA A99394; SC S47104) On review from the Court of Appeals.* Argued and submitted March 6, 2001. Dan Maloney, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the briefs was David E. Groom, Public Defender. Jennifer Scott Lloyd, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.** DE MUNIZ, 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 Lane County Circuit Court, Lyle C. Velure, Judge. 163 Or App 24, 986 P2d 1228 (1999). **Kulongoski, J., resigned June 14, 2001, and did not participate in the consideration or decision of this case. Balmer, J., did not participate in the consideration or decision of this case. DE MUNIZ, J. This is a criminal case in which defendant was convicted of possession of methamphetamine, ORS 475.992(4)(b) (1995), which the police found during a warrantless search of some clothing and a duffel bag. The Court of Appeals held that "defendant had a privacy and possessory interest in the bag and its contents before the bag was searched," but that suppression of the evidence was not required, because "defendant had abandoned his interests * * * in the bag before the search occurred." State v. Cook, 163 Or App 24, 31, 34, 986 P2d 1228 (1999). We allowed defendant's petition for review and now reverse the decision of the Court of Appeals. The parties agree with the Court of Appeals' recitation of the facts, which we set out below: "During the hearing on the motion to suppress, Officers Petermen and Reynolds testified that on September 8, 1996, at 1:30 a.m., they went to an apartment complex after they were advised through a radio dispatch of two persons possibly trying to commit thefts from vehicles. The officers testified that they did not know the name of the caller who had informed the police department of the two suspects and did not recall descriptions of the suspects. Both officers began looking for the suspects in the parking area of the complex. Although Officer Petermen saw no broken glass, he testified that windows are not always broken when items are stolen from cars. Subsequently, for approximately two minutes, Officer Petermen observed defendant, who was bent down next to a garbage dumpster adjacent to the parking area in the process of sorting clothing into a duffel bag. Defendant's back was toward the officer. The dumpster was in a semi-enclosed area. Officer Petermen testified that, based on defendant's behavior, 'it seemed reasonable to believe that the actions that he was doing would be something consistent with somebody who had committed a theft from a vehicle.' Consequently, Officer Petermen testified that he 'contacted [defendant] in the doorway [to the area containing the dumpster], asked [defendant] to step out, [and they] backed down the hallway.' Defendant complied, after leaving the bag and clothing on the ground. "Officer Petermen testified: "'A. Initially I asked [defendant] what it was he was doing. He told me he had been out for a walk when he discovered a pile of clothing there and he thought he may be able to use some of the clothing and so he was going through the clothing to find items which he may be able [to] use. "'Q. Did he say whether the clothing or the bag or anything in there was his? "'A. He said none of the items that he had been handling were his except a green army jacket also in there lying down.' "Officer Reynolds also recalled that defendant originally 'denied that any of the property in there was his and that he had just found all the stuff inside and was going through it to see what he wanted to take home.' "Subsequently, Officer Petermen returned to the enclosure where the dumpster was located. During that time, defendant remained outside with Officer Reynolds. When Officer Petermen searched the bag, he "'found clothing, [a] magazine and a syringe with a kitchen-type knife bound together with string as well as two silver spoons, one contained a white powder substance with a small piece of white colored wadding along with a second silver spoon, clear plastic baggie and a Snickers candy bar.' "Officer Petermen also found the name, 'Doreen Cook,' written on the inside of the bag. Thereafter, the officer returned to defendant, who again denied that the bag was his. After Officer Petermen ascertained that the name of defendant's wife was Doreen Cook and indicated to defendant that that name was on the bag, defendant admitted that the bag was his." State v. Cook, 163 Or App at 26-27. Before trial, defendant moved to suppress the evidence, arguing that the seizure and search of the bag and clothing violated his privacy and possessory interests under Article I, section 9, of the Oregon Constitution. The trial court denied defendant's motion, ruling that: "[T]he officer had probable cause to suspect that a crime had been committed and that the search of the duffel bag was reasonable under the totality of the circumstances, particularly since the defendant initially denied ownership of the bag prior to the search[.]" The trial court added that "it was completely appropriate for the officers to determine ownership of the bag, not only to return the bag to the appropriate owner but [also] to determine if [defendant's possession of] the bag had indeed been [the] result of some type of [theft]." (1) The Court of Appeals held that "it is clear that defendant had a privacy and possessory interest in the bag and its contents before the bag was searched." 163 Or App at 31. The court also noted that "[i]t is uncontroverted that the bag belonged to [defendant] or to his wife." Id. That court framed the issue as "whether defendant's disclaimer of ownership should be held to be an abandonment of his protected interests in the bag," a question that the court stated "turns on whether defendant intended to forego exercising his possessory and privacy interests in the bag." Id. at 32. The Court of Appeals held that, under the circumstances, defendant evidenced an intent to abandon his interest in the bag and clothing before the search took place, and sustained the ruling of the trial court on that ground. Id. at 34. On review, defendant argues that his "disclaimer of ownership" did not constitute an abandonment of his constitutionally protected possessory and privacy interest in the property. Article I, section 9, of the Oregon Constitution, provides that "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 state agrees that the duffel bag and the clothing that defendant sorted into the bag were effects protected from unreasonable search and seizure under Article I, section 9. The state also agrees that defendant had a possessory and privacy interest in the bag and the clothing before the bag was seized and searched. See State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986) (Article I, section 9, protects privacy and possessory interests). The state contends, however, that defendant "relinquished any possessory or privacy interest in the bag and its contents, by leaving the items on the ground when he agreed to talk to the officer, walking away from them and repeatedly denying that the items were his." In State v. Morton, 326 Or 466, 470, 953 P2d 374 (1998), this court recognized that individual privacy rights can be "lost if, for example, the facts showed that the defendant had abandoned the container before the police seized it." In Morton, however, this court rejected the state's abandonment argument because the defendant had dropped the container (containing methamphetamine) as she was being seized under an invalid arrest warrant. Under the circumstances, to have allowed the evidence to be used against the defendant would have permitted the police to exploit an illegal arrest. Id. Although Morton is the most recent case in which this court considered the abandonment of property and its potential impact on individual possessory and privacy interests under Article I, section 9, this court previously dealt with this issue in a number of cases. For example, in State v. Purvis, 249 Or 404, 411, 438 P2d 1002 (1968), a case decided under both the Fourth Amendment and Article I, section 9, (2) the defendant sought to suppress evidence that police had obtained from hotel maids who had removed the evidence from ash trays and waste baskets of a hotel room that the defendant had occupied. This court rejected the defendant's privacy arguments, stating: "Defendant's claim to privacy terminated with respect to items discarded by him and which he impliedly authorized to be hauled away. * * * * * * * * "The objects which defendant deposited in the ash trays and waste baskets can be regarded as abandoned property." 249 Or at 410-11. In State v. Belcher, 306 Or 343, 759 P2d 1096 (1988), the defendant engaged in a fight at a tavern and ran from the scene before the police arrived, leaving behind a backpack. After reciting the trial court's findings that the defendant had "[left] the pack behind; [with] no indication when if ever he decided to return for it," this court agreed with the state's argument that the defendant had abandoned the backpack and that a police search for identification in the backpack did not violate Article I, section 9, or the Fourth Amendment. Id. at 345-46. State v. Pidcock, 306 Or 335, 759 P2d 1092 (1988), involved a briefcase that was found along the side of a road and turned over to the police, who searched it for identification. Although this court concluded that the police search for identification did not violate the defendant's privacy rights under Article I, section 9, the court rejected the state's argument "that [the] defendant 'abandoned the property in a constitutional sense,'" holding: "Defendant did not 'abandon' the briefcase until after the deputies had opened the briefcase and opened the envelopes [found within the briefcase] and tested their contents without a warrant. When the deputies opened the briefcase and tested the contents, defendant was still actively attempting to recover that property." 306 Or at 339. Three important points emerge from the cases discussed above. First, the determination whether a defendant has relinquished a constitutionally protected interest in an article of property involves both factual and legal questions, which this court reviews in the same manner that it reviews other search or seizure questions arising under Article I, section 9. See State v. Bea, 318 Or 220, 230, 864 P2d 854 (1993) (court will not disturb trial court's findings of historical fact if evidence supports them; however, court not bound by trial court's ultimate holding on voluntariness of consent to search, but assesses anew whether facts suffice to meet constitutional standards). Second, because Article I, section 9, protects both possessory and privacy interests in effects, property law concepts of ownership and possession are relevant, though not always conclusive, in the factual and legal determination whether a defendant relinquished all constitutionally protected interests in an article of property. Finally, for constitutional purposes, the question to be resolved in the present case is whether the defendant's statements and conduct demonstrated that he relinquished all constitutionally protected interests in the articles of property, so that both the warrantless seizure of the property and the resultant search by the police were reasonable under Article I, section 9. We now answer that question in this case. Because the police did not have a warrant to seize and search the items, the state had the burden of showing by a preponderance of the evidence that the seizure and search were reasonable under Article I, section 9. ORS 133.693 (4); see State v. Tucker, 330 Or 85, 997 P2d 182 (2000) (state failed to prove by preponderance of evidence that defendant lacked protected interest in camera case left in automobile in which defendant had been passenger). Here, as noted earlier, the state agrees that defendant had a possessory and privacy interest in the bag and the clothing before they were seized and searched. The state argues, however, that defendant lost or relinquished his constitutionally protected interests in the bag and clothing because he left those items on the ground when he agreed to talk to the officer, he walked away from the items, and he repeatedly denied ownership of the items. For the following reasons, we reject the state's argument. Defendant's only statements before the seizure and search occurred were that he discovered the pile of clothing, that the items, with the exception of an army jacked, were not his, and that he was going through the clothing to find items that he might have been able to use. The statements were responsive to Officer Petermen's inquiry as to what defendant was doing with the bag and clothes, and permitted the officers reasonably to conclude that defendant did not own the bag and clothing. The fact that defendant told the officers that he did not own the bag and clothes did not, however, permit the officers to conclude that defendant intended to relinquish all his constitutionally protected interests in those items. Although defendant had relinquished his immediate physical possession of the bag and clothing by leaving them on the ground, undisputedly he did so only after Officer Petermen instructed him to "step out" of the area near the dumpster where defendant was sorting the clothes into the bag. Leaving the items on the ground in compliance with the officer's request to "step out" is not conduct demonstrating an intent permanently to relinquish possession of the items or the privacy interests that accompanied the right to possess them. Under those circumstances, the officers could not have reasonably concluded that defendant intended to relinquish his possessory and privacy interests in the clothing and the bag. Thus, the seizure of the clothing and bag followed by the immediate search of those items violated defendant's possessory and accompanying privacy interests protected by Article I, section 9. See Owens, 302 Or at 207 ("The seizure of an article by the police and the retention of it (even temporarily) is a significant intrusion into a person's possessory interest in that 'effect.'"). Because the warrantless seizure and search of the bag and clothing was unlawful, 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 the circuit court for further proceedings. 1. On review, the state does not argue that the officers had probable cause to seize and search items for evidence of a crime, or that the officers legally were entitled to seize and search the items to determine their ownership. 2. The only reference in Purvis to the Oregon Constitution is the phrase, "a seizure of the property would violate the Fourth Amendment and its counterpart in our own constitution." 249 Or at 409.

60a3bb7516e76a14ed666f26962e8cf8eaba80252a1eed83fa94c8ec88b8a740

2001-10-18T00:00:00Z

f85a0b8f-b97e-4e82-89c8-e57ca2a7b65c

Shaw v. PACC Health Plan, Inc.

322 Or. 392, 908 P.2d 308

oregon

Oregon Supreme Court

908 P.2d 308 (1995) 322 Or. 392 Ronald E. SHAW, By and Through Thomas Zollner, Personal Representative of the Estate of Ronald E. Shaw, deceased, Respondent on Review, v. PACC HEALTH PLAN, INC., an Oregon corporation, Petitioner on Review, and United Employer Benefit Corporation, an Oregon corporation, Respondent, and Holly Hart, dba Old Wives' Tales Restaurant, Defendant. CC 9106-04101; CA A76072; SC S41799. Supreme Court of Oregon, In Banc. Argued and Submitted May 1, 1995. Decided December 29, 1995. *310 I. Franklin Hunsaker, of Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, argued the cause for petitioner on review. With him on briefs were Chrys A. Martin and Lori R. Metz. Cynthia L. Barrett, Portland, argued the cause and filed the brief for respondent on review. Jeffrey C. Carey, Portland, filed a brief on behalf of amici curiae American Council of Life Insurance, Health Insurance Association of America, and Standard Insurance Company. With him on the brief were Phillip E. Stano and Theresa L. Sorota, Washington, D.C. CARSON, Chief Justice. The issue in this case is whether the trial court correctly granted the motion of defendant PACC Health Plan, Inc. (hereinafter "PACC"), for summary judgment on the ground that plaintiff's[1] state claims were preempted by the federal Employee Retirement Income Security Act (ERISA). 29 U.S.C. § 1001 et seq. Defendant Holly Hart (hereinafter "employer") operates a restaurant in which she employed plaintiff as a server. In 1990, employer decided to purchase health insurance for her employees, and hoped to obtain health coverage for her employees by January 1991. She began working with an insurance broker, Mary Hummel (hereinafter "the broker"), who was employed by defendant United Employer Benefit Corporation (hereinafter "UEBC"), to investigate various plans. In August 1990, the employees completed medical history forms, which employer gave to the broker. The broker submitted those medical history forms, along with other application materials, to one insurance carrier. That carrier approved the group's application in October 1990, and provided an estimate for the cost of coverage. Over the next two months, employer reviewed that carrier's plan information, as well as information from several other carriers, including PACC. In comparing the plans, employer realized that the first carrier's deductible for each employee was twice as high as PACC's, despite the fact that both carriers would charge employer identical premiums for each employee. Consequently, on December 26, 1990, the broker gave employer an application form for PACC's health plan. Employer completed the application form, but the employees did not complete updated medical history forms. Instead, employer redated the medical history forms that the employees had completed in August 1990 to December 1990. The broker then submitted the application and the redated medical history forms to PACC.[2] The broker told employer that her employees' health coverage should begin by January 1, 1991. PACC received employer's application and the employees' medical history forms on January 2, 1991. A senior medical underwriter preliminarily approved the application and forwarded it to her supervisor, the director of underwriting, for routine review. However, before the application had received final *311 approval, plaintiff, one of the employees who was to be covered under the proposed plan, became ill and was hospitalized on January 9, 1991. His diagnosis was a respiratory condition known as pneumocystis, a condition that often occurs in people with Acquired Immune Deficiency Syndrome (AIDS). Plaintiff tested positive for Human Immunodeficiency Virus (HIV) at that time. On January 10, 1991, when employer learned that plaintiff was hospitalized, she called the broker and asked whether the application had been approved. The broker told her that it still was pending. On either January 10 or 11, 1991, a nurse employed by PACC, who visited the hospital daily to pick up PACC's claim forms and to monitor the quality of care provided to PACC's insureds, learned that plaintiff was ill and suspected that plaintiff might have AIDS. The nurse called PACC's director of underwriting, whom she told about her suspicions.[3] The director reexamined employer's application and noticed that the medical history forms submitted with the application had not been completed within 45 days of the application date, as PACC required. PACC requested that each member of the group provide an updated medical history form. The employees completed new forms on January 15, 1991, which the broker submitted to PACC. Plaintiff's new form was dated December 31, 1990, and reflected his condition as of that date, because employer thought that plaintiff's coverage should be effective as of January 1, 1991. On January 16, upon final review, PACC decided to deny employer's application for insurance coverage, allegedly for reasons other than plaintiff's medical condition.[4] Employer learned of the denial on January 17, 1991. PACC did not cover any claims related to plaintiff's hospitalization in January 1991. Plaintiff filed this complaint, alleging common law claims against employer, UEBC, and PACC. Plaintiff claimed that: 1) PACC breached its oral promise to employer, made through the broker, to provide insurance coverage by January 1, 1991; 2) PACC and UEBC negligently processed employer's application; 3) PACC and UEBC denied employer's application in bad faith because, after learning that plaintiff was HIV positive, they conspired to create a pretextual basis for denying employer's application; and 4) employer breached her oral promise to plaintiff that insurance coverage would be provided effective January 1, 1991. Before trial, plaintiff settled his claim against employer. The trial court granted PACC's motion for summary judgment on the ground that plaintiff's claims against PACC were preempted by ERISA. Trial proceeded against UEBC on the claims that UEBC had negligently processed the application and that it had breached a fiduciary duty by denying employer's application for insurance in bad faith. At the conclusion of plaintiff's case, the court granted UEBC's motion to dismiss the claim for bad faith denial of the application and breach of fiduciary duty. The claim for negligent processing of employer's application went to a jury, which returned a verdict for UEBC. Plaintiff appealed the order granting PACC's motion for summary judgment and the order granting UEBC's motion to dismiss the claim for bad faith denial of the application and breach of fiduciary duty. The Court of Appeals affirmed the dismissal of the claim for bad faith denial and breach of fiduciary duty against UEBC, but reversed the order granting PACC's motion for summary judgment. Shaw v. PACC Health Plan, Inc., 130 Or.App. 32, 43, 881 P.2d 143 (1994). As to the order granting the motion for summary judgment, a majority of the panel held that plaintiff's claims "are not preempted, because plaintiff is seeking to enforce rights that arise outside of an ERISA plan and do not relate to it." Id. at 42, 881 P.2d 143. One judge dissented, maintaining that plaintiff's common law claims were preempted by ERISA. Id. at 43, 881 *312 P.2d 143 (De Muniz, J., concurring in part and dissenting in part). PACC petitioned for review in this court, arguing that plaintiff's claims against it were preempted. We allowed PACC's petition for review and now affirm the decision of the Court of Appeals. Article VI, paragraph 2, of the United States Constitution, the "Supremacy Clause," provides: The Supremacy Clause gives Congress the power to preempt state law. Federal preemption may occur "by express provision, by implication, or by a conflict between federal and state law." New York Blue Cross v. Travelers Ins., 514 U.S. ___, 115 S. Ct. 1671, 1676, 131 L. Ed. 2d 695 (1995). In this case, PACC argues that Congress expressly preempted plaintiff's common law claims through the preemption provision contained in 29 U.S.C. section 1144, below.[5] We are faced, therefore, with a question of statutory interpretation: We must determine whether Congress intended to preempt the type of claim brought here when it enacted ERISA. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S. Ct. 2890, 2898, 77 L. Ed. 2d 490 (1983) ("In deciding whether a federal law pre-empts a state statute, our task is to ascertain Congress' intent in enacting the federal statute at issue."); Wilson v. Piper Aircraft Corporation, 282 Or. 61, 80, 577 P.2d 1322, on recons. 282 Or. 411, 579 P.2d 1287 (1978) (Linde, J., concurring) ("The question of federal preemption is essentially one of statutory interpretation or, if one prefers, of Congressional intent." (internal quotation marks omitted)). 29 U.S.C. section 1144(a), the ERISA preemption provision, provides, in part: 29 U.S.C. section 1003(a) provides, in part: "[T]his subchapter shall apply to any employee benefit plan if it is established or maintained An "employee welfare benefit plan" is defined, in part, to be In this case, the parties disagree whether employer's actions "established" an ERISA employee benefit plan at all.[6] If employer did not establish such a plan, ERISA does not preempt any of plaintiff's common law claims against PACC. PACC argues that employer had taken the steps necessary to "establish" an employee benefit plan for her employees, in the form of health insurance, even though PACC ultimately rejected the application for coverage, and that there was therefore an "established" plan that triggered ERISA's preemption provision. Plaintiff, on the other hand, argues that a plan *313 was not "established," because PACC had not given final approval to employer's application for coverage, and, thus, no actual plan ever existed. These competing arguments require us to determine what Congress meant when it referred to an employee benefit plan "established * * * by [an] employer." As noted, ERISA is a federal statute. Therefore, our task is to identify and carry out the intent of Congress when it enacted ERISA. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S. Ct. 1549, 1551, 95 L. Ed. 2d 39 (1987) ("The purpose of Congress is the ultimate touchstone." (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S. Ct. 1904, 1909, 85 L. Ed. 2d 206 (1985))). In doing so, we follow the methodology generally used in ERISA preemption cases by the Supreme Court of the United States. That is, "we begin * * * with the text of the provision in question, and move on, as need be, to the structure and purpose of the Act in which it occurs." New York Blue Cross, 514 U.S. at ___, 115 S. Ct. at 1677. We begin our analysis with the wording of the statute, specifically the word "established," together with the assumption, common to many statutory interpretation decisions of the Supreme Court, "that the ordinary meaning of that language accurately expresses the legislative purpose." FMC Corp. v. Holliday, 498 U.S. 52, 57, 111 S. Ct. 403, 406, 112 L. Ed. 2d 356 (1990) (quoting Park `N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194, 105 S. Ct. 658, 661, 83 L. Ed. 2d 582 (1985)). There are several ordinary meanings for the word "establish," including "to make firm or stable," "to place, install, or set up in a permanent or relatively enduring position," and "to bring into existence, create, make, start, originate, found, or build usu[ally] as permanent or with permanence in view." Webster's Third New Int'l Dictionary, 778 (unabridged ed 1993). From the foregoing, we believe that it is fair to state that ordinarily the word "establish" means to set something in place with the goal of making it long-lasting or permanent. That definition in turn suggests that an employee benefit plan actually must be in place before it is "established," causing ERISA to preempt any common law claims relating to the plan. That definition further suggests that it refers to the completion of the final steps in constructing something that will last for a significant time. It does not appear to refer to negotiations preceding the execution of an agreement. In short, Congress' use of the word "established" suggests that an employee benefit plan is not "established" and, therefore, does not exist for the purposes of ERISA, unless the plan is in place. In this case, the parties had engaged in preliminary steps that would have resulted in the establishment of a plan if the agreement to purchase insurance had been completed. However, because PACC denied employer's application, an employee benefit plan was never in place, i.e., it never was "established." Moreover, ERISA provides that an employee welfare benefit plan comes into existence when a "plan, fund, or program * * * is * * * established * * * through the purchase of insurance or otherwise." 29 U.S.C. § 1002(1). (Emphasis added.) That phrasing suggests that an employer can "establish" an employee welfare benefit plan through the purchase of insurance or some other comparable arrangement.[7] Therefore, an employer's mere intention to purchase insurance, or even preliminary steps toward that end, are not sufficient to "establish" an employee benefit plan. Under the plain words of 29 U.S.C. section 1002, a plan that is solely in the form of insurance is not "established" for the purposes of ERISA unless and until the employer has purchased the insurance. Consequently, in this case, employer did not "establish" a plan, because the purchase of insurance never took place. Our analysis of text also includes relevant decisions by the Supreme Court of *314 the United States. Although the Supreme Court has rendered several decisions pertaining to the scope of ERISA preemption, it has not examined the meaning of the word "established" in the context of employee benefit plans. Consequently, the Supreme Court's case law on ERISA preemption does not further our textual analysis.[8] We now turn to the structure of ERISA, to determine whether any other provisions of the Act assist in our interpretation of what Congress meant by the word "established" in the context of employee benefit plans. See Massachusetts v. Morash, 490 U.S. 107, 115, 109 S. Ct. 1668, 1672, 104 L. Ed. 2d 98 (1989) (Supreme Court looks to provisions of whole law when interpreting federal statutes). Some of the text contained in ERISA's reporting and disclosure provisions is helpful to our analysis, as we shall explain below. ERISA's reporting and disclosure provisions impose a duty of disclosure upon employers who have established employee benefit plans, requiring employers to furnish plan participants with a summary plan description. 29 U.S.C. § 1021(a)(1). Employers also must file the summary plan description with the Secretary of Labor. 29 U.S.C. § 1021(b)(1). Section 1022(b) sets forth the information that employers must include in the summary plan description, such as information concerning the plan's administration, eligibility, and benefit requirements; claim procedures and remedies under the plan; and circumstances that may result in disqualification, ineligibility, or denial of benefits. The summary plan description also must contain "the source of financing of the plan and the identity of any organization through which benefits are provided." 29 U.S.C. § 1022(b). (Emphasis added.) That wording is helpful to our interpretation of the word "established," because it suggests that an employee benefit plan exists only if the employer can identify its benefit provider. If no provider exists, the employer would not be able to comply with ERISA's reporting and disclosure requirements. In this case, PACC never provided benefits to the employees, and an agreement never was in place that obligated PACC to do so. Instead, PACC rejected employer's application for coverage. Nor did employer have any other provider in January 1991. If we were to conclude that employer had "established" an employee benefit plan, employer would be unable to comply with ERISA's requirement that employers who have established plans must disclose the identity of their benefit providers. Consequently, the fact that employer had no benefit provider supports our conclusion that employer never "established" a plan. ERISA's reporting requirements also require publication of an annual report with respect to employee benefit plans. 29 U.S.C. § 1023(a)(1)(A). Section 1023(e) specifically addresses the situation in which an insurance company provides the plan benefits. It provides, in part: The phrase "[i]f some or all of the benefits under the plan are purchased from * * * an insurance company" is instructive. In drafting this section, Congress recognized that the only means by which an insurance company can become involved in an employee benefit plan is through the employer's purchase of benefits from that insurance company. Once that purchase has taken place, the insurance company can fulfill the reporting requirements contained in subsections 1023(e)(1) and (2). Without the purchase of benefits, an insurance company has only a potential connection to an employee benefit plan. If no other provider or source of funding exists, an employer could not have "established" a plan under ERISA. In this case, if PACC had approved employer's application, "all of the benefits under the plan [would have been] purchased from * * * an insurance company." Such a purchase would have been employer's "establishment" of an employee benefit plan and further would have obligated PACC to comply with the reporting requirements contained in 29 U.S.C. section 1023(e). However, no purchase of insurance ever took place, because PACC denied employer's application. That fact further supports the conclusion that employer did not "establish" a plan, because the only method by which a plan can exist if an insurance company provides the benefits is through the employer's purchase of those benefits. Nothing in the text or structure of ERISA suggests that the word "established" has more than one plausible meaning or that Congress intended that ERISA should preempt state laws, whether statutory or common law, as they pertain to potential plans. We have found nothing in the legislative history describing the purposes behind ERISA that suggests a different result. From our examination of the relevant federal statutory provisions, it is clear that, in order for an ERISA employee benefit plan to be "established by an employer" through the purchase of insurance, there first must be an agreement between the employer and the provider. Until a provider has an obligation under that agreement to provide benefits to beneficiaries or participants, an employer has not "established" an employee benefit plan. The focus of our inquiry is on the existence of a plan that provides benefits. In this case, such a plan, in fact, did not exist. Because PACC did not approve employer's application, and employer did not provide health coverage to her employees through any other mechanism, employer did not "establish" an employee benefit plan. Plaintiff's claims, therefore, are not preempted by ERISA. The decision of the Court of Appeals is affirmed. The judgment of the circuit court for PACC Health Plan, Inc., on summary judgment is reversed, and the case is remanded to that court for further proceedings. [1] The original plaintiff in this action died on August 7, 1993. On October 21, 1994, the Court of Appeals entered an order allowing this action to be continued through plaintiff's personal representative. We refer to the original plaintiff as "plaintiff" throughout this opinion. [2] According to employer's testimony at trial, employer redated the forms at the broker's direction. However, the broker denied knowing that the old forms were outdated at the time that she submitted those forms to PACC. [3] It is not entirely clear from the record how PACC's nurse found out about plaintiff's condition. It appears from testimony at trial that the nurse probably picked up a claim form completed for plaintiff, which listed PACC as plaintiff's insurance provider. [4] PACC's purported reasons for denial are not clear from the record. There was conflicting testimony as to which of several factors, not including plaintiff's medical condition, provided the basis for PACC's denial of employer's application. [5] Because Congress included an express preemption provision in ERISA, we consider only that method of federal preemption in this opinion. [6] According to ERISA's definition section, there are three types of employee benefit plans: an "employee welfare benefit plan," an "employee pension benefit plan," and a plan that is a combination of both an employee welfare benefit plan and an employee pension benefit plan. 29 U.S.C. § 1002(3). This case is concerned with an "employee welfare benefit plan." [7] The language "or otherwise" encompasses other noncontractual or comparable arrangements that result in employer plan liability with the same consequences as the purchase of insurance. Because plaintiff's claim in this case centers on actions by PACC that prevented employer from purchasing insurance from PACC, we focus on ERISA's language that a "plan * * * is * * * established * * * through the purchase of insurance." [8] Because the Supreme Court has not spoken to the issue, we ordinarily would next look to the federal courts to determine whether they have interpreted the same issue under ERISA as that presented here. When the federal courts are well-settled on a specific interpretation, this court may choose to follow that interpretation, if the underlying reasoning is persuasive. However, federal court decisions, other than those issued by the Supreme Court, are not binding on this court. Van De Hey v. U.S. National Bank, 313 Or. 86, 95 n. 9, 829 P.2d 695 (1992); Derenco v. Benj. Franklin Fed. Sav. and Loan, 281 Or. 533, 549, 577 P.2d 477 (1978). The germinal federal case addressing whether a plan is "established" for ERISA preemption purposes is Donovan v. Dillingham, 688 F.2d 1367 (11th Cir 1982). In Donovan, the court determined that "[a] decision to extend benefits is not the establishment of a plan or program. * * * [I]t is the reality of a plan, fund or program and not the decision to extend certain benefits that is determinative." Id. at 1373. That test has been accepted widely by the federal courts. See Kenney v. Roland Parson Contracting Corp., 28 F.3d 1254, 1257 (DC Cir 1994) ("Every circuit that has since been required to decide whether, on the particular facts before it, a pension plan has come into being has adopted the [Donovan] approach."). Donovan's approach supports our conclusion that, in this case, employer did not "establish" an ERISA plan. As the Court of Appeals stated, "the goal toward which [employer's] conduct was directed, obtaining insurance, never became a reality," because employer never purchased insurance from PACC. Shaw v. PACC Health Plan, Inc., 130 Or.App. 32, 38, 881 P.2d 143 (1994). (Emphasis added.) Consequently, employer never "established" an employee benefit plan for the purposes of ERISA.

f3eca95f80e1052dd46540afdafd37dd9b5ad999619c3e3c1f74d1ee84c4f887

1995-12-29T00:00:00Z

93d1a59c-cd62-4d78-be63-c1695653c7eb

Bosak v. Myers (S48606)

oregon

Oregon Supreme Court

FILED: October 4, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON TRICIA BOSAK and JAMES SAGER, Petitioners, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48606) On petition to review ballot title. Argued and submitted August 7, 2001. Paul B. Gamson of Smith, Gamson, Diamond & Olney, Portland, filed the petition for petitioners. Erika L. Hadlock, Assistant Attorney General, Salem, argued the cause for respondent. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.* RIGGS, J. Ballot title referred to the Attorney General for modification. *Balmer, J., did not participate in the consideration or decision of this case. RIGGS, J. This proceeding is brought under ORS 250.085(2) and concerns the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State has designated (per standard form) as Initiative Petition 49 (2002). Petitioners are electors who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore are entitled to seek review in this court. See ORS 250.085(2) (stating that requirement). In reviewing the Attorney General's certified ballot title, we must determine whether it substantially complies with the requirements of ORS 250.035(2). See ORS 250.085(5) (providing the standard of review). The proposed initiative would amend the Oregon Constitution by adding the following section: "Section 1. For tax years beginning on or after July 1, 2003, the rate of growth of spending of state income tax revenue shall not exceed four percent (4%) per year. All state income tax revenue collected by the state in excess of the four percent allowed increase shall be returned to taxpayers in proportion to the amount each taxpayer paid. Any refund required under this section shall be made not later than 150 days after the end of the fiscal year in which the excess revenue was collected. For purposes of this section, 'state income tax revenue' means revenue collected by the imposition of the personal income tax, the corporate income taxes, and corporate excise taxes." The Attorney General certified the following ballot title for Initiative Petition 49: "AMENDS CONSTITUTION: LIMITS ANNUAL INCOME-TAX REVENUE SPENDING GROWTH TO FOUR PERCENT; RETURNS EXCESS REVENUE TO TAXPAYERS "RESULT OF 'YES' VOTE: 'Yes' vote limits the annual growth in spending of state income-tax revenue to four percent; state must return all revenue exceeding limit to taxpayers. "RESULT OF 'NO' VOTE: 'No' vote rejects four-percent limit on annual growth in spending of state income-tax revenue; rejects requiring state to return revenue exceeding that limit. "SUMMARY: Amends Oregon Constitution. Oregon statutes currently limit biennial growth of state appropriations for general governmental purposes to previous biennium's growth rate for personal income in Oregon. Under Oregon Constitution, the state currently must return excess income- and excise-tax revenue to taxpayers when it collects at least two percent more than it estimated it would collect. This measure adds constitutional provision limiting annual rate of growth in spending of 'state income tax revenue' (personal and corporate income taxes, corporate excise taxes) to four percent; growth limit not adjusted for population changes or inflation. Measure requires state to return to taxpayers all 'state income tax revenue' collected in excess of growth limit. Measure limits state spending of income-tax revenues without providing replacement revenues. Other provisions." Petitioners Bosak and Sager challenge the caption, vote result statements, and summary of the Attorney General's certified ballot title on the ground that they mischaracterize the proposal as one that limits "spending growth." As to those challenges, we conclude that petitioners' arguments are not well taken. Petitioners raise an additional challenge to the caption, claiming that the use of the word "excess" will prove confusing to voters. We agree with petitioners that the use of the word "excess" in the caption does not comply substantially with the requirements of ORS 250.035(2). The word "excess" in the caption is likely to lead voters to believe that, even if no more than the permitted four-percent increase in state income tax revenue is collected, the state will be obligated to return what it does not spend. The text of the measure demonstrates that that is not the case; thus, the caption is not accurate. Indeed, the Attorney General has acknowledged that the phrase "returns revenue exceeding limit" correctly describes the proposed measure. Having concluded that the caption likely would confuse voters, and therefore does not comply substantially with statutory requirements, we refer the ballot title to the Attorney General for modification. See ORS 250.085(8) (providing for referral); Flanagan v. Myers, 332 Or 318, ___ P3d ___ (2001) (determining that challenged ballot titles did not comply substantially with statutory requirements and referring those ballot titles to Attorney General for modification). Finally, although the Attorney General asserts that it is necessary to include the words "to taxpayers" in the caption, we agree with petitioners that those words logically may be inferred. Because, under the proposed measure, taxpayers are the parties from whom the revenue originally was gathered, it is reasonable to assume that the revenue that exceeds the limit shall be returned to them. Ballot title referred to the Attorney General for modification.

