STATE, DEPT. OF HUMAN RESOURCES v. Trost

983 P.2d 549, 160 Or. App. 656, 1999 Ore. App. LEXIS 824

• Court: Court of Appeals of Oregon
• Decided: May 26, 1999
• Docket: 97DM0155; CA A100064
• Status: Published

Opinions

EDMONDS, P. J.

In this paternity proceeding, the Department of Human Resources and Support Enforcement Division of the State of Oregon (department) appeal from a judgment based on a jury verdict finding that respondent was not the father of the subject child. The department argues that the trial court erred by conducting a jury trial. We affirm.

In April 1996, the department initiated this proceeding by issuing a notice of proposed order and finding of responsibility to respondent stating that he was the father of the child. Respondent denied paternity and, pursuant to an administrative order, submitted to parentage testing for genetic markers. After the testing was completed, the department requested in March 1997 that the matter be set for trial. In April 1997, the trial court sent notices to the parties scheduling trial for August 27, 1997, with a “Twelve Person Jury.” On August 13,1997, the department filed its objection to a trial by jury, arguing that section 25 of House Bill 2324 (Oregon Laws 1997, chapter 746) had become effective on August 4, 1997, and that the effect of that bill was to take away respondent’s right to a jury trial under ORS 109.135. On August 14,1997, respondent filed a formal request for a jury trial. Trial began on August 27,1997, with the trial court ruling that respondent was entitled to a jury trial. Thereafter, the jury returned a verdict finding that respondent was not the father of the subject child.

The department appeals, arguing that the trial court erred when it ruled that respondent was entitled to a jury trial. According to the department, the legislature intended that, in order to comply with federal law,¹ as of August 4, 1997, there would be no right to a jury trial in filiation proceedings and that the 1997 amendment to ORS 109.135(1) deleting the right to a jury in that statute was intended to apply to all cases pending at the time of the amendment. Respondent contends that he was entitled to a jury trial on the issue of paternity under the 1995 version of ORS 416.430, the statute under which the administrative determination of respondent’s paternity was certified to the circuit court in April 1996 and that the amendment to ORS 109.135 does not apply to cases pending on August 27, 1997, that originate under ORS 416.430.

Before the 1997 amendment, ORS 109.135 provided, in pertinent part:

“(1) All filiation proceedings shall be commenced in the circuit court and shall for all purposes be deemed suits in equity, but either party shall have the right to trial by ' jury on the issue of paternity. Unless otherwise specifically provided by statute, the proceedings shall be conducted pursuant to the Oregon Rules of Civil Procedure.”

Also, before the 1997 amendments, ORS 109.155(1) and (2) provided that the court or “jury” should first determine paternity and, if it found paternity from the evidence, the court was to enter an appropriate judgment. In addition, ORS 416.430(4)(a) (1995) provided, in pertinent part, regarding the certification of paternity issues to the circuit court:

“The proceedings in court shall for all purposes be deemed suits in equity, but either party shall have the right to trial by jury on the issue of paternity. The provisions of ORS 109.145 to 109.230 apply to proceedings certified to the court by the administrator pursuant to this section.”

After Oregon Laws 1997, chapter 746, section 25, amended ORS 109.135(1), it now provides:

“All filiation proceedings shall be commenced in the circuit court and shall for all purposes be deemed suits in equity. Unless otherwise specifically provided by statute, the proceedings shall be conducted pursuant to the Oregon Rules of Civil Procedure.”

Chapter 746 also deleted references to a “jury” in ORS 109.155. The changes in ORS 109.135(1) and ORS 109.155 were subject to an emergency clause and became effective when the Governor signed House Bill 2324 on August 4, 1997. Or Laws 1997, ch 746, §§ 1,152.

In addition, section 31 of chapter 746 amended ORS 416.430(4)(a) to delete the reference to the right to a jury trial. The pertinent language of the amended statute provides:

“The proceedings in court shall for all purposes be deemed suits in equity. The provisions of ORS 109.145 to ORS 109.230 and section 26 of this Act apply to proceedings certified to court by the administrator pursuant to this section.”

Section 26 of chapter 746 deleted the references to a jury in ORS 109.155. Significantly, and in contrast to the amendments to ORS 109.135(1) and ORS 109.155, the changes to ORS 416.430 became operative on January 1,1998, or after the trial in this matter. Or Laws 1997, ch 746, § 1(4).

The department does not contest that this case was certified to the circuit corut by the administrator, thereby impheating the provisions of ORS 416.430(3). At the time of trial, August 27, 1997, ORS 416.430(3) authorized, the right to a jury trial in a filiation proceeding initiated by the administrator. Nonetheless, the department argues: (1) respondent requested a jury trial under ORS 109.135, and, therefore, that statute as amended on August 4, 1997, should govern the trial held on August 27; and (2) there is an ambiguity in ORS 416.430(3), as amended, that is created by the cross-reference to ORS 109.155 and that ambiguity should be resolved by examining the legislative history underlying the 1997 amendments. According to the department, the only conclusion that can be drawn from the history is that a “glitch” occurred when the bill failed to make the amendments to ORS 416.430(3) subject to the emergency clause.²

It is correct that the formal request for a jury trial by respondent filed on August 14 cited “ORS 109.135, and common law,” as authority. By that time, the court had already set the matter for a jury trial, and the department had filed its objection based on chapter 746. The department argues that because our case law³ contemplates a request for a jury trial before the right is exercised and that a waiver of a jury trial can be implied from a party’s conduct, it follows that, but for respondent’s erroneous reliance on ORS 109.135, he would have waived his right to a jury trial under ORS 416.430(3) (1995). “Waiver * * * is the intentional relinquishment of a known right. It must be manifested in some unequivocal manner.” Waterway Terminals v. P.S. Lord, 242 Or 1, 26, 406 P2d 556 (1965) (citations omitted). Although we can find no express reference in respondent’s memorandum opposing the department’s objection based on the entitlement to a jury trial under ORS 416.430(3) (1995), it is clear that respondent continued to insist on a jury trial despite the state’s position.* *⁴ As it turns out, the statute gave him that right at the time that the trial occurred. Under the circumstances, we discern no intent on his part to waive his right to a jury trial.

