State v. Vanornum

614 December 27, 2013 No. 65

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

IAN GEORGE VANORNUM,

Petitioner on Review.

(CC 200818082A; CA A142341; SC S060715)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 4, 2013.

Neil F. Byl, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause for petitioner

on review. With him on the brief was Peter Gartlan, Chief

Defender.

Patrick M. Ebbett, Assistant Attorney General, Salem,

argued the cause for respondent on review. With him on the

brief were Mary H. Williams, Deputy Attorney General, and

Anna M. Joyce, Solicitor General.

Bridget Donegan, Larkins Vacura LLP, Portland, filed

a brief on behalf of amicus curiae Oregon Trial Lawyers

Association.

LINDER, J.

The decision of the Court of Appeals is reversed, and the

case is remanded to that court for further proceedings.

Landau, J., concurred and filed an opinion in which

Brewer, J., joined.

______________

*Appeal from Lane County Circuit Court, Jack A. Billings, Judge. 250 Or

App 693, 282 P3d 908 (2012).

Cite as 354 Or 614 (2013) 615

In an appeal from his conviction on a charge of resisting arrest, defendant

assigned error to (1) the trial court’s giving of Uniform Criminal Jury Instruction

(UCrJI) 1227, which defined “unreasonable physical force,” for purposes of defen-

dant’s theory of self-defense, in a way that was patently erroneous; and (2) the

trial court’s refusal to give a requested special jury instruction relevant to defen-

dant’s theory of self-defense. Defendant acknowledged having failed to preserve

the former assignment of error in the trial court, but he argued that the error

was apparent on the face of the record and urged the Court of Appeals to exer-

cise its discretion to consider it. The Court of Appeals refused to consider either

error, holding that it was precluded from doing so by ORCP 59 H, which states

that “a party may not obtain review on appeal” of an asserted error in giving or

failing to give an instruction unless the party objected in a specified manner.

The Court of Appeals explained that ORCP 59 H precluded its consideration of

defendant’s claim relating to UCrJI 1227 under a “plain error” theory, and also

precluded the court’s consideration of defendant’s other claim, because defendant

had not excepted to the trial court’s refusal to give the requested instruction with

the “particularity” that ORCP 59 H requires. Held: ORCP 59 H does not govern

preservation of instructional error for purposes of appellate court review or pre-

clude an appellate court from reviewing a claim of error pursuant to the court’s

traditional plain error doctrine; rather, the rule leaves the announcement and

development of preservation standards to the appellate courts.

The decision of the Court of Appeals is reversed and the case is remanded to

that court for further proceedings.

616 State v. Vanornum

LINDER, J.

Defendant appealed his conviction for resisting

arrest, ORS 162.315, raising, among other issues, two claims

that the trial court erred in instructing the jury. The Court

of Appeals concluded that it was barred from reviewing

those claims by ORCP 59 H, which states that “a party may

not obtain review on appeal” of an asserted error in giving

or failing to give an instruction unless the party objected

in a specified manner. We allowed defendant’s petition for

review to consider whether ORCP 59 H applies to and con-

trols appellate court review of claims of instructional error,

including claims of “plain error.” We hold that it does not.

We reverse and remand to the Court of Appeals for further

proceedings.

The relevant facts are primarily procedural. Police

arrested defendant for disorderly conduct during an anti-

pesticide demonstration. In the course of the arrest, defen-

dant struggled and failed to follow police officers’ instruc-

tions while they forcefully moved him across a street in an

“arm bar” hold, pushed him against a cement pillar and

then to the ground, and repeatedly tased him. Defendant

later was charged with resisting arrest, in addition to the

original disorderly conduct charge, and went to trial on both

charges. At trial, defendant raised a defense of self-defense

to the resisting arrest charge.

At the close of evidence, the trial court proposed a

set of jury instructions to the parties, including Uniform

Criminal Jury Instruction (UCrJI) 1227, which describes

when a person may use physical force for self-defense in

response to an officer’s use of unreasonable force in making

an arrest.1 The trial court asked defendant and the state

1

At the time, UCrJI 1227 stated:

“The defense of self-defense has been raised.

“A peace officer may use physical force on a person being arrested only

when and to the extent the officer reasonably believes it is necessary to make

an arrest. If a person being arrested physically opposes an arresting officer,

the officer may use reasonable force to overcome the opposition.

“If, however, the officer uses unreasonable physical force to arrest a per-

son who is offering no unlawful resistance, that person may use physical

force for self-defense from what the person reasonably believes to be the use

or imminent use of unlawful physical force by the officer. In defending, the

Cite as 354 Or 614 (2013) 617

if they had any objections to the proposed instructions.

Neither party objected to any of the trial court’s proposed

instructions, including UCrJI 1227. Defendant did, however,

request that the court give the following special instruction

defining “unreasonable physical force” for purposes of his

self-defense claim:

“When analyzing a claim of Self-Defense to the charge

of Resisting Arrest, the jury shall find that ‘unreasonable

physical force’ by the officer[s] making the arrest exists if

the defendant reasonably believed that the officers’ use of

force was disproportionate in the circumstances.

“If the jury finds that the defendant reasonably believed

that the officers’ use of force was disproportionate in the

circumstances, the jury must then decide whether the

defendant reasonably believed that his own use of force in

response was necessary in the circumstances.”

The trial court declined to give the requested

instruction, stating that the uniform jury instruction was

“sufficient.” The court gave the jury the set of instructions

that it had proposed, including UCrJI 1227. After the jury

was instructed, defendant formally excepted to the trial

court’s refusal to give his requested special instruction, but

he did not except (formally or otherwise) to the trial court

having given UCrJI 1227. The jury found defendant guilty

on both the disorderly conduct charge and the resisting

arrest charge, and defendant appealed.

