614 December 27, 2013 No. 65
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
IAN GEORGE VANORNUM,
Petitioner on Review.
(CC 200818082A; CA A142341; SC S060715)
En Banc
On review from the Court of Appeals.*
Argued and submitted June 4, 2013.
Neil F. Byl, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause for petitioner
on review. With him on the brief was Peter Gartlan, Chief
Defender.
Patrick M. Ebbett, Assistant Attorney General, Salem,
argued the cause for respondent on review. With him on the
brief were Mary H. Williams, Deputy Attorney General, and
Anna M. Joyce, Solicitor General.
Bridget Donegan, Larkins Vacura LLP, Portland, filed
a brief on behalf of amicus curiae Oregon Trial Lawyers
Association.
LINDER, J.
The decision of the Court of Appeals is reversed, and the
case is remanded to that court for further proceedings.
Landau, J., concurred and filed an opinion in which
Brewer, J., joined.
______________
*Appeal from Lane County Circuit Court, Jack A. Billings, Judge. 250 Or
App 693, 282 P3d 908 (2012).
Cite as 354 Or 614 (2013) 615
In an appeal from his conviction on a charge of resisting arrest, defendant
assigned error to (1) the trial court’s giving of Uniform Criminal Jury Instruction
(UCrJI) 1227, which defined “unreasonable physical force,” for purposes of defen-
dant’s theory of self-defense, in a way that was patently erroneous; and (2) the
trial court’s refusal to give a requested special jury instruction relevant to defen-
dant’s theory of self-defense. Defendant acknowledged having failed to preserve
the former assignment of error in the trial court, but he argued that the error
was apparent on the face of the record and urged the Court of Appeals to exer-
cise its discretion to consider it. The Court of Appeals refused to consider either
error, holding that it was precluded from doing so by ORCP 59 H, which states
that “a party may not obtain review on appeal” of an asserted error in giving or
failing to give an instruction unless the party objected in a specified manner.
The Court of Appeals explained that ORCP 59 H precluded its consideration of
defendant’s claim relating to UCrJI 1227 under a “plain error” theory, and also
precluded the court’s consideration of defendant’s other claim, because defendant
had not excepted to the trial court’s refusal to give the requested instruction with
the “particularity” that ORCP 59 H requires. Held: ORCP 59 H does not govern
preservation of instructional error for purposes of appellate court review or pre-
clude an appellate court from reviewing a claim of error pursuant to the court’s
traditional plain error doctrine; rather, the rule leaves the announcement and
development of preservation standards to the appellate courts.
The decision of the Court of Appeals is reversed and the case is remanded to
that court for further proceedings.
616 State v. Vanornum
LINDER, J.
Defendant appealed his conviction for resisting
arrest, ORS 162.315, raising, among other issues, two claims
that the trial court erred in instructing the jury. The Court
of Appeals concluded that it was barred from reviewing
those claims by ORCP 59 H, which states that “a party may
not obtain review on appeal” of an asserted error in giving
or failing to give an instruction unless the party objected
in a specified manner. We allowed defendant’s petition for
review to consider whether ORCP 59 H applies to and con-
trols appellate court review of claims of instructional error,
including claims of “plain error.” We hold that it does not.
We reverse and remand to the Court of Appeals for further
proceedings.
The relevant facts are primarily procedural. Police
arrested defendant for disorderly conduct during an anti-
pesticide demonstration. In the course of the arrest, defen-
dant struggled and failed to follow police officers’ instruc-
tions while they forcefully moved him across a street in an
“arm bar” hold, pushed him against a cement pillar and
then to the ground, and repeatedly tased him. Defendant
later was charged with resisting arrest, in addition to the
original disorderly conduct charge, and went to trial on both
charges. At trial, defendant raised a defense of self-defense
to the resisting arrest charge.
At the close of evidence, the trial court proposed a
set of jury instructions to the parties, including Uniform
Criminal Jury Instruction (UCrJI) 1227, which describes
when a person may use physical force for self-defense in
response to an officer’s use of unreasonable force in making
an arrest.1 The trial court asked defendant and the state
1
At the time, UCrJI 1227 stated:
“The defense of self-defense has been raised.
“A peace officer may use physical force on a person being arrested only
when and to the extent the officer reasonably believes it is necessary to make
an arrest. If a person being arrested physically opposes an arresting officer,
the officer may use reasonable force to overcome the opposition.
“If, however, the officer uses unreasonable physical force to arrest a per-
son who is offering no unlawful resistance, that person may use physical
force for self-defense from what the person reasonably believes to be the use
or imminent use of unlawful physical force by the officer. In defending, the
Cite as 354 Or 614 (2013) 617
if they had any objections to the proposed instructions.
Neither party objected to any of the trial court’s proposed
instructions, including UCrJI 1227. Defendant did, however,
request that the court give the following special instruction
defining “unreasonable physical force” for purposes of his
self-defense claim:
“When analyzing a claim of Self-Defense to the charge
of Resisting Arrest, the jury shall find that ‘unreasonable
physical force’ by the officer[s] making the arrest exists if
the defendant reasonably believed that the officers’ use of
force was disproportionate in the circumstances.
“If the jury finds that the defendant reasonably believed
that the officers’ use of force was disproportionate in the
circumstances, the jury must then decide whether the
defendant reasonably believed that his own use of force in
response was necessary in the circumstances.”
The trial court declined to give the requested
instruction, stating that the uniform jury instruction was
“sufficient.” The court gave the jury the set of instructions
that it had proposed, including UCrJI 1227. After the jury
was instructed, defendant formally excepted to the trial
court’s refusal to give his requested special instruction, but
he did not except (formally or otherwise) to the trial court
having given UCrJI 1227. The jury found defendant guilty
on both the disorderly conduct charge and the resisting
arrest charge, and defendant appealed.
