*1 Arguеd 26, 1999 May and submitted November affirmed OREGON,
STATE OF DEPARTMENT OF HUMAN RESOURCES
and Support Division, Enforcement
Appellants, v. TROST,
Robert L. Respondent, L. NOGGLE, Norma Obligee. A100064)
(97DM0155; CA
David L. Carlson respondent. Deits, Chief Edmonds, Presiding Judge,
Before Judge,* Armstrong, Judge.
EDMONDS, P. J. J.,
Armstrong, dissenting.
* Warren, J., Deits, J.,C. vice P. retired.
EDMONDS, P. J. proceeding, Department this of Support Human Resources and Enforcement Division of the of from a based (department) appeal judgment State not the father finding on a verdict was department child. The that the trial court argues by erred trial. We affirm. conducting
In April 1996, proceed- initiated this department by issuing finding a notice of order and ing proposed that he the father of responsibility respondent stating was and, the child. denied to an Respondent pursuant order, testing administrative submitted to for parentage depart- markers. After the was genеtic testing completed, set requested ment in March 1997 that the matter be parties trial. In the trial sent April court notices August 27, 1997, with “Twelve Person scheduling trial for August 13,1997, objection On filed its Jury.” department Bill a trial that section 25 of House jury, arguing 746) 1997, chapter Laws had become effective on (Oregon *3 4, that to 1997, and that the effect of bill was take August to a trial 109.135. respondent’s right jury under ORS away 14,1997, On filed a formal August respondent request August 27,1997, trial. Triаl on with the trial court jury began to a trial. There- that was entitled ruling respondent jury after, finding returned a verdict was jury child. not the father of the trial appeals, arguing The that the court department a jury was erred when ruled entitled intended department, trial. to the According law,1 4, that, in order to with federal as of comply in filiation 1997, right pro- there would be no to a 109.135(1) 1997 and that amendment ORS ceedings intended to a in that statutе was deleting all at the time of the amendment. pending cases apply that he entitled to a contends was Respondent Opportunity Responsibility Act of Reconciliation The Personal Work popularly requires Act that “State Reform law known as the Welfare parties paternity entitled to in a contested action are not must state News, 2477, 2744. Cong Ad 1996 US Code & trial.” ORS under the 1995 version of paternity the issue оf the administrative determination under which statute in to the circuit court was certified paternity respondent’s does not the amendment to ORS 109.135 1996 and that April 1997, 27, originate pending to cases apply under ORS 416.430. amendment, provided, ORS 109.135
Before in pertinent part:
“(1) shall commenced in proceedings All filiation be purposes and shall for all deemed suits the circuit court be 'by equity, party either shall have the to trial but specifically otherwise рaternity. on the issue of Unless statute, provided by proceedings shall be conducted Oregon Procedure.” pursuant to the Rules of Civil 109.155(1) (2) Also, amendments, the 1997 ORS before “jury” pater- that the court or should first determine provided and, evidence, the court nity if it found from the addition, judgment. was to enter an appropriate (1995) provided, pertinent part, regarding the certification of issues to the circuit court: prоceedings purposes “The in court shall for all be deemed equity, suits in but either shall have the to trial by jury on the paternity. issue proceedings
109.145 to 109.230 certified to the pursuant court the administrator to this section.” 25, After Laws section amended Oregon chapter 109.135(1), it now provides: circuit proceedings “All filiation shall be commenced purposes equity. court and shall for all be deemed suits in by statute, pro- spеcifically provided Unless otherwise Rules ceedings pursuant shall be conducted of Civil Procedure.” in ORS “jury” 746 also deleted references
Chapter 109.135(1) and ORS 109.155 changes 109.155. *4 effective were to an clause and became subject emergency 4, Bill 2324 on signed August when the Governor House 1997, 746, 1,152. Or ch 1997. Laws §§ addition, section 31 of 746 amended chapter jury the reference to the to delete 660 pertinent language
trial. The of the amended statute provides: proceedings
“The in court shall for all purposes be deemed in equity. provisions suits of ORS 109.145 to ORS 109.230 and section 26 of this Act proceedings cer- tified by to court pursuant administrator to this section.” chapter jury