Shortly after defendant initiated his appeal, this

court decided State v. Oliphant, 347 Or 175, 218 P3d 1281

(2009), which dealt with a number of uniform jury instruc-

tions, including UCrJI 1227, pertaining to the defense of

self-defense in the context of a prosecution for resisting

arrest. Oliphant held, among other things, that UCrJI

1227 was not a correct statement of an arrestee’s right of

self-defense. In particular, Oliphant faulted the instruction

person may only use that degree of force which he reasonably believes to be

necessary.

“The burden of proof is on the state to prove beyond a reasonable doubt

that this defense does not apply.”

UCrJI 1227 has since been revised consistently with this court’s decision in State

v. Oliphant, 347 Or 175, 218 P3d 1281 (2009). Throughout this opinion, when we

refer to UCrJI 1227, we mean the above-quoted version.

618 State v. Vanornum

because it focused on whether the police officer reasonably

believed that the degree of force he or she used was nec-

essary, when an arrestee’s right of self-defense depends

instead on whether the arrestee reasonably believes that

the officer is using an unlawful degree of force to make the

arrest. 347 Or at 193-94.

Relying on Oliphant, defendant in this case argued

on appeal that the trial court had erred in two ways: (1)

in refusing to give his requested special instruction (which

focused on whether defendant reasonably believed that

unlawful force was being used against him at the relevant

time); and (2) in giving the uniform instruction, UCrJI

1227. With regard to that second claim of error, defendant

acknowledged that he had not objected to the uniform

instruction. But he urged that, in light of Oliphant, giving

that instruction was “plain error,” and he asked the Court of

Appeals to exercise its discretion to correct that error. The

state argued against plain error review of the UCrJI 1227

claim and responded to defendant’s other claim of instruc-

tional error on the merits.2

Notably, the state did not raise ORCP 59 H as a

bar to appellate review of either of defendant’s claims. The

Court of Appeals raised that rule on its own initiative, not-

ing its independent duty to determine whether appellants

have adequately raised and preserved their present claims

before the trial court. State v. Vanornum, 250 Or App 693,

697, 282 P3d 908 (2012). The court began by observing that

ORCP 59 H(1) provides that a party “may not obtain review

on appeal of an asserted [instructional] error * * * unless the

party who seeks to appeal identified the asserted error to

the trial court.” Id. at 697. The court further observed that

ORCP 59 H, although otherwise a rule of civil procedure only,

applies to criminal actions as a result of ORS 136.330(2).3

Id. The Court of Appeals concluded that defendant’s claim

regarding UCrJI 1227 was not reviewable, even under the

2

Specifically, the state responded that defendant’s requested instruction was

an incorrect statement of the law and was not supported by the evidence.

3

ORS 136.330(2) provides: “ORCP 59 H applies to and regulates exceptions

in criminal actions.” The parties appear to agree that ORS 136.330(2) makes

ORCP 59 H applicable in criminal trials. They disagree as to whether it makes

ORCP 59 H applicable in the context of criminal appeals.

Cite as 354 Or 614 (2013) 619

plain error doctrine, because defendant had not raised the

claim at trial as ORCP 59 H(1) requires. Id. at 699. As to

defendant’s claim that the trial court had erred in refusing

to give his requested instruction on self-defense, the court

concluded that defendant had failed to identify the asserted

error to the trial court “with particularity,” as ORCP 59 H(2)

requires, thus precluding appellate review of that claim of

error as well. Id. at 698. Accordingly, the Court of Appeals

affirmed defendant’s conviction for resisting arrest without

reaching the merits of his claims.

Before this court, defendant argues that ORCP 59

H did not preclude the Court of Appeals from reviewing the

merits of his claims of instructional error. Defendant con-

tends that neither the Council on Court Procedures, which

drafted ORCP 59 H, nor the legislature, which enacted ORS

136.330(2) and, thus, made the rule applicable to “criminal

actions,” intended to dictate to appellate courts what claims

of error they may and may not review. Rather, in defendant’s

view, the rule was intended to describe to litigants and trial

courts what must be done to preserve instructional error for

review (or new trial motions). It follows, defendant argues,

that ORCP 59 H does not preclude plain error review and

does not bind appellate courts to any stricter preservation

standards than they otherwise would apply under their own

authority.4 Defendant concludes, finally, that, under the

preservation and plain error standards that this court has

developed, his claims of instructional error in this case are

reviewable.

As the parties recognize, the initial issue presented

by this case is one of interpretation—whether ORCP 59 H

dictates preservation standards for instructional error to

4

Defendant also suggests that, regardless of what ORCP 59 H means, any

effort by the Council on Court Procedures or the legislature to dictate preser-

vation requirements to appellate courts is ultra vires and without force. That

presents a potentially interesting issue, especially with respect to “plain error”

review. See, e.g., State v. Laundy, 103 Or 503, 510, 206 P 290 (1922) (on rehear-

ing) (by rule, court “reserves the right” to review plain error in furtherance of

justice; court retains such authority at least in absence of “an express statute

prohibiting it” from reviewing plain errors). And for reasons that the concurrence

points out, the council’s (as opposed to the legislature’s) authority to interfere

with plain error review would be particularly problematic. See generally 354 Or

at ___ (Landau, J., concurring). Because we agree with defendant’s interpreta-

tion of the rule, however, we need not consider defendant’s ultra vires argument.

620 State v. Vanornum

appellate courts, or instead, instructs litigants and trial

courts on the procedure in the trial court for ensuring pres-

ervation of such claims. Because ORCP 59 H was promul-

gated by the Council on Court Procedures and accepted by

the legislature without amendment, the intent of the council

governs the interpretation of the rule.5 A. G. v. Guitron, 351

Or 465, 479, 268 P3d 589 (2011); Waddill v. Anchor Hocking,

Inc., 330 Or 376, 382 n 2, 8 P3d 200 (2000), adh’d to on recons,

331 Or 595, 18 P3d 1096 (2001). To discern that intent, we

use an analytical process that parallels the one we use to

interpret statutes—that is, we examine text, context, and,

if helpful, legislative history. Guitron, 351 Or at 479.

