APPENDIX 1A INTERPRETING THE OREGON CONSTITUTION: AN ANNOTATED BIBLIOGRAPHY

• Jurisdiction: Oregon

Appendix 1A Interpreting the Oregon Constitution: An Annotated Bibliography

Hon. Jack L. Landau Oregon Supreme Court

The Oregon appellate courts consult a wide variety of sources— particularly historical—when interpreting the state constitution. Those sources may include Oregon historical materials, other state statutes and judicial decisions, dictionaries, early treatises and commentaries, and even English and Roman law. This bibliography lists a number of the sources that the courts often cite, along with some explanatory commentary.

I. Oregon historical materials.

A. Before the Constitutional Convention. The prolific Charles H. Carey's General History of Oregon (3d ed 1971) probably has more than you ever wanted to know about the early history of the state. J. Henry Brown, Brown's Political History of Oregon (1892) also has a lot of information about the provisional government years. Other sources include Hubert H. Bancroft, History of Oregon (1886), William H. Gray, A History of Oregon, 1792-1849 (1870), and Donald C. Johnson, Politics, Personalities, and Policies of the Oregon Territorial Supreme Court 1849-59, 4 Envt'l L 11 (1973).

B. The Constitutional Convention of 1857. For a good introduction to the creation of the constitution, see David Schuman, The Creation of the Oregon Constitution, 74 Or L Rev 611 (1995). For original sources of the convention, see the sources below. Carey is most often cited, but Professor Burton's excellent series of articles—which compile committee reports, amendments, engrossed articles, and contemporary newspaper accounts—soon will become another standard reference for the history of the 1857 constitution.

1. Journal of the Constitutional Convention of the State of Oregon (1882).

2. Charles Henry Carey ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 (1926).

3. Claudia Burton and Andrew Grade, A Legislative History of the Oregon Constitution of 1857—Part I (Articles I & II), 37 Willamette L Rev 469 (2001).

4. Claudia Burton, A Legislative History of the Oregon Constitution of 1857—Part II (Frame of Government: Articles III-VII), 39 Willamette L Rev 245 (2003).

5. Claudia Burton, A Legislative History of the Oregon Constitution of 1857—Part III (Mostly Miscellaneous: Articles VIII-XVIII), 40 Willamette L Rev 225 (2004).

6. The Secretary of State's Office provides online access to scans of the original constitution as signed by the framers: http://bluebook.state.or.us/state/constitution/orig/const.htm >.

C. Primary sources of early Oregon law.

1. Cases: Remember that Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992), requires an examination of case law interpreting a disputed provision. Thus, you will frequently be required to examine early Oregon cases to determine how the courts have construed a given provision over the years, even after ratification. See, e.g., Smothers v. Gresham Transfer, Inc., 332 Or 83, 115-23, 23 P3d 333 (2001) (100 years of case law construing state remedies clause). You may also want to examine early Oregon cases—for example, territorial cases—as evidence of what the framers would have understood about the state of the law at the time of ratification. Finding such cases has been made relatively easy with the advent of Lexis and Westlaw/Premise, both of which now have databases that include the entire body of Oregon cases back to 1853.

2. Statutes: The courts have given somewhat conflicting signals about the relevance of nineteenth-century statutes in constitutional analysis. On the one hand, courts sometimes say that such statutes are not worth much, particularly when they are used as evidence of what the framers thought about the constitutionality of such enactments. See, e.g., State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or 277, 284, 613 P2d 23 (1980) ("Contemporaneous legislative actions should not necessarily be given much weight when construing constitutional principles.").

On the other hand, courts sometimes rely on nineteenth-century statutes as evidence of what the framers understood about the state of the law at the time. See, e.g., State v. Moyle, 299 Or 691, 696, 705 P2d 740 (1985) (examining extent to which states had enacted harassment statutes before 1859 in determining constitutionality of Oregon statute). Sometimes the courts even have consulted statutes enacted after ratification to determine the intended meaning of a constitutional provision. See, e.g., Jory v. Martin, 153 Or 278, 288, 293-95, 56 P2d 1093 (1936) (resorting to statutes enacted in 1860, 1862, 1864, 1893, 1895, 1905, and 1927 in construing provision of 1857 constitution).

a. Background: For background on early Oregon legislation, consider the following as good places to start.

