Whipple v. Howser

¶1This is a civil action for damages arising from a two-car accident. Plaintiff was a passenger in one of the cars and named as defendants the owner and driver of the other car. Those defendants filed a third party complaint naming as a third party defendant the driver of the car in which plaintiff was a passenger and alleging that any injuries suffered by plaintiff were the result of negligence by the driver of the car in which she was a passenger and, therefore, if a judgment were returned against them they were entitled to contribution from third party defendant.1

¶2The trial court allowed a motion to strike that third party complaint upon the ground that at the time this accident occurred in 1978, Oregon’s Guest Passenger Act, ORS 30.115,2 required an allegation of gross negligence or intoxication, rather than ordinary negligence, for recovery *478in actions by passengers against owners or operators of motor vehicles and that the repeal of that Act by the Oregon legislature in 1979 with regard to motor vehicles3 was not intended to apply retroactively to actions which had “accrued” at the time the repeal became effective, but which were “commenced” after the effective date of that Act. The Court of Appeals affirmed the trial court. 51 Or App 85, 624 P2d 648 (1981). We allowed the petition for review because of the importance of the question whether retroactive effect must be given to the repeal of the Guest Passenger Act with respect to motor vehicles which had “accrued” before the effective date of that repeal, but had not been “commenced” until after the effective date of that repeal, and the apparent confusion among trial courts in deciding that question.

¶3Or Laws 1979, ch 866, which repealed the Guest Passenger Act as it applied to motor vehicles, includes the following “savings clause.”

“Section 8. This Act does not apply to an action or other proceeding commenced before the effective date of this Act.” (Emphasis added)

¶4In allowing the motion to strike defendants’ third party complaint, the trial court relied upon the decision by this court in Smith v. Clackamas County, 252 Or 230, 448 P2d 512 (1969), in ruling that the repeal was not retroactive as to actions which had been “commenced” after the effective date of that repeal, if such actions had “accrued” prior to that date. The Court of Appeals, by a 7-3 decision, affirmed. The majority of that court also based its decision upon Smith v. Clackamas County, supra,believing it to be controlling. 51 Or App at 90.

¶5In Smiththis court was called upon to interpret a “savings clause” essentially the same as in this case and held that the statute in question in that case was not to be *479applied retroactively to actions which had “accrued,” but had not yet been “commenced” at the effective date of that statute. In reaching that conclusion the court relied primarily upon a “rule” of statutory construction to the effect that when an amendment is made to a “substantive” statute, as was the case in Smith, as opposed to a “procedural” statute change, the statute “is presumed not to be retroactive, and such a statute will not be applied retroactively unless the language of the statute absolutely requires such application.” 252 Or at 235. The majority opinion by the Court of Appeals also applied this “substantive-procedural” distinction, which it referred to as a “rule of statutory construction,” in reaching the same result as in Smith. 51 Or App at 90.

¶6Three Court of Appeals judges dissented, contending that the “overriding consideration” in determining whether a statute should be applied retroactively is the intent of the legislature and that the language of the “savings clause” in the present case expressed an intent to apply the statute retroactively to actions which had been “commenced” after the effective date of the Act, regardless of when such actions had “accrued.” They further questioned the validity of the decision in Smith. 51 Or App at 90 to 96.

¶7In deciding the question presented for decision in this case, it must first be kept in mind that when construing any statutory provision the duty of this court is to “discern and declare the intent of the legislature.” Fifth Ave. Corp. v. Washington County, 282 Or 591, 596, 581 P2d 50 (1978); See also ORS 174.020.

¶8The starting point in every case involving a determination of legislative intent is the language of the statute itself. Greyhound Corp. v. Mt. Hood Stages, Inc., 437 US 322, 330 (1978). This need to look first to the language of the statute has been frequently recognized by this court. In Swift & Co. and Armour & Co. v. Peterson, 192 Or 97, 233 P2d 216 (1951), we said (at 108):

“The cardinal rule for the construction of a statute is to ascertain from the language thereof the intent of the lawmakers as to what purpose was to be served, or what object was designed to be attained.”

¶9*480Accord, State of Oregon v. Buck, 200 Or 87, 92, 262 P2d 495 (1953).

¶10More specifically, in State ex rel Cox v. Wilson, 277 Or 747, 562 P2d 172 (1977), we held (at 750) that:

“ ‘There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.’ ” Quoting United States v. American Ass’ns, 310 US 534, 542-44, 60 S Ct 1059, 84 LEd 1345 (1940).