ORCP 59 H is part of a rule that deals with instruc-

tions to and deliberations by juries. As relevant here, it

provides:

“(1)  *  * A party may not obtain review on appeal of

*

an asserted error by a trial court in submitting or refus-

ing to submit a statement of issues to a jury pursuant to

subsection C (2) of this rule or in giving or refusing to

give an instruction to a jury unless the party who seeks to

appeal identified the asserted error to the trial court and

made a notation of exception immediately after the court

instructed the jury.

“(2)  *  * A party shall state with particularity any

*

point of exception to the trial judge. A party shall make

a notation of exception either orally on the record or in a

writing filed with the court.”

The initial question that this case raises—whether ORCP 59

H controls appellate court review of claims of instructional

error—arises because subsection (1) declares that “a party

may not obtain review on appeal” of a trial court’s asserted

error in giving or refusing to give a jury instruction unless

the party identified the asserted error to the trial court and

made a timely notation of exception.

The state contends that the phrase “a party may

not obtain review on appeal” can be read to mean only one

5

Under ORS 1.735(1), all rules of civil procedure and amendments adopted

by the council must be submitted to the Legislative Assembly “at the beginning

of each odd-numbered year regular session and shall go into effect on January 1

following the close of that session * * *. The Legislative Assembly may, by statute,

amend, repeal or supplement any of the rules.”

Cite as 354 Or 614 (2013) 621

thing—that an appellate court is barred from reviewing an

instructional error if a party, at trial, did not identify and

take exception to the error as the rule requires. Defendant,

urges, however that the wording is susceptible to an alter-

native meaning. According to defendant, because the oper-

ative words are directed at trial litigants (“a party”) and

not at the appellate courts, the rule can plausibly be under-

stood to identify a procedure for objecting in the trial court

to instructional error and to warn litigants that they “may

not obtain review” of the error if they fail to follow that pro-

cedure. Under that reading of the rule, it remains for the

appellate courts to decide what is required to preserve a

claim of instructional error for review.

Considering only the words of the rule itself, the

state’s reading seems the most natural one. But when the

rule is read in context, rather than in isolation, defendant’s

reading takes on more force. Of particular importance is

ORS 1.735(1), which generally directs the Council on Court

Procedures to promulgate the rules governing “pleading,

practice and procedure *  * in all civil proceedings in all

*

courts of the state,” i.e., the Oregon Rules of Civil Procedure.

The statute makes clear that the “courts of the state” to

which it refers are trial courts, not appellate courts. It does

so by explicitly declaring that “[t]he rules authorized by this

section do not include *  * rules of appellate procedure.” Id.

*

(emphases added).

Along similar lines, ORCP 1 A, the first rule in the

Oregon Rules of Civil Procedure, states:

“These rules govern procedure and practice in all circuit

courts of this state, except in the small claims department

of the circuit courts, for all civil actions and special pro-

ceedings *  *. These rules shall also govern practice and

*

procedure in all civil actions and special proceedings *  * *

for all other courts of this state to the extent they are made

applicable to such courts by rule or statute.”

(Emphases added.) By their express terms, ORS 1.735(1) and

ORCP 1 A reflect the legislature’s and the council’s intent

that, in general, an Oregon Rule of Civil Procedure will not

govern procedure in appellate courts unless, as set forth in

ORCP 1 A, a statute or rule specifically declares that the

622 State v. Vanornum

rule applies to those courts. See, e.g., McCarthy v. Oregon

Freeze Dry, Inc., 327 Or 84, 89-90, 957 P2d 1200 (1998) (in

light of ORS 1.735, attorney fee provisions of ORCP 68, “can-

not be read plausibly to govern a claim for attorney fees in

an appellate court”); Lincoln Loan Co. v. City of Portland,

335 Or 105, 110-11, 59 P3d 521 (2002) (in light of ORS 1.735

and ORCP 1, term “judgment” in ORCP 71 B refers to cir-

cuit court judgments only, not appellate judgments).

The state argues, however, that ORCP 59 H is such

a rule—i.e., one specifically “made applicable” to appellate

courts “by rule or statute”—and thus is an exception to the

rules’ usual narrow scope of application. In that regard, the

state first relies on the fact that ORCP 59 H itself refers to

proceedings on appeal by providing that a party who fails

to except to an instruction in the required manner “may not

obtain review on appeal.” As we have explained, however,

that portion of the rule expressly refers to parties and what

they may expect, rather than to courts and what they may

or may not do. Because of that wording choice, the rule can

be understood in more than one way. The text of the rule

alone does not resolve whether ORCP 59 H is directed to

trial proceedings only or whether it also controls appellate

court review of claims of instructional error.

The state also points to ORS 136.330(2), which

provides that “ORCP 59 H applies to and regulates excep-

tions in criminal actions.” The state urges that, because

ORS 136.330(2) makes ORCP 59 H applicable to “criminal

actions,” and because the legislature at times uses the term

“criminal action” in a way that subsumes appellate as well

as trial court proceedings, ORS 136.330(2) is a statute by

which ORCP 59 H is “made applicable” to appellate courts

within the meaning of ORCP 1 A.

ORCP 1 A, however, is more exacting in what it

requires. Textually, it distinguishes between the courts in

which the rules apply (“circuit courts,” “other courts to the

extent they are made applicable * * * by rule or statute”) and

the types of cases in which the rules apply (“civil actions and

special proceedings”). ORCP 1 A thus requires more than

a generic reference to “criminal actions” to make an ORCP

applicable to appellate courts. Instead, it requires a rule or

Cite as 354 Or 614 (2013) 623

statute to expressly make a particular ORCP applicable to

the appellate courts. ORS 136.330(2) does not do that.