(1) Arthur S. Beardsley, Code Making in Early Oregon, 23 Or L Rev 22 (1943).

(2) Robert N. Peters, The "First" Oregon Code: Another Look at Deady's Role, 82 Or Hist Q 383 (1981) (takes the position that Deady's contributions to the first code were not all they have been cracked up to be).

(3) Lawrence T. Harris, History of the Oregon Code, 1 Or L Rev 129 (1922).

(4) F.I. Herriot, Transplanting Iowa's Laws to Oregon, 5 Or Hist Q 139 (1904) (good account of the "wolf meetings" and the adoption of the 1843 code, which was based on the Iowa code of 1838, apparently because the only copies of statutes of any sort in the territory at the time were from Iowa).

(5) The State of Oregon Law Library has put together a searchable PDF version of the Territorial Act and the 1854 Oregon Laws at www.oregon.gov/SOLL/Pages/ojd_history/oregon_territory_acts.aspx >.

b. Oregon statutes: Until 1953, Oregon statutes were only periodically compiled by various individuals or groups of individuals (usually led by a judge, as it turned out), who generally did no more than work from the original "Deady Code" by removing from a previous compilation any sections that were specifically repealed, substituting amended text, and inserting new enactments along with occasional annotations.

Deady himself (Matthew P. Deady) did the first compilation in 1864, which he and Lafayette Lane updated (and added earlier materials to) in 1874. That effort was followed by William Lair Hill's compilations in 1887 and 1892. Charles Bollinger and William Cotton prepared a new compilation in 1902. In 1910, William Paine Lord and Richard Ward Montague prepared a compilation commonly known as "Lord's Oregon Laws." Conrad Patrick Olson compiled a new version in 1920. In 1930, an "Oregon Code Annotated" was "compiled under the supervision of the Supreme Court of Oregon." Apparently happy with the court's work, in 1939 the legislature directed the court to take continuing responsibility for compiling and annotating an Oregon Code. The supreme court contracted with Bancroft-Whitney and published the "Oregon Compiled Laws Annotated" (1940), also known as the OCLA.

In 1949, the legislature initiated a "revision program," which entailed a wholesale reexamination of the state's statutes, a collection of the statutes and parts of statutes into appropriate topical chapters, and the elimination of some 400-odd pages of inoperative or obsolete (by judicial decision or otherwise) laws. See generally Robert K. Cullen, Revision of the Oregon Statutes, 28 Or L Rev 120 (1949). The 1953 Oregon Revised Statutes, or ORS, was the result. See generally Charles G. Howard, Editorial: The Oregon Revised Statutes, 33 Or L Rev 58 (1953).

D. Constitutional amendments. Remember that, under

Ecumenical Ministries of Oregon v. Oregon State Lottery Comm'n, 318 Or 551, 560, 871 P2d 106 (1994), the focus is on what the voters who approved an amendment intended it to mean. See § 1.4-2. In addition to the usual textual sources (dictionaries, textual rules of interpretation, and the like), the courts most often resort to statements contained in relevant voters' pamphlets to reconstruct the intentions of the voters. See, e.g., City of La Grande v. Pub. Employes Ret. Bd., 284 Or 173, 184 n 8, 586 P2d 765 (1978) (relying on proponents' statements as indicative of intended meaning). Both the Oregon Supreme Court and the Multnomah County law libraries have copies of old voters' pamphlets. Sometimes, the courts also resort to contemporaneous newspaper and magazine articles. See, e.g., Lipscomb v. State By & Through State Bd. of Higher Educ., 305 Or 472, 480-83, 753 P2d 939 (1988); State v. Allison, 143 Or App 241, 252 n 4, 923 P2d 1224 (1996). An especially useful resource regarding measures adopted in the earlier years of the twentieth century is the Oregon Voter, a weekly magazine devoted to state election issues. See Lipscomb, 305 Or at 482.

II. Other state law.

A. Borrowed constitutional provisions. When a provision of the Oregon Constitution is based on another state's constitution, the courts often presume that the framers of the Oregon Constitution intended to adopt any existing interpretations of the other state's constitution. See, e.g., State v. Selness, 334 Or 515, 527, 54 P3d 1025 (2002) (referring to pre-1857 Indiana cases construing former jeopardy provision of 1851 Indiana...