*1 7,Mаy Argued questions question submitted certified and additional 29, 1999 July answered DISTRICT, SHASTA VIEW IRRIGATION corporation, municipal Plaintiff, CORPORATION; AMOCO CHEMICALS Company, Amoco Chemical a/k/a corporation Amoco Corp; Chemical Amoco Reinforced Plastics Company,
Defendants. (USDC S44723) CV9403064-JPC; 96-35869; USCA SC
Roy Pulvers, Hart, LLP, Neil & Lindsay, Weigler, Port- land, the cause argued for defendants. With him on brief were Portland, Henderson, Jerard S. Weigler, and Randall S. Pasadena, California. *3 Adams,
Jas. General, Salem, Assistant filed Attorney a brief for amicus curiae of Oregon. State With him on the brief General, were Hardy Myers, Attorney and Michael D. Reynolds, Solicitor General. Gardner, Gardner, Portland,
James N. of & Gardner and Stiles, William of N. Sussman Shank & Wapnick Caplan Stiles, LLP, Portland, filed brief for amici curiae Associated Industries, Oregon Pharmaceutical Research and Manufac- America, turers of and of Oregon-Columbia the Chapter America, Associated General Contractors of Inc. Carson, Justice, Gillette,
Before Chief and Hoomis- Van sen, Durham, Leeson, and Kulongoski, Justices.
LEESON, J. J.,
Durham, in part concurred and dissented in and part filed an joined. which opinion Kulongoski, J.,
LEESON, J. of is before the court on certified questions
This case of for the the States Court Oregon Appeals law from United 28.200 and ORAP 12.20. We seq. Circuit under ORS et Ninth the certification from Ninth Circuit’s following take facts order: (‘Shasta’) organ- Irrigation District was
“Shasta View 5,1917, pursuant Chapter ized formed on December and 1917, Chapter 545 of Oregon 357 of the Laws of now fifty-six approximately There аre Oregon Revised Statutes. irriga- members members of Shasta. These own individual Shasta, of and geographic boundaries ble land within their to others. farm lease land pro- project a rehabilitation betterment “Under Shasta, miles twenty-one existing unlined posed by over replaced approximately canals to be with seventeen were 1972, pressure April Shasta pipeline. miles of buried with the United States Bureau entered into contract The that the United States provided Reclamation. contract $3,222 for rehabili- up to million to Shasta would loan irrigation system. The term tation and betterment of sixty-five years. the loan was specifications
“In the bid April Shasta released among other provided, project. specifications the irri- pressure pipe constructing used in things, that the year term of the sixty-five must last for the gation system loan. for con-
“In Shasta entered into a contract June system. pipe pressurized irrigation struction of types two different contractor elected use installation Techite, constructing system: a brand pressure pipe by Amoco plastic pipe mortar manufactured of reinforced in approximately used [Amoco] Plastics Co. was Reinforced man- 50,000 pipe an system asbestos-cement feet of used Corp. was by Certainteed Products ufactured 38,000 approximately system. feet * * * *4 Amoco between Techite was ordered from “The began pipe September 1973. Installation June and In yeаr. completed by June February 1974 and was system 1975, as com- July accepted irrigation Shasta plete operational. Shasta,
“According to pipe the Techite has failed approximately times, twenty-six beginning with occurring 1,1982. two of the failures July before On Febru- ary 16, 1989, Shasta’s board of directors voted favor of pursuing legal action the manufacturer of the Tech- ite pipe. Shasta filed present action in Oregon superior [sic], court alleging product liability, strict negli- gence, express breach of warranty and fraud/misrep- resentation. removing
“After the action to federal district court on of diversity basis of citizenship, Amoco filed a motion for summary judgment, claiming that all of Shasta’s claims were statutorily time barred. The district court granted summary judgment Amoco, in favor of finding that Shasta was not a ‘public corporation’ purposes of statutory time that, therefore, limitations and all of Shasta’s claims were time Oregon’s barred Liability Product statutes. timely [Shasta] appealed.” The Ninth Circuit certified the following two ques- tions to this Court:
“1. Is an irrigation district a ‘public corporation’ for purposes of applying the exemption applicable limita- tions set out in [ORS] If irrigation 12.250? an district ais ‘public corporation’ 12.250, under [ORS] then:
“2. [ORS] Does exemption 12.250’s limi- tations apply 30.905(1), [ORS] a statute of ultimate repose outside chapter [ORS] 12?” We accepted certification and, of those questions time, at that added an additional question:
3. “If ORS apply 30.905(1), 12.250 does not to ORS then is there a common-law variation of ORS 12.250 that would to ORS to make Shasta’s action timely?”
See Western Helicopter
Rogerson
Services v.
Aircraft,
Or
(1991) (court
361, 370-71,
156 QUESTION NO. 1:
CERTIFIED pur- for irrigation ‘public corporation’ “Is an district a poses exemption applicable the limitations applying in [ORS] set out 12.250?”
ORS 12.250 provides: thereto, made the limita- “Unless otherwise chapter in this shall not to actions prescribed tions state, any county, in the name of the or other brought therein, public corporation or for its benefit.” added.) legislature Shasta contends that has (Emphasis and that irrigation nature of districts recognized public several statutes “confirm the general proposition districts like other cor- Oregon irrigation [public] law treats Furthermore, no argues, Shasta there is evidence porations.” that the intended not to extend legislature ORS 12.250 irrigation replies ORS 12.250 to districts. Amoco protection of to the “inescap- that the text and context of ORS 12.250 leads districts are not one of the irrigation able conclusion that entitled to an within corporation[s]’ exemption ‘other public of that statute.” meaning the first certified we must con question, To answer The “other therein.”1 phrase, public corporation strue of our is the text and context of the starting point analysis natural, their statute, words of common giving usage plain, Labor and meaning. See PGE v. Bureau ordinary 1 еarlier, summary judgment granted in favor of As noted the district court “public corporation” purposes ground that Shasta is not a Amoco on the statutory claims that it would not answer the first cer time limitation. The dissent public corporation, question, because which deals with whether Shasta is a tified agrees, question, “obvi to the second certified with which dissent our answer (Durham, J., 1.” Or at 165 dis ates the need to answer Certified senting). Although No. Question question that has been certi the dissent would not answer Circuit, curiously question, Ninth it would answer much broader fied (Durham, J., dissenting). namely, “public body.” at whether Shasta is a 329 Or body. legislature parties argue Shasta is a did not brief or whether 30.260(4). public body extraordinarily terms in ORS The dis has defined a broad it, that, public body, apparently with other hold because Shasta is a as sent would bodies, rely incorrectly characterizes as the is entitled to on what the dissent tempus regi.” By answering the first certified rule “nullum occurrit common-law answering public corporation properly avoid question is a Shasta —we —whether sponte. question that the dissent would raise and answer sua the broader (1993) (describ Industries, 606, 610-11, 859 P2d 1143 ing statutory construction methodology).
