State v. Newton

*815 LENT, J.,

dissenting.

I have joined in Justice Linde’s dissent, but I wish to elaborate on a point only lightly touched upon in his dissent.

In State v. Scharf, 288 Or 451 , 605 P2d 690 (1980), we rendered a decision which was primarily a matter of interpretation of statutes of the State of Oregon. This court has specifically held that its interpretation of a statute becomes “a part of the statute as if written into it at the time of its enactment.” State of Oregon v. Elliott, 204 Or 460, 465 , 277 P2d 754 , cert. denied 349 US 929 , 75 S Ct 772 , 99 L Ed 1260 (1955).

Since the decision in Scharf , the legislature has met in regular session and failed to take any action which would indicate displeasure with that decision. Ordinarily, I would be loath to consider legislative failure to act in response to a judicial decision as having much weight in determining whether the Legislative Department of state government approved our interpretation of a statute, for mere inaction by the legislature may result from simple inattention or the pressures of other legislative business, but we do not have here a case of mere inaction.

We have, rather, the situation in which the matter has been brought to the attention of the legislature by a concerned governmental agency, and a refusal by the legislature to overturn the result of our decision in Scharf . The Department of Transportation, established as a part of the Executive Department of Oregon state government, Or Const. Art III, § 1, ORS 184.615, caused a bill to be “presession” filed in the 1981 regular legislative session. The obvious purpose of the bill, House Bill No. 2021, was to overturn the decision of this court in Scharf that the evidence was to be excluded. Rather than waste space by setting forth the bill in its entirety, I quote the summary printed on the bill:

“Permits use of chemical test results, administered pursuant to the Implied Consent Law, as evidence regardless of whether or not the driver was given opportunity to obtain advice of counsel.”

*816 This bill received the immediate attention of the legislature. That body convened on January 12, 1981, and the bill was referred to the House Committee on Judiciary on January 15. On February 16, a subcommittee held a hearing on the bill. On April 15 under House rules the bill was tabled in committee for want of affirmative action. On April 21, the other subcommittee of the House Judiciary Committee held a hearing on the bill despite the fact that it had already been tabled. On April 30 during a work session the bill was taken from the table, considered, and again tabled in committee.

We see, therefore, that the legislature, acting according to the rules and methods which it has adopted for carrying out its functions and responsibilities, rejected the Executive Department’s express request to overturn our holding in Scharf that the evidence must be excluded. I would also note that the 1981 session of the legislature otherwise devoted a great deal of attention to laws relating to driving while under the influence of intoxicants and left unchanged our decision in Scharf

Given both this legislative special attention to the rule of Scharf and that body’s general concern with closely-related laws, I conclude that the legislature’s inaction here should be viewed much the same as the situation in which a legislative body, while amending or revising a particular body of law, has left the challenged section alone.

The situation in the case at bar is much like that before the United States Supreme Court in United States v. South Buffalo R. Co., 333 US 771 , 68 S Ct 868 , 92 L Ed 1077 (1948), where the Supreme Court was faced with a challenge to its prior decision interpreting a part of the Interstate Commerce Act in a case entitled United States v. Elgin, Joliet & Eastern R. Co., 298 US 492 , 56 S Ct 841 , 80 L Ed 1300 (1936). After the Elgin decision the Interstate Commerce Commission had entreated Congress to overrule that decision by legislation. As in the case before us, the Commission had caused a bill to be introduced for that purpose and Congress had refused to enact the requested legislation. In the South Buffalo case the United States asked the court, in effect, to reject its former interpretation of the statute. The court responded:

*817 “It is the Government’s contention that the Elgin decision misconstrued the Act, misunderstood its legislative history and misapplied the Court’s own prior decisions. It is not necessary in the view we take of the case to decide to what extent, if any, these contentions are correct. It is enough to say that if the Elgin case were before us as a case of first impression, its doctrine might not now be approved. But we do not write on a clean slate. What the Court has written before is but one of a series of events, which convinces us that its overruling or modification should be left to Congress. As the Court held on our last decision day, when the questions are of statutory construction, not of constitutional import, Congress can rectify our mistake, if such it was, or change its policy at any time, and in these circumstances reversal is not readily to be made. Massachusetts v. United States, 333 U.S. 611 , decided April 19,1948. Moreover, in this case, unlike the cited one, Congress has considered the alleged mistake and decided not to change it. ” (Emphasis added.)

333 US at 774-775, 68 S Ct at 870, 92 L Ed at 1081.

The similarity in the situation presented by the case at bar and that above described is striking. The same rule should apply.

Another court has recently come to a like result in a similar case, stating:

“The doctrine of stare decisis, weighty in any context, is especially so in matters of statutory construction. For in such cases Congress may cure any error made by the courts. Until it does, the bar and the public are justified in expecting the courts, except in the most egregious cases, neither to depart from previous interpretations of statutes, nor to give them a grudging application.”

Cottrell v. C.I.R., 628 F2d 1127, 1131 (8th Cir 1980) (footnote omitted).

Quite simply, the following situation obtains in the case at bar. This court interpreted the statute in Scharf . A concerned agency of the Executive Department sought to overturn that interpretation at the very next regular session of the legislature. The Legislative Department refused to amend the statute as requested. Now, due to a change in the personnel of this court, a new majority refuses to follow the rule of stare decisis in just the kind of case to which the rule is singularly pertinent, and the Judicial Department *818 makes the change which the department of government charged with formulating statutory law has considered and refused to make. That course of action is both unwise and unseemly.

Linde, J., joins in this dissent.