text:
    STATE of Oregon, Petitioner on Review, v. Jemaell Diamond RILEY, aka Jemaell Diamondomi Riley, Respondent on Review.
    CC 140431549 (SC S065640)
    Supreme Court of Oregon.
    Argued and submitted November 5, 2018. May 31, 2019
    Jacob Brown, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Nelson, and Garrett, Justices, and Baldwin, Senior Justice pro tempore.
    BALDWIN, S. J.
    Defendant was convicted of committing multiple crimes with two accomplices. His convictions for six of those counts depended almost entirely on the testimony of his accomplices, who had entered into a cooperation agreement with the state. Defendant contended that he was entitled to a judgment of acquittal on those counts, because the accomplice testimony had not been corroborated by "other evidence" as required by ORS 136.440(1). The Court of Appeals agreed with defendant and reversed his convictions on those counts. State v. Riley , 288 Or. App. 807, 407 P.3d 946 (2017). On review, we affirm the Court of Appeals. We reverse the relevant portions of the circuit court's judgment of conviction and remand to that court for further proceedings.
    I. BACKGROUND
    The legal issue in this case turns on the proper interpretation of ORS 136.440(1). That statute provides:
    "A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances of the commission."
    The issue for determination is whether the evidence was legally sufficient, as required by that statute, to support defendant's convictions for several of the charged crimes. Specifically, we must decide whether the accomplice testimony against defendant had been sufficiently corroborated by other evidence tending to connect defendant with those offenses.
    On denial of a motion for judgment of acquittal, we construe all facts in favor of the state. See, e.g. , State v. Garcia , 361 Or. 672, 674, 399 P.3d 444 (2017). The following facts are supported by testimony of defendant's accomplices. However, under ORS 136.440(1), those facts are not legally sufficient to convict defendant unless we conclude that they were sufficiently corroborated by "other evidence."
    Defendant was arrested on April 16, 2014. Defendant, Paul Ropp, and Steven Young had broken into a uniform store and stolen ballistic vests and police uniforms. They left in an SUV and were pursued by police. After a chase, defendant and his accomplices crashed the SUV. Defendant and Young were pulled from the vehicle and arrested. Ropp fled on foot with an assault rifle; he shot a police officer and killed a police dog before being arrested. For purposes of our review, it is undisputed that, two days earlier, the group had been involved in another crime. Defendant, Ropp, and Young had scaled a fence and broken into two Comcast vans, stealing various items.
    After their arrests, Ropp and Young negotiated cooperation agreements with the state. At defendant's trial, they offered testimony that the group-including defendant-had engaged in a much larger set of crimes. Two of those criminal plans are at issue here.
    The first criminal plan involved an attempted kidnapping and robbery. According to the accomplices, the group had planned to rob a jewelry store chain. They intended to kidnap the manager of the chain and force him to open safes at various store locations. The group followed the manager on several occasions to learn his habits. Then they broke into an animal shelter hoping to find an injectable sedative to aid in the kidnapping. They did not locate a sedative, but they stole syringes and uniforms. They obtained a van and removed the middle seat, tying zip ties and rope to the seat anchors so they could secure the manager. They planned to wait in a parking deck near the manager's car and grab him after setting off smoke bombs. In the end, the plan fell apart at the last minute-and only after a smoke bomb had been detonated-because a family had entered the parking deck elevator with the manager.
    The second criminal plan was an attempted robbery of a T-Mobile store. The armed group planned to enter the store at closing time and burn the safe open with thermite. The group waited outside the store in an SUV-the one that would be wrecked early the next morning. When a bicyclist arrived at a nearby business, however, the group abandoned the plan and drove away. The accomplices testified that they then went to the uniform store to carry out the burglary that ultimately led to their arrest.
    Defendant was charged with 18 counts of various crimes. One count was later dismissed; defendant was convicted on the remaining 17 counts. Of those 17 counts, only six are at issue here. Four of those counts related to the attempted jewelry store robbery and kidnapping, and two counts related to the T-Mobile episode. At the end of the state's case, defendant moved for judgment of acquittal on those six counts. He argued that the only evidence connecting him to those crimes was the testimony of Ropp and Young and that there was insufficient evidence to corroborate their testimony as required by ORS 136.440(1). The trial court denied defendant's motion for judgment of acquittal and convicted him on all of the 17 remaining counts.
    The state argues that the ruling below was correct because the accomplice testimony had been sufficiently corroborated under ORS 136.440(1). It itemizes the following evidence as corroborating the testimony of the accomplices and argues that this evidence supports the trial court's ruling: (1) the SUV itself in which defendant was arrested; (2) firearms (defendant had a pistol on his person, and other weapons had been found in the SUV); (3) walkie-talkies (when Young was arrested in the SUV, he had a walkie talkie on his person); (4) thermite (the SUV contained thermite and magnesium strips that could be used to ignite the thermite); and (5) an animal shelter jacket and syringes.
    On defendant's appeal to the Court of Appeals, however, that court agreed with defendant. Riley , 288 Or. App. at 807, 407 P.3d 946. Explaining that the statute had been materially unchanged since it was originally enacted, (citing General Laws of Oregon, Crim Code, ch. XXII, § 217, p. 478 (Deady 1845-1864)), the court stated that the statute "reflects the long-standing policy that the testimony of one implicated in the crime is inherently untrustworthy." 288 Or. App. at 812, 407 P.3d 946. Corroboration requires only "slight or circumstantial evidence" that connects the defendant with the crime. Id . at 812, 407 P.3d 946 (internal quotation marks and citation omitted). The corroborative evidence must connect the defendant with the charged crime, however, and it must do so in a way that does not depend on reference to the accomplice's testimony. Id . at 813-14, 407 P.3d 946.
    The Court of Appeals then turned to the evidence that the state contended was corroborative. The court noted that firearms, syringes, and thermite were lawful items that, in the absence of some reference to the accomplice testimony, did not connect defendant with the charged crimes. Id . at 816, 407 P.3d 946. The animal shelter jacket was proceeds of a crime, but not one of the crimes with which defendant was charged, and the court concluded that it did not independently corroborate the accomplices' testimony about the jewelry store attempted kidnapping (that is, an animal shelter jacket had no self-evident connection to an attempted kidnapping of a jewelry store manager; it had significance only in light of the accomplices' testimony). Id . at 816-18, 407 P.3d 946. As for the T-Mobile attempted robbery, the court concluded that there was no evidence to corroborate that any crime had occurred at all. Id . at 819-21, 407 P.3d 946. The court reversed the convictions on those counts, remanding for resentencing. See id . at 809 n. 1, 407 P.3d 946 (noting that resentencing was necessary for two separate reasons: to address reversed convictions, and to correct conceded error in trial court's failure to merge several counts).

      Kistler, J., retired December 31, 2018, and did not participate in the decision of this case. Duncan, J., did not participate in the consideration or decision of this case.

   On review, the state challenges any interpretation of ORS 136.440(1) that requires that corroborating evidence be independent of accomplice testimony. The state argues that any reference to such a strict requirement in this court's case law was not necessary to the decisions reached in those cases and, in the alternative, if this court has adopted the independent evidence rule, that we should nonetheless consider the wisdom of that rule and determine whether it should give way to an approach that permits reliance on accomplice testimony "to some extent" to show corroboration under the circumstances of this case. The state concedes that the corroboration requirements of ORS 136.440(1) are not met in this case if that statute does include an independent evidence rule.

After examining our case law, we conclude that the independent evidence rule is well-established as legal precedent in Oregon law and that the state has not met its burden to demonstrate that the rule should not have been adopted by this court.

II. ANALYSIS

To aid us in our analysis, we begin with this court's recent decision in State v. Washington , 355 Or. 612, 330 P.3d 596, cert. den. , --- U.S. ----, 135 S.Ct. 685, 190 L.Ed.2d 397 (2014). In Washington , we rejected the defendant's argument that ORS 136.440(1) requires the state to prove a degree of corroborating evidence that would be inconsistent with innocence. Before reaching that conclusion, we summarized the requirements of ORS 136.440(1) as follows:

"This court has long held that
" '[t]he corroboration need not be of itself adequate to support a conviction *** "Any corroborative evidence legitimately tending to connect a defendant with the commission of the crime may be sufficient to warrant a conviction, although standing by itself it would be only slight proof of defendant's guilt and entitled to but little consideration, and even though it is not wholly inconsistent with the innocence of the defendant.["]'
" State v. Reynolds , 160 Or. 445, 459, 86 P.2d 413 (1939). Consistently with those principles, the court more recently summarized the requirements of ORS 136.440 as follows:
" 'By its terms, ORS 136.440(1) requires only that the corroborating evidence tend to connect the defendant with the commission of the offense, here, aggravated murder. That statute does not require corroboration of a particular theory of the commission of the offense.'
" 'It is not necessary that the corroborating evidence be direct and positive; it may be circumstantial. Nor is it necessary that there be independent corroborating evidence with respect to every material fact necessary to be established to sustain a conviction for the commission of a crime. Where there is any evidence apart from that of the accomplice tending to connect the defendant with the commission of the crime, the question of whether the accomplice's testimony is corroborated is one for the trier of fact.'
" State v. Walton , 311 Or. 223, 242-43, 809 P.2d 81 (1991) (citations omitted; emphasis in original). To be sure, evidence of a defendant's association with an accomplice at a particular location, by itself , is insufficient to satisfy the corroboration requirement of ORS 136.440. State v. Carroll , 251 Or. 197, 200, 444 P.2d 1006 (1968). But such evidence still may be considered in conjunction with other evidence that, taken as a whole, tends to connect the defendant with the commission of the offense. See id ."

