*1 May 27, Argued rehearing and submitted March reversed denied June BROWN, Petitioner, al, PORTLAND SCHOOL DISTRICT NO. 1 et Respondents.
(CA 27366) 17422, SC *2 Pullen, Portland, Gerald R. argued the cause filed and brief for petitioner. Westwood, Portland,
James N. argued the cause for respondent Portland School District 1. On No. the brief were Miller, Nash, Yerke, William B. Crow and Wiener & Hager, Portland. Judd,
Michael E. Oregon City, County Counsel, Assistant argued the cause and respondent filed a brief for Clackamas County. Eugene Hallman, Pendleton,
W. filed a brief for the Oregon Lawyers Trial Association as amicus curiae.
TANZER, J. J., specially
Tongue, concurring.
Lent, J., by Linde, dissenting, joined J.
Peterson, J., dissenting.
TANZER, J. Portland action this tort brought
Plaintiff for County damages 1 and Clackamas District No. School that an automobile accident injuries arising from personal that notice of complaint alleged occurred in 1978. the clerk of the school by first class mail to claim was sent defendant by” “received that and that the letter was district * * * a tort claim.” and as “processed investigated twice sent that notice was complaint alleged also first, to the Clackamas County by first class mail: Clackamas Division, and subsequently, County Highway Maintenance that each of these notices was County alleged Clerk. It was investigated “processed defendant” “received * * * as a tort claim.” on the that the com- ground Defendants demurred facts to constitute a cause plaint did not state sufficient plead compliance action failed to because Act, specified of the Tort Claims provisions 30.275(1). plaintiffs allegation Defendants contend sent first class mail is insufficient because his notice was sent certified mail. requires the statute notice be *3 the demurrers. Plaintiff did The trial court sustained further, Plaintiff complaint and the was dismissed. plead Appeals from the order of dismissal and Court appealed whether accepted affirmed. review to examine We compliance with the notice complaint sufficiently alleges 30.275(1). hold that requirements of ORS We 30.275(1). compliance with ORS alleged substantial brought, 30.275(1), at the time this action was ORS provided: body damages public
“Every person
claims
from a
who
body acting
officer,
public
employe
agent
or
of a
or from an
employment
on
scope
his
or duties for or
within the
scope
any
injury
or
within the
account of
loss
presented
public
to the
to 30.300 shall cause to be
30.260
injury
days
alleged loss or
body
after the
within
time, place and circumstances
stating written notice
thereof,
representative or
and his
the name of the claimant
compensation or other
attorney,
any,
if
the amount of
relief demanded.
Claims
Oregon
State of
or a state
officer, employe or agent
presented
shall be
to the Attorney
General.
against any
Claims
public
local
body
officer,
or an
employe or agent thereof shall
presented
be
to person upon
whom process could be served upon
public
body in
(3)
accordance with subsection
of ORS 15.080. Notice of claim
shall be served upon
Attorney
General or
local
body’s representative
process
service of
personally
either
return receipt requested. A notice
claim
which does not contain the
required by this subsec-
information
tion, or which
presented
other manner than herein
invalid,
provided,
except that
to state the amount
failure
compensation or other
demanded does not invalidate the
relief
” 1
notice.
(Emphasis supplied.)
applied
This court has
theory
of substantial
compliance in order
ignore
technical errors in otherwise
valid notice
prior
under
versions of the Tort Claims Act.
Urban
Agency
Lackey,
35,
Renewal
v.
The primarily legislature was the Act shows that Tort Claims governments, insurability but that local the concerned with it also addressed require- by notice the courts of the relaxation the amendment the draftsmen of ments. One 30.275(1)explained that: tendency by because of a
“The last sentence was added requirement. only Not in the notice the State of court to relax states, radically becoming more in other it is Oregon, but if you give law that a handwritten notice effect of the scrawled you envelope janitor city hall at a.m. on the of an back effectively Even tendered a claim. when the notice ends have up in a wastebasket somewhere.”3 actually legislative be concern notice
The authority proper by governmental at the level of received by body language emphasizing question is manifested required language appears of the notice. have strictness doctrine been intended pliance confine the of substantial com- necessarily limits, narrow within but not to eliminate proponents legisla- suggestion or the it. There is recovery liability preclude escape by ture intended to requirements pre- or to draconian enforcement of technical clude proper compliance where notice form and content was statutorily designated actually official. received sufficiency given of the notice must deter technically object statute mind and mined with purpose should barred where the deficient claims statute not be Sprague, supra, served. Or at 304-305. The previously been substantial used doctrine of insisting on literal to avoid the harsh results of this court provisions pur statutory where the notice requirements pose has been of these met. supra, Renewal, we held that the
In Urban give is to Act sections the Tort Claims Committee, Judiciary Hearings Legis Ass’y HBon 3106 before House 60th Or (April 14, 1977), testimony Blair, bill, pp. 8, proponent of Mr. Bill Minutes 9. explanations suggest Mr. Blair’s later also sentence was motivated statutorily forgiving inadequate decisions of courts other states which were more Ibid, (May 24,1977), Oregon pp. 4-5. notice thant the decisions of courts.