Section 26 of 746 deleted the references to a Significantly, ORS 109.155. contrast to the amend- 109.135(1) changes ments to ORS 109.155, and ORS operative January ORS 416.430 became 1,1998, or after 1(4). § the trial in this 1997, matter. Or ch 746, Laws department does not contest this case was by thereby certifiеd to the circuit corut administrator, 416.430(3). impheating At the time of authorized, 416.430(3) August trial, 27, 1997, ORS proceeding by to a istrator. trial in a filiation initiated the admin- (1) department argues: Nonetheless, requested 109.135, and, trial under ORS therefore, August govern 4, 1997, statute as amended on should (2) ambiguity the trial held 27; there is an 416.430(3), by amended, as that is created the cross- ambiguity reference to ORS 109.155 and that should be by examining legislative history underlying resolved According dеpartment, only 1997 amendments. to the history conclusion that can be drawn from the is that a “glitch” occurred when the failed bill to make the amend- 416.430(3) emergency ments to ORS clause.2 request
It is correct that the formal for a filed on 14 “ORS cited and com authority. By already law,” time, mon as the court had department trial, set the matter for a and the had filed objection chapter department argues its basеd on 746. The contemplates request that because our case law3 for a 2 IV, Constitution, provides Article section that: effect, ninety days “No act shall take until the end of the at from session passed, except emergency; have been which which emergency same shall case of preamble, body shall be declared in the or in the of the law.” Workman, App In State ex rel Jones v. Or P2d den rev 109.135(1) (1978), wе to mean that “if either Or construed *5 right trial the is exercised that a jury before waiver of a conduct, trial can be from it but implied party’s that, a follows respondent’s erroneous on he reliance ORS would have waived his to under right jury a trial ORS * * * 416.430(3) (1995). “Waiver is the intentional relinquish ment a It right. of known must be manifested in some Waterway Lord, Terminals v. P.S. manner.” unequivocal (1965) (citations omitted). 26, 406 1,Or P2d 556 we Although can find no reference in exprеss memorandum respondent’s opposing objection the the department’s based on entitle 416.430(3) (1995), ment to a trial under ORS it is clear that to continued insist on a trial the despite *4 position.* out, state’s As it turns the statute him gave that right at the that trial time the occurred. Under the circum stances, we discern no intent on his to part waive his a jury trial. final department’s argument is on predicated 416.430(3)
the position that ORS
as it
at
existed
the time of
the
ambiguous
trial was
because of the
in the
cross-reference
statute
ORS 109.155. ORS 109.155 was affected
the
by
emergency clause. According to the
department,
follows
416.430(3) (1995)
that the reference to ORS
in ORS
109.155
that
legislature
means
the
could also have intended ORS
416.430(3) (1995) to be
emergency clause. Our
task
tois
ascertain the legislature’s
intention
examining
the text and the context
the
of
statutes
their
including
prior
Wеbb,
enacted versions. State v.
380, 389-90, 927
324 Or
P2d
(1996).
ORS 174.010 provides
guidance:
more
statute,
“In the construction of a
judge
office of the
is
is,
simply to ascertain
and declare what
terms or in sub-
stance,
therein,
contained
not to insert what
been
has
omit-
ted-,
inserted;
or to omit what has been
and where there are
particulars
is,
several
or
such construction
possible,
adopted
give
to be
as will
effect to all.”
requests
question
paternity,
party
requesting
to determine the
so
has
thereto.”
court, respondent argued
opposing
In the
in his
memorandum
department’s
change
trial,
part:
effort to
from a
trial to a
court
legislative
present
legislation
“no
is
intent
on the face of the
indi-
would
application
legislation
appropriate.
cate a retroactive
is
such
Absent
intention,
presumption
legislatiоn
applied
clear
is that the
not be
should
pending cases.”
If the
intent
clear from
text and context of
legislature’s
statutes,
will
no further.
inquiry
go
our
fail
in the text or con-
perceive any ambiguity
We
416.430(4)(a)
as
it existed on
1997.
text of
(1995)
416.430(4)(a)
provided
“either
expressly
the issue
by jury
shall have
to trial
date.”
not
expressly
had
change
acted to make the
in ORS
effective at
time
other
109.
changes
the same
as the
It is
chapter
have
to ORS
evident
it could
made
amendment
*6
109.135(1)
416.430(4)(a) (1995) refer
to ORS
and
expressly
clause,
to the
it
did not do
emergency
expressly
but
subject
a
trial.
Nothing
prohibits
so.
in amended ORS 109.155
remaining
direct the determination of
provisions merely
Its
and
The amendments
appropriate judgment.
the
paternity
a
from ORS
removed all references
to
merely
and
109.155. To find the purported ambiguity
109.135
ORS
have
the
relied on
the
we wоuld
to
lan-
by
department,
ignore
416.430(4)(a) (1995) and
from the dele-
of ORS
guage
imply
legislature
tion of the word
ORS 109.155 that
the
“jury”
provided
to
had
for
the
expressly
intended
what
negate
416.430(4)(a) (1995).
We would
preceding sentence
express language
emergency
have to
the
of the
ignore
also
clause
emergency
clause. Even if the omission from the
was
inadvertent,
the
mistake that ORS 174.010
that is not
kind of
legislature
clearly
us
the
has
ignоre
authorizes
to
when
v. Asten-Hill
contrary.