Shortly after defendant initiated his appeal, this
court decided State v. Oliphant, 347 Or 175, 218 P3d 1281
(2009), which dealt with a number of uniform jury instruc-
tions, including UCrJI 1227, pertaining to the defense of
self-defense in the context of a prosecution for resisting
arrest. Oliphant held, among other things, that UCrJI
1227 was not a correct statement of an arrestee’s right of
self-defense. In particular, Oliphant faulted the instruction
person may only use that degree of force which he reasonably believes to be
necessary.
“The burden of proof is on the state to prove beyond a reasonable doubt
that this defense does not apply.”
UCrJI 1227 has since been revised consistently with this court’s decision in State
v. Oliphant, 347 Or 175, 218 P3d 1281 (2009). Throughout this opinion, when we
refer to UCrJI 1227, we mean the above-quoted version.
618 State v. Vanornum
because it focused on whether the police officer reasonably
believed that the degree of force he or she used was nec-
essary, when an arrestee’s right of self-defense depends
instead on whether the arrestee reasonably believes that
the officer is using an unlawful degree of force to make the
arrest. 347 Or at 193-94.
Relying on Oliphant, defendant in this case argued
on appeal that the trial court had erred in two ways: (1)
in refusing to give his requested special instruction (which
focused on whether defendant reasonably believed that
unlawful force was being used against him at the relevant
time); and (2) in giving the uniform instruction, UCrJI
1227. With regard to that second claim of error, defendant
acknowledged that he had not objected to the uniform
instruction. But he urged that, in light of Oliphant, giving
that instruction was “plain error,” and he asked the Court of
Appeals to exercise its discretion to correct that error. The
state argued against plain error review of the UCrJI 1227
claim and responded to defendant’s other claim of instruc-
tional error on the merits.2
Notably, the state did not raise ORCP 59 H as a
bar to appellate review of either of defendant’s claims. The
Court of Appeals raised that rule on its own initiative, not-
ing its independent duty to determine whether appellants
have adequately raised and preserved their present claims
before the trial court. State v. Vanornum, 250 Or App 693,
697, 282 P3d 908 (2012). The court began by observing that
ORCP 59 H(1) provides that a party “may not obtain review
on appeal of an asserted [instructional] error * * * unless the
party who seeks to appeal identified the asserted error to
the trial court.” Id. at 697. The court further observed that
ORCP 59 H, although otherwise a rule of civil procedure only,
applies to criminal actions as a result of ORS 136.330(2).3
Id. The Court of Appeals concluded that defendant’s claim
regarding UCrJI 1227 was not reviewable, even under the
2
Specifically, the state responded that defendant’s requested instruction was
an incorrect statement of the law and was not supported by the evidence.
3
ORS 136.330(2) provides: “ORCP 59 H applies to and regulates exceptions
in criminal actions.” The parties appear to agree that ORS 136.330(2) makes
ORCP 59 H applicable in criminal trials. They disagree as to whether it makes
ORCP 59 H applicable in the context of criminal appeals.
Cite as 354 Or 614 (2013) 619
plain error doctrine, because defendant had not raised the
claim at trial as ORCP 59 H(1) requires. Id. at 699. As to
defendant’s claim that the trial court had erred in refusing
to give his requested instruction on self-defense, the court
concluded that defendant had failed to identify the asserted
error to the trial court “with particularity,” as ORCP 59 H(2)
requires, thus precluding appellate review of that claim of
error as well. Id. at 698. Accordingly, the Court of Appeals
affirmed defendant’s conviction for resisting arrest without
reaching the merits of his claims.
Before this court, defendant argues that ORCP 59
H did not preclude the Court of Appeals from reviewing the
merits of his claims of instructional error. Defendant con-
tends that neither the Council on Court Procedures, which
drafted ORCP 59 H, nor the legislature, which enacted ORS
136.330(2) and, thus, made the rule applicable to “criminal
actions,” intended to dictate to appellate courts what claims
of error they may and may not review. Rather, in defendant’s
view, the rule was intended to describe to litigants and trial
courts what must be done to preserve instructional error for
review (or new trial motions). It follows, defendant argues,
that ORCP 59 H does not preclude plain error review and
does not bind appellate courts to any stricter preservation
standards than they otherwise would apply under their own
authority.4 Defendant concludes, finally, that, under the
preservation and plain error standards that this court has
developed, his claims of instructional error in this case are
reviewable.
As the parties recognize, the initial issue presented
by this case is one of interpretation—whether ORCP 59 H
dictates preservation standards for instructional error to
4
Defendant also suggests that, regardless of what ORCP 59 H means, any
effort by the Council on Court Procedures or the legislature to dictate preser-
vation requirements to appellate courts is ultra vires and without force. That
presents a potentially interesting issue, especially with respect to “plain error”
review. See, e.g., State v. Laundy, 103 Or 503, 510, 206 P 290 (1922) (on rehear-
ing) (by rule, court “reserves the right” to review plain error in furtherance of
justice; court retains such authority at least in absence of “an express statute
prohibiting it” from reviewing plain errors). And for reasons that the concurrence
points out, the council’s (as opposed to the legislature’s) authority to interfere
with plain error review would be particularly problematic. See generally 354 Or
at ___ (Landau, J., concurring). Because we agree with defendant’s interpreta-
tion of the rule, however, we need not consider defendant’s ultra vires argument.
620 State v. Vanornum
appellate courts, or instead, instructs litigants and trial
courts on the procedure in the trial court for ensuring pres-
ervation of such claims. Because ORCP 59 H was promul-
gated by the Council on Court Procedures and accepted by
the legislature without amendment, the intent of the council
governs the interpretation of the rule.5 A. G. v. Guitron, 351
Or 465, 479, 268 P3d 589 (2011); Waddill v. Anchor Hocking,
Inc., 330 Or 376, 382 n 2, 8 P3d 200 (2000), adh’d to on recons,
331 Or 595, 18 P3d 1096 (2001). To discern that intent, we
use an analytical process that parallels the one we use to
interpret statutes—that is, we examine text, context, and,
if helpful, legislative history. Guitron, 351 Or at 479.