body timely notice of the tort claim and to allow its officers an opportunity investigate promptly matters and ascertain all necessary facts. 275 Or at Minnesota 41. We noted that Supreme Court had held the purpose of their Act, Tort Claims upon which Oregon’s based, statute was to be « <** * protec{.against dissipation by funds
requiring that municipality promptly furnished with concerning information against a claim it so oppor- that full tunity provided it, is investigate to settle those of merit litigation, without and to deficiency correct municipal by functions revealed By timely occurrence. service of notice, municipality protection also afforded stale or fraudulent claims or the corrupt connivance of ” employees or officials.’ 275 Or at n.5.
To achieve the Act’s purpose prompt notice to public bodies, notice of claims must be timely by received correct official. The amended statute describes the manner in which notice is to be given, but its purpose is to bar claims where proper notice is not by received the proper official. That purpose allows for substantial with the notice requirements, but the margin gence for diver from strict compliance is narrow.
Where the notice required by 30.275(1) ORS is actu- ally received in the requisite time period by statutorily designated official, the statutory purpose is satisfied. To automatically require that the notice be by sent certified mail under these circumstances ignore would be to the statute and to make it a mere trap for the deserving but SAIF, claimant. In Stroh unwary (1972), involving a similar requirement that a notice be sent by certified or registered we held that actual notice is the equivalent of notice by certified mail. We stated that the effect of the statute specifying notice by certified mail is to make a notification so sent effective even though it is not received. However, the court stated that it does not follow that failure to certify the notification renders it ineffective where it actually received the noticee. 261 Or at reasoning 120. That applicable is also here.
Thus, we hold that where required by the notice 30.275(1) is actually received the statutorily designated official, the statute has been substantially complied with of claim notice is valid. Because allegations proper received was defendants and processed investigated claims tort are amenable to proof proper actually notice was received by the correct officials, sufficiently we hold he has pled substantial requirement. with the notice opinion our difference opinion
Our
states
answer
Lent, J.,
words in
but a few additional
dissent of
concludes
His dissent
Peterson, J.,
appropriate.
are
dissent
an
clear statutes “unless
application
for literal
with a call
this,
dissent
thereby.” In
is reached
absurd result
Co.,
Machinery
v. Star
with Johnson
consistent
*6
(1974),
we said:
bring an unreasonable about beyond way look the words give and the court must must * *”* 270 the act. Or at 704. posted claim not deny To a claim because his notice of was actually very it was received correctly though even requires posting to us an to whom the statute seems official or not did not have absurd result which the would arguable an we Although position, the dissent takes intended. to be arguments compliance find the in favor substantial more persuasive. need literal argues allege
Plaintiff also that he not he has compliance requirements with the notice because of defendants which are tantamount to waiver alleged actions proof an If estoppel. plaintiffs or act as of substantial fails, estoppel will become mate- compliance then waiver and body for a can Assuming argument governmental rial. estopped asserting or from requirements notice be waive sufficiently them, plaintiff hold not we nevertheless estoppel.4 alleged facts which show waiver or OSP, P2d 611 1153 As in Adams v. 289 demurrer, allegations examine (1980), on we body public can whether a waive do not reach issues of We estopped may requirements be or entities of ORS 30.275 whether the notice requirements. insisting with those from on strict estoppel
both waiver
by allowing
and
all reasonable inferences
from the
See
pleadings.
also Christensen v.
