Tour de Lab September 1st

Traffic Division Captain weighs in on bike lane case

Posted by on January 15th, 2010 at 2:36 pm

bike lane on vancouver-1

Despite appearances, that bike lane
continues through the intersection.
(Photo © J. Maus)

We’ve got more reaction and analysis on the infamous disappearing bike lane decision.

First, a quick review: Carmen Piekarski was right-hooked by a woman driving a car while biking through an intersection. Multnomah County Judge Pro Tem Michael Zusman ruled that the person driving was not guilty of “failure to yield to a bicyclist in a bike lane” because the paint striping of the bike lane was not present in the intersection where the collision occurred (therefore the victim was not “in the bike lane”).

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The decision has been criticized by legal experts and has left many riders concerned and confused.

“The judge just got hung up on a very literal definition of the law. It’s a poor ruling in an individual case but it doesn’t change the way we do business.”
— Lt. Bryan Parman, Portland Police Bureau

Acting Captain of the Portland Police Bureau Traffic Division, Bryan Parman, addressed the issue at the City’s Bicycle Advisory Committee meeting earlier this week. Parman said that despite the judge’s decision, the Police believe that bike lanes continue through intersections, whether they are actually painted there or not.

“We all know that lanes continue through an intersection, we just don’t lay down a bunch of criss-crossing lines because it would be confusing.”

Parman also added that if they become aware of other judges adopting a similar logic, the Portland Police Bureau would meet with them to “have a discussion about it.” In the end, Parman said, “It’s a bump in the road, it’s not what we wanted to see… The judge just got hung up on a very literal definition of the law. It’s a poor ruling in an individual case but it doesn’t change the way we do business.”

There was then some discussion about whether or not the ORS should be amended to clarify this issue in the future. Michelle Poyourow from the Bicycle Transportation Alliance said the BTA Legislative Committee is currently discussing whether or not to take this on. “The question hinges on whether this is a one-time fluke or if this is something that will spread like a virus.”

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46 Comments
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    Jonathan Maus January 15, 2010 at 2:36 pm

    New blog post: Captain of Police Traffic Division responds to disappearing bike lane case http://bit.ly/6m1LZZ

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    Jonathan Maus January 15, 2010 at 2:36 pm

    New blog post: Captain of Police Traffic Division responds to disappearing bike lane case http://bit.ly/6m1LZZ

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    K'Tesh January 15, 2010 at 2:55 pm

    My $.02 has it to plug the loophole once and for all. It would be a shame if this “judge” were to get another case with similar circumstances.

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    encpehalopath January 15, 2010 at 2:57 pm

    Ammending the ORS to clarify this seems unnecessary at this point.

    I would, however, like the legistlature to explicitly clarify that it’s OK to cross a double yellow to pass a bicycle and that the slow vehicle turnout requirement doesn’t apply to bicycles.

    These statutory construction exercises aren’t understood by most people and can’t be deciphered by trying to read the ORS yourself. It takes a visit to Swanson, Thomas & Coon to figure out how that stuff works:

    http://stc-law.com/slowmoving.html

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    Ryan January 15, 2010 at 3:04 pm

    In the Portland bicycle justice system, the cyclists are protected by two separate yet equally important entities. The police who make sensible decisions about bike lanes crossing an intersection, and bats**t crazy judges who don’t believe that they do. These are their stories….

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    Paul January 15, 2010 at 3:20 pm

    #2 – I don’t think the double yellow line rule is a fluke. A bike does not make it safer to enter an opposing travel lane deemed unsafe for passing. Sight distance is usually the issue, and that remains an issue regardless of the vehicle type in the lane.

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    Sam Goater January 15, 2010 at 3:41 pm

    RT @BikePortland: New blog post: Captain of Police Traffic Division responds to disappearing bike lane case http://bit.ly/6m1LZZ

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    Sam Goater January 15, 2010 at 3:42 pm

    disappearing bike lane case http://bit.ly/6m1LZZ shouldn't there be more paint at
    Intersections?

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    encpehalopath January 15, 2010 at 3:48 pm

    Paul @ 4

    Mr Thomas does not agree:

    http://stc-law.com/SafePassing.html

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    KWW January 15, 2010 at 3:50 pm

    It’s a shame that in taking the literal interpretation, the judge didn’t ammend the citation to: “failure to yield to a bicyclist in a LANE”.

