500 September 3, 2026 No. 36
IN THE SUPREME COURT OF THE STATE OF OREGON
SHANE ANTHONY LEWIS,
Petitioner on Review,
v.
OREGON DEPARTMENT OF CORRECTIONS, Respondent on Review. (CA A184846) (SC S072160)
En Banc On review from the Court of Appeals.* Argued and submitted June 11, 2026. Diane J. McMillan, Allegiant Law, LLP, Portland, argued the cause and filed the briefs for petitioner on review.
Shane Anthony Lewis, Pendleton, filed a supplemental brief pro se.
Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Dan Rayfield, Attorney General and Paul L. Smith, Solicitor General.
FLYNN, C.J. The decision of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for reconsideration in light of the statutory amendments in Oregon Laws 2026, chapter 14.
Bushong, J., dissented and filed an opinion.
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* On judicial review of an administrative rule of the Oregon Department of Corrections, OAR 291-100-0080(3)(c). 340 Or App 363, 569 P3d 236 (2025).
Cite as 375 Or 500 (2026) 501 502 Lewis v. Dept. of Corrections
FLYNN, C.J. This case is before us on discretionary review of petitioner’s challenge to the validity of an administrative rule that describes how the Department of Corrections (DOC) will compute credit for time served when an inmate is serving consecutive sentences. Lewis v. Dept. of Corrections, 340 Or App 363, 569 P3d 236 (2025). At issue is whether that rule, OAR 291-100-0080(3)(c), directs a computation that is contrary to what the governing statutes permit and, therefore, exceeds the authority of the agency. The Court of Appeals interpreted the governing statutes as directing the same method of computation as the method specified in the rule and, on that basis, concluded that the rule is valid. Lewis, 340 Or App at 364-65. As we will explain, however , the governing statutes were amended after this court allowed review, and we vacate and remand for the Court of Appeals to consider in the first instance whether those statutory amendments affect the answer to petitioner’s rule challenge.
Petitioner filed his rule challenge pursuant to ORS 183.400(1), which permits “any person” to petition the Court of Appeals for a determination of the validity of an administrative rule, regardless of whether the person has a practical interest in the outcome of the challenge. See Kellas v. Dept. of Corrections, 341 Or 471, 477, 145 P3d 139 (2006) (stating that proposition and observing that ORS 183.400(1) reflects an “unambiguous” legislative policy choice “to authorize any person to invoke the judicial power of the court to test the validity of every administrative rule under existing statutory and constitutional law and, thus, to advance the objective that all agency rulemaking shall remain within applicable procedural and substantive legal bounds[ ]”). Such challenges “are colloquially called ‘facial challenges[.]’ ” Nay v. Dept. of Human Services, 360 Or 668, 679, 385 P3d 1001 (2016).
The inquiry in a facial challenge is limited to whether the rule: “(a) [v]iolates constitutional provisions;” “(b) [e]xceeds the statutory authority of the agency;” or “(c) [w]as adopted without compliance with applicable rulemaking procedures.” ORS 183.400(4). When, as here, the
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issue is whether the rule “[e]xceeds the statutory authority of the agency[,]” ORS 183.400(4)(b), we have explained that, “[t] o the extent that the rule departs from the statutory policy directive, it ‘[e]xceeds the statutory authority of the agency’ within the meaning of those words in ORS 183.400(4)(b),” Pulito v. Board of Nursing, 366 Or 612, 618, 468 P3d 401 (2020) (brackets in Pulito; citation omitted).
The parties’ briefs in this court focused on whether OAR 291-100-0080(3)(c) is consistent with the governing statutes considered by the Court of Appeals. In the weeks preceding oral argument, however, the parties alerted this court that the legislature had recently amended one of the governing statutes, ORS 137.370, to specifically address the computation of credit for time served in cases of consecutive sentences imposed after March 5, 2026. See Or Laws 2026, ch 14, § 11 (amending ORS 137.370); id. §§ 12, 20 (effective date).1 And they submitted brief additional memoranda to address the rule in light of the amended statute. Petitioner reiterates his arguments that the rule exceeded DOC’s authority when assessed under the former statute and argues that the amended statute makes the inconsistency more apparent. DOC offers a new argument about the rule itself. According to DOC, OAR 291-100-0080(3)(c) was consistent with the former statute and remains consistent with the amended statute because “the rule recognizes that duplicate credit can apply to consecutive sentences in the event that the legislature has ‘authorized [such credits] by statute.’ ”2 (Brackets and emphasis in memorandum).