The term “public corporation” is not a term of com-
usage,
mon
and neither
the statute nor ORS
chapter
However,
defines the term.
this court has held that a public
is a
formed for the
corporation
corporation
public’s benefit or
for a public purpose. See State ex rel Eckles v.
Woolley,
Or
(1986) (so
37, 48-49,
Two words of common usage ORS 12.250 modify the term “public corporation”: “other” and “therein.” Based on the express statute, words of the we conclude that the exemp tion described ORS 12.250 to applies corporations in addi tion to—or other than —the state and counties that are formed for the public’s benefit.
The next is inquiry whether an irrigation district is formed for the public’s benefit or for a public An irri purpose. gation district is a corporation formed to foster the beneficial use of water by the public. See ORS 545.249 (irrigation dis trict’s use of all water, water rights, and to rights appropriate water “declared to be a use public more and more necessary use”). beneficial than any other In Twohy Bros. Co. v. Ochoco Irr. al, Dist. et Or P 1, 11, (1923), 216 189 this court held that an irrigation district a municipal corporation, because “its property [is] and its property [are] officers officers, elected the legal voters of the district irrigation * * *. Such a district ‘is created for a public purpose ***.’” From the we foregoing, conclude that an district irrigation formed under ORS chapter 545 is a public corporation within the meaning of ORS 12.250. Question
We answer Certified 1No. “YES.” QUESTION CERTIFIED NO. 2: exemption applicable “Does 12.250’s limita- [ORS] 30.905(1), repose [ORS] of ultimate apply tions statute outside of 12?” chapter [ORS] question
The second certified subsumes two issues. first in ORS 12.250 is exemption is whether prescribed chapter restricted to limitations in ORS exemption applies chapter whether outside ORS as The second issue is whether exemption applies well. 30.905(1), ORS which is a statute of ultimate outside repose ORS 12. chapter
Shasta
from
argues
exemption
statutes
of limitations
outside ORS
applies
chapter
because ORS 12.250 contains a
reflected in the Latin
policy
maxim,
occurrit
which
tempus
regi,”
“nullum
means that
[sovereign].”
“[t]ime does not run
Black’s Law
at 1068. Amoco
that resolution of the
Dictionary
responds
issues is a matter of
construction. We
Con-
statutory
agree.
we turn
con-
sequently,
again
template
statutory
struction,
first to the text and context of the statute.
looking
PGE,
tence. contained refers to “the limitations ously prescribed chapter.” 570, 577, P2d Newport, See Chizek v. Port in ORS 12.250 does not outside ORS (exemption 12). unless statute were to chapter Consequently, some other *7 in to a exemption applicable make the contained ORS 12.250 exemption outside ORS that proceeding chapter applies only to the limitations contained ORS 12. chapter 30.905(1) ORS itself We next whether makes inquire 30.905(1) 12.250 ORS exemption applicable. ORS provides: “Notwithstanding except ORS 12.115 or 12.140 and as (2)
provided in this section and ORS 30.907 subsection 30.908(1) (4), product liability civil action shall be eight years later than after the date on commenced not product purchased which the was first for use or consumption.”
159 30.905(1) terras, By its ORS does not make the express in ORS 12.250 to the ultimate exemption repose commencing liability civil action. period products 30.905(1) reference in ORS to limitation con only periods the ultimate repose period tained in ORS is that chapter 30.905(1) is, in notwithstanding spite in ORS applies —that contained in ORS 12.1151 and ORS of—the limitations Thus, did not legislature 12.140.3 the text indicates that that 12.250 to the ulti exemption apply intend ORS 30.905(1). mate in ORS repose period state, We conclude that the exemption granted public corporations by counties and other ORS 12.250 does 30.905(1). not the statute apply repose of ultimate ORS Question We answer Certified 2 “NO.” No. QUESTION
ADDITIONAL NO. 3: 30.905(1), “If ORS 12.250 does not to ORS then is there a common-law variation of ORS 12.250 that would apply to ORS to make timely?” Shasta’s action
We note at the outset not question is whether there are any common-law rules that be rele- might vant to the analysis Rather, in this case. the question is whether there is a common-law variation of ORS 12.250 might be relevant in analyzing Shasta’s claim. There is.
The common-law variation of ORS 12.250 is that
general statutes of limitations do not run
govern
ment unless the statute “otherwise expressly provide[d].”
Co.,
State v.
