The Oregon Court of Appeals’ 50 Anniversary · Chap.198] OREGON LAWS 1969 331 Subscribers to the advance sheets of the Supreme Court shall be con sidered subscribers to the advance

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Willamette University College of Law and the

Appellate Practice Section of the Oregon State Bar welcome you to

The Oregon Court of Appeals’ 50th Anniversary

CLE & Celebration

July 1, 1969 - July 1, 2019 at Willamette University College of Law

September 6, 2019

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Schedule and Table of Contents Introductory Materials

“Judges of New Oregon Court of Appeals Take Office,” The Oregonian, July 2, 1969, p. 11 ...................... 3

Chart of Oregon Court of Appeals Judges, 1969-2019 (full color available online) ................................. 4

Or Laws 1969, ch 198 (1969) (excerpts) ...................................................................................................... 5

12:30 Welcome

12:45-1:50 Panel 1: Oregon Court of Appeals: Past, Present, and Future Moderator: Justice Landau

Speaker Bios ................................................................................................................................. 9

Group A: Lessons from the Past: Jas Adams – “Lessons Learned” ........................................................................................ 11 Justice Jack Landau – “The Baker’s Dozen,” Oregon Bar Bulletin, October 2013 ............ 17

Group B: Challenges of the Present: Anna Joyce, Chief Judge Jim Egan

Group C: Opportunities for the Future: Jim Nass, Judge Steve Powers

2:00-3:35 Panel 2: The Best Oregon Court of Appeals Cases Ever Moderator: Derek Green

Speaker Bios ............................................................................................................................... 22

Group A: Administrative Law: Denise Fjordbeck; Justice Mick Gillette ........................................ 25 Sun Ray Dairy v. OLCC, 16 Or App 63, 517 P2d 289 (1973) .............................................. 27

Group B: Constitutional Law: Alycia Sykora; Judge David Schuman ............................................ 31 Tanner v OHSU, 157 Or App 502 (1998), rev den, 329 Or 528 (1999) .............................. 34

Group C: Tort / Contract Law Lindsey Hughes: Curtis v. MRI Imaging Services II, 148 Or App 607, 941 P2d 602 (1997), affirmed 327 Or 9, 956 P2d 960 (1998) ........................................................................... 44 Judge Shorr: Batzer Construction Inc. v. Boyer, 204 Or App 309 (2006) .......................... 51

Group D: Criminal Law: Marc Brown; Justice Paul De Muniz State v. Flores, 68 Or App 617, 685 P2d 999 (1984) ..................................................................... 58

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Group E: Appellate Process Jim Westwood: State v. Jury, 185 Or App 132 (2002), rev denied, 335 Or 504 (2003) .... 70 Judge Robyn Aoyagi: Dept. of Human Servs. v. G.E., 243 Or App 471, 260 P3d 516, adh’d to as modified on recons, 246 Or App 136, 265 P3d 53 (2011) .............................. 74

3:45-5:15 Panel 3: Judicial Process in the Intermediate Court of Appeals Moderator: Jeff Dobbins Speaker Bios ............................................................................................................................... 81

Judge Rick Haselton: “Becoming a Judge: Some Reflections” ...................................................... 84 Judge Rex Armstrong Judge Erin Lagesen Judge Darleen Ortega Judge Erika Hadlock

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Oregon Court of Appeals, 1969-2019Gov Position One Two Three Four Five Six Seven Eight Nine Ten Eleven Twelve Thirteen

Virgil Langrty (A) Robert H. Foley (A) Herbert M. Schwab (A) William S. Fort (A) Edward Branchfield (A)E lE E E E

Robert Y. Thornton (E '70)

Position 6 added Oct. by Or Laws 1973, ch 377, § 1Jake Tanzer (A)

l

Jason Lee (EE '76)t

r E William Lloyd Richardsonr Jake Tanzer (A E) E (A E) E

Lee Johnson (EE '76)John H. Buttler (A) George M. Joseph (A) W. Michael Gillette (A) Betty Roberts (A)

r E E E EJ.R. Campbell (A)

E OR S.Ct. dOR S.Ct. John C. Warden (A) t r Edward H. Warren

Thomas F. Young (A) George VanHoomissen John C. Warden (A) (A E '80)(E '80)

rE E E t Kurt C. Rossman (A E)

Jonathan Newman (E'82)

E E

OR S.Ct.Mary J. Deits (A)

E E E

dSusan P. Graber (A) E E E

OR S.Ct. (* Riggs) EWalter I. Edmonds (A) R. William Riggs (E '88)

rPaul J. De Muniz (A E) E E

rRobert Durham (A)

E E r r ESusan M. Leeson (A) Jack Landau (A)

OR S.Ct.E Rick T. Haselton (A) E E

E rRex A. Armstrong (E '94)

E E

Virginia Linder (A)E E r E

OR S.Ct. Robert Wollheim (A) ERives Kistler (A) r

David Brewer (A)E E E E

OR S.Ct. EDavid Schuman (A)

E E

OR S.Ct.Darleen Ortega (A)

E E EE r

Ellen F. Rosenblum (A)

E E E E E

OR S.Ct.Timothy Sercombe (A)

E E E

rRebecca Duncan (A) E E E

OR S.Ct.Lynn R. Nakamoto (A) r

Erika Hadlock (A)E E E E

tJames C. Egan

r (EE '12) Joel S. Devore (A) Erin C. Lagesen (A) Douglas L. Tookey (A)Chris Garrett (A E) E r E E E

Megan A. Flynn (A)

r OR S.Ct.E E Scott A. Shorr (A) E Roger J. DeHoog (A)

E EOR S.Ct. r OR S.Ct.

Bronson D. James (A) Robyn Ridler Aoyagi Steven R. Powers (A)E (A '17) E E E E

OR S.Ct. EJosephine H. Mooney(A) rE Misha Isaak (A '19) E E E

E

E E E

* Assumes no changes in status after 9/1/19(A) -- initial appointment (E) -- Initial election (E 'xx) -- initial election prior year Service as chief judgeA -- subsequent appointment E -- subsequent elections (EE 'xx) - Ran in contested primary, then won

(A) E -- appointment followed by election that year initial seat in general prior yearOR S.Ct. - Elevated to S.Ct.

At end of term: r -- resigned rm -- removed *Because the Blue Book does not distinguish election losses from term expiration,d -- died in office l -- lost election further historical review may demonstrate some "t" expirations were actually "l" losses.

Generated by A.J. Wahl, Willamette U. College of Law '12, and Prof. Jeff Dobbins, WUCL (rev. to Sept. 2019); Corrections and clarifications are welcome.

Revised 9/3/19

Positions 11-12-23 Added by House Bill 4026 (2012)

Court of Appeals (w/ five judges) created July 1 by HB 1195, Or Laws 1969, Ch. 198

Positions 7-8-9-10 Added Sept. 1 by Or Laws 1977, ch 451, § 1

McC

all

Stra

ubA

tiyeh

Rob

erts

Kitz

habe

r

2016

2014

2015

Gol

dsch

mid

t

1994

2003

2004

1987

1988

1989

1990

1983

1984

1985

1986

1995

Based on data in the Oregon Blue Book; S. Armitage, History of the Oregon Judicial Dept. (pt. 2); Wikipedia entries on the Oregon S.Ct.; I have left off notes and other biographical data for our most recent justices, but will continue filling in this data.

t -- term exp'd, did not seek new one

2017

2005

2006

1999

2000

2001

2002

2011

2012

2013

2007

2008

2009

2010

1996

1997

1998

1991

1992

1993

1969

1970

1979

1980

1981

1982

1975

1976

1977

1978

1971

1972

1973

Kul

ongo

ski

Kitz

habe

rB

row

n

2019

2020*

2021*

2022*

2018

1974

326 OREGON LAWS 1969 [Chap. 196 Chaps. 197, 198] OREGON LAWS 1969 327

CHAPTER 198

AN ACT [HB 1195)

Relating to the creation of the Court of Appeals; creating new provisions; amending ORS 1.030, 1.050, 1.260, 1.290, 1.610, 1.640, 1.810, 2.052, 2.058, 3.560, 7.010, 7.170, 8.010, 19.023, 19.033, 19.035, 19.065, 19.074, 19.088, 19.094, 19.098, 19.108, 19.118, 19.130, 19.180, 19.190, 21.010, 21.020, 21.050, 107.100, 107.110, 107.270, 109.345, 116.550, 118.700, 133.030, 133.120, 133.360, 138.040, 138.050, 138.060, 138.080, 138.135, 138.185, 138.300, 138.480, 138.490, 138.500, 138.650, 138.660, 140.070, 168.090, 183.500, 221.360, 252.010, 252.070, 252.110, 276.014, and 419.-661; appropriating money; and declaring an emergency.

Be It Enacted by the People of the State of Oregon: Section 1. (1) As part of the judicial branch of state government, there

is created a court of justice to be known as the Court of Appeals.

330 OREGON LAWS 1969 [Chap.198

(2) A department shall consist of three judges. For convenience ofadministration, each department may be numbered. The Chief Judge sha_ll from time to time designate the number of departments and make a�s1/lnments of the Judges among the departments .. The Chief Judge may sit m one or more departments and when so s1ttmg shall preside. The Chief Judge shall designate a judge to preside in each department in his absence.

(3) The majority of any department shall consist of regularly electedand qualified judges of the Court of Appeals.

( 4) The Chief Judge shall apportion the business of the court betweenthe departments. Each department shall have power to hear and determine causes, and all questions which may arise therein, subject to subsection (5) of this section. The presence of three judges is necessary to transact b�siness in any depart_ment, except such business as may be transacted m chambers by any Judge. The concurrence of two judges is necessary to pronounce judgment.

(5) The Chief Judge or a majority of the regularly elected and qualified judges of the Court of Appeals may at any time order a cause to be heard in bane. When sitting in bane, the court may include not more than two judges pro tempore of the Court of Appeals. When the court sits in bane, the concurrence of a majority of the judges participating is necessary to pronounce judgment, but if the judges participating are equally divided in their view as to the judgment tb be given, the judgment appealed from shall be affirmed.

Section 7. (1) The Court of Appeals may appoint and fix the compensation of such number of clerical assistants to the judges of the court as it considers necessary.

(2) The Supreme Court Reporter shall be the Reporter of the Courtof Appeals.

(3) The Clerk of the Supreme Court shall be Clerk of the Court ofAppeals.

( 4) The Court of Appeals shall sit primarily in Salem, but also maysit in such other places as it considers convenient for the conduct of its business.

(5) The duty of the Secretary of State to furnish books and adequatequarters for the use of the Court of Appeals shall be the same as for the Supreme Court.

(6) The Court of Appeals may make and enforce all rules necessaryfor the prompt and orderly dispatch of the business of the court, and the remanding of causes to the lower courts.

Section 8. (1) The opinions of the Court of Appeals shall be published in the Oregon Reports.

(2) The Court of Appeals shall cause distribution of the opinions of thecourt in like manner and with like effect as the opinions of the Supreme Court. The Department of General Services shall perform the same duties in the printing and distribution of such opinions as for the Supreme Court.

(3) The Clerk of the Court of Appeals may furnish advance sheets ofthe opinions of the court in the same manner as for the Supreme Court.

Chap.198] OREGON LAWS 1969 331

Subscribers to the advance sheets of the Supreme Court shall be considered subscribers to the advance sheets of the Court of Appeals without additional cost.

Section 9. The annual salary of each judge of the Court of Appeals shall be $25,000, payable monthly.

Section 10. When a judge of the Court of Appeals holds court or performs any other official function away from the state capital, his hotel bills and traveling expenses necessarily incurred by him in the performance of that duty shall be paid by the state. Such expenses are to be paid upon the certificate of the judge to the truth of an itemized statement of the expenses in the manner provided by law.

Section 81. There is appropriated to the Oregon Court of Appeals for the biennium period beginning July 1, 1969, out of the General Fund, the sum of $537,863, for the expenses of the court.

Section 82. This Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Act shall take effect July 1, 1969.

Approved by the Governor May 19, 1969. Filed in the office of Secretary of State May 19, 1969.

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Panel 1: Oregon Court of Appeals: Past, Present, and Future

Speaker Bios

Jas. Jeffrey Adams graduated from Reed College and UC Berkeley Law School. He worked at the Oregon Court Appeals from 1979 through 1982 as a clerk and staff attorney. In 1989, after private practice in two Portland law firms, becoming a partner in the second, he joined the DOJ Appellate Division. In 2005 he became the Attorney-in-Charge of the Natural Resource Section, retiring from Oregon DOJ in 2014. At Willamette University College of Law, he concomitantly taught Wildlife Law, Oregon Administrative Law and Advanced Legal Writing. For OSB, Jas. chaired the Ethics Committee, Oregon Board of Bar Examiners, Appellate Practice Section, and Natural Resources Section. “My goal as a lawyer,” he says, “was always to be fully engaged in the profession.”

The Honorable James C. Egan was elected to the Court of Appeals on November 7th, 2012. He took office on January 7th 2013. Before joining the Court of Appeals, he served as a circuit court judge for Linn County where he presided over many civil and criminal trials. He also served as the chief judge in the juvenile court, probate court, and civil court in Linn County.

Judge Egan has actively served the Linn County Bar Association, the Oregon State Bar Association, the Plaintiff's bar, and the Military bar as:

• President of the Linn County Bar Association (1989-1990); • President of the Oregon Workers' Compensation Lawyers (1996-1998); • Oregon State Bar Association House of Delegates (2002-2005); • President of the Oregon Trial Lawyers Association (2005-2006); • Deputy Command Judge Advocate, ASG Kuwait (2008-2009); • Command Judge Advocate, 104th Division (reserve) (2010-2013). • Member of the Oregon State Bar Associations Affirmative Action Committee (1990-1991);

Treasurer of the Workers' Compensation Section of the Oregon State Bar Association (1996-97); Judge Egan graduated West Albany High School (1974). He earned a Bachelor of Science degree at Willamette University (1979) and a Doctorate of Jurisprudence at the University Of Oregon School of Law (1985). After law school, he returned to his home in Linn County where he practiced civil litigation at the firm of Emmons, Kyle, Kropp, Kryger & Alexander (later Kryger, Alexander, Egan, Elmer & Carlson) for 25 years (1985- 2010). Anna Joyce is a shareholder with Markowitz Herbold and leads the firm’s appellate practice group. She develops winning strategies and arguments for clients at both the trial and appellate level. Before joining the firm, Anna was the former Oregon Solicitor General, where she briefed cases before the Oregon Supreme Court, the Oregon Court of Appeals, and the United States Supreme Court. Appointed by the Attorney General, Anna led a team of attorneys, attorney managers, and support staff in developing, coordinating and briefing the State’s legal position in appeals.

The Honorable Jack L. Landau joined the Oregon Supreme Court in January 2011. Before joining the Supreme Court, he served on the Court of Appeals (1993-2010). Prior to that, he clerked for then-Judge Robert C. Belloni of the United States District Court for the District of Oregon (1981-83), practiced law as an associate and partner in the Portland firm Lindsay, Hart, Neil & Weigler (1983-89), and served the

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Oregon Department of Justice as Assistant Attorney General and Attorney-in-Charge in the Special Litigation Unit (1989-91) and as Deputy Attorney General (1991-93).

Landau has been an adjunct professor at Willamette University College of Law since 1993, where he has taught Legislation and Statutory Interpretation, and has written numerous articles for law reviews and other publications.

Born in Colorado, Landau grew up in Oregon. He graduated from Portland’s Franklin High School with honors (1971), Lewis and Clark College (BA, 1975), Northwestern School of Law at Lewis and Clark College (JD, 1980), and the University of Virginia School of Law (LLM, 2001).

James W. Nass was the Appellate Commissioner for the State of Oregon from 2008-2019. He received a BA in sociology from Rockford College, Illinois, and a JD from Willamette University College of Law. Before joining the staff of the appellate courts, he worked as a Staff Attorney for Marion-Polk Legal Aid Services, the Oregon Mental Health Division, and the Worker’s Compensation Board. At the Appellate Courts, he served as Appellate Legal Counsel to the Supreme Court (1993-98) and the Court of Appeals (1993-2008) before being appointed Appellate Commissioner. He has been a member and chair of the Appellate Practice Section of the State Bar, and of the ABA’s Council of Appellate Staff Attorneys, and has written significant chapters regarding the courts of the state for Oregon State Bar Books.

The Honorable Steven R. Powers has served on the Oregon Court of Appeals since July 2017, when Governor Brown appointed him to the court. Before joining the Court of Appeals, Judge Powers was:

• an attorney in private practice with Parsons Farnell & Grein, LLP • Deputy General Counsel in the Office of the Governor • a prosecutor in the Multnomah County District Attorney's Office • Chairperson of the Oregon Board of Parole and Post-Prison Supervision • an Assistant Attorney General in the Oregon Department of Justice • a petitions law clerk for the Oregon Supreme Court.

Judge Powers was a civil litigator in private practice where he represented clients in insurance coverage disputes and in appellate matters. While at the Oregon Department of Justice, he served in the Appellate Division where he handled a wide range of civil, criminal, and administrative appeals before the Oregon Court of Appeals, Oregon Supreme Court, United States Court of Appeals for the Ninth Circuit, and the Supreme Court of the United States. He is a founding board member of the Oregon Filipino American Lawyers Association as well as an active member of the Oregon Minority Lawyers Association and the Oregon Asian Pacific American Bar Association.

Judge Powers earned his B.A. from Western State College of Colorado (now known as Western State Colorado University) and J.D. from Willamette University College of Law. He has served as a mentor to high-school students, law students, and newly admitted attorneys through programs at Marion County Bar Association, Multnomah Bar Association, Willamette University College of Law, Lewis and Clark Law School, and the Oregon State Bar.

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LESSONS LEARNED –- Jas. Jeffrey Adams *

I. The Court of Appeals as it began its second decade in 1979

A. Historical Background

1. The Oregon Supreme Court had its origins in 1841 under Territorial government, with jurisdiction initially limited to probate matters. During the ensuing years of provisional and state government, the Oregon Supreme Court eventually evolved into a 7-member tribunal with full appellate jurisdiction.

2. 128 years later, the Oregon Legislature created the Oregon Court of Appeals as an intermediate appellate tribunal composed of five judges, with limited jurisdiction over a subset of appellate matters: criminal-law related cases, domestic relations/juvenile proceedings, and review of agency decisions.

3. In 1977, the Oregon Legislature expanded the Court of Appeals to 10 judges and at the same time gave it jurisdiction over everything appealable, except for the Oregon Supreme Court’s original jurisdiction. Simultaneously, the legislature gave the Supreme Court discretionary review authority over decisions made by the Court of Appeals, which otherwise would automatically become final appellate decisions in Oregon.

4. By the summer of 1979, the Court of Appeals was dealing with: a caseload that had increased significantly since becoming the appellate court of first resort in 1977, a new structure of three 3-judge panels, and double the original number of judges. Meanwhile, the number of appeals kept mounting. That was the point at which I joined court staff.

B. My path to working at the Court of Appeal was serendipitous

1. I got the idea of applying for a clerk job at the Court of Appeals after a Reed College former classmate clerking at the Court of Appeals described it as “the perfect job.” He then added, “No deadlines.” I would soon discover for myself that the driving need for creating an intermediate appellate tribunal in Oregon was to reduce the appeals backlog. That demanded a strong work ethic.

2. I interviewed with Presiding Judge George Joseph & then with Chief Judge Herb Schwab, who told me, “I can never tell whether a clerk is going to work out. So, go tell George OK.” Some months after being hired as a law clerk, I was hired as a staff attorney for the Blue Panel.

C. As it began its second decade, the Court explored innovation & efficiency

1. Judge Joseph constantly exhorted law clerks and staff attorneys: “Don’t get it right, get it written.” I understood that that did not mean the legal analysis should be flawed; rather, this was a directive to resolve each case without non-essential analysis of issues that did not need

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to be addressed. In other words, it was a catchy -- if a bit illogical -- slogan that essentially promoted the “principle of parsimony,” that is, the approach of resolving appeals on the simplest ground – that is, threshold, procedural and settled substantive law first.

2. When George Joseph became Chief Judge in 1981, he instituted a conference with himself and all four staff attorneys that met weekly to review opinions about to be released. This group focused on everything from grammar, ambiguous writing, internal consistency, and substantive law. The initial group of staff attorneys included Martin Vidgoff, Linda Meng, Nori Cross and myself. It was an efficient quality control measure, notwithstanding our nickname of “Kitty Court” or “Kiddie Court.” 3. The panel presided over by Judge John Buttler invited me to their pre-argument conferences for workers compensation cases. I had read all the briefs and would orally highlight key issues and suggest dispositions. In effect, this was an oral bench memo in aid of narrowing the dispositive issues. 4. I remember the Court as being a very collegial shop when it came to the work. The did judges treated staff with respect, for one thing. The judges also conferred with each other informally to reach consensus, which was a more efficient and time-saving approach than communicating via memoranda. II. Lessons Learned The following “Lessons Learned” consist of practice guidance I developed for myself to guide my own appellate advocacy. Perhaps some of them will resonate with other advocates. A. State Facts and Case Holdings accurately 1. Builds Court’s trust in your reliability

2. Prevents being skewered in oral argument

While I was on staff at the Court, Chief Judge Herb Schwab would frequently do the following during oral argument: He’d see in a brief a record citation he suspected was questionable, ask the bailiff to bring up the transcript of the proceedings below, check the citation and then confront counsel with the error. He sometimes did this with case citations. Few advocates were staunch enough to muster a coherent response to this frontal attack on their accuracy (at best) or honesty (at worst).

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B. Outline (as a form of cognitive mapping) 1. Outlining allows rearranging order of legal arguments quickly. The outline need not be nested; it can be a simple list of points in order. But doing it first is guaranteed to tighten the flow and incisiveness of your argument. 2. Outline or list your oral argument points. In oral argument, don’t attempt to summarize your brief; try to focus the Court on the issue(s) on which you believe the case should turn C. Narrow the issues throughout entire appellate process 1. In law school, one of my professors characterized legislation as affecting a wide “slice of

life,” with many clashing interests and a broadly cast scope; in contrast to litigation, which typically dealt with a snapshot in time involving specific parties, specific facts, and a specific dispute. This seems almost self-evident, but it is a good frame of reference to keep in mind when an appeal involves issues of statutory construction.

2. When I worked at the Court, Judge Joseph once told me: “The best appeal has been whittled down to a gnat’s eyelash.” As an advocate, I increasingly viewed the appellate process as one of winnowing down the issues down to what then becomes dispositive. It is in effect the natural consequence of applying the principle of parsimony.

3. The Question Presented, for example, can usefully be framed or reframed in briefing to present the issue concisely and accurately while using the concepts and vocabulary that define your argument. Best to keep refining the Question Presented as you complete your briefing, as long as the concepts and terminology match up in the end.

4. In appellate CLEs, I often heard, “You cannot win your case in oral argument, but you can lose it there.” That may be generally the case but certainly not categorically, and the subtext seems be that the less attempted in oral argument, the better. Perhaps that is why so many lawyers representing a respondent have marched to the podium to dutifully recite, “I have nothing to add to my brief.”

5. As an advocate with a functional view of the appellate process, I saw oral argument as the last opportunity to help focus the court on the issue you believe is dispositive. Thus, I always had something to add to my brief, albeit I usually tried to keep it short and sweet, if it helped narrow the issues or refute a new point raised in the opening argument.

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6. Be wary of including issues or arguments the client wants to make, against your better

judgment. Every time I have done this, I have regretted it. Be the lawyer and use your skills to focus on prevailing for the client, not on placating the client. Exercise your professional judgment and focus on your best arguments.

D. Doubt Thyself (in preparation) 1. An appellate lawyer should be able to take off the battle gear to review his or her legal

argument from a skeptic’s viewpoint.

2. Some litigation lawyers seem to resist questioning their litigation stance, but a good appellate advocate should be able to serve as one’s own devil’s advocate during preparation. Ask yourself this: would you rather be hit, standing at the podium, with the tough questions to which you have no coherent response, or would you feel better prepared if you had given thought to the weak points of your case and had come up with some counter-arguments you could use in oral argument or in your briefing?

3. After a loss most lawyers may ask themselves what they could have done better -- but ask yourself the same question when you win. It can be just as valuable.

E. The Gestalt approach 1. Conceive of your argument as a gestalt of facts and legal points more cogent, compelling and complete than your opponent’s

• Present facts objectively with accurate record citations in the Statement of Fact; then argue the facts in the argument portion of your brief

• Proceed logically from one point to the next (by outlining first) • Eliminate stumble points in the argument (by outlining) • Write clearly, not to make it possible to be understood, but to make it impossible to be

misunderstood. • Identify public policies that support the resolution you suggest (including process

values such as reducing litigation, providing certainty, encouraging immediate reduction of safety risks, etc.

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2. How does one persuade another? • Persuasion is the ultimate goal of every advocate. • At its most fundamental level, an argument can prove persuasive only if it has in fact

been heard and understood. We’ve all had the experience of talking to someone who clearly is not paying attention. If your legal argument loses the sustained attention of your audience, as will happen if some stumbling block in your reasoning causes the Court to stop and think “Wait, that cannot be right,” you have not only interrupted the flow but have diminished or even lost your opportunity to persuade. What you want is an argument that is well thought out, cleanly stated, with no apparent chinks or weaknesses.

• In this approach, there is no room for either unintended ambiguity or introduced complexity. In my experience, the simpler and more powerful argument will usually prevail, because it is more straightforward. Wm F Buckley once referred to the “radiant obscurity” of Gore Vidal’s prose. In my experience, an advocate will never benefit from obscurity in briefing, however radiant the prose, unless confusion is the only argument you have.

• The goal is to get the Court to buy into your legal/factual “gestalt” over that of your opponent, by presenting an argument that reasonably explains everything at issue, fits in with controlling law, resolves the dispositive issues, does not appear to create additional problems, and advances public policy.

• If you do this better than your opponent, you greatly increase your opportunity to prevail. The Court still might decide to go a different direction, but if the principle of parsimony is in play, your chances are good.

• This lesson is derived in part from Thos. Kuhn’s THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (describing scientific advances as not evolutionary and incremental but as relatively revolutionary paradigm shifts), and in part from classic mediation training (public policies being comparable to strongly held values underneath the surface that drive litigation)

F. Demeanor 1. Earnest good faith was the only attitude that worked for me as an appellate advocate, both in writing and in oral argument.

2. Never get angry, and control visible annoyance

3. Treat oral argument as a professional conversation, even if you know the judge(s)

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For example, if a judge asks, “Isn’t your argument this?” -- summarizing in rapid fire fashion your legal position, best not to respond: “There, now you’ve got it!” Nor is it necessary to grovel with “Your Honor, I could not have stated it better myself!” (I was not alone in my reluctance to give that type of response). Instead, I’d suggest: “If I have captured all the nuances, yes.” That leaves you an out to avoid being trapped if you unwittingly agreed to more than you intended. G. Take the High Road 1. Don’t mount an ethics attack on the opposing lawyers in your appeal. The Bar’s Ethics Code does not require ethics complaints to be raised during the pendency of an ongoing case. After the litigation is over, if you still feel strongly, the correct protocol is to file an ethics complaint with the Oregon State Bar. Outside the rare case where the lower tribunal has made an appealable ethics ruling, raising ethics issues in your appeal is basically a hardball personal attack. It never worked in appeals I handled when opposing counsel tried to tarnish trial counsel with ethics. 2. Some lawyers like to impress their clients or perhaps themselves by including in their appellate briefs (and sometimes in oral argument) clever put-downs aimed at opposing counsel or parties. In my experience, zingers don’t translate into anything much more substantive than a raised eyebrow. A much higher percentage strategy is to focus on maximizing the strength of your argument. Trust me: your client will be far more impressed when you actually win the appeal.

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Oregon State Bar Bulletin — OCTOBER 2013

In October 2013, Chief Judge Rick Haselton will swear in three new judges who will fill three newly created positions on the Oregon Court of Appeals. The addition of those new positions represents the first expansion of the court in more than 35 years and brings the total number of judges on that court to 13. That expansion seems a fitting occasion to reflect back on the origins of Oregon’s busy, important — yet largely anonymous — intermediate appellate court.

For the first 110 years of the state’s history, no state court of appeals existed. In fact, as originally created by the state’s parsimonious founders, circuit courts as such didn’t exist either. The state’s court system consisted of four justices, each of whom did double duty as both circuit and Supreme (actually, in the original constitution, it’s “Suprume”) Court judges. The judicial-power article of the constitution provided that

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the double-duty system would continue until the state’s population exceeded 200,000 white persons, at which point the legislature would be authorized to create a separate set of circuit courts. Interestingly, the legislature did not wait, and, in 1878 — when the state’s white population was a mere 150,000 — split the court system in two, authorizing the governor to appoint three Supreme Court and five circuit court judges. No one ever challenged the failure of the legislature to meet the constitutional population milepost. Go figure.

Over time, the numbers of both circuit and Supreme Court judges increased to meet the increased demands of a litigious and growing state population. By 1968, the number of trial judges (district and circuit) totaled 85, while the Supreme Court had grown to seven.

Those judges were a busy lot, particularly on the Supreme Court. According to the Chief Justice’s Annual Report for calendar year 1968, the number of appeals to the Supreme Court had grown from 394 in 1960 to 629 in 1968. To keep up with the workload, the court came to rely on the regular assistance of circuit judges sitting on a pro tem basis. During 1968, for example, the Supreme Court issued over 345 opinions, 74 of which were written by pro tem judges. That figure meant that each of the justices was drafting an average of nearly 40 opinions each year, at a time when the American Bar Association was suggesting that a reasonable expectation was closer to 30.

The Creation of the Court of Appeals

The increasing workload, and the prospect that it would only get worse in the coming years, led Chief Justice William Perry to create a committee to study the matter. The committee readily concluded that the workload was unsustainable by the appellate court system as currently configured. The committee recommended the creation of a five-member intermediate court of appeals.

Why five? According to Supreme Court Justice Ralph Holman, a member of the committee, it was simple arithmetic. The American Bar Association recommended an expectation of no more than 30 opinions per judge, per year. The total of 345 opinions (the number that the Supreme Court wrote in 1968) divided by 30 came to roughly 12 judges. That meant, Holman explained, that the committee could recommend either increasing the Supreme Court to 12 members or creating a new court of appeals consisting of five. The committee rejected the former option as unwieldy and inefficient, which left the latter. Voila!

There was the question of the new court’s responsibilities. The committee contemplated routing all appeals through the new intermediate appellate court and converting the Supreme Court entirely to a court of review. That idea was rejected, however, out of concerns for costs. “It was apparent that we couldn’t get a court of appeals across the board,” Holman later recalled. The committee had to be content to “get the camel’s nose under the tent” and wait until later to expand the jurisdiction of the new court. The answer, again, was simple arithmetic. The committee took the workload of the Supreme Court and divided it into two piles: 42 percent (five-twelfths) to the new court of appeals and 58 percent (seven-twelfths) to the Supreme Court. According to a study of the Supreme Court’s caseload over the preceding seven years, the relative share of appeals from criminal, probate, domestic relations and administrative law cases totaled 42 percent. So the committee proposed to assign those to the new court. Herbert Schwab, a former Multnomah County circuit court judge and pro tem judge on the Supreme Court, had a slightly more cynical spin on the selection of the new court’s cases: “The Court (of Appeals) got the stuff nobody wanted.”

The committee’s recommendation to create a five-person court of appeals was introduced to the Oregon Legislature in 1969. With the support of the Oregon State Bar, the Supreme Court and Gov. Tom McCall, the recommendation sailed through the House Committee on Judiciary, to which the bill had been referred. The committee sent the bill to the floor with a do-pass recommendation with only one dissenting vote. (In the small-world department, one of the committee members voting in support of the bill was then-state representative and future chief justice, Wallace P. Carson Jr.)

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The next stop was the Ways and Means Committee where the bill — and its price tag of $573,000 — had something of a cooler reception. After an 8-to-5 vote in favor of the bill, however, it went to the House floor, where it was approved by a vote of 50 to 4.

On the Senate side, the bill received the unanimous endorsement of the Senate Committee on Judiciary (again, in the small-world department, the motion to recommend the bill was offered by then-Senator and future Justice, Ed Fadeley and was supported by, among others, then-Senator and future Justice, Berkeley Lent) and went to the Senate floor, where it was approved by a vote of 28 to 1. On May 17, 1969, Gov. McCall signed the bill into law, which went into effect on July 1.

There remained the business of deciding who would be on the new court. The legislature had authorized the governor to appoint all five of the new judges, each of whom would stand for election at the next general election. Gov. McCall made the appointments immediately, with twin considerations of judicial experience and geography foremost in his mind. He selected Schwab to be the court’s first chief judge. He then added Ed Branchfield, who was the governor’s legal counsel and originally hailed from Medford; Robert Foley, a circuit court judge from Bend; William Fort, a circuit court judge from Eugene; and Virgil Langtry, a circuit judge from Portland.

The Court’s Early Years: 1969-77

The new court inherited 302 cases from the Supreme Court’s backlog, cases that had waited an average of 150 days from the completion of briefing to be set for argument. The court scheduled the cases for argument and set itself to the task of eliminating the backlog.

During its first six months, the court sat as a single five-judge panel. The court set up quarters in the first floor of the Supreme Court building and, in a practice that continues to this day, borrowed the Supreme Court’s courtroom for the oral arguments. The court made good on its goal of deciding its cases with dispatch. The first case — Green v. Haugen, a domestic relations appeal — was heard on July 7, 1969, and the court issued its decision a little over six weeks later. By year’s end, the court had cleared entirely the 302-case backlog that it had inherited from the Supreme Court and had reduced the time from briefing to argument from five months to one.

One problem quickly became obvious, however. The estimates of the Supreme Court’s caseload that had been used to divvy up the work between the two appellate courts turned out to be rather inexact. The calculations about the numbers of criminal cases, in particular, had been woefully underestimated. As a result, the new court soon was awash in criminal appeals. As Chief Judge Schwab saw it, the problem was that a good percentage of those criminal appeals were without merit and didn’t warrant the expenditure of court resources to write an opinion that said just that. To address the problem, Schwab later recalled, “I sold the court on the fact that we had to start affirming these without opinion. We just couldn’t keep writing nonsense.” The court briefly entertained the idea of consulting with the bar about the proposal, but Schwab nixed the idea, explaining that “if we did that, we’d be talking about it until we were long dead. So we just did it.” One morning, at the end an argument, the court simply announced from the bench that it would be affirming the case without issuing an opinion. Reportedly, the lawyer on the losing side said as he walked through the swinging doors of the courtroom, “Well, at least I’ll get my fee in a hurry.” Thus was born the AWOP.

