Western Communications, Inc. v. Deschutes County

JOSEPH, C. J.,

dissenting in part; concurring in part.

The majority wins, and permanently retires, the Circulating Award for Most Creative (and Absurd) Use of Legislative History. It says: “The legislature intended that [the amendment of ORS 192.502 by Or Laws 1989, ch 925, § 1] apply to this case.” 100 Or App 710. If the legislature had expressed itself explicitly, we would not have this dispute. All that the majority is able to cite as proof of legislative intent is the ambiguous testimony of the senator who sponsored the amendment and the apparently confused response by a representative who was a member of the committee. Even on that *715record, it is notable that the representative referred to an “emergency clause” and a “retroactive clause.”1

I hope that I will always be able to apply the words that the legislature actually uses and avoid the temptation to read committee testimony involving one witness and one legislator as the intention of 59 other representatives and 30 senators. What the legislature clearly and unambiguously did was to add only an emergency clause. That leaves no room for result-oriented rewriting of the legislation. The legislator on whom the majority relies apparently knew more about the meaning (and non-meaning) of an emergency clause than the majority does. Compare State ex rel Cox v. Davidson, 291 Or 839, 844, 635 P2d 630 (1981).

The majority uses that addition by the committee as a bootstrap to lift itself into a position of being entitled to look for the legislature’s intent in doing something or other. What the majority sees as “something or other” is not very clear. What is clear is that, if the majority were to apply what it contemptuously refers to as “so-called rules of statutory construction or even the assumption that the same words will always have the same legal effect,” 100 Or App at 712, it would find itself in deep, deep trouble. Instead, it enters into paying “careful attention to the legislative purpose.” 100 Or App at 712. It acknowledges that “in most cases an emergency clause does not express a legislative intent to apply a new law to previous events.” 100 Or App at 712. To be sure, in no case has the Supreme Court, or this court, ever held that an emergency clause expresses a legislative intent that a new law determine the consequences of completed events.

As we cogently said in a different context:

“By [reason of the emergency clause] the provision changing the scope of review ‘first bec[a]me operative January 1, 1988.’ * * * Although petitioner argues strenuously in his memorandum that the statute is ambiguous when applied to this case, that is just not so. The language of the statute unambiguously expresses the intent of the legislature that [the new law apply only to cases coming to this court after a certain *716date]. There is, therefore, no need to resort to canons of statutory construction or to legislative history * * * to determine the intent of the legislature. * * * Because ‘[t]he words used speak for themselves,’ Barry Transport, Inc. v. Heltzel, 202 Or 161, 167, 272 P2d 965 (1954), we need only look to the plain meaning of the statute to determine whether the substantial evidence review standard applies. It applies in this case.” Armstrong v. Asten-Hill Co., 90 Or App 200, 203, 752 P2d 312 (1988).

In other words, an emergency clause declares exactly what the Oregon Constitution says that it does. If the legislature wants a statute to affect past events, it can and should say so. We should not make ourselves look ludicrous in order to do something that the legislature could have done simply but did not do at all.2

I agree with the majority in upholding the trial court’s refusal to award fees against Klug-Rainey, the intervenor.

The majority also cheats. After quoting the legislator’s reference to “emergency clause * * * retroactive clause,” which are different clauses, it describes him as suggesting “adding an emergency clause * * * in order to ensure that the [amendment] would be retroactive.” 100 Or App at 711, 712.

As Justice Scalia put it, concurring in INS v. Cardoza-Fonseca, 480 US 421, 453, 107 S Ct 1207, 94 L Ed 2d 434 (1987):

“Judges interpret laws rather than reconstruct legislators’ intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intention.”

In another case, United States v. Taylor, 487 US 326, 345, 108 S Ct 2413, 101 L Ed 2d 297 (1988), Justice Scalia, again concurring, expressed the thought in a way clearly apropos this case:

“The text is so unambiguous * * * that it must be assumed that what the Members of the House and Senators thought they were voting for, and what the President thought he was approving when he signed the bill, was what the text plainly said, rather than what a few Representatives, or even a Committee Report, said it said. Where we are not prepared to be governed by what the legislative history says — to take, as it were, the bad with the good — we should not look to the legislative history at all. This text is eminently clear, and we should leave it at that.”