State Ex Rel. Huddleston v. Sawyer

*633 DURHAM, J.,

concurring in part and dissenting in part.

I agree with the majority that, in this case, mandamus is an appropriate procedural mechanism for obtaining judicial review of relator’s (and, necessarily, the state’s) claims of error regarding the sentencing of Vanzant. Relator has no plainly available remedy in the ordinary course of law but not for the reason relied on by the majority. In response to the parties’ arguments on the merits, the majority refuses to address Vanzant’s claim under the Guarantee Clause of Article IV, section 4, of the United States Constitution, asserting that that claim is “not justiciable.” 324 Or at 618. For the reasons discussed below, I believe that the majority’s determination regarding justiciability is flawed. Accordingly, I dissent from that portion of the majority’s opinion.

1. Mandamus is an Available Remedy.

ORS 34.110 provides:

“A writ of mandamus may be issued to any inferior court, corporation, board, officer or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station; but though the writ may require such court, corporation, board, officer or person to exercise judgment, or proceed to the discharge of any functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law.” (Emphasis added.)

Relator contends that defendant judge erred in sentencing Vanzant. Relator claims that defendant judge should have sentenced Vanzant under Ballot Measure 11, ORS 137.700(2)(e), and should not have entered a presumptive sentence pursuant to the rules of the Oregon Criminal Justice Commission, ORS 137.637. Defendant judge decided that a presumptive sentence was appropriate because Ballot Measure 11, ORS 137.700(2)(e), was unconstitutional. 324 Or at 600. The question that arises is whether relator’s remedy for that ruling by way of an appeal under ORS 138.060 and 138.222 is a “plain, speedy and adequate remedy” under ORS 34.110.

*634 The majority answers that question by holding that the state has no right under ORS 138.222 to obtain appellate review of defendant judge’s ruling that Ballot Measure 11 is unconstitutional. I doubt that the legislature intended to deny the state the ability to obtain appellate review of an issue of that kind. However, it is unnecessary to decide finally in this case that the state has no right to appeal that issue. Sufficient doubt surrounds the question of the review-ability of that constitutional issue that an appeal is not a legal remedy that is plainly available to relator. As a consequence, ORS 34.110 imposes no barrier to consideration of relator’s claim through a writ of mandamus.

Set forth below are the reasons why, in my view, ORS 138.222 does not plainly bar appellate review of the trial court’s constitutional ruling. ORS 138.222 authorizes an appellate court to review certain issues on appeal and imposes limitations on such review. It provides in part:

“(2) On appeal from a judgment of conviction entered for a felony committed on or after November 1, 1989, the appellate court shall not review:

“(a) Any sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission.

“(b) A sentence of probation when the rules of the Oregon Criminal Justice Commission prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.

“(c) A sentence of imprisonment when the rules of the Oregon Criminal Justice Commission prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.

“(d) Any sentence resulting from a stipulated sentencing agreement between the state and the defendant which the sentencing court approves on the record.

“(e) Except as authorized in subsections (3) and (4) of this section, any other issue related to sentencing.

“(3) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the rules of the Oregon Criminal *635 Justice Commission, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure from the sentence prescribed by the rules of the Oregon Criminal Justice Commission:

“(a) Are supported by the evidence in the record; and

“(b) Constitute substantial and compelling reasons for departure.

“(4) In any appeal, the appellate court may review a claim that:

“(a) The sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence [.]”

The first question is whether, by appealing, the state, represented here by relator, would seek “review” of a “sentence.” In one sense, the answer is yes. Relator argues that, due to the defendant judge’s error, Vanzant received a sentence of 20 months but should have received a minimum sentence of 75 months under Ballot Measure 11. However, contrary to the majority’s view, that answer is not obvious. Seen differently, relator’s claim also can be viewed as an attack on defendant judge’s preliminary ruling that Ballot Measure 11 is unconstitutional and, for that reason, the sentencing scheme or procedure that controls how the ultimate sentencing decision should be made is the sentencing guidelines, not Ballot Measure 11. Under that view, the limitation on seeking “review” of a “sentence” would not prevent the state from claiming on appeal that the trial judge applied the wrong body of law to the sentencing decision. Nothing in the statutory text, context, or legislative history of paragraph (2)(a) cited by the majority supports its assertion that the legislature intended to foreclose the state from seeking review of asserted legal errors surrounding the global issue of the correct statutory scheme that should control sentencing decisions.

I turn to paragraph (4)(a). The text of that statute purports to authorize the appellate court to consider precisely the sort of claim that relator now asserts: that the sentencing court violated a legal requirement — here, Ballot Measure 11 — in imposing or failing to impose a sentence. *636 According to that paragraph, the appellate court has that review authority “[i]n any appeal.”