09fe7b346a5c49aaf906db0b62b04c0a4abcfdcaa03fdf3d07ed08534efd6269

2001-10-04T00:00:00Z

aa38ccfe-c672-4e48-9280-564270fb2028

In re Lawrence

S46876

oregon

Oregon Supreme Court

FILED: September 13, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON In re Complaint as to the Conduct of J. MARK LAWRENCE, Accused. (OSB 95-249, 97-123; SC S46876) On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted May 3, 2001. Paula J. Lawrence, Lawrence & Houser, P.C., McMinville, argued the cause and filed the brief for the accused. Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the briefs for the Oregon State Bar. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.* PER CURIAM The accused is suspended from the practice of law for a period of 60 days, commencing 60 days from the date of filing of this decision. *Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. PER CURIAM In this lawyer discipline proceeding, the Oregon State Bar (Bar) charged the accused with violating various disciplinary rules of the Code of Professional Responsibility and with violating one statute. The trial panel found that the accused violated Disciplinary Rule (DR) 5-101(A)(1) (continuing employment without full disclosure when exercise of judgment on behalf of client is or may be affected by business, property, or personal interests), dismissed the other charges, and reprimanded him. The Bar and the accused both sought review in this court. ORS 9.536(1); Bar Rule of Procedure (BR) 10.1 and BR 10.3. In addition to the DR 5-101(A)(1) violation, the Bar continues to allege that the accused violated DR 1-102(A)(2) (committing criminal act reflecting adversely on lawyer's honesty, trustworthiness, or fitness to practice law) and ORS 9.460(1) (failing to support constitution and laws of the United States and this state) when he failed to timely file state and federal tax returns. (1) We consider the matter de novo and may adopt, modify, or reject the decision of the trial panel. ORS 9.536(3); BR 10.6. The Bar has the burden of establishing alleged misconduct by clear and convincing evidence. BR 5.2. For the reasons that follow, we find that the accused violated DR 1-102(A)(2) and DR 5-101(A)(1), and that a 60-day suspension is the appropriate sanction. I. FACTS We find the following facts by clear and convincing evidence. The accused has been a member of the Bar since 1989. After he was admitted to practice, the accused worked as a deputy district attorney until 1992. In 1992, the accused opened his own law office as a sole practitioner. His practice was not lucrative financially, and he entrusted the bookkeeping for his law practice to his mother, Hohman, who lives in Colorado. Hohman is not a licensed tax preparer, and the accused did not pay her for her bookkeeping services. The accused sent Hohman the original documents she needed to keep the books for the accused's law practice. The accused did not retain photocopies of the documents for purposes of preparing his tax returns, and he did not expect Hohman to prepare the tax returns for him. In early 1993, the accused called Hohman, asking her to send him the documents he needed to file his 1992 tax returns. Hohman had not yet completed the accused's bookkeeping for that year, but she told the accused not to worry about his taxes because she guessed that he had not made enough money to owe taxes that year. The accused received an extension of time until August 1993 to file his 1992 tax returns, but he failed to file his 1992 tax returns by that deadline. Hohman did not return any records that the accused had requested in 1993. Hohman eventually told the accused that she planned to finish the accused's bookkeeping records for 1992 and 1993 by April 1994. However, in early 1994, Hohman's computer failed, and she was unable to recover any information from it. At that time, Hohman was working full time as a bookkeeper for three business customers who were paying clients. The accused's bookkeeping was her lowest priority while she reconstructed the files she had lost when her computer failed. The accused called Hohman a number of times in 1994, asking her to return to him the records he had sent to her. The accused explained to Hohman that he needed to file his tax returns. The accused thereafter missed the April 15, 1994, filing deadline for his 1993 taxes. Late in October 1994, the accused stopped sending Hohman his business records because "it was not working." Hohman again promised to send the accused his business records in time for him to file his tax returns for 1992, 1993, and 1994 by April 15, 1995. However, by early April 1995, Hohman had returned only some of the accused's records. On or about April 1, 1995, the accused gave what records he had to his licensed tax preparer. Thereafter, the tax preparer told the accused that much of the documentation he needed to prepare the accused's tax returns was missing. The accused again called Hohman, asking her to find and return the missing records. Hohman told the accused that she thought she had sent him everything. The accused thereafter received an extension until October 1995 to file his 1994 tax returns, but he missed that filing deadline. In late 1995, the accused's sister found the missing records in a storage unit that Hohman had rented. When the accused received the records, he gave them to his tax preparer. In January 1996, the tax preparer completed the accused's tax returns for 1992, 1993, and 1994. The accused paid all taxes due, as well as late fees and accumulated interest for those years. The Internal Revenue Service and the Oregon Department of Revenue took no criminal action against the accused for his untimely filings. The tardy filings came to the attention of the Bar after the accused testified under oath at a judgment debtor examination in September 1995 that he had not filed any state or federal tax returns for the years 1992, 1993, or 1994. The debtor examination had arisen out of the accused's representation of Rabon in a dissolution matter that forms the basis of one of the Bar's complaints against the accused. In representing Rabon, the accused failed to file a timely response, and the trial court entered a default judgment against Rabon. The accused moved to set aside the default and arranged for another lawyer, Houser, to represent Rabon. The trial court denied the motion to set aside the default judgment. Houser thereafter told both the accused and Rabon that, in his opinion, Rabon had a viable legal malpractice claim against the accused for having allowed the default judgment to be taken. The accused continued to represent Rabon for several months on child support and visitation matters, without making full written disclosure to Rabon of the possibility that his own interests in avoiding a malpractice claim might affect his professional judgment. However, the accused did obtain a written release from Rabon providing that the accused would continue to handle Rabon's dissolution and child support matters for no fee in exchange for Rabon giving up any malpractice claim. The trial court thereafter denied contempt and support modification motions that the accused had filed on Rabon's behalf and imposed sanctions on the accused and Rabon jointly and severally, in the amount of $1,500. When the accused did not pay the sanction, opposing counsel filed the judgment debtor examination against the accused. It was during that examination that the accused disclosed that he had not filed tax returns for 1992, 1993, and 1994. On December 14, 1995, the State Professional Responsibility Board referred both the Rabon and tax matters to the Local Professional Responsibility Committee for investigation. The Bar filed its first formal complaint against the accused on March 4, 1997, more than a year after the accused had paid all back taxes, penalties, and interest. The Bar amended its complaint twice, and the charges were not heard until January 26 and 27, 1999. The trial panel issued its decision on August 16, 1999, which, as noted, found the accused had violated DR 5-101(A)(1) and imposed a public reprimand. II. ALLEGED VIOLATIONS A. DR 1-102(A)(2) In its first cause of complaint, the Bar alleges that the accused "knowingly and willfully" failed to file personal tax returns timely for the years 1992, 1993, 1994, thereby violating DR 1-102(A)(2). That rule provides: "It is professional misconduct for a lawyer to: "* * * * * "(2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law[.]" To find a violation of DR 1-102(A)(2), the Bar must present clear and convincing evidence that the accused committed a criminal act and that the act reflects adversely on the accused's honesty, trustworthiness, or fitness to practice law. In re Hassenstab, 325 Or 166, 175-76, 934 P3d 1110 (1997). We may examine any evidence in the record that is relevant to that question. In re Allen, 326 Or 107, 121, 949 P2d 710 (1997). Proof of a conviction is not required to establish a violation of the disciplinary rule. In re Kimmell, 332 Or 480, ___, ___ P3d ___ (August 30, 2001) (slip op. at 6). The Bar contends that the accused's failure to timely file 1992, 1993, and 1994 federal and state tax returns violated, respectively, two criminal statutes: 26 USC § 7203 and ORS 314.075(1). The federal statute, 26 USC § 7203, provides, in part: "Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution. * * *" (Emphasis added.) The Oregon statute, ORS 314.075, provides, in part: "No person, or officer or employee of a corporation or a member or employee of a partnership, shall, with intent to evade any requirement of any law imposing taxes upon or measured by net income or any lawful requirement of the Department of Revenue thereunder: "(1) Fail to pay any tax or to make, sign or verify any return or to supply any information required[.]" (Emphasis added.) Both statutes generally make it a crime not to file tax returns at the time or times required by law. Violation of the federal statute is a misdemeanor, while violation of the Oregon statute is a Class C felony. 26 USC § 7203; ORS 314.991. The accused contends that the Bar failed to prove by clear and convincing evidence that his failure to file his tax returns timely was "willful" under 26 USC § 7203 or that he acted with the "intent to evade" the requirements of the law under ORS 314.075. According to the accused, he failed to file his tax returns in a timely manner because he was unaware that it was a crime to file untimely tax returns and because, under the circumstances, it was impossible for him to file any sooner. Accordingly, the accused maintains, the Bar did not show that he was guilty of a criminal act. As the term is used in 26 USC § 7203, "willful" means a "voluntary, intentional violation of a known legal duty." Cheek v. United States, 498 US 192, 201, 111 S Ct 604, 112 L Ed 2d 617 (1991). A willful violation is established by evidence of a deliberate intent to disobey the filing requirement. Proof of an evil motive or bad faith is not a required element of willful failure to file tax returns under 26 USC § 7203. Id. at 200-01. Moreover, a taxpayer's intent to report income and pay tax on it sometime in the future "does not vitiate the willfulness required by § 7203." Samsone v. United States, 380 US 343, 354, 85 S Ct 1004, 13 L Ed 2d 882 (1965). In this proceeding, the accused admits that he failed to file his tax returns for 1992, 1993, and 1994 in a timely manner and that he was aware of his duty to do so. The accused testified that he knew that April 15 is the statutory deadline for filing tax returns. Moreover, the accused filed for extensions of time in which to file his 1992 and 1994 returns, but then he failed to file his returns by the extended deadlines. In short, the accused knew that his conduct was unlawful. The accused's assertion that he did not know that it was a crime to fail to file tax returns at the time or times required by law is not a defense to the charge that his failure to do so was willful. It is true that the United States Supreme Court has held that a taxpayer may not be convicted of willful failure to file a tax return if the taxpayer subjectively misunderstood the tax laws or if the taxpayer was ignorant of the tax laws. Cheek, 498 US at 202. That holding does not aid the accused here. The accused does not argue that he misunderstood the tax laws or that he did not know of his legal duty to file his tax returns in a timely manner. Rather, the accused's only argument is that he did not know that his failure to do so carried criminal consequences. Such a defense does not negate a finding of a willful failure to file a tax return at the time or times required by law. See, e.g., United States v. Wilson, 214 F Supp 629, 630-31 (DC Del 1963) ("wilfulness" required to sustain convictions for failure to pay special wagering occupational tax established by showing defendant knew tax was owed, even without showing that defendant also knew failure to comply carried criminal, not merely civil, sanctions). The accused committed a criminal act when he willfully violated 26 USC § 7203 by failing to file tax returns in the time or times required by law. (2) Not every criminal act reflects adversely on a lawyer's "fitness to practice law" within the meaning of DR 1-102(A)(2). As this court noted in In re White, 311 Or 573, 589, 815 P2d 1257 (1991), "[t]here must be some rational connection other than the criminality of the act between the conduct and the actor's fitness to practice law." White identified "pertinent considerations" with respect to whether a criminal act adversely reflects on a lawyer's fitness to practice law: "[T]he lawyer's mental state; the extent to which the act demonstrates disrespect for the law or law enforcement; the presence or absence of a victim; the extent of actual or potential injury to a victim; and the presence or absence of a pattern of criminal conduct." Id. We turn to those considerations in determining whether the accused's violations of 26 USC § 7203 reflect adversely on his fitness to practice law. As we discuss later in this opinion, a lawyer's mental state when engaging in particular conduct may be intentional, knowing, or negligent. In this instance, the accused knew that he had a duty to file tax returns timely, and he demonstrated that he knew how to request extensions of time for filing. His willful failure to file his tax returns at the time or times required by law was an intentional act. Moreover, the accused's violations of 26 USC § 7203 extended over three years. The accused's repeated failures to file timely tax returns, and his failure to take the steps necessary to be able to do so, reflect disrespect for the law. The accused's conduct was not "victimless," as his actions affected the federal government. Based on those considerations, we conclude that the accused's violations of 26 USC § 7203 reflect adversely on his fitness to practice law. Having found both that the accused committed a criminal act by failing to file timely tax returns for the years 1992, 1993, and 1994, and having found that such actions reflect adversely on his fitness to practice law, we conclude that the accused violated DR 1-102(A)(2). B. ORS 9.460(1) The Bar alleges that the accused's failure to file timely tax returns for three years also violated ORS 9.460(1). (3) Although, in the past, this court has found that the same conduct can violate both the Code of Professional Responsibility and a provision of ORS Chapter 9, see, e.g., In re Gatti, 330 Or 517, 8 P3d 966 (2000); In re Allen, 326 Or 107, 949 P2d 710 (1997) In re Bridges, 298 Or 53, 688 P2d 1335 (1984) (each so finding), such a finding generally has not served to enhance the sanction that this court has imposed for a violation or violations of the Code of Professional Responsibility. In this proceeding, the Bar does not argue that a finding that the accused violated ORS 9.460(1), in addition to DR 1-102(A)(2), for failing to file timely his tax returns, would enhance the sanction that we would impose for the accused's violation of the disciplinary rule. We conclude that a finding that the accused violated ORS 9.460(1) would have no practical effect on the sanction that we impose in this case. Therefore, we decline to address the Bar's charge that the accused violated that statute. See In re Kimmell, 332 Or at __ (slip op. at 9) (also declining to address Bar's charge of statutory violation after finding violation of Code of Professional Responsibility for same conduct because finding of statutory violation would have no practical effect on sanction). C. DR 5-101(A)(1) The next matter on review is the Bar's fourth cause of complaint. The Bar alleges that, by continuing to represent Rabon when the accused had a potential conflict of interest without providing proper written disclosure as defined by DR 10-101(B)(2), the accused violated DR 5-101(A)(1). DR 5-101(A)(1) provides, in part: "Except with the consent of the lawyer's client after full disclosure, "(1) 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. * * *" (Emphasis added.) Under DR 10-101(B)(2), "full disclosure" includes the requirement that the lawyer recommend that "the recipient seek independent legal advice to determine if consent should be given and shall * * * contemporaneously confirm[] [such advice] in writing." (Emphasis added.) As noted, the trial panel found that the accused violated DR 5-101(A)(1). On review, the accused concedes that he did not follow the letter of DR 10-101 because he did not advise Rabon in writing of his potential conflict of interest. According to the accused, however, the Bar has not proved by clear and convincing evidence that he violated the "spirit" of the full disclosure requirement because he took other steps to protect Rabon's interests, including having him consult with Houser. We disagree with the accused that the explicit wording of the rule, requiring notice to the client in writing, may be dispensed with so casually. See In re Brandt/Griffin, 331 Or 113, 135, 10 P3d 906 (2000) ("DR 10-101(B)(2) requires that an oral disclosure be 'confirmed in writing'"). We conclude that the accused violated DR 5-101(A)(1) by failing to inform Rabon in writing of the accused's potential conflict of interest. III. SANCTION Having found that the accused violated DR 1-102(A)(2) and DR 5-101(A)(1), we turn to the appropriate sanction. This court follows a well-established methodology in determining the appropriate sanction for violating disciplinary rules. See In re Gustafson, 327 Or 636, 652-53, 968 P2d 367 (1998) (describing methodology). The Bar recommends a suspension of at least six months for the tax matters, but is satisfied with a public reprimand for the Rabon matter. The accused contends that he challenged the trial panel's recommendation that he receive a public reprimand for his violation of DR 5-101(A)(1) only because the Bar has placed other aspects of the trial panel's decision at issue by seeking review in this court. We accept without further discussion the Bar's and the accused's agreement that a public reprimand is the appropriate sanction for the accused's violation of DR 5-101(A)(1) in the Rabon matter. We turn to the appropriate sanction for the accused's violation of DR 1-102(A)(2) in the tax matters. A. Duty Violated The accused violated his duty to the public to maintain his personal integrity when he willfully violated 26 USC § 7203 by not filing his tax returns by the time or times required by law. American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) 5.1. As noted in the commentary to ABA Standard 5.0: "The public expects the lawyer * * * to abide by the law; public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct." ABA Standards at 36. B. Mental State The ABA Standards recognize three mental states: intentional, knowing, and negligent. A lawyer acts intentionally by acting with the conscious objective or purpose of accomplishing a particular result. A lawyer acts knowingly by being consciously aware of the nature or attendant circumstances of the conduct, but not having a conscious objective to accomplish a particular result. A lawyer acts negligently by failing to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. ABA Standards at 7. In this case, the accused's mental state in violating 26 USC § 7203 was intentional. The accused was aware of his legal duty to file tax returns at the time required by law, and he repeatedly failed to do so. That the accused intended to file his tax returns at some later time does not mean that he did not act intentionally when he failed to file his returns in a timely manner. C. Actual or Potential Injury The accused's failure to file timely returns caused actual injury, because it hindered the federal government in its ability to administer the tax system and collect taxes. D. Preliminary Sanction under ABA Standards The accused's misconduct implicates two ABA Standards. ABA Standard 5.11 provides, in part: "Disbarment is generally appropriate when: "(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or "(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice." ABA Standard 5.12 provides: "Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer's fitness to practice." E. Aggravating Factors There are two relevant aggravating circumstances in this proceeding. First, the accused engaged in a pattern of misconduct by filing tax returns in an untimely manner for three years. ABA Standard 9.22(c). Second, factoring in the Rabon matter, the accused committed multiple violations of the disciplinary rules. ABA Standard 9.22(d). F. Mitigating Factors There are several mitigating factors. First, the Bar became aware of the accused's misconduct in 1995, but it did not file a complaint until 1997, and the trial panel did not hear the matter until 1999. The case was not at issue for argument before this court until May 2001. The Bar concedes that it is responsible for the long delay in this proceeding. During the delay, the accused abandoned his solo law practice and joined a law firm. His disciplinary record since the events that led to this proceeding is unblemished. See In re Unrein, 323 Or 285, 288, 917 P2d 1022 (1996) (citing delay as particularly significant mitigating factor when four years elapsed between misconduct and court's decision, and no additional complaints had been filed). On the facts of this proceeding, the significant delay in the disciplinary process is an important mitigating factor in determining the appropriate sanction. ABA Standard 9.32(j). There are other mitigating factors. The accused has no prior disciplinary record. ABA Standard 9.32(a). The accused has cooperated fully during the disciplinary proceedings, ABA Standard 9.32(e), and other penalties and sanctions have been imposed on the accused in the form of penalties and interest, ABA Standard 9.32(k). Considering the duty violated, the accused's mental state, the injury caused, and aggravating and mitigating factors, it appears that a suspension from the practice of law would be the appropriate sanction in this proceeding. We turn to this court's case law to determine whether the Bar's recommendation of a six-month suspension is appropriate. G. Case Law This court never has been sanguine about a lawyer's failure to pay taxes. See, e.g., In re Morris, 215 Or 180, 182, 332 P2d 885 (1958) (warning lawyers that court will not be lenient in discipline of lawyers who fail to file tax returns in compliance with law). In In re DesBrisay, 288 Or 625, 629-30 n 2, 606 P2d 1148 (1980), which was decided before this court began to follow the ABA Standards methodology, this court described the range of sanctions that it had imposed in situations in which lawyers had failed to file tax returns: "The ethical violations in each case and our dispositions of the proceedings are as follows: In re Thomas Graham Walker, 240 Or 65, 399 P2d 1015 (1965) (the accused was convicted of failing to file a return for the year 1958 and was suspended for two years); In re James L. Means, 218 Or 480, 342 P2d 1119 (1959) (the accused pleaded guilty to two counts of failing to file income tax returns. He had been disciplined before on similar charges and was therefore permanently disbarred); In re LeRoy L. Lomax, 216 Or 281, 338 P2d 638 (1959) (the accused pleaded guilty to two charges of failing to file income tax returns and was suspended from practice for one year); In re Maurice C. Corcoran, 215 Or 660, 337 P2d 307 (1959) (a suspension of 18 months was imposed when the attorney pleaded nolo contendere to two counts of failing to file tax returns and failed to file returns in two other years); In re Richard R. Morris, 215 Or 180, 332 P2d 885 (1958) (the attorney pleaded guilty to three charges of failing to file returns and was suspended for one year); In re McKechnie, 214 Or 531, 330 P2d 727 (1958) (McKechnie was suspended from the practice of law for six months after pleading guilty to failing to file tax returns in two consecutive years); In re Claude M. Johns, Jr., 212 Or 587, 321 P2d 281 (1958) (Johns pleaded guilty to two counts of failing to file tax returns and admitted that he also failed to file returns in five earlier years. He was suspended for one and one-half years); In re Franz E. Wagner, 210 Or 457, 311 P2d 751 (1957) (the accused was suspended for one year after he pleaded guilty to three counts of failing to file tax returns); In re Means, 207 Or 638, 298 P2d 983 (1956) (Means pleaded guilty to two counts of failing to file federal tax returns and did not dispute the bar's allegation that he had failed to file returns 'over a period of years' prior to the years covered by his guilty pleas. Means was suspended from the practice of law for six months)." The court then noted that, although suspensions of six months to two years were the appropriate sanction in most cases involving a lawyer's failure to file taxes, a four-year suspension was warranted in DesBrisay's case because of extenuating circumstances and the accused's cavalier attitude. DesBrisay, 288 Or at 630-32. In this proceeding, unlike the cases summarized above, the accused did not fail to pay his taxes altogether. Neither did he seek to evade paying them or falsify his tax obligations. See In re Pennington, 220 Or 343, 348 P2d 774 (1960) (disbarring accused for felony of filing false and fraudulent returns; distinguishing the seriousness of such misconduct from misconduct in failure-to-file cases). The accused paid the penalties and interest that accrued because of his late filings. The accused's misconduct in this proceeding stemmed from his errors in judgment in failing to keep copies of the records that he sent to Hohman and in persisting to rely on her services even after it had become evident that she was not able to provide the bookkeeping service that he needed. Although we do not condone those errors, they do not suggest the same level of disregard of legal duties that was present in the cases summarized in DesBrisay and for which lengthy suspensions from the practice of law were necessary to protect the public. Nonetheless, the willful failure to file tax returns in a timely manner warrants a significant suspension from the practice of law. Moreover, repeated failure to do so, and violation of another rule as well -- in this instance, DR 5-101(A)(1) -- ordinarily would justify even a longer period of suspension. Under other circumstances, we might agree with the Bar that a six-month suspension, or more, would be the appropriate sanction. In this proceeding, however, the mitigating circumstances outweigh the aggravating circumstances. See In re Wittemyer, 328 Or 448, 462, 980 P2d 148 (1999) (appropriate sanction in discipline proceedings always depends on facts and circumstances of that proceeding). The more than five-year delay, coupled with the accused's unblemished disciplinary record in the intervening years, suggest that a six-month suspension is not appropriate here. We conclude that suspending the accused from the practice of law for 60 days is the appropriate sanction. The accused is suspended from the practice of law for a period of 60 days, commencing 60 days from the date of filing of this decision. 1. The Bar does not seek review of the trial panel's dismissal of the second, third, and fifth causes of complaint. 2. Because the finding of a violation of 26 USC § 7203 is a crime that provides a basis for discipline, we need not decide whether the accused also committed a crime under the state provision, ORS 314.075(1). The Bar does not argue otherwise. 3. ORS 9.460 provides, in part: "An attorney shall: "(1) Support the Constitution and laws of the United States and of this state[.]"

37a8d747f85a0b2ff81732e1f663fb7b86c089d7699f1cbe95c767488f11f95a

2001-09-13T00:00:00Z

1e4d8959-dd70-495b-b1b7-8e5d9e1f3e21

Sizemore v. Myers (S48534)

S48534

oregon

Oregon Supreme Court

Filed: August 16, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON BILL SIZEMORE, Petitioner, v. HARDY MYERS, Respondent. (SC S48534) On petition to review ballot title. Submitted on the record June 4, 2001. Gregory W. Byrne, Portland, filed the petition for petitioner. Kelly Knivila, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. DE MUNIZ, J. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). DE MUNIZ, J. This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, denominated by the Secretary of State as Initiative Petition 37 (2002). The proposed measure would amend the Oregon Constitution to allow Oregon taxpayers to deduct all state, federal and local "payroll taxes" from income on their personal state income tax returns. The measure defines "payroll taxes" to include all taxes that are calculated as a percentage of income. Petitioner is an elector who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who, therefore, is entitled to seek review in this court. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). ORS 250.085(5). Petitioner challenges only the "summary" in the Attorney General's ballot title. A ballot title must contain a "concise and impartial statement of not more than 125 words summarizing the state measure and its major effect." ORS 250.035(2)(d). Here, that statement provides: "SUMMARY: Amends Constitution. Currently, individuals may deduct up to $5,000 ($2,500 if married, filing separately) of federal income taxes paid from taxable income on Oregon income tax returns. No other federal, state or local taxes calculated as percentage of personal income are deductible. Measure makes all taxes calculated as percentage of income deductible on Oregon income tax return. Defines taxes as FICA, Medicare, self-employment and income taxes. Establishes phase-in for new deductions beginning 2003 with 10 percent deduction and increasing 10 percent each year. Prohibits implementation to affect 'kicker' refunds due taxpayers for biennium in which measure is approved. Prohibits legislature from altering current partial deductibility of any affected tax. Reduces state income tax revenues and provides no replacement funds. Other provisions." Petitioner contends that one sentence in the ballot title summary is not impartial and that the summary, therefore, fails to comply substantially with the requirements of ORS 250.035(2)(d). The sentence that petitioner challenges states that the proposed measure "reduces state income tax revenues and provides no replacement funds." Petitioner complains that there is nothing in the proposed measure that deals with replacement funds. He asserts that the phrase "provides no replacement funds" is biased, because it points out a perceived flaw of the proposed measure. A ballot title summary must summarize the major effect of a measure. The fact that a measure does not itself mention its fiscal effects does not preclude the Attorney General from doing so. See Nelson v. Roberts, 309 Or 499, 505-06, 789 P2d 650 (1990) (permissible to inform electorate of major loss of revenue to general fund). The phrase "reduces state income tax revenues and provides no replacements funds" summarizes the effect of proposed measure in an impartial manner. It informs the voters that the proposed measure will cause a reduction in state income tax revenues and that this reduction will not be offset by any corresponding increase provided for in the proposed measure. The Attorney General's summary substantially complies with the requirements of ORS 250.035(2)(d). Accordingly, we certify the following ballot title to the Secretary of State: AMENDS CONSTITUTION: MAKES DEDUCTIBLE ON OREGON PERSONAL INCOME TAX RETURNS ALL TAXES CALCULATED AS PERCENTAGE OF INCOME RESULT OF "YES" VOTE: "Yes" vote makes deductible on Oregon personal income tax returns federal, state and local taxes calculated as percentage of income; provides ten-year phase-in. RESULT OF "NO" VOTE: "No" vote rejects amending constitution to make deductible on Oregon tax returns taxes calculated as percentage of income; retains partial deduction for federal income taxes. SUMMARY: Amends constitution. Currently, individuals may deduct up to $5,000 ($2,500 if married, filing separately) of federal income taxes paid from taxable income on Oregon income tax returns. No other federal, state or local taxes calculated as percentage of personal income are deductible. Measure makes all taxes calculated as percentage of income deductible on Oregon income tax returns. Defines taxes as FICA, Medicare, self-employment and income taxes. Establishes phase-in for new deductions beginning 2003 with 10 percent deduction and increasing 10 percent each year. Prohibits implementation to affect "kicker" refunds due taxpayers for biennium in which measure is approved. Prohibits legislature from altering current partial deductibility of any affected tax. Reduces state income tax revenues and provides no replacement funds. Other provisions. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10).

94829708903d47ebbe02c067e87a38122d9ae038b0e26555c9fe32849eef1283

2001-08-16T00:00:00Z

148216a4-1b6e-4391-9734-0ed92e56eef0

Dept. of Human Services v. Y. B.