ORCP 59 H is part of a rule that deals with instruc-
tions to and deliberations by juries. As relevant here, it
provides:
“(1) * * A party may not obtain review on appeal of
*
an asserted error by a trial court in submitting or refus-
ing to submit a statement of issues to a jury pursuant to
subsection C (2) of this rule or in giving or refusing to
give an instruction to a jury unless the party who seeks to
appeal identified the asserted error to the trial court and
made a notation of exception immediately after the court
instructed the jury.
“(2) * * A party shall state with particularity any
*
point of exception to the trial judge. A party shall make
a notation of exception either orally on the record or in a
writing filed with the court.”
The initial question that this case raises—whether ORCP 59
H controls appellate court review of claims of instructional
error—arises because subsection (1) declares that “a party
may not obtain review on appeal” of a trial court’s asserted
error in giving or refusing to give a jury instruction unless
the party identified the asserted error to the trial court and
made a timely notation of exception.
The state contends that the phrase “a party may
not obtain review on appeal” can be read to mean only one
5
Under ORS 1.735(1), all rules of civil procedure and amendments adopted
by the council must be submitted to the Legislative Assembly “at the beginning
of each odd-numbered year regular session and shall go into effect on January 1
following the close of that session * * *. The Legislative Assembly may, by statute,
amend, repeal or supplement any of the rules.”
Cite as 354 Or 614 (2013) 621
thing—that an appellate court is barred from reviewing an
instructional error if a party, at trial, did not identify and
take exception to the error as the rule requires. Defendant,
urges, however that the wording is susceptible to an alter-
native meaning. According to defendant, because the oper-
ative words are directed at trial litigants (“a party”) and
not at the appellate courts, the rule can plausibly be under-
stood to identify a procedure for objecting in the trial court
to instructional error and to warn litigants that they “may
not obtain review” of the error if they fail to follow that pro-
cedure. Under that reading of the rule, it remains for the
appellate courts to decide what is required to preserve a
claim of instructional error for review.
Considering only the words of the rule itself, the
state’s reading seems the most natural one. But when the
rule is read in context, rather than in isolation, defendant’s
reading takes on more force. Of particular importance is
ORS 1.735(1), which generally directs the Council on Court
Procedures to promulgate the rules governing “pleading,
practice and procedure * * in all civil proceedings in all
*
courts of the state,” i.e., the Oregon Rules of Civil Procedure.
The statute makes clear that the “courts of the state” to
which it refers are trial courts, not appellate courts. It does
so by explicitly declaring that “[t]he rules authorized by this
section do not include * * rules of appellate procedure.” Id.
*
(emphases added).
Along similar lines, ORCP 1 A, the first rule in the
Oregon Rules of Civil Procedure, states:
“These rules govern procedure and practice in all circuit
courts of this state, except in the small claims department
of the circuit courts, for all civil actions and special pro-
ceedings * *. These rules shall also govern practice and
*
procedure in all civil actions and special proceedings * * *
for all other courts of this state to the extent they are made
applicable to such courts by rule or statute.”
(Emphases added.) By their express terms, ORS 1.735(1) and
ORCP 1 A reflect the legislature’s and the council’s intent
that, in general, an Oregon Rule of Civil Procedure will not
govern procedure in appellate courts unless, as set forth in
ORCP 1 A, a statute or rule specifically declares that the
622 State v. Vanornum
rule applies to those courts. See, e.g., McCarthy v. Oregon
Freeze Dry, Inc., 327 Or 84, 89-90, 957 P2d 1200 (1998) (in
light of ORS 1.735, attorney fee provisions of ORCP 68, “can-
not be read plausibly to govern a claim for attorney fees in
an appellate court”); Lincoln Loan Co. v. City of Portland,
335 Or 105, 110-11, 59 P3d 521 (2002) (in light of ORS 1.735
and ORCP 1, term “judgment” in ORCP 71 B refers to cir-
cuit court judgments only, not appellate judgments).
The state argues, however, that ORCP 59 H is such
a rule—i.e., one specifically “made applicable” to appellate
courts “by rule or statute”—and thus is an exception to the
rules’ usual narrow scope of application. In that regard, the
state first relies on the fact that ORCP 59 H itself refers to
proceedings on appeal by providing that a party who fails
to except to an instruction in the required manner “may not
obtain review on appeal.” As we have explained, however,
that portion of the rule expressly refers to parties and what
they may expect, rather than to courts and what they may
or may not do. Because of that wording choice, the rule can
be understood in more than one way. The text of the rule
alone does not resolve whether ORCP 59 H is directed to
trial proceedings only or whether it also controls appellate
court review of claims of instructional error.
The state also points to ORS 136.330(2), which
provides that “ORCP 59 H applies to and regulates excep-
tions in criminal actions.” The state urges that, because
ORS 136.330(2) makes ORCP 59 H applicable to “criminal
actions,” and because the legislature at times uses the term
“criminal action” in a way that subsumes appellate as well
as trial court proceedings, ORS 136.330(2) is a statute by
which ORCP 59 H is “made applicable” to appellate courts
within the meaning of ORCP 1 A.
ORCP 1 A, however, is more exacting in what it
requires. Textually, it distinguishes between the courts in
which the rules apply (“circuit courts,” “other courts to the
extent they are made applicable * * * by rule or statute”) and
the types of cases in which the rules apply (“civil actions and
special proceedings”). ORCP 1 A thus requires more than
a generic reference to “criminal actions” to make an ORCP
applicable to appellate courts. Instead, it requires a rule or
Cite as 354 Or 614 (2013) 623
statute to expressly make a particular ORCP applicable to
the appellate courts. ORS 136.330(2) does not do that.