The new judges had to stand for election. All save one were returned to office, the exception being Branchfield, who was defeated by former Attorney General Robert Thornton. In the meantime, the court split into two panels — called “departments” — of three judges each, with Chief Judge Schwab presiding over each panel. That quickly became untenable, and, in 1973, the legislature authorized the creation of a sixth position on the court so that two panels could operate without requiring the chief judge to sit on both. Gov. McCall appointed Portland lawyer Jake Tanzer to fill the new position.

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Tanzer, of course, had to stand for election at the next general election, in 1974. He drew an opponent, controversial Portland lawyer Jason Lee, who defeated him in the primary election that spring. Tanzer’s campaign sued Lee for what it alleged were fraudulent statements during the election, statements that attributed certain unpopular decisions of the court to Tanzer personally. A jury found in favor of Tanzer, but the Oregon Supreme Court later reversed. Meanwhile, a Tanzer write-in campaign in the November election failed to bear fruit, and Lee took the bench the following year. In an odd twist of Oregon political fate, two years later, Gov. Bob Straub appointed Tanzer to the Court of Appeals a second time, to fill a vacancy created by the retirement of Robert Foley. Lee and Tanzer not only served on the same court during the next four years, but also served on the same panel. (Lee died Feb. 19, 1980, while still in office, at age 64.)

Under Schwab’s leadership, the new court quickly became known for its productivity, if not its collegiality. Schwab was known to remark that “you can’t be a good administrator unless you’re prepared to be a sonofabitch.” And by all accounts, Schwab filled the bill in both respects. Stories about Schwab — “old grumbleguts” to the staff — and his brusque nature are legion. According to one lawyer quoted in an Oregonian article about the court, Schwab was “crude, sexist and crass.” According to another, quoted in the same story, “Oregon is lucky to have a man like him.” Among the most familiar complaints about Schwab was his practice of turning his back to lawyers during oral argument to signal that he was done listening to them. (Schwab, by the way, later recalled the practice without apology. “Some people thought that they have to fill up their time, even if they have nothing to say,” he explained. “But we had to move things along.”)

The court became a victim of its own success. In the six years following the creation of the court, its caseload more than tripled, from 500 in 1970 (the court’s first full year of operation) to 1,847 in 1976. The increase in cases was due to a number of factors: population growth and a concomitant increase in appeals, the adoption of no-fault divorce by the legislature and new Oregon and U.S. Supreme Court decisions expanding the rights of indigent criminal defendants to appellate redress. The Court of Appeals responded by requesting that the legislature authorize the creation of two more positions on the court in 1977.

The legislature, apparently happy with the performance of the court, decided that more drastic measures were required. It first decided to expand the Court of Appeals’ portfolio to include virtually all appeals in all types of cases. Then, to help the court with its even greater workload, the legislature authorized the addition of four new judges.

Chief Judge Schwab recalls that the governor gave him and Justice Holman “very much of a hand” in the selection process, particularly in the selection of George Joseph, then Multnomah County counsel, and W. Michael “Mick” Gillette, then the state’s solicitor general. Holman and Schwab called Joseph, who had a reputation for being somewhat “acerbic,” and told him that the process would take about three months. “We told him,” Schwab later recalled, “that he had a good chance, if could just keep his damned mouth shut for three months.” Meanwhile, the two judges put in a call to the hirsute Gillette, recommending that “he ought to shave that big damned beard and get a grey flannel suit.” Gillette did just that. But when he showed up a couple of days later, suited and clean-shaven, Schwab and Holman “told him to call the barber up and see if he still had that hair around and could put it back on.” John Buttler, a business lawyer in private practice, was the third appointment. With the addition of civil cases to the court’s docket, the appointment of a lawyer with experience in private law was seen as a necessity.

The fourth appointment went to state Sen. Betty Roberts. Gov. Straub knew Roberts from her work in the legislature (she was, among other things, a co-sponsor of Oregon’s famous Bottle Bill) and was very interested in appointing her to the bench. He called her and offered her the choice of an appointment to the trial bench or to the Court of Appeals. “Without hesitation,” she later recalled, she chose the appellate court, being attracted to the challenge and the variety of the court’s cases. Her appointment represented the first of a woman to the Court of Appeals and, in fact, on any Oregon appellate court. (She went on to be the first woman to serve on the Oregon Supreme Court, as well.)

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Looking Forward

For the next 35 years, the court’s number remained stable at 10 judges, divided into three panels of three judges each, with the chief judge working as the administrator of the court and routinely substituting for other judges on an as-needed basis. During those three and one-half decades, 29 additional judges have been appointed or elected to fill the 10 seats on the court. George R. Joseph served as the court’s chief judge following Schwab’s retirement in 1981 until his own retirement in 1992. He was succeeded by William L. Richardson, Mary J. Deits, David V. Brewer and Rick Haselton, respectively. Among those who have served on the Court of Appeals are 14 past or present members of the Oregon Supreme Court and one judge of the U.S. Court of Appeals for the 9th Circuit.

Although the court’s number remained stable, its work did not. It continued to grow. And grow. By 1983, the number of appeals had grown to 3,500. In an article published in this Bulletin that year, then-Chief Justice Ed Peterson remarked of the Court of Appeals, “Man, they do work hard. They read briefs, opinions and other materials at every opportunity. They are serious about their work. Unfortunately, they have little else to be serious (or happy or sad or grateful) about, for they have time for little else.”

By the early 1990s, the number of appeals exceeded 5,000. By 2009, the number of appeals dropped back to its mid-1980s levels, at around 3,500 per year — still nearly double the number of appeals that precipitated the expansion of the court in 1977. The court issued more than 2,100 case dispositional decisions and issued 503 authored opinions.

In 2009, then-Chief Judge Dave Brewer commissioned a study by the National Center for State Courts (NCSC) on the workload of the Oregon Court of Appeals. In brief, the study concluded that, “(b)y any accepted measure,” the court remains “one of the busiest, most productive and most overworked, appellate courts in the nation.” The study concluded that, for the court to meet the demand of its current workload — not taking into account expected growth in the court’s work — would require an additional 3.4 judges and associated staff. (The study concluded that meeting anticipated future demand without sacrificing the court’s quality and timeliness concerns could require as many as a dozen new judges and associated staff.)

Armed with the NCSC workload study, the Oregon Judicial Department requested that the legislature authorize the expansion of the Court of Appeals to 13 judges. In 2011, the Legislative Assembly responded to the call for help. It passed House Bill 4026, which expanded the number of judges on the court to 13, effective October 2013, and authorized the governor to fill the positions by appointment. “We are profoundly grateful,” said Chief Judge Brewer in his 2011 annual report, “for the wise investment that the legislature has made in public justice,” by responding to the court’s workload needs. And, as of this writing, Gov. Kitzhaber and his staff are in the process of evaluating the applications of nearly 50 lawyers and judges for the three newly authorized positions.

Back in 1983, when writing of the judges on the Court of Appeals, Chief Justice Peterson mused, “I have scratched my head and said to myself, ‘Why do they do it?’ I don’t know, but we are lucky to have them.” We are, indeed. And we are soon to be lucky to have three more.

ABOUT THE AUTHOR Jack Landau is an associate justice on the Oregon Supreme Court. He served on the Oregon Court of Appeals from 1993-2010. Special thanks to Derek Simmons, who — while a law clerk at the Court of Appeals — recorded interviews with Justice Holman and Chief Judges Schwab and Joseph. Thanks also to Sarah Walinsky-Harrington for much research assistance. © 2013 the Hon. Jack Landau

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Panel 2: The Best Oregon Court of Appeals Cases Ever

Speaker Bios

The Honorable Robyn Ridler Aoyagi was appointed to the Oregon Court of Appeals by Governor Kate Brown in July 2017.

Before joining the Oregon Court of Appeals, Judge Aoyagi was a partner at the law firm Tonkon Torp LLP in Portland, where her practice focused on appellate law and trial court motions practice. During her 17 years in private practice, Judge Aoyagi gained experience in a wide variety of subject matters and is especially familiar with complex civil litigation.

Judge Aoyagi was born in Seattle and raised in Roswell, New Mexico. She received her B.A. from Tufts University (1995) and her J.D. from Harvard Law School (1999). Judge Aoyagi interned during law school with the Massachusetts Public Interest Research Group (MASSPIRG), the U.S. Environmental Protection Agency (Region I), and the United Nations Framework Convention on Climate Change in Bonn, Germany. After graduating, Judge Aoyagi worked as a judicial clerk at the District of Columbia Court of Appeals.

While in practice, Judge Aoyagi served on the Executive Committee of the Appellate Practice Section of the Oregon State Bar for five years, including as its Chair in 2015. She was twice elected to the Oregon State Bar's House of Delegates. She also served on the Executive Board of the American Bar Association's Council of Appellate Lawyers from January 2015 until July 2017. Judge Aoyagi was a board member of Portland Story Theater from 2013 to 2019.

Marc Brown is Chief Deputy Public Defender in the Appellate Division of the Office of Public Defense Services (OPDS). Prior to joining OPDS, Marc taught political science at Washington State University-Vancouver. In 2014, Marc received a Fulbright to teach Constitution Law at South China University of Technology College of Law in Guangzhou, Guangdong, China. In 2017, Marc received a Global Initiative Academic Network (GIAN) grant from the Government of India to teach a comparative constitution course at Shivaji University College of Law in Kolhapur, Maharashtra, India. Marc will be returning to Guangzhou as a visiting professor in November, 2019. Prior to attending University of Idaho College of Law, Marc was a bus driver in Denali National Park and North Cascades National Park.

Paul J. De Muniz is a former appellate judge having served for more than 22 years on the appellate bench including as chief justice of the Oregon Supreme Court, retiring from the Supreme Court at the end of 2012. Following his retirement from the Oregon Supreme Court, De Muniz founded one of the first legal clinic’s in the country that provides free legal advice to individuals re-entering the community from prison. De Muniz is the author of Oregon Criminal Procedure and Practice, used by lawyers and judges throughout the state, co-author of American Judicial Power: The State Court Perspective, a legal treatise on the importance of state court’s in America, and the author of a novel, The Debt: An American Lawyer Fights for Justice in Russia. De Muniz graduated from Portland State University in 1972 and Willamette University College of Law in 1975. He currently teaches at Willamette University College of Law as a Distinguished Jurist in Residence. De Muniz is a Vietnam war veteran.

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Denise Fjordbeck says that, like her esteemed colleague, “I was born in Eastern Oregon. I graduated from the Honors College at the University of Oregon, and because Oregon offered me a full ride for law school, I am a Double Duck. I spent several years in private practice in Eugene. In that capacity, I briefed and argued a number of cases in the Court of Appeals; my first published opinion, State ex rel Roberts v.Duco-Lam, was authored by Gillette, P.J. In 1990, I accepted a position as one of the first women lawyers in the Trial Division of the Department of Justice. In 1997, I retired to the Appellate Division, and since that time, I have exclusively practiced in state and federal appellate courts. Since 2008, I have been the Attorney-in-Charge of Civil and Administrative Appeals.” W. Michael Gillette grew up in Milton-Freewater, Oregon. After graduating from Whitman College and Harvard Law School, he briefly practiced with the Portland firm of Rives and Rogers before serving as an attorney with Multnomah County, American Samoa, and the State of Oregon. He was Chief Trial Counsel for the Consumer Protection Division, and then Solicitor General for the State of Oregon, before joining the Court of Appeals in 1977. In 1986, he was appointed to the Supreme Court by Governor Atiyeh, where he served until retiring from the Court in 2006. After leaving the bench, he joined the Portland law firm of Schwabe, Williamson & Wyatt, where he continues to practice.

Derek Green (moderator) is an energy and litigation attorney who represents and counsels clients on regulatory compliance and commercial disputes. Routinely working with clients in the renewable energy, manufacturing, and financial sectors, his goal is to help clients put their best foot forward – whether that is before an appellate court, a government agency, or across the table of a boardroom.

Derek also has broad experience in media litigation, and has represented media interests from the trial courts to the U.S. Supreme Court. A former fellow with the Reporters Committee for Freedom of the Press, Derek has published and presented on a range of media topics, including freedom of speech, access to information, and anti-SLAPP laws.

Before joining Davis Wright Tremaine, Derek clerked for the Hon. Robert Beezer with the U.S. Court of Appeals for the 9th Circuit. He currently serves as the Chair of the Oregon State Bar’s Appellate Practice Section and a Program Manager for the Oregon Appellate Pro Bono Program. Lindsey H. Hughes is a partner with Keating Jones Hughes, P.C. She is a graduate of Willamette University School of Law and a member of the Oregon, Washington and Idaho Bar Associations. Lindsey defends professional liability claims against lawyers, medical and mental health providers, hospitals, non-profits providing community and residential services, and other entities. Lindsey has a focus on appellate litigation in state and federal courts and is a Fellow of the American Academy of Appellate Lawyers. She is the chair of the OADC Amicus Committee, and she also serves on the OSB Litigation Section Executive Committee.

David Schuman is a Professor of Practice at the University of Oregon School of law. He is a retired Oregon Court of Appeals Judge. He received an undergraduate degree from Stanford University, an M.A. from San Francisco State University, a Ph. D. in English Literature from the University of Chicago, and a law degree from the University of Oregon Law School. Before law school, he was an English professor. He was a clerk for Justice Hans Linde of the Oregon Supreme Court. He was assistant

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attorney general in the Appellate Division of the Oregon Department of Justice. Judge Schuman then joined the University of Oregon Law School faculty, teaching constitutional law, criminal procedure, legislation, and administrative law. He also served as Associate Dean for Academic Affairs. He was Deputy Attorney General for four years. In 2001, Governor John Kitzhaber appointed him to the Oregon Court of Appeals. He was elected and reelected, then retired in 2014. His publications include "The Creation of the Oregon Constitution," Oregon Law Review (1995) and “Using State Constitutions to Find and Enforce Civil Liberties,” Lewis & Clark Law Review (2011).

The Honorable Scott A. Shorr was appointed to the Oregon Court of Appeals by Governor Kate Brown and began service in January 2016.

Prior to his appointment, Judge Shorr was a managing partner at the Stoll Berne law firm in Portland, Oregon where he practiced for nearly twenty years. He represented clients in commercial litigation, securities fraud disputes, and appeals. He argued cases in state and federal appellate courts, including before the United States Supreme Court, and in state and federal trial courts.

Judge Shorr received his undergraduate degree from Vassar College (A.B.1990) where he played Division III soccer. He attended the University of Oregon School of Law and graduated from the University of California, Berkeley, School of Law (J.D. 1995). He began his legal career as a law clerk to Justice Richard L. Unis on the Oregon Supreme Court. He previously served on the Oregon Law Commission and has served on the board of several community non-profit organizations, including Hands On Greater Portland.

Alycia Sykora is a lawyer in Bend. She received an undergraduate degree from the University of Michigan, a law degree from the University of Oregon, then clerked for Justice George A. Van Hoomissen on the Oregon Supreme Court. After serving as an honors attorney for the Oregon Department of Justice, she has worked in private practice. She serves on the Board of Directors of the Oregon Lawyers Chapter of the American Constitution Society, the Oregon State Bar Constitutional Law Section, and the Deschutes County Bar Association. She is an appointed commissioner on the Oregon Bench and Bar Commission on Professionalism. Each fall, she assembles an annual Constitution in the Classroom Project, matching local attorneys with teachers for Constitution Day, and reaching thousands students each fall in Central Oregon. She received the Edwin J. Peterson Professionalism Award in 2015. Alycia also is a pro tem judge and an arbitrator for the Deschutes County Circuit Court.

Jim Westwood is Senior Counsel to Stoel Rives LLP and concentrates his practice in state and federal appellate courts. Well known as a constitutional scholar, Jim has handled more than 200 appeals, including important cases in state and federal constitutional law, energy, administrative law, insurance, banking, and punitive damages.

Previously, Jim was associate and partner at Miller Nash Graham & Dunn LLP (1974-1976, 1978-1999), and assistant to the President at Portland State University (1976-1978).

A fifth generation Oregonian, Jim has worked as a television meteorologist and served as an officer in the U.S. Navy (Naval Security Group) in Southeast Asia.

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Greatest Hits in Administrative Law By the Oregon Court of Appeals

Denise Fjordbeck & Justice Mick Gillette Thesis: Judicial review in the Court of Appeals exists to ensure that the administrative process is fundamentally fair to the “consumer.” Sun Ray Dairy v. OLCC, 16 Or App 63, 517 P2d 289 (1973): A broad delegation of legislative authority requires that an agency adopt rules to establish standards for applying the statute. Home Plate v. OLCC, 20 Or App 188, 530 P2d 862 (1975): Meaningful judicial review requires a detailed and precise explanation of the agency’s exercise of delegated authority where the criteria established by statute and rule are not themselves specific; “brevity is not always a virtue.” Reynolds School Dist. No. 7, 30 Or App 39, 566 P2d 196 (1977): An agency order is insufficient for purposes of review if it is not supported by substantial reason, an explicit statement of the facts found, the controlling principles of law, and the rational relationship between the two. Villanueva v. Board of Psychologist Examiners, 175 Or App 345, 27 P3d 1100 (2001): A notice of proposed disciplinary action must include a specific reference to the statute, rule, or ethical principle under which it purports to act, even if there is no prejudice to the subject of the notice. Grobovsky v. Board of Medical Examiners, 213 Or App 136, 159 P3d 1245 (2007): Board order requiring licensee to undergo an alcohol evaluation was not a final order and could be challenged in a subsequent contested case hearing based on her refusal to attend the evaluation. Read v. Oregon Medical Board, 244 Or App 603, 260 P3d 771 (2011): The court’s review of an agency’s exercise of discretion under ORS 183.482(8)(b) includes an assessment of whether the civil penalty imposed is proportionate to the offense, which did not involve patient care or public safety. Bridgeview Vineyards, Inc. v. Oregon State Land Bd., 258 Or App 351, 309 P3d 1103 (2013): In an “order in other than contested case” proceeding under ORS 183.484, the circuit court was required to allow the petitioner to supplement the evidentiary record before determining whether the decision was supported by substantial evidence. Miller v. Board of Psychologist Examiners, 289 Or App 34, 407 P3d 935 (2017): Licensee who has had a full hearing on an emergency suspension is also entitled to a contested case hearing on

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the issue of whether her license should be revoked. Although the same operative facts were is play, issue preclusion does not bar the licensee from litigating whether revocation is warranted. King v. Board of Licensed Professional Counselors, 291 Or App 401, 420 P3d 23 (2018): imposition of a discretionary sanction is not appropriate for summary determination without a hearing, even on uncontested facts.

Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Commission, 16 Or.App. 63, 517 P.2d 289 (1973)

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 27

16 Or.App. 63 Court of Appeals of Oregon.

SUN RAY DRIVE-IN DAIRY, INC., Petitioner, v.

OREGON LIQUOR CONTROL COMMISSION, Respondent.

Argued and Submitted Nov. 26, 1973. |

Decided Dec. 24, 1973.

Synopsis Appeal from order of Liquor Control Commission denying application for class B package store liquor license. The Court of Appeals, Tanzer, J., held that where the court was unable to ascertain issues or standards against which the evidence was to be measured, the court was unable to review for substantial evidence the findings of fact made by the Commission, and that the Commission must formulate and publish broad bases upon which decisions regarding issuance of liquor license will be made. Reversed and remanded with directions.

Attorneys and Law Firms

*64 **290 D. S. Denning, Jr., Vale, argued the cause for petitioner. With him on the brief were Schroeder, Denning & Hutchens, Vale.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and TANZER, JJ.

Opinion

TANZER, Judge.

Petitioner appeals from an order of the Oregon *65 Liquor Control Commission denying its application for a Class B Package Store liquor license1 for its store in Ontario, Oregon. The commission based its refusal on ORS 471.295(1)2 which provides that the commission may refuse to license an applicant if it has reasonable ground to believe that there are ‘sufficient licensed premises in the locality’ or that the granting of the license is ‘not demanded by public interest or convenience.’ The commission found as ultimate facts that there were sufficient licensed

premises in the area, there were local objections to issuance of the license and that the applicant was not a grocery store, and denied the application.

The evidence at the hearing on petitioner’s application showed that petitioner is a corporation doing business in Idaho and Oregon. At the time of the hearing petitioner had 12 stores in Idaho and two *66 stores in Oregon. Petitioner’s stores specialize in the sale of convenience grocery products and beverages. At the time of the hearing, petitioner’s Ontario store had a grocery inventory of $6,000 to $7,000, restocked weekly, and the store’s monthly grocery sales were shown to be in the area of $7,000 to $9,000, the major share of which was dairy and bakery products processed or baked by petitioner. In addition to groceries, petitioner’s Ontario store sells gasoline under a commission arrangement with the Time Oil Company.

Various persons employed by the licensing division of the commission testified at the hearing on petitioner’s application. Mr. William Alexander, a liquor control officer, testified that he had done a background investigation of the applicant and **291 made a survey in the area to determine people’s attitudes toward whether petitioner’s application should be granted. Mr. Alexander initially testified that he recommended refusal of petitioner’s application because of (1) objections of area residents; (2) the large number of existing outlets; and (3) the fact that petitioner’s store did not have a broad inventory of groceries. However, he subsequently abandoned the last ground. He testified that even if the petitioner’s store had been a Safeway, he would have recommended refusal because of the number of outlets already in the area. Mr. Alexander’s ‘conservative’ estimate was that there were 15 Class B Package Store licensees in Ontario.

Mr. Alexander’s recommendation of refusal was passed on to his direct superior, Mr. Charles Miller, who testified that he reviewed Mr. Alexander’s report and agreed that the application should be denied. Mr. Miller’s reasons, like Mr. Alexander’s, were (1) that there were sufficient licensed places in the area (eight outlets in an eight or nine block area), and (2) that *67 there had been objections from area residents. Mr. Miller testified that he had no ‘yardstick’ to go by, and that his recommendation was based on his ‘past experience and judgment.’

Mr. Miller’s recommendation was, in turn, passed on to Mr. Don Church, the commission’s director of licensing. Mr. Church testified that the number of other licensees in a particular area was not a factor in deciding whether to issue a license; rather, the main factor, in his opinion, was

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000534&cite=ORSTS471.295&originatingDoc=I0075947bf78f11d983e7e9deff98dc6f&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Default)




whether the operation in question was a ‘legitimate grocery store.’ Mr. Church stated that if a store is deemed by the commission to be a ‘legitimate grocery store,’ the commission’s policy is to grant the store a Class B Package Store license, regardless of how many other licensees are in the immediate area. The reason for his recommendation of denial to the commission, Mr. Church said, was that petitioner’s store had been represented to him in the reports from his subordinates as a ‘gasoline station with dairy products.’ Mr. Church concluded from the evidence he heard at the hearing that petitioner’s store more closely approximated a ‘legitimate grocery store’ than he had supposed, but that there would have to be still greater expansion of the scope of petitioner’s inventory and the number of items of each type before he would recommend approval. Mr. Church expressed concern, for example, that the store’s inventory listed only three packages of Birdseye creamed peas.

Petitioner gave evidence that several similar businesses in the Ontario area and neighboring cities, some with significantly smaller grocery inventories and one that appears to be an ordinary gas station, had package licenses.

The commission then made the following findings *68 of fact and ultimate facts upon which the denial of license is based:

‘FINDINGS OF FACT

‘Sun Ray Drive-In Dairy, Inc., an Idaho corporation, authorized to do business in Oregon, applicant for Package Store Class B license in trade name ‘Sun Ray Dairy’, 425 S.W.4th, Ontario, Oregon, through its representatives D. S. Denning, Jr., Attorney at Law, Vale, Oregon, and its President Ray Ayers of Boise, Idaho, factually demonstrated that the organization has been in business in Idaho since 1961, starting with the sale of dairy and bakery products; that they now have fourteen stores in operation and that their Sun Ray Dairy store in Ontario during the month of January, 1973, made gross sales of $15,797.25 plus sales of dairy and food litems of $8,909.18; that theirs is a ‘convenient convenience’ store with inventory running about 6 to $7,000.00 which inventories are refilled weekly. There were local objectors to the issuance of PB license to the applicants. There are fifteen licensed outlets for beer sales in Ontario, with five outlets within four blocks of the applicant. The listed inventory was not sufficient for a grocery store. The Commission particularly noted applicant’s **292 inventory listed one can of beef stew, three—twelve ounce packages of weiners, two cans of chili, three cans of pork and beans and one Quaker Oats together with other groceries and dairy products.

‘ULTIMATE FACTS

‘There are sufficient licensed premises in the locality of the application. There were local objections to the issuance of Package Store Class B license to the applicant. The applicant’s inventory is not sufficient for a grocery store.’ [1] Petition asks that we reverse the findings of fact, contending that the proof of each ultimate fact *69 was otherwise. We are unable to review for substantial evidence because we are unable to ascertain the issues or the standards against which the evidence is to be measured. How many licensed premises are ‘sufficient’ in the ‘locality’?3 Is sufficiency to be measured by population density, supply and demand, geographical area to be covered, other factors, or a combination of factors? How are public objections to be weighed?4 What ratio of acceptability should be required? Within what area of the license applicant? Finally, are all grocery stores entitled to a package license? If so, how is ‘grocery store’ defined?

The legislature has not answered these questions by statute. ORS ch. 471 dealing with the issuance of liquor licenses does not purport to articulate the circumstances under which a license must be granted. Rather, ORS 471.295 is phrased in the negative, providing that the commission may refuse to license any applicant if it has reasonable ground to believe any of a number of specific or general conditions exist. While a liquor license is a ‘purely personal privilege,’ ORS 471.301(1)(a), it is also a thing of substantial value to the applicant. The negative context of the statute implies that an applicant is entitled to a license so long as certain circumstances set out in the statute or in implemental regulations are not shown to be true.

*70 The commission has not published rules or regulations establishing standards by which the statutory grounds for refusal for ‘sufficient licensed premises in the locality’ or that the license ‘is not demanded by public interest or convenience,’ ORS 471.295(1), are to be applied. Instead, the licensing personnel of the commission testified at the hearing as to the ‘policy’ of the commission. Those policies, the testimony indicates, are informal and unwritten, drawn by the witnesses from their understanding of historical patterns of individual commission rulings. As such, they have the quality of folklore in that unwritten rules are passed on orally by culture carriers from one generation of employes to another, from one level of employes to another, without the stabilizing effect of the written word. [2] A legislative delegation of power in broad statutory language such as the phrase ‘demanded by public interest or convenience’ places upon the administrative agency a responsibility to establish standards by which that law is to






be applied. See Bergford v. Clack. Co./Trans. Serv., Or.App., 97 Adv.Sh. 2319, 515 P.2d 1345 (decided November 19, 1973), and Warren v. Marion County, 222 Or. 307, 353 P.2d 257 (1960). The legislature has provided for such rule making in the Administrative **293 Procedures Act, ORS 183.355 et seq. [3] Compliance with the Administrative Procedures Act is much more than an act of technical legal ritual. Unwritten standards and policies are no better than no standards and policies at all. Without written, published standards, the entire system of administrative law loses its keystone. The ramifications affect every party and every procedure involved in the fulfillment of the agency’s responsibility under the law, e.g., the public, the applicant, agency personnel, the participants *71 in the hearing, the commission, the legislature and the judiciary.

The policies of an agency in a democratic society must be subject to public scrutiny. Published standards are essential to inform the public. Further, they help assure public confidence that the agency acts by rules and not from whim or corrupt motivation. In addition, interested parties and the general public are entitled to be heard in the process of rule adoption under the Administrative Procedures Act.

An applicant for a license should be able to know the standards by which his application will be judged before going to the expense in time, investment and legal fees necessary to make application. Thereafter, he is entitled to even treatment by rule of law and reasonable confidence that he has received such treatment. This cannot be achieved without published rules. [4] [5] Cases are usually disposed of without litigation. In most situations, the law and the agency policy are expressed in the actions of agency personnel who deal with the public. Written standards and policies are essential to assure an acceptable degree of consistency of practice among the personnel of the agency. In this case, as an example of what occurs in the absence of rules, the field investigator and his supervisor each recommended against approval because of the number of licensees already in the area, but the director of licensing who was in charge of their activities testified that the number of preexisting outlets was not significant. He recommended disapproval because applicant was not a grocery store. The order of the commission, however, adopts both reasons as grounds for its denial. An administrative agency cannot properly perform its *72 duty under the law unless employees at all levels work toward the same objectives under a clear direction of policy from the head of that agency, in this case the commission. The public is entitled to consistency of enforcement from the agency. That situation cannot be achieved in the absence of written standards.

[6] The parties to a hearing of a contested case must know what is to be heard in the hearing. The agency and the applicant are entitled to know what they are required to prove and disprove in order to gather and present their evidence. The hearings officer must have standards so that he can determine questions of materiality an relevance and propose appropriate findings and conclusions to the commission.

Written standards enable the decision-making body, in this case the commission, to make its decisions by rule of law rather than for subjective or ad hominem reasons. In this case, for example, the applicant introduced evidence of several similar businesses in the area which had package licenses. There is no way for him or for us to know whether he was singled out for discriminatory treatment or whether he was subjected to the same policy standards which were employed when the other comparable outlets were licensed and renewed. We recognize the wide discretion vested in the commission by its enabling legislation, See, e.g., Olds v. Kirkpatrick, 183 Or. 105, 191 P.2d 641 (1948), Perry v. Oregon Liquor Commission, 180 Or. 495, 177 P.2d 406 (1947), but that discretion is not unbridled. It is discretion to make policies for even application, not discretion to treat each case on an ad hoc basis. The danger of inconsistent, subjective and ad hominem decision making is minimized by the deliberate adoption of written, published policy standards applicable alike to all applicants.

*73 **294 The legislature is entitled is entitled to know whether or not the policies and practices of the agency are consistent with the legislative policies upon which the delegation of legislative power to the agency is based. In the absence of published rules, members of the legislature must form their judgments instead upon rumor, individual cases, isolated news reports and other fragmentary, impressionistic and often unreliable sources of information. Published standards are necessary to the proper performance of the duty of legislative oversight of executive agencies operating under legislative delegations of power.

[7] Finally, and most directly applicable to this case, the parties to a contested case are entitled to judicial review under ORS 183.480. Judicial review is among the safeguards which serve to legitimatize broad legislative delegations of power to administrative agencies. See Warren v. Marion County, supra. In the absence of standards, however, the courts are unable to perform that task of judicial review. We cannot determine whether substantial evidence supported the findings because we cannot know what as in issue at the hearing. For example,

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we do not have a definition of ‘grocery store’ within the purposes of ORS ch. 471 and, if we did, we are unable to ascertain the legal significance of a finding under that definition. It is not for the court, but for the administrative agency with its statutory mandate and its expertise to develop standards. See Davis, Administrative Law Text 36—41, s 2.06 (1972), Van Ripper v. Liquor Cont. Com., 228 Or. 581, 365 P.2d 109 (1961). Were we to decide this case in the absence of administratively adopted standards, we would necessarily either be imposing court-made standards on the agency or we would ourselves be guilty of subjective decision making. Either role *74 would be deleterious to the ability of the agency to fulfill its proper administrative role. Until the commission adopts appropriate rules, we cannot perform our judicial function.

Therefore, we vacate the order, remand this case and direct that the Oregon Liquor Control Commission not act on petitioner’s application until it has first adopted rules pursuant to the administrative Procedures Act, ORS ch. 183, designed to accomplish the legislative purposes of ORS 471.260 and 471.295(1) which will be applicable to this applicant as well as to all other applicants for issuance or renewal of licenses alike. [8] We do not require the impossible. We require that the agency formulate and publish the broad bases upon which decisions regarding issuance of liquor licenses will be made. To use an example pertinent to this case, if the commission wishes to restrict the issuance of Class B Package Store licenses to ‘grocery stores,’ it should (a) state that criterion in a published administrative regulation

which has run the gauntlet of notice, hearing and publication under the Administrative Procedures Act; and (b) go on to define in a meaningful way what is meant by that term within the statutory purpose. Definitions need not be so meticulous as to be unworkable. Board of Medical Examiners v. Mintz, 233 Or. 441, 447, 378 P.2d 945 (1963). For instance, the commission need not and, indeed, probably should not specify the precise volume of frozen creamed peas, beef stew, weiners, chili, pork and beans or oats which the store must stock to qualify. On the other hand, we see no major difficulty in the commission’s formulating guidelines which may appear to the commission to be factors in the determination of *75 whether denial of a license to a given store is within ‘the public interest or convenience.’ Similarly, if certain criteria are more or less important than others, that fact should also be articulated. In this case, for example, the commission’s director of licensing testified that the number of outlets in the applicant’s area is not very important (at least to him) and that the important factor is whether the store is a ‘legitimate grocery store.’ If his belief accurately reflects commission policy, such a priority should **295 be set out in published form for the guidance of applicants and agency personnel alike.

Reversed and remanded for further proceedings consistent with this opinion.

All Citations

16 Or.App. 63, 517 P.2d 289

Footnotes 1

ORS 471.260 provides as follows: ‘(1) A package store license shall allow the retail sale of certain specified types of alcoholic liquor in sealed packages. Package store licensees shall not permit the consumption of alcoholic liquor upon their licensed premises unless such licensee holds another license that permits such consumption. ‘(2) Package store licensees shall be of two classes: ‘(a) Class A package store license, which shall allow the sale of pasteurized malt beverages containing not more than four percent of alcohol by weight. ‘(b) Class B package store license, which shall allow the sale of pasteurized malt beverages containing not more than eight percent of alcohol by weight and wine containing not more than 14 percent of alcohol by volume.’

2

ORS 471.295(1) provides as follows: ‘The commission may refuse to license any applicant if it has reasonable ground to believe any of the following to be true: ‘(1) That there are sufficient licensed premises in the locality set out in the application, or that the granting of a license in the locality set out in the application is not demanded by public interest or convenience.’