We therefore conclude that ORS 1.735(1) and ORCP

1 A provide general contextual support for defendant’s view

that ORCP 59 H does not impose requirements that con-

trol whether or when a claim of instructional error is pre-

served for appellate review. We further conclude that ORS

136.330(2) does not point in the opposite direction. We,

therefore, turn to legislative history to see if it provides

additional or different insight into the meaning of ORCP 59

H or, for that matter, the meaning of ORS 136.330(2).6

Because ORCP 59 H became effective without leg-

islative amendment, the relevant legislative history is that

of the rule’s promulgation by the council. Guitron, 351 Or at

479-83. In particular, we look to the meeting minutes, com-

mittee reports, drafts, and commentary collected and pub-

lished by the council in Legislative History Relating to the

Promulgation of the Oregon Rules of Civil Procedure (1979)

and similar publications. See Guitron, 351 Or at 480 n 13

(identifying sources of relevant history).

The original version of ORCP 59 H that the coun-

cil promulgated in 1978 differed from the current version

primarily in that its requirements of pointing out a claim

of instructional error to the trial court and noting an excep-

tion after the jury has been instructed applied only to the

instructions that the trial court gave, not to those that the

trial court refused to give. See Beall Transport Equipment

Co. v. Southern Pacific, 335 Or 130, 139-41, 60 P3d 530

6

The parties also cite prior case law as context for us to consider. See, e.g.,

State v. Toevs, 327 Or 525, 532, 964 P2d 1007 (1998) (in interpreting statute,

court examines text and context, including court’s prior interpretations of the

same statute or earlier versions of that statute). We have reviewed those cases

and conclude that they shed no contextual light on whether ORCP 59 H controls

preservation for purposes of appellate review. Cases citing statutory predecessors

to ORCP 59 H are not necessarily helpful, because they were not rules adopted by

the council with the accompanying context of ORS 1.735(1) and ORCP 1 A which

limit the council’s authority generally to adopting rules for trial courts. Likewise,

cases citing ORCP 59 H itself are not helpful because, by definition, they post-

date the rule’s promulgation and would not have informed the council’s under-

standing of the rule. In all events, the issue raised in this case—whether ORCP

59 H governs when appellate courts can review claims of instructional error—

was not raised in those cases, and this court has not before directly addressed

and authoritatively resolved it.

624 State v. Vanornum

(2002) (discussing original rule; observing that neither it

nor court’s preservation jurisprudence required exception to

trial court’s refusal to give instruction). In much the same

wording of former ORS 17.510 (1979) and former ORS 17.515

(1979), which it replaced, ORCP 59 H provided:

“No statement of issues submitted to the jury pursuant

to subsection C (2) of this rule and no instruction given to a

jury shall be subject to review upon appeal unless its error,

if any, was pointed out to the judge who gave it and unless

a notation of an exception is made immediately after the

court instructs the jury. Any point of an exception shall be

particularly stated and taken down by the reporter or deliv-

ered in writing to the judge. It shall be unnecessary to note

an exception in court to any other ruling made. All adverse

rulings, including failure to give a requested instruction,

or a requested statement of issues, except those contained

in instructions and statements of issues given, shall import

an exception in favor of the party against whom the ruling

was made.”

That wording was proposed to the council in October

1978 by Professor Fred Merrill, the council’s Executive

Director at the time. After setting out the proposed wording,

Professor Merrill explained that he had reviewed the case

law bearing on the requirements of the statutes from which

the wording had been borrowed and had determined that it

provided inconsistent guidance as to whether a request to

give an instruction preserved a claim that the trial court

erred in giving a different instruction on the same point.

Professor Merrill explained:

“I did not change the rule draft to try to deal with the

cases. I cannot figure out exactly what the applicable rule

is supposed to be. Also, the cases cited *  * are related to

*

appellate procedure. The exception rule is apparently put

in our rules because it specifies what should be done as part

of trial procedure and the taking of an exception might pre-

serve a right of new trial. We cannot, however, control what

the appellate court will consider as error.”

Memorandum, Council on Court Procedures, Oct 30, 1978,

11. Later, when the council retained the same wording

in its final draft of ORCP 59 H, it included the following

commentary, which expressly notes that the rule is directed

Cite as 354 Or 614 (2013) 625

to procedures in trial courts and does not bind appellate

courts:

“Section 59 H is based on ORS 17.510 and 17.515(1)

and (2). The section is included as it does describe conduct

in the trial court. It also provides a basis for new trial in

ORCP 64 B(7). The Council cannot make rules of appellate

procedure and the question of preserving error on appeal is

one determined by appellate courts.”

Comment, Final Draft, Proposed Oregon Rules of Civil

Procedure, Nov 24, 1978, 179-80.

The council presented the Proposed Oregon Rules

of Civil Procedure, including ORCP 59 H, to the legislature

in 1979. Suggested amendments to the proposed rules were

submitted to the legislature in House Bill (HB) 3131 (1979).

No amendments to ORCP 59 H were proposed in HB 3131.

The bill did, however, contain a proposal to amend ORS

136.330(2) to refer to ORCP 59 H rather than to its stat-

utory predecessors. Specifically, it proposed to amend that

statute to provide: “ORCP 59 H applies to and regulates

exceptions in criminal actions.”7

During the legislature’s consideration of HB 3131,

members of the council repeatedly described to the leg-

islature the limited application of the rules generally and

of ORCP 59 H in particular. For example, the Chair of the

Council, Donald McEwan, explained to the Joint Committee

on the Judiciary that “the council has no jurisdiction to pro-

mulgate *  * rules of appellate procedure.” Minutes, Joint

*

House-Senate Committee on the Judiciary, Feb 6, 1979, 1.

Professor Merrill similarly explained to the committee that

“the only state courts the Council can make rules for are

state trial courts.” Minutes, Joint House-Senate Committee

on the Judiciary, Feb 15, 1979, 2.

