500 September 3, 2026 No. 36
IN THE SUPREME COURT OF THE
STATE OF OREGON
SHANE ANTHONY LEWIS,
Petitioner on Review,
v.
OREGON DEPARTMENT OF CORRECTIONS,
Respondent on Review.
(CA A184846) (SC S072160)
En Banc
On review from the Court of Appeals.*
Argued and submitted June 11, 2026.
Diane J. McMillan, Allegiant Law, LLP, Portland, argued
the cause and filed the briefs for petitioner on review.
Shane Anthony Lewis, Pendleton, filed a supplemental
brief pro se.
Rolf C. Moan, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief were Dan Rayfield, Attorney General and Paul
L. Smith, Solicitor General.
FLYNN, C.J.
The decision of the Court of Appeals is vacated, and the
case is remanded to the Court of Appeals for reconsideration
in light of the statutory amendments in Oregon Laws 2026,
chapter 14.
Bushong, J., dissented and filed an opinion.
* On judicial review of an administrative rule of the Oregon Department of Corrections, OAR 291-100-0080(3)(c). 340 Or App 363, 569 P3d 236 (2025). Cite as 375 Or 500 (2026) 501
502 Lewis v. Dept. of Corrections
FLYNN, C.J.
This case is before us on discretionary review of
petitioner’s challenge to the validity of an administrative
rule that describes how the Department of Corrections
(DOC) will compute credit for time served when an inmate is
serving consecutive sentences. Lewis v. Dept. of Corrections,
340 Or App 363, 569 P3d 236 (2025). At issue is whether
that rule, OAR 291-100-0080(3)(c), directs a computation
that is contrary to what the governing statutes permit and,
therefore, exceeds the authority of the agency. The Court
of Appeals interpreted the governing statutes as directing
the same method of computation as the method specified
in the rule and, on that basis, concluded that the rule is
valid. Lewis, 340 Or App at 364-65. As we will explain, however, the governing statutes were amended after this court
allowed review, and we vacate and remand for the Court
of Appeals to consider in the first instance whether those
statutory amendments affect the answer to petitioner’s rule
challenge.
Petitioner filed his rule challenge pursuant to ORS
183.400(1), which permits “any person” to petition the Court
of Appeals for a determination of the validity of an administrative rule, regardless of whether the person has a practical
interest in the outcome of the challenge. See Kellas v. Dept.
of Corrections, 341 Or 471, 477, 145 P3d 139 (2006) (stating
that proposition and observing that ORS 183.400(1) reflects
an “unambiguous” legislative policy choice “to authorize any
person to invoke the judicial power of the court to test the
validity of every administrative rule under existing statutory and constitutional law and, thus, to advance the objective that all agency rulemaking shall remain within applicable procedural and substantive legal bounds[ ]”). Such
challenges “are colloquially called ‘facial challenges[.]’ ” Nay v. Dept. of Human Services, 360 Or 668, 679, 385 P3d 1001
(2016).
The inquiry in a facial challenge is limited to
whether the rule: “(a) [v]iolates constitutional provisions;”
“(b) [e]xceeds the statutory authority of the agency;” or
“(c) [w]as adopted without compliance with applicable
rulemaking procedures.” ORS 183.400(4). When, as here, the
Cite as 375 Or 500 (2026) 503
issue is whether the rule “[e]xceeds the statutory authority of the agency[,]” ORS 183.400(4)(b), we have explained that, “[t]
o the extent that the rule departs from the statutory policy
directive, it ‘[e]xceeds the statutory authority of the agency’ within the meaning of those words in ORS 183.400(4)(b),”
Pulito v. Board of Nursing, 366 Or 612, 618, 468 P3d 401
(2020) (brackets in Pulito; citation omitted).
The parties’ briefs in this court focused on whether
OAR 291-100-0080(3)(c) is consistent with the governing
statutes considered by the Court of Appeals. In the weeks
preceding oral argument, however, the parties alerted this
court that the legislature had recently amended one of the
governing statutes, ORS 137.370, to specifically address the
computation of credit for time served in cases of consecutive sentences imposed after March 5, 2026. See Or Laws
2026, ch 14, § 11 (amending ORS 137.370); id. §§ 12, 20
(effective date).1 And they submitted brief additional memoranda to address the rule in light of the amended statute.