S069996

oregon

Oregon Supreme Court

No. 7 March 28, 2024 133 IN THE SUPREME COURT OF THE STATE OF OREGON In the Matter of A. J. A., a Child. DEPARTMENT OF HUMAN SERVICES, Respondent on Review, v. Y. B., Petitioner on Review. (CC 19JU05194) (CA A178747) (SC S069996) En Banc On review from the Court of Appeals.* Argued and submitted September 12, 2023. Sarah Peterson, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section. Robert Hansler, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General. MASIH, J. The decision of the Court of Appeals and the judgment of the juvenile court are affirmed. ______________ *  Appeal from Marion County Circuit Court, Tiffany Underwood, Judge. 323 Or App 322, 522 P3d 564 (2022). 134 Dept. of Human Services v. Y. B. Cite as 372 Or 133 (2024) 135 MASIH, J. In this case, mother challenges a determina- tion made by the juvenile court under ORS 419B.476(2)(a) concerning the permanency plan for her child, A. In July 2019, A was made a ward of the court, committed to the legal custody of the Department of Human Services (DHS), and placed in substitute care.1 Following a three-day per- manency hearing in 2022, the juvenile court changed the permanency plan for A from reunification to guardianship, based on its determination that, despite DHS’s reasonable efforts, mother had not made “sufficient progress” under ORS 419B.476(2)(a) to make A’s safe return home possible. The Court of Appeals affirmed the juvenile court’s ruling without a written opinion. Dept. of Human Services v. Y. B., 323 Or App 322, 522 P3d 564 (2022). We allowed review to clarify the nature of the determination assigned to the juve- nile court by ORS 419B.476(2)(a) and to address the related question of our standard of review for that determination. For the reasons that follow, we now hold that the juvenile court’s “sufficient progress” determination is a legal conclusion rather than a finding of fact, and we conclude that the record developed in this case is legally sufficient to support the juvenile court’s legal conclusion that mother’s progress was insufficient to make possible A’s safe return home and to support the court’s decision to change the permanency plan from reunification to guardianship. We therefore affirm the decision of the Court of Appeals and the judgment of the juvenile court. I.  BACKGROUND A.  Standard of Review DHS bears the burden of proof at a permanency hearing, and it must prove the facts supporting a change to the permanency plan by a preponderance of the evi- dence. ORS 419B.476(1) (requiring the permanency hear- ing to be conducted in accordance with ORS 419B.310); ORS 419B.310(3)(A) (requiring that “the facts alleged in the 1  “Substitute care” is an out-of-home placement directly supervised by DHS or another agency and includes placement of a child in a foster family home, a group home, or another child-caring agency. ORS 419A.004(34)(a). 136 Dept. of Human Services v. Y. B. petition showing the child to be within the jurisdiction of the court *  *  * must be established,” as pertinent here, “[b]y a preponderance of competent evidence”); Dept. of Human Services v. T. L., 358 Or 679, 692, 369 P3d 1159 (2016) (stat- ing that “DHS has the burden to prove that a parent has not made sufficient progress to have the children returned despite its reasonable efforts”). In a dependency case in which we do not review de novo, we generally review the juvenile court’s legal con- clusions for errors of law,2 and we consider the evidence in the light most favorable to the juvenile court’s disposition to determine whether it supports that court’s legal conclu- sions. Dept. of Human Services v. S. J. M., 364 Or 37, 40, 57, 430 P3d 1021 (2018). In addition, we defer to the juvenile court’s findings of fact if there is any evidence in the record to support them. Id. at 57 (affirming juvenile court ruling because “explicit and implicit factual findings, and the evi- dence in the record on which they were based, supported the juvenile court’s legal conclusions”). And, as we discuss further below, we review a legal conclusion that is heavily fact-dependent—such as a juvenile court’s determination of “sufficient progress”—to determine whether the evidence was sufficient to support it. B.  Historical Facts and Juvenile Court Jurisdictional Bases The events that led to this dependency proceeding began in July 2019. Mother left her son, A, who was then about 18 months old, with his regular babysitter for a cou- ple of hours.3 Mother returned to the babysitter’s home with a pizza. When A wandered into the kitchen, where mother was preparing to bake the pizza, mother became angry and began yelling at him. She grabbed A’s right arm and swung him around the kitchen while slapping him on the hands and head. The babysitter took A away from mother. Mother left the babysitter’s home and did not come back that night. The next day, the babysitter called emergency 2  No party requested de  novo appellate review as permitted by ORS 19.415(3)(b), either in the Court of Appeals or in this court, and we choose to review for errors of law. ORS 19.415(1). 3  A spent a great deal of time at the babysitter’s home, including some over- night stays, to accommodate mother’s shift-work schedule. Cite as 372 Or 133 (2024) 137 services because A’s arm was swollen and he avoided mov- ing it. A was transported to the hospital, and, because he was alone, authorities contacted DHS. At the hospital, med- ical personnel determined that A’s arm was fractured. They also noted that the right side of his face was bruised and there were superficial abrasions on other parts of his body. They reported to the police that they suspected child abuse. DHS placed A in protective custody and filed a dependency petition alleging physical abuse and failure to attend to A’s basic needs.4 The juvenile court issued a shelter order based on DHS’s petition, and it committed A to DHS’s temporary custody for placement in substitute care. Police and a Child Protective Services case worker investigated the circumstances of A’s injuries and inter- viewed mother and the babysitter, among others. Mother denied that she had knowingly injured A, asserting, instead, that she walked him out of the kitchen with both hands over his head. Based on information provided by hospital staff and the babysitter, the Marion County District Attorney’s Office charged mother by information with first-degree criminal mistreatment. In September 2019, the juvenile court issued an order establishing dependency jurisdiction over A based on mother’s admissions that she needed the assistance of the court and state to acquire the skills and training necessary to safely parent A and that the no-contact order resulting from the criminal charge prevented her from being a place- ment resource.5 In January 2020, mother was indicted on one count of first-degree criminal mistreatment and one count of fourth-degree assault. In August 2020, following a bench trial, mother was acquitted on the criminal mistreatment charge but convicted of fourth-degree assault. The trial court placed mother on probation and ordered her to complete an 4  A’s father was not available to parent A because he was serving a lengthy prison sentence. The juvenile court also asserted dependency jurisdiction due to father’s unavailability to parent A because of father’s incarceration. Father is not a party on appeal. 5  The criminal court later amended the release agreement to allow mother to have supervised contact with A. 138 Dept. of Human Services v. Y. B. anger management assessment and to participate in par- enting classes. In October 2020, the juvenile court entered a sup- plemental dependency order, based on the stipulations of the parties, which amended the original order to reflect that “mother was convicted of recklessly causing physical injury to the child.” The amended dependency order also dis- missed the allegation concerning mother’s failure to attend to A’s basic needs. The order otherwise continued A’s ward- ship, A’s placement in substitute care, and the permanency plan of reunification. In addition, the court ordered mother to undergo a psychological evaluation and to participate in parenting classes and other recommended services. Mother subsequently submitted to a psychological evaluation performed by Dr. Cook, who diagnosed mother with various mental health conditions. Cook recommended, among other things, that mother complete parenting classes and engage in mental health treatment focusing on emo- tional regulation and distress tolerance. Mother was also interviewed by Dr. Carter, a domestic violence evaluator, who concluded that, to parent A safely, mother needed to address her unresolved “significant trauma issues” stemming from events in her childhood and from her adult relation- ships with her domestic partners. Beginning in June 2021, mother began participating in trauma-based therapy with Dean, a licensed clinical social worker. In July 2021, she also began receiving one-on-one parenting coaching from Keiser, a parent educator. In August 2021, mother seemed to be making progress in acquiring safe parenting skills, and DHS returned A—then three years old—to mother’s care with in-home parenting coaching by Hummer, an in-home safety and reunification services specialist. Shortly thereafter, Hummer reported to DHS that mother was having diffi- culty parenting. During that time, DHS also received two calls on its emergency hotline concerning the family. Davis, the DHS child abuse investigator, responded. Mother told Davis that A would hit and kick her, and she acknowledged that she struggled to manage that behavior, because it trig- gered a trauma response in her. Mother reported that she Cite as 372 Or 133 (2024) 139 was having “near panic attacks” because of A’s aggressive behavior toward her and that, on multiple occasions, she had locked herself in a room away from A or locked A in a room away from her. DHS also learned that, on one occa- sion, mother had tied A’s arm from the shoulder with a jump rope to prevent him from hitting her and as a form of dis- cipline. In September 2021, because DHS had determined that mother was having difficulty parenting A and that her actions presented a safety concern, DHS again removed A from mother’s care. A had been in mother’s care for about three weeks at that point. After A was re-removed, DHS continued to pro- vide mother with services aimed at reunification, including continued therapy with Dean and parent-child-interaction therapy with a new therapist, Irwin, which was designed to help mother and A with bonding, attachment, behavior, obedience, and parenting skills. DHS also facilitated super- vised visitation with mother, including visits at mother’s church and home to give her an opportunity to practice the skills that she was learning. Although mother actively and willingly engaged in the services that DHS provided to her, her progress was slow. By February 2022, A had been in substitute care for over two and a half years, and DHS continued to have con- cerns about mother’s parenting. Accordingly, DHS recom- mended that A’s permanency plan be changed from reuni- fication to guardianship. In arguing for that change, DHS focused on the length of time that A had been in substitute care, his multiple placements, the failed attempt to return A to mother’s care, certain incidents in which mother became disproportionately upset with A over trivial matters, and mother’s tendency to confuse A by not using direct, age- appropriate commands when asking him to do something. C.  The Permanency Hearing and Juvenile Court’s Ruling The juvenile court conducted a permanency hear- ing over the course of three days in February and April 2022. The court heard testimony from Cook, Carter, Keiser, Hummer, Irwin, and Dean, as well as from DHS profes- sionals who had interacted with mother and A, including 140 Dept. of Human Services v. Y. B. Rutherford, the family’s primary caseworker, and Davis, the child abuse investigator. According to those witnesses, although mother had begun to show observable improve- ment in her ability to parent A effectively, she still had a long way to go before A could be safely returned to her care. The court also heard testimony from mother about her suc- cessful completion or active participation in training and services, implementation of training, and her plan for the return of A, which included, among other things, using her own mother (grandmother) as a babysitter or potential live-in safety service provider. The juvenile court announced its ruling at the con- clusion of the hearing. The court explained that, before it could change the permanency plan from reunification to guardianship, it would have to determine that DHS had made reasonable efforts to reunify the family but that mother had not made sufficient progress to allow A to be safely returned home. In addition, under ORS 419B.476(5)(e), if it were to determine that the permanency plan should be the establishment of a legal guardianship, then it also would be required to determine that neither placement of A with a parent nor changing the plan to adoption was appropriate. The court first addressed whether DHS had made “reasonable efforts” to reunify the family, as required by ORS 419B.476(2)(a). The court described the services that DHS had provided to mother, including parent-child interactive training with Irwin, trauma therapy with Dean, parenting coaching with Keiser, parenting classes with Hummer, and referrals for eye movement desensitization and reprocessing therapy to address her trauma. The court determined that those services represented “reasonable efforts *  *  * to make it possible for the ward to safely return home.” Turning to whether mother had made “sufficient progress” in safely parenting A, the juvenile court acknowl- edged that mother had made some progress, and it agreed that mother was “able to recite what she’s learned in parent- ing classes [and] that she’s able to show that she’s absorbed it.” However, the court concluded, mother “has not been able to put that [knowledge] into practice.” The court noted that mother remained unwilling to accept that her actions Cite as 372 Or 133 (2024) 141 had led to A’s removal and re-removal and that she did not acknowledge her role in his broken arm or “the gravity of tying [A] up with a jump rope.” The court observed that, although mother had participated in trauma therapy, she had not focused on the traumas that led her to respond inap- propriately to A’s behavior and led Carter initially to refer her to trauma therapy; instead, she had focused on other traumatic experiences in her past that did not affect her par- enting and had not been the primary basis for the referral. Moreover, the court noted, when mother was asked whether she intended to address the trauma that was affecting her parenting, “her response was vague and noncommittal.” The juvenile court also noted that, on multiple occa- sions during the attempted reunification, mother had locked herself away from A or turned her back on him and ignored him when she felt unable to cope with his behavior or his demands, noting that that response was deleterious to A’s need and ability to form strong attachments to mother and, generally, to his emotional development. Additionally, the court expressed concern that mother’s plan for the future included permitting the grandmother to care for A. Mother had obtained a restraining order against the grandmother in June 2019, after the grandmother, in the presence of A, attempted to strangle mother and slapped mother’s then four-year-old daughter.6 The court found that, despite the training and services that DHS had provided to mother and despite how eagerly and willingly mother had engaged in those services, “there is still a disconnect where mom doesn’t quite get it, doesn’t understand why it is a problem and a safety concern to permit somebody access to her child who has previously attempted to strangle her and has previ- ously assaulted another.” The court also pointed to mother’s testimony that she had ignored the grandmother for a year after the attempted strangulation as a means to make the grandmother more sensitive to her and her children’s needs. The court connected mother’s response to the grandmother to evidence that mother ignored A when his demands or behavior overtaxed her, and it concluded that that “ignor- ing behavior appears to be something that[,] despite the 6  The daughter lived with her father but had regular visitation with mother. 142 Dept. of Human Services v. Y. B. training and services that [mother] has received[, mother] still relies on believing that these ignoring behaviors are helpful, and that’s not something [A] needs.” Ultimately, the court determined that a change in the permanency plan from reunification to guardianship was appropriate. In so concluding, the court stated, “I cannot con- clude that [mother] has ameliorated the basis of jurisdiction such that [A] could return home within a reasonable time, as his health and [safety] are the top concern of the Court.” The court observed that A had already been in substitute care “for over one thousand days.” The court noted that Cook, who had performed three parental-assessment psychological evaluations on mother, the most recent of which had been in October 2021, had testified that mother would need con- tinuing mental health therapy in order to be able to respond appropriately to parenting instruction, to reduce her “post- traumatic reactivity” to A’s behavior, to meet A’s needs, and to become a minimally adequate parent. Cook had opined that it would take between one and two years to accomplish those goals—“a substantial period of [A’s] life.” For those reasons, the court concluded that, even though mother had made substantial progress, and despite DHS’s reunification efforts, “[A] cannot be safely returned to [mother’s] care at this time and the evidence does not support a determination that further efforts will make it possible for [A] to safely return home within a reasonable time.” In that regard, the court observed, quoting from ORS 419A.004(26), that a “reasonable period of time” is measured by A’s “emo- tional and developmental needs” and his “ability to form and maintain lasting attachments,” and A had already spent most of his life in substitute care. The court then made the additional determination that ORS 419B.476(5)(e) requires when a court determines that the permanency plan for a ward should be changed from reunification to legal guard- ianship—namely, that placement with the ward’s parents or adoption is not appropriate. It found that placement of A with a parent was not appropriate because, despite DHS’s reason- able reunification efforts, A could not safely be returned to a parent within a reasonable time. It further found that, based on A’s attachment to a parent, adoption would not be in A’s Cite as 372 Or 133 (2024) 143 best interest. Finally, the court found that remaining in sub- stitute care was necessary and in A’s best interest. The court subsequently entered a written judgment changing the per- manency plan from reunification to guardianship. 7 Mother appealed, challenging the juvenile court’s ruling, and, as noted, the Court of Appeals affirmed without opinion. II.  THE PARTIES’ ARGUMENTS ON REVIEW On review, mother asserts that the juvenile court applied an incorrect legal standard in making its “sufficient progress” determination. As mentioned, the juvenile court, in its oral ruling, stated, “I cannot conclude that [mother] has ameliorated the basis of jurisdiction such that [A] could return home within a reasonable time, as his health and [safety] are the top concern of the Court.” Pointing to that statement, mother argues that the juvenile court held her to a standard that ORS 419B.476(2)(a) does not require. Mother asserts that that statute does not require a parent to have completely ameliorated the bases for the wardship to avoid a change in A’s permanency plan. Rather, it requires sufficient progress toward ameliorating the bases for the wardship to the extent necessary to make the safe return of A to her care possible at the time of the hearing or within a reasonable time after the hearing. And, she argues, that is a question of law, not fact. In addition, mother contends that DHS failed to meet its burden to produce evidence sufficient to support a determination that she had made insufficient progress to permit A’s safe return home. She asserts that many—if not all—of the witnesses at the permanency hearing tes- tified that mother had made significant progress. Mother acknowledges that she will need continued services, but she argues that that is not a reason to conclude that she had not made sufficient progress. DHS, for its part, contends that whether a par- ent has made sufficient progress to make possible the safe return of a child is a factual finding, not a legal conclusion, and that this court must defer to the juvenile court’s find- ing in this case that mother had made insufficient progress 7  At the time of the hearing, no potential guardian had been identified. 144 Dept. of Human Services v. Y. B. if there is any evidence in the record to support it. DHS agrees that the correct inquiry at the permanency hearing was not whether the bases for dependency jurisdiction had been completely ameliorated, but, rather, whether A could safely be returned to mother’s care at the time of the hear- ing or within a reasonable time thereafter. Here, however, DHS argues that there was ample evidence in the record to support the juvenile court’s finding that, despite mother’s efforts, A would not be safe in her care, even with continued support. III.  ANALYSIS A.  Permanency Proceedings As we explained in S. J. M., before interpreting the statutes at issue, it is helpful to place the permanency decisions at issue in the case in context. 364 Or at 50-51. When the juvenile court makes a child a ward of the court, a series of complex statutes and proceedings come into play. The statutes seek to protect the safety and well-being of chil- dren and the rights of the parents. See ORS 419B.090(2) - (4) (describing constitutional and statutory rights of children and parents). There is a “strong preference that children live in their own homes with their own families,” and DHS is obligated, except in cases involving “extreme conduct,” to work with families toward family reunification at the outset, ORS 419B.090(5); see ORS 419B.502 (concerning “extreme conduct”). But the statutes also recognize that “it is not always possible or in the best interests of the child or the public for children who have been abused or neglected to be reunited with their parents.” ORS 419B.090(5). Children have a right to “permanency with a safe family,” ORS 419B.090(2)(a)(A), and the state has an “obligation to create or provide an alternative, safe and permanent home for the child,” ORS 419B.090(5). And, as this court stated in S. J. M., “[t]hat right to permanency sometimes can conflict with a parent’s interest in having additional time to make sufficient progress for the child to be safely returned home.” 364 Or at 51. The statutes governing permanency proceedings (ORS 419B.470 to ORS 419B.476) were enacted in response Cite as 372 Or 133 (2024) 145 to federal legislation establishing requirements for state substitute care and juvenile court systems, with the goal of reducing the length of time that children spend in substi- tute care. T. L., 358 Or at 689. ORS 419B.470 requires the court to hold permanency hearings when a child is in sub- stitute care and provides the deadlines for such hearings. The purpose of a permanency hearing is to determine, or update, the permanency plan for the child and to establish the timetable and conditions for accomplishing that plan. ORS 419B.476(2), (4), (5); T. L., 358 Or at 689 (so stating). Permanency hearings provide court oversight of the perma- nency plan, DHS’s efforts, and the parent’s progress in mak- ing the child’s safe return home possible. B.  The “Sufficient Progress” Determination ORS 419B.476 governs the conduct of permanency hearings and changes to permanency plans. That statute provides, in relevant part, that, at a permanency hearing, if the case plan at the time of the hearing is to reunify the family, the court “shall *  *  * determine whether [DHS] has made reasonable efforts *  *  * to make it possible for the ward to safely return home and whether the parent has made suf- ficient progress to make it possible for the ward to safely return home.” ORS 419B.476(2)(a). It also provides that, in making that determination, “the court shall consider the ward’s health and safety the paramount concerns.” Id. Thus, at a permanency hearing, the juvenile court reviews both DHS’s efforts to provide services to the parent and the par- ent’s progress in ameliorating the conditions that led to the child becoming a ward of the court to determine whether the child’s safe return home is possible at the time of the hear- ing. If not, the court may determine that the permanency plan for the child should be something other than reunifi- cation, such as adoption, guardianship, or placement with a relative. ORS 419B.476(5)(b)(B) - (D).8 In addition, ORS 419B.476(4)(c) gives the juvenile court discretion to continue the current plan of reunification if it determines that further efforts may make possible the 8  For a child 16 years of age or older, the juvenile court also can order that the child be placed in “another planned permanent living arrangement.” ORS 419B.476(5)(b)(E). 146 Dept. of Human Services v. Y. B. child’s safe return “within a reasonable time” and, if it so determines, to order the parents to “participate in specific services for a specific period of time and make specific prog- ress within that period of time[.]” Finally, ORS 419B.476(5)(e) provides that, if the determination is to change the plan to legal guardianship, then the court’s order “shall include *  *  * the court’s determination of why neither placement with parents nor adoption is appropriate.” The “progress” that a parent must make is in ame- liorating, to the extent necessary to make possible the child’s safe return to the parent’s care, the circumstances that led the juvenile court to make the child a ward of the court. ORS 419B.476(2)(a) (court must determine whether the par- ent has made “sufficient progress” to make it possible for the ward to safely return home). “Progress” does not mean completely ameliorating the bases for dependency jurisdic- tion—inherent in the notion of “progress” is that the parent need not establish at the time of the hearing that wardship is no longer necessary and should be dismissed.9 Context supports that interpretation. For example, the definition of “substitute care” in ORS 419A.004 contem- plates continuing DHS involvement with the family: ORS 419A.004(34)(b)(C) excludes from the definition of “substi- tute care,” “[i]n-home placement subject to conditions or lim- itations[.]” DHS regulations also reflect that understanding. For instance, OAR 413-040-0017(1) provides, in part, that a caseworker may recommend “returning the child *  *  * to a parent” when the caseworker has verified that the “identi- fied impending danger safety threats can be managed with an ongoing safety plan.” Thus, we agree with mother and the state that a parent can be found to have made sufficient progress to war- rant the denial of a DHS request to change the permanency plan away from reunification even if further services would be required were the child to be returned home, and even if 9  Jurisdiction is based on proof by a preponderance of the evidence of the facts alleged in the petition to make the child a ward of the court. ORS 419B.100; ORS 419B.310(3)(a)(A). Thus, dependency jurisdiction will be dismissed only if the conditions or circumstances giving rise to the court’s jurisdiction have been completely ameliorated and DHS involvement is no longer necessary. Cite as 372 Or 133 (2024) 147 the child will remain in the legal custody of DHS and sub- ject to the juvenile court’s ongoing supervision. C.  Nature of the Determination The juvenile court determined that DHS had made reasonable efforts but that mother had not made sufficient progress “to make it possible for the ward to safely return home.” The parties disagree about whether that “sufficient progress” determination is a finding of fact or a legal con- clusion, and they contend that whether the juvenile court’s permanency ruling should be affirmed depends upon that distinction. We agree that the distinction is important: As previously discussed, we accept the juvenile court’s findings of fact if there is any evidence in the record to support them, but we review legal conclusions for errors of law. DHS points out that this court suggested, in S. J. M., that both the reasonable-efforts and sufficient-progress determinations are findings of fact: “In these cases, the juvenile court found that DHS had made reasonable efforts to reunite L and A with their parents. Those findings were not challenged. The juvenile court also made findings, unchallenged here, that mother and AJB had not made sufficient progress to allow them to be reunited with their children.” 364 Or at 57. DHS relies on this court’s reference to “findings” in S. J. M. to infer that we have already held that “sufficient progress” is a factual finding. However, that issue was not presented in S. J. M. The fact that our opinion in that case happened to use the word “findings” in passing to describe the nature of the determination does not reflect any consider- ation of the issue before us here, and we give it little weight. Mother, meanwhile, points to numerous Court of Appeals decisions holding that “sufficient progress” is a question of law. See, e.g., Dept. of Human Services v. C. H., 327 Or App 61, 63, 533 P3d 1112 (2023) (so stating); Dept. of Human Services v. C. W., 312 Or App 572, 574, 493 P3d 74 (2021) (same); Dept. of Human Services v. G. N., 263 Or App 287, 294, 328 P3d 728 (2014) (same). Although those cases are not controlling in this court, mother contends that they correctly construe the statute. 148 Dept. of Human Services v. Y. B. Whether “sufficient progress” is a question of fact or law depends on its function within the statute. To determine that function, we consider the wording of the statute as a whole and the context in which that phrase is used, as well as the nature of the determination assigned to the juvenile court. See State v. A. R. H., 371 Or 82, 89, 530 P3d 897 (2023) (applying similar methodology to resolve whether juvenile court determination, under ORS 163A.030, that youth was not rehabilitated and must report as a sex offender, is find- ing of fact or conclusion of law). Turning first to the wording of the statute, we observe that ORS 419B.476 does not direct the juvenile court to “find” or make “findings” of reasonable efforts or sufficient progress. Rather, it directs the juvenile court to “determine” whether DHS’s efforts were reasonable and whether the par- ent’s progress was sufficient to make it possible for the child to safely return home. The word “determine” is ambiguous and the use of that word rather than the word “find” does not resolve the issue. However, this court has stated that the terms “reasonable” and “sufficient” are important indicators that determinations are legal and not factual: “We acknowledge the temptation to treat indefinite terms like ‘good cause,’ ‘sufficient reason,’ and ‘reasonable period of time’ as calling for a subjective determination and, thus, as invoking personal judgment. However, it is clear that, when such terms appear in a statutory context, they are focused on real, albeit sometimes difficult to dis- cern, legal standards: the legislature’s view of what is ‘good,’ ‘sufficient,’ or ‘reasonable.’  ” State v. Johnson, 339 Or 69, 86, 116 P3d 879 (2005) (empha- sis in original). Thus, the text of the statute suggests that the juvenile court’s determinations of “reasonable efforts” and “sufficient progress” are legal conclusions. Statutory con- text lends some support to that interpretation. Under ORS 419B.100, the juvenile court has dependency jurisdiction in cases involving, among others, a person “[w]hose condition or circumstances are such as to endanger the welfare of” that person. ORS 419B.100(1)(c). Whether the person’s con- ditions or circumstances endanger the person’s welfare is a Cite as 372 Or 133 (2024) 149 legal determination, not a factual finding. That is, the role of the juvenile court in a proceeding under ORS 419B.100(1)(c) is to determine whether the facts as alleged and proved by DHS establish the court’s authority to create or continue the legal relationship between the child and the state as required for wardship. See, e.g., Dept. of Human Services v. N. P., 257 Or App 633, 639-40, 307 P3d 444 (2013) (a juve- nile court’s determination of dependency jurisdiction, pred- icated on its determination under ORS 419B.100(1)(c) that a parent’s condition at the time of the hearing does or does not present a risk of harm to a child, is a legal conclusion). Similarly, under ORS 419B.476, “reasonable efforts” and “sufficient progress” describe the legal standard that must be met to justify the juvenile court’s decision to maintain or change the permanency plan of a ward of the court. Consideration of the nature of the sufficient prog- ress determination points us in the same direction. As this court stated in T. L., “a change in permanent plan from return to parent to either guardianship or [another planned permanent living arrangement] marks a profound change of course in the path to finality for children in care.” 358 Or at 692. That is so because it “divests the parent of family reunification services as a matter of right from that time forward,” id. at 691, insofar as, after a permanency plan changes from reunification to guardianship, “the parent’s status as the preferred placement for the child is effectively terminated, unless and until the plan is changed at a sub- sequent permanency hearing,” id. at 693. The court in T. L. further noted that, “[a]lthough that consequence is not so drastic as the termination of parental rights, the magnitude of deprivation—including the potentially permanent denial to a parent of custody and care of children—nevertheless is grave.” Id. at 693. The nature of the competing interests at stake, as well as text and context calling for the application of a legal standard, persuade us that the juvenile court’s “determination” of sufficient progress is a legal conclusion that this court reviews for errors of law. At the same time, we recognize that the suffi- cient-progress determination, although ultimately a legal conclusion, is heavily fact-driven. In N. P., the Court of 150 Dept. of Human Services v. Y. B. Appeals ably explained how an appellate court should apply the error-of-law standard of review in evaluating whether the juvenile court has erred in making a similarly fact- driven, statutorily prescribed determination. As noted, the issue in N. P. was whether the juvenile court’s dependency jurisdiction over the child should continue. Under ORS 419B.100(1)(c), resolution of that issue depended on the juve- nile court’s determination whether the child’s “condition or circumstances [were] such as to endanger the welfare of the person or others.” In explaining how it would apply the error-of-law standard of review to the juvenile court’s deter- mination, the Court of Appeals stated: “Our non-de novo review of such a determination is analogous to the deferential review of other factually pred- icated determinations that are, ultimately, circumscribed by limits of ‘matter of law’ sufficiency, for example, denials of motions for directed verdict or motions for judgment of acquittal. That is, we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court’s disposition and assess whether, when so viewed, the record was legally suf- ficient to permit that outcome. Specifically, with respect to a juvenile court’s determination under ORS 419B.100(1)(c), we: (1) assume the correctness of the juvenile court’s explicit findings of historical fact if these findings are supported by any evidence in the record; (2) further assume that, if the juvenile court did not explicitly resolve a disputed issue of material fact and it could have reached the disposition that it reached only if it resolved that issue in one way, the court implicitly resolved the issue consistently with that disposition; and (3) assess whether the combination of (1) and (2), along with nonspeculative inferences, was legally sufficient to permit the trial court to determine that ORS 419B.100(1)(c) was satisfied. “We emphasize that our non-de novo appellate review function does not allow us to substitute our assessment of the persuasiveness of the evidence for the juvenile court’s, nor does it allow us to revisit the juvenile court’s resolution of factual disputes or its choice among reasonable inferences. Rather, as (again) with our review of rulings on motions for directed verdicts or motions for judgment of acquittal, our function is limited to determining whether the evidence was sufficient to permit the challenged determination.” Cite as 372 Or 133 (2024) 151 257 Or App at 639-40. Because a juvenile court’s determi- nation that a child’s conditions or circumstances are such as to “endanger” the child’s welfare is comparable to the “sufficient progress” determination that is at issue here, we believe that the Court of Appeals’ approach in N. P. was correct and equally applicable to our review of the juvenile court’s determination of whether a parent has made “suffi- cient progress” under ORS 419B.476(2)(a). Accordingly, we adopt it here. To summarize, then, in reviewing a juvenile court’s determination to change a permanency plan because a par- ent has not made “sufficient progress” to allow a child to safely return home, appellate courts are bound by the juve- nile court’s factual findings as to what efforts DHS has made and what actions the parent has taken, so long as there is any evidence in the record to support them, and we assume that the juvenile court found all facts necessary to its rul- ing, even if it did not do so explicitly. But the juvenile court’s determination that a parent has or has not made “sufficient progress” to allow the child to return home safely is a legal conclusion that appellate courts review for errors of law, and they do that by examining whether the facts explicitly and implicitly found by the juvenile court, together with all inferences reasonably drawn from those facts, were legally sufficient to support the juvenile court’s determination. We now turn to apply that standard of review here. IV.  APPLICATION TO THIS CASE Mother does not dispute that the evidence in the record was legally sufficient to permit the juvenile court to determine that DHS had made reasonable efforts to make the safe return of A possible. Thus, the primary issue before this court is whether the juvenile court erred in determin- ing that, at the time of the hearing, mother had not made “sufficient progress to make it possible for the ward to safely return home.” As we have discussed, the juvenile court’s “suffi- cient progress” inquiry is to determine whether the parent has ameliorated the conditions or circumstances that led the juvenile court to make the child a ward of the court to the 152 Dept. of Human Services v. Y. B. extent necessary to make possible—with continued services from DHS if necessary—the child’s safe return to the par- ent’s care. In this case, the statutory basis for the juvenile court’s dependency jurisdiction is that A’s “condition or cir- cumstances *  *  * are such as to endanger the welfare of the [child],” based on the allegations that “mother was convicted of recklessly causing physical injury to A” and that “mother needs the assistance of the court and state to acquire the skills and training necessary to safely parent this child.” Here, the juvenile court principally based its deter- mination that mother had not made sufficient progress in alleviating the basis for the court’s dependency jurisdiction, and, specifically, the allegations set out in the dependency petition, on the following findings: (1) mother was unwill- ing to accept that her actions had led to A’s removal and re-removal, and she failed to acknowledge her role in his broken arm or the gravity of tying up A with a jump rope; (2) mother was unable to put the parenting lessons that she had learned into practice; (3) mother failed or was unwilling to address in therapy the past traumas that provoked inap- propriate responses in her to A’s behavior; (4) mother chose to lock herself away from A or turn her back on him and ignore him when she felt unable to cope with his behavior or his demands; (5) mother failed to understand why it would be unsafe and unwise for her to permit the grandmother to have contact with and responsibility for her child; and (6), according to Cook, it would take mother another one to two years of therapy and training to become a minimally adequate parent. Mother does not dispute that those findings are supported by evidence in the record. Rather, she points to testimony at the hearing by Rutherford, her caseworker, suggesting that A’s safety could not be ensured without a full-time, live-in safety service provider, and by Hummer, a parenting coach, expressing concerns for A’s safety when mother is unsupervised. Mother contends that Rutherford’s and Hummer’s testimony seemed to reflect an unachievable standard: that, if A’s safety cannot be guaranteed, then the parent necessarily has not made sufficient progress. Moreover, she argues, the juvenile court seemed to rely, at Cite as 372 Or 133 (2024) 153 least in part, on its finding that mother was “triggered” by A’s normal, age-appropriate behaviors to bolster its con- clusion that A’s safety could not be ensured. She contends that there was no evidence in the record that episodes in which she had felt “triggered” showed a pattern of violence or otherwise demonstrated a safety threat to A to support a determination of insufficient progress. In sum, mother argues, the facts that the juvenile court set out in its ruling and on which it relied are insufficient as a matter of law to support the juvenile court’s determination that her progress was insufficient, particularly given that many—if not all— of the witnesses at the hearing testified that mother had made significant progress, especially after A’s re-removal in September 2021. We see nothing in the juvenile court’s ruling that suggests that the juvenile court’s insufficient progress deter- mination was based on a finding that A’s safety could not be guaranteed or ensured. Moreover, evidence in the record supported the juvenile court’s findings that mother contin- ued to be triggered by A’s behavior, that mother had not ade- quately addressed her trauma triggers in therapy, that she had reacted in the past with physical discipline when she was overwhelmed and stressed and frustrated, and that she did not recognize that her approach to physical discipline in the past was something that was harmful to A. The juve- nile court reasonably could infer from that evidence that mother might react in an extreme way that endangers A. Thus, even though mother had not reacted violently toward A in the months before the permanency hearing, the juve- nile court reasonably could infer from evidence in the record that, if mother were confronted with situations that trig- gered her when she was alone with A, without the support of a safety service provider, she might react in a more extreme way than she would when there was supervision, including resorting to physical violence, and A would not be safe in her care. In reaching that conclusion, we are not unmindful of the growing body of data and social science research that mother has cited regarding the potential for bias in DHS’s treatment of families of color, as hers is, which can lead to 154 Dept. of Human Services v. Y. B. skewed assessment measures and disparate interventions in state child-welfare systems. Cook recognized as much and sought to avoid such effects in mother’s case, advising DHS “to pay attention to possible racial issues.” However, even Cook estimated that mother would need one to two years, from the date of his October 2021 evaluation, of additional DHS ser- vices, including regular therapy and classes to address her post-traumatic stress, her reactivity to A’s behavior, and her lack of parenting skills. That testimony supported the juve- nile court’s determination that A could not safely be returned to mother’s care within a reasonable time. To be sure, there is evidence in the record that, in the months before the permanency hearing, mother had engaged willingly and eagerly in the services DHS had pro- vided her and that she had made some meaningful prog- ress.10 Ultimately, however, the juvenile court’s “sufficient progress” inquiry is explicitly centered on whether the articulated bases for dependency jurisdiction have been suf- ficiently ameliorated so that “the ward [may] safely return home,” a determination that the juvenile court was required to make with “the ward’s health and safety [as its] para- mount concerns.” ORS 419B.476(2)(a). What matters under ORS 419B.476(2)(a) is whether the parent has made suffi- cient progress, as a result of those services or otherwise, to overcome the concerns that gave rise to juvenile court’s dependency jurisdiction to the extent that it would be pos- sible for the ward to safely return home, with or without continued DHS services and support.11 Here, we conclude 10  Irwin, for example, submitted a report stating that mother had been mak- ing real progress in acquiring parenting skills, and, at the time of the hearing, A was compliant with mother’s requests 95 percent of the time. Rutherford testified that, in the previous six to eight months, he had observed improvements in the attachment and bond between mother and A; he had observed more warmth and genuine feeling. Dean testified that mother’s ability to take criticism was improv- ing, and Keiser noted improvement in mother’s ability to interact and play with A, and in her responsiveness to parenting instruction. 11  Under ORS 419B.476, DHS’s goal in providing services is to make reuni- fication possible. In cases in which the parent actively participates in and suc- cessfully completes the services offered yet still is determined not to have made sufficient progress to make possible the child’s safe return home, the question may arise whether the services offered were reasonably aligned with the family’s needs to effectuate the goal of reunification. That issue is not presented here, however, as mother does not challenge the reasonableness of DHS’s efforts to help the family achieve reunification. Cite as 372 Or 133 (2024) 155 that the facts found by the juvenile court were legally suf- ficient to support the juvenile court’s determination that mother had not made sufficient progress to make possible the safe return of A, either at the time of the hearing or within a reasonable time thereafter, and to support its deci- sion to change the permanency plan from reunification to guardianship.12 The decision of the Court of Appeals and the judg- ment of the juvenile court are affirmed. 12  We also reject mother’s contention that the juvenile court’s statement, in its oral ruling, that it “cannot conclude [mother] has ameliorated the basis for jurisdiction such that [A] could return home within a reasonable time” shows that the juvenile court applied an incorrect standard in making its determina- tion of insufficient progress. In context, that statement does not reflect a misap- plication of the correct legal standard for a change in permanency plan; rather, it is better understood to reflect the court’s determination that mother had not made sufficient progress to make it safe for A to return home. Viewed as a whole, the court’s statement of its findings of fact and conclusions of law reflects that the court understood the nature of the determination it was to make under ORS 419B.476.

16852c3df03e19554e865654f79197994cd195a8825a23fb8086b52524a48c14

2024-03-28T00:00:00Z

2da35b6a-0d3a-40f0-95e5-0f526ffabea2

Marcus v. Myers

oregon

Oregon Supreme Court

Filed: August 30, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON LEWIS MARCUS, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48622) On petition to review ballot title. Argued and submitted on August 8, 2001. Lewis Marcus, pro se, argued the cause and filed the petition. Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. LEESON, J. Ballot title referred to the Attorney General for modification. LEESON, J. This ballot title review proceeding under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State has denominated as Initiative Petition 54 (2002). For the reasons explained below, we hold that the ballot title's summary does not comply substantially with the requirements of ORS 250.035(2)(d). We refer the ballot title to the Attorney General for modification. ORS 250.085(8); Flanagan v. Myers, 332 Or 318, 323-24, ___ P3d ___ (2001) (August 2, 2001). The proposed initiative measure would amend Article IV, section 1, of the Oregon Constitution, by permitting registered voters to "sign" initiative, referendum, and recall petitions electronically. As relevant to petitioner's challenge, the proposed measure would add the following text to the constitution: "(a) For the purposes of this subsection, words 'Electronic Signature' or 'Signature' or 'Sign' means Registered Voter Approval by Electronic Transmission. "(b) For the purposes of this subsection 'Electronic Transmission' means transmission via computer or other means over the Internet or other computer network to the computer receiving such transmission. "(c) For the purposes of this subsection, 'Registered Voter Approval' means entry and Electronic Transmission by a registered voter of the information required by paragraph (f) of this subsection." The Attorney General certified the following ballot title: "AMENDS CONSTITUTION: ALLOWS REGISTERED VOTERS TO SIGN INITIATIVE, REFERENDUM, AND RECALL PETITIONS BY ELECTRONIC TRANSMISSION OF 'SIGNATURE' "RESULT OF 'YES' VOTE: 'Yes' vote allows registered voters to sign initiative, referendum, and recall petitions by electronic transmission of 'signature'; continues to allow handwritten signatures. "RESULT OF 'NO' VOTE: 'No' vote rejects proposal permitting registered voters to sign initiative, referendum, and recall petitions by electronic transmission of 'signature'; retains current law allowing handwritten signatures. "SUMMARY: Amends Constitution. Current law allows handwritten signatures on initiative, referendum, and recall petitions, but does not provide for 'signing' such petitions by electronic transmission. Measure allows voters to 'sign' petitions by electronic transmission. Electronic transmission means computer transmission, through the internet or other computer network. 'Electronic signature' is not defined, but must include voter's name and residential address, in substantial conformity with voter registration information. Until government provides each voter a unique identifier, voter also must provide contact information, such as e-mail address, telephone number, which shall not become public record. Election officials must either validate or prove signatures invalid using identifying information provided by petition signer. Legislature shall review electronic-petitioning process, and create new provisions to standardize, but not hinder, process. Other provisions." (Emphasis added.) ORS 250.035(2)(d) requires a ballot title for a proposed state measure to include "[a] concise and impartial statement of not more than 125 words summarizing the state measure and its major effect." Petitioner challenges only the clause emphasized above in the Attorney General's summary: "'Electronic signature' is not defined." Petitioner contends that the clause is inaccurate because subsection (a) defines "Electronic Signature." That subsection provides: "For the purposes of this subsection, words 'Electronic Signature' or 'Signature' or 'Sign' means Registered Voter Approval by Electronic Transmission." Subsections (b) and (c), in turn, define the terms "Electronic Transmission" and "Registered Voter Approval." The Attorney General responds that, reading subsections (a), (b), and (c) together, it is unclear how the proposed measure defines the term "Electronic Signature." The relevant meaning of "define" in this context is "to * * * set forth the meaning of" a word or word group. Webster's Third New Int'l Dictionary, 592 (unabridged ed 1993). The proposed measure explains that, for purposes of the measure, "Electronic Signature" means "Registered Voter Approval by Electronic Transmission." The meanings of "Electronic Transmission" and "Registered Voter Approval" appear in subsections (b) and (c) of the proposed measure. That the Attorney General finds the meaning of "Electronic Signature" unclear does not mean that the proposed measure does not define that term. Because the proposed measure sets forth the meaning of "Electronic Signature," the Attorney General's statement that the term lacks a definition is inaccurate and violates the statutory requirement that the summary be an impartial statement summarizing the measure. It follows that the Attorney General's summary does not comply substantially with the requirement of ORS 250.035(2)(d). Under ORS 250.085(8), we refer the ballot title to the Attorney General for modification. Ballot title referred to the Attorney General for modification.

54438f4252ab119c990ea1f0c766ce3c017c978f568cc7ed4b50ec920e512b7a

2001-08-30T00:00:00Z

89619905-4530-41fc-b815-b5642ca5ebf5

Novick v. Myers (S48562)

S48562

oregon

Oregon Supreme Court

Filed: August 9, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48562) En Banc On petition to review ballot title. Submitted on the record July 19, 2001. Steven Novick, in propria persona, filed the petition. Douglas F. Zier, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. PER CURIAM Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). PER CURIAM This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, denominated by the Secretary of State as Initiative Petition 44 (2002). Petitioner is an elector who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore is entitled to seek review in this court. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2). ORS 250.085(5). (1) Petitioner challenges only the "yes" result statement in the Attorney General's certified ballot title. We have considered petitioner's argument and have determined that it is not well taken. Accordingly, we certify the following ballot title to the Secretary of State: AMENDS CONSTITUTION: DISTRIBUTES TEN PERCENT OF STATE PERSONAL AND CORPORATE INCOME TAX REVENUE TO SOME LOCAL GOVERNMENTS RESULT OF "YES" VOTE: "Yes" vote requires distribution of ten percent of state personal and corporate income tax revenue to some local governments that do not tax business income. RESULT OF "NO" VOTE: "No" vote retains the current tax system where personal and corporate income tax revenue collected by the state is directed to the state general fund. SUMMARY: Amends constitution. Currently, all state tax revenue collected from personal and corporate income is directed to the state general fund and is used to fund education, public safety, human services, and other state programs. Measure requires ten percent of state personal and corporate income tax revenue (including corporate excise taxes) collected in tax years beginning on or after July 1, 2003 to be "equitably" distributed to local governments that do not impose taxes on business income. Measure defines "local governments" to include cities, counties, and local service districts providing "essential services"; excludes local school districts and metropolitan service districts from definition of "local governments." Measure does not define terms "equitably" or "essential services." Reduces revenue available for state government expenditures and provides no replacement funds. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). 1. The 2001 Legislative Assembly amended ORS 250.085 in a respect not relevant to this proceeding.

411889d899d1f62c3997f62e177eb7361bd7156b3049ba65cdc3a6f590963de7

2001-08-09T00:00:00Z

8e8fe549-39df-42c8-8020-c4efaef5bc57

Kuerschner v. Myers

S48673

oregon

Oregon Supreme Court

Filed: August 30, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON CAROLINE E. KUERSCHNER, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48673) On petition to review ballot title. Argued and submitted August 20, 2001. Steven C. Berman, Portland, argued the cause and filed the petition for petitioner. Jas. Jeffrey Adams, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. PER CURIAM Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). PER CURIUM This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, denominated by the Secretary of State as Initiative Petition 57 (2002). Petitioner is an elector who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title and who therefore is entitled to seek review in this court. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035 (2)(a) to (d). ORS 250.085(5). (1) Petitioner challenges the Attorney General's caption, "yes" and "no" vote result statements, and summary. We have considered each of petitioner's arguments and conclude that none is well taken. Accordingly, we certify the following ballot title to the Secretary of State: AMENDS CONSTITUTION: OVERRIDES LAWS LIMITING DEVELOPMENT ON FARMLAND, FORESTLAND; REQUIRES APPROVING NEW DWELLING ON EACH TAX LOT RESULT OF "YES" VOTE: "Yes" vote overrides state and local laws that limit building new dwellings on farmland and forestland; requires approving a new dwelling on each tax lot. RESULT OF "NO" VOTE: "No" vote keeps existing state and local laws that authorize but limit the building or siting of new single-family dwellings on farmland and forestland. SUMMARY: Amends constitution. Current local and state laws authorize but limit building or siting new dwellings on farmland or forestland. Measure requires approval of a new single-family residence on farmland and forestland on any tax lot one acre or larger, provided listed conditions are met. Conditions include limits on size of dwellings and related outbuildings, and setback and waste disposal requirements. Overrides existing state and local limits on building or siting new dwellings on farmland and forestland. Creates new definition of "parcel" based on receipt of separate tax bill. Measure applies to fee owners and contract purchasers. For tax lots under 10 acres, requires that 80 percent of land not be used for dwellings, outbuildings; 90 percent for tax lots over 10 acres. Other provisions. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). 1. The 2001 Legislative Assembly amended ORS 250.085 in a respect not relevant to this proceeding.

3ad697c64b34fd0a93555bea0fb9f26230d579405c557b98092056bb0a92f671

2001-08-30T00:00:00Z

e0f66780-b06e-496c-862e-039f12a05621

Sizemore/Novick v. Myers (Certification)

oregon

Oregon Supreme Court

Filed: August 24, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON BILL SIZEMORE, Petitioner, v. HARDY MYERS, Attorney General for the State of Oregon, Respondent. _______________________________________________________ STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General for the State of Oregon, Respondent. (SC S48280; S48283) (Consolidated for Argument and Opinion) On modified ballot title filed August 16, 2001.* David F. Coursen, Assistant Attorney General, Salem, filed the Filing of Modified Ballot Title for respondent. With him on the filing were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. No appearance contra. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs and De Muniz, Justices. The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). * Sizemore/Novick v. Myers, 332 Or 352, ___ P3d ___, (2001) (referring ballot title for modification). The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 19 (2002), failed to comply substantially with statutory standards. Sizemore/Novick v. Myers, 332 Or 352, ___ P3d ___ (2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 19 (2002) states: "AMENDS CONSTITUTION: PROHIBITS USING PAYROLL DEDUCTION PROCESS, OTHER PUBLIC RESOURCES TO COLLECT 'POLITICAL' MONEY FROM PUBLIC EMPLOYEES "RESULT OF 'YES' VOTE: 'Yes' vote prohibits using any public resource, including payroll deduction process, in collecting money used for 'political purposes' (as defined), even if collection costs reimbursed. "RESULT OF 'NO' VOTE: 'No' vote retains current law, rejects prohibition on using any public resource, including payroll deduction process, in collecting money used for 'political purposes' (as defined). "SUMMARY: Amends constitution. Current law permits voluntary payroll deductions from public employees for political purposes, prohibits compelled contributions; prohibits soliciting political contributions on government time. Measure would prohibit using payroll deduction process, taking any other actions using 'public funds' -- even if funds reimbursed -- to collect money for union or any other entity that uses any portion of collected money for any 'political purpose.' Use for 'political purpose' includes direct, indirect contribution to candidate, committee, party; expenditure supporting or opposing candidate or ballot measure, encouraging or discouraging petition signatures; commingling with other money used for political purpose. 'Public funds' include public employee work time, public buildings, equipment, supplies. Measure allows using collected money for lobbying (with exceptions), producing official Voter's Pamphlet. Double penalty for violations. Other provisions." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9).

