State v. B. Y.

364 October 5, 2023 No. 24

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of B.Y.,

a Youth.

STATE OF OREGON,

Petitioner on Review,

v.

B.Y.,

Respondent on Review.

(CC 19JU00173) (CA A172581) (SC S069640)

On review from the Court of Appeals.*

Argued and submitted March 3, 2023, at Willamette

University College of Law, Salem, Oregon.

Jonathan N. Schildt, Assistant Attorney General, Salem,

argued the cause and filed the briefs for petitioner on review.

Also on the brief were Ellen Rosenblum, Attorney General,

and Benjamin Gutman, Solicitor General.

Christa Obold Eshleman, Youth, Rights & Justice,

Portland, argued the cause and filed the brief for respondent

on review.

Before Flynn, Chief Justice, and Duncan, Garrett,

DeHoog, and Masih, Justices and Balmer and Baldwin,

Senior Judges, Justices pro tempore.**

GARRETT, J.

The decision of the Court of Appeals is affirmed in part

and reversed in part. The judgment of the circuit court is

affirmed in part and reversed in part.

______________

* Appeal from Columbia County Circuit Court,Ted E. Grove, Judge.319

Or App 208, 510 P3d 247 (2022).

**Nelson, J., resigned February 25, 2023, and did not participate in the deci-

sion of this case. Bushong and James, JJ., did not participate in the consideration

or decision of this case.

Cite as 371 Or 364 (2023) 365

366 State v. B. Y.

GARRETT, J.

The juvenile code provides a maximum amount of

time that a youth can be committed to the custody of the

Oregon Youth Authority (OYA) for each type of offense that,

if committed by an adult, would constitute a crime. ORS

419C.501. However, the code does not explicitly address how

multiple adjudications affect the calculation of that period.

The issue in this case is whether, when a youth commits

a new offense while already in OYA custody, the juvenile

court’s disposition can impose a new period of commitment

to run consecutively to the period of commitment that the

youth has not yet completed.

While on juvenile parole related to a commitment to

OYA in an earlier case, youth was adjudicated to be within

the jurisdiction of the juvenile court for interfering with

a peace officer. Based on that conduct, the juvenile court

imposed a new disposition, which also committed youth to

OYA custody, to commence at the conclusion of youth’s exist-

ing commitment. Youth challenged that order, contending

that the juvenile court lacked authority to impose consecu-

tive commitments. A divided panel of the Court of Appeals

agreed with youth and reversed the order of the juvenile

court. State v. B.Y., 319 Or App 208, 510 P3d 247 (2022).

We allowed the state’s petition for review to con-

sider that question of statutory interpretation, and we now

reverse the decision of the Court of Appeals in part and

affirm in part.1

I. BACKGROUND

The facts, which are undisputed on review, are taken

from the opinion of the Court of Appeals. In 2017, youth was

committed to the custody of OYA for three and a half years.

That commitment was the result of a combined disposition

for multiple unlawful acts following a probation violation.

Youth was placed in a youth correction facility for much of

1

Youth raised a second assignment of error in the Court of Appeals, arguing

that the juvenile court committed plain error in imposing a “one-year” commit-

ment term when the statutory maximum was 364 days. The state agreed that

that constituted plain error, and the Court of Appeals reversed the juvenile court

on the length of the commitment term. We do not disturb that aspect of the deci-

sion of the Court of Appeals.

Cite as 371 Or 364 (2023) 367

that time. He was paroled to a residential placement, but

he ran away. When police attempted to apprehend him,

he refused to comply with an order to stop and get on the

ground. For that conduct, which at the time, if committed by

an adult, would have constituted the Class A misdemeanor

of interfering with a peace officer, former ORS 162.247(1)(b)

(2018), amended by Or Laws 2021, ch 254, § 1, the state

initiated a new delinquency proceeding. Youth admitted to

the conduct. As part of its disposition in 2019, the juvenile

court ordered that youth be committed to OYA for one addi-

tional year, to run consecutively to the existing commitment

period, which was scheduled to end in November 2020. In

other words, youth’s cumulative period of commitment was

extended from November 2020 to November 2021. Youth

served that additional period, was then released, and his

commitment to OYA was terminated in November 2021.

The juvenile court terminated its jurisdiction over him.

Youth timely appealed while he was still in OYA cus-

tody, arguing that ORS 419C.501 does not allow a juvenile

court to impose an additional commitment to run consecu-

tively to an existing commitment.2 A 1976 Court of Appeals

case had held that juvenile courts possess the authority to

impose consecutive commitment terms. State ex rel Juv. Dept.

v. T., 27 Or App 407, 556 P2d 146 (1976). The state argued

below that, although T. interpreted a former version of ORS

419C.501 (ORS 419.511 (1971)), the subsequent amendments

to the statute in 1999 had not disturbed the holding in T.

