source: Caselaw Access Project

author: NAKAMOTO, J.

license: Public Domain

text:
    J. M., Respondent on Review, v. OREGON YOUTH AUTHORITY, a State Agency; and Gary Lawhead, Individually, Petitioners on Review, and Richard Hill, Individually; and Frank James Milligan, Individually, Defendants.
    CC 14C15773 (CA A162416) (SC S065487)
    Supreme Court of Oregon.
    Argued and submitted September 13, 2018. January 17, 2019
    Peenesh Shah, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioners on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Dennis Steinman, Kell, Alterman & Runstein, LLP, Portland, argued the cause and filed the brief for respondent on review. Also on the brief was Scott J. Aldworth.
    Kristian Roggendorf, Vial Fotheringham LLP, Lake Oswego, filed the brief for amici curiae National Center for the Victims of Crime and Oregon Trial Lawyers Association.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore.

      Garrett, J., did not participate in the consideration or decision of this case.

   NAKAMOTO, J.

Sixteen years after he had been sexually abused by an Oregon Youth Authority (OYA) employee, plaintiff initiated this action. At issue on review is plaintiff's 42 USC section 1983 claim against defendant Lawhead, former superintendent of the OYA facility where the abuse had occurred. Plaintiff alleged that defendant had violated his federal constitutional rights through deliberate indifference to the risk that the OYA employee would sexually abuse youths housed at the facility. The trial court granted defendant's motion for summary judgment on plaintiff's section 1983 claim on the basis that the claim accrued at the time of the abuse in 1998 and, consequently, was untimely commenced. The Court of Appeals reversed, relying on T. R. v. Boy Scouts of America , 344 Or. 282, 181 P.3d 758, cert. den. , 555 U.S. 825, 129 S.Ct. 146, 172 L.Ed.2d 40 (2008). J. M. v. Oregon Youth Authority , 288 Or. App. 642, 406 P.3d 1127 (2017).

We allowed defendant's petition for review to address when plaintiff's cause of action under section 1983 accrued. That issue is determined by federal law, which in turn is derived from common-law tort principles. Wallace v. Kato , 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Applying federal law, we hold that an action under section 1983 accrues when a plaintiff knows or reasonably should know of the injury and the defendant's role in causing the injury. Therefore, the trial court erred by dismissing plaintiff's claim in reliance on the principle that a section 1983 claim accrues when the plaintiff knows or has reason to know of the injury alone, which, in this case, it determined was necessarily when the abuse occurred. Accordingly, we affirm the decision of the Court of Appeals, reverse the judgment of the trial court, and remand the case to the trial court to reconsider its summary judgment decision under the correct accrual standard.

I. FACTUAL AND PROCEDURAL HISTORY

On review of a trial court's grant of summary judgment, we view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. ORCP 47 C; Jones v. General Motors Corp. , 325 Or. 404, 408, 939 P.2d 608 (1997). We therefore recite the following facts-which defendant also accepts as true for purposes of summary judgment-in the light most favorable to plaintiff.

In 1998, plaintiff was 15 years old and housed at an OYA facility where defendant was the superintendent. An OYA employee at the facility named Milligan, who served as a "group life coordinator" or "corrections officer" to plaintiff and other male youths at the facility, sexually abused plaintiff multiple times. The abuse occurred in the laundry room of the tent cottage to which plaintiff was assigned, an area unmonitored by security cameras. Milligan told plaintiff that no one would believe him if he reported the abuse. Milligan threatened to cut plaintiff's visitation time with family if he tried to report. Milligan also threatened to break plaintiff's neck if he screamed. Plaintiff did not report the abuse to anyone at OYA, and he was released back to his family in 1999.

Initially, plaintiff repressed thoughts and memories of the abuse. But in June 2012, media coverage of the sexual abuse scandal at Penn State University caused plaintiff to recall his own abuse by Milligan. Plaintiff disclosed the abuse to his wife and others for the first time and began searching the internet for information about Milligan. Plaintiff learned that, while still employed by OYA, Milligan had been arrested in 1999 for sexually abusing a boy and then soon after was arrested and charged with kidnapping, sexually abusing, and attempting to murder another boy. Both later in 2012 and thereafter, plaintiff learned information indicating to him that defendant had played a role in enabling Milligan's abuse of him at the OYA facility. In May 2014, plaintiff brought a section 1983 claim against defendant for failing to address the known threat of sexual abuse posed by Milligan, alleging violations of his liberty interests in bodily integrity and to be free from sexual abuse under the Fourteenth Amendment of the United States Constitution and of his right to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution.

Defendant moved for summary judgment, arguing, inter alia , that plaintiff's claim was time-barred by Oregon's two-year statute of limitations generally applicable to tort claims, ORS 12.110(1). Defendant asserted that the federal accrual rule as articulated by the Ninth Circuit Court of Appeals controls when the statute of limitations begins to run on a section 1983 claim. Under the Ninth Circuit rule, defendant argued, the claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action. Plaintiff countered that the issue is controlled by the "discovery accrual rule" that this court had articulated in T. R. , which provides that the statute of limitations does not run as to a defendant until the plaintiff discovers both the injury and the defendant's causal role in the injury. The trial court concluded that it was bound by federal precedent and that plaintiff's claim was untimely under the accrual rule as articulated by the Ninth Circuit; therefore, it granted defendant's motion for summary judgment.

Plaintiff appealed, assigning error to the trial court's rejection of this court's precedent in favor of Ninth Circuit case law. Defendant did not dispute that Oregon trial courts are bound by this court's precedents; instead, defendant argued that the trial court did not err in light of the decision in Wallace . According to defendant, Wallace mandates an occurrence-based accrual rule that is "facially inconsistent"

with the discovery accrual rule that this court discussed in T. R. and necessarily controls as a United States Supreme Court decision. Consequently, defendant urged, the trial court correctly concluded that plaintiff's claim accrued when he suffered the abuse in 1998, well outside the applicable limitations period. While acknowledging that Wallace controls, the Court of Appeals determined that " Wallace does not preclude a discovery rule in all section 1983 cases," and it reversed the trial court's grant of summary judgment. J. M. , 288 Or. App. at 647, 406 P.3d 1127.

II. ANALYSIS

On review, defendant contends that the Court of Appeals' reading of T. R. is inconsistent with Wallace . Defendant advances two alternate articulations of the post- Wallace accrual rule. First, defendant argues that Wallace announced a standard accrual rule focused on the occurrence of the injury: The limitations period for a section 1983 claim begins when the injury occurs, and the rule excepts only certain special types of torts, and plaintiff's claim does not fall within one of those exceptions. Alternatively, defendant argues that, even if the standard accrual rule incorporates a discovery requirement, that requirement extends to discovery of only the injury, not discovery of a particular defendant's causal role as well, as T. R. holds. Defendant asks us to overrule T. R. -or to clarify and limit its holding-in light of Wallace and to affirm the trial court's dismissal of plaintiff's section 1983 claim. As discussed below, we reject both of defendant's proposed accrual rules and reaffirm T. R. 's holding that a section 1983 claim accrues when a plaintiff knows or reasonably should know of the injury and the defendant's role in causing the injury.