4c2de04a3abbe1ec5539f4bc3db6f6cbdca5f42a99a5bb5d0a1aef063b935248

2001-08-24T00:00:00Z

2817a80a-8c82-4e96-a5f0-4d9708b971df

In re Kimmell

S47464

oregon

Oregon Supreme Court

Filed: August 30, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON In re Complaint as to the Conduct of ADAM KIMMELL, Accused. (OSB No. 98-82; SC S47464) On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted May 3, 2001; reassigned June 20, 2001. Adam Kimmell, in propria persona, Portland, argued the cause and submitted the brief. Mary A. Cooper, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and submitted the brief for the Oregon State Bar. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices.* PER CURIAM The accused is suspended from the practice of law for a period of six months, commencing 60 days from the date of filing of this decision. * Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. PER CURIAM In this lawyer discipline proceeding, the Oregon State Bar (Bar) charged the accused with violating two disciplinary rules of the Code of Professional Responsibility: Disciplinary Rule (DR) 1-102(A)(2) (prohibiting commission of "criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law"); and DR 1-102(A)(3) (prohibiting "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation"). The Bar also alleged that the accused violated ORS 9.527(1) (conduct justifying denial of Bar admission). A trial panel of the Disciplinary Board found that the accused violated only DR 1-102(A)(3) and suspended him from the practice of law for six months. The Bar sought review of the trial panel's decision. ORS 9.536(1); Bar Rule of Procedure (BR) 10.3. This court reviews the record de novo. ORS 9.536(3); BR 10.6. The Bar has the burden of establishing alleged misconduct by clear and convincing evidence. BR 5.2. We hold that the accused violated DR 1-102(A)(2) and DR 1-102(A)(3), and suspend him from the practice of law for six months. I. FACTS The accused first was admitted to the practice of law in New York in 1978. In 1985, he was admitted to practice in California. In New York and California, the accused's practice focused on business transactions. In 1991, the accused was admitted to the practice of law in Oregon. From 1991 to the present, he has had a solo practice primarily in the areas of personal injury and criminal law. On September 28, 1997, the accused entered a department store, placed a jacket in a black shoulder bag that he was carrying, and left the store without paying for the jacket. After observing the accused's conduct via video surveillance, store personnel apprehended him outside the store. The accused objected to being detained and denied any wrongdoing. Even after the jacket was found in his bag with the department store tags still attached, the accused maintained that the jacket belonged to him. Police arrested the accused and charged him with theft in the second degree. ORS 164.045. (1) Theft in the second degree is a Class A misdemeanor. ORS 164.045(2). However, because the accused had no prior criminal convictions, the Multnomah County District Attorney's office elected to prosecute the offense as a violation. Former ORS 161.565(2) (1997), repealed by Or Laws 1999, ch 1051, § 49. The accused pleaded guilty to the offense, and the trial court imposed a $200 fine, $100 of which would be suspended if the accused attended an "anti-theft talk" within 90 days. The Multnomah County District Attorney's office notified the Bar of the accused's conviction and, in February 1999, the Bar filed a formal complaint against the accused. In his answer, the accused admitted that he had committed the alleged misconduct. However, he asserted that the Bar's complaint should be dismissed because his "conduct was prosecuted as a violation, and [former] ORS 161.565(4) [(1997)] provides that such a conviction 'does not give rise to any disability or legal disadvantage.'" Before the trial panel, the accused conceded that he had committed theft and that his conduct was dishonest and intentional. He also testified that he had acted impulsively, that he was remorseful and that, although he previously had shoplifted as a child, he had learned from his most recent "mistake" and "never would do it again." In support of those contentions, the accused offered the testimony of Dr. True, a licensed psychologist. True opined that, even when viewed together with the accused's childhood shoplifting incidents, the recent incident was not indicative of a pattern of criminal behavior. However, True acknowledged that, without additional treatment, there existed "at least some significant chance that * * * similar incidents could happen in the future." Dr. Scherr, a licensed psychologist who testified on the Bar's behalf, also opined that, without treatment, the accused is "susceptible to dishonest behavior." As noted, the trial panel concluded that the accused's misconduct was dishonest, in violation of DR 1-102(A)(3). However, the trial panel concluded that, under former ORS 161.565(4) (1997), the accused could not be subject to discipline under either DR 1-102(A)(2) or ORS 9.527(1). Based on the DR 1-102(A)(3) violation, the trial panel imposed a six-month suspension and recommended that the accused's readmission be conditioned on proof that he successfully had completed counseling and had demonstrated that he was not likely to engage in similar dishonest conduct in the future. II. DISCUSSION We first address the accused's assertion that, because he pleaded guilty to a violation and not to a crime, former ORS 161.565(4) (1997) precludes lawyer discipline for the same conduct, i.e., theft of the jacket. For the following reasons, we reject that argument. Former ORS 161.565(4) (1997) provided: "Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime." (2) Under that statute, persons convicted of a violation are prohibited from suffering "any disability or legal disadvantage" that they would have suffered had they been convicted of a crime, as opposed to a violation. (3) Assuming, without deciding, that a disciplinary sanction qualifies as either a "disability or legal disadvantage" under former ORS 161.565(4) (1997), that statute does not apply to this proceeding, because none of the charged violations in this disciplinary action is based on the accused's conviction. Proof of conviction is not required to find a violation of DR 1-102(A)(3) or ORS 9.527(1). Similarly, although DR 1-102(A)(2) requires the court to examine an alleged "criminal act," this court has held that proof that an accused lawyer was convicted for such an act is not required to find a violation of DR 1-102(A)(2). In re Allen, 326 Or 107, 120, 949 P2d 710 (1997). Because this disciplinary action is not based on the accused's conviction, but rather on the accused's conduct, former ORS 161.565(4) (1997) is not a defense to the violations alleged. The accused argues, and the trial panel agreed, that this court's application of ORS 161.705 in In re Sonderen, 303 Or 129, 734 P2d 348 (1987), supports his contention that former ORS 161.565(4) (1997) precludes Bar discipline here. (4) The accused's reliance upon Sonderen is misplaced. The court in Sonderen concluded that the accused lawyer was not subject to discipline under ORS 9.527(2) when a felony conviction later was reduced to a misdemeanor that was not a crime involving moral turpitude. (5) Unlike the violations at issue in this proceeding (DR 1-102(A)(2), DR 1-102(A)(3), and ORS 9.527(1)), discipline under ORS 9.527(2) depends on proof of a certain type of conviction. See Allen, 326 Or at 116 (ORS 9.527(2) authorizes court to discipline lawyers for conviction of only two types of criminal offenses -- felonies and misdemeanors involving moral turpitude). As noted, the violations at issue here do not require proof of any conviction at all, much less any particular type of conviction. Thus, Sonderen provides no assistance to the accused. In sum, we conclude that former ORS 161.565(4) (1997) is not a defense to the disciplinary violations alleged in this case. Consequently, if the Bar has established the alleged violations by clear and convincing evidence, former ORS 161.565(4) (1997) does not preclude this court from disciplining the accused. We turn now to the alleged violations. B. DR 1-102(A)(2) DR 1-102(A)(2) provides that it is professional misconduct for a lawyer to "[c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law[.]" To find a violation of DR 1-102(A)(2), the court must determine whether: (1) the accused committed a criminal act; and (2) the act reflects adversely on the accused's honesty, trustworthiness, or fitness to practice law. Allen, 326 Or at 120. The accused admits that he committed a criminal act, namely theft. The accused also acknowledges that his conduct was dishonest. On the basis of those concessions, we conclude that the Bar has proven that the accused violated DR 1-102(A)(2) by committing a criminal act that reflects adversely on his honesty. C. DR 1-102(A)(3) DR 1-102(A)(3) provides, in part, that it is professional misconduct for a lawyer to "[e]ngage in conduct involving dishonesty[.]" The accused concedes that his conduct was dishonest. Accordingly, we conclude that he violated DR 1-102(A)(3). D. ORS 9.527(1) As noted, the Bar chose, in addition to the disciplinary rule violations, to charge the accused with a violation of ORS 9.527(1). (6) Although, in the past, this court has found that the same conduct can violate both the Code of Professional Responsibility and a provision of ORS Chapter 9, see, e.g., In re Gatti, 330 Or 517, 8 P3d 966 (2000); In re Allen, 326 Or 107, 949 P2d 710 (1997); In re Bridges, 298 Or 53, 688 P2d 1335 (1984) (each so finding), such a finding generally has not served to enhance the sanction that this court has imposed for the violation or violations of the Code of Professional Responsibility. In this case, the Bar does not argue that a finding that the accused violated ORS 9.527(1), in addition to DR 1-102(A)(2) and DR 1-102(A)(3), for theft of the jacket would enhance the sanction that we would impose for the accused's violations of the disciplinary rules. We conclude that a finding that the accused violated ORS 9.527(1) would have no practical effect on the sanction that we impose in this case. Therefore, we decline to address the Bar's charge that the accused violated that statute. Having found that the accused violated DR 1-102(A)(2) and 1-102(A)(3) when he committed theft in the second degree, we turn now to the question of sanction. III. SANCTION This court's methodology in determining the appropriate sanction for violations of the disciplinary rules is well established. See In re Jaffee, 331 Or 398, 408, 15 P3d 533 (2000) (describing methodology). Consistent with that methodology, we refer to the American Bar Association Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) and to this court's case law for guidance in determining the appropriate sanction. In doing so, we are mindful that "[p]roceedings for the discipline of an attorney are not to punish the attorney for the commission of a crime. That matter is left to the criminal courts. The objects of the proceedings here are to uphold the dignity and respect of the profession, protect the courts, preserve the administration of justice and protect clients." In re Carstens, 297 Or 155, 166, 683 P2d 992 (1984). In this case, the accused violated his duty to the public to maintain standards of personal integrity. ABA Standard 5.1. As noted in the commentary to ABA Standard 5.0 at 36: "The most fundamental duty which a lawyer owes the public is the duty to maintain the standards of personal integrity upon which the community relies. The public expects the lawyer to be honest and to abide by the law; public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct." The accused admits that he acted intentionally, that is, with the "conscious objective or purpose to accomplish a particular result." See ABA Standards at 17 (defining "intent"). "Injury" includes actual or potential harm to a client, the public, the legal system, or the legal profession. ABA Standards at 6-7. As noted, the accused's conduct caused actual and potential harm to the department store from which he stole. The accused's conduct implicates several ABA Standards. Disbarment generally is appropriate when a lawyer: (1) engages in serious criminal conduct, such as a felony, and any lesser crime that includes theft as a necessary element; or (2) engages in any other intentional conduct involving dishonesty that "seriously adversely reflects on the lawyer's fitness to practice" law. ABA Standard 5.11(a) and (b). (7) Suspension generally is appropriate when a lawyer knowingly engages in criminal conduct "that seriously adversely reflects on the lawyer's fitness to practice" law. ABA Standard 5.12. Drawing together the duty violated, the accused's mental state, and the injury caused, our initial determination is that suspension or, possibly, disbarment is the appropriate sanction. We next consider any aggravating and mitigating factors, and this court's case law. ABA Standard 9.22 identifies aggravating factors that may be relevant in a particular situation. Here, the accused has a prior disciplinary record. ABA Standard 9.22(a). After becoming an inactive member of the California Bar in 1992, the accused filed documents in California courts and continued to represent that he was admitted to practice law in California. Based on that misconduct, the accused was disciplined in Oregon in 1996 for violating DR 3-101(B) (prohibiting unlawful practice of law) and DR 2-101(A)(1) (prohibiting communications about lawyer that are materially misleading). Although the accused was sanctioned for those violations before he engaged in the misconduct at issue, their significance is lessened in this proceeding, because they involved misconduct different in kind from that at issue here and resulted only in a public reprimand. See In re Jones, 326 Or 195, 200, 951 P2d 149 (1997) (setting out nonexhaustive list of factors that serve to heighten or diminish significance of earlier misconduct). The accused also acted with a dishonest and selfish motive. ABA Standard 9.22(b). (8) Only one mitigating factor is present: The accused expressed remorse. ABA Standard 9.32(l). In determining the appropriate sanction, this court also examines the accused's conduct in the light of this court's prior case law. The accused contends that "not all thefts are equally 'serious'" and that, because his theft was an isolated act that did not arise "in a professional context," only a short suspension is warranted. The Bar disagrees. Relying on a footnote in In re Pierson, 280 Or 513, 517-18 n 1, 571 P2d 907 (1977), in which this court questioned the relevance of the distinction between theft from a client and theft from a nonclient, the Bar submits that "theft is theft" and asks this court to disbar the accused. Theft from a client is the most egregious form of theft that can be committed by a lawyer and generally warrants disbarment. See, e.g., In re King, 320 Or 354, 359, 883 P2d 1291 (1994) (so stating); In re Phelps, 306 Or 508, 520, 760 P2d 1331 (1988) (where an accused "steals funds from a client, the sanction is disbarment," despite mitigating circumstances); Pierson, 280 Or at 518 (single conversion of client funds will result in disbarment). This court also has held that theft from someone other than a client may result in disbarment or a lengthy suspension. For example, in In re Pennington, 220 Or 343, 348 P2d 774 (1960), the court disbarred a lawyer who misappropriated partnership funds. In doing so, the court noted that violating a fiduciary duty owed to a partnership was "no less abhorrent" than violating a fiduciary duty owed to a client. Similarly, in In re Murdock, 328 Or 18, 968 P2d 1270 (1998), this court disbarred a lawyer who embezzled more than $9,000 from his law firm. In In re Stodd, 279 Or 565, 568 P2d 665 (1977), a lawyer was suspended for two years after he converted funds from a nonprofit organization of which he was president. Other cases involving theft from someone other than a client have not resulted in disbarment or a lengthy suspension. In In re Mahr, 276 Or 939, 556 P2d 1359 (1976), this court imposed a 90-day suspension on a lawyer who was convicted of second-degree theft after stealing a plug socket from a department store. In In re Carstens, 297 Or 155, 683 P2d 992 (1984), a lawyer who converted his wife's joint ownership interest in a vehicle received a public reprimand. In doing so, the court emphasized that the accused's poor judgment arose from his ongoing marital dissolution proceeding and that the act for which he was convicted was unlikely to recur. Id. at 167. The foregoing discussion demonstrates that, historically, this court has been of the view that there is a distinction between lawyer theft that results in a violation of a fiduciary duty and lawyer theft that does not. In most instances, a lawyer who misappropriates property or funds while acting in a fiduciary capacity will be sanctioned more severely than a lawyer who misappropriate property or funds outside that capacity. (9) Having made that distinction, and keeping in mind that the accused was not acting in a fiduciary capacity when he committed the theft at issue, we note that theft is, nevertheless, an act of "serious misconduct involving moral turpitude," Mahr, 276 Or at 943. In this proceeding, the accused admits that he committed theft, that the decision to commit theft "came easily" to him, that he acted intentionally, that his conduct was dishonest, and that he was "surprised" by how seriously the Bar took that misconduct. The accused's conduct demonstrates a disrespect for the law that he has taken an oath to uphold, calling into question that which is required of every lawyer -- good moral character. See In re Tobiga, 310 Or 46, 51-52, 791 P2d 830 (1990) (admission statute requires showing of good moral character to protect public in their dealings with practitioners). Because this case involves aggravating factors, a more lengthy suspension than the 90-days imposed in Mahr is warranted. However, because this case does not involve the violation of a fiduciary duty, a suspension that is shorter than the two-year suspension imposed in Stodd is appropriate. Accordingly, we conclude that the accused's violations of DR 1-102(A)(2) and DR 1-102(A)(3) warrant a six-month suspension. The accused is suspended from the practice of law for a period of six months, commencing 60 days from the date of filing of this decision. 1. ORS 164.045 provides: "(1) A person commits the crime of theft in the second degree if, by other than extortion, the person: "(a) Commits theft as defined in ORS 164.015; and "(b) The total value of the property in a single or aggregate transaction is $50 or more but is under $200 in a case of theft by receiving and under $750 in any other case." ORS 164.015 provides, in part: "A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person: "(1) Takes, appropriates, obtains or withholds such property from an owner thereof[.]" 2. Although the legislature repealed former ORS 161.565 (1997) in its entirety, Or Laws 1999, ch 1051, § 49, subsection (4) of that statute appears merely to have been renumbered. ORS 153.008(2) (1999) now provides: "Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime." Or Laws 1999, ch 1051, § 3. 3. Under the criminal code, a violation is not a "crime." See ORS 161.515(2) (defining "crime" as "either a felony or a misdemeanor"). "Violations" are distinguishable from "crimes" in that imprisonment may not be imposed for conviction of a violation, ORS 153.018(1), whereas imprisonment may be imposed for conviction of a crime, ORS 161.515(1). 4. ORS 161.705 permits sentencing courts to reduce certain felonies to misdemeanors. 5. ORS 9.527(2) provides that this court may discipline a lawyer if the lawyer "has been convicted in any jurisdiction of an offense which is a misdemeanor involving moral turpitude or a felony under the laws of this state, or is punishable by death or imprisonment under the laws of the United States, in any of which cases the record of the conviction shall be conclusive evidence[.]" 6. ORS 9.57 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: "(1) The member has committed an act or carried on a course of conduct of such nature that, if the member were applying for admission to the bar, the application should be denied[.]" 7. The accused contends that his shoplifting should not be considered a "serious crime" for purposes of ABA Standard 5.11(a). The ABA Standards do not differentiate among degrees or kinds of thefts. The commentary to ABA Standard 5.11 provides: "A lawyer who engages in any of the illegal acts listed [in ABA Standard 5.11(a)] has violated one of the most basic professional obligations to the public, the pledge to maintain personal honesty and integrity. This duty to the public is breached regardless of whether a criminal charge has been brought against the lawyer." However, as demonstrated infra, not all thefts merit disbarment. 8. We note that the Bar asserts that other aggravating factors apply. However, we only discuss those that we find to be relevant. 9. Black's Law Dictionary, 625 (6th ed 1990), explains that one acts in a "fiduciary capacity" "when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part."

8001e8a9e563536a8290d340ccc89ad75fc272576a84deb9e4a65546fce882a6

2001-08-30T00:00:00Z

35d18b96-d05a-4194-9922-7155a8ee2417

DeYoung/Thomas v. Board of Parole

S47467

oregon

Oregon Supreme Court

Filed: July 6, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON DENNIS MARTIN DEYOUNG, Petitioner on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review. ___________________________________ EDWARD ANDREW THOMAS, Petitioner on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review. (CA A106889, A105130; SC S47467, S47322) (Consolidated for Briefing, Argument, and Opinion) On review from the Court of Appeals.* Argued and submitted November 2, 2000. Daniel M. Carroll, Deputy Public Defender, Salem, argued the cause for petitioners on review. With him on the brief were David E. Groom, State Public Defender, and Irene B. Taylor, Deputy Public Defender. Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.** GILLETTE, J. The orders of the Court of Appeals are affirmed. *On judicial review of orders of the Board of Parole and Post-Prison Supervision. **Van Hoomissen, J., retired on December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz, J., did not participate in the consideration or decision of this case. GILLETTE, J. These two petitions, consolidated for briefing, argument, and opinion, seek review of dismissals by the Court of Appeals of petitions for judicial review of orders issued by the Board of Parole and Post-Prison Supervision (Board). The petitions challenge the dismissal orders of the Court of Appeals only to the extent that they designate the Board as the prevailing party on appeal and allow costs -- specifically, a $100 prevailing party fee -- payable by petitioners. Petitioners argue that, under the circumstances, the Court of Appeals had no authority to designate a prevailing party or to award costs. We conclude that the Court of Appeals had that authority and, accordingly, affirm. Factually, the two cases differ only slightly. Petitioner DeYoung sought judicial review of a Board order that denied him re-release after a parole violation and set a new release date five years in the future. The Board moved to dismiss the petition on the ground that its order was a "decision relating to a release date" and, therefore, was exempt from judicial review. See ORS 144.335(3) ("[B]oard's order is final and is not subject to judicial review when the board makes any decision relating to a release date"); Quintero v. Board of Parole, 329 Or 319, 986 P2d 575 (1999) (affirming dismissal of petition for judicial review of order denying re-release and setting new release date). The Court of Appeals granted the motion, issuing a dismissal order that designated the Board as the prevailing party and allowed costs in the amount of $100 (as a prevailing party fee under ORS 20.190), payable by DeYoung. DeYoung moved for reconsideration of the award of costs arguing, inter alia, that there was no statutory authority for recovering costs from either party in a review of an order of the Board. The Court of Appeals denied the motion, stating in its order that it had authority to award costs, including the prevailing party fee provided in ORS 20.190(1), under ORS 20.120 and ORS 20.310, both set out post. DeYoung then brought the present petition for review. Petitioner Thomas's case also began when he sought judicial review of a Board decision revoking post-prison supervision and setting a new release date. However, because the Board's supervisory authority over him expired before the Court of Appeals took any action, the Board moved to dismiss review as moot. The Court of Appeals granted the motion, issuing a dismissal order that designated the Board as the prevailing party, allowed costs payable by Thomas, and included a $100 money judgment, again as a prevailing party fee under ORS 20.190. Thomas moved to recall the appellate judgment and petitioned for reconsideration of that part of the dismissal order that imposed costs. The Court of Appeals denied the motion, this time citing ORS 20.120 and ORS 20.190 as authority for the award of costs and prevailing party fee. Thomas then sought review by this court, and we consolidated his petition with that of DeYoung. As noted, the Court of Appeals cited three statutes as authority for its decision to impose costs on petitioners. The first, ORS 20.120, provides: "When the decision of an officer, tribunal, or court of inferior jurisdiction is brought before a court for review, such review shall, for all the purposes of costs and disbursements, be deemed an appeal to such court upon errors in law, and costs therein shall be allowed and recovered accordingly." The second, ORS 20.310, provides, in part: "(1) In any appeal to the Court of Appeals or review by the Supreme Court, the court shall allow costs and disbursements to the prevailing party, unless a statute provides that in the particular case costs and disbursements shall not be allowed to the prevailing party or shall be allowed to some other party, or unless the court directs otherwise. * * * "(2) Costs and disbursements on appeal to the Court of Appeals or Supreme Court or on petition for review by the Supreme Court are the filing or appearance fee, the reasonable cost for any bond or irrevocable letter of credit, the prevailing party fee provided for under ORS 20.190, the printing, including the abstract of record, required by rule of the court, postage for the filing or service of items that are required to be filed or served by law or court rule, and the transcript of testimony or other proceedings, when necessarily forming part of the record on appeal." Finally, ORS 20.190 provides for a prevailing party fee to be awarded in addition to other costs and disbursements: "(1) Except as provided in subsections (2) and (5) of this section, a prevailing party in a civil action or proceeding who has a right to recover costs and disbursements in the following cases also has a right to recover, as a part of the costs and disbursements, the following additional amounts: "(a) In the Supreme Court or Court of Appeals, on an appeal, $100." Petitioners contend that the foregoing statutes do not authorize cost awards in their cases. They argue, first, that, because their petitions for judicial review were dismissed for lack of jurisdiction, the Board was not a "prevailing party" for purposes of ORS 20.310 and ORS 20.190. Petitioners reason that, if the Court of Appeals lacked jurisdiction to decide the merits of their petitions, it also lacked authority to designate a prevailing party or award costs. In support of that reasoning, petitioners point to general case law pertaining to how a court must respond when it finds that it lacks jurisdiction over a case. See, e.g., Oregonians for Health and Water v. Kitzhaber, 329 Or 339, 334, 986 P2d 1167 (1999) (dismissing petition for review raising issue outside scope of statute the conferred limited direct review authority on Supreme Court); Meyer v. Joseph, 295 Or 588, 668 P2d 1228 (1983) (dismissing certified appeal sua sponte on discovering lack of jurisdiction). Petitioners also rely on two "prevailing party" cases, Berger Farms v. First Interstate Bank, 330 Or 16, 21-22, 995 P2d 1159 (2000), and Stelljes/Dumler v. State Board of Parole, 307 Or 365, 769 P2d 177 (1989), which they argue stand, respectively, for the following propositions: (1) a court may award costs only if it has jurisdiction to decide the case or appeal on the merits; and (2) a court may award costs only if a party actually prevails "on the merits." Petitioners misconstrue Berger Farms and Stelljes/Dumler. Those jurisdiction cases stand only for the proposition that an appellate court must dismiss a case and must refrain from making any decision on the merits when it lacks jurisdiction. They do not hold either that designating a prevailing party is a decision on the merits or that such a designation otherwise is precluded when an appeal or review is dismissed. Although both cases contain some statements, discussed below, that superficially seem useful to petitioners, it is clear, on closer inspection, that the actual holdings are not on point. Berger Farms involved a contract dispute. The contracts in question contained clauses to the effect that all disputes arising out of the contracts would be resolved by binding arbitration in accordance with the Federal Arbitration Act (FAA), 9 USC § 1 et seq. One party to the contract filed an action against the other in circuit court, alleging several claims. The defendant moved to stay the action pending arbitration of the claims under the FAA. The trial court denied the motion, the defendant appealed, and the Court of Appeals ultimately concluded that most of the claims were subject to arbitration and that the action must be stayed with respect to those claims. The defendant then sought an award of attorney fees on appeal under the attorney fees provisions of the contracts, which provided for reasonable attorney fees and other costs to the prevailing party "if any legal action, arbitration or other proceeding is brought." 330 Or at 19. Over the plaintiffs' objection, the Court of Appeals awarded attorney fees to the defendant. On the plaintiffs' petition for review of the attorney fees order, this court reversed. The court noted, with respect to the attorney fees that the defendant had incurred on the claims that were held to be arbitrable, that the Court of Appeals had decided that the trial court must stay proceedings on those claims pending arbitration: "The effect of that decision was to halt the court proceedings on the arbitrable claims, thereby suspending the court's involvement in those claims. It follows that the Court of Appeals had no authority to award attorney fees incurred on those claims, because it already had determined that an arbitrator must decide the underlying dispute. Stated differently, because the Court of Appeals was without authority to decide the merits of the parties' underlying dispute on the arbitrable claims, it likewise was without authority to decide whether defendant was entitled to attorney fees arising out of that dispute." Id. at 21-22. Petitioners focus on the last sentence of the foregoing paragraph as support for their theory that appellate courts are without authority to decide entitlement to costs if those courts have no authority to decide the merits of the underlying claim. However, we agree with the Board that Berger Farms is a case concerned with the scope of mandatory arbitration and the FAA, and that it does not purport to speak to the more general question of what it means to prevail for purposes of the general statutes that provide for costs and disbursements. That fact is made evident not only by the authorities that are cited in the relevant part of the Berger Farms opinion -- all federal cases pertaining to the scope of binding arbitration under the FAA -- but also by the fact that the opinion does not refer to any of the statutes that ordinarily govern awards of costs and attorney fees in this state. (1) Ultimately, when Berger Farms is read in its entirety, it becomes clear that its superficially favorable wording does not sweep beyond the context of binding arbitration. There also is clear support in older case law from this court for the Board's view that authority to dismiss an appeal for lack of jurisdiction includes the authority to award costs, particularly when, as in the present cases, the respondent has moved for dismissal and the court has granted that motion. In Portland & O.C. Ry. Co. v. Doyle, 86 Or 206, 167 P 270 (1917), for example, this court granted the respondent's motion to dismiss an appeal on jurisdictional grounds, yet awarded costs and disbursements under Lord's Oregon Laws section 565 (a predecessor statute to ORS 20.190). The appellant moved to recall the mandate for costs, arguing that the court lacked jurisdiction to award costs if it lacked jurisdiction to hear the merits of the appeal. The court rejected that argument: "In the very nature of things we had the power to decide the motion [to dismiss for lack of jurisdiction], because, until a decision there could be no authoritative adjudication. Although the appeal terminated in a decision that we lacked jurisdiction to hear the cause on the merits[,] the very act of deciding the motion [to dismiss] was equivalent to a determination that we possessed the power to decide the motion, and therefore * * * to dispose of the appeal. Granting the motion to dismiss made the respondent the prevailing party on appeal and it was properly allowed $15 costs and the necessary disbursements, as provided by sections 565 and 566, [Lord's Oregon Laws]." Id. at 209-10. See also McCargar v. Moore, 88 Or 682, 687-88, 173 P 258 (1918) (whether motion to dismiss is oral or written, appellee ordinarily is prevailing party and is entitled to costs of appeal when appeal dismissed for lack of jurisdiction). (2) Although Doyle and McCargar speak to much older versions of the costs and disbursements statutes, they retain their logical force and dispose of petitioners' theory about the effect of a dismissal for lack of jurisdiction on a court's continuing authority to award costs. Petitioners also suggest, in a related but more general sense, that a decision "on the merits" is required to justify awarding a prevailing party fee. They rely on Stelljes/Dumler. However, we disagree with petitioners' reading of that case. In Stelljes/Dumler, two petitioners, Dumler and Stelljes, sought judicial review of orders by the Board of Parole setting release dates. (3) Immediately thereafter, and before the Court of Appeals issued any decisions, the Board withdrew both the challenged orders and issued new orders that essentially gave the petitioners the relief that they sought from the Court of Appeals. Subsequently, the Court of Appeals dismissed Dumler's petition, designating him as prevailing party and awarding him costs, but denying his claim for a prevailing party fee under ORS 20.190. For reasons that are unclear, Stelljes was permitted to continue his review proceeding, and the Court of Appeals ultimately affirmed the Board's new order and designated the Board as the prevailing party. However, when Stelljes petitioned for costs and a prevailing party fee under ORS 20.190, the Court of Appeals awarded costs, but denied the request for a prevailing party fee. Dumler and Stelljes both sought review of the Court of Appeals' orders to the extent that the orders denied their claims for prevailing party fees. Because the issue had not been raised or briefed, this court expressly declined to consider the seemingly obvious question whether the petitioners were entitled to costs under the circumstances at all. Stelljes/Dumler, 307 Or at 369 n 8. We noted only that ORS 183.497 generally controls the award of costs in judicial reviews of administrative actions and that ORS 183.482(6) provides for an award of costs in such reviews if the agency withdraws an order before the date set for hearing and modifies it in the petitioner's favor, but that neither of those statutes was applicable to judicial review of Board orders. Id. at 368. With respect to prevailing party fees provided under ORS 20.190, this court concluded that the statute would not support an award of prevailing party fees in Dumler's and Stelljes' cases: "We conclude that in order to receive a prevailing party fee in these cases, petitioners had to prevail on the merits in the Court of Appeals. They did not do so. The Court of Appeals dismissed Dumler's petition, and Stelljes case was decided in favor of the Board. Petitioners may have benefitted from the Board's new orders; however, any such benefit resulted from the Board's action, not from any decision on the merits by the Court of Appeals. Thus they did not prevail on the merits in the Court of Appeals and, therefore, are not entitled to ORS 20.190 prevailing party fees." Id. at 369 (emphasis in original). Petitioners suggest that the operative words in the foregoing quoted paragraph are "on the merits." Petitioners are mistaken. The operative words are "in the Court of Appeals." The party asserting entitlement to the prevailing party fee must show, at a minimum, that the party's victory happened in the Court of Appeals, rather than in some other forum. A victory in some other forum, even if achieved only after invoking the jurisdiction of the Court of Appeals, does not mean that a party has prevailed for purposes of the award of a prevailing party fee. See, e.g., ORAP 13.05(3) (party qualifies as "prevailing" for purposes of allowance of costs -- including prevailing party fee -- "only if the court reverses or substantially modifies the judgment or order from which the appeal or judicial review was taken" (4) (emphasis added)). In sum, we are persuaded that petitioners' arguments pertaining to the Court of Appeals' authority to impose costs in connection with the dismissal of their petitions for judicial review are not well taken. Although appellate courts may decline to award costs to the prevailing party in cases of dismissal, for reasons of fairness or otherwise, (5) a party nevertheless may be said to have prevailed on appeal, for purposes of costs and disbursements, by obtaining dismissal of the appeal or petition. Petitioners next argue that the cost awards in their cases were unauthorized because there is no specific statutory authority in the statutes that govern judicial review of Board orders for awarding costs to the prevailing party. Petitioners begin by noting (correctly) that costs and attorney fees are controlled entirely by statute and are not recoverable in the absence of a statute or contractual provision that authorizes such an award. See Compton v. Weyerhaeuser, 302 Or 366, 367, 730 P2d 540 (1986) (costs, like attorney fees, not recoverable in absence of statute or contractual provision authorizing award). Petitioners then assert that we must interpret ORS 144.335, the statute that governs judicial review of Board orders, as the complete authority of appellate courts with respect to judicial review of such orders. Petitioners conclude that, because that statute makes no mention of costs or disbursements, it follows that no statute authorizes cost awards in any review of a Board order, regardless of any general authority to award costs under ORS chapter 20. Petitioners have not identified anything persuasive in ORS 144.335 itself or in this court's cases discussing costs and disbursements that supports their view that authority to impose costs on review of a Board order may derive only from a statute that speaks specifically to that kind of proceeding. (6) Petitioners argue that, even if the general cost award provisions in ORS chapter 20 might have some theoretical relevance in a review of a Board order, none of the provisions cited by the Court of Appeals provides actual authority for imposing costs and prevailing party fees in their cases. Because it is largely dispositive, we first consider petitioners' arguments with respect to ORS 20.120. Petitioners argue that ORS 20.120 does not confer affirmative authority to allow costs on judicial review, but, instead, provides only that a party's right to recover costs on judicial review shall be allowed in the same manner and to the same extent as that party's right to recover costs in an appeal. Petitioners contend that, "[because] costs and disbursements may only be awarded on appeal pursuant to express statutory authority, any award of costs on judicial review must be specifically authorized under the statutes governing that review." But, assuming that petitioners' initial premise, viz., that ORS 20.120 is not a source of substantive authority to award costs, is correct, their conclusion logically does not follow. The traditional requirement that authority to award costs, on appeal or otherwise, must be "express" cannot be so easily transformed into petitioners' suggested requirement that such authority must appear in the statutes governing the specific type of judicial review in which the award is made. Neither do petitioners adequately explain why ORS 20.310, which appears to confer express general authority to award costs "in any appeal," is not relevant in this context. It is at least arguable that, because judicial reviews are to be deemed appeals "for all the purposes of costs and disbursements," ORS 20.120, costs also are authorized in any judicial review, unless some statute otherwise provides. And, in any event, this court previously has construed ORS 20.120 as authorizing by itself cost awards on judicial review of an administrative agency's order. In Compton, 302 Or 366, the court ordered a workers' compensation claimant who unsuccessfully challenged a Workers' Compensation Board order in this court to pay that board's costs. The claimant sought reconsideration, arguing that the court did not have authority to impose costs on a private party seeking review of an administrative agency's order. The claimant relied on Shetterly, Irick & Shetterly v. Emp. Div., 302 Or 139, 143, 727 P2d 117 (1986), in which the court had determined that a provision of the Administrative Procedures act (APA), ORS 183.497, precluded allowing costs against a private party when review of a state agency order occurs "as provided in" the APA. Compton, 302 Or at 367-68 (quoting ORS 183.497(2) and Shetterly, 302 Or at 143. The Compton court noted, first, that judicial review of decisions of the Workers' Compensation Board is governed by the workers' compensation statutes, not the APA. Compton, 302 Or at 368. The court then stated: "Shetterly held effectively that ORS 183.497 superseded ORS 20.120 with regard to the cases within the purview of ORS 183.497. However, ORS 20.120 still controls cases not subject to the APA costs limitation. Compton is such a case. "ORS 20.120, a version of which first appeared in the General Laws of Oregon § 554, p 226 (Deady & Lane 1843-1872), provides the statutory authorization for 'costs or disbursements' on review of decisions of a 'tribunal.' Before the APA costs provision existed, the Court of Appeals relied on this statute to uphold an award of costs by the circuit court in an appeal from the Workers' Compensation Board. Cunningham v. State Compensation Department, 1 Or App 127, 459 P2d 892 (1969). The later enactment of the APA cost provision, which does not apply to review of workers' compensation cases, does not change this." Id. at 369 (emphasis added). Compton thus holds that ORS 20.120 is authority for imposing costs and disbursements on judicial review of a administrative agency's order, except when review is "as provided in" the APA. Because judicial review of the Board orders in the present case are not as provided in the APA, ORS 183.315(1) and (5)(a), ORS 20.120 would appear to authorize an award of costs upon review. Petitioners argue, however, that the holding in Compton -- that ORS 20.120 authorizes cost awards in judicial reviews that are not controlled by the APA -- is unsound and should not be applied to the present controversy. Petitioners suggest that the Compton decision should be disregarded as an interpretation of ORS 20.120, because Compton itself disregarded a prior interpretation of ORS 20.120 by this court that was at odds with the interpretation in Compton. Petitioners refer to State ex rel v. Estes, 34 Or 196, 55 P 25 (1898). We do not agree with petitioners that Estes construes ORS 20.120 in a way that conflicts with the interpretation announced in Compton. In Estes, a physician whose license had been revoked by the Board of Medical Examiners sought review of the Board's order in the circuit court. The circuit court reversed the Board order, but denied the physician's motion for costs. This court affirmed the denial of costs. The court noted that the "general" statute providing for recovery of costs and disbursements (presumably Hill's Annotated Laws section 549, the predecessor to ORS 20.190) had no application, because that statute applied only to appeals from the judgment of a court. The court then noted that the statute specifically governing review of orders of the Board of Medical Examiners expressly prohibited awards of costs against the Board. Finally, the court concluded that "the act in question having made no provision for the recovery of costs in case the action of the board be reversed, defendant is not entitled to recovery from the relators as in an ordinary action: Hill's Ann. Laws § 564, 565." 34 Or at 213 (emphasis added). Estes does not construe Hill's Annotated Laws section 565 (which now appears at ORS 20.120). If it suggests anything about that statute, it is that the statute authorized costs awards in "ordinary" judicial reviews under that statute, but that the review at issue was an exception to that statute and a different statute specifically prohibited cost awards against the Board of Medical Examiners. That suggestion is not inconsistent with the interpretation of ORS 20.120 offered in Compton. For the foregoing reasons, we reject petitioners' argument that there is no statutory authority for an award of costs and disbursements to the Board if the Board prevails on judicial review of one of its orders. We need not consider petitioners' arguments that neither ORS 20.310, ORS 20.015, nor any other provisions mentioned in the Court of Appeals' orders authorize cost awards. According to the interpretation announced in Compton, ORS 20.120 authorizes cost awards to the prevailing party in any judicial review that the APA does not govern (a category that includes the present cases as they were considered in the Court of Appeals). (7) Petitioners' final argument specifically pertains to the prevailing party fee provided under ORS 20.190. Under ORS 20.190, that fee is available in a "civil action or proceeding." Petitioners argue that judicial review of an order of the Board is a criminal proceeding and, therefore, is not a civil action or proceeding within the meaning of ORS 20.190. In that regard, petitioners note that the term "criminal" "pertains to or is connected with the law of crimes, or the administration of penal justice," Black's Law Dictionary, 372 (6th ed 1990), a category that arguably includes Board decisions that subject a party to continued incarceration for a crime. Petitioners also rely on the definition of "civil judicial proceeding" that appears in a separate statute, ORS 182.090(3): "As used in this section, 'civil judicial proceeding' means any proceeding, other than a criminal proceeding as defined in ORS 131.005(7), conducted before a court of this state." "Criminal proceeding," under ORS 131.005(7) means "any proceeding which constitutes part of a criminal action or occurs in court in connection with a prospective, pending or completed criminal action." Petitioners contend that, under the foregoing definition, judicial review of Board orders are criminal proceedings, because such review takes place in a court (in their case, the Court of Appeals) and is "in connection with a * * * completed criminal action," i.e., the administration of penal sanctions. We are not persuaded. We note, first, that ORS 182.090(3) specifically pertains to costs and expenses in a particular circumstance -- when a state agency is a party to litigation and the court finds against the agency and also finds that the agency acted "without reasonable basis in fact or law." The statute has a limited scope. It is not context for purposes of determining the meaning of the term "civil action or proceeding" in ORS 20.190. Moreover, and even if ORS 182.090(2) were relevant, the judicial reviews in this case are not reviews "in connection with" a "completed criminal action." "Criminal action" is defined for purposes of ORS 131.005(7) (the statute cross-referenced in ORS 182.090(2)) as an "action at law by means of which a person is accused of the commission of a violation, misdemeanor or felony." ORS 131.005(6). That definition does not sweep so broadly as to include, as petitioners suggest, all proceedings that pertain to the administration of penal sanctions. Put differently, petitioners' status as prisoners or parolees may be the result of a criminal action that is completed, but administrative proceedings respecting that status, and judicial review of those administrative proceedings, are so far removed from the criminal actions that they cannot be said to be "connected with" them. For similar reasons, we are unpersuaded by petitioners' arguments that focus on the meaning of the term "criminal." It may be that the term "criminal" broadly pertains to anything that is connected with crime or the administration of penal justice, but that is not dispositive here. The statute at issue, ORS 20.190, refers to any "civil action or proceeding" (emphasis added), and the terms that logically correspond, "criminal actions" and "criminal proceedings," (8) are more limited in scope than the adjective "criminal." A "criminal action" is a "[p]roceeding by which [a] person charged with a crime is brought to trial and either found not guilty or guilty and sentenced. An action, suit, or cause instituted to punish an infraction of the criminal laws." Black's Law Dictionary at 372. A "criminal proceeding" is a proceeding "instituted and conducted for the purpose either of preventing the commission of crime, or for fixing the guilt of a crime already committed and punishing the offender." Id. at 374. Neither of the foregoing definitions describe judicial review of an order of the Board. Although any judicial review of a Board order necessarily arises because there once was a criminal action, such review is not a criminal action or proceeding itself. It is a civil proceeding and, as such, is within the scope of the prevailing party fee statute, ORS 20.190. (9) In summary, we have considered each of petitioners' arguments that the Court of Appeals exceeded its authority in awarding costs (i.e., a prevailing party fee) to the Board when it dismissed their petitions for judicial review. None of those arguments is well taken. The statutes authorize such awards; the Court of Appeals did not err. The orders of the Court of Appeals are affirmed. 1. Berger Farms discussed ORS 20.015 and ORS 20.096(5) in regard to the claims that the court determined were nonarbitrable. With respect to those claims, however, there was no question that the Court of Appeals had authority to decide entitlement to attorney fees. 2. Lord's Oregon Laws section 565 is a predecessor statute to ORS 20.190. At the time that Portland & O.C. Ry. Co. and McCargar were decided, Lord's Oregon Laws section 565, provided: "Costs, when allowed to either party, are as follows: "1. In the supreme court, on an appeal to the prevailing party, fifteen dollars * * *." 3. Stelljes/Dumler was decided before the legislature enacted ORS 144.335(3), making Board orders that relate to a release date unreviewable. 4. Petitioners also suggest that their position is supported by U-Cart Concrete v. Farmers Ins., 290 Or 151, 619 P2d 882 (1980), which they interpret as holding that, when a court neither affirms nor reverses a judgment, no party has prevailed for purposes of awarding costs. However, U-Cart Concrete does not announce that proposition, but addresses only the narrow question whether, in the Supreme Court, a respondent on review may recover costs upon denial of a petition for review. 5. See ORS 20.310(1) (court shall allow costs and disbursements to the prevailing party in any appeal, unless statute provides otherwise or "unless the court directs otherwise"). 6. Petitioners cite In re King, 165 Or 103, 115, 105 P2d 870 (1940), for the proposition that the right to recover costs must be found within the statute prescribing the procedure for judicial review. However, in that case, the court held that a general catchall cost statute did not apply to the particular proceeding at issue (review of findings and recommendations of the Board of Governors of the Oregon State Bar). The case does not hold that the specific statute that governs judicial review of an agency's orders is the exclusive source of authority for costs and disbursements in such proceedings. 7. Petitioners also have argued, in a related vein, that the Court of Appeals was without authority to award prevailing party fees against them under ORS 20.190 because that statute conditions entitlement to prevailing party fees upon the party otherwise having a right to recover costs and disbursements, and no statute in fact authorizes costs and disbursements. Our conclusion, under Compton, that cost awards are authorized in any judicial review not "as provided in" the APA, undermines that argument. 8. Black's defines "civil action" generally as "[a]ll types of actions other than criminal proceedings." Black's Law Dictionary at 245. 9. Petitioners also argue that parole review is a criminal proceeding under the analysis set out in Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977). However, Brown, which deals primarily with determining whether a procedure is criminal for purposes of Article I, section 11, of the Oregon Constitution, has no bearing on the question here, viz., what the legislature that enacted ORS 20.190 intended by the term "civil action or proceeding."

6bb7997c4a53c38a1b8ddcde03d1ff4b85b9edde9f7f2a99a2e8219e94e5e8cb

2001-07-06T00:00:00Z

70401cc4-dc6b-4881-b8d8-902e2b3308bb

Kain v. Myers

S48744

oregon

Oregon Supreme Court

FILED: September 20, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON KRIS KAIN and TRICIA BOSAK, Petitioners, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48744) On petition to review ballot title. Argued and submitted September 12, 2001. Margaret S. Olney, Smith, Gamson, Diamond & Olney, Portland, argued the cause and filed the petition for petitioner. Jas. Jeffrey Adams, Assistant Attorney General, Salem, argued the cause for respondent. Denise G. Fjordbeck, Assistant Attorney General, Salem, filed the answering memorandum. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs and De Muniz, Justices. PER CURIAM Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). PER CURIAM This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, denominated by the Secretary of State as Initiative Petition 70 (2002). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). ORS 250.085(5). (1) Petitioners challenge only the Attorney General's summary. We have considered petitioners' arguments and conclude that none is well taken. Accordingly, we certify the following ballot title to the Secretary of State: AMENDS CONSTITUTION: SPECIFIES FACTORS GOVERNING PUBLIC SCHOOL TEACHER PAY AND JOB RETENTION; PROHIBITS ANY CONSIDERATION OF SENIORITY RESULT OF "YES" VOTE: "Yes" vote requires that school boards use specifically listed and equally weighted factors in setting teacher pay and job security; prohibits any consideration of seniority. RESULT OF "NO" VOTE: "No" vote allows school boards to continue current practice of considering seniority as a factor in setting teacher pay and in job security. SUMMARY: Amends Constitution. Currently, school boards must consider seniority in the event of layoffs. School boards currently also determine criteria for salary increases. Measure requires public school teacher pay and job security to be based only on listed, equally weighted factors, including teaching and communication skills, educational credentials, increase in appropriate student knowledge under teachers' instruction, work ethic, appropriate classroom environment, other specified factors, but not including seniority. Defines public school teacher. Requires retention of teachers with the highest overall performance and best qualified to teach the assigned courses, without regard to seniority, when layoff occurs. Across-the-board cost of living pay increases allowed if base pay is performance-based. Applies to all collective bargaining agreements entered into after its effective date. Other provisions. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). 1. The 2001 Legislative Assembly amended ORS 250.085 in a respect not relevant to this proceeding.