Whether OAR 291-100-0080(3)(c) is valid when measured against the current version of ORS 137.370 is an open question that the Court of Appeals had no opportunity 1 The legislature also amended ORS 137.320, which petitioner relied on in briefing and which requires that DOC “compute the defendant’s sentence in accordance with the provisions of ORS 137.370.” Or Laws 2026, ch 14, § 10. The parties have not suggested that the amendments to ORS 137.320 have bearing on the validity of OAR 291-100-0080(3)(c), and we express no opinion on that open question.
2 OAR 291-100-0080(3)(c) provides that an adult in custody: “will receive time served credit for time confined in a county jail or other non-Department of Corrections facility, as authorized by statute, against only the first of multiple consecutive sentences unless different dates are indicated for the consecutive sentences.”
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to address. But the timing of the amendment raises at least two other questions that must be addressed before this court would turn to whether the rule is valid when measured against the current version of the statute: (1) whether statutory amendments that take effect while a challenge to the validity of a rule is pending have any bearing on the determination of validity; and (2), if so, whether it matters that the statutory amendments apply only prospectively. In other words, whether petitioner’s rule challenge could be finally answered by a declaration that the rule is valid as measured against the statute in effect when petitioner filed his challenge , or valid as to sentences computed prior to March 5, 2026, even if the rule would not be valid under the statute in effect at the time a judgment issues.
This court has not decided what version of a statute should be considered in deciding a facial rule challenge, although we have alluded to the question. See Nay, 360 Or at 671 (looking to “all relevant statutes as they exist currently [ ]” to resolve the validity of challenged rule, because the parties did not argue that validity of a rule should be determined by version of statute in effect when the rule was amended to its current version, and because the court did not find any change in statutes “that would affect [its] analysis of the issues here[ ]”). The Court of Appeals understandably did not address, nor could it have addressed, the significance of the 2026 statutory amendments when issuing its original decision in this case. We remand for that court to consider in the first instance whether the amendments to the governing statutes here bear on the pending rule challenge.
Because the dissent parts ways on the question of whether to remand this case, we briefly address that question . When this court encounters an issue on review that the Court of Appeals has not yet considered, we sometimes choose simply to decide the issue. See State v. Meiser, 369 Or 347, 361, 506 P3d 402 (2022) (“As a matter of judicial efficiency, this court sometimes resolves issues beyond those as to which we allowed review, rather than remanding to the Court of Appeals to resolve remaining issues[.]”). But we routinely remand pending cases to the Court of Appeals to address in the first instance legal issues that the court did
Cite as 375 Or 500 (2026) 505
not address when issuing its original decision. See, e.g., State v. Worsham, 374 Or 781, 782, 583 P3d 1042 (2026) (remanding for the Court of Appeals to address in the first instance an assignment of error that the court had not previously considered); State v. Cotter, 373 Or 381, 388, 567 P3d 1034 (2025) (vacating and remanding to Court of Appeals a decision reached without the benefit of briefing filed by recently appointed counsel); Rains v. Stayton Builders Mart, Inc., 359 Or 610, 639-40, 375 P3d 490 (2016) (vacating in part and remanding to Court of Appeals to reconsider assignments of error in light of recent analytical shift in Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016)).
Our choice between the two paths is always informed by competing concerns. As Meiser suggests, concern about judicial efficiency can influence this court to resolve a new issue without remanding to the Court of Appeals. 369 Or at 361. One competing concern is the value that development of an issue in the Court of Appeals brings to the ultimate quality of this court’s decisions. We have emphasized that “this court’s process of resolving legal issues benefits from the consideration given to those issues by the Court of Appeals in its own opinions.” State v. Link, 367 Or 625, 638, 482 P3d 28 (2021) (citation omitted). When arguments are presented in the Court of Appeals, a panel of judges reviews and evaluates those arguments and engages in the deliberative and collaborative work necessary to reach a reasoned decision. A written, reasoned decision from that panel, and a party’s ability to articulate any claimed error in the court’s decision contribute to meaningful consideration of the issues when a case ultimately reaches this court. See ORAP 9.07(11) - (14) (articulating those considerations as informing whether the Supreme Court will allow discretionary review). Yet it appears that the Court of Appeals has never previously considered whether or how a pending rule challenge under ORS 183.400(1) is affected by an intervening amendment to the governing statute. Moreover, even in arguments to this court, the parties have not addressed whether the amendments bear on the pending rule challenge ; the supplemental arguments from both assume that the current version of ORS 137.370 informs the ultimate answer to whether OAR 291-100-0080(3)(c) is valid.