The Court of Appeals majority agreed with youth.

Noting that the statutory text did not resolve the issue,

the court relied on the context and history of the statutory

scheme. B.Y., 319 Or App at 218-19. The court first looked

to its prior case from 1976, T., 27 Or App at 409, which

held that juvenile courts have the authority to impose con-

secutive commitments. It stated that T.’s holding had been

based on the premise that, at the time, the juvenile code had

expressly linked the maximum commitment term for a youth

2

The underlying incident in this case, youth’s interference with a peace offi-

cer, occurred in 2018. ORS 419C.501 was amended in 2019 and 2021. However,

those were not substantive amendments, and they do not affect our analysis.

Therefore, all references to ORS 419C.501 in this opinion are to the current ver-

sion of the statute unless stated otherwise.

368 State v. B. Y.

to the maximum sentence that an adult could serve for the

same conduct. The court then reasoned that, because crim-

inal courts in 1976 had broad statutory authority to impose

consecutive sentences for adult offenders, it had logically fol-

lowed in T. that juvenile courts had similar authority.

However, as the court explained, the legislature

amended the juvenile statute in 1999 and severed that

“linkage” between a juvenile court’s authority and a crimi-

nal court’s sentencing authority in adult cases. In addition,

the court explained that intervening changes to the crimi-

nal sentencing statutes, following the T. decision and prior

to the 1999 amendments, had limited the authority of adult

criminal courts to impose consecutive sentences. As a result,

the majority reasoned, the premise for the court’s conclusion

in T. no longer existed. The majority ultimately determined

that, because of the conflict between the T. decision and the

1999 amendments, the legislature’s intent on the question

was “ambiguous.” The court concluded that, had the legisla-

ture considered the question, it would not have intended to

grant unlimited authority to juvenile courts to impose con-

secutive commitment terms in juvenile delinquency cases.

In dissent, Chief Judge Lagesen reasoned that the

statutory scheme gives the juvenile court broad discretion to

determine the conditions and duration of an OYA commit-

ment and provides factors for the court to consider, including

other conduct by the youth. The dissent noted that the 1999

amendments did not address the consecutive-commitment

question. The dissent also explained that “juvenile courts

long have been understood to have [the] authority” to impose

consecutive commitment terms, and concluded that, “[a]bsent

a clear indication from the legislature that it intended to dis-

place that status quo,” the court should maintain it. Id. at 222

(Lagesen, C.J., dissenting) (citing T., 27 Or App at 407).

The state petitioned for review, which we allowed.

II. ANALYSIS

Before addressing the interpretive question in this

case, we provide a brief description of juvenile delinquency

proceedings. When a youth engages in conduct that would

constitute a crime if committed by an adult, the state may

Cite as 371 Or 364 (2023) 369

petition the juvenile court to find the youth within its juris-

diction. ORS 419C.005 (providing juvenile courts with exclu-

sive original jurisdiction of delinquency proceedings); ORS

419C.250 (providing process for filing delinquency petitions).

The court then holds a hearing, which constitutes

the “adjudication” phase. ORS 419C.001 (listing the three

phases of the juvenile justice system as “initiation, adjudi-

cation and disposition”). During the adjudication phase, the

state must prove the facts alleged in the petition beyond a

reasonable doubt. ORS 419C.400. If the juvenile court finds

that the youth did engage in the conduct alleged, it finds the

youth within its jurisdiction and enters a disposition order.

ORS 419C.411. The disposition order sets forth the require-

ments and conditions that the youth must complete as part of

youth’s rehabilitation. See ORS 419C.440 - 419C.510 (setting

out the types of dispositions and under what circumstances

a court may impose them). The disposition also includes

any changes in youth’s custody—guardianship, parental

custody, or OYA custody—when the court determines that

a change in custody is appropriate. See ORS 419C.446 (stat-

ing that the court may “direct” that the adjudicated youth

remain in parental custody or the court may place a youth

in the custody of a relative, foster home, or child care cen-

ter); ORS 419C.478 (stating that the court has authority to

place an adjudicated youth in the legal custody of OYA or

the Department of Human Services).