The majority contends that no such authority exists because of the statement by the court in State v. Adams, 315 Or 359, 365 , 847 P2d 397 (1993), that “[t]he wording of the statute clearly demonstrates that ORS 138.222(3) and (4) are exceptions only to ORS 138.222(2)(e).” 324 Or at 608. For several reasons, I disagree with the majority’s reliance on that sentence in Adams to foreclose the state’s right to obtain appellate review here.

In Adams , the defendant stipulated to a sentence as part of a plea agreement, and received exactly the sentence— an upward departure sentence — to which he had stipulated. 315 Or at 363-64 . Because he stipulated to his sentence, the defendant never made any objection or claim in the trial court that the court was required to cite substantial and compelling reasons justifying the departure. Id. at 364 ; see ORS 137.671 (requiring substantial and compelling reasons to justify a departure sentence). Nevertheless, he appealed and argued that the sentencing court violated a legal requirement by failing to cite reasons justifying the departure sentence.

A straightforward answer to that argument is that the defendant could not obtain appellate review of that claim because he had never raised it in the trial court and, in fact, had stipulated to the very judgment that he sought to appeal. The Adams majority took a different approach, choosing instead to interpret ORS 138.222(2)(d). The majority held that that paragraph barred appellate review of any sentence resulting from a stipulated sentencing agreement. 315 Or at 367 . Although Adams reached the correct result, it has no application here.

Adams involved a stipulated sentence, unlike the case here. More importantly, the sentence from Adams quoted above, on which the majority relies, was a statement about the text of ORS 138.222(2)(e), not a conclusion reached after an analysis of “the text, context, and legislative history,” as the majority now incorrectly states. 324 Or at 607. *637 The Adams majority examined the available legislative history behind the phrase “any other issue related to sentencing” in ORS 138.222(2)(e) and concluded that it “did not answer definitively the question before us.” 315 Or at 366 .

Despite the lack of definitive legislative history, the Adams majority quoted a statement by Senator Springer. He confirmed that his committee had “ ‘worked * * * to limit the circumstances in which an appeal may be taken,’ ” and he paraphrased the text of ORS 138.222(2)(d), saying that “ ‘the court will not review those sentences * * * if the sentence is resulting from an agreement between the state and the defendant [.]’ ” Ibid. That history is equally inconclusive regarding the meaning of ORS 138.222, yet the Adams majority relied on it to assert that the “[d]efendant’s proposed reading of ORS 138.222 is not consistent with the purpose of the sentencing guidelines, as revealed in the legislative history.” Ibid. That conclusion does not follow from the legislative material on which it is based.

The Adams majority noted that paragraph (2)(a) through (d) each barred appellate review of “any sentence” and that, using different terms, paragraph (e) barred review of “any other issue related to sentencing” eoccept as authorized in subsections (3) and (4). Id. at 365 (emphasis added). The Adams majority acknowledged that “[w]e are not free to ignore the fact that the legislature used different terms in related portions of the statute,” ibid., and then proceeded to examine the statute without regard to those and other significant textual distinctions.

Two observations about Adams are apropos. In regard to its construction of paragraph (d), Adams exhibits a methodology of statutory interpretation that is flawed in several respects. The entire exercise in Adams probably was unnecessary because the defendant failed to preserve any of the issues raised on appeal. In regard to paragraph (e), Adams expressed, in one sentence, a conclusion about the appealability of legal issues related to a stipulated sentencing agreement, but it did so without interpreting the text of ORS 138.222 as a whole, without relying on any helpful legislative history and without estimating how the legislature might have approached the problem had it thought of the *638 question. For that reason, the majority overstates what Adams actually held, as opposed to what Adams said, without analysis, about an isolated phrase in the text.

In my view, significant text in ORS 138.222(2) was not interpreted in Adams . Paragraph (e) is an authorization of appellate review for the types of claims described in subsections (3) and (4). Subsection (3) describes issues that the appellate court “shall” review, and subsection (4) describes issues that the appellate court “may’ review in any appeal. Subsections (3) and (4) are not “exceptions” to paragraph (e). Nothing in the statute supports that reading. Rather, subsections (3) and (4) are authorizations for appellate review that subsection (e) excepts from its ban on appellate review of “any other issue related to sentencing.” Stated differently, subsections (3) and (4) refer to “other issue [s] related to sentencing” that the statute authorizes the appellate court to review.

