State v. GalliganState v. Galligan
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- Before:
- Van Hoomissen
Lead Opinion
The issue presented is whether an inmate at a correctional facility who is given authorization to leave the facility for work but fails to return to the facility at the appointed time may be charged with the crime of “unauthorized departure.”
The defendant was an inmate at a corrections facility, the Multnomah County Restitution Center (MCRC). He was released temporarily from the MCRC on a work-release program but failed to return to the MCRC at the scheduled time. He was convicted of the crime of “unauthorized departure’ ’ under
“A person commits the crime of unauthorized departure if:
“(a) The person makes an unauthorized departure[.]”
“the unauthorized departure of a person confined by court order in a juvenile facility or a state hospital that, because of the nature of the court order, is not a correctional facility as defined in subsection (2) of this section, or the failure to return to custody after any form of temporary release or transitional leave from a correctional facility.” (Emphasis added.)
“As used inORS 162.135 to 162.205, unless the context requires otherwise:
* * * *
“(3) 1Custody’ means the imposition of actual or constructive restraint by a peace officer pursuant to an arrest or court order, but does not include detention in a correctional facility, juvenile facility or a state, hospital.” (Emphasis added.)
*38The problem arises because
1. An essential element of the crime of “unauthorized departure” is that the defendant “fail[] to return to custody.”
2. “Custody * * * does not include detention in a correctional facility.”
3. The MCRC is a correctional facility.
4. Therefore, he cannot be convicted of “unauthorized departure” for his failure to return to the MCRC.
Before 1989, there was no crime of “unauthorized departure.”1 An inmate who failed to return to a correctional facility following a grant of temporary leave was chargeable with “escape in the second degree,” a Class C felony.
“(1) A person commits the crime of escape in the second degree if:
* * * *
“(b) Having been convicted or found guilty of a felony, the person escapes from custody imposed as a result thereof; or
‘ ‘ (c) The person escapes from a correctional facility[.] ’ ’
Consistent with the separate treatment in
In 1989, the legislature amended ORS chapter 162 to create the crime of “unauthorized departure,”
The “definitions” statute concerning escape and related offenses,
When construing a statute, “the intention of the legislature is to be pursued if possible.”
The 1989 legislative history clearly demonstrates that to assign the
*40Testimony before the Senate Judiciary Committee makes it clear that the crime of “unauthorized departure” was directed at those inmates who fail to return after temporary leave from a correctional facility. Testifying on behalf of the Oregon Criminal Justice Council, which introduced the legislation, Bob Durston explained:
“[SB 1073] relates to escapes and unauthorized departures. Section 51 amendsORS 162.135. It narrows the definition of ‘escape’ to exclude failure to return to custody from temporary leave. There’s been a great amount of concern as to an alarming escape rate in Oregon. In fact, the escape from maximum and medium security facilities is very low compared to other states. The walkaway rate, however, is very high, and the Council determined or is recommending that there be a distinction between walkaways and escapes, and that it be reflected in the criminal code. And [SB 1073] is the effort to do that. The walkaway situation would then be added to the definition of unauthorized departure.
“Section 52 [adding the crime of ‘unauthorized departure’] amendsORS 162.175 to then expand the crime of unauthorized departure to reflect the change made to the escape definition and the definition of unauthorized departure.” Tape recording, Senate Judiciary Committee, April 3, 1989, Tape 91, Side B at 285-339. (Sections 51 and 52 of SB 1073 were incorporated into the provisions of HB 2250 as sections 53 and 54, respectively.)
In amending
The dissent asserts that we may not examine the legislative history of
The dissent also states that, “[a]s used in
The interpretation that “custody” in
The Pirkey problem arises only under the dissent’s construction of the statutes. There is no Pirkey problem. Persons violating the second clause of
*42The decision of the Court of Appeals is affirmed. The judgment of the district court is affirmed.
Notes
Before amendment,
“In the construction of a statute, * * * where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”
Dissenting Opinion
dissenting.
This is a case of statutory construction. The majority holds that, as used in
Every judge of this court recognizes that the context of
From the foregoing, I conclude that, under the facts of this case,
The majority first states:
“The problem arises becauseORS 162.135(7) defines ‘unauthorized departure’ as the ‘failure to return to custody after temporary release * * * from a correctional facility’ andORS 162.135(3) states that ‘custody’ ‘does not include detention in a correctional facility.’ (Emphasis added.)” 312 Or at 38.
