Chapter § 12.5

• Jurisdiction: Oregon

§ 12.5 SEPARATION BETWEEN THE BRANCHES OF GOVERNMENT

Separation-of-powers issues can arise in three general contexts: as between the legislative branch and the judicial branch, as between the legislative branch and the executive branch, and as between the executive branch and the judicial branch. Of the three, separation as between the legislative branch and the judicial branch has received the most attention and discussion in Oregon's case law.

§ 12.5-1 Separation between the Legislative Branch and the Judicial Branch

§ 12.5-1(a) In General

The broad lawmaking power of the legislative branch encompasses the authority to "enact laws prescribing the exercise of judicial powers." DeMendoza v. Huffman, 334 Or 425, 454, 51 P3d 1232 (2002) (quoting AFSCME Local 502-A, 295 Or at 549). Indeed, "[m]ost of the court's activity is regulated by statute." AFSCME Local 502-A, 295 Or at 549. To avoid violating separation-of-powers principles, "[t]he rule has evolved that legislation can affect [the courts] so long as it does not unduly burden or substantially interfere with the judiciary." DeMendoza, 334 Or at 454 (quoting AFSCME Local 502-A, 295 Or at 549). See also Law, 362 Or at 328 ("to the extent that courts' inherent powers are essential to the courts' work, those powers cannot be eliminated (or excluded) by legislative fiat"); Oregonians for Sound Economic Policy, Inc. v. State Accident Insurance Fund Corp., 218 Or App 31, 47, 178 P3d 286, adh'd to as modified on recons, former disposition withdrawn, 219 Or App 310, 182 P3d 895 (2008) (the legislature may regulate within reasonable bounds that do not infringe on the ability of the courts to exercise inherent authority); State ex rel. Metropolitan Public Defender Services, Inc. v. Courtney, 335 Or 236, 240-42, 64 P3d 1138 (2003) (although the legislature's budgetary restrictions on the judiciary would impact the judicial branch, they did not "prevent the judicial branch from carrying out its core functions" and therefore did not violate Article III, section 1, of the Oregon Constitution).

For instance, the supreme court "routinely honor[s]" statutory directives conferring original jurisdiction to decide a particular justiciable case, but a directive on what result to reach in a case would be a "clear interference" with the judicial function. City of Damascus v. State, 367 Or 41, 68, 472 P3d 741 (2020). The legislature likewise may legislate in the areas of courtroom behavior, but its legislation may not take away from the courts' function or unduly burden their ability to function in those areas. State ex rel. Frohnmayer, 307 Or at 310-11 (no separation-of-powers violation unless the powers or functions of one branch of government are performed by a person performing the duties for another branch).

Similarly, the legislature may enact judicial-disqualification statutes, but the courts have held that such statutes must require at least the moving party's rational belief that the judge cannot be fair or impartial, without which the statute would unduly burden the courts' authority to adjudicate cases. State ex rel. Kafoury v. Jones, 315 Or 201, 210, 843 P2d 932 (1992).

The courts have upheld legislation regulating contempt, attorney qualifications, and judicial discipline, as well as other judicial functions. Oregon State Bar v. Wright, 309 Or 37, 41, 785 P2d 340, cert den, 498 US 829 (1990) (the legislature may take away the ability of courts to find contempt in cases of disobedience regarding injunctions); Frost v. Lotspeich, 175 Or App 163, 178, 30 P3d 1185 (2001) (legislatively created categories of allowable contempt sanctions do not unduly burden the court); Hiber v. Creditors Collection Serv., 154 Or App 408, 414, 961 P2d 898, rev den, 327 Or 621 (1998) (the legislature has authority to impose a procedural prerequisite that the court must follow before issuing an arrest warrant for a contempt charge); Sadler, 275 Or at 285-86 (statutes assisting courts in determining qualifications for practicing law are valid); In re Piper, 271 Or at 735 (statutes could implement, but not modify, a constitutional provision relating to the discipline of judges).

However, the court struck down a legislative attempt to limit immunity for those complaining of attorney misconduct, concluding that it was a "serious incursion into the exclusive domain of [the] court" and the court's ability to carry out attorney disciplinary proceedings. Ramstead, 219 Or at 399-400 ("No area of judicial power is more clearly marked off and identified than the courts' power to regulate the conduct of the attorneys who serve under it. . . . The courts can be fully effective in serving the public only if they can be seen by the people as a symbol of impartial judgment.").

COMMENT: In City of Damascus, 367 Or at 68-69, the Oregon Supreme Court raised "serious concerns" about "whether it is proper for the legislature to decide the order in which [the court] may consider alternative arguments in a specific case," but the court declined to address whether that directive unduly interfered with or burdened the court's exercise of the judicial function.

The judiciary has the inherent power to protect constitutional rights, and the legislature cannot diminish or abolish that power. State v. Kuhnhausen, 201 Or 478, 516, 272 P2d 225 (1954). That power includes the ability to enforce constitutional rights through the common law where the legislature has failed to act. State ex rel. Ricco v. Biggs, 198 Or 413, 433, 255 P2d 1055 (1953) ("[W]here a constitutional right exists, it may not be defeated by legislative failure to act. If no procedure to enforce the right is prescribed by statute, then the court may proceed according to the course of the common law."). However, courts will not imply a private right of action for damages for violations of the...