Valley
283, 308,
Warner
Stock
“Th[e] How- tempus regi. nullum occurrit in the maxim expressed salutary precept ever, necessary predicate it is not fiction, the rule is found any since sound reason for upon necessary to public policy it is the fact that as a matter injury property from preserve public rights, revenues * * officers negligence public and loss exemp- recognized governmental Oregon originally general the com- of limitations afforded tion from statutes However, 1862, 13, Board, at 435. mon law. State Land the by enacting legislature Section the rule abolished provided: Deady’s Code, which apply limitations in this title shall prescribed “The state, county or brought in the name of actions therein, benefit, its in the or for public corporation
other by private parties.” manner as to actions same 1845-1864) (Deady p Oregon, § 13, 1, Laws of ch General added). (emphasis state, counties, or 13, the Under Section exemption public corporations lost their common-law other running general 1903, limitations. In statutes of frоm the running exemption legislature from the restored that by amending 13 as Section statutes of limitations most follows: apply in this title shall prescribed “The limitation state, any county, or brought in the name of the
actions * * therein, or for its benefit corporation public other p Oregon § 13, I, I, II, title ch Law, v Lord’s added). (emphasis 1903, words, between 1862 and In other application legislature expressly of stat- consented to any county, state, or other limitations utes of legislature corporation. However, revived general common-law rule a version of the and codified entities, unless to those do not statutes of limitations provides by necessary implication expressly or the statute Board, 436. 84 Or at State Land otherwise. introductory exception clause, which
With 13 has remained the text of section added was unchanged exemption since its amendment in 1903. That general state, counties, from statutes of limitations for the corporations currently at ORS other is codified 12.250. explained analysis As in the of the second certified *9 question, exemption in ORS is limited to 12.250 statutes chapter legis- 12, limitations of contained ORS unless the expressly applicable lature makes ORS 12.250 outside ORS chapter reasoning Nonetheless, 12. behind the common- exemption guided determining law has this court whether chapter a statute of limitations outside ORS 12 bars an brought county, public state, action corporation. on behalf of the or other example, question Board,
For
in State Land
running
ten-year
was whether the
in
of a
statute of limitations
Oregon
chapter
1913,
304,
General Laws of
barred the
foreclosing
mortgage
State Land Board from
on a
lien. This
court held that the statute did not bar the State Land Board’s
light
action, because the court viewed the statute “in the
of
previously
policy
state,”
declared
436,
id. at
namely,
necessary
preserve
rights,
public
that “it is
reve-
property
injury
negligence
nues and
from
and loss
of
public
(pub-
434;
Chizek,
officers.”Id. at
accord
With that we turn to whether the com- exemption applies exempt oper- mon-law Shasta from the 30.905(1). ation of ORS issue, To resolve that must we ana- lyze purposes underlying statutes of limitations and repose. statutes of ultimate party “limit[ ]
Statutes of limitations the time a has Sealey to initiate an action once a claim has accrued.” v. (1990); Hicks, 7, 788 Or n 309 394 P2d 435 Baker see also (“Statutes Kennedy, v. 372, 376, 317 Or P2d 856 314 actions.”) legal (empha limitation refer to commencement of original). Generally, sis in a statute of limitations does not begin injured party to run until the or should knows know injured. Parsons, 247, 259, that it has been Gaston v. 318 Or 162 (1994). Co., But Great Western Seed
court
has
major
lobbying
“ORS 30.905 was the result of a
organizations
effort
business and insurance
for reform of
products liability.
perceived prob-
the common law of
lem
high
hability
leg-
was the
cost of
insurance. One of the
predictable
islative solutions was to fix a limited and
time
manufacturer, distributor,
period in which a
seller or lessor
would be
exposed
product liability
civil action.”
Erickson Air-Crane Co. v.
United Tech.
Corp.,
(1987).
286,
In Sealey, this court held that ORS 30.905(1) reflects the legislature’s determination “that an injury occurring more than eight years after a defective first product entered the stream of commerce is not legally cognizable.” 309 Or at added). 392 (emphasis The court also declared that enact- ment of ORS was within the legislature’s authority “to determine what constitutes a legally cognizable injury.” Id. at 394. above,
As discussed
the court explained in State
Land Board the common-law rule that the
government
is
included
general
limitations,
statutes of
unless included
expressly
by necessary implication.
judgment injury occurring eight years after a defec- product tive first enters the stream of commerce is not legally
cognizable because, after
time,
all claims are extin-
guished. Sealey,
In sum, because ORS premised not on whether a plaintiff has filed a claim in timely manner and because the expiration the ultimate repose period extin- guishes a claim under ORS 30.900 et seq., common-law exemption underpins ORS 12.250 apply does not to ORS 30.905(1). We conclude that the common-law variation of 30.905(1). ORS 12.250 does apply to ORS We answer Question Additional 3No. “NO.”
CONCLUSION For the explained above, reasons we conclude that an irrigation district is a public corporation under ORS 12.250. The exemption ORS 12.250 does not to ORS apply 30.905(1). The common-law variation of ORS 12.250 does not 30.905(1). to ORS apply
Certified questions question additional answered.
DURHAM, J., concurring part dissenting part.
I concur in the majority’s answer to the second cer- tified which question, asks: [ORS]
“2. Does 12.250’s exemption limita- 30.905(1), tions to ORS a statute of ultimate repose chapter [ORS] outside of 12?”
165
in
exemption
unambiguous
ORS 12.2501 is
and
applies only
prescribed
chapter”
to “the limitations
in this
added.)
(Emphasis
emphasized phrase
only
refers
to
ORS
12. The
in ORS 12.250 has no effect
chapter
exemption
on the deadline for
a
action in
commencing
product
liability
30.905(1)2
ORS
because that deadline is not a time limitation
in ORS
12. See Chizek v. Port
prescribed
chapter
Newport,
(1969) (ORS
570, 577,
252 Or
The majority’s answer to Question Certified No. 2 obviates the need to answer Question Certified No. 1. Because the exemption ORS 12.250 is not to applicable 30.905(1), no useful purpose is served by deciding, response Question to Certified 1,No. whether irrigation an district is a “public corporation” under ORS 12.250.1 would Question answer Certified No. 1 because the majority’s analysis Question answer to Certified 2No. renders Cer- Question tified 1No. moot. it,
As I understand the majority claims that Certified Question No. 1 raises a genuine controversy for two reasons: (1) that question was certified to this court the United (2) States Court of Appeals Circuit, the Ninth Question answer to Certified No. 1 somehow obviates the 1 provides: ORS 12.250 thereto, prescribed “Unless otherwise made limitations chapter brought state, shall not to actions in the name of the county, public corporation therein, or other or for its benefit.” provides: ORS 30.905 “(1) Notwithstanding except provided ORS 12.115 or 12.140 and as in sub- 30.908(1) (4), product
section
ity
of this section and ORS 30.907 and
liabil-
eight years
civil action shall be commenced not later than
after the date on
product
purchased
consumption.
which the
was first
for use or
“(2)
Except
provided
(4), product
as
in ORS 30.907 and
lia-
bility
years
civil action shall be commenced not later than two
after the date on
death, injury
damage comрlained
which the
of occurs.”
unspecified aspect
Question
need to answer an
of Certified
n
than
No. 3.
Certified No. 1 is moot and the majority’s answer to that question dictum. I dissent Accordingly, from the majority’s decision to decide Question Certified No. 1. Question Additional No. 3 asks:
“If 30.905(1), ORS 12.250 does apply to ORS then is there a common-law variation of ORS 12.250 that would 30.905(1) apply to ORS to make Shasta’s timely?” action Shasta that, View under argues the common law rec- ognized and applied decisions, this court’s special rules apply construction of statutes of general applicability, such 30.905(1), as ORS that could operate to deprive body of its right litigation commence to protect its inter- ests. According View, to Shasta this court follows what it calls a “default” approach to interpreting statutes, such viz., limit, that the court will construe such statutes not to the right of a public body to commence аn action unless the statute, either expressly or by necessary implication, applies to the public body. Amicus curiae State of Oregon supports Shasta position.3 View’s
The task of determining whether certain public bod-
ies are exempt from the
operation
is an
exercise
statutory construction. Under the methodology
*14
described
PGE v. Bureau
Industries,
Labor and
of
606, 611,
168 law how to exists, if must be in case that directs con- it found 30.905(1) in the context its a statute such as ORS of strue to a application body.