*43Later in its opinion, the majority candidly acknowledges that the problem arises because the 1989 legislature overlooked the need to amend
“The legislature did not, however, amendORS 162.135(3) , which continued to exclude ‘detention in a correctional facility’ from the definition of ‘custody.’ ” 312 Or at 39.
In an effort to avoid an unreasonable or absurd result, the majority resolves the inconsistency on the face of the two statutory subsections by relying on legislative intent and statutory context. My quarrel is with the majority’s method of analysis that begins, not with what the statutory subsections explicitly say, but with a search for what the legislature must have meant them to say. The majority then construes the statutes to fulfill its conclusions about perceived legislative intent. Simplistic applications of the maxims of statutory interpretation may be useful tools for decision, but they do not substitute for specific analysis in the first instance. State v. Wagner, 309 Or 5, 9,786 P2d 93 (1990). This dissent, then, analyzes the two bases on which the majority relies, and rejects them both.
LEGISLATIVE INTENT
The pursuit of legislative intent is permissible when the words of a statute are ambiguous. Whipple v. Howser, 291 Or 475,479-83, 632 P2d 782 (1981); Easton v. Hurita, 290 Or 689, 694, 625 P2d 1290 (1981). But here, the words of
If the language of a statute is unambiguous but the legislature has failed to translate its intent into operative language, then no matter what the legislative history indicates, this court may not ignore the plain meaning of the unambiguous words and rewrite the statute to better serve some other perceived legislative intent. See State ex rel Everding v. Simon, 20 Or 365, 373-74, 26 P 170 (1891) (where the legislature has mistakenly not made the provisions necessary to carry out its intent, the court cannot by construction supply those provisions). The function of this court is to *44interpret the law, not to make it. Judicial “fiddling” is simply not our line of work or, at least, it ought not to be.
In Monaco v. U.S. Fidelity & Guar., 275 Or 183, 188, 550 P2d 422 (1976), this court stated:
“Whatever the legislative history of an act may indicate, it is for the legislature to translate its intent into operational language. This court cannot correct clear and unambiguous language for the legislature so as to better serve what the court feels was, or should have been, the legislature’s intent. Lane County v. Heintz Construction Co. et al, 228 Or 152, 157, 364 P2d 627 (1961).”
And in Berry Transport, Inc. v. Heltzel, 202 Or 161, 166-67, 272 P2d 965 (1954), this court explained:
“However, it is only in cases where the language used in a statute is ambiguous and uncertain that resort may be had to rules of statutory construction in ascertaining and declaring the legislative intent. It is elementary that when the legislature, in enacting a law, makes use of plain, unambiguous, and understandable language, it is presumed to have intended precisely what its words imply. There is no occasion to go beyond those words and their plain meaning to ascertain by application of the rules of statutory construction the legislative purpose. The words used speak for themselves.”
See also Curly’s Dairy v. Dept. of Agriculture, 244 Or 15, 20, 415 P2d 740 (1966) (“If the statute is clear and unambiguous, then the court may not resort to rules of statutory construction in ascertaining and declaring the legislative intent.”); State v. Young, 74 Or App 399, 403, 145 P 647 (1915) (same); Foster v. Goss, 180 Or 405, 408, 168 P2d 589, 175 P2d 794 (1947) (“the court has no legislative powers and is not authorized to supply deficiencies in a statute”).
Words that are defined in a definition statute are not ambiguous. In Chapman Bros. v. Miles-Hiatt Investments, 282 Or 643, 646, 580 P2d 540 (1978), this court explained:
“The function of a definition section in a statute or regulation is to give the terms there defined the precise meaning intended by the draftsman whenever one of those terms is used in the statute, rather than what might otherwise appear to be their meaning in common usage or in other contexts, and thereby to exclude doubts and disputes based on reference to such extrinsic usage. The draftsman in effect asserts *45that when the defined word appears in the operative sections of the statute, it has been used in full awareness of the definition given it for that statute and should be so understood by the reader.”
Courts are. bound by duly enacted statutory definitions, unless they are obviously absurd. Bunnell v. Parelius, 166 Or 174, 180, 111 P2d 88 (1941).