    Did not the judge have the jurisdiction? If not, then OK, let us recognize this fact and move on, if not he deserves the scorn for being semantically correct but also an idiot.

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    Justa January 15, 2010 at 3:51 pm

    re: passing w/double yellow lines…cars usually have to overlap those lines by maybe a foot to safely pass a cyclist, if that.

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    Tacoma January 15, 2010 at 4:14 pm

    Thank you, Lt. Parman, for the refreshingly real comment about the ruling. There are fines in the NBA and NFL for “critiquing the ref” but hope you have positive karma coming your way.

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    John January 15, 2010 at 4:25 pm

    yes this is a very odd judgment, i mean no traffic lines continue through an intersection… Does this mean i can drive on the wrong side of the street in an intersection… i mean there are no lines saying i cannot.

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    SkidMark January 15, 2010 at 5:09 pm

    Someone else can hunt it down, but I know it is in the ORS that you must yield to a bicycle going straight if you are turning right at an intersection.

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    wsbob January 15, 2010 at 5:24 pm

    It’s encouraging that someone from PPD’s traffic division was able to so simply and clearly counter the conclusion that Judge Zusman arrived upon in this case.

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    cold worker January 15, 2010 at 5:51 pm

    ryan +1

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    Tbird January 15, 2010 at 5:55 pm

    “ … we just don’t lay down a bunch of criss-crossing lines because it would be confusing.”

    The above statement is case in point as to exactly how little responsiblity is expected of motorists.
    Really? Confusing?
    I think it’d actually be clarifying, y’know
    like in this instance…

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    JAT in Seattle January 15, 2010 at 6:06 pm

    Calling the Judge bats**t crazy or suggesting that he should (or even could) amend the citation doesn’t help anything. Getting “hung up on a literal interpretation of the law” is exactly a judge’s job. Judges decide the cases brought before them; the citing officer got it wrong and the driver’s lawyer did a really good job.

    Is it justice? No, but nothing is ever certain in a trial, and if the Police believe the lanes continue when the lines stop, well it looks like they’re wrong.

    Paint can’t protect you – except from rust.

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    Vance Longwell January 15, 2010 at 6:35 pm

    JAT #14 – “Paint can’t protect you – except from rust.”

    Nothing, just thought it bears repeating.

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    velo January 15, 2010 at 6:51 pm

    Judge Zusman is clearly not that bright. The cops are talking sense. Time to revise the ORS to make this blindly clear. By the judges logic traffic lanes cease to exist in an intersection. This is clearly foolish.

    Is this judge in an elected position? Can we recall him and/or fire him?

    Lets talk to so legislators and make this change happen!

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    rex January 15, 2010 at 8:09 pm

    The “judge” should be disbarred. He is a clown, pandering to personal agenda. Can’t we just be honest about this? Sheesh.

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    Lisa G January 15, 2010 at 8:11 pm

    I’ve noticed that many of the judicial positions are elected and also that most of the incumbents run unopposed. Looks like it’s wide open for change. How about three-year instead of six-year terms?

    From Open Oregon’s Media Handbook on Oregon Law and Court System:

    http://www.openoregon.com/New_Pages/media_handbook/toc.html

    “The Judiciary: The judiciary of the state court system consists of judges elected by non-partisan ballot for six-year terms. Judges of the Supreme Court, the Court of Appeals and the Tax Court are elected statewide. Circuit judges are elected within the judicial district in which they sit. When a judgeship is vacated between elections by retirement, death or resignation the vacancy is filled by gubernatorial appointment. Such positions are subject to election to full six-year terms at the next general election.”

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    are January 15, 2010 at 8:12 pm

    my take on parman’s comments to BAC
    http://taking-the-lane.blogspot.com/2010/01/footnote.html

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    are January 15, 2010 at 8:23 pm

    justa 7, depending on the width of the travel lane, a motorist would have to go completely over the center line to pass me, because i will be well into the lane.

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    are January 15, 2010 at 9:06 pm

    comment 18, pretty sure traffic judges are appointed by the city council, not elected, no fixed term.

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    wsbob January 15, 2010 at 10:12 pm

    Tbird #13, in intersections, if painted lines were required to be put down in order to clarify instructions for every type of road user passing through it, do you realize how visually complicated this would make the intersection? Or were you thinking of lines being put down only for bike lanes through intersections?

    JAT in Seattle #14, react to it as you think wise, but for myself, I’m not taking Ryan #3’s comment very seriously. The whole comment and especially the business about “…bats**t crazy judges…” is o.k. for satire, but that’s about it.

