# Whipple v. Howser > Oregon Supreme Court · August 11, 1981 · 291 Or. 475 URL: https://www.frixlaw.com/law-library/cases/9540058 ## Case - **Full name:** WHIPPLE, Plaintiff, v. HOWSER Et Al, Defendants; HOWSER Et Al, Petitioners, v. BEHRENDT, Respondent - **Court:** Oregon Supreme Court - **Decided:** August 11, 1981 - **Citations:** 291 Or. 475; 632 P.2d 782 - **Precedential status:** Published - **Opinion:** Concurrence by Linde - **Judges:** Tongue, Linde, Tanzer, Peterson - **Cited by:** 111 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9540058 ## How later opinions describe it (automated extraction) - stating that there is “no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes” - holding that "the inclusion of a specific matter tends to imply a legislative intent to exclude related matters not mentioned" - noting that the role of the court in determining whether a statute applies retroactively is to “discern and declare the intent of the legislature” ## Opinion text LINDE, J., concurring. The question of the so-called “retroactive” or “retrospective” effect of a new law is not, or should not be, a question of adjudication. Its answer is not to be sought in judicial precedents. “Retroactivity” is in the first instance a question of legislative draftsmanship. When it becomes a problem, the problem is a failure of drafting, probably reflecting in turn a failure to give adequate attention to the policy choices involved. Then a court must solve the problem in one of three ways: (1) by invoking a generalized policy preference, sometimes labeled a “presumption,” that must be overcome by specific legislative language; (2) by choosing its own preferred policy for the issue before it; or (3) by constructing some inference from the statutory text and legislative history, whether or not the court agrees with the policy. The first of these has ancient and respectable antecedents, see Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn L Rev 775 (1936), and is defended by the dissent in the present case. The Court in this case follows the third approach, and I concur. “Retroactivity” itself is a deceptively simple word for a complex set of problems. In real time, all laws can operate only prospectively, prescribing legal consequences after their enactment; they cannot change the past. On the *489 other hand, all new laws operate upon a state of affairs formed to some extent by past events. As one student of the subject wrote long ago: “There is no such thing as a law that does not extinguish rights, powers, privileges, or immunities acquired under previously existing laws. That is what laws are for. On the other hand, no law can be retrospective in the sense that it recalls the past, or either regulates or prevents that which has already happened... “[A] law gives to an event which has already transpired a juristic significance it did not have at the time it occurred; but it does so only in order that it may thereby regulate future conduct. [Limitations on retroactivity] differ in effect only in the extent to which they regulate the future, or, what amounts to the same thing, the significance they attach retrospectively to the past event.” Smith, Retroactive Laws and Vested Rights, 5 Texas L Rev 231, 233 (1927). Responsible attention to the significance to be attached to past events cannot be compressed into some simple formula to serve legislation of all kinds. Too many different past events and too many potential legal consequences are relevant for different kinds of laws. The variety and sequence of relevant past events will be different in property law, in inheritance law, in commercial transactions, in taxation or public regulation, and in tort law, and so will the policy choices as to changing or preserving the preenactment legal effects of these past events. 1 A formula relating to “actions commenced,” as in this case, for example, is inappropriate to a change in a field of law not primarily concerned with litigation, but other rules drawn with knowledgeable attention to the critical events characteristic of that field should be included. Here the clause at issue provided that the act “does not apply to an action or other proceeding commenced before the effective date of this Act.” Or Laws 1979, ch 866, § 8. The first thing wrong with this formulation, as the debate between the majority and the dissent shows, is that *490 it is stated in the negative. The clause states to what the new act does not apply. It does not state to what the act does apply, or that it applies to all other actions. An affirmative statement, or statements both of inclusion and exclusion, are more apt to surface the policy choices for attention in the process of enactment. The affirmative formulation used in abolishing the defense of assumption of risk, for instance, left nothing to be litigated except an unsuccessful constitutional attack. Hall v. Northwest Outward Bound School, 280 Or 655 , 572 P2d 1007 (1977). Moreover, the formula here was chosen for a bill relating to one subject, tort liability for injury from defective products, and covers the different subject to automobile injury claims only because repeal of the automobile guest passenger law was attached to that bill by amendment. Examined separately, the policies regarding application of these statutes to preenactment injuries might not be the same. Neither the criteria of liability and the significance of the changes nor the situations of the affected parties are identical. Nevertheless, the legislature might choose the same formula to govern the application of each enactment. That is in fact what it did, with or without deliberation. It is not implausible that the lawmakers thought the changes in products liability law too slight or the time of other critical events for defining the application of the changed law too remote to choose another effective time than the commencement of actions. I cannot disagree with the majority’s inference that, in the products liability bill, the negative clause excluding actions “commenced before the effective date of the Act” was meant to imply that the act would govern all actions commenced after its effective date. The addition of the guest passenger provision then brought that provision under the same formula. In my view, however, the present decision cannot be taken to mean that hereafter the same clause will always be held to have this effect rather than the contrary effect it was given in Smith v. Clackamas County, 252 Or 230 , 448 P2d 512 (1969). The important point is that inexplicit clauses like the one used here do not become words of art by judicial interpretation, to be inserted into *491 bills as unexamined “boilerplate” because they have been used and fought over before. In this respect I disagree with the dissent’s invitation to ' drafters to rely on stare decisis in repeating phrases that have been troublesome enough to require judicial interpretation. To the contrary, the very fact that a phrase requires two levels of appeals to interpret should not reward it with an additional patina of having become “settled”; it should be reexamined and the desired policy spelled out in the context of future uses. The context of the particular legislation before us, Or Laws 1979, ch 866, has led the Court to conclude that the repeal of the automobile guest passenger law applies to preenactment injuries. On the record of this legislation, I concur in that conclusion. See, e.g., McCool v. Smith, 66 US 459 , 17 L Ed 218 (1861) (change in eligibility to heirship), Untermyer v. Anderson, 276 US 440 , 48 S Ct 353 , 72 L Ed 645 (1928), Blodgett v. Holder, 275 US 142 , 48 S Ct 105 , 72 L Ed 206 (1928) (retroactive gift taxes). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9540058. Public record. Not legal advice.