¶11As also held in Lane County v. Heintz Const. Co. et al, 228 Or 152, 157, 364 P2d 627 (1960), quoting with approval from Barrett v. Union Bridge Co., 117 Or 566, 570, 245 P 308, 45 ALR 527 (1926):

“Section 715, Or. L. [now ORS 174.010], directs that the courts in the construction of statutes, are ‘simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, nor to omit what has been inserted. ’ We ought never to import into a statute words which are not to be found there, unless from a careful consideration of the entire statute it be ascertained that to import such words is necessary to give effect to the obvious and plain intention and meaning of the legislature. Under the directions of the statute last referred to, we are not at liberty to give effect to any supposed intention or meaning in the legislature, unless the words to be imported into the statute are, in substance at least, contained in it. ” (Emphasis added)

¶12 Barring constitutional limitations, the legislature may impose any special conditions it desires upon its enactments. Moreover, this court has recently held that, with the exception of ex post facto laws,4 there is no constitutional bar to the legislature providing that its laws be applied retroactively. See Hall v. Northwest Outward Bound School, 280 Or 655, 572 P2d 1007 (1977). Thus, in determining whether to give retroactive effect to a legislative provision, it is not the proper function of this court to make its own policy judgments, but its duty instead is to attempt to “discern and declare” the intent of the legislature.

¶13This duty of the court to “discern and declare” the intention of the legislature has also been recognized by this *481court in the retroactive application of statutes on a number of occasions.

¶14Again, in Joseph v. Lowery, 261 Or 545, 495 P2d 273 (1972), we held (at 552) that:

“[I]t is the legislature’s intent that governs. Legal rules relating to retroactive and prospective application of statutes are merely rules of construction by which the court attempts to ascertain the probable legislative intent.” (Emphasis added)

¶15To the same effect, see Hemstreet v. Warlick, 281 Or 579, 586 n. 3, 576 P2d 1 (1978); Spicer v. Benefit Ass’n of Ry. Emp., 142 Or 574, 593, 17 P2d 1107, 21 P2d 187 (1933). See also Mahana v. Miller, 281 Or 77, 80-81, 573 P2d 1238 (1978).

¶16Sometimes, however, it is impossible to “discern” the intent of the legislature regarding retroactivity or other matters from the language of the statute itself. For that reason, a number of “rules” or “maxims” of statutory construction have been developed to aid the courts in such cases in determining probable legislative intent as to whether a statute should be applied retroactively. We have held, however, that such “rules” or “maxims” of statutory construction are not to be resorted to if the language of the statute itself expresses the intent of the legislature. See State ex rel Appling v. Chase, 224 Or 112, 116, 355 P2d 631 (1960); Curly’s Dairy, Inc. v. State Dept. of Agriculture, 244 Or 15, 20, 415 P2d 740 (1966). See also Roy L. Houck & Sons v. Tax Com., 229 Or 21, 30-31, 366 P2d 166 (1961).

¶17The reason for not resorting to such “rules” or “maxims” of statutory construction when the statute’s language itself shows legislative intent is that such “rules” or “maxims” are not intended to be devices by which this court may substitute its own judgment for that of the legislature when its intent is not clearly expressed by the terms of a statute, but rather are meant to be “aids” by which the court may perform its duty to “discern and declare” the intention of the legislature when the language of a statute does not clearly express it. As also stated in Perkins v. Willamette Industries, 273 Or 566, 570-71, 542 P2d 473 (1975):

*482“Essentially, determining whether a particular statute was meant to apply prospectively or retrospectively is a matter of ascertaining the intent of the legislature. In the absence of an explicit indication of that intent, it is our duty to determine the legislature’s probable intent. Although it is sometimes said that remedial and procedural statutes are normally applied retroactively (citing cases) that rule is merely a rule of construction. Like other rules of construction, it is not conclusive but only a guide to proper interpretation of the statute. ” (Emphasis added)

¶18To the same effect, see Joseph v. Lowery, supra, at 552. Thus, there is no need to resort to the less precise method of attempting to ascertain legislative intent by the application of “rules” or “maxims” of statutory construction when the language of the statute itself reveals the intent of the legislature.

¶19Indeed, it has been said of “rules” or “maxims” of statutory construction that:

“Each of these common sense approaches fits some cases but not others, each has ‘exceptions’ and opposite-and-equal counterparts, and each causes more harm than it is worth if it is not cheerfully ignored whenever it is an obstacle to understanding what the legislature enacted.