Petitioner reiterates his arguments that the rule exceeded
DOC’s authority when assessed under the former statute
and argues that the amended statute makes the inconsistency more apparent. DOC offers a new argument about the
rule itself. According to DOC, OAR 291-100-0080(3)(c) was
consistent with the former statute and remains consistent
with the amended statute because “the rule recognizes that
duplicate credit can apply to consecutive sentences in the
event that the legislature has ‘authorized [such credits] by
statute.’ ”2 (Brackets and emphasis in memorandum).
Whether OAR 291-100-0080(3)(c) is valid when
measured against the current version of ORS 137.370 is an
open question that the Court of Appeals had no opportunity
1
The legislature also amended ORS 137.320, which petitioner relied on in briefing and which requires that DOC “compute the defendant’s sentence in accordance with the provisions of ORS 137.370.” Or Laws 2026, ch 14, § 10. The parties have not suggested that the amendments to ORS 137.320 have bearing on the validity of OAR 291-100-0080(3)(c), and we express no opinion on that open question.
2
OAR 291-100-0080(3)(c) provides that an adult in custody:
“will receive time served credit for time confined in a county jail or other
non-Department of Corrections facility, as authorized by statute, against
only the first of multiple consecutive sentences unless different dates are
indicated for the consecutive sentences.”
504 Lewis v. Dept. of Corrections
to address. But the timing of the amendment raises at least
two other questions that must be addressed before this court
would turn to whether the rule is valid when measured
against the current version of the statute: (1) whether statutory amendments that take effect while a challenge to the
validity of a rule is pending have any bearing on the determination of validity; and (2), if so, whether it matters that
the statutory amendments apply only prospectively. In other
words, whether petitioner’s rule challenge could be finally
answered by a declaration that the rule is valid as measured
against the statute in effect when petitioner filed his challenge, or valid as to sentences computed prior to March 5,
2026, even if the rule would not be valid under the statute
in effect at the time a judgment issues.
This court has not decided what version of a statute should be considered in deciding a facial rule challenge,
although we have alluded to the question. See Nay, 360 Or
at 671 (looking to “all relevant statutes as they exist currently[ ]” to resolve the validity of challenged rule, because
the parties did not argue that validity of a rule should be
determined by version of statute in effect when the rule was
amended to its current version, and because the court did not
find any change in statutes “that would affect [its] analysis
of the issues here[ ]”). The Court of Appeals understandably
did not address, nor could it have addressed, the significance
of the 2026 statutory amendments when issuing its original
decision in this case. We remand for that court to consider in
the first instance whether the amendments to the governing
statutes here bear on the pending rule challenge.
Because the dissent parts ways on the question of
whether to remand this case, we briefly address that question. When this court encounters an issue on review that
the Court of Appeals has not yet considered, we sometimes
choose simply to decide the issue. See State v. Meiser, 369
Or 347, 361, 506 P3d 402 (2022) (“As a matter of judicial
efficiency, this court sometimes resolves issues beyond those
as to which we allowed review, rather than remanding to
the Court of Appeals to resolve remaining issues[.]”). But we
routinely remand pending cases to the Court of Appeals to
address in the first instance legal issues that the court did
Cite as 375 Or 500 (2026) 505
not address when issuing its original decision. See, e.g., State v. Worsham, 374 Or 781, 782, 583 P3d 1042 (2026) (remanding for the Court of Appeals to address in the first instance
an assignment of error that the court had not previously
considered); State v. Cotter, 373 Or 381, 388, 567 P3d 1034
(2025) (vacating and remanding to Court of Appeals a decision reached without the benefit of briefing filed by recently