3

Mr. Alexander described the density of package store outlets as 15 in Ontario. Mr. Miller described 18 outlets in an eight or nine block area. The findings of fact assert yet a third figure of five outlets within four blocks of the applicant. Our review of the record does not disclose the source of that statistic.

4

The record reveals that 12 individuals were interviewed by the inspecting officer. Of the 12, seven objected to the issuance of the license, while five did not object. Of the seven objectors, four were associated with gasoline stations in the vicinity of petitioner’s store, and were apparently concerned primarily with petitioner’s proposed selling of liquor and gasoline at the same establishment.











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Some of The Best Oregon Court of Appeals Cases Ever, in Constitutional Law

David Schuman and Alycia Sykora September 6, 2019

Article VII (Amended), sections 1 and 2b Carey v Lincoln Loan Co., 203 Or App 399 (2005), aff’d 342 Or 530 (2007) The Court of Appeals determined that Article VII (Amended), section 2b assumes that section 1 gave the legislature the authority to create courts inferior to the Supreme Court. The valid adoption of section 2b in 1962 validated section 1 enacted in 1910. Thus, the Court of Appeals validated its existence. The Supreme Court affirmed: The “irregularities, if any, in the adoption of Article VII (Amended) in 1910 have been cured by the implicit subsequent validation of that article by the people. We therefore hold that Article VII (Amended) is now valid. It follows that the creation of the Court of Appeals in 1969, pursuant to the authority granted by Article VII (Amended), section 1, was within the legislature's authority.” 342 Or at 543. Article VII (Amended), section 3 Williams v Joyce, 4 Or App 482, rev den (1971) (held: money award, by an administrative body, for racial discrimination in housing does not violate Article VII (Amended), section 3) “The right of an administrative agency to award damages for racial discrimination has not heretofore been considered by an Oregon appellate court. Racial discrimination laws are of recent origin and there is a paucity of appellate decisions.” Id. at 520. “The protection of the individual from the effects of racial discrimination is a new function of government.” Id. at 522. “There is no constitutional impediment which bars the legislature from authorizing an administrative agency to award damages.” Id. at 522. “We conclude that in the absence of any contention that the award for humiliation was excessive, the trial court erred in setting it aside.” Id. at 524. Schipporeit v Roberts, 308 Or 199 (1989) noted Williams’ importance. In 1977, the legislature amended laws so that housing-discrimination claims could be brought in court rather than exclusively through BOLI. Before 1977, “the only statement that [BOLI] had authority to award money damages to victims of housing discrimination was found in a Court of Appeals case, Williams v Joyce.” Id. at 203. “Although [the Williams] analysis was never adopted by this Court, the legislature was aware of and apparently accepted the power of the Commissioner to award money damages when it amended ORS chapter 659 in 1977.” Id. at 204. Tenold v Weyerhaeuser Company, 127 Or App 511 (1994), rev dismissed, 321 Or 561 (1995) (held: jury verdict entered for plaintiff for $2.5 million is affirmed over defendant’s request to apply the $500k statutory damages cap) (but see Horton v OHSU, 359 Or 168 (2016) (noneconomic damages cap does not violate Article VII (Amended), section 3). Article VII (Amended), section 3, precludes courts from disturbing jury verdicts that have any evidence to support the verdict. “The jury are the exclusive judges of all questions of fact.” Id. at 524 (quoting State v Hill, 62 Or 451, 459 (1912)). The statutory damages cap “requires the court to apply the monetary standard in every

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case, whether or not the evidence supports the jury’s higher damage award. Article VII (Amended), section 3, was designed to prevent that practice, because the people chose to make jurors the exclusive judges of the facts regarding the extent of a plaintiff’s damages. * * * [A] jury’s verdict on damages, which is supported by the evidence, is a ‘fact tried by a jury’ under that amendment, and [the statutory cap] violates that amendment, because it compels the court to reexamine the verdict by requiring the court to nullify the jury’s factual determination [if] it exceeds the legislature’s damage cap.” Id. at 524-25. “The constitution deals with substance, not shadows.” Id. at 525 (quotation omitted). Greist v Phillips, 128 Or App 390 (1994), rev’d, 322 Or 281 (1995) (wrongful death action for infant killed because an oncoming truck had “bad brakes”; jury awarded $1.5 noneconomic damages and trial court reduced that to the $500k statutory cap) The Court of Appeals concluded (reversed by the Oregon Supreme Court): “Although an action for wrongful death is a statutory action, it is also a civil action and, as such, is within the reach of [the statutory damages cap]. Consequently, the jury’s factual determination as to damages is subject to the constitutional requirements of Article VII (amended), section 3.” Id. at 393. Article I, section 20 Tanner v OHSU, 157 Or App 502 (1998), rev den, 329 Or 528 (1999) (held: OHSU’s denial of insurance benefits to the unmarried domestic partners of its homosexual employees violated Article I, section 20). “Article I, section 20, does not prohibit only intentional discrimination.” “What is relevant is the extent to which privileges or immunities are not made available to all citizens on equal terms. * * * Homosexual couples may not marry. Accordingly, the [insurance] benefits are not made available on equal terms.” And as to mootness: “The voluntary cessation of a practice that is challenged in an action for declaratory and injunctive relief does not, in itself, render an action moot. If the law were otherwise, wrongdoers could cease their wrongdoing as soon as complaints are filed and resume the wrongdoing as soon as the complaints are dismissed for being moot.” Article I, section 8 State v Ciancanelli, 181 Or App 1 (2002), rev’d, 339 Or 282 (2005) An Oregon law bars people from financing or presenting a live public show in which the participants engage in sadomasochistic abuse or sexual conduct. The Court of Appeals held that defendant’s act of taking money from people who pay to observe girls engage in live sexual acts may involve some “expression,” but the statute criminalizing the promotion of a live sex show falls within a historical exception to the bar against laws restraining free expression. Thus, defendant’s convictions for promoting a live sex show, promoting prostitution, compelling prostitution, and using a child in a display of sexual conduct were upheld. The Court of Appeals (majority) wrote: “[M]erely engaging in conduct to attract the attention of an audience does not necessarily transform the conduct into protected expression. Homicide, for example, is conduct. Performing it in front of an audience does not transform it into protected expression.” The Court of Appeals’

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majority addressed the history of English and colonial prohibitions on public and private sexual conduct, noting that laws “prohibited ‘lascivious carriage,’ obviously referring to something other than a horse-drawn buggy. * * * Oregon was no different. In 1854, the Territorial Legislature prohibited ‘open and gross lewdness and lascivious behavior. * * * [And then] the legislature got more specific.” The Supreme Court reversed in part, holding that the statute criminalizing the promotion of a live sex show is facially unconstitutional because it is directed at expression and does not come within a historical exception. The other convictions were affirmed. The Supreme Court wrote: “It has become clear to this court, from the opinion below [and other commentary], that some students of this court’s jurisprudence are intent on reading the historical exception idea of Robertson more broadly than the Robertson court intended.” (See State v Robertson, 293 Or 402 (1982)).

Tanner v. Oregon Health Sciences University, 157 Or.App. 502, 971 P.2d 435 (1998)

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157 Or.App. 502

Court of Appeals of Oregon.

Christine A. TANNER; Barbara J. Limandri; Regenia M. Phillips; Lisa J. Chickadonz; Terrie A.

Lyons; and Kathleen A. Grogan, Respondents, v.

OREGON HEALTH SCIENCES UNIVERSITY, a Division of the State of Oregon; State Board of

Higher Education; a division of the State of Oregon; Executive Department of the State of

Oregon; The State of Oregon, and Oregon Health Sciences University, a public corporation,

Appellants, and

Public Employees’ Benefits Board, Appellant.

9201–00369; CA A94458. |

Argued and Submitted March 3, 1998. |

Decided Dec. 9, 1998.

Synopsis Lesbian university employees appealed university’s denial of insurance benefits to their domestic partners. The State Employees’ Benefits Board (SEBB) upheld the denial, and the employees petitioned for judicial review. The Circuit Court, Multnomah County, Stephen L. Gallagher, Jr., J., entered order enjoining the state from denying group insurance benefits to unmarried domestic partners of its homosexual employees, and state defendants appealed. The Court of Appeals, Landau, P.J., addressing issues of first impression, held that: (1) action was not moot as to university; (2) university’s denial of insurance benefits to employees’ domestic partners did not amount to sex discrimination in violation of statute defining unlawful employment practices; but (3) denial of benefits violated privileges and immunities clause of Oregon Constitution. Affirmed in part and reversed in part.


**437 *502 Robert B. Rocklin, Assistant Attorney General, argued the cause for appellants. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Carl G. Kiss, argued the cause and filed the brief for respondents.

Lynn–Marie Crider filed a brief amicus curiae for Oregon Public Employees Union, SEIU Local 503, AFL–CIO, CLC.

Lynn R. Nakamoto and Jennifer C. Pizer filed a brief amicus curiae for American Civil Liberties Union Foundation of *503 Oregon, Inc., and Lambda Legal Defense and Education Fund, Inc. Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and WOLLHEIM, Judge.*

Opinion

*505 LANDAU, P.J.

At issue in this case is the lawfulness of Oregon Health Science University’s (OHSU) denial of health and life insurance benefits to the unmarried domestic partners of its homosexual employees. Plaintiffs, who are three lesbian employees of OHSU and their domestic partners, initiated this action for judicial review of State Employees’ Benefits Board (SEBB) orders affirming the lawfulness of the denial and for declaratory and injunctive relief. Plaintiffs contend that OHSU’s actions violate ORS 659.030(1)(b), which prohibits discrimination in employment on the basis of the sex of an employee or the sex of any other person with whom the employee associates, as well as Article I, section 20, of the Oregon Constitution, which prohibits granting privileges or immunities not equally belonging to all citizens. Plaintiffs named as defendants OHSU, the State of Oregon, the State Board of Higher Education, the Executive Department, and SEBB. The matter was tried to the court. Following the trial, the 1995 Legislative Assembly enacted legislation transforming OHSU from a state university to a nonstate agency public corporation. The trial court ultimately concluded that OHSU’s denial of benefits violated both ORS 659.030(1)(b) and Article I, section 20, of the Oregon Constitution and entered an order enjoining the state from denying group insurance benefits to unmarried domestic partners of its homosexual employees. Defendants appeal, arguing that the trial court erred in concluding that OHSU violated either the statute or the constitution. Plaintiffs contend that the trial court’s judgment was correct in all respects. On our own motion, we requested briefing from the parties on the question whether the conversion of OHSU from a state university to a nonstate agency public corporation renders the action moot as to any defendants.

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We conclude that the action is moot as to all state agency defendants and that the case must be remanded with instructions to dismiss all claims against those defendants. We conclude that the case is not moot as to OHSU. As to the *506 merits of the controversy, we conclude that the trial court erred in declaring that OHSU violated ORS 659.030(1)(b). The evidence in this record does not support a claim for violation of that statute. We also conclude, however, that the trial court was correct in declaring that OHSU’s denial of insurance benefits to domestic partners of homosexual employees violates Article I, section 20, of the Oregon Constitution.

FACTUAL BACKGROUND

The relevant facts are not in dispute. Before this controversy arose, OHSU provided group health insurance benefits to its employees. It provided each employee a certain amount of money and authorized each employee to select insurance benefits within the limits of the money provided. In accordance with SEBB eligibility criteria, OHSU permitted employees to purchase insurance coverage for “family members.” Under the SEBB criteria, unmarried domestic partners of employees were not “family members” who were entitled to insurance coverage. **438 Plaintiffs are three lesbian nursing professionals employed by OHSU and their unmarried domestic partners. Each of the couples has enjoyed a long-term and committed relationship, which each wishes to continue for life. Each of the couples would be married if Oregon law permitted homosexual couples to marry. All three OHSU employees applied for medical and dental insurance benefits for their domestic partners. The OHSU benefits manager refused to process the applications on the ground that the domestic partners of the employees did not meet the SEBB eligibility criteria. Plaintiffs appealed to SEBB itself, and, in a series of 1991 letters, SEBB’s Case Management Committee upheld OHSU’s denial of benefits. Plaintiffs filed their complaint initiating this action. They petitioned for judicial review of a final order in other than a contested case, alleging that the 1991 SEBB letters constituted final orders and that the orders should be reversed on the ground that the denial of benefits violated ORS 659.030(1)(b) and Article I, section 20. In the same complaint, plaintiffs requested a declaratory judgment on the *507 same grounds as to the lawfulness of the denial and an injunction prohibiting OHSU from denying insurance benefits to domestic partners of homosexual

employees that are made available to spouses of married OHSU employees. The case was tried to the court in February 1995. At trial, the parties stipulated that OHSU paid the same amount of money for a fringe benefit package to all employees in a given category, without regard to marital status or sexual orientation. The parties further stipulated that, in administering its employee benefits program, OHSU treated heterosexual unmarried couples and homosexual unmarried couples the same. Plaintiffs declined to stipulate that OHSU did not intend its administration of the benefits to discriminate against gay and lesbian employees. In response, OHSU elicited testimony from the State Administrator of the Human Resource Management Division of the Department of Administrative Services that the sex or sexual orientation of employees was not taken into account in any way in the administration of state benefits programs. Plaintiffs offered no contrary testimony. The court took the matter under advisement. Meanwhile, the 1995 Legislative Assembly enacted legislation declaring that OHSU no longer is part of the State Board of Higher Education, but is instead an independent public corporation. Or. Laws 1995, ch. 162, §§ 2, 74. The new legislation further declares that the terms and conditions of employment at OHSU are to be determined and administered by the Board of Directors of OHSU:

“ORS 243.105 to 243.585 [pertaining to fringe benefits and deferred compensation plans for employees of state agencies] shall apply to the Oregon Health Sciences University until the Oregon Health Sciences University Board of Directors, in accordance with the provisions of any collective bargaining agreement, adopts a new personnel system or alternative employee benefit plan. Until such time as an alternative personnel system is adopted, the university shall exercise exclusive administrative authority and control over the system.”

Or. Laws 1995, ch. 162, § 10. The new legislation became effective July 1, 1995. Or. Laws 1995, ch. 162, § 95. The transfer of *508 employees from the State Board of Higher Education was to be completed by January 1, 1996. Or. Laws 1995, ch. 162, § 43. On the basis of the new legislation, defendants1 filed a supplemental memorandum










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of authority and requested that the case be dismissed as moot. Plaintiffs opposed the motion. On June 14, 1996, the trial court issued a letter opinion concluding that the denial of benefits to plaintiffs and their domestic partners violated ORS 659.030(1)(b) and Article I, section 20. The court did not address defendants’ request that the case be dismissed as moot. Shortly after that, plaintiffs prepared a proposed form of judgment. Defendants objected to the form of judgment, contending **439 that, among other things, it applied to state agency defendants that no longer had any interest in the controversy. On August 12, 1996, the court entered its judgment, containing findings of fact and conclusions of law. The judgment enjoined the State of Oregon, OHSU, SEBB, and the State Board of Higher Education from continuing the practice of denying group life, health, and dental insurance coverage to domestic partners of homosexual employees when those benefits are offered to spouses of heterosexual employees. The judgment defines “domestic partners” as homosexual persons not related by blood closer than first cousins who are not legally married, who have continuously lived together in an exclusive and loving relationship that they intend to maintain for the rest of their lives, who have joint financial accounts and joint financial responsibilities, who would be married to each other if Oregon law permitted it, who have no other domestic partners, and who are 18 years of age or older. The judgment awarded plaintiffs their costs and attorney fees. Defendants appealed. While the appeal was pending, the legislature enacted legislation abolishing SEBB and transferring all of SEBB’s duties to a newly created Public Employees’ Benefits Board (PEBB). Or. Laws 1997, ch. 22. The parties submitted a stipulated motion for substitution of PEBB for SEBB and for an order directing the trial court to *509 enter an amended judgment reflecting that change. The motion was allowed, and the trial court amended the judgment accordingly. That legislation otherwise has no effect on this litigation. Also while the appeal was pending, OHSU adopted an employee benefit plan that now provides fringe benefits for the domestic partners of its employees, whether or not they are married. It continues to take the position, however, that it is not legally obligated to provide such benefits.

PRELIMINARY ISSUES: JUSTICIABILITY Before we address the merits of the parties’ positions as to the judgment in this case, we must address the extent to which there is a justiciable controversy. Defendants raised the issue to the trial court—twice, in fact. The trial court did not address defendants’ contentions. Oddly, defendants made no mention of justiciability in their briefs on appeal. On our own motion, however, we asked the parties to address the justiciability of the issues raised.2 We did so because neither the acquiescence of the trial court nor the failure of parties to address the issue on appeal can confer authority on the courts to issue an opinion in the absence of a justiciable controversy. Barcik v. Kubiaczyk, 321 Or. 174, 186, 895 P.2d 765 (1995). The exercise of judicial power requires a concrete controversy that results in a decree that binds parties having adverse legal interests. Brown v. Oregon State Bar, 293 Or. 446, 449, 648 P.2d 1289 (1982). Regardless of the perceived importance of the legal issues presented, Oregon courts do not have the constitutional authority to render advisory opinions. Id. In response to our queries as to the possible mootness of some or all of the claims presented against some or all of the defendants, defendants take the position that the case *510 is moot as to all defendants except OHSU. According to defendants, given the transformation of OHSU to a public corporation, the state no longer has an interest in the outcome of the case and cannot be bound by any judgment that results. Plaintiffs take the position that there remains a live controversy as to all defendants. They assert two justifications for their position. First, they argue that they are, in effect, acting in a representative capacity for all similarly situated homosexual couples, whether employed **440 by the state or not, and that, as a result, the state remains adverse to their claims. They find support for that position in School Dist. No. 1 v. Nilsen, 271 Or. 461, 534 P.2d 1135 (1975). Second, they argue that, because the trial court awarded them attorney fees, their entitlement to those fees requires that we determine the correctness of the trial court’s disposition of the merits of the case, even if otherwise moot. We agree with defendants that plaintiffs’ claims are moot as to all defendants except OHSU. [1] [2] We begin with OHSU. As we have noted, OHSU currently provides precisely the domestic partner benefits that plaintiffs seek in this action. OHSU continues to maintain that it is under no legal obligation to do so, however. The voluntary cessation of a practice that is challenged in an action for declaratory and injunctive relief does not, in itself, render an action moot; if the law were otherwise, wrongdoers could cease their wrongdoing as soon as complaints are filed and resume the wrongdoing as soon as the complaints are dismissed for being moot. Gates v. McClure, 284 Or. 685, 689, 588 P.2d 32 (1978); Safeway v. OPEU, 152 Or.App. 349, 357, 954 P.2d 196 (1998).



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[3] We turn to the state agency defendants. In their complaint, plaintiff employees alleged that they were employed by the state and State Board of Higher Education. Before the entry of judgment in the case, however, that was no longer so. The legislature, by that time, had declared that OHSU is no longer a state agency, Or. Laws 1995, ch. 162, §§ 2, 74, and all OHSU employees had been transferred from their previous employment with the State Board of Higher Education, Or. Laws 1995, ch. 162, § 43. By the time the trial court entered its judgment, therefore, the state and the State Board of Higher Education no longer had an interest in the *511 outcome of the case and could no longer be bound by any remedy that resulted. We reach the same conclusion as to SEBB and the Executive Department of which it is a part. Plaintiffs’ claim against SEBB pertained solely to the 1991 letters denying their applications for benefits. Before the judgment was entered, however, the legislature declared that OHSU no longer is a state agency and no longer is subject to the administration of its employee benefits by SEBB. The legislature declared that OHSU may elect to adopt its own personnel system. It further declared that, “[u]ntil such time as an alternative personnel system is adopted, the university shall exercise exclusive administrative authority and control over the system.” Or. Laws 1995, ch. 162, § 10 (emphasis added). Thus, after July 1, 1995, the effective date of the new OHSU legislation, SEBB had no authority independent of OHSU to offer benefits to plaintiffs, and its previous orders denying benefits to plaintiffs became moot. Plaintiffs requested only prospective relief from the state defendants. They did not ask for money damages or for retroactive provision of insurance benefits. By the time the trial court entered its judgment, it could order no relief against any of the state defendants in this case. Its decision to declare that the state defendants violated the law, and its entry of an injunction against them therefore was erroneous. Plaintiffs’ arguments to the contrary are unavailing. First, their argument that the case against the state defendants remains alive and well because plaintiffs sued in a representative capacity is belied by their own complaint, which contains no such allegations. Plaintiffs could have framed their complaint as a class action. ORCP 32. They did not do so, and they cannot attempt to convert it into one for the first time on appeal. The Supreme Court’s decision in Nilsen, on which plaintiffs heavily rely, is entirely consistent with ours in this case. In Nilsen, the plaintiff probationary teacher complained to the Commissioner of the Bureau of Labor who, through the Attorney General, initiated an action

against a school district for employment discrimination, based on the district’s policy of requiring pregnant probationary teachers to resign. While *512 the appeal was pending, the district rehired—and ultimately granted tenure to—the plaintiff. The court noted the special nature of the proceeding initiated by the commissioner, who, although **441 taking action on the filing of a private complaint, nevertheless acted in a representative capacity:

“[I]t is apparent from the statutes that it was the intention of the legislature that other persons situated similarly to the private complainant could be encompassed within the remedial authority of the Commissioner so that, in this respect, the proceeding is in the nature of a class action although only a specific individual is named as being the subject of discrimination.”

Nilsen, 271 Or. at 472, 534 P.2d 1135. In that context, the court held that, although the complaining private party had been rehired, because of the special representative nature of the parties in an action brought by the commissioner, the case had not been rendered moot. Id. at 476, 534 P.2d 1135. This case was not initiated by the Commissioner of the Bureau of Labor and Industries. Plaintiffs themselves initiated it. Thus, the broad remedial authority of the commissioner is not brought into play, as was so critically the case in Nilsen. Compare ORS 659.049 to 659.095 (actions by commissioner) with ORS 659.121 (actions by individuals). Plaintiffs represent no one but themselves in this matter. Because they no longer are employed by a state agency, therefore, the state defendants no longer have an interest in the outcome of this case. [4] Second, plaintiffs’ argument that the propriety of their judgment for attorney fees requires us to address the merits of the underlying claims is similarly unpersuasive. We assume, for the sake of argument, that plaintiffs are correct that a judgment for attorney fees requires examination of the merits of a case that otherwise has become moot since the entry of the judgment. Cf. Barcik, 321 Or. at 189 n. 10, 895 P.2d 765 (declining to address whether a prayer for attorney fees prevents claims from becoming moot on appeal). The fact remains that, in this case, the claims against the state defendants became moot before the trial court entered its judgment for attorney fees. Thus, because at the time of the entry of judgment the trial court had no authority to enter any judgment *513 against the state

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defendants, the entire case against those defendants—merits and award of attorney fees—is moot.

ANALYSIS OF THE PARTIES’ CLAIMS ON THE MERITS

We turn, then, to the portion of the case that remains a live controversy, that is, the lawfulness of OHSU’s denial of insurance benefits to domestic partners of its homosexual employees. Following the traditional “first things first” decisional methodology of Oregon judicial opinions, we begin with the question whether OHSU’s denial violated applicable employment statutes and, if not, turn to whether the denial violates the state constitution. See Planned Parenthood Assn. v. Dept. of Human Resources, 297 Or. 562, 564, 687 P.2d 785 (1984); Young v. Alongi, 123 Or.App. 74, 77–78, 858 P.2d 1339 (1993).

A. Violation of ORS 659.030(1)(b) [5] Plaintiffs allege, and the trial court held, that OHSU’s denial of benefits to domestic partners of OHSU’s employees violated ORS 659.030(1)(b). That statute provides, in part:

“(1) * * * [I]t is an unlawful employment practice:

“ * * * * *

“(b) For an employer, because of an individual’s race, religion, color, sex, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, religion, color, sex, national origin, marital status or age of any other person with whom the individual associates * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”

ORS 659.030(1)(b). On appeal, OHSU argues that the trial court erred, because its denial of benefits was in no way predicated on the sex of any employee or of any individual with whom an employee associates. OHSU argues that its denial of benefits instead was based on marital status alone, without reference to the sexual orientation of the employees or *514 their domestic partners. OHSU emphasizes that any unmarried domestic partners—heterosexual and homosexual alike—were denied insurance benefits. **442 Plaintiffs acknowledge that, at least on the surface, OHSU denied benefits to unmarried domestic partners of its employees without regard to their sexual orientation. They argue that OHSU’s denial of benefits to domestic partners nevertheless violates ORS 659.030(1)(b) because, although OHSU’s denials did not facially discriminate against homosexual couples, the denials had the effect of discriminating against homosexual couples. That is so,

plaintiffs argue, because homosexual couples cannot marry. Heterosexual couples can marry and thus at least have the option of doing so to avail themselves of the employee benefits; homosexual couples cannot marry and have no such option. Because of the disparate impact on homosexual couples of denying benefits on the otherwise facially neutral basis of marital status, plaintiffs argue, OHSU has discriminated on the basis of the sex of persons with whom employees associate, in violation of ORS 659.030(1)(b). OHSU rejoins that, even if its denial of benefits constitutes discrimination on the basis of sex, there is no unlawful employment practice, because a separate statute, ORS 659.028, provides that, when discrimination is a product of the terms of a bona fide benefits plan, the discrimination is actionable only if it is part of a subterfuge to evade the purposes of the fair employment statutes. There is no evidence in this case, OHSU argues, that the denials of benefits occurred as part of a subterfuge to evade the purposes of the fair employment statutes. Plaintiffs respond that ORS 659.028 operates as an affirmative defense and that, to avail itself of the “safe harbor” that the statute affords, OHSU must demonstrate that its denials were not part of a prohibited subterfuge. According to plaintiffs, OHSU, having failed in its burden of proof under ORS 659.028, is left with its violation of ORS 659.030(1)(b). Whether OHSU’s denial of insurance benefits to domestic partners of its homosexual employees amounts to unlawful discrimination “because of the * * * sex * * * of any *515 other person with whom the [employee] associates,” ORS 659.030(1)(b), involves two subsidiary issues. First, we must determine whether discrimination on the basis of sexual orientation constitutes prohibited discrimination because of the “sex * * * of any other person with whom the [employee] associates”; if it does not, then the dispute is at an end. Second, we must determine whether OHSU’s denials of insurance benefits in this case constituted discrimination “because of” plaintiffs’ sexual orientation. [6] Whether ORS 659.030(1)(b) encompasses discrimination because of sexual orientation is a matter of first impression. The Supreme Court has suggested that it is at least possible to construe the statute to apply to discrimination on the basis of sexual orientation. ACLU v. Roberts, 305 Or. 522, 752 P.2d 1215 (1988) (“It is possible to construe some Oregon statutes as prohibiting discrimination based on sexual orientation. See, e.g., ORS 659.030(1)(b)”). The court did not purport actually to construe ORS 659.030(1)(b) or any other statute to say that, however. It remains for us, therefore, to determine the intended meaning of the statute, looking to its text in


























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context and, if necessary, its history and other interpretive aids. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610–12, 859 P.2d 1143 (1993). In our view, the Supreme Court’s suggestion in Roberts is the only plausible construction of the statutory language. The statute prohibits discrimination on the basis of the “sex * * * of any other person with whom an individual associates.” ORS 659.030(1)(b). Plaintiffs allege that OHSU discriminated against them by denying them the option of providing their domestic partners insurance benefits because their domestic partners are of the same sex. Discrimination of that sort hinges on the sex of the individual with whom plaintiffs associate. It plainly falls within the wording of the statute. [7] Whether OHSU’s denial of insurance benefits to domestic partners of its homosexual employees amounted to discrimination “because of” their sexual orientation may not be so readily answered. OHSU’s denial of benefits to plaintiffs ostensibly was based on the fact that plaintiffs were unmarried. As OHSU contends—and as plaintiffs concede—its *516 practice of denying benefits to domestic **443 partners was based on a definition of eligible family members that applied both to unmarried heterosexual couples and unmarried homosexual couples. Ostensibly, therefore, OHSU did not discriminate “because of” sexual orientation; it discriminated “because of” marital status, without regard to sexual orientation. [8] Merely because discrimination is not obvious, however, does not mean that it is not actionable. We have held that ORS 659.030 prohibits not only employment practices that facially discriminate against a protected class of employees, but also practices that are facially neutral concerning the protected class but have a disparate impact on that class. Spurgeon v. Stayton Canning Company, 92 Or.App. 566, 570–71, 759 P.2d 1104 (1988); Sch. Dist. No. 1 v. Mission Ins. Co., 58 Or.App. 692, 700, 650 P.2d 929 (1982), rev. den. 294 Or. 682, 662 P.2d 725 (1983). To make out an employment discrimination claim based on disparate impact, a plaintiff must show: (1) membership in a class protected by the employment statutes, and (2) that the employer’s facially neutral employment rule “has the effect of screening out members of a protected class at a significantly higher rate than others.” Spurgeon, 92 Or.App. at 570–71, 759 P.2d 1104. In this case, as we have held, plaintiffs are members of a protected class under ORS 659.030(1)(b). Moreover, there can be no question but that the effect of OHSU’s practice of denying insurance benefits to unmarried domestic partners, while facially neutral as to homosexual couples, effectively screens out 100 percent of them from obtaining full coverage for both partners. That is because, under

Oregon law, homosexual couples may not marry.3 There remains the question whether plaintiffs’ claims are subject to the more limited liability described in ORS 659.028, which provides, in part:

*517 “It is not an unlawful employment practice for an employer, employment agency or labor organization to observe the terms of a * * * bona fide employee benefit plan, such as a retirement, pension or insurance plan, which is not a subterfuge to evade the purposes of this chapter.”

The parties do not dispute that the insurance benefits at issue in this case and OHSU’s policy of denying benefits to the domestic partners of unmarried employees are part of a “bona fide employee benefit plan.” The only question is whether OHSU’s denial of benefits was part of a “subterfuge to evade the purposes” of the employment statutes. Answering that question, however, entails addressing three more: First, precisely what does “subterfuge” mean; more specifically, does it require proof of intent? Second, who has the burden of proving the presence or absence of a subterfuge? Third, has the burden of proof been satisfied in this case? [9] [10] We begin with the meaning of the statutory term “subterfuge.” Once again, we are presented with an interpretive question of first impression, which we resolve on the basis of the text in context and, if necessary, legislative history and other aids to construction. PGE, 317 Or. at 606–10, 859 P.2d 1143. In examining the text of a statute, we give words of common usage their “plain, natural and ordinary meaning” unless there is textual or contextual evidence that the legislature intended some other meaning to apply. Id. at 611, 859 P.2d 1143. A “subterfuge” ordinarily refers to “a deception by artifice or stratagem to conceal, escape, avoid or evade.” Webster’s Third New Int’l Dictionary 2281 (unabridged ed 1993). The term obviously entails intentional conduct; one does not accidentally or negligently deceive by artifice or stratagem. Nothing in the text or context of the statute suggests a contrary definition. We note in that regard that our reading of the statute comports with the construction given the nearly identical language of the federal legislation on which ORS 659.028 was based. The federal Age Discrimination in Employment Act of 1967 (ADEA) forbids **444 arbitrary discrimination by public and private employers against their employees because of age. 29 USC § 623(a)(1). Section 623(f)(2) of the ADEA provides that decisions made pursuant to the terms of “any bona fide employee benefit plan such as a retirement, pension, or *518 insurance plan, which is not a subterfuge to evade the




















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purposes of” the ADEA are exempted from the general prohibition against age discrimination. In Public Employees v. Betts, 492 U.S. 158, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989), the United States Supreme Court construed section 623(f)(2) and specifically addressed the meaning of the reference to “subterfuge” in that section. The Court began by noting that the ordinary meaning of the term is “a scheme, plan, stratagem, or artifice or evasion.” Id. at 167, 109 S.Ct. 2854 (internal quotation marks omitted). It then concluded that nothing in the text of the ADEA or its legislative history required a different definition. Id. at 167–68, 109 S.Ct. 2854. Applying the ordinary meaning of the term, the Court held that proof of actual intent to discriminate is required. There remain the questions as to who has the burden of proof and whether it has been satisfied. Plaintiffs contend that ORS 659.028 states an affirmative defense, thus placing the burden upon defendants to establish their lack of intent to discriminate to avoid liability under ORS 659.030. OHSU contends that ORS 659.028 merely describes the type of conduct that is prohibited in a context that is more specific than the more generally worded ORS 659.030. Thus, according to OHSU, when discrimination occurs as part of the terms of a bona fide employee benefit plan, it is the plaintiff who must prove that the defendant did so intentionally to prevail on his or her claim. [11] We need not attempt to resolve that issue in this case, however. Regardless of who bears the burden of proof, the fact is that, on the record in this case, it is clear that OHSU did not engage in a subterfuge. Appellate review of the evidence on the issue is de novo. Wincer v. Ind. Paper Stock Co., 48 Or.App. 859, 862–63, 618 P.2d 15 (1980). Our review of that evidence reveals that there is unrebutted testimony that sexual orientation was not taken into account in the administration of OHSU’s employee benefits program and that OHSU did not intend, directly or indirectly, to discriminate on the basis of sexual orientation. Accordingly, although OHSU’s practice of denying insurance benefits to unmarried domestic partners of its homosexual employees had an otherwise unlawful disparate impact on a protected class, because there is no evidence that OHSU engaged in a *519 subterfuge to discriminate against that protected class—and because there is affirmative evidence that it did not—it did not engage in an unlawful employment practice. The trial court erred in reaching a contrary conclusion.

