State Ex Rel. Emerald People's Utility District v. Joseph , 292 Or. 357 ( 1982 )

DENECKE, C. J.

In response to a petition by the plaintiff, Emerald People’s Utility District, filed on December 29, 1981, we issued an alternative writ of mandamus ordering the defendant, the Chief Judge of the Court of Appeals, to vacate the order of the Court of Appeals denying plaintiffs motion to expedite the briefing schedule in two appeals and to enter an order allowing such motion or show cause why he had not done so. Briefs were filed and oral arguments were held on January 11, 1982.

The appeals underlying this mandamus proceeding were from judgments entered in favor of the plaintiff in two actions challenging the validity of a revenue bond election held by the plaintiff. One of these was a special proceeding authorized by ORS 261.605-261.635. ORS 261.615 provides that an appeal from such a special proceeding “must be heard and determined within three months from the time of taking such appeal.”¹

After the Court of Appeals denied the motion to expedite briefs, the plaintiff moved for reconsideration of its motion and the Court of Appeals denied that motion. Its action was memorialized in a letter by legal counsel of the Court of Appeals to counsel for the parties which stated, in part:

“The Court of Appeals expressly wants you to know that it has been the practice of the Court of Appeals to deny such motions in the absence of a showing of exceptional circumstances over and above a legislative direction as to how the judiciary should conduct its business. * *

The principal and most important issue raised is whether the legislative command to the judiciary that a proceeding such as the one here involved be heard and determined within three months can be ignored by the judiciary because the command violates the Oregon Constitution.

Art IV, § 1 of the Oregon Constitution provides:

“(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.”

Art VII, § 1 (as amended) provides, in part:

“The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. * * *.”

Art III, § 1 provides:

“The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”

The defendant has cited a number of cases from other jurisdictions holding that a legislative command to the judiciary that cases, or certain types of cases, be decided within a certain time is invalid. These jurisdictions have constitutional provisions regarding the separation of powers similar to those of Oregon. An example is Schario v. State, 105 Ohio St 535, 138 NE 63 (1922). An Ohio statute provided that appeals from convictions for violation of a specified statute “shall be heard by such reviewing court within not more than thirty court days after filing such petition in error.” 138 NE at 64. In this particular case the appeal was from a city court to a “court of common pleas.”

The Supreme Court of Ohio held the statute void, stating:

“* * * True, the general subject-matter of procedure by the parties to the cause, prescribing the manner of invoking the jurisdiction, the pleadings, and the time within which the jurisdiction shall be invoked, in short, the adjective law of a case, has always been regarded within the proper province of legislative action, yet the legislative branch of the government is without constitutional authority to limit the judicial branch of the government in respect to when it shall hear or determine any cause of action within its lawful jurisdiction.

“Whether or not justice is administered without ‘denial or delay’ is a matter for which the judges are answerable to the people, and not to the General Assembly of Ohio. * * 138 NE at 64.

Other examples cited are State ex rel Kostas v. Johnson, 224 Ind 540, 69 NE2d 592 (1946); and Atchison, T. & S. F. Ry. Co. v. Long, 122 Okla 86, 251 P 486 (1926).

This court has not been so adamant. In U’Ren v. Bagley, 118 Or 77, 81, 245 P 1074, 46 ALR 1173 (1926), we stated:

“* * * The success which our form of government has achieved in the past may be attributed largely to the fact that each coordinate branch has recognized the fundamental and salutary principle that there must be no encroachment upon the other. It remains, however, for the judiciary to say when there has been a transgression in this respect. This authority vested in the courts is one which should be exercised with extreme caution and only when there has been a plain and palpable abridgment of the powers of one department by another. To determine with precision the boundary between the respective coordinate branches of our government has ever been a difficult thing for the courts to (Jq ^ ^ ”

In Ramstead v. Morgan, 219 Or 383, 399, 347 P2d 594, 77 ALR2d 481 (1959), we stated:

“Unquestionably, the legislature may act authoritatively with respect to some matters which affect the judicial process. E.g., Bergeron, Petitioner, 220 Mass 472, 107 NE 1007 (1915). The limits of legislative authority are reached, however, when legislative action unduly burdens or unduly interferes with the judicial department in the exercise of its judicial functions. * *

We followed the principle stated in Ramstead in Sadler v. Oregon State Bar, 275 Or 279, 285, 550 P2d 1218 (1976), and State ex rel Acocella v. Allen, 288 Or 175, 179, 604 P2d 391 (1979). In both those decisions we upheld legislation affecting judicial power because we concluded the legislation did not “unduly burden or unduly interfere with the judiciary in the exercise of its judicial functions.” 288 Or at 181.

Prior to the articulation of this principle we held the legislature could validly require courts to act within a specified time. A statute was enacted providing that a court must determine a motion for a new trial within 55 days or it was deemed denied. We upheld the statute. Nendel v. Meyers, 162 Or 661, 664, 94 P2d 680 (1939):

“No doubt this statute was enacted to expedite court business. It is common knowledge that the practice once prevailed among some judges to keep motions for new trial under advisement for an unreasonable length of time. The legislature, with good reason, has seen fit to stop such practice. In so doing, the legislature has not encroached upon the power of the judiciary. It has only, in the interest of the proper administration of justice, put a reasonable limitation upon the exercise of the power of courts in granting new trials.”

See, also, Armstrong, Oregon Survey, Constitutional Law, 56 Or L Rev 387, 391 (1977).

Turning to the statute here invoked, we conclude that the legislative command to the Court of Appeals to hear and determine the case within three months from the time of taking the appeal does not on its face necessarily “unduly burden or unduly interfere with the judiciary in the exercise of its judicial functions.” “Unduly,” in this context, means that it is impossible in the individual case, within the statutory deadline, for counsel to complete proper briefing or other documentation adequate for a responsible judicial decision, and for the court to arrive at a reasoned decision consistent with the judicial responsibility imposed by Art VII. We do not infer in the abstract that the three-month limitation does or does not unduly interfere with the court’s conscientiously and competently performing its judicial function under Art VII, § 1 (amended).

Defendant also argues that legislation to expedite some cases over others may create “privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens,” Oregon Constitution, Art I, § 20, or deny some persons the “equal protection of the laws,” United States Constitution, Fourteenth Amendment. ORS 261.615 was enacted to expedite a final decision on the validity of bonds sought to be sold by public utility districts, which are governmental entities, not private persons or citizens. The statute does not violate these constitutional provisions. Cf. State v. Clark, 291 Or 231, 630 P2d 810 (1981), and State v. Edmonson, 291 Or 251, 630 P2d 822 (1981).

For these reasons the Court of Appeals was in error in disregarding the legislative command in the court’s consideration of plaintiffs motion to expedite.

We will not, however, issue a peremptory writ ordering the Court of Appeals to expedite the briefing schedule. The notice of appeal in these cases was filed October 22, 1981. The three-month period will expire on Monday, January 25, 1982, six judicial days from the date of this opinion. The appellant’s brief, is not due until February 7, 1982. (Apparently, settling of the transcript caused a delay.) We know it is possible to have a case briefed, heard and decided by an appellate court in the time remaining between now and January 25; however, we conclude that to require such action at this late stage might well interfere unduly with the court’s well-considered and responsible decision of the cases involved here.²

Alternative writ dismissed.

Costs and attorney fees to neither party.

1 The plaintiff recognized ORS 261.615 did not expedite the other proceedings but asked that the briefs be accelerated in that case also because it involved the same issues as the special proceeding.

2 The issue of the legal effect of failure to decide an appeal within the statutory period is not before us, and we express no opinion on it.