Article III

Section 1

 

NOTES OF DECISIONS

 

In general

 

      Opening bar disciplinary records to the public does not substantially interfere with the judicial function. Sadler v. Ore. State Bar, 275 Or 279, 550 P2d 1218 (1976)

 

      Because no judicial or legislative power or function is performed by Attorney General in making disclosure determinations under the Public Records Law, there is no violation of this section. State ex rel Frohnmayer v. Oregon State Bar, 307 Or 304, 767 P2d 893 (1989)

 

      Violation occurs only in clear instance where one department of government unduly burdens actions of another or where one department performs functions committed to another department. Rooney v. Kulongoski (Elections Division #13), 322 Or 15, 902 P2d 1143 (1995)

 

Legislative and judicial

 

      The trial court exceeded its authority by ordering the issuance of a health certificate to a mobile home park when the owner admitted being in violation of [former] ORS 446.006 and OAR 333-44-454 (4), concerning the operation of such a park without a sanitation certificate and the use of metal branch water pipes. State ex rel Lucas v. Goss, 23 Or App 501, 543 P2d 9 (1975)

 

      ORS 138.500 and [former] ORS 151.280, authorizing Public Defender Committee to determine when Public Defender is unable to serve as appointed appellate counsel, do not unconstitutionally encroach upon power of judiciary to regulate practice of law. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)

 

      Requirement of ORS 261.615 that Court of Appeals hear and determine proceeding under ORS 261.605 to 261.630 within three months of time of taking of appeal does not, on its face, necessarily unduly burden or unduly interfere with the judiciary in the exercise of its judicial functions. State ex rel Emerald PUD v. Joseph, 292 Or 357, 640 P2d 1011 (1982)

 

      Application of Public Employe Collective Bargaining Act (ORS 243.650 to 243.782) requirements that juvenile court judge bargain with representatives of juvenile counselors and refrain from establishing terms and conditions of counselors’ employment in violation of applicable contractual provisions did not constitute an undue burden on, or interfere with, judicial functions. Circuit Court v. AFSCME, 61 Or App 311, 657 P2d 1237 (1983), aff’d 295 Or 542, 669 P2d 314 (1983)

 

      Applying the Public Employe Collective Bargaining Act to employment relations between the Judicial Department and its employes does not violate the separation of power requirement of this section. Lent v. ERB, 63 Or App 400, 664 P2d 1110 (1983), Sup Ct review denied

 

      ORS 161.610 establishing mandatory minimum sentences, does not violate this section. State v. Earls, 69 Or App 75, 683 P2d 1387 (1984), Sup Ct review denied

 

      Neither this section nor section 8, Article II, prohibits judicial branch from regulating election activities of its members and potential members. In re Fadeley, 310 Or 548, 802 P2d 31 (1990)

 

      Sentencing guidelines do not violate this section. State v. Spinney, 109 Or App 573, 820 P2d 854 (1991)

 

      ORS 12.117, as amended in 1991 to provide that limitation period of ORS 12.117 applies retroactively, does not constitute impermissible interference by legislature with power of judicial branch. A.K.H. v. R.C.T., 312 Or 497, 822 P2d 135 (1991)

 

      Judicial review of challenged initiative ballot titles for compliance with statutory requirements does not invade legislative power reserved to people. Rooney v. Kulongoski (Elections Division #13), 322 Or 15, 902 P2d 1143 (1995)

 

      Legislature’s creation of additional mechanism for court to carry out existing judicial function does not confer new subject matter jurisdiction on court, therefore retroactive application of mechanism does not usurp judicial determination of jurisdiction. State v. Jackman, 155 Or App 358, 963 P2d 170 (1998), Sup Ct review denied

 

      Legislature may not provide party with standing to obtain judicial review where court’s opinion would not have practical effect on that party. Utsey v. Coos County, 176 Or App 524, 32 P3d 933 (2001)

 

      Retroactive application of limitation period amendments to revive actions previously dismissed by courts for lack of timeliness did not constitute legislative exercise of judicial function. McFadden v. Dryvit Systems, Inc., 338 Or 528, 112 P3d 1191 (2005); Fox v. Collins, 213 Or App 451, 162 P3d 998 (2007), Sup Ct review denied

 

      Trial court does not violate this section when trial court relies on nonenumerated sentencing factors to decide whether to impose upward or downward departure sentence within statutorily prescribed sentencing limits. State v. Speedis, 350 Or 424, 256 P3d 1061 (2011)

 

Executive and judicial

 

      Where a judge was regularly employed as a part-time teacher for pay by a state-funded institution of higher education this section was violated. In the Matter of Sawyer, 286 Or 369, 594 P2d 805 (1979)

 

      Establishment of the Land Use Board of Appeals did not violate doctrine of separation expressed in this section. Baxter v. Monmouth City Council, 51 Or App 853, 627 P2d 500 (1981), Sup Ct review denied

 

      Transfer of jurisdiction from circuit court to PSRB does not confer judicial power on PSRB in violation of principal of separation of powers contained in this section. Perkey v. Psychiatric Security Review Board, 65 Or App 259, 670 P2d 1061 (1983)