The authorization for appellate review in subsection (4), as noted above, is discretionary, not mandatory. Had the Adams majority addressed the text of that subsection, it would have concluded that the Court of Appeals was permitted, but not required, to review the defendant’s claim and that the court could consider the defendant’s failure to preserve any issue in deciding whether to review his claim on appeal. Considering that procedural problem, I doubt that any appellate court would allow discretionary appellate review of unpreserved claims regarding a stipulated sentence.

The same cannot be said regarding the state’s legal issue here. From the outset of litigation regarding Vanzant’s sentence, the state has contended that Ballot Measure 11 is lawful in all respects and that Ballot Measure 11, not the sentencing guidelines, dictates Vanzant’s sentence. In the words of ORS 138.222(2)(e), the constitutionality of Ballot Measure 11 is an “other issue related to sentencing” for which discretionary appellate review authority exists under ORS 138.222(4)(a). Adams appears not to foreclose the possibility of an appeal by the state on that issue. For present purposes, all that this court needs to say is that genuine uncertainty regarding the state’s appellate remedies for defendant *639 judge’s constitutional ruling justified plaintiff in filing a petition for a writ of mandamus.

ORS 34.110 authorizes issuance of a writ of mandamus unless a “plain, speedy and adequate” remedy in the ordinary course of law is available. Webster’s Third New Int’l Dictionary (unabridged ed 1993) provides the following relevant definitions of those statutory terms:

“plain * * *: in a plain manner: without obscurity or ambiguity: CLEARLY, SIMPLY * * *.”Id. at 1729.

“speedy * * * 1: rapid in motion: going or able to go quickly: SWIFT * * * 2: marked by swiftness of motion or action: occurring, accomplished, or arrived at quickly * * * 3: prompt in action or performance: QUICK * * *.” Id. at 2190.

“adequate * * * 2: equal to, proportionate to, or fully sufficient for a specified or implied requirement * * * 3: legally sufficient: such as is lawfully and reasonably sufficient ***”Id. at25.

I agree that an appellate remedy is “speedy” and “adequate,” within those definitions, to afford the state relief from the trial court’s asserted legal error. However, as discussed above, the existence of genuine uncertainty about whether the state legally was entitled to appeal regarding that asserted legal error means that an appeal was not a plainly available remedy in the ordinary course of law. 1

The majority states that its interpretation in Adams became “a part of the statute as if written therein,” citing State v. King, 316 Or 437, 445 , 852 P2d 190 (1993), and that *640 it is simply applying Adams “in a new factual setting.” 324 Or at 608. That reasoning is problematic for two reasons.

First, this case involves a statute, ORS 138.222-(2)(a), regarding review of a presumptive sentence, and a legal issue — the state’s opportunity to obtain appellate review of a preliminary constitutional ruling by the trial court — that Adams never addressed. Indeed, Adams left uninterpreted a good deal of the text of ORS 138.222(2) and all of the legislative history that bears on the state’s right to appellate review here. Whether the state has a right to obtain appellate review here cannot be brushed aside as a mere factual variation of the claim in Adams .

Second, there is reason to doubt the accuracy of the majoritys statement, borrowed from King and other cases, that a prior interpretation by this court becomes a part of the statute as if written into it by the legislature at the time of enactment. See Stephens v. Bohlman, 314 Or 344 , 350 n 6, 838 P2d 600 (1992) (stating rule of prior interpretation). This concern is separate from the question whether Adams constitutes a “prior interpretation” of the statute that controls the state’s appellate remedies in this context.

My intention is to raise the question of the accuracy of the majoritys statement regarding the perpetual effect of this court’s prior interpretation of a statute, and not to decide the issue finally, because persuasive responses may support the “prior interpretation” rule cited by the majority. I raise the question because appellate courts on occasion present verbal formulas as “rules” without examining the assumptions that underlie them. Through repetition over time without genuine legal analysis, such formulas can become unsound law. In my view, this court never should be unwilling to reconsider the continuing validity of the premises that support court-made rules when credible questions about them arise.

According to recent scholarship, the rule of prior interpretation appears to have sprung up, without explanation or statutory authority, in an opinion of this court in 1955 2 that relied inaccurately on two out-of-state sources *641 that, at best, bear little relationship to Oregon law. According to Judge Jack L. Landau, in his article, Some Observations About Statutory Construction In Oregon, 32 Willamette L Rev 1,18 (1996),

“[t]he citations can be traced back to a 1955 case, State of Oregon v. Elliott[, 204 Or 460, 465 , 277 P2d 754 , cert den 349 US 929 (1955)], in which the court recited this rule and cited as authority a 1914 Missouri case and an article in American Jurisprudence [50 Am Jur Statutes, § 221 (1994)]. Interestingly, the American Jurisprudence article says: ‘The interpretation of a statute by the highest courts of a state by which the statute was enacted, is generally regarded as an integral part of the statute, at least where the meaning of such statute is in issue in a court of another jurisdiction.’ That is quite a different point than the one for which the court cited it.