appointed counsel); Rains v. Stayton Builders Mart, Inc., 359
Or 610, 639-40, 375 P3d 490 (2016) (vacating in part and
remanding to Court of Appeals to reconsider assignments of
error in light of recent analytical shift in Horton v. OHSU,
359 Or 168, 376 P3d 998 (2016)).
Our choice between the two paths is always informed
by competing concerns. As Meiser suggests, concern about
judicial efficiency can influence this court to resolve a new
issue without remanding to the Court of Appeals. 369 Or
at 361. One competing concern is the value that development of an issue in the Court of Appeals brings to the ultimate quality of this court’s decisions. We have emphasized
that “this court’s process of resolving legal issues benefits
from the consideration given to those issues by the Court of
Appeals in its own opinions.” State v. Link, 367 Or 625, 638,
482 P3d 28 (2021) (citation omitted). When arguments are
presented in the Court of Appeals, a panel of judges reviews
and evaluates those arguments and engages in the deliberative and collaborative work necessary to reach a reasoned
decision. A written, reasoned decision from that panel,
and a party’s ability to articulate any claimed error in the
court’s decision contribute to meaningful consideration of
the issues when a case ultimately reaches this court. See
ORAP 9.07(11) - (14) (articulating those considerations as
informing whether the Supreme Court will allow discretionary review). Yet it appears that the Court of Appeals has
never previously considered whether or how a pending rule
challenge under ORS 183.400(1) is affected by an intervening amendment to the governing statute. Moreover, even
in arguments to this court, the parties have not addressed
whether the amendments bear on the pending rule challenge; the supplemental arguments from both assume that
the current version of ORS 137.370 informs the ultimate
answer to whether OAR 291-100-0080(3)(c) is valid.
506 Lewis v. Dept. of Corrections
Beyond those general considerations, the nature of
the particular issue presented in this case also informs our
decision to remand to allow the Court of Appeals to address
the outstanding questions in the first instance. The authority
to resolve challenges to an administrative rule under ORS
183.400(1) is primarily assigned to the Court of Appeals,
which is the entity with jurisdiction to resolve those challenges in the first instance. See Alto v. State Fire Marshal,
319 Or 382, 395, 876 P2d 774 (1994) (concluding that circuit court lacked subject matter jurisdiction to hear plaintiffs’ challenge to an administrative rule under the Uniform
Declaratory Judgments Act, because “[t]hat challenge could
have been, and should have been, brought in the Court of
Appeals under ORS 183.400(1)[ ]”); AFSCME Local 2623
v. Dept. of Corrections, 315 Or 74, 79, 843 P2d 409 (1992)
(explaining that, while judicial review of a rule as applied
to any particular situation “is reserved to other forums[,]”
ORS 183.400 assigns authority to the Court of Appeals
to determine whether an administrative rule is facially
invalid). The answer to the particular unanswered question
here—which version of a statute governs a rule challenge
under ORS 183.400(1)—is fundamental to how the Court
of Appeals evaluates all rule challenges. See PacifiCorp v.
Dept. of Rev., 374 Or 189, 192, 577 P3d 296 (2025) (explaining that the nature of “a ‘facial’ challenge to the validity
of a rule” is that “the court considers only the rule and the
statutes at issue”—unless there is a procedural challenge
to the rulemaking). The Court of Appeals, as the court primarily charged with authority to determine the validity of
administrative rules in challenges under ORS 183.400(1),
should have the opportunity to decide in the first instance
which version of “the statutes at issue” that court looks to in resolving validity challenges.
As the dissent observes, the statutory amendments
may have no bearing on the pending rule challenge. But we
emphasize that the answer to that fundamental question is
far from clear. This court has explained that proceedings
under ORS 183.400(1) “invoke the judicial power of the court
to test the validity of every administrative rule under existing statutory and constitutional law[,]” Kellas, 341 Or at 477
(emphasis added), and we have held that an agency may not
Cite as 375 Or 500 (2026) 507
defend the validity of a rule by arguing that the governing
statutes are consistent with some applications of the rule,
Nay, 360 Or at 684. Those cases capture general principles
that do not clearly answer the questions here. How those
statements of general principles affect whether the 2026
statutory amendments bear on petitioner’s pending rule
challenge and, if so, how are questions that we expressly
leave as an open question for the Court of Appeals.
The decision of the Court of Appeals is vacated, and
the case is remanded to the Court of Appeals for reconsideration in light of the statutory amendments in Oregon Laws
2026, chapter 14.
BUSHONG, J., dissenting.
Petitioner challenges the validity of an administrative rule, OAR 291-100-0080(3)(c), that governs how presentence incarceration credits—commonly known as “credit
for time served”—apply to adults in custody (AICs) serving consecutive sentences. According to petitioner, the rule
contravenes ORS 137.320 and ORS 137.370(4), because the
rule requires the Department of Corrections (DOC) to apply
presentence incarceration credits only to the first of multiple consecutive sentences, while the statutes—as petitioner
interprets them—require DOC to apply those credits to each
sentence.1 The Court of Appeals ruled against petitioner,
holding that the rule is valid and does not contravene ORS
137.320 or ORS 137.370(4). Lewis v. Dept. of Corrections, 340
Or App 363, 364-65, 569 P3d 236 (2025).