A. United States Supreme Court Case Law

Because federal law governs accrual for section 1983 claims, we begin our analysis by reviewing the two United States Supreme Court cases on the issue: Wallace and Manuel v. City of Joliet , --- U.S. ----, 137 S.Ct. 911, 197 L.Ed.2d 312 (2017). Those cases advise that the accrual rule conforms in general to common-law tort principles, but they do not clarify whether that rule contains a discovery component. We understand the Court's cases to require a functional, and flexible, approach to the accrual rule that accounts for the nature of the alleged constitutional violation. Wallace , in which the plaintiff sued the city and multiple police officers under section 1983 for false arrest in violation of the Fourth Amendment, is the principal Supreme Court decision on the issue of when a section 1983 cause of action accrues. The Court clarified that the "accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law." Wallace , 549 U.S. at 388, 127 S.Ct. 1091 (emphasis in original). In turn, the Court stated, federal law is based on common-law tort principles: "Aspects of § 1983 which are not governed by reference to state law are governed by federal rules conforming in general to common-law tort principles." Id. The Court explained, "Under those principles, it is the standard rule that accrual occurs when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief[.]" Id. (internal citations, quotation marks, and alterations omitted). That "standard rule" of accrual suggested a functional approach. By expressing a standard rule based on when a plaintiff can file suit and obtain relief, the Court implied that accrual depends on when the plaintiff has sufficient information for it to be feasible to file a complaint and seek remedies from those responsible.

Additionally, the Court stated that a "refinement" to that standard rule may be proper if the claim at issue is analogous to a tort that receives "distinctive treatment" under the common law. Id. at 388, 127 S.Ct. 1091. For example, for accrual purposes, the Court analogized the Wallace plaintiff's false arrest claim to the common-law tort of false imprisonment. The Court held that the limitations period for a section 1983 claim premised on "a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process." Id. at 397, 127 S.Ct. 1091. No party argues that a distinctive accrual rule applies to the tort in this case.

More recently, the Supreme Court revisited the issue of accrual for a section 1983 action in Manuel . There, the Court first considered whether a plaintiff may challenge pretrial detention in a section 1983 action on Fourth Amendment grounds. After answering that question in the affirmative, the Court turned to the remaining question of when the cause of action accrued. The Court offered the following "brief comments" before remanding that issue to the Seventh Circuit:

"In defining the contours and prerequisites of a § 1983 claim, including its rule of accrual, courts are to look first to the common law of torts. Sometimes, that review of common law will lead a court to adopt wholesale the rules that would apply in a suit involving the most analogous tort. But not always. Common-law principles are meant to guide rather than to control the definition of § 1983 claims, serving more as a source of inspired examples than of prefabricated components. In applying, selecting among, or adjusting common-law approaches, courts must closely attend to the values and purposes of the constitutional right at issue."

Id. at 920-21 (internal citations and quotation marks omitted). Thus, the Court re-emphasized that the rule of accrual is primarily based on the common law of torts, and it placed new emphasis on "the values and purposes of the constitutional right at issue." The comments also indicated that the Court's approach to accrual of section 1983 claims is flexible, with common-law principles serving to "guide" rather than "control" the analysis.

Defendant posits that three additional Supreme Court cases weigh on our analysis and compel his first proposed reading of Wallace -that accrual occurs at the time of the injury unless an exception for a special tort applies. As explained below, however, we are unpersuaded that those cases carry the weight that defendant assigns them.

First, relying on Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. , 522 U.S. 192, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997), defendant argues that Wallace contemplated a standard accrual rule that excludes a discovery rule. Defendant argues that Wallace derived its "standard rule" from Bay Area Laundry , a case concerning the timeliness of a claim under the Multiemployer Pension Plan Amendments Act of 1980. In that case, the Court had distinguished between two paragraphs of the applicable statute of limitations. One provided a six-year limitations period that commenced on "the date on which the cause of action arose"; the other contained an express "discovery" rule providing a three-year limitations period that commenced "after the earliest date on which the plaintiff acquired or should have acquired actual knowledge of the existence of such cause of action[.]" 29 USC section 1451(f)(1), (2). But the Court's observation that the statutory discovery rule differed from the "standard" accrual rule does not lead to defendant's conclusion that accrual of a claim occurs regardless of whether a plaintiff has, or should have, the information needed to bring an action. Rather, the Court went on to explain that the six-year limitations period incorporated "the standard rule that the limitations period commences when the plaintiff has a complete and present cause of action," meaning that the cause of action "does not become 'complete and present' for limitations purposes until the plaintiff can file suit and obtain relief." Bay Area Laundry , 522 U.S. at 201, 118 S.Ct. 542 (internal citations and quotation marks omitted). In support, the Court quoted Reiter v. Cooper , 507 U.S. 258, 267, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) :

"While it is theoretically possible for a statute to create a cause of action that accrues at one time for the purpose of calculating when the statute of limitations begins to run, but at another time for the purpose of bringing suit, we will not infer such an odd result in the absence of any such indication in the statute."

Bay Area Laundry , 522 U.S. at 201, 118 S.Ct. 542.

Second, defendant relies on Gabelli v. SEC , 568 U.S. 442, 133 S.Ct. 1216, 185 L.Ed.2d 297 (2013), for the proposition that the "standard" accrual rule is not a discovery rule. In Gabelli , the Court declined to apply the discovery rule in the context before it, "where the plaintiff is not a defrauded victim seeking recompense, but is instead the Government bringing an enforcement action for civil penalties." Id. at 449, 133 S.Ct. 1216. The Court's decision not to apply a discovery rule "to Government enforcement actions for civil penalties[,]" id. at 450, 133 S.Ct. 1216, does not preclude the applicability of a discovery rule to private civil actions. In any event, the significance of Gabelli , a securities fraud case, to the issue of accrual in section 1983 cases is questionable. As the Court of Appeals observed, " Gabelli never mentions section 1983, and cites Wallace just once-in a string citation-for the purpose of identifying general principles that are not necessarily inconsistent with the application of the discovery accrual rule in section 1983 cases." J. M. , 288 Or. App. at 647 n. 4, 406 P.3d 1127.