506 Lewis v. Dept. of Corrections
Beyond those general considerations, the nature of the particular issue presented in this case also informs our decision to remand to allow the Court of Appeals to address the outstanding questions in the first instance. The authority to resolve challenges to an administrative rule under ORS 183.400(1) is primarily assigned to the Court of Appeals, which is the entity with jurisdiction to resolve those challenges in the first instance. See Alto v. State Fire Marshal, 319 Or 382, 395, 876 P2d 774 (1994) (concluding that circuit court lacked subject matter jurisdiction to hear plaintiffs ’ challenge to an administrative rule under the Uniform Declaratory Judgments Act, because “[t]hat challenge could have been, and should have been, brought in the Court of Appeals under ORS 183.400(1)[ ]”); AFSCME Local 2623 v. Dept. of Corrections, 315 Or 74, 79, 843 P2d 409 (1992) (explaining that, while judicial review of a rule as applied to any particular situation “is reserved to other forums[,]” ORS 183.400 assigns authority to the Court of Appeals to determine whether an administrative rule is facially invalid). The answer to the particular unanswered question here—which version of a statute governs a rule challenge under ORS 183.400(1)—is fundamental to how the Court of Appeals evaluates all rule challenges. See PacifiCorp v. Dept. of Rev., 374 Or 189, 192, 577 P3d 296 (2025) (explaining that the nature of “a ‘facial’ challenge to the validity of a rule” is that “the court considers only the rule and the statutes at issue”—unless there is a procedural challenge to the rulemaking). The Court of Appeals, as the court primarily charged with authority to determine the validity of administrative rules in challenges under ORS 183.400(1), should have the opportunity to decide in the first instance which version of “the statutes at issue” that court looks to in resolving validity challenges.
As the dissent observes, the statutory amendments may have no bearing on the pending rule challenge. But we emphasize that the answer to that fundamental question is far from clear. This court has explained that proceedings under ORS 183.400(1) “invoke the judicial power of the court to test the validity of every administrative rule under existing statutory and constitutional law[,]” Kellas, 341 Or at 477 (emphasis added), and we have held that an agency may not
Cite as 375 Or 500 (2026) 507
defend the validity of a rule by arguing that the governing statutes are consistent with some applications of the rule, Nay, 360 Or at 684. Those cases capture general principles that do not clearly answer the questions here. How those statements of general principles affect whether the 2026 statutory amendments bear on petitioner’s pending rule challenge and, if so, how are questions that we expressly leave as an open question for the Court of Appeals.
The decision of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for reconsideration in light of the statutory amendments in Oregon Laws 2026, chapter 14.
BUSHONG, J., dissenting. Petitioner challenges the validity of an administrative rule, OAR 291-100-0080(3)(c), that governs how presentence incarceration credits—commonly known as “credit for time served”—apply to adults in custody (AICs) serving consecutive sentences. According to petitioner, the rule contravenes ORS 137.320 and ORS 137.370(4), because the rule requires the Department of Corrections (DOC) to apply presentence incarceration credits only to the first of multiple consecutive sentences, while the statutes—as petitioner interprets them—require DOC to apply those credits to each sentence.1 The Court of Appeals ruled against petitioner, holding that the rule is valid and does not contravene ORS 137.320 or ORS 137.370(4). Lewis v. Dept. of Corrections, 340 Or App 363, 364-65, 569 P3d 236 (2025).