B. Violation of Article I, section 20 [12] Finally, we address whether OHSU’s denial of insurance benefits to the unmarried domestic partners of its

homosexual employees violated Article I, section 20, of the Oregon Constitution, which provides:

“No law shall be passed granting to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

Plaintiffs allege, and the trial court held, that OHSU’s denial of benefits to domestic partners of its employees violated Article I, section 20. On appeal, OHSU argues that the trial court erred because OHSU’s denials did not discriminate on the basis of sexual orientation but instead on the basis of marital status, discrimination that is justified by the entirely rational purpose of promoting the institution of marriage. Plaintiffs reply that OHSU’s practices have the effect of denying a privilege—insurance benefits—to a class of citizens—homosexuals—without any justification and that the practice runs afoul of the constitution. OHSU acknowledges that its denials have the effect of discriminating against homosexual couples. It contends that such a discriminatory effect is not actionable in the absence of an intentionally discriminatory classification. [13] We begin with a matter that, although not raised by the parties, is necessary to the disposition of their constitutional contentions, namely, the implications of the legislation that transformed OHSU from a state **445 agency to a public corporation. Article I, section 20, by its terms, does not constrain the conduct of wholly private entities. It prohibits the passage of laws granting citizens or classes of citizens privileges or immunities on unequal terms. The courts have construed the reference to “laws” to include both legislative enactments and the administration of laws under delegated authority. State v. Freeland, 295 Or. 367, 370, 667 P.2d 509 (1983) (district attorney charging practices subject to *520 Article I, section 20). But in all cases, those constrained by that section of the constitution are government entities of one sort or another. The legislature has declared that OHSU no longer is a “state agency.” Or. Laws 1995, ch. 162, § 2. Nevertheless, the legislature also declared that OHSU remains “a governmental entity performing governmental functions and exercising governmental powers.” Id. We conclude therefore that, although the legislature has declared OHSU to be a nonstate agency public corporation, it remains a governmental entity subject to the prohibitions of Article I, section 20. The parties’ constitutional arguments on the merits present still further matters of first impression. In addressing those




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arguments, we do not pretend that the cases construing Article I, section 20, describe a completed, coherent jurisprudence. It is perhaps best to view the cases at this juncture as something of a work in progress. Nevertheless, we draw from the cases the following rules, which we conclude are sufficiently clear to enable us to dispose of the arguments presented. Article I, section 20, prohibits granting privileges or immunities to one citizen or class of citizens that are not equally available to all citizens. That generally is understood to express two separate prohibitions. As the Supreme Court explained in its seminal opinion, State v. Clark, 291 Or. 231, 237, 630 P.2d 810 (1981), the clause “forbids inequality of privileges or immunities not available upon the same terms, first, to any citizen, and second, to any class of citizens.” In this case, plaintiffs contend that they are members of a class of citizens—homosexual couples—to whom certain privileges—insurance benefits—are not made available. [14] As used in the Article I, section 20, case law, the term “class” takes on special meaning; only laws that disparately treat a “true class” may violate that section of the constitution. State ex rel Huddleston v. Sawyer, 324 Or. 597, 610, 932 P.2d 1145, cert. den. 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). In attempting to describe precisely what is meant by a “true class,” the cases draw a distinction between classes that are created by the challenged law or government *521 action itself and classes that are defined in terms of characteristics that are shared apart from the challenged law or action. The standard example of a nontrue class, drawn from the Supreme Court’s decision in Clark, is the classification created by a statute that imposes a filing deadline for filing a petition for review. Such legislation creates two classes of persons: (1) those who timely file petitions for review, and (2) those who do not. Both are “classes” of persons, at least in the colloquial sense of groups having something in common. But in the absence of the statute, they have no identity at all. Legislation that disparately affects such “classes” does not violate Article I, section 20, because of the essentially circular nature of the argument: The legislation cannot disparately affect a class that the legislation itself creates. Clark, 291 Or. at 240, 630 P.2d 810. See also Sealey v. Hicks, 309 Or. 387, 397, 788 P.2d 435 (1990); Hale v. Port of Portland, 308 Or. 508, 525, 783 P.2d 506 (1989). In contrast, Article I, section 20, does protect against disparate treatment of true classes, those that have identity apart from the challenged law itself. Various formulations have been used to describe in some affirmative way what a true class is, as opposed to merely what it is not in reference

to classes created by the challenged legislation. The cases refer to classification by “ad hominem characteristic,” Van Wormer v. City of Salem, 309 Or. 404, 408, 788 P.2d 443 (1990), by “personal characteristic,” Zockert v. Fanning, 310 Or. 514, 523, 800 P.2d 773 (1990), and by “antecedent personal or social characteristics **446 or societal status,” Hale, 308 Or. at 525, 783 P.2d 506. Examples of true classes include gender, ethnic background, legitimacy, past or present residency, and military service. Clark, 291 Or. at 240, 630 P.2d 810. To say that disparately treated true classes are protected by Article I, section 20, does not end the matter. Depending on what type of true class is involved, the legislation or governmental action may or may not be upheld in spite of the disparity. In that regard, the cases draw a distinction between “suspect” classes and other true classes. The *522 former classes are subject to a more demanding level of scrutiny, and legislation or government action disparately treating such classes is much more likely to run afoul of Article I, section 20, than is legislation or government action that disparately treats a nonsuspect class. The leading opinion on suspect classes is Hewitt v. SAIF, 294 Or. 33, 653 P.2d 970 (1982). In that case, the plaintiff, a man, challenged the constitutionality of a statute that permitted an unmarried woman to collect death benefits upon the death of an unmarried man with whom she cohabited for over one year. He contended that the statute, which made no provision for death benefits to an unmarried man who had cohabited with an unmarried woman for the required period, violated Article I, section 20, of the Oregon Constitution. Id. at 35, 653 P.2d 970. The court held that, under Article I, section 20, disparate treatment of classes that may be regarded as “suspect” is subject to particularly exacting scrutiny. Id. at 45, 653 P.2d 970. The court did not define precisely what it meant by “suspect” class. It did say that a class is suspect when it is defined in terms of “immutable” characteristics and “can be suspected of reflecting ‘invidious’ social or political premises, that is to say prejudice or stereotyped prejudgments.” Id. The court held that gender constitutes such a class. Id. It then held that the denial of benefits to the plaintiff, a member of the suspect class defined by his male gender, was “inherently suspect.” Id. at 46, 653 P.2d 970. That suspicion, the court held, could be overcome only by evidence that the denial of benefits to him is justified on the basis of “biological differences” between those who are entitled to the benefits under the statute and those who are not. Id. Finding no such justification in the record, the court declared that the statute violated Article I, section 20. Id. at 50, 653 P.2d 970. Although the court in Hewitt referred to “immutable” characteristics as being sufficient for defining a suspect










































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class under Article I, section 20, subsequent cases make clear that immutability—in the sense of inability to alter or change—is not necessary. The court has since explained that, in addition to gender, such classes as alienage, Greist v. Phillips, 322 Or. 281, 300, 906 P.2d 789 (1995) (race, sex and alienage are “inherently suspect” classes), and religious affiliation, State v. Buchholz, 309 Or. 442, 446, 788 P.2d 998 (1990) *523 race and religion are “impermissible criteria” of classification); Salem College & Academy, Inc. v. Emp. Div., 298 Or. 471, 695 P.2d 25 (1985) (religious affiliation an impermissible classification), also are suspect classes.4 Both alienage and religious affiliation may be changed almost at will. For that matter, given modern medical technology, so also may gender. We therefore understand from the cases that the focus of suspect class definition is not necessarily the immutability of the common, class-defining characteristics, but instead the fact that such characteristics are historically regarded as defining distinct, socially-recognized groups that have been the subject of adverse social or political stereotyping or prejudice. If a law or government action fails to offer privileges and immunities to members of such a class on equal terms, the law or action is inherently suspect and, as the court made clear in Hewitt, may be upheld only if the failure to make the privileges or immunities available to that class can be justified by genuine differences between the disparately treated class and those to whom the privileges and immunities are granted. Some classes are not suspect, but nevertheless remain true classes for **447 Article I, section 20, purposes. Geographical residence is the common example of a nonsuspect true class. Clark, 291 Or. at 240, 630 P.2d 810. Disparate treatment of such classes may be justified on a “rational basis” examination, Seto v. Tri–County Metro. Transportation Dist., 311 Or. 456, 814 P.2d 1060 (1991), although the case law on that point is not entirely consistent. Compare Hale, 308 Or. at 524, 783 P.2d 506 (rational basis examination common to Equal Protection Clause cases “has been superseded by our more recent [Article I, section 20] decisions”) with State v. Tucker, 315 Or. 321, 338, 845 P.2d 904 (1993) (Article I, section 20, challenge to death penalty statute rejected because the statute “established clear, rational and definitive criteria”). [15] [16] Turning to the facts of this case, there is no question but that plaintiffs are members of a true class. That class—unmarried *524 homosexual couples—is not defined by any statute nor by the practices that are the subject of plaintiffs’ challenges. Moreover, the class clearly is defined in terms of ad hominem, personal and social characteristics. The question then is whether plaintiffs are members of a suspect class. Here, too, we have no difficulty concluding that plaintiffs are members of a

suspect class. Sexual orientation, like gender, race, alienage, and religious affiliation is widely regarded as defining a distinct, socially recognized group of citizens, and certainly it is beyond dispute that homosexuals in our society have been and continue to be the subject of adverse social and political stereotyping and prejudice. Because plaintiffs are members of a suspect class to which certain privileges and immunities are not made available, we must determine whether the fact that the privileges and immunities are not available to that class may be justified by genuine differences between the class and those to whom the privileges and immunities are made available. Stated perhaps more plainly, we must determine whether the fact that the domestic partners of homosexual OHSU employees cannot obtain insurance benefits can be justified by their homosexuality. The parties have suggested no such justification, and we can envision none. OHSU’s defense is that it determined eligibility for insurance benefits on the basis of marital status, not sexual orientation. According to OHSU, the fact that such a facially neutral classification has the unintended side effect of discriminating against homosexual couples who cannot marry is not actionable under Article I, section 20. We are not persuaded by the asserted defense. Article I, section 20, does not prohibit only intentional discrimination. On point in that regard is the Supreme Court’s decision in Zockert. In that case, the plaintiff parent challenged the constitutionality of a statutory scheme that provided indigent parents court-appointed counsel in parental termination proceedings but did not provide for court-appointed counsel in adoption proceedings that have the effect of terminating parental rights. After concluding that the plaintiff was a member of a true class—the court did not explain precisely which type of true class—it observed that the legislature apparently was unaware of the disparity between the parental termination and *525 adoption proceeding statutes and did not make a conscious policy to treat indigent parents in the two similar proceedings unequally. Zockert, 310 Or. at 522, 800 P.2d 773. The court nevertheless concluded that the unintended side effect of providing counsel in termination proceedings was to treat a true class of citizens disparately in violation of Article I, section 20. Id. at 523–24, 800 P.2d 773. Intentional conduct, the court held, is not required for discrimination to be actionable under that section of the constitution. Id. at 523 n. 12, 800 P.2d 773. So also in this case, OHSU has taken action with no apparent intention to treat disparately members of any true class of citizens. Nevertheless, its actions have the undeniable effect of doing just that. As in Zockert, OHSU’s intentions in this case are not relevant. What is relevant is the extent to which privileges or immunities are not made



























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available to all citizens on equal terms. OHSU insists that in this case privileges and immunities are available to all on equal terms: All married employees—heterosexual and homosexual alike—are permitted to acquire **448 insurance benefits for their spouses. That reasoning misses the point, however. Homosexual couples may not marry. Accordingly, the benefits are not made available on equal terms. They are made available on terms that, for gay and lesbian couples, are a legal impossibility. We conclude that OHSU’s denial of insurance benefits to the unmarried domestic partners of its homosexual employees violated Article I, section 20, of the Oregon

Constitution and that the trial court correctly entered judgment in favor of plaintiffs on that ground. Reversed as to declaration that Oregon Health Sciences University’s benefit program violates ORS 659.030(1)(b); remanded with instructions to enter judgment dismissing the State of Oregon, the State Board of Higher Education, the Executive Department and PEBB; otherwise affirmed.

All Citations

157 Or.App. 502, 971 P.2d 435, 132 Ed. Law Rep. 2

Footnotes *

Wollheim, J., vice Riggs, J., resigned.

1

For ease of reference, we refer to all of the responding parties as “defendants.” We understand that SEBB actually is not a defendant, but is instead a “respondent” to a petition for judicial review.

2

Specifically, we asked the parties: “1. Do all of the plaintiffs currently receive from the Oregon Health Sciences University the domestic partner fringe benefits they sought in this action? “2. If the answer to the first question is affirmative, are the domestic partner fringe benefits provided to plaintiffs by the Oregon Health Sciences University governed in any way by SEBB (or PEBB)? “3. If the answer to the first question is affirmative, does a justiciable controversy exist between any plaintiff and any defendant in this action?”

3

The relevant statutes define marriage in terms of a civil contract entered into by males and females who are thereby joined together as husband and wife. ORS 106.010; ORS 106.041. No party raises, and we do not address, the constitutionality of prohibiting homosexual couples from marrying.

4

The court also has suggested in dictum that nationality and facial hair likewise “doubtless” would be stricken as impermissible classifications. Sealey, 309 Or. at 398 n. 12, 788 P.2d 435.











Curtis v. MRI Imaging Services II, 148 Or.App. 607, 941 P.2d 602 (1997)



Robert CURTIS, Appellant, v.

MRI IMAGING SERVICES II, an Oregon limited partnership, and ABCT, Inc., an Oregon

corporation, Respondents, and

North Lincoln Hospital Health District, dba North Lincoln Hospital, an Oregon non-profit

corporation, Defendant.

941288; CA A92095. |


Decided June 25, 1997.

Synopsis Patient sued medical professionals for negligent infliction of emotional distress based on their administration of MRI procedure. The Circuit Court, Lincoln County, Charles Littlehales, J., entered judgment on the pleadings for defendants. Plaintiff appealed. The Court of Appeals, Haselton, J., held that: (1) medical malpractice victim who has not suffered physical injury may recover damages for negligent infliction of emotional distress by showing existence of a legally protected interest and a sufficient invasion of that interest, and (2) relationship between plaintiff and defendants gave rise to legally protected interest, and alleged invasion of that interest was of sufficient magnitude to warrant emotional distress damages. Reversed and remanded. Procedural Posture(s): On Appeal.


**603 J. Michael Alexander, Salem, argued the cause for appellant. With him on the briefs was Burt, Swanson, Lathen, Alexander, McCann & Smith, P.C.

Alexander Gordon, Portland, argued the cause and filed the brief for respondents.

Before DEITS, P.J., and De MUNIZ, and HASELTON, JJ.

Opinion

*609 HASELTON, Judge.

Plaintiff appeals, challenging the entry of judgment on the pleadings, ORCP 21 G(3), against his claim for negligence. The dispositive issue is novel: Under Oregon law, can a victim of medical malpractice, who has not suffered physical injury, nevertheless recover damages for negligent infliction of emotional distress? We conclude that the relationship between plaintiff and defendant medical professionals, as framed by the pleadings, gave rise to a “legally protected interest” and that the alleged invasion of that interest was of the sort that would permit plaintiff to recover emotional distress damages without any showing of concurrent physical injury. Accordingly, we reverse and remand. In reviewing a judgment on the pleadings, we accept all factual allegations in the complaint as true. Withers v. State of Oregon, 133 Or.App. 377, 381, 891 P.2d 675 (1995), rev. den. 321 Or. 284, 896 P.2d 1213. Entry of judgment on the pleadings is proper when the allegations in the pleadings affirmatively show that the plaintiff cannot prevail as a matter of law. Id. at 382, 891 P.2d 675. Plaintiff’s operative fourth amended complaint alleged the following facts: On November 9, 1992, plaintiff arranged through North Lincoln Hospital to undergo an MRI.1 The **604 test was performed in a mobile unit that was set up in the hospital’s parking lot. Defendants MRI Imaging Services II and ABCT, Inc., administered the test.2 Before and during the MRI procedure, defendants “negligently” failed to:

“1. * * * properly explain the nature of the MRI procedure to the Plaintiff prior to instituting such procedure, particularly in failing to warn the Plaintiff of the possible claustrophobic effects of the MRI;

*610 “2. * * * take an adequate medical and psychological history from the Plaintiff, including the history of pre-existing asthmatic condition;

“3. * * * properly monitor the progress of the Plaintiff during the course of the MRI procedure; and

“4. * * * promptly terminate the MRI procedure when Plaintiff complained of difficulties with breathing, and indicated a desire for the procedure to end.”

As a result of that failure, plaintiff experienced severe emotional distress. More particularly,


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“[he] became extremely distressed, a condition which was exacerbated by his pre-existing asthma. His emotional status worsened during the entire procedure, and has resulted in continued and permanent psychological damage, including post-traumatic stress disorder, adjustment disorder with anxious mood, major depression, generalized anxiety disorder and panic disorder with agoraphobia. These psychological conditions are severe, continuing, and permanent.”

Plaintiff sought damages of $75,000 to compensate him for his “extreme and severe emotional distress, sleeplessness, fear and anxiety, which have significantly interrupted his normal lifestyle and will continue to do so in the future.”3 In their answer, defendants admitted that they had performed the MRI. As an “affirmative defense,” defendants asserted:

“The plaintiff has plead a claim for the negligent infliction of emotional distress unaccompanied by either any actual or threatened physical harm or injury to another legally protected interest. Such a claim is not recognized in Oregon. The plaintiff has failed to state ultimate facts constituting a claim.”

On the day of trial, defendants moved for judgment on the pleadings. ORCP 21 G(3). Invoking Hammond v. Central Lane Communications Center, 312 Or. 17, 816 P.2d 593 (1991), and Saechao v. Matsakoun, 78 Or.App. 340, 345–48, 717 P.2d 165, rev dismissed 302 Or. 155, 727 P.2d 126 (1986), defendants *611 asserted that Oregon law does not recognize a cause of action for negligent infliction of emotional distress where there is neither physical harm nor injury to a “legally protected interest” distinct from liability based on general foreseeability, and that plaintiff’s complaint did not plead either of those conditions. Plaintiff responded with two arguments. First, the relationship between plaintiff and defendant medical professionals who administered the MRI gave rise to a distinct “legally protected interest” beyond liability grounded in general principles of foreseeability. Second, because he was a “direct,” rather than “indirect,” victim of defendants’ negligence, the bar to recovery in Hammond, Saechao, and related cases was inapposite. As support for the latter proposition, plaintiff relied on our observation in

Harris v. Kissling, 80 Or.App. 5, 8, 721 P.2d 838 (1986), that “a physical injury is not necessary to support an award of damages for emotional distress if the person seeking damages is the direct victim of tortious conduct.” (Emphasis in original.) **605 The trial court granted judgment on the pleadings:

“Oregon law at this time does not allow for recovery for negligent infliction of emotional distress where there is no physical injury. That is it. It is really that simple. That is the pleading. If I accept everything in the pleadings as true, we still don’t get the elemental requirements of the tort.

“I’ve got to tell you something, I don’t know what the facts are in this case, and believe me I don’t want you to take this wrong, but I can see a situation where there ought to be recovery for something like this. I’ll be darned if—you know, I can see how someone being left in an environment like that or not being handled expertly the entire time could create some psychic trauma for which there should be compensation, but Oregon law simply doesn’t allow it.”

On appeal, plaintiff and defendants reiterate their arguments. In their briefs and arguments, counsel posit contending—and equally forbidding—slippery slopes and parades of horribles. Plaintiff, for example, contends that defendants’ position, by principled extension, would preclude claims for psychological or psychiatric malpractice, where the only injury suffered as a result of a defendant’s negligence is, *612 generally, emotional and not physical. In a similar vein, plaintiff asserts that defendants’ analysis would preclude liability for emotional distress damages if a physician negligently diagnosed a healthy patient as having a terminal illness. Defendants counter that plaintiff’s position, which emphasizes the special quality of the relationship between a professional and a patient or client, would permit clients to seek emotional distress damages from their attorneys in every legal malpractice claim. Extending plaintiff’s principle further, defendants reason, would allow distraught students to recover emotional distress damages from teachers who have misgraded their exams and would permit disappointed investors to obtain psychic, as well as financial, relief from incompetent brokers. On either side, the abyss beckons: “Hard cases make bad law.” Still, we will attempt to mark and tread a principled and practical middle ground. For at least 60 years, Oregon courts have assumed, albeit implicitly, that emotional distress damages can only be recovered in cases involving physical injury—and then

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have proceeded to carve out exceptions to that general proposition.4 The cases have fallen generally, though inexactly, into three categories: (1) claims for emotional distress resulting from the defendant’s tortious conduct directed against persons other than the plaintiff; (2) claims for emotional distress resulting from the defendant’s tortious conduct directed against the plaintiff; and (3) “hybrid” claims for emotional distress resulting from tortious conduct directed against both the plaintiff and third persons. Saechao and Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982), exemplify the first, “indirect injury” category. In Saechao, we held that two siblings who witnessed an auto accident in which their younger *613 brother was killed, but who were not themselves physically injured, could not recover emotional distress damages. In so holding, we adopted the “impact” rule for such cases and expressly rejected the more broadly remedial “zone of danger” formulation.5 Similarly, in Norwest, the court concluded that the plaintiff’s child could not recover emotional distress/“parental consortium” damages based on the defendants’ **606 alleged malpractice in treating the plaintiff’s mother. See, e.g., 293 Or. at 560–61, 652 P.2d 318 (noting general “rule that negligence alone, as a reason to shift the burden of a resulting loss, has not been deemed so grievous as to hold the negligent actor liable beyond the immediate victim’s injury to others who suffer a loss only in consequence of that injury”). Most reported decisions fall into the second, “direct injury” group. See, e.g., Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983) (sustaining claim for emotional distress damages arising from officers’ failure to enforce restraining order); Melton v. Allen, 282 Or. 731, 580 P.2d 1019 (1978) (affirming dismissal of claim seeking emotional distress damages, based on the defendant towing company’s trespass to the plaintiff’s automobile); Collver v. Salem Insurance Agency, Inc., 132 Or.App. 52, 887 P.2d 836 (1994), rev. den. 320 Or. 598, 891 P.2d 1 (1995) (holding that the plaintiff was not entitled to recover emotional distress damages arising from the defendants’ negligent failure to procure auto insurance coverage); Hilt v. Bernstein, 75 Or.App. 502, 707 P.2d 88 (1985), rev. den. 300 Or. 545, 715 P.2d 92 (1986) (trial court did not err in striking the plaintiff’s allegations that sought emotional distress damages related to the defendant attorney’s malpractice in handling her divorce). The third, “hybrid” category is somewhat more amorphous. However, the Supreme Court’s most recent discussion in this area, Hammond, appears to fall into that group. In Hammond, the plaintiff sought emotional distress damages based on the defendants’ mishandling of a 9–1–1

call that the plaintiff had made concerning her husband. The *614 plaintiff’s pleadings could be viewed as alleging both indirect injury from the failure to treat her husband promptly and properly, as well as direct injury from the failure to respond promptly to the plaintiff’s call. In all events, in rejecting the plaintiff’s claim for “negligent infliction of emotional distress,” the court, citing Norwest, concluded that the plaintiff could not recover because she had not sustained any physical injury. 312 Or. at 25, 816 P.2d 593.6 In Hammond, the court summarized and organized the exceptions to the general assumption, under Oregon law, that psychic distress is not compensable unless accompanied by physical injury:

“This court has recognized common law liability for psychic injury alone in three situations. First, where the defendant intended to inflict severe emotional distress. Second, where the defendant intended to do the painful act with knowledge that it will cause grave distress, when the defendant’s position in relation to the plaintiff involves some responsibility aside from the tort itself. Third, where the defendant’s conduct infringed on some legally protected interest apart from causing the claimed distress, even when that conduct was only negligent.” 312 Or. at 22–23, 816 P.2d 593 (citations omitted).7

Here, plaintiff does not allege that defendants either engaged in intentional misconduct or intended to inflict emotional distress; consequently, the only arguably applicable trigger for liability is the third, “legally protected interest” exception. Further, plaintiff’s claim here is unambiguously one of direct injury; consequently, we need not be concerned with the special constraints of “indirect injury” or “hybrid” *615 liability noted above. Thus, our inquiry is focused: Has plaintiff, as the direct victim of defendants’ negligence, alleged facts describing an invasion of a separate “legally protected interest” sufficient to permit the recovery of damages for emotional distress without concurrent physical injury? **607 We begin, perhaps pedantically, with the meaning of “legally protected interest.” The genesis of that term appears to lie in Macca v. Gen. Telephone Co. of N.W., 262 Or. 414, 495 P.2d 1193 (1972). In Macca, the defendant had negligently mislisted a telephone number in a yellow pages directory, causing the plaintiff to receive calls at all hours of the night; that, in turn, caused the plaintiff to suffer emotional distress. The court, in sustaining the plaintiff’s recovery of emotional distress damages, concluded that the defendant’s conduct

“resulted in an invasion of plaintiff’s right to enjoy her property without unreasonable interference. As such it is governed by the law relating to a private nuisance, and























plaintiff is entitled to recover for mental distress resulting from defendant’s negligent act.” Id. at 418, 495 P.2d 1193.

In so holding, the court observed:

“Allowing recovery for mental suffering and anguish unaccompanied by physical injuries under the circumstances of the present case is in accord with previous decisions of this court. Where an independent basis of liability exists, irrespective of whether there existed physical injuries, recovery has been uniformly allowed for mental suffering and anguish.” Id. at 420 n. 1, 495 P.2d 1193 (citing cases; emphasis supplied).

Thus, in Macca, the “independent basis of liability,” which was later denominated “legally protected interest,” was the plaintiff’s property-law based right of use and enjoyment. See also Edwards v. Talent Irrigation District, 280 Or. 307, 309, 570 P.2d 1169 (1977) (sustaining plaintiff’s recovery of emotional distress damages in action for negligent release of water onto the plaintiffs’ property: “[D]efendant’s negligence has interfered with plaintiffs’ interest in the use and enjoyment of their land.”).8 *616 In McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977), the court reiterated the distinct “legal right” requirement. There, the plaintiff sued his former wife’s attorney, alleging that the attorney had negligently returned the wife’s passport to her, in violation of a custody order, permitting the wife to abscond to Switzerland with the couple’s daughter. The trial court dismissed the action, and the Supreme Court reversed. In rejecting the defendant’s argument that the plaintiff had failed to allege the requisites of recovery of emotional distress damages, the court commented:

“Under the terms of the divorce decree, as attached to the complaint, plaintiff had a legal right to the custody of his child and it is the infringement of that right which is the subject of this action. It follows, in our opinion, that conduct by defendant which resulted in an infringement of that legal right, if established by evidence on trial, would entitle plaintiff to recover damages for ‘anguish and mental [suffering] due to the loss of his minor child,’ as alleged in the complaint.” Id. at 789, 562 P.2d 540.

The term “legally protected interest” first appeared in this context in Norwest, an “indirect injury” case. In rejecting the plaintiff’s “parental consortium” claim, the court observed:

“If there are few causes of action for psychic or emotional harm as such, the reason is not found in objections to monetary damages for harm of that nature.

The reason may be found by focusing, not on the nature of the plaintiff’s loss, but on the source and scope of the defendant’s liability. This court has recognized common law liability for psychic injury alone when defendant’s conduct was either intentional or equivalently reckless of another’s feelings in a responsible relationship, or when it infringed some legally protected interest apart from causing the claimed distress, even when only negligently. * * * But we have not yet extended liability for ordinary negligence to solely psychic or emotional injury not accompanying any actual or threatened physical harm or any injury **608 to another legally protected interest.” 293 Or. at 558–59, 652 P.2d 318 (footnotes omitted).

*617 The court concluded:

“The obstacle to plaintiff’s action is that ordinarily negligence as a legal source of liability gives rise only to an obligation to compensate the person immediately injured, not anyone who predictably suffers loss in consequence of that injury, unless liability for that person’s consequential loss has a legal source besides its foreseeability.” Id. at 569, 652 P.2d 318 (emphasis supplied).

A year later, in Nearing, the court amplified the “legally protected interest” concept and explicitly stated that that “interest” must be distinct from liability grounded in the generic common law duty to avoid foreseeable harm:

“Plaintiffs [assert] that Oregon law does allow recovery of damages for psychic or emotional harm when defendant’s conduct infringes some legal right of the plaintiff independent of an ordinary tort claim for negligence. Plaintiffs are right. * * *

“ * * * * *

“The question, therefore, is whether plaintiffs pleaded an infringement by defendants of a legal right arising independently of the ordinary tort elements of a negligence action. It is clear that plaintiffs did so.

“The complaint alleges facts that, if proved, obliged the St. Helens police officers to respond to plaintiffs’ call for protection against the exact kind of harassment * * * that is said to have occurred, and it alleges that the officers refused to enforce the restraining order in the manner prescribed by law. The duty defendants are alleged to have neglected therefore is not an ordinary common law duty of due care to avoid predictable harm to another. It















is a specific duty imposed by statute for the benefit of individuals previously identified by a judicial order.

“ * * * * *

“In explaining their claim to the trial court as well as on appeal, plaintiffs described it as a type of action for defendants’ negligent failure to perform their duty, * * * though the words ‘negligent’ or ‘negligence’ neither were nor had to be used in the complaint. This invited possible confusion insofar as there is no cause of action for negligent infliction of purely psychic or emotional injury as such, unsupported *618 by a violation of some more specific duty toward the plaintiff. * * *

“ * * * [P]laintiff’s reference to ‘negligence’ in this case was immaterial to the alleged liability, if ‘negligence’ is used in the sense of ‘carelessness’ or ‘failure to use due care’ rather than merely as a conventional legal totem, because the result would not be different if defendants had acted, or failed to act, willfully or intentionally or with some other state of mind. It must be recalled what role the allegation of ‘negligence’ plays in an ordinary common law case. In general terms that role is to invoke a duty to take reasonable care not to cause a risk of a foreseeable type of harm to a foreseeable class of plaintiffs.” 295 Or. at 706–08, 670 P.2d 137 (emphasis supplied).

As we understand “legally protected interest,” as described in Norwest and Nearing, that term refers to a sort of “duty” that is distinct from Fazzolari9-like foreseeability. See Norwest, 293 Or. at 569, 652 P.2d 318; Nearing, 295 Or. at 708, 670 P.2d 137. The identification of such a distinct source of duty is the sine qua non of liability for emotional distress damages unaccompanied by physical injury. See Hammond, 312 Or. at 25, 816 P.2d 593 (rejecting liability for emotional distress damages where the plaintiff identified “no legal source of liability for her emotional injury other than its foreseeability”). We conclude that the relationship between plaintiff and defendant medical professionals, as alleged in the complaint, does give rise to such an actionable “legally protected interest.” Obviously, an action for malpractice and, particularly, failure to obtain informed consent, sounds, at least in part, in negligence. Just as obviously, a medical professional’s **609 standard of care toward his or her patients—and liability for breach of that standard—transcends mere Fazzolari foreseeability. That is, the relationship between medical professionals and their patients, of the sort alleged in this case, imposes a duty on the care providers that goes beyond the general common law duty to exercise reasonable care to prevent foreseeable harm. See, e.g., Dowell v. Mossberg, 226 Or. 173, 190, 359

P.2d 541 (1961). As the Supreme Court recently observed, in an analogous context:

*619 “[W]e first examine the types of relationships in which one party owes the other a duty to exercise reasonable care beyond the common law duty to prevent foreseeable harm.

“Oregon law imposes such a duty of care upon certain professionals in actions toward their clients. For example, lawyers owe their clients a duty to exercise reasonable care, as do physicians toward their patients. * * *

“ * * * * *

“ * * * Another way to characterize the types of relationships in which a heightened duty of care exists is that the party who owes the duty has a special responsibility toward the other party. This is so because the party who is owed the duty effectively has authorized the party who owes the duty to exercise independent judgment in the former party’s behalf and in the former party’s interests. In doing so, the party who is owed the duty is placed in a position of reliance upon the party who owes the duty; that is, because the former has given responsibility and control over the situation at issue to the latter, the former has a right to rely upon the latter to achieve a desired outcome or resolution.

“This special responsibility exists in situations in which one party has hired the other in a professional capacity, as well as in principal-agent and other similar relationships.” Conway v. Pacific University, 324 Or. 231, 239–40, 924 P.2d 818 (1996) (emphasis in original).

The analogous issue addressed in Conway was the proper scope of liability for economic damages resulting from negligent misrepresentation. In Conway, as in Onita Pacific Corp. v. Trustees of Bronson, 315 Or. 149, 843 P.2d 890 (1992), the court held that such liability “must be predicated on some duty of the negligent actor to the injured party beyond the common law duty to exercise reasonable care to prevent foreseeable harm.” Id. at 159, 843 P.2d 890. In both cases, the court stated that the existence of a professional relationship would give rise to such a distinct duty, permitting the imposition of liability.10 *620 The parallel to this case, though imperfect, is apparent. Just as liability for negligent misrepresentation must be predicated on a source distinct from “the common law duty to prevent foreseeable harm,” Conway, 324 Or. at 239, 924 P.2d 818, liability for negligent infliction of emotional distress must be grounded in a legal source beyond mere foreseeability. Norwest, 293 Or. at 569, 652



















P.2d 318. Just as the existence of a professional relationship gives rise to the requisite actionable duty of care for purposes of negligent misrepresentation, so too does the alleged relationship between the present plaintiff and defendants give rise to the requisite separate “legally protected interest” for purposes of negligent infliction of emotional distress. Plaintiff entrusted himself to defendants. Plaintiff relied on defendants’ professional competence and performance and, consequently, gave defendants “responsibility and control” over the administration of the MRI procedure. Conway, 324 Or. at 240, 924 P.2d 818. In so doing, plaintiff “effectively * * * authorized [defendants] to exercise independent judgment in [plaintiff’s] behalf and in [plaintiff’s] interests.” Id.11 **610 Plaintiff has, thus, pleaded facts demonstrating a separate “legally protected interest.” That does not quite end our inquiry, however. As we observed in Collver, “we have never said that the mere existence of a legally protected interest is sufficient to allow a plaintiff to recover emotional distress damages in the absence of a physical injury.” 132 Or.App. at 64, 887 P.2d 836. Rather, even if such an interest is demonstrated, the alleged invasion of that interest must be “of sufficient importance [as] to warrant the award of damages for emotional distress.” Id. at 66, 887 P.2d 836. See also Hilt, 75 Or.App. at 515, 707 P.2d 88 (“The critical inquiry becomes whether the kind of interest *621 invaded is of sufficient importance as a matter of policy to merit protection from emotional impact.”). Two brief illustrations of that concept should suffice. In Hilt, the plaintiff sued her former attorney for malpractice, alleging that the attorney’s negligence in counseling her during a divorce proceeding had resulted in the loss of her equity in her home, causing her mental distress. We did not resolve the issue of whether the attorney-client relationship gave rise to a legally protected interest.12 Instead, we concluded that, because the plaintiff’s underlying loss, viz the loss of her home, was “solely an economic one,” the invasion of any interest was not sufficient to warrant the recovery of emotional distress damages. Hilt, 75 Or.App. at 515, 707 P.2d 88.

