Is Oregon a Common Law Jurisdiction?
Oregon is a common law state. Oregon recognizes the common law as the law of the state with the exceptions noted in the Oregon Revised Statutes as specified in ORS 105.130. The common law may be defined as "the body of law derived from judicial opinions and precedent. In contrast , civil law system relies more on statutes and codifications," according to a widely cited legal source. The common law is law determined by judges as opposed to law created by the legislature or executive branch for the prevention or punishment of crimes.
Oregon’s Common Law Background
The history of common law in Oregon has been shaped by a combination of legislative actions and pivotal court cases. When the Oregon Territory was formed in 1848, it was governed by the laws of the United States. In 1859, when Oregon became the 33rd state, it adopted the common law of the United States as its own law, along with any relevant state statutes. The legislature, however, omitted any direct reference to "common law" in the Constitution of the State of Oregon.
The Oregon Territorial Legislature codified numerous common law principles in 1853. It was not until 1862 that the legislature attempted to define the common law in Oregon. Chapter 81 of the General Laws of Oregon established that "the common law of England," except those parts that conflict with the Constitution or laws of the state, are the "rule of decision." Although this statute at one time seemed to settle the question of whether Oregon is a common law state, later court decisions called this provision into question.
In the early statehood years, particularly in cases where it perceived a common law doctrine to be cruel or unjust, the Oregon Supreme Court offered an "imperfectly camouflaged invitation to the legislature" to enact statutory changes to the common law. For example, the court found the wrongful death statute to be a morbid remnant of a long-discarded common law that ran contrary to the evolving views of legislators and the broader public. In 1971, the legislature enacted what is now ORS 30.020, creating a new remedy for wrongful death. The statute has undergone significant amendment in recent years to address perceived shortcomings and to provide significant awards to surviving family members, rather than requiring family members to prove pecuniary loss.
Several other significant statutes have changed the common law in Oregon. Most significantly, the legislature created the Oregon Workmen’s Compensation Board in 1913 in response to the common law employer defenses of contributory negligence, assumption of risk, and the fellow servant rule that were viewed as leading to inequitable results. In 1939, the legislature created the Internal Revenue Code of 1916, or the "widow’s allowance," which replaced the common law doctrine of dower rights and created for widows of testators and intestates an interest in property equivalent to one-half of the net estate. In 1948, changes to the common law were made as to implied warranties in sales of goods, which were replaced by the Uniform Commercial Code adopted in 1961.
The issue of whether Oregon is a common law or civil law state came under serious consideration by the Oregon Supreme Court in 1977, in the case of Schaffer v. Veneman, 278 Or 633 (1977). That case involved the issue of liability of an intoxicated driver for the death of a pedestrian under the influence of intoxicating liquors or drugs. Plaintiff argued that the common law "harbored a number of bad public policy rules, including imputed contributory negligence, the doctrine of transferred responsibility…and the fellow notary public rule." Id. at 644. In response, defendant argued that the two-year statute of limitations should bar plaintiff’s claim because the "legislature must be presumed to know all of the rules of the common law and knows how to change or modify the common law." Id. at 645. The court reconciled these distinctions, concluding that "[t]he legislature cannot abolish the common law, nor can it adopt it by adoptionary reference. If there are elements of the common law that the legislature’s silence implies to be abandoned, the courts may so declare it." Id. at 647.
Perhaps it is for this reason that Oregon courts zealously declare both new rules of common law and outdated common law doctrines to be abrogated on a frequent basis. There is little question that the Oregon legislature views an expressed statement about whether the state adopts the common law as superfluous and unnecessary. Indeed, the legislature does not in fact refer to specific common law principles in order to make them part of Oregon law. Rather, it relies on the silence of the Oregon Supreme Court to determine that a new common law rule is being implemented, or that an existing rule is no longer to be applied.
Oregon Common Law Marriage
The State of Oregon is not considered a common law state, meaning common law marriages are not recognized in Oregon. Common law marriages are those which spring up due to the couple living together for a certain period of time without a marriage license. These types of marriages generally require at least seven years of cohabitation for the previous couple to have met. However, there is no common law marriage in Oregon, and those who claim otherwise are misinformed.
Oregon law does have an exception for these types of marriages, where a couple who was legally married in another state, continues to live together in Oregon, but does not have a marriage license in Oregon, the previous marriage would be recognized as valid.
These informal marriages are considered to be invalid in Oregon unless there is one of two things present. The first on this list is a notarized written contract. This written contract means that the parties index in or slightly above or below their normal signatures on the dotted line alluding to this relationship. The second on this list is a declaration of marriage form. This document simply states that the two parties agree to be known as a married couple, and it is signed by the two individuals. This can be a legally binding document organized through a family law attorney, or it is a simple handwritten document dated and signed by both parties.