287 Or
Epley,
scrutiny,
In Terminals v. P. S. P2d we defined waiver as the intentional relin quishment quoting known an right, Oregon earlier case applicable regarding pleading rule waiver: “ * * * express agreement in the absence an waiver will presumed implied contrary not be to the intention of the party rights injuriously whose would thereby, affected opposite party misled, unless his conduct the has been prejudice, his into the honest belief that such waiver was consented make intended or to. To out a case waiver of a clear, legal right unequivocal, there must be a decisive act party showing purpose amounting such a or acts to an ” * * * estoppel part. his on Or at 26-27. Ins., 62, 72-73, Accord Great American Ins. v. General allegations Plaintiffs that each defendant processed received a it investigated as a tort pursuant claim 30.275 does sufficiently allege relinquishment defendants’ intentional of their right rely proper precedent on notice as a condition to commencement of a alleges clear, tort action them. Plaintiff unequivocal showing or decisive act to waive the *7 prudent tort requirements; may claims notice officials process alleged investigate intending well claims without objection improper to waive their of such to claims. Thus, complaint we conclude that the is insufficient to allege waiver. theory equitable estoppel requires
The traditional misrepresentation plaintiff plead that a and his reliance al, et 530-531, thereon. See Earls ux v. Clarke et has pled Plaintiff neither of these ele However, ments. argues defendants’ fall a has alleged actions under doctrine which been an estoppel, estoppel advanced as alternative branch of through “standing by without action.” See Belleville v. Davis, Belleville, In P2d 744 a type case, recognized the court peformance specific ed): (4th 692-93, Prosser, Torts quoting § estoppel, upon depend positive mis- branch does not “The second take upon mere failure to take representation, but is based by’ party allows another ‘stands It arises where the action. liability property, or to incur some toward his to deal with may he Thus him, informing the other of his mistake. without stranger, goods sold to a when he sees his not remain silent land, rights his upon made his and still enforce improvements wrongdoer. estoppel law of creates a innocent against the right duty speak, penalty under of loss of to assert to in no such a case there is active truth at a later time. Since himself, party, misleading of the other who misled in with the upon insisted some fault connection courts have estopped. estoppel There is where the one to be conduct of faith; good in he must reasonably and he had remained silent that the other about rights, his and must realize be aware of estoppel belief. Thus this branch of to act under mistaken conduct requires either an intent to mislead or unreasonable act, in than amounting negligence failing to rather estoppel by misrepresenta- responsibility imposed in strict tion.” 262 Or n.6. guilty of
Plaintiff has not the defendants were alleged failing amounting negligence “unreasonable conduct he allege act” or “an intent to mislead.” Hence does not estoppel. based either cause action on branch Appeals reverse the Court of and hold that We improperly defendants’ demurrers were sustained.
Reversed and remanded.
TONGUE, J., specially concurring. majority, concur the result reached but opinion, complaint was my a different reason. In his support entitle him to offer evidence in sufficient had the notice mailed to accepted contention that defendants arising waived defect from the fact that them and had by regular sent rather notice had been than mail. are dis- parties on
One of the issues defendants, corporations, municipal agreement is whether mailing of the notice the defect could waive *8 86
regular by opinion, my mail, instead of mail. In certified such a by municipal corporation. defect can a be waived Sprague court, Astoria,
This Or P (1921), quoted approval with McQuillin, 309-10 from (Supp), Municipal Corporations, Vol. 8 Section follows: “ requirement(notice accident) ‘Thewaiverof the although may sanctioned, not certain defects the notice contradistinguished waived, as waiver from of absence of ” notice.’ City Brookings, Our later decision Bankus v. by defendants, cited did not previous involve a defective notice and did not our overrule Sprague. decision in complaint alleged only
Plaintiffs not that a claim by mailing was made a letter and that the was letter received. complaint alleged “processed The investigated also that the claim was and County defendant Clackamas defen- [and pursuant dant school tort district] as a claim to 30.275.” majority, supporting with authorities, no citation of holds plaintiff complaint allege sufficiently that s “does not defen- relinquishment rely right dants’ intentional of their on proper precedent notice as a condition a commencement of alleges “[pjlaintiff clear, tort action unequivocal them” that showing purpose
or decisive act a to waive the requirements” “prudent public tort notice claims and that may process investigate alleged officials well claims intending improper objection without to waive their of such claims.” disagree. my opinion, likely In it is far more by regular mail,
