Traffic Division Captain weighs in on bike lane case

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

#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.

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.

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.

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.

ryan +1

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.

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!

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.”

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.

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.

A judges job is interpretation.

We cannot legislate in detail to every last possibility.

M. Zusman needs some common sense lessons or sumthin.

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?

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.

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

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.

@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

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.

#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.

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

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

“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.

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.