    Zusman’s smart enough; he made it through all that education and passed the bar exam. Why exactly he chose to make this ruling seems to be a bit of a mystery no one so far has much provided an answer to.

    Taking an excerpt from your comment: “…Getting “hung up on a literal interpretation of the law” is exactly a judge’s job. …”

    Is it really a judges’ job to get hung up on literal interpretation of the law at the expense of a judgment whose fair outcome may depend upon considerations other than a strictly literal interpretation of the law? I think… probably not. In making a ruling, judges have to consider a literal interpretation of the law, but they also have to consider other factors such as legislative intent of the laws pertaining to the case being judged.

    You commented that “…the driver’s lawyer did a really good job.” This was a simple traffic court. I don’t recall reading anywhere that the two parties had lawyers. In this case, Judge Zusman seems to have been the one that did a good job for Ellen Metz, driver of the car, despite the fact that Ms Piekarski had a strong witnesses testifying that Ms Metz messed up pretty good in completely failing to note Piekarski’s presence. That’s in addition to Ms. Metz own admission to this fact.

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    Ted Buehler January 15, 2010 at 11:30 pm

    If Critical Mass was alive it could go to this intersection and have a couple hundred bicyclists occupy it by riding around it in a circle for an hour or so.

    No lane markings, it’s a perfectly legal use of the space, right?

    Ted Buehler

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    kernel January 16, 2010 at 3:34 am

    A judges job is interpretation.

    We cannot legislate in detail to every last possibility.

    M. Zusman needs some common sense lessons or sumthin.

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    She January 16, 2010 at 11:59 am

    So here is my concern with Parman said:

    The PPB will continue to issue these charges and if they go to Judge Zusman, he will continue to dismiss them because they are the wrong charge.

    Perhaps after the fact a discussion between Zusman and the PPB could determine a charge that Zusman feels would have been appropriate and stuck.

    I worry for myself and my kids (that ride in SE Portland every day!) about what will happen if any of us are struck and injured or killed and the cop issues the wrong charge and it does not stick…

    The gal who hit this cyclist will probably slow down, take turns more cautiously – I am more worried about those that have a certain disdain for cyclists on their roads and will see this as a win for their attitude and perspective. Saying see, it was not her fault, it was the fault of the cyclist (even though that is NOT what this ruling says).

    I tell my family, if I am ever hit and seriously injured or killed they MUST subpeona cell phone records, now they would have to argue about whether they were using a hands free device which makes that muckier… – just a side note!

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    She January 16, 2010 at 12:36 pm

    I would also be interested to know if because of this ruling the help to the cyclist gets limited by the auto insurance company. Do we know that?

    So potentially the story could be:

    Cyclist riding along as safely as possible, gets hit by car not yeilding when turning and ends up with the medical bills and/or lack of treatment because the insurance company says the driver was not charged and therefore not at fault.

    Is that a possibility?

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    Cecil January 16, 2010 at 2:27 pm

    I have avoided commenting on all the posts related to this story, because I spend enough time arguing about the law in my job that I don’t really want to do it in my spare time, but I have reached breaking point on the ad hominem attacks on Judge Zusman’s legal abilities. Although I disagree with the import of his decision, I can see how he got to it and why – and it has nothing to do with his intellect, and everything to do with the unfortunate state of the law in Oregon on the construction and interpretation of statutes.

    There is a reason that Judge Zusman got “hung up on the letter of the law” even though it led to a conclusion that we all think is wrong, and that reason is because the Oregon Supreme Court has held that, when interpreting a statute, the lower courts must adhere to the text of the statute if that text is not ambiguous, regardless of whether the result is ridiculous. The court made it very clear that it is the role of the legislature to clean up the laws, not the courts.

    I do not know how the parties stated their arguments either at the hearing or in trial memoranda, but based on Judge Zusman’s comments, he apparently concluded that the text of the statute was not open to more than one interpretation (and, therefore, was not ambiguous) and, accordingly, applied it as written, even though that application appears ridiculous. For further information on how it all works, check out the following cases:

    PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (establishing the analytical framework);

    Deluxe Cabinet Works v. Messmer, 140 Or App 548 (1996) (applying the PGE v. BOLI framework to interpret the plain language of the statute in a manner contrary to stated legislative intent)

    Young v. State of Oregon, 161 Or App 32 (1999) (Judge Haselton’s concurrence cries out against the constraints of PGE v. BOLI).