1132cbb2a8f033dd3ada4f0ea083f275b890ce2d4e995dd3f900bde3b8157ad6

2001-09-20T00:00:00Z

76663542-d62e-4bb4-8c29-da9ac04d3c77

Errand v. Cascade Steel Rolling Mills

320 Or. 509, 888 P.2d 544

oregon

Oregon Supreme Court

888 P.2d 544 (1995) 320 Or. 509 Edwin M. ERRAND, Petitioner on Review, v. CASCADE STEEL ROLLING MILLS, INC., an Oregon corporation, Respondent on Review. CC CV91283; CA A80487; SC S41195. Supreme Court of Oregon, In Banc. Argued and Submitted September 2, 1994. Decided February 2, 1995. Sharon C. Stevens, of Callahan and Stevens, Keizer, argued the cause and filed the petition for petitioner on review. Ronald W. Atwood, of Williams, Zografos, Peck & Atwood, Portland, argued the cause for respondent on review. With him on the briefs was Brad G. Garber. Robert Wollheim, of Welch, Bruun, Green & Wollheim, Portland, filed a brief on behalf of amici curiae Oregon Trial Lawyers Ass'n and Oregon Workers' Compensation Attys. Deborah L. Sather, of Stoel Rives Boley Jones & Grey, Portland, filed a brief on behalf of amicus curiae Oregon Self-Insured Ass'n. Jerald P. Keene, of Roberts, Reinisch, MacKenzie, Healey & Wilson, P.C., Portland, filed a brief on behalf of amici curiae Associated Oregon Industries and Oregon Restaurant Ass'n. VAN HOOMISSEN, Justice. Plaintiff filed a complaint in circuit court against defendant, his employer, alleging statutory and common law negligence claims and seeking damages for economic losses, past and future medical bills, lost wages, and *545 impairment of earning capacity. The trial court granted defendant's motion for summary judgment on the ground that defendant is immune from liability and that plaintiff's exclusive remedy is under the Workers' Compensation Law. ORS 656.018.[1] The Court of Appeals affirmed. Errand v. Cascade Steel Rolling Mills, Inc., 126 Or.App. 450, 454-55, 869 P.2d 358 (1994). For the reasons that follow, we reverse. Plaintiff, a worker at defendant's manufacturing plant, had a preexisting condition of chronic infectious paranasal sinusitis that was not caused by his current work experiences or environment. That preexisting condition, which predisposes plaintiff to experience airway irritation, became symptomatic due to his inhalation of substances in the workplace. Plaintiff sought treatment for his symptoms and filed a workers' compensation claim. The insurer denied the claim, explaining that "it does not appear your condition was worsened by or arose out of and in the course of your employment, either by accident or occupational disease." Plaintiff appealed that denial. A referee defined the issue as whether plaintiff's work exposure caused or worsened his chronic infectious paranasal sinusitis or "caused a complex of symptoms that would be recognized in workers' compensation law as a disease." After noting that plaintiff's sinusitis predisposed him to experience airway irritation, the referee found: *546 The referee upheld the insurer's denial of the claim. In its final order, the Workers' Compensation Board adopted the referee's order and held that plaintiff had not established that his condition was compensable, because work was not the "major cause" of his condition. Plaintiff did not seek judicial review of the Board's order. Plaintiff then brought this action in circuit court against his employer, based on inhalation of and exposure to particulates in the workplace, alleging statutory and common law claims. Defendant moved for summary judgment, arguing that plaintiff's exclusive remedy is under the Workers' Compensation Law and that, under ORS 656.018, defendant is immune from liability. The trial court granted defendant's motion. The Court of Appeals affirmed, holding: "* * * * * Plaintiff argues on review that the exclusivity provisions of ORS 656.018 do not apply because, although his respiratory symptoms occurred in and were caused by the workplace, he did not have a "compensable injury," as defined in the Workers' Compensation Law and, therefore, he is not entitled to compensation for his condition. See ORS 656.005(7)(a) (defining "compensable injury"); ORS 656.018(1) (limiting complying employer's liability to that "arising out of compensable injuries"). From this, plaintiff further argues that the undisputed fact that he was not entitled to compensation under the Workers' Compensation Law demonstrates that his injury did not fall within the exclusivity provision of ORS 656.018. That is, plaintiff is arguing that even if he is a subject worker and defendant is a complying employer, ORS 656.018 does not apply in this case because, as a matter of law, his condition is not compensable. Defendant responds that a mechanical application of the statutory definition of "compensable injury" to ORS 656.018 would defeat the legislative intent behind the exclusivity provision by allowing anyone whose claim is found not to be compensable to sue the employer in a civil action. Defendant asks this court to interpret ORS 656.018 as exclusive and in place of all other liability that an employer either has or might have if the employee's condition in question is "work-related" or "occurring at work." We first turn to the text of ORS 656.018 and to the definition of "compensable injury," ORS 656.005(7)(a), in the context of the Workers' Compensation Law, to discern whether the legislature intended that a civil claim such as plaintiff's be barred. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (to discern intent of legislature, court first examines the text and context of statute). ORS 656.018(1) provides that a complying employer's liability "is exclusive and in place of all other liability arising out of compensable injuries to the subject workers * * *." ORS 656.018(2) likewise provides that the "rights given to a subject worker * * * for compensable injuries under this chapter are in lieu of any remedies they might otherwise have for such injuries against the worker's *547 employer under ORS 654.305 to 654.335 or other laws, common law or statute, [except as otherwise provided in the Workers' Compensation Law]." (Emphasis added.) ORS 656.003 provides that, "[e]xcept where the context otherwise requires, the definitions given in this chapter govern its construction." We turn to the issue whether the statutory definition of compensable injury applies to ORS 656.018. The wording of ORS 656.005(7)(a)(A), that "[n]o injury or disease is compensable as a consequence of a compensable injury," and the language of ORS 656.005(7)(a)(B), that certain conditions may be "compensable only to the extent the compensable injury is and remains the major contributing cause," provide, in essence, that certain injuries, diseases, or conditions, although related to work, may not be "compensable" under certain circumstances, i.e., unless the "major contributing cause" criteria found in subparagraph (A) or (B) are met.[3] From the foregoing description of the text of the definition of "compensable injury" in ORS 656.005(7)(a), it appears to us that the legislature was using the word "compensable" to convey different meanings. In the main part of ORS 656.005(7)(a), the "compensable injury" referred to may be simply an "accidental injury" "arising out of and in the course of employment." However, the limitations set forth in subparagraphs (A) and (B) of ORS 656.005(7)(a) make it clear that one who suffers an "accidental injury" "arising out of and in the course of employment" as described in paragraph (a) nevertheless may have an injury that is not "compensable," unless the "major contributing cause" test has been met. ORS 656.005(7)(a)(A), (B); see also SAIF v. Drews, 318 Or. 1, 8-9, 860 P.2d 254 (1993) ("compensable injury" encompasses an application of the criteria found in ORS 656.005(7)(a), including the limitations found in subparagraphs (A) and (B) of that statute, in making initial determination of compensability). The question is whether the legislature intended the exclusivity provision of ORS 656.018 to refer to some definition of compensable injury other than that set forth in ORS 656.005(7)(a), as qualified and limited by subparagraphs (A) and (B). Cf. Dethlefs v. Hyster Co., 295 Or. 298, 309-10 & n 10, 667 P.2d 487 (1983) (in cases decided before the addition of subparagraphs (A) and (B) to ORS 656.005(7)(a), court indicated that legislative intent behind Workers' Compensation Law was to avoid common law litigation and to grant employers immunity against liability for compensable injuries, but also recognized that it "is arguable that an action for damages may be maintained against an employer of the worker if a disease or injury is not `compensable'"). The definition of "compensable injury" found in ORS 656.005(7)(a), which includes the limitations found in subparagraphs (A) and (B), governs statutory construction of that term as used in the Workers' Compensation Law "[e]xcept where the context otherwise requires." ORS 656.003; see also Astleford v. SAIF, 319 Or. 225, 232-33, 874 P.2d 1329 (1994) (under ORS 656.003, a given statutory definition does not apply when the context, which includes the structure and purpose of the workers' compensation system as a whole, demonstrates that the use of the definition would be inappropriate); PGE v. Bureau of Labor and Industries, supra, 317 Or. at 611, 859 P.2d 1143 (use of same term throughout a statute generally indicates that the term has the same meaning throughout the statute). *548 In plaintiff's workers' compensation case, the referee denied compensation because plaintiff's symptoms were not the major contributing cause of his condition. Under ORS 656.802 (defining occupational disease), ORS 656.804 (occupational disease considered "injury" for purposes of Workers' Compensation Law), ORS 656.005(7)(a) (as interpreted by this court in Drews), and the facts as found by the referee and adopted by the Board, it has been established that plaintiff did not have the right to be compensated under the Workers' Compensation Law for the injury he suffered, as that term is defined and used in ORS 656.005(7)(a), in the light of the "major contributing cause" limitations found in ORS 656.005(7)(a)(A) and (B). The exclusivity provision of ORS 656.018 specifies that the liability of employers under the workers' compensation scheme "is exclusive and in place of all other liability arising out of compensable injuries to the subject workers[.]" ORS 656.018(1)(a) (emphasis added). In plaintiff's workers' compensation case, it was established that the employer had no liability to compensate plaintiff under the Workers' Compensation Law. By providing for an employer's freedom from "other" liability, it may be inferred from the exclusivity provision that there must exist, as a predicate for that freedom, some actual liability under the Workers' Compensation Law before the exclusivity provision may protect the employer from "all other liability." Thus, the text of the exclusivity provision, specifically its use of the term "liability," further supports the conclusion that the statutory definition of "compensable injury" applies to ORS 656.018. We turn to the question of what the definition of "compensable injury" means. The dissent relies on the fact that specific types of injuries are excluded under ORS 656.005(7)(b), quoted supra at note 2, to try to demonstrate that the context requires that ORS 656.005(7)(a)'s definition of "compensable injury" covers every work-related injury that ORS 656.005(7)(b) does not exclude. The dissent argues, in effect, that the definition of "compensable injury" stops after the words "or resulting in disability or death" in ORS 656.005(7)(a), and that the balance of the text merely establishes conditions that may lead to non-payment of compensation for what otherwise is a compensable injury. We disagree. To the extent that the dissent is suggesting that unless something is specifically codified as "not a compensable injury" for purposes of ORS 656.005(7)(b), it therefore is a compensable injury for purposes of the exclusivity provision, the context certainly does not demonstrate that this is the only permissible construction of the statutes.[4] The entire text of the statute is the legislature's definition of "compensable injury." The definition includes the limitations in subparagraphs (A) and (B). That is, unless the major contributing cause standard is satisfied, consequential conditions (subparagraph (A)) and resultant conditions (subparagraph (B)) are not "compensable injuries." When the legislature, in ORS 656.005(7)(a)(A), declares that "[n]o injury or disease is compensable" as a consequential condition, absent compliance with the major contributing cause proof standard, it is defining a compensable injury, not merely announcing further conditions under which a compensable injury will be paid. We apply the entire text, not only one part, of subsection (7)(a) as the relevant definition. The dissent says that, if the legislature intended the "major contributing cause" limitations to apply to "compensable injuries" as used in the exclusivity provision, it would have put those limitations in ORS 656.005(7)(b) rather than in ORS 656.005(7)(a)(A) and (B). The context does not necessarily lead to this conclusion. ORS 656.005(7)(b) is part of the context of ORS 656.005(7)(a). The exclusions in ORS 656.005(7)(b) do not demonstrate that ORS 656.005(7)(a)(A) and (B) are merely limitations on "a subclass of `compensable injuries' for which workers will not receive benefits," as the dissent asserts. 320 Or. at ___, 888 P.2d at 553. The conditions described in *549 subparagraphs (7)(a)(A) and (B) are compensable injuries if their major contributing cause is a compensable injury, whereas the conditions described in subsection (7)(b) are not compensable injuries despite the existence of a causal link to an injury described in (7)(a). That distinction explains why the legislature defined the conditions under which "consequential" or "resultant" conditions are compensable injuries in ORS 656.005(7)(a)(A) and (B), rather than in the context of the conditions categorically excluded from "compensable injury" under ORS 656.005(7)(b). The foregoing discussion explains why, in our view, plaintiff's argument about the scope of the immunity provided in ORS 656.018 appears more likely to be correct than does the argument of defendant. That is not to say, however, that defendant's construction of the relevant statutes is not plausible also. We conclude that, although the text and context of ORS 656.018 tend to support the conclusion that the legislature did not intend the exclusivity provision of that statute to bar a civil action where an injury has been determined not to be compensable because it was not a "major contributing cause" of a condition, the text and context of the relevant statutes do not settle the issue. We therefore turn to the legislative history of ORS 656.018 and ORS 656.005(7)(a) to aid in discerning the intent of the legislature. PGE v. Bureau of Labor and Industries, supra, 317 Or. at 610, 859 P.2d 1143. The exclusivity provision of ORS 656.018 was amended essentially to its present form in 1977. See Or.Laws 1977, ch. 514, § 1. We have found no legislative history that indicates that the 1977 amendments were intended to alter the scope of the exclusivity provision in any way relevant to the issue at hand. Before 1977, the relevant provisions were in essentially the same form as when they were enacted in 1965, when a major overhaul of the Workers' Compensation Law was undertaken, moving from elective to compulsory workers' compensation coverage: "Every employer who satisfies the duty required by subsection (1) of section 5 of this 1965 Act is relieved of all other liability for compensable injuries to his subject workmen, the workmen's beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such injuries, except as specifically provided otherwise in ORS 656.002 to 656.590." Or. Laws 1965, ch. 285, § 6(1). The 1965 Workers' Compensation Law also introduced for the first time a statutory definition of "compensable injury": We have examined the legislative history of the 1965 enactments and the later amendments to the exclusivity provision and the definition of "compensable injury" before 1990, and have found nothing that sheds light on the issue at hand. However, in Cope v. West American Ins. Co., 309 Or. 232, 236, 785 P.2d 1050 (1990), a case decided before the 1990 amendments to ORS 656.005(7)(a), this court indicated that the statutory definition of "compensable injury" found in ORS 656.005(7)(a) applied to that term as it is used in the exclusivity provision of ORS 656.018(1)(a). See Stephens v. Bohlman, 314 Or. 344, 350 n. 6, 838 P.2d 600 (1992) (this court's interpretation of a statute becomes a part of the statute as if written into it at the time of its enactment). The question is whether the 1990 legislature intended that its amended definition of "compensable injury," found in the current version of ORS 656.005(7)(a), would apply to the exclusivity provisions of ORS 656.018. If the legislature intended the new definition of "compensable injury" to apply, then the exclusivity provision would apply when the "accidental injury" "arising out of and in the course of employment" was the "major contributing cause" of a resulting or consequential condition requiring medical services. ORS 656.005(7)(a)(A), (B). We turn to the history of the 1990 amendments to the Workers' Compensation Law, in which the definition of "compensable injury" was amended to include the "major contributing *550 cause" limitations.[5] It is clear from the text and the legislative history of the 1990 amendments that those changes were intended to have the effect of reducing the number of workers who could recover for work-related injuries under the workers' compensation system. See Or.Laws 1990, ch. 2, § 3 (Spec.Sess.) (changing requirements regarding objective findings and compensable injuries); Exhibit E, Joint Interim Special Committee on Workers' Compensation, May 5, 1990 (fiscal analysis showing cost savings expected from reducing number of compensable injuries); Joint Interim Special Committee on Workers' Compensation, May 3, 1990, Tape 7, Side B (testimony from various witnesses regarding fewer compensable injuries). The legislative history of the 1990 amendments to the definition of compensable injury in ORS 656.005(7)(a) reveals that the joint committee reviewing the amendments considered the potential impact of the change in compensability on the exclusivity provision of the Workers' Compensation Law: "* * * * * "* * * * * Not surprisingly, that legislative history indicates that Williamson, a witness on behalf of the claimant's bar, essentially argued what plaintiff is arguing in the present case, and that Keene, a witness on behalf of the insurance defense bar, essentially argued what defendant is arguing in the present case. However, the exchanges quoted above also indicate that Representative Edmundson, one of the legislative committee members, believed that just as the definition of "compensable injury" narrowed, so also the exclusivity provision narrowed, because the new definition would apply to the term "compensable injuries" as used in ORS 656.018. During the House floor debate, Representative Edmundson made similar statements: Moreover, during that floor debate, Representative Dwyer commented: No other legislator voiced disagreement with Representative Edmundson's and Representative Dwyer's conclusions during floor debate, and neither the amended definition of "compensable injury" nor the exclusivity provision of ORS 656.018(1) were further amended to address the issue. We conclude that this legislative history supports a conclusion that the legislature intended the definition of "compensable injury" as amended in 1990 to apply in the context of the exclusivity provision of ORS 656.018(1). *552 Oregon courts long have recognized that the workers' compensation system involves a trade-off, offering certain advantages, as well as disadvantages, to both employers and employees. See, e.g., Hale v. Port of Portland, 308 Or. 508, 521-22, 783 P.2d 506 (1989) ("The scheme penalized some members of both campsthose plaintiffs who could prove actionable negligence of their employers, and so obtain damages beyond their medical expenses, and other employers who could defeat liability either because they had not been negligent or because they could show the worker was guilty of contributory negligence or assumption of risk."); McGarrah v. SAIF, 296 Or. 145, 160, 675 P.2d 159 (1983) ("Workers' compensation systems are founded on political compromise."). Undoubtedly, the 1990 legislature changed the nature of the trade-off when it narrowed the definition of "compensable injury" in ORS 656.005(7)(a) to reduce the number of injuries that would be compensated under the Workers' Compensation Law. The history available to us does not, however, justify a conclusion that the 1990 legislature intended that change to work solely in favor of employers, thus relieving employers of liability while keeping the workers' end of the bargain unchanged.[6] In sum, we conclude that the 1990 legislature intended the present definition of "compensable injury" in ORS 656.005(7)(a) to apply to ORS 656.018, because that result is consistent with the text and context of those statutes, because the context does not otherwise require, ORS 656.003, and because the legislative history supports that conclusion. Thus, we conclude that the exclusivity provision of ORS 656.018 does not provide defendant with immunity from plaintiff's civil claims here, because plaintiff did not have a "compensable injury" within the meaning of ORS 656.005(7)(a) and ORS 656.018(1).[7] The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed. The case is remanded to the circuit court for further proceedings. GRABER, Justice, dissenting. I dissent. In my view, the majority misreads the applicable statutes and, in doing so, undermines some of the fundamental purposes of the Workers' Compensation Law. This case involves an application of the exclusivity provision of the Workers' Compensation Law, ORS 656.018, which provides in part: "* * * * * "(2) The rights given to a subject worker and the beneficiaries of the subject worker for compensable injuries under this chapter are in lieu of any remedies they might otherwise have for such injuries against the worker's employer under ORS 654.305 to 654.335 or other laws, common law or statute, except to the extent the worker is expressly given the right under *553 this chapter to bring suit against the employer of the worker for an injury." On review, plaintiff argues that the exclusivity provision does not bar a civil action against his employer because, although plaintiff's symptoms arose in the course and scope of his employment, plaintiff does not have a "compensable injury" as defined in ORS 656.005(7)(a). The majority agrees with plaintiff's argument. Plaintiff and the majority are wrong. Plaintiff has a "compensable injury" within the meaning of ORS 656.005(7)(a), even though he did not carry the burden of proving that he should receive benefits. Plaintiff and the majority blur the distinction between "compensable injuries" (the scope of the Workers' Compensation Law) and "compensation" (entitlement to benefits). That distinction has been in the statutory scheme from its inception and, until now, the exclusivity provision has been construed to cover all "compensable injuries," even those that do not result in the payment of "compensation." This court has established a method of construing statutes, which applies to the provisions in question. Our overriding aim is to discern the intent of the legislature. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). First, we examine the text and context of the statute. Id. at 610-11, 859 P.2d 1143. When reading the text of a statute, certain principles apply, including the principle that the text means what this court's prior interpretation thereof states. Stephens v. Bohlman, 314 Or. 344, 350 n. 6, 838 P.2d 600 (1992). The context of a statute includes its historical development. Krieger v. Just, 319 Or. 328, 336, 876 P.2d 754 (1994). If the meaning of a statute is unclear from the text and context, the court looks to legislative history and then, if the meaning still is unclear, to "general maxims of statutory construction," to determine the legislature's intent. PGE, 317 Or. at 611-12, 859 P.2d 1143. At present, ORS 656.005(7)(a) defines "compensable injury." It provides, as relevant here: ORS 656.005(7)(a) supplies a two-step analysis. The first step is to decide whether a worker's injury falls within the definition i.e., whether the worker's injury is a "compensable injury." If the workers' injury is a "compensable injury," then the second step is to take into consideration the "limitations" in subparagraphs (A) and (B). Those subparagraphs describe a subclass of "compensable injuries" for which workers will not receive benefits. In effect, subparagraphs (A) and (B) say that, even if a worker has a "compensable injury," the worker must prove that the "compensable injury" should be compensated; the worker must establish that the compensable injury in fact caused the harm complained of. Either the worker has a compensable injury for which the worker can receive benefits, or the worker has a compensable injury for which the worker can receive no benefits. Either way, however, every injury that is "an accidental injury * * * arising out of and in the course of employment" is a "compensable injury," no matter how subparagraphs (A) and (B) affect the workers' ability to collect benefits.[1] *554 The foregoing reading of ORS 656.005(7)(a) is based on the plain grammar, structure, and logic of the paragraph. That reading is even clearer when that paragraph is contrasted to ORS 656.005(7)(b). ORS 656.005(7)(b) provides: "`Compensable injury' does not include: That is, paragraph (b) contains a list of exclusions from the definition of "compensable injury." By contrast, in ORS 656.005(7)(a), subparagraphs (A) and (B) are worded as "limitations" on what kinds of "compensable injuries" are "compensable" (that is, entitling the worker to receive benefits). Subparagraphs (A) and (B) limit the "compensable injuries" that may be "compensated" to those compensable injuries that the worker can prove under a specified standard. They are not, however, excluded from the definition of "compensable injury." For the purposes of the Workers' Compensation Law, the legislature has defined what is a "compensable injury" in ORS 656.005(7)(a) and what is not a "compensable injury" in 656.005(7)(b). When the legislature uses different terms in different sections of the same statute, it is deemed to do so intentionally, and we give effect to the difference. See PGE, 317 Or. at 611, 859 P.2d 1143 (stating general principle). Here, the majority has failed to give effect to the distinction between exclusions from the definition of "compensable injury" (ORS 656.005(7)(b)) and limitations on benefits payable for a "compensable injury" (ORS 656.005(7)(a)(A) and (B)). In short, ORS 656.005(7)(a) simply recognizes that some "compensable injuries" will not in fact be compensated. We next must examine ORS 656.018. The pertinent part of ORS 656.018 provides that "[t]he liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of compensable injuries to the subject workers." (Emphasis added.) The phrase that we are called on to interpret is the emphasized one. The wording of that phrase covers all "compensable injuries" by its plain terms; it is not limited to those "compensable injuries" for which benefits are paid. The context of ORS 656.018 likewise supports an expansive reading. The context includes the policy statement in the Workers' Compensation Law, codified at ORS 656.012. ORS 656.012 suggests that the exclusivity provision should apply to all injuries that arise in the course and scope of employment. The legislature expressed its decision to reduce litigation, ORS 656.012(2)(b), and to expedite resolution of claims, ORS 656.012(2)(c). Those legislative decisions resulted from the legislature's finding that court procedures concerning injuries arising in the course and scope of employment lead to unnecessarily "long and costly litigation" that is detrimental to the economic welfare of society. ORS 656.012(1)(b). *555 Another principle comes into play in this case. As noted above, when this court construes a statute, that construction becomes part of the statute construed. This court has construed the exclusivity provision of the Workers' Compensation Law, which has remained essentially intact since enactment in 1913, to cover all work-related events unless a specific statutory exception applies (such as the exception for willful and unprovoked aggression). In Martelli v. R.A. Chambers and Associates, 310 Or. 529, 533-35, 800 P.2d 766 (1990), this court discussed the history of the Workers' Compensation Law and of the exclusivity provision: "`[T]he right to receive such sum or sums [as workers' compensation] shall be in lieu of all claims against his employer on account of such injury or death except as hereinafter specially provided.' "* * * * * "* * * * * "* * * [T]he compensation law was extensively revised in 1965 * * *. The immunity of an employer from any worker's claims, other than for workers' compensation, was continued in section 6 of the 1965 Act, as worded in the 1913 Act * * * and now phrased in modern terms, in ORS 656.018(1) * * *." In Olds v. Olds, 88 Or. 209, 213-14, 171 P. 1046 (1918), the court held that the exclusivity provision of the 1913 Workers' Compensation Law "confers a special privilege upon an employer, thereby releasing him from the common-law liability to respond in damages for a personal injury that has been caused by his negligence, unless he formally renounces the benefits thus bestowed." That rule was restated in Reynolds et al. v. Harbert et al., 232 Or. 586, 591, 375 P.2d 245 (1962); "[i]t is our conclusion that the statutory scheme was intended to provide that a workman covered by Chapter 656 must accept the benefits thereof as his exclusive remedy except in the enumerated situations mentioned in the statute." (Emphasis added.)[2]See also Bigby v. Pelican Bay Lbr. Co., 173 Or. 682, 689, 147 P.2d 199 (1944) ("When a workman has become subject to the act he can not recover from his employer for injuries sustained by him, unless the facts give rise to one of the exceptions specified in the act."); Ellis v. Fallert et al, 209 Or. 406, 413-14, 307 P.2d 283 (1957) ("The Oregon Workmen's Compensation Act offers compensation to workmen who are within its purview for negligent and for non-negligent injuries and provides that such compensation is `in lieu of all claims against his employer' except as provided * * *. [T]he remedy under the act is exclusive." (emphasis in original)); Shoemaker v. Johnson, 241 Or. 511, 519, 407 P.2d 257 (1965) ("the rights and remedies provided by the act are exclusive"). In some of those cases, such as Bigby, this court recognized explicitly that exclusivity barred the claim even though the plaintiff could obtain nothing under the workers' compensation scheme. Bigby, 173 Or. at 685-92, 147 P.2d 199. When the legislature "continued" the exclusivity provision by simply updating its wording in 1965, the legislature effectively re-enacted the 1913 statute, with knowledge of how that statute had been interpreted by this court. See Billings v. State Ind. Acc. Com., 225 Or. 52, 56, 357 P.2d 276 (1960) (this court assumes that, when the legislature re-enacts a section of a statute, it does so with *556 knowledge of prior rulings by this court construing that statute).[3] This court has continued to read the post-1965 exclusivity provision to apply to all work-related injuries. Those interpretations are part of ORS 656.018 in its post-1965 form. See Stephens, 314 Or. at 350 n. 6, 838 P.2d 600 (stating principle). In Leech v. Georgia-Pacific Corp., 259 Or. 161, 485 P.2d 1195 (1971), this court concluded that the plaintiff, a dependent child of a deceased employee, was barred by the exclusivity provision of the workers' compensation statutes from bringing a civil action. In reaching that conclusion, the court stated: The court held that the rationale of Bigby survived the 1965 amendments to the workers' compensation statutes and that exclusivity continued to bar claims related to on-the-job events even for those plaintiffs who could obtain no workers' compensation benefits. Id. at 164-66, 147 P.2d 199. In Duk Hwan Chung v. Fred Meyer, Inc., 276 Or. 809, 556 P.2d 683 (1976), a worker argued that the exclusivity provision should not control, because the employer had acted with the deliberate intention of causing injury or death to the employee; therefore, one of the statutory exceptions to the exclusivity provision applied. This court concluded that there was no evidence to suggest that the employer had acted with the deliberate intention to injure the employee or someone else, and it affirmed the trial court's grant of summary judgment in the employer's favor. 276 Or at 513-14. The court noted that "[t]he Workmen's Compensation Law provides the sole and exclusive remedy for injuries sustained by a workman in the course and scope of his employment when the employer is subject to and fully complying with the provisions of the Act, unless the facts give rise to one of the exceptions specified in the Act." Id. at 812, 556 P.2d 683. See also Nicholson v. Blachly, 305 Or. 578, 581, 753 P.2d 955 (1988) ("The exclusive remedy of injured employees against their employers for injuries suffered in the course and scope of employment is to receive workers' compensation benefits."). This court has construed ORS 656.018 and its predecessors consistently to grant immunity with respect to all accidental injuries that arise in the course and scope of employment, i.e., all "compensable injuries." At the same time, it always has been true that a worker can sustain a compensable injury (on-the-job event) but collect no compensation (benefits). Over the years, this court has recognized that fact in three categories of cases. One category of such cases recognizes that a worker can sustain an on-the-job injury but collect no benefits due to an extrinsic reason, such as untimeliness of the claim. Rhode v. State Industrial Acc. Com., 108 Or. 426, 217 P. 627 (1923), is the earliest example. In Rhode, this court held that a worker who suffered an accidental injury in the course and scope of employment, but who failed to adhere to the procedural requirements of the statutes, was not entitled to relief. The court stated: "The case, like so many other accidents, presents pitiable features, but whosoever claims under the statute must bring himself *557 within its terms. This the claimant has not done in this instance, and as a matter of law he is not entitled to relief in these proceedings." 108 Or. at 441, 217 P. 627. The court never has deviated from that holding and has restated it repeatedly. See, e.g., Dragicevic v. State Industrial Acc. Com., 112 Or. 569, 571, 230 P. 354 (1924) (court will not "entertain" claim that is untimely filed); Rosell v. State Ind. Acc. Com., 164 Or. 173, 192, 95 P.2d 726 (1940) (same); Landauer v. State Ind. Acc. Com., 175 Or. 418, 421, 154 P.2d 189 (1944) (same); Johnson v. Compensation Department, 246 Or. 449, 452, 425 P.2d 496 (1967) (same); Colvin v. Industrial Indemnity, 301 Or. 743, 748, 725 P.2d 356 (1986) ("a claimant may not avoid the notice requirements if the [employer] has clear procedures for reporting accidents and injuries and the employe knows or should know of and is able to follow the procedures, but does not"). A second category of cases recognizes that a worker can sustain an on-the-job injury but collect no benefits due to an intrinsic reason, such as failure to sustain the applicable burden of proof. Vale v. State Ind. Acc. Com., 160 Or. 569, 86 P.2d 956 (1939), is the earliest example of a case in this second category. In Vale, the plaintiff, survivor of a deceased worker, claimed that the worker's death was caused by an accident arising in the course and scope of the worker's employment. The plaintiff argued that the worker's death had resulted from contaminated food that the employer had provided to the worker. The court stated: Again, the court never has deviated from that holding and has restated it repeatedly. See, e.g., McKay v. State Ind. Acc. Com., 161 Or. 191, 200, 87 P.2d 202 (1939) ("there is no evidence [that worker's being struck by lightening in the course and scope of employment resulted in] injury to the decedent's heart. It is a mere possibility lacking proof"); Dimitroff v. State Ind. Acc. Com., 209 Or. 316, 323, 306 P.2d 398 (1957) ("We have repeatedly held that a claimant under the Act has the burden of proof to show that he is entitled to compensation."); Grandell v. Roseburg Lbr. Co., 251 Or. 88, 91, 444 P.2d 944 (1968) (upholding denial of benefits to worker because "work activity was not a material contributing factor in producing his heart attack"); Marston v. Compensation Department, 252 Or. 640, 644, 452 P.2d 311 (1969) ("[s]ince there is a total lack of medical testimony that the bumping of claimant's head either caused or contributed to his condition, there is no evidence to support [an award of compensation]"); Weller v. Union Carbide, 288 Or. 27, 30, 602 P.2d 259 (1979) (worker failed to offer sufficient evidence to "establish * * * a worsening of the underlying disease"); Harris v. SAIF, 292 Or. 683, 689, 642 P.2d 1147 (1982) (in order to collect under the Workers' Compensation Law, claimant "has the burden of proving that he is so disabled"). A third category of cases recognizes that a worker can sustain an on-the-job injury but collect no benefits due to statutory limits on the nature of benefits payable. Leech v. Georgia-Pacific Corp. is an example. In that case, a person (a dependent child of a deceased worker) was omitted from the compensation benefit schedule with respect to an on-the-job injury of the deceased worker. As noted above, the dependent child was barred by the workers' compensation exclusivity provision from pursuing a civil action. 259 Or. at 170, 485 P.2d 1195. See also Bigby v. Pelican Bay Lbr. Co., 173 Or. at 692, 147 P.2d 199 (beneficiary omitted from compensation schedule could obtain nothing under Workers' Compensation Law, but still was barred from bringing a civil action). More recently, in Hathaway v. Health Future Enterprises, 320 Or. 383, 386-87, 884 P.2d 549 (1994), and Nicholson v. Salem Area Transit, 320 Or. 391, 395, 884 P.2d 864 (1994), this court recognized that "palliative care" is not compensable even though a worker has suffered a compensable injury for which the palliative care is given. *558 The foregoing cases, which span the whole history of workers' compensation in Oregon, show that this court has recognized that workers' compensation is the exclusive remedy available to workers covered under the Workers' Compensation Law for accidental injuries that arise in the course and scope of their employment, while at the same time recognizing that not all compensable injuries result in an award of compensation. The majority focuses on the words "liability" and "other liability" in ORS 656.018(1)(a), asserting that they imply "that there must exist, as a predicate for that freedom [from civil suit on the part of the employer], some actual liability under the Workers' Compensation Law." 320 Or. at 518, 888 P.2d at 548. The majority errs in that analysis. The term "liability" does not necessarily mean responsibility to pay money; it may refer to liability to defend against an action or claim, whether or not the employer ultimately is obliged to pay. There are two reasons why the latter reading, rather than the majority's reading, is the applicable one. First, the context suggests it. ORS 656.018(2) contains a provision parallel to ORS 656.018(1)(a), which limits the worker to act under the workers' compensation system for compensable injuries; "the right * * * to bring suit against the employer," not an obligation to pay money, is the core concern. Second, this court's prior caseswhich are part of the statute uniformly have interpreted ORS 656.018 in a manner that is at odds with the majority's interpretation. To use a metaphor: the land of workers' compensation benefits that actually are available has never abutted the land of permissible civil actions. Between those lands has flowed a river of "compensable injuries" for which no benefits are available and for which no civil action may be brought. That river is formed by the three streams described above (intrinsic reasons why a compensable injury results in no compensation, extrinsic reasons for that result, and statutory limits on the nature of benefits payable). Today the majority makes a radical departure from those established principles. The majority bases that departure on the 1990 amendments to ORS 656.005(7)(a), when the legislature amended the definition of "compensable injury" to include the "major contributing cause" "limitations" contained in ORS 656.005(7)(a)(A) and (B). The majority concludes that the 1990 amendments narrowed the definition of "compensable injury" and "so also the exclusivity provision narrowed." 320 Or. at 523, 888 P.2d at 551. But the 1990 amendments did not narrow the exclusivity provision. Before 1990, the Workers' Compensation Law applied to all accidental injuries "arising out of and in the course of employment." The current definition of "compensable injury" likewise encompasses all accidental injuries "arising out of and in the course of employment." Accordingly, what is covered by the concept of "compensable injury" has not changed. The only thing that has changed is how much causation a worker needs to show to receive compensation for certain compensable injuries. A worker must now show that the compensable injury is the "major contributing cause" of the consequential condition, disability, or need for treatment in certain circumstances. Before 1990, there was no such statutory requirement. Thus, the 1990 change was a change of degree, not a change of coverage of the Workers' Compensation Law. To return to the earlier metaphor, the legislature can change the boundary line and create, for the first time, contiguity between the land of workers' compensation benefits that actually are available and the land of permissible civil actions. The legislature also can narrow or widen the river that now exists between those landsthe river of compensable injuries for which no benefits are available and for which no civil action may be brought (subject only to constitutional limitations, which, as noted below, are not at issue in this case). The question before us is which of those changes the 1990 amendment to ORS 656.005(7)(a) wrought. In my view, ORS 656.005(7)(a) plainly constitutes a slight widening of the river. As the discussion above shows, the text and context of the Workers' Compensation Law (including this court's prior interpretations and the historical development of the statutes) make clear the definition of "compensable injury" contained in ORS 656.005(7)(a) and applied to ORS 656.018 and *559 the legislative intent behind those provisions. Thus, the court's inquiry should stop here. See PGE, 317 Or. at 611, 859 P.2d 1143 (explaining methodology). The majority finds ambiguity in the statute where there is none, by confusing "compensable injuries" with "compensation" and by ignoring the difference between ORS 656.005(7)(a) and (b). Because of the alleged ambiguity, the majority then proceeds to analyze the legislative history of the 1990 amendments to the definition of "compensable injury," ORS 656.005(7)(a). From that scant legislative history, the majority concludes that plaintiff's claim is not a "compensable injury" under the definition provided in ORS 656.005(7)(a) and, therefore, that the exclusivity provision does not apply. The majority thus concludes that the legislature made a geologic change that eliminated the river of compensable injuries for which no benefits are available and for which no civil action may be brought. Assuming that the statutes are ambiguous and that an inquiry into legislative history is called for, the material on which the majority relies does not support its drastic result. First, the legislative history of the 1990 amendment to ORS 656.005(7)(a) is not clear. Conflicting testimony before the Joint Special Committee on Workers' Compensation and statements on the House floor concerning how federal courts have interpreted other workers' compensation statutes does not provide a clear indicator of legislative intent. Further, the statement on the House floor by Representative Dwyer, quoted by the majoritythat he was "inclined to agree" that the major-contributing-cause test "may subject * * * an employer[ ] to tort action"does not resolve this ambiguity in legislative intent, but rather heightens it. 320 Or. at 524, 888 P.2d at 551 (emphasis added). His is not a statement of certitude; it is a statement of possibility. In addition, there was no amendment to ORS 656.018 before the legislature. Most of the discussion quoted by the majority related to witnesses' and legislators' understanding of ORS 656.018. 320 Or. at 521-24, 888 P.2d at 550-551. To the extent that legislators were commenting on their understanding of that long-existing provision, their comments have no bearing on what ORS 656.018 meant. See DeFazio v. WPPSS, 296 Or. 550, 561, 679 P.2d 1316 (1984) ("The views legislators have of existing law may shed light on a new enactment, but it is of no weight in interpreting a law enacted by their predecessors."). The majority also discusses the legislative history of ORS 656.005(7)(a) without giving effect to the legislative history of the whole package of interrelated 1990 amendments to the Workers' Compensation Law. The broader purposes of the 1990 amendments to the Workers' Compensation Law are revealed by the legislative history of the 1990 special session during which the legislature revised that law extensively. The underlying theme of all the 1990 amendments was to make the system more cost-effective for employers and more efficient. See Exhibit B, Interim Special Committee on Workers' Compensation, May 3, 1990 (letter from the Governor's Workers' Compensation Labor Management Advisory Committee to Governor Neil Goldschmidt proposing changes to Workers' Compensation system, requested by Governor Goldschmidt, to "control the costs of Oregon's workers' compensation program"); Exhibit P, Interim Special Committee on Workers' Compensation, May 3, 1990 (summary fiscal analysis provided by Legislative Fiscal Office concerning "anticipated premium reductions" associated with the proposed changes); Exhibit F, Interim Special Committee on Workers' Compensation, May 7, 1990 (analysis provided by SAIF Corporation discussing cost savings under proposed changes); Testimony of Matt Hersee, Administrator, Workers' Compensation Division, Department of Insurance and Finance, Interim Special Committee on Workers' Compensation, May 7, 1990, Tape 26, Side A (discussing anticipated savings that will result from proposed changes). As the discussion below will demonstrate more fully, the majority's interpretation of ORS 656.005(7)(a) is at odds with that theme.[4] To summarize, the 1990 legislative history itself is unclear. The majority errs by relying on it. If the majority were correct in finding an ambiguity, then, the second step in statutory *560 interpretation (legislative history) would not resolve such an ambiguity. The third level of analysis would be required, that is, the application of maxims of statutory construction. See PGE, 317 Or. at 612, 859 P.2d 1143 (describing methodology). The majority's result could not survive at that third level, because its reading of ORS 656.005(7)(a) violates the principle that a statute should not be construed to produce an unreasonable or absurd result. See State v. Garcias, 298 Or. 152, 159, 690 P.2d 497 (1984) (stating principle). As has already been mentioned, one of the chief objectives of the workers' compensation statutes is to reduce the litigation and social costs of having workers and employers fully litigate claims concerning workplace injuries. By adopting a workers' compensation system, the legislature hoped to reduce costs for all parties involved and find a comprehensive and efficient means of dealing with on-the-job injuries. See ORS 656.012(2)(d) (stating objectives of the Workers' Compensation Law); see also Bigby, 173 Or. at 692, 147 P.2d 199 (stating purposes of pre-1965 version of Workers' Compensation Law). The position taken by the majority seriously undermines that objective by making the overall incentives of the workers' compensation system topsy-turvy and irrational. After today, an injured worker will seek to pursue a worker's compensation claim as limply as possible, so as to achieve the goal of having the Workers' Compensation Board declare the claim noncompensable.[5] Once noncompensability is determined, the worker can then bring a civil action against the employer and avoid the exclusivity provision altogether. By creating a system in which workers have an incentive to pursue litigation to acquire damages for work-related injuries, the majority jeopardizes the receipt of "prompt" medical treatment and the assurance of income benefits (contrary to the policies set out in ORS 656.012(2)(a), (c)) and increases litigation (contrary to the policy set out in ORS 656.012(b)). Indeed, the more serious the worker's condition, the greater the incentive to pursue a civil claim and the greater the trespass on the legislatively stated policies. The implications of today's decision for employers and their insurers are equally peculiar. The employer, who now has the incentive to resist workers' compensation claims, will take up the position presently occupied by the injured worker, that is, attempting to have the claim declared compensable, so as to retain the protection of ORS 656.018. The workers' compensation insurance carrier, who now has the same incentive as the employer to resist claims, will be opposed to the employer's interest and will instead have the same goal as the worker, to have the claim declared noncompensable, so the insurer will not have to pay the claim unless the same carrier also happens to cover the employer for general liability insurance. Self-insured employers will pay non-meritorious claims to eliminate the risk of civil actions, and insured employers will encourage their insurers to do the same. That practice, although costlier than present practices, would be a reasonable way to avoid even greater costs, and potential awards of damages, associated with litigation. The greater costs will be passed on to consumers, workers, and employers. The speedy, efficient, and cost-effective resolution of claims concerning on-the-job injuries, desired by the legislature, will become more difficult. In short, the majority's reading of ORS 656.005(7)(a) undercuts the raison d'etre of the workers' compensation system. The workers' compensation system represents a legislatively mandated "bargain" between employers and workers. The system gives *561 workers the opportunity to seek compensation for work-related injuries and diseases without the need to prove fault on the employer's part; in exchange, workers give up the right to sue the employer for work-related injuries and diseases. Workers benefit from the security of knowing that, if they prove their claims, they will be compensated quickly; employers benefit from limited liability and reduced litigation costs. That bargain is implicit in the policy statement accompanying the Workers' Compensation Law, ORS 656.012, and has been recognized by this court. In Hale v. Port of Portland, 308 Or. 508, 521-22, 783 P.2d 506 (1989), this court described the bargain this way: The overall bargain suggests that the employer is not civilly liable for on-the-job activities and conditions if the employer provides the required workers' compensation coverage and if those activities and conditions fall short of being willful and unprovoked aggression. See ORS 656.018(3) (exemption from liability does not apply when injury caused by willful and unprovoked aggression of person otherwise exempt). The majority's interpretation of the statutory definition of "compensable injury," however, guts the bargain. Every claimant will have the opportunity and the incentive to try to "opt out" of the workers' compensation system. The legislature did not intend that result. Under a proper reading of ORS 656.005(7)(a), plaintiff has a compensable injury, because he has an "injury * * * arising out of and in the course of employment." The Board found that plaintiff has "transient irritation of the upper respiratory tract and paranasal sinuses as a result of inhalation of substances found in his work place." (Emphasis added.) The Board then held that "[t]he medical evidence, however, does not support the conclusion that [plaintiff] has a compensable disease," because "[h]is symptomatic response to irritants is not a pathological process." In other words, although plaintiff's injury arose out of and in the course of his employment (was a compensable injury), the evidence adduced at the hearing did not entitle plaintiff to collect benefits.[6] Whether or not plaintiff received benefits, defendant's asserted liability here "arise[es] out of compensable injuries" and, therefore, the workers' compensation system "is exclusive and in place of all other liability." ORS 656.018(1). Plaintiff thus is foreclosed, under ORS 656.018(2), from pursuing the present action. Accordingly, the decision of the Court of Appeals and the judgment of the circuit court should be affirmed. *562 For the foregoing reasons, I respectfully dissent. CARSON, C.J., joins in this opinion. [1] ORS 656.018 provides in part: "(1)(a) The liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of compensable injuries to the subject workers, the workers' beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such injuries or claims resulting therefrom, specifically including claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such injuries, except as specifically provided otherwise in this chapter. "* * * * * "(2) The rights given to a subject worker and the beneficiaries of the subject worker for compensable injuries under this chapter are in lieu of any remedies they might otherwise have for such injuries against the worker's employer under ORS 654.305 to 654.335 or other laws, common law or statute, except to the extent the worker is expressly given the right under this chapter to bring suit against the employer of the worker for an injury." It is undisputed that plaintiff was a subject worker and defendant was a complying employer for purposes of ORS 656.018. [2] ORS 656.005(7) provides in part: "(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." ORS 656.802 provides parallel provisions regarding "occupational disease": "(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 * * *. "* * * * * "(2) The worker must prove that employment conditions were the major contributing cause of the disease or its worsening. Existence of the disease or worsening of a preexisting disease must be established by medical evidence supported by objective findings." ORS 656.804 provides: "An occupational disease, as defined in ORS 656.802, is considered an injury for employees of employers who have come under this chapter, except as otherwise provided in ORS 656.802 to 656.807." [3] In SAIF v. Drews, 318 Or. 1, 8, 860 P.2d 254 (1993), this court stated: "`Compensable injury' encompasses an application of the criteria found in ORS 656.005(7)(a), including the limitations found in subparagraphs (A) and (B) of that statute, in making an initial determination of compensability." Defendant here argues that "this court should interpret the word `compensable' in ORS 656.018(1), as it recently did in SAIF v. Drews, supra, 318 Or. at 8-9, 860 P.2d 254, to mean `accidental.'" Defendant misreads this court's ruling in Drews. In Drews, this court did not find that the words "compensable" and "accidental" were interchangeable as used in ORS 656.005(7)(a). In setting forth the test for applying the definition of "compensable injury" in the context of ORS 656.308, this court in Drews described the injury discussed in the first part of ORS 656.005(7)(a) as an "accidental injury." However, this court went on to make it clear that the "accidental injury" so described was not compensable, unless the limitations in ORS 656.005(7)(a)(A) or (B), if applicable, were satisfied. Id. at 8-9, 860 P.2d 254. [4] Although both ORS 656.005(7)(a) and (b) are part of the context of ORS 656.018, ORS 656.005(a) is more helpful to a determination of what ORS 656.018 means, because it states what a "compensable injury" is, while ORS 656.005(7)(b) only states what a "compensable injury" is not, at least under the described conditions. [5] The parallel provisions of ORS 656.802 (occupational disease) were amended at the same time to state the "major contributing cause" standard for occupational diseases. Or.Laws 1990, ch. 2, § 43 (Spec.Sess.). [6] Because we decide this case on statutory grounds, we need not consider plaintiff's arguments based on Article I, section 10, of the Oregon Constitution ("every man shall have remedy by due course of law for injury done in his person, property, or reputation"). [7] Defendant expresses concern that interpreting the exclusivity provision in a manner that does not preclude civil actions for noncompensable conditions could lead injured workers to bypass the workers' compensation system entirely in order to take their cases before juries and that, had the legislature sought to provide workers with such an election to proceed outside the Workers' Compensation Law, such a policy choice would be evident from the law itself. Nothing in our decision here supports a conclusion that workers may elect to bypass the workers' compensation system. In view of the procedural posture of this case, we do not decide whether a Board determination that plaintiff's claim is not a compensable injury is a prerequisite to this action in circuit court. [1] The majority argues that this court recognized a more limited definition of "compensable injury" in SAIF v. Drews, 318 Or. 1, 8, 860 P.2d 254 (1993). 320 Or. at 516 n. 3, 888 P.2d at 547 n. 3. The majority is wrong, for three reasons. First, the majority takes the sentence that it quotes out of context. The majority omits the cautionary sentence that limited the court's discussion to the narrow question presented: "As we interpret ORS 656.308(1) and 656.005(7)(a) together, they work in this case as follows[.]" Drews, 318 Or. at 8, 860 P.2d 254. Second, and relatedly, Drews did not decide the issue that we must decide today. In Drews, this court was not faced with the question that we consider here, of defining the entire range of "compensable injuries." Third, in its discussion of Drews, as in the remainder of the opinion, the majority makes the mistake of freely interchanging the distinct concepts of "compensable injury," "compensable," "compensation," and "compensated." [2] The statutory exceptions included willful and unprovoked aggression, for example. ORS 656.156 (1961). [3] Before 1965, the Workers' Compensation Law contained no separate definition of "compensable injury." Rather, from 1913 to 1965, the definition was contained within the applicable exclusivity provision. From 1913 until 1965, the exclusivity provision applied to any employee "who * * * sustains an accidental injury * * * arising out of and in the course of his employment." See, e.g., ORS 656.152 (1963) (so providing). That is the same phrase used in ORS 656.005(7)(a) to define a "compensable injury." The scope of "compensable injury" covered under the Workers' Compensation Law has always been the same; since 1913, it has applied to accidental injuries arising in the course and scope of employment. [4] This case presents an opportunity to make a general observation about the use of legislative history. Much of the majority's discussion concerns statements of two witnesses before a committee and of two legislators. Much of the dissent's discussion concerns the manifest general intention of the legislature in enacting the 1990 amendments to the workers' compensation laws. In general, an examination of legislative history is most useful when it is able to uncover the manifest general legislative intent behind an enactment. By contrast, an examination of legislative history is most fraught with the potential for misconstruction, misattribution of the beliefs of a single legislator or witness to the body as a whole, or abuse in the form of "padding the record" when the views of only a small number of persons on a narrow question can be found. [5] The majority blithely assumes, by way of a footnote, 320 Or. at ___ n. 7, 888 P.2d at 552 n. 7, that an injured worker could not "elect to bypass the workers' compensation system," but fails to explain why not. For the purpose of this dissent, however, I accept the assumption. [6] Plaintiff argues that such a result would be contrary to Article I, section 10, of the Oregon Constitution, which provides in part that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation." Plaintiff did not preserve that argument below; therefore, this court should not consider it. See Leiser v. Sparkman, 281 Or. 119, 122, 573 P.2d 1247 (1978) ("The parties to an appeal are restricted to the theory upon which [the case was tried] in the court below."). I would note, however, that the workers' compensation scheme has withstood Article I, section 10, challenges since Evanhoff v. State Industrial Acc. Com., 78 Or. 503, 517-18, 154 P. 106 (1915). Recently, in Hale v. Port of Portland, 308 Or. 508, 523, 783 P.2d 506 (1989), this court again stated that, so long as the party injured is not left without a remedy, Article I, section 10, is not violated. As discussed above, plaintiff is not left without a remedy. Plaintiff has a remedy, because he had an opportunity to prove that his condition was compensable; he has simply failed to prove his case.