Property Law: Application of Common Law
The impact of common law on property rights began in the state of Oregon. In the case of Allen v. Grant, 1 Or 57 (1867), the issue was whether property would be lost upon the death of the property owner or if it would be inherited by a spouse. Oregon has its own intestacy statute which dictates what happens to property when the owner dies without a will. Many years later, in 1917, the state legislature passed a statute allowing for equitable distribution of property acquired by the parties during the marriage. McElwain v. Brix, 83 Or 520 (1918). This statute allowed for equitable distribution of property instead of distribution based on the common law system, which required equal division. The Oregon Supreme Court found that where the legislature, for policy reasons, adopts common law, the statutes which follow thus amend and change the common law. Where the purpose is to amend the statute, the court will deal with it accordingly; but where the purpose of the statute is to establish a new policy where none existed, it is treated as a declaration of the common law . Wells v. Oregon Bank & Union Trust Co., 127 Or 612 (1925). In the context of property law, it has been found that statutes in the area of equitable distribution of property do not intend to override the common law with regard to transmutation of property. Bradley et ux v. Carlton, 211 Or 608 (1958). The Oregon supreme court has stated: It is well-settled that a husband or a wife may establish a valid trust in his or her own estate for the benefit of the other spouse by appropriate evidence of intent. Bradley et ux. v. Carlton, 211 Or 608 (1958). The result of the passage of and subsequent invalidation of the transmutation statute is that the common law still governs property law because it was intended by the legislature to override the common law. Thus, if an individual wishes to give their spouse their assets at the time of their death, the trust must be very carefully drafted to ensure that the common law rules govern.
Oregon Compared to other States
Oregon is positioned in the Pacific Northwest corner of the U.S. It is bordered to the north by Washington, to the east by Idaho, to the south by California and Nevada, and to the west by the Pacific Ocean. Many states emulate the approach to common law taken by New York, although those states are few in number. Among the states that follow the common law doctrine are Maine, New Hampshire, Minnesota, Wisconsin, Vermont, Iowa, Kansas, Arkansas, Nevada, and New Jersey. These states differ from Oregon primarily because their legal systems are not founded on a strong statutory framework; however, as Oregon and these common law states were rooted in English common law, certain general similarities exist.
As far as similarity goes in Oregon’s legal system and in other states, California is Orgon’s neighbor to the south. Oregon and California share more than a common border; both are governed by rules of common law codified under relevant statutory provisions. In addition, Oregon and California agree that an appellate court can overturn or modify the common law on the ground that a change in the law is needed, but not if it conflicts with a statute. The analytical framework used by courts in California and Oregon is similar in that there is a dual-prong test for determining whether a rule of common law should be overruled due to the enactment of new legislation.
California and Oregon have different rationales for following a common law doctrine, and have different rules regarding the adoption and abrogation of the common law. In Oregon, where the legislative intent is clear, courts must follow the plain meaning of the law even if the common law rule applies, whereas in California, courts follow the plain meaning of a law only to the extent that it conflicts with common law. In Oregon, while courts prefer to follow statutes, the standard of review is, in effect, a de novo review.
Alaska is Oregon’s neighbor to the north and differs from Oregon in its history of legal codes. Alaska was purchased, from Russia, by the United States via federal legislation passed by President Andrew Johnson, and in 1966 adopted its first comprehensive code on civil law. As a result, Alaska now has a statutory system of law, similar to that of Oregon. Alaska currently has approximately 200 statutes covering criminal law and procedure. Alaska’s civil law codes consist of 70 statutes found in Title 9 of the Alaska Statutes. While Oregon law is a product of heavy codefying, its court system has preserved the integrity of its common law.
What This Means for Residents or Practicing Attorneys
So what does it really mean that Oregon is not a common law state? For residents, this means that individual and collective rights are enshrined in law through both the Oregon and U.S. constitutions. This also means that an indelible legislative system exists to protect those rights. For lawyers, it is imperative to know exactly what legal authority you are citing. Whether it is a case, a statute, the Oregon Constitution, or the U.S. Constitution , all of these sources have different legal precedents and applicability. If you are not certain whether you are in common or civil law territory, be certain to research what protections you have in court. For practicable applications, it is important as a citizen of the State of Oregon to know your rights and where your recourse is if you feel your rights are being violated. Whether it has to do with criminal activity, familial issues, or any other federal or state matter, there are multiple ways to pursue legal avenues that are both civil and declarative.