Lastly, defendant relies on the concurring opinion in TRW Inc. v. Andrews , in which Justice Scalia argued that the "general federal rule" of accrual is not "that a federal statute of limitations begins to run when a party knows or has reason to know that she was injured." 534 U.S. 19, 35, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (Scalia, J., concurring). Plaintiff persuasively counters that the fact that this was the sole point of contention raised by the concurrence in an otherwise unanimous decision suggests that the other justices did not agree with Justice Scalia. At most, TRW Inc. demonstrates only that the Supreme Court has not taken a position on whether it will recognize a general discovery accrual rule under federal law. The Court's acknowledgement that lower federal courts "generally apply a discovery accrual rule when a statute is silent on the issue," id. at 27, 122 S.Ct. 441 (internal citations and quotation marks omitted), and its subsequent declination to reject that approach, may even suggest the Court's tacit sanction of a discovery accrual rule.

On the issue before us, we are bound by Supreme Court case law. See State ex rel Huddleston v. Sawyer , 324 Or. 597, 620, 932 P.2d 1145, cert. den. , 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997) (On "a question of federal law, we are bound by the pertinent decisions of the United States Supreme Court."). To summarize the pertinent cases, Wallace and Manuel stress that the issue of accrual of section 1983 claims is primarily guided by common-law tort principles, with consideration given to the functionality and flexibility of the approach and the constitutional rights at issue. That guidance does not support defendant's first proposed reading of Wallace as strictly precluding a discovery rule and compelling a rule that accrual occurs at the time of the injury unless a special exception applies. Defendant's reliance on Bay Area Laundry , Gabelli , and TRW Inc. for arguments to the contrary is misplaced.

B. T. R. v. Boy Scouts of America

Turning to our own precedent, this court considered in T. R. the question of when accrual began for the plaintiff's section 1983 action against a city for a city police officer's sexual abuse of the plaintiff. Contrary to defendant's argument, T. R. 's holding that a section 1983 claim accrues when a reasonably prudent plaintiff perceives both the injury and the defendant's causal role is consistent with the Supreme Court's guidance in Wallace and Manuel .

This court explained in T. R. that "the accrual rule that applies to determine when plaintiff's section 1983 claim accrued is a 'discovery' accrual rule." 344 Or. at 291, 181 P.3d 758. That rule-which the court explained is similar under Oregon law and generally applicable common law-provides that "the statute of limitations does not begin to run until a reasonably prudent plaintiff perceives both the injury and the role that the defendant has played in that injury." Id. at 291-92, 181 P.3d 758 (citation omitted). The T. R. court distinguished between the role of the perpetrator, who had been the immediate cause of the plaintiff's abuse, and the role of the city, which had failed to implement policies and procedures to prevent the abuse. Id. at 296, 181 P.3d 758. Furthermore, it determined that a reasonable jury could have concluded that the plaintiff reasonably did not suspect the city's role at the time of the abuse and, therefore, that the plaintiff's claim against the city did not accrue until later. Id. at 297, 181 P.3d 758.

Although T. R. did not refer to Wallace , T. R. 's holding is consistent both with common-law tort principles and with Wallace and Manuel . Under the common law, accrual of a claim is functional: "The overriding discovery rule principle is that the statute begins to run when a person of reasonable diligence discovers or should have discovered facts that would show she has a reasonable claim, or facts that would lead a reasonable person to investigate further." Dan Dobbs, 1 The Law of Torts, Practitioner Treatise Series § 243, 878 (2d ed. 2011) (footnote omitted). Dobbs details what essential facts trigger the statutory clock in negligence claims:

"[T]he usual idea seems to be that the statute will not begin to run until
"(a) all the elements of the tort are present; and
"(b) the plaintiff discovers, or as a reasonable person should have discovered,
"(i) that she is injured; and
"(ii) that the defendant, or the defendant's product or instrumentality, had a causal role in the injury, or that there was enough chance that defendant was connected with the injury to require further investigation that in turn would have revealed the defendant's connection[.]"

Id. (emphasis in original; footnote omitted). The discovery rule of accrual in T. R. follows the accrual principles described by Dobbs: The claim does not accrue until the plaintiff discovers or should have discovered the injury and the defendant's causal role.

Wallace and Manuel do not require a different accrual rule. Together, Wallace and Manuel demonstrate the Supreme Court's intent to provide basic guidance-rather than a rigid rule-for how to determine when a section 1983 claim accrues. Wallace provides that the accrual rule focuses on functionality: Accrual occurs "when the plaintiff can file suit and obtain relief." 549 U.S. at 388, 127 S.Ct. 1091 (internal citation and quotation marks omitted). A plaintiff can hardly file suit unless the plaintiff has sufficient information to do so. Manuel adds that the rule is construed with flexibility: "Common-law principles are meant to guide rather than to control the definition of § 1983 claims, serving more as a source of inspired examples than of prefabricated components." 137 S.Ct. at 920-21 (internal citations and quotation marks omitted). In determining the applicable common-law approach to accrual of a claim, we also consider that plaintiff seeks to vindicate constitutional rights, in this case, a duty of government officials under the Eighth and Fourteenth Amendments to "provide humane conditions of confinement," Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), and to provide for the safety of confined individuals, see, e.g. , Youngberg v. Romeo , 457 U.S. 307, 317, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) ("When a person is institutionalized-and wholly dependent on the State-* * * a duty to provide certain services and care does exist."). See Manuel , 137 S.Ct. at 921 ("In applying, selecting among, or adjusting common-law approaches, courts must closely attend to the values and purposes of the constitutional right at issue."). In adopting a discovery rule, T. R. mirrors general common-law tort principles and reflects the functionality and flexibility that the Supreme Court envisioned.

We therefore reject defendant's argument that Wallace precludes any discovery rule and turn to his alternative reading of Wallace . Defendant proposes that the only permitted discovery rule is one that would provide for accrual of a section 1983 claim when the plaintiff discovers his or her injury. As indicated, the Supreme Court has not articulated the scope of a federal discovery rule. Although lower federal courts have no binding authority over this court, we augment our analysis by considering their varied articulations of the post- Wallace accrual rule.

C. Federal Appellate Case Law

Against the backdrop provided by Wallace -and, to a lesser extent, Manuel -almost all of the federal circuit courts have grappled with the issue of accrual in section 1983 actions. As the parties recognize, there is a range of viewpoints among those courts. We note at the outset that all the federal circuit courts to have addressed the accrual of section 1983 claims post- Wallace have used some form of the discovery rule. Defendant primarily draws support for his articulation of such a rule from the Ninth and Third Circuits. While there exists some federal appellate case law in defendant's favor, the post- Wallace landscape lacks any uniformity to persuade us that the appropriate accrual rule incorporates discovery only of the injury. And notably, at least three federal circuit courts (the Fifth, Seventh, and Eleventh) follow a discovery accrual rule that is comparable to T. R. 's. Another two circuit courts (the First and Sixth) appear to require discovery of more than the injury alone.

