State ex rel. Bushman v. Vandenberg

• Decision Date: 16 February 1955
• Citation: 280 P.2d 344,203 Or. 326
• Parties: STATE of Oregon ex rel. Andrew Joseph BUSHMAN, Petitioner, v. Honorable David R. VANDENBERG, Circuit Judge, Respondent.
• Court: Oregon Supreme Court

Page 344

280 P.2d 344

203 Or. 326

STATE of Oregon ex rel. Andrew Joseph BUSHMAN, Petitioner, v. Honorable David R. VANDENBERG, Circuit Judge, Respondent.

Supreme Court of Oregon, En Banc.

Argued and Submitted Feb. 2, 1955.

Decided Feb. 16, 1955.

George H. Proctor, Klamath Falls, argued the cause and filed a brief for petitioner.

Wolf D. von Otterstedt, Asst. Atty. Gen., argued the cause as amicus curiae for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and PERRY, JJ.

LUSK, Justice.

This is an original proceeding in mandamus. The alternative writ discloses that the relator was indicted in Klamath County for the crime of contributing to the delinquency of a minor, and that on October 4, 1954, while the criminal action was pending on a motion to set aside the indictment before the defendant, the Honorable David R. Vandenberg, circuit judge of the thirteenth judicial district (Klamath County), the district attorney, acting pursuant to the provisions of ORS 14.220 and 14.230, filed an application in writing requesting a change of judge, and that Judge Vandenberg refused to hear the motion to set aside the indictment or to proceed further in the case solely because of the filing of such application for change of judge. Claiming that the provisions of the statute cited are unconstitutional, the relator seeks a mandate of this court commanding Judge Vandenberg to hear the motion and to proceed with the determination of the criminal action. Judge Vandenberg filed an answer which in effect admitted the allegations of the alternative writ and alleged that under ORS 14.220 and 14.230 he was bound to grant the application for change of judge and step aside.

The case was submitted to the court on the foregoing pleadings.

Judge Vandenberg has not filed a brief nor requested the privilege of making an oral argument, either in person or by attorney. The attorney general asked and was granted permission to file a brief amicus curiae, and the court invited him to argue the case orally, lest the decision of an important constitutional question go by default. The court wishes to acknowledge its indebtedness to the attorney general for the assistance it has received from the scholarly brief filed by him and the able oral argument of his assistant, Mr. von Otterstedt.

The statute the constitutionality of which is drawn in question grants the right to a party to a judicial proceeding in the Circuit Court or his attorney to disqualify the judge of the court from exercising his judicial functions in the particular case by merely filing an application for a change of judge. So far as now material, the statute reads:

14.220. '(1) No judge of a circuit court, including such judge when sitting in a department of probate or of domestic relations or a judge hearing or trying probate or domestic relations matters or proceedings in counties in which such matters or proceedings are heard or tried by the circuit court or a judge thereof, shall sit to hear or try any suit, action, matter or proceeding when an application in writing requesting a change of judge shall have been filed as provided in ORS 14.230 or 14.240.

'(2) In such case the presiding judge shall transfer forthwith the cause, matter or proceeding to another department of the same court, or call in a judge from another department of the same court. If the order is not entered within five days after filing of the application, or if there is only one judge in the court in which the cause, matter or proceeding is pending, the county clerk shall without order and as a matter of course notify forthwith the Chief Justice of the Supreme Court and he shall send a judge to try it; or, if the convenience of witnesses or the ends of justice will not be interfered with and the action or suit is of such a character that a change of venue may be ordered, the Chief Justice may send the case for trial to the most convenient court; provided, that the issues in the cause may, upon the written stipulation of the attorneys in the cause agreeing thereto, be made up in the district of the judge to whom the cause has been assigned.'

14.230. 'Any party to or any attorney appearing in any cause, matter or proceeding in a circuit court, including matters or proceedings in a department of probate or of domestic relations in those counties where probate or domestic relations matters or proceedings are heard or tried by the circuit court or a judge thereof, may file an application in writing requesting the change of judge at any time prior to final determination of such cause, matter or proceeding in uncontested cases, and in contested cases within 10 days after answer or objection has been filed or within 10 days after the assignment, appointment and qualification or election and assumption of office of another judge to preside over such cause, matter or proceeding * * *.'

