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Kevin Sali: The Roles of an Oregon Supreme Court Justice

Wednesday, August 12, 2015


Oregon Supreme Court Justice Virginia Linder has announced her upcoming retirement, so Oregonians will now need to select someone to replace her.  Governor Kate Brown will likely appoint a successor, who will then stand for reelection in 2016.  As we prepare to evaluate potential appointees, it’s worthwhile to consider the unique role a state Supreme Court justice plays in our system.

In the often-contentious debates over the proper role of judges in our system, we typically focus on United States Supreme Court justices, especially on their decisions interpreting the United States Constitution.  Those decisions are undoubtedly significant—over the years that Court has decided, for example, that the U.S. Constitution permits capital punishment but forbids certain legal restrictions on abortion.  What is not as well-known is that state Supreme Courts are arguably just as influential, and perhaps even more so, within their respective states.

State Supreme Courts, for example, have their own roles to play in interpreting the United States Constitution.  Cases that originate in state trial courts often involve federal constitutional issues, and if those cases are appealed to the state Supreme Court those justices have to make the same types of interpretive decisions that U.S. Supreme Court justices make.  

The U.S. Supreme Court is legally superior to any state Supreme Court, and if the federal justices rule on an issue, their opinion binds all state courts.  But the U.S. Supreme Court decides for itself which cases to take, and there are many critical issues on which that Court has so far declined to take a position.  When that happens, a state Supreme Court’s opinion on any such issue is binding within that state unless and until the U.S. Supreme Court takes up the issue.  As a particularly relevant example, Oregon is one of only two states that permit convictions by non-unanimous juries in criminal cases.  Defense attorneys have repeatedly argued that this violates the U.S. Constitution.  The Oregon Supreme Court has held that it doesn’t, and the U.S. Supreme Court has declined to consider the issue despite multiple requests to do so; that means the Oregon court’s decision is binding, at least for now.

Another critical role the Oregon justices play is in interpreting Oregon’s own state constitution.  That constitution, just like the federal one, places limits on the laws that legislators can enact.  This means that an Oregon statute that passes scrutiny under the federal constitution can still be invalidated.  

For example, laws forbidding live sex shows are generally permissible under the federal First Amendment, but in 2005 the Oregon Supreme Court held such a law unconstitutional under the free expression clause in the Oregon Constitution.  When that court makes such a ruling, it’s just as binding within Oregon as a decision by the U.S. Supreme Court would be.  Moreover, because it’s based on the Oregon Constitution, the Oregon Supreme Court’s decision is the final word.  The U.S. Supreme Court won’t even consider reviewing such a case, because that Court has no role to play in interpreting a state constitution. 

Constitutional issues tend to get most of the attention, but the Oregon Supreme Court also interprets ordinary statutes passed by the Oregon legislature or the ballot initiative process.  No matter how specific the statutory language, lawyers will argue about what the words really mean.  For example, if a statute of limitations says that a particular type of civil claim must be brought within two years, when does the two-year clock start to run—when the event happens, when the plaintiff discovers the injury, or at some other time?  

Especially if the statutory language isn’t entirely clear, lawyers will fight vigorously over such questions, and the Oregon Supreme Court will eventually hand down a definitive answer.  Once again, the Oregon court is the final authority here; the U.S. Supreme Court won’t accept a case involving the interpretation of a state statute (unless the issue is whether the statute violates the U.S. Constitution).  Statutory interpretation cases tend not to be as controversial as constitutional cases because if the voters or legislators disagree with a decision they can simply rewrite the statutes to override the court’s decision.  Still, these cases can have profound impacts and make up a significant part of the Oregon court’s work.

So far, all of these roles have counterparts in the U.S. Supreme Court.  Another one of the Oregon Supreme Court’s tasks, however, has no real federal analog but nonetheless constitutes a heavy portion of the state court’s role.  