The terminology used in the juvenile code is unique

to this context. Therefore, we clarify a few terms before

addressing the question in this case. “Commitment to OYA”

and “OYA custody,” as the state explained at oral argument,

are used interchangeably throughout the juvenile code and

are distinguished from the physical location where a youth

is “placed.” See, e.g., ORS 419C.478 (permitting juvenile

courts to commit adjudicated youths to OYA and place them

in “custody” of OYA for care, placement, and supervision);

ORS 419C.486 (requiring OYA to take recommendations

from the “committing court” to facilitate planning for “adju-

dicated youths committed to its custody”); ORS 419C.492

(allowing juvenile courts to review placements made by OYA

or the Department of Human Services and direct OYA or

370 State v. B. Y.

the department to “place” the youth in a type of “residential

placement” if the youth’s rights are being violated). The “dis-

position” is the judgment of the juvenile court that imposes

conditions on the adjudicated youth for the purpose of that

youth’s rehabilitation. ORS 419C.411. The disposition, like

the one in this case, may include a commitment to OYA cus-

tody. ORS 419C.478. When a juvenile court imposes a dispo-

sition, it must “fix the duration” of the disposition and, when

the court’s disposition includes a commitment to OYA cus-

tody, the commitment must be for an indefinite period. ORS

419C.501. The statute then limits that indefinite period for

specific types of offenses. Id.

The question in this case is whether a juvenile court

may impose a commitment term that runs consecutively to

a previously imposed commitment term when the consec-

utively imposed commitment is the result of conduct that

occurred while youth was in OYA custody for the earlier

commitment. Youth argues that the juvenile court does not

have the authority to impose consecutive commitment terms

because ORS 419C.501 does not expressly grant that author-

ity. The state argues that the statute, in context, impliedly

authorizes consecutive commitment terms. For the reasons

below, we agree with the state.

A. Mootness

We first address the fact that youth is no longer in

OYA custody nor under the juvenile court’s jurisdiction. A

case becomes moot when a court’s decision will no longer

have a “practical effect on the rights of the parties.” Brumnett

v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993). Often, that

occurs because an event “render[s] it impossible for the court

to grant effectual relief.” Hamel v. Johnson, 330 Or 180, 184,

998 P2d 661 (2000) (citation omitted). A party moving for

dismissal bears the burden to establish mootness. State v.

K.J.B., 362 Or 777, 786, 416 P3d 291 (2018). ORS 14.175 is a

statutory exception that provides that a court “may issue a

judgment” notwithstanding mootness. It has three require-

ments: (1) the party had standing to commence the action;

(2) the challenged act is capable of repetition; and (3) the act

is likely to evade review. Couey v. Atkins, 357 Or 460, 476-77,

355 P3d 866 (2015) (stating requirements of ORS 14.175).

Cite as 371 Or 364 (2023) 371

While youth’s appeal of the juvenile court’s second

disposition was pending, he completed both the original com-

mitment term and the additional commitment term imposed

by the second disposition. Youth is no longer in OYA custody,

and that custody was terminated on November 5, 2021.3 The

parties agree that, as a result, this case is moot; our reso-

lution will have no practical effect on either party’s rights.

However, neither party has moved to dismiss the appeal.

The Court of Appeals issued its opinion in April

2022. The parties did not provide a notice of probable moot-

ness to that court, and that court did not address mootness

in its opinion. After the state petitioned for review, we asked

the parties to submit briefing on mootness. We then allowed

review.

The parties agree that this case is reviewable under

ORS 14.175, and that we should exercise our discretion to

review. As noted, that provision states that, notwithstand-

ing mootness, the court “may issue a judgment” if:

“(1) The party had standing to commence the action;

“(2) The act challenged by the party is capable of rep-

etition, or the policy or practice challenged by the party

continues in effect; and

“(3) The challenged policy or practice, or similar acts,

are likely to evade judicial review in the future.”

ORS 14.175. When those three requirements are met, the

legislature has expressly stated that we may exercise dis-

cretion to review the case. Id.; Couey, 357 Or at 477.

The parties both argue that all three of those

requirements are met, and we agree that they are. First,

youth had standing to challenge the juvenile court’s imposi-

tion of the consecutive commitment term because he was in

3

Youth has asked us to take judicial notice of the case registers in youth’s

other cases, and the state does not object. Eklof v. Steward, 360 Or 717, 722 n 4,

385 P3d 1074 (2016) (explaining that OEC 201(b)(2) allows this court to take

judicial notice of “sources whose accuracy cannot reasonably be questioned,”

which included case registers of other cases). We therefore take judicial notice of

the fact that, in 2021, the juvenile court terminated OYA custody, ended youth’s

commitment term, and dismissed five pending petitions against youth, per the

judgment entered October 27, 2021, effective November 5, 2021, in case number

14JU03323.

372 State v. B. Y.

OYA custody at the time that he challenged it. Second, the

imposition of that term is capable of repetition in other juve-

nile delinquency cases involving subsequent misdemeanor

counts. See Penn v. Board of Parole, 365 Or 607, 622, 451

P3d 589 (2019) (explaining that the capable of repetition

requirement is satisfied by a showing that the challenged

act is “reasonably susceptible to repetition as to someone”).