We therefore conclude that ORS 1.735(1) and ORCP
1 A provide general contextual support for defendant’s view
that ORCP 59 H does not impose requirements that con-
trol whether or when a claim of instructional error is pre-
served for appellate review. We further conclude that ORS
136.330(2) does not point in the opposite direction. We,
therefore, turn to legislative history to see if it provides
additional or different insight into the meaning of ORCP 59
H or, for that matter, the meaning of ORS 136.330(2).6
Because ORCP 59 H became effective without leg-
islative amendment, the relevant legislative history is that
of the rule’s promulgation by the council. Guitron, 351 Or at
479-83. In particular, we look to the meeting minutes, com-
mittee reports, drafts, and commentary collected and pub-
lished by the council in Legislative History Relating to the
Promulgation of the Oregon Rules of Civil Procedure (1979)
and similar publications. See Guitron, 351 Or at 480 n 13
(identifying sources of relevant history).
The original version of ORCP 59 H that the coun-
cil promulgated in 1978 differed from the current version
primarily in that its requirements of pointing out a claim
of instructional error to the trial court and noting an excep-
tion after the jury has been instructed applied only to the
instructions that the trial court gave, not to those that the
trial court refused to give. See Beall Transport Equipment
Co. v. Southern Pacific, 335 Or 130, 139-41, 60 P3d 530
6
The parties also cite prior case law as context for us to consider. See, e.g.,
State v. Toevs, 327 Or 525, 532, 964 P2d 1007 (1998) (in interpreting statute,
court examines text and context, including court’s prior interpretations of the
same statute or earlier versions of that statute). We have reviewed those cases
and conclude that they shed no contextual light on whether ORCP 59 H controls
preservation for purposes of appellate review. Cases citing statutory predecessors
to ORCP 59 H are not necessarily helpful, because they were not rules adopted by
the council with the accompanying context of ORS 1.735(1) and ORCP 1 A which
limit the council’s authority generally to adopting rules for trial courts. Likewise,
cases citing ORCP 59 H itself are not helpful because, by definition, they post-
date the rule’s promulgation and would not have informed the council’s under-
standing of the rule. In all events, the issue raised in this case—whether ORCP
59 H governs when appellate courts can review claims of instructional error—
was not raised in those cases, and this court has not before directly addressed
and authoritatively resolved it.
624 State v. Vanornum
(2002) (discussing original rule; observing that neither it
nor court’s preservation jurisprudence required exception to
trial court’s refusal to give instruction). In much the same
wording of former ORS 17.510 (1979) and former ORS 17.515
(1979), which it replaced, ORCP 59 H provided:
“No statement of issues submitted to the jury pursuant
to subsection C (2) of this rule and no instruction given to a
jury shall be subject to review upon appeal unless its error,
if any, was pointed out to the judge who gave it and unless
a notation of an exception is made immediately after the
court instructs the jury. Any point of an exception shall be
particularly stated and taken down by the reporter or deliv-
ered in writing to the judge. It shall be unnecessary to note
an exception in court to any other ruling made. All adverse
rulings, including failure to give a requested instruction,
or a requested statement of issues, except those contained
in instructions and statements of issues given, shall import
an exception in favor of the party against whom the ruling
was made.”
That wording was proposed to the council in October
1978 by Professor Fred Merrill, the council’s Executive
Director at the time. After setting out the proposed wording,
Professor Merrill explained that he had reviewed the case
law bearing on the requirements of the statutes from which
the wording had been borrowed and had determined that it
provided inconsistent guidance as to whether a request to
give an instruction preserved a claim that the trial court
erred in giving a different instruction on the same point.
Professor Merrill explained:
“I did not change the rule draft to try to deal with the
cases. I cannot figure out exactly what the applicable rule
is supposed to be. Also, the cases cited * * are related to
*
appellate procedure. The exception rule is apparently put
in our rules because it specifies what should be done as part
of trial procedure and the taking of an exception might pre-
serve a right of new trial. We cannot, however, control what
the appellate court will consider as error.”
Memorandum, Council on Court Procedures, Oct 30, 1978,
11. Later, when the council retained the same wording
in its final draft of ORCP 59 H, it included the following
commentary, which expressly notes that the rule is directed
Cite as 354 Or 614 (2013) 625
to procedures in trial courts and does not bind appellate
courts:
“Section 59 H is based on ORS 17.510 and 17.515(1)
and (2). The section is included as it does describe conduct
in the trial court. It also provides a basis for new trial in
ORCP 64 B(7). The Council cannot make rules of appellate
procedure and the question of preserving error on appeal is
one determined by appellate courts.”
Comment, Final Draft, Proposed Oregon Rules of Civil
Procedure, Nov 24, 1978, 179-80.
The council presented the Proposed Oregon Rules
of Civil Procedure, including ORCP 59 H, to the legislature
in 1979. Suggested amendments to the proposed rules were
submitted to the legislature in House Bill (HB) 3131 (1979).
No amendments to ORCP 59 H were proposed in HB 3131.
The bill did, however, contain a proposal to amend ORS
136.330(2) to refer to ORCP 59 H rather than to its stat-
utory predecessors. Specifically, it proposed to amend that
statute to provide: “ORCP 59 H applies to and regulates
exceptions in criminal actions.”7
During the legislature’s consideration of HB 3131,
members of the council repeatedly described to the leg-
islature the limited application of the rules generally and
of ORCP 59 H in particular. For example, the Chair of the
Council, Donald McEwan, explained to the Joint Committee
on the Judiciary that “the council has no jurisdiction to pro-
mulgate * * rules of appellate procedure.” Minutes, Joint
*
House-Senate Committee on the Judiciary, Feb 6, 1979, 1.
Professor Merrill similarly explained to the committee that
“the only state courts the Council can make rules for are
state trial courts.” Minutes, Joint House-Senate Committee
on the Judiciary, Feb 15, 1979, 2.
