Owens v. Maass

UNIS, J.,

dissenting.

The majoritys opinion proves that the fertile legal imagination can conjure up an ambiguity in words where none exists. At issue in this case is whether petitioner’s petition for post-conviction relief is time-barred. Ignoring the plain, natural, ordinary, and common sense meaning of the unambiguous words used by the legislature in ORS 138.510, and that statute’s context, the majority concludes that petitioner’s petition for post-conviction relief is time-barred. Because I disagree with that holding, I would reverse the decision of the Court of Appeals and the judgment of the circuit court and remand this case to the circuit court for further proceedings.

The best evidence of legislative intent is the wording of the statute itself. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). See also Whipple v. Howser, 291 Or 475, 480, 632 P2d 782 (1981) (there is no more persuasive evidence of the purpose of a statute than the words used by the legislature to express its wishes); Newman & Surrey, Legislation 645 (Prentice-Hall 1955) (“[t]he singly [sic] most important rule of statutory interpretation * * * is, the statute itself usually contains answers to most questions of law of how it should be applied”). Further, ORS 174.010 provides a statutory enjoinder to the courts “not to insert what has been omitted, or to omit what has been inserted.” See PGE, 317 Or at 611 (citing that statutory rule of construction).

ORS 138.510, as amended by Oregon Laws 1993, section 1, allows “any person convicted of a crime under the laws of this state” to file a petition for post-conviction relief “within two years” from “the date the appeal is final” in Oregon appellate courts. “[T]he amendment[ ] to ORS 138.510 by section 1 * * * applies] to all petitions * * * filed after [November 4, 1993,] the effective date of this Act.” Or Laws 1993, ch 517, § 5 (emphasis added). Petitioner was convicted of crimes under the laws of this state. Those criminal convictions were affirmed on appeal and became final on January 13, 1992. On November 24, 1993, less than two years after his appeal became final, petitioner filed a' petition for post-conviction relief. It seems clear, as day follows night, that petitioner timely filed his petition for post-conviction relief.

Recent decisions of this court make it clear that, when a statute’s key terms and their context make the legislature’s intent clear, this court’s interpretative task is complete and “we proceed no further.” McIntire v. Forbes, 322 Or 426, 429, 909 P2d 846 (1996); PGE, 317 Or at 611. Admittedly, the text of ORS 138.510, quoted above, is not particularly helpful in determining legislative intent. However, the amendment to ORS 138.510 clearly states the legislature’s intent that the statute apply to “all” petitions filed after November 4, 1993. Thus, text and context are unambiguous, and further analysis is unwarranted under the methodology of PGE. The majority concedes as much. Moreover, the majority agrees that limiting petitions to those that had not become time-barred under the 120-day filing period ignores the word “all” and thus omits what has been inserted. It also agrees that this interpretation inserts what has been omitted; therefore, the majority violates the statutory rule of construction in ORS 174.010.

The majority’s analysis is curious. The majority concedes repeatedly that the statutory context also supports the unambiguous reading of “all petitions.” Yet it proceeds with an analysis of the substantive law in place when the amendatory language was adopted. In reaching the conclusion that such substantive law must be considered in a contextual analysis, the majority relies on State v. Waterhouse, 209 Or 424, 307 P2d 327 (1957). In Waterhouse, the court stated that knowledge of earlier enactments of a statute is presumed. Moreover, it is “likewise presumed that the statute was enacted ‘in light of such existing judicial decisions as have a direct bearing upon it.’ ” 209 Or at 436. The facts of Water-house are distinguishable from those in the case at bar. The statute in Waterhouse concerned the codification of the habitual criminal law, which originated in English common law. It subsequently went through a long and complex process of repeal and amendment in many states, including Oregon, over a period of more than 50 years. That process also included constitutional challenges. In contrast, the two-year filing period amendment to ORS 138.510(2) is a simple change. Had the legislature so intended, it easily could have codified any qualifications to the term “all petitions filed after [November 4, 1993,] the effective date of this Act.”

Waterhouse also states that “[t]he omission from the statute * * * of any procedural provisions whatever must be regarded as of controlling significance upon the question of legislative intention.” Id. Thus, a closer reading of Water-house is consistent with the statutory rule of construction that enjoins the court “not to insert what has been omitted.”

The majority cites Denny v. Bean, 51 Or 180, 93 P 693 (1908), for the proposition that a right of revival of an action must be expressed affirmatively. The majority then cites Lamb v. Young, 250 Or 228, 441 P2d 616 (1968), in reaching its conclusion that the legislature did not intend to create a right of revival in its amendment to ORS 138.510(2). The majority, quoting Lamb, 250 Or at 231, states:

“[t]he time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such a provision will control, no matter in what form the action is brought. The statute is an offer of an action on condition that it be commenced within the specified time.” 323 Or at 439 (internal quotation marks omitted; emphasis added by majority).

That specific quote comes from Richard v. Slate, 239 Or 164, 396 P2d 900 (1964). In Richard, the court was explaining its holding that the time limitation in the wrongful death statute affected the right, not just the remedy. In Lamb, the court states only that, in “some statutes,” the right as well as the remedy is extinguished, without further elaboration.

Neither Lamb nor Richard supports the majority’s position. Lamb, citing Richard, states that “the statute is an offer of an action on condition that it be commenced within the specified time.” 250 Or at 231. The specified time in amended ORS 138.510(2) is two years, within which petitioner filed his petition. Neither Lamb nor Richard has an application statute similar to the one involved here.

In summary, the text and context of ORS 138.510 are clear. Thus, the court’s analysis should stop at the first level under PGE. It should be presumed that the legislature was aware of former statutory enactments and chose to adopt amendatory language that is consistent with its intent. Since there is no ambiguity, there is no need to resort to legislative history for further interpretation. In doing so, the majority has omitted what has been inserted and inserted what has been omitted. Uncertainty has been created where none existed.

I respectfully dissent.

Durham, J., joins in this dissenting opinion.