Third, we agree with the parties that the imposition of con-

secutive commitment terms is likely to evade judicial review

in the future. See Couey, 357 Or at 479 (explaining that

“likely” means “probable that a similar challenge will evade

judicial review in the future”). That is so because many

youth commitment terms have a statutory maximum of less

than one year. ORS 419C.501(1) (setting maximums of less

than one year for acts that would constitute Class A, B, or

C misdemeanors if committed by an adult). Given that the

appellate process can typically take several years, it is fore-

seeable that many cases involving consecutive commitment

terms for misdemeanor-only cases will become moot on

appeal. And for juvenile dispositions involving serious felo-

nies with statutory maximums of 10-20 years, the fact that

most youth age out of OYA custody at age 25 makes it less

likely that youth in such cases would be subject to consecu-

tive commitment terms imposed by subsequent dispositions.

See ORS 419C.501(1)(f), (g); ORS 419C.501(2). Therefore, it is

likely that the imposition of consecutive commitment terms

is likely to evade review in the future. All three require-

ments of ORS 14.175 are met.

We further conclude that we should exercise our dis-

cretion to review the issue in this case. Clarifying the scope

of the juvenile court’s dispositional authority is important

to the public and will have implications for future cases. See

ORAP 9.07 (setting forth factors to consider in determining

whether to allow discretionary review).

It is true that, in some cases, we have remanded to

a lower court for consideration of whether it is appropriate

to adjudicate an otherwise moot case when that question

was not addressed below and when we conclude that the

claims are justiciable under ORS 14.175. See Couey, 357 Or

at 522 (remanding to the circuit court for consideration of

Cite as 371 Or 364 (2023) 373

whether it should exercise its discretion to reach the merits

when it previously declined to do so), and Eastern Oregon

Mining Association v. DEQ, 360 Or 10, 19, 376 P3d 288

(2016) (remanding to the Court of Appeals to decide whether

it should exercise its discretion to adjudicate the moot case

after that court determined that the issues did not raise ORS

14.175 considerations). But that is not always so. See Penn,

365 Or at 624 (exercising our discretion to adjudicate the

case when the Court of Appeals reached the merits and the

case became moot during proceedings before this court). As

we explained in Couey, ORS 14.175 “leaves it to the court to

determine whether it is appropriate to adjudicate an other-

wise moot case under the circumstances of each case.” 357

Or at 522. The circumstances of this case—including that

the Court of Appeals has already reached the merits and

neither party has moved to dismiss the appeal as moot—

further persuade us to exercise our discretion to review this

issue.

B. The Authority to Impose Consecutive Commitments

Under ORS 419C.501

The question in this case is whether ORS 419C.501

authorizes a juvenile court to impose a new, consecutive

commitment for an additional offense that occurs while a

youth is in OYA custody. That is a matter of statutory con-

struction, which we resolve by giving effect to the intent of

the legislature as demonstrated by the text, context, and

any helpful legislative history. State v. Gaines, 346 Or 160,

171-72, 206 P3d 1042 (2009). In turn, we review the trial

court’s interpretation of the statute for legal error. See State

v. Ramoz, 367 Or 670, 704, 483 P3d 615 (2021) (“Questions

of statutory construction and a trial court’s authority to act

* * * are questions of law.”).

We begin with the text. ORS 419C.501 governs the

duration of dispositions. It also sets specific limits on the

period of commitment that a juvenile court may impose for

an act. In full, it reads:

“(1) The court shall fix the duration of any disposition

made pursuant to this chapter and the duration may be

for an indefinite period. Any placement in the legal cus-

tody of the Department of Human Services or the Oregon

374 State v. B. Y.

Youth Authority under ORS 419C.478 or placement under

the jurisdiction of the Psychiatric Security Review Board

under ORS 419C.529 shall be for an indefinite period.

However, the period of institutionalization or commitment

may not exceed:

“(a) The period of time specified in the statute defining

the crime for an act that would constitute an unclassified

misdemeanor if committed by an adult;

“(b) Thirty days for an act that would constitute a

Class C misdemeanor if committed by an adult;

“(c) Six months for an act that would constitute a Class

B misdemeanor if committed by an adult;

“(d) Three hundred sixty-four days for an act that

would constitute a Class A misdemeanor if committed by

an adult;

“(e) Five years for an act that would constitute a Class

C felony if committed by an adult;

“(f) Ten years for an act that would constitute a Class

B felony if committed by an adult;

“(g) Twenty years for an act that would constitute a

Class A felony if committed by an adult; and

“(h) Life for a young person who was found to have

committed an act that, if committed by an adult would

constitute murder or any aggravated form of murder under

ORS 163.095, 163.107, or 163.115.