defendant who receives a claim rather than only proceeds “investigate but then process” pursuant claim, Act, claim does so but “as to” the irreg- Tort Claims does so an intent to waive the ularity mailing. Indeed, in the method of it is some- say what incredible to that a defendant who could immediately reject ground a claim on the it was improperly expense, incurring any mailed, without time or further expense
would incur the substantial time and “investigating processing” involved in claim “as defendant unless the Act the Tort Claims to” pursuant claim technicality. to waive intended *9 in be, so, allegations it to these If this be believe this require as to defective are not so complaint an have may he deny plaintiff a trial at which to the court allegations these support in evidence to offer opportunity did defendant find that could properly a jury from which technicality. intend to waive indeed that: provides 12A ORCP Rule a view liberally construed with shall be “All pleadings parties.” between justice to substantial Assoc., 253, In Emerick Co. & 242 Or Bohnenkamp (at 256) (1965), this that: P2d 332 court held 409 “ principal pleadings litigants enable ‘The function of is to and, merits, bring generally their to trial on the controversies per speaking, concerning pleadings rules should not be party’s except right mitted to to a trial when to do defeat unjust adversary otherwise to his or violate some would Robinson, 1944, 174 Ross v. express command of statute.’ 25, 26, 147 principle repeated P2d 204. The same has been Or Co., 1963, 235 Perkins v. Oil Standard 7, 383 several times. Or Faust, 1960, 222 Parker v. 107, 383 1002; 526, 353 Or P2d P2d al, 1927, et L.B. Lumber Co. v. MacDonald 550; P2d Menefee 579, 122 Or P 444.” 260
In
refer-
recognition
principle,
this same
after
(since
by
supplanted
ence to Section 1-902 OCLA
ORCP Rule
12A),
Marshall,
held in
this court
Stotts v. Johnson and
192 Or
403,
1059,
(1951)
415,
234 P2d
“Under statutes to the one construction pleading implied by attributes to the all facts which can be fair averred; expressly and reasonable intendment from those course, provided, judicial places construction never contrary upon any pleading express meaning language: to its C.J.S., 54, Pleading, p. 123.” § of the of this rule in somewhat Examples application similar cases include more recent decision this court P2d 859 Cody Oregon, v. Ins. Co. 593) (at (1969), was sufficient holding complaint an an alleging estoppel facts sufficient to constitute company insurance to assert the statute of limitations as a defense an action on an insurance company, despite failure specifically allege the elements of an estoppel. Again, Salem, v. City Borden 249 Or (at 436 P2d this court 41) rejected plaintiff s city contention that the had “waived its governmental immunity,” holding that the city had suffi ciently raised that contention pleading in its answer “the ultimate facts from governmental immunity implied * * * aas matter .” See also Rich v. lawof Mill, Tite-Knot Pine 185, 197, in Mezyk v.
Similarly, Repossessions, National 333, 339, 405 P2d held, this court in a although context, different that: allegations complaint,
“Under the entitled to offer admissible evidence relevant to these two issues. We reasonably hold that it is conceivable that plaintiff could introduce evidence which would enable the *10 trier of the facts to find that the defendant should have contingencies.” foreseen both of these Eugene, v. City Brennan As also held in 401, of (1979): demurrer, “Because this case is before us on we must plaintiffs assume the all pleaded truth of well allegátions and any might conceivably facts that proof be adduced as of such Mezyk, allegations.” Citing Or at 405. More specifically, v. United this court held in Jaloff Exch., Indemnity
Auto 187, 195, 253 883P that: performance precedent may “Waiver of a condition pleaded by statement facts sufficient to establish words, In unnecessary waiver. it other to aver waiver * * alleged (Citing terms where facts show a waiver cases). many follows, my
It judgment, that under the allegations complaint of this that plaintiffs “processed claim was by investigated” defendants “as tort claim pursuant to ORS 30.275,” plaintiff is entitled to a trial in this case so as to afford him an opportunity evidence, to introduce can, if he from which a jury properly “pro- could find that cessing investigating” plaintiffs claim “as a tort claim pursuant 30.275,” to ORS defendants intended to waive claim-was sent from the fact arising defect than certified mail. by regular to rather them remanded for least, now this case is to be At the majority, plaintiff the decision in accordance with trial in more detail complaint alleging to an amended is entitled file offer his waiver and to supporting facts contention of allegations. of such support evidence J., LENT, dissenting. opinion complaint
The holds that the states majority and to proceed sufficient to allow the trial facts “a upon of claim present evidence that notice was served process upon public could be served person upon whom (3) in accordance with subsection of ORS 15.080.” body majority complaint holds sufficient by implication “person it that the whom alleges upon because actually process could be served” received the notice. this to be with the majority finds substantial statute, My agree disagreement it is. decreed, commandingly