“References to ‘rules,’ ‘maxims’ or ‘aids’ to statutory construction might pass as merely a difference in the style of opinions, which is a personal matter, if it were not for the risk that they will be mistaken by courts and counsel as directives for how to argue and decide statutory questions. Experience shows that such statements in prior opinions interpreting one particular statute are quoted back to us, and presumably to the trial courts and the Court of Appeals, as authority for interpreting another statute by applying the stated rules or maxims. If these seemingly authoritative statements of juristic method do not actually govern decisions on statutory interpretation, as in fact they do not, a party’s reliance on them is not only a waste of time but may divert counsel and courts from a more fruitful line of inquiry into the particular legislation at issue.” Davis v. Wasco IED, 286 Or 261, 274-75, 593 P2d 1152 (1979) (Linde, J., concurring).

¶20To the same effect, see Denecke, Prologue, 16 Willamette Law Review 183, 187 (1979); Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons *483About How Statutes are to be Construed, 3 V and L Rev 394, 401-06 (1950).

¶21In this case both parties have cited “rules” or “maxims” of statutory construction which arguably support their respective contentions whether the present statute should or should not have a retroactive effect upon actions which were “commenced” after the effective date of the act repealing the Oregon Guest Passenger Act in its application to motor vehicles, but which have “accrued” prior to that date. Indeed, these conflicting contentions only reinforce the above-stated and well-established principle that the duty of this court is to “discern and declare” the intention of the legislature; that in the performance of that duty the court must look first to the language of the statute and if that language expresses the probable legislative intent, this court need not resort to “rules” or “maxims” of statutory construction. Again, see Perkins v. Willamette Industries, supra, at 570-71, and Joseph v. Lowery, supra, at 552.

¶22The repeal of the Guest Passenger Act with regard to motor vehicles was passed as part of Or Laws 1979, ch 866 (formerly Senate Bill 422).5 As previously stated, that statute includes the following “savings clause”:

“Section 8. This Act does not apply to an action or other proceeding commenced before the effective date of this Act.” (Emphasis added)

¶23This “savings clause” expressly states that the new law is not to apply to actions “commenced” before the Act’s effective date (October 3, 1979). Obviously, before an action could be “commenced” before that date the action must have “accrued” before that date. The express language of the “savings clause” is silent, however, with regard to the question that must be resolved in this case: whether the Act was intended to have retroactive effect to actions “accrued,” but not “commenced,” before the effective date of the Act.

¶24*484This court has twice previously interpreted statutes with similar “savings clause” provisions. In Spicer v. Benefit Assn. of Ry. Emp., supra,the “savings clause” read:

“The terms of this act shall not apply to any suit or action started or begun prior to the passage of this act.” (Emphasis added)

¶25In construing that “savings clause” this court held that the statute was intended to apply retroactively to actions “accrued,” but not “commenced.” In reaching that result this court did not rely upon “rules of statutory construction,” but held (at 593):

“… the paramount purpose of all rules of statutory construction is not to achieve some preconceived arbitrary objective, but to give effect to the legislative purpose. In the present instance the 1931 amendment indicates that the legislature itself considered and determined the manner in which the new law should be applied. The act provides: ‘The terms of this act shall not apply to any suit or action started or begun prior to the passage of this act.’ Thus, it is evident that the legislature intended that the act should be applied to all existing rights except those only which had already become the subject-matter of suits or actions.”

¶26Again, in Smith v. Clackamas County, supra, the court interpreted a “savings clause” similar to that in this case, which read:

“This Act shall not affect any action, suit or proceeding commenced prior to and pending on the effective date of this Act.”

¶27In that case, however, the court held that the statute was not to be applied retroactively, even though the court recognized that the wording of that “savings clause” “tends to imply a legislative intent to exclude related matters not mentioned.” 252 Or at 233. The court nevertheless concluded that it could not find a “logical reason” for distinguishing between actions “accrued,” but not “commenced,” and stated that “in the absence of some logical reason for a distinction, there is no basis for an inference that the Assembly intended to draw a distinction between actions filed by a certain date and actions accrued but not filed by that date.” 252 Or at 233-34.

¶28*485The court then attempted to distinguish Spicer, supra,by saying (at 234-35) that Spicerwas premised upon the rule of statutory construction that statutes involving procedural changes, such as the statute in Spicer, are to be applied prospectively, while statutes involving substantive changes, such as in Smith, are presumed not to be applied retroactively “unless the language of the statute absolutely requires such application.”