I at this court’s in inquiry, note the outset Question 3, No. into the substance to Additional response common has a state constitu English and effect of law Oregon’s provisional government adopted tional sanction. of statute by Oregon the common law before became England Hansen, 169, 172, state. State or a Or 743 territory 304 reprinted in (1987), 12, citing July 5,1843, Act of Art P2d 157 Code, 1 Or L History Oregon Harris, T. Rev Lawrence of reprinted (1922); 27,1844, III, 1, 129,135 Act June Art of § al., et Hulen et 483, 510, 275 Lytle id. at 138. al. v. Or P 45 (1929), states:
“ England principles ‘The common law of of or of equity, by the statutes of Iowa this modified principles, government, incompatible and not with its the law this land.’ Or. part shall constitute a of of L. 27,1844. 1843, 100, p.49 Act of June foregoing “The continued and remained effect statute Oregon adopted the Constitution of was 1859. Arti- when cle XVIII, Oregon provides: Section of the Constitution
“
Oregon
‘All
territory
laws in force
of
when
effect,
therewith,
constitution takes
consistent
repealed.’
continue in
until altered or
shall
force
27,1844,
7 of
the Act
June
and Section
Article
“Hence
of
statutory
constitute
and consti-
XVIII of
Constitution
England,
law of
tutional declaration
common
the Act
modified
the statutes
Iowa when
unless
June
27, 1844,
enacted,
subsequently
modified
was
prin-
and not
with the
Oregon,
incompatible
the statute of
government,
part
of our
shall constitute a
law
ciples
(182
143);
Fletcher,
43,
Peery v.
93 Or.
Pac.
Oregon:
of
re Water
(227
River,
114 Or.
Pac.
Rights
Hood
1065).”
in force the
XVIII,
Article
section
continued
sub-
law,
it
English
although
common
principles
stantive
law. See
rule into
any particular
enact
common-law
did not
Gravel,
&
147, 156-57,
Bd. v. Corvallis Sand
Or
Land
(1978) (so
Instead,
that cоnstitutional
noting).
“Wehave held force of our constitution and stat- (§7, XVIII, utes Art. Oregon Const.; Oregon, Law of 1843- 100) 1849, p. the common England, law of modified and by English statutes, amended as it existed at the time ofthe Revolution, American was adopted and is in force in this state, as far as it general was nature, and not local in its applicable was to the conditions of the people, and was not incompatible with the political institutions, nature of our in conflict with the constitution and laws of the United States or of this state.”
In re Moore, Estate (1950) (cita 63, 70, 223 190 Or P2d 393 omitted). See also Peery Fletcher, tions v. 43, 52-53, 182 93 Or (1919): P 143
“[The common law of England] has adopted been only so far general as its ditions spirit principles were suited to the habits and con- colonies, and in harmony with genius, objects of American institutions. geo- Different graphical conditions may justify modifications, and whether common-law rules will be strictly followed in the will, United States necessarily, where no rights vested are actually concerned, depend upon the extent to which they are reasonable and in consonance with policy and may sentiment. What be the common law in one state is not necessarily so considered in many jurisdictions anothеr. In in the United States the rules of the common Eng- law of land have been the held the courts to inbe full force so far as same are general nature, and of a and are not in conflict with the special Constitution or enactments of legislature. This is Oregon[.]” the rule in (Citations omitted.)
To the extent
the English common law attrib-
uted prerogative rights to the English
this court
king,
attrib-
utes those prerogative rights, wherever applicable,
Fidelity etc. Co. v. State Bank
people
this state.
Port-
land,
1, 4-5,
117 Or
(1926),
“In that case we held that the of this state suc- prerogative rights the of the Brit- ceeded to all of incidental Crown, which essential to the efficient exercise of ish are government. in the nature of civil powers the inherent * * * understanding that we much bound It is our are as law, such rules applicable the rules of the common where modified, statute, abrogated by as we have not been or are by the statutes themselves.” repeatedly
This court has cited two common-law analyzed regarding interpretation rules, general below, of statutes of public body,
applicability applied that, to a when government pursue right the the to its could restrict of variety in This court’s of those rules of claims. settings invocation protect public they are to bodies demonstrates political compatible with the of our institutions and nature not with of the United in conflict the constitution and laws meaning state, within the of Moore and States or of Accordingly, Pеery. in force until those rules “shall continue repealed,” required XVIII, Article section of altered or as 30.905(1), enacting leg- Oregon the Constitution. ORS the repeal and, those islature did not alter or therefore, common-law rules leg- those discern the this court must rules to enacting intention in that statute. islature’s body mind, I state law With of constitutional English turn a consideration ofthe content ofthe common- Question No. 3. law rules that bear on additional against government. 1. The rule inclusion of against rule, The first the rule inclu- denominated as government cases,4 in this court’s was described sion of al, 398, 418, 212 Or Dr. Dist. 2 v. Portland et Peninsula No. (1958): 277 P2d government, generally is held that ‘Neither the “[I]t state, agencies or its are considered to federal nor whether purview unless an intention to within the of a statute be Withers, Reed, 541, 551-52, 243 (discussing v. P2d 283 et al. 194 Or See Endlich, government” quoting A and G.A. Commen “the rule tary inclusion of (1888)). Interpretation at 232 § on Statutes of manifested; clearly applies, include applies especially, and them the rule impair would statutes which divest ” titles, or rights, government.’ interests omitted.) (Citations For an principle, of that see application 173, 194-95, 734 P2d County Oregon, Coos State of (1987) (conclusive statutory presumption satisfaction real hen does not property mortgage 88.110 bind state). also United F. & 108 Or at Co., See States G. court, in which noting after that certain common-law rules regarding king’s royal authority character and were force in this country, stated:
“But those incidental prerogatives which had no rеlation to king’s person exceptions constituted in favor of the general else, crown to rules everyone which, very nature, from their are essential to welfare state, people adopted, been have and the com *17 by rights established, mon-law rules which these were have of Among adopted become the law the state. those so are the common-law general rules that words in a do statute therein', include the state unless the is expressly state named consent; the state cannot be without sued its that the statute run against limitations does not state in the the of * * * ii;[5] absence permitting statute To of the inci all of rights Crown, dental prerogative of the British which are essential to the efficient of powers exercise the inherent the government, nature of civil people the of this state have succeeded.” added.)
