# Lowe v. City of Eugene

> Oregon Supreme Court · February 26, 1969 · 254 Or. 518

URL: https://www.frixlaw.com/law-library/cases/9629161

## Case

- **Full name:** LOWE Et Al, Respondents, v. CITY OF EUGENE Et Al, Defendants, EUGENE SAND & GRAVEL, INC., Appellant
- **Court:** Oregon Supreme Court
- **Decided:** February 26, 1969
- **Citations:** 254 Or. 518; 451 P.2d 117; 1969 Ore. LEXIS 584
- **Precedential status:** Published
- **Opinion:** On rehearing by Goodwin
- **Judges:** Denecke, Goodayin, Goodwin, Holman, Langtry, McAllister, O'Connell, Perry, Sloan
- **Cited by:** 27 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/9629161

## How later opinions describe it (automated extraction)

- describing art. I, § 5 as an expression of Oregon’s commitment to the doctrine of separation of church and state

## Opinion text

*534 ON REHEARING
*535 John E. Jaqua and William G. Wheatley, Eugene, argued the cause for appellant on rehearing. On the brief opposing rehearing was William G. Wheatley, Eugene.
Barbara B. Aldave, Eugene, and Leo Pfeffer, New York, New York, argued the cause for respondents on rehearing. With them on the petition for rehearing and brief was James B. Harrang, Eugene.
Warren Cameron, Seattle, Wash., and Richard D. Curtis and Hansen, Curtis & Strickland, Eugene, filed a brief for Leslie D. Erb et al, citizens of the City of Eugene, as amici curiae.
Before Perry, Chief Justice, and McAllister, Sloan, O’Connell, Goodayin, Denecke and Holman, Justices.
GOODWIN, J.
The trial court, in a suit for declaratory relief, ordered the City of Eugene and the other named defendants to remove from a public hilltop park a neon-lighted concrete cross some 50 feet tall which, Avhen lit, was visible for several miles over a major part of the city of Eugene. On appeal, this court reversed the trial court’s decree. The matter is before us again, on a petition for rehearing.
In a brief and upon oral argument, counsel challenged the propriety both of the granting of the rehearing and of the submission of the cause to a court that contained a justice who had not participated in the original decision. ■
*536 On January 6, 1969, the original appeal was argued before a court consisting of Chief Justice Perry and Justices McAllister, Sloan, O’Connell, Goodwin, Denecke and Langtry. In the absence of Justice Holman, a regular member of the court, Justice Langtry was sitting as a Justice pro tempore duly assigned to this court pursuant to OES 2.052.
The court handed down its original opinion on February 26, 1969, reversing the trial court. Justices Perry, Sloan, Denecke and Langtry voted for reversal. Justices McAllister, O’Connell and Goodwin dissented. Lowe v. City of Eugene, 254 Or 518 , 451 P2d 117 (1969).
The plaintiffs filed a petition for rehearing. On April 22, 1969, the court in its regular weekly conference considered the petition. Four of the regular justices who had participated in the original decision favored granting the petition. The other two regular justices and Justice Langtry opposed granting the petition. Since four of the regular justices who had participated in the original decision voted for a rehearing, it was unnecessary to decide whether Justice Holman or Justice Langtry or neither of them or both of them should vote on the petition. The petition was granted.
The rehearing was set for June 2, 1969. On that date the cause was argued before the seven regular justices of the Supreme Court, none then being absent or disqualified. The court was thus convened according to the practice followed when.a case is re-argued in banc and no regular justice is disqualified. Justice Langtry had been appointed to serve for ninety days beginning the first judicial day in January, and his term had expired before June 2, 1969. *537 The submission of the cause on rehearing to the seven regular justices, including Justice Holman, was correct.
The question whether a justice who did not paiticipate in an original decision is barred from subsequent consideration of that case is potentially troublesome in any jurisdiction which allows rehearings. There are numerous reasons other than that of disqualification for a particular justice to be absent from a particular argument. Moreover, if the reason for the original absence was temporary, it is likely that the absent justice will be available for duty when the case is argued on rehearing.
Two lines of precedent in the United States deal with this situation.
In some jurisdictions a regularly elected justice who, for any reason, does not participate in an original decision does not participate in any subsequent considerations of that case. The reasons for the rule are set out in Gas Products Co. v. Rankin, 63 Mont 372 , 207 P 993 , 24 ALR 294 (1922); Flaska v. State, 51 NM 13 , 177 P2d 174 (1946); Cordner v. Cordner, 91 Utah 474 , 64 P2d 828 (1937); Rohlfing v. Moses Akiona, Ltd., 45 Hawaii 440 , 369 P2d 114 (1963); but cf. Yoshizaki v. Hilo Hospital, 50 Hawaii 40 , 429 P2d 829 (1967).
In California, the court as it is constituted on the day a case is argued on rehearing is the Supreme Court for the purpose of the vote on the questions argued. A regularly elected justice who is present for duty and not disqualified hears argument and participates in the vote. See Metropolitan Water Dist. v. Adams, 19 Cal 2d 463, 122 P2d 257 (1942). Accord, Glasser v. Essaness Theatres Corp., 346 Ill App 72, *538 89-100, 104 NE2d 510 (1952); Battle v. Mason, 293 P2d 324, 333-334 (Okla 1955).
We believe that the better reasoned eases are those which follow the California rule.
The institution of rehearing was invented and has survived because it is beneficial to the administration of justice. This court permits any party to file a petition for rehearing within 20 days following the publication of our opinion announcing a decision. Oregon Supreme Court Rule 47.
Every petition is carefully considered by the court. On any given date the court may be made up of seven justices who may not be the same seven who constituted the court the day, the week, or the month before. This change in the court’s composition may be the result of many factors: e.g., illness, retirement, election. The court nonetheless votes and makes decisions as a court, not as a collection of individual justices.
Both initially and upon rehearing, the parties have the right to a decision by a lawfully constituted court. They do not have a right to a decision by a particular judge or group of judges. In the case at bar, no decree has yet been placed beyond the power of this court to recall, modify or reverse; the cause is still pending. Until the time for rehearing has expired, the party in whose favor a decision is rendered has no vested right in the decision that would preclude its re-examination and vacation in the ordinary course of judicial administration. Metropolitan Water Dist. v. Adams, 19 Cal 2d at 475.
When the court, on June 2, 1969, heard argument on rehearing, Justice Holman was present for duty, was not disqualified, and had both the right and the duty to vote on the merits of the.case.
*539 We hold, therefore: (1) that regardless of the number of justices available and qualified to vote, the petition for rehearing in this case was properly granted by a majority vote of a lawfully constituted court; (2) when the case came on in due course for argument on rehearing it was heard before a lawfully constituted court.
The majority of the court before which the case was argued on June 2, 1969, is of the opinion that the decree of the trial court should be affirmed for the reasons substantially as set forth in the dissenting opinion handed down on February 26/1969. The former majority opinion handed down on February 26, 1969, is accordingly withdrawn. The decree entered below is affirmed. Neither party shall have costs in this court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629161. Public record. Not legal advice.