¶29More recently, however, this court in Joseph v. Lowery, supra,again discussed its previous decision in Spicer, and its interpretation of that decision was different from that attempted in Smith. Thus, in Lowery, this court examined the “savings clause” interpreted in Spicerand held as follows (at 552-53):

“That case applied a statute retroactively which permitted an award of attorney fees in the Supreme Court in a successful action against an insurance company on its policy. The intent of the legislature was clear that the statute should be applied to all existing rights, exepting only those which were already the subject matter of a suit or action when the statute became effective, because the act provided that its terms should ‘not apply to any suit or action started or begun prior to the effective date of this act.’ The case’s decision on retroactivity, therefore, is not inconsistent with the non-retroactive application of the statute presently under consideration, although for limited purposes, Spicertreated attorney fees as costs and, therefore, as remedial in nature.” (Emphasis added)

¶30See also Perkins v. Willamette Industries, supra, at 570-71, as previously quoted.

¶31We agree with Lowerythat a reading of Spicerreveals that in holding that the statute in question was to be applied retroactively, the court was relying not on the “procedural-substantive” “rule” or “maxim” of statutory construction as contended by Smith, but upon what it believed to be a clear statement of legislative intent in the language of the “savings clause.”

¶32In addressing the “savings clause” now before us, we adhere to the reasoning as set forth in Spicer, and as affirmed in Lowery, to the effect that the language of this “savings clause” is a clear statement of an intent by the legislature to apply the statute retroactively to actions *486which had been “commenced” after the effective date of the Act, regardless of when such actions had “accrued.” Although the statute may not expressly state such an intent, we believe that such an intent is the logical inference to be drawn from the language of the statute. Inclusion of the “savings clause” demonstrates that the legislature was concerned with the effect of applying the law retroactively. By specifically stating and emphasizing that the statute shall not apply to actions “commenced” before the effective date of the statute, the most reasonable assumption is that the legislature believed that the statute would apply to actions “commenced” after the effective date of that statute, regardless of when such actions had “accrued.” Further, a contrary interpretation would render the “savings clause” in this particular statute generally meaningless, because if the legislature had intended that the statute not be applied retroactively to actions “accrued” but not “commenced,” it would go without saying that the statute would not be applied retroactively to actions “accrued” and “commenced.”

¶33Had the legislature intended that the Act also apply to actions or proceedings which had “accrued” before the effective date of that Act, as well as those “commenced” prior to that date, it would have been a simple matter to add the word “accrued,” so as to read:

“This Act does not apply to an action or other proceeding which accrued or commenced before the effective date of this Act.”

¶34The fact that the legislature did not do so is strong evidence, in our opinion, that the legislature intended to apply the repeal of the Guest Passenger Act in its application to motor vehicles to actions “commenced” after the effective date of the Act, but which “accrued” prior to that date. As previously stated, we must bear-in mind that the legislature itself has provided by the terms of ORS 174.010 that the duty of the court is “simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; ….” (Emphasis added).

¶35Such a result may appear to some to be an unreasonable result. The same may be said, however, of *487distinctions imposed by the application of many statutes, such as those imposed by the various statutes of limitations. See ORS 12.010 et seq. Again, however, the duty of this court is to “discern and declare” the intention of the legislature, rather than to impose upon the parties to this case its own policy judgment in an effort to arrive at a result which may appear to the court to be a more “reasonable” result.

¶36In holding as we do, we do not abandon the “rules” or “maxims” of statutory construction that have been developed for application in cases in which the court cannot otherwise “discern and declare” the intention of the legislature and in which such “rules” or “maxims” may be of aid to the court in determining the probable intent of the legislature. We hold, however, that when, as in this case, the language of a statute is sufficiently clear so as to reveal the legislature’s intent, it is both unnecessary and improper to resort to such “rules” or “maxims” of statutory construction. Therefore, to the extent that Smith v. Clackamas County, supra, is inconsistent with our holding in this case that decision is overruled.6

¶37*488For these reasons, the decisions of the Court of Appeals and trial court are reversed and this case is remanded to the trial court for further proceedings consistent with this opinion.

¶38Reversed and remanded.

¶46concurring.