“The important question, however, is not whether the court’s rule of prior construction can be supported by prior authority. In fact, the rule is rooted fairly firmly in the formalist traditions of nineteenth-century ‘vested rights’ jurisprudence. The more important inquiry is whether the rule makes sense.

“Beyond bare references to prior cases, the supreme court has never explained the basis for the rule that its construction of statutes becomes part of the statutes themselves. The rule appears predicated on the fiction of legislative acquiescence. According to that notion, once the court interprets a statute, the legislature is put on constructive notice of the court’s interpretation, and if the legislature fails to ‘correct’ that interpretation by subsequent enactment, the court may assume that the legislature acquiesces in the court’s interpretation.

“This reasoning has at least two problems. First, it simply does not accord with reality. Legislatures may or may not be aware of the court’s interpretations of statutes, particularly in a state such as Oregon, where a legislative assembly of ordinary citizens meets for approximately six months out of every twenty-four. It is unlikely that every *642 legislator subscribes to the Oregon Reports and keeps abreast of the supreme court’s interpretations of the legislature’s handiwork. Moreover, even assuming that legislators know what the supreme court is saying about their enactments, the legislature may not respond to the court’s statutory construction cases for any number of reasons, none of which has anything to do with acquiescence in the court’s interpretations.

«Jjs * % * *

“Aside from the fact that the court’s rule of prior construction lacks any real explanatory foundation, there is at least one significant problem in its application: If the court’s construction becomes part of the statute, the court lacks authority to overrule its own decision. Thus, if the court mistakenly construes a statutory provision — whether because certain arguments were not considered or made to the court at the time, or related statutes were not brought to its attention, or relevant legislative history was not before it — there is nothing anyone but the legislature can do about it.” (Footnotes omitted; emphasis in original.)

Judge Landau’s last criticism of the rule raises another concern of mine. The rule of prior interpretation purports to announce a shorthand version of the well-established rule of stare decisis, at least with respect to statutory interpretations. See State v. White, 303 Or 333, 348 , 736 P2d 552 (1987) (treating the rule of prior interpretation as an application, in the context of statutory interpretation, of the doctrine of stare decisis).

I accept and support the doctrine of stare decisis as adopted by this court. I believe, however, that the evolution of the rule of prior interpretation in this court’s opinions has introduced a degree of inflexibility to our jurisprudence of statutory interpretation that is unfaithful to the doctrine of stare decisis.

Safeway Stores v. State Bd. Agriculture, 198 Or 43 , 255 P2d 564 (1953), is helpful to this discussion because it accurately presents this court’s doctrine of stare decisis and relies on the adaptability inherent in that doctrine in overturning an earlier interpretation of a statute by this court. The court explained the doctrine of stare decisis in these terms:

*643 “ ‘The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong be the result. Accordingly, unless a doctrine or principle has become so well established that it may fairly be considered to have become a rule of property, * * * the courts will not adhere to it, although established by previous decisions, if they are convinced that it is erroneous, even though it may have been reasserted and acquiesced in for a number of years, especially if the former decisions are injurious or unjust in their operation.’ [21 CJS 322, Courts § 193.]

“State v. Mellenberger, 163 Or 233 , 95 P2d 709 , 128 ALR 1506 , a criminal case, in departing from a precedent, quoted the following from Dr. Roscoe Pound:

“ ‘In the epigrammatic phrase of Mr. Justice Holmes, historical continuity is not a duty, it is only a necessity. It is not that we ought to hew to what our forbears have done in the past as a matter of duty. But we find ourselves starting where they left off, building upon what they did and using the materials they left to us. In law we have to perceive how and why legal institutions arose, and to what ends, and with newer and better perceived and better understood ends, to adapt the institutions and materials which have come down to us to the tasks of social control in the time and place. Our materials are experience by reason and testing reason by experience. “Every generation,” says Sir Frederick Pollock, “takes up from its fathers, if it is worthy of them, a new starting point of imagination and aptitude, and the strange conservatism of the imaginative faculty is a sure warrant of continuity.’

