Art. VII (Am.), Section 1

NOTES OF DECISIONS

In general

The requirements of this section cannot be amended by statute. In re Piper, 271 Or 726, 534 P2d 159 (1975)

Requirement of Public Employe Collective Bargaining Act (ORS 243.650 to 243.782) for collective bargaining with juvenile court counselors does not interfere with adjudication of cases in violation of this section and is, therefore, constitutional. Circuit Court v. AFSCME, 295 Or 542, 669 P2d 314 (1983)

Statutory function of LUBA to conduct review of land use decisions through quasi-judicial proceedings does not violate doctrine of separation of powers. Wright v. KECH-TV, 300 Or 139, 707 P2d 1232 (1985)

Judge-disqualification provisions in ORS 14.250 and 14.260 (1) do not prevent circuit court from performing judicial function assigned to courts under this section. State ex rel Ray Wells, Inc., v. Hargreaves, 306 Or 610, 761 P2d 1306 (1988)

Because ORS 14.250 and 14.260 restrict rights of litigant and attorney to disqualify judge, statutory scheme to disqualify judge is not unconstitutional. State ex rel Kafoury v. Jones, 315 Or 201, 843 P2d 932 (1992)

Disciplinary action against judge is not interference with six-year term requirement. In re Schenck, 320 Or 94, 879 P2d 863 (1994)

Legislature’s retroactive application of limitation period amendments to revive actions previously dismissed by courts for lack of timeliness did not interfere with adjudicative authority of courts. McFadden v. Dryvit Systems, Inc., 338 Or 528, 112 P3d 1191 (2005); Fox v. Collins, 213 Or App 451, 162 P3d 998 (2007), Sup Ct review denied

Provision authorizing legislative creation of courts inferior to Supreme Court has been properly adopted by voter action. Carey v. Lincoln Loan Co., 342 Or 530, 157 P3d 775 (2007)

Jurisdiction of courts

Trial court has inherent discretionary power to set aside default judgment when the motion to do so is made within reasonable time and is supported by good and sufficient reasons. Bailey v. Steele, 263 Or 399, 502 P2d 586 (1972)

Supreme Court lacked jurisdiction to determine constitutionality of Oregon Mass Transportation Financing Act where petition, which alleged that Mass Transportation Financing Authority was unable or unwilling to proceed with the statutory program in absence of clear declaration that Act was constitutional, disclosed no constitutional controversy invoking court’s judicial authority under this section. In re Oregon Mass Transp. Fin. Auth., 284 Or 241, 586 P2d 784 (1978)

Establishment of the Land Use Board of Appeals did not violate doctrine of separation expressed in this section. Baxter v. Monmouth City Council, 51 Or App 853, 627 P2d 500 (1981), Sup Ct review denied

Requirement of ORS 261.615 that Court of Appeals hear and determine proceeding under ORS 261.605 to 261.630 within three months of time of taking of appeal does not, on its face, necessarily unduly burden or unduly interfere with the judiciary in the exercise of its judicial functions. State ex rel Emerald PUD v. Joseph, 292 Or 357, 640 P2d 1011 (1982)

Legislature may not provide party with standing to obtain judicial review where court’s opinion would not have practical effect on that party. Utsey v. Coos County, 176 Or App 524, 32 P3d 933 (2001)

Statutory requirement that state be listed as judgment creditor for share of punitive damages award does not impermissibly intrude on judicial functions. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

Judicial power does not extend to moot cases capable of repetition yet evading review. Yancy v. Shatzer, 337 Or 345, 97 P3d 1161 (2004)

LAW REVIEW CITATIONS: 51 OLR 644 (1972); 26 WLR 1019 (1990); 70 OLR 685, 855 (1991); 81 OLR 477 (2002); 87 OLR 717, 907 (2008)

Art. VII (Am.), Section 2

NOTES OF DECISIONS

Legislature is authorized to expand original jurisdiction of Supreme Court. Walsh Construction Co. v. Smith, 272 Or 398, 537 P2d 542 (1975)