    State v. Gaines, 346 Or 160 (2009) (court does not have to find statute ambiguous before it can look at legislative history, but leg. history still will not win out over unambiguous text)

    Rant over.

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    are January 16, 2010 at 3:01 pm

    re comment 26. the dismissal certainly will not help in negotiating a recovery against the motorist’s insurer, though it does not really conclude the issue of fault. i am somewhat disappointed the motorist has not stepped forward to offer some money here. all that having been said, i will quibble with your saying the cyclist was riding “as safely as possible.” it is never safe to ride inside the right hook, stripe or no stripe. the safe thing to do, 814.420 notwithstanding, is to ride in the travel lane, with the traffic.

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    kernel January 16, 2010 at 4:34 pm

    Thank you Cecil.

    Maybe i have misunderstood M Zusman and his ruling. His silence hasn’t helped his cause.

    “The Oregon Supreme Court has held that, when interpreting a statute, the lower courts must adhere to the text of the statute . . . regardless of whether the result is ridiculous. ”

    I pity modern judges having to work with such confines. Diebold should market automated Judges, their voting machines are a bit hit.

    Portland could save millions a year with such a set up.

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    kernel January 17, 2010 at 1:49 am

    that should read ” their voting machines are a big hit.”

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    wsbob January 17, 2010 at 2:45 am

    Cecil, thanks also from me for taking some of your off-work time to provide some explanation about Judge Zusman’s ruling.

    I’ve thought a lot about this incident and the ruling and still have difficulty really understanding it, Also, in having a clear idea of how the law might be revised to confirm that bike lanes exist through intersections despite possible absence of signs or paint to mark them in that particular part of the roadway.

    In his paper(published on bikeportland in an earlier story) summarizing the case involving Piekarski(riding bike) and Metz(driving car), Judge Zusman did cite the case, PGE v. Bureau of Labor as instructing him that he had to decide the Piekarski/Metz case on the basis of statutory construction.

    The Oregon Supreme Courts’ PGE v. Bureau of Labor case, and the effect it’s apparently had on many rulings in cases following it might be something people in the legal system are familiar with and at least understand somewhat. That might not be so with the general public. That apparently landmark case isn’t so easy to understand and neither is Judge Zusman’s ruling.

    That’s why I wish he’d been a little more forthcoming with explanation to the public about the legislative, judicial, and real life issues affecting his ruling.

    Doing the online search thing, even with the PGE v. Bureau of Labor case info Cecil provided, I don’t seem to locate the actual case so I can read it. A number of cases that reference it…yes, but not the actual case. If there’s a link to it and anyone has it, post it please.

    I did find something that talks about legislative intent:

    Washington County (Oregon) Law Library
    DETERMINING LEGISLATIVE INTENT, after Gaines, 2009

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    are January 17, 2010 at 11:16 am

    the requirement that a motorist yield to a cyclist in a striped lane is actually an exception to the requirement that a motorist execute a right turn from the farthest right position she could assert in the roadway: where you have the solid white stripe, and there is a cyclist in the lane, the motorist is forbidden to merge right to prepare for the turn, and is instead literally required to wait for the corner to make the hook. judge zusman was confronted with the following question: once you are in the intersection and the striped lane ends, is the motorist still required to yield? and he chose to deal with it as a matter of strict statutory construction, saying, no, the cyclist is no longer in a bike lane. on the face of it, this can be seen as absurd, as it suggests that the cyclist must dismount and become a pedestrian at every corner (or take the lane). but the legislature could have avoided this by addressing the question specifically. another, more sensible way to have approached this whole thing would have been to put in dashed lines at the approach to the intersection and allowed motorists to merge across, yielding to a cyclist who would at that point clearly still be in the bike lane. then an officer issuing a ticket for the hard right hook at the intersection would be looking for the improper turn and the failure to keep a lookout, and not even thinking about failing to yield in a bike lane.

    i do not want to see a legislative “fix” to this problem that makes matters worse. 814.420 already has an exception for avoiding a hazard, and in my experience the hazard i usually avoid by moving left out of the striped lane is approaching from my left.

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    spare_wheel January 17, 2010 at 2:53 pm

    “I do not know how the parties stated their arguments either at the hearing or in trial memoranda…”

    Because you did not hear the arguments and are not privy to Zusman’s thoughts, I take your defense of a colleague with a large grain of salt.