That task is the development of “common” or “judge-made” law.  A substantial proportion of the “law” that governs everyday life and business in Oregon is completely separate from the statutes, Constitution, or anything else that we typically think of as “laws.”  This type of law has developed over the centuries through a series of individual court cases.  

Long ago, for example, a trespasser was injured and brought a claim against the landowner for negligence, and the trial judge in the case had to decide whether a trespasser has a right to recover in that situation.  Eventually, that issue reached the Oregon Supreme Court, which decided what the rule should be without being bound by any statute or constitutional provision.  A vast number of other important issues have similarly been decided solely by that court.  The legislature can always step in and change any of these rules if it wants to.  Often, however, it simply lets the court’s framework stand, with the result that the justices have significant influence over the development of the law.

So there we have it.  Whoever replaces Justice Linder will have a series of complex, challenging responsibilities that will affect Oregonians in a variety of ways.  Best wishes to Governor Brown as she makes this important decision, and to Oregon voters as we continue to evaluate all of our justices.

Kevin Sali is a Lake Oswego attorney representing individuals and businesses in a broad range of criminal, civil and regulatory matters.  Kevin spent four years as a high school science teacher in Miami, Florida before earning his law degree from Duke University.  He is the author of Scientific Evidence:  A Manual for Oregon Defense Attorneys and numerous other writings on a variety of topics in the legal field, and is a contributor to Huffington Post Crime.  For more information visit salilaw.com


Related Slideshow: Timeline of Kate Brown’s Life and Political Career

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Brown was born on June 21, 1960 in Torrejón de Ardoz, Spain where her father was serving in the U.S. Air Force, but she grew up mostly in Minnesota. 

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Brown graduated from the University of Colorado at Boulder with a B.A. in Environmental Conservation. She then went on to earn a degree in environmental law from the Northwestern School of Law at Lewis and Clark College. 

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Law Career

Before Brown began her legislative career, she worked at Portland State University and worked as an attorney with the Juvenile Rights Project, a non profit in Portland that provides legal services to children and families. 

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House of Reps

Brown began her legislative career in 1991 in the Oregon House of Representatives where she served two terms. 

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Kate Brown was elected to the Oregon Senate in 1996 and two years later was elected Senate Democratic Leader. 

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Senate Majority Leader

In 2004 Kate Brown became the first woman to serve as Oregon's Senate Majority Leader. Brown served until July 2007 when she announced that she would give up her seat in the Oregon Senate to run for Secretary of State. 

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Secretary of State.

On May 20, 2008, Brown won the election for the Democratic nomination for Secretary of State and on November 5 she won the general election by a 51-46 percent margin against Republican candidate Rick Dancer.

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Rising Star

In 2009 the Aspen Institute named Brown as one of 24 "Rising Stars" in American politics and awarded her with a Rodel Fellowship

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Personal Life

Brown lives in Portland with her husband Dan Little who she has been married to for almost 20 years and is also a stepmother to  two children. She identifies as bisexual and was America's first openly bisexual statewide officeholder. 

Photo: Brown kissing Storm Large at Basic Rights Oregon's 27th annual Dinner Auction in 2009. Photo by Byron Beck.

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Cut D.C. Trip Short

On Wednesday, Feb. 11 2015 Brown left is the national conference for the Association of Secretaries of State in Washington D.C. two days early.

The 2015 Winter Conference runs from February 10-13, 2015, and draws top state officials from around the country.

Brown's spokesperson, Tony Green, confirmed she is on her way back to Oregon, and that her return is ahead of schedule. 

According to multiple sources at the highest level of State Government, her return is tied to a potential resignation by the embattled Governor John Kitzhaber.

Photo: Kate Brown with Peter Johnson (left) and George Vranas (right).

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Governor of Oregon

Governor John Kitzhaber released a statement Friday, Feb. 13 announcing his resignation.

Kate Brown will now serve as the Governor until the next general biennial election. A new governor can be elected in 2016. 

Kate Brown will be the second female Governor of Oregon. 

Photo Credit: Kate Brown with Dianne Lin by Byron Beck


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