The statute was passed in 1947, Oregon Laws 1947, chs. 145, 162. It amended previous provisions known as 'the affidavit of prejudice' statute under which a judge was prohibited from hearing a case when it was established that he was prejudiced against a party or an attorney. Such prejudice, the former statute provided, could be established by 'motion supported by affidavit that the judge before whom the cause, matter or proceeding is pending is prejudiced against such party or attorney, so that such party or attorney can not or believes that he can not have a fair and impartial trial or hearing before such judge, and that it is made in good faith and not for the purpose of delay'. O.C.L.A. §§ 1-501, 1-502, as amended by Oregon Laws 1945, ch. 266.

The superseded statute was sustained against the claim that it constituted an unwarranted abridgment of judicial power in U'Ren v. Bagley, 118 Or. 77, 245 P. 1074, 46 A.L.R. 1173. See, also, State Capitol Commission v McMahan, 160 Or. 83, 86, 83 P.2d 482. It is contended that these decisions control this case. For reasons to be presently stated we do not agree.

The case involves a consideration of the relation of the legislature to the judiciary. The question is whether, under our system of government, with its principle of the separation of powers, the legislature has by the enactment in question imposed unwarranted restraints on the courts in the exercise of their judicial functions. Unlike the federal constitution, the constitutions of most, if not all of the states contain express provisions respecting the three co-ordinate and independent department of government. They spell out what is implicit in the organic law of the nation. In the Oregon constitution those provisions are found in Art. III, § 1, which reads:

'The powers of the Government shall be divided into three seperate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.'

As stated in 11 Am.Jur. 880, Constitutional Law, § 182, 'Although there may be a blending of powers in certain respects, in a broad sense the safety of our institutions depends in no small degree on the strict observance of the independence of the several departments.' And, with respect particularly to the judiciary, it was said by this court, speaking through Mr. Justice Wolverton in Thomas v. Portland, 40 Or. 50, 52, 66 P. 439, 440, 'By reason of the distribution of powers under the constitution, assigning to the legislature and the judiciary each its separate and distinct functions, one department is not permitted to trench upon the functions and powers of the other.' See, also, Macartney v. Shipherd, 60 Or. 133, 142, 143, 117 P. 814, Ann.Cas.1913D, 1257. Not only does Art. III, § 1 of the constitution prohibit the legislature from exercising the functions and powers of the judiciary, but under the principle of the separation of powers the legislature is likewise prohibited from 'unduly burdening or interfering with the judicial department in its exercise thereof.' Rottschaefer on Constitutional Law, p. 52. Thus, in State ex rel. Kostas v. Johnson, 224 Ind. 540, 69 N.E.2d 592, 595, 168 A.L.R. 1118, the court held that a statute limiting the time within which a judge could decide a case violated the section of the Indiana constitution providing for the distribution of the powers of government and which furnished the model for Art. III, § 1 of our constitution. The court there said:

"Courts are an integral part of the government, and entirely independent, deriving their powers directly from the Constitution, in so far as such powers are not inherent in the very nature of the judiciary. A court of general jurisdiction, whether named in the Constitution or established in pursuance of the provisions of the Constitution, cannot be directed, controlled, or impeded in its functions by any of the other departments of the government. The security of human rights and the safety of free institutions require the absolute integrity and freedom of action of courts."

In the course of an excellent discussion of the general subject in Rottschaefer, op. cit., p. 55, it is said:

'* * * The ultimate source of the judicial power possessed by any court established to exercise the functions conferred upon the judicial department established by the constitution is that grant of power. This is true whether that court be established by the constitution or by the legislature, and whether its jurisdiction be defined by the constitution or by the legislature. The judicial power thus conferred is generally held to include not merely that of deciding cases but also incidental powers necessary to the effective performance of that primary function.'

In U'Ren v. Bagley the court cited decisions from nine other states sustaining the constitutionality of statutes similar to that...