Washington , 355 Or. at 620-21, 330 P.3d 596 (alterations and emphasis in original). With those principles in mind, we now proceed to the state's arguments in this case.

We first address the contention that the independent evidence rule is not established as Oregon precedent. Accordingly, we turn to our most relevant case law stating that other evidence tending to connect a defendant to an offense must be independent of accomplice testimony. The first Oregon case expressly articulating a requirement that other evidence connecting a defendant to an offense be independent of accomplice testimony is State v. Scott , 28 Or. 331, 42 P. 1 (1895). In Scott , the defendant was convicted of adultery when the only evidence additional to accomplice testimony demonstrated merely an opportunity for the defendant to have committed the adulterous act. The court reversed the defendant's conviction, concluding that the state did not "corroborate the material issue, or present facts from which the commission of the crime can reasonably be inferred, and hence, under the statute, was insufficient to support the conviction." Id. at 339, 42 P. 1.

In reaching its conclusion, the court quoted with approval the independent evidence rule as set out in an authoritative treatise on criminal evidence:

" 'What appears to be required,' says Roscoe in his work on Criminal Evidence, *** 'is that there shall be some fact deposed to, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the prisoner is implicated in it.' "

Scott , 28 Or. at 337, 42 P. 1. The court stated that the testimony of the accomplice regarding the alleged adulterous act was insufficient to support a conviction because the testimony was "not corroborated by any circumstance except that she and the defendant were seen on the same train at Eugene." Id. at 339, 42 P. 1.

In State v. Brake , 99 Or. 310, 195 P. 583 (1921), the court discussed the statutory requirements for the corroboration of accomplice testimony in some detail. At that time, the pertinent statute (Oregon Laws, title XVIII, ch. IX, § 1540 (1920)) was nearly identical to ORS 136.440(1). The court observed that Oregon's accomplice statute,

"like the statutes in many other states, is in effect a legislative declaration that it is dangerous to permit convictions upon the uncorroborated testimony of the accomplice, and for that reason the statute in substance provides that juries shall not convict any accused person upon the uncorroborated testimony of an accomplice, even though they unqualifiedly believe the testimony of the accomplice."

Id. at 313, 195 P. 583 (emphases omitted).

As pertinent here, the Brake court stated that the "precise language" of the accomplice statute is "other evidence" and that "the corroborative evidence must be independent of the testimony of the accomplice." Id. Under the statute, "a conviction cannot be sustained if in the end it is in truth rested exclusively upon accomplice testimony." Id . at 314, 195 P. 583. Other evidence is required by the statute, "so that it can in truth be said that his conviction is not based entirely upon the evidence of the accomplice." Id.

We observe that the statutory text of the accomplice statute considered in Brake treats "other evidence" as being in opposition to "the testimony of an accomplice." Because the statute was originally passed in 1853, the relevant dictionary at that time was Noah Webster's original dictionary published in 1828. The relevant definition of "other" in that dictionary is: "Not the same; different; not this or these." Noah Webster, 2 An American Dictionary of the English Language (unpaginated) (1828) That definition supports the Brake court's conclusion that, because "[t]he language of the statute is 'other evidence,' " therefore "the corroborative evidence must be independent of the testimony of the accomplice." 99 Or. at 313, 195 P. 583.

In Reynolds , the defendant was convicted of damaging the property of a business owner because the owner was not compliant with union demands. The defendant was implicated in the crime by Newland, Carson, and Moore, who had "been engaged in similar crimes of violence incident to labor controversies" and who were referred to by the court as "law violators for hire." 160 Or. at 448-49, 86 P.2d 413. The court reversed defendant's conviction because there was no independent evidence additional to the detailed testimony of the accomplices connecting defendant to the crime. Defendant's complicity was "not shown by the mere fact that he was secretary of the Central Labor Council and secretary of the Teamster's Union at Eugene." Id. at 470, 86 P.2d 413.

The Reynolds court extensively reviewed prior case law discussing the requirements of the accomplice statute and concluded: "In these cases, and in every other Oregon case where a conviction was sustained upon the evidence of an accomplice, the corroboration disclosed facts and circumstances which, independently of the accomplices' testimony, were incriminating in their nature." Id. at 461, 86 P.2d 413. The court also cited to additional authority emphasizing that the connection of the defendant to the crime cannot be made by other evidence when the probative value of that evidence depends on certain testimony of an accomplice. "Testimony which tends to make the connection only when supplemented by certain testimony of the accomplice does not satisfy the law." Id. at 458, 86 P.2d 413 (internal quotation marks and citation omitted; emphasis in original).

Based on Scott , Brake , and Reynolds , we readily conclude that the independent evidence rule is binding precedent. We also reject the state's subsidiary argument that this court abandoned the independent evidence rule in State v. Caldwell , 241 Or. 355, 405 P.2d 847 (1965).

In Caldwell , the defendant was convicted of unarmed robbery at a motel based on the testimony of accomplices who met with the defendant at a restaurant immediately prior to the accomplices committing the actual robbery. The state acknowledges that the Caldwell court stated that corroborative evidence "must be independent of any of the testimony of the accomplices" and that such evidence is insufficient if it "must be supplemented by testimony of the accomplices in order to connect the defendant with the crime." Id. at 360, 405 P.2d 847. The state maintains, however, that the Caldwell court, in fact, had relied on the accomplice testimony to determine the significance of the corroborating evidence.

We disagree. The independent corroborating evidence against the defendant included (1) that the defendant's wife, who was known to the victim, had arranged with the victim for one of the robbers to be admitted into his motel room; (2) that a man identifying himself as the defendant had called police to report that a robbery was in the process of being planned at the restaurant, but that he did not want to participate; (3) that the defendant had been at that restaurant at that time with his wife and the actual robbers; and (4) that the robbery had been committed later that night, after the party had left the restaurant. See id . at 357-60, 405 P.2d 847. The court resolved the case on the ground that that evidence, though circumstantial, was enough to corroborate the accomplice testimony against the defendant. See id . at 361, 405 P.2d 847.

We now turn to the state's alternative argument that Scott , Brake , and Reynolds were wrongly decided. The state essentially argues that the independent evidence rule is not a correct interpretation of ORS 136.440(1) and that the rule was inadequately considered by this court when adopted. The state urges this court to reinterpret the statute using the methodology of PGE v. Bureau of Labor and Industries , 317 Or. 606, 610-12, 859 P.2d 1143 (1993), and State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009), and to conclude that the statute requires that corroborating evidence need only "strengthen[ ] [accomplice] testimony by contributing to linking the defendant with the offense."

We decline the state's invitation to undergo a PGE -style examination of ORS 136.440(1). As we have stated in prior cases, this court's decisions interpreting a statute, even prior to PGE , remain good law. "The absence of a PGE -style examination of legislative intent does not deprive a prior statutory interpretation of its ordinary effect as a precedent. Consequently, a decision of this court interpreting a statute can be neither discounted nor disregarded merely because it predates PGE ." Mastriano v. Board of Parole , 342 Or. 684, 692, 159 P.3d 1151 (2007) (footnote omitted).

Given the importance of stare decisis to our judicial decision-making process, this court presumes that its prior decisions have been properly decided. We have explained that stare decisis applies to our prior decisions interpreting statutes. Farmers Ins. Co. v. Mowry , 350 Or. 686, 697, 261 P.3d 1 (2011) ; see also Halperin v. Pitts , 352 Or. 482, 492, 287 P.3d 1069 (2012) (citing Mowry and stating that "[t]he court may consider itself bound to follow a prior construction [of a statute] as a matter of stare decisis "). Thus, the state carries a substantial burden to persuade us that the independent evidence rule should be abandoned. See City of Seattle v. Dept. of Rev. , 357 Or. 718, 730, 357 P.3d 979 (2015) (due to principle of stare decisis , "taxpayers shoulder a substantial burden in attempting to persuade us that Power Resources [Cooperative v. Dept. of Rev. , 330 Or. 24, 996 P.2d 969 (2000) ] was incorrectly decided").

As previously noted, numerous jurisdictions have passed statutes similar to ORS 136.440(1) in abrogation of the common law. According to Professor Wigmore, the independent evidence rule is "assumed in all the cases" interpreting the statutes in these jurisdictions. John Henry Wigmore, 7 Evidence in Trials at Common Law § 2059 n. 1, 421 (James H. Chadbourn rev. 1978). As to the nature of corroborative evidence required under such statutes, Wigmore has observed: "It is clear, as to the testimonial source of the corroboration, that it must be independent of the accomplice himself; it must rest on other than his credit." Wigmore, 7 Evidence § 2059 at 421 (emphasis and footnote omitted). Among the authorities cited by Wigmore in support of his view is this court's decision in Reynolds . Id. at 421 n. 1.

