Young v. State

LANDAU, J.,

concurring.

Judge Haselton suggests that this case is but the latest in a long line of “patently silly” decisions required by adherence to PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12 , 859 P2d 1143 (1993), and calls for the adoption of a rule that would permit courts to redraft statutes to effectuate apparent — but unexpressed — legislative intentions. 161 Or App at 42-43 (Haselton, J., concurring).With respect, I think his proposal is ill-advised and that our decision is neither patently silly nor compelled by PGE . Our decision recognizes the uncontested fact that, in this case, the legislature made a significant mistake in its enactment of ORS 279.340 and applies the long-acknowledged legal principle that we are unable to redraft the statute to remedy such a mistake.

PGE cannot be blamed for everything, certainly not for the inability of courts to redraft legislative enactments. That incapacity is compelled by ORS 174.010, which antedates PGE by some 150 years. See Clackamas County v. Gay, 146 Or App 706, 711-18 , 934 P2d 551 , rev den 325 Or 438 (1997) (Landau, J., concurring) (tracing history and construction of ORS 174.010).

Our inability to redraft legislation is further compelled by constitutional principles concerning the nature of legislation and the relationship between the judicial and legislative branches. By constitutional definition, legislation consists of language reduced to writing and approved by two houses of the Legislative Assembly and the governor (or, if the governor does not approve, a veto override vote by both houses). Or Const, Art IV, § 25; Art V, § 15b. Legislative intentions that have not been reduced to writing and subjected to the constitutional approval process are not law, and *41 for the judiciary to give legal effect to such inchoate intentions would amount to an end-run around the constitutional enactment process. See Fernandez v. Board of Parole, 137 Or App 247 , 252 n 2, 904 P2d 1071 (1995) (“Intentions of the legislature that have not found expression in actual statutory language have not satisfied the constitutional requirements for enactment and simply are not law.”).

The courts lack the power to do that in any event. Bedrock principles of the separation of powers long have been recognized to constrain the judiciary from expanding on, or ignoring, statutory language. In 1891, for example, the Supreme Court refused to extend a statute beyond its terms, explaining:

“Courts cannot supply omissions in legislation, nor afford relief because they are supposed to exist * * *. ‘[W]hen a provision is left out of a statute, either by design or mistake of the legislature, the courts have no power to supply it. To do so would be to legislate and not to construe.’ ”

State ex rel. Everding v. Simon, 20 Or 365, 373-74 , 26 P 170 (1891) (quoting Hobbs v. McLean, 117 US 567, 579 , 6 S Ct 870 , 29 L Ed 940 (1886)); see also Monaco v. U.S. Fidelity & Guar., 275 Or 183, 188 , 550 P2d 422 (1976) (“[I]t is for the legislature to translate its intent into operational language. This court cannot correct clear and unambiguous language for the legislature so as to better serve what the court feels was, or should have been, the legislature’s intent.”); Dilger v. School District 24CJ, 222 Or 108, 112 , 352 P2d 564 (1960) (“It is axiomatic that the courts cannot in the guise of construction supply an integral part of a statutory scheme omitted by the legislature.”). Those principles clearly served as the underpinning for the Supreme Court’s most recent decision in point, State v. Vasquez-Rubio, 323 Or 275 , 917 P2d 494 (1996). In that case, the court declined to redraft a statute to avoid a purportedly absurd result. Echoing concerns expressed earlier in Everding, the court held that, when a statute is not reasonably capable of more than one construction, “it would be inappropriate” for a court to redraft it. “If we were to do so,” the court explained, “we would be rewriting a clear statute based solely on our conjecture that the legislature could not have intended a particular result.”Id. at 283.

*42 In that light, it is clear that Johnson v. Star Machinery Co., 270 Or 694 , 530 P2d 53 (1974), is simply bad law, not merely because it conflicts with PGE , but because it also conflicts with fundamental statutory and constitutional principles concerning the nature of the judicial power. Judge Haselton’s impassioned call for a revival of Johnson cannot be reconciled with those principles.

The point is worth emphasizing, for, as the number of bills introduced in the legislature grows ever larger, as the nature of legislation becomes ever more complex, and as the relative experience of legislators declines as a consequence of term limits, I expect that we will see more legislative mistakes in the future. It is important for all concerned to understand that the judiciary cannot serve as an extraconstitutional super-legislature that corrects statutory mistakes to effectuate what it speculates the legislature intended.

HASELTON, J.,

concurring.

PGE is authoritative. Accordingly, I concur. But only a fool or a knave would pretend that our result today bears any relationship to the legislature’s actual intent.

This case is just the latest, if perhaps the most egregious, of a series of cases in which fidelity to PGE has driven our court to patently silly results. Does anyone really believe that the 1995 legislature intended to confer a multi-million dollar windfall on state white-collar employees? Of course not. Does PGE permit any other result? No.

With PGE , as with any other formula, there must be limits. Legislative draftsmanship is not a science, and neither is statutory construction. 1 When a methodology that purports to effectuate legislative intent inverts that intent, *43 something is seriously wrong. The methodology must be reexamined and modified or discarded.

*42 “[T]he lesson of the past two hundred years is that we will do well to be on our guard against all-purpose theoretical solutions to our problems. * * * The function of the lawyer is to preserve a skeptical relativism in a society hell-bent for absolutes. When we become too sure of our premises, we necessarily fail in what we are supposed to be doing.”

*43 Venting, though momentarily satisfying, is rarely constructive. My constructive contribution — or, rather, suggestion — is modest, but practical: If we are to live, sensibly, with PGE , the “absurd results” principle must be available at the so-called “first level,” not the “third level,” 2 of the analysis. That is, there must be an escape hatch for those rare circumstances in which any reasonable person would conclude, notwithstanding unambiguous text, that the legislature could not possibly have intended the result that the text ostensibly yields.

That exception could, I acknowledge, be susceptible to unprincipled manipulation — to result-oriented abuse by “judicial activists,” closet legislators in robes, committed to carrying out hidden agendas. But the answer to such unprincipled decision-making does not lie in formulas, which can themselves be easily manipulated. The answer lies in remembering that we are judges. It lies in our oaths, in our mutual trust, and in our ultimate accountability to the people of Oregon.

See, e.g., Grant Gilmore, The Death of Contract, 4 (1974): “We are not scientists — nor even social scientists — nor were we meant to be. Let us not be overly depressed at that not altogether depressing thought.” See also Grant Gilmore, The Ages of American Law, 109-10 (1977):

See State v. Vasquez-Rubio, 323 Or 275, 283 , 917 P2d 494 (1996):

“When the legislative intent is clear from an inquiry into text and context, or from resort to legislative history, however, it would be inappropriate to apply the absurd-result maxim. If we were to do so, we would be rewriting a clear statute based solely on our conjecture that the legislature could not have intended a particular result.”