(Emphasis judges Common-law developed interpretive those the principles protect king, of the as a constit- prerogative part uent of both the of legislative powers executive the English government, take action the interest consent, unless a statute, enacted with the king’s expressly king’s restricted the act. authority to Sir William Blackstone described the the inclusion of principle against government as follows: rule, tempus regi,” (literally, The third cited common-law “nullum occurrit opinion. king”) time runs in detail
“no is discussed later affairs, king] great [the is considered in a
“[I]n domestic characters, variety аnd from thence there arises an abun- of prerogatives. dant number of other “First, part supreme legislative he is a constituent of the and, such, power; prerogative rejecting as has the of such parliament, judges improper as he to be provisions of which constitution has before passed. expediency remark, large. only at I shall further that the been evinced any be king by parliament, is not bound act unless he of by special words. The most particular named therein general Cany person persons, words that can be devised or etc.’) least, corporate, not him in the politic, bodies or affect if rights his or they may tend to restrain diminish of consequence mischievous interests. For it would be of most strength power if the executive were lia- public, of consent, express its own con- ble to be curtailed without Yet, implications subject. of the where an act structions and parliament expressly preservation pub- of made for the of wrongs, and does rights suppression lic and the crown, rights it is not interfere with established binding upon king upon subject: said as as to be well and, likewise, king may any particu- take the benefit of act, though especially lar he be not named.” added). Blackstone, Commentaries *262 (emphasis William (S. Law, ed., 7th Edgar Craies on Statute G. G. 1971) further of that following explanation ed presents rule: common-law Specially Statute
“3. Crown Not Bound Unless Named, Clearly Intended history history legislation large
“The is to a extent a royаl but ‘it is a well- prerogative, the restriction rule, generally speaking, established in the construction of Parliament, King is not included unless Acts of *18 effect; prima there are words to that it is for inferred facie Crown, the Lords by that the law made the with the assent Commons, subjects, made and not the Crown.’ and is for rule, Abridgment, is general expressed ‘This as Bacon’s that, tive, thereby any preroga- general, and “where a statute is King, taken right, title or interest is divested or from bound, King be unless the statute in such case the shall not ’ The rule is by terms to extend to him.” express is made stated, already that analogous, equivalent, if not to the rule statute, presumed the common law is not to be altered rights for the and titles and prerogatives of the Crown are reality part England. of the common law of The reason of put by the rule is thus Plowden 240: ‘Because it is not an Act assent, King’s without the and it is to be intended that when King gives his he prejudice assent does not mean to him- or to bar liberty his and his privilege, but he self himself of ” assents that it shall be among subjects’ a law his (Footnotes added.) omitted; emphasis
Most of this court’s cases have applied the formula
tion
rule stated in the
Peninsula Dr. Dist No. United
.6
Co.,
States F. & G.
and
County
Coos
cases cited above See
Hoyt,
Seton v.
“ only pri- affect presumptively ‘Legislative enactments sovereign rights the of a and do not embrace rights vate clearly explicitly designated sovereign is unless the ” intended.’ subject that the rule is case indicates Oregon One in the of his passage Blackstone by an as described exception, above, for statutes quoted work public rights and preservation
“expressly made for do] not interfere public wrongs [that suppression ** crown rights of the with the established a Withers, 556-60, five-year this court held that 194 Or at Accord- did state. forfeiture statute right water Withers, legally returned water to construction ing water, minimized waste of use and beneficial required and achiev- resource public thereby safeguarding precious with whole, in conformance as a public a benefit for the ing case law. prior public policy declared legislatively inclusion of against gov- the rule Withers recognized gov- to that rule еxception that an ernment concluded but the court. before dispute of the particular erned the outcome in Withers safeguarded public applied The exception use beneficial statutorily required by promoting interest of water waste deterring long-term of water state. 30.905(1) Shasta View against of ORS
Enforcement to that involved equivalent interest no protects 30.905(1) does terms, ORS in Blackstone’s Withers. Analyzed wrong” a public or “suppress right” “preserve barring a claim a by public body. Applying criteria consid- Withers, ered in I conclude that the rule against inclusion of government, and Withers, not the exception noted is the pertinent rule governing construction of ORS in context of its to a claim application by Shasta View.
What is the majority’s of the response question proper application rule the inclusion govern- ment to this In a dispute? word: nothing. majority fails to *20 address the applicability of the rule against inclusion of gov- ernment. That failure is the result majority’s of the inexpli- cably narrow reading of the third question.
ORS 12.250 certain exempts public bodies from the operation of statutes of limitation in ORS chapter unless a specific statute provides otherwise. The third question sim- ply asks whether Oregon common law provides any analo- gous 30.905(1). exemption from the operation of ORS Because the rule against inclusion of government protects public bodies from the effect of statutes that diminish their rights, and powers interests, unless the statute applies to the government expressly or by necessary implication, that rule is well within the scope Question Additional No. 3. The majority incorrectly refuses to discuss the rule in this case.
