In the November election of 1910, the voters adopted a constitutional amendment that was "a complete revision of article VII, the judiciary article of the state Constitution."1 The amendment had been put forward by the People's Power League, a progressive organization dominated by its influential secretary, William S. U'Ren.2 The object of the People's Power League, as the League itself described it, was "to perfect the direct power of the voters of Oregon over their State and local government in all its branches and officers."3
U'Ren, the charismatic leader of the People's Power League, was extraordinarily powerful in state politics at the time. A 1906 editorial went so far as to assert that: "In Oregon the state government is divided into four departments -- the executive, judicial, legislative and Mr. U'Ren."4
While U'Ren was a motivating force behind the proposed amendment of Article VII, "the original draft of that amendment was wholly the work of" a Supreme Court justice -- Thomas Allan McBride.5 McBride had been appointed as a justice of the Oregon Supreme Court on May 1, 1909, after 17 years as a circuit court judge.6 He would serve continuously on the court until his death in 1930.7
The voters pamphlet suggests that there was little interest in the amendment to Article VII: the pamphlet contained one argument for the amendment (filed by the People's Power League itself) and no arguments against.8 U'Ren, however, would later assert that the amendment "raised...a hullabaloo in the [legal] profession at that time."9
The purpose of the proposed amendment to Article VII, according to the People's Power League, was "to allow three-fourths of a jury to render a verdict in civil cases, and to generally simplify court procedure, especially appeals to the Supreme Court."10Some of the changes made by Article VII (Amended) were as follows.
Section 1 of Article VII (Amended) relaxed the constitutional restrictions on the sorts of courts that could exist in the State. While the original Article VII had vested the judicial power in the Supreme Court, circuit courts, and county courts (plus justices of the peace and municipal courts), Article VII (Amended) vests the judicial power "in one supreme court and in such other courts as may from time to time be created by law."11
Section 2 of Article VII (Amended) gave the Supreme Court discretion to hear original proceedings in mandamus, habeas corpus, and quo warranto.
Section 3 of Article VII (Amended) addressed judicial review. Facts decided by a jury cannot be re-examined "unless the court can affirmatively say there is no evidence to support the verdict." If there were any errors at trial, the Supreme Court nevertheless is required to affirm the judgment, if the Court concludes that the trial court's judgment "was such as should have been rendered in the case." If the trial court entered an erroneous judgment and the Supreme Court can determine what the correct judgment should have been, then the Supreme Court is authorized to enter the correct judgment "in the same manner and with like effect as decrees are now entered in equity cases on appeal to the supreme court."
Finally, section 5 of Article VII (Amended) authorized jury verdicts in civil cases to be rendered by a three-fourths majority, instead of being unanimous.
Interestingly, the amendments to Article VII left in place much of the original Article VII. Section 2 of Article VII (Amended) provided: "The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law." The effect was to leave effective the unrepealed provisions of original Article VII, but only as statutes, and thus subject to later change by the Legislature.12
In 2007, the Supreme Court considered an argument that Article VII (Amended), in its entirety, had not been adopted in the manner prescribed by the Oregon Constitution.13 The Court concluded that it did not need to decide that question. Article VII (Amended) itself had been amended 10 times in the 97 years since it had been originally adopted.14 Those later amendments, the Court concluded, implicitly validated Article VII (Amended) and cured any irregularities in the 1910 adoption.15
Footnotes:
FN1. Hall S. Lusk, Forty-Five Years of Article VII, Section 3, Constitution of Oregon, 35 Or L Rev 1, 1 (1955).
FN2. Official Voters Pamphlet, General Election, November 8, 1910, at 166-77 (1910); James D. Barnett, The Operation of the Initiative, Referendum, and Recall in Oregon 17 (1915). See David Schuman, The Origin of State Constitutional Direct Democracy: William Simon U'Ren and "The Oregon System," 67 Temple L Rev 947, 951 (1994) (noting political power of U'Ren).
FN3. Official Voters Pamphlet, General Election, November 8, 1910, at 168 (1910).
FN4. The Portland Oregonian, July 17, 1906, at 8, quoted in Schuman, 67 Temple L Rev at 951 (1994).
FN5. Remarks by W.S. U'Ren, In Memoriam: Justice Thomas Allan McBride, 133 Or xxi, xxiii-xxiv (1930).
FN6. Officers of the Supreme Court, 53 Or (ii) (1908-09).
FN7. Resolutions of the Multnomah County Bar Association, In Memoriam: Justice Thomas Allan 7 McBride, 133 Or xix,xix (1930).
FN8. Official Voters Pamphlet, General Election, November 8, 1910, at 200-02 (1910); see Lusk, 35 Or L Rev at 1 (noting absence of arguments against amendment).
FN9. Remarks by W. S. U'Ren, In Memoriam: Justice Thomas Allan McBride, 133 Or xxi, xxiii-xxiv (1930).
FN10. Official Voters Pamphlet, General Election, November 8, 1910, at 166-67 (1910).
FN11. Or Const, Art VII (Original), § 1; Or Const, Art VII (Amended), § 1
FN12. See Yeaton v. Barnhart, 78 Or 249, 257, 150 P 742, 152 P 1192 (1915) ("Section 1 of Article VII of the fundamental law was amended November 8, 1910 (see Laws 1911, p. 7), but does not alter the clauses quoted until future legislation is had upon the subject, and, no statute for the entire state having been enacted in any of these particulars, these original provisions of the Constitution remain intact.").
FN13. Carey v. Lincoln Loan Co., 342 Or 530, 157 P3d 775 (2007).
FN14. Id. at 541.
FN15. Id. at 541-42.