Armstrong
itself to the
See
expressed
(1988).5
200, 203,
Moreover, ORS is a statute applies only by cases certified to the court hand, administrator. On the other ORS 109.135 and proceedings, including 109.155 to all filiation those by by required filed We administrator. are ORS 174.010 give possible, statutory particulars effect, all of a adopt department’s position, scheme. If we were to we writing legislature’s express language would be out of 416.430(4)(a) (1995). may incongruous It to think be legislature juiy that the intended for trials to occur from only 4 to December cases cer- administrator, tified but that is what the said. To hold otherwise would be to violate tenets ORS 174.010.
Affirmed. dissenting. ARMSTRONG, J., 416.430(4)(a) majority gave сoncludes that ORS to have a he decide whether is the majority reaching father of a child. The errs in that conclu correctly interpreted, because, sion did give right. proper disposition Hence, not him that appeal judgment reverse that the trial court entered entry judgment on the verdict and remand of a finding embodies the trial court’s is the *7 1 father of child.* the Oregon Legislature The enacted Housе Bill 2324 in sweeping Oregon’s support 1997 a to effect overhaul of child programs. principal purpose 1997, Or See Laws ch 746. The bring Oregon compliance ofthe overhaul was to law into with requirements the of a 1996 federal welfare reform act. 416.430(4)(a) (1995) legislature’s that ORS is inconsistent with the to have intent court, jury, paternity governed the a rather than determine under actions particular provision gives right jury the that a con- trols the outcome in this case. 1Respondent has not asked us to undertake a de novo review of the decision paternity that the trial court said that it would make on if the were its to issue Hence, proper disposition appeal decide. I believe that direct the is to the judgment implements a trial court to enter that its decision. We need not get now decide whether can de novo review of that after it has decision been entered. 664 states to elim- required its the federal act
Among provisions, as a condition of paternity proceedings inate trials Bill 2324 did of federal welfare funds.2 House receipt their that the gave parties that a number of statutes by amending or that paternity proceedings imple- a 416.430(4)(a) is of the statutes one right. mented Bill 2324 The relevant amendment that Hоuse amended. shall have deleted the that “either phrase that statute paternity.” of by jury to trial on the issue act federal welfare reform Significantly, 1996 the requirement time limit states to imposed implement a That trials in paternity proceedings. eliminate they in their necessary changes to make the limit states required effective laws day quar- calendar
“in no later than 1st of 1st event regular of the clоse of the 1st session beginning ter after of begins after the date of enactment legislature that State act].”3 federal welfare reform [the events, that meant Given the of the relevant timing 1, by September had to take effect changes to laws Oregon’s 1997. comply require- with that legislature sought Bill in House 2324 by including an clause emergency
ment trials in addressed to provisions that made 4,1997. effect when the bill becamе law on cases take as an over- what can be viewed Unfortunately, only through 416.430(4)(a) to delete the section that amended sight, not made effec- trial was the reference to addressed All provisions date. of other tive on that that issue were.4 2 1998). 666(a)(5)(I) 654(20), 609(8), (Supp Congress amended 42 §§ See USCA 609(8) penalties assessing imposed change the method of § in 1997 USCA support requirements. failing That enforcement for to mеet federal child state my analysis. change affect does not 1996, Opportunity Act Responsibility Work Reconciliation Personal 104-193, 395, 110 2105, 2259. § L No Stat Pub complexity light the bill. oversight of the size and understandable in ses pages bound volumes of in the The bill has 152 sections that cover times, many pro effective at various were made sion laws. Various 1. It is adopted periods. § Or ch limited time See Laws were
visions particular timing specifying of a surprising occur in that a mistake could not provision. *8 oversight the effect of that
According majority, statutory right was to his to a preserve 27, August trial when the tried this case on 1997. parties However, correct, the effect of the majority oversight above, reaches farther than that. As noted the federal act in statutes to remove a required changes 1,1997. by September cases to take effect failed to majоrity’s decision holds that That failure could requirement. expose with comply penalty consequence.5 state to a financial as a Fortunately, is mistaken its conclu- majority sion that the error legislature’s drafting preserved cases tried under ORS 416.430- (4)(a) 4,1997. 4,1997, after and Jan- August August Between 416.430(4)(a) 1,1998, ORS uary provided: proceedings purposes “The court shall for all be deemed in equity, suits but either shall have the to trial by jury patеrnity. provisions on the issue of * * proceedings 109.145 to 109.230 [the] ORS 109.155 is one of the to such a applies 4,1997, proceeding. Before provided: “(1) jury, The court in a private hearing, or the shall * * * first determine the issue paternity.
“(2)
finds,
preponderance
If the court or
from a
evidence,
or the
petitioner
is the
been,
may
father of the child who has
wedlock,
or who
be bom out of
proceed
the court shall thеn
to a determination of
* * *”
appropriate
granted.
(Emphasis
relief to be
added.)