The council submitted a summary of the proposed

rules to the joint committee, which described ORCP 59 H in

the following terms:

“Section 59 H is a simplified redraft of the material con-

tained in ORS 17.505 through 17.515. An exception is the

7

The version of the statute that HB 3131 amended had provided: “ORS 17.505

to 17.515 apply to and regulate exceptions in criminal actions.” ORS 136.330(2)

(1977).

626 State v. Vanornum

procedure for objecting to the content of instructions; gen-

erally the exception should be made promptly and clearly

to give the trial judge an opportunity to correct erroneous

instructions and avoid appeals. * * * The appealability of an

improper instruction given without objection, after a cor-

rect instruction is requested, is not clear in Oregon. This

rule cannot control appellate procedure, but attempts to

clarify the exception procedure which takes place in the

trial court and relates to availability of new trial under

Rule 64 B(7).”

Exhibit 22, Summary of Rules 50-64, Joint House-Senate

Committee on the Judiciary, Mar 15, 1979, p 5. Professor

Merrill emphasized the same point—that ORCP 59 H would

not bind the appellate courts—in his testimony to the joint

committee:

“The overlay on [ORCP 59 H] is that the Council on

Court Procedures does not make rules of appellate proce-

dure and can’t tell the * * * Supreme Court under what cir-

cumstances and what can be the basis of appealable error.

“* * * * *

“This rule is in here because we * * * have to specify the

procedure to be followed in the trial court. And also the

question of raising an exception bears upon the availability

of a new trial under Rule 64, so it has to be covered in our

rules.”

Tape Recording, Joint House-Senate Committee on the

Judiciary, Mar 15, 1979, Tape 22, Side 2.

Legislative history is rarely so on point and rarely

so unequivocal. When the council adopted ORCP 59 H, it

understood and intended that the rule would specify the

procedure for objecting to instructional error in trial courts,

and that the rule’s admonition that an appellant “may not

obtain review on appeal” in the absence of a proper excep-

tion did not and could not control the authority of appellate

courts with respect to preservation. That understanding

was placed before the legislature at the same time that the

legislature amended ORS 136.330(2) to make ORCP 59 H

applicable to “criminal actions.” The history thus implicitly

refutes the suggestion that, in enacting ORS 136.330(2), the

legislature intended ORCP 59 H to control appellate court

review in criminal appeals.

Cite as 354 Or 614 (2013) 627

The state nevertheless contends that the views

expressed in the material quoted above are unpersuasive

because “those who subsequently amended ORCP 59 H rec-

ognized that it applies to and governs the scope of appel-

late review.” The state refers to the fact that the rule was

amended in 2004, primarily in response to concerns raised

by one council member—then Oregon Supreme Court Justice

Robert Durham. Justice Durham was concerned with the

original rule’s statement that “failure to give a requested

instruction *  * shall import an exception in favor of the

*

party against whom the ruling was made.” He, therefore,

suggested that the rule be amended to remove that state-

ment and add a requirement that a party assigning error to

a refusal to give a requested instruction first have apprised

the trial court of the reasoning and authority supporting the

requested instruction. Justice Durham expressed those con-

cerns to the council in a letter to the council’s chair, Kathryn

Clarke. In the letter, Justice Durham acknowledged that the

concept of an automatically implied exception that he found

objectionable might be read as

“pertain[ing] only to the conduct of the parties in the trial

court, and does not alter the obligation of a party on appeal

to demonstrate proper preservation, including a suitable

explanation of the asserted error to the trial court, of a rul-

ing assigned as error on appeal.

“[But t]he problem with th[at] construction is that,

despite its facial appeal (because it would require no rule

amendment), it does not account for the reference to the

bar to appellate review that appears in the first sentence of

ORCP 59 H.”

Letter, Justice Robert D. Durham to Council Chair Kathryn

H. Clarke, Council on Court Procedures, Oct 15, 2003, 3.

The state makes no claim that the 2004 amend-

ments to ORCP 59 H reflected a change in the council’s

understanding of the rule’s effect in the appellate context.8

8

Indeed, the actual changes that the council made to the rule would not

support such a claim. Although the 2004 amendment significantly modified the

wording of the entire rule, the only apparent substantive change was to extend

the rule to requested instructions that a trial court refused to give. In other

words, as amended, the rule was changed so that a party had to identify the error

and note an exception to the trial court’s refusal to give a requested instruction

628 State v. Vanornum

Rather, the state appears to offer the history of those amend-

ments to show only that one council member agreed with

the state’s view of the plain meaning of the text of ORCP

59 H. The state’s point is a particularly limited one. It is

not that the 2004 legislative history is dispositive. It is only

that, “given the plain text of the rule, the comments of early

drafters [that support defendant’s interpretation of ORCP

59 H] can be given no weight.”

But, as we have already discussed, the “plain text”

of ORCP 59 H is not so plain. It is, in fact, susceptible to the

interpretation that defendant urges (and that, to all appear-

ances, the original drafters of the rule intended)—viz., that

the rule’s requirements for preserving instructional error

are directed to trial litigants and trial courts and do not

bind appellate courts or control what they may or may not

review. The fact that Justice Durham may have expressed

some disagreement with that understanding when ORCP 59

H was amended in 2004 does not persuade us that it is incor-

rect. Nor does it persuade us that we should disregard or

otherwise give no weight to the history of the promulgation

of the original rule. That history is illuminating and shows

that, in promulgating ORCP 59 H, the council understood

and intended that the rule would not control appellate court

review and that the legislature did not alter that intended

meaning when it expanded the rule’s scope of application to

include “criminal actions.”

The text of ORCP 59 H, its relevant context, and

its history all lead us to conclude that that rule was not

intended to govern preservation of instructional error for

purposes of appellate court review or to preclude appellate

courts from reaching plain errors. Instead, in promulgating

ORCP 59 H, the council left the announcement and develop-

ment of those rules to the appellate courts. When the legis-

lature simultaneously amended ORS 136.330(2) to extend

ORCP 59 H to criminal cases generally, it did so without

any understanding that the rule would apply differently to

those cases. As a result, ORCP 59 H, as cross-referenced

with particularity, just as the party must do to preserve the error in the instruc-

tions that the trial court opts to give. With respect to whether the rule applies to

or controls review by appellate courts, the wording of the 2004 amendment was

as obscure as the wording it replaced.