    “…the ad hominem attacks on Judge Zusman’s legal abilities”

    An opinion on the legal abilties of a jurist is not an ad hominem attack.

    “For further information on how it all works, check out the following cases:”

    Obfuscation. If you have something concrete to say about this ruling then please spell it out.

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    Cecil January 17, 2010 at 4:39 pm

    @spare_wheel:

    Many of the comments I read attacked the judge personally, calling him names – that is, by definition, an ad hominem attack.

    As for my reference to the case law that controlled Judge Zusman’s decision (and based on his reference to the PGE case, it is clear that he was relying on that governing law), it was my attempt to allow people who were interested the opportunity to research the issues for themselves. I understand, however, that not everyone has access to legal libraries on weekends (but the Multnomah County courthouse library is a great place to hang out on a rainy weekday), so consider the following snippets from the cases I cited:

    First, the relevant portion of the decision in PGE v. Bureau of Labor and Industries (I have omitted the cites to case law to make it slightly easier to read):

    “In interpreting a statute, the court’s task is to
    discern the intent of the legislature. * * *To do that, the court examines both the text and context of the statute. * * * That is the first level of our analysis. In this first level of analysis, the text of the statutory provision itself is the starting point for interpretation and is the best evidence of the legislature’s intent. I* * * In trying to ascertain the meaning of a statutory provision, and thereby to inform the court’s inquiry into legislative intent, the court considers rules of construction of the statutory text that bear directly on how to read the text. Some of those rules are mandated by statute, including, for example, the statutory enjoinder “not to insert what has been omitted, or to omit what has been inserted.” * * * Others are found in the case law, including,for example, the rule that words of common usage typically should be given their plain, natural, and ordinary meaning. * * * Also at the first level of analysis, the court considers the context of the statutory provision at issue, which includes other provisions of the same statute and other related statutes. * * * Just as
    with the court’s consideration of the text of a statute, the court utilizes rules of construction that bear directly on the interpretation of the statutory provision in context. Some of those rules are mandated by statute, including, for example, the principles that “where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all,” ORS 174.010, and that “a particular intent shall control a general one that is inconsistent with it,” * * * Other such
    rules of construction are found in case law, including, for example, the rules that use of a term in one section and not in another section of the same statute indicates a purposeful omission, * * *, and that use of the same term throughout a statute indicates that the term has the same meaning throughout the statute, * * *. If the legislature’s intent is clear from the above-described inquiry into text and context, further inquiry is unnecessary.

    “If, but only if, the intent of the legislature is not clear from the text and context inquiry, the court
    will then move to the second level, which is to consider legislative history to inform the court’s
    inquiry into legislative intent. * * * When the court reaches legislative history, it considers it along with text and context to determine whether all of those together make the legislative intent clear. * * * If the legislative intent is clear, then the court’s inquiry into legislative intent and the meaning of the statute is at an end and the court interprets the statute to have the meaning so determined.

    “If, after consideration of text, context, and legislative history, the intent of the legislature remains unclear, then the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty. * * * Although some of those maxims of statutory construction may be statutory, see, e.g., ORS 174.030 (natural rights), others more commonly may be found in case law. Those include, for example, the maxim that, where no legislative history exists, the court will attempt to determine how the legislature would have intended the statute to be applied had it considered the issue.”

    Next up, Deluxe Cabinet Works v. Messmer, but first some background. This was the SECOND time the Messmer case was in the Court of Appeals. The first time, the Court of Appeals interpreted the statute in a way that the Legislature did not like. So it amended the statute – on the floor of the House, Kevin Mannix explained that the amendment was in direct response to the first opinion – saying something like, “Do you hear me, Court of Appeals?” After the statute was amended, the parties litigated the issue all over again – it got back to the Court of Appeals, and the court said this:

    “Employer insists that our reading of the statute ignores the manifest intentions of the legislature, as revealed in the cited portions of the legislative history.

    We reject that argument for two reasons. First, whatever the legislative history shows, the fact remains that the language of the statute cannot reasonably be read to accomplish what employer suggests, and we may not rewrite that language so that it more closely tracks with the legislature’s unenacted intentions. ORS 174.010. Second, assuming for the sake of argument that the language of the statute is sufficiently ambiguous to warrant examination of the legislative history, we do not read the legislative history to demonstrate so conclusively the intentions employer asserts. Mannix did say that he intended Senate Bill 369 “to overrule a recent decision” of this court which he described as holding that “when you paid out an award of permanent disability, you were suddenly accepting everything that was included in the award [of permanent disability]” and that his proposed amendment would effectively say “no you can pay for it, but if you later want to raise that issue [of compensability] you may do so.”