In Collver, we considered whether the plaintiff could recover emotional distress damages on a claim against an insurance broker and carriers for negligent failure to procure auto insurance coverage. The plaintiff contended that the loss of his driver’s license as a result of being an uninsured driver constituted an invasion of a separate “legally protected interest” sufficient to permit recovery of emotional distress damages. After canvassing the case law, we concluded that, “[a]ssuming without deciding that an invasion of a legally protected interest has occurred * * *, the invasion is not of sufficient importance to warrant the award of damages for emotional distress * * *; the invaded interest is chiefly an economic one.” 132 Or.App. at 66, 887 P.2d 836. The determination of whether an invasion of a protected interest is of a sufficient quality or magnitude to warrant recovery of emotional distress damages seems, almost inevitably, to be case-specific. See, e.g., Meyer v. 4–D Insulation Co., Inc., 60 Or.App. 70, 74, 652 P.2d 852 (1982) (describing seemingly “ad hoc” quality of judicial decisions in this *622 area). Regardless, we conclude that plaintiff’s complaint alleges an invasion sufficient to support recovery of such damages. Here, unlike in Hilt and Collver and their underlying authority, plaintiff did not suffer mental distress as a secondary consequence of some economic loss occasioned by defendants’ negligence. That is, this is not a case **611 in which defendants’ negligence caused economic loss that, in turn, generated emotional distress. Rather, plaintiff’s psychic distress, as alleged, was the direct consequence of plaintiff’s physical confinement and the concomitant violation of his psychic integrity. The trial court erred in granting judgment on the pleadings. Reversed and remanded.

All Citations

148 Or.App. 607, 941 P.2d 602

Footnotes 1

MRI is a noninvasive diagnostic technique that uses the simultaneous application of a magnetic field and electromagnetic radiation to discover information about the molecular material in a patient’s body. MRI is used to diagnose brain tumors and disorders, spinal disorders, multiple sclerosis, and cardiovascular disease. The procedure is considered to be medically risk-free. The Concise Columbia Encyclopedia 521 (3d ed 1994).

2

“Defendants” herein refers only to MRI Imaging Services II and ABCT, Inc. North Lincoln Hospital was also a defendant but was dismissed by stipulation of the parties.

3

Plaintiff also sought economic damages, for past and anticipated future medical expenses, of approximately $13,500.


















4

Plaintiff points out correctly that no Oregon decision has explicitly stated that “rule” in circumstances in which the plaintiff was the direct victim of the tortious conduct. Compare Saechao v. Matsakoun, 78 Or.App. 340, 345–48, 717 P.2d 165, rev. dismissed 302 Or. 155, 727 P.2d 126 (1986) (plaintiffs who suffered psychic injury from witnessing negligent physical injury to a close relative, but who suffered no physical injury, could not recover emotional distress damages). Nevertheless, as amplified below, that “rule”—or, more correctly, unspoken first premise—underlies the evolution of Oregon law in this area.

5

See also Heusser v. Jackson County Health Dept., 92 Or.App. 156, 757 P.2d 1363 (1988), rev. den. 307 Or. 326, 767 P.2d 902 (1989) (affirming dismissal of mother’s complaint, which sought emotional distress damages arising from the defendants’ negligent inoculation of her children with live virus vaccine).

6

One case that may defy categorization is Hovis v. City of Burns, 243 Or. 607, 415 P.2d 29 (1966). There, the court held that the plaintiff was entitled to recover damages for emotional distress resulting from the defendants’ negligent disinterment of her husband’s remains.

7

In Meyer v. 4–D Insulation Co., Inc., 60 Or.App. 70, 73–74, 652 P.2d 852 (1982), this court identified four groups of exceptions that correspond, more or less, to the three general categories of exceptions identified in Hammond:

“The cases can be grouped into four main categories, although they cannot be said to form a definite pattern: (1) certain intentional torts, including trespass to land * * *; (2) private nuisance; (3) invasion of privacy; and (4) miscellaneous cases[.]” (Citations omitted.)

8

One often-cited example of a case involving a separate “legally protected interest” is Hovis, note 6 above, which antedated Macca v. Gen. Telephone Co. of N.W., 262 Or. 414, 495 P.2d 1193 (1972), and was cited in Macca’s “independent basis of liability” discussion. Id. at 420 n. 1, 495 P.2d 1193. The court in Hovis did not, however, employ the “legally protected interest” or “independent basis of liability” rubric

9

Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987)

10

Neither Onita Pacific Corp. v. Trustees of Bronson, 315 Or. 149, 165, 843 P.2d 890 (1992), nor Conway v. Pacific University, 324 Or. 231, 239–40, 924 P.2d 818 (1996), involved a professional relationship. In both cases, the court held that the circumstances presented did not permit the recovery of damages for negligent misrepresentation.

11

Other jurisdictions have allowed recovery for negligent infliction of emotional distress, without physical injury, where a special relationship gave rise to a heightened duty of care. See Oswald v. LeGrand, 453 N.W.2d 634, 639 (Iowa 1990) (recognizing an exception to the rule of no recovery in negligence without physical injury, because a duty to exercise “ordinary care to avoid causing emotional harm” arises from the medical professional-patient relationship); Burgess v. Superior Court (Gupta), 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 619, 831 P.2d 1197, 1201 (1992) (allowing recovery of mental distress damages in medical malpractice action, where a “duty arising from a preexisting relationship [had been] negligently breached”); Marlene F. v. Affiliated Psychiatric Med. Clinic, 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278 (1989) (allowing recovery of damages for emotional distress in psychological malpractice action: mental distress damages are recoverable “for severe emotional distress * * * in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship”).

12

In Hilt v. Bernstein, 75 Or.App. 502, 512–14, 707 P.2d 88 (1985), rev. den. 300 Or. 545, 715 P.2d 92 (1986), we distinguished Rockhill v. Pollard, 259 Or. 54, 485 P.2d 28 (1971), and McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977), two cases that the plaintiff invoked for the proposition that the “special relationship” between the parties permitted the recovery of emotional distress damages. After distinguishing those cases, however, we did not foreclose the possibility that the existence of a professional relationship could give rise to a legally protected interest. Instead, we merely proceeded to address, and reject, the plaintiff’s apparent argument that “she is * * * entitled to damages for emotional suffering whenever any alleged violation of an independent legal right is involved.” 75 Or.App. at 514, 707 P.2d 88 (emphasis in original).














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Batzer Const., Inc. v. Boyer, 204 Or.App. 309, 129 P.3d 773 (2006)



BATZER CONSTRUCTION, INC. and John Batzer, Respondents,

v. John BOYER, Appellant.

00–2145–L–1; A119350. |

Argued and Submitted June 3, 2004. |

Decided Feb. 15, 2006.

Synopsis Background: Party to a joint business venture sued the other party for breach of contract for sale of building plaintiff would build for defendant at plaintiff’s cost. The Circuit Court, Jackson County, G. Phillip Arnold, J., entered judgment for plaintiff after bench trial. Defendant appealed.

Holdings: The Court of Appeals, Armstrong, J., held that: court may consider circumstances underlying formation of contract to determine whether a contract term is ambiguous, and term “cost” was unambiguous and referred to plaintiff’s actual cost. Affirmed. Procedural Posture(s): On Appeal.


**774 Clayton C. Patrick, Portland, argued the cause and filed the briefs for appellant.

Joseph E. Kellerman, Medford, argued the cause for respondents. With him on the **775 brief were Charles E. Bolen and Hornecker, Cowling, Hassen & Heysell, L.L.P.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

Opinion

ARMSTRONG, J.*311 Defendant appeals a judgment for plaintiffs in a contract action. He assigns error to the trial court’s grant of a directed verdict for plaintiffs on their claim and on his counterclaims. Plaintiffs cross-assign error to the trial court’s ruling that defendant’s counterclaims were not time barred by ORS 12.110(1), the general tort statute of limitation. We affirm.

Defendant and plaintiffs built buildings for lease to the United States Postal Service (USPS). Each party performed specific tasks to further that endeavor. Defendant found suitable land, purchased the land, and handled most of the negotiations with the USPS. The plaintiffs prepared bids and, if the USPS accepted the bids, constructed the buildings. The bids consisted of a per annum rent amount that plaintiffs and defendant calculated based on estimates of how much it would cost to build the buildings. After the USPS accepted a bid, it could alter the building plans that formed the basis for the bid. If the change would increase the cost of the project, defendant and plaintiffs, as co-owners, could submit a change order to the USPS for the additional cost. If the USPS accepted the proposed change order, it would pay the additional cost resulting from the change rather than recalculate the lease to reflect the increased cost of the building. If the USPS rejected the change order, then the change that it had requested would not be made. In 1997, defendant and plaintiffs agreed to end their business ventures and divide their jointly held assets between them. As part of that agreement, plaintiffs received the sole rights to some of the land and a number of buildings that the parties had co-owned. Defendant received the sole rights to the balance of the land and a number of buildings that the USPS had agreed to lease. However, when the agreement became effective, the buildings that defendant received had not been completed. The parties’ contract addressed that by providing that plaintiffs would “build post offices in Turner, Corvallis, and Toledo, Oregon for [defendant] at a price equal to [plaintiffs’ ] cost including attributed liability insurance costs.” (Emphasis added.) A handwritten note in the margin of the contract indicates that liability insurance *312 costs were to be the sole item of overhead and profit paid to plaintiffs for work on the buildings. Both parties initialed the note. After the parties divided their jointly owned assets, plaintiffs completed the three buildings. However, plaintiffs spent more to build the buildings than the total of


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the estimates on which the bid amounts were based, insurance expenses, and the amount paid by the USPS for approved change orders. Defendant refused to pay plaintiffs for costs that exceeded that total. In response, plaintiffs brought this breach of contract action, alleging that it had cost $95,366.08 more to construct the buildings than defendant had paid for them and seeking a judgment for that amount plus prejudgment interest. Defendant, in turn, alleged various counterclaims against plaintiffs. In answer to those counterclaims, plaintiffs alleged, among other things, that defendant’s claims were time barred because they actually were tort claims that were subject to a two-year statute of limitation rather than the six-year statute that applies to contract claims. At trial, defendant took the position that the term “[plaintiff’s] cost” was ambiguous and that the circumstances underlying the formation of the contract revealed that the term meant the cost estimates on which the bids were based plus approved change orders. After defendant had presented all of his evidence on the meaning of the term “[plaintiffs’] cost” and on most of his counterclaims, plaintiffs moved for a directed verdict on their claim against defendant, arguing that the term “[plaintiffs’] cost” in the parties’ contract could be interpreted only to mean the expenses that plaintiffs had incurred to construct the buildings.1 Plaintiffs **776 also moved for a directed verdict on defendant’s counterclaims, arguing that *313 defendant had not proved his damages and that his claims were time barred. The court granted plaintiffs’ motion for a directed verdict on plaintiffs’ contract claim and most of defendant’s counterclaims. In making that ruling, the court concluded that the term “[plaintiffs’] cost” was unambiguous and that the evidence presented by defendant did not render the term ambiguous. The trial court concluded that “[plaintiffs’] cost” meant all of the expenses that plaintiffs had incurred in constructing the buildings. The court also concluded that, even if the term “[plaintiffs’] cost” were ambiguous, defendant was nevertheless responsible for submitting change orders to the USPS and had failed to do so. After receiving additional evidence on defendant’s remaining counterclaim, the court determined that plaintiffs were liable to defendant for $8,000 on that counterclaim and that defendant was liable to plaintiffs for $95,366.08 plus prejudgment interest. The court entered judgment accordingly. On appeal, defendant first assigns error to the trial court’s grant of plaintiffs’ motion for directed verdict on plaintiffs’ breach of contract claim. Specifically, defendant argues that the court erred in concluding that the term “[plaintiff’s] cost” is unambiguous. As at trial, defendant’s theory on appeal is that the meaning of the term “[plaintiffs’] cost” as the parties used it in their agreement is ambiguous in light of the circumstances underlying the formation of the

contract. “A contract provision is ambiguous if it has no definite significance or if it is capable of more than one sensible and reasonable interpretation [.]” Deerfield Commodities v. Nerco, Inc., 72 Or.App. 305, 317, 696 P.2d 1096, rev. den., 299 Or. 314, 702 P.2d 1111 (1985). Although neither party addresses it, we first must examine the threshold issue whether a trial court can consider the circumstances underlying the formation of a contract to determine whether the terms of the contract are ambiguous. ORS 41.740 codifies the parol evidence rule and, in relevant part, provides:

“When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, *314 no evidence of the terms of the agreement, other than the contents of the writing, except where a mistake or imperfection of the writing is put in issue by the pleadings or where the validity of agreement is the fact in dispute. However, this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in ORS 42.220, or to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud.”

(Emphasis added.) Thus, there are three exceptions to the general rule prohibiting a court from considering extrinsic evidence to establish the terms of a written agreement. The rule does not exclude evidence of (1) “the circumstances under which the agreement was made, or to which it relates, as defined in ORS 42.220”; (2) “to explain an ambiguity, intrinsic or extrinsic”; or (3) “to establish illegality or fraud.” ORS 41.740. For purposes of this case, it is the first exception that is at issue. ORS 42.220 provides:

“In construing an instrument, the circumstances under which it was made, including the situation of the subject and the parties, may be shown so that the judge is placed in the position of those whose

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language the judge is interpreting.”

**777 In Abercrombie v. Hayden Corp., 320 Or. 279, 292, 883 P.2d 845 (1994), the Supreme Court interpreted ORS 42.220 to allow a trial court to “consider parol and other extrinsic evidence to determine whether the terms of an agreement are ambiguous.” See also Criterion Interests, Inc. v. The Deschutes Club, 136 Or.App. 239, 243 n. 2, 902 P.2d 110, adh’d to as modified on recons., 137 Or.App. 312, 903 P.2d 421 (1995), rev. den., 322 Or. 489, 909 P.2d 161 (1996) (concluding that Abercrombie resolved the issue whether underlying circumstances may be considered in order to determine whether a term is ambiguous). We have explained that

“Abercrombie does not stand for the proposition that any extrinsic evidence may be considered in determining whether a term is ambiguous. Rather, Abercrombie’s reliance on ORS 42.220 as support for its statement makes clear that the extrinsic evidence that may be considered is limited to the circumstances under which the agreement was made.”

*315 City of Eugene v. Monaco, 171 Or.App. 681, 687, 17 P.3d 544 (2000), rev. den., 332 Or. 240, 28 P.3d 1175 (2001). Thus, it would seem clear that ORS 42.220, as interpreted by the Supreme Court in Abercrombie and consistently applied by this court, allows a trial court to consider evidence of the circumstances underlying the formation of a contract in its analysis of whether a contract term is ambiguous. However, the Supreme Court’s decision in Yogman v. Parrott, 325 Or. 358, 937 P.2d 1019 (1997), muddies the water a bit. In Yogman, the Supreme Court described a three-step analysis for the construction of a contractual provision. Id. at 361, 937 P.2d 1019. At the first analytic step, the court considers the text and context of the contractual provision to determine whether the provision is ambiguous. Id. If the text and context reveal that the provision is ambiguous, then at the second step, the factfinder considers the “extrinsic evidence of the contracting parties’ intent.” Id. at 363, 937 P.2d 1019. If the “provision remains ambiguous after the first two steps have been followed, the court relies on appropriate maxims of construction” to determine the provision’s meaning. Id. at 364, 937 P.2d 1019. Because the Supreme Court did not discuss Abercrombie, ORS 42.220, or the role that evidence of the underlying circumstances plays in the analysis, there has been some question about whether the rule of Abercrombie survived Yogman. In fact, the United States Court of Appeals for the Ninth Circuit has concluded

that Yogman implicitly overruled that portion of Abercrombie that would allow a trial court to consider evidence of the circumstances underlying the formation of the contract to determine whether a particular contractual provision is ambiguous. Webb v. National Union Fire Ins. Co. of Pittsburgh, 207 F.3d 579, 581–82 (9th Cir.2000). We have declined to draw the same conclusion about Yogman that the Ninth Circuit did, and we have maintained on at least two occasions that Abercrombie is still good law. City of Eugene, 171 Or.App. at 687 n. 7, 17 P.3d 544; OTECC v. Co–Gen, 168 Or.App. 466, 476 n. 8, 7 P.3d 594 (2000), rev. den., 332 Or. 137, 27 P.3d 1043 (2001). However, our conclusions in those cases regarding the continued vitality of the Abercrombie rule could be considered dicta because in City of Eugene the extrinsic evidence on *316 which the defendant relied was not evidence of the circumstances under which the contract was made and in OTECC we indicated that the result in that case would be the same regardless of which Supreme Court case we followed. Thus, the apparent inconsistency between Yogman and Abercrombie arguably survives. We take this opportunity to resolve conclusively that Abercrombie survived Yogman.2 **778 When viewed properly, the apparent inconsistency between Yogman and Abercrombie is illusory. In Yogman, the court was not presented with evidence of the circumstances underlying the contract at issue and, thus, did not have the opportunity to consider where in its three-step framework such evidence could properly be considered. Consequently, Yogman’s silence as to Abercrombie, ORS 42.220, and the role of evidence of underlying circumstances is understandable. Furthermore, the court in Yogman concluded that the contractual provision at issue was ambiguous based solely on the text and context of the provision. 325 Or. at 363, 937 P.2d 1019. Thus, there was no need for the court to comment on whether a court can consider the circumstances underlying the formation of a contract to determine whether a term is ambiguous. Where the Yogman court did consider extrinsic evidence—at the second level of its analysis after it had already concluded that the provision was ambiguous—it did so in a manner consistent with the second exception to the parol evidence rule explained above. That exception allows the court *317 to use extrinsic evidence “to explain an ambiguity, intrinsic or extrinsic.” ORS 41.740. That Yogman applied only the second exception to the parol evidence rule provided in ORS 41.740 does not render the other two exceptions a dead letter. Thus, nothing in Yogman requires the conclusion that that decision overruled Abercrombie.
























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Finally, to the extent that Abercrombie interpreted ORS 42.220 (and we concluded in Criterion Interests, 136 Or.App. at 243 n. 2, 902 P.2d 110, that it did), that interpretation became part of ORS 42.220 “as if it were written into the statute at the time of its enactment.” OTECC, 168 Or.App. at 476–77 n. 8, 7 P.3d 594 (citing Holcomb v. Sunderland, 321 Or. 99, 105, 894 P.2d 457 (1995)). Such an interpretation by the Supreme Court is subject to revision only by the legislature. State v. King, 316 Or. 437, 445, 852 P.2d 190 (1993) (citing State v. White, 303 Or. 333, 348, 736 P.2d 552 (1987)).3 Based on the silence in Yogman as to its effect on Abercrombie and the fact that the legislature has not amended ORS 42.220 since the court’s interpretation of it in Abercrombie, we conclude that ORS 42.220 and ORS 41.740 still allow a trial court to consider the circumstances underlying the formation of a contract to determine whether a particular contractual provision is ambiguous. Thus, to determine whether a contractual provision is ambiguous, the trial court can properly consider the text of the provision in the context of the agreement as a whole and in light of the circumstances underlying the formation of the contract. That conclusion affects our standard of review. Generally, on appeal from the grant of a motion for directed verdict (or, more accurately in this case, a motion for judgment as a matter of law, see 204 Or.App. at 312 n. 1, 129 P.3d at 775–76 n. 1), we review the trial court’s grant of the directed verdict for legal error, considering the evidence in the light most favorable to the party against whom the verdict was entered. Mauri v. Smith, 324 Or. 476, 479, 929 P.2d 307 (1996). Whether a contract is ambiguous is a question of law. Yogman, 325 Or. at 361, 937 P.2d 1019. However, where the court must determine whether a contractual *318 term is ambiguous, and the parties have presented evidence of the circumstances underlying the formation of the contract, the court must first find the historical facts before resolving the legal **779 question whether the term is ambiguous.4 The proper analysis in such a case is not unlike the analysis of whether the terms of a contract are integrated. As with the question whether a contractual term is ambiguous, the question whether the terms of a contract are integrated presents a legal question. In Wescold, Inc. v. Logan International, Ltd., 120 Or.App. 512, 519–20, 852 P.2d 960 (1993), rev. den., 318 Or. 459, 871 P.2d 123 (1994), we explained the proper analysis that a court must follow in resolving the latter question, and the appropriate standard of appellate review:

“[D]eciding whether terms of a contract are integrated in a writing involves two steps. First, the court must consider all the relevant

circumstances to resolve preliminary issues of historical fact. Simply put, the court must decide what happened. * * *. We review those findings for any evidence to support them. * * *. Second, the court determines the legal effects of those facts. We review that determination as a legal conclusion.”

(Internal citations omitted.) Nor is the appropriate analysis in this case unlike that at issue in Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). There, the trial court resolved the legal issue of whether the defendant’s confession was voluntary. On appeal, the Supreme Court recognized that, in order to resolve that legal issue, the trial court necessarily had to make findings of historical fact. Id. at 487, 443 P.2d 621. The Supreme Court explained that,

“[i]f findings are not made on all such facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate [legal] conclusion.”

Id. *319 Here, the trial court was charged with drawing a legal conclusion about whether the disputed contractual term was ambiguous and was presented with evidence of the circumstances underlying the formation of the contract that, as explained below, suggested that the term was reasonably capable of more than one interpretation. Nonetheless, the court concluded that the term was unambiguous. That conclusion is pregnant with implicit factual findings, and, as discussed below, an implicit credibility determination. Again, we review the court’s explicit and implicit findings of fact for any evidence in the record to support them, and the legal consequences of those facts for legal error. Cf. Wescold, 120 Or.App. at 519–20, 852 P.2d 960. As noted above, defendant’s primary thesis on appeal is that the term “[plaintiffs’] cost” is ambiguous and, properly construed, means the amounts that the parties used to prepare their bids to the USPS in order to win the contract to build the relevant post offices. Those bid amounts, defendant argues, consist of a specific dollar amount, the cost of certain materials, and the cost of USPS-approved change orders.






























We start with the text and context. “Cost” is an inherently flexible term. Nonetheless, the context of the term in this contract helps us understand what the parties intended the term to mean. Handwritten beneath the paragraph that includes the provision in question, initialed by both parties, and connected by a hand-drawn arrow to the typewritten provision that the price includes “attributed liability insurance costs” is the phrase “sole cost item of OH & P.” In contracting parlance, “OH & P” stands for overhead and profit. Thus, the parties agreed that the liability insurance costs were the sole item of overhead and profit. That the parties chose to articulate the sole item of overhead and profit points toward the conclusion that “[plaintiffs’] cost,” as used in this contract, does not include other items of overhead and profit. With that in mind, we consider the evidence in the record of the underlying circumstances. Defendant points to the parties’ past dealings, prior drafts of the agreement, and a statement that he purportedly made to plaintiffs before the *320 parties signed their contract as the circumstances underlying the **780 formation of the contract. We begin with the evidence of the parties’ prior dealings. Evidence of a prior course of dealing is evidence of the circumstances underlying a contract. See Stanfield v. Arnwine, 102 Or. 289, 299, 202 P. 559 (1921) (holding that trial court erred by not allowing the plaintiff to introduce evidence of prior dealings with the defendant). Defendant argues that the parties’ prior dealings establish that the term “[plaintiffs’] cost” is ambiguous. In support of his argument, defendant first points out that, during the parties’ co-ownership of the properties, plaintiffs or an employee of plaintiffs submitted all change orders to the USPS. Although the fact that plaintiffs had in the past submitted the change orders is a circumstance that the court could consider in construing the parties’ contract, that fact does not speak to the meaning of the term cost. Rather, it indicates that, if plaintiffs were responsible for submitting change orders to the USPS, then defendant might have a claim for breach of contract if plaintiffs failed to submit the appropriate change orders. We consider that possibility below. However, whether the USPS paid defendant for any changes to the buildings does not support the idea that plaintiffs did not incur a cost unless they submitted a change order to the USPS. Whether or not defendant was paid for the cost of making a change to a building, plaintiffs would still have incurred costs in making the change. The parties’ past practice on the submission of change orders does not reasonably support an interpretation of “[plaintiffs’] cost” to mean what defendant contends that it means. Defendant also relies on prior drafts of the parties’ agreement.5 Those drafts provide, sequentially, that plaintiffs were to build the buildings “for costs plus 8%”;

“for costs not to exceed the bid amount”; and “per price to be agreed upon.” Neither party addresses whether the parties’ precontract negotiations constitute circumstances underlying the formation of the contract under ORS 42.220, but it appears to us that they do. In Anderson v. Divito, 138 Or.App. 272, 279, 908 P.2d 315 (1995), we considered the parties’ precontract *321 negotiations in order to determine whether the circumstances underlying the formation of the contract demonstrated that the contract was ambiguous. Here, the prior drafts are of no help to defendant. Rather than supporting defendant’s argument, the different proposals support plaintiffs’ contention that the contract is unambiguous. The parties first rejected the idea that plaintiffs would construct the buildings for the amount that it actually cost to construct them plus eight percent of that amount as overhead and profit. Next, the parties rejected the idea that plaintiffs would be paid the actual costs so long as that amount did not exceed the bid amount. Lastly, the parties rejected the idea that they would determine the appropriate payment later. Thus, rather than supporting an alternative construction of the term “[plaintiffs’] costs,” the prior drafts of the agreement support plaintiffs’ contention that the term unambiguously refers to plaintiffs’ actual costs. Because the prior drafts of the agreement are consistent with the trial court’s legal conclusion that the contract was unambiguous, we presume that the trial court implicitly found that the prior drafts submitted into evidence accurately reflected the parties’ negotiations. Defendant also argues that his statement to plaintiffs before they signed the contract that “ ‘[plaintiffs’] cost’ refers to the bids,” and plaintiffs’ silence in response to that statement, render the meaning of “[plaintiffs’] cost” ambiguous. Defendant’s statement and plaintiffs’ silence in response to it are circumstances underlying the formation of the contract. See Stanfield, 102 Or. at 299, 202 P. 559 (“If, as part of the transaction in explaining the term, one of the parties had made an admission as to [what a term meant,] that would be admissible against him.”). Defendant identifies the bids as consisting of the specific dollar amounts that the parties used to prepare the bid to the USPS, the cost of certain materials, and USPS-approved change orders. In essence, defendant’s position is that, if the USPS approved change orders for the three post offices, **781 plaintiffs would be entitled, under the agreement, to receive the amounts paid by the USPS under the change orders. *322 Of the circumstances underlying the formation of the contract, only defendant’s purported statement possesses even the slimmest potential to render the contract ambiguous. If defendant had, in fact, said to plaintiffs, “ ‘[C]ost’ refers to the bids,” and plaintiffs had said nothing











in response, then that circumstance could have been enough to create an ambiguity as to the meaning of the term “[plaintiffs’] cost.” That is, such a circumstance might make the term subject to more than one reasonable interpretation. However, as we explained above, we must presume that the trial court found the historical facts in a manner consistent with its legal conclusion that the term is unambiguous. Thus, we presume that the trial court made an implicit credibility finding as to defendant’s testimony and that it implicitly found, as historical fact, that defendant did not make such a statement. Cf. State v. Parker, 113 Or.App. 513, 517, 835 P.2d 918, aff’d in part and rev’d in part on other grounds, 317 Or. 225, 855 P.2d 636 (1993) (presuming that, given the trial court’s legal conclusion, the trial court did not believe uncontroverted evidence and explaining that the trial court, as factfinder, could do that). With the facts as implicitly found by the trial court in mind, we conclude that the trial court did not err in concluding that, as a matter of law, the contractual term “[plaintiffs’] cost” is unambiguous. Although the term “cost” ordinarily may be used in a variety of ways, the context of the other provisions of the contract and the prior drafts of the parties’ contract make clear that the parties intended the term to mean plaintiffs’ actual costs. Furthermore, because the trial court can be understood not to have credited defendant’s testimony that he told plaintiffs that “ ‘costs’ refers to bids,” there is no evidence in the record to suggest any other reasonable interpretation. The trial court did not err in granting plaintiffs’ motion on plaintiffs’ breach of contract claim. We turn to defendant’s assignment of error on the court’s ruling on defendant’s counterclaims. Defendant alleged that plaintiffs had breached their contract with him with regard to the Turner and Toledo post offices by, among other things, “failing to manage and track change orders and bill the end purchaser and user of the construction the *323 change order amounts.” Defendant also alleged that it was plaintiffs’ responsibility to submit change orders to the USPS, and that plaintiffs had breached that duty. The trial court rejected defendant’s counterclaims, stating, “I can’t find from this evidence, and would not find, that it was, as a matter of contract law, it was anybody’s obligation other than the owner’s obligation to get change orders approved.” The trial court explicitly based its conclusion on a rider to the lease agreement with the USPS. On appeal, defendant argues that, in the parties’ past dealings, plaintiffs had submitted the change orders to the USPS. Plaintiffs do not dispute that plaintiffs submitted the change orders to the USPS during the period of the parties’ co-ownership of the properties. Plaintiffs argue, however, that the court correctly interpreted the lease agreement with

the USPS to require defendant to submit change orders to the USPS. We review the trial court’s disposition of defendant’s counterclaims as we would the grant of a motion for involuntary dismissal under ORCP 54 B(2) for insufficient evidence. Dillard and Dillard, 179 Or.App. 24, 29 n. 2, 39 P.3d 230 (2002). We review such a ruling for legal error, inquiring whether the evidence in the trial record establishes a prima facie case. Thorson v. Dept. of Justice, 171 Or.App. 704, 709, 15 P.3d 1005 (2000) (citing Ranger Ins. Co. v. Globe Seed & Feed Co., Inc., 125 Or.App. 321, 327, 865 P.2d 451 (1993), rev. den., 318 Or. 458, 871 P.2d 122 (1994), and Scholes v. Sipco Services & Marine, Inc., 103 Or.App. 503, 506, 798 P.2d 694 (1990)). To succeed on his counterclaims, defendant had to establish that plaintiffs had a contractual obligation to submit change orders to the USPS on the Toledo and Turner post offices. Nothing in the text or the context of the contract between the parties under which they divided their joint assets speaks to such a duty. As discussed above, it is undisputed that plaintiffs submitted change orders to the **782 USPS as a part of the parties’ prior joint ventures. However, when plaintiffs did so, plaintiffs and defendant were co-owners of the properties involved. By virtue of the agreement between the parties, effective January 1, 1997, defendant became the sole owner of the limited liability companies (LLCs) that owned the Toledo and Turner post offices. *324 That undisputed fact is important because the evidence in the record establishes that the lessor of the post office was responsible for submitting change orders to the USPS. A construction rider to the lease agreements between the USPS and the LLCs that owned the Toledo and Turner post offices provides:

“Unless otherwise specified, no construction activity at the site may be commenced until the Lessor has received written notice from the [USPS’s] contracting officer of approval of final drawings and specifications. Changes or modifications which may be required during construction must be approved in writing by the [USPS’s] contracting officer prior to proceeding with such changes.”

Roche, the USPS project manager for the Toledo and Turner post offices, testified that only the lessor of the property—in this case the LLCs owned by defendant—could “officially” make change order requests. Roche stated that, if the USPS received change order requests from a contractor, the USPS would “have to, in turn, send





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those to the owner because we do not have a contract with the builder. In other words, any correspondence has to come through the owner to us.” Because the owner of the post office property is responsible for submitting change order requests to the USPS, it is unremarkable that, on the previous projects where plaintiffs were co-owners with defendant of the property, plaintiffs had submitted such requests directly. Thus, the prior practice of the parties does not establish that plaintiffs had an obligation to submit the change orders under the parties’ contract. Because there is no evidence in the record to establish that plaintiffs had a contractual obligation to defendant to submit change orders to the USPS on the Toledo and Turner post offices, the trial court did not err in granting plaintiffs’ motion for dismissal of defendant’s counterclaims regarding those post offices. Having resolved defendant’s assignments of error, we turn to plaintiffs’ cross-assignment of error. Plaintiffs cross-assign error to, but did not cross-appeal from, the court’s

ruling that defendant timely filed his counterclaims. In response, defendant argues that, because plaintiffs’ cross-assignment of error seeks to modify the trial court’s $8,000 *325 judgment for defendant on one of defendant’s counterclaims, it is not a proper cross-assignment under ORAP 5.57(2). We agree and reject plaintiffs’ cross-assignment of error without further discussion. See Samuel v. King, 186 Or.App. 684, 690–91, 64 P.3d 1206, rev. den., 335 Or. 443, 70 P.3d 893 (2003) (holding that a respondent’s assignment of error that would yield relief different from that awarded by trial court judgment was not properly before appellate court unless raised by cross-appeal). Affirmed.

All Citations

204 Or.App. 309, 129 P.3d 773

Footnotes 1

Strictly speaking, “there can be no directed verdict in a case tried to the court,” Dillard and Dillard, 179 Or.App. 24, 28–29 n. 2, 39 P.3d 230, rev. den., 334 Or. 491, 52 P.3d 1056 (2002), and there is no plaintiff’s equivalent for a motion under ORCP 54 B. By their motion, plaintiffs sought to tell the court that they were entitled to prevail as a matter of law. We cannot speculate as to whether plaintiffs brought this motion in order to preserve their legal argument for appeal, as required by Peiffer v. Hoyt, 186 Or.App. 485, 63 P.3d 1273 (2003), aff’d, 339 Or. 649, 125 P.3d 734 (2005). However, we note that plaintiffs no longer must make such a motion as a result of the Supreme Court’s decision in Peiffer. See Peiffer v. Hoyt, 339 Or. 649, 659, 125 P.3d 734 (2005).