Cite as 354 Or 614 (2013) 629

in that statute, has no broader scope or different meaning

than the rule standing alone. Necessarily, then, in crimi-

nal cases as well as civil ones, ORCP 59 H does not govern

preservation of instructional error or preclude an appellate

court from reviewing a claim of error pursuant to the court’s

traditional plain error doctrine.

With that conclusion in place, we turn to defendant’s

two claims of instructional error in this case. The first is

defendant’s claim that the trial court committed plain error

by giving UCrJI 1227, which this court in Oliphant deter-

mined was not a correct statement of the law. In the Court

of Appeals, defendant asked the court to exercise its dis-

cretion to review the error as “plain error” in accordance

with ORAP 5.45(1) and the plain error doctrine. The Court

of Appeals declined to do so, reasoning that, under ORCP

59 H(1), it could not. As we have determined, however, that

reasoning was incorrect.

The state argues, however, that, even if ORCP 59 H

does not bar appellate court plain error review, such plain

error review is not available in this instance because the

claimed error does not qualify as “plain.” For an error to

be plain error, it must be an error of law, obvious and not

reasonably in dispute, and apparent on the record with-

out requiring the court to choose among competing infer-

ences. See, e.g., State v. Ramirez, 343 Or 505, 511-12, 173

P3d 817 (2007), amended on recons, 344 Or 195, 179 P3d 673

(2008) (stating requirements for plain error review); State v.

Gornick, 340 Or 160, 166, 130 P3d 780 (2006) (same); Ailes v.

Portland Meadows, 312 Or 376, 381-82, 823 P2d 956 (1991)

(same). The parties appear to agree that the claimed error

in instructing the jury in accordance with UCrJI 1227 is one

of law that appears on the record. They disagree, however,

whether the claimed error was obvious and not reasonably

in dispute.

Defendant relies on this court’s holding in Oliphant,

that UCrJI 1227 “impermissibly shifts the focus of the

jury’s deliberations on a defendant’s self-defense claim from

what the defendant reasonably believes to what the officer

believes.” 347 Or at 198. According to defendant, giving

the instruction is error in any case where self-defense to

630 State v. Vanornum

resisting arrest is raised. The state responds by pointing

out that the trial court in Oliphant had given the jury sev-

eral instructions in addition to UCrJI 1227 that focused on

the police officer’s beliefs. See id. at 186-87 (quoting instruc-

tions). The state suggests that, because the instructions in

this case did not involve that sort of repetition and did not

involve the other instructional errors that Oliphant involved,

giving UCrJI 1227 in this case was not error. The other

instructions given in Oliphant, however, played no part in

our assessment of UCrJI 1227. Rather, because of the possi-

bility that the instruction might have been given again on

retrial in Oliphant, we took the extra step of pointing out

that UCrJI 1227 is “incorrect and should not be included in

the instructions to the jury during the trial on remand.” Id.

at 198. That portion of our decision in Oliphant is dispositive

here. In this case, the content of other instructions given

or not given may bear on whether giving UCrJI 1227 was

prejudicial. But the fact that the instruction is an incorrect

statement of the law, and thus was error to give under our

decision in Oliphant, is beyond reasonable dispute.9

Determining that a claimed error was error is only

half of a two-part inquiry, however. The second step is for

the reviewing court to determine whether to exercise its

discretion to review the error. Ailes, 312 Or at 382. That

discretion entails making a prudential call that takes into

account an array of considerations, such as the competing

interests of the parties, the nature of the case, the gravity of

the error, and the ends of justice in the particular case. See

id. at 382 n 6 (listing considerations for appellate courts to

consider). Ultimately, a decision to review a plain error is one

to be made with the “utmost caution” because such review

9

In concluding that the instruction was error to give under Oliphant, we

limit our consideration to the issue that the parties have disputed—whether

Oliphant disapproved of the instruction generally or only in the context of the

instructions given in that case. Because Oliphant was this court’s decision, we

are in a better position to resolve that issue than would be the Court of Appeals.

The state has not argued that, in determining whether the error was obvious and

beyond reasonable dispute, a reviewing court should consider the law as of the

time the trial court made its decision, as opposed to as of the time that the case is

on direct appeal. The Court of Appeals has concluded that plain error should be

determined by reference to the law existing as of the time of the appeal. State v.

Jury, 185 Or App 132, 138-39, 57 P3d 970 (2002), rev den 335 Or 504 (2003). This

court has not previously taken up that question, and has not been asked to do so

in this case.

Cite as 354 Or 614 (2013) 631

undercuts the policies served by the preservation doctrine.

Id. at 382. Although this court could undertake that discre-

tionary assessment, the Court of Appeals is the error-correct-

ing tribunal to which claims of error and plain error may be

presented as a matter of right. The nature of discretion is

that it is best exercised by the entity principally charged with

its exercise. In this instance, that is the Court of Appeals.

We, therefore, conclude that the appropriate disposition is

to remand to the Court of Appeals to exercise its discretion

whether to consider defendant’s claim of plain error.

Defendant’s remaining claim of error is that the

trial court incorrectly refused to give his requested instruc-

tion on the meaning of “unreasonable physical force.” As we

have described, the Court of Appeals declined to consider

that claim because it concluded that defendant had not pre-

served his objection to the failure to give the instruction with

the “particularity” required by ORCP 59 H(2). As we have

determined, however, ORCP 59 H does not set the standard

by which the appellate courts will determine if a claim of

instructional error is preserved. Instead, preservation must

be determined by this court’s preservation jurisprudence.10

Because we already have determined that we should

remand this case to the Court of Appeals on defendant’s

request for plain error review, it is appropriate to remand

on defendant’s remaining claim of error as well. Depending

on whether the Court of Appeals exercises its discretion to

reach defendant’s claim of plain error, and depending on

any disposition that might flow from that decision, the court

may determine that it need not reach that claim.