    The problem is that what Mannix described clearly is not what we said in Messmer. As we have noted, Messmer addressed employer’s failure to challenge the determination order, not the decision to pay benefits. Therefore, if the legislative history reveals anything at all, it is that the legislature mistakenly read one of our opinions and then enacted language to overrule a holding that we did not make.

    We acknowledge, and respect, the legislature’s constitutional prerogative to amend statutes in order to alter the effect of our prior decisions. Nevertheless, if that is what the legislature intends, it must enact language that, reasonably construed, actually changes that law. In this case, it is apparent that the legislature proceeded from an inaccurate understanding of our decision and enacted language that changes nothing of substance in that decision. Under the circumstances, we cannot rewrite the statute to give effect to what we may speculate the legislature would have intended had it correctly read our prior decision. As the Supreme Court stated when confronted with similar circumstances:

    “Whatever the legislative history of an act may indicate, it is for the legislature to translate its intent into operational language. This court cannot correct clear and unambiguous language for the legislature so as to better serve what the court feels was, or should have been, the legislature’s intent.” Monaco v. U.S. Fidelity & Guar., 275 Or. 183, 188, 550 P.2d 422 (1976); see also Dilger v. School District 24CJ, 222 Or. 108, 112, 352 P.2d 564 (1960) (“[i]t is axiomatic that the courts cannot in the guise of construction supply an integral part of a statutory scheme omitted by the legislature”); Eslamizar v. American States Ins. Co., 134 Or.App. 138, 145 n. 3, 894 P.2d 1195, rev. den. 322 Or. 228, 904 P.2d 1070 (1995) (if “the legislature has made a mistake, * * * only the legislature may remedy it”).

    In other words, the court knew what the legislature intended the statute to say, but nevertheless ruled otherwise because the actual text of the statute said something else.

    Finally, in Young v. State (161 Or App 32), in which the Court of Appeals concluded that the PGE rule required it to interpret a statute in way that led to an absurd result, Judge Haselton offered the following cri de coeur:

    PGE is authoritative. Accordingly, I concur. But only a fool or a knave would pretend that our result today bears any relationship to the legislature’s actual intent.

    “This case is just the latest, if perhaps the most egregious, of a series of cases in which fidelity to PGE has driven our court to patently silly results. Does anyone really believe that the 1995 legislature intended to confer a multi-million dollar windfall on state white-collar employees? Of course not. Does PGE permit any other result? No.

    “With PGE, as with any other formula, there must be limits. Legislative draftsmanship is not a science, and neither is statutory construction. When a methodology that purports to effectuate legislative intent inverts that intent, something is seriously wrong. The methodology must be reexamined and modified or discarded..

    “Venting, though momentarily satisfying, is rarely constructive. My constructive contribution-or, rather, suggestion-is modest, but practical: If we are to live, sensibly, with PGE, the “absurd results” principle must be available at the so-called “first level,” not the “third level,” of the analysis. That is, there must be an escape hatch for those rare circumstances in which any reasonable person would conclude, notwithstanding unambiguous text, that the legislature could not possibly have intended the result that the text ostensibly yields.

    “That exception could, I acknowledge, be susceptible to unprincipled manipulation-to result-oriented abuse by “judicial activists,” closet legislators in robes, committed to carrying out hidden agendas. But the answer to such unprincipled decision-making does not lie in formulas, which can themselves be easily manipulated. The answer lies in remembering that we are judges. It lies in our oaths, in our mutual trust, and in our ultimate accountability to the people of Oregon.”

    If you are still reading, here is my final note on the subject. I am not “defending” Judge Zusman’s decision. I am merely explaining, based on his own reference to PGE in his comment on the case, how he might have reached it. As for trying to explain every nuance of the subject in a post on a blog, I simply don’t have the time or inclination. Entire law school semesters are spent on the subject of statutory construction, and Oregon law on the subject differs from that of almost every other state (something that can be said about a LOT of Oregon laws). For further explanation, you might seek out Judge Landau’s articles on the Oregon way of construing a statute.

    That’s as concrete as I am going to get – if it’s still not good enough, so be it

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    david....no the other one January 17, 2010 at 9:49 pm

    I wonder? does Officer Parman feel the legislature or judicial system will pay more attention to this problem with more citations?