We first consider the cases on which defendant primarily relies. Defendant argues that a Ninth Circuit Federal Tort Claims Act (FTCA) case from 1984 supports his position that the discovery rule requires discovery of only the plaintiff's injury: Dyniewicz v. United States , 742 F.2d 484 (9th Cir. 1984) (negligence claim against government for death of plaintiffs' parents due to highway flood). In Dyniewicz , the court stated that "[d]iscovery of the cause of one's injury *** does not mean knowing who is responsible for it. The 'cause' is known when the immediate physical cause of the injury is discovered." Id. at 486 (citations omitted). The court concluded that plaintiffs "knew both the fact of injury and its immediate physical cause, the flooded highway, when the bodies of [their parents] were found. The cause of action accrued at that time. Their ignorance of the involvement of United States employees is irrelevant." Id . at 487 (citation omitted).

More recent Ninth Circuit case law suggests that more may be required. In Bonneau v. Centennial Sch. Dist. No. 28J , 666 F.3d 577, 581 (9th Cir. 2012), after stating that the "general common law principle is that a cause of action accrues when 'the plaintiff knows or has reason to know of the injury,' " (citing TwoRivers v. Lewis , 174 F.3d 987, 991 (9th Cir. 1999) ), the court described the discovery rule as requiring discovery of both the fact and cause of the injury:

"We have interpreted the 'question *** [of] what *** we mean by injury' with some flexibility, and held that a 'claim accrues' not just when the plaintiff experiences the injury, but 'when the plaintiff knew or in the exercise of reasonable diligence should have known of the injury and the cause of the injury.' "

Bonneau , 666 F.3d at 581 (citing Lukovsky v. City & Cty. of San Francisco , 535 F.3d 1044, 1050 (9th Cir. 2008), cert. den. sub nom. Zolotarev v. City & Cty. of San Francisco , 556 U.S. 1183, 129 S.Ct. 1997, 173 L.Ed.2d 1086 (2009) ) (alterations in original). See also Gregg v. Haw. Dep't of Pub. Safety , 870 F.3d 883, 887 (9th Cir. 2017) ("The general common law principle is that a cause of action accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action and the cause of that injury.").

Defendant also relies on a pre- Wallace Third Circuit FTCA case: Zeleznik v. United States , 770 F.2d 20 (3d Cir. 1985) (negligence claim against government for murder of plaintiffs' son by man who had tried unsuccessfully to surrender to Immigration and Naturalization Services). In Zeleznik , the court stated that "a claim accrues when the injured party learns of the injury and its immediate cause." Id. at 23. Therefore, plaintiffs' tort claim accrued when they learned the murderer's identity; it was not postponed until the government's role in causing the murder was discovered. Id. at 24.

The Third Circuit's apparent support for defendant's limited discovery rule, however, is curtailed by that court's more recent practice of applying the forum state's discovery rule to toll the statute of limitations in post- Wallace section 1983 cases. For example, in Dique v. N.J. State Police , 603 F.3d 181 (3d Cir. 2010), the court considered whether the plaintiff's section 1983 claim alleging racial profiling in violation of his Fourteenth Amendment Due Process rights was time-barred. The court borrowed and applied New Jersey's discovery rule, which it characterized as a tolling mechanism grounded in equitable principles. Id. at 185. That particular discovery rule "postpones a claim from accruing if a plaintiff is reasonably unaware that he has suffered an injury or, even though he is aware of the injury, that it was the fault of an identifiable person." Id. (citation omitted). See also Ryals v. Montgomery Cty. , 515 F App'x 75, 77 (3d Cir. 2013) (discussing applicability of Pennsylvania's discovery rule, "which applies when an injury or its cause was not known or reasonably knowable" despite exercise of due diligence, to toll the statute of limitations); Woodson v. Payton , 503 F App'x 110, 112 (3d Cir. 2012) (stating that, "[i]n Delaware, a statute of limitations may be tolled if the injury is inherently unknowable and the claimant is blamelessly ignorant of the wrongful act and the injury complained of") (internal citation and quotation marks omitted). The Third Circuit's approach results in the application of different discovery rules depending on the practice of the forum state.

The Fourth Circuit's approach is perhaps most aligned with defendant's limited discovery rule. According to that court, "[f]or most common-law torts, a plaintiff's cause of action accrues, and the limitations period commences, when the plaintiff knows or has reason to know of his injury (hence, the 'standard rule')." Owens v. Baltimore City State's Attorneys Office , 767 F.3d 379, 389 (4th Cir. 2014), cert. den. , --- U.S. ----, 135 S.Ct. 1893, 191 L.Ed.2d 762 (2015). But see Smith v. McCarthy , 349 F App'x 851, 857 (4th Cir. 2009) (stating that a section 1983 cause of action accrues "when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action") (internal citation and quotation marks omitted).

But, as indicated, other courts, particularly the Fifth, Seventh, and Eleventh Circuits, apply a discovery accrual rule like the one that we articulated in T. R. The Fifth Circuit applies an accrual rule almost identical to the one stated in T. R. Before Wallace was decided, in Piotrowski v. City of Houston , the court considered the timeliness of the plaintiff's section 1983 claim against the city for colluding in her former boyfriend's attack on her, which had rendered her paraplegic. 237 F.3d 567 (5th Cir. 2001). The court stated an accrual rule based on the plaintiff's awareness of both the injury and the defendant's role in it:

"Under federal law, the limitations period begins to run the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured. A plaintiff's awareness encompasses two elements: (1) The existence of the injury; and (2) causation, that is, the connection between the injury and the defendant's actions."

Id. at 576 (5th Cir. 2001) (internal citations, quotations marks, and alterations omitted). The court concluded that sufficient evidence existed that the plaintiff was not put on notice, and the action did not accrue, until a deponent had revealed facts that permitted the plaintiff to "make a case for the City's possible affirmative involvement" in causing her injury. Id. at 577. The Fifth Circuit continues to cite that formulation of the accrual rule favorably and in conjunction with Wallace . See, e.g. , Morrill v. City of Denton , 693 F App'x 304, 306 (5th Cir. 2017) (explaining that there is "a complete and present cause of action" (as stated in Wallace ) for accrual purposes when the plaintiff "is aware, or should be aware, of the existence of the injury and the connection between the injury and the defendants' actions" (the rule in Piotrowski ) ); King-White v. Humble Indep. Sch. Dist. , 803 F.3d 754, 762 (5th Cir. 2015) (holding that the plaintiffs had sufficient awareness of school officials' conduct to investigate their role in abuse perpetrated by a third party).