After that decision, the legislature amended ORS
137.320 and ORS 137.370(4), making the amendments applicable only to sentences imposed, computed, or recomputed
on or after March 5, 2026, the effective date of that legislation. See Or Laws 2026, ch 14, §§ 10, 11 (amendments to
ORS 137.320 and ORS 137.370(4)); id. §§ 12, 20 (effective
date of the amendments). Today, this court vacates the Court
of Appeals’ decision and remands this case for the Court of
Appeals “to consider in the first instance” whether those
1
OAR 291-100-0080(3)(c) provides, in part, that an adult in custody will receive “time served credit for time confined in a county jail * * * against only the first of multiple consecutive sentences unless different dates are indicated for the consecutive sentences.”
508 Lewis v. Dept. of Corrections
statutory amendments “affect the answer to petitioner’s
rule challenge.” 375 Or at 502. I disagree with that decision.
Whatever effect the 2026 legislation may have on petitioner’s rule challenge is a legal question that we can and should
decide in resolving this rule challenge. See State v. Meiser,
369 Or 347, 361, 506 P3d 402 (2022) (“As a matter of judicial efficiency, this court sometimes resolves issues beyond
those as to which we allowed review, rather than remanding to the Court of Appeals to resolve remaining issues[.]”).
Accordingly, I respectfully dissent.
As the majority opinion notes, the parties submitted
supplemental memoranda in this court to address the 2026
legislation. In those supplemental memoranda and at oral
argument, both parties assumed that petitioner’s current
rule challenge also requires this court to decide the rule’s
validity after the 2026 legislation. Petitioner argued that the rule—both before and after the 2026 legislation—is invalid,
while DOC maintained that the rule was valid before the
2026 legislation and remains valid after that legislation.2
No party asked this court to vacate the Court of Appeals
decision and remand this case to that court to consider the
effect of the 2026 legislation on petitioner’s rule challenge.
On remand, the Court of Appeals may need to
decide whether the parties’ assumption—that petitioner’s
rule challenge requires the court to now decide whether the
rule contravenes the amended versions of ORS 137.320 and
ORS 137.370(4) that took effect on March 5, 2026—is correct. That presents a procedural question of first impression: what effect, if any, does a statutory amendment that
expressly applies prospectively have on a pending rule challenge? That question, as relevant here, may require the
Court of Appeals to address whether petitioner’s petition
2
The parties agree that the 2026 legislation does not moot petitioner’s rule challenge. I agree. The 2026 legislation applies only to sentences imposed, computed, or recomputed on or after March 5, 2026. Or Laws 2026, ch 14, §§ 12, 20. Thus, any determination that the rule was invalid before the 2026 legislation, as petitioner alleged in his petition, would affect consecutive sentences imposed before the March 5, 2026, effective date of the 2026 legislation, unless those sentences were recomputed after that date. That is the issue that the Court of Appeals decided, and determining whether that decision was correct could affect the sentence computations for AICs who were sentenced to consecutive terms of imprisonment before March 5, 2026, absent any recomputation of those sentences after that date. That is why petitioner’s rule challenge is not moot. Cite as 375 Or 500 (2026) 509
for judicial review challenges the rule’s validity under the
law that applied when he filed the petition, the law that
now applies to sentences imposed, computed or recomputed
after March 5, 2026, or both. This court has not previously
decided that issue, but we have addressed other aspects of a
rule challenge under ORS 183.400 that may be pertinent to
the court’s task on remand.
As we have explained, ORS 183.400 “sets out the
procedure for mounting a facial challenge to administrative rules and describes the scope of judicial review.” Wolf v. Oregon Lottery Commission, 344 Or 345, 348, 182 P3d 180
(2008). Challenges to a rule’s validity under ORS 183.400
“are colloquially called ‘facial challenges,’ although that
term is not used in the statute itself.” Nay v. Dept. of Human
Services, 360 Or 668, 679, 385 P3d 1001 (2016) (internal citation omitted). The procedure for mounting such a challenge
begins when a person files a petition for judicial review in
the Court of Appeals under ORS 183.400(1). That statute
provides that “[t]he validity of any rule may be determined
upon a petition by any person” filed in the Court of Appeals.