“(2) Except as provided in subsection (1)(h) of this sec-

tion, the period of any disposition may not extend beyond

the date on which the young person or adjudicated youth

becomes 25 years of age.”

ORS 419C.501.

The text of the statute does not expressly address

the question before us. It instructs us that the juvenile court

must “fix the duration” of a disposition in its order and that

placement in OYA custody must be for an indefinite period.

Id. It limits the period of commitment for each offense level

by categorizing conduct that, if committed by an adult,

would constitute a crime. Id. It also prohibits the juvenile

court from imposing a disposition that extends beyond the

Cite as 371 Or 364 (2023) 375

adjudicated youth’s twenty-fifth birthday (other than in the

case of murder or aggravated murder). Id. We thus under-

stand the text to authorize the juvenile court to determine

the duration of a disposition, with two explicit limitations:

A disposition cannot extend past the youth’s twenty-fifth

birthday, and the term of commitment cannot exceed the

statutory maximum listed for “an act.”

At issue in this case is the meaning of the latter

provision. The use of the indefinite article “an,” used with

the singular noun “act,” could be interpreted in two ways.

First, “an” can be used before an unspecified noun—synon-

ymous with “any.” See Lake Oswego Preservation Society v.

City of Lake Oswego, 360 Or 115, 126, 379 P3d 462 (2016).

Second, “an” can be used “quantitatively” to signal that

the noun is part of a class, whether that class is defined

expressly or implicitly in the context in which the indefinite

article appears. Id. at 126-27. Both interpretations indicate

that “an” refers to a single thing—here, a single act. In other

words, the statute provides that the juvenile court shall “fix

the duration of any disposition” for “an act,” but it does not

expressly address what should happen in a situation involv-

ing multiple acts. Finding limited evidence of the legisla-

ture’s intent in the text of ORS 419C.501, we turn to the

statutory context.

As relevant to this case, the statutory context for

ORS 419C.501 includes other provisions of the juvenile

code and earlier versions of the statute. See Dept. of Human

Services v. S.J.M., 364 Or 37, 54, 430 P3d 1021 (2018) (exam-

ining the juvenile code provision at issue in the context of

the rest of the juvenile code); Brown v. SAIF, 361 Or 241,

254, 391 P3d 773 (2017) (explaining that statutory context

includes the entire statutory scheme); State v. Haley, 371 Or

108, 112, 531 P3d 142 (2023) (noting that earlier versions of

the statute at issue are statutory context). We begin with

the juvenile code as a whole, and then turn to the earlier

versions of ORS 419C.501.

The juvenile code has multiple provisions that gov-

ern a juvenile court’s disposition in a delinquency case. ORS

419C.411 lists numerous factors for the juvenile court to con-

sider when determining the appropriate disposition. ORS

376 State v. B. Y.

419C.446 and ORS 419C.453 provide authority to impose

a probation term and limit when detention is authorized.

ORS 419C.478 governs placement in OYA custody, listing

findings that the court must make before placing a youth

in OYA custody. Taken together, the juvenile code gives

juvenile courts broad authority to determine the appropri-

ate disposition in each individual case. As we explain below,

the statutory context indicates that juvenile courts have the

authority to impose, when appropriate, commitment terms

for subsequent offenses so long as the duration of each term

does not exceed the maximum for the offense for which it is

imposed.

As noted, when determining an appropriate dispo-

sition, the court must consider numerous factors set out in

the statute. ORS 419C.411. Those factors include the gravity

of loss or injury from the youth’s act, the level of aggression

or willfulness, whether the youth was held in detention, the

need to protect the victim, and the youth’s previous juve-

nile court record. ORS 419C.411(3). In addition, the juvenile

court “may” consider the youth’s efforts toward reform, edu-

cational status, and employment history, the youth’s pro-

posed disposition, recommendations from the state, state-

ments from the victim, the youth’s mental, emotional, and

physical health, the results of substance abuse treatment,

and “[a]ny other relevant factors or circumstances raised by

the parties.” ORS 419C.411(4). In other words, the juvenile

court has broad authority to assess the unique needs of each

case and impose an appropriate disposition based on those

needs.

Other provisions regarding dispositions further

support that understanding. The court has authority to

direct the youth to remain in the legal custody of the youth’s

parents, to be placed in the legal custody of a relative or a

foster home, or to be placed in the legal custody of a care

center when imposing a probation term. ORS 419C.446.