Public importance cannot make nonjusticiable case justiciable, and thus [former] ORS 752.190, which provided that “justiciable controversy ripe for determination shall be deemed to exist in event complaint is filed” with respect to medical excess liability insurance, could not render case justiciable when in fact there was no controversy between parties. Oregon Medical Association v. Rawls, 281 Or 293, 574 P2d 1103 (1978)

Under “limited jurisdiction” district court is “inferior court” for purposes of mandamus, and therefore circuit court could issue writ of mandamus to it. Mattila v. Mason, 287 Or 235, 675 P2d 675 (1979)

Supreme Court declined to exercise mandamus jurisdiction to review financial impact estimate of statewide ballot measure where petitioners did not file petition in timely manner and complaint mirrored petitioner’s unsuccessful statutory argument. State ex rel Marbet v. Keisling, 314 Or 235, 838 P2d 585 (1992)

LAW REVIEW CITATIONS: 81 OLR 477 (2002)

Art. VII (Am.), Section 3

NOTES OF DECISIONS

In general

“Civil action” means all rights of action arising out of related aggregate of facts. Tenold v. Weyerhaeuser Co., 127 Or App 511, 873 P2d 413 (1994)

Limitation on amount of noneconomic damages recoverable under purely statutory cause of action does not amount to re-examination of jury’s factual determination of damages. Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995)

Limitation on amount of noneconomic damages recoverable under common law cause of action is unconstitutional reexamination of jury’s factual determination of damages. Lakin v. Senco Products, Inc., 144 Or App 52, 925 P2d 107 (1996), aff’d on other grounds, 329 Or 62, 987 P2d 463 (1999), clarified 329 Or 369, 987 P2d 476 (1999)

Statute providing for share of punitive damages award to be distributed to state does not reexamine jury determination of fact regarding punitive damages amount. DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002)

Where jury determined amount of damage to reach criminal verdict, order for restitution in different amount based on preponderance of evidence did not reexamine fact tried by jury. State v. Mendez, 211 Or App 311, 155 P3d 54 (2007), Sup Ct review denied

Jury trial

Affirmative defense to criminal charge may be withdrawn from jury’s consideration only if there is no evidence in record to support element of defense. State v. Brown, 306 Or 599, 761 P2d 1300 (1988)

Where only question is one of contract interpretation in suit to foreclose judicially on two trust deeds on real property and there are no questions of fact, defendants were not entitled to jury trial on their affirmative defense and counterclaim of breach of contract. Jackson County Federal Savings v. Urban Planning, 95 Or App 598, 771 P2d 629 (1989), Sup Ct review denied

Right to jury trial is not denied under this section by trial judge making different finding from jury on same fact common to lien foreclosure claim tried to court under ORS 87.060 (3) and contract claims tried to jury. Westwood Corp. v. Bowen, 108 Or App 310, 815 P2d 1282 (1991)

Particular issue in proceeding rather than nature of controversy between parties governs whether right to jury exists at proceeding. Salem Decorating v. Natl. Council on Comp. Ins., 116 Or App 166, 840 P2d 739 (1992), Sup Ct review denied

Evidence required to support verdict

Absent evidence that damages were awarded under influence of passion and prejudice, trial court may not set aside a verdict on such grounds. Foley v. Pittenger, 264 Or 310, 503 P2d 476 (1972)

Where jury could find from evidence, including defendant’s conviction six years earlier of kidnapping, rape and sodomy and defendant’s acts in trying to get victim to go with him and following her home, that he took substantial steps toward commission of kidnapping, rape and sodomy, there is sufficient evidence for court to enter conviction of attempted kidnapping, rape and sodomy. State v. Walters, 311 Or 80, 804 P2d 1164 (1991)