ORS 183.400(1).3
As we have recognized, the legislature “intends by
[ORS 183.400] to authorize any person to invoke the judicial power of the court to test the validity of every administrative rule under existing statutory and constitutional
law[.]” Kellas v. Dept. of Corrections, 341 Or 471, 477, 145
P3d 139 (2006). A challenge to the validity of a rule under
ORS 183.400 serves at least two purposes. First, it was
intended “to advance the objective that all agency rulemaking shall remain within applicable procedural and substantive legal bounds.” Id. Second, by authorizing “any person”
to invoke the court’s judicial power, ORS 183.400(1), “the
legislature has consented to allow exactly this sort of [rule]
challenge,” thereby waiving the state’s sovereign immunity,
3
ORS 183.400(1) provides that “[t]he validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases.” Proceedings for review of orders in contested cases “shall be instituted by filing a petition in the Court of Appeals.” ORS 183.482(1). ORAP 4.05 states that, “[i]nsofar as practicable, and except where some other procedure is provided by statute or these rules, the procedure for * * * judicial review of a rule * * * shall be the same as for appeals in civil cases.” 510 Lewis v. Dept. of Corrections
Ore. Newspaper Pub.. v. Peterson, 244 Or 116, 122, 415 P2d
21 (1966).4
Before 1975, a person seeking to challenge the validity of a rule under ORS 183.400 would file a declaratory judgment action in circuit court. See ORS 183.400(1) (1971) (“The
validity of any rule may be determined upon a petition for a
declaratory judgment thereon filed as provided by ORS chapter 28[.]”). That procedure was part of Oregon’s Administrative Procedures Act (APA) from its inception in 1957. See Or Laws
1957, ch 717, § 6 (original enactment of ORS 183.400); Ore.
Newspaper Pub., 244 Or at 119 (noting that newspapers and
trade association opposing a rule restricting pharmaceutical
advertising “attacked the regulation by declaratory proceedings brought under ORS 183.400” in circuit court).
In 1975, the legislature amended ORS 183.400 to
require the person challenging the validity of a rule to file a petition for judicial review in the Court of Appeals instead
of filing a declaratory judgment complaint in circuit court.
See Or Laws 1975, ch 759, § 9 (amending ORS 183.400 to
provide for filing a rule challenge petition in the Court of
Appeals). As a result, after 1975, a person “invok[ing] the
judicial power of the court to test the validity” of an administrative rule would do so by filing a petition for review in
the Court of Appeals. Kellas, 341 Or at 477.
By filing a petition for judicial review under ORS
183.400, petitioner thus “invoked the judicial power of the
court” to test the validity of OAR 291-100-0080(3)(c). That
petition, when it was filed, necessarily challenged the validity of the rule under the versions of ORS 137.320 and ORS
137.370(4) that were in effect at the time, because the 2026
legislation had not been enacted. The Court of Appeals
4
ORS 183.400(3) limits judicial review to an examination of the rule under review, the statutory provisions authorizing the rule, and documents necessary to demonstrate compliance with rulemaking procedures. Under ORS 183.400(4), a court “shall declare [a] rule invalid” only if it finds that the rule “(a) [v]iolates constitutional provisions;” “(b) [e]xceeds the statutory authority of the agency;” or “(c) [w]as adopted without compliance with applicable rulemaking procedures.” As we have explained, a rule can exceed an agency’s statutory authority under ORS 183.400(4)(b) when the substance of the rule “ ‘depart[s] from a legal standard expressed or implied in the particular law being administered, or contravene[s] some other applicable statute.’ ” Nay, 360 Or at 680-81 (quoting Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565, 687 P2d 785 (1984)). Cite as 375 Or 500 (2026) 511
rejected that rule challenge, and we allowed review of that
decision. Lewis, 340 Or App at 364-65, rev allowed, 374 Or
616 (2025).
The majority opinion now chooses to remand the
case to the Court of Appeals instead of deciding what effect,
if any, the 2026 amendments to ORS 137.320 and ORS
137.370(4) has on this rule challenge. The majority opinion
concludes that a remand is appropriate here, because we
“routinely” remand pending cases to the Court of Appeals
“to address in the first instance legal issues that the court
did not address when issuing its original decision.” 375 Or at
505. The majority opinion cites “the value that development
of an issue in the Court of Appeals brings to the ultimate
quality of this court’s decisions[,]” id., and suggests a “written, reasoned decision” from that court will “contribute to”
this court’s “meaningful consideration” of a legal issue. Id.