majority that the English language permits, as the that substantial is not sufficient. Oregon
In enacted the Legislature “general IV, Art actions required law” Const allow § recovery the state and other bodies statutory injury. for tortious One of the conditions damages of the prior immunity giving the waiver was person in the manner and described. Or Laws claim notice, a required ch 5. Absent the giving § not be maintained. Id. cause of action could *11 noted, Appeals Court of As the the majority to where allowed causes be maintained this court had strictly not had in a manner presented notice been amen- When the statute was with the statute.1 the of ORS add what is now last sentence ded in 1977 to 1 (1976); Agency Lackey, v. Yunker v. 657 Urban Renewal 549 P2d Matthews, 551, 574 (1978) predated (dealing the App facts which Or P2d 696 with 32 Comm., West/Highway amendments); App P2d & 506 Gulf Croft
30.275(1), legislature the attention of the directly was focused upon tendency of the the courts to relax the terms of the statutory precedent condition to maintaining cause of quite simply says action. sentence that a notice is invalid any if it is presented in manner other than “personally byor return receipt requested.” I perceive this amendment legislature to sought the scope upon narrow of trial issue whether proper person required had received the notice. The amendment proof would allow of satisfaction of the notice requirement only personal evidence showing service upon person or proper production of receipt, the return would demonstrate service had been made certified mail. accomplished Proof could be in no way. other It is tempting agree that substantial suffices because if the person statutorily designated to receive actually notice, receives the purposes requiring served; however, notice are clearly manifested its intent evidence of receipt any actual manner other specified than that in the statute to satisfy would suffice precedent the condition maintaining cause action. The legislative purpose towas relieve from bodies having to defend having assertions of notice been given prescribed. than as consequence other A would be spending judicial avoidance of upon resources trial of the issue right person actually whether the received the notice in other than the prescribed manner. I might disagree While decision, policy with the it produce is not absurd does not majority, by holding absurd result. The plaintiff that a can present actually evidence that the proper person received manner, simply notice in some other vitiates the amendment. all, strictly After isit not difficult with comply simple, easily statute. Its terms are direct understandable. physical required are acts themselves not onerous or complicated. County, Lake Dowers Farms v.
P2d 1361 I agree majority has not alleged prevail upon theory essential elements estoppel. express opinion either waiver as to *12 of to in this kind theory either is available a whether action.
I and the Court of would affirm the trial court Appeals.
Linde, J., in this dissent. joins PETERSON, J., dissenting.
I dissent. result, a opinion reaches a desirable majority is the ethereal standard result which consistent with “fairness,” and which is with the aim the statute consistent that the unwilling pay price to achieve. But I am the seeks willing pay is attain desired result. majority is majority the reaches agree I that decision implicit unstated purpose consistent with an statute: and to give public body timely “To notice of the tort claim opportunity investigate allow its officers an matters (291 81-82). necessary all facts” promptly and ascertain an expense express But that conclusion is reached at the requirement express requirement adopted of the statute —an very that goal to attain same —and reading express requirements out of the statute the that “* * * given notice must be either personally “ * * * requested and that “a notice of receipt return * * * * * * other manner presented claim * * * invalid .” an majority purport
Because the does not to construe statute, need behind the ambiguous there to look statute its intent. The statute is clear on legislative to determine Applying plain, unambiguous meaning face. statute of the statute. The underlying, purpose attains the unstated effect, construction also attains majority says, “Our merely analysis But that purpose stated the statute.” do legislative judgment. our for the We judgment substitutes legislate. application literal is this a case in which a Nor As stated of the statute. the statute frustrates above, according plain to its application of the statute deny proper do not meaning achieves end. *“* * judicial requires recognition construction of a statute implementation underlying legislative purpose, process society’s sensitive which must accommodate claims purpose. Roger this, demands reflected To do Traynor puts judges, it, ‘literate, need we not literal’ lest a letter, court make construction within the statute’s but (or beyond not, its intent.”1 But one does not should I should say) unambiguous need an to construe statute.