The council submitted a summary of the proposed
rules to the joint committee, which described ORCP 59 H in
the following terms:
“Section 59 H is a simplified redraft of the material con-
tained in ORS 17.505 through 17.515. An exception is the
7
The version of the statute that HB 3131 amended had provided: “ORS 17.505
to 17.515 apply to and regulate exceptions in criminal actions.” ORS 136.330(2)
(1977).
626 State v. Vanornum
procedure for objecting to the content of instructions; gen-
erally the exception should be made promptly and clearly
to give the trial judge an opportunity to correct erroneous
instructions and avoid appeals. * * * The appealability of an
improper instruction given without objection, after a cor-
rect instruction is requested, is not clear in Oregon. This
rule cannot control appellate procedure, but attempts to
clarify the exception procedure which takes place in the
trial court and relates to availability of new trial under
Rule 64 B(7).”
Exhibit 22, Summary of Rules 50-64, Joint House-Senate
Committee on the Judiciary, Mar 15, 1979, p 5. Professor
Merrill emphasized the same point—that ORCP 59 H would
not bind the appellate courts—in his testimony to the joint
committee:
“The overlay on [ORCP 59 H] is that the Council on
Court Procedures does not make rules of appellate proce-
dure and can’t tell the * * * Supreme Court under what cir-
cumstances and what can be the basis of appealable error.
“* * * * *
“This rule is in here because we * * * have to specify the
procedure to be followed in the trial court. And also the
question of raising an exception bears upon the availability
of a new trial under Rule 64, so it has to be covered in our
rules.”
Tape Recording, Joint House-Senate Committee on the
Judiciary, Mar 15, 1979, Tape 22, Side 2.
Legislative history is rarely so on point and rarely
so unequivocal. When the council adopted ORCP 59 H, it
understood and intended that the rule would specify the
procedure for objecting to instructional error in trial courts,
and that the rule’s admonition that an appellant “may not
obtain review on appeal” in the absence of a proper excep-
tion did not and could not control the authority of appellate
courts with respect to preservation. That understanding
was placed before the legislature at the same time that the
legislature amended ORS 136.330(2) to make ORCP 59 H
applicable to “criminal actions.” The history thus implicitly
refutes the suggestion that, in enacting ORS 136.330(2), the
legislature intended ORCP 59 H to control appellate court
review in criminal appeals.
Cite as 354 Or 614 (2013) 627
The state nevertheless contends that the views
expressed in the material quoted above are unpersuasive
because “those who subsequently amended ORCP 59 H rec-
ognized that it applies to and governs the scope of appel-
late review.” The state refers to the fact that the rule was
amended in 2004, primarily in response to concerns raised
by one council member—then Oregon Supreme Court Justice
Robert Durham. Justice Durham was concerned with the
original rule’s statement that “failure to give a requested
instruction * * shall import an exception in favor of the
*
party against whom the ruling was made.” He, therefore,
suggested that the rule be amended to remove that state-
ment and add a requirement that a party assigning error to
a refusal to give a requested instruction first have apprised
the trial court of the reasoning and authority supporting the
requested instruction. Justice Durham expressed those con-
cerns to the council in a letter to the council’s chair, Kathryn
Clarke. In the letter, Justice Durham acknowledged that the
concept of an automatically implied exception that he found
objectionable might be read as
“pertain[ing] only to the conduct of the parties in the trial
court, and does not alter the obligation of a party on appeal
to demonstrate proper preservation, including a suitable
explanation of the asserted error to the trial court, of a rul-
ing assigned as error on appeal.
“[But t]he problem with th[at] construction is that,
despite its facial appeal (because it would require no rule
amendment), it does not account for the reference to the
bar to appellate review that appears in the first sentence of
ORCP 59 H.”
Letter, Justice Robert D. Durham to Council Chair Kathryn
H. Clarke, Council on Court Procedures, Oct 15, 2003, 3.
The state makes no claim that the 2004 amend-
ments to ORCP 59 H reflected a change in the council’s
understanding of the rule’s effect in the appellate context.8
8
Indeed, the actual changes that the council made to the rule would not
support such a claim. Although the 2004 amendment significantly modified the
wording of the entire rule, the only apparent substantive change was to extend
the rule to requested instructions that a trial court refused to give. In other
words, as amended, the rule was changed so that a party had to identify the error
and note an exception to the trial court’s refusal to give a requested instruction
628 State v. Vanornum
Rather, the state appears to offer the history of those amend-
ments to show only that one council member agreed with
the state’s view of the plain meaning of the text of ORCP
59 H. The state’s point is a particularly limited one. It is
not that the 2004 legislative history is dispositive. It is only
that, “given the plain text of the rule, the comments of early
drafters [that support defendant’s interpretation of ORCP
59 H] can be given no weight.”
But, as we have already discussed, the “plain text”
of ORCP 59 H is not so plain. It is, in fact, susceptible to the
interpretation that defendant urges (and that, to all appear-
ances, the original drafters of the rule intended)—viz., that
the rule’s requirements for preserving instructional error
are directed to trial litigants and trial courts and do not
bind appellate courts or control what they may or may not
review. The fact that Justice Durham may have expressed
some disagreement with that understanding when ORCP 59
H was amended in 2004 does not persuade us that it is incor-
rect. Nor does it persuade us that we should disregard or
otherwise give no weight to the history of the promulgation
of the original rule. That history is illuminating and shows
that, in promulgating ORCP 59 H, the council understood
and intended that the rule would not control appellate court
review and that the legislature did not alter that intended
meaning when it expanded the rule’s scope of application to
include “criminal actions.”