I agree that we can remand a case to the Court of
Appeals when the law changes after that court has decided
an issue, but I do not agree that we should do so as a matter
of routine. I also agree that a reasoned decision from the
Court of Appeals on a disputed legal issue can significantly
contribute to this court’s consideration and ultimate resolution of the issue. But for many years, the Court of Appeals
has not provided reasoned decisions in a significant percentage of its cases, and I do not believe that the legislature created the Court of Appeals for the purpose of assisting
this court’s consideration and resolution of legal issues.
The Court of Appeals has exclusive jurisdiction of
all appeals “[e]xcept where original jurisdiction is conferred
on the Supreme Court by the Oregon Constitution or by
statute[.]” ORS 2.516. The legislature has conferred original jurisdiction on the Supreme Court in a wide variety of
circumstances. See ORS 1.430 (judicial disability and conduct); ORS 9.536 (bar disciplinary proceedings); ORS 9.539
(bar admission and reinstatement); ORS 28.200 - 28.255
(certified questions of law); ORS 138.045(2) (certain pretrial orders in murder and aggravated murder cases); ORS
138.052 (automatic review in death sentence cases); ORS
147.537 (crime victim’s rights); ORS 147.539 (same); ORS
250.085 (ballot titles); ORS 250.131(estimates of financial
512 Lewis v. Dept. of Corrections
impact of state measures); ORS 251.235 (voters’ pamphlet
explanatory statements); ORS 305.445 (tax court judgments
and orders); ORS 469.403 (energy facility siting); ORS
662.120 (injunctions in labor dispute cases); ORS 758.017
(Public Utility Commission decisions of appeal of grant or
denial of certificate of public inconvenience and necessity by
the Energy Facility Siting Council). In addition, the Oregon
Rules of Appellate Procedure recognize that the legislature
may provide for direct review of statutes in this court without prior consideration by our intermediate appellate court.
See ORAP 12.40 (so recognizing).
The variety and scope of issues that this court is
required to decide without an initial decision by our intermediate appellate court shows that an initial decision by
the Court of Appeals should not be considered a prerequisite to our consideration of an unresolved legal issue. The
legislature created the Court of Appeals in 1969 primarily to address a growing appellate workload, not to give the
Supreme Court the benefit of an intermediate appellate
court’s “reasoned decision” before the Supreme Court considers and decides legal issues.
Before 1969, all appeals in Oregon were decided
by the Supreme Court, because there was no intermediate
appellate court. In 1969, the legislature created the Court of
Appeals and gave it jurisdiction over some categories of cases
that had been previously decided by the Supreme Court. See
Or Laws 1969, ch 198, § 1 (creating Court of Appeals); ORS
2.510(2) (1969) (giving the newly created Court of Appeals
exclusive jurisdiction to decide appeals in criminal cases,
family law cases, and other specified types of cases). At that
time, appeals in civil cases and other categories of cases
that were not within the Court of Appeals’ jurisdiction continued to be resolved directly by the Supreme Court without
prior consideration by the Court of Appeals. Thus, when the
legislature created the Court of Appeals in 1969, it split the
appellate workload between the two appellate courts, with
criminal, family law, and certain other cases decided by the
Court of Appeals—subject to discretionary review by the
Supreme Court—and civil and other cases decided by the
Supreme Court without any prior consideration by the Court
of Appeals.
Cite as 375 Or 500 (2026) 513
In 1977, the legislature amended the statutes to
create our current system, which gives the Court of Appeals
exclusive jurisdiction over all appeals, except where original
jurisdiction is conferred on the Supreme Court. See 1977 Or
Law ch 158, § 2. But, as noted, the legislature has conferred
original jurisdiction on the Supreme Court in a wide variety of cases. Thus, the legislature has essentially continued
a shared workload approach by conferring original jurisdiction on the Supreme Court by statute in many types of
cases, as noted above, with all other appellate cases decided
initially by the Court of Appeals.
That is consistent with how intermediate appellate
courts were designed to function nationwide. Oregon is one
of forty-two states that has an intermediate appellate court.
Aliza Milner, Written Opinions in State Intermediate Appellate
Courts: Current Landscapes and the AI Horizon, 38 Geo J Legal
Ethics 273, 282 (2025). Those intermediate appellate courts
“share a common purpose to ease appellate workflow[.]” Id. at
280. According to a report by the Council of Chief Judges of
the State Courts of Appeal, the increased appellate workflow
was caused by “ ‘population growth, expanded post-conviction
and appellate rights in criminal cases, increases in legislation and government regulation, expansion of appellate jurisdiction to include the review of agency decisions, and a societal trend toward resolving social and economic controversies
through the legal system.’ ” Id. at 280-81 (quoting Council of
Chief Judges of the State Courts of Appeal, The Role of State
Intermediate Appellate Courts 2 (2012)).