Prohibition against judicial review of jury factual determinations violates federal due process right where applied to prevent reduction of punitive damages. Honda Motor Co., Ltd. v. Oberg, 512 US 415, 114 S Ct 2331, 129 L Ed 2d 336 (1994)

Where action mixes claim for legal and equitable relief, judgment notwithstanding verdict may be upheld only if no evidence exists to support jury verdict. Wooton v. Viking Distributing Co., Inc., 136 Or App 56, 899 P2d 1219 (1995), Sup Ct review denied

Standard for post-verdict judicial review of jury award of punitive damages is whether award is within range that rational juror would be entitled to award in light of record as a whole. Oberg v. Honda Motor Co., 320 Or 544, 888 P2d 8 (1995), cert. denied, 517 US 1219; Parrott v. Carr Chevrolet, Inc., 331 Or 537, 17 P3d 473 (2001)

Range of punitive damages that rational juror is entitled to award depends on statutory and common law factors that jury is instructed on and permitted to consider for given claim. Oberg v. Honda Motor Co., 320 Or 544, 888 P2d 8 (1995), cert. denied, 517 US 1219

In order to resolve potentially conflicting federal and state constitutional requirements, court reviewing jury’s punitive damages award must resolve all disputes regarding facts and factual inferences in favor of jury’s verdict and then determine, on facts as jury was entitled to find them, whether award violates legal standard of gross excessiveness. Parrott v. Carr Chevrolet, Inc., 331 Or 537, 17 P3d 473 (2001)

Reviewing court must examine entire record to determine whether evidence supports verdict, regardless of theory or evidence emphasized at trial. State v. Goddard, 178 Or App 538, 37 P3d 1046 (2002), Sup Ct review denied

Affirmances notwithstanding error

Generally

Court may exercise its power to affirm, notwithstanding the error, if error was either so technical in nature or so unsubstantial that as practical matter there was little, if any, likelihood that erroneous evidence affected verdict. State v. Van Hooser, 11 Or App 146, 501 P2d 78 (1972), aff’d 266 Or 19, 511 P2d 359 (1973)

Court assumes prejudice has resulted from error unless record affirmatively reflects contrary. State v. Van Hooser, 11 Or App 146, 501 P2d 78 (1972), aff’d 266 Or 19, 511 P2d 359 (1973)

State has burden of proving lack of prejudice. State v. Van Hooser, 11 Or App 146, 501 P2d 78 (1972), aff’d 266 Or 19, 511 P2d 359 (1973)

If conditions of this section are met, judgment of court appealed from shall be affirmed for no discretion is permitted by mandate of this section. State v. Van Hooser, 266 Or 19, 511 P2d 359 (1973)

Error in consolidating trials is not presumptively prejudicial to defendant. State v. Parker, 317 Or 225, 855 P2d 636 (1993)

Single inquiry comprising constitutional test for affirmance despite error is whether there is little likelihood particular error affected verdict. State v. Davis, 336 Or 19, 77 P3d 1111 (2003)

Erroneous rulings on evidence

Where there was overwhelming evidence that defendant committed murder with which he was charged, error in admission of evidence of other crimes committed subsequent to the murder for which he was charged was harmless. State v. Olds, 35 Or App 305, 581 P2d 118 (1978), Sup Ct review denied, as modified by 40 Or App 117, 594 P2d 436 (1979)

Evidential error is not presumed prejudicial, and party alleging error must show error affected substantial rights. John Henry Company v. MacDonald, 92 Or App 659, 759 P2d 1126 (1988), Sup Ct review denied

Faulty instructions

Defendant’s admission of a matter as to which prejudicial error violating the privilege against self-incrimination had occurred cured this error. State v. Hunt, 15 Or App 76, 514 P2d 1363 (1973), Sup Ct review denied

Where defendant, charged with first degree burglary (ORS 164.225), presented evidence, which if believed by jury, would have supported conviction of no more than criminal trespass in second degree (ORS 164.245), failure to instruct on lesser offense was not harmless error. State v. Naylor, 291 Or 191, 629 P2d 1308 (1981)