If the Court of Appeals does reach the claim, the

issue will be a fact-bound one appropriate for the Court of

Appeals’ resolution in the first instance. There is no dispute

in this case about the core preservation principles that apply

under our case law or the policies they serve. See, e.g., Davis

v. O’Brien, 320 Or 729, 737, 891 P2d 1307 (1995) (discussing

10

There is some suggestion in the legislative history of ORCP 59 H(2) that

the Council of Court Procedures intended the particularity requirement to reflect

this court’s preservation case law. Whether or not that was the council’s intent,

the result is the same: Decisions in appellate courts regarding whether a claim

of instructional error has been preserved for review are controlled by this court’s

preservation jurisprudence.

632 State v. Vanornum

policies); Jett v. Ford Motor Co., 335 Or 493, 502-03, 72 P3d

71 (2003) (same). Those policies ensure that trial courts

have an opportunity to understand and correct their own

possible errors and that the parties are not “taken by sur-

prise, misled, or denied opportunities to meet an argument.”

State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011) (quot-

ing Davis, 320 Or at 737); see also State ex rel Juv. Dept. v.

S. P., 346 Or 592, 604, 215 P3d 847 (2009) (describing same

policies). Although the preservation requirement “is not

something that can be explained by a neat verbal formula,”

Walker, 350 Or at 550, the essential goal is straightforward:

“[A] party must provide the trial court with an explanation

of his or her objection that is specific enough to ensure that

the court can identify its alleged error with enough clarity

to permit it to consider and correct the error immediately.”

State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000). On remand,

if the Court of Appeals reaches this claim of error, it should

resolve the preservation issue based on the principles

announced in our case law, not based on ORCP 59 H(1). 11

The decision of the Court of Appeals is reversed, and

the case is remanded to that court for further proceedings.

LANDAU, J., concurring.

I agree with the court’s opinion in its entirety. I

write separately to address an issue that the parties did not

raise, but that nevertheless made a difference in the outcome

11

In its opinion, the Court of Appeals noted that the particularity require-

ment of ORCP 59 H(2) is “congruent with the more general directive” in Wyatt,

331 Or at 343, that objections be stated with enough specificity to allow the trial

court to “consider an correct the error immediately.” Vanornun, 250 Or App at

698. The court’s analysis, however, focused on whether defendant’s argument to

the trial court met the “particularity” requirement of ORCP 59 H(2) and the

requirement in ORCP 59 H(1) that the appellant “identif[y] the asserted error.”

Id. at 698-99. ORCP 59 H(1) applies to an objection to a refusal to give an instruc-

tion as well as to an instruction given, without distinguishing between them.

In practice, however, there is often an important difference. For example, the

terms of a requested, but refused, instruction may sometimes go a long way to

putting a trial court on notice of the deficiency in the trial court’s instructions if

the requested instruction is not given. See , e.g., Roberts v. Mitchell Bros., 289 Or

119, 127-31, 611 P2d 297 (1980) (party adequately preserved error by request-

ing instruction consistent with party’s legal theory; in circumstances presented,

party did not also have to take issue with instruction that trial court gave to

sufficiently apprise court of error). All in all, because of our uncertainty about

whether the Court of Appeals will reach this claim of error, or how differently

it might assess the claim without reference to ORCP 59 H, we conclude that a

remand is appropriate.

Cite as 354 Or 614 (2013) 633

of this case and could well make a difference in future cases.

That issue concerns the nature of the Oregon Rules of Civil

Procedure—specifically, whether they are statutes.

In brief, some are statutes, and some are not. It

depends on whether they were affirmatively enacted into law

by the legislature. ORS 1.735(1) provides that the Council on

Court Procedures is authorized to promulgate rules of trial

procedure and that any such rules must be “submitted to

the Legislative Assembly” at the beginning of each session

in odd-numbered years. Id. The legislature then “may, by

statute, amend, repeal or supplement any of the rules.” Id. If

the legislature chooses not to amend, repeal, or supplement

the rules that the council submits, those rules simply “go

into effect” on January 1 following the end of the legislative

session. Id. When they “go into effect,” however, they do so as

rules, not as statutes.

That is because the council itself lacks authority to

enact statutes. The state constitution prohibits the prospec-

tive delegation of the authority to enact statutes to another

body. Seale et al v. McKennon, 215 Or 562, 575-73, 336 P2d

340 (1959) (legislature may not prospectively adopt federal

laws and regulations that do not yet exist); Van Winkle v. Fred

Meyer, Inc., 151 Or 455, 461-62, 49 P2d 1140 (1935) (because

the power to legislate “is vested exclusively in the legislative

assembly,” the legislature “cannot confer upon any person,

officer, agency, or tribunal the power to determine what the

law shall be”).1 Instead, the constitution vests the legislative

power in the legislative branch, subject only to the powers

of the initiative and referendum. Id. The constitution fur-

ther provides that, when the legislature does create stat-

utes, it must do so by affirmative act—specifically, major-

ity approval by both houses of the Legislative Assembly, Or

Const, Art IV, § 25 (“a majority of all the members elected

to each House shall be necessary to pass every bill”; bills

to raise revenue require three-fifths majority), and present-

ment to the governor for signature, Art V, § 15b(1) (“Every

bill which shall have passed the Legislative Assembly shall,

before it becomes a law, be presented to the Governor[.]”).

1

And, even assuming the legislature could delegate lawmaking authority

to some other body, it would be odd, indeed, if that body were to include—as the

Council on Court Procedures does by statute—members of the judicial branch.