Intermediate appellate courts “face dual demands of
quality and efficiency.” Id. at 281. Those courts “are expected to process appeals more quickly than courts of last resort.”
Id. (citation omitted). In short, intermediate appellate courts “were created to be a filter, hearing all appellate cases, terminating most, and assisting analytically for the small percentage of cases that continue to the courts of last resort.” Id.
Consistent with that role, the Court of Appeals handles and decides many more cases each year than this court.5
5
There are 13 judges on the Court of Appeals, and 7 justices on the Supreme Court. ORS 2.540 (Court of Appeals); ORS 2.010 (Supreme Court). For each year from 2019 through 2023, there were roughly 2,500 to 3,300 cases filed in the 514 Lewis v. Dept. of Corrections
The Court of Appeals has historically resolved a significant
percentage of its cases by affirming trial court judgments
without issuing written opinions explaining why it was
affirming those judgments, a practice known as “affirming
without opinion” or AWOP.6 The court’s longstanding AWOP
practice meant that there was never any assurance that this
court would have the benefit of a reasoned decision from the
Court of Appeals before this court considers and decides a
legal issue.7
Given the history, roles, and the workloads of
Oregon’s two appellate courts, this court should not presume
that the Court of Appeals should decide in the first instance
every unresolved legal issue that may be presented in a case.
In this case, we should not presume that whether and how
the 2026 legislation might affect this rule challenge is an
issue that the Court of Appeals should decide before we consider petitioner’s rule challenge. This court can and should
Court of Appeals (2,768 in 2023); the court issued 718 precedential and nonprecedential written opinions in 2023. Hon. Meagan A. Flynn, Oregon Judicial Department, Chief Justice’s Recommended Budget for the 2025-27 Biennium 139 (2024) (2025-27 Chief Justice’s Recommended Budget). By contrast, there were about 700 to 900 cases filed in the Supreme Court every year during the same period (712 in 2023), including about 500 to 700 petitions for review of Court of Appeals’ decisions each year (517 in 2023). Id. at 130. The Supreme Court allowed review in about 6 to 8 percent of the petitions filed (40 in 2023) and issued about 50 to 70 written opinions each year during that five-year period (40 in 2023). Id.
6
The Court of Appeals’ AWOP practice accounted for 60 percent of the court’s decisions as recently as 2019. 2025-27 Chief Justice’s Recommended Budget at 133. The court has taken steps recently to reduce its AWOP rate. The court affirmed 473 cases without opinion in 2023, an AWOP rate of 39.7 percent. Id. at 136 For the first 8 months of 2024, the court’s AWOP rate was “at its lowest in the court’s modern history: 27 percent in 2024, through August 31.” Id. at 133.
7
The AWOP practice has been criticized because it “runs counter to wellestablished principles of procedural fairness and has the potential to undermine confidence in the court’s decision-making” process. 2025-27 Chief Justice’s Recommended Budget at 133. As one commentator explained, “the primary source of judicial legitimacy lies in reasoned appeals to appropriate legal authority.” Chad M. Oldfather, Writing, Cognition, and the Nature of the Judicial Function, 96 Geo L J 1283, 1333-34 (2008) (citation omitted). As a result, “we expect courts to tell us why a given result is correct and to do so with reference to appropriate legal materials.” Id. at 1334; see also Smith v. UHS of Lakeside, Inc., 439 SW3d 303, 313 (Tenn 2014) (“Providing reasons for a decision reinforces the legitimacy of the legal process which, in turn, promotes respect for the judicial system.” (Citation omitted.)); Bright v. Westmoreland County, 380 F3d 729, 732 (3d Cir 2004) (reasoning that judicial opinions “are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic”).
Cite as 375 Or 500 (2026) 515
decide on review whether the Court of Appeals decided petitioner’s rule challenge correctly, and how the 2026 amendments to ORS 137.320 and ORS 137.370(4) might affect that
decision, if at all.
Accordingly, I respectfully dissent from the decision
to vacate the decision of the Court of Appeals and remand
this case to the Court of Appeals.