Chapter §12.5 CORE POWERS OF THE JUDICIAL DEPARTMENT

• Jurisdiction: Oregon

§12.5 CORE POWERS OF THE JUDICIAL DEPARTMENT

The power of the courts is to decide cases. See Reter v. Talent Irrigation Dist., 258 Or 140, 146, 482 P2d 170 (1971). In their adjudicative capacity, courts interpret and apply regulations, statutes, and constitutional provisions, and establish rules of law in equity and the common law in the absence of legislative action. See Yancy v. Shatzer, 337 Or 345, 360, 97 P3d 1161 (2004) (courts must exercise power for live issues, and the importance of the issue does not alone make an issue viable for the exercise of judicial power); State v. Fleetwood, 331 Or 511, 517, 16 P3d 503 (2000). See also G.L. v. Kaiser Found. Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347 (1988) (courts must have some legitimate grounds for reconsidering a rule or doctrine); State v. Kuhnhausen, 201 Or 478, 516, 272 P2d 225 (1954) (legislature cannot curtail or abolish the court's duty to protect and preserve constitutional rights); 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."). These core powers mean that the courts also have the ultimate authority to determine separation of powers violations. State ex rel. Emerald People's Util. Dist. v. Joseph, 292 Or 357, 361, 640 P2d 1011 (1982).

Subject-matter jurisdiction is given to Oregon courts by constitution, statute, or common law. Weatherspoon v. Allstate Ins. Co., 193 Or App 330, 334, 89 P3d 1277 (2004). The courts have a duty to challenge subject-matter jurisdiction during a proceeding, as any judgment entered without jurisdiction is void. Evans v. Christian, 4 Or 375, 376 (1873) (when a court discovers it has no jurisdiction, at any point in a proceeding, it is the duty of the court not to proceed further). This duty arises even if the parties do not raise the question of subject-matter jurisdiction. Powell v. State By & Through Bd. of Pilot Com'rs, 224 Or 122, 126, 355 P2d 224 (1960) (parties may not stipulate to jurisdictional defects, and the court must notice a jurisdictional defect even when not mentioned by the parties). Parties to the proceeding may also challenge subject-matter jurisdiction at any time during the proceeding. Weatherspoon, 193 Or App at 334.

The courts also have the constitutional authority to discipline attorneys and judges and to levy sanctions of contempt and grants of defamation immunity for judicial proceedings. Or Const, Art VII, § 8 (judicial discipline); Ramstead v. Morgan, 219 Or 383, 399-400, 347 P2d 594 (1959) (attorney discipline); State ex rel. Oregon State Bar v. Lenske, 243 Or 477, 493, 407 P2d 250 (1965) (contempt); Ramstead, 219 Or at 400-01 (immunity).

COMMENT: Courts are generally prohibited from issuing advisory opinions. Hart v. Paulus, 296 Or 352, 357, 676 P2d 1384 (1984); In re Oregon Laws 1967, Chapter 364, Section 4, Ballot Title, 247 Or 488, 494, 431 P2d 1 (1967). Prior to the enactment of a law, the courts will not make determinations as to the constitutionality of the prospective law unless there is an express constitutional directive to render such opinion. Ballot Title, 247 Or at 494. Unlike every other state and federal jurisdiction, the judicial power of Oregon courts does not extend to the authority to adjudicate

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