¶47The question of the so-called “retroactive” or “retrospective” effect of a new law is not, or should not be, a question of adjudication. Its answer is not to be sought in judicial precedents. “Retroactivity” is in the first instance a question of legislative draftsmanship. When it becomes a problem, the problem is a failure of drafting, probably reflecting in turn a failure to give adequate attention to the policy choices involved. Then a court must solve the problem in one of three ways: (1) by invoking a generalized policy preference, sometimes labeled a “presumption,” that must be overcome by specific legislative language; (2) by choosing its own preferred policy for the issue before it; or (3) by constructing some inference from the statutory text and legislative history, whether or not the court agrees with the policy. The first of these has ancient and respectable antecedents, see Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn L Rev 775 (1936), and is defended by the dissent in the present case. The Court in this case follows the third approach, and I concur.

¶48“Retroactivity” itself is a deceptively simple word for a complex set of problems. In real time, all laws can operate only prospectively, prescribing legal consequences after their enactment; they cannot change the past. On the *489other hand, all new laws operate upon a state of affairs formed to some extent by past events. As one student of the subject wrote long ago:

“There is no such thing as a law that does not extinguish rights, powers, privileges, or immunities acquired under previously existing laws. That is what laws are for. On the other hand, no law can be retrospective in the sense that it recalls the past, or either regulates or prevents that which has already happened...

“[A] law gives to an event which has already transpired a juristic significance it did not have at the time it occurred; but it does so only in order that it may thereby regulate future conduct. [Limitations on retroactivity] differ in effect only in the extent to which they regulate the future, or, what amounts to the same thing, the significance they attach retrospectively to the past event.”

¶49Smith, Retroactive Laws and Vested Rights, 5 Texas L Rev 231, 233 (1927).

¶50Responsible attention to the significance to be attached to past events cannot be compressed into some simple formula to serve legislation of all kinds. Too many different past events and too many potential legal consequences are relevant for different kinds of laws. The variety and sequence of relevant past events will be different in property law, in inheritance law, in commercial transactions, in taxation or public regulation, and in tort law, and so will the policy choices as to changing or preserving the preenactment legal effects of these past events.1 A formula relating to “actions commenced,” as in this case, for example, is inappropriate to a change in a field of law not primarily concerned with litigation, but other rules drawn with knowledgeable attention to the critical events characteristic of that field should be included.

¶51Here the clause at issue provided that the act “does not apply to an action or other proceeding commenced before the effective date of this Act.” Or Laws 1979, ch 866, § 8. The first thing wrong with this formulation, as the debate between the majority and the dissent shows, is that *490it is stated in the negative. The clause states to what the new act does not apply. It does not state to what the act does apply, or that it applies to all other actions. An affirmative statement, or statements both of inclusion and exclusion, are more apt to surface the policy choices for attention in the process of enactment. The affirmative formulation used in abolishing the defense of assumption of risk, for instance, left nothing to be litigated except an unsuccessful constitutional attack. Hall v. Northwest Outward Bound School, 280 Or 655, 572 P2d 1007 (1977).

¶52Moreover, the formula here was chosen for a bill relating to one subject, tort liability for injury from defective products, and covers the different subject to automobile injury claims only because repeal of the automobile guest passenger law was attached to that bill by amendment. Examined separately, the policies regarding application of these statutes to preenactment injuries might not be the same. Neither the criteria of liability and the significance of the changes nor the situations of the affected parties are identical. Nevertheless, the legislature might choose the same formula to govern the application of each enactment. That is in fact what it did, with or without deliberation.

¶53It is not implausible that the lawmakers thought the changes in products liability law too slight or the time of other critical events for defining the application of the changed law too remote to choose another effective time than the commencement of actions. I cannot disagree with the majority’s inference that, in the products liability bill, the negative clause excluding actions “commenced before the effective date of the Act” was meant to imply that the act would govern all actions commenced after its effective date. The addition of the guest passenger provision then brought that provision under the same formula.

¶54In my view, however, the present decision cannot be taken to mean that hereafter the same clause will always be held to have this effect rather than the contrary effect it was given in Smith v. Clackamas County, 252 Or 230, 448 P2d 512 (1969). The important point is that inexplicit clauses like the one used here do not become words of art by judicial interpretation, to be inserted into *491bills as unexamined “boilerplate” because they have been used and fought over before. In this respect I disagree with the dissent’s invitation to ' drafters to rely on stare decisis in repeating phrases that have been troublesome enough to require judicial interpretation. To the contrary, the very fact that a phrase requires two levels of appeals to interpret should not reward it with an additional patina of having become “settled”; it should be reexamined and the desired policy spelled out in the context of future uses. The context of the particular legislation before us, Or Laws 1979, ch 866, has led the Court to conclude that the repeal of the automobile guest passenger law applies to preenactment injuries. On the record of this legislation, I concur in that conclusion.