The text of ORCP 59 H, its relevant context, and
its history all lead us to conclude that that rule was not
intended to govern preservation of instructional error for
purposes of appellate court review or to preclude appellate
courts from reaching plain errors. Instead, in promulgating
ORCP 59 H, the council left the announcement and develop-
ment of those rules to the appellate courts. When the legis-
lature simultaneously amended ORS 136.330(2) to extend
ORCP 59 H to criminal cases generally, it did so without
any understanding that the rule would apply differently to
those cases. As a result, ORCP 59 H, as cross-referenced
with particularity, just as the party must do to preserve the error in the instruc-
tions that the trial court opts to give. With respect to whether the rule applies to
or controls review by appellate courts, the wording of the 2004 amendment was
as obscure as the wording it replaced.
Cite as 354 Or 614 (2013) 629
in that statute, has no broader scope or different meaning
than the rule standing alone. Necessarily, then, in crimi-
nal cases as well as civil ones, ORCP 59 H does not govern
preservation of instructional error or preclude an appellate
court from reviewing a claim of error pursuant to the court’s
traditional plain error doctrine.
With that conclusion in place, we turn to defendant’s
two claims of instructional error in this case. The first is
defendant’s claim that the trial court committed plain error
by giving UCrJI 1227, which this court in Oliphant deter-
mined was not a correct statement of the law. In the Court
of Appeals, defendant asked the court to exercise its dis-
cretion to review the error as “plain error” in accordance
with ORAP 5.45(1) and the plain error doctrine. The Court
of Appeals declined to do so, reasoning that, under ORCP
59 H(1), it could not. As we have determined, however, that
reasoning was incorrect.
The state argues, however, that, even if ORCP 59 H
does not bar appellate court plain error review, such plain
error review is not available in this instance because the
claimed error does not qualify as “plain.” For an error to
be plain error, it must be an error of law, obvious and not
reasonably in dispute, and apparent on the record with-
out requiring the court to choose among competing infer-
ences. See, e.g., State v. Ramirez, 343 Or 505, 511-12, 173
P3d 817 (2007), amended on recons, 344 Or 195, 179 P3d 673
(2008) (stating requirements for plain error review); State v.
Gornick, 340 Or 160, 166, 130 P3d 780 (2006) (same); Ailes v.
Portland Meadows, 312 Or 376, 381-82, 823 P2d 956 (1991)
(same). The parties appear to agree that the claimed error
in instructing the jury in accordance with UCrJI 1227 is one
of law that appears on the record. They disagree, however,
whether the claimed error was obvious and not reasonably
in dispute.
Defendant relies on this court’s holding in Oliphant,
that UCrJI 1227 “impermissibly shifts the focus of the
jury’s deliberations on a defendant’s self-defense claim from
what the defendant reasonably believes to what the officer
believes.” 347 Or at 198. According to defendant, giving
the instruction is error in any case where self-defense to
630 State v. Vanornum
resisting arrest is raised. The state responds by pointing
out that the trial court in Oliphant had given the jury sev-
eral instructions in addition to UCrJI 1227 that focused on
the police officer’s beliefs. See id. at 186-87 (quoting instruc-
tions). The state suggests that, because the instructions in
this case did not involve that sort of repetition and did not
involve the other instructional errors that Oliphant involved,
giving UCrJI 1227 in this case was not error. The other
instructions given in Oliphant, however, played no part in
our assessment of UCrJI 1227. Rather, because of the possi-
bility that the instruction might have been given again on
retrial in Oliphant, we took the extra step of pointing out
that UCrJI 1227 is “incorrect and should not be included in
the instructions to the jury during the trial on remand.” Id.
at 198. That portion of our decision in Oliphant is dispositive
here. In this case, the content of other instructions given
or not given may bear on whether giving UCrJI 1227 was
prejudicial. But the fact that the instruction is an incorrect
statement of the law, and thus was error to give under our
decision in Oliphant, is beyond reasonable dispute.9
Determining that a claimed error was error is only
half of a two-part inquiry, however. The second step is for
the reviewing court to determine whether to exercise its
discretion to review the error. Ailes, 312 Or at 382. That
discretion entails making a prudential call that takes into
account an array of considerations, such as the competing
interests of the parties, the nature of the case, the gravity of
the error, and the ends of justice in the particular case. See
id. at 382 n 6 (listing considerations for appellate courts to
consider). Ultimately, a decision to review a plain error is one
to be made with the “utmost caution” because such review
9
In concluding that the instruction was error to give under Oliphant, we
limit our consideration to the issue that the parties have disputed—whether
Oliphant disapproved of the instruction generally or only in the context of the
instructions given in that case. Because Oliphant was this court’s decision, we
are in a better position to resolve that issue than would be the Court of Appeals.
The state has not argued that, in determining whether the error was obvious and
beyond reasonable dispute, a reviewing court should consider the law as of the
time the trial court made its decision, as opposed to as of the time that the case is
on direct appeal. The Court of Appeals has concluded that plain error should be
determined by reference to the law existing as of the time of the appeal. State v.
Jury, 185 Or App 132, 138-39, 57 P3d 970 (2002), rev den 335 Or 504 (2003). This
court has not previously taken up that question, and has not been asked to do so
in this case.
Cite as 354 Or 614 (2013) 631
undercuts the policies served by the preservation doctrine.
Id. at 382. Although this court could undertake that discre-
tionary assessment, the Court of Appeals is the error-correct-
ing tribunal to which claims of error and plain error may be
presented as a matter of right. The nature of discretion is
that it is best exercised by the entity principally charged with
its exercise. In this instance, that is the Court of Appeals.
We, therefore, conclude that the appropriate disposition is
to remand to the Court of Appeals to exercise its discretion
whether to consider defendant’s claim of plain error.
Defendant’s remaining claim of error is that the
trial court incorrectly refused to give his requested instruc-
tion on the meaning of “unreasonable physical force.” As we
have described, the Court of Appeals declined to consider
that claim because it concluded that defendant had not pre-
served his objection to the failure to give the instruction with
the “particularity” required by ORCP 59 H(2). As we have
determined, however, ORCP 59 H does not set the standard
by which the appellate courts will determine if a claim of
instructional error is preserved. Instead, preservation must
be determined by this court’s preservation jurisprudence.10
Because we already have determined that we should
remand this case to the Court of Appeals on defendant’s
request for plain error review, it is appropriate to remand
on defendant’s remaining claim of error as well. Depending
on whether the Court of Appeals exercises its discretion to
reach defendant’s claim of plain error, and depending on
any disposition that might flow from that decision, the court
may determine that it need not reach that claim.