My majority opinion difference with the is over the meaning changes legislature of the made the 1977 to ORS changes 30.275.The read as follows: “* * * upon Notice claim Attorney of shall be served the public body’s representative General or local for of service process personally receipt either or return requested. A claim which does the not contain subsection, required by presented information this which is any invalid, provided, except other manner than herein compensation that failure to state the amount of or other (Emphasis relief demanded does not invalidate the notice.” added.) correctly majority points
The
out that
in Urban
Agency Lackey,
(1976),
v.
Renewal
P2d
this
applied
theory
compliance
prior
court
the
of substantial
ato
Appeals
version
the Tort Claims Act.
The Court
did
App
Mathews,
likewise Yunker v.
574 P2d West./Highway
App
Comm.,
&
Or
Croft Gulf
majority
correctly points
507,
schemes n key kept However, the factor that must mind majority none cites, the statutes involved in the cases which the including predecessors 30.275(1), to ORS contained comparable 30.275(1), clauses to the last sentence ORS none of these cases involved amendments which were designed very majority to avoid the result reached opinion in this case. any majority, despite ambiguity
The lack of quest upon statute, then embarks to determine by adding legislature, whether final sentence 1Aldisert, The Judicial Process 170 com- theory of substantial above, intended that
quoted 30.275(1). majority to ORS apply longer no would pliance final addition of the for the purpose following ascribes intended to have been appears language “The sentence. within narrow compliance of substantial the doctrine confine 81). (291 it.” necessarily to eliminate limits, not but from divergence margin that “the also states majority 82). (291 Or at believe is narrow.” strict application of to eliminate the amendment was of the 30.275(1). to ORS of substantial the doctrine words, man- The clear “in other meaning need question. ner herein forecloses the We provided,” than history legislative the statute. But even if the look behind examined, com- it reflects the intention substantial pliance longer adequate would be to meet the mandate 30.275(1). 81) (291 Or at opinion majority The reference in the “ten- concerning the testimony to the before likely requirement,” the notice by the court to relax dency above, likely reflects cited Oregon *14 to the cases refers in provided giving manner of notice be intention that the out the way. This is borne and in no other the statute 30.275(1) statement concludes with clear itself. ORS statute the information (a) “which does not contain that a notice presented is invalid, (b) a notice “which is required” specific exception is a There any other manner” is invalid. or other compensation amount of “failure to state the that a That lan- the notice.” does not invalidate relief demanded exceptions, those except me that for indicates guage The permitted. statute were to other variations from the Supreme the knowledge that charged is with the legislature that notice session, had ruled the 1977 Court, previous though mail is sufficient even by regular actually received SAIF, 261 Or Stroh v. mail. for notice certified statute calls mind, (1972). knowledge this P2d 472 With requirement stop did not legislature mail making the certified mail. After by be sent * * * “a notice language: added the it then requirement in this provided than other manner presented * * section, invalid, legislature *.”2The made its intent clear. Surely, necessary it is not for the legislature to re-enact 30.275(1) amendment ORS 1981 and then add “and this really it,” mean give time we court to effect to the clear legislative that, intent. The conclusion is obvious rather than giving approval appellate sub silentio to the recent court cited plaintiff, decisions made a deliberate repudiate choice to the substantial approach clearly the courts and to its express requirement there be requirements strict with the notice of the Tort Appeals correctly stated, Claims Act. The Court of “Unlike SAIF, 117, 492 in Stroh situation 261 Or P2d 472 legislative here the purpose that notice conform to the statu tory requirements clearly stated. requirements Those were met. County, See Dowers Farms v. Lake (1980).” #1, P2d 1361 Brown v. Portland School Dist. 571, 574, App
Certainly plain of the final meaning sentence of 30.275(1) conclusion; support majority’s does not nor the legislative history support does its conclusion that legislature “intended to confine the doctrine of substantial (291 81). compliance within limits” narrow Or at view the majority’s holding judicial as an unwarranted excursion into the legislature’s statute-making prerogative. Let me illustrate hypothetical with this scenario. June, time: 1977.
[The Salem, place: Legislature, Oregon. attorney An State (A)in Legislative the officeof the Counsel Committee is hard (L) angry legislator An at work. enters.] Renewal,3 you L: Are familiar with these cases of Urban Yunker4 and Croft?5 No, Why you I’m
A:
not.
do
ask?