2

In OTECC, we adhered to Abercrombie for three reasons:

“First, if Abercrombie is to be disavowed, the Oregon Supreme Court should do the disavowing. The court did not do so—at least not explicitly—in Yogman despite Abercrombie’s then-recent vintage. Second, the relevant portion of Abercrombie appears to be based on ORS 42.220. When the Oregon Supreme Court interprets a statute, that interpretation becomes part of the statute as if it were written into the statute at the time of its enactment. * * * We therefore are particularly reluctant to disregard Abercrombie’s conclusion insofar as it reflects the requirements of that statute. Finally, we have followed Abercrombie and resolved cases in reliance on it. See, e.g., Moon v. Moon, 140 Or.App. 402, 407, 914 P.2d 1133, rev. den. 323 Or. 484, 918 P.2d 848 (1996); Criterion Interests, Inc. v. The Deschutes Club, 136 Or.App. 239, 245, 902 P.2d 110, on recons. 137 Or.App. 312, 903 P.2d 421 (1995), rev. den. 322 Or. 489, 909 P.2d 161 (1996).”

168 Or.App. at 476 n. 8, 7 P.3d 594 (some citations omitted). In addition to the reasons that we discuss in the text, we rely on those same three factors to reach our conclusion that Abercrombie is still good law.

3

Admittedly, the Supreme Court has not always strictly adhered to its statement in King. See Holcomb, 321 Or. 99, 105, 894 P.2d 457 (1995); see also Jack L. Landau, Some Observations About Statutory Construction in Oregon, 32 Willamette L. Rev. 1, 20–23 (1996) (discussing Holcomb ).

4

That conclusion is consistent with the language of ORS 42.220, which contemplates placing the judge “in the position of those whose language the judge is interpreting.”

5

We note that plaintiffs’ attorney prepared all of the drafts of the parties’ contract. The record does not indicate which party proposed the various terms.

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State v. Flores, 68 Or.App. 617, 685 P.2d 999 (1984)


68 Or.App. 617 Court of Appeals of Oregon,

In Banc.*

STATE of Oregon, Respondent, v.

Daniel FLORES, Appellant.

No. (10–81–05891; CA A22413; SC 28913.) |

Argued and Submitted June 17, 1983. |

Decided June 13, 1984. |

Reconsideration Denied Sept. 7, 1984. |

Review Denied Oct. 30, 1984.

Synopsis Defendant was convicted in the Circuit Court, Lane County, Edwin E. Allen, J., for being an ex-convict in possession of a firearm and for possession of a controlled substance, and he appealed. The Court of Appeals, 58 Or.App. 437, 648 P.2d 1328, affirmed. The Supreme Court, 294 Or. 77, 653 P.2d 960, allowed petition for review, and remanded for reconsideration. On remand, the Court of Appeals, Gillette, J., held that: (1) officer had probable cause to believe that defendant was committing offense of possession of controlled substance in officer’s presence, and thus the search involved in taking plastic bag containing marijuana from defendant was “incident to arrest,” and (2) searches of front seat of defendant’s car, brown paper bag, closed cigarette purse, closed change purse, and area of passenger compartment, resulting in discovery of further contraband and a gun, were proper, since they were reasonably related in time, scope and intensity to the arrest for possession of marijuana. Affirmed. Buttler, J., filed a concurring opinion. Young, J., filed opinion concurring in part and dissenting in part in which Joseph, C.J., and Newman, J., joined.


*618 **1000 Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

**1001 Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol.

Gen., Salem.

Opinion

*619 GILLETTE, Judge.

In this case involving criminal convictions for ex-convict in possession of a firearm and possession of a controlled substance, we are once again presented with an occasion to discuss an aspect of Oregon’s developing state law of search and seizure. We previously applied federal law, including Oregon cases interpreting federal law, to affirm these convictions. State v. Flores, 58 Or.App. 437, 648 P.2d 1328 (1982). The Supreme Court accepted review and remanded the case to us for reconsideration in light of Oregon constitutional principles announced in State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982). State v. Flores, 294 Or. 77, 653 P.2d 960 (1982). On remand, we look not only to Caraher but also to a later decision, State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983), and to other relevant state constitutional principles and precedent, at least to the extent that we can divine them. We affirm.

OREGON CONSTITUTIONAL SEARCH AND

SEIZURE LAW The Oregon Supreme Court’s recent shift in direction on the use of the state constitution in criminal cases presents this court with difficult problems in its day-to-day decision-making, problems which we must face in this case. We are without recent state law precedents in many areas and are uncertain of the extent to which recent federal decisions may also express Oregon constitutional principles. We are therefore left to develop those principles with guidance only from a few recent Supreme Court cases and from that court’s traditional approach to the development of search and seizure law. That approach, as we will see, includes such fluctuations, indecisiveness and ambiguity that it is of little help to us, while the recent cases prove, on analysis, to stand for little, as yet. Before the mid-1960’s, the Oregon Supreme Court construed only state constitutional provisions, because the federal Fourth Amendment did not apply to the states. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); see Barron v. Baltimore, 32 U.S. (7 Pet) 243, 8 L.Ed. 672 (1833). In determining what the Oregon Constitution required, the court frequently cited cases from *620 the federal system and from other states, finding precedents from other jurisdictions helpful but not binding. See, e.g., State v. Duffy, 135 Or. 290, 295 P. 953 (1931); State v. Lee, 120 Or. 643, 253 P. 533 (1927); State v. Laundy, 103 Or. 443, 495–497, 204 P. 958, 206 P. 290 (1922). Although in a few


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instances it appeared to treat federal cases as controlling, see State v. DeFord, 120 Or. 444, 250 P. 220 (1926), the court generally kept the distinction between the two sovereigns and their separate constitutions clear, adopting federal principles when they seemed appropriate. One example of the Oregon court’s approach before the 1960’s is its handling of the question of the exclusion of improperly obtained evidence from use in a criminal trial. The court first appeared to reject the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), in State v. Ware, 79 Or. 367, 154 P. 905, 155 P. 364 (1916). Then, in State v. Laundy, supra, it appeared to adopt the rule, albeit by dictum, stating that it did so for the same reasons which commended it to the federal Supreme Court, not because it was bound to follow the federal lead. As the court undoubtedly knew, many state courts at that time had rejected Weeks. Yet, despite Laundy, the question of exclusion in fact—as opposed to an abstract solution—remained unresolved for another forty years. The original majority opinion in State v. McDaniel, 115 Or. 187, 231 P. 965, 237 P. 373 (1925), expanded on the Laundy dictum and ordered suppression of **1002 evidence but, on rehearing, a different majority found the search good and treated suppression as an open question. The court refused to decide the question through 1959, see State v. Hoover, 219 Or. 288, 347 P.2d 69 (1959); State v. Flynn, 137 Or. 8, 299 P. 694, 300 P. 1024 (1931), although trial courts had suppressed evidence as early as 1924 and continued to do so thereafter. State v. DeFord, supra; State v. Lanegan, 192 Or. 691, 699, 236 P.2d 438 (1951); see also Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (evidence which Oregon state courts suppressed could not be used in federal prosecution if state officials obtained it in violation of Fourth Amendment standards); see Patterson, A Case for Admitting in Evidence Liquor Illegally Seized, 3 Or.L.Rev. 334, 340 (1924); Note, Evidence—Admissibility of Illegally Obtained Evidence—The Law in Oregon, 39 Or.L.Rev. 368 (1960). In *621 sum, the court avoided the issue by never finding a search invalid, at times straining hard to avoid doing so. Only after Mapp v. Ohio, supra, which applied the federal exclusionary rule to the states, did the Oregon court, in State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962), unequivocably state that unconstitutionally obtained evidence should be suppressed, and not until State v. Elkins, 245 Or. 279, 442 P.2d 250 (1966), did it ever find a search improper and reverse a conviction for failure to suppress. Throughout the entire period before Mapp and Ker v. California, supra, it normally treated this issue, and all other search and seizure questions, under the Oregon Constitution alone, looking to other jurisdictions for guidance but not accepting their decisions as controlling.1

During that period, the court dealt with a number of major issues in search and seizure law. They included searches incident to arrest, State v. McDaniel, supra; State v. Quartier, 114 Or. 657, 236 P. 746 (1925); State v. Laundy, supra; State v. McDaniel, 39 Or. 161, 65 P. 520 (1901), and its permissible scope, Keeler v. Myers, 119 Or. 517, 249 P. 637 (1926); the requirements for a search warrant, State v. Flynn, supra; Nally v. Richmond, 105 Or. 462, 209 P. 871 (1922); Smith v. McDuffie, 72 Or. 276, 142 P. 558, 143 P. 929 (1914); and what constitutes probable cause. State v. Christensen, 151 Or. 529, 51 P.2d 835 (1935); State v. Duffy, 135 Or. 290, 295 P. 953 (1931). To be sure, the specific holdings in most, if not all, of these cases, while generally consistent with federal and state law of the period, are significantly more generous concerning police authority than are post-1960 decisions based on federal law; the changes in federal law alone in the interim make it questionable whether the Oregon Supreme Court would still consider them good law under the Oregon Constitution. Whatever their present status, however, the pre-Mapp and pre-Ker Oregon cases necessarily established an analysis of Article I, section 9, of the Oregon Constitution that was independent of the federal constitution. That independent analysis began breaking down soon after Mapp and *622 Ker, as the Supreme Court, rather than continuing to develop the meaning of the Oregon Constitution, simply decided cases under the federal constitution. In State v. Chinn, supra; State v. Krogness, 238 Or. 135, 388 P.2d 120, cert. den. 377 U.S. 992, 84 S.Ct. 1919, 12 L.Ed.2d 1045 (1964), and State v. Elkins, supra, the court relied primarily on state law, but thereafter it increasingly treated United States Supreme Court precedent not only as establishing the constitutional minima but also as stating the maximum extent of constitutional protection. Thus, the Oregon Constitution lost its independent significance at the very time of a major revamping of search and seizure law under the federal constitution. **1003 There were occasional reminders in dissents that Oregon could act independently. In State v. Chinn, supra, which was clearly decided under the Oregon Constitution, Judge O’Connell opposed the broad scope the majority allowed for a search incident to arrest and urged that the Oregon court adopt the rule of United States v. Trupiano, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1947), under the Oregon Constitution, despite its rejection in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1953):

“[W]e have our own constitution to interpret and in interpreting it we are not bound by the cases decided by the United States Supreme Court if we propose to afford




















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our citizens a greater protection against unlawful search than that required in those cases.” 231 Or. at 288, 373 P.2d 392 (O’Connell, J., dissenting).

Judge O’Connell repeated that point in his dissent in State v. McCoy, 249 Or. 160, 172, 437 P.2d 734 (1968), a case which the majority decided primarily, if not exclusively, on federal grounds. Judge Sloan also argued in his dissent in State v. Cartwright, 246 Or. 120, 147, 418 P.2d 822 (1967), that Oregon could adopt different rules than the federal Supreme Court requires. It is not clear, however, whether he wished the court to construe the Oregon Constitution’s limitations on police authority more strictly than the federal or to adopt an independent construction of the federal constitution. (The Oregon Supreme Court several times indicated its belief that it was not bound by the federal Supreme Court’s construction of the Fourth Amendment, the last time in State v. Florance, 270 Or. 169, 182, 527 P.2d 1202 (1974). It apparently dropped this misconception only when the Supreme Court specifically *623 disapproved the Florance language in Oregon v. Haas, 420 U.S. 714, 719 n. 4, 95 S.Ct. 1215, 1219 n. 4, 43 L.Ed.2d 570 (1975).) Despite Judge O’Connell’s and Sloan’s statements, and possibly as a result of its misconception of its authority in construing the federal constitution, by the late 1960’s the basis of the Supreme Court’s search and seizure decisions was often hazy. At times, as in State v. McCoy, supra, it relied solely on federal law. At other times, as in State v. O’Neal, 251 Or. 163, 444 P.2d 951 (1969), and State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969), it cited no constitutional provision whatsoever. It also, as in State v. Keller, 265 Or. 622, 510 P.2d 568 (1973), and State v. Blackburn/Barber, 266 Or. 28, 511 P.2d 381 (1973), cited both constitutions but made no effort to distinguish them or to provide a separate analysis of either. Cf. State v. Atkinson, 64 Or.App. 517, 669 P.2d 343 (1983) (analyzing whether later federal precedents have undercut Keller and determining that it remains valid under the state constitution). In effect, the court treated searches and seizures as a generalized common law subject controlled by federal principles in which the state constitution has no independent role. The older state cases simply dropped from sight, along with any attempt to develop their principles in light of more recent constitutional formulations. This movement away from the state constitution reached its climax in State v. Florance, supra, in which the court held that, in an attempt to provide one rule for law enforcement officers to follow, it would adopt the rule on searches incident to arrest of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), as the law of Oregon. Thereafter, the court adopted other federal

holdings, apparently as a matter of course. See cases cited in State v. Caraher, supra, 293 Or. at 748, 653 P.2d 942; State v. Nettles, 287 Or. 131, 135 n. 2, 597 P.2d 1243 (1979); State v. Flores, 280 Or. 273, 570 P.2d 965 (1977). While it continued in these cases to cite the state constitution, the court gave it no independent content and referred to it only as part of a rote incantation. At other times it cited only federal law in making its decisions, see cases cited in State v. Caraher, supra, 293 Or. at 748–49 n. 7, 653 P.2d 942. As Judges O’Connell and Sloan had opposed the movement away from the state constitution in the 1960’s, the court’s position in post-Florance cases provoked opposition from Judges Lent and Linde, see **1004 cases cited in *624 State v. Caraher, supra, 293 Or. at 750, 653 P.2d 942, but, until Caraher and State v. Lowry, supra, the Florance position appeared firm.2 Now, the court has reversed its course, but the result of its previous treatment of the state constitution leaves us with no ready way to determine the law we are now to apply. As a practical matter, search and seizure law under Article I, section 9, of the Oregon Constitution stopped developing in the 1960’s, but search and seizure law in other jurisdictions has changed drastically since then. The Oregon court has referred to many of those changes in post-Florance cases, but it has not adopted them in what it apparently would now consider a principled fashion; it simply declared a certain federal rule to be the law of Oregon without further analysis. See, e.g., State v. Nettles, supra, 287 Or. at 135 n. 2, 597 P.2d 1243. We might nevertheless assume that the rules that it adopted under the state constitution in the post-Florance cases remain the law of Oregon, because it claimed to construe the state constitution in adopting them. Cf. State v. Atkinson, supra, 64 Or.App. at 521–22, 669 P.2d 343 (State v. Keller, supra, a pre-Florance case, remains state law despite later United States Supreme Court cases casting doubt on its correctness under the federal constitution). However, the court in State v. Caraher, supra, and State v. Lowry, supra, did not simply abandon Florance’s position that the state constitution should follow the federal; it also overruled Florance’s specific holding on the issue in question and revived State v. O’Neal, supra, which Florance had overruled, as the law of Oregon. In so doing, it relied entirely on pre-Florance state constitutional cases. It thus appears that post-Florance cases in fact decided nothing under the Oregon Constitution and that the applicability in Oregon of the last 15 years’ growth of federal search and seizure remains an open question. The Oregon court always treated federal cases respectfully, even if it chose not to adopt them, but, in part because of the controversial nature of recent federal decisions *625 and in part because of its recent decisions, we cannot say that it will continue to do so rather than seeking an independent analysis in opinions of United States Supreme Court minorities, other








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state courts, or commentators. Cf. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) (establishing an Oregon double jeopardy rule different from both the United States Supreme Court majority and minority). The Supreme Court’s treatment of Florance, and its failure to cite post-Florance cases in Lowry or Caraher, convinces us that it will treat post-Florance but pre-Caraher cases as federally-based and as deciding nothing under the Oregon Constitution, even when they purport to adopt a federal rule as the Oregon constitutional rule. We are thus returned to first principles, and what once appeared settled turns out not to be. For example, the impact of such cases as Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (the Fourth Amendment protects privacy interests, not property rights), and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (limiting the scope of search incident to arrest) on Oregon search and seizure law remains to be determined. It is quite possible, for instance, that the Oregon court will decide to stick closer to the constitutional language than has the Supreme Court and will not follow the federal lead in Katz and its progeny in totally abandoning a property **1005 rationale for Article I, section 9. See State v. Elkins, supra, 245 Or. at 288–89, 442 P.2d 250 (Art I, § 9, protects property rights as well as privacy rights). It is also possible, as a result of the reliance on pre-Florance cases, that in some respects Oregon law may be less protective of an individual’s rights than is federal law. See State v. Kennedy, supra, 295 Or. at 270–71, 666 P.2d 1316. If so, federal law will control, although the Supreme Court has not always carried through on this analysis. For example, in State v. Caraher, supra, the court relied primarily on the approach of State v. Chinn, supra, in determining that a search was proper as a search incident to an arrest under the Oregon Constitution. Yet the specific search that the Chinn court approved would clearly be impermissibly broad under Chimel v. California, supra. In Caraher, the court also cited State v. Krogness, supra, even though the search in that case was held to violate the federal constitution in a federal habeas corpus action soon after the state decision. United States ex rel. Krogness v. *626 Gladden, 242 F.Supp. 499 (D.Or.1965). It is particularly unclear, in the light of the state cases on which it relied, why the Caraher court, after upholding the search under Oregon law, failed to go on and evaluate the search under federal law—part of the methodology it should always follow if it finds no state constitutional violation and a federal constitutional violation is also asserted. See State v. Kennedy, supra. In short, the Supreme Court has now told us to place the Oregon Constitution in a hothouse and force it to make up for years of stunted growth which that court caused.

Because of the changes in federal law in those years, because of the Oregon court’s history of looking to federal cases for guidance, and because the court in former years approved many searches it would not now approve, we cannot assume that pre-1970 Oregon cases remain the final word on the Oregon Constitution. Worse yet, we also cannot treat recent Oregon cases, even those which mention the state constitution, as controlling on the issue decided nor, given the court’s clear desire to cut itself free from federal decisions it considers undesirable, can we rely on federal law for guidance. As one member of the court recently said, we must “[b]e prepared to think from scratch. Liberating ourselves from the reactive approach of the [U.S.] Supreme Court means liberating ourselves from many of the ways things have been done.” Speech of Judge Linde to Conference of Chief Justices, quoted in 69 ABA Journal 1356 (1983). As another member of the court recently said, expressing the same thought, we now must make “a lonely journey in the dark of the moon and against the wind into the quagmire of the law of ‘search and seizure * * *.’ ” State v. Caraher, supra, 293 Or. at 760, 653 P.2d 942 (Campbell, J., concurring).

CARAHER, LOWERY, AND WARRANTLESS SEARCHES

Our previous opinion sets forth the facts of this case; we will only supplement them as necessary. The challenged items are a plastic baggie containing marijuana that officer Costanza took from defendant’s hand, a flowered cigarette purse and a leather change purse that he found in a brown paper bag on the seat next to the driver’s position in the car and a gun that officer Keever found in a lidless container under some clothing on the back seat. *627 At the time of the seizure of the baggie, Costanza had only stopped defendant for a traffic violation. The warrantless search for and seizure of the baggie could not be incident to that stop or to any subsequent arrest related to the traffic violation; it required separate probable cause. State v. Elkins, supra. We therefore turn to a consideration of the probable cause which the state constitution and statutes require Costanza to have had in order to justify each step of this warrantless search. We look first for guidance to the two cases in which the Oregon Supreme Court has recently addressed the subject of warrantless searches. In the first, State v. **1006 Caraher, supra, the court reaffirmed the doctrine that a person arrested for a crime may be searched incident to the arrest for evidence of that crime. 293 Or. at 757–760, 653 P.2d 942; see also State v. O’Neal, supra; State v. Krogness, supra. In State v. Lowry, supra, it reaffirmed the requirement that a seizure of items found during a search incident to arrest have a justification independent of the arrest when the items seized are not related to the offense




















for which the defendant is under arrest. See State v. Elkins, supra. The court then went on to expand the warrant requirement in a way that we find difficult both to understand analytically and to apply practically. In Lowry, the defendant, during a search after his arrest for driving under the influence of intoxicants, was found to possess a small, closed, transparent amber pill bottle containing a white powder that proved on analysis to be cocaine. The Supreme Court, in an extensive opinion, assumed that there was probable cause to seize the pill bottle but held that the subsequent testing was a separate search that was impermissible without a warrant. In doing so, it failed to note a well-established aspect of Oregon search and seizure law—one of the few—and appears to have extended the warrant requirement to situations where its only function will be to impede police investigations and to create busy work for judges. The Supreme Court began its discussion in Lowry with a useful admonition:

“The constitutional text [of Or Const, Art I, § 9] itself ties the phrase ‘probable cause’ to warrants. It seems never to become superfluous to repeat that the requirement of a *628 judicial warrant for a search or seizure is the rule and that authority to act on an officer’s own assessment of probable cause without a warrant is justified only by one or another exception. * * * ” 295 Or. at 346, 667 P.2d 996.

The court then went on to note, at the conclusion of the same paragraph:

“ * * * The reasons for the exceptions from the rule are always one form or another of practical necessity to act before a warrant can be obtained. ” 295 Or. at 347, 667 P.2d 996. (Emphasis supplied.)

This last sentence contributes to our puzzlement. It is not only “practical necessity” in the obvious sense of the phrase that justifies a warrantless search; arrest itself justifies such a search, so long as the search is for the protection of the officer or the preservation of evidence or is related to the crime for which the defendant was arrested and is reasonable in time, scope and manner. State v. Caraher, supra, and State v. Chinn, supra, establish this rule ineluctably. The first two purposes are matters of necessity, but the third is not. What Lowry fails to face squarely is that the search authorized in Caraher extends beyond the “necessary” to the merely reasonable. See State v. Caraher, supra, 293 Or. at 759, 653 P.2d 942:

“These cases, Chinn, Krogness and O’Neal, have expanded the justification for a search incident to

arrest beyond considerations of the officer’s safety and destruction of evidence. They permit a search when it is relevant to the crime for which defendant is being arrested and so long as it is reasonable in light of all the facts. * * * ”

In Caraher, the court approved a search of the defendant’s purse that occurred while she was under arrest and locked in the back seat of a police car and the officer, with the purse, was sitting in the front seat. There was no “practical necessity” for that search. We cannot believe that Lowry was intended to overrule Caraher sub silentio; the opinion cites Caraher with approval several times and even, as noted, reiterates Caraher’s holding. We therefore conclude that, by suggesting in Lowry that warrantless searches can be justified only by “practical necessity,” the Supreme Court used the phrase in a technical sense, which we must now try to discern. **1007 The phrase the Supreme Court used to describe the justification for a warrantless search was “practical necessity” *629 rather than the more common “exigent circumstances.” We assume that it did so primarily to free itself from any technical glosses that may have been put on the latter term and to emphasize the need to look afresh at the practical situation facing the officer in deciding whether the officer, in the light of all the circumstances, should have sought a warrant rather than conduct an immediate search. Because two of the three justifications for a search incident to arrest (protection of the officer and preservation of evidence) are also matters of practical necessity, the phrase seems to apply there also. Inasmuch as the court apparently did not intend to alter its acceptance of the third justification (relatedness and reasonableness) either, we assume that the court also subsumed that justification under the “practical necessity” heading. That is, “practical necessity” in its technical meaning includes any search incident to arrest which meets the criteria of State v. Caraher, supra, and State v. Chinn, supra. While this conclusion may strain the Supreme Court’s language, it is the only one which makes its holdings consistent. This brings us to our second difficulty with Lowry. In order for a search to be incident to an arrest, the officer must have statutory authority to arrest the defendant, which means that the officer must have an arrest warrant or probable cause to believe that the arrestee has committed an offense. ORS 133.235; ORS 133.310. The crime for which the officer has probable cause need not be the crime for which the arrestee is ultimately charged or even the one for which the officer makes the arrest. See State v. Cloman, supra, 254 Or. at 10–13, 456 P.2d 67;








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supra, 238 Or. at 145–149, 388 P.2d 120. If a warrantless arrest is for a felony or a Class A misdemeanor, it is sufficient for the officer to have probable cause to believe that the arrestee committed it. If it is for a lesser offense, the officer must have probable cause to believe that the arrestee committed it in the officer’s presence. ORS 133.310(1). As the Supreme Court explained in State v. Krogness, supra:

“Where the officer, without trespassing, sees contraband or other evidence reasonably causing him to believe that contraband is being transported or that some other crime is being committed in his presence, he may have probable cause to make an arrest for the newly discovered offense as well as for the traffic offense which initially brought the subject to *630 the attention of the officer. In such a case, while there may be no distinct demarcation between the first and second arrests, there does exist, prior to any extensive search, a probable-cause foundation for an arrest for an offense more serious than a traffic violation. The officer then is justified in making such a search as may be commensurate with the gravity of the newly discovered situation. Probable cause to arrest for the more serious offense, when present, will answer constitutional objections to the rigor of the ensuing search. * * *

“ * * *

“ * * * If there is sufficient cause, as a matter of law, to justify whatever arrest is necessary physically to make a search, then a reasonable search is a lawful incident of such an arrest. * * * ” 238 Or. at 145–47, 388 P.2d 120. (Emphasis supplied.)

This concept of escalating probable cause is a principle familiar to virtually anyone with a speaking acquaintance with criminal constitutional law and has been part of Oregon law for almost 60 years. State v. McDaniel, supra, 115 Or. at 240–242, 231 P. 965. Yet here, too, Lowry —if taken literally—raises havoc with the familiar. Lowry was a case that escalated from a stop of the defendant’s car on account of a faulty headlight to an arrest for driving under the influence of intoxicants to the discovery, seizure and subsequent analysis of a small, closed, transparent amber pill bottle containing a white powder. In that **1008 opinion, the Supreme Court said, touching on the subject of the inadvertent discovery of suspected contraband:

“In the course of a valid traffic stop of a vehicle or a permissible frisk incident to a stop or an arrest, officers sometimes may come upon other suspicious items. But

these may not be seized on suspicion alone; probable cause is required. State v. Elkins, supra, found a constitutional violation in the seizure of pills in a pill bottle incident to an arrest for public drunkenness, because mere suspicion did not constitute probable cause for the officer to believe ‘that the article he has discovered is contraband and therefore a crime is being committed.’ 245 Or. at 284 [442 P.2d 250]. The state’s brief in the present case proceeded on the premise that State v. Elkins had been overruled by State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974), an assumption that the Court of Appeals properly rejected. The majority of that court nevertheless sustained the officer’s action in retaining and opening the bottle and testing its contents, on the theory that the characteristics of the *631 bottle could cause a ‘hypothetical reasonable officer’ or ‘an officer trained with respect to illegal drugs’ reasonably to believe that the bottle contained contraband. 59 Or.App. 338 at 344, 650 P.2d 1062.

“We need not follow the Court of Appeals into judicial speculations on the extent to which contemporary culture has made pill bottles and containers of white powdery substances prima facie evidence of criminal possession of their contents and therefore subject to seizure. That question is of potential concern to people who carry a supply of baby powder, or table salt, or legitimate medicines, because if observation of such a substance in an unconventional container suffices as probable cause to suspect possession of contraband, it also suffices as probable cause to arrest the person in whose possession the container is observed. In the present case, however, the seizure of the bottle incident to a valid arrest and the subsequent testing of its contents are properly analyzed not as one but as two events. For ‘probable cause’ is not alone dispositive of both steps. The question is not simply whether probable cause to investigate, that is to say, to ‘search,’ the contents of the bottle did or did not exist, but whether there was any need to do so without a warrant.” 295 Or. at 345–46, 667 P.2d 996. (Footnote omitted; emphasis supplied.)

The Supreme Court then went on to decide that, assuming the officer had probable cause to believe that the amber bottle contained contraband and that the bottle’s seizure was therefore proper, the subsequent testing of the bottle’s contents was a separate, impermissible search, because the officers did not obtain a warrant authorizing the analysis. 295 Or. at 346–349, 667 P.2d 996. The predicate for this conclusion is unclear. It may be that the officer who found the amber bottle had no special training or other articulated basis for believing he had discovered contraband and, thus, had no probable cause to seize the bottle. State v. Elkins, supra. That is the basis for the concurring opinion, but it does not explain the thrust of the court majority’s analysis.3


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The court’s language suggests, rather, that probable cause “is not alone dispositive of both [the seizure of the bottle and the testing of its contents].” 295 Or. at 346, 667 P.2d 996. *632 It is at this point that the majority opinion in Lowry becomes inexplicable. With due respect to the Supreme Court, if the latter statement was meant to be a recitation of existing law, nothing could be more patently wrong. If the officer had probable cause to believe that what he had found was contraband, then he had probable cause to arrest defendant for possession of **1009 that contraband and the seizure was incident to the arrest for that offense. State v. Caraher, supra. The court danced around the probable cause issue throughout the opinion; it is a shame that it did not directly confront it.4 It noted that there was a dispute whether the officer had “reasonable cause” to believe that the bottle contained contraband and then stated that, if he did, he would be entitled to retain the bottle long enough for a magistrate to determine if there was “probable cause” to seize and test the contents. The court made no effort to explain the distinction between “reasonable cause” and “probable cause,” assuming that there is one. It ultimately held that the distinction between the case before it and Caraher is that, in Caraher, the item seized was related to the crime for which the defendant was arrested, while in Lowry it was not. 295 Or. at 347, 667 P.2d 996. In order to make this distinction as to relatedness, however, the court had, at least, to assume that there was probable cause because, unless there was, the seizure was unlawful and the court had no justification for going on to the relatedness point it seems so desperately to have wanted to make. But there is the rub: If there was probable cause, there also was probable cause to arrest and the seizure and subsequent search were as much incident to the arrest as were those in Caraher.5 *633 The only possible distinctions we can find between Lowry and Caraher are that, in Caraher, the defendant challenged only the warrantless discovery of the contraband, not its subsequent testing, and that in Lowry there may not have been probable cause to justify the seizure. The majority refused to rely on the second possibility; we are left with the first, a weak reed indeed—an analytically untenable one, in fact, in view of the fact that this issue (among others) was not raised in Lowry, either. Where, then, does Lowry leave us? We are unsure. However, the case’s insistent reliance on both Caraher and Elkins, and its emphasis on the requirement of procuring a warrant as soon as possible, lead us to conclude that the court may have had two intentions: to reinstate, as a fixture of Oregon constitutional law, the principle of State v. Elkins, supra, and to place a gloss on that part of State v.

Chinn, supra, which tests the validity of searches incident to arrest by the officer’s opportunity to obtain a warrant. The basic principle of Elkins is that an arrest allows only a limited search and that one of the limitations is that material seized must be related to the crime for which there is probable cause to arrest. In Lowry, the Supreme Court and both the majority and dissent in this court quoted Elkins on this point:

“If the rule were otherwise, an officer who desired to inculpate an arrested person in another crime, could seize everything in such person’s immediate possession and control upon the prospect that **1010 on further investigation some of it might prove to have been stolen or to be contraband. It would open the door to complete temporary confiscation of all an arrested person’s property which was in his immediate possession and control at the time of his arrest for the purpose of minute examination of it in an effort to connect him with another crime. Such a practice would be as much an exploratory seizure as one made upon an arrest for which no probable cause existed. Intolerable invasions of a person’s property rights would be invited by an ex post facto authorization of a seizure made on groundless suspicion.” State v. Elkins, supra, 245 Or. at 287–288 [442 P.2d 250]; quoted in *634 State v. Lowry, supra, 295 Or. at 348 [667 P.2d 996] and in State v. Lowry, 59 Or.App. 338, 341, 650 P.2d 1062 (1982), and 59 Or.App. at 347 [650 P.2d 1062] (Buttler, J., dissenting).

In State v. Chinn, supra, the Supreme Court stated criteria for evaluating the reasonableness of a search incident to an arrest; it reaffirmed those criteria in State v. Caraher, supra, 293 Or. at 758, 653 P.2d 942. In doing so, however, the court in Caraher failed to mention the Chinn criterion that the officer’s opportunity to obtain a warrant is relevant to the determination of the reasonableness of proceeding without a warrant. 231 Or. at 268, 272–73, 343 P.2d 392. Chinn gave the criterion an uncertain weight; Lowry could be read to make it decisive, but the absence of analytically defensible underpinnings and the tremendous ambiguity of its language leaves the matter in doubt. We shall not read Lowry as making an abstract opportunity to obtain a warrant dispositive under the present circumstances, for two reasons: First, we think it clear that, if that is what was intended, the majority could have said it. It did not. Second, we think that, had Lowry been meant to stand for such a proposition—that the seizure of contraband incident to lawful arrest nonetheless separately requires a warrant before that contraband can be tested—its incredible departure from traditional practice would have been made with greater candor and would have provoked a firestorm of dissent, not a concurrence. Third,

















such an approach is both impractical and of little protection to the person being searched. We recognize that the opportunity to seek a warrant now has greater significance in a search incident to arrest than it did previously and that, when a search reaches a logical stopping point the police must seek a warrant before proceeding further.6 However, requiring officers to stop midway in a search like the present one, leave everyone in limbo, and seek a warrant would tend to benefit only the stationers who sell blank search warrant forms. Reading Caraher and Lowry together in the manner described—which, given Lowry’s anomalies, admittedly takes *635 some nerve—and keeping in mind pre-Florance cases, we conclude that there are two major exceptions to the warrant requirement of Article I, Section 9, of the Oregon Constitution: searches incident to an arrest, in which the relevant criteria are those of Chinn and Caraher as modified by Lowry, and searches supported by probable cause and “practical necessity” in its obvious meaning. Searches incident to arrest are the primary justification for warrantless searches of the person. If the officer is without probable cause to arrest a person, the officer is without probable cause to search him, for a search of the person necessarily implies an arrest. The Supreme Court made that clear 20 years ago:

“We believe, however, that the spirit of the constitutional proscription against unreasonable searches requires the same degree of good-faith belief in the guilt of **1011 a suspect to justify a search of his person or of his effects as would be required to support his arrest or an application for a warrant to search his home. As a practical matter, it is difficult to explain how the police can search an individual without arresting him, since any substantial detention without his consent would fit the definition of an arrest found in such criminal cases as State v. Christensen, 151 Or. 529, [51 P.2d 835 (1935) ], and such civil cases as Lukas v. J.C. Penney Co., 233 Or. 345, 378 P.2d 717 (1963). If there is sufficient cause, as a matter of law, to justify whatever arrest is necessary physically to make a search, then a reasonable search is a lawful incident of such an arrest. If there is not probable cause to arrest, there is no logical basis for saying that one may nevertheless be arrested on suspicion and detained long enough for the officers to search him to satisfy themselves that he is indeed as innocent as the law presumes him to be.” State v. Krogness, supra, 238 Or. at 146–47, 388 P.2d 120.