If the Court of Appeals does reach the claim, the
issue will be a fact-bound one appropriate for the Court of
Appeals’ resolution in the first instance. There is no dispute
in this case about the core preservation principles that apply
under our case law or the policies they serve. See, e.g., Davis
v. O’Brien, 320 Or 729, 737, 891 P2d 1307 (1995) (discussing
10
There is some suggestion in the legislative history of ORCP 59 H(2) that
the Council of Court Procedures intended the particularity requirement to reflect
this court’s preservation case law. Whether or not that was the council’s intent,
the result is the same: Decisions in appellate courts regarding whether a claim
of instructional error has been preserved for review are controlled by this court’s
preservation jurisprudence.
632 State v. Vanornum
policies); Jett v. Ford Motor Co., 335 Or 493, 502-03, 72 P3d
71 (2003) (same). Those policies ensure that trial courts
have an opportunity to understand and correct their own
possible errors and that the parties are not “taken by sur-
prise, misled, or denied opportunities to meet an argument.”
State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011) (quot-
ing Davis, 320 Or at 737); see also State ex rel Juv. Dept. v.
S. P., 346 Or 592, 604, 215 P3d 847 (2009) (describing same
policies). Although the preservation requirement “is not
something that can be explained by a neat verbal formula,”
Walker, 350 Or at 550, the essential goal is straightforward:
“[A] party must provide the trial court with an explanation
of his or her objection that is specific enough to ensure that
the court can identify its alleged error with enough clarity
to permit it to consider and correct the error immediately.”
State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000). On remand,
if the Court of Appeals reaches this claim of error, it should
resolve the preservation issue based on the principles
announced in our case law, not based on ORCP 59 H(1). 11
The decision of the Court of Appeals is reversed, and
the case is remanded to that court for further proceedings.
LANDAU, J., concurring.
I agree with the court’s opinion in its entirety. I
write separately to address an issue that the parties did not
raise, but that nevertheless made a difference in the outcome
11
In its opinion, the Court of Appeals noted that the particularity require-
ment of ORCP 59 H(2) is “congruent with the more general directive” in Wyatt,
331 Or at 343, that objections be stated with enough specificity to allow the trial
court to “consider an correct the error immediately.” Vanornun, 250 Or App at
698. The court’s analysis, however, focused on whether defendant’s argument to
the trial court met the “particularity” requirement of ORCP 59 H(2) and the
requirement in ORCP 59 H(1) that the appellant “identif[y] the asserted error.”
Id. at 698-99. ORCP 59 H(1) applies to an objection to a refusal to give an instruc-
tion as well as to an instruction given, without distinguishing between them.
In practice, however, there is often an important difference. For example, the
terms of a requested, but refused, instruction may sometimes go a long way to
putting a trial court on notice of the deficiency in the trial court’s instructions if
the requested instruction is not given. See , e.g., Roberts v. Mitchell Bros., 289 Or
119, 127-31, 611 P2d 297 (1980) (party adequately preserved error by request-
ing instruction consistent with party’s legal theory; in circumstances presented,
party did not also have to take issue with instruction that trial court gave to
sufficiently apprise court of error). All in all, because of our uncertainty about
whether the Court of Appeals will reach this claim of error, or how differently
it might assess the claim without reference to ORCP 59 H, we conclude that a
remand is appropriate.
Cite as 354 Or 614 (2013) 633
of this case and could well make a difference in future cases.
That issue concerns the nature of the Oregon Rules of Civil
Procedure—specifically, whether they are statutes.
In brief, some are statutes, and some are not. It
depends on whether they were affirmatively enacted into law
by the legislature. ORS 1.735(1) provides that the Council on
Court Procedures is authorized to promulgate rules of trial
procedure and that any such rules must be “submitted to
the Legislative Assembly” at the beginning of each session
in odd-numbered years. Id. The legislature then “may, by
statute, amend, repeal or supplement any of the rules.” Id. If
the legislature chooses not to amend, repeal, or supplement
the rules that the council submits, those rules simply “go
into effect” on January 1 following the end of the legislative
session. Id. When they “go into effect,” however, they do so as
rules, not as statutes.
That is because the council itself lacks authority to
enact statutes. The state constitution prohibits the prospec-
tive delegation of the authority to enact statutes to another
body. Seale et al v. McKennon, 215 Or 562, 575-73, 336 P2d
340 (1959) (legislature may not prospectively adopt federal
laws and regulations that do not yet exist); Van Winkle v. Fred
Meyer, Inc., 151 Or 455, 461-62, 49 P2d 1140 (1935) (because
the power to legislate “is vested exclusively in the legislative
assembly,” the legislature “cannot confer upon any person,
officer, agency, or tribunal the power to determine what the
law shall be”).1 Instead, the constitution vests the legislative
power in the legislative branch, subject only to the powers
of the initiative and referendum. Id. The constitution fur-
ther provides that, when the legislature does create stat-
utes, it must do so by affirmative act—specifically, major-
ity approval by both houses of the Legislative Assembly, Or
Const, Art IV, § 25 (“a majority of all the members elected
to each House shall be necessary to pass every bill”; bills
to raise revenue require three-fifths majority), and present-
ment to the governor for signature, Art V, § 15b(1) (“Every
bill which shall have passed the Legislative Assembly shall,
before it becomes a law, be presented to the Governor[.]”).
1
And, even assuming the legislature could delegate lawmaking authority
to some other body, it would be odd, indeed, if that body were to include—as the
Council on Court Procedures does by statute—members of the judicial branch.