The court is charged with making that determination in

the “best interest and welfare” of the youth. Id. The court is

also authorized to commit a youth to OYA custody, and, in

specific circumstances, to detain a youth in a jail-like deten-

tion setting for specified periods of time. ORS 419C.478

Cite as 371 Or 364 (2023) 377

(commitment to OYA custody); ORS 419C.453 (authorizing

detention). The statutes give the court significant latitude

to determine what kind of supervision the youth should

be placed in, based on the youth’s conduct, and to fashion

appropriate conditions during a placement.

The juvenile code instructs the juvenile court to

determine whether OYA custody is in the youth’s best inter-

ests, and to determine the services and conditions that the

youth must receive and adhere to during youth’s term of

commitment to OYA. As discussed above, when the juve-

nile court determines that OYA custody is appropriate, ORS

419C.501 requires the juvenile court to commit the youth

to OYA custody for an indefinite period. Thus, the statu-

tory scheme clearly contemplates a broad, holistic analysis

of the circumstances in the court’s determination of condi-

tions, treatment programs, and legal custody. The court’s

authority to make those determinations is subject to limits

that are expressly stated in the statute. Those limits include

a requirement that a youth’s period of commitment for “an

act” not exceed the statutory maximum sentence that would

apply to an adult who engaged in the same conduct. Nothing

in the statute suggests that the court’s authority to set the

duration of the commitment term is constrained beyond the

limits that the juvenile code explicitly provides. More to the

point, nothing in the text of the statute precludes a new

“act,” committed while a youth is already committed to the

custody of OYA, from being addressed in a new disposition

with its own, separate period of commitment.

In short, the juvenile code entrusts the juvenile

court with broad authority to impose an appropriate dispo-

sition given the facts and circumstances of each case. The

limitations on that authority that the code does provide are

quite explicit. See, e.g., ORS 419C.478(5) (“[T]he court may

not make a commitment directly to any residential facility.”).

If the legislature had intended to limit the court’s authority

to impose dispositions for subsequent offenses in the man-

ner that youth contends, it could have done so. But nothing

in the text of the juvenile code suggests that it has done

that, or that it intended to do that.

378 State v. B. Y.

In addition to related statutes, our inquiry into

the statutory context includes earlier versions of the same

statute. We now turn to the versions of ORS 419C.501 that

existed prior to the current version, which was last substan-

tively amended in 1999. As explained below, those earlier

versions demonstrate that the legislature has consistently

given broad discretionary authority to the juvenile courts to

determine the “appropriate” disposition in each case.

The first juvenile code was enacted in 1959. Or

Laws 1959, ch 432. Former ORS 419.511 (1959), repealed by

Or Laws 1993, ch 33, § 373, provided broad authority for

the juvenile court to set an indefinite term of commitment,

limited only by the youth reaching 21 years of age. Or Laws

1959, ch 432, §§ 17, 19. The first substantive amendment rel-

evant to understanding maximum periods of commitment

was in 1971. The legislature amended the statute to pro-

vide that a youth’s indefinite term of commitment could not

exceed the statutory maximum sentence that an adult would

receive for the same conduct. Or Laws 1971, ch 571, § 1. In

making that determination, the legislature considered the

current practice of juvenile courts in addition to arguments

both for and against the bill, Senate Bill (SB) 138 (1971).

Tape Recording, Senate Committee on Judiciary, SB 138,

Mar 12, 1971, Tape 3, Side 2. According to testimony before

the Senate Judiciary Committee, some cases had resulted

in a youth being committed to incarceration from age 15 to

age 21, when an adult would have been sentenced to 60 days

in jail for the same conduct. Id. Proponents of the bill under-

stood the proposed connection to the statutory maximums

in adult sentences to apply to youth in Corrections Division

custody (now OYA), and not to other types of dispositions.

Id.; see generally Commentary to Criminal Law Revision

Commission Proposed Oregon Criminal Code, Final Draft

and Report §§ 74, 75 (July 1970) (stating the maximum

terms for indeterminate sentences under the revised crimi-

nal code). In keeping the mandatory indefinite term of com-

mitment, but providing an upper limit on that term of com-

mitment, proponents of the bill understood it to still provide

enough flexibility for the Corrections Division to release a

youth at the point in time that the youth was rehabilitated,

without committing a youth for months or years longer than

Cite as 371 Or 364 (2023) 379

an adult would serve for the same conduct. We could find no

discussion in the legislative history of SB 138 of consecutive

terms of commitment for subsequent offenses.

We understand the 1971 amendment to reflect the

legislature’s intent to prevent youths from being committed

to the Corrections Division for a longer period of time than

adults would serve for engaging in the same conduct. The

concerns driving opposition to the bill were that, in some

circumstances, it might be in a youth’s best interest to be

committed to OYA custody for a longer period of time than

would apply to an adult. Tape Recording, Senate Committee

on Judiciary, SB 138, Mar 12, 1971, Tape 3, Side 2. The text

of the law, as passed, indicates that the desire to achieve

“equal treatment” between youths and adults for the same

conduct carried the day.

