Constitutional Test of House Bill 3017, Oregon Laws, 1977, Matter of

• Decision Date: 08 February 1978
• Citation: 281 Or. 293,574 P.2d 1103
• Parties: In the Matter of the CONSTITUTIONAL TEST OF HOUSE BILL 3017, OREGON LAWS, 1977. OREGON MEDICAL ASSOCIATION, Petitioner, v. Lester RAWLS, Insurance Commissioner, Respondent.
• Court: Oregon Supreme Court

Page 1103

574 P.2d 1103

281 Or. 293

In the Matter of the CONSTITUTIONAL TEST OF HOUSE BILL 3017 OREGON LAWS, 1977 OREGON MEDICAL ASSOCIATION, Petitioner, v. Lester RAWLS, Insurance Commissioner, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted in Eugene Nov. 4, 1977.

Decided Feb. 8, 1978.

Charles D. Ruttan, Portland, argued the cause for petitioner. With him on the brief were Thomas E. Cooney and Morrison, Dunn, Cohen, Miller & Carney, Portland.

Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen.

J. Michael Alexander, Salem, argued the cause for Oregon Trial Lawyers Ass'n as amicus curiae. With him on the brief was Charles D. Burt of Brown, Burt & Swanson, Salem.

Before DENECKE, C. J., and HOLMAN, BRYSON, LENT and LINDE, JJ.

LINDE, Justice.

ORS chapter 752, enacted in 1975 and amended in 1977, provides a plan under which participating physicians may secure themselves against personal liability for professional negligence. If a physician maintains professional liability insurance for specified amounts and contributes to an excess liability fund established under the statute, any claim for damages that may arise from his professional negligence can be collected only from his insurance coverage and thereafter from the fund.

The 1975 version of the statute was brought before this court in Oregon Medical Association v. Rawls, 276 Or. 1101, 557 P.2d 664 (1976). That litigation (OMA I ) was a declaratory judgment proceeding for a decree declaring ORS chapter 752 to be constitutional. This court agreed with the conclusion of the circuit court that no justiciable controversy existed between the Oregon Medical Association and the defendant, as state insurance commissioner, ¹ since both parties asserted that the statute is constitutional. Id. at 1105, 557 P.2d 664.

In the course of amending ORS chapter 752 in 1977, the legislative assembly enacted the following provision for a "judicial examination and judgment" of the chapter's constitutionality by this court:

The Insurance Commissioner, the Oregon Medical Association, or any other interested party may, by petition to the Supreme Court, commence proceedings for a judicial examination and judgment of the Supreme Court as to the constitutionality and legality of ORS 752.010 to 752.180 and any act or proceeding thereunder. The procedure shall follow the procedure of courts of equity. Jurisdiction shall be acquired pursuant to ORS 28.020 and a justiciable controversy ripe for determination shall be deemed to exist in the event a complaint is filed. The Supreme Court shall have sole and exclusive jurisdiction of proceedings initiated under this section and shall use as evidence the legislative history of the 58th and 59th sessions of the Oregon Legislative Assembly.

ORS 752.190. Pursuant to this section, the same parties as in OMA I are again before us in this original proceeding, as much in agreement that ORS chapter 752 is constitutional as they were before.

The question is whether such a proceeding as brought by petitioner here, to declare that a statute is constitutional when no party to the proceeding challenges its constitutionality, properly invokes the "judicial power of the state" that is our charge under the constitution. Or.Const. art. VII (am.), § 1. It is a question we must necessarily raise on our own motion, as did the United States Supreme Court in the most famous of all cases on judicial review of statutes when Congress appeared to have thrust upon the Court a jurisdiction beyond the federal constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). For the reasons that follow, we hold that the present proceeding is not within the judicial power.

ORS 752.190, quoted above, contains directives on six separate elements of a proceeding under this statute. It places "sole and exclusive" jurisdiction in this court. It confers standing to initiate the proceeding on one named private association, one named state agency, or "any other interested party." It specifies the procedure to be followed and the issues that may be decided. It specifies the "evidence" to be used in deciding them. Finally, it undertakes to prescribe that "a justiciable controversy ripe for determination shall be deemed to exist." The parties defend the grant of exclusive jurisdiction to this court under section 2 of article VII (amended). ² We do not reject jurisdiction in this case, cf. Martin v. Oregon Building Auth., 276 Or. 135, 554 P.2d 126 (1976), nor need we question the grant of standing to these parties along with others interested in the plan at issue ³ or the use of declaratory judgment procedure. Legislative prescription of the specific "evidence" in an adjudication would raise obvious difficulties if it were meant to be exclusive, but we do not reach these difficulties here. ORS 752.190 fails insofar as it directs the court to "deem" the present proceeding to be a "justiciable controversy."