Determination of case by appellate court

Reversals and modifications

Because evidence was uncontroverted and uncontested that truck was owned by defendant, and that driver was member of defendant’s family with ongoing permission to use truck, case was reversed in plaintiff’s favor. Heenan v. Perkins, 278 Or 583, 564 P2d 1354 (1976)

Where, because of scrivener’s error, judgment indicated defendant was guilty of Robbery III, rather than Robbery II, purported conviction for robbery in the third degree was vacated and judgment of conviction for robbery in second degree imposed. State v. McKinney, 69 Or App 583, 687 P2d 167 (1984)

Court of Appeals has authority to enter judgment that ought to have been made in habeas corpus action. Peacock v. Maass, 99 Or App 680, 783 P2d 1042 (1989)

De novo review does not give appellate court authority to increase judgment where party did not assert error. Taylor and Taylor, 124 Or App 581, 863 P2d 473 (1993), Sup Ct review denied

Court may direct judgment for lesser included offense where record demonstrates that trier of fact considered elements of lesser included offense and should have entered judgment for it. State v. Morales, 137 Or App 616, 905 P2d 256 (1995)

Correction: The permanent edition incorrectly cites Kinney v. General Construction Co., 248 Or 500, 435 P2d 297 (1968), under Article VI, Section 3. The case is correctly placed under “FURTHER CITATIONS,” Article VII (Amended), Section 3, in the permanent edition.

COMPLETED CITATIONS: State v. Dixon, 5 Or App 113, 481 P2d 629 (1971), Sup Ct review denied, cert. denied, 403 US 928 (1971); State v. Smith, 6 Or App 27, 487 P2d 90 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 7 WLJ 513 (1971); 31 WLR 789 (1995); 38 WLR 477 (2002)

Art. VII (Am.), Section 5

NOTES OF DECISIONS

In general

By entering a plea, without objection, in presence of counsel, defendant waived preliminary hearing specified in this section. State v. Sheppard, 35 Or App 69, 581 P2d 549 (1978), Sup Ct review denied

Jury trial

Where court instructed jury in personal injury action involving two defendants that same nine jurors need not agree as to liability of both defendants if one defendant was found not liable, verdict was valid. Davis v. Dumont, 52 Or App 73, 627 P2d 907 (1981), Sup Ct review denied

Indictment; information

Trial court committed error in amending indictment on its own motion. State v. Erbs, 9 Or App 95, 496 P2d 38 (1972)

Section, as amended, does not preclude charging of misdemeanor in circuit court by information or require indictment or waiver before information may be filed. State v. Jones, 30 Or App 873, 569 P2d 19 (1977), Sup Ct review denied

Where burglary indictment failed to allege particular crime intended, this was defect in substance and court erred in allowing state to file amended indictment without resubmitting case to grand jury. State v. Green, 44 Or App 253, 605 P2d 746 (1980)

Mandate that grand jurors be separate from panel of petit jurors prohibits only transfer of grand jurors to petit jury, not transfer of petit jurors to grand jury. State v. Gortmaker, 295 Or 505, 668 P2d 354 (1983)

Requirement that each grand juror be drawn by lot from whole jury panel does not require that all jurors be drawn at same time. State v. Odiorne, 68 Or App 891, 683 P2d 1380 (1984), Sup Ct review denied

State was required to resubmit indictment to grand jury when trial court, in instructions to jury, amended indictment from theft of money from bank to theft of certain checks of named individuals, and thus required defendant to defend against different theory of case. State v. Wilcox, 110 Or App 490, 823 P2d 1009 (1992)

In analyzing propriety of amendment to indictment, court considers: 1) whether amendment alters essential nature of indictment, alters availability of evidence or defense or adds theory, element or crime; 2) whether amendment prejudices right to notice of charges and protection against double jeopardy; 3) whether amendment itself is definite and certain; and 4) if amendment deletes allegations, whether remaining allegations state essential elements of offense. State v. Wimber, 315 Or 103, 843 P2d 424 (1992)