“After that quotation, the Mellenberger decision took the following from an essay by Daniel H. Chamberlain:

“ ‘A deliberate or solemn decision of a court or judge, made after argument on a question of law fairly arising in a case, and necessary to its determination, is an authority, or binding precedent, in the same court or in other courts of equal or lower rank, in subsequent cases, where “the very point” is again in controversy; but the *644 degree of authority belonging to such a precedent depends, of necessity, on its agreement with the spirit of the times or the judgment of subsequent tribunals upon its correctness as a statement of the existing or actual law, and the compulsion or exigency of the doctrine is, in the last analysis, moral and intellectual, rather than arbitrary or inflexible.’ ” 198 Or at 80-81 .

In Safeway Stores , the issue was whether a state agency possessed authority under an Oregon statute to deny a milk processing and distribution license for a reason other than those specified in the Oregon statute, known as the Milk Marketing Act. Id. at 64 . The plaintiff contended that the statute confined the state agency to the grounds for denial stated in the statute. Id. at 52 . The defendant contended, among other things, that the statutory list of grounds for denial was not exclusive, that his statutory authority to deny a license permitted him to rely on nonstatutory criteria, such as the adequacy of milk distribution service in the particular region, and that this court had adopted an interpretation of the statute that supported the defendant’s position in a recent case, State ex rel Peterson v. Martin, 180 Or 459 , 176 P2d 636 (1947). Safeway Stores, 198 Or at 77 .

In Martin , the issue was whether the Milk Marketing Act vested the administrator of the Department of Agriculture with discretion to refuse to issue or to revoke a milk distributor’s license in the absence of a violation of a specific statutory ground for revocation. 180 Or at 467 . The court held that the statute afforded the administrator general discretion to deny a license for the reason that existing service was adequate and that the statute did not require, in addition, a specific ground for license revocation. Id. at 473 .

The court in Safeway Stores reviewed the statutory analysis conducted just six years earlier in Martin , and concluded that that analysis did “lend countenance” to the defendant’s argument. 198 Or at 80 . However, the court said that those statements were “not within the doctrine of stare decisis” and “are not beyond subsequent re-examination.” Ibid. The court, after reviewing the doctrine of stare decisis, concluded that its statements in Martin regarding the administrator’s statutory authority were “unsound” and “must be deemed withdrawn.” Id. at 82.

*645 The doctrine of stare decisis operates most commonly in regard to proposed modifications of the common law. Safeway Stores illustrates that the doctrine equally is applicable to proposed modifications of prior judicial interpretations of statutes. Moreover, the two central premises of the doctrine of stare decisis — stability and flexibility — continue to serve important roles in this court’s case law regarding statutory interpretation notwithstanding the rule of prior interpretation. As Judge Landau demonstrates, this court in Holcomb v. Sunderland, 321 Or 99 , 894 P2d 457 (1995), sidestepped the rule of prior interpretation when it revisited a statute that it previously had construed, concluded that new facts altered the premises for the prior construction, and adopted a different statutory construction. 32 Willamette L Rev at 20-23. Despite the lack of an intervening alteration of the statute in question, the court changed its statutory construction because the prior interpretation no longer reflected reality. Holcomb, 321 Or at 105-06 .

Safeway Stores and Holcomb are not isolated examples of this court’s willingness to overrule earlier statutory interpretations when it desires to do so. In Carlson v. Blumenstein, 293 Or 494 , 501 n 5, 651 P2d 710 (1982), the court overruled two prior decisions 3 that, according to the court, erroneously interpreted ORS 17.055 to create a right to recover attorney fees in some circumstances. The court did not hesitate to overrule those incorrect cases because of the rule of prior interpretation. Yet, the legislature had not altered the text of the statutes that the court had interpreted in those cases. Those inconsistencies in the application of the rule of prior interpretation suggest that the court may cite that “rule” as a convenient reason to adhere to prior interpretation when the court desires to do so but that the “rule” is not an impediment to a reexamination and alteration of a prior judicial interpretation of a statute when the court prefers that outcome.

In my view, the rule of prior interpretation fairly is open to scrutiny, particularly on the question whether it has introduced needless and harmful rigidity into this court’s *646 methodology of statutory construction. Judicial interpretations of statutes that control many areas of commerce, such as those that concern real property, should not be reconsidered, except in the narrowest of circumstances, in order to serve the public’s strong need for stability in commercial transactions. However, the justification for any judicial disinclination to modify prior statutory interpretations can be less weighty in other contexts, such as statutory regulation of the authority of governmental bodies and officers and procedures related to operation of the courts. In those areas of law, and perhaps others, if new legal research and advocacy can demonstrate that a prior statutory interpretation was inaccurate and now is causing injustice, the court’s proper role under the doctrine of stare decisis is to modify its former statutory interpretation and adopt a new, correct interpretation that is consonant with the legislature’s intention.