The department’s final argument is predicated on the position that ORS 416.430(3) as it existed at the time of the trial was ambiguous because of the cross-reference in the statute to ORS 109.155. ORS 109.155 was affected by the emergency clause. According to the department, it follows that the reference to ORS 109.155 in ORS 416.430(3) (1995) means that the legislature could also have intended ORS 416.430(3) (1995) to be subject to the emergency clause. Our task is to ascertain the legislature’s intention by examining the text and the context of the statutes including their prior enacted versions. State v. Webb, 324 Or 380, 389-90, 927 P2d 79 (1996). ORS 174.010 provides more guidance:

“In the construction of a statute, the office of the judge 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; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”

If the legislature’s intent is clear from the text and context of the statutes, our inquiry will go no further.

We fail to perceive any ambiguity in the text or context of ORS 416.430(4)(a) as it existed on August 27, 1997. ORS 416.430(4)(a) (1995) expressly provided that “either party shall have the right to trial by jury on the issue of paternity on that date.” The legislature had expressly not acted to make the change in ORS 416.430(4)(a) effective at the same time as the other changes to ORS chapter 109. It is evident that it could have made the amendment to ORS 416.430(4)(a) (1995) refer expressly to ORS 109.135(1) and subject to the emergency clause, but it expressly did not do so. Nothing in amended ORS 109.155 prohibits a jury trial. Its remaining provisions merely direct the determination of paternity and the appropriate judgment. The amendments merely removed all references to a jury trial from ORS 109.135 and ORS 109.155. To find the purported ambiguity relied on by the department, we would have to ignore the language of ORS 416.430(4)(a) (1995) and imply from the deletion of the word “jury” in ORS 109.155 that the legislature intended to negate what it expressly had provided for in the preceding sentence of ORS 416.430(4)(a) (1995). We would also have to ignore the express language of the emergency clause. Even if the omission from the emergency clause was inadvertent, that is not the kind of mistake that ORS 174.010 authorizes us to ignore when the legislature has clearly expressed itself to the contrary. See Armstrong v. Asten-Hill Co., 90 Or App 200, 203, 752 P2d 312 (1988).⁵

Moreover, ORS 416.430(4)(a) is a statute that applies only to paternity cases certified to the court by the administrator. On the other hand, ORS 109.135 and ORS 109.155 apply to all filiation proceedings, including those filed by the administrator. We are required by ORS 174.010 to give effect, if possible, to all the particulars of a statutory scheme. If we were to adopt the department’s position, we would be writing the legislature’s express language out of ORS 416.430(4)(a) (1995). It may be incongruous to think that the legislature intended for juiy trials to occur from August 4 to December 31, 1997, only in paternity cases certified by the administrator, but that is what the legislature said. To hold otherwise would be to violate the tenets of ORS 174.010.

Affirmed.

1 The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 popularly known as the 1996 Welfare Reform Act requires that “State law must state that parties in a contested paternity action are not entitled to a jury trial.” 1996 US Code Cong & Ad News, 2477, 2744.

2 Article IV, section 28, of the Oregon Constitution, provides that:

“No act shall take effect, until ninety days from the end of the session at which the same shall have been passed, except in case of emergency; which emergency shall be declared in the preamble, or in the body of the law.”

3 In State ex rel Jones v. Workman, 34 Or App 777, 780, 579 P2d 1302, rev den 284 Or 521 (1978), we construed ORS 109.135(1) to mean that “if either party requests a jury to determine the question of paternity, the party so requesting a jury has the right thereto.”

4 In the trial court, respondent argued in his memorandum opposing the department’s effort to change the trial from a jury trial to a court trial, in part:

“no legislative intent is present on the face of the legislation that would indicate a retroactive application of the legislation is appropriate. Absent such clear intention, the presumption is that the legislation should not be applied to pending cases.”

5 The dissent resorts to legislative history without a determination that there is an ambiguity. The fact that two statutes appear to conflict does not amount to an ambiguity that would allow the court to rely on legislative history. See J.R. Simplot Co. v. Dept. of Rev., 321 Or 253, 262, 897 P2d 316 (1995) (holding that the court does not examine legislative history when the “statute’s text and context are not subject to more than one plausible reading”). Further, the dissent’s analysis is inconsistent with ORS 174.010 and ORS 174.020. When a conflict between two statutes exists, ORS 174.010 requires the court to adopt a construction that will give effect to both and ORS 174.020 provides that a particular provision shall control over a general, inconsistent provision.

Between August 4, 1997, and January 1, 1998, ORS 416.430(4)(a) provided a specific and unambiguous right to a jury trial. In contrast, the reference in ORS 416.430(4)(a) making ORS 109.145 to ORS 109.230 applicable to paternity proceedings certified to the court by the administrator is a general provision that incorporates numerous procedural and substantive statutory provisions. To the extent that ORS 416.430(4)(a) (1995) is inconsistent with the legislature’s intent to have the court, rather than a jury, determine paternity under actions governed by ORS 109.155, the particular provision that gives respondent a right to a jury trial controls the outcome in this case.