b5ce02a4b65e97b627722d132b820d12b7a191d8f8e7c8c5ec374653cc72a112

1995-02-02T00:00:00Z

2ed0e0c6-84c4-4709-9d5e-075bf4fa3ed2

State v. Clegg

S46908

oregon

Oregon Supreme Court

Filed: August 23, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. GROVER CLEVELAND CLEGG, JR., Petitioner on Review. (CC 94-02-30944; CA A90925; SC S46908) On review from the Court of Appeals.* Argued and submitted November 3, 2000. Susan Elizabeth Reese, Portland, argued the cause and filed the brief for petitioner on review. John C. Bradley, Deputy District Attorney, Portland, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, and Leeson, Justices.** GILLETTE, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. * Appeal from Multnomah County Circuit Court, William C. Snouffer, Judge. 161 Or App 201, 984 P2d 332 (1999). ** Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; Riggs and De Muniz, JJ., did not participate in the consideration or decision of this case. GILLETTE, J. The issue in this criminal case is the admissibility at trial of certain testimony offered under various exceptions to the hearsay rule. The trial court admitted the testimony at issue and defendant was convicted of aggravated murder and other crimes. In a divided en banc opinion, the Court of Appeals affirmed defendant's convictions. State v. Clegg, 161 Or App 201, 984 P2d 332 (1999). For the reasons that follow, we hold that the testimony was admissible. We affirm the decision of the Court of Appeals, albeit on different grounds. Because the jury convicted defendant on all counts, we view the evidence in the light most favorable to the state. State v. Hayward, 327 Or 393, 399, 963 P2d 667 (1998). On July 30, 1993, defendant's wife, Christina (Tina) Clegg, was shot and killed by two gunmen wearing ski masks who burst into the Albina Head Start office where Tina worked as a receptionist. One of the men walked directly toward Tina and shot her several times; the last three shots were in a straight line down her back, in a manner that indicated that the shooter had stood over her and shot downward. After shooting, the men asked for money, but left without taking anything of value. One of Tina's coworkers also was shot in the chest in the incident. One of the intruders carried a silver gun, but police never found the murder weapon. At least in part because of the manner in which Tina was murdered, police soon began to suspect that the motive for the attack was not robbery, as first thought, but Tina's murder. Ultimately, defendant was indicted and charged with aggravated murder, conspiracy to commit aggravated murder, felony murder, intentional murder, assault, burglary, and two counts of solicitation to commit aggravated murder. The charges were based on allegations that defendant arranged for the murder of his wife. At trial, the state's theory of the case was that defendant had orchestrated the foregoing events because he was unhappy in his marriage to Tina, but did not want to risk either losing his home or paying child support as a result of divorce, and because he wished to collect the proceeds of a $100,000 insurance policy on Tina's life. According to the state, defendant asked his brother, Randall Clegg, to find someone to kill his wife. The state presented evidence that Randall had made more than one effort to find a killer. Randall first hired a man named Deskins to murder Tina for about $1,000. Deskins borrowed a gun from a friend, and Randall loaned Deskins a car and provided him with a photo album containing pictures of Tina. Deskins did not carry out his assignment, however. On one occasion, Deskins failed to carry out the plan because Tina unexpectedly went to church. The next day, Randall again loaned Deskins his car, telling him to return it after he had committed the murder. However, Deskins instead picked up a few friends, began drinking, and ultimately drove Randall's car into a pole. The police officer who dealt with the collision found assorted unfired bullets in the car and, in the trunk, a box of shotgun shells, a long-sleeved black T-shirt, and a black ski mask. About two weeks later, Randall hired two other individuals, Steward and Matthews, to kill Tina. The two also were to be paid $1,000 for the job. Tina's teenage daughter testified that, on the night before the murder, she saw defendant with Randall and Matthews in the basement of defendant's house; the Cleggs were showing Matthews a small silver gun. After the murder, Steward told friends that he had stolen the car that was used in the murder and that Matthews was the shooter. Two of Tina's fellow employees confirmed that Steward was one of the two intruders on the day of the murder, but was not the one who shot Tina. Although there was direct evidence linking Randall, Steward, and Matthews to Tina's murder, (1) the state's case against defendant was circumstantial. The state presented evidence that, in the year before the murder, defendant often had talked to coworkers about his marital unhappiness and frequently stated that he would have his wife killed rather than pay child support. In addition, defendant told coworkers that, if his wife were to die, he would receive $100,000 in life insurance benefits, his mortgage would be paid off, and he would be able to keep his children. Defendant's insurance agent testified about defendant's efforts, within hours of Tina's murder, to inquire about the extent of the coverage. Finally, various witnesses, including the investigating police officers and defendant's friends and coworkers, testified about defendant's relative lack of grief over Tina's death and his lack of interest in apprehending the killers. The piece of evidence tending most directly to connect defendant with the crime was testimony concerning a telephone conversation between defendant and Tina only moments before the murder. From that conversation, a juror could infer that defendant was attempting to ensure that Tina would be present in the office at the time that her killers arrived. The testimony came from of one Tina's coworkers, Hughes. Hughes testified that, about two to five minutes before the murder, she walked up to Tina's window just as Tina was hanging up the telephone after a conversation with defendant. (2) Hughes observed that Tina looked happy; Hughes asked Tina what accounted for her good mood. Hughes stated that Tina "told me that her husband loved her." Hughes then testified as follows: "And I said, 'Oh and what brought that on?' And she said, 'I just talked to Grover and told him Gladys was going to take me to the bank and he said, "No, no, no," and insisted I not let Gladys take me, that he was going to take me when he took me to lunch.'" In response to the prosecutor's announcement of intent to use the foregoing part of 'Hughes's testimony at trial, defendant objected on the ground that the statement was hearsay not within any exception to the hearsay rule. In the alternative, and to the extent that Hughes's testimony was admissible, defendant objected to it on the ground that its prejudicial effect outweighed its probative value. The state argued, among other things, that Hughes's testimony was admissible under OEC 803(3), which provides: "The following are not excluded by [OEC 802, the general rule against hearsay], even though the declarant is available as a witness: "* * * * * "(3) A statement of the declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain or bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant's will." In particular, the state asserted that Tina's statement to Hughes was admissible because it concerned whether Tina intended to go to the bank with Gladys or to wait to do so until she went to lunch with her husband. Moreover, the state argued, Tina's statement to Hughes was admissible because it concerned the state of her marriage, which was relevant because the defense had contended that the Cleggs' marriage was happy and free of conflict. (3) The trial court admitted the testimony as state-of-mind evidence under OEC 803(3). Defendant did not ask for a limiting instruction, and none was given. At the conclusion of the trial, defendant was convicted on all counts and sentenced to life imprisonment without the possibility of parole. On appeal, defendant assigned error to, among other things, the trial court's evidentiary ruling regarding that hearsay testimony. In response, the state argued that the trial court's ruling should be affirmed because Hughes's statement was not actually hearsay, inasmuch as it was not offered to prove the truth of the matter asserted. The state also repeated its contention that the statement, if it were hearsay, was admissible under OEC 803(3) as evidence of Tina's state of mind. In an en banc opinion, a divided Court of Appeals agreed with defendant that the evidence was hearsay that was not admissible under the state-of-mind exception to the hearsay rule and that the trial court had erred in admitting it on that basis. Clegg, 161 Or App at 207-10. (4) Notwithstanding the Court of Appeals' conclusion that the trial court erred, however, that court affirmed defendant's convictions, because it concluded that the error was harmless. Id. at 211. We allowed defendant's petition for review. "Hearsay" is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." OEC 801(3). The first issue that we address is whether Hughes's testimony included hearsay. Hughes's testimony recounted her conversation with Tina. In that conversation, Tina in turn recounted her telephone conversation with defendant. As a result, Hughes's testimony included several out-of-court statements -- Tina's statement to Hughes, which, in turn, included Tina's own statements to defendant during their phone conversation, and defendant's statements to Tina -- each of which potentially poses a hearsay problem if offered for its truth. To determine whether Hughes's testimony was inadmissible hearsay, therefore, we first determine whether any statement was offered for its truth. (5) Neither Tina's statements to defendant nor defendant's statements to Tina during their telephone conversation were offered for their truth. The prosecution did not seek to prove either that Gladys was going to take Tina to the bank or that defendant was going to take Tina to lunch. Accordingly, those statements are not hearsay. (6) Tina's statement to Hughes, however, was offered to prove exactly what it asserted, namely, that defendant had just called Tina (7) and that, when Tina suggested to defendant that she might be leaving her office, he tried to persuade her not to go. Accordingly, those statements by Tina to Hughes are hearsay and are admissible only if they qualify under one of the exceptions to the hearsay rule. In Oregon, "[h]earsay is not admissible except as provided in [OEC 801] to [OEC 806] or as otherwise provided by law." OEC 802. The question thus becomes whether Tina's statement to Hughes qualifies under one of the exceptions to which OEC 802 refers. As noted, Tina's account of her conversation with defendant is hearsay, because it was offered to prove the truth of its contents, viz., that Tina in fact told defendant that Gladys was going to take her to the bank and that defendant in fact responded by "insist[ing] I not let Gladys take me, that he was going to take me when he took me to lunch." The trial court ruled that Tina's statement was admissible under OEC 803(3), the "state-of-mind" exception. The Court of Appeals disagreed. The Court of Appeals' majority stated that the problem with applying OEC 803(3) was that "the evidence at issue was introduced to show defendant's state of mind or intentions, not the victim's state of mind. The victim's state of mind -- that she was happy and that she intended to go to the bank after lunch -- as shown by her relation of her conversation to her coworker, was not relevant to any material issue in this case." Clegg, 161 Or App at 208 (emphasis in original). The court went on to state: "The language of OEC 803(3) makes it clear that evidence is not excluded by the hearsay rule if it is a statement of the 'declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain or bodily health * * *.' (Emphasis added.) As noted above, the principal purpose of Kendra Hughes's statements was not to show the victim's state of mind. Rather, the evidence was offered to show defendant's state of mind. The language of OEC 803(3) does not authorize the admission of evidence of the state of mind or intentions of someone other than the declarant. "* * * * * "Kendra Hughes's testimony regarding the victim's statement about intending to go to the bank with defendant after lunch was not admissible to show that defendant asked the victim not to go to the bank until after lunch -- or inferentially, that defendant wanted the victim to stay at her office until the gunmen arrived." Clegg, 161 Or App at 208-10 (emphasis in original). In reaching the foregoing conclusion, the Court of Appeals appears improperly to have conflated three distinct inquiries, viz.: (1) whether the statement actually reflected some aspect of Tina's then-existing state of mind and, therefore, is not excluded by the general rule against hearsay; (2) whether the evidence is relevant and therefore admissible for the purpose of establishing that state of mind; and (3) whether the state may use that evidence, if it is admissible for that purpose, for any other purpose. We consider each question in turn. Tina's report of her conversation with defendant is not a direct commentary on her "state of mind, emotion, sensation or physical condition," as described in OEC 803(3). However, a statement, for purposes of the hearsay rule, includes oral "assertions" as well as nonverbal conduct intended as an assertion. OEC 801(1)(a) and (b). Therefore, even if a statement merely reflects the declarant's state of mind or reasonably supports an inference as to the declarant's state of mind, it constitutes an assertion of the declarant's state of mind for purposes of OEC 803(3). See Christopher B. Mueller and Laird C. Kirkpatrick, 4 Federal Evidence, § 438, 417 (2d ed 1994) (statements should be read with reference to speaker's expressive or communicative intent; therefore, all statements that shed light on state of mind, not only those that expressly describe some mental aspect, fall within state-of-mind exception). One inference that may be drawn from Tina's statement to Hughes is that Tina had intended to go with Gladys to the bank before lunch. That is, Tina was stating to Hughes her intent or plan. A statement of the declarant's then-existing intent or plan expressly is included as an example of a statement of the declarant's state of mind in OEC 803(3). As noted, defendant did not assert that, even if some parts of Tina's statement to Hughes were admissible, other parts were not. Thus, under the exception set out in OEC 803(3), Tina's assertion of her intent to allow Gladys to take her to the bank and her reasons for that intent are not excludable under the general rule against hearsay. Although Tina's statement is not excluded by the rule against hearsay, it still would not be admissible unless it were relevant. As noted, the Court of Appeals concluded that Tina's intention to go to the bank "was not relevant to any material issue in this case." Clegg, 161 Or App at 208. In so concluding, however, the court took an unduly narrow view of the relevance standard. Under OEC 401, "relevant evidence" is evidence that has "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." As this court stated in State v. Titus, "[t]he rule establishes a 'very low threshold' for the admission of evidence." 328 Or 475, 481, 982 P2d 1133 (1999) (quoting State v. Hampton, 317 Or 251, 255 n 8, 855 P2d 621 (1993)). The state's theory of the case was that Tina's murder was the product of a plan devised by defendant and his brother to have her killed at her office during an apparent robbery attempt. The last time that the conspirators had planned to attack Tina, she foiled their plan by unexpectedly going to church. It was essential to the success of the plan that Tina be at her office at the time that the gunmen arrived. Tina's intent to go to the bank with Gladys again threatened to foil that plan. Evidence that Tina planned to be away from her place of work before lunch takes on particular relevance when considered together with evidence that defendant immediately sought to change Tina's plan and to induce her to remain where she might be killed pursuant to a murder-for-hire plan. (8) The evidence, therefore, was relevant under the minimal standard applicable to such determinations. Having concluded that Tina's hearsay statement was admissible as relevant state-of-mind evidence, we turn to the question whether the state could use that testimony to prove defendant's participation in the murder-for-hire scheme. As noted, defendant did not ask the trial court to give the jury an instruction limiting the use of Hughes's testimony. Generally, once evidence has been admitted without restriction, it can be used by the jury for any purpose. See generally OEC 105 ("When evidence which is admissible * * * for one purpose but not admissible * * * for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly"); John W. Strong, 1 McCormick on Evidence, § 54, 242 (5th ed 1999) ("[F]ailure to make a sufficient objection to incompetent evidence waives any ground of complaint of the admission of the evidence. * * * But it has another equally important effect. If the evidence is received without objection, it becomes part of the evidence in the case and is usable as proof to the extent of its rational persuasive power.); American Produce Co. v. Marion Creamery & Poultry Co., 214 Or 103, 112, 327 P2d 1104 (1958) (quoting earlier version of McCormick's Evidence to same effect). Moreover, as we have shown, the very timing of defendant's telephone call, even without information respecting its contents, had some tendency to prove what the contents demonstrated more clearly, viz., that defendant wanted to keep Tina at the office. The prosecution was entitled to use Hughes's testimony to establish that defendant had participated in the murder-for-hire plan by persuading Tina not to go to the bank but, instead, to wait at her desk, thereby ensuring that she would be present when the gunmen arrived. The Court of Appeals' contrary ruling was error. As the foregoing discussion demonstrates, Hughes's testimony concerning what Tina told her was admissible. The Court of Appeals' contrary ruling was error. As noted, that court nevertheless affirmed defendant's conviction, because it ruled that admission of 'Hughes's testimony, although error, was harmless. Thus, the Court of Appeals reached the correct result -- affirmance. (9) The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 1. Randall and Steward were charged with and convicted of crimes related to the murder and the assault on the coworker. The Court of Appeals affirmed those convictions without opinion, and this court subsequently denied review. State v. Clegg, 153 Or App 718, 957 P2d 1231, rev den 327 Or 431 (1998); State v. Steward, 151 Or App 804, 960 P2d 394 (1997), rev den 326 Or 465 (1998). Matthews never was brought to trial, because he was killed a few weeks after the murder in an unrelated incident. 2. Other witnesses testified that Tina earlier had reported that she had been planning to go out to lunch with defendant. Still others confirmed that defendant telephoned his wife in the moments before the murder and that they had observed Hughes and Tina engaging in a conversation around that time. 3. The state argued in the alternative that the evidence was admissible under the so-called "residual exception" to the hearsay rule, OEC 804(3)(f), which provides: "The following are not excluded by [OEC 802] if the declarant is unavailable as a witness: "* * * * * "(f) A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of the Oregon Evidence Code and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this paragraph unless the proponent of it makes known to the adverse party the intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing, or as soon as practicable after it becomes apparent that the statement is probative of the issues at hand, to provide the adverse party with a fair opportunity to prepare to meet it." Because of our disposition of this case under OEC 803(3), we need not address whether Hughes's testimony would have been admissible in any event under OEC 804(3)(f). 4. The Court of Appeals did not consider the admissibility of the statement under the residual exception, OEC 804(3)(f). 5. As noted, the state argued below that none of the challenged statements was offered for its truth but that, even if any were so offered, it was admissible. 6. In any event, defendant's statements to Tina do not themselves present a second level of hearsay, even if offered for the truth of their contents. OEC 801(4)(b) provides, in part: "A statement is not hearsay if: "(b) The statement is offered against a party and is: "(A) That party's own statement * * *." (Emphasis added.) 7. Other evidence at trial established that defendant telephoned Tina on the morning of the murder. 8. In this connection, we note that the Court of Appeals' concern that the state principally meant to use Hughes's testimony to prove defendant's state of mind or intentions, and its reliance on the legislative commentary to OEC 803(3) to discredit that effort, is misplaced. The legislative commentary states that "statements of intent by a declarant [are] admissible only to prove the declarant's future conduct, not the future conduct of another person." Clegg, 161 Or App at 208. This is not a case in which evidence was being offered to show that defendant actually went to the bank later. The evidence was used to suggest by inference something about defendant's motive, but defendant has not even attempted to show why, if the evidence otherwise were admissible, the prosecution was not entitled to rely on the various inferences that were available from the evidence. 9. Defendant's alternative argument that the prejudicial effect of Hughes's statement outweighed its probative value is not well taken. Defendant's request to Tina that she stay at the office is not like, for example, evidence of prior bad acts. Indeed, the request was intrinsically innocuous. It is only in context that the request's sinister quality is manifest.

b47b3eea712dde19a2f131f5004f087eaae4e2f69ed3e25a1fc466e251d0593a

2001-08-23T00:00:00Z

1fb962eb-3751-4a36-891f-4495d8b90b1c

Oxley v. Myers

S48714

oregon

Oregon Supreme Court

Filed: August 30, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON GARY F. OXLEY, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent, and TIM NESBITT, Intervenor. (SC S48714, S48715, S48716) (Consolidated for Argument and Opinion) On petitions to review ballot titles. Argued and submitted August 20, 2001. David H. Remes, pro hac vice, Washington, D.C., argued the cause for petitioner. With him on the petition were James N. Gardner and Lynda N. Gardner, of Gardner & Gardner, Portland. Erika L. Hadlock, Assistant Attorney General, Salem, argued the cause for respondent. With her on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Lynn-Marie Crider, Salem, filed an answering memorandum for intervenor. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. PER CURIAM Ballot titles certified. This decision shall become effective in accordance with ORAP 11.30(10). PER CURIAM These three ballot title review proceedings, which have been consolidated for argument and opinion, are brought under ORS 250.085(2) and concern the Attorney General's certified ballot titles for proposed initiative measures denominated by the Secretary of State as Initiative Petitions 61, 62, and 63 (2002). Petitioner is an elector who timely submitted written comments to the Secretary of State concerning the content of the Attorney General's draft ballot title for each initiative measure and who therefore is entitled to seek review in this court. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot titles to determine whether they are in "substantial compliance" with the requirements of ORS 250.035(2)(a) to (d). ORS 250.085(5). (1) Petitioner challenges all parts of each of the three ballot titles that the Attorney General certified. We have considered each of petitioner's arguments and determine that none is well taken. Accordingly, we certify the following ballot titles to the Secretary of State: For Initiative Petition 61: CREATES PROGRAM TO NEGOTIATE PRESCRIPTION DRUG PRICES FOR PARTICIPATING OREGONIANS; CAPS RETAIL PRICES FOR PARTICIPANTS RESULT OF "YES" VOTE: "Yes" vote creates Oregon Prescription Drug Cost Reduction Program to negotiate prescription drug prices; program caps retail prices that participating pharmacies can charge program participants. RESULT OF "NO" VOTE: "No" vote rejects creation of Oregon Prescription Drug Cost Reduction program to negotiate prescription drug prices; rejects capping prices that participating pharmacies charge program participants. SUMMARY: Creates Oregon Prescription Drug Cost Reduction Program for Oregon residents who choose to participate. Program negotiates prescription drug prices with manufacturers, with goal of reducing prices to level comparable to "maximum net price that can be charged by manufacturers to federal purchasers under the federal supply service schedule." Program sets maximum retail prices that participating pharmacies can charge program participants. If program establishes a preferred drug list, a participant may purchase a non-listed drug through the program if a treating physician determines the listed drug will not satisfactorily address the person's health needs. Program coordinates with health plan sponsors, insurers, others to provide benefit of negotiated retail prices to participants in their plans who also participate in program. Program participants pay administrative costs. Other provisions. For Initiative Petition 62: CREATES PROGRAM TO NEGOTIATE PRESCRIPTION DRUG PRICES; CAPS RETAIL PRICES IF SPECIFIED GOAL NOT REACHED RESULT OF "YES" VOTE: "Yes" vote creates program to negotiate prescription drug prices for participants; caps retail drug prices if negotiated prices not comparable to those charged federal purchasers. RESULT OF "NO" VOTE: "No" vote rejects creation of program to negotiate prescription drug prices; rejects capping retail prices if negotiated prices not comparable to those charged federal purchasers. SUMMARY: Creates Prescription Drug Cost Reduction Program for Oregonians choosing to participate. Program negotiates prescription drug prices with manufacturers, with goal of reducing prices to level comparable to "maximum net price that can be charged by manufacturers to federal purchasers under the federal supply service schedule [FSSS]." Program caps retail prices that participating pharmacies can charge program participants. Creates board to design program, adopt implementing rules. Board determines by 2005 whether program drug prices are reasonably comparable to those charged federal purchasers under FSSS, plus dispensing fee. If they are not, board caps retail prices for "any or all" prescription drugs sold to anyone in Oregon, taking into account drug prices and reasonable costs of drug production, research and development, distribution, marketing, administration, investment return. Other provisions. For Initiative Petition 63: CREATES PROGRAM TO PURCHASE, DISTRIBUTE PRESCRIPTION DRUGS FOR STATE AGENCIES, OTHER PARTICIPANTS, INCLUDING HEALTHCARE PLANS RESULT OF "YES" VOTE: "Yes" vote creates program to negotiate prescription drug prices, purchase drugs in volume for state agencies and other participants, including healthcare plans, employers and individuals. RESULT OF "NO" VOTE: "No" vote rejects creating program to negotiate prescription drug prices, purchase drugs in volume for state agencies and other participants, including healthcare plans, employers, individuals. SUMMARY: Creates Oregon Prescription Drug Discount Purchasing Program. The program negotiates prices of prescription drugs with manufacturers and purchases prescription drugs in volume for state agencies that dispense prescription drugs to patients. Program also purchases prescription drugs for other drug purchasers that choose to participate, including the Public Employee Benefits Board, Oregon Health Plan, cities, counties, school districts, employers, labor organizations, healthcare plan sponsors, healthcare providers, and individuals. Program distributes prescription drugs, using existing wholesalers and retail pharmacies if that provides good consumer service and is cost-effective. Once implemented, program is self-financing, with participants paying administrative costs. Measure creates board to design program and adopt implementing rules. Board analyzes prescription drug costs, makes recommendations for further action to make prescription drugs accessible and affordable. Other provisions. Ballot titles certified. This decision shall become effective in accordance with ORAP 11.30(10). 1. The 2001 Legislative Assembly amended ORS 250.085 in a respect not relevant to this proceeding.

eb0aad896e65291079f4ec7e3624d8f16608d0394fc578198d9fc66b92b1c6f6

2001-08-30T00:00:00Z

c37b0ab1-59f1-4173-8449-cee912b27dc9

Novick v. Myers

S48668

oregon

Oregon Supreme Court

FILED: September 20, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48668) On petition to review ballot title. Argued and submitted September 12, 2001. Steven Novick, in propria persona, argued the cause and filed the petition. Brendan C. Dunn, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With him on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. PER CURIAM Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). PER CURIAM This ballot title review proceeding brought under ORS 250.085(2) concerns the Attorney General's certified ballot title for a proposed initiative measure, denominated by the Secretary of State as Initiative Petition 56 (2002). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2)(a) to (d). ORS 250.085(5). (1) Petitioner challenges the "Result of 'Yes' Vote" and summary portions of the Attorney General's certified ballot title. We have considered petitioner's arguments and conclude that none is well taken. Accordingly, we certify the following ballot title to the Secretary of State: AMENDS CONSTITUTION: FOR PUBLIC-WORKS CONTRACTS: ELIMINATES COMPETITIVE-BIDDING EXEMPTIONS AND PREVAILING-WAGE REQUIREMENTS; PROHIBITS UNION PREFERENCES RESULT OF "YES" VOTE: "Yes" vote eliminates, for public-works contracts, competitive-bidding exemptions and requiring prevailing wages/benefits; and, for those contracts, prohibits preferring contractors using union workers. RESULT OF "NO" VOTE: "No" vote retains laws exempting certain public-works contracts from competitive-bidding requirement and requiring public-works contractors to pay workers prevailing wages and benefits. SUMMARY: Amends constitution. Current law requires, with certain exemptions, awarding public contracts through competitive bidding to lowest responsible, qualified bidder; requires paying prevailing wages (wages/benefits paid on similar projects). Measure requires awarding all contracts for public-works projects to the responsible, qualified contractor submitting lowest bid to provide not less than the quality of work or product necessary to meet project specifications. Prohibits (with exceptions) denying "responsible, qualified" status for reasons unrelated to work quality, timeliness. Prohibits laws, requirements, contracts, and "government actions" that: require contractors to pay wages/benefits in amounts greater than amounts that would be required in Oregon's private sector; or give advantages or preferences to contractors using union workers. Does not exempt contractors from minimum-wage, overtime-pay requirements. Other provisions. Ballot title certified. This decision shall become effective in accordance with ORAP 11.30(10). 1. The 2001 Legislative Assembly amended ORS 250.085 in a respect not relevant to this proceeding.