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    wsbob January 18, 2010 at 1:06 am

    Cecil, again…thanks for your time and patience in posting further information that helps to explaipn some of the challenges faced by our courts in arriving upon rulings drawn from some of the laws produced by the Oregon Legislature.

    I read every word you wrote, and hope others following this story will too. At the least, reading this subject material is good experience. With any luck at all, everyone that does read it may come away with insights they didn’t have before. The suggestion to visit the Multnomah County courthouse library sounds like a good one.

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    spare_wheel January 18, 2010 at 9:49 am

    Cecil,
    Thanks for taking the time to expand of your cites. Neverthless, even your citations show that the judge had more latitude than you implied:

    “… which includes other provisions of the same statute and other related statutes.”

    “If, but only if, the intent of the legislature is not clear from the text and context inquiry, the court
    will then move to the second level, which is to consider legislative history to inform the court’s”

    I read Zusman’s ruling and the relevant statute and it seems clear that:

    a) Other statutes are relevant.

    b) The statute cited does not precisely define a “bicycle lane”.

    Maus also reported quotes from prominent members of the bar that express similar concerns:

    http://bikeportland.org/2010/01/07/update-on-disappearing-bike-lane-case-judge-victim-lawyer-respond/

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    jacque January 18, 2010 at 10:33 am

    #26, I too was surprised that you said the cyclist was traveling as safely as possible. I think you might have meant she was traveling along, FEELING safe.

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    wsbob January 18, 2010 at 11:05 am

    spare_wheel…I don’t see that cecil is implying that judge zusman had any particular limitations to his ruling other than the law itself, and his interpretation of it according to procedures established by precedent setting cases he cited in his ruling.

    From a document I posted a link to earlier:

    “First, the court examines the text and context of the statute. … If the legislature’s intent is obvious from that first level of analysis, “further inquiry is unnecessary.” “.

    It seems that’s how Judge Zusman found the ‘failure to yield to a bike in a bike lane’ law to be; ‘cut and dry’, in other words.

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    spare_wheel January 19, 2010 at 1:18 pm

    “It seems that’s how Judge Zusman found the ‘failure to yield to a bike in a bike lane’ law to be; ‘cut and dry’, in other words.”

    Zusman’s ruling created a novel definition of “lane” that is not supported by other statutes, the state’s plan for bicycle transportation, or common sense. Frankly, its hard for me to understand how Zusman could have come to such a bizarre interpretation of the meaning of this statute. Maybe, just maybe, Zusman *was* thumbing his nose at the “aggressive bicyclists” he has blogged about.

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    wsbob January 19, 2010 at 6:14 pm

    spare_wheel, hard to say exactly what Judge Zusman’s reasoning for his interpretation or read of the bikelane law was, because for some reason, he doesn’t seem to feel it’s important to talk about that relative to his ruling, at least not to we mere members of the public.

    At this point, one possible conclusion I’ve come to after reading all the news stories, and the comments to those published here on bikeportland, is that the judge may have decided to use this case to take a stand against the quality of laws that have been written and put into law by the Oregon Legislature.

    The Oregon Supreme Courts decision on PGE vs BOLI appears to have been a really big deal, and driven some members of the legal system to distraction trying to arrive at fair rulings of the law according to the procedure established in PGE vs BOLI (bureau of labor and industries.

    I would really like to see a few more people in the legal system besides our fellow bikeportland commenter Cecil, that are willing to talk to the press and help explain difficult aspects of the law that have an importan bearing on the day to day lives of ordinary citizens.

    Is this so far out of the reasonable range of what could be expected of Judge Zusman? I would think he’s sufficiently seasoned to be able to withstand some of the bric-brats that have been thrown his way in some of the comments made in reference to him here on bikeportland. There are enough people amongst those commenting here that have at least some respect for the difficulties his job presents, and who would very much appreciate hearing more from him about issues related to the Oregon bike lane law, and thoughts he may have about how the the Oregon Legislature might better go about making law that’s less inclined to fail at achieving the intended protections for citizens.

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    SE jimmy January 20, 2010 at 4:24 pm

    Walking on SE Gladstone in the 30s last night, I noted that the bike lanes there are designated by hash marks as they cross some intersections. Did not note at the time if they were signalized and these are residential crossing, but there is some precedent for additional markings at intersections.

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