OrCon Law

Ninth Circuit Invites Oregon Courts to Reconsider Remedies Clause Jurisprudence

In Fields v. Legacy Health System, (9th Cir. June 22, 2005), the Ninth Circuit, affirming a decision of Judge King, held that ORS 30.020 (wrongful death statute of limitations) and ORS 12.110(4) (medical malpractice statute of limitations) do not violate Article I, section 10, of the Oregon Constitution.  The court also held that Oregon's statutory wrongful death scheme does not violate Article I, section 20, of the Oregon Constitution.  The court declined to certify the constitutional questions to the Oregon Supreme Court on the ground that certification was improper under W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 311 Or 361 (1991), because there is controlling precedent on point.

Nonetheless, Judge Gould, concurring in his own majority opinion (Judges Graber and Judge Berzon were the other judges on the panel), invited the Oregon Supreme Court to re-examine its conclusion that Oregon's wrongful death scheme does not violate Article I, section 10, given that the conclusion is predicated in part on the perhaps incorrect assumption that there was no right to recover for wrongful death at common law.  Judge Gould suggested that the Oregon court may want to bring Oregon jurisprudence into "alignment with the growing number of other jurisdictions that recognize a common law wrongful death action."

Thus, although the constitutionality of Oregon's wrongful death scheme would seem to be well-settled, Judge Gould has provided something of roadmap for re-opening the question.  I'm certain there will be litigants willing to follow it.

Convicted Felons and the Right to Bear Arms in Oregon

Last week, in State v. Hirsch, the Oregon Supreme Court confirmed that the state can, consistent with Article I, section 27, of the Oregon Constitution, bar state and federal felons from possessing firearms.  In so holding, the Court affirmed two decisions by the Court of Appeals:  State v. Friend and State v. Hirsch.

In the case, defendants challenged as facially overbroad ORS 166.270(1), which bars individuals convicted of state or federal felonies from possessing firearms.  Defendants contended that the statute was overbroad because it interfered with the right to bear arms protected by Article I, section 27.  Employing its established framework for constitutional construction in order to ascertain the intent of the drafters and apply that intent in modern circumstances, the Court held that Article I, section 27 does not protect the possession of firearms by felons.

The decision is striking for a couple of reasons.  First, the decision contextualizes Article I, section 27, through a detailed analysis of the right to bear arms from its apparent origin in England through its development in the United States at the state and federal levels.  Second -- and of broader implication -- the Court indicated its willingness to expand the class of Oregon constitutional provisions that can give rise to facial overbreadth challenges to statutes.  It acknowledged that it previously has recognized facial overbreadth challenges under Article I, section 8, and under Article I, section 26 in conjunction with Article I, section 8, and, without much discussion, concluded that an Article I, section 27 overbreadth challenge is cognizable. 

This development seems notable because it reflects another area in which Oregon constitutional law appears to diverge from federal constitutional law, under which facial overbreadth challenges are cognizable only in a very narrow category of cases - primarily First Amendment cases.  See, e.g., Sabri v. United States, 541 U.S. 600 (2004) (discouraging facial overbreadth challenges because "[n]ot only do they invite judgments on fact-poor records, but they entail a further departure from the norms of adjudication in federal courts: overbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand").  On the other hand, it is consistent with State v. Blocker, 291 Or 255, 261, 630 P2d 824 (1981), cited by the Court, in which the Court did entertain an overbreadth challenge under Article I, section 27.

Oregon Court of Appeals Reorganization

With the recent appointment of Judge Ellen Rosenblum to the Oregon Court of Appeals, the court is reshuffling its three-member departments.  Beginning July 1, 2005, the departments will consist of:

• Department 1:  Haselton, P.J., Armstrong, J., and Rosenblum, J.
• Department 2:  Landau, P.J., Schuman, J., and Ortega, J.
• Department 3:  Edmunds, P.J., Linder, J., and Wollheim, J.

In addition, the Motions Department will consist of Linder, P.J., Wollheim, J. and Schuman, J.

Gonzales v. Raich Decided Today

In a 6-3 decision authored by Justice Stevens, the U.S. Supreme Court has held that the Congress acted within its Commerce Clause authority when, in the federal Controlled Substances Act, it prohibited the use of marijuana, even when the use involves only marijuana cultivated intrastate in accordance with state law for solely medical use.  Justice Scalia authored a concurring opinion.  Chief Justice Rehnquist and Justices O'Connor and Thomas dissented, with Justice O'Connor authoring the principal dissent and Justice Thomas authoring his own sweeping dissent.  The opinions can be accessed here: Gonzales v. Raich, ___ U.S. ___ (No. 03-1454 June 6, 2005).

Oregon Separation of Powers Decision

Two weeks ago, the Oregon Supreme Court decided a question certified from the federal court:

"Whether § 2 of the 2003 amendments to ORS 30.905 (Sec. 2, Chap. 768, Or Laws 2003), which revives certain product liability causes of action for which a final judgment of dismissal has been entered prior to the effective date of the amendments, violates the separation of powers clause in Article VII, § 1, of the Oregon Constitution."   

The Court held it did not, and that it did not violate the separation of powers clause in Article III section 1 of the constitution, either.  The court compared this case favorably to earlier decisions in which it gave a significant amount of deference to the authority of the Legislative Assembly to retroactively extend statutes of limitation, even to cases that had been dismissed. 

The court said that it saw no violation of Article VII (Amended) which prohibits interference with the "irreducible constitutional task" of the judiciary - "adjudication." The action did not interfere with, or overturn an adjudication because the earlier decision in the earlier case was based only on the statute of limitations, not on the merits.

No vested rights arose from res judicata. “[B]ecause res judicata is a court-created rule, the court can determine the circumstances of its application; accordingly, a party cannot have a vested right in an expected application of the rule.”  (This quotation should probably not be read too broadly.  Finality of decisions has not yet been replaced with a softer rule, except in the limited circumstances of this case.  However, this may create a significant question when a lawyer is asked to give an opinion that involves the finality of a judgment, or when a title company insures the ownership of property that was the subject of litigation.  No doubt, the court will be asked to explain further.)

The broader prohibition found in Article III, is directed at whether a person or member of one department of government has exercised a function that the constitution commits to another department of government.  The court found that it could view the question not as the revival of an action, but as the creation of a new action, albeit a second action.  Thus, there could be no exercise of judicial power by the legislative branch arising from revival of a dismissed case. 

The court has recently explained other constitutional provisions, such as Article I section 10 (remedies) and appears poised to explain Article I section 8 (free speech).  The meaning of the separation of powers provisions may be shaping up as a new area of contest, especially after recent litigation that sought to direct the legislative branch to expend funds for desirable or essential services.  The courts did not have to reach the merits of that issue, so far.  Stay Tuned.

McFadden v Dryvit Systems, Inc., USDC CV-04-103-HA; SC S51901 (May 26, 2005)

Talking About Some Constitutions . . .

Welcome to OrCon Law, the official blog of the Oregon State Bar Constitutional Law Section, and, notably, the first blog by any OSB section.  Dedicated to all things constitutional, the blog will be a source of news of, commentary on, and debates about developments in Constitutional Law -- Oregon, federal, and, possibly, international.  For now, members of the executive committee of the section and I will author the blog.  Stay tuned in the coming weeks as we work to add content to the site and become versed in the art of operating a blog.