33df646de17f16513520d6724b2c13a5022a5ad83f7248c7ef7ca1001a511099

2001-09-20T00:00:00Z

f5b90137-9e64-4480-a543-fb2e47a28c41

Marcus v. Myers (Certification)

oregon

Oregon Supreme Court

FILED: September 17, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON LEWIS MARCUS, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48622) On modified ballot title filed September 7, 2001.* Janet A. Metcalf, Assistant Attorney General, Salem, filed the filing of modified ballot title for respondent. With her on the filing were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. No appearance by petitioner. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9). *332 Or 463, ___ P3d ___ (2001) (referring ballot title for modification). The court in this ballot title review proceeding determined that the Attorney General's certified ballot title for a proposed initiative measure, which the Secretary of State denominated as Initiative Petition 54 (2002), failed to comply substantially with statutory standards. Marcus v. Myers, 332 Or 463, ___ P3d ___ (2001). Under Oregon Laws 2001, chapter 802, section 2 (now codified as ORS 250.085(8)), the court referred the ballot title to the Attorney General for modification. The Attorney General has filed a modified ballot title for the proposed initiative measure, and no party to the ballot title review proceeding has objected. See ORS 250.085(9) (setting out period within which party may object to modified ballot title and requiring court to certify modified ballot title if no objection filed). The modified ballot title for Initiative Petition 54 (2002) states: "AMENDS CONSTITUTION: ALLOWS REGISTERED VOTERS TO SIGN INITIATIVE, REFERENDUM, AND RECALL PETITIONS BY ELECTRONIC TRANSMISSION OF 'SIGNATURE' "RESULT OF 'YES' VOTE: 'Yes' vote allows registered voters to sign initiative, referendum, and recall petitions by electronic transmission of 'signature'; continues to allow handwritten signatures. "RESULT OF 'NO' VOTE: 'No' vote rejects proposal permitting registered voters to sign initiative, referendum, and recall petitions by electronic transmission of 'signature'; retains current law allowing handwritten signatures. "SUMMARY: Amends Constitution. Current law allows handwritten signatures on initiative, referendum, and recall petitions, but does not provide for 'signing' such petitions by electronic transmission. Measure allows voters to 'sign' petitions by electronic transmission. Electronic transmission means computer transmission, through the internet or other computer network. 'Electronic signature' must include voter's name and residential address, in substantial conformity with voter registration information. Until government provides each voter a unique identifier, voter also must provide contact information, such as e-mail address, telephone number, which shall not become public record. Election officials must either validate or prove signatures invalid using identifying information provided by petition signer. Legislature shall review electronic-petitioning process, and create new provisions to standardize, but not hinder, process. Other provisions." The modified ballot title is certified. The appellate judgment shall issue in accordance with ORS 250.085(9).

b2b238f8adab382c12ac04ce8b8b728bc366de9ab800417b739f95d685a77976

2001-09-17T00:00:00Z

69c957f3-39cb-4c36-a18f-25b634c65274

State v. Branstetter

S47567

oregon

Oregon Supreme Court

Filed: August 16, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v. WILLIAM THOMAS BRANSTETTER, Petitioner on Review. ____________________________ PIONEER HUMANE SOCIETY, Respondent on Review, and STATE OF OREGON, Respondent on Review, v. WILLIAM THOMAS BRANSTETTER, Petitioner on Review. (CC CR97-0077; CA A100029; SC S47567) On review from the Court of Appeals.* Argued and submitted May 9, 2001. Jay Edwards, Salem, argued the cause and filed the petition for petitioner on review. Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause for respondent on review State of Oregon. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. No appearance for respondent on review Pioneer Humane Society. Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.** GILLETTE, J. The decision of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for consideration of the remaining assignments of error. *Appeal from Umatilla County Circuit Court, Rudy M. Murgo, Judge. 166 Or App 286, 1 P3d 451 (2000). **Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz, J., did not participate in the consideration or decision of this case. GILLETTE, J. Defendant seeks review of a Court of Appeals decision dismissing, for lack of jurisdiction, his appeal from a trial court order that forfeited certain animals that he owned to an animal care agency. Although the trial court's forfeiture order was issued during, and had the same case number as, defendant's prosecution on charges of first-degree animal neglect, ORS 167.330, the forfeiture order was based on a different statute, ORS 167.347. That statute provides for forfeiture of animals that have been impounded pending final disposition of a criminal animal-neglect charge, and does not make the forfeiture contingent on the defendant being found guilty in the criminal case. The Court of Appeals concluded that the forfeiture proceeding and order were part of the criminal action against defendant and, therefore, could not be appealed, because that criminal action had ended in acquittal. State v. Branstetter, 166 Or App 286, 289-90, 1 P3d 451 (2000). (1) We hold that the forfeiture order arose out of a "special statutory proceeding" and, thus, was appealable under ORS 19.205(4), a statute that authorizes appeals from such proceedings. We therefore remand the case to the Court of Appeals for consideration of the remaining assignments of error. In January 1997, the Umatilla County Sheriff's Department received a complaint that defendant's animals -- 11 horses and one donkey -- were being neglected. A deputy investigated the complaint, found evidence of neglect, and applied for a warrant to impound the animals, as provided in ORS 167.345(2). (2) A search warrant issued and the animals were impounded and placed into the care of the Pioneer Humane Society ("the humane society"). (3) Defendant was arrested and charged with 12 counts of first degree animal neglect. ORS 167.330. His first trial on those charges ended in a mistrial. Before defendant was tried again, the humane society filed a petition in the criminal action, as authorized by ORS 167.347(1), (4) seeking forfeiture of defendant's animals. The state moved to become a co-petitioner in the forfeiture matter; that motion was granted over defendant's objection. After a hearing respecting the forfeiture petition, ORS 167.347(2), (5) the court found that the petitioners had established probable cause to believe that the animals had been neglected in violation of ORS 167.330, and it ordered the animals forfeited unless defendant posted a $2,700 bond (which the court found to be the amount expended by the humane society in caring for the animals from the date of impoundment until the date of the order). (6) When defendant failed to post the bond, the trial court entered an order of forfeiture. Thereafter, defendant was tried for the second time on the criminal animal-neglect charges. He was acquitted on all counts. The acquittals had no effect on the forfeiture order. After his acquittal, defendant filed a timely notice of appeal from the forfeiture order, attempting to challenge it on various constitutional grounds. However, the state argued in its respondent's brief in the Court of Appeals that the forfeiture order was unappealable and, specifically, that the jurisdictional statute on which defendant relied, ORS 138.053(1), was inapplicable, because it does not provide for an appeal from an acquittal. A majority of a panel of the Court of Appeals agreed with the state and dismissed the appeal. In doing so, the Court of Appeals also rejected an alternative theory of appellate jurisdiction, viz., that the forfeiture order was appealable under ORS 19.205(4), because it arose out of a "special statutory proceeding." (7) After considering the case law surrounding ORS 19.205(4), the court concluded that, to qualify as a special statutory proceeding under that statute, a proceeding must be separate from any other proceeding. Branstetter, 166 Or App at 290. The court concluded that a forfeiture proceeding under ORS 167.347 could not fulfill the separateness requirement because, by the express wording of ORS 167.347, the petition that initiates a forfeiture proceeding must be filed "in the criminal action." Id. at 295. (8) We allowed defendant's petition for review. Defendant contends that the Court of Appeals erred in determining that it was without jurisdiction to consider his appeal. Defendant acknowledges that the right to appeal is purely statutory, State v. K.P., 324 Or 1, 4, 921 P2d 380 (1996), but argues that the order at issue is appealable under one or both of the statutes that the Court of Appeals considered and dismissed as inapplicable. Because the case was brought in the criminal proceeding, we first consider defendant's arguments with respect to ORS 138.053(1), which is a part of the criminal procedure code. That statutes provides: "This section establishes the judgments and orders that are subject to the appeal provisions and to the limitations on review under ORS 138.040 and 138.050. A judgment or order of a court, if the order is imposed after judgment, is subject to ORS 138.040 [which provides for appeal by a defendant] * * * if this disposition includes any of the following: "(a) Imposes a sentence on conviction." "(b) Suspends imposition or execution of any part of a sentence. "(c) Extends a period of probation. "(d) Imposes or modifies a condition of probation or of sentence suspension. "(e) Imposes or executes a sentence upon revocation of probation or sentence suspension." (9) The issue need not detain us long. As noted, the Court of Appeals concluded that ORS 138.053(1) does not authorize an appeal from an acquittal. It reasoned: "ORS 138.053(1) provides that a judgment or order in a criminal case is appealable only if it imposes a sentence on conviction, suspends imposition or execution of any part of a sentence, or makes a decision relating to probation. None of those events occurred here or could have occurred here or could have occurred here. There can be no sentence, probation or other sanction after an acquittal." Branstetter, 166 Or at 289-90 (emphasis in original). We agree. We turn to defendant's alternative theory -- that the forfeiture order arose out of a "special statutory proceeding" and therefore is appealable under ORS 19.205(4). As noted, the Court of Appeals rejected that theory on the basis of case law that the Court of Appeals read to require that a special statutory proceeding cannot be a part of but, instead, must be separate from, any other proceeding. The Court of Appeals concluded that a forfeiture proceeding could not fulfill the separateness requirement, because the filing direction in ORS 167.347 expressly makes the proceeding part of another action. In arguing the contrary view, defendant adopts the position articulated by the Court of Appeals' dissent -- that it is erroneous to conclude that, simply because ORS 167.347 permits a petition for forfeiture be filed in such action, the forfeiture proceeding provided in that statute is part of that action. Defendant (and the Court of Appeals' dissent) suggest that the fact that the forfeiture proceeding is essentially civil in nature, the fact that neither the outcome of the forfeiture proceeding nor the outcome of the criminal action has any effect on the other proceeding, the fact that there are differing standards of proof required for forfeiture as opposed to conviction in the criminal action, and the fact that the parties are different in the forfeiture proceeding and the civil action, all point to a conclusion that the forfeiture proceeding is separate from the criminal action and is a special statutory proceeding for purposes of the appellate review statutes. The parties agree that, for purposes of ORS 19.205(4), a "special statutory proceeding" must be "separate" from any other proceeding. In fact, this court's case law establishes that "separateness" in some sense is a necessary attribute of a special statutory proceeding. See, e.g., State v. Threet, 294 Or 1, 5, 653 P2d 960 (1982) (illustrating requirement). The parties part company, however, over how separateness is to be assessed. The state appears to argue that formal separateness, i.e., separate case names and numbers, is required. Consistent with that formalistic approach, the state suggests that the express authorization in ORS 167.347 that a forfeiture petition may be filed "in the criminal action" establishes the legislature's intent to create integrated, rather than separate, proceedings for all purposes. Defendant advocates for a more functional approach to the problem -- one that looks at identity of issues and parties and at whether and how the proceeding at issue affects and is affected by the related proceeding. We begin by noting that the state's approach is undermined significantly by the fact that, although ORS 167.347 permits a forfeiture proceeding to be filed before the outcome of the criminal case, it does not require such a filing. Furthermore, a separate statute, ORS 167.350, authorizes forfeiture "in addition to * * * any other sentence," when a defendant is found guilty of the underlying criminal act. We now turn to the cases that discuss and apply the requirement that special statutory proceedings be separate from every other proceeding. We begin with Threet, the case in which this court first articulated the separateness requirement. The question in Threet was whether a circuit court order compelling witnesses to appear and testify before a grand jury was appealable under ORS 19.205(4) (10) as the product of a "special statutory proceeding." Based on the historical use of that term in the cases and statutes, this court held that "separateness" is a necessary attribute of a special statutory proceeding and suggested that a reason for that requirement is that it avoids disruption of other judicial proceedings. Threet, 294 Or at 5. Applying the principles that it derived from earlier cases, the Threet court concluded that proceedings to compel grand jury testimony under ORS 136.617-.619 were not special statutory proceedings. The court specifically noted that such proceedings "only come into play when a witness refuses to testify or produce evidence on the ground of self-incrimination '[i]n any criminal proceeding before a court of record or in any proceeding before a grand jury.'" Id. at 7. The Threet court also noted that allowing appeals from such orders would disrupt and, at times, even abort grand jury proceedings. Id. The majority below read Threet as dispositive with respect to the question whether ORS 19.205(4) applies to the forfeiture proceeding in the present case. We disagree. Although Threet repeatedly states that a special statutory proceeding must be "separate" and "distinct" from any other proceeding, it nowhere holds that the fact that a particular proceeding shares a case number with another proceeding necessarily removes that proceeding from the scope of ORS 19.205(4). In fact, the Threet opinion discusses separateness primarily in functional terms, i.e., in terms of whether a proceeding "depends" on another for its existence and whether an appeal from one proceeding will disrupt the other proceeding. (11) Neither is the actual holding in Threet inconsistent with defendant's position in the present case. In Threet, the proceeding to decide the motion to compel testimony arose out of, and purported to resolve, a potentially problematic event in the criminal or grand jury proceeding, i.e., a witness's refusal to testify. There was a strong dependent relationship between the subject matter of the two proceedings and a strong logical reason for viewing them as inseparable for purposes of appeal. By contrast, there is no necessary connection between the content of a forfeiture proceeding under ORS 167.347 and the criminal action in which, by statute, the forfeiture petition may be filed. Although a forfeiture proceeding under ORS 167.347 formally depends on a criminal action for its existence in that it can go forward only if a criminal action of a specified sort is pending, that kind of forfeiture proceeding does not arise out of the criminal action, resolve any controversy in the criminal action, or otherwise affect or depend on the substance of the criminal action. Threet does not control this case. The same is true of the other major case that deals with the separateness requirement announced in Threet, Garganese v. Dept. of Justice, 318 Or 181, 864 P2d 364 (1993). Garganese involved the Oregon Unlawful Trade Practices Act, ORS 646.605 et seq. The court there considered whether a proceeding under ORS 646.618(2) to challenge an investigative demand issued by the Department of Justice (department) was a "special statutory proceeding" within the meaning of ORS 19.205(4). The department argued that the proceeding was not sufficiently "separate and distinct" to qualify as a special statutory proceeding, because it was only a constituent part of a trade practices enforcement action under a related statute, ORS 646.632. In analyzing the problem, the court noted that the department may serve investigative demands on persons other than those whom they suspect of violating the Unlawful Trade Practice Act and that challenges by such persons under ORS 646.618(2) necessarily would be separate and distinct from an enforcement proceeding against a suspect under ORS 646.632. The court then stated: "Although the recipient of an investigate demand in many cases will be the target of the investigation, because proceedings under ORS 646.618(2) and 646.632 do not necessarily involve the same parties, that is not always the case under the statutory scheme. Because the existence of a proceeding under one of those statutes is not dependent on the existence of a proceeding under the other, we conclude that the two proceedings are separate and distinct." Id. at 187. The court acknowledged that allowing rulings on investigative demands to be appealed might delay an enforcement action under ORS 646.632 when the prosecutor is using the demand to determine whether there is probable cause to proceed, but concluded that that fact does not preclude jurisdiction under ORS 19.205(4), because the appeal would not disrupt a judicial proceeding that actually was in progress. Id. at 187-88. Garganese does not aid the state here. There was no question that the investigative and enforcement proceedings at issue in Garganese could be distinct. Instead, the issue was whether the investigative demand proceedings could be deemed to be "separate and distinct," when they generally had a strong functional connection to a larger enforcement action under ORS 646.632. However, the Garganese court concluded that the proceedings there were "separate and distinct," because there was no necessary substantive connection between them (they might, in fact, involve different parties). The court had no occasion to consider whether the result necessarily would be different when two proceedings were substantively unconnected, but nevertheless were linked by, for example, a common case number. In fact, we have been able to identify only one case from this court that appears to deal with circumstances analogous to those presented in this case. In State v. K.P., a petitioner who had served a probationary sentence after a conviction on a charge of second-degree theft sought an order from the court that had entered her conviction setting aside the conviction and sealing the records that related to it, as authorized by ORS 137.225. The trial court granted the requested relief, but expressly excluded police investigation reports from the list of records to be sealed. The petitioner appealed, arguing that the court was required to seal the police investigative reports along with the other records. K.P., 324 Or at 3-4. When the case reached this court, the court first considered a threshold procedural issue, viz., whether the order setting aside the conviction and sealing the records was appealable. After considering and rejecting other possible statutory bases for appeal, the K.P. court concluded that the order was appealable under ORS 19.205(4). Id. at 6. Although the K.P. opinion offered no explanation of its jurisdictional conclusion, that conclusion nonetheless is relevant to the present controversy, because of certain parallel factual circumstances. The petitioner in K.P. had filed her motion to set aside and seal records of her conviction under the same case name and numbers as the criminal action, and her motion was treated both by the trial court and this court as an extension of that criminal action. Despite those facts, this court had no difficulty in concluding that the process for sealing the records was a "special statutory proceeding" and, presumably, that it was separate and distinct from the criminal action for purposes of ORS 19.205(4). K.P. thus indicates that the fact that a proceeding formally is part of another proceeding in the sense that it shares a common case number does not prevent such a proceeding from being "separate from any other proceeding" for purposes of ORS 19.205(4). In the opinion below, the majority suggested that K.P. is distinguishable from the present case, because the K.P. court had concluded that the record-sealing proceeding in that case was a new proceeding and not part of the criminal proceeding. Branstetter, 166 Or App at 293. In the view of the Court of Appeals' majority, it would be impossible for a court to draw a similar conclusion with respect to the forfeiture proceeding at issue in this case, because the legislature expressly made the forfeiture proceeding part of a criminal action by requiring that the petition for forfeiture be filed in the criminal action. The state as much as concedes that there is no evidence of a specific legislative intent to preclude appeals from forfeiture orders issued under ORS 167.347 by persons who are acquitted in the related criminal action. It even acknowledges that such an intent is unlikely, given that the legislature clearly has provided a right to appeal a forfeiture order to persons who are convicted in the criminal action. (12) We agree that when, as here, a person convicted of animal abuse nonetheless could appeal a resulting forfeiture, the suggestion that the legislature intentionally would withhold that same privilege from someone who was acquitted of the charges simply is not plausible. The state contends, nonetheless, that the legislature did intend to make the forfeiture proceeding part and parcel of the criminal action and that, as a necessary consequence of that choice, the forfeiture proceeding cannot be a special statutory proceeding for purposes of ORS 19.205(4). At bottom, the state's argument rests entirely on the fact that ORS 167.347 provides that an animal care agency's petition to forfeit an animal that has been impounded pending a criminal action may be filed "in the criminal action." The state argues -- as it must -- that that phrase, by itself, establishes a legislative intent that the forfeiture proceeding be treated as part of the criminal action for all purposes. The phrase does not stand by itself, however. The statutory context clearly demonstrates that the forfeiture proceedings and the criminal action are not of a piece. We note specifically that ORS 167.347(3) sets out a burden of proof (probable cause) that would be incongruous (if not unconstitutional) as the legal standard for finding against a defendant in a criminal action. The participation as parties by entities other than the state, such as county animal shelters and other animal care agencies, is equally incompatible with the criminal proceedings. We think that it is clear from the wording of ORS 167.347 and its statutory context that the legislature did not consciously intend that a forfeiture proceeding under ORS 167.347 be deemed to be "part" of the criminal action. We conclude, as the court did in K.P., that, despite a shared case name and number, the proceeding at issue is sufficiently separate and distinct from the criminal action to which it relates to qualify as a special statutory proceeding for purposes of ORS 19.205(4). The opinion in the Court of Appeals raises one additional issue that we address. In a footnote, the Court of Appeals majority suggested that allowing forfeiture orders to be appealed as special statutory proceedings was undesirable, because it could deprive trial courts of jurisdiction to try the criminal cases in which the forfeiture proceeding occurs: "If defendant were entitled under ORS 19.205(4) to appeal from the order that forfeited his interest in the animals, he would file his notice of appeal in his criminal case, as he did here, because that is the only case in which it could be filed. If he had done that before his second trial on the animal neglect charges, the filing of the notice would have deprived the trial court of jurisdiction to conduct that trial. See, e.g., ORS 19.270(1); ORS 138.083; Macy v. Blatchford, 154 Or App 313, 324, 961 P2d 873, rev allowed 328 Or 194 (1998)." Branstetter, 166 Or App at 295 n 5. We disagree with that assessment. ORS 19.270(1), the first statute cited by the Court of Appeals, provides that "[t]he Supreme Court or the Court of Appeals has jurisdiction of the cause when the notice of appeal has been served and filed." (Emphasis added). The "cause" is not always the entire case. See State ex rel Gattman v. Abraham, 302 Or 301, 311, 729 P2d 560 (1986) ("cause" was chosen by legislature because "it has a broad meaning and may include a case or proceeding or any part thereof depending upon the circumstances"). As the court there stated: "ORS 19.033(1) [now ORS 19.270(1)] means that the appellate court has jurisdiction of the issue or matter on appeal, be it a case, action at law, suit in equity, cause of action, cause of suit, proceeding, or claim for relief. The purpose of the statute is to give the appellate court jurisdiction of the issue or subject matter of the appeal to the exclusion of the lower court except as provided in the statute. It was not the intention to oust the trial court of jurisdiction of those parts of the litigation which are not directly involved in the appeal." Id. at 310-11 (citations and footnotes omitted). Consonant with Gattman, we hold that, in an appeal from a final disposition in the particular kind of forfeiture proceeding that occurs pursuant to ORS 167.347, the "cause" being appealed is the special statutory proceeding. The criminal prosecution is not implicated in that appeal, and the appeal does not deprive the trial court of jurisdiction to proceed to trial on the criminal matter. (13) The decision of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for consideration of the remaining assignments of error. 1. See 138.053(1) (providing for appeal from certain specified dispositions in criminal cases; acquittal not included). 2. ORS 167.345(2) provides, in part: "If there is probable cause to believe that any animal is being subjected to treatment in violation of ORS 167.315 to 167.340, a peace officer, after obtaining a search warrant in the manner authorized by law, may enter the premises where the animal is being held, provide food and water and impound such animal." 3. ORS 167.345(3) provides: "A court may order an animal impounded under subsection (2) of this section to be held at any animal care facility in the state. A facility receiving the animal shall provide adequate food and water and may provide veterinary care." 4. ORS 167.347(1) provides: "If any animal is impounded pursuant to ORS 167.345(2) and is being held by a county animal shelter or other animal care agency pending outcome of criminal action charging a violation of ORS 167.310 to 167.340, prior to final disposition of the criminal charge, the county or other animal care agency may file a petition in the criminal action requesting that the court issue an order forfeiting the animal to the county or other animal care agency prior to final disposition of the criminal charge. The petitioner shall serve a true copy of the petition upon the defendant and the district attorney." 5. ORS 167.347(2) provides: "Upon receipt of a petition pursuant to subsection (1) of this section, the court shall set a hearing on the petition. The hearing shall be conducted within 14 days of the filing of the petition, or as soon as practicable." 6. That standard, and the bond requirement, are set out in ORS 167.347(3)(a), which provides: "At a hearing conducted pursuant to subsection (2) of this section, the petitioner shall have the burden of establishing probable cause to believe that the animal was subjected to abuse, neglect or abandonment in violation of ORS 167.310 to 167.340. If the court finds that probable cause exists, the court shall order immediate forfeiture of the animal to the petitioner, unless the defendant, within 72 hours of the hearing, posts a security deposit or bond with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs incurred, and anticipated to be incurred, by the petitioner in caring for the animal from the date of initial impoundment to the date of trial." 7. ORS 19.205(4) provides: "An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment, decree or order entered in an action or suit, unless such appeal is expressly prohibited by the law authorizing such special statutory proceeding." 8. Judge Edmonds dissented. He would have held that the forfeiture proceeding provided at ORS 167.347 is a separate statutory proceeding and that the forfeiture order in this case is appealable under ORS 19.205(4). Branstetter, 166 Or App at 297-306 (Edmonds, J., dissenting). 9. ORS 138.040 provides, in part: "[T]he defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 * * *. The following apply upon such appeal or cross-appeal: "(1) The appellate court may review: "(a) Any decision of the court in an intermediate order or proceeding. "(b) Any disposition described under ORS 138.053 as to whether it: "(A) Exceeds the maximum allowable by law; or "(B) Is unconstitutionally cruel and unusual." 10. The statute at the time of the Threet decision and several of the other decisions discussed in this opinion was numbered ORS 19.010(4), but was in all material respects the same as its present version. We refer to the present version of the statute throughout this opinion. 11. In that regard, see the Threet opinion's discussion of earlier "special statutory proceeding" cases. 294 Or at 5-6. 12. When a defendant is convicted, forfeiture may be made a part of the sentence. ORS 167.350. As such, it could be appealed under ORS 138.040. The state acknowledges that, given that fact, one would expect a parallel right of appeal for defendants who are acquitted. The state suggests, however, that the legislature's failure to so provide was a drafting oversight, but one that this court has no authority to correct. 13. We recognize that, despite its conclusion that it lacked jurisdiction to decide the merits of defendant's appeal, the Court of Appeals' majority "respond[ed] briefly" to defendant's arguments on the merits. Branstetter, 166 Or App at 296. But those observations were dicta; whether the Court of Appeals will adopt them or take some other view is a matter for that court to decide.

a76585d78b768182666c9827e2240e7ef6a5edd9c0e891ddace37913eca357a6

2001-08-16T00:00:00Z

39f9b5d3-a67a-424e-b27c-97f3e9b1eccf

Flanagan v. Myers

oregon

Oregon Supreme Court

Filed: August 2, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON BRIDGET FLANAGAN, Petitioner, v. HARDY MYERS, Attorney General for the State of Oregon, Respondent, and GREG WASSON, Intervenor. (SC S47890, S47891, S47892) (Consolidated for Argument and Opinion) En Banc On petitions to review ballot titles. Argued and submitted January 4, 2001. Charles F. Hinkle, Portland, argued the cause and filed the petitions and briefs for petitioner. With him on the petitions and briefs was Stoel Rives LLP. Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause and filed the responses for respondent. With him on the responses were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Philip Schradle, Special Counsel to the Attorney General. Greg Wasson, intervenor, filed a response pro se. GILLETTE, J. Ballot titles referred to the Attorney General for modification. GILLETTE, J. These consolidated ballot title review proceedings under ORS 250.085(2) concern the Attorney General's certified ballot titles for three proposed initiative measures, which the Secretary of State has denominated as Initiative Petitions 7, 8, and 9 (2002). Petitioner timely submitted written comments to the Secretary of State concerning the Attorney General's draft ballot titles and is entitled to seek review in this court. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot titles to determine whether they "substantial[ly] compl[y] with the requirements of ORS 250.035." See ORS 250.085(5) (stating that standard). (1) In these proceedings, the parties agree -- and we concur -- that the Attorney General's certified ballot titles do not comply substantially with ORS 250.035. Under such circumstances, ORS 250.085(5) (1999) -- the statute that was in effect when the petitions were filed -- directed this court to certify to the Secretary of State ballot titles that do meet the statutory standard. The fundamental issue that the parties have joined here is whether this court constitutionally may carry out that function. For the reasons that follow, we conclude that legislative changes to ORS 250.085 make it unnecessary for this court to resolve that question. On September 11, 2000, after receiving and considering petitioner's comments, the Attorney General certified the ballot titles for Initiative Petition 7, (2) Initiative Petition 8, (3) and Initiative Petition 9. (4) Each of the proposed measures purports to expand rights of political speech on private property, particularly the right to gather signatures to qualify initiative petitions for the ballot. As written, the measures seek to expand and confirm the right to gather signatures in shopping centers that this court had recognized in Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446 (1993). The emphasized parts of each of the ballot titles set out above identify the rule of law stated in Whiffen. Id. at 514. Three days after the Attorney General's certifications, however, this court issued Stranahan v. Fred Meyer, Inc., 331 Or 38, 11 P3d 228 (2000). That case overruled Whiffen and held that petitioners seeking signatures to qualify initiative petitions for the ballot do not have a constitutional right to solicit signatures on private property, such as shopping centers, without the owner's permission. Petitioner then filed the present challenges to the Attorney General's ballot titles, arguing that the summaries in the ballot titles misstate the law. Before Stranahan, it arguably would have been correct to state, as two of the summaries did, that the proposed constitutional amendments would "extend" the signature-gathering right. It also arguably would have been correct to state, as all three of the summaries did, that the Oregon Constitution "now entitles persons to collect initiative signatures on public property and at large private shopping centers, subject to reasonable restrictions to prevent interference with the owners' business." After Stranahan, however, neither statement is correct. A ballot title must not misstate existing law, either directly or by implication. Adams v. Kulongoski, 323 Or 253, 259, 915 P2d 967 (1996); see also ORS 250.035 (setting out statutory requirements for ballot titles). It is uncontested that, after this court's decision in Stranahan, the ballot titles for Initiative Petitions 7, 8, and 9 misstate existing law. Until the 2001 Legislative Assembly amended it, ORS 250.085(5) required this court both to "review the title for substantial compliance with the requirements of ORS 250.035" and, if the Attorney General's ballot title did not so comply, to "certify a title meeting this standard to the Secretary of State." ORS 250.085(5) (1999). Under the 1999 statutory scheme, if a petitioner correctly identified deficiencies in the Attorney General's ballot title, then there was only one way that this court could carry out its duty under ORS 250.085(5) to "certify a title meeting [the statutory] standard": The court was required to write a different ballot title. In the past, pursuant to that legislative directive, this court has rewritten many infirm ballot titles. See, e.g., Starrett v. Myers, 330 Or 139, 998 P2d 671 (2000) (revising ballot titles to comply with ORS 250.035); Zehner v. Myers, 330 Or 162, 5 P3d 600 (2000) (same). Nonetheless, some members of this court from time to time had expressed misgivings with the foregoing procedure, suggesting that this court's writing or rewriting of ballot titles might violate the constitutional principle of separation of powers. See Dudley v. Jenks, 331 Or 1, 10-11, 10 P3d 257 (2000) (summarizing cases in which those concerns had been expressed). Before petitioner brought the present proceedings, however, parties had not focused their briefing on that constitutional issue. Now, the enactment of HB 2213 obviates any need to address those concerns. In HB 2213, the legislature deleted the phrase "and shall certify a title meeting this standard to the Secretary of State" from ORS 250.085(5) and added three new subsections -- (8), (9), and (10) -- to that statute. We set them out in their entirety here, because they form the basis for our disposition of this case: "(8) If the Supreme Court determines that the title certified by the Attorney General or prepared by the Legislative Assembly substantially complies with the requirements of ORS 250.035, the court shall certify the title to the Secretary of State. If the Supreme Court determines that the title certified by the Attorney General or prepared by the Legislative Assembly does not substantially comply with the requirements of ORS 250.035, the court shall modify the ballot title and certify the ballot title to the Secretary of State or refer the ballot title to the Attorney General for modification. "(9) Not later than five business days after the Supreme Court refers a ballot title to the Attorney General under this section, the Attorney General shall file a modified ballot title with the Supreme Court and serve copies of the modified ballot title on all parties to the ballot title review proceeding. If no party to the ballot title review proceeding files an objection to the modified ballot title within five business days after the date the modified ballot title is filed, the Supreme Court shall certify the modified ballot title to the Secretary of State and enter an appellate judgment the next judicial day. If any of the parties to the ballot title review proceeding timely files a petition objecting to the modified ballot title, the Supreme Court shall review the modified ballot title to determine whether the modified ballot title substantially complies with the requirements of ORS 250.035. "(10) Upon the filing of a petition under subsection (9) of this section objecting to a modified ballot title: "(a) If the Supreme Court determines that the modified ballot title substantially complies with the requirements of ORS 250.035, the court shall certify the modified ballot title to the Secretary of State; or "(b) If the Supreme Court determines that the modified ballot title does not substantially comply with the requirements of ORS 250.035, the court shall modify the ballot title and certify the ballot title to the Secretary of State or refer the modified ballot title to the Attorney General for additional modification and further proceedings under subsection (9) of this section." HB 2213, section 2 (emphasis added). As the emphasized parts of the newly enacted subsections demonstrate, the statute no longer requires this court, whenever it concludes that the ballot title certified by the Attorney General fails to comply substantially with the requirements of ORS 250.035, to write and certify to the Secretary of State a corrected ballot title. (5) Instead, the statute gives the court the discretion either: (1) to revise and certify to the Secretary of State a legally sufficient ballot title; or (2) to "refer" the matter to the Attorney General to correct the deficiencies in the ballot title. As we have explained, this is a case in which the Attorney General's certified ballot titles do not comply substantially with the requirements of ORS 250.035. The question thus becomes: Which of the two alternative dispositional models provided in the newly enacted ORS 250.085(8) shall this court utilize? The answer is not difficult. Referring the matter to the Attorney General raises no constitutional issues respecting the proper role of the judiciary and the separation of powers. Given the uncertainty and delay that necessarily would attach to any effort by this court to address the constitutional issues further, we perceive no reason to follow that option in this case. Having identified the ways in which each of the three ballot titles certified by the Attorney General fails to comply substantially with the requirements of ORS 250.035, we refer the ballot titles to the Attorney General for modification. Ballot titles referred to the Attorney General for modification. 1. The 2001 Legislature amended ORS 250.085(5) in certain respects that we discuss post. Or Laws 2001, ch 802, § 2 (hereafter "HB 2213"). The Governor signed the bill on July 19, 2001. It became effective on its passage. HB 2213, § 4. The amendments to ORS 250.085(5) did not alter the "substantial compliance" standard of review. 2. The ballot title certified by the Attorney General for Initiative Petition 7 states: "AMENDS CONSTITUTION: REQUIRES OWNERS OF PRIVATE PROPERTY OPEN TO PUBLIC TO PERMIT FREE SPEECH ON ALL SUBJECTS "RESULT OF 'YES' VOTE: 'Yes' vote requires owners of private property open to public to permit free speech on all subjects, including petitioning, political campaigning, commercial advertising, religion, obscenity. "RESULT OF 'NO' VOTE: 'No' vote rejects requiring owners of private property open to public to permit free speech on all subjects, including petitioning, political campaigning, commercial advertising, religion, obscenity. "SUMMARY: Amends constitution. Constitution now entitles persons to collect initiative signatures on public property and at large private shopping centers, subject to reasonable restrictions to prevent interference with the owners' business, but grants no right to engage in other types of speech or expressive activity on any private property. Measure would extend the right of free speech "on any subject whatever" to interior and exterior areas of all private property open to the general public, without exception. Measure thus would require owners of such property to permit all expressive activities, including circulation of petitions and solicitation of signatures for initiative petitions; political campaigning; commercial advertising; religious speech; and obscenity. Measure would prohibit the application of civil and criminal trespass laws to nullify or detract from that right." (Emphasis added.) 3. The ballot title certified by the Attorney General for Initiative Petition 8 states: "AMENDS CONSTITUTION: EXPANDS RIGHT TO PETITION FREELY TO ALL LOCATIONS IN PRIVATELY-OWNED BUSINESSES OPEN TO PUBLIC "RESULT OF 'YES' VOTE: 'Yes' vote expands signature-gathering right, requiring owner of any private business open to public to permit citizens to solicit petition signatures anywhere on premises. "RESULT OF 'NO' VOTE: 'No' vote rejects expanding signature-gathering right to require privately-owned businesses open to public to permit citizens to solicit petition signatures anywhere on premises. "SUMMARY: Amends constitution. The Oregon Constitution now entitles persons to collect initiative signatures on public property and at large private shopping centers, subject to reasonable restrictions to prevent interference with the owners' business, but grants no right to solicit signatures on other private property. The measure would extend citizens' right to petition, entitling citizens to petition freely in any privately-owned business to which the public is invited. The measure thus would require owners of such businesses to permit citizens to solicit petition signatures, without interference, at all interior and exterior areas of those businesses, without exception. The measure would prohibit the application of civil and criminal trespass laws to nullify or detract from that right." (Emphasis added.) 4. The ballot title certified by the Attorney General for Initiative Petition 9 states: "AMENDS CONSTITUTION: EXPANDS PETITIONING RIGHT TO ALL PRIVATELY-OWNED BUSINESSES OPEN TO PUBLIC, SUBJECT TO REASONABLE REGULATION "RESULT OF 'YES' VOTE: 'Yes' vote expands signature-gathering right, requiring owners of private businesses open to public to permit citizens to solicit petition signatures, subject to reasonable regulation. "RESULT OF 'NO' VOTE: 'No' vote rejects expanding signature-gathering right to require privately-owned businesses open to public to permit citizens to gather signatures subject to reasonable regulation. "SUMMARY: Amends constitution. The Oregon Constitution now entitles persons to collect initiative signatures on public property and at large private shopping centers, subject to reasonable restrictions to prevent interference with the owners' business, but grants no right to solicit signatures on other private property. The measure would extend citizens' right to petition, entitling citizens to petition freely in any privately-owned business to which the public is invited, subject to reasonable time and place regulations. The measure thus would require owners of such businesses to permit citizens to solicit petition signatures, at all interior and exterior areas of those businesses, imposing only reasonable time and place regulations. The measure would prohibit the application of civil and criminal trespass laws to nullify or detract from that right." 5. The newly enacted subsection (3) of ORS 250.085 specifically is made applicable to pending ballot title review cases by HB 2213, § 3(2).