The Seventh Circuit, too, requires discovery of more than the fact of the plaintiff's injury before a section 1983 claim accrues. In post- Wallace section 1983 cases, that court has consistently held that discovery of both the injury and its causation are required to trigger accrual. See, e.g. , Amin Ijbara Equity Corp. v. Vill. of Oak Lawn , 860 F.3d 489, 493 (7th Cir. 2017) ("[a]ccrual occurs when a plaintiff knows the fact and the cause of an injury") (internal citation and quotation marks omitted); Moore v. Burge , 771 F.3d 444, 447 (7th Cir. 2014) ("the normal federal rule [is] that a claim accrues as soon as a person knows both the fact and the cause of an injury").

The Eleventh Circuit is in accord. Although the court has articulated an accrual rule couched in terms of discovery of "the injury," see, e.g. , McNair v. Allen , 515 F.3d 1168, 1174 (11th Cir. 2008) ("It is well established that a federal claim accrues when the prospective plaintiff knows or has reason to know of the injury which is the basis for the action." (Internal citation and quotation marks omitted.) ), the court has explained that its rule encompasses discovery of both the fact of the injury and the tortfeasor's identity. Foudy v. Indian River Cty. Sheriff's Office , 845 F.3d 1117, 1123 (11th Cir. 2017). In Foudy , the court referred back with approval to pre- Wallace cases that described the discovery accrual rule. Id. (citing Chappell v. Rich , 340 F.3d 1279 (11th Cir. 2003) ; Rozar v. Mullis , 85 F.3d 556 (11th Cir. 1996) ; and Mullinax v. McElhenney , 817 F.2d 711 (11th Cir. 1987) ). In Chappell , Rozar , and Mullinax , the Eleventh Circuit had held that the discovery rule requires discovery of both the injury and the identity of the person who inflicted the injury. Chappell , 340 F.3d at 1283 ("A cause of action *** will not accrue *** until the plaintiffs know or should know (1) that they have suffered the injury that forms the basis of their complaint and (2) who has inflicted the injury"); Rozar , 85 F.3d at 562 ("Plaintiffs must know or have reason to know that they were injured, and must be aware of who inflicted the injury."); Mullinax , 817 F.2d at 716 (stating same).

Additionally, the First and Sixth Circuits appear to embrace discovery rules that go beyond the plaintiff's discovery of only the fact of injury, although it is not as apparent whether their discovery rules cover discovery of the defendant's role in causing the injury, as do the rules in T. R. and in the Fifth, Seventh, and Eleventh Circuits. Although the First Circuit has articulated a more limited discovery rule for section 1983 claims, focusing on discovery of the injury, it has not precluded the applicability of the general discovery rule if the plaintiff is unaware of facts needed to bring the claim. The court has acknowledged that "[a] section 1983 claim normally accrues at the time of the injury, when the putative plaintiff has a complete and present cause of action and can sue." Jardín De Las Catalinas Ltd. P'ship v. Joyner , 766 F.3d 127, 133 (1st Cir. 2014) (internal citations and quotation marks omitted). "But to the extent that the facts necessary to bring a claim are unknown," the First Circuit recognizes that "the discovery rule may delay accrual until such facts are or should be apparent to a reasonably prudent person similarly situated." Id. at 133-34 (internal citations and quotation marks omitted). The purpose of that discovery rule is "to aid plaintiffs who, for reasons beyond their control, could not have promptly discovered the facts that form the foundation of their claims." Id. at 134.

Similarly, the Sixth Circuit applies a discovery accrual rule that is potentially more expansive than discovery of only the fact of an injury. In Cooey v. Strickland , 479 F.3d 412, 416 (6th Cir. 2007), the court stated that "the statute of limitations begins to run when the plaintiff knows or has reason to know that the act providing the basis of his or her injury has occurred[,]" that is, "in determining when the cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights." (Emphasis added; internal citations, quotations, and alterations omitted.)

The remaining approaches used by three other federal appellate courts demonstrate the lack of any uniform understanding of the scope of the accrual rule to which Wallace points. For example, the D.C. Circuit Court of Appeals recognizes that a section 1983 claim accrues when "the plaintiff has 'a complete and present cause of action,' that is, 'when the plaintiff can file suit and obtain relief.' " Earle v. District of Columbia , 707 F.3d 299, 305 (DC Cir. 2012) (quoting Wallace ). In terms not used by any other circuit court, the D.C. Circuit interpreted Wallace 's guidance to mean that a section 1983 claim "normally accrues when the factual and legal prerequisites for filing suit are in place." Earle , 707 F.3d at 306 (internal citations, quotation marks, and alterations omitted). In stating the foregoing, the court also recognized that "various exceptions to, and glosses on, the rule" exist, including the discovery rule. Id. (citing Connors v. Hallmark & Son Coal Co. , 935 F.2d 336, 290 U.S. App. DC 170 (DC Cir. 1991) ). In Connors , the court had surveyed federal appellate case law and noted with approval that "[a]t least eight federal courts of appeals have *** agreed *** that the discovery rule is the general accrual rule in federal courts." 935 F.2d at 342. Thus, the DC Circuit appears to apply a discovery accrual rule to section 1983 claims, albeit one that is less specific than T. R. 's.

Then there is the Second Circuit, which generally states that "an action accrues when the wrongful act or omission results in damages, and once the plaintiff knows or has reason to know of the injury which is the basis of his action[.]" McDonough v. Smith , 898 F.3d 259 (2d Cir. 2018), cert. granted , --- U.S. ----, ----, --- S.Ct. ----, --- L.Ed.2d ----, 2019 WL 166879, at *1 (2019) (internal citations and quotation marks omitted). But that court is unique in focusing its accrual inquiry on whether all the elements of a claim were present and known or discoverable. In McDonough , the court determined that a section 1983 claim based on fabrication-of-evidence allegations accrued when (1) the plaintiff learned of the fabrication and it was used against him and (2) his liberty had consequently been deprived. Id. at 267. See also Smith v. Campbell , 782 F.3d 93 (2d Cir. 2015) (concluding that the section 1983 cause of action accrued when all the elements of the First Amendment retaliation claim were satisfied). The Second Circuit's focus on the presence of the tortious elements aligns with common-law tort principles, see Dobbs, 1 The Law of Torts, Practitioner Treatise Series § 243 at 878, and appears to represent an understanding of Wallace as providing only basic guidance on the issue of accrual, rather than a rigid mandate.

Lastly, the Tenth Circuit has stated that, "[i]n general, [accrual] occurs when the plaintiff knows or has reason to know of the injury which is the basis of the action."