Thus, the governing law beginning in 1971 was

that a disposition that placed a youth in the legal custody

of OYA (then, the Children’s Services Division and formerly

the Corrections Division) was required to be for an indef-

inite period not to exceed the maximum term of incarcer-

ation for an adult who engaged in the same conduct. The

legislative history of the 1971 version of the statute suggests

that the legislature understood the juvenile court’s disposi-

tional authority to be broad—it could impose any disposition

it determined was appropriate unless the legislature pro-

vided an express limitation.

In 1976, the Court of Appeals decided a case inter-

preting that statute, former ORS 419.511(1) (1971), and

answered a question similar to the one presented here. T.,

27 Or App at 409. In that case, the youth was adjudicated in

a single hearing for two counts of unrelated conduct that, if

committed by an adult, would have constituted theft in the

second degree. Id. The juvenile court’s disposition committed

the youth to the Children’s Services Division for placement

in the juvenile training school for a period not to exceed one

year for each count. Id. The counts were imposed to run con-

secutively. The Court of Appeals held, without explanation,

that imposing consecutive commitment periods for multiple

offenses was not improper. Id.

380 State v. B. Y.

Thus, prior to 1999, the juvenile code granted the

juvenile court the authority to impose an appropriate dis-

position, subject to an age limitation and a prohibition on

committing a youth to custody for a longer period of time

than an adult would be incarcerated for the same conduct.

That authority, as illustrated by T., was understood to

encompass the ability to impose consecutive periods of com-

mitment for multiple acts. The legislature made no amend-

ments to the statute to change that practice. Consequently,

from 1971 through 1999, controlling law was that the legis-

lature’s grant of broad authority to juvenile courts included

the authority to impose consecutive commitment periods. In

1999, the legislature again amended the statute, enacting

the text in its current form.

The 1999 legislature removed the text that tied

the statutory maximum for juvenile commitments to the

statutory maximum for adult criminal sentences. Or Laws

1999, ch 964, § 1. It replaced that text with a specific list of

durational limits per offense, which remain in the current

version of the statute. Id. The legislative history illustrates

that the impetus for the 1999 amendment was a pend-

ing Court of Appeals case. Exhibit B, House Committee

on Judiciary, HB 3047, May 4, 1999 (testimony of Oregon

Juvenile Department Directors’ Association Larry Oglesby).

The question in that pending case was whether the maxi-

mum period for a youth’s commitment was to be determined

by the statutory maximum for an adult, or by the actual

maximum time that an adult would serve under the sen-

tencing guidelines. Id. According to the proponents, the

purpose of the bill was to “make certain that the practice

that has been in place successfully for decades would con-

tinue,” so that a youth would not be released back into the

community “prematurely” based on calculations applicable

to adults under the sentencing guidelines. Id. In the House

of Representatives, the bill was described as a “technical

fix” to “make certain” that a youth can be “kept” in commit-

ment up to the statutory maximum for an adult, regardless

of the effects of the sentencing guidelines in adult cases.

Tape Recording, House of Representatives, HB 3047, May

19, 1999, Tape 139, Side B (comments of Rep Prozanski).

The bill was passed without further discussion. Id.

Cite as 371 Or 364 (2023) 381

It is therefore clear that the legislature’s intent in

1999 was to maintain the status quo regarding juvenile

courts’ authority to impose periods of commitment, in the

face of a pending appellate case that might have disrupted

that status quo. That status quo included the juvenile

court’s authority to impose consecutive periods of commit-

ment, as expressly allowed by the Court of Appeals’ 1976

decision in T. The 1999 amendment contains no text bear-

ing on that specific issue. And, nothing in the context or

legislative history suggests that the legislature intended to

disturb the juvenile court’s authority to impose consecutive

commitments in a single disposition, or to otherwise limit

the juvenile court’s authority to impose consecutive commit-

ments when subsequent offenses are involved, adding the

maximum term for the subsequent offense to the maximum

term for the earlier offense for purposes of determining the

new appropriate disposition.

The majority in the Court of Appeals concluded

otherwise. It similarly examined the prior versions and the

legislative history, but it concluded that this case presented

“an issue of ambiguous legislative intent.” 319 Or App at 216-

17. It explained that T.’s rationale was rooted in the inher-

ent authority of criminal courts. However, it concluded that

that authority had later been limited in the criminal con-

text by ORS 137.123 in 1987. Or Laws 1987, ch 2, § 12. ORS

137.123 provided, and still provides, that consecutive sen-

tences are authorized only in the circumstances provided by

that statute (e.g., where multiple offenses “do not arise from

the same continuous and uninterrupted course of conduct,”

ORS 137.123(2)). The majority then reasoned that, because

the enactment of ORS 137.123 “reflected an intent to impose

limitations on a court’s authority to impose consecutive

sentences in the adult context,” B.Y., 319 Or App at 216, an

underlying premise of T.’s rationale no longer existed. The

majority ultimately determined that the legislature’s intent

on the question presented here was “ambiguous.” Id. at 216.