Our review of case law from other jurisdictions confirms Wigmore's observation that nearly all jurisdictions interpreting their own accomplice statutes have adopted an independent evidence rule. See, e.g., People v. Perez , 4 Cal. 5th 421, 452, 229 Cal. Rptr. 3d 303, 332, 411 P.3d 490, cert. den. , --- U.S. ----, 139 S.Ct. 415, 202 L.Ed.2d 321 (2018) ; Crawford v. State , 294 Ga. 898, 900-01, 757 S.E.2d 102 (2014) ; State v. Little , 402 S.W.3d 202, 212 (Tenn. 2013) ; Peeler v. State , 326 Ark. 423, 428, 932 S.W.2d 312 (1996) ; see also Brown v. State , 281 Md. 241, 245-46, 378 A.2d 1104 (Ct. App. 1977) (noting that 17 states, including Oregon, have adopted statutes requiring accomplice corroboration and two states, Maryland and Tennessee, have adopted that requirement by judicial precedent; court required independent evidence); State v. Fowler , 213 Tenn. 239, 245-46, 373 S.W.2d 460 (1963) (requiring independent evidence for corroboration); 23A CJS Criminal Procedure § 1424 (March 2019 update) ("the additional evidence needed to corroborate the testimony of an accomplice must be independent of the accomplice's testimony").

We also note that the California Supreme Court recently affirmed the vitality of the independent evidence rule based on that state's accomplice statute:

"[A]n accomplice's testimony is not corroborated by the circumstance that the testimony is consistent with the victim's description of the crime or physical evidence from the crime scene. Such consistency and knowledge of the details of the crime simply proves the accomplice was at the crime scene, something the accomplice by definition admits . Rather, under section 1111, the corroboration must connect the defendant to the crime independently of the accomplice's testimony. *** And corroborating evidence may not come from, or require aid or assistance from, the testimony of other accomplices or the accomplice himself."

People v. Garton , 4 Cal. 5th 485, 518, 229 Cal.Rptr.3d 624, 412 P.3d 315, cert. den. , --- U.S. ----, 139 S.Ct. 417, 202 L.Ed.2d 322 (2018) (emphasis in original; internal quotation marks and citations omitted). Other than New York (see 365 Or. at 56 n. 6, 443 P.3d at 617 n. 6), all other jurisdictions with accomplice statutes appear to have continued to apply the independent evidence rule.

In attempting to persuade us that this court was wrong in adopting the independent evidence rule, the state argues that, "most fundamentally, the 'independent' evidence principle is irreconcilable with the statutory text [of ORS 136.440(1) ]." We disagree. As we have explained, the Brake court's interpretation of "other evidence" in ORS 136.440(1) was consistent with the dictionary meaning of "other" in use when the statute was first enacted in 1853. Webster's Dictionary (1828) ("Not the same; different; not this or these."). That construction is also consistent with the Brake court's recognition of the legislative policy behind the statute:

"[L]ike the statutes in many other states, [Oregon's accomplice statute] is in effect a legislative declaration that it is dangerous to permit convictions upon the uncorroborated testimony of the accomplice ***."

Brake , 99 Or. at 313, 195 P. 583 (emphasis omitted). Accordingly, we conclude that the state has not met its substantial burden to persuade us that the independent evidence rule is an incorrect interpretation of ORS 136.440(1).

In this case, the state has conceded that the corroboration requirement of ORS 136.440(1) is not satisfied under an independent evidence rule. Since the accomplices already knew the details of the crimes, evidence confirming those details does not corroborate that the defendant participated in those crimes. See ORS 136.440(1) (requiring that evidence must "connect the defendant with the commission of the offense"; evidence does not sufficiently corroborate accomplice testimony if it "merely shows the commission of the offense or the circumstances of the commission"); see also Wigmore, 7 Evidence § 2059 at 423-24 (quoting authorities to same effect). Further, given that the items of personal property in question were all in the SUV, the presence of those items merely confirms that the accomplices had attempted the crimes. Ropp and Young admitted committing the T-Mobile attempted crimes and the jewelry store attempted kidnapping, so the presence of the items in the SUV-which Ropp was driving-does not tend to show that defendant also participated in those crimes. Without reference to the accomplice testimony, the available evidence does not "connect the defendant with the commission of" either the attempted jewelry store robbery and kidnapping or the attempted T-Mobile robbery. ORS 136.440(1) (emphasis added). The trial court accordingly erred in denying defendant's motion for judgment of acquittal on those counts.

The decision of the Court of Appeals is affirmed. The judgment of conviction of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings.

      For ease of reference, we refer to that requirement as the "independent evidence rule."

      At common law, the testimony of an accomplice-even if not corroborated-could be sufficient to support a criminal conviction if the evidence satisfied the standard of proof of guilt beyond a reasonable doubt. State v. Brake , 99 Or. 310, 313, 195 P. 583 (1921). The corroboration of accomplice testimony "was widely understood (except by a few courts) as amounting to no rule of evidence, but merely to a counsel of caution given by the judge to the jury." See John Henry Wigmore, 7 Evidence in Trials at Common Law § 2056, 408 (James H. Chadbourn rev. 1978) (emphasis in original; footnotes omitted). However, over time, "in nearly half of the jurisdictions of the United States a statute has expressly turned this cautionary practice into a rule of law." Id. at 414 (footnote citing statutes and case law omitted).

      The version of the statute then in effect provided:
      " 'A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely show the commission of the crime, or the circumstances of the commission.' "
      See 99 Or. at 312-13, 195 P. 583 (quoting section 1540). As suggested by the Court of Appeals, ORS 136.440(1) has remained nearly the same since the statute was enacted in 1853. See Or. Laws 1854, ch. 36, § 7, p. 252. The only substantive change that the legislature has made since its adoption was to add a definition of "accomplice" when the statute was amended as part of the Oregon Criminal Procedures Code Revision. Or. Laws 1973, ch. 836, § 239.

      The state acknowledges that a reference to a requirement that corroborating evidence be independent of accomplice testimony appears in numerous other decisions of this court following Scott , Brake , and Reynolds . See , e.g. , State v. Clipston , 237 Or. 634, 636, 392 P.2d 772 (1964) ; State v. Oster , 232 Or. 389, 391, 376 P.2d 83 (1962) ; State v. Brazell , 126 Or. 579, 580-81, 269 P. 884 (1928) ; State v. Brown , 113 Or. 149, 155, 231 P. 926 (1925) ; State v. Long et al ., 113 Or. 309, 311-12, 231 P. 963 (1925).

      See Wigmore, 7 Evidence § 2056 at 414.

      The only exception we have found is New York, where the independent evidence rule was adopted in People v. Hudson , 51 N.Y.2d 233, 238, 433 N.Y.S.2d 1004, 414 N.E.2d 385 (1980), but later abandoned in People v. Reome , 15 N.Y.3d 188, 194, 906 N.Y.S.2d 788, 933 N.E.2d 186 (2010) (rejecting Hudson and holding that "harmonizing evidence may provide a substantial basis for crediting accomplice testimony").


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF A. S., a Youth.
    State of Oregon, Respondent, v. A. S., Appellant.
    A163686
    Court of Appeals of Oregon.
    Argued and submitted April 26, 2018, affirmed March 20, 2019
    Adrian T. Smith, Bend, argued the cause and filed the reply brief for appellant. On the opening brief was Kevin J. Ellis.
    Robert W. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and Linder, Senior Judge.
   LINDER, S. J.

In this juvenile delinquency case, the juvenile court found youth to be in the court's jurisdiction based on youth's unlawful possession of a firearm. ORS 166.250. On appeal, youth challenges the juvenile court's denial of his motion to suppress evidence of a gun that police found in youth's bedroom when they searched it based on consent given by youth's grandmother, who owned the home where youth was living. Youth argues that his grandmother could not authorize the search as against him because he was present at the time and objected to it. As we will explain, we conclude that the grandmother's consent was valid and, as a result, the search was lawful. We therefore affirm.

Although the parties disagree on the legal significance of the facts in the record, the facts themselves are not disputed. In all events, we state the facts and all reasonable inferences that the record supports in the light most favorable to the juvenile court's denial of the motion to suppress. State v. Beylund , 158 Or. App. 410, 416-17, 976 P.2d 1141, rev. den. , 328 Or. 594, 987 P.2d 515 (1999) (We defer to the trial court's express and implicit findings of fact, but whether those facts establish authority to consent to search is a legal question.).

At the time of the events involved in this case, youth was 16 years old and was living with his grandmother in a home that she owned. Youth, who had his own bedroom in the home, had lived there for two and one-half years. Youth helped with chores by "taking out the garbage, cleaning his own room," and otherwise doing "those kind of things." Youth paid no rent of any kind, however, and his grandmother required him to follow the rules that she set. Youth resisted the idea that his grandmother could go into his room at will, stating "emphatically" in conversations with her that it was his room. But his grandmother, just as emphatically, told him that "it's my house. If I want to go in there, I will go in there." And she did. The door was never locked. Youth's grandmother did not need his permission to enter his bedroom. She regularly went into youth's room to, among other things, wake him up for school, make sure windows were closed, and clean. Throughout the time that youth lived there, his grandmother's position was:

"[I]f there's reasons for me to go in [youth's bedroom], I will go in. He's still in our home and still 16 and I will go in if I need to." Even so, she tried to "respect his space" by, for example, knocking on the door if it was shut before entering and not cleaning or picking up in the room right after waking youth if it disturbed him at that time. On those occasions, she would come back later, at which point she would clean and pick up things in the room as she chose.