Jamerson v. Heimgartner , No. 18-3101, --- Fed.Appx. ----, ----, 2018 WL 4523109, at *9 (10th Cir. Sept. 21, 2018). However, that court has based its accrual analysis on the type of claims at issue. For example, in Varnell v. Dora Consol. Sch. Dist. , 756 F.3d 1208 (10th Cir. 2014), the court considered when a section 1983 claim asserting sexual abuse accrued against the school district that employed the teacher who had committed the abuse. It first analogized the plaintiff's claim to the tort of battery, then consulted the Restatement (Second) of Torts for when the tort of battery is complete, and finally determined that the plaintiff's claim accrued at the time of the last physical contact or sexual abuse. Id. at 1215-16. Of particular note is that the court did not preclude application of a discovery rule to the issue of accrual. The Varnell plaintiff had argued that the discovery rule, "which delays accrual of a claim until the plaintiff knew or should have known the facts necessary to establish her cause of action," applied to her case. Id. at 1216. Without deciding whether the discovery rule does apply to section 1983 claims, the Tenth Circuit stated that, even if the rule does, the plaintiff's claim would still be untimely. Id. Thus, the court did not reject the discovery rule as a matter of law.

Consistently with its approach of tailoring the accrual inquiry to the claim at issue, when confronted with section 1983 claims alleging violation of the plaintiff's Eighth Amendment rights, the Tenth Circuit stated,

"those claims accrued when [the plaintiff] knew or had reason to know, separately for each of these [d]efendants *** to be liable, that they had acted with deliberate indifference to a known risk to [the plaintiff's] medical needs, and that his or her deliberate indifference resulted in a delay in treatment that caused [the plaintiff] substantial harm."

Vasquez v. Davis , 882 F.3d 1270, 1276 (10th Cir. 2018) (internal citations and quotation marks omitted). The Tenth Circuit's claim-by-claim approach to the accrual issue reflects the functionality and flexibility that the Supreme Court emphasized.

Based on our reading of Wallace and Manuel , we consider a more expansive discovery rule, such as the one followed in T. R. and by courts in the Fifth, Seventh, and Eleventh Circuits, to comport with the practical realities for plaintiffs who are seeking to vindicate constitutional rights through claims under section 1983. Our conclusion is supported by federal appellate case law, which, despite lacking any conclusive uniformity, demonstrates definitively that defendant's first proposed accrual rule is unworkable. No federal circuit court has derived from Wallace the strict occurrence-based rule that defendant proposes. And although defendant's alternative articulation of the Wallace accrual rule-that discovery of an injury alone is enough to start the limitations period running-does find some support in federal appellate case law, we find that reading unpersuasive. In our view, a rule that requires a plaintiff to bring a claim without any regard for the plaintiff's knowledge of whom to sue is neither functional nor flexible.

III. CONCLUSION

We hold that an action under section 1983 accrues when a plaintiff knows or reasonably should know of the injury and the defendant's role in causing the injury. Thus, the trial court erred by applying an incorrect rule of law in considering when plaintiff's section 1983 claim accrued for purposes of defendant's motion for summary judgment. On review, the parties have not fully argued whether defendant is entitled to summary judgment under the correct accrual rule, and the trial court did not reach other arguments that defendant had asserted in his summary judgment motion.

Accordingly, we reverse the judgment dismissing plaintiff's section 1983 claim against defendant and remand for further proceedings.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court dismissing plaintiff's section 1983 claim against defendant is reversed, and the case is remanded to the circuit court for further proceedings.

      Although OYA and defendant jointly petitioned for review, the only issue before us is the grant of summary judgment on plaintiff's claim against defendant. Our references to defendant's arguments are shorthand for their joint arguments.

      Because we resolve this case on another ground, we do not address plaintiff's and amici 's argument for recognizing the discovery rule as a tolling provision.

      The summary judgment record also includes a copy of case information from the Oregon Judicial Case Information Network pertaining to 2013 criminal charges brought against Milligan. The case information shows that Milligan was convicted of two counts of first-degree sexual abuse and one count of sexual penetration with a foreign object, resulting in a lengthy prison sentence. Plaintiff represented to the trial court that he was the abuse victim in that case.

      The statute of limitations for section 1983 claims "is that which the [forum] [s]tate provides for personal-injury torts." Wallace , 549 U.S. at 387, 127 S.Ct. 1091 (citations omitted).

      No party disputes that the injury in this case was Milligan's sexual abuse of plaintiff.

      Manuel left unresolved whether a claim for unlawful pretrial detention is more analogous to a claim of false arrest (which accrues at the onset of legal process) or to a claim of malicious prosecution (which accrues only upon dismissal of the charges).

      We note that the Supreme Court also consulted Dobbs' Law of Torts -albeit a different version-to inform its analysis of when the section 1983 claim in Wallace accrued. 549 U.S. at 388-89, 127 S.Ct. 1091.