This section authorizes amendment of indictment as to form, but not as to substance. State v. Wimber, 315 Or 103, 843 P2d 424 (1992); State v. Woodson, 315 Or 314, 845 P2d 203 (1993)

Amendment that shortens time period stated in indictment to make alleged criminal conduct occur within statute of limitations changes form of indictment, not substance. State v. Wimber, 315 Or 103, 843 P2d 424 (1992)

Issuance of indictment by grand jury having fewer than seven members did not result in void conviction, so post-conviction relief was not available. Goodwin v. State of Oregon, 125 Or App 359, 866 P2d 466 (1993), Sup Ct review denied

Error in caption of charging instrument did not prevent finding defendant guilty on lesser charge recited in body of instrument. State v. Woodson, 315 Or 314, 845 P2d 203 (1993); State v. Trueax, 315 Or 396, 845 P2d 1291 (1993)

Requirement that motion to set aside indictment be filed prior to trial applies to challenge based on violation of constitutional provision requiring seven grand jurors. State v. Pratt, 316 Or 561, 853 P2d 827 (1993); State ex rel Schrunk v. Bonebrake, 318 Or 312, 865 P2d 1289 (1994)

Where time was not element of crime, instruction to jury that defendant was guilty if defendant committed crime at any time within statute of limitations period was permissible revision as to defect in form of indictment. State v. Long, 126 Or App 126, 868 P2d 4 (1994), aff’d 320 Or 361, 885 P2d 696 (1994)

Requirement of seven-member grand jury does not mean that seven members must be present to constitute quorum. State v. Conger, 319 Or 484, 878 P2d 1089 (1994)

Trial court may amend defect in indictment concerning matters not essential to charge and merely clerical, but may not amend defect concerning matters essential to show offense has been committed. State v. Long, 320 Or 361, 885 P2d 696 (1994), cert. denied, 514 US 1087

Amendment of indictment at trial is unconstitutional if amendment alters availability of defense; adds theory, element or crime; or prejudices defendant’s right to notice of charge. State v. Alben, 139 Or App 236, 911 P2d 1239 (1996), Sup Ct review denied

Speedy trial guarantee under section 10, Article I of Oregon Constitution, does not attach until defendant is charged by indictment or by alternative procedure set forth in this section. State v. Vasquez, 336 Or 598, 88 P3d 271 (2004)

Where court has dismissed charges in indictment, court may not reinstate charges by vacating order of dismissal. State v. Dinsmore, 200 Or App 432, 116 P3d 226 (2005), aff’d 342 Or 1, 147 P3d 1146 (2006)

Where information charges misdemeanor, trial court may allow substantive amendment of information to cure defect. State v. Kuznetsov, 215 Or App 533, 170 P3d 1130 (2007), aff’d 345 Or 479, 199 P3d 311 (2008)

Where information or indictment alleges unnecessary surplus facts, amendment that removes surplus without requiring defendant to defend against new allegations is correction of defect in form. State v. Pachmayr, 344 Or 482, 185 P3d 1103 (2008)

Amending indictment to include subcategory fact does not subject defendant to trial and conviction based on facts materially different from those presented to grand jury. State v. Williams, 237 Or App 377, 240 P3d 731 (2010), Sup Ct review denied

Fact that pertains only to sentencing is not matter that is essential to show that offense has been committed. State v. Williams, 237 Or App 377, 240 P3d 731 (2010), Sup Ct review denied

Indictment does not need to set forth sentencing enhancement factors. State v. Sanchez, 238 Or App 259, 242 P3d 692 (2010), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 644 (1972); 10 WLJ 155 (1974); 39 WLR 557 (2003)

Art. VII (Am.), Section 8

NOTES OF DECISIONS

The legislature attached no special meaning to the term “moral turpitude” other than that found in “case law.” In re Piper, 271 Or 726, 534 P2d 159 (1975)