The search in this case occurred after Officer Culp, a police officer who is also a high school resource officer, received a report that youth and one of his friends (Cameron, a 19-year-old former student) showed up with handguns the day before at an off-campus fight. Culp and two other officers went to youth's home to investigate. The grandmother allowed the officers into the house. Then she walked directly back to youth's room and entered, permitting the officers to enter the bedroom with her. At the time, youth, Cameron, and a third friend (a 16 year old) were all asleep in youth's room. Culp remained in the bedroom with youth, while the two other officers talked to his friends in other parts of the house. Culp asked youth for permission to search the room, but youth said he did not want the officer to search. Culp then said he would ask youth's grandmother for permission. Youth responded that if he told his grandmother not to allow the officer search, she would refuse. Before the officer could "get the words out" to ask the grandmother for her consent, she walked into the room and, having heard the officer ask for permission to search, said, "Go, look through whatever you want." The grandmother believed that she had the right to permit the search, explaining at the suppression hearing that "[i]t was my home and apparently there was something going on that shouldn't have been going on in my home and I wanted it resolved." Culp found a firearm in youth's room on an open shelf of an entertainment center, beneath a towel.

Youth was charged with committing acts that, if committed by an adult, would constitute unlawful possession of a weapon under ORS 166.250. At trial, relying on both state and federal constitutional grounds, youth moved to suppress the evidence of the firearm seized in the search. In support of his motion, youth argued that his grandmother's consent to search was invalid as against him, because youth was physically present and expressly objected to the search. In response, the state argued that youth's grandmother, throughout the time that youth lived there, made it clear that it was "her house, her rules." As a result, the state contended, youth's grandmother retained full control over the premises, including youth's room and, therefore, had lawful authority to consent to the search despite youth's objection.

At the conclusion of the hearing on the motion to suppress, the juvenile court denied the motion, explaining:

"[T]he situation here is that the owner of the property, not even a landlord, basically a grandmother who was letting her grandson live in her home and who had asserted authority always over the room and being able to go in and out freely, really has a superior decision-making authority.
"I don't think it matters [that] the youth was there at the time that she gave consent. So I'm going to deny the motion to suppress."

After that ruling, the case proceeded to trial, and the juvenile court found youth to be in the jurisdiction of the court based on his unlawful possession of a firearm. This appeal followed. On appeal, although their positions are further developed and refined, the parties largely renew the arguments that they made to the juvenile court.

The pertinent state and federal law principles are sufficiently parallel that we describe them in tandem. Under both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, a warrantless search is per se unlawful unless it falls into one of a few specifically established and limited exceptions to the warrant requirement. Katz v. United States , 389 U.S. 347, 357, 88 S. Ct. 507, 19 L.Ed. 2d 576 (1967) (so holding under Fourth Amendment); State v. Bonilla , 358 Or. 475, 480, 366 P.3d 331 (2015) (same under Article I, section 9 ). Consent is one of those well-recognized exceptions. Katz , 389 U.S. at 515 n. 22, 88 S.Ct. 507; Bonilla , 358 Or. at 480, 366 P.3d 331. Consent, however, is not limited to consent given by the person against whom evidence is offered (e.g. , a defendant in a criminal case or a youth in a delinquency proceeding). Rather, valid consent can be given by a third party if that person has control over access to or use of the premises or effects to be searched. United States v. Matlock , 415 U.S. 164, 170-71, 94 S. Ct. 988, 39 L.Ed. 2d 242 (1974) (so holding under Fourth Amendment); Bonilla , 358 Or. at 480-81, 366 P.3d 331 (same under Article I, section 9). Under the Fourth Amendment, the requisite authority can be actual or apparent. Matlock , 415 U.S. at 170-71, 94 S.Ct. 988 (actual authority); Illinois v. Rodriguez , 497 U.S. 177, 187-89, 110 S. Ct. 2793, 111 L.Ed. 2d 148 (1990) (apparent authority). Under Article I, section 9, only actual authority will suffice. Bonilla , 358 Or. at 486-87, 492, 366 P.3d 331.

Issues of the validity of third-party consent arise frequently in the context of individuals who live together in a common household. There, under the "common authority" doctrine, the general rule is that any of the joint users or co-occupants of the common premises has actual authority to consent to a search. That rule was first announced as a Fourth Amendment principle in Matlock , 415 U.S. at 170-71, 94 S.Ct. 988 . See also State v. Carsey , 295 Or. 32, 44, 664 P.2d 1085 (1983) (discussing and applying Matlock holding). Our court later adopted the federal rule under Article I, section 9. State v. J. D. H. , 294 Or. App. 364, 371 n. 4, 432 P.3d 297 (2018) (so observing; citing representative cases). As Matlock explained, the common authority rule derives from the nature of the risks inherently assumed by co-use or co-occupancy:

"Common authority is, of course, not to be implied from the mere property interest a third party has in the property. * * * [It] rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."

Matlock , 415 U.S. at 171 n. 7, 94 S.Ct. 988 ; accord. State v. Kurokawa-Lasciak , 249 Or. App. 435, 440, 278 P.3d 38, rev. den. , 352 Or. 378, 290 P.3d 814 (2012) (rationale for general rule, both under federal and state law, is that "one joint occupant of premises has for most purposes assumed the risk that another occupant might permit a search of those premises").

But the general rule is just that: a general rule. Consistently with its rationale, the presumption of common authority gives way if co-occupants, instead of exercising joint access or control of the premises for most purposes, have a mutual understanding or agreement giving one of them exclusive authority over the premises or the portion searched. See generally Kurokawa-Lasciak , 249 Or. App. at 440-41, 278 P.3d 38 (stating principal and discussing representative cases). Likewise, the presumption gives way if, based on the co-occupants' respective relationships to the property, one of them has superior authority to control the premises and has not ceded control to the co-occupant. See, e.g. , State v. Voyles , 280 Or. App. 579, 586-87, 382 P.3d 583, rev. den. , 360 Or. 751, 388 P.3d 718 (2016) (person who boarded horses on another's property did not acquire authority co-equal to property owner's over commonly used portion of premises because property owner had not ceded such authority to boarder); State v. Wrenn , 150 Or. App. 96, 103-04, 945 P.2d 608 (1997) (homeless person permissively sleeping on couch for a few days lacked sufficient relationship to premises to have common authority to consent to search of kitchen area). And the United States Supreme Court has adopted a further exception, one not yet adopted under Article I, section 9 : If one joint occupant is physically present and objects to a search of the commonly used premises, police cannot rely on the consenting occupant; the objection of the co-occupant prevails. Georgia v. Randolph , 547 U.S. 103, 113-20, 126 S. Ct. 1515, 164 L.Ed. 2d 208 (2006) ; see also State v. Caster , 236 Or. App. 214, 220-25, 225 n. 4, 234 P.3d 1087, rev. den. , 349 Or. 479, 246 P.3d 744 (2010) (analyzing and applying rule under Fourth Amendment; no parallel argument advanced under Article I, section 9 ).

Finally, cases involving cohabitating "parents or other relatives pose unique problems" in the analysis. Carsey , 295 Or. at 42, 664 P.2d 1085. As Carsey explained, those problems

"stem[ ] from the fact that families ordinarily have common use of many household areas; that it is normal for the owner of a home to exercise control over all areas of the home, or if control is not actually exercised or is seldom exercised, that the right to exercise control over all areas exists; and that parents, by reason of the parent-child relationship, have a measure of control over all aspects of their children's lives, activities, effects, and living quarters."

Id . Thus, in the context of family members sharing a common household, competing considerations come into play, particularly where minor and dependent family members are concerned. The shared use of most of the premises provides a basis to presume common authority for any family member to consent to a search, while the rights and responsibilities of the adults, either as property owners or parents or both, give rise to superior authority vís-á-vís minors residing in the household. The analysis of authority to consent in family households that include adults and minors therefore does not lend itself to per se rules. See, e.g. , Carsey , 295 Or. at 42, 664 P.2d 1085 (no per se rule that parents and grandparents have authority to consent to search of areas of home occupied by minor or dependent family members); State v. Will , 131 Or. App. 498, 505, 885 P.2d 715 (1994) (no per se rule that minors have common authority to permit police to enter the shared family home). Instead, the analysis is necessarily fact specific and depends significantly on the extent to which the adults in a family home, expressly or through some mutual understanding, have agreed to a minor's exercise of common or exclusive control over areas of the shared household. See, e.g. , Carsey , 295 Or. at 36, 42, 664 P.2d 1085 (grandparents had no authority to consent where they had an "unspoken agreement" that grandson could exercise exclusive control over his room); State v. Jenkins , 179 Or. App. 92, 101-02, 39 P.3d 868, rev. den. , 334 Or. 632, 54 P.3d 1042 (2002) (parents had no authority to consent where they had agreed that 18-year-old son had control over garage and they did not access it without son's permission); Will , 131 Or. App. at 505-06, 885 P.2d 715 (eight-year-old daughter could not consent to police entry where parents had never given daughter authority to permit others to enter residence).