      In some jurisdictions, the claim does not accrue until the plaintiff also discovers or should have discovered that "the defendant may have been negligent or otherwise legally responsible." Dobbs, 1 The Law of Torts, Practitioner Treatise Series § 243 at 878-79.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Santiago Maximo VALLIN, aka Santiago Vallin, Defendant-Appellant.
    CC 17CR35704 (CA A167097) (SC S065957)
    Supreme Court of Oregon.
    Argued and submitted September 13, 2018. January 31, 2019
    Ernest G. Lannet, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for defendant-appellant.
    Benjamin Gutman, Solicitor General, Salem, argued the cause and filed the brief for respondent. Also on the brief was Ellen F. Rosenblum, Attorney General.
    Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, filed the brief for amici curiae American Civil Liberties Union of Oregon Foundation, Inc.; Oregon Justice Resource Center; and Oregon Criminal Defense Lawyers Association.
    Kenneth C. Lewis, Salem, filed the brief for amici curiae Senate Republican Leader Jackie Winters, Senator Michael Dembrow, Senator Elizabeth Steiner Hayward, House Democratic Leader Jennifer Williamson, Representative Chris Gorsek, Representative Paul Holvey, Representative Alissa Keny-Guyer, Representative Pam Marsh, representative Carla Piluso, Representative Karin Power, representative Tawna Sanchez, and Representative Janeen Sollman.
    Margaret Olney, Bennett, Hartman, Morris & Kaplan, LLP, Portland, filed the brief for amici curiae Partnership for Safety and Justice, Oregon Students Association, Ecumenical Ministries of Oregon, YWCA of Greater Portland, Urban League, Pathfinders of Oregon and Red Lodge Transition Services.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.
    WALTERS, C. J.
    Under Article IV, section 33, of the Oregon Constitution, the legislature may not reduce a criminal sentence that was "approved by the people" through the initiative or referendum process by a simple majority vote, but must garner a two-thirds majority in both houses. In this certified appeal, we must determine whether that constitutional rule applies to House Bill (H.B.) 3078 (2017), which recently was enacted by a simple majority in the legislature and which reduces certain statutory presumptive sentences. For the reasons that follow, we conclude that H.B. 3078 (2017) does not "reduce a criminal sentence approved by the people" within the meaning of Article IV, section 33, and that it could be, and was, validly enacted by a simple majority of the legislature.
    FACTS
    Defendant was charged with theft in the first degree, ORS 164.055, in June 2017. At that time, ORS 137.717 provided a presumptive sentence of 18 months imprisonment for first-degree theft for defendants having two prior convictions for certain specified crimes, to be increased by two months from that baseline for every additional prior conviction of those specified crimes. ORS 137.717(1)(b) (2015). Under that scheme, defendant in the present case would have been subject to a presumptive sentence of 22 months in prison, if convicted. But, while defendant's case was pending, H.B. 3078 (2017), which had been enacted by the legislature by a simple majority, became effective. See Or. Laws 2017, ch. 673, §§ 12, 13 (providing bill would become operative on, and apply to sentences imposed after, January 1, 2018). Among other things, H.B. 3078 (2017) amended ORS 137.717 (2015) to provide a presumptive sentence of 13 months imprisonment for a first-degree theft conviction of a person in defendant's circumstances. Or. Laws 2017, ch. 673, § 5.
    In the plea negotiations in defendant's case, an issue arose as to which version of ORS 137.717 would apply if defendant were to plead guilty to first degree theft. The state insisted, in its sentencing memorandum, that the trial court would be required to sentence defendant in accordance with the 2015 version of the statute. It posited that the presumptive sentences therein had been "approved by the people" as part of Ballot Measure 57 (2008), a legislatively referred measure that increased prison sentences for repeat property-crime offenders. The state argued that that sentence had not lost its status as one that had been "approved by the people" when, in 2009, by a two-thirds majority, the legislature enacted a bill, H.B. 3508 (2009), that, in one section, reduced the sentences set out in ORS 137.717 (2015), but, in another section, returned them to their previous ranges, effective some two years later. Consequently, the state argued, H.B. 3078 (2017) was unconstitutional: the legislature had reduced a sentence "approved by the voters" when, by a simple majority and not the two-thirds majority required by Article IV, section 33, it reduced the presumptive sentences set out in ORS 137.717(1)(b) (2015). Thus, according to the state, the presumptive 13-month sentence for defendant's offense provided by H.B. 3078 (2017) had not been constitutionally enacted and had not replaced the 18-month presumptive sentence, with additional months for more than two prior convictions, set out in ORS 137.717(1)(b) (2015).
    In his own sentencing memorandum, defendant argued that H.B. 3078 (2017) had reduced a presumptive sentence that had been adopted by the legislature, not one that had been "approved by the people." Defendant acknowledged that "the people" had approved an 18-month presumptive sentence when they enacted Measure 57 in 2008, but he argued that the legislature had lawfully reduced and replaced that sentence-and others-when, in 2009, it enacted H.B. 3508 and amended ORS 137.717 by a two-thirds majority in both houses. Defendant recognized that, under the 2009 amendment, the reduced sentences provided therein shifted back, after two years, to sentences that were commensurate with the sentences that the voters had approved in Measure 57. But he insisted that, because both the reduced sentences for the time period from February 15, 2010 to January 1, 2012 and the restored sentences for the period beginning on January 1, 2012 had been enacted by the legislature, not the people, the resulting sentences-including the one at issue here-did not constitute "criminal sentence[s] approved by the people" within the meaning of Article IV, section 33. Accordingly, defendant argued, although H.B. 3078 (2017) reduced the presumptive sentence set out in ORS 137.717 (1)(b) (2015) on a simple majority vote, that reduction was to a sentence enacted by the legislature, not to one "approved by the people," and therefore did not violate Article IV, section 33.
    The trial court rejected defendant's argument and agreed with the state that H.B. 3078 (2017) had been enacted in violation of Article IV, section 33. Based primarily on recitals in the preamble to the 2009 bill that amended ORS 137.717, the trial court determined that that bill reflected a legislative intent not to reduce the voter-approved sentences in Measure 57 (2008), but to phase them in over time. The trial court reasoned that, although the legislature had temporarily reduced the voter-approved sentences by the requisite supermajority, it ultimately had resurrected them. Thus, the trial court concluded, the sentences that were in place when H.B. 3078 came before the legislature in 2017 were the original sentences that the voters had approved as Measure 57, and, under Article IV, section 33, they could not be reduced by the simple majority vote that H.B. 3078 (2017) had garnered.
    After the trial court announced its decision, defendant conditionally entered a guilty plea, and the trial court imposed a stipulated downward departure sentence of 24 months of probation, which would be set aside in favor of a prison term of 22 months (the presumptive sentence under ORS 137.717(1)(b) (2015) ) if his probation were to be revoked. Defendant reserved the right to appeal the trial court's determination that the 13-month presumptive sentence set out in H.B. 3078 (2017) had been unconstitutionally adopted, and he exercised that right once the judgment of conviction and sentence were entered. Defendant filed a notice of appeal in the Court of Appeals, but that court certified the appeal to this court in accordance with ORS 19.405 and S.B. 1543 (2018), and this court accepted the certification. After defendant filed his opening brief and various individuals and organizations filed amicus briefs in support of defendant's position, the state filed an answering brief in which it conceded that the trial court had erred in concluding that H.B. 3078 (2017) had been enacted in violation of Article IV, section 33.
    That concession does not affect the task before this court. At bottom, the issue here is one of constitutional interpretation, and this court is duty-bound to interpret the law correctly, without regard to the parties' arguments or lack thereof. See Elk Creek Management Co. v. Gilbert , 353 Or. 565, 570, 303 P.3d 929 (2013) (court's task "is to interpret the statute correctly regardless of the parties' interpretations and concessions" (internal quotation marks and citation omitted) ); Stull v. Hoke , 326 Or. 72, 77, 948 P.2d 722 (1997) (court "is responsible for identifying the correct interpretation, whether or not asserted by the parties"). Accordingly, in deciding what Article I, section 33, means by "a bill that reduces a criminal sentence approved by the people," we consider not only the arguments that defendant and the amici curiae make before this court and that the state made in the trial court, but any other argument or issue that might otherwise come to our attention. However, before turning to that interpretive task, we describe in greater detail the legislative circumstances that make the constitutional wording relevant.