The majority disregards the practical legal problem that now confronts the Ninth court, Circuit. This not the Ninth Circuit, drafted the third question provide to the vehi- cle for advising Ninth Circuit about Oregon rules of stat- utory that, interpretation like 12.250, ORS may exempt Shasta 30.905(1) View from the operation of ORS and, there- fore, prevent the dismissal of Shasta View’s complaint. The third question exercise is designed to assist the Ninth Circuit one answering legal issue: under law, Oregon is Shasta View’s complaint to subject dismissal because it is filed 30.905(1)? untimely under ORS The majority’s crabbed read- ing third it question leads to deprive the Ninth Circuit of one of the specific legal determinations about Oregon law that it needs to decide whether correctly to affirm or reverse the dismissal of Shasta View’s complaint. On learning the majority of this court will not discuss or apply the rule against inclusion of government, the Ninth Circuit justifiably majority’s posi- point
may this? The of all what was ask: legally unhelpful impractical incorrect. as it is and as tion is analyze majority’s the rule failure to The proceeding government leaves the in this inclusion of proceed- very point ofthis But the free to do so. Ninth Circuit ing uncertainty Circuit, of the Ninth eliminate, the benefit was to complaint is sub- Shasta View’s about whether regard Oregon to that ject It is in law. dismissal under opinion part mаjority opinion com- point pany. and this that the perpetuate majority Cir- the Ninth is satisfied Oregon uncertainty I not. law. am about cuit’s application regarding its is silent body, brought by public as such an action the context of deprive here, that statute would If enforced Shasta View. remedy right for a defective to secure a of its Shasta View thereby protect product interest of the precise circumstance is the That Shasta View serves. government against inclusion of rule the common-law which obviously applies. should enforce Ninth Circuit most majority’s opinion nothing Certainly in the rule here. that prevents doing so. it from regi. tempus occurrit
2. Nullum *21 in nature rule is similar second common-law application particular In represents of the first. State and (1917), this 434, P 431, 165 372 Lee, 84 Or v. Land Board court stated: government that the recognition is a rule of universal “[I]t it is unless statute of limitation general in a
is not included This rule is included. necessary implication byor expressly in the expressed fiction upon legal founded said to be However, it is not nec- regi. occurrit tempus maxim nullum fiction, any upon salutary precept this predicate essary that as a found in the fact the rule is reason for since sound public necessary preserve it is public policy of matter by loss injury from and property revenues and rights, * * public of officers negligence omitted.) (Citations Withers, 544-46, court, referring above,8 Judge
both common-law rules discussed quoted of the doctrine” in United States “classiс Story’s exposition 1821) (CCD (No Hoar, F 26 Cas Mason Mass 15,373):
“ reason, indeed, why ‘The true the law has deter- mined, negligence there can be no or laches crown, and, imputed therefore, delay to the no should right, (though be, bar its sometimes asserted to because and, king always public good, is busied for the there- fore, has right not leisure to assert his within the times subjects,) limited to icy is to great public pol- be found preserving revenues, public rights, and prop- erty injury loss, from and negligence offi- And though cers. this is sometimes prerogative called a right, it nothing fact more than a reservation or exception, benefit, introduced for the equally * * * governments. to all
“ ‘But, independently doctrine founded on the prerogative, notion of the same construction of statutes ought of this sort to prevail, upon founded legislative intention. government Where the expressly is not necessary implication included, ought it to be clear from the nature of redressed, the mischiefs to be or the lan- guage used, government that the itself inwas contem- plation legislature, before a court of law would be put authorized to interpretation such an upon any stat- general, ute. In legislature acts of the reg- are meant to ulate citizens; and direct the rights acts and and in most cases the reasoning applicable applies to them very different, with contrary often force gov- ernment me, therefore, itself. It appears to to be a safe separately Withers did not trеat the two common-law rules discussed in this opinion, analyzed together but applications them as somewhat different of one “general rule” that it described as follows: upon principle crystalized maxim, legal “Reed relies in the nullum tern-
pus
regí.
general
Sutherland, Statutory
occurrit
rule is
thus stated
ed, 183,
3d
§
Construction
6301:
“
language
injuriously
‘General words or
of a statute that tends to
upon
government
interpre-
encroach
the affairs of the
receive a strict
and,
public,
express provision
tation favorable to the
in the absence of
”
necessary implication,
sovereign
remains unaffected.’
*22
Withers,
rule founded ought to include the words of a statute general rights, unless that construction government, or affect its of the act.’ indisputable upon the text be clear and States, 126, US Guaranty Co. v. United “In Trust (then Mr. 132, 82 Mr. Chief Justice L Ed 58 S Ct Justice) Hoar, v. Stone, quoting from United States after said:
“ ‘* * *
government
of
Regardless of the form
thought suf-
royal prerogative
once
independently of
it,
now because
supportable
the rule is
justify
ficient to
citizen,
every
advantage
extends
its benefit
defendant,
limita-
plea
whose
of laches or
including the
in the United
uniform survival
precludes;
it
and its
tion
justified
for and
on
generally accounted
States has been
inherited
upon any
than
grounds
policy
of
rather
king [citing
privilege of the
personal
notions of the
acceptance
has been its
complete
cases]. So
‘sovereign,’ state or
immunity of the domestic
implied
excep-
an
national,
universally deemed to be
has been
govern-
limitations where
tion to local statutes of
included;
national,
and to
ment,
expressly
is not
state or
Conformity Act.’
does not
of limitations
“The rule that the statute
times affirmed
this court.
has been several
to the state
(dis
114, 122,
“By weight country of against government, of is not defense laches available national, in by public right state or a suit it to enforce a * * protect interest (Citations omitted.) ex rel Anderson v. Port See also State of (1912) (nullum Tillamook, 332, 344, 124 tempus 62 Or P 637 right rule of on the rela protects private parties, acting quo warranto state, tion to initiate at proceeding of time; the of time constitutes no bar to the lapse proceeding).
Defendants
that
is not entitled to
argue
plaintiff
rely
on the two common-law rules discussed above for several rea-
First,
only
sons.
defendants
those rules
argue
protect
the state
not a
government,
quasi-municipal
corporation
for that view on a dictum
such as
Defendants
plaintiff.
rely
this court Withers.9 Defendants also
by
rely
statement
on
9 Withers,
state,
parties,
two
one ofwhom was a successor-in-interest to the
disputed
rights.
parties’ rights
question
water
turned on the
whether OCLA
116-437,
years,
providing
rights
§
that water
were forfeited if not used for five
applied
argued
to the state.
nonuser, state, question held is if the statute should be entirely point. irrigation quasi-municipal corpora An is a beside the district state, 527, 533, 25 Ager, tion. P2d 927. It is not the Central Co. Pacific agency an nor an agency of the state in the same sense as the State Land Board is upon irrigation dis of the state. Were we called to determine whether 116-437], provisions [OCLA would not be in the § tricts are bound least concerned with the maxim nullum we tempus, applies only the sov which considerations, such, pur ereign, poses very example, as the but with different irrigation under the statute which which districts are intended to serve authorizes their creation.” Id. Cabell v. Fed. 11, 144 Land Bank Spokane, 173 Or P2d 297
(1943), but that case sheds no on the issue.10 light
The parties I, as do appear agree, that each of the common-law rules discussed above serve to protect identical levels of government. Neither common-law rule benefits a broader range public entities than the other.
Several of this court’s cases have
identified
entity
served
those two common-law rules as the “state.”
due,
That
at
least
part,
state’s participation
See,
those cases as a party.
e.g., State Land Board v. Camp
bell,
“ ‘The real ground great is a principle public policy, which belongs governments, alike to all that the interest public officers, prejudiced by should not be the negligence of ” they to whose care are confided.’ added.) (Emphasis 10 Cabell, irrigation sought parcel In an district foreclosure of a lien on a argued timely
land.