Those legal precepts bring us to this case and its particular facts. As we described earlier, the juvenile court expressly found that youth's grandmother was "the owner of the property" and that she and youth were not in a landlord-tenant relationship; instead, youth's grandmother was permissively "letting her grandson live in her home." The juvenile court further expressly found that the grandmother had "always" asserted her authority over the room that youth occupied, including her authority "to go in and out freely." Those findings are amply supported by the record, including the grandmother's specific testimony that she was emphatic in asserting her authority over youth's room, because it was "her house"; that she in fact regularly went into youth's room, without his permission or the need for it; and that she exercised control over the room and its contents as she chose. Although youth's grandmother was respectful of youth's privacy, she did not, at any time, give up her right to control the premises that youth occupied with her permission. As the prosecutor argued to the juvenile court at the hearing, youth's grandmother consistently maintained, in effect, that it was "her house, her rules." The juvenile court effectively so found, and youth does not challenge those findings.

The question remains, however, whether those facts support the legal conclusion that youth's grandmother had actual authority to consent to the search. See Beylund , 158 Or. App. at 416-17, 976 P.2d 1141 (authority to consent to search is a legal question). Under the common authority rule announced in Matlock , followed in Carsey , and later adopted by our court under Article I, section 9, the analysis of youth's grandmother's authority to consent to the search is straightforward. As we have described, the presumptive rule is that, when co-occupants have joint access to and use of most of the premises, each of the co-occupants has actual authority to consent to a search of the areas that they share. The facts of this case fall readily within that general rule and its rationale. Given the grandmother's insistence that she retained the authority to enter, clean up, and otherwise control youth's room, as well as the fact that she regularly exercised that control, youth assumed the risk that his grandmother might permit his room to be searched. See J. D. H. , 294 Or. App. at 365-66, 373-76, 432 P.3d 297 (mother who lived with 17-year-old son had common authority over son's room and contents where she considered herself to have shared control and in fact exercised unrestricted access to room for, among other things, cleaning room and collecting laundry). Under the circumstances here, at a minimum, the grandmother had common authority over access to youth's room, and she therefore had actual authority to consent to the search.

In youth's view, however, the presumption of common authority does not apply in this case, on two alternative theories. First, youth urges that he had "exclusive" authority over his room because, in response to his grandmother's emphatic insistence that she could access his room at will, he had insisted just as emphatically that "it's his room." According to youth, the lack of a mutual agreement between him and his grandmother as to the scope of his grandmother's control over his room means that she had no authority to permit police to enter and search his room. That argument, however, turns the common-authority rule on its head. Under that rule, "when there is no evident agreement to the contrary, one co-occupant [of premises] is presumed to have completely assumed all risk that the other will consent to a search; the other has a full quantum of authority." Kurokawa-Lasciak , 249 Or. App. at 440, 278 P.3d 38. Contrary to youth's argument, then, the lack of a mutual agreement between youth and his grandmother limiting her access to youth's room precludes youth's assertion of "exclusive authority"; it does not support it.

Second, youth argues that, even if his grandmother had authority to consent to the search of his room, her authority could not be validly exercised to overcome youth's objection to the search. In support, youth relies on Randolph , where the Court announced, as an exception to the "common authority" rule under the Fourth Amendment, that the consent of one occupant to search common premises is not valid in the face of another physically present co-occupant's expressed objection to the search. 547 U.S. at 113-15, 126 S.Ct. 1515. In response, the state argues that Randolph announced a limited exception, one that does not extend to minors living with a parent or other adult family members. In familial households, the state urges, a minor's refusal to consent to a search is ineffective to overcome the "superior" authority that a parent or other analogous adult family member holds over the household premises.

We agree with the state's understanding of Randolph and the limits of its holding. Randolph arose in the context of a husband-wife domestic dispute in which the wife consented to a search of the family home, while the husband, who was present, voiced his refusal. 547 U.S. at 106-07, 126 S.Ct. 1515. In concluding that the wife lacked authority to consent to the search over the husband's refusal, the Court distinguished Matlock , where one occupant consented to a search when the co-occupant was not present to object. Matlock 's common-authority rule, the Court explained, "is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other's interests." Id. at 111, 126 S. Ct. 1515. In particular, tenants who share quarters "understand that any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another." Id . (emphasis added). That same commonly held understanding is not necessarily at work, however, when consent by one tenant is subject to "immediate challenge by another." Id . at 113, 126 S. Ct. 1515. In many shared living situations, there is no "recognized superior authority among disagreeing tenants" to resolve disputes between them over access to and use of the common quarters. Id. at 114, 126 S. Ct. 1515. As the Court explained, "[u]nless the people living together fall within some recognized hierarchy, like a household of parent and child or barracks housing military personnel of different grades, there is no societal understanding of superior and inferior" and no basis on which "one co-tenant generally has a right or authority to prevail over the express wishes of another, whether the issue is the color of the curtains or invitations to outsiders." Id .

Randolph does not aid youth in this case. Randolph involved two adults whose relationship to each other and to the premises made them legal and social equals. In concluding that one co-occupant's consent to search could not prevail in that circumstance over another's express objection, the Court distinguished situations in which people living together fall within some "recognized hierarchy" of authority. This case involves just such a hierarchy, however. Youth was living permissively with his grandmother in her home. Youth was not a tenant; his grandmother was not a landlord. Although youth shared his grandmother's home, he did not share it as a co-equal. She was a family elder, and the homeowner. Youth was a 16 year old, not an adult. Although his grandmother was respectful of his "space," she relinquished none of her rights to control the premises that youth occupied. To the contrary, she consistently made clear to youth that, while he lived in her home, he had to follow her rules, which included that she retained the unqualified right to have access to his room.

In short, although youth and his grandmother were family members living together in a common household, they were not co-equals in their relationship to the premises. The juvenile court concluded, and we agree, that youth's grandmother had a superior right of access to and control over youth's room. To be sure, as youth argues, his grandmother was neither his parent nor a legal guardian with the rights and responsibilities attendant to parental or in loco parentis status. That fact did not render youth co-equal in authority or status to his grandmother, however. It meant only that his grandmother's authority did not derive from the "measure of control [that parents have] over all aspects of their children's lives, activities, effects, and living quarters ." Carsey , 295 Or. at 42, 664 P.2d 1085 (emphasis added). She was still the homeowner; she was still an elder in the family hierarchy; and youth was still a minor grandson residing with her on the condition that he abide by her rules. As Carsey observed, in cases involving "parents or other relatives" cohabitating with minors, "it is normal for the owner of a home to exercise control over all areas of the home, or if control is not actually exercised or is seldom exercised, that the right to exercise control over all areas exists." Id . That authority reflects not just property law concepts, but social mores as well. Unlike the disagreeing spouses in Randolph , when disagreeing common tenants are an adult family member who owns and provides the home and a minor, there is a societal understanding of superior and inferior authority between the two. Pursuant to that societal understanding, in the absence of a mutual agreement to the contrary, an adult family member in a head-of-household role has the requisite authority to prevail over the disagreeing minor, whether the issue is, to borrow from Randolph , "the color of the curtains or invitations to outsiders." 547 U.S. at 114, 126 S.Ct. 1515.

We therefore agree with the juvenile court's legal conclusion that youth's grandmother had superior authority to control access to youth's room. Consequently, under the Fourth Amendment, his grandmother's consent to search was valid, even though youth was physically present and expressly objected to the search. Under the common-authority rule of both the Fourth Amendment and Article I, section 9, in the absence of "an evident agreement to the contrary," youth "completely assumed all risk" that his grandmother would consent to a search, with the result that his grandmother had a "full quantum of authority" to validly consent. Kurokawa-Lasciak , 249 Or. App. at 440, 278 P.3d 38. Here, there was no agreement that youth had exclusive authority over his room; to the contrary, youth's grandmother insisted that she retained unconstrained authority to access his room at her will. Youth's grandmother therefore had actual authority to consent to the search of youth's room, and the juvenile court correctly denied the motion to suppress.

Affirmed.

      The record suggests that the two friends who were also in youth's room had been sleeping there on an ongoing basis of some kind. Neither paid the grandmother any form of rent. The record about their co-occupancy of youth's bedroom is otherwise undeveloped.

      On appeal, under the Fourth Amendment to the United States Constitution, the state expands its argument by urging as an alternative ground for affirmance that, even if the grandmother did not have actual authority to consent, she had apparent authority. Youth disputes the state's ability to make that argument for the first time on appeal. Because we conclude that the grandmother had actual authority, we do not reach the parties' respective arguments on apparent authority to consent.

      Article I, section 9, provides:
      "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."
      The Fourth Amendment provides:
      "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

      Our cases distinguish between the authority of co-occupants over premises and their authority over personal "effects," even when the effects are located within the common premises. See, e.g. , State v. Fuller , 158 Or. App. 501, 506, 976 P.2d 1137 (1999) (third-party "authority to consent to a search of an area is not necessarily co-extensive with authority to consent to a search of personal items within that area"). A third-party's authority to consent to a search of effects depends on the nature of the effect and whether it is used communally or exclusively by one occupant. Id . In this case, youth challenges only his grandmother's authority to permit police to enter and search his bedroom generally. Youth does not argue that the firearm, which was on an open entertainment shelf under a towel, was contained in a personal "effect" that required authority beyond that to search the bedroom generally. Nor does the record, viewed most favorably to the juvenile court's ruling, provide support for such an argument. Nothing suggests that items like furnishings, towels, and linens were youth's own, rather than provided by his grandmother. Indeed, the fact that the grandmother regarded items in the room as within her control and hers to pick up, clean, and otherwise access as she chose suggests those effects were communal.