It is not apparent between whom the controversy is supposed to exist. So far as we are told, there is none between the Oregon Medical Association and the insurance commissioner, despite the insertion of the "versus" between their names on the pleadings. ⁴ The draftsman's confidence that any "petition" or "complaint" filed under ORS 752.190 would ipso facto identify a controversy, let alone a justiciable one, exceeds the limits of legislative clairvoyance.

The need for a party raising a constitutional challenge against the malpractice insurance statute is not a technicality. It is essential to responsible adjudication. As a rule it may be assumed that what the legislature has enacted into law is indeed the law of the state. A serious charge that the lawmaker has acted contrary to the state or federal constitution is the exception, and its success is even more exceptional. Such a charge must rest on the demonstrated disregard of a specified constitutional provision. Occasionally a law may be invalid from its inception because it was enacted improperly, see Note, Constitutional Provisions Regulating the Mechanics of Statutory Enactment in Oregon Effect of Enrollment, 27 Or.L.Rev. 46 (1947), and cases there cited, or in contravention of some limitation on the legislature in the scheme of government, see, e. g., Martin v. Oregon Building Auth., supra. Sometimes the claim is that a state law encroaches on federal responsibilities for interstate commerce, see, e. g., American Can Co. v OLCC, 15 Or.App. 618, 517 P.2d 691 (1973), review denied (Or.1974), or foreign relations, see, e. g., Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968). More often the constitutional challenge will invoke a guarantee designed to protect individual rights. Of course, it is the legislature's and the governor's obligation to consider and to respect constitutional constraints in enacting a measure and not to leave constitutionality to adjudication. But the range of potential challenges by different parties on different grounds is wide, and some claims depend on facts and developments that must be speculative at best before they occur. Given this wide and contingent range of possible claimants and claims, the notion of a judicial proceeding to have a statute declared "constitutional" in the abstract, without any concrete challenge having been raised against it, has all the defects inherent in any undertaking to prove a negative. In effect, it places upon the petitioner the burden to demonstrate, and on the court to satisfy itself, that no claimant under any circumstances could successfully assert any constitutional objection to the law. It is the reverse of Martin v. Oregon Building Authority, supra, in which the plaintiff asserted a specified constitutional attack upon the statute. It casts petitioner here in the quixotic role of a defender of the law's virtue against no attack. Such a reversal of roles cannot be made a justiciable controversy by mere declaration.

Certain potential constitutional claims against confining malpractice recoveries to a physician's insurance and the excess liability fund were, of course, anticipated in the legislative discussion and by the present parties in their earlier litigation, which no doubt explains the adoption of ORS 752.190 in 1977. For a view of what these claims might be, we invited the Oregon Trial Lawyers Association to file a brief as amicus curiae in this case. We are grateful to counsel who on behalf of the association responded to this invitation. The amicus brief presents the contentions that the limitation of malpractice recoveries to the stated sources may, if those funds are exhausted, deny a malpractice claimant the "remedy by due course of law for injury done him in his person" guaranteed by article I, section 10, of the constitution, or grant to some citizens "privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens," Or.Const. art. I, § 20, or deny to some persons the equal protection of the laws guaranteed by the federal fourteenth amendment. However, the primary position of amicus curiae is that the present proceeding is not within our judicial power.

The potential contentions mentioned above are perhaps the most obvious but not necessarily the only challenges that could arise against ORS chapter 752. They focus primarily on the potential interests of future malpractice claimants, although amicus curiae also draws attention to possible claims of discrimination between classes of physicians and perhaps other professionals. The briefs do not speculate on imaginable claims by insurance companies, hospitals, employers, or other parties nor on other possible bases of attack, and we shall not do so on our own motion. For all we know someone will someday plead that ORS chapter 752 was enacted without the necessary quorum or constitutionally...