However, House Bill 2324 amended ORS
to delete
109.155
the italicized
that refers to the
role in the
language
jury’s
take effect
and it made that amendment
factfinding process,
4,1997.
Even
ver
principle
prior
without
sions of statutes are
of the context
that bears on their
part
spec
it should be
that ORS 109.155
interpretation,6
apрarent
courts,
the factfinders in
juries,
pater
ifies that
not
are to be
it,
pro
that are
which includes
nity proceedings
However,
under ORS 416.430.
between
ceedings brought
666(a)(5)(I)
1998).
609(8), 654(20),
(Supp
§§
See 42 USCA
6See,
Just,
336,
(1994);
e.g., Krieger v.
319 Or
vided that could to factfind in cases. ers such conflict, provisions
The two
and there is
necessarily
way
majority
no
to resolve the сonflict
The
disa-
textually.
view,
In its
1997
to ORS
grees.
the
amendments
109.155
to a
in
merely
removed the references
that statute
in a
but did not
such a trial
prohibit
paternity proceeding.
is
in ORS 109.155
majority
By specifying
The
mistaken.
that
in
the factfinder
a
under ORS
paternity proceeding
416.430
to
the court and not a
the
amendments
jury,
ORS
with
in
necessarily
109.155
conflict
the
ORS
provision
416.430(4)(a)
that
a
to have a
gives
parties
right
the
act
factfinder.
our
task
Consequently,
interpretive
as the
is to
which
the
intended to
provision
legislature
determine
control
the
have no doubt that the
res-
factfinding process.71
proper
legislature
olution of that
issue is to conclude that
the
only
ORS 109.155 to control. That is the
interpre-
intended
Oregon’s
that avoids
to
its
jeopardizing
tation
receive
funds,
of federal
and there is no doubt that
full share
welfare
intended to do that.
legislature
that
on
challenges
The
conclusion
several
majority
I
taken.
that
grounds,
rely
none which is well
It contends
I
that
do
history
to reach
conclusion
with-
legislative
in
I
fact,
an
the statutes.
establishing
ambiguity
out first
legislative history
to
the relevant
rely
interpret
do not
I
that
intended ORS
statutes.
conclude
416.430(4)(a)
take
over ORS
based
precedence
109.155 to
in federal law that
required Oregon
on the
solely
1,1997,
in
September
to еliminate
its
to receive
full
jeopardizing Oregon’s right
to avoid
order
required
understanding,
Either we
are
make a choice.
must
Given that
we
416.430(4)(a)
gives
parties
ignore
language
in
a
ORS
language
says
paternity,
we
into ORS
or must insert back
109.155
trial on
puts
paternity proceedings.
in
rare
juries
in
That
us
can be factfinders
something
position
that ORS
directs us not
in which we must
174.010 otherwise
do
See,
omitted,
e.g.,
inserted.”
what has
or to omit what has been
“to insert
been
do:
(1996).
392-93,
majority implicitly
Webb,
P2d 79
Or
State v.
416.430(4)(a). However, in
what
been inserted
ORS
chooses not to omit
has
that,
had
doing
that which House Bill 2324
omit
it inserts back into ORS 199.155
competing
making
inter
that it does between those
it. It errs
the choice
ted from
pretive alternatives.
the con-
part
share of federal welfare funds. Federal
law is
Victoria,
statutes,
text of the
see
v.
319 Or
Pamplin
(1994), my
fails give appropriate effect to ORS 174.010 174.020. ORS 174.010 a court a statute requires construing effect to all of its It is not give provisions, possible. pos- majority sible to do this case. Whether wishes to not, it or both its and recognize my interpretation 416.430(4)(a) fаil to effect give provisions. to one of its turn, directs court to prefer par- *10 ticular over a provision general majority one. concludes that the grant to a trial is a particular provision and the reference to the other law that govern the conduct of the is a proceedings general provision, so the former controls over the I do latter. not believe that is possible characterize one of the same subsection portion as more than the particular other. For this purpose, they footing. Moreover, stand on equal stated in ORS preference particular gen- 174.020 for a over a provision eral functions as a tie if breaker the text of the stat- ute, context, no provides way other to resolve the conflict between two provisions. Consistent with the аdmonition in that, statute[,] ORS 174.020 of a “[i]n construction the legislature intention of is to be I pursued possible[,]” 416.430(4)(a), context, that ORS believe when considered can be construed to effect to the intention give legislature’s attempting tie-breaking without to resort to the principle favoring general over a and that particular provision, construction denies defendant a to a trial. The majority errs in concluding оtherwise.8 8 Respondent argued appeal below and that the 1997 amendments to the trial, statutes that removed the even if effective on 27, 1997, case, apply could not trial in this because give effect, nothing legislation would them a retroactive in the indicates retroactively. Respondent wrong. Apply intended them to pro ing adoption to a trial that their involves a the amendments occurred after spective application rather than a retroactive of them.