      Indeed, the record contains evidence of only one potentially "private" personal effect in the room: a safe. The grandmother testified, however, that she possessed the combination to the safe. The record thus supports an inference that nothing in youth's room was off-limits for his grandmother's inspection or otherwise beyond her right of access and control.

      Youth relies on two decisions from our court that are inapposite, because neither involved the authority of cohabitants to consent to a search of commonly used or occupied premises . See Kurokawa-Lasciak , 249 Or. App. at 442, 278 P.3d 38 (girlfriend lacked authority to consent to search of boyfriend's van where boyfriend had given her keys only temporarily and had not given her permission to exercise significant control over the van); Fuller , 158 Or. App. at 506-07, 976 P.2d 1137 (girlfriend lacked authority to consent to boyfriend's personal property-a nightstand-in shared bedroom where boyfriend had not permitted or acquiesced in girlfriend's access to nightstand). As we earlier noted, the actual authority that extends to jointly occupied premises does not necessarily apply to personal effects, even when the effects are located within the common premises. See 296 Or. App. at 728 n. 4. This case, however, involves only a challenge to the search of youth's bedroom. Id .

      Youth does not cite any case extending Randolph to an analogous set of facts, nor have we found any. The considered authority appears uniformly contrary to youth's position. LaFave, for example, draws the distinction between the situation in Randolph where "two or more persons have equal use of a place in which both are present," and one where, as here, "one's privacy while present someplace is derivative of and dependent on the privacy of another." Wayne R. LaFave, 4 Search and Seizure § 8.3(d), 213 (5th ed. 2012) (internal quotation marks and citation omitted). When minors live with parents and other heads of households, LaFave comments that "it makes sense that the individual with the predominant interest should prevail. Thus, if that individual were to consent to the search, the search could be conducted notwithstanding the present objection of a person with a lesser interest." Id. ; see also id. at 213-14 nn. 79-81 (citing representative cases and authorities).

      Youth asks us to adopt the Randolph "disagreeing tenants" exception to the common authority rule under Article I, section 9. We decline to consider whether we should do so because, as we have explained, Randolph 's exception and the rationale for it do not extend to these factual circumstances and would not yield a different result in this case.


author: DEHOOG, P. J.

text:
    STATE EX REL. Val HOYLE, Commissioner of the Oregon Bureau of Labor and Industries, Plaintiff-Appellant, v. CITY OF GRANTS PASS, Defendant-Respondent.
    A163244
    Court of Appeals of Oregon.
    Argued and submitted October 26, 2017. May 22, 2019
    Jordan R. Silk, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Gregory A. Chaimov, Portland, argued the cause for respondent. Also on the brief was Davis Wright Tremaine LLP.
    Chad A. Jacobs, Ashley O. Driscoll, Beery, Elsner & Hammond, LLP, Daniel Rowan, and Bullard Law filed the brief amicus curiae for League of Oregon Cities, Special Districts Association of Oregon, and Oregon Fire Chiefs Association.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
   DEHOOG, P. J.

This is the second appeal in a dispute over firefighters' entitlement to overtime pay under ORS 652.060 to 652.080. In the prior appeal, we affirmed a declaratory ruling by the Bureau of Labor and Industries (BOLI), which held that the City of Grants Pass (defendant or the city) was required, despite a union contract to the contrary, to comply with ORS 652.080's requirement that "authorized vacation or sick leave time shall be considered as time on regular duty" when calculating firefighters' entitlement to overtime pay. IAFF, Local 3564 v. City of Grants Pass , 262 Or. App. 657, 326 P.3d 1214 (2014). Following our decision, the city provided BOLI with an accounting of what the city described as its "maximum possible obligation due" to its firefighters for overtime hours worked between 2010 and 2014. BOLI rejected that accounting, disputing the city's interpretation of ORS 652.060 and ORS 652.070 and its resulting calculation of its firefighters' average work hours. On behalf of those firefighters, BOLI initiated an enforcement action in circuit court, seeking payment of overtime wages, penalty wages for the city's failure to pay overtime, and a declaration regarding the proper method of calculating how much overtime was due any firefighter owed overtime. Following a stipulated facts trial, however, the trial court concluded that ORS 652.060 and ORS 652.070 did not entitle any of the city's firefighters to additional overtime pay; accordingly, the court dismissed BOLI's complaint in its entirety, without reaching BOLI's contention regarding the proper means of calculating any overtime that may be due.

BOLI appeals, arguing that the trial court erroneously construed those statutes and that, even if the court's construction is correct, the city is nonetheless obligated to pay at least some of its firefighters overtime and we should determine how that obligation is to be calculated. For the reasons that follow, we conclude that the trial court's understanding of ORS 652.060 and ORS 652.070 was not erroneous. We further conclude that the trial court implicitly found that the city had not required any of its firefighters to work hours that would qualify them for overtime under a correct interpretation of those laws, and BOLI does not challenge that factual finding on appeal. As a result, we, like the trial court, do not address BOLI's argument regarding the proper means of calculating any overtime that may come due, and, accordingly, affirm.

Before addressing the parties' arguments, we provide a brief overview of the statutes at issue, which govern workweek limitations and overtime requirements for full-time firefighters. As the parties acknowledge, those statutes-like firefighter scheduling practices in general-depart significantly from the workweek and overtime requirements common to many other occupations. First, while many workers are entitled to overtime pay if they work more than 40 hours a week, ORS 652.060(1) establishes a regular-duty workweek of 72 hours for fire departments that employ three or fewer full-time firefighters and a 56-hour workweek for fire departments with four or more full-time firefighters. Second, despite those seemingly absolute thresholds to overtime pay, ORS 652.060(1) provides fire departments with a "safe harbor," under which an employer is "deemed to have complied with [ ORS 652.060(1) ] and ORS 652.070 if the hours of regular duty required of firefighters employed by it average not more than [72 or 56] hours a week over each quarter of the fiscal year." (Emphasis added.)

In turn, ORS 652.070(1) requires employers to "put into effect and maintain a schedule of working hours" that complies with ORS 652.060. If an employer fails to do so, it must pay overtime "to every regularly employed firefighter as additional pay for every hour of regular duty required of and performed by the firefighter over and above the average hours established by ORS 652.060." Finally, ORS 652.080, the statute at issue in our earlier decision, IAFF, Local 3564 , 262 Or. App. at 659, 326 P.3d 1214, provides for the treatment of authorized vacation or sick leave time as time spent on regular duty.

The present dispute centers on the meaning of ORS 652.060(1)(b)'s safe harbor provision, which applies to defendant as a city employer with four or more full-time firefighters. As noted, the safe harbor provision provides that "any affected [employer] shall be deemed to have complied with this paragraph and ORS 652.070 if the hours of regular duty required of firefighters employed by it average not more than 56 hours a week over each quarter of the fiscal year of the [employer]." At a stipulated facts trial on BOLI's complaint, the city argued that, because the legislature had used the plural term "firefighters" in the safe harbor provision, it must have intended average hours to be calculated collectively across all of a department's firefighters, rather than on an individual basis for each firefighter. That is, an employer would not be required to pay overtime for a particular quarter if, on average, its firefighters were not required to work more than 56 hours per week, even if one or more individual firefighters were required to work an average of more than 56 hours per week over that period. BOLI, on the other hand, argued that the safe harbor provision operates at the level of individual firefighters employed by a department, such that any firefighter required to work an average of more than 56 hours per week over the course of a quarter would qualify for overtime pay. According to BOLI, the legislature could not reasonably have intended for a firefighter whose average workweek exceeded 56 hours to be ineligible for overtime merely because his or her coworkers averaged shorter workweeks.

Ultimately, the trial court adopted the city's interpretation, concluding that, under ORS 652.060(1)(b), the phrase "firefighters employed by it" refers to all of a department's firefighters as a whole, and not to individual firefighters within the department. Because the trial court apparently understood the evidence to show that the city had not required its firefighters, collectively, to work an average of more than 56 hours per week in any quarter, the court dismissed with prejudice BOLI's first and second claims for relief (seeking payment of overtime and penalty wages) and concluded that BOLI was "not entitled to the declaration sought" in its third claim for relief. BOLI now appeals those rulings, and both parties reprise the arguments that they made at trial.

Where, as here, the resolution of a dispute depends upon the meaning of a statute, our "paramount goal" is to determine what the legislature intended the statute to mean. State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009). In conducting that inquiry, we start by examining the best evidence of legislative intent-the text and context of the statute itself, id. -and apply "rules of construction of the statutory text that bear directly on how to read the text." PGE v. Bureau of Labor and Industries , 317 Or. 606, 611, 859 P.2d 1143 (1993). Furthermore, to the extent that it may be helpful, we will consider any available legislative history, and, if the intended meaning of a statute remains unclear, we may resort to "general maxims of statutory construction." Gaines , 346 Or. at 172, 206 P.3d 1042.

