Chapter §12.4 CORE POWERS OF THE LEGISLATIVE DEPARTMENT

• Jurisdiction: Oregon

§12.4 CORE POWERS OF THE LEGISLATIVE DEPARTMENT

"The power of the legislature is plenary, except as it may be limited by the federal or state constitution." Brusco Towboat Co. v. State, By & Through Straub, 284 Or 627, 633, 589 P2d 712 (1978) (constitution does not limit legislature's power to collect revenue for use of state-owned lands); Ryan v. Harris, 2 Or 175, 176 (1866) (no provision limits the number of justices of the peace the legislature may appoint per precinct). The state constitution gives the legislature the authority to legislate, to tax, to control the budget for state government, and to determine the qualifications of its members. Or Const, Art IV, § 1 (authority to legislate, except for citizens' initiative and referendum); Or Const, Art IX, §§ 1-2; Or Const, Art III, §§ 2-3 (budget); Or Const, Art IV, § 11; State ex rel. Pierce v. Slusher, 119 Or 141, 152-53, 248 P 358 (1926) (taxation). The legislature also has the implicit power to make conduct criminal. State v. Laundy, 103 Or 443, 458, 204 P 958 (1922).

§12.4-1 Separation between the Legislative and Judicial Departments

Courts routinely must interpret laws duly enacted by the state legislature. When construing a statute, the judiciary must utilize the intention of the legislature if possible. ORS 174.020; See Portland Gen. Elec. Co. v. Bureau of Labor & Indus., 317 Or 606, 610-11, 859 P2d 1143 (1993), as modified by State v. Gaines, 346 Or 160, 166-74, 206 P3d 1042 (2009). When the court goes beyond the statutory construction, such action infringes on the authority given to the legislature. State ex rel. Lucas v. Goss, 23 Or App 501, 504, 543 P2d 9 (1975) (court must enforce statute as written even if it considered such enforcement inequitable).

COMMENT: The courts may not insert statutory terms omitted by the legislature or omit what has been inserted. ORS 174.010; Portland Gen. Elec. Co., 317 Or at 611; State v. Rogers, 330 Or 282, 290, 4 P3d 1261 (2000) (legislature intended for application date to apply to one statute and not another); Miller v. Water Wonderland Imp. Dist., 141 Or App 403, 408-09, 918 P2d 849 (1996), rev'd, 326 Or 306, 951 P2d 720 (1998) (legislature intended for omission of corporations in certain chapter 198 provisions).

§12.4-1(a) Legislative Policy and the Courts

Courts may not question the legislative policy underlying a statute or "legislate" for a change in the statute. Bennett v. Farmers Ins. Co. of Oregon, 332 Or 138, 149, 26 P3d 785 (2001) (the creation of law for reasons of public policy is a task of the legislature, not the courts). See State v. Williams, 313 Or 19, 44, 828 P2d 1006 (1992) (exclusion of evidence regarding cost of incarceration versus death penalty proper for public policy reasons); See also Sch. Dist. No. 24J v. McCarthy, 244 Or 379, 383, 418 P2d 817 (1966) (courts cannot read into statutes meaning that is not intended); George B. Wallace Co. v. Int'l Ass'n of Mechanics, Mt. Hood Lodge, Local No. 1005, Auto Mechanics, 155 Or 652, 661-62, 63 P2d...