Invoking a maxim of construction that asks what “result the

legislature would have most likely wanted had it thought

of the specific issue,” it concluded that the 1999 legislature

would not have intended for juvenile courts to have author-

ity to impose consecutive commitments. Id.

382 State v. B. Y.

We reach a different conclusion. As noted above,

the statutory text neither expressly permits nor expressly

prohibits the imposition of consecutive commitments. The

statutory scheme does, however, confer broad authority on

the juvenile court to fashion appropriate dispositions; that

stands in contrast to the criminal code, where courts’ sen-

tencing authority is more circumscribed. Given that con-

trast, the fact that the legislature did not explicitly provide

for consecutive commitments in a circumstance such as this

is unsurprising. In light of the wide latitude that the legisla-

ture has chosen to give juvenile courts, it is more reasonable

to expect that if the legislature had intended to limit the

juvenile court’s ability to impose consecutive commitments

in this circumstance, the legislature would have indicated

as much.

The legislature did impose limits on criminal

courts’ ability to impose consecutive sentences in adult

cases. Those limits were created in 1987, as noted above.

By then, it had been established law for 11 years, since the

Court of Appeals’ 1976 decision in T., that juvenile courts

could impose consecutive commitments. We presume that

the 1987 legislature was aware of that rule, yet it took no

action to extend the new restrictions it was creating in the

adult criminal context to the juvenile code. See Blachana,

LLC v. Bureau of Labor & Industries, 354 Or 676, 691, 318

P3d 735 (2014) (“We presume that the legislature was aware

of existing law[.]”).

More significantly, when the legislature next

amended the juvenile code in 1999, it did so without indicat-

ing any intent to limit the authority recognized in T. or have

any bearing on the authority to impose consecutive commit-

ments for subsequent dispositions. Rather, it reveals that

the legislature’s concern at that time was that youth com-

mitments should not be shortened based on a rationale that

the Court of Appeals was considering in a pending case.

We conclude from the text, context, and legislative

history that the legislature did not intend to prevent juve-

nile courts from imposing consecutive periods of commit-

ment in circumstances like those here, where a youth was

adjudicated for conduct that occurred while he was already

Cite as 371 Or 364 (2023) 383

in OYA custody. Although the text of ORS 419C.501 does not

expressly grant that authority, we are persuaded that this

interpretation is most consistent with the purpose and oper-

ation of the juvenile code, as expressed in statute and pre-

viously articulated by this court. See State ex rel. Juv. Dept.

v. Reynolds, 317 Or 560, 574, 857 P2d 842 (1993) (“Juvenile

courts are concerned with rehabilitation, not punishment.”).

The code was “founded on the principles of personal respon-

sibility, accountability and reformation within the context

of public safety.” ORS 419C.001. The discretionary authority

that we recognize in this case is not in furtherance of addi-

tional “punishment,” but rather in furtherance of ensuring

that the juvenile courts retain the authority that the leg-

islature intended them to have—discretionary authority to

determine the appropriate disposition based on the specific

circumstances and rehabilitative needs of the youth in each

case.

We also find youth’s arguments to the contrary

unavailing. Youth’s primary argument is that the juvenile

code is “sui generis”; therefore, if the legislature did not

expressly grant the juvenile court the authority to impose

consecutive commitments, the juvenile court does not

have that authority. Stating that a statutory scheme is sui

generis, or “of its own kind,” implies no specific legal conse-

quence. Here, it is a description of the statutory scheme that

conveys the idea that the juvenile delinquency code is nei-

ther purely civil nor purely criminal. See Reynolds, 317 Or

at 575 (explaining that the juvenile code changed the way

juveniles were treated and created a proceeding that is “sui

generis”). It does not follow that every aspect of a juvenile

court’s authority must be explicitly delineated in statute;

some specific powers can be reasonably inferred.

Because we conclude from the text, context, and

legislative history that the legislature’s intent is clear, we do

not address youth’s remaining arguments invoking substan-

tive maxims of statutory construction. Coos Waterkeeper v.

Port of Coos Bay, 363 Or 354, 371-72, 423 P3d 60 (2018).

The decision of the Court of Appeals is affirmed in

part and reversed in part. The judgment of the circuit court

is affirmed in part and reversed in part.