Beginning with the text of the safe harbor provision, BOLI argues that the legislature's use there of the plural term "firefighters" is likely a simple reflection of "the unremarkable reality that [typically] more than one firefighter works in a fire department, and thus refers to the individual average hours of [each of] those multiple firefighters," rather than a cumulative average across all firefighters within a department. BOLI acknowledges that no rule of grammar would compel either its or the city's reading of "firefighters." Nor would any statutory rule of construction. In fact, one seemingly applicable such rule, ORS 174.127(1), further obscures the legislature's objective in choosing the plural form by instructing us that, generally speaking, the statutory use of "[t]he singular number may include the plural and the plural number, the singular."

BOLI argues, however, that the context of the safe harbor provision resolves that uncertainty and compels us to read the term "firefighters" in that provision as referring to individual firefighters. BOLI emphasizes that the text surrounding the safe harbor focuses on individual workers. For example, the basic workweek limitation in ORS 652.060(1) provides that "[n]o person employed on a full-time basis as a firefighter * * * shall be required to be on regular duty * * * more than [56 or 72] hours a week." (Emphasis added.) Similarly, the remedial provision in ORS 652.070(1) requires employers to pay overtime wages to "every regularly employed firefighter " for excess hours "required of and performed by the firefighter ." (Emphases added.) Moreover, the legislature's general policy governing wage and hour provisions similarly focuses on individuals:

"It is the public policy of this state that no person shall be hired, nor permitted to work for wages, under any conditions or terms, for longer hours or days of service than is consistent with the person's health and physical well-being and ability to promote the general welfare by the person's increasing usefulness as a healthy and intelligent citizen."

ORS 652.010(1) (emphases added). BOLI further observes that, consistently with that legislative focus on individual workers, the legislature appears to have used "firefighters" to mean "one or more individual firefighters" in another related statute, ORS 652.050(2), which defines "[r]egularly organized fire department" as an organization that "employ[s] one or more persons on a full-time basis as firefighters."

Relying on essentially the same context, however, the city contends that "firefighters" as used in ORS 652.060(1) must mean firefighters collectively, such that a city's work schedule will fit within the safe harbor provision so long as the combined hours of all of the firefighters it employs average no more than 56 hours per week over the course of a fiscal quarter. The city argues that, because the legislature separately used the terms "firefighter" and "firefighters," we should assume that the legislature intended for those terms to have different meanings. See, e.g. , VanWormer v. Farmers Ins. Co. , 171 Or. App. 450, 455, 15 P.3d 612 (2000) (noting the "legislature's conscious shift from the singular to plural" in the use of "limit" and "limits" in the underinsured motorist statute). Contrary to BOLI's suggestion, the city contends that ORS 174.127(1) has no bearing here, because the legislature has purposely chosen to use both the singular and plural forms of the word "firefighter," thus they cannot be viewed as interchangeable. The city observes that the provisions setting out what an employer must do to avoid paying overtime all appear to address firefighters collectively: ORS 652.060(1), for example, provides that an employer "shall be deemed to have complied" with ORS 652.060 and ORS 652.070 based on "the hours of regular duty required of firefighters employed by it," and ORS 652.070(1) requires employers to "put into effect and maintain a schedule of working hours required of regularly employed firefighters " that complies with ORS 652.060 and ORS 652.070. (Emphases added.)

In advocating that we should understand the use of "firefighters" in the safe harbor provision to mean firefighters collectively, the city emphasizes the manner in which that provision comes into play. As the city sees it, although ORS 652.060(1)(b) states that "[n]o person * * * shall be required to be on regular duty with such fire department more than 56 hours a week," the availability of the safe harbor contemplates a city implementing ("put[ting] into effect") and "maintain[ing]" a department-wide schedule: "[A] schedule of working hours required of regularly employed firefighters." See ORS 652.070(1). The city acknowledges that an employer is disqualified from protection under the safe harbor "if the hours of regular duty required of firefighters employed by it average * * * more than 56 hours a week" over a fiscal quarter, see ORS 652.060(1) (emphasis added); the city argues, however, that BOLI's construction would improperly insert the phrase "of a firefighter employed by it" for the emphasized statutory language above, something no court may do. See ORS 174.010 ("In the construction of a statute, the office of the judge is simply to ascertain and declare what is ***

contained therein, not to insert what has been omitted, or to omit what has been inserted[.]").

Thus, the city contends, the trial court correctly construed ORS 652.060 and ORS 652.070. The city further argues that, under that correct interpretation, it satisfied the safe harbor's requirements because it scheduled its firefighters to work an average of no more than 56 hours per week over each quarter and kept to that schedule. Finally, the city asserts, because the trial court evidently rejected BOLI's argument that the stipulated evidence showed otherwise, the court was correct to dismiss BOLI's complaint in its entirety.

Given the text and statutory context of ORS 652.060 and ORS 652.070, each of the parties' proposed constructions of the safe harbor provision-and, in particular, each parties' view regarding the significance of the term "firefighters" in that provision-is plausible; accordingly, neither provides a conclusive answer as to how the legislature intended the safe harbor provision to apply. However, as we will explain, the practical context in which ORS 652.060 and ORS 652.070 were enacted provides additional guidance and supports the interpretation of those statutes that the city advances.

As noted above, firefighters' schedules are far from typical when compared to those of other workers. And, although there is relatively little in the legislative record that directly reflects that the legislature that enacted ORS 652.060 and ORS 652.070 understood the idiosyncrasies of fire department scheduling, it is reasonable to assume that the legislature is generally familiar with the subject matter on which it legislates. Cf.

Peters et al. v. McKay et al. , 195 Or. 412, 439-40, 238 P.2d 225 (1951), reh'g den. , 195 Or. 412, 246 P.2d 585 (1952) ("When, in the process of statutory construction, the legislative intent is not manifest, courts may properly seek the intent by considering the subject matter, the necessity for the law, the circumstances under which it was enacted, the mischief sought to be remedied and the objective to be attained."). Moreover, as the city and amici curiae observe, the legislature's enactment of a safe harbor provision strongly suggests that the legislature was aware of the week-by-week variation in work hours characteristic of fire departments and sought to account for that practice by averaging firefighters' hours over the course of the fiscal quarter.

What little legislative history we have further supports the city's understanding of the safe harbor provision, because it reflects practices consistent with those of the city and other municipal fire departments. For example, a witness testifying in connection with amendments made to the statute in 1969 explained that the bill's authors "had arrived at the 56-hour week * * * because the underwriters prefer [fire departments] to keep their crews together for the most efficient firefighting." See Minutes, Senate Committee on Labor and Industries, SB 383, Mar 10, 1969, at 2 (statement of Glen Whallon, Oregon State Fire Fighters Council). And, indeed, the same witness testified that "[t]he majority of the departments in the State are already under the 56-hour work week." Id . at 1. We also consider it likely that, both in 1969 and during earlier sessions, the legislature would have understood that the firefighters comprising those crews were routinely on duty in 24-hour shifts, either on individual days separated by time off or in 48-hour blocks, as the city schedules its firefighters. As indicated both by materials in the record and additional resources cited on appeal without objection by respondent and amici , fire departments typically implement "56-hour workweeks" by maintaining three crews, with each crew working a repeating schedule of either one day on, two days off ("24/48") or two days on, four days off ("48/96"). An elementary analysis reveals that the inevitable consequence of either arrangement is that each crew will work either 48 or 72 hours in a given week, but never exactly 56 hours. Rather, the three crews will collectively average 56 hours every week, while each individual crew will average 56 hours per week only over the course of at least three weeks for a 24/48 schedule, or six weeks for a department employing a 48/96 schedule, as the following diagram illustrates (for a department scheduling on a 24/48 basis): Week 1 (24/48 schedule)

Crew Sun. Mon. Tues. Wed. Thur. Fri. Sat. Total A 24 24 24 72 B 24 24 48 C 24 24 48 Avg. 56

Week 2 (24/48 schedule)

Crew Sun. Mon. Tues. Wed. Thur. Fri. Sat. Total A 24 24 48 B 24 24 24 72 C 24 24 48 Avg. 56

Week 3 (24/48 schedule)

Crew Sun. Mon. Tues. Wed. Thur. Fri. Sat. Total A 24 24 48 B 24 24 48 C 24 24 24 72 Avg. 56

Although the specific numbers necessarily vary, the same idea holds true for the 72-hour workweek that ORS 652.060(1)(a) authorizes for small departments-those employing no more than three fulltime firefighters. That is, as typically implemented, a 72-hour workweek schedule also reflects an irregular shift rotation but, over time, each shift will average the same number of hours per week. See General Electric Co. v. Porter , 208 F.2d 805, 811-12 (9th Cir. 1953), cert. den. , 347 U.S. 951, 74 S.Ct. 676, 98 L.Ed. 1097 (1954) (describing the "two-platoon system," where "firemen are on duty for a 24 hour shift, off 24 hours, with each sixth shift off," and explaining that, under such a schedule, "[i]n 1/4 of the weeks [the firefighters] were required to be at the fire station 48 hours, in 1/2 of the weeks 72 hours, and in 1/4 of the weeks 96 hours"). Other scheduling variations also exist, and the available historical and legislative materials suggest that the legislature would have been generally familiar with the scheduling challenges that fire departments face and the ways in which they are often addressed. In particular, the legislature would have understood the need to schedule crews in multiple shifts that do not neatly align with the seven-day calendar week. With that legislative context in mind, we return to the text of the safe harbor provision in ORS 652.060(1)(a) and (b) :

"However, any affected incorporated city, municipality or fire district shall be deemed to have complied with this paragraph and ORS 652.070 if the hours of regular duty required of firefighters employed by it average not more than [56 or 72] hours a week over each quarter of the fiscal year of the employing city, municipality or fire district."