Advocates who may wish to raise questions regarding the rule of prior interpretation before this court should recognize that some members of the court — not this member — may expect argument about whether the court’s statements in G. L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59 , 757 P2d 1347 (1988) (stating “three premises” for reconsideration of a nonstatutory rule or doctrine), impose a barrier to modification of the rule of prior interpretation. Cautious counsel should not neglect adequate treatment of those premises in briefing and argument.

For the reasons expressed above, I agree that this matter is properly before the court on a petition for a writ of mandamus.

2. Republican Form of Government Clause.

Article IV, section 4, of the United States Constitution, provides in part that

“[t]he United States shall guarantee to every State in this Union a Republican Form of Government * * *.”

That provision is part of the constitutional law — the supreme law of this land — that every Oregon judge swears to uphold upon taking office. Nevertheless, several rulings of the United States Supreme Court have stunted the development of any appreciable jurisprudence regarding the enforce *647 ability of that clause, at least in state courts. For example, in Pacific Telephone Co. v. Oregon, 223 US 118, 151 , 32 S Ct 224 , 56 L Ed 377 (1912), the Court held that federal enforcement of the clause was a responsibility of Congress, not the federal courts. Although Pacific Telephone purports to decide only the justiciability of the clause in federal, not state, courts, some (although not all) state courts have refused to consider cases arising under the clause on the theory that decisions like Pacific Telephone also preclude state court litigation. Cf. Van Sickle v. Shanahan, 212 Kan 426, 511 P2d 223 (1973) (examining a Kansas constitutional amendment under the Guarantee Clause) with State v. Mountain Timber Co., 75 Wash 581, 590, 135 P 645 (1913), aff'd 243 US 219 , 37 S Ct 260 , 61 L Ed 685 (1917), and Cochran v. Louisiana State Board of Education, 168 La 1030, 1032-33, 123 So 664 (1928), aff'd 281 US 370 , 50 S Ct 335 , 74 L Ed 913 (1930) (each case holding that the Guarantee Clause dispute was not justiciable; result affirmed by United States Supreme Court). The majority reads the latter cases to say that state courts cannot exercise their judicial power over Guarantee Clause disputes. I disagree. 4

State courts possess general authority to decide, under state law, that a particular dispute is not a justiciable controversy that the courts of the state will resolve through the exercise of their judicial power. A host of factors may influence a state court to reach such a conclusion, including opinions of the United States Supreme Court about the jus-ticiability of Guarantee Clause claims in federal courts. Consequently, when the state courts of Washington and Louisiana in Mountain Timber and Cochran treated the claims before them as “nonjusticiable,” the decisions constituted determinations under state law that the judicial power of those states did not extend to the resolution of those disputes.

Nothing in the Guarantee Clause or any other law compels a state court to entertain Guarantee Clause litigation if it elects not to do so, whether on grounds of nonjusti-ciability or some other ground. Properly viewed, the Supreme *648 Court’s affirmances in Mountain Timber and Cochran determine only that the Guarantee Clause does not compel any state to treat such a claim as a justiciable controversy. Neither state court violated any federal law by deciding not to address Guarantee Clause claims. I do not read those decisions to say that a state court possesses no authority to entertain a Guarantee Clause claim that is otherwise justiciable if it chooses to do so. That question, which concerns the scope of every state’s judicial power, was neither addressed nor decided finally in those cases.

Also undecided, under existing United States Supreme Court cases, is the precise character of the duty of each state, and the interplay of that duty with that of the federal government, under the Guarantee Clause. The majority does not address the justiciability of the alleged violation of Oregon’s duty under that clause. In Minor v. Happersett, 88 US (21 Wall) 162, 175, 22 L Ed 627 (1874), the Supreme Court stated:

“The guaranty necessarily implies a duty on the part of the States themselves to provide such a government.”

Taking that statement at face value, as we must, we can only conclude that Oregon is duty-bound, under the Guarantee Clause, to provide a government that is republican in form. That state duty is distinct from the other duty, expressed in the clause, compelling the federal government to guarantee a republican form of government to every state. None of the authorities relied on by the majority addresses the justicia-bility in Oregon’s state courts of a controversy arising from Oregon’s independent duty, expressed in Minor , under the Guarantee Clause. Moreover, that issue is distinct from the still unresolved question whether a state court can decide, under the Guarantee Clause, whether state lawmaking violates any aspect of the federal government’s duty to assure a republican government in every state.

