I’ve blogged before about the very useful Oregon Council on Court Procedures website. For those who remember plowing through the print versions of these documents … this website is a miracle!
And if you want to know some history about the OCCP, this website a good place to begin. (As for why the ORCP is buried in the ORS, between Chapters 11 and 12, you’ll need to wait for another OLR blog post. I asked Legislative Counsel this question not long ago but have yet to write up the answer.)
Legislative vs. Administrative Histories:
1) It is not unusual for a legal researcher to ask for a “legislative” history of a statute, when in fact there was no legislature involved in the statute’s, or rule’s, enactment or promulgation.
For example, regulations (aka administrative rules), e.g. CFR or OAR, are not legislative enactments; they are administrative promulgations and the procedures followed for giving them life is an Administrative Procedures Act (or the Oregon APA (ORS 183.xxx). (See also Model APA, from the NCCUSL (under the name “Model State Administrative Procedure Act”).)
2) But there are hybrid rules, where the “rule” is proposed by an administrative process, but it must be given approval by the legislature. (Do not confuse this with the legislative authority required, aka delegated authority, for creating the regulation or rule.)
3) The Oregon Rules of Civil Procedure (ORCP) are examples of this hybrid process. When a researcher asks for the “legislative” history of an administrative rule, the answer is usually “do you really mean legislative or do you want the administrative history?” Sometimes, one really does want the “legislative” history of a rule, not just its administrative history.
4) So, what Legislative procedure does take place when approval of a proposed Rule of Civil Procedure (ORCP) is requested. That is, when OCCP submits proposed Rules to the Legislature for approval (pursuant to 1.735 and 1.740), does the Legislature schedule hearings? And, if the Legislature schedules hearings, where are those recorded, if at all? Or do they vote yes or no, without any discussion? Or does something else occur?
5) For example, back in 1979, when the ORCP were first submitted to the Legislature, what happened? We have commentary on the rules, but there is no sign of any “legislative history,” assuming Legislators even discussed the proposed Rules rather than just voting up or down. Legislative history research usually requires looking at a bill file, but with the Rules, there isn’t a bill, is there?
When I posed this question to the OCCP, Mark Peterson and Shari Nilsson quickly responded:
“The Council submits the promulgated rules or amendments to the leadership of the legislature (senate president, speaker, and chair and ranking minority member of the house and senate judiciary committees) at the beginning of the session. The legislature can schedule hearings on any promulgation or not. Unless the legislature affirmatively votes to amend any promulgation, or to reject it, the Council’s promulgations become effective the following January 1. Of all of the statutes in the 16 volumes of ORS, the ORCP are the only “laws” that become effective without an affirmative vote of both the house and senate and the signature of the governor (or an override of his or her veto).”
Now we all feel smarter! Thank you Mark and Shari!