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PARTING THOUGHTS The Strange Life of ORS 1.050 By James R. Hargreaves 62 OREGON STATE BAR BULLETIN • MAY 2016 iStock W hen I was appointed to the bench in 1975, one of my ear- liest and most important les- sons was about getting paid. At the end of my first month on the bench I was pre- sented with a Certificate of Compliance. I learned that this was a document that ORS 1.050 directed each trial judge to sign on a monthly basis certifying that he or she had no matter under advisement for more than 90 days. If you did not provide the certificate, or could not because you in fact had something under advisement for more than 90 days, you would not get paid un- til that was no longer the case. While the statute contained some allowance for stip- ulation of the parties, illness or “unavoid- able casualty,” it was otherwise mandatory. This certainly was an incentive to get one’s work done in a timely fashion! The statute, which remains in Oregon Revised Statutes to this day, still requires this certification. It reads in the main part: Any question submitted to any judge of any court of, or any justice of the peace in, any of the courts of this state, excepting the Supreme Court and the Court of Appeals and the judges thereof, must be decided and the decision rendered within three months after submis- sion, unless prevented by sickness or unavoidable casualty, or the time be extended by stipulation in writ- ing signed by the counsel for the respective parties and filed with the judge before the expiration of said three months. This section is man- datory, and no officer shall…issue any … payment of the salary or any installment of the salary … [unless the certificate has been filed]. I have not bothered to trace this statute back to its origins because it really would not serve any purpose. However, the earli- est citation of it (then Section 970-1) I have found is in the case of Kellogg v. Kellogg, 123 Or. 639 (1928). The language at that time was slightly different but the substance was completely the same. The Oregon Supreme Court indicated that, “the purpose of the statute was … intended to speed up the administration of judicial business by with- holding the judicial officer’s pay until he had rendered his decision.” From Kellogg we now fast-forward to State v. Classen, 285 Or. 221 (1979). In this case then Justice Berkely Lent, spe- cially concurring, talks about the need for speedier action by the court on their ap- peals. He refers to ORS 1.050 as a possible basis for the adoption of a rule by the court to help accelerate resolution of its cases. Following Classen, there were a series of cases in 1980 and 1981 in which Jus- tice Thomas Tongue took the court to task for delays and continually suggested that it adopt a rule based on ORS 1.050 to “encourage” justices to work more ex- peditiously. Then, in 1981 Attorney General Da- vid Frohnmayer opined that ORS 1.050 was unconstitutional as an inappropriate invasion of the province of the courts to manage themselves. See 1981A.G. Op. No. 8006, March 1981 There was no mention in the opinion of the Kellogg or Classen or any of the subsequent cases in which Justice Tongue urged a rule based on ORS 1.050. Following the issuance of this opin- ion by the attorney general, a very curi- ous thing happened, described by Tongue in his concurring opinion in Burlington Northern, Inc. v. Department of Revenue, 291 Or. 729 (1981). First, Tongue points out that soon after the publishing of the opinion by Frohnmayer, the then-state court administrator notified the trial judg- es that they were no longer required to file the Certificate of Compliance mandated by ORS 1.050. Tongue did not provide any insight into how this decision was ar- rived at, or by whom. My research has not produced any clue either. In his discussion of this matter, Tongue pointed out that back in 1955 the Oregon Supreme Court, in Alexander v. Gladden, 205 Or. 375 (1955), held that the court was not bound by the opinion of the attorney general. In addition, he points out that the court has never ruled ORS 1.050 unconstitutional and that the statute makes perfectly good sense as ap- plied to the work of the trial courts. Thus, it is a mystery why the state court admin- istrator treated the opinion of the attor- ney general as controlling. It is even a greater mystery why the court has let this continue all of these years. Today, there sits ORS 1.050 in the Oregon Revised Statutes, once a powerful ruler over judicial pay but now, like a dic- tator deposed by a nameless cabal, living in plain view, ignored and unloved by all except some old, faithful followers yearn- ing for the good old days. Senior Circuit Judge James Hargreaves is a principle in Amicus Curiae Consulting, which works with courts in developing coun- tries. Reach him at jrhdks@gmail.com.