After that decision, the legislature amended ORS 137.320 and ORS 137.370(4), making the amendments applicable only to sentences imposed, computed, or recomputed on or after March 5, 2026, the effective date of that legislation . See Or Laws 2026, ch 14, §§ 10, 11 (amendments to ORS 137.320 and ORS 137.370(4)); id. §§ 12, 20 (effective date of the amendments). Today, this court vacates the Court of Appeals’ decision and remands this case for the Court of Appeals “to consider in the first instance” whether those 1 OAR 291-100-0080(3)(c) provides, in part, that an adult in custody will receive “time served credit for time confined in a county jail * * * against only the first of multiple consecutive sentences unless different dates are indicated for the consecutive sentences.”
508 Lewis v. Dept. of Corrections
statutory amendments “affect the answer to petitioner’s rule challenge.” 375 Or at 502. I disagree with that decision. Whatever effect the 2026 legislation may have on petitioner ’s rule challenge is a legal question that we can and should decide in resolving this rule challenge. See State v. Meiser, 369 Or 347, 361, 506 P3d 402 (2022) (“As a matter of judicial efficiency, this court sometimes resolves issues beyond those as to which we allowed review, rather than remanding to the Court of Appeals to resolve remaining issues[.]”). Accordingly, I respectfully dissent.
As the majority opinion notes, the parties submitted supplemental memoranda in this court to address the 2026 legislation. In those supplemental memoranda and at oral argument, both parties assumed that petitioner’s current rule challenge also requires this court to decide the rule’s validity after the 2026 legislation. Petitioner argued that the rule—both before and after the 2026 legislation—is invalid, while DOC maintained that the rule was valid before the 2026 legislation and remains valid after that legislation.2 No party asked this court to vacate the Court of Appeals decision and remand this case to that court to consider the effect of the 2026 legislation on petitioner’s rule challenge.
On remand, the Court of Appeals may need to decide whether the parties’ assumption—that petitioner’s rule challenge requires the court to now decide whether the rule contravenes the amended versions of ORS 137.320 and ORS 137.370(4) that took effect on March 5, 2026—is correct . That presents a procedural question of first impression : what effect, if any, does a statutory amendment that expressly applies prospectively have on a pending rule challenge ? That question, as relevant here, may require the Court of Appeals to address whether petitioner’s petition 2 The parties agree that the 2026 legislation does not moot petitioner’s rule challenge. I agree. The 2026 legislation applies only to sentences imposed, computed , or recomputed on or after March 5, 2026. Or Laws 2026, ch 14, §§ 12, 20. Thus, any determination that the rule was invalid before the 2026 legislation, as petitioner alleged in his petition, would affect consecutive sentences imposed before the March 5, 2026, effective date of the 2026 legislation, unless those sentences were recomputed after that date. That is the issue that the Court of Appeals decided, and determining whether that decision was correct could affect the sentence computations for AICs who were sentenced to consecutive terms of imprisonment before March 5, 2026, absent any recomputation of those sentences after that date. That is why petitioner’s rule challenge is not moot.
Cite as 375 Or 500 (2026) 509
for judicial review challenges the rule’s validity under the law that applied when he filed the petition, the law that now applies to sentences imposed, computed or recomputed after March 5, 2026, or both. This court has not previously decided that issue, but we have addressed other aspects of a rule challenge under ORS 183.400 that may be pertinent to the court’s task on remand.
As we have explained, ORS 183.400 “sets out the procedure for mounting a facial challenge to administrative rules and describes the scope of judicial review.” Wolf v. Oregon Lottery Commission, 344 Or 345, 348, 182 P3d 180 (2008). Challenges to a rule’s validity under ORS 183.400 “are colloquially called ‘facial challenges,’ although that term is not used in the statute itself.” Nay v. Dept. of Human Services, 360 Or 668, 679, 385 P3d 1001 (2016) (internal citation omitted). The procedure for mounting such a challenge begins when a person files a petition for judicial review in the Court of Appeals under ORS 183.400(1). That statute provides that “[t]he validity of any rule may be determined upon a petition by any person” filed in the Court of Appeals. ORS 183.400(1).3 As we have recognized, the legislature “intends by [ORS 183.400] to authorize any person to invoke the judicial power of the court to test the validity of every administrative rule under existing statutory and constitutional law[.]” Kellas v. Dept. of Corrections, 341 Or 471, 477, 145 P3d 139 (2006). A challenge to the validity of a rule under ORS 183.400 serves at least two purposes. First, it was intended “to advance the objective that all agency rulemaking shall remain within applicable procedural and substantive legal bounds.” Id. Second, by authorizing “any person” to invoke the court’s judicial power, ORS 183.400(1), “the legislature has consented to allow exactly this sort of [rule] challenge,” thereby waiving the state’s sovereign immunity,
3 ORS 183.400(1) provides that “[t]he validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases.” Proceedings for review of orders in contested cases “shall be instituted by filing a petition in the Court of Appeals.” ORS 183.482(1). ORAP 4.05 states that, “[i]nsofar as practicable, and except where some other procedure is provided by statute or these rules, the procedure for * * * judicial review of a rule * * * shall be the same as for appeals in civil cases.”