Nevertheless, the majority has rewritten the definition of a term, i.e., “custody,” that the legislature has precisely defined. The majority directs that “the context of
STATUTORY CONTEXT
Assuming, however, for the sake of argument, that
“Custody” means restraint, either physical restraint or constructive restraint. As used in
On the other hand, if the “custody” does not include constructive restraint, that word can mean only physical restraint. That construction, however, clearly is not consistent with the majority’s assumed legislative intent. Under it, “custody” presumably would mean physical confinement within a correctional facility, whether that facility is a penitentiary, a jail, a work camp, a restitution center, or a home where the person was under “house arrest.” The word would exclude work release or an intensive supervision program (ISP) where a convicted person must telephone, or report in-person to authorities as required (but otherwise is not in physical confinement). If “custoay” were so defined, in some situations, including this case,
*47Read together, these conflicting definitional statements are nonsensical. The trial judge in this case clearly recognized the internal inconsistency which appears on the face of the two statutory subsections. The judge stated:
“The critical issue is whetherORS 162.135(3) is fatal to the state’s ability to prosecute unauthorized departure cases such as those before me. * * *
“Without subsection (3), * * * there is no adequate basis for reaching ‘constructive custody,’ such as failure to return to ISP. The state cannot have it both ways.ORS 162.135(3) unavoidably excludes correctional facilities, so it cannot logically apply to the ‘failure to return to custody after any form of temporary release or transitional leave from a correctional facility’ without doing violence to the obvious legislative intent.
“* * * [T]here is no basis for reaching constructive custody inORS 162.135(7) absent subsection (3), and subsection (3) cannot apply because ‘the context otherwise requires.’
“I conclude * * * that a mere failure to return to report to ISP is not within the unauthorized departure statute unless the state is prepared to prove that ISP involves actual custody.” (Emphasis in original).
Thus, the majority’s conclusion, that in order to give effect to the last clause of
*48If this court is to interpret a statutory scheme in pursuance of its assumed legislative intent, then this court must not construe the scheme so as to effect that intent only partially. Otherwise, this court would be acting as a super-legislature, omitting a whole class of persons from the scheme’s purview. We must not omit from the statutory scheme what the legislature has included.
I hesitate to contemplate what the majority’s construction of the statutory scheme means in the context of State v. Pirkey, 203 Or 697, 281 P2d 698 (1955). In that case, this court apparently found a violation of the Fourteenth Amendment (Equal Protection Clause) and of Article I, section 20, of the Oregon Constitution, where the statutes fixed no standards within which the grand jury or the magistrate could exercise its discretion in charging a misdemeanor or a felony for the same conduct.3 Under the majority’s construction of the statute here, the prosecutor could in the exercise of unguided discretion charge defendant with the misdemeanor of unauthorized departure,
I would hold that the state’s evidence in this case was insufficient to establish all of the essential elements of unauthorized departure. Therefore, the trial court erred in denying defendant’s motion for judgment of acquittal. Defendant’s conviction should be reversed.
Unis, J., joins in this dissent.For example, when one is on transitional leave, such as temporary leave before parole, no condition of leave requires that the person return to the actual physical *47restraint of the penitentiary. Therefore, that person could not be convicted of failing to return to custody. Yet, given the inclusion of the words “transitional leave” in the definition of unauthorized departure, the legislature clearly intended to permit the prosecution of people who violate the terms of their transitional leave by absconding and refusing to return to sign their parole papers. This same analysis also applies to those who are released from correctional facilities to work release or ISP. Thus, a definition of “custody” that includes only the concept of actual physical restraint would effect the legislative intent only partially, because people on temporary release could be prosecuted under OKS 162.175, but those on transitional leave could not.
As for the majority’s reluctance to reach “an unreasonable or absurd result,” 312 Or at 39, suffice it to say that I agree with the Court of Appeals that that doctrine must be applied with caution to assure that the line between judicial recognition of a statute’s apparent policy and judicial amendment of the legislation is not crossed. *48Dennehy v. City of Portland, 87 Or App 33, 40-41, 740 P2d 806 (1987).
In this case, there is nothing “unreasonable or absurd’ ’ in a literal reading of the statute, unless one is prepared to accept the proposition that any time the legislature makes a simple mistake, the result is “unreasonable or absurd.” Far from being absurd, a literal reading here may mean only that the state should have prosecuted defendant for escape in the second degree,
The precise holding in Pirkey was that the provision of the relevant statute ‘ ‘is unconstitutional. ” 203 Or at 708. It is not entirely clear from the opinion, however, whether that holding was based on the state or the federal constitution, or both.
The Oregon Constitution has no “equal protection” provision in so many words. However, when speaking of the state constitution’s guarantee of equal protection, this court, no doubt, is referencing Article I, section 20.