634 State v. Vanornum
Thus, if the legislature takes no action on rules
adopted by the Council, that inaction does not mean that
the rules go into effect as statutes. The notion that the legis-
lature can create statutory law by doing nothing is a consti-
tutional impossibility. That does not mean that the Oregon
Rules of Civil Procedure lack force. They have the force of
rules promulgated by an entity authorized by the legislature
to create them. But they are not statutes, unless they were
affirmatively approved or amended by the legislature.
The distinction matters. To the extent that any rule
conflicts with a statute enacted by the legislature, the rule
is invalid. See, e.g., Garrison v. Dept. of Rev., 345 Or 544,
548, 200 P3d 126 (2008) (“We agree that a judicial or agency
rule that conflicts with a statute is invalid[.]”).
Take this case, for example. The statute creating
the council and authorizing it to adopt rules expressly limits
the authority of the council to adopting rules of trial—and
not appellate—procedure. ORS 1.735(1) (“The rules autho-
rized by this section do not include * * rules of appellate
*
procedure.”). ORCP 59 H, however, provides that, “[a] party
may not obtain appellate review of an asserted error by a
trial court” unless specified preservation requirements have
been met. To the extent that the rule was adopted to pre-
clude appellate review without following specified rules of
preservation, then, the rule would be invalid as inconsistent
with the statutory authority of the council. And, in fact, that
is one of the reasons that we chose in this case to give the
rule a different construction.
A different result might have obtained, however,
had ORCP 59 H been enacted by the legislature as a stat-
ute. In that case, the fact that the rule might otherwise
exceed the authority of the council would become irrelevant,
because the rule would have been adopted by the legisla-
ture. Any inconsistency between a legislatively adopted part
of the rules and another statute would raise a question of
legislative intent, resolved by application of garden-variety
rules that pertain to conflicting statutes. See, e.g., Powers v.
Quigley, 345 Or 432, 438, 198 P3d 919 (2008) (identifying
basic rules that govern the resolution of conflicts between
statutes).
Cite as 354 Or 614 (2013) 635
In point of fact, some of the Oregon Rules of Civil
Procedure have been added or amended by statute. Those
enactments are statutes. The rest, though, are not. What
that means is that the Oregon Rules of Civil Procedure
have become a bit of a hodgepodge, some rules having been
adopted only by the Council and others having been adopted
or amended by the legislature.
But that creates further problems. What happens
when the legislature amends a rule, and the council later
purports to change the rule as legislatively amended? That
has actually occurred more than once. ORCP 18, for exam-
ple, was originally adopted by the council and allowed to
go into effect by legislative inaction in 1978. It was then
amended by the legislature in 1987 to add ORCP 18 B. Or
Laws 1987, ch 774, § 12a. Three years later, though, the coun-
cil voted to “eliminate” ORCP 18 B, and the legislature took
no action. Similarly, ORCP 55 was adopted by the council
and allowed to go into effect without legislative amendment
in 1978. Then, in 1995, the legislature amended the rule
by adding ORCP 55 I. Or Laws 1995, ch 694 § 1. But after
that, in 1998, the council voted to amend ORCP 55 I. And, in
2002, it voted to “delete” the rule in its entirety. I wonder by
what authority the council purports to amend—much less to
“eliminate” or “delete”—a statute. Certainly the legislature
itself, or the people exercising their initiative power, may
amend or repeal a statute. Caruthers v. Myers, 344 Or 596,
602, 189 P3d 1 (2008). But I am aware of no authority for
the proposition that a legislatively created agency, commis-
sion, or council can do so. See Garrison, 345 Or at 549 (“[A]
rule created within a statutory scheme cannot amend, alter,
enlarge upon, or limit statutory wording.”). That would
seem to suggest that the council’s purported amendments of
legislatively adopted rules have no lawful effect.2
I raise this issue for three reasons. First, we need to
be more careful about how our own opinions characterize the
2
I have not attempted an exhaustive catalog of other rules that have been
amended by both the legislature and the council, in that order. But a cursory
review of the rules suggests that ORCP 21 A, 32 F, 36 B, 43 A, 54 A, 57 C, and
ORCP 69 A and B are among them. In some cases, the legislature and the council
amended different portions of the same rule, which makes determining which
part of a given rule is statutory and which is not even more of a problem.
636 State v. Vanornum
Oregon Rules of Civil Procedure. Oregon courts have not been
consistent in their characterization of the rules, often refer-
ring to them generally as “statutes.” See, e.g., Rodriguez v. The
Holland, Inc., 328 Or 440, 445, 980 P2d 672 (1999) (“[T]he
Oregon Rules of Civil Procedure provide statutory context
for construing ORS 20.080[.]”); Stupek v. Wyle Laboratories
Corp., 327 Or 433, 442, 963 P2d 678 (1998) (“ORS 174.120
applies to civil procedure statutes other than the Oregon
Rules of Civil Procedure.”); Garcia v. DMV, 195 Or App 604,
608 n 5, 99 P3d 316 (2004) (“After enactment of the Oregon
Rules of Civil Procedure, however, confusion arose because
of inconsistencies between those rules and other statutes.”);
Dept. of Rev. v. Faris, 19 OTR 178, 186 (2006) (“There may be
cases where a certain form is required by statute, such as
Oregon Rule of Civil Procedure (ORCP) 7 F[.]”).
Second, parties in future cases should be aware of
the significant consequences that flow from the fact that
only some parts of the rules are statutes, and then brief
their cases accordingly.
Third, the current status of certain rules that have
been serially amended by the legislature and the council
is uncertain, at best. One solution would be to simply lay
the Oregon Rules of Civil Procedure before the legislature
for enactment in their entirety. Short of that, however, if
the council or the legislature wishes particular rules to be
treated as statutes, then those rules must be affirmatively
enacted as statutes, in accordance with the law-making
principles of the state constitution.
Brewer, J., joins in this concurring opinion.