It thus appears that, under Oregon law, the search of a person or of property closely associated with the person at the time of the search generally is supportable only if there

is probable cause to arrest. While a formal arrest may occur after the search, if at all, Krogness points out that the search itself implies an arrest.7 See also State v. Caraher, supra. *636 Conversely, a search based on probable cause and practical necessity applies to situations such as that in State v. Elk, 249 Or. 614, 439 P.2d 1011 (1968), in which the officers found a deserted car in circumstances which gave them probable cause to believe that it contained stolen property. There was no one to arrest, but there were grounds for the search.8 THE OREGON CONSTITUTION APPLIED TO THESE

SEARCHES We turn—at last—to the facts of this case. Costanza saw defendant run a stop sign at about 4:15 a.m. As soon as he turned on his overhead lights to stop the car, defendant quickly reached over to the passenger’s side and then straightened up. Defendant continued driving for another 100 yards before stopping. During that time, he was constantly bobbing up and down, moving his head and arms in and out of the officer’s sight. This was such unusual behavior for a driver in a traffic stop that Costanza felt concern for his own safety and called for a cover unit before leaving his vehicle to approach defendant. Defendant continued making quick movements toward various places in the front seat of the vehicle while Costanza approached him and even after he had asked defendant for his driver’s license and registration. Defendant shifted around, talked nervously and reached into a brown paper bag with his right hand, pulling out a small, folded, clear plastic baggie. Defendant attempted to hide it in his hand, but a small portion protruded and Costanza could **1012 see it. When *637 defendant first tried to leave his car, he left the transmission in drive and the vehicle moved. Costanza had to tell him to stop and to put the vehicle in park. Defendant attempted to do so but only moved the transmission lever to reverse. When he got out, the car began backing up and Keever, who had just arrived in response to Costanza’s request, jumped in and stopped it. In short, defendant acted nervous, worried and not fully in control of himself. He was obviously trying to hide something that he had taken out of the brown paper bag and that something was, as Costanza could see, a plastic baggie. Costanza knew from his training and his previous experience that people often store marijuana in plastic baggies. The totality of these circumstances gave probable cause to believe that what defendant was hiding was a controlled substance and that it was most likely marijuana. That was sufficient probable cause to believe that defendant was committing the offense of possession of a controlled substance in Costanza’s presence and, whether any formal arrest occurred then or later, defendant was in













fact under arrest for that offense.9 ORS 133.005(1). The search involved in Costanza taking the baggie from defendant was incident to that arrest. The trial court correctly refused to suppress the baggie. The baggie contained a substance which Costanza recognized on sight as marijuana. He therefore continued to have probable cause to hold defendant.10 In addition, he noticed that defendant’s behavior appeared “strangely *638 altered” from the normal and suspected that defendant was under the influence of some intoxicant. He then searched the front seat, including the brown paper bag from which he had seen defendant take the baggie; it was within easy reach. We hold that that search was reasonably related in time, scope and intensity to one of the offenses for which defendant was under arrest—possession of the marijuana. See State v. O’Neal, supra; State v. Chinn, supra. In the bag, Costanza found a flowered cigarette purse and a leather change purse. After feeling them from the outside, he opened them and found containers with a white powder in them and drug user paraphernalia.11 His activity in opening the two closed containers would **1013 probably not be permissible as an inventory of defendant’s property resulting from the arrest. See State v. Keller, supra. However, when an arrest is for possession of contraband, a search of the person and the area within the immediate control of the person for evidence of that offense—including the opening of closed containers—is permissible. State v. Caraher, supra; State v. Chinn, supra. That is all that occurred here. The trial court did not err in refusing to suppress the bag, the flowered cigarette purse and its contents, or the leather change purse and its contents.12 Having found the powder, which they had probable cause to believe was a drug possession of which is a felony, ORS 475.992(4)(a), it was reasonable for the officers to believe that they might find more contraband in the rest of the *639 passenger compartment. We hold that defendant’s arrest for that felony was a sufficient basis for this further search. As noted, searches incident to a lawful arrest must be scrutinized as to time, scope and intensity. State v. Chinn, supra. Here, we find nothing unreasonable in searching the passenger compartment for evidence of the felony for which defendant had just been arrested. Such a search was essentially contemporaneous to the arrest, was no more intrusive than was justified by the nature of the offense, and was no more extensive than the area within defendant’s immediate control. See State v. Caraher, supra. The gun that led to the firearm charge was found during that search. Its seizure was appropriate. Turning to consideration of defendant’s claims under the federal constitution, we adhere to our former opinion.

Affirmed.

BUTTLER, Judge, concurring. Although I concur in the majority’s holding in this case (the last three pages, slip opinion) and with its historical analysis of the problems we have been directed to resolve, State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983); State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982), I do not agree with much of the majority’s discussion of State v. Caraher, supra, and State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983). In my opinion, this case presents a relatively straight-forward application of Caraher, and I agree with the majority’s application of the principles set forth in that case. As I understand Lowry, however, its holding has nothing to do with this case, and I see no reason to flog that opinion publicly other than to permit the author of the majority to vent his disagreement with it. That reason, however, does not justify publishing the opinion as the opinion of this court, so I do not join in it. I do not agree with the dissent’s view that Lowry requires a warrant in this case. Lowry held that, although an item may be seized in a valid search incident to arrest, a further “search” of the contents of the seized container may *640 not be made without a warrant.1 Here, the gun seized in the back seat of the automobile does not present that problem. Accordingly, I concur separately.

YOUNG, Judge, concurring in part and dissenting in part. I concur in the majority’s holding affirming defendant’s drug-related convictions. The majority has, however, misapplied its analysis in approving the search of the back seat of defendant’s car. That search resulted in the discovery of the gun, and I therefore dissent from the affirmance of the conviction for ex-convict in possession of a firearm. The search of the front seat of defendant’s car was incidental to his arrest for possession of marijuana and, after the discovery of the white powder, for felony possession of a controlled substance. After that search defendant was clearly going to be placed in custody, and the car would be impounded. In State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962), the Supreme Court pointed out that one of the factors in evaluating the reasonableness of a search incident to arrest is whether the officers had an opportunity to obtain a warrant. I understand














Lowry, 295 Or. 337, 667 P.2d 996 (1983), to mean that this Chinn criterion is entitled to great weight and that a search incident to an arrest should be more strictly limited in its time, scope and intensity when it is possible to get a warrant. As the majority notes, “when a search reaches a logical stopping point the police must seek a warrant before proceeding further.” (68 Or.App. at 634, 685 P.2d at 1010.) After the search of the front seat the situation had come to rest, the search had reached a logical stopping point, and any further warrantless *641 search was not “reasonable in light of all the facts.” State v. Caraher, 293 Or. 741, 759, 653 P.2d 942 (1982).1 Although the search was not properly incident to an arrest, it may have been based on practical necessity, which, as the majority notes, seems in this context to mean probable cause and exigent circumstances. I have no doubt that there was probable cause for searching the back seat and, probably, for searching the entire car. However, neither the trial court nor this court should have been asked to make that decision after the search. The purpose of Article 1, section 9, of the Oregon Constitution is to ensure that a

judge, not an officer, will determine whether there is probable cause for a search, and that the determination will occur before the search and thus before any possible violation of a person’s constitutional rights. There was no practical necessity for an exception in this case. Defendant was going to jail. There was no one else to drive the car away. There is no evidence that it would have been difficult or impossible to obtain a warrant.2 The officers could and should have done so. I therefore respectfully dissent.

JOSEPH, C.J., joins in this opinion, as does NEWMAN, J., who has authorized me to state that he expressly disassociates himself from the majority’s analysis of State v. Lowry, supra.

All Citations

68 Or.App. 617, 685 P.2d 999

Footnotes *

Warden, J., did not participate in this decision.

1

The Supreme Court in State v. Davis, 295 Or. 227, 233-237, 666 P.2d 802 (1983), views the effect of the State v. Laundy, supra, dictum somewhat differently than we do. Whichever view is correct, it is clear that the court made its own decisions independent of the results reached in other jurisdictions.

2

The post-Florance cases were often ambiguous. For example, in State v. Quinn, 290 Or. 383, 390–392, 623 P.2d 630 (1981), the court analyzed a search after citing both constitutions, but it relied only on cases decided under the federal constitution. Its action may indicate that post-Florance federal law cases also automatically determine the state constitution’s reach, or that, in the particular case, the court decided to apply the federal rule under the state constitution, or that the court simply did not notice that the earlier cases did not cite the state constitution. The court in Quinn explicitly based its overturning of the death penalty on the state constitution, and we do not know why it was not equally clear in analyzing the search and seizure issues.

3

The concurring opinion noted, “* * * [I]n the instant case[,] although the officer could observe the contents of the bottle without opening it, he failed to testify that he believed the contents of the bottle were illicit drugs. * * *” 295 Or. at 358, 667 P.2d 996 (Jones, J., concurring).

4

It is even more of a shame when one considers the posture in which the case reached the Supreme Court. Although he had cited the Oregon Constitution, Article I, section 9, in his motion to suppress filed in the trial court, defendant, in this court, argued only federal constitutional theories. Likewise, in his petition for review, defendant cited only the Fourteenth Amendment. Neither the majority nor the dissenting opinion in this court mentions Article I, section 9. Appropriate respect for the appellate process—see, e.g., State v. Hickmann, 273 Or. 358, 540 P.2d 1406 (1975) (state as appellant before Supreme Court not entitled to urge theories for reversal not previously presented to the trial court)—could have avoided the problems Lowry’s adventurous analysis creates.

5

ORS 131.005(11) provides that “probable cause” means “that there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.” This definition appears to apply only to the probable cause necessary to arrest. It is likely that statutory probable cause is more stringent than is the constitutional probable cause justifying a search or seizure. It is possible that Lowry assumed sufficient probable cause to justify a search but not enough to justify an arrest. If so, the distinction from Caraher that it draws would make sense. However, there is nothing in the opinion to indicate that the court was aware of any such difference in probable













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cause standards, let alone relied on it.

6

We note that officers may obtain a search warrant by telephone, thus reducing the disruption Lowry might otherwise create. ORS 133.545(4); ORS 133.555(3). The Washington Supreme Court has recently held, under that state’s constitution, that the availability of a telephonic warrant is relevant to determining whether there are exigent circumstances justifying a warrantless search. State v. Ringer, 100 Wash.2d 686, 701–03, 674 P.2d 1240 (1983).

7

There is now a clear statutory definition of arrest in ORS 133.005(1):

“(1) ‘Arrest’ means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. * * *”

This definition is consistent with the court’s position in State v. Krogness, supra, that there must be an arrest before there can be a search, because the restraint necessary for a serach is, under the statute, an arrest. See State v. McDaniel, supra, 115 Or. at 235–36, 231 P. 965 (because officers searched defendant without an arrest or search warrant, the justification for the search must be found in their right to arrest defendant for a crime committed or attempted to be committed in their presence).

8

The concurring opinions of Judges O’Connell and Denecke in State v. Elk, supra, 249 Or. at 624, 439 P.2d 1011 (O’Connell, J., specially concurring), 249 Or. at 625, 439 P.2d 1011 (Denecke, J., specially concurring), which together had the support of a majority of the court, would base affirmance on this ground and constitute the holding of the court, rather than the putative majority opinion, which relies on a search incident to a later arrest. Other situations when probable cause and practical necessity might be relevant include when the person possessing the evidence is not the suspected criminal or when a search incident to arrest turns up evidence of an unrelated crime in a situation not giving grounds for an arrest for that crime. See n. 5, supra.

9

Former ORS 133.310(1) granted peace officers the authority to arrest if the officer had probable cause to believe the person had committed a felony or a Class A misdemeanor anywhere or was committing any other offense, other than a traffic infraction, in the officer’s presence. That statute authorized an arrest on probable cause for the violation of possession of less than one ounce of marijuana, ORS 475.992(4)(f); such a violation is an offense, ORS 161.505. The extent of the permissible search incident to such an arrest might or might not be more limited than a search incident to an arrest for possession of a controlled substance of a more serious nature; because, in this case, the officers in their search incident to the arrest for the possession of marijuana found probable cause to believe that defendant was also in possession of amphetamines, we need not consider if the complete search could have been justified by the arrest for the violation. The 1983 legislature removed the authority to arrest for a violation. Or.Laws 1983, ch. 661, § 7 (amending ORS 133.310(1)). We do not need to decide how that change would affect our analysis.

10

Of course, if Costanza had then recognized that the baggie contained an innocent substance, the probable cause to arrest defendant would have disappeared and the officers could have searched no further.

11

Costanza asked defendant if the powder was heroin or cocaine, and defendant answered that it was “speed,” which Costanza knew was slang for amphetamines. Defendant’s statement came before he received Miranda warnings and, as a result, the trial court suppressed it. It was not proper to use it in determining the nature of the substance Costanza found. However, the other circumstances provided probable cause to believe that the powder was a controlled substance, although Costanza’s guess as to which controlled substance was incorrect. The fact that the cigarette purse and coin purse were closed containers does not require a different rule; it is only one factor to consider in applying the standards for evaluating a search incident to an arrest. We hold, under those standards, that the search of the purses was proper. The discovery of the marijuana made it reasonable to believe that the brown paper bag might contain further contraband, and the search was reasonable in scope and time.

12

Defendant raises no issues concerning the subsequent testing of the powder, as distinguished from its seizure at the time of the arrest. See United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85, (April 2, 1984). As already noted, we are not sure what Lowry means or would require concerning any such issue in this search incident to arrest context.

1

The majority here considers the only function of that warrant requirement to be “to impede police investigations and to create busy work for judges,” 68 Or.App. at 627, 685 P.2d at 1006, and “to benefit only stationers who sell blank search warrant forms” (68 Or.App. at 634, 685 P.2d at 1010). Apparently for those reasons, at least in part, the majority states that Lowry does not stand for that proposition. (68 Or.App. at 633–634, 685 P.2d at 1009–1010. It does, and I think the

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majority has overlooked the distinct possibility that the police may not have been able to obtain a warrant for want of probable cause to believe that the container contained contraband. Concededly, the protection of constitutional rights, state or federal, takes time and may be inconvenient. That is nothing new; it is the price of liberty.

1

The other Chinn/Caraher criteria also militate against continuing the search, which was becoming a generalized search of the vehicle rather than of the area immediately associated with defendant.

2

Even if there had been greater urgency than appears in this record, the officers could have obtained a telephonic warrant. ORS 133.545(4), ORS 133.555(3). There are 15 circuit and district judges in Lane County, each of whom has authority to issue a warrant by telephone. Cf. State v. Ringer, 100 Wash.2d 686, 701–03, 674 P.2d 1240, 1249 (1983) (availability of telephonic warrant is relevant to existence of exigent circumstances).

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State v. Jury, 185 Or.App. 132, 57 P.3d 970 (2002)


185 Or.App. 132 Court of Appeals of Oregon, In Banc.*

STATE of Oregon, Respondent, v.

Joseph Andrew JURY, Appellant.

93CR875; A83517. |

Argued and Submitted Sept. 27, 2001; Resubmitted En Banc Aug. 7, 2002.

| Decided Nov. 20, 2002.

Synopsis Defendant was convicted in the Circuit Court, Curry County, Richard Mickelson, J., of possession and delivery of a controlled substance, and frequenting place where controlled substances are used. Defendant appealed. The Court of Appeals, Haselton, J., held that: (1) in determining whether trial court error constituted apparent error, reviewing court must consider law as of the time appeal was decided, as opposed to time the trial court made its ruling; (2) supreme court ruling in another case that use of a body wire required a court order rendered trial court’s admittance of evidence, obtained by use of a body wire without a court order, apparent error; (3) appellate court exercised its discretion to correct trial court’s apparent error; and (4) error was not harmless. Reversed and remanded.


**971 *133 Eric R. Johansen, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM and BREWER, Judges.

Opinion

*134 HASELTON, J.

Defendant appeals his convictions for possession of a controlled substance, delivery of a controlled substance, and frequenting a **972 place where controlled substances are used. ORS 475.992; ORS 167.222. At trial, the court admitted evidence that the police had obtained through the use of a body wire that they had placed on an informant. The police did not obtain a court order authorizing them to use the body wire. Defendant contends that the trial court’s admission of that evidence was error under State v. Fleetwood, 331 Or. 511, 16 P.3d 503 (2000), and State v. Cleveland, 331 Or. 531, 16 P.3d 514 (2000). Defendant did not object to the admission of the evidence on the ground that the police had failed to obtain a court order before using the body wire. The question on appeal, however, is whether the admission of the evidence constitutes an error apparent on the face of the record and whether this court should review it pursuant to ORAP 5.45. We agree with defendant that the body-wire evidence was erroneously admitted, that the error is apparent on the face of the record, and that it is appropriate for us to exercise our discretion to correct it. We therefore reverse defendant’s convictions and remand. Shortly before defendant’s trial in February 1994, we held that there was no statutory or constitutional impediment to the police using a body wire to overhear and record conversations without first obtaining a court order authorizing such use, so long as the police had probable cause to believe that the conversations would involve illegal drug transactions. State v. Bass, 126 Or.App. 303, 868 P.2d 761 (1994), vac’d, 331 Or. 693, 21 P.3d 1086 (2001), rev’d and rem’d, 175 Or.App. 283, 27 P.3d 165 (2001). Bass was the first case to address the constitutional issues, but we relied on two of our previous decisions so far as the statutory issue was concerned: State v. Casteel, 122 Or.App. 218, 857 P.2d 204 (1993), and State v. Evans, 113 Or.App. 210, 832 P.2d 460 (1992). In the present case, defendant did not make statutory or constitutional claims concerning the propriety of the body wire, such as were at issue in Bass, Casteel, or Evans. Rather, he argued only that the evidence should be excluded as overly prejudicial. *135 In his opening brief on appeal, defendant asserted for the first time that Bass and Evans had been wrongly decided. Shortly before defendant’s opening brief was filed, the Oregon Supreme Court allowed review in Fleetwood and Cleveland, both of which involved the same issue as Bass. We allowed the state’s motion to hold the present appeal in abeyance until the Supreme Court

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decided Fleetwood and Cleveland. Ultimately, the Supreme Court held that ORS 133.724 required the police to obtain court orders before using body wires to intercept communications. Fleetwood, 331 Or. at 525–30, 16 P.3d 503; Cleveland, 331 Or. at 534–35, 16 P.3d 514. After those decisions, the state filed its respondent’s brief in the present case, arguing that defendant failed to preserve the claimed error for appellate review and that the error was not apparent on the face of the record. The state acknowledges that, if we do consider defendant’s assignment of error, the trial court’s admission of the body-wire evidence was erroneous. For error to be considered apparent on the face of the record for purposes of ORAP 5.45, it must satisfy three criteria: (1) it must be legal error; (2) it must be “apparent,” such that “the legal point is obvious, not reasonably in dispute”; and (3) it must appear on the face of the record, such that we “need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). If the asserted error satisfies those criteria, we then must exercise our discretion in deciding whether to correct the error. Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991). In the present case, the asserted error is a legal error and does not require us to go outside of the record or choose between competing inferences; the only question is whether the error is sufficiently “apparent.” More specifically, the question is whether we measure the “apparentness” of the error from the present time, and in light of the Fleetwood and Cleveland cases, or whether this question should be evaluated from the perspective of the trial court that, in the present case, ruled on the issue presented in accordance with the only case law that then existed on the subject. In sum, in this case we have an error that is “apparent” to us after the decisions in Fleetwood and Cleveland, but could not have been *136 “apparent” **973 to the trial court when it ruled on the issue because the only existing case law at that time reached the opposite conclusion from Fleetwood and Cleveland. Thus, we must determine whether the temporal baseline for “error apparent on the face of the record” is the time the trial court made the disputed ruling or the time the appellate court decides the appeal. No reported Oregon decision has explicitly addressed that question. We acknowledge that determining the “apparentness” of error by reference to the law existing at the time of the appeal can lead to ostensibly incongruous results: A trial court can be reversed for “plain error,” when its ruling comported with—or even was compelled by—the law existing at the time the court ruled. Nevertheless, for the following reasons, we conclude that “error apparent” must be determined by reference to the

law as of the time the appeal is decided. Error apparent on the face of the record is merely a subspecies of error generally. Error, in general, must be determined by the law existing at the time the appeal is decided, and not as of the time of trial.1 Consequently, the same must be true of error apparent on the face of the record. Two common scenarios highlight the operative principle: In Case # 1, a party raises an objection to the admission of evidence; under then-existing case law, that objection is not well-founded—and, indeed, controlling case law is to the contrary—and the trial court overrules the objection. The objecting party loses at trial and, on appeal, assigns error to the trial court’s admission of the evidence. Between the time of trial and the time we determine the appeal, the Supreme Court overrules the previously controlling precedent with the direction that the ruling is not merely prospective. In that circumstance, we would hold that the trial court erred in admitting the evidence. That would be so regardless of whether the trial court’s ruling was “correct” at the time that it was made. *137 The “benchmark” for error is the law existing as of the time the appeal is decided. See, e.g., State v. McCain, 175 Or.App. 274, 28 P.3d 641 (2001) (a defendant who preserved issue in trial court obtained reversal on appeal based on the newly announced rule of law from Fleetwood although trial court’s ruling was consistent with case law that predated Fleetwood ). Case # 2 presents the obverse situation: A party objects to the admission of evidence—and, despite the fact that controlling case law squarely supports the objection, the trial court overrules the objection. Again, the objecting party loses at trial and appeals, assigning error to the trial court’s evidentiary ruling. Again, while the appeal is pending, the Supreme Court overrules the preexisting precedent, giving that ruling retroactive application. In that circumstance, we would reject the claim of error, notwithstanding that the trial court did not adhere to controlling law at the time that it ruled. Again, the benchmark for determining error is the law existing as of the time the appeal is decided. Nothing in the text of ORAP 5.45 or in the historical development of the “plain error” doctrine underlying that rule alters that general principle. See, e.g., Ailes, 312 Or. at 381–83, 823 P.2d 956; Brown, 310 Or. at 355, 800 P.2d 259. The operative language of the rule and its direct antecedents—“error,” “apparent,” and “on the face of the record”—is not temporally restricted to the time of trial. Moreover, we have consistently, albeit implicitly, defined “plain error” by reference to the law existing at the time the



















appeal is decided. See, e.g., State v. Crain, 177 Or.App. 627, 637–38, 33 P.3d 1050 (2001), rev. den., 334 Or. 76, 45 P.3d 450 (2002); State v. Daugaard, 142 Or.App. 278, 284, 921 P.2d 975 (1996), rev. den., 334 Or. 75, 45 P.3d 449 (2002). Indeed, in State v. Farr, 8 Or.App. 78, 492 P.2d 305 (1971), rev. den., (1972), cert. den., 406 U.S. 973, 92 S.Ct. 2423, 32 L.Ed.2d 674 (1972), we addressed and granted relief on a claim of error in circumstances closely analogous to those presented here:

**974 “The prosecutor makes the point that no objection was made in the trial court to the multiple charge in the indictment, hence, we should not consider this assignment of error * * *. *138 State v. Woolard [, 259 Or. 232, 484 P.2d 314, 259 Or. 232, 485 P.2d 1194 (1971) ], was decided after the trial of the case at bar. We can thus see a reason for no objection having been made. The error substantially affects defendant’s status by placing one felony conviction against him which should not exist. Therefore, we are invoking Rule 5.40 under which the court reserves the right to take notice of an error apparent on the face of the record, regardless of whether proper objection was made in the trial court.”

8 Or.App. at 82 n. 1, 492 P.2d 305 (emphasis added). Conversely, no reported Oregon decision has suggested, much less ruled, that “error” for purposes of “error apparent on the face of the record” must be determined by reference to the law existing as of the time of trial. Finally, we fully appreciate that defining “error apparent” by reference to the law existing as of the time of the appeal could subvert important principles of preservation of error and comity with trial courts. That is, ingenious appellate counsel (and even judges) could use “plain error” as a device for reversing trial courts on grounds that were never raised at trial—but could have, and should have, been raised. The answer to such manipulation lies in Ailes. Ailes mandates a two-step process. First, we must determine that a claim of error satisfies the requirements for “plain error.” Second, even if we so determine, we can address unpreserved “plain error” only if we explicitly find that certain criteria justify our exercise of discretion in that regard:

“Even if the error meets [the Brown ] test, however, the appellate court must exercise its discretion to consider or not to consider the error, and if the court chooses to consider the error, the court must articulate its reasons for doing so. This is not a requirement of mere form. A court’s decision to recognize unpreserved or unraised error in this manner should be made with utmost caution. Such an action is contrary to the strong policies requiring preservation and raising of error.”

Ailes, 312 Or. at 382, 823 P.2d 956 (citation omitted). Thus, Ailes’s second step acts as a “baffle” on free-wheeling consideration of “plain error.” The criteria we must apply ensure that review of plain error will be the exception, and not the rule. Those criteria *139 ensure that the appellate courts will bypass principles of preservation only in extraordinary circumstances.2 In sum, determining “plain error” by reference to the law existing as of the time of the appellate decision both (1) comports with general appellate principles and (2) affords the appellate courts greater flexibility to remedy egregious cases. Conversely, Ailes’s prudential criteria constrain our discretion to consider “plain error” so as to ensure fidelity to principles of preservation and comity except in exceptional cases. We return to this case. Here, the error was apparent on the face of the record. The underlying facts are undisputed and, in the light of Fleetwood, 331 Or. at 525–30, 16 P.3d 503, and Cleveland, 331 Or. at 534–35, 16 P.3d 514, the lawfulness of the use of the body wire in this case is no longer “reasonably in dispute.” Brown, 310 Or. at 347, 800 P.2d 259. We turn, then, to whether we should exercise our discretion under Ailes to remedy that error. In making that determination, we generally consider the competing interests of the parties, the nature of the case, the gravity of the error, and the ends of justice. See, e.g., **975 State v. Wilkins, 175 Or.App. 569, 587, 29 P.3d 1144, rev. den., 333 Or. 74, 36 P.3d 975 (2001). Here, we elect to exercise our discretion under Ailes for two related reasons. First, defendant’s failure to raise and preserve his present objection at trial was, at least partly, justifiable. At the time of defendant’s trial, we had decided Bass, and the Supreme Court had not yet accepted review in Cleveland and Fleetwood. Given those circumstances, defense counsel could have reasonably forgone making the argument now



























*140 advanced on appeal and, even if defense counsel had raised the present objection at trial, the trial court would properly have rejected that challenge under Bass. In a closely related, and fundamental, sense, because the outcome at trial would not have been altered even with preservation, our allowance of relief in this case will not subvert the comity considerations that underlie the preservation requirement. See, e.g., J. Arlie Bryant, Inc. v. Columbia River Gorge Comm., 132 Or.App. 565, 568, 889 P.2d 383, rev. den., 321 Or. 47, 892 P.2d 1024 (1995) (describing rationales for preservation requirement). Second, correction serves the ends of justice in that the use of the body-wire evidence was central to the prosecution—and, ultimately, to defendant’s convictions of two felonies and one misdemeanor. We note, moreover, that we have reversed the convictions of several other similarly situated defendants on identical grounds.3 Although the body-wire issue was preserved in those cases, unlike here, we decline to treat defendant differently from those defendants

because, as described above, preservation would not have made a difference in this case. Finally, we conclude that the error in admitting the body-wire evidence did not constitute harmless error. OEC 103(1). We thus conclude that, under Fleetwood and Cleveland, the erroneous admission of the body-wire evidence requires reversal of defendant’s convictions and remand for a new trial. Reversed and remanded for new trial.

All Citations

185 Or.App. 132, 57 P.3d 970

Footnotes *

Warren, S.J., retired.

1

There are, of course, some notable exceptions to this general rule. For example, application of laws in effect at the time of an appeal but not in effect when a criminal defendant committed a crime may run afoul of ex post facto constitutional provisions. Also, the legislature may choose to specify the effective dates of particular laws and whether they apply to actions pending in trial courts or appellate courts.

2

In Ailes, the court identified a nonexclusive list of criteria that guide the appellate courts’ discretion to consider “plain error”:

“In future applications of this rule, in deciding whether to exercise its discretion to consider an error of law apparent on the face of the record, among the factors that a court may consider are: 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 * * *.”

312 Or. at 382 n. 6, 823 P.2d 956.

3

E.g., State v. Aldrich, 175 Or.App. 643, 29 P.3d 1170 (2001); State v. Brenner, 175 Or.App. 286, 27 P.3d 170 (2001); Bass, 175 Or.App. at 283, 27 P.3d 165; State v. Reier, 175 Or.App. 282, 27 P.3d 170 (2001).





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Department of Human Services v. G.E., 243 Or.App. 471, 260 P.3d 516 (2011)



In the Matter of N. E., a Child. DEPARTMENT OF HUMAN SERVICES,

Petitioner–Respondent, v.

G.E., Appellant.

0700557; Petition Number 08JU066; A146271. |


Decided June 15, 2011.

Synopsis Background: In child dependency proceeding, the Circuit Court, Douglas County, William A. Marshall, J. Pro Tem., changed child’s permanency plan from reunification to adoption. Mother appealed.

The Court of Appeals, Schuman, P.J., held that the trial court could not base its decision denying mother’s request to dismiss wardship and its order changing the permanency plan from reunification to adoption based on facts that were extrinsic to the jurisdictional judgment, and thus reversal of the courts order and remand to allow the trial court to clarify its orders, or to allow for modification of the original jurisdictional judgment, was warranted.

Reversed and remanded. Procedural Posture(s): On Appeal.


**516 Mary Shannon Storey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Stacey RJ Guise, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

Opinion

SCHUMAN, P.J.

*473 Mother appeals from a judgment of the juvenile court denying her motion to dismiss jurisdiction and wardship over her daughter N., along with the court’s decision to change the permanency plan from reunification to adoption. Mother raises several assignments of error, principally arguing that she ameliorated all of the facts on which the court had originally based its judgment of jurisdiction **517 and, contrary to settled law, denied her motion on the basis of facts that were extrinsic to that judgment. That is a legal question that we review for errors of law. Mother also challenges several factual determinations and asks that we exercise our discretion to review them de novo. We decline to do so, as we conclude that this is not an exceptional case. ORAP 5.40(8)(c). The factual determinations are supported by evidence in the record; we therefore affirm on the assignments of error involving those determinations. On the legal issues, we reverse and remand. In November 2007, the child, who was then seven months old, was removed from mother’s home under circumstances that presented a risk to her safety. The jurisdictional petition, filed on December 17, 2007, alleged:

“Said above-named child is in need of the services of the Court and a child caring agency, to Wit: Department of Human Services for Douglas County, in that said child’s condition and circumstances are such as to endanger the welfare of said child or of others. Further, said parent having custody of said child has failed to provide said child with the care, guidance and protection necessary for the physical mental or emotional well-being of said child to wit:

“a) Child, and mother live with child’s maternal grandmother, [grandmother’s boyfriend and grandmother’s son, age 16].

“b) On November 17, 2007, an incident occurred while [grandmother and her boyfriend] were under the influence of alcohol, and [grandmother’s son] threatened all of the adults with a shotgun during this incident. The child was present and in the line of fire, placing her at risk of harm.

“c) The home was below minimum community standards with a strong odor of urine and animal feces.

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The *474 room where child sleeps had animal feces and dirty diapers on the floor and baby bottles with old, separated, curdled formula.

“d) Mother has no other resources for safe housing for herself and the child.

“e) Mother has a history of substance abuse which could impact her ability to safely parent. She agrees to participate in recommended treatment.

“f) There is no legal father identified.”

In April 2008, mother, who was then 18 and unmarried, admitted all of the allegations, and the court entered a judgment based on them. N. was placed in foster care. Mother moved to Safe Haven, a shelter for young mothers that provides a structured environment to allow parents to gain needed skills. Mother began and completed parenting classes, as well as drug and alcohol treatment. N. was returned to mother at Safe Haven in June 2008, but was removed again in November 2008, based on mother’s neglect and mother’s expressed concerns that she was not bonded to N., that she did not want to stay any longer at Safe Haven, and that she did not want to parent N. At that time, mother admitted to being overwhelmed, depressed, and doubtful of her ability to parent. She said that she was considering giving N. up for adoption to the current foster family. Mother told many people that she had intentionally neglected N. during this period so that N. would be removed from her custody, which would result in mother being unable to remain at Safe Haven, so she could then move in with her boyfriend. N. was returned to her original foster family, with whom she remains and which has been approved as an adoptive placement for her. After N. was removed from mother’s custody a second time, mother continued to be offered services and treatment; for a while she declined to participate. Mother moved out of Safe Haven and for a short time lived with the parents of her then-boyfriend, to whom she is now married and with whom she has had a second child, L. In February 2009, mother moved back into Safe Haven, and through the spring of 2009, mother vacillated *475 between wanting to regain custody of N. and releasing her for adoption. Mother resumed supervised visits with N. In March, mother became pregnant with L. In April 2009, mother had a psychological assessment; the evaluator’s opinion was that, despite significant intervention, there had been no improvement in mother’s parenting skills—specifically her attentiveness **518 to N.—and recommended against reunification. In June 2009, DHS moved to a plan of adoption.