SAIF,
language distinguishes
this case from Stroh v.
addition of this
117, 492
P2d 472
*15
Agency Lackey,
35,
(1976).
Renewal
v.
Urban
L: Good! June, 1981. A years later, place, sitting at the four [Same L enters, angrier carrying a sheaf of
same desk. than papers.] you
L: You sure know how to draft statutes! Do know what Supreme just did? Court No, they A: what’d do? In this Brown case on A’s papers
L: [L throws sheaf of desk] O.K., they by long held that service first class mail was so They
as it was received. said that we intended to “confine the doctrine of substantial within narrow limits.” they
A: How could hold that? I drafted that statute as could, any I tightly saying presentation other only exceptions manner was invalid. I even listed two compensation and relief [amount demanded] strictly complied need not be with. What more could I have said? you prepare
L: I But I don’t know! want an amendment saying say years clearly I ago, what meant four unequivocally. Gosh, try. say suppose something along
A: I’ll I could these
lines: any presented
“A other notice of claim which is invalid, provided manner than herein and we mean it!” Or, say: I could any presented
“A manner than notice which is other by mail, receipt requested, personally return or presented regular invalid. No service is valid which is mail, mail, by parcel post, by registered telegram, Service, Express, manner United Parcel Federal personal receipt return other than service or certified requested.”
L: Then do it! First,
By points. this scenario I seek to make two necessary It is neither nor the statute is clear on its face. *16 96
appropriate legislative Second, to resort to intent. it is diffi- impossible, cult, if not to make the statute than clearer it is. 6
In Farms Dowers we held that the barred statute recovery even the though county had actual notice of the claim, field, inspected the the investigated claim. We held the that barred though was even the purpose Tort Claims Act the [quoting majority at 81-82: give public body “to timely notice of the tort claim and to its allow an opportunity officers investigate matters promptly necessary all met, ascertain had been facts”] saying: legislativerequirement
“The
that written notice be caused
given
county
county
to
not difficult
to the
clerk in a claim
is
* *
a
comply
one with
In a dissenting opinion, recent one of this member opined:7 court statute, however,
“Even were there the rationale by majority for its requiring offered recorded new rule disclosure
grand
testimony
jury
more than
it
is no
required ‘in
justice.’
appellate
the furtherance of
Whenever an
upon
that,
solely
phrase
amorphous
relies
court
as
red
flags
fly
usually
should
and sirens should
because it
sound
signal
accomplishingjudicial
that the court is
will
than
rather
* *”*
legislative or constitutional intent.
“The restrict itself to the literal the one hand court cannot Yet, said: the statute. as Learned Hand has words of “ government judge find out what ‘When tries to say, puts he into its would have intended which it did not said, ought it to have and that things mouth which he thinks Let very substituting right. what he himself thinks close to *17 however, beware, usurp govern- him or he will the office of ment, way though even in a small he must do so order to given execute its real commands at all.’ Whether a case upon ‘legislating’ take itself the task leave court should job very sophisticated itself a to involves system judgment legal and delicate about the and the relation- ships legal between our institutions. On the one extreme there question legitimacy can be a serious a and on other stagnation. serious risk of About all that can be said with certainty questions is that such cannot be answered advanced, simple-minded including plain formulae often meaning rule.” says everything majority regarding
I concede purpose provisions of the notice of the Tort Claims Act. I my “trap concede that construction of the statute makes it a unwary deserving (majority opinion for the 82). but claimant” many statutory requirements. I But no more so than other pay price majority willing pay, unwilling am sacrificing long-established statutory on
rules of construction unwary “deserving claimant,” altar of a but of cause every person deciding converting judge who, trial into a required applied, follow, to be not the whether statute is statute, clear the unstated terms but equal Therefore, it. I am not to that task. this underlies feebly my my opinion, flag siren, raise and sound not because deserving doing so, because, in we are claimant wins but 8 Murphy, “Plain-Meaning Statutory A. Old Maxims Never Die: The Rule” and Courts, Interpretation 1299, 1317 (1975). in the “Modem”Federal 75 Colum L Rev
interring rule that clear I deem to be the cardinal what according applied unambiguous their statutes should be thereby. do not reached We terms, an absurd result is unless needs no construction. construe that which