634 State v. Vanornum

Thus, if the legislature takes no action on rules

adopted by the Council, that inaction does not mean that

the rules go into effect as statutes. The notion that the legis-

lature can create statutory law by doing nothing is a consti-

tutional impossibility. That does not mean that the Oregon

Rules of Civil Procedure lack force. They have the force of

rules promulgated by an entity authorized by the legislature

to create them. But they are not statutes, unless they were

affirmatively approved or amended by the legislature.

The distinction matters. To the extent that any rule

conflicts with a statute enacted by the legislature, the rule

is invalid. See, e.g., Garrison v. Dept. of Rev., 345 Or 544,

548, 200 P3d 126 (2008) (“We agree that a judicial or agency

rule that conflicts with a statute is invalid[.]”).

Take this case, for example. The statute creating

the council and authorizing it to adopt rules expressly limits

the authority of the council to adopting rules of trial—and

not appellate—procedure. ORS 1.735(1) (“The rules autho-

rized by this section do not include *  * rules of appellate

*

procedure.”). ORCP 59 H, however, provides that, “[a] party

may not obtain appellate review of an asserted error by a

trial court” unless specified preservation requirements have

been met. To the extent that the rule was adopted to pre-

clude appellate review without following specified rules of

preservation, then, the rule would be invalid as inconsistent

with the statutory authority of the council. And, in fact, that

is one of the reasons that we chose in this case to give the

rule a different construction.

A different result might have obtained, however,

had ORCP 59 H been enacted by the legislature as a stat-

ute. In that case, the fact that the rule might otherwise

exceed the authority of the council would become irrelevant,

because the rule would have been adopted by the legisla-

ture. Any inconsistency between a legislatively adopted part

of the rules and another statute would raise a question of

legislative intent, resolved by application of garden-variety

rules that pertain to conflicting statutes. See, e.g., Powers v.

Quigley, 345 Or 432, 438, 198 P3d 919 (2008) (identifying

basic rules that govern the resolution of conflicts between

statutes).

Cite as 354 Or 614 (2013) 635

In point of fact, some of the Oregon Rules of Civil

Procedure have been added or amended by statute. Those

enactments are statutes. The rest, though, are not. What

that means is that the Oregon Rules of Civil Procedure

have become a bit of a hodgepodge, some rules having been

adopted only by the Council and others having been adopted

or amended by the legislature.

But that creates further problems. What happens

when the legislature amends a rule, and the council later

purports to change the rule as legislatively amended? That

has actually occurred more than once. ORCP 18, for exam-

ple, was originally adopted by the council and allowed to

go into effect by legislative inaction in 1978. It was then

amended by the legislature in 1987 to add ORCP 18 B. Or

Laws 1987, ch 774, § 12a. Three years later, though, the coun-

cil voted to “eliminate” ORCP 18 B, and the legislature took

no action. Similarly, ORCP 55 was adopted by the council

and allowed to go into effect without legislative amendment

in 1978. Then, in 1995, the legislature amended the rule

by adding ORCP 55 I. Or Laws 1995, ch 694 § 1. But after

that, in 1998, the council voted to amend ORCP 55 I. And, in

2002, it voted to “delete” the rule in its entirety. I wonder by

what authority the council purports to amend—much less to

“eliminate” or “delete”—a statute. Certainly the legislature

itself, or the people exercising their initiative power, may

amend or repeal a statute. Caruthers v. Myers, 344 Or 596,

602, 189 P3d 1 (2008). But I am aware of no authority for

the proposition that a legislatively created agency, commis-

sion, or council can do so. See Garrison, 345 Or at 549 (“[A]

rule created within a statutory scheme cannot amend, alter,

enlarge upon, or limit statutory wording.”). That would

seem to suggest that the council’s purported amendments of

legislatively adopted rules have no lawful effect.2

I raise this issue for three reasons. First, we need to

be more careful about how our own opinions characterize the

2

I have not attempted an exhaustive catalog of other rules that have been

amended by both the legislature and the council, in that order. But a cursory

review of the rules suggests that ORCP 21 A, 32 F, 36 B, 43 A, 54 A, 57 C, and

ORCP 69 A and B are among them. In some cases, the legislature and the council

amended different portions of the same rule, which makes determining which

part of a given rule is statutory and which is not even more of a problem.

636 State v. Vanornum

Oregon Rules of Civil Procedure. Oregon courts have not been

consistent in their characterization of the rules, often refer-

ring to them generally as “statutes.” See, e.g., Rodriguez v. The

Holland, Inc., 328 Or 440, 445, 980 P2d 672 (1999) (“[T]he

Oregon Rules of Civil Procedure provide statutory context

for construing ORS 20.080[.]”); Stupek v. Wyle Laboratories

Corp., 327 Or 433, 442, 963 P2d 678 (1998) (“ORS 174.120

applies to civil procedure statutes other than the Oregon

Rules of Civil Procedure.”); Garcia v. DMV, 195 Or App 604,

608 n 5, 99 P3d 316 (2004) (“After enactment of the Oregon

Rules of Civil Procedure, however, confusion arose because

of inconsistencies between those rules and other statutes.”);

Dept. of Rev. v. Faris, 19 OTR 178, 186 (2006) (“There may be

cases where a certain form is required by statute, such as

Oregon Rule of Civil Procedure (ORCP) 7 F[.]”).

Second, parties in future cases should be aware of

the significant consequences that flow from the fact that

only some parts of the rules are statutes, and then brief

their cases accordingly.

Third, the current status of certain rules that have

been serially amended by the legislature and the council

is uncertain, at best. One solution would be to simply lay

the Oregon Rules of Civil Procedure before the legislature

for enactment in their entirety. Short of that, however, if

the council or the legislature wishes particular rules to be

treated as statutes, then those rules must be affirmatively

enacted as statutes, in accordance with the law-making

principles of the state constitution.

Brewer, J., joins in this concurring opinion.