At a permanency hearing in June 2009, a DHS worker testified that mother’s parenting skills had not improved. Mother’s counselor testified that he believed that mother had a mild form of depression. Mother testified that she wanted another chance to reengage in services and believed that she could successfully parent N. if given six months to work on her parenting skills. She testified that she believed that her attitude had improved and that she now realized she had a substance abuse problem and needed further treatment. The court ruled on June 30, 2009, that the permanency plan for N. was changed from reunification to adoption. Mother appealed, assigning error to the juvenile court’s failure to make the findings necessary to make a change in the permanency plan to adoption. While that appeal was pending, mother continued to have visits with N. of increasing length through the summer, but DHS workers reported that they did not notice any improvement in mother’s engagement with N. Also while the appeal was pending, on October 30, 2009, mother gave birth to L. The state filed a petition asserting jurisdiction over L., but it was dismissed. Notwithstanding the pending appeal, the juvenile court in January 2010 issued a permanency judgment again specifying that the permanency plan was adoption and making the findings that the June 2009 judgment lacked, finding specifically that none of the circumstances in ORS 419B.498(2) applied. See State ex rel. Juv. Dept. v. J.F.B., 230 Or.App. 106, 114, 214 P.3d 827 (2009) (when a court determines that the permanency plan for a ward should be adoption, the order “shall include,” among other things, the court’s determination of whether one of the circumstances in ORS 419B.498(2) is applicable). *476 On February 3, 2010, this court reversed and remanded the permanency judgment of June 2009, on the ground that the trial court had erred by not including in the judgment the determination required by ORS 419B.476(5)(d).1 Dept. of Human Services v. G.E., 233 Or.App. 618, 619, 227 P.3d 1180 (2010). Mother then moved to dismiss the juvenile court’s wardship over N., ORS 419B.328(2)(a), and in the alternative requested a new permanency hearing. Mother subsequently withdrew her request for a permanency hearing, but the juvenile court scheduled one on the child’s motion; it also considered mother’s motion to dismiss. Mother contended that the case should be dismissed because the conditions asserted in the December 2007 petition had been ameliorated: She was no longer living in substandard housing under circumstances that posed a risk to N.’s safety, and she had completed treatment for

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substance abuse. After a combined hearing on the motion to dismiss and permanency, held in June 2010, the juvenile court denied mother’s motion to dismiss, once again ordered the permanency plan of adoption, and directed that the state file a petition to terminate mother’s parental rights to N. within 60 days. The court wrote an extensive opinion describing the services that had been provided to mother since N. had been removed in November 2007, as well as mother’s lack of compliance, progress, forthrightness, and credibility. The court rejected mother’s contention that the circumstances in the original petition had been ameliorated. In addressing mother’s motion to dismiss, the court explained that “the issues in the petition and other issues prevent the Court from dismissing the petition.” The court found that, although mother no longer lived in substandard housing, her current housing situation with her husband’s parents was not appropriate for N., because the sleeping arrangement would require N. to share a very small bedroom with mother, her husband, and her half-brother, a space that *477 mother herself had said was not adequate. The juvenile **519 court found further that mother’s substance abuse issues had not been fully addressed. The court based that finding on mother’s lack of honesty regarding her level of consumption and her failure to acknowledge that she continued to have a substance abuse problem, resulting in treatment ending prematurely. In addition, the court found that mother was not credible and explained that, despite the many services that had been provided to her, she had not developed the skills necessary to understand the safety concerns that had prompted the removal of N. from her care. The court expressly found that mother did not appreciate safety risks and was not able to keep the child safe. In considering permanency, the court explained:

“Despite some improvement in the condition of mother, there have not been changes in the overall condition of mother. [Mother’s caseworker] summed up the situation in a few words when she said that the mother doesn’t outright refuse to participate in services, she just doesn’t get it. The ‘it’ being the safe relationship of her daughter and making changes necessary to have that happen.”

The court determined that “it is not possible at this time to return the child safely to the mother within the provisions

of ORS 419B.476,” and that, in the light of the services that had been provided and mother’s lack of progress, the permanency plan of adoption was best for the child’s health and safety. The court rejected mother’s contention that the state had not made “reasonable efforts” to return the child safely home, ORS 419B.340(1), finding:

“In the Court’s view, based on the evidence here, the agency has gone to extraordinary lengths in attempts to strengthen the parenting skills of the mother. The child was returned to the mother for a period of time. Over two complete sessions of parenting skills training classes have been provided without lasting results. Mentoring and coaching services have been provided without lasting change. Mental health evaluations and counseling have been provided with a failure of the mother to be honest with the Court and treatment providers.”

*478 The permanency hearing judgment included the following findings:

“It is necessary to continue the child in substitute care because the mother has not made sufficient progress toward return. Mother does not have safe and stable housing for this child. The mother has not eliminated the barriers for return of the child. The mother’s depression and other mental health issues that caused her to neglect her child by maintaining an unsafe home and a home below minimum standards at the first removal and still present when the child was removed the second time have not been adequately addressed.”

The judgment concluded, “[G]iving paramount consideration to the child’s health and safety, the child’s mother has not made sufficient progress to make it possible for the child to safely return home.” We first address mother’s contention that the juvenile court erred in denying her motion to dismiss the wardship. We review that denial for errors of law. See State v. A.L.M., 232 Or.App. 13, 18, 220 P.3d 449 (2009) (applying standard). We are bound by the juvenile court’s findings of

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historical fact as long as there is any evidence to support them. State v. S.T.S., 236 Or.App. 646, 654–55, 238 P.3d 53 (2010); Dept. of Human Services v. C.Z., 236 Or.App. 436, 442, 236 P.3d 791 (2010) (explaining court’s standard of review under ORS 19.415(3)(b)). Mother’s first argument on appeal in support of her motion to dismiss is that the factual circumstances found in the jurisdictional judgment have been ameliorated and that the court based its decision on different facts. She no longer lives in the home of child’s grandmother, she does not live with or associate with any shotgun-wielding persons, her home is no longer below community standards of cleanliness, and she no longer needs to participate in substance abuse treatment. The court’s denial of her motion to dismiss, she contends, was based on entirely new facts. The department, for its part, argues that the court’s denial was based on the unchanging facts that mother’s living situation **520 is unsafe for N. and mother still does not provide N. with the care, guidance, and protection that N. needs. As we explain below, we *479 find that the court may have based its decision on some facts that are extrinsic to the jurisdictional judgment. For that reason, we must reverse and remand for clarification and possible amendment of the original jurisdictional judgment. “It is axiomatic,” we have held, “that a juvenile court may not continue a wardship ‘if the jurisdictional facts on which it is based have ceased to exist.’ ” State v. A.L.M., 232 Or.App. 13, 16, 220 P.3d 449 (2009) (quoting State ex rel. Juv. Dept. v. Gates, 96 Or.App. 365, 372, 774 P.2d 484, rev. den., 308 Or. 315, 779 P.2d 618 (1989)). It is equally axiomatic that a juvenile court may not continue a wardship based on facts that have never been alleged in a jurisdictional petition. See ORS 419B.809(4)(b) (dependency petition must “contain the facts that bring the child within the jurisdiction of the court, including sufficient information to put the parties on notice of the issues in the proceeding”). These precepts, however, are the beginning of our inquiry and not the end. That is so, because “facts” come in many levels of specificity. The department urges us to apply a very general level, focusing on the introductory material that repeats or paraphrases the statutory standards set out in ORS 419B.100(1)—for example, the child’s condition and circumstances are such as to endanger her welfare, or the custodial parent has failed to provide the child with the care, guidance, and protection necessary for her physical, mental, or emotional well-being. Mother, in essence, urges us to approach the inquiry at a highly specific level, focusing on the “to wit” facts spelled out in “a” through “f” of the jurisdictional petition—for example, the child was present in his grandmother’s apartment when grandmother’s son threatened the adults with a shotgun, with child in the line of fire; or the home was below community standards due

to strong odors, animal feces, and dirty diapers. Mother’s approach presents insurmountable practical difficulties. It presumes that the court’s authority to assert jurisdiction is based on specific facts and not on the conditions or characteristics that those facts demonstrate or exemplify; it mistakes the symptoms for the disease. For example, it would mean that the court could not continue jurisdiction over N. even if the department established that, although the shotgun-wielding person had been evicted, he had been replaced by a different shotgun-wielding person or *480 by a wanted violent felon. The court could not continue jurisdiction on the basis that, although mother no longer lives in grandmother’s house, she now lives down the block with armed methamphetamine cooks. Mother acknowledges such possibilities, but contends that the proper way for the state to deal with them is to submit an amended petition. See ORS 419B.809(6) (court on own motion or motion of interested party may direct that the petition be amended at any time). But human relationships, circumstances, and actions are never static; they change constantly, sometimes daily. We cannot imagine that the legislature intended endless sequential motions to amend, and the necessarily ensuing endless delays, every time a minor circumstance changes. On the other hand, the department’s approach has insurmountable problems of its own. Some of the statutory “factual” grounds for the assertion of jurisdiction—a child’s “condition or circumstances are such as to endanger the welfare of the person or of others,” ORS 419B.100(1)(c), for example—are so elastic or formless that the department could start the process based on one set of events or conditions (for example, the child is in a home with multiple fire hazards) and ultimately litigate the case based on entirely unrelated ones (parent associates with drug dealers), thereby depriving the parent of constitutionally adequate notice as to what, exactly, he or she is supposed to be doing in order to terminate the authority of the state to act as the child’s surrogate parent. ORS 419B.857 informs the proper accommodation of the state’s duty to efficiently determine an at-risk child’s fate and a parent’s right to notice—without which the parent can neither prepare a defense nor properly address the circumstances or conditions **521 that, according to the state, justify displacing parental authority. That statute provides:

“(1) All petitions, answers, motions and other papers must be liberally construed with a view of substantial justice between the parties.

“(2) In every stage of an action, the court shall disregard an error or defect in a petition, answer, motion, other





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paper or proceeding that does not affect the substantial rights of the adverse party.”

*481 This statute supports the inference that the legislature recognizes two situations in which the facts on which the juvenile court bases jurisdiction differ from facts in the original petition or jurisdictional judgment: situations in which the difference “does not affect the substantial rights” of the parent, and situations in which it does. ORS 419B.857(2). In the second situation, in order to preserve the substantial rights of the parent, the court must direct that the petition be amended and grant such continuance as the interests of justice may require. See ORS 419B.809 (6) (allowing amendment of petition); ORS 419B.923 (allowing amendment of judgment). Typically, such a continuance will allow the parent adequate opportunity to defend against the new or unproven allegation, or opportunity to ameliorate it.2 The proven facts depart from the petition so as to substantially affect a parent’s rights if a reasonable parent would not have had notice from the petition or the jurisdictional judgment as to what he or she must do in order to prevent the state from assuming or continuing jurisdiction over the child. Thus, for example, if the petition alleges that the child’s circumstances endanger her welfare because the child is living in a home where a fellow occupant pointed a loaded gun at her, a reasonable parent would know that the state can assert jurisdiction if it proves by a preponderance of the evidence that the child is living in a different home where a different occupant exposes her to dangerous weapons or inherently dangerous substances. A reasonable parent could infer from the allegation in the petition that the state is concerned with her ability or willingness to establish a home where the child is safe from people who engage in dangerous conduct. Applying these precepts to the present case, we begin by repeating the allegations in the dependency petition, all of which were admitted and proved.

“Said above-named child is in need of the services of the Court and a child caring agency, to Wit: Department of *482 Human Services for Douglas County, in that said child’s condition and circumstances are such as to endanger the welfare of said child or of others. Further, said parent having custody of said child has failed to provide said child with the care, guidance and protection necessary for the physical mental or emotional well-being of said child to wit:

“a) Child, and mother live with child’s maternal grandmother, [grandmother’s boyfriend and grandmother’s son, age 16].

“b) On November 17, 2007, an incident occurred while [grandmother and her boyfriend] were under the influence of alcohol, and [grandmother’s son] threatened all of the adults with a shotgun during this incident. The child was present and in the line of fire, placing her at risk of harm.

“c) The home was below minimum community standards with a strong odor of urine and animal feces. The room where child sleeps had animal feces and dirty diapers on the floor and baby bottles with old, separated, curdled formula.

“d) Mother has no other resources for safe housing for herself and the child.

“e) Mother has a history of substance abuse which could impact her ability to safely parent. She agrees to participate in recommended treatment.

“f) There is no legal father identified.”

As noted, mother admitted the allegations in 2009. A fair reading of the judgment should have alerted mother that she needed to find safe housing where dangerous people did not live or visit and that was not below community standards of sanitation, and that she needed **522 to participate in recommended substance abuse treatment. The judgment denying mother’s motion to dismiss wardship and establishing adoption as the permanency plan is based on the following findings of fact:

“[Mother] has not completed drug and alcohol treatment. She does not have safe and stable housing which would allow for the placement of the child [with her]. She has not made changes that allow for her to provide the child with a safe home. She has not made the changes that allow *483 for her to provide the child with a home that meets minimum community standards. She has not made changes that address her mental health problems that caused her to neglect her child.”

The judgment expressly refers to and incorporates by reference a detailed “Memorandum Opinion,” from which we learn that the safety concerns consist of the following:

• Mother pinched child when attempting to secure her seat belt.

• She failed to fasten the child seat securely to the car.



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• She failed adequately to keep child from “getting too near stairs.”

• She failed to prevent child from “getting into the garbage.”

• She failed to prevent child from “getting into the litter box.”

• She failed to keep the child from “possibly spoiled food.”

• She allowed child to attend school with wet diapers, diaper rash, and (at times) no shoes.

On this record, we conclude that based on the allegations of the petition and the jurisdictional judgment, mother should have been on notice that she needed to follow through with recommended substance abuse treatment, and she did not do so. We also conclude, however, that mother had no reason to know that failure to address the newly specified safety concerns could lead to continued jurisdiction. Those concerns are different in kind from the

concerns in the original jurisdictional judgment. In the original judgment, mother was faulted for recklessly exposing N. to deadly weapons; here, mother is faulted for inattention. The facts on which the trial court based its permanency judgment are, indeed, extrinsic to the facts (as we have defined that term) relied on in the jurisdictional judgment. The court relied on “the issues in the petition and other issues.” We are unable on this record to determine the role that the extrinsic facts played in the court’s determination, nor can we foresee whether the department will seek to *484 modify the original jurisdictional judgment. ORS 419B.923. We therefore reverse and remand.3 Reversed and remanded.

All Citations

243 Or.App. 471, 260 P.3d 516

Footnotes 1

ORS 419B.476(5)(d) requires that a permanency hearing order determining that the permanent plan be adoption must include “whether one of the circumstances in ORS 419B.498(2) is applicable.” ORS 419B.498(2), in turn, lists factors that negate the possibility of terminating a person’s parental rights.

2

We acknowledge the argument that, in some circumstances, the parent will have received actual notice of the department’s intention to continue jurisdiction based on facts extrinsic to the jurisdictional judgment. This case does not present that situation, and we do not reach it.

3

Because the issue may recur on remand, we address, and reject, mother’s argument that the state did not make reasonable efforts to achieve reunification.

End of Document

© 2019 Thomson Reuters. No claim to original U.S. Government Works.







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Panel 3: Judicial Process in the Intermediate Court of Appeals Speaker Bios

The Honorable Rex Armstrong has been a Judge of the Oregon Court of Appeals since 1994. Before joining the Court of Appeals, he

• clerked for now-retired Oregon Supreme Court Justice Hans Linde (1977- 1978) • practiced law in Portland from 1978 to 1994, focusing on civil litigation and appeals.

Born and raised in Oregon, Judge Armstrong graduated from Phillips Academy (1968), University of Pennsylvania (B.A. 1974), and University of Oregon School of Law (J.D. 1977). While in high school and college, he worked as a warehouse worker, truck driver, choker setter, and intern in Washington, D.C., and field director in eastern Oregon for Senator Mark Hatfield. In law school, he worked as a law clerk in the U.S. Attorney's office in Portland.

Judge Armstrong is married to Multnomah County Circuit Court Judge Leslie Roberts. Judges Armstrong and Roberts have fourteen children, twelve of whom they adopted in China. They are active in organizations involved with China and with international adoption.

Jeff Dobbins is an Associate Professor of Law at Willamette University College of Law. A graduate of Sunset High School in Beaverton, Oregon, he received an AB in History and Science from Harvard College, then attended Duke University, where he received a joint JD and Master’s of Environmental Management. He clerked for Judges Abner Mikva and David Tatel on the U.S. Court of Appeals for the D.C. Circuit, and then for Associate Justice John Paul Stevens at the U.S. Supreme Court. He worked for five years at the Appellate Section of the Environment Division of the U.S. Department of Justice before returning to Oregon where he worked in the Portland office of Perkins Coie, LLP, before joining the faculty at Willamette. He teaches Civil Procedure, Administrative Law, Federal Courts, Native American Law, and seminars on the Appellate Courts.

The Honorable Erika L. Hadlock has served on the Oregon Court of Appeals since July 2011, when Governor Kitzhaber appointed her to the court. She served a term as Chief Judge from 2016 through 2017.

Before joining the Court of Appeals, Judge Hadlock was:

• an attorney with the Oregon Department of Justice (1995-1998 and 2001-2011), where she held the position of Assistant/Deputy Solicitor General for several years

• a clerk for United States District Judge Anna J. Brown (2000-2001) • an administrative law judge with the Oregon Bureau of Labor and Industries (1998-2000) • an attorney in private practice with Bogle & Gates (1991-1995).

While at the Department of Justice, Judge Hadlock served on the Chief Justice's Criminal Justice Advisory Committee, the Uniform Criminal Jury Instructions Committee of the Oregon State Bar, and

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the board of the Mary Leonard Law Society. While at the Bureau of Labor and Industries, Judge Hadlock served on the board of the Oregon Association of Administrative Law Judges.

Judge Hadlock graduated from Reed College (B.A. chemistry, 1985) and Cornell Law School (J.D., magna cum laude, 1991). She was born in Florida and grew up in Richland, Washington. Judge Hadlock is looking forward to joining her husband in semi-retirement soon; her last day as a regularly elected member of the Court of Appeals will be October 31, 2019. She anticipates continuing to serve the judiciary in a “Plan B” capacity for the next few years. The Honorable Rick Haselton: Born, and grew up, in Albany, Oregon. Stanford University B.A. (with honors/Phi Beta Kappa) 1976; Yale Law School J.D. (with honors) 1979; law clerk to Hon. Alfred T. Goodwin, U.S. Court of Appeals for the Ninth Circuit, Portland, Oregon (1979-80); in private practice (specializing in complex civil litigation and appeals) with the Portland firms of Lindsay, Hart, Neil and Weigler (1980-1991), and Haglund & Kirtley (1992), with a brief solo practice between. Appointed by Hon. Barbara Roberts to Oregon Court of Appeals, March 1992; presiding judge, Department 1, 2001-2012; Chief Judge, 2012-15; senior appellate judge, 2016-present. Professional activities during time in private practice included: Cooperating attorney (and member of Lawyers' Committee) ACLU of Oregon; volunteer attorney for Senior Law Project; Board member (and chair) of Multnomah Legal Services board; Member (and chair) of Oregon State Board of Bar Examiners; and co-founder of Oregon State Bar Appellate Practice section. Community activities have included: Board member for Portland Jewish Academy; board member (and President) for Congregation Kesser Israel (in Portland); and (currently) board member of Jewish Federation of Greater Portland.

The Honorable Erin C. Lagesen was appointed by Governor Kitzhaber to position 12 on the Oregon Court of Appeals, one of the three new judgeships created by the passage of House Bill 4026 (2012). She began service--along with Judge Joel DeVore and Judge DouglasTookey-- on November 12, 2013. Before joining the Court of Appeals, Judge Lagesen

• practiced law in the appellate division of the Oregon Department of Justice, handling a wide range of civil, criminal and administrative appeals in the Oregon Court of Appeals, the Oregon Supreme Court, the United States Court of Appeals for the Ninth Circuit, and the United States Supreme Court.

• practiced law in the litigation section of Stoel Rives LLP in Portland. • served as a judicial clerk the Honorable Susan P. Graber of the United States Court of Appeals

for the Ninth Circuit. • taught high school mathematics before attending law school.

Judge Lagesen serves on executive committee of the Oregon State Bar Constitutional Law section, and is a past chair of that section. She also is one of the coaches for the Franklin high school "We the People" constitutional law team. Judge Lagesen was born and raised in Portland, and is a graduate of

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Robert Gray Elementary School, Wilson High School, Williams College (B.A. cum laude in English and Mathematics, with honors in Mathematics), University of Oregon (M.S. Mathematics), Harvard University Graduate School of Education (Ed.M. Teaching and Curriculum), and Willamette University College of Law (J.D. summa cum laude).

The Honorable Darleen Ortega has served as a judge on the Oregon Court of Appeals since 2003 and is the first woman of color and the only Latina to serve as an appellate judge in Oregon.

Before becoming a judge, she practiced law for 14 years, focusing her practice on all types of civil litigation at the trial and appellate levels. In her time on the bench, she has distinguished herself as a court leader on issues of juvenile dependency and as a student of the structural inequities that challenge the ideals the legal system seeks to uphold.

Judge Ortega is a frequent speaker on topics related to equity, diversity and inclusion, privilege, and equipping women and people of color to succeed in the law. She spends hours each week with law students and new lawyers, especially those from marginalized communities, helping them to make sense of the legal world. She also is an avid movie and theater critic; her reviews appear regularly in the Portland Observer and on her blog (www.opinionatedjudge.blogspot.com). Her continuing engagement with issues affecting marginalized communities includes involvement with middle school and high school students in Portland; service on the board of Oregon Shakespeare Festival, where she chairs the Equity, Diversity and Inclusion Committee; co-founding OneGeorgeFox, an alumni organization that advocates for LGBTQ students at George Fox University; and past service on the board of Northwest Health Foundation, where she chaired the Equity Committee. Judge Ortega also serves as a resource to all three Oregon law schools on issues of equity, diversity, and inclusion. She also serves on the board of the Meyer Memorial Trust and is a co-chair of OWLS-IN (Oregon Women Lawyers Intersectionality Network).

http://www.opinionatedjudge.blogspot.com/

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“BECOMING A JUDGE" (SOME REFLECTIONS)

Judge Rick Haselton

Why “Becoming,” instead of “Being”? After all, “becoming” can have a wonk-ish/process aspect to it, of the sort implicated when non-lawyers would invariably ask me (usually as a first question): “How did you become a judge?” So, it’s that--but it’s so much more: I believe that judges--at least those worthy of the role--are works in continuous progress. No one--except for the most oblivious, foolish, or arrogant--believes that he or she is a judge upon assuming the office. Instead, it’s a continual and continuing evolution, of learning and questioning and self-examination, much more with respect to temperament and “quality of mind,” than legal/intellectual knowledge or skills. About the time you think you are a judge, it’s time either for a serious heart-to-heart with a trusted colleague (or spouse) or to hang it up. Thus: “Becoming.”

But to start at the very (and most personal) beginning: Why did I want to be a judge? The “when” is easy: It was either right after, or during, my Ninth Circuit clerkship with Judge Ted Goodwin at the Pioneer Courthouse, right out of law school in 1979-80, when I first found that I had a flair for, and enjoyed, appellate work (at the very least, the sort of writing that goes with that territory). So, that’s also a partial, but superficial, answer to the “why”: I thought I could be good at the work--to the extent I’d been exposed to it--and it seemed like it would be fun. Beyond that, and more importantly--and this has never changed--there was this: I wanted to give back, to serve, and judging seemed the best way to do that. For all of that, aside from a healthy (and not infrequently over-sized and misplaced) self-confidence, I had no business thinking that I was in the slightest competent or “qualified” to fairly decide matters vitally and inalterably affecting other people’s lives. But there you have it.

Still, along with the ethic of service, the work of appellate judging spoke to some other, fundamental qualities of my character. (Not that I ever stepped back and thought in those terms when I was younger.) There was, and is, an ostensible orderliness to it: The process seemed to be straight-forward, with clear-cut “winners” and “losers"--unlike trial court litigation and judging with the “messiness” of emotions and human drama. (Only later would I come to understand how wrong I was.) In a related way, I’d never felt comfortable with conflict, so, bringing order from chaos/resolving disputes also spoke to something deep-seated. Unlike my life as a litigator, essentially as a hired gun, I could do--or, at least within the limits of the law, try to do--the “right thing.”

And there was this: Judges were honored and respected--and, frankly, that seemed pretty attractive, especially in my ambitious, and largely clueless, professional youth. That never entirely went away, though over time I tried to minimize/distance myself from the most obvious ego-stroking trappings and dynamics for fear that they’d distort the balance and perspective and self-awareness that are essential to judging. Still--and I was candid about this from my first day on the bench until even now, on the verge of wrapping up my senior judge service--I became a judge in large part because I wanted I

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wanted my wife and daughter to be able to be proud of me, of the work I did. And I’ll never forget my mother's happiness and pride during my investiture, the only time she was ever in our courtroom.

From my judicial clerkship with Judge Goodwin, through my time as associate and partner, at Lindsay, Hart, Neil & Weigler--and beyond, briefly, to my short-lived solo practice and Haglund and Kirtley--the thought, the aspiration, of becoming an appellate judge was always there. Throughout, I remembered and tried to heed Judge Goodwin’s words/advice on the last day of my clerkship: “All you can do is put yourself in the best position for lightning (an appointment) to strike, and hope that it does.” So, from the beginning in private practice, I tried to develop a reputation as a well-regarded appellate lawyer, handling dozens of appeals in the state and federal courts; I took on some pretty significant civil rights cases (especially involving religious observance by prison inmates) for the ACLU and the American Jewish Committee; I chaired various professional committees, including the Multnomah Legal Services board and the Board of Bar Examiners, as well as serving on the boards of various community, educational, and faith-based organizations, While I enjoyed (almost) all of those experiences,in large part because I felt I was giving back in ways that my usual law firm practice didn’t, I must admit, with some discomfort in retrospect, that some of them were self-consciously calculated to enhance my visibility--and, thus, the likelihood that “lightning would strike.”

Which brings us somewhat deeper--but we won’t go much deeper--into the wonk-ish political “weeds” of the appointment process. After now having been involved in over a dozen judicial selection/appointment processes, either as an applicant (with Governor Roberts) or (once I was on the Court) as a screener/”vetter”/advisor to the Governor’s office (both Governors Kitzhaber and Brown), the only thing I can say with certainty is, that, while professional competence and public service certainly are important considerations, the process is, innately and unavoidably, “political.” Interest groups that provide input to, or have influence (sometimes substantial)) with, the governor want to ensure that someone who shares their views--who will be, bluntly, their “boy” or “girl” on the court--is appointed. So, in preliminary screening interviews with applicants seeking their endorsement, they (some, blatantly, others, with more finesse) will ask questions designed to pin applicants down on issues dear to their (organizational) hearts that are likely to come before the courts. Of course, it’s a violation of judicial ethics to “pre-commit” on some case or issue, so, as an applicant or (later) candidate, you’re left with trying to give a sense of your basic values, without any “commitment,” without hacking them off. And governors and their staffs/advisors often feel the same way: To be sure, competence and judicial temperament are extremely important, but, when push comes to shove, many governors will (if they have no other choice) appoint a less competent (albeit still competent), but “reliable,” applicant over one who is more "qualified" but unpredictable. Because it’s so political--and, in a state where everyone knows everyone else, political/personal--as a judicial applicant, you enlist the help of friends who know the Governor, or who know someone who knows the Governor, to sing your praises and, thus, try to avoid the entanglement/pitfalls of any ostensible injudicious pre-commitment.

It’s a dance.

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Enough “in the weeds.” Between 1991 and early 1994, I applied for Court of Appeals vacancies three times. The first time, was sort of a "get my feet wet" trial run; I was only 37 (very young for a Court of Appeals appointment), and I had no real expectations of success, so, I was delighted when I was deemed “highly qualified” by the Bar and not really disappointed when Governor Roberts appointed Skip Durham to the seat. But, when I failed in my second attempt to be appointed to either of two concurrent vacancies in late 1992 I was crushed (my good friends Jack Landau and Sue Leeson were appointed). It was, by far, the biggest professional disappointment I’d ever experienced.

It was also, by far, the best thing that could ever have happened to me professionally--and, in many ways, personally. Years later, when the court had one of its periodic "road show" school sittings, a (very perceptive) student asked me what qualities/attributes I thought were most important for a Court of Appeals judge. I answered, beginning with some one might anticipate, like integrity, open-mindedness/listening, work ethic, “playing well with others,” etc.--and then, I said, “and having a few dents in your fender.” That is, living life, having experienced disappointment and failure--so that you had some humanity, some empathy for all those people, in all those different circumstances, who come before you, many of whom are there because of some of the worst moments of their lives.

Once I clawed up from my disappointment and self-pity, it sobered me up. I’d been flying so high, so sure of myself, on such a “certain” trajectory (in my mind and dreams, perhaps on my way to a Ninth Circuit judgeship) . . . . To use the term now in vogue: Entitled. It had gotten to the point, where it was all about me, not about service. The privilege of public service. There was such an arrogance--which is the antithesis of judging. As I came to understand: It’s not about you. It can never be.

And so, I learned--or tried to learn. I stepped back and tried to take a hard look at myself and why I wanted to be a judge, of the sort of judge I hoped to be, if it ever came to be. I have no doubt that I would never have been the judge that I was--or, at least, some others kindly think I was--without that disappointment and experience.

The final process was in early 1994. Ironically, Skip Durham, who’d been appointed back in Round One, got appointed to the Supreme Court, opening the vacancy on the Court of Appeals that he’d originally filled. After my interview with Governor Roberts, I drove down to Albany to visit my mother and said, "I got a fair shot and left nothing on the table. Whatever happens, happens." And so, it did.

For the next nearly 22 years, I became a judge. I was always learning, in so many ways. There are so many facets and layers to the work (and that’s not even getting into all the administrative matters associated peculiarly with being Chief Judge).

At the most “mechanical” level, as a brand-new judge, you’re overwhelmed by the sheer volume of work--stacks of briefs, tens of thousands of pages a year on every imaginable legal subject from aggravated murder to toxic torts, child custody to worker’s comp, land use, juvenile dependency--how do you just keep up with the reading alone without being overwhelmed by the avalanche (no months off on the Court of Appeals--it just keeps coming and coming)? And, as you’re working your way through all of that briefing (much of it indifferently written or dealing with truly arcane matters), how do you read critically, making sure that you aren’t missing something important? It’s so easy to want

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to default to “skim” mode--but these are people’s lives! You’re torn between self-preservation and incipient guilt. In the midst and muddle of all of that, how do you identify questions that might be productive (much less, the most productive) at oral argument? There are no complete answers or solutions: Over time, you pick up a few tips and tricks; you recognize a few common “constructs” and “tropes” in briefing and, with lawyers who appear frequently, you may get accustomed to their styles. You start to develop instincts and senses and skills akin to emergency room “triage.” But it’s never easy. And it’s always exhausting, physically and mentally. Never a day off (except Shabbat or Jewish holidays) for me.

That’s just reading the briefing submitted by the parties. What about your own writing?--that is, the opinions you’ve been assigned to write (for me, that was, before I became Chief, roughly 50-60 a year)? You’ve got to have time to think--the rarest and most precious commodity of an intermediate appellate judge. Time to think about the arguments and issues and their nuances and implications; time to think about how to approach them most efficiently and productively. Time for thinking “tactically” and “strategically”--is this a case which can, or should, be decided on “narrow” grounds or one that requires a more expansive treatment, dealing with resolving major legal issues? And, of course, time to think about writing, the nuances of expression--does that word precisely convey the intended meaning? How should that opening paragraph read? Should those sentences be transposed?

Before you get to the writing, or as you work through the process of drafting, you have to work through the process of actually deciding the case. That is, in so many ways, the “black box,” defying any reasoned description or explanation (though years ago, Justice Cardozo gave it his best shot, never surpassed, in The Nature of the Judicial Process, which is still in my glass-front bookcase here at home . . . ). For some cases, it’s not so hard: There may be directly controlling authority/precedent from our court or the Supreme Court, or at least authority that’s so closely analogous as not to be materially distinguishable. Or it may be that (as is not infrequently the case), the party appealing is procedurally foreclosed, because he/she/it didn’t raise the same contention/challenge in the trial court. But, in other cases--and by far the most important and challenging--it’s much harder. Both positions have real merit; there are no obvious “tie-breakers” (like controlling precedent); both may be supported by pretty solid logic. That’s where true judging begins: Which position is truly more compelling? Which comports most closely to the development of the law to date--to its fundamental, underlying principles? What are the implications of either? And sometimes, not often, what is the most just result? What feels “right”? Always with humility; never with certainty.

There are some judges--very rare in my experience--who essentially start with that last consideration: They decide how they want a case to come out, and then work backwards to try to justify that result. But most of us--and, I believe that this is the only ethical and truly judicious approach--start from the beginning, work through the process, and, wherever it takes us, it takes us.

Back to the writing itself. For me, well over a thousand full opinions over more than 20 years. Literally tens of thousands of pages; more than a million words published. Words and words and words--some pro forma, but many requiring real consideration: “How best to say that?” You are ever

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conscious that whatever is published will have a life of its own--in the bound volumes (and now, in the electronically-generated format), it’s authoritative. Precedent. Even though I learned some techniques over time to ease the burdens of reading, I never did with writing. Each opinion was unique; sure, lots of recurrent similarities in some areas, but there was/were always some twist(s).

Of course, I didn’t do all the original writing on “my” opinions (nor does any state appellate judge): I worked with my clerks (and, especially in later years, with a staff attorney or two) in generating and crafting the bulk of our work. But that itself involves intense conversation and collaboration--and, editing. Again, there are techniques for doing that, especially with law clerks, with each clerk being different, with different strengths and gaps, learning in different ways and at different speeds, responding differently to different input and guidance. For me, that--that teaching/”mentoring”--was the most rewarding part of the work, but also often the most challenging. I told my clerks that I would learn as much from them as they did from me, and that was true. Again, a continuing education, continually “becoming.”

And last (for now, at least), there were all the collegial dynamics--of learning of how to work most constructively and convivially with other judges, especially the two other members of your panel and, on occasion, all the other members of the Full Court. Different backgrounds; different personalities; different sensibilities; different styles. There’s no such thing as a “one-judge majority” on the Court of Appeals (it takes at least two out of three on the three-judge panel), so, you’ve got to understand that any opinion is a collective product--it’s not “yours.” Simple, practical, collegial “arithmetic” (or, more precisely, geometry--akin to billiards). So, “social intelligence” (or developing it) is at a premium--especially in how and when to weigh in on other judges’ draft opinions (some are remarkably open and accommodating; others can be, as in the rest of life, incredibly thin-skinned and defensive). When to speak up, and when to let it go? There is one certainty: You’re going to have to live together, probably for years, so, it’s a constant struggle to strike the right, principled balance between essential substantive input, including dissent, and collegial “accommodation.”

Nearly 22 years--now, with senior status, nearly 25 years--of “becoming a judge.” All those cases, all those continuing lessons, week by week, year by year. Looking back, I honestly can’t say how they’d changed me--of course, I’d like to say that they made me wiser, more patient, and kinder. But others may well know better. Still, and ever, "becoming."

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The Oregon Court of Appeals’ 50 Anniversary · Chap.198] OREGON LAWS 1969 331 Subscribers to the advance sheets of the Supreme Court shall be con sidered subscribers to the advance

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