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Ore. Newspaper Pub.. v. Peterson, 244 Or 116, 122, 415 P2d 21 (1966).4 Before 1975, a person seeking to challenge the validity of a rule under ORS 183.400 would file a declaratory judgment action in circuit court. See ORS 183.400(1) (1971) (“The validity of any rule may be determined upon a petition for a declaratory judgment thereon filed as provided by ORS chapter 28[.]”). That procedure was part of Oregon’s Administrative Procedures Act (APA) from its inception in 1957. See Or Laws 1957, ch 717, § 6 (original enactment of ORS 183.400); Ore. Newspaper Pub., 244 Or at 119 (noting that newspapers and trade association opposing a rule restricting pharmaceutical advertising “attacked the regulation by declaratory proceedings brought under ORS 183.400” in circuit court).
In 1975, the legislature amended ORS 183.400 to require the person challenging the validity of a rule to file a petition for judicial review in the Court of Appeals instead of filing a declaratory judgment complaint in circuit court. See Or Laws 1975, ch 759, § 9 (amending ORS 183.400 to provide for filing a rule challenge petition in the Court of Appeals). As a result, after 1975, a person “invok[ing] the judicial power of the court to test the validity” of an administrative rule would do so by filing a petition for review in the Court of Appeals. Kellas, 341 Or at 477.
By filing a petition for judicial review under ORS 183.400, petitioner thus “invoked the judicial power of the court” to test the validity of OAR 291-100-0080(3)(c). That petition, when it was filed, necessarily challenged the validity of the rule under the versions of ORS 137.320 and ORS 137.370(4) that were in effect at the time, because the 2026 legislation had not been enacted. The Court of Appeals 4 ORS 183.400(3) limits judicial review to an examination of the rule under review, the statutory provisions authorizing the rule, and documents necessary to demonstrate compliance with rulemaking procedures. Under ORS 183.400(4), a court “shall declare [a] rule invalid” only if it finds that the rule “(a) [v]iolates constitutional provisions;” “(b) [e]xceeds the statutory authority of the agency;” or “(c) [w]as adopted without compliance with applicable rulemaking procedures.” As we have explained, a rule can exceed an agency’s statutory authority under ORS 183.400(4)(b) when the substance of the rule “ ‘depart[s] from a legal standard expressed or implied in the particular law being administered, or contravene [s] some other applicable statute.’ ” Nay, 360 Or at 680-81 (quoting Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565, 687 P2d 785 (1984)).
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rejected that rule challenge, and we allowed review of that decision. Lewis, 340 Or App at 364-65, rev allowed, 374 Or 616 (2025).
The majority opinion now chooses to remand the case to the Court of Appeals instead of deciding what effect, if any, the 2026 amendments to ORS 137.320 and ORS 137.370(4) has on this rule challenge. The majority opinion concludes that a remand is appropriate here, because we “routinely” remand pending cases to the Court of Appeals “to address in the first instance legal issues that the court did not address when issuing its original decision.” 375 Or at 505. The majority opinion cites “the value that development of an issue in the Court of Appeals brings to the ultimate quality of this court’s decisions[,]” id., and suggests a “written , reasoned decision” from that court will “contribute to” this court’s “meaningful consideration” of a legal issue. Id.