To be sure, Minor v. Happersett predated Pacific Telephone by several decades. However, Pacific Telephone involved only an invocation of the federal government’s duty to guarantee a republican government in the states and did not address or analyze the justiciability in state court of a state’s duty under Article IV, section 4. Moreover, whatever *649 the strength of the logic underlying Pacific Telephone — that only Congress may create rules with respect to the federal government’s Guarantee Clause obligation to the states— that logic is not easily applied in the context of one state’s violation of its duty under that clause by the enactment of a statute by initiative. If Oregon enacts a single statute or state constitutional provision in a manner that offends Oregon’s obligation under the principles of republican government, it is virtually inconceivable that Congress will respond with federal legislation to correct that sort of problem. In my view, the majority overreads Pacific Telephone to preclude litigation in state courts at least with respect to Oregon’s obligation under Article IV, section 4.

The precise nature of Oregon’s obligation under the republican Guarantee Clause is not crystal clear. We know less about what governmental forms and methods always are republican than those that we know clearly are not. For example, James Madison distinguished republicanism — pol-icymaking achieved through the deliberation of representative lawmakers — from direct democracy and rejected the latter. He said in The Federalist No. 10, at 133 (James Madison) (B. F. Wright, ed 1961):

“From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mis-chiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

*650 “A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. * *

“The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

“The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

íjí ‡ *

“The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the most easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to *651 invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number who concurrence is necessary.”

In The Federalist No. 14, at 150 (James Madison) (B. F. Wright, ed 1961), Madison underscored his preference for a republican form of government, rather than a direct democracy, over the large territory occupied by the Union:

“The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.”

In The Federalist No. 39, at 282 (James Madison) (B. F. Wright, ed 1961), Madison attempts to make the case that the government proposed in the new constitution is republican in form, rather than a direct democracy, by emphasizing that the President, members of Congress, and, indirectly, federal judges, derive their governmental powers directly or indirectly from the people, and adds:

“Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter.”

The point of those passages was summarized by the United States Supreme Court in In re Duncan, 139 US 449, 461 , 11 S Ct 573 , 35 L Ed 219 (1891):

*652 “By the Constitution, a republican form of government is guaranteed to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, National and State, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities.”

Justice Hans A. Linde, formerly of this court has drawn attention to the above-quoted passage from Duncan and the importance of deliberative lawmaking by the people’s representatives as an institutional protection, long predating the Fourteenth Amendment, against the oppression of political minorities:

“To its architects, republican government thus depended on deliberation by representative institutions not only for rational public policies; it also was the essential safeguard of civil and religious rights. The Guaranty Clause must be understood in a context without a nationwide bill of rights or judicial review. The Constitution contained very few rights against state lawmaking; republican processes were supposed to prevent majoritarian as well as autocratic abuse. The Guaranty Clause did not change meaning because the Fourteenth Amendment ninety years later created a new task for federal courts. The United States Supreme Court understood this when, a few years before Oregon adopted the initiative process, it linked the guarantee of republican government with protections against ‘the sudden impulses of mere majorities.’ ” Hans A. Linde, When Initiative Lawmaking Is Not “Republican Government”: The Campaign Against Homosexuality, 72 Or L Rev 19, 33 (1993) (emphasis added).

See also Catherine A. Rogers and David L. Faigman, “And To The Republic For Which It Stands”: Guaranteeing a Republican Form of Government, 23 Hastings Const LQ 1057 (1996); Hans A. Linde, Who is Responsible For Republican Government?, 65 Colo L Rev 709, 728 (1994) (arguing that state officials have a responsibility to govern by republican means, and that state courts, bound by the federal constitution as the *653 supreme law of the land, are not free to shift to other political branches the resolution of claims under the Guarantee Clause); Hans A. Linde, When Is Initiative Lawmaking Not “Republican Government”?, 17 Hastings Const LQ 159 (1989).

It is by no means certain that the manner of lawmaking observed by Oregon in respect to the enactment of Ballot Measure 11 violates the republican guarantee. It is a statute adopted through the initiative, and it controls certain sentencing decisions by state court judges. As a legislative direction that confines the authority of a state officer, its subject matter may pass muster despite the absence of either deliberation by representative lawmakers or the opportunity for a gubernatorial veto during the enactment process.

However, the enactment of Ballot Measure 11 occurred at the same time as the enactment of Ballot Measure 10, Oregon Constitution, Article IV, section 33, which provides:

“Notwithstanding the provisions of section 25 of this Article, a two-thirds vote of all the members elected to each house shall be necessary to pass a bill that reduces a criminal sentence approved by the people under section 1 of this Article.”