That provision accommodates the inevitable irregularity of firefighters' schedules, which, as the above diagram illustrates, periodically exceed the presumptive weekly limits but equate to a 56- or 72-hour workweek when averaged across several weeks. The legislative decision to enact workweek limits-and a corresponding safe harbor provision-that reflected typical fire department scheduling practices is best understood as endorsing those practices. Thus, to deny an employer like the city, which purports to adhere to such scheduling practices, the benefit of a safe harbor evidently designed to accommodate them, would defeat the apparent purpose of that provision. We are reluctant to construe a statute to that effect on the mere suspicion that such a provision could be subject to abuse.

Ultimately, in light of the purpose of the safe harbor provision and the context in which it was enacted, we conclude that the city has the better reading of the statute. Under ORS 652.060 and ORS 652.070, a city is not required to pay its firefighters overtime so long as those firefighters, collectively, are not required to work an average of more than 56-or 72-hours per week over the course of a quarter of the city's fiscal year. It follows that the trial court did not err in adopting the city's interpretation of those statutes.

Further, we cannot reconcile BOLI's request that we determine the proper method of calculating overtime that may come due with the underlying decision of the trial court. In a letter opinion, the court expressly found for the city and against BOLI as to each of BOLI's three claims, and, in its judgment, the court stated that BOLI was not entitled to the declaration it sought. We understand the court, in making those rulings, to have implicitly rejected the factual premise of BOLI's final argument on appeal, i.e. , that the parties'

stipulations showed that, for at least one quarter, the city scheduled its firefighters to work an average of more than 56 hours per week, such that some overtime was due even under the city's interpretation. And, as noted, BOLI does not challenge that factual finding on appeal. As a result, we, like the trial court, conclude that it is not necessary to address that issue in this appeal. Accordingly, we affirm.

Affirmed.

      Although the city had initially determined that it owed some overtime to its firefighters, by the time of trial, it had taken the position that, properly construed, ORS 652.060 and ORS 652.070 did not entitle its firefighters to any unpaid overtime.

      BOLI does not contend that it was entitled to a declaration regarding the proper means of calculating overtime even if the city did not owe any of its firefighters unpaid overtime. See Chernaik v. Brown , 295 Or. App. 584, 600, 436 P.3d 26 (2019) (declining to address the plaintiffs' requests for certain declarations, because the trial court's other conclusions had resolved the controversy between the parties); cf. ORS 28.060 ("The court may refuse to render or enter a declaratory judgment where such judgment, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.").

      ORS 652.060 provides:
      "(1)(a) No person employed on a full-time basis as a firefighter by any regularly organized fire department maintained by any incorporated city, municipality or fire district and that employs not more than three persons on a full-time basis as firefighters shall be required to be on regular duty with such fire department more than 72 hours a week. However, any affected incorporated city, municipality or fire district shall be deemed to have complied with this paragraph and ORS 652.070 if the hours of regular duty required of firefighters employed by it average not more than 72 hours a week over each quarter of the fiscal year of the employing city, municipality or fire district.
      "(b) No person employed on a full-time basis as a firefighter by any regularly organized fire department maintained by any incorporated city, municipality or fire district and that employs four or more persons on a full-time basis as firefighters shall be required to be on regular duty with such fire department more than 56 hours a week. However, any affected incorporated city, municipality or fire district shall be deemed to have complied with this paragraph and ORS 652.070 if the hours of regular duty required of firefighters employed by it average not more than 56 hours a week over each quarter of the fiscal year of the employing city, municipality or fire district.
      "(2) In the event this section shortens the working hours of firefighters employed by any such city, municipality or fire district, the total wages of such firefighters shall not for that reason be reduced."

      ORS 652.070 provides:
      "(1) Every affected incorporated city, municipality and fire district shall put into effect and maintain a schedule of working hours required of regularly employed firefighters which shall not be in excess of the average hours established by ORS 652.060, and which shall provide for at least 48 consecutive hours off-duty time in each seven-day period. Any affected incorporated city, municipality or fire district failing so to do shall pay to every regularly employed firefighter as additional pay for every hour of regular duty required of and performed by the firefighter over and above the average hours established by ORS 652.060 a sum equivalent to one and one-half times the regular hourly rate of pay at the time of such default. However, in the case of replacement for any authorized leave, vacation or temporary vacancy, regularly employed firefighters in a department employing four or more persons on a full-time basis as firefighters may elect to work in excess of 56 hours a week at not less than their regular hourly rate of pay.
      "(2) Nothing in subsection (1) of this section requires payment of one and one-half times the hourly rate of pay to a volunteer firefighter for hours of duty performed in excess of the average hours established by ORS 652.060."

      ORS 652.080 provides that, "[i]n computing the average or total number of hours a week for the purposes of ORS 652.060 and 652.070, authorized vacation or sick leave time shall be considered as time on regular duty."

      To illustrate the distinction, consider a fire department that employs exactly four firefighters. In a single quarter, the department requires three of those firefighters to work an average of 55 hours per week and requires the fourth firefighter to work an average of 57 hours per week. Thus, the four firefighters are required to work an average of 55.5 hours a week per firefighter. Under the city's interpretation, the fourth firefighter does not receive overtime, because the employer has required its "firefighters" to work, on average, less than 56 hours per week. Under BOLI's interpretation, the fourth firefighter does receive overtime, because the employer has required one of its "firefighters" to work, on average, more than 56 hours per week.

      More specifically, because the trial court concluded that no firefighter was entitled to additional overtime pay, the court did not reach the parties' dispute over the interpretation of the requirement in ORS 652.070(1) that firefighters receive overtime pay for hours of work "over and above the average hours established by ORS 652.060."

      As further discussed below, the city contends that ORS 174.127(1) and the cases applying it provide little guidance here, where the legislature has chosen to use both the singular and plural forms of the word "firefighter."

      For example, although he opposed reducing the workweek for larger departments from 72 hours to 56 hours, the Mayor of Tillamook explained that, under the existing 72-hour limit, that city's "firemen work[ed] three 24-hour shifts and [had] four 24-hour shifts off each week." Minutes, House Committee on Local Government, SB 383, Apr. 23, 1969 (prepared statement of Howard Edwards, Tillamook City Mayor).

      See, e.g. , Frequently Asked Questions , City of Portland Fire and Rescue, https://www.portlandoregon.gov/fire/article/378460 (accessed May 14, 2019) (explaining that Portland firefighters work a 24/48 schedule); Memorandum of Understanding Between Bend Firefighters Association, IAFF 0939 and City of Bend , http://www.bendoregon.gov/home/showdocument?id=144 (accessed May 14, 2019) (adopting a three-shift 48/96 schedule, in which the "regular work schedule for all shift employees is a 56-hour workweek based upon a 6-day work cycle").

      Until 1969, the 72-hour maximum workweek applied to all fire departments regardless of size. See ORS 652.060(1) (1967), amended by Or. Laws 1969, ch. 581, § 1.

      A 1940 report by the United States Bureau of Labor Statistics discusses the variations on two- and three-platoon systems in place throughout the country. See generally United States Department of Labor, Bureau of Labor Statistics, Bulletin #684, Salaries and Hours of Labor in Municipal Fire Departments (1940), available at https://books.google.com/books?id=e1bYfBiW3qwC&pg=RA4-PP1 (accessed May 14, 2019). For example, the report explains that, in some two-platoon systems, "the firemen are given additional time off duty which is not compensated for by a like period on duty," resulting in "average hours on duty per week [of] less than 84, usually 72." Id. Volume VIII, Mountain Division Cities , at 10. That volume also notes that "[a]lmost every fire department operates wholly under either one of the three platoon systems (single-platoon, 2-platoon, or 3-platoon system)." Id. at 11.

      For example, firefighters working a three-crew, 24/48 schedule would average 56 hours every week of the quarter. ((2*24) + (2*24) + (3*24)) / 3 = 56. Necessarily, then, those same firefighters will also collectively average 56 hours per week over the quarter.

      We acknowledge BOLI's theoretical concern that, if we accept the city's interpretation of the safe harbor provision, the city could avoid paying any firefighter overtime even if it required some firefighters to work as much as 72 hours a week, so long as it allowed enough other firefighters to work no more than 48 hours a week to maintain a 56-hour average. However, we observe, without expressing an opinion as to their application here, that the parties and amici all acknowledge that the city and other fire departments also are subject to collective bargaining agreements and federal hour and wage laws, which may well address those concerns. For present purposes, we simply reiterate that the legislature appears to have sought to accommodate existing practices, which do not appear to have raised the sorts of concerns that BOLI identifies.