I agree that we can remand a case to the Court of Appeals when the law changes after that court has decided an issue, but I do not agree that we should do so as a matter of routine. I also agree that a reasoned decision from the Court of Appeals on a disputed legal issue can significantly contribute to this court’s consideration and ultimate resolution of the issue. But for many years, the Court of Appeals has not provided reasoned decisions in a significant percentage of its cases, and I do not believe that the legislature created the Court of Appeals for the purpose of assisting this court’s consideration and resolution of legal issues.
The Court of Appeals has exclusive jurisdiction of all appeals “[e]xcept where original jurisdiction is conferred on the Supreme Court by the Oregon Constitution or by statute[.]” ORS 2.516. The legislature has conferred original jurisdiction on the Supreme Court in a wide variety of circumstances. See ORS 1.430 (judicial disability and conduct ); ORS 9.536 (bar disciplinary proceedings); ORS 9.539 (bar admission and reinstatement); ORS 28.200 - 28.255 (certified questions of law); ORS 138.045(2) (certain pretrial orders in murder and aggravated murder cases); ORS 138.052 (automatic review in death sentence cases); ORS 147.537 (crime victim’s rights); ORS 147.539 (same); ORS 250.085 (ballot titles); ORS 250.131(estimates of financial 512 Lewis v. Dept. of Corrections
impact of state measures); ORS 251.235 (voters’ pamphlet explanatory statements); ORS 305.445 (tax court judgments and orders); ORS 469.403 (energy facility siting); ORS 662.120 (injunctions in labor dispute cases); ORS 758.017 (Public Utility Commission decisions of appeal of grant or denial of certificate of public inconvenience and necessity by the Energy Facility Siting Council). In addition, the Oregon Rules of Appellate Procedure recognize that the legislature may provide for direct review of statutes in this court without prior consideration by our intermediate appellate court. See ORAP 12.40 (so recognizing).
The variety and scope of issues that this court is required to decide without an initial decision by our intermediate appellate court shows that an initial decision by the Court of Appeals should not be considered a prerequisite to our consideration of an unresolved legal issue. The legislature created the Court of Appeals in 1969 primarily to address a growing appellate workload, not to give the Supreme Court the benefit of an intermediate appellate court’s “reasoned decision” before the Supreme Court considers and decides legal issues.
Before 1969, all appeals in Oregon were decided by the Supreme Court, because there was no intermediate appellate court. In 1969, the legislature created the Court of Appeals and gave it jurisdiction over some categories of cases that had been previously decided by the Supreme Court. See Or Laws 1969, ch 198, § 1 (creating Court of Appeals); ORS 2.510(2) (1969) (giving the newly created Court of Appeals exclusive jurisdiction to decide appeals in criminal cases, family law cases, and other specified types of cases). At that time, appeals in civil cases and other categories of cases that were not within the Court of Appeals’ jurisdiction continued to be resolved directly by the Supreme Court without prior consideration by the Court of Appeals. Thus, when the legislature created the Court of Appeals in 1969, it split the appellate workload between the two appellate courts, with criminal, family law, and certain other cases decided by the Court of Appeals—subject to discretionary review by the Supreme Court—and civil and other cases decided by the Supreme Court without any prior consideration by the Court of Appeals.
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In 1977, the legislature amended the statutes to create our current system, which gives the Court of Appeals exclusive jurisdiction over all appeals, except where original jurisdiction is conferred on the Supreme Court. See 1977 Or Law ch 158, § 2. But, as noted, the legislature has conferred original jurisdiction on the Supreme Court in a wide variety of cases. Thus, the legislature has essentially continued a shared workload approach by conferring original jurisdiction on the Supreme Court by statute in many types of cases, as noted above, with all other appellate cases decided initially by the Court of Appeals.
That is consistent with how intermediate appellate courts were designed to function nationwide. Oregon is one of forty-two states that has an intermediate appellate court. Aliza Milner, Written Opinions in State Intermediate Appellate Courts: Current Landscapes and the AI Horizon, 38 Geo J Legal Ethics 273, 282 (2025). Those intermediate appellate courts “share a common purpose to ease appellate workflow[.]” Id. at 280. According to a report by the Council of Chief Judges of the State Courts of Appeal, the increased appellate workflow was caused by “ ‘population growth, expanded post-conviction and appellate rights in criminal cases, increases in legislation and government regulation, expansion of appellate jurisdiction to include the review of agency decisions, and a societal trend toward resolving social and economic controversies through the legal system.’ ” Id. at 280-81 (quoting Council of Chief Judges of the State Courts of Appeal, The Role of State Intermediate Appellate Courts 2 (2012)).