 

      Statutory function of LUBA to conduct review of land use decisions through quasi-judicial proceedings does not violate doctrine of separation of powers. Wright v. KECH-TV, 300 Or 139, 707 P2d 1232 (1985)

 

Executive and legislative

 

      Statutory scheme establishing Land Conservation and Development Commission and granting it authority to establish statewide land use planning goals (ORS chapter 197) does not delegate legislative power in violation of this section where both standards and safeguards are provided. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

 

      Grant of rulemaking authority to administrative agency does not unlawfully delegate legislative power where procedure established for promulgating rules furnishes adequate safeguards to those affected. State v. Heuker, 83 Or App 180, 730 P2d 1258 (1986)

 

      Legislative declaration that contraband “means any article or thing . . . whose use would endanger the safety and security” of correctional and juvenile facilities and state hospital, as well as persons in those institutions, is constitutionally sufficient directive to state and local agencies given power to issue rules and orders defining contraband. State v. Long, 110 Or App 599, 823 P2d 1031 (1992), aff’d 315 Or 95, 843 P2d 420 (1992)

 

      ORS 475.035 sufficiently circumscribes controlled substance identification power of Board of Pharmacy to withstand challenge of unconstitutional delegation of legislative power. State v. Kast, 120 Or App 74, 852 P2d 242 (1993)

 

      Statute authorizing governing body responsible for enacting land use regulation to determine whether to pay just compensation or to modify, remove or not apply regulation in certain instances does not delegate executive powers to legislative body because enactment of land use regulations is not unique to legislative bodies. MacPherson v. Department of Administrative Services, 340 Or 117, 130 P3d 308 (2006)

 

ATTY. GEN. OPINIONS: Simultaneous service as a county commissioner on a county court and as a member of a local school board, (1973) Vol 36, p 381; constitutionality of the Emergency Board, (1974) Vol 37, p 130; same person as: member of state commission and employe of legislature, (1975) Vol 37, p 405; same person as: judicial officer and member of teaching staff of community college or state supported school of higher education, (1975) Vol 37, p 444; same person as: state legislator and city or county employe, (1975) Vol 37, p 554; same person as state legislator and employe of mass transit district, (1975) Vol 37, p 565; constitutionality of an attorney as a state legislator, (1976) Vol 37, p 1251; gubernatorial authority concerning marketing of electricity, (1976) Vol 37, p 1559; constitutionality of delegation to LCDC of authority to prescribe and enforce state-wide planning goals, (1977) Vol 38, p 1130; disqualification, for membership on commission appointed by Governor, of county judge with judicial jurisdiction, (1977) Vol 38, p 1288; approval of salary of executive or judicial officials by legislative committee, (1981) Vol 41, p 462; appointment of members of Capitol Planning Commission and Commission on Indian Services, (1983) Vol 43, p 205; performance of Executive Department functions of Oregon’s Commission for Child Care by legislator-members violates this provision, (1989) Vol 46, p 133; remedies available to solve separation of powers problem, (1989) Vol 46, p 133; de facto office doctrine allows parties that received grants from Oregon Commission for Child Care to keep those grants, (1989) Vol 46, p 133; inability of district attorney to serve as legislator, (1998) Vol 49, p 14; charter schools as performers of governmental functions, (2000) Vol 49, p 254

 

LAW REVIEW CITATIONS: 26 WLR 1030 (1990); 73 OLR 785 (1994); 75 OLR 443, 561 (1996); 39 WLR 245 (2003); 87 OLR 717 (2008)

 

Art. III, Section 2

 

ATTY. GEN. OPINIONS: Constitutionality of the Emergency Board, (1974) Vol 37, p 130; assignment of executive power to legislative committee, (1981) Vol 41, p 462

 

Art. III, Section 3

 

NOTES OF DECISIONS

 

      Statutory provision giving legislative committee power of approval over agency rule unconstitutionally allows legislative act by less than majority of both houses. Gilliam County v. Department of Environmental Quality, 319 Or 251, 876 P2d 749 (1994), aff’g in part on remand 316 Or 99, 849 P2d 500 (1993)

 

ATTY. GEN. OPINIONS: Authority of the Emergency Board to provide funds for administration and enforcement of the OL 1973, c. 421, (1973) Vol 36, p 595; constitutionality of the Emergency Board, (1974) Vol 37, p 130; charter schools as performers of governmental functions, (2000) Vol 49, p 254

 

LAW REVIEW CITATIONS: 67 OLR 107 (1988)

 

Art. III, Section 4

 

NOTES OF DECISIONS

 

      Where Senate fails to confirm reappointment of incumbent, resulting vacancy for new term does not prevent incumbent from continuing in office as holdover pending appointment and confirmation of successor. State ex rel Adams v. Powell, 171 Or App 81, 15 P3d 54 (2000)

 

ATTY. GEN. OPINIONS: Confirmation criteria and failure to confirm appointee, (1979) Vol 39, p 560; implementing legislation, (1979) Vol 39, p 608