ecf853ea1d9dfb77f3b6920e8fe9b7c05a46932a9ca6a7591b49674da540479b

2001-08-02T00:00:00Z

f3f0de34-6479-43b3-a28e-6547d9d91957

Menasha Corp. v. Crawford

S47076

oregon

Oregon Supreme Court

Filed: August 16, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON In the Matter of the Compensation of Garrett W. Crawford, Claimant. MENASHA CORPORATION and LUMBERMANS MUTUAL CASUALTY COMPANY, Respondents on Review, v. GARRETT W. CRAWFORD, Petitioner on Review. (WCB 98-03327; CA A105040; SC S47076) On review from the Court of Appeals.* Argued and submitted November 8, 2000. Mike Stebbins, of Stebbins & Coffey, North Bend, argued the cause and filed the brief for petitioner on review. Jerald P. Keene, of Reinisch, Mackenzie, Healey, Wilson & Clark, P.C., Portland, argued the cause and filed the brief for respondents on review. David L. Runner, Lead Appellate Counsel, Salem, filed the brief for amici curiae SAIF Corporation, Pape Group, Inc., and Timber Products Company. G. Duff Bloom, of Cole, Cary, Wing & Bloom, P.C., Eugene, filed the brief for amicus curiae Oregon Trial Lawyers Association. Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.** GILLETTE, J. The decision of the Court of Appeals is affirmed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the Workers' Compensation Board for further proceedings. *Judicial review from the Workers' Compensation Board. 164 Or App 174, 988 P2d 451 (1999). **Van Hoomissen, J., retired on December 30, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz, J., did not participate in the consideration or decision of this case. GILLETTE, J. The issue in this workers' compensation case is whether claimant is entitled to receive nearly two years' worth of temporary total disability (TTD) benefits, based on a physician's after-the-fact certification that claimant had been disabled for that period. An administrative law judge (ALJ) and the Workers' Compensation Board (Board) held that claimant was entitled to temporary compensation for the period in question. The Court of Appeals reversed. Menasha Corp. v. Crawford, 164 Or App 174, 988 P2d 451 (1999). We allowed claimant's petition for review and now affirm the decision of the Court of Appeals. The facts are undisputed. On October 11, 1995, claimant reported to his employer that he had suffered an injury to his lower back. The next day, claimant saw Dr. Davis, who confirmed the back injury and released claimant to light work. Eight days later, Davis released claimant to regular work. In the meantime, employer fired claimant. On October 27, 1995, employer's insurer denied claimant's claim for compensation. Claimant appealed the denial of his claim. On January 16, 1997, an ALJ reversed the denial. On July 15, 1997, the Board affirmed the ALJ's decision. Neither employer nor employer's insurer (collectively "employer") sought further review, and the merits of that adjudication are not before us. As the case comes to us, claimant is a worker who has had a valid claim for an on-the-job injury to his back, which claim was in accepted status after July 15, 1997. Claimant was referred to and began treating with another physician, Dr. Bert, on December 13, 1995. On September 30, 1997, Bert performed surgery on claimant's back. On December 1, 1997, after an inquiry by claimant's lawyer, Bert certified retroactively that claimant had been unable to work for the period from October 20, 1995 (the date that Davis released claimant for regular work), until September 30, 1997 (the date of surgery). On January 27, 1998, Bert released claimant for light work. On February 4, 1998, two physicians retained by employer concluded that claimant's back condition was "medically stationary." (1) Bert concurred. On March 9, 1998, employer's insurer closed the claim and awarded TTD benefits from September 30, 1997 (the date of surgery), until February 4, 1998 (the date on which claimant was determined to be medically stationary). A later modification added the period from October 12, 1995 (the date of injury), until October 20, 1995 (the date that Davis released claimant for regular work). Claimant was not awarded benefits for the nearly two-year gap between October 20, 1995, and September 30, 1997. Claimant challenged the award, seeking compensation for the period from October 20, 1995, until September 30, 1997. An ALJ concluded that, although ORS 656.262(4)(g) (2) restricts retroactive awards of TTD during the period of time in which the claim is open, a TTD award for the period from October 20, 1995, until September 30, 1997, nonetheless was appropriate. The ALJ explained: "The payment of temporary disability 'pursuant to ORS 656.268,'" as provided in [former] ORS 656.262(4)(f) [1995], concerns the payment of temporary disability during the carrier's processing of open claims to closure. Thus, ORS 262.268 refers to procedural temporary disability benefits which may accrue prior to claim closure. ORS 656.268 does not set forth the requirements for substantive entitlement to temporary disability; those requirements are set forth in ORS 656.210 and 656.212. Kenneth P. Bundy, 48 Van Natta 2501, 2503 (1996). "Here, inasmuch as claimant's claim has been closed, the issue is claimant's substantive right to temporary disability benefits. A claimant's substantive entitlement to temporary disability benefits, which is set forth in ORS 656.210 and 656.212, is determined on claim closure and is proven by a preponderance of the evidence in the entire record showing that the claimant was disabled due to the compensable injury before being declared medically stationary. * * * Neither ORS 656.210 nor ORS 656.212 contains any language which limits a worker's substantive entitlement to temporary disability to only those periods for which there is contemporaneous authorization by the attending physician. Bundy, supra. Therefore, claimant need not show contemporaneous authorization of time loss to be entitled to those substantive benefits."[ (3)] (Citations omitted; emphasis in original.) As noted, the ALJ relied on the Board's earlier decision in Bundy. In that decision, the Board had held that ORS 656.262(4)(g) applies only to "procedural" obligations. That was true, the Board stated, for two reasons: First, the verbs in ORS 656.262(4)(g) are in the present tense, implying that the statute applies only when the claim is open. Second, when the legislature added what is now ORS 656.262(4)(g), it did not revise ORS 656.210 and ORS 656.212, the statutes that authorize TTD and temporary partial disability compensation (TPD), respectively. Neither of those statutes specifically limits TPD and TTD only to those periods for which a physician has issued a contemporaneous authorization. As a result, the Board held in Bundy that ORS 656.262(4)(g) does not apply to a claim at closure. 48 Van Natta 2501, 2503 (1996). On review in the present case, the Board affirmed, again asserting (as it had in Bundy) that a claimant's "substantive" entitlement to temporary disability benefits is determined when the claim is closed. Citing its earlier decision in Bundy, the Board concluded that a worker substantively is entitled to temporary disability benefits for those periods during which the worker is able to prove that he or she was unable to work as a result of a compensable injury and that substantive entitlement to such benefits is not contingent on contemporaneous authorization of time loss by the attending physician. Garret W. Crawford, 51 Van Natta 1 (1999). One member of the Board concurred specially, opining that the substantive/procedural distinction on which Bundy depended was eliminated when the legislature enacted former ORS 656.262(4)(f) (1995) and former ORS 656.268(3)(d) (1995), (4) and that the statute required a physician to authorize any award of temporary disability. The member declined to dissent, however, because the Board's decision in Bundy still was the law. Id. at 2. Shortly after the Board issued its Crawford decision, the Court of Appeals, in an en banc decision, reversed Bundy. Fred Meyer, Inc. v. Bundy, 159 Or App 44, 978 P2d 385 (1999). (5) In Bundy, the Court of Appeals described the issue as "whether ORS 656.262(4)(g) applies to only procedural obligations to pay temporary disability while a claim is open, or whether it also applies to the substantive entitlement to benefits at claim closure." 159 Or App at 49. We examine the Court of Appeals' decision in Bundy at length, because it squarely presents the legal issue that we address in the present case. A majority of the full Court of Appeals concluded that ORS 656.262(4)(g) does not permit a physician to make an award of temporary compensation retroactive for more than 14 days. The majority rejected the Board's conclusion that ORS 656.262(4)(g) applies only to pending "procedural" claims: "On its face, ORS 656.262(4)(g) is not limited to benefits that are due and payable during the time that the claim is open." Bundy, 159 Or App at 50. In the majority's view, the fact that "the verbs in the statute are in the present tense does not negate the possibility that the statute also applies to awards of time loss [i.e., temporary disability] made at claim closure." Id. (footnote omitted). In addition, "the reference to ORS 656.268 in both sentences [of ORS 656.262(4)(g)] is a reference to a statute that addresses the process of claim closure." Id. The Court of Appeals majority ultimately concluded that ORS 656.262(4)(g) is ambiguous and proceeded to examine the legislative history of the statute. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993) (establishing that paradigm of statutory interpretation). From that review, the majority concluded that ORS 656.262(4)(g) prevents a physician from authorizing retroactive benefits more than 14 days into the past. 159 Or App at 50-54. Judge Wollheim, joined by Judges De Muniz and Armstrong, dissented. The dissent noted that the substantive/procedural distinction on which the Board relied was not found in the workers' compensation statute but, rather, existed in the Court of Appeals' case law. Specifically, the dissent argued that "[s]ubstantive time loss is the temporary total disability award, which the injured worker is entitled to receive at the time of closure by virtue of proof that the injured worker experienced a period of temporary total disability before claim closure." 159 Or App at 55 (Wollheim, J., dissenting). Conversely, "[a]n injured worker's procedural entitlement to time loss is the temporary total disability benefits that the employer or insurer is obligated to pay on an open claim by virtue of the procedures of claim processing before the injured worker becomes medically stationary." Id. The dissent in Bundy maintained that ORS 656.262(4)(g) concerns only open claims and procedural benefits, i.e., "when payment must be made, when payment is not due and payable, and when payment may be unilaterally suspended." Bundy, 159 Or App at 57 (Wollheim, J., dissenting). The dissent then asserted that ORS 656.268, which is cross-referenced in ORS 656.262(4)(g), is a procedural statute that describes the process for awarding temporary benefits on a claim at the time of closure. Id. at 57-58. According to the dissent: "The first sentence of [ORS 656.262](4)(g) is expressly limited to temporary disability benefits not due and payable 'pursuant to ORS 656.268.' That statute is only a procedural statute. Because temporary disability benefits suspended under the first sentence of subsection (4)(g) are, by definition, being paid pursuant to ORS 656.268, this sentence is limited to the procedural entitlement to temporary disability benefits. The second sentence of subsection (4)(g) expressly refers to an attending physicians's authorization of temporary disability benefits 'under ORS 656.268.' The explicit reference to ORS 656.268 limits the application of this sentence of (4)(g) to the procedural entitlement of temporary benefits while the claim is open. * * * Thus, like the first sentence, the second sentence of subsection (4)(g) is also limited to the procedural entitlement to temporary disability benefits." Id. at 60-61 (citation omitted; emphasis in original). The dissent concluded, without reaching the legislative history, that ORS 656.262(4)(g) does not establish any temporal limit on the temporary compensation that might be paid when a claim is closed. Id. at 56-63. On employer's petition for judicial review in the present case, the Court of Appeals reversed the Board's decision and remanded for reconsideration in light of Bundy. Menasha Corp. v. Crawford, 164 Or App 174, 988 P2d 451 (1999). We allowed claimant's petition for review. The issue before us turns on the meaning of ORS 656.262(4)(g) and is a question of the legislature's intent. As did the Court of Appeals, we examine the text and context of the statute to determine that intent. PGE, 317 Or at 610. If the legislature's intent is clear from the text and context, further inquiry is unnecessary. Id. at 611. For convenience, we again set out ORS 656.262(4)(g): "Temporary disability compensation is not due and payable pursuant to ORS 656.268 after the worker's attending physician ceases to authorize temporary disability or for any period of time not authorized by the attending physician. No authorization of temporary disability compensation by the attending physician under ORS 656.268 shall be effective to retroactively authorize the payment of temporary disability more than 14 days prior to its issuance." The authorization of the attending physician triggers the duty to pay temporary disability benefits. Subsection (4)(a) of ORS 656.262, provides: "The first installment of temporary disability compensation shall be paid no later than the 14th day after the subject employer has notice or knowledge of the claim, if the attending physician authorizes the payment of temporary disability compensation." (Emphasis added.) Subsection (4)(d) of the same statute provides: "Temporary disability compensation is not due and payable for any period of time for which the insurer or self-insured employer has requested from the worker's attending physician verification of the worker's inability to work resulting from the claimed injury or disease and the physician cannot verify the worker's inability to work, unless the worker has been unable to receive treatment for reasons beyond the worker's control." Viewed in light of subsections (4)(a) and (4)(d), the first sentence of subsection (4)(g) is clear. It describes two additional sets of circumstances in which temporary disability compensation is not due and payable: (1) after the claimant's attending physician ceases to authorize such compensation; and (2) for any other period of time "not authorized by the attending physician." The first sentence leaves open this question: Should a worker receive TTD when an attending physician belatedly concludes that the worker is temporarily totally disabled? The second sentence of subsection (4)(g) answers that question: The attending physician's authorization of temporary total disability payments can be retroactive for up to 14 days -- but no more. The foregoing statutes state the positive law basis for awarding TTD. TTD benefits are not due and payable if the claim does not meet the qualifying statutory criteria. ORS 656.268, the statute twice cross-referenced in ORS 656.262(4)(g), sets out the procedures for terminating TTD benefits. That statute provides, in part: "(4) Temporary total disability benefits shall continue until whichever of the following events first occurs: "(a) The worker returns to regular or modified employment; "(b) The attending physician advises the worker and documents in writing that the worker is released to return to regular employment; "(c) The attending physician advises the worker and documents in writing that the worker is released to return to modified employment, such employment is offered in writing to the worker and the worker fails to begin such employment; or "(d) Any other event that causes temporary disability benefits to be lawfully suspended, withheld or terminated under ORS 656.262(4) or other provisions of this chapter." As did the dissent in Bundy, claimant here argues that the text of ORS 656.262(4)(g) applies only to open claims, not to circumstances in which a claim is being closed and an award is being finalized. As our examination of that statute in context demonstrates, however, the text and context of ORS 656.262(4)(g) do not permit such an interpretation: Neither ORS 656.262(4)(g) nor any other statute that provides context for ORS 656.262(4)(g) makes a distinction between a pending claim and a claim at the time of closing respecting retroactive compensation. (6) The workers' compensation statutes provide for TTD in ORS 656.210 (7) and for TPD in ORS 656.212. (8) To be payable, such compensation must have both a physician's initial and continuing authorization. "The first installment of temporary disability compensation shall be paid * * * if the attending physician (9) authorizes the payment of temporary disability compensation." ORS 656.262(4)(a). An attending physician may authorize payment of disability benefits and payment may continue only for the period of time authorized by those sections. ORS 656.262(4)(h). An employer may suspend payment of TTD or TPD at the end of the period until the attending physician reauthorizes the temporary disability. ORS 656.262(4)(h). Such compensation is not due and payable for any period for which the attending physician cannot verify the worker's inability to work, if the insurer or self-insured employer has requested verification of that inability. ORS 656.262(4)(d). Further, if the insurer or self-insured employer has requested, but has not received, some form of verification from the attending physician, that physician's services are not compensable until the physician submits such verification. ORS 656.262(4)(f). ORS 656.262(4)(g) applies in conjunction with ORS 656.268, the statute that determines a claimant's entitlement to claim closure as well as the claimant's entitlement to TTD. Consistent with the first sentence of ORS 656.262(4)(g), ORS 656.268 provides that TTD continues until the attending physician advises the claimant and documents in writing that the claimant is released to return to regular employment. ORS 656.268(4)(b). In addition, that same subsection provides that TTD shall continue until "[a]ny other event that causes temporary disability benefits to be lawfully suspended, withheld or terminated under ORS 656.262(4) * * *." ORS 656.268(4)(d) (emphasis added). In sum, the statement in ORS 656.262(4)(g) that "[n]o authorization * * * shall be effective * * * retroactively * * * more than 14 days" establishes that the legislature did not intend to permit physicians to certify retroactive temporary compensation for a period greater than 14 days. Context does not alter that fact: No related statutory provision states that ORS 656.262(4)(g) applies only to certain kinds of claims but not to others, or that the statute applies to claims while they are pending but not to claims at the time of their closure. The statutory text viewed in context is unambiguous. We need not examine legislative history to determine the legislature's intent. PGE, 317 Or at 611. Application of the statute to this case is straightforward. On October 20, 1995, Davis released claimant for regular work. Under ORS 656.262(4)(g), temporary disability benefits no longer were due and payable to him, because the "attending physician cease[d] to authorize temporary disability." Later, Bert retroactively certified claimant as fully disabled from October 20, 1995, but Bert's later certification is, as we have shown, subject to the clearly worded limitation in the second sentence in ORS 656.262(4)(g). The Court of Appeals thus properly remanded the case to the Board to recalculate claimant's award of TTD benefits. The decision of the Court of Appeals is affirmed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the Workers' Compensation Board for further proceedings. 1. "Medically stationary," as defined in ORS 656.005(17), means that "no further material improvement would reasonably be expected from medical treatment, or the passage of time." 2. The statute that was in effect at the commencement of this case, ORS 656.262(4)(f) (1995), was renumbered in 1997 as ORS 656.262(4)(g), but was not otherwise changed. ORS 656.262(4)(g) provides: "Temporary disability compensation is not due and payable pursuant to ORS 656.268 after the worker's attending physician ceases to authorize temporary disability or for any period of time not authorized by the attending physician. No authorization of temporary disability compensation by the attending physician under ORS 656.268 shall be effective to retroactively authorize the payment of temporary disability more than 14 days prior to its issuance." Unless otherwise noted, all statutory citations refer to the current version of the Oregon Revised Statutes. 3. "Time loss," as used herein by the ALJ, the Board, and the Court of Appeals, is a shorthand for temporary disability compensation under ORS 656.210 and ORS 656.212. 4. In 1999, former ORS 656.268(3)(d) (1995), was renumbered as ORS 656.268(4)(d), but was otherwise unchanged. 5. This court accepted review in Bundy, 329 Or 318, 994 P2d 122 (1999), but later dismissed review as improvidently allowed, 329 Or 503, 991 P2d 1058 (1999). The order of dismissal did not disclose the reasons for the court's decision to dismiss. 6. The Bundy dissent purported to find such a distinction, based on the difference in wording between ORS 656.262(4)(g) ("not due and payable") and ORS 656.268(4)(d) ("suspended, withheld, or terminated"). The two statutes are harmonizable, however, when one recognizes that benefits are "terminated" when they no longer are due and payable. 7. ORS 656.210(1) states: "When the total disability is only temporary, the worker shall receive during the period of that total disability compensation equal to 66-2/3 percent of wages, but not more than 100 percent of the average weekly wage nor less than the amount of 90 percent of wages a week or the amount of $50 a week, whichever amount is lesser. Notwithstanding the limitation imposed by this subsection, an injured worker who is not otherwise eligible to receive an increase in benefits for the fiscal year in which compensation is paid shall have the benefits increased each fiscal year by the percentage which the applicable average weekly wage has increased since the previous fiscal year." ORS 656.210(2)-(4) further defines the methods of calculating temporary total disability benefits. 8. ORS 656.212 states: "When the disability is or becomes partial only and is temporary in character: "(1) No disability payment is recoverable for temporary disability suffered during the first three calendar days after the worker leaves work or loses wages as a result of the compensable injury. If the worker leaves work or loses wages on the day of the injury due to the injury, that day shall be considered the first day of the three-day period. "(2) The payment of temporary total disability pursuant to ORS 656.210 shall cease and the worker shall receive for an aggregate period not exceeding two years that portion of the payments provided for temporary total disability which the loss of wages bears to the wage used to calculate temporary total disability pursuant to ORS 656.210." 9. An attending physician generally is a licensed physician who primarily is responsible for treating a worker's compensable injury for the earlier of 30 days from the date of first visit on the initial claim or 12 visits. ORS 656.005(12)(b)(B); see also ORS 656.245(5) (authorizing certain nurse practitioners and physician assistants who practice in rural areas to authorize payment of temporary disability compensation for 30 days from date of first visit on claim).

793d783ecc5e72b08966a36eec3d41e75d9aa467d749557e0f2c096e326a4e92

2001-08-16T00:00:00Z

60942e5c-edd4-4cba-9361-db2a79803bfb

ONRC Action v. Columbia Plywood, Inc.

S47437

oregon

Oregon Supreme Court

FILED: June 8, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON ONRC ACTION, and KLAMATH FOREST ALLIANCE, Plaintiffs-Appellants, v. COLUMBIA PLYWOOD, Inc. Defendant-Appellee. _________________________________________________________________ ONRC ACTION, and KLAMATH FOREST ALLIANCE, Plaintiffs-Appellants/ Cross-Appellees, v. COLUMBIA PLYWOOD, Inc. Defendant-Appellee/ Cross-Appellee. (USDC CV-97-03087-CO; USCA 98-36233, 99-35019; SC S47437) En Banc On certified questions from United States Court of Appeals for the Ninth Circuit order dated April 10, 2000; certification accepted June 6, 2000. Honorable Stephen Reinhardt, David Thompson, and Thomas G. Nelson, Circuit Judges. Argued and submitted January 10, 2001. William C. Carpenter, Jr., Eugene, argued the cause and filed the brief for plaintiffs-appellants. Karen O'Kasey, of Schwabe, Williamson & Wyatt, Portland, argued the cause and filed the brief for defendant-appellee. With her on the brief was Patricia M. Dost. Jas. Jeffrey Adams, Assistant Attorney General, Salem, filed the brief for amici curiae Environmental Quality Commission and Department of Environmental Quality. LEESON, J. First certified question answered. LEESON, J. This case is before the court on certified questions of Oregon law from the United States Court of Appeals for the Ninth Circuit. ORS 28.200 et seq.; ORAP 12.20. We accepted the certified questions. See Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 811 P2d 627 (1991) (discussing factors court considers in exercising discretion to accept certified questions). We summarize the following facts from the Ninth Circuit's certification order and the excerpt of record filed in that court. The federal Clean Water Act (CWA) prohibits the discharge of pollutants into navigable waters unless the discharge is allowed by a National Pollution Discharge Elimination System (NPDES) permit. 33 USC §§ 1311(a), 1342 (1994). A state may administer its own NPDES permit program within its boundaries if the Administrator of the Environmental Protection Agency certifies it to do so. Id. § 1342(b). Oregon has a certified NPDES program that the Department of Environmental Quality (DEQ) administers and enforces. The DEQ program includes issuing NPDES permits and processing applications for the renewal of NPDES permits. ORS 468.035; ORS 468.065. To renew an NPDES permit, the applicable administrative rule requires the permit holder to file an application for renewal with DEQ at least 180 days before the expiration of the existing permit. OAR 340-045-0030(1). In 1984, Columbia Plywood Corporation (defendant) received an NPDES permit allowing it to discharge pollutants into the Klamath River until November 30, 1989. On August 21, 1989, fewer than 180 days before that permit would have expired, defendant applied to DEQ to renew it. In a letter dated August 24, 1989, DEQ informed defendant that defendant's renewal application was incomplete, because it was not signed and dated in two places. The letter indicated that DEQ was returning the unsigned and undated parts of the application to defendant and that, after defendant properly had signed and dated those parts, DEQ would consider the application "complete for filing." The letter also stated that, if DEQ did not take final action on defendant's renewal application by November 30, 1989, the date on which defendant's 1984 NPDES permit would expire, then the 1984 permit would "remain in effect until the final action is taken." Defendant signed and dated the parts of the application that DEQ had returned to it, and filed those parts with DEQ on September 1, 1989. Since 1989, defendant has continued to discharge pollutants into the Klamath River under the terms of its 1984 NPDES permit, because DEQ took no final action on defendant's renewal application. As noted, DEQ told defendant in August 1989 that, after defendant had submitted a complete renewal application, defendant's 1984 NPDES would remain in effect until DEQ took final action. In 1997, ONRC Action and Klamath Forest Alliance (plaintiffs) filed suit in federal district court seeking, among other things, to enjoin defendant from continuing to discharge pollutants into the Klamath River in violation of the CWA. See 33 USC § 1365 (1994) (providing authority for citizens to enforce provisions of CWA through citizen suits). Plaintiffs contended that defendant's 1984 NPDES permit had expired on November 30, 1989, that defendant had not timely applied to renew that permit, and that DEQ had not renewed it. Plaintiffs argued that DEQ lacked authority to waive the 180-day filing requirement in OAR 340-045-0030(1) and that its decision to do so and to extend defendant's 1984 NPDES permit was invalid. Accordingly, plaintiffs contended, defendant's 1984 NPDES permit expired on November 30, 1989, and, since then, defendant has been discharging pollutants into the Klamath River without a valid NPDES permit, in violation of the CWA. An affidavit from a DEQ water quality manager submitted on defendant's behalf stated that DEQ considered defendant's application to have been timely filed and that the terms of defendant's 1984 NPDES permit "continue in force." Defendant moved for summary judgment on the ground that in 1989 DEQ properly had waived the 180-day filing requirement in OAR 340-045-0030(1) (1989) and that plaintiffs had not been prejudiced by that waiver. A magistrate judge of the United States District Court for the District of Oregon held that OAR 340-045-0030(1) (1989) is a procedural rule for the benefit of DEQ and permit holders and that, under federal and Oregon law, DEQ may waive the provisions of the rule "if such waiver does not prejudice plaintiffs." The court then found that plaintiffs had suffered no prejudice. Accordingly, it granted defendant's motion for summary judgment. After a United States District Court judge adopted the magistrate judge's findings and recommendations, plaintiffs appealed to the Ninth Circuit. The Ninth Circuit frames the issues of Oregon law on appeal to that court as a dispute between the parties about whether, under this court's opinion in Anaconda Company v. Dept. of Rev., 278 Or 723, 565 P2d 1084 (1977), DEQ had authority to waive the 180-day filing requirement and whether, under this court's opinion in Hoffman v. City of Portland, 294 Or 150, 654 P2d 1106 (1982), plaintiffs must show that they have been prejudiced substantially by that waiver before a court may find that DEQ's waiver was invalid. The Ninth Circuit certified the following questions to this court: "1. Can [DEQ] waive [OAR] 340-045-0030(1), which requires that an applicant file a renewal application 180 days before its [NPDES] permit expires, by accepting a renewal application filed less than 180 days before the NPDES permit's expiration date? If not, then: "2. Is [DEQ's] extension of the NPDES permit beyond its original five-year term, pursuant to [OAR] 340-045-0040, invalid because the waiver is invalid, or must the waiver have prejudiced the plaintiffs before the waiver can be held invalid?" Before turning to the first certified question, we note the unusual procedural posture in which this case comes to this court. Plaintiffs' argue that defendant is violating the CWA by continuing to discharge pollutants into the Klamath River, because defendant's 1984 NPDES permit expired on November 30, 1989. That argument actually is a collateral attack on DEQ's decision to accept defendant's application for renewal of its 1984 NPDES permit even though defendant had not filed for renewal at least 180 days before its 1984 permit was set to expire. (1) Normally, review of an agency action comes to this court under the Oregon Administrative Procedures Act, ORS 183.310 et seq. In this case, the validity of DEQ's decision to accept defendant's application to renew its NPDES permit arises in the context of a federal citizen lawsuit challenging a permit holder's compliance with the CWA. That unusual procedural posture does not affect this court's legal analysis of whether DEQ erred in accepting defendant's application for renewal of its 1984 NPDES permit. See ORS 183.482(8)(a) (court may overrule agency action taken as result of erroneous interpretation of provision of law); ORS 183.484(5)(a) (same). We turn to the first certified question. DEQ's letter to defendant on August 24, 1989, expressed the agency's view that it may accept as timely an application for renewal that is filed fewer than the 180 days specified in OAR 340-045-0030(1) (1989). Amici DEQ and the Environmental Quality Commission (EQC), appearing at this court's request, maintain that one purpose of the 180-day filing requirement in the rule is to provide for the efficient administration and processing of NPDES permit applications. They argue that the requirement was not intended to "deprive DEQ of authority to accept a NPDES permit renewal application" submitted fewer than 180 days before the permit holder's current permit expires. See ORS 468.035(1)(n) (DEQ may "perform such * * * acts as may be necessary, proper or desirable to carry out effectively the duties, powers and responsibilities of [DEQ]"); ORS 468.045(1)(c) (DEQ to "[a]dminister and enforce the laws of the state concerning environmental quality"). This court previously has explained the proper inquiry in challenges involving an agency's interpretation of its own administrative rule: "Where * * * the agency's plausible interpretation of its own rule cannot be shown either to be inconsistent with the wording of the rule itself, or with the rule's context, or with any other source of law, there is no basis on which this court can assert that the rule has been interpreted 'erroneously.' It follows that * * * this court cannot overrule, under ORS 183.482(8)(a) [or ORS 183.484(5)(a)], an agency's interpretation of its own rule." Don't Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994). Accordingly, our task is to determine whether DEQ's and EQC's interpretation of OAR 340-045-0030 (1989) is plausible. OAR 340-045-0030 (1989) provides: "(1) Any person wishing to obtain a new, modified, or renewal NPDES permit from the Department shall submit a written application on a form provided by the Department. Applications must be submitted at least 180 days before a NPDES permit is needed. All application forms must be completed in full and signed by the applicant or his legally authorized representative. The name of the applicant must be the legal name of the owner of the facilities or his agent or the lessee responsible for the operation and maintenance. "(2) Applications which are obviously incomplete or unsigned will not be accepted by the Department for filing and will be returned to the applicant for completion. "(3) Applications which appear complete will be accepted by the Department for filing. "(4) If the Department later determines that additional information is needed, it will promptly request the needed information from the applicant. The application will not be considered complete for processing until the requested information is received. The application will be considered to be withdrawn if the applicant fails to submit the requested information within 90 days of the request. "(5) An application which has been filed with the U.S. Army Corps of Engineers in accordance with Section 13 of the Federal Refuse Act or an NPDES application which has been filed with the U.S. Environmental Protection Agency will be accepted as an application filed under this section provided the application is complete and the information on the application is still current." (Emphasis added.) The emphasized part of OAR 340-045-0030(1) (1989) is the provision that is at issue in this case. The word "must" indicates that the 180-day filing requirement is mandatory. See Fleming v. United Services Automobile Assn., 329 Or 449, 456, 988 P2d 378 (1999) (term "must" describes mandatory requirement). Plaintiffs argue that, under Anaconda, DEQ lacked authority to accept defendant's renewal application, because it was not filed timely. We first analyze whether Anaconda controls DEQ's interpretation of OAR 340-045-0030(1) (1989). In Anaconda, a tax case, this court construed former ORS 314.405(2) repealed by Or Laws 1977, ch 870, § 22, which provided, in part: "If requested by the taxpayer, * * * the taxpayer shall have an opportunity to confer with the [Department of Revenue (department)] * * * as to the proposed assessment at any time prior to the date such assessment is made." (Emphasis added.) See Anaconda, 278 Or at 726 (quoting statute). The taxpayer in that case, a corporation, had made such a request, but the department failed to confer with it before making the assessment. This court held that former ORS 314.405 required the department to comply with the statutory requirement that it provide a taxpayer a conference upon request and that, absent a showing by the department that its error was harmless, the department's failure to comply with that statutory obligation rendered its subsequent assessment invalid. Id. at 728-30. Unlike the statute that was at issue in Anaconda, the provision of the administrative rule that is at issue here imposes an obligation on the permit holder, not on the agency, to comply with a mandatory requirement. Thus, the reason that the Anaconda court gave for invalidating the department's assessment -- the department's failure to comply with an obligation that the statute imposed on the department in its dealings with a taxpayer -- is absent here. Anaconda does not support plaintiffs' argument that DEQ lacked authority to accept defendant's permit renewal application even though the application did not meet the 180-day filing requirement in OAR 340-045-0030(1) (1989). Nonetheless, the issue remains whether OAR 340-045-0030 (1989) prevented DEQ from accepting defendant's renewal application. See Don't Waste Oregon, 320 Or at 142 (prescribing analysis of text and context of rule and other sources of law). We turn to that issue. As noted, OAR 340-045-0030(1) (1989) contains a mandatory requirement that a permit holder file an application to renew an existing NPDES permit at least 180-days before its existing permit expires. However, nothing in the text of the rule requires DEQ to reject a renewal application that is not filed timely. Moreover, other provisions of the rule, which provide context for our analysis of the 180-day filing requirement in section (1), permit the conclusion that DEQ may accept an application filed fewer than 180 days before the permit expires, so long as the application is "complete." The sentence immediately following the 180-day filing requirement in section (1) of OAR 340-045-0040 (1989) provides: "All application forms must be completed in full and signed by the applicant or his legally authorized representative." Section (2) provides that "obviously incomplete or unsigned" applications "will not be accepted by [DEQ] for filing and will be returned to the applicant for completion." Section (3) provides that DEQ will accept "complete" applications, but that section does not make DEQ's acceptance of an application contingent on the 180-day filing requirement in subsection (1). Section (4) authorizes DEQ to request additional information from an applicant after the application has been filed and provides that the application will be deemed "complete" only when DEQ has received the additional information. Section (4) also allows the applicant 90 days to complete the application by providing the requested information. Finally, section (5), again without reference to the 180-day filing requirement in section (1), provides that DEQ will accept for filing applications filed with the United States Army Corps of Engineers or Environmental Protection Agency, provided that the application is "complete." Reading the 180-day filing requirement in context with the other provisions of OAR 340-045-0030 (1989) reveals that the completeness of an application, not when it was filed, is the primary criterion that DEQ considers in determining whether to accept an application. The 180-day filing requirement for applicants to renew an existing NPDES permit thus appears to be intended to facilitate DEQ's processing of renewal applications, not to constrain DEQ in the manner that plaintiffs suggest. Plaintiffs do not cite any other provision of law that suggests that DEQ lacks authority to accept defendant's permit renewal application. See Don't Waste Oregon, 320 Or at 142 (requiring such showing). DEQ's and EQC's interpretation of OAR 340-045-0030(1) (1989) is plausible; therefore, we cannot say that their interpretation of the rule is erroneous. Id. Accordingly, the answer to the first certified question is that DEQ has the legal authority to accept and process permit renewal applications that do not meet the 180-day filing requirement in OAR 340-045-0030(1)(1989). In light of that answer, we need not answer the second certified question. First certified question answered. 1. The magistrate judge, citing Citizens for a Better Environment-California v. Union Oil Co. of California, 83 F3d 1111 (9th Cir 1996) cert den sub nom 519 US 1101, 117 S Ct 789, 136 L Ed 2d 731 (1997), held that the CWA permits plaintiffs to attack collaterally DEQ's decision to waive the 180-day filing requirement.

516a53f2567d5a18ecb4acb5e7d2142963b0912d6e62b7d37388935964a047ec

2001-06-08T00:00:00Z

c7357add-6f81-4a72-8e15-5f691ab0b7d2

Novick v. Myers

oregon

Oregon Supreme Court

FILED: AUGUST 31, 2001 IN THE SUPREME COURT OF THE STATE OF OREGON STEVEN NOVICK, Petitioner, v. HARDY MYERS, Attorney General, State of Oregon, Respondent. (SC S48524) On petition to review ballot title. Submitted on the record July 19, 2001. Steven Novick, Portland, in propria persona, filed the petition. Brendan C. Dunn, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz, Justices. DURHAM, J. Ballot title referred to Attorney General for modification. DURHAM, J. Petitioner challenges the ballot title certified by the Attorney General for Initiative Petition 38 (2002). ORS 250.085(2). The proposed initiative measure would add the following text to the Oregon Constitution: "Section 1. Taxpayers [sic] right to the highest quality services at the most competitive price. Contracts for public construction projects, including contracts to provide furnishings and/or fixtures for public buildings, shall be awarded to the contractor who submits the lowest bid to provide not less than the quality of work and/or product necessary to meet or exceed the specifications established for the project. This section applies to all public works projects undertaken by or on behalf of the state or any political subdivision of the state, including local governments and taxing districts. "(a) Nothing in the specifications or requirements for a public works project shall include any kind of project labor agreement; regulate the wages or benefits paid to laborers or subcontractors; require the contractor awarded the bid to pay wages or provide benefits, the total of which is greater than the contractor would be required to pay an employee if performing work for any private sector customer or client in Oregon; or give an advantage or preference to a contractor that uses union workers over a contractor that does not. "(b) Nothing in this 2002 Amendment requires a government entity to award a contract to a bidder that the government entity believes is not capable of satisfactorily fulfilling the contract. "(c) If a government entity is required by federal law to act in violation of this 2002 amendment, the government entity shall only do so to the minimum extent necessary to conform to the federal requirement. "(d) If any word, phrase, clause, or part of this amendment is invalidated by a court of competent jurisdiction, the remaining words, phrases, clauses, and parts shall remain in full force and effect." For that proposed initiative measure, the Attorney General certified the following ballot title: "AMENDS CONSTITUTION. FOR PUBLIC-WORKS CONTRACTS, ELIMINATES: EXEMPTIONS FROM COMPETITIVE BIDDING, REGULATING WAGES/ BENEFITS, REQUIRING LABOR AGREEMENTS "RESULT OF 'YES' VOTE: 'Yes' vote eliminates, for public-works contracts: exemptions from competitive-bidding process; regulating wages/benefits (including requiring prevailing wages); requiring labor agreements; union-worker preferences. "RESULT OF 'NO' VOTE: 'No' vote retains laws requiring awarding some (but not all) public contracts to lowest responsible, qualified bidder; and payment of prevailing wages/benefits and overtime. "SUMMARY: Amends constitution. Current law requires awarding certain public contracts through competitive bidding to lowest responsible, qualified bidder; exemptions allow other contracting methods for other contracts; requires paying prevailing wages (wages/benefits paid locally on similar projects) and increased pay for overtime. Measure requires that all contracts for public-works projects (including contracts for public buildings' furnishings, fixtures) be awarded to contractor submitting lowest bid to provide not less than the quality of work or product necessary to meet project specifications. Prohibits project requirements that: include any project labor agreement, regulate laborers' or subcontractors' wages/benefits (including requiring prevailing wages), require contractors to pay wages/benefits in amounts greater than amounts that would be required in Oregon's private sector, prefer contractors using union workers. Other provisions." ORS 250.035(2) sets out the requirements for a ballot title caption, result statements, and summary for a state initiative measure. (1) Petitioner challenges the sufficiency of each segment of the certified ballot title. This court reviews the Attorney General's ballot title for "substantial compliance with the requirements of ORS 250.035." ORS 250.085(5). The Attorney General's ballot title caption identifies three types of legal provisions that the proposed measure would "eliminate" "for public-works contracts." Petitioner draws attention to one of those provisions: "eliminates: * * * requiring labor agreements." He argues that that phrasing is inaccurate because Oregon law currently does not require labor agreements or, more accurately, project labor agreements, for public works contracts. (2) Thus, petitioner contends, the Attorney General's caption misleads the voters into believing that, by approving the proposed measure, they would "eliminate" a "requirement" regarding labor agreements in public works contracts that, in fact, does not exist. Petitioner submits that, for the sake of accuracy, the Attorney General should have used the words "prohibits" or "repeals/prohibits," not the word "eliminates." Petitioner repeats his arguments in challenging the phrase "eliminates * * * requiring labor agreements," which also appears in the Attorney General's "yes" vote result statement. The Attorney General responds that petitioner's criticism is not well taken because the caption "plainly tells the voters that the items following the word 'ELIMINATES' would not be allowed under the proposed measure." The Attorney General also points out that the proposed measure refers to "requirements" in the following passage: "(a) Nothing in the specifications or requirements for a public works project shall include any kind of project labor agreement * * *." The parties acknowledge that Oregon statutes impose detailed procedures and requirements on the public contract bidding process, ORS 279.027, and impose express standards of responsibility on bidders who seek to become a "lowest responsible bidder" on a public contract, ORS 279.029. In addition, ORS 279.350(1) requires any contractor or subcontractor on a public works project to pay not less than the "prevailing rate of wage," as defined in ORS 279.348(1). ORS 279.352(1) also requires that the specifications for every public works contract include a prevailing rate of wage provision. However, the Attorney General does not take issue with petitioner's contention that current Oregon law contains no requirement that a public works contract contain a "labor agreement" or a "project labor agreement." In Rice v. Myers, 326 Or 419, 423, 952 P2d 533 (1998), this court stated: "When a ballot title caption purports to make a representation regarding the present state of the law, the representation must not be misleading." Rice involved an argument that a certified caption, "Increases Sentences for Persons with Prior Convictions for Listed Crimes," gave "a false impression that the measure would increase sentences only for repeat offenders when, in fact, [the measure] also would affect the sentences of first-time offenders." Id. Applying the principle quoted above, this court stated: "[W]e agree that the Attorney General's certified caption could leave a reasonable reader with the misleading impression that the measure applies only to repeat offenders. To the contrary, Measure 53 imposes a minimum 14-month sentence, and Measure 54 imposes a minimum 18-month sentence, on persons who have never been convicted of a 'major crime.' The Attorney General's caption is under-inclusive. By describing the impact of the measure on one class of offenders, while excluding any reference to another class of offenders, the Attorney General's certified caption misleads the voters as to the full breadth of the measure and fails reasonably to identify the subject matter of the measure. See, e.g., Witt v. Kulongoski, 319 Or 7, 872 P2d 14 (1994) (illustrating this court's application of the foregoing principle in modifying an under-inclusive and, therefore, inadequate ballot title caption)." Id. at 423-24. In determining whether the Attorney General's caption in this proceeding "could leave a reasonable reader with a misleading impression," id. at 423, about the effect of the proposed measure on existing law, we begin with the ordinary dictionary definition of the key terms in the caption. "Eliminate," in this context, means: "2a : to cast out : REMOVE, EXPEL, EXCLUDE, DROP, OUST * * * b : to cause the disappearance of esp. as a factor or element in a process or situation : get rid of : ERADICATE * * *." Webster's Third New Int'l Dictionary, 736 (unabridged ed 1993). The dictionary furnishes the following pertinent definitions of "require," the word root for "requiring": "2a : to ask for authoritatively or imperatively : claim by right and authority : insist upon usu. with certainty or urgency : DEMAND, EXACT * * * 3a : to call for as suitable or appropriate in a particular case * * * b : to demand as necessary or essential (as on general principles or in order to comply with or satisfy some regulation) : make indispensable * * * 5 : to impose a compulsion or command upon (as a person) to do something : demand of (one) that something be done or some action taken : enjoin, command, or authoritatively insist (that someone do something * * *." Id. at 1929. In light of those definitions, we conclude that the phrase "eliminates * * * requiring labor agreements," could leave a reasonable reader with the misleading impression that the proposed measure would remove a public agency's authority under existing law to demand or compel acceptance of a "labor agreement" by public works contractors. As noted, current Oregon law creates no such legal authority. The Attorney General's contention that "eliminates * * * requiring" only refers to a prospective prohibition on described conduct fails to acknowledge that those words, in this context, connote the eradication of a public agency's existing legal authority to engage in the described conduct, i.e., to demand acceptance of a labor agreement by public works contractors. Voters might evaluate the proposed measure differently if they assumed, incorrectly, from the phrasing of the caption, that Oregon public agencies were exercising existing statutory authority to require public contractors to accept labor agreements. In accordance with the discussion in Rice, we conclude that the likelihood that the caption could leave a reasonable reader with a misleading impression about the present state of Oregon law necessitates a modification of the caption. The parties agree that substituting the term "prohibits" for the term "eliminates" would resolve the problem noted in the foregoing discussion. However, we express no opinion, at this point, as to the appropriate solution. We refer the ballot title to the Attorney General to make the necessary change in the caption. For the same reasons that we determined that the caption required modification, we conclude that petitioner's identical challenge to the Attorney General's "yes" vote result statement is well taken. We also refer that part of the ballot title to the Attorney General for modification. Petitioner makes other challenges to the Attorney General's caption, result statements, and summary. We reject those challenges without further discussion. Except as noted above, the Attorney General's ballot title satisfies this court's substantial compliance standard of review. For the reasons stated above, we refer the ballot title to the Attorney General for modification. ORS 250.085(8); Flanagan v. Myers, 332 Or 318, ____, ____ P3d ____ (2001). Ballot title referred to Attorney General for modification. 1. ORS 250.035(2) provides: "The ballot title of any state measure to be initiated or referred shall consist of: "(a) A caption of not more than 15 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 15-word caption limit; "(b) A simple and understandable statement of not more than 25 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 25 words that describes the result if the state measure is rejected. The statement required by this paragraph shall not describe existing statutory or constitutional provisions in a way that would lead an average elector to believe incorrectly that one of those provisions would be repealed by approval of the state measure, if approval would not have that result. Any thing or action described both in the statement required by paragraph (b) of this subsection and in the statement required by this paragraph shall be described using the same terms in both statements, to the extent practical. Any different terms must be terms that an average elector would understand to refer to the same thing or action. The statement 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 125 words summarizing the state measure and its major effect." 2. Oregon law does not provide a special definition of the phrase "project labor agreement" that appears in section 1(a) of the proposed measure. Typically, that phrase describes an agreement between the owner or project manager of a construction project and one or more labor organizations. Such agreements commonly describe the employee working conditions, including wages, grievance procedures, and union security provisions, that will apply during the life of the project, as well as any agreements protecting the project from labor strikes and slowdowns. See Building & Constr. Trades Council v. Associated Bldrs. Of Contractors of Mass./R.I., Inc., 507 US 218, 221-22, 113 S Ct 1190, 122 L Ed 2d 565 (1993) (illustrating typical provisions of project labor agreement). We recognize, as do the parties, that a project labor agreement is distinguishable from a collective bargaining agreement. However, contrary to petitioner's contention, we conclude that the Attorney General's phrase, "labor agreement," is, for purposes of the ballot title, an adequate shorthand reference to a "project labor agreement" and is unlikely to cause voter confusion.

3bb94052a44c41471782a03d4aae58096dd4245166b5bc43ab363e7a4bb626fc

2001-08-31T00:00:00Z