Intermediate appellate courts “face dual demands of quality and efficiency.” Id. at 281. Those courts “are expected to process appeals more quickly than courts of last resort.” Id. (citation omitted). In short, intermediate appellate courts “were created to be a filter, hearing all appellate cases, terminating most, and assisting analytically for the small percentage of cases that continue to the courts of last resort.” Id.
Consistent with that role, the Court of Appeals handles and decides many more cases each year than this court.5 5 There are 13 judges on the Court of Appeals, and 7 justices on the Supreme Court. ORS 2.540 (Court of Appeals); ORS 2.010 (Supreme Court). For each year from 2019 through 2023, there were roughly 2,500 to 3,300 cases filed in the 514 Lewis v. Dept. of Corrections
The Court of Appeals has historically resolved a significant percentage of its cases by affirming trial court judgments without issuing written opinions explaining why it was affirming those judgments, a practice known as “affirming without opinion” or AWOP.6 The court’s longstanding AWOP practice meant that there was never any assurance that this court would have the benefit of a reasoned decision from the Court of Appeals before this court considers and decides a legal issue.7 Given the history, roles, and the workloads of Oregon’s two appellate courts, this court should not presume that the Court of Appeals should decide in the first instance every unresolved legal issue that may be presented in a case. In this case, we should not presume that whether and how the 2026 legislation might affect this rule challenge is an issue that the Court of Appeals should decide before we consider petitioner’s rule challenge. This court can and should
Court of Appeals (2,768 in 2023); the court issued 718 precedential and nonprecedential written opinions in 2023. Hon. Meagan A. Flynn, Oregon Judicial Department, Chief Justice’s Recommended Budget for the 2025-27 Biennium 139 (2024) (2025-27 Chief Justice’s Recommended Budget). By contrast, there were about 700 to 900 cases filed in the Supreme Court every year during the same period (712 in 2023), including about 500 to 700 petitions for review of Court of Appeals’ decisions each year (517 in 2023). Id. at 130. The Supreme Court allowed review in about 6 to 8 percent of the petitions filed (40 in 2023) and issued about 50 to 70 written opinions each year during that five-year period (40 in 2023). Id.
6 The Court of Appeals’ AWOP practice accounted for 60 percent of the court’s decisions as recently as 2019. 2025-27 Chief Justice’s Recommended Budget at 133. The court has taken steps recently to reduce its AWOP rate. The court affirmed 473 cases without opinion in 2023, an AWOP rate of 39.7 percent. Id. at 136 For the first 8 months of 2024, the court’s AWOP rate was “at its lowest in the court’s modern history: 27 percent in 2024, through August 31.” Id. at 133.
7 The AWOP practice has been criticized because it “runs counter to wellestablished principles of procedural fairness and has the potential to undermine confidence in the court’s decision-making” process. 2025-27 Chief Justice’s Recommended Budget at 133. As one commentator explained, “the primary source of judicial legitimacy lies in reasoned appeals to appropriate legal authority .” Chad M. Oldfather, Writing, Cognition, and the Nature of the Judicial Function, 96 Geo L J 1283, 1333-34 (2008) (citation omitted). As a result, “we expect courts to tell us why a given result is correct and to do so with reference to appropriate legal materials.” Id. at 1334; see also Smith v. UHS of Lakeside, Inc., 439 SW3d 303, 313 (Tenn 2014) (“Providing reasons for a decision reinforces the legitimacy of the legal process which, in turn, promotes respect for the judicial system.” (Citation omitted.)); Bright v. Westmoreland County, 380 F3d 729, 732 (3d Cir 2004) (reasoning that judicial opinions “are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic”).
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decide on review whether the Court of Appeals decided petitioner ’s rule challenge correctly, and how the 2026 amendments to ORS 137.320 and ORS 137.370(4) might affect that decision, if at all.
Accordingly, I respectfully dissent from the decision to vacate the decision of the Court of Appeals and remand this case to the Court of Appeals.