Since there are no separate grounds for suspension under ORS 1.420 and 1.430, in recommending suspension the Commission of Judicial Fitness must prove the accused was guilty of one of the specific grounds for removal as stated in this section. In re Piper, 271 Or 726, 534 P2d 159 (1975)

Inherent power of the Supreme Court to reprimand judges for misconduct in office is not restrained by the limitations imposed by this section upon power to remove judges for misconduct. In re Piper, 271 Or 726, 534 P2d 159 (1975)

Suspension or disbarment of a judge as a member of the Oregon State Bar cannot require his removal as judge, although it would disqualify him from running for reelection as judge while suspended or disbarred. In re Piper, 271 Or 726, 534 P2d 159 (1975)

Continued work by the accused upon four decedents’ estates over a period of 10 years after becoming a circuit judge did not involve “moral turpitude.” In re Piper, 271 Or 726, 534 P2d 159 (1975)

Evidence of incompetence and misconduct was sufficient to require removal of District Court Judge from office. In re Field, 281 Or 623, 576 P2d 348 (1978)

Conduct of judge in giving false testimony constitutes misconduct which “bears a demonstrable relationship to the effective performance of his judicial duties” as provided by this section. In re Jordan, 290 Or 303, 622 P2d 303 (1981)

Provision relating to violations of rules of judicial conduct is not limited to rules governing conduct of judges while on the bench, but refers to the Code of Judicial Conduct, the scope of which extends to off-the-bench behavior. In re Roth, 293 Or 179, 645 P2d 1064 (1982)

This section governs removal or suspension of judge from judicial office, not disqualification from single case. State ex rel Oliver v. Crookham, 302 Or 533, 731 P2d 1018 (1987)

“Willful” action requires that judge have subjective knowledge that action was improper. In re Gustafson, 305 Or 655, 756 P2d 21 (1988)

Judge’s misconduct is willful where judge intends to take action contrary to rule and judge knows circumstances making rule applicable, whether or not judge knows that action violates rule. In re Gustafson, 305 Or 655, 756 P2d 21 (1988); In re Schenck, 318 Or 402, 870 P2d 185 (1994)

Court may discipline justice for violating Code of Judicial Conduct by personal activity directly soliciting campaign contributions. In re Fadeley, 310 Or 548, 802 P2d 31 (1990)

“Judge of any court” does not include municipal judge. State ex rel Kaino v. Commission on Judicial Fitness and Disability, 335 Or 633, 74 P3d 1080 (2003)

“Judge of any court” includes circuit court judges. State ex rel Galton v. Commission on Judicial Fitness and Disability, 337 Or 670, 103 P3d 637 (2004)

Art. VII (Orig.), Section 6

LAW REVIEW CITATIONS: 70 OLR 257 (1991)

Art. VII (Orig.), Section 9

NOTES OF DECISIONS

Under “limited jurisdiction” test district court is “inferior court” for purposes of mandamus, and therefore circuit court could issue writs to it. Mattila v. Mason, 287 Or 235, 598 P2d 675 (1979)

Private cause of action created through municipal ordinance is within jurisdiction of circuit court. Sims v. Besaw’s Cafe, 165 Or App 180, 997 P2d 201 (2000)

LAW REVIEW CITATIONS: 50 OLR 315 (1971); 70 OLR 257 (1991)

Art. VII (Orig.), Section 10

NOTES OF DECISIONS

Legislative action of 1878 validly eliminated requirement that Supreme Court judges be elected from districts. State ex rel McIntire v. Balmer, 336 Or 1, 75 P3d 894 (2003)

LAW REVIEW CITATIONS: 70 OLR 257 (1991)

Art. VII (Orig.), Section 15

ATTY. GEN. OPINIONS: Transfer of county clerk’s duties as clerk of circuit and district courts to trial court administrator, (1979) Vol 39, p 558