Lowe v. City of Eugene

• Decision Date: 19 December 1969
• Citation: 459 P.2d 222,254 Or. 518
• Parties: Raymond N. LOWE, Corrinne R. Hill, W. A. Brooksby, Abe Brooks, G. Douglas Straton, Alfred Bloom, James Witzig, Claire L. Newport, Dirk P. Ten Brinke and E. Jean Ware, Respondents, v. CITY OF EUGENE, of Lane County, Oregon, a municipal corporation; Edwin E. Cone in his official capacity as Mayor of Eugene; Lester E. Anderson, John O. Chatt, R. G. Crakes, Ray Hawk, Bruce A. Lassen, Catherine Lauris, R. E. McNutt, Glen L. Purdy, each in his official capacity as a member of the Common Council of Eugene; David D. Campbell dba C & S Electric; Allen E. Hamilton, Allen E. Hamilton, Jr., Lillian T. Hamilton; J. F. Oldham & Son, Inc., Defendants, Eugene Sand & Gravel, Inc., Appellant.
• Court: Oregon Supreme Court

Page 222

459 P.2d 222

254 Or. 518

Raymond N. LOWE, Corrinne R. Hill, W. A. Brooksby, Abe

Brooks, G. Douglas Straton, Alfred Bloom, James

Witzig, Claire L. Newport, Dirk P. Ten

Brinke and E. Jean Ware, Respondents, v. CITY OF EUGENE, of Lane County, Oregon, a municipal

corporation; Edwin E. Cone in his official capacity as Mayor

of Eugene; Lester E. Anderson, John O. Chatt, R. G. Crakes,

Ray Hawk, Bruce A. Lassen, Catherine Lauris, R. E. McNutt,

Glen L. Purdy, each in his official capacity as a member of

the Common Council of Eugene; David D. Campbell dba C & S

Electric; Allen E. Hamilton, Allen E. Hamilton, Jr., Lillian

T. Hamilton; J. F. Oldham & Son, Inc., Defendants,

Eugene Sand & Gravel, Inc., Appellant.

Supreme Court of Oregon, In Banc.

Argued on Rehearing June 2, 1969.

Oct. 1, 1969.

Rehearing Denied Dec. 19, 1969.

John E. Jaqua and William G. Wheatley, Eugene, argued the cause for appellant on rehearing. On the brief opposing rehearing was William G. Wheatley, Eugene.

Barbara B. Aldave, Eugene, and Leo Pfeffer, New York City, argued the cause for respondents on rehearing. With them on the petition for rehearing and brief was James B. Harrang, Eugene.

Warren Cameron, Seattle, Wash., and Richard D. Curtis and Hansen, Curtis & Strickland, Eugene, filed a brief for Leslie D. Erb et al., citizens of the City of Eugene, as amici curiae.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

GOODWIN, Justice.

The trial court, in a suit for declaratory relief, ordered the City of Eugene and the other named defendants to remove from a public hilltop park a neon-lighted concrete cross some 50 feet tall which, when lit, was visible for several miles over a major part of the city of Eugene. On appeal, this court reversed the trial court's decree. The matter is before us again, on a petition for rehearing.

In a brief and upon oral argument, counsel challenged the propriety both of the granting of the rehearing and of the submission of the cause to a court that contained a justice who had not participated in the original decision.

On January 6, 1969, the original appeal was argued before a court consisting of Chief Justice Perry and Justices McAllister, Sloan, O'Connell, Goodwin, Denecke, and Langtry. In the absence of Justice Holman, a regular member of the court, Justice Langtry was sitting as a Justice pro tempore duly assigned to this court pursuant to ORS 2.052.

The court handed down its original opinion on February 26, 1969, reversing the trial court. Justices Perry, Sloan, Denecke, and Langtry voted for reversal. Justices McAllister, O'Connell, and Goodwin dissented. Lowe v. City of Eugene, 87 Or.Adv.Sh. 1059, 451 P.2d 117 (1969).

The plaintiffs filed a petition for rehearing. On April 22, 1969, the court in its regular weekly conference considered the petition. Four of the regular justices who had participated in the original decision favored granting the petition. The other two regular justices and Justice Langtry opposed granting the petition. Since four of the regular justices who had participated in the original decision voted for a rehearing, it was unnecessary to decide whether Justice Holman or Justice Langtry or neither of them or both of them should vote on the petition. The petition was granted.

The rehearing was set for June 2, 1969. On that date the cause was argued before the seven regular justices of the Supreme Court, none then being absent or disqualified. The court was thus convened according to the practice followed when a case is reargued in banc and no regular justice is disqualified. Justice Langtry had been appointed to serve for ninety days beginning the first judicial day in January, and his term had expired before June 2, 1969. The submission of the cause on rehearing to the seven regular justices, including Justice Holman, was correct.

The question whether a justice who did not participate in an original decision is barred from subsequent consideration of that case is potentially troublesome in any jurisdiction which allows rehearings. There are numerous reasons other than that of disqualification for a particular justice to be absent from a particular argument. Moreover, if the reason for the original absence was temporary, it is likely that the absent justice will be available for duty when the case is argued on rehearing.

Two lines of precedent in the United States deal with this situation.

In some jurisdictions a regularly elected justice who, for any reason, does not participate in an original decision does not participate in any subsequent considerations of that case. The reasons for the rule are set out in Gas Products Co. v. Rankin, 63 Mont. 372, 207 P. 993, 24 A.L.R. 294 (1922); Flaska v. State, 51 N.M. 13, 177 P.2d 174 (1946); Cordner v. Cordner, 91 Utah 474, 64 P.2d 828 (1937); Rohlfing v. Moses Akiona, Ltd., 45 Hawaii 440, 369 P.2d 114 (1963); but cf. Yoshizaki v. Hilo Hospital, 50 Hawaii 40, 429 P.2d 829 (1967).

In California, the court as it is constituted on the day a case is argued on rehearing is the Supreme Court for the purpose of the vote on the questions argued. A regularly elected justice who is present for duty and not disqualified hears argument and participates in the vote....