If doubt than the entities other rules to common-law pertinent favor. the doubt in Shasta View’s state, then Chizek resolves a suit to title to Chizek, brought quiet cоunty’s grantees 252 Or at Newport. defendant Port of by a lot claimed ORS municipal corporation. The was a port 571.
(“ pro- incorporated, municipal corporation ‘Port’ means a to ORS 777.010 and incorporated, pursuant to be posed 777.050.”). lot, had failed Sargeant, A owner previous to the Id. port. and transferred lot taxes pay property to assess taxes property at continued county 572. from taxation. port exempt was property, although and sold the
Ultimately, county property foreclosed action, collaterally the port In the title plaintiffs. quiet contended plaintiffs attacked the foreclosure proceeding. the statute of limi- by the collateral attack was barred tations, 312.230,11 and laches. Id. at 574. The port pub- answered that the statute of limitations did not lic Id. at bodies. 575. court, Lee,
This
State Land Board v.
84 Or at
quoting
first noted
“
recognition
government
‘rule of universal
is
in general
not included
statute of limitation unless it is
”
expressly
by necessary implication
included.’
Chizek,
“We hold that the as a is not barred proceeding tax statute of limitations and the foreclosure and, therefore, plaintiffs secured no title to invalid *25 disputed property.” 11 312.230(1) (3) state: “(1) action, Every proceeding, purpose suit or commenced for the of deter- validity delinquent
mining property of a sale of real on foreclosure for taxes, sale, thereof, quiet or to or to title such or to remove cloud possession property, years from recover shall be commenced within two county, judgment and sale date of the and decree of foreclosure to the 1,1961, the later. within six months from June whichever is “(3) pre- purposes a statute of For all this section shall he construed as scription as well as a statute of limitation.” 182 added).
Id. at 578 (emphasis
View,
Shasta
like the Port of
Newport
Chizek,
ais
public body,
specifically,
quasi-municipal
corporation cre-
ated under the Irrigation District Law. ORS 545.001 et seq.
Central
Co. v.
Ager,
527, 533,
Or
The majority asserts that the nullum tempus rule is
here,
inapplicable
because ORS
ais
statute of ulti-
mate
not a
repose,
statute of limitation.
According
a statute
majority,
of repose provides a deadline for initiation
of an action whether or not the plaintiff discovers the injury
or whether the
has
injury
occurred,
even
whereas a statute of
limitation
litigant’s
bars a
to a
right
remedy.12
View,
Shasta
ality Liability Repose, Product Statutes 30 Am Univ L Rev (hereinafter McGovern): repose’ analytical “The term ‘statute of itself can create difficulties unless understanding meaning. Although may there anis of its courts conclude that repose, semantics is irrelevant ato consideration of statutes there are sub- precise underlying stantial reasons to use labels for statutes. These reasons particularly compelling become when at least five definitions of ‘statute of repose’ are in use.” (Footnotes omitted.) *26 assume, the argument, expira-
I of that purposes of can effect conse- tion of a statute ultimate harsher repose the of a statute quences expiration on a claim than plaintiffs limitations, of the theorizes.13 But the majority majority’s as effort to out the differences between those kinds of time point respect litigation deadlines with to the commencement of log- should the to the that ically majority lead conclusion the nullum rule here with even force. tempus applies greater focusing on the between a
By exclusively distinctions limitation, statute of ultimate a statute repose and of the majority the feature ignores important they that share context: once time deadline each statute expires, pre- body vents the from its on public asserting civil claim behalf that it The public represents. very purpose of the nullum rule is to tempus protect government from prej- udice to claims due its to the of time unless the statute lapse that time created the deadline applies government to the expressly by necessary That rule rests on a implication. of policy protecting claims, from the loss of due public its to time, of expiration lawmaking unless the acts body explicitly to the time deadline to the claims of public If bodies. that protection policy shields government from the assertion of of any defense created by untimeliness a limitations, statute of then dint of that policy reasoning, applies all the more obviously protect government to from a time deadline that purports nullify civil government’s claim. I which, see no sense majority’s approach, context statutory of barriers litigation, to stale would protect the public from the lesser defense, a timeliness jeopardy barring “right” “remedy,” For criticism of the distinction a between see Note, Developments Limitations, in the L Law—Statutes 63 Harv Rev (1950) (“Interpretation limitations, proceeding blindly 1186-88 of the nature they only remedy extinguish from an initial determination thаt either bar the Corman, right entirely, proved satisfactory.”); not Calvin has W. Limitation of (“Several (1991) Actions, 7, Supreme § 1.1 recent decisions of the Alaska Court growing judicial categorization reveal the belief that of these statutes as condition ing right, providing remedy, actually policy rather than sacrifices for the sake abstraction.”); Epstein, legal Temporal of formalistic A. Richard Dimension (“Hit Law, 1175, 1210 wholly say Tort 53 U Chi L Rev of words matter say that the cause was barred accrued or it never of action before it that existed reposel depend upon [a at all. substance, stand Whether statute should or fall should its verbalization.”). upon arbitrary judicial an of the nullifica- expose greater jeopardy
but its tion of claims.14 in part error stems from its erroneous majority’s rule to statutes of tempus applies solely
view the nullum cases discussed the early limitation. The and treatise authors in relation of “limitation” operation only rule’s to statutes the label at that time the Eng- because was attributed *27 to statutes that established time deadlines parliament lish Note, Developments actions. commencing particular for civil Limitation, 1177, L Rev the 63 Harv Law —Statutes of (1950) (“The 1623 the begin- 1178 Limitation Act of marks the of on actions in personal of modern law limitations ning law.”).15 the common attaching 14 Widelydivergent consequences substantive can flow from the incorporates repose” to a that time deadline for label “statute of ultimate statute a Therefore, litigation. McGovern at 613. courts must draw the commencement of only meaning analyzing after about a statute’s and effect conventional conclusions intent, context, legislative especially text and not sim sources of the statute’s and consequences ply the the label alone. For affix a label and assume statute’s from 387, Hicks, 392, (1990), example, Sealey 435 309 Or 788 P2d asserted dictum 30.905(1) “products liability repose” of was the statute without examin that ORS ing support to the court the statute’s and context that conclusion. Had con text structurally analysis, have that that identi ducted that it would noticed statute is 30.905(2), correctly as a “statute cal to ORS which the court identified of limitation,” purchase on but with a deadline that commences to run the date of for consumption injury. rejected potential instead of the date of The court a con use 30.905(1) 30.905(2), to but that would make ORS subordinate ORS failed struction (2) simply express parallel consider subsections and two statutes of to whether limitations, Finally, time the court failed to con each of which could bar a claim. phrase significance the the “in event” from ORS sider the 30.905(1), of absence of no Bear, though, Josephs P2d even v. Burns & 12.115(1) (1971), helped phrase held that that establish that ORS court had repose negligence. for was a statute of ultimate similarity early limitation more than a semantic to The statutes of shared poten especially objective bringing repose, of end to statutes in their an
