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)
The Oregon Supreme Court may indeed be jumping into more questions surrounding constitutional separation of powers. On May 3, 2005, the Court allowed the petition of Portland General Electric Company for an alternative writ of mandamus, directed to Judge Paul Lipscomb of Marion County Circuit Court. Judge Lipscomb has allowed to go forward a class action against PGE that seeks refunds of utility rates allegedly collected under rate schedules that all sides agree were adopted in procedurally proper fashion by the Oregon Public Utility Commission. The plaintiffs allege that the rate schedules contained an unlawful element. The principal question in the mandamus proceeding is whether a court (the judicial branch) violates the Article 3 section 1 of the Oregon Constitution by entertaining a lawsuit that could effectively result in the retroactive adjustment of utility rates, a function that is given by statute to the OPUC, and then only in limited circumstances. The OPUC, created by the legislature and appointed by the Governor with Senate confirmation, has been said to act quasi-legislatively when it exercises its ratemaking powers.
Briefing is underway in the mandamus proceeding. It's Dreyer v. PGE, Supreme Court Nos. 52217 and 52284 (Marion County Nos. 03-C10639 and 03-C10640).
Posted by: Jim Westwood | June 06, 2005 at 10:40 AM