Oregon Measure 78 clarifies: does Oregon have a judicial branch? A judicial department? Both? What does your state have?

We have been taught since grade school (hopefully) that there are “three branches of government” in the United States: the legislative, executive, and judicial. However, the Oregon Constitution and those in most states opt not to use the word “branch” or do so to reference some other concept. This fall voters in Oregon will get a chance via Measure 78 to redefine their existing “departments” as “branches”.

Background

The Oregon constitution adopted in 1857 in anticipation of statehood (in 1859) provided that

The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided. (Art. III, Sec. 1)

The current constitution makes references to “departments” including the “Legislative Department (Art. IV), the Executive Department (Art. V), the Administrative Department (Art. VI) and the “Judicial Department” (Art. VII (Amended)) or elsewhere (Art. VII (Original)) “The Judicial Department”. However, it also references the “Department of Corrections” (Art. I, Sec. 41(12)), “Military Departments” (Art. V, Sec. 13), and “the Oregon Department of Administrative Services” (Art. XI, Sec. 15(4)).

To make matters somewhat more interesting, “branch” or “branches” are used to indicate the individual chambers of the Oregon Legislative Department, consistent with how the U.S. Constitution refers to state legislatures (“The [U.S.] House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”).

Thus Art. II, Sec. 15 reads (emphasis added)

Method of voting in legislature. In all elections by the Legislative Assembly, or by either branch thereof, votes shall be given openly or viva voce, and not by ballot, forever; and in all elections by the people, votes shall be given openly, or viva voce, until the Legislative Assembly shall otherwise direct. —

The reference of “branch” as chambers of the Legislative Department is repeated elsewhere (emphasis added)

General powers of Legislative Assembly. Each house shall have all powers necessary for a branch of the Legislative Department, of a free, and independant [sic] State.  (Art. IV,  Sec. 17)

Duties of Secretary of State. The Secretary of State shall keep a fair record of the official acts of the Legislative Assembly, and Executive Department of the State; and shall when required lay the same, and all matters relative thereto before either branch of the Legislative Assembly… (Art. VI,  Sec. 2)

Method of amending Constitution. Any amendment or amendments to this Constitution may be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, (Art. XVII,  Sec. 1)

There is a reference to the “judicial branch” in Art. XI, Sec. 15(7)(e) with respect to the legislature’s ability to enact taxes and a three-fifths requirement for same. Section 15(7)(e) specifies that “This section shall not apply to…Any requirement imposed by the judicial
branch of government.”

Oregon HJR 44 (of 2011), now known as Measure 78, amends three of these references to correct spelling errors and change “department” to read “branch” (Art. III, Sec. 1 & Art. VI, Sec. 2) and to make “branch” read “chamber” (Art. IV, Sec. 2). So, Art. III, Section 1 would go from this:

Sec. 1. The powers of the Government shall be divided into three seperate departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.-

To this

Sec. 1. The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.

What do other states do?

Oregon’s constitution is not the only one that references the judicial “branch” as a “department” or alternates usage of the terms. A list of state constitutional references is below the fold.

State Judicial Branch Judicial Department
Alabama Art. XI § 219.04 Art. VI (title); Art. III § 42 & 43; Art. IV § 71 & 71.01;
Alaska
Arizona Art. VI (title); Art. III § 1; Art. IV § 1
Arkansas Art. 7 (title) as rewritten by Amendment 80; Art. 4 § 1; Art. 5 § 30;
California Art. VII § 4; Art. XIII A § 3; Art. XIII C § 1
Colorado Art. VIII § 3 Art. VI (title); Art. III; Art. V § 32 & 48; Art. XII § 7 & 13;
Connecticut Art. V. (title); Art. II as rewritten by Art. XVIII; Art. III § 11
Delaware
Florida Art. I § 24; Art. II § 3 & 19
Georgia Art. VI (title) Art. III § IX, Para. III
Hawaii Art. III § 16; Art. VI § 4; Art. VII, Sec 8
Idaho Art. V (title); Art. II § 1; Art. V § 12 & 13; Art. XXI § 1; Art. XXI § 4
Illinois Art. II § 1; Art. VII § 8
Indiana Art. 3 § 1
Iowa Art. V (title); Art III § 1
Kansas Art. 1 § 6
Kentucky Sections 114- 144 (title); Section 27
Louisiana Art. V (title); Art. II § 1
Maine Art. III § 1
Maryland Art. IV (title); Declaration of Rights Art. 8; Art. II § 17; Art. III § 52; Art. XVIII § 4 & 5
Massachusetts Art. II § 7; Art. XXX; Art. LXXXIX
Michigan Art. VI (title); Art. III § 2; Art. V § 20
Minnesota Art. III § 1
Mississippi Art. 1 § 1
Missouri Art. V (title); Art. II § 1; Art. IV § 12
Montana Art. III § 1; Art. V § 11
Nebraska Art. II § 1
Nevada Art. 6 (title); Art. 3 § 1
New Hampshire Art. 18-a & Art. 41
New Jersey Art. III, Para. 1
New Mexico Art. VI (title); Art. III § 1; Art. IV § 16; Art. VI § 30
New York
North Carolina Art. IV § 1 & 20
North Dakota Art. VI (title); Art. XI § 26 Art. XI § 4
Ohio
Oklahoma Art. VII (title); Art. IV § 1; Art. V § 56; Art. VII-B § 3
Oregon Art. XI, § 15 Art. VII (Original), § 1 (title); Art. VII (Amended), § 1 (title); Art. III, § 1
Pennsylvania Art. V § 10 & 18 Art. III § 11
Rhode Island Art. V
South Carolina Art. VI § 8 Art. V (title); Art. I § 8
South Dakota Art. V (title); Art. II; Art. XII § 3; Art. XXVI § 1 & 3; Art. XXVI, Sec 16
Tennessee Art. V (title); Art. II § 1
Texas Art. V § 31 Art. V (title); Art. III § 49; Art. XVI § 21 & 71
Utah Art. VIII (title); Art. V § 1; Art. VIII § 12
Vermont Sections 29 – 41 (title); Section 5
Virginia Art. I § 5 & Art. III, Sec 1
Washington Art. IV § 31 & Art. XXXII § 97
West Virginia Art. V § 1 & Art. VI § 51
Wisconsin Art. XIV §16 (title)
Wyoming Art. 5 § 6 Art. 5 (title); Art. 2 § 1; Art. 3 § 34; Art. 21 § 1 & 5

 

4 thoughts on “Oregon Measure 78 clarifies: does Oregon have a judicial branch? A judicial department? Both? What does your state have?

  1. Nice explanation of the wording changes, thank you. Unfortunately I don’t see any mention of the changes to “gender-neutral” language which will be implemented also, could you make an update?

  2. Thanks for the feedback Betsy. As you note, Measure 78 does also make some additional changes to the Oregon state constitution with respect to gender neutral language, plus spelling and grammar. However, because Gavel to Gavel examines legislation affecting the courts, I only focused on the judicial department/branch portions of the Measure.

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  4. Pingback: Civics Lession: Does Oregon Have Three "Branches" of Government? | Oregon Legal Research Blog

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