modern of Oregon, litigation through expiration Ketchum v. Or tial the of time. See State of 103, 106 (1864): repose, prevent litiga- are to be statutes to “Statutes limitations intended of of tion; slept years rights, knowledge with a his and and where one has full of long only essentially important have seeks departed to them when witnesses since enforce power- jurisdiction process, and the the reach from of defendant memory, eminently proper the human it is that law less the from frailties of intervene, plaintiff sleeping expressly say has been and his too should faulty encouraged. grossly long, advantage sought now too to be This the supposes that all this time claimant view of benefit of such statute resting judicial might he of was the shadow tribunals whose assistance under invoke; action, by his and that he could at time enforce claim law he delay opponent right, his his watchfulness. abused that disarmed rights, plaintiff right but Truly, time to his it is has a to choose the enforce relatively enactment of statutes of is a “repose” But the case law reviewed legislative phenomenon. recent indicates that statutes of limitation were to designed above claims, stale and that modern statutes prevent litigation fact, same it repose objective. light share the of that is uni- maginable English that an common-law court would protect claims of lim- sovereign’s running statutes itation, existed, permit repose, they but statutes of had nullify sovereign’s claims without that con- prescribing sequence explicitly. Certainly thоse courts would have the nullum rule to both kinds of statutes. applied tempus
The majority also how the nullum misperceives rule tempus operates protect government expira- from statutory tion of deadlines. Under the common-law nullum rule, tempus statutory deadlines for the commencement of or for the assertion of civil claims or litigation, timely defenses, do not commence to run bodies. In against public words, other that, rule dictates as to the claim of a gov- body, statutory ernmental deadline does to run begin and, therefore, rationale, never “expires.” majority’s which a more onerous imputes consequence expiration of the time deadline in ORS than to a statute of lim- *28 itations, recognize fails to that the nullum rule tempus focuses on whether the statutory deadline commences to run claim, on the not on some effect government’s particular of expiration. rule, correctly deadline’s The nullum tempus applied, compels conclusion that Shasta View’s claim because, never as to the claim of a expired public body, 30.905(1) in eight-year period ORS never commenced to run. The majority’s discussion of the of of consequences expiration a that statutory deadline never commenced to run is irrelevant. provident say right feature in the law he must exercise that within a to that presume reasonable time or the law will claim his satisfied.” (Citations added.) omitted; Schall, 21, 27-28, 221 emphasis also Ford v. 110 Or See (citаtion (“ (1924) omitted) 1052,on reh’g222
P
P1094
statutes oflimitations
TTlhe
* ***
affording security against
repose,
are considered as statutes of
and as
stale
(1890) (“[Tlhe
”);
Hamlin,
387,
383,
claims.’ Beekman v.
Without bodies include rule that statutes must tempus nullum time to run order for necessary implication byor expressly 30.905(1) not make the ORS does bodies. against public of bodies to the claims applicable of period repose 30.905(1) the following phrase: with begins ORS expressly. * * ORS 12.115 12.115 or 12.140 *.”16 ORS “Notwithstanding 12.140 for and ORS negligence of ultimate repose is a statute which a for cause for any statute of limitations is the general The introduc- specified. is not otherwise of limitations period 30.905(1) 8-year that signals only ORS tory phrase notwithstanding liability operates claims product for period limitation for or periods repose of longer the enactment and ORS 12.140. in ORS 12.115 of claims types other pos- eliminate the only intended to was introductory phrase sig- an interpretive result without might that sible confusion 30.905(1) in ORS effect of governing explained nal in ORS phrase claims. That liability respect product 30.905(1) to the claims applicable does not make the statute necessary implica- or expressly bodies governmental еnactment of a Moreover, complete the legislature’s tion. chapter from an entire for bodies specified public exemption of statute, 12.250, a related limitations, together with ORS (5)(a),17 bodies subjects public states, part: ORS 12.115 “(1) injury property negligent person any In no event shall action years date of the act or omis- than 10 from the be commenced more of another complained sion of.” ORS 12.140 states: provided any commenced for shall be cause not otherwise “An action for years.” within 10 states, part: ORS 12.135 “(1) otherwise, contract, person, tort or whether An action construction, person having performed alteration or arising from such inspection supervision property repair any improvement or the to real surveying, design, planning,
thereof, having person furnished or from such improvement, com- engineering shall be services for such architectural or period otherwise established of limitation within the menced law; years from within 10 action shall be commenced but in event such construction, alteration or completion of such or abandonment substantial repair property. improvement real *29 “(5) This section: “(a) actions, brought in the name Applies, to actions in addition to other therein, county public corporation or for its benefit or other
the state from construc- arising for claims statutory period repose omission of legislature’s tion demonstrates that the projects, 30.905(1) reference to the claims of bodies ORS public intentional. was
I that Oregon with the view of amicus State of agree 30.905(1) the conclusion that that nothing compels ORS must to the claims of bodies. necessarily apply statute arise no more liability frequently regard Product claims bodies than product purchases by public private purchas- ers. If suffer product might any genuine prejudice vendors 30.905(1) from public plaintiffs exempt because are ORS —a fact about which the record is silent —then present noticeably we must that legislature anticipated conclude intended that Like amicus State of I consequence. Oregon, 30.905(1) find nothing practical operation about the of ORS suggests necessarily that statute must apply claims bodies.
3. Conclusion. The two under common-law rules consideration gov- ern the construction of text in statutory context. Under the rule against government, inclusion of ORS does not apply to product liability public body claims of a such as View, Shasta because the legislature did not make the stat- ute to the claims of a apply public body expressly by nec- essary implication. rule, Under the nullum tempus 30.905(1) does not to Shasta View’s product liability claim same reason.
I Question would answer Additional No. 3 “YES.” I dissent Accordingly, majority’s from the answer. contrary I summary, concur with the majority’s answer to Question Certified No. 2.1 Ques- would not answer Certified because, tion No. 1 Ques- view of the answer to Certified Question tion No. Certified 1 is I No. moot. dissent from majority’s Question answer to Additional No. 3. J.,
Kulongoski, joins in this opinion.