The effect of Ballot Measure 10 is also uncertain, but it appears to preclude a legislative alteration of Ballot Measure 11 except by the supermajority voting margin described in its text. The effect of that requirement on the question of the compliance of Ballot Measure 11 with the Guarantee Clause similarly is uncertain. However, the correct answer to these important questions is not to treat them as nonjusticiable. Even if Vanzant is able to establish a Guarantee Clause violation, the result of that determination is debatable. The articles by Justice Linde and Ms. Rogers and Professor Faig-man, cited above, sharply disagree regarding the proper resolution of a Guarantee Clause challenge to the result of initiative lawmaking. All of those questions deserve further focused briefing by the parties and perhaps further oral argument.

*654 The majority’s nonjusticiability determination sweeps those issues out of this court unanswered. Fortunately, the United States Supreme Court may be prepared to reconsider its previous conflicting statements about the justiciability of Guarantee Clause claims. See New York v. United States, 505 US 144, 184-85 , 112 S Ct 2408 , 120 L Ed 2d 120 (1992), in which the Court assumed that the Guarantee Clause dispute before it was justiciable, and cited Reynolds v. Sims, 377 US 533, 582 , 84 S Ct 1362 , 12 L Ed 2d 506 (1964) (“some questions raised under the Guarantee Clause are nonjusticiable”) (emphasis added), and several scholarly writings that urge the courts to address the merits of Guarantee Clause claims, at least in some circumstances. Pacific Telephone, Cochran, and Mountain Timber, on which the majority relies most heavily, predate Reynolds , yet the majority takes the view, in contrast to Reynolds , that all Guarantee Clause claims are nonjusticiable.

As New York demonstrates, litigants who seek to enforce the federal government’s Guarantee Clause obligation in state or federal court face a body of case law regarding justiciability that is less than clear and consistent. The Supreme Court cannot long continue to assume but not decide the justiciability of Guarantee Clause claims without further exacerbating the problem. However, setting aside that distinct question, the Court’s cases do not direct state appellate courts to treat as nonjusticiable a claim that, in violation of the Guarantee Clause, a state government has breached its own duty to enact its laws by the process that is the very definition of republican government: deliberative decisionmaking by the people’s chosen representatives. This court must address that question in order to decide whether the term of imprisonment for which relator advocates would violate the supreme law of the land. Unlike the United States Supreme Court, we have no authority to withhold a judicial decision and tender the issue to Congress for a political resolution.

To the many state courts that presently are considering, in concrete cases, a host of Guarantee Clause challenges to initiated laws adopted without the protection of deliberation by representative legislative bodies, the Court’s *655 allusion in New York that it may clarify its position on justi-ciability comes as welcome news. However, in regard to the particular claims asserted here, I do not agree that the Court’s existing case law imposes the barrier of nonjusticia-bility at the door of this court.

For the reasons discussed above, I concur in part and dissent in part.

Fadeley, J., joins in part 2 of this opinion.

The law of equity observes a similar rule, barring equitable relief where a plain, speedy, and adequate remedy at law is available. See Amer. Life Ins. Co. v. Stewart, 300 US 203, 214 , 57 S Ct 377, 380 , 81L Ed 2d 605 (1937), where the U. S. Supreme Court, in an analogous circumstance, said that an insurer could resort to equity where statements by courts in prior cases created a doubt about whether the insurer could obtain an adequate remedy at law:

“At least in such warnings there are possibilities of danger which a cautious insurer would not put aside as visionary. 'Where equity can give relief plaintiff ought not be compelled to speculate upon the chance of his obtaining relief at law.’ Davis v. Wakelee, 156 US 680, 688 [, 39 L Ed 578 , 15 S Ct 555 (1895)] .* * * A remedy at law does not exclude one in equity unless it is equally prompt and certain and in other ways efficient.” (Emphasis added.)

The decision in question, State of Oregon v. Elliott, 204 Or 460 , 277 P2d 754 (1955), was handed down by this court in December 1954. This court denied *641 reconsideration without opinion in January 1955, and the United States Supreme Court denied a petition for certiorari in May 1955. The Oregon Reports, following the prevailing practice in that era, identified the case’s year of decision as 1955 because that is the year in which the last decision occurred in any appellate court. The accurate year of decision in the case is 1954.

Carlson overruled Webster v. General Motors Accept., 267 Or 304 , 516 P2d 1275 (1973), and Wetzstein v. Hemstreet, 276 Or 623 , 555 P2d 1243 (1976).

I address the justiciability aspect of defendant judge’s Guarantee Clause argument because that argument offers an alternative basis for sustaining the judgment below. In dissenting from the majority’s justiciability ruling, I make no comment regarding defendant judge’s other alternative arguments, under state and federal law, offered to sustain the judgment.