    HISTORY OF ORS 137.717
    In 2008, the voters enacted Measure 57, which had been referred to them by the legislature. Among other things, Measure 57 increased the then-existing presumptive sentences set out in ORS 137.717 for certain property crimes when committed by repeat offenders, reduced the number of predicate offenses required to trigger those presumptive sentences, and added two months to the presumptive sentences provided for each additional predicate offense. Measure 57 became effective on January 1, 2009, meaning that the presumptive sentences that it provided applied to crimes committed on or after that date. Or. Laws 2008, ch. 14, § 12.
    Within months of Measure 57's effective date, however, members of the legislature concluded that its full implementation should be delayed, primarily because the onset of an economic downturn had put in doubt the state's ability to pay for the treatment programs and longer prison sentences that it required. They introduced H.B. 3508 (2009), a bill that sought to amend ORS 137.717, as it had been amended by Measure 57, for that reason. In its preamble, the bill recited the circumstances that led to its introduction-the state and the world were in the midst of a serious recession; the voters had approved Measure 57 which sought "to reduce property crime through drug and alcohol treatment combined with increased incarcerative sanctions"; the treatment programs that Measure 57 envisioned "need[ed] time to be implemented and adequate funding in order to be effective"; and the state "need[ed] to phase in the implementation of * * * Measure 57 in order to achieve the goal of reducing property crime in Oregon." Notably, the preamble described the bill as "amending * * * ORS 137.717" and "providing for criminal sentence reduction that requires approval by a two-thirds majority."
    The 2009 bill employed an unusual mechanism to "phase in" the increased sentences that Measure 57 had called for. First, section 8 of the bill amended ORS 137.717 to read as it had before the adoption of Measure 57: It returned the presumptive sentence for first-degree theft by a repeat offender to 13 months imprisonment, raised the number of predicate offenses required to make that sentence applicable to four, and removed the wording that added two months to the presumptive sentence for every additional prior conviction of a specified type. The bill stated, in section 48(3), that those section 8 amendments to ORS 137.717 would become operative on February 15, 2010. Next, in section 11, the bill amended ORS 137.717"as amended by * * * section 8 of this 2009 Act" to read as it had under Measure 57. Section 48(4) of the bill provided that those section 11 amendments to ORS 137.717 would become operative on January 1, 2012.
    The bill was enacted by a two-thirds majority in each chamber of the legislature in June of 2009. As a result of its enactment, the presumptive sentences set out in ORS 137.717, as amended by Measure 57, were reduced starting in February 2010, but returned to the longer presumptive sentences that had been provided in Measure 57 in January 2012.
    ANALYSIS
    We must determine whether H.B. 3078 (2017) is "a bill that reduces a criminal sentence approved by the people," which, under Article IV, section 33, can only be enacted by a two-thirds majority in both houses. That determination depends on the meaning of the quoted words.
    Because Article IV, section 33, was adopted by the voters through the initiative process, our focus in construing it is on the intent of the voters who approved it. Martin v. City of Tigard , 335 Or. 444, 451, 72 P.3d 619 (2003). In interpreting a constitutional provision adopted by initiative, we generally begin with the constitutional text, on the theory that that is the best evidence of the voters' intent. Id. We also consider the context of the provision, including related constitutional provisions, the statutory overlay at the time of the provision's adoption, and any opinions by this court that are relevant to the matter. Id. Finally, we may consider the measure's enactment history to the extent that it is helpful. Ecumenical Ministries v. Oregon State Lottery Comm. , 318 Or. 551, 559, 871 P.2d 106 (1994).
    There can be little doubt what the voters who enacted Article IV, section 33, meant by a "bill that reduces a criminal sentence." Criminal sentences ultimately are imposed by judges, and the only way that a legislative action (such as a bill) can sensibly "reduce[ ] a criminal sentence" is by authorizing or requiring judges to impose a shorter period of imprisonment or probation than is authorized or required under the prevailing sentencing statutes. H.B. 3078 (2017) fits that description: As described above, prior to the enactment of H.B. 3078 (2017), ORS 137.717(1)(b) (2015) provided a presumptive sentence of 22 months imprisonment for first-degree theft by a four-time repeat offender like defendant, and H.B. 3078 directed judges toward a much shorter presumptive sentence of 13 months of imprisonment.
    That leaves us to consider what it means for a criminal sentence to be "approved by the people under section 1 of * * * Article [IV]." The term "approve" has two ordinary meanings that could be applicable: (1) "to judge and find commendable or acceptable: think well of: have or express a favorable opinion or judgment of"; or (2) "to vote into effect : pass formally." Webster's Third New Int'l Dictionary 106 (unabridged ed. 2002). The term's juxtaposition with the phrase "by the people under section 1 of * * * Article [IV]" establishes that, as used in Article IV, section 33, it is the latter meaning-"to vote into effect"-that is intended. Specifically, a criminal sentence that is "approved by the people under section 1 of * * * Article [IV]" is one that "the people" have enacted in the exercise of their initiative and referendum powers, as provided in Article IV, section 1. Thus, Article IV, section 33 's legislative supermajority requirement for bills that reduce a criminal sentence "approved by the people" is concerned with which legislative body-the Legislative Assembly or the people-actually enacted the criminal sentence in question.
    Although a useful baseline, the foregoing, purely textual analysis does not touch on the issue that defendant brings to this court. Defendant contends that the fact that a criminal sentence has at some point been "approved by the people" does not mean that it will remain so forever: Once the legislature musters the required two-thirds majority to enact a reduction of a voter-approved sentence, the resulting sentence has been enacted by the legislature, not "approved by the people," and therefore is not subject to Article I, section 33 's supermajority requirement. The same thing is true, in defendant's view, when, in a single enactment, the legislature, by a two-thirds vote, first reduces a mandatory or presumptive sentence from its voter-approved level but then, at a specified time, returns it to its previous level (as occurred here). The contrary view, which the state advocated in the trial court, is that, once enacted by the voters through the initiative or referendum process, a criminal sentence either (1) perpetually remains one that is "approved by the people" and thus subject to the supermajority requirement of Article I, section 33 ; or (2) only ceases to be one that was "approved by the people" if a legislative supermajority enacts, and specifically intends to enact, a permanent reduction of the sentence. Those arguments pose a more subtle question about the meaning of Article IV, section 33 : Under what circumstances (if at all) does a voter-enacted sentence that has been amended by the legislature cease to be one that has been "approved by the people" and thus subject to that provision's two-thirds majority requirement?
    One possibility is that the voters who enacted Article IV, section 33, understood that being "approved by the people" was a permanent state, so that, even if a voter-approved sentence was lawfully amended by the legislature, the resulting sentence would still be "approved by the people" and subject to Article IV, section 33 's two-thirds majority requirement-at least until "the people" affirmatively repealed it. That theory, however, is inconsistent with the legal rules pertaining to the effect of legislative amendments on existing statutes that ordinarily would apply, including the rule, which we will discuss presently, 364 Or. at ----, --- P.3d at ----, that the legislature may undo legislation enacted by the voters, and vice versa. Although the voters could have intended to override those established rules, our usual presumption is that laws are enacted, both by the legislature and "the people," in the light of the legal rules that bear directly on them. See, e.g. , Hazell v. Brown , 352 Or. 455, 465-66, 287 P.3d 1079 (2012) (in interpreting statutes enacted by both the legislature and the people, court presumes that laws are enacted in light of the judicial decisions that preceded and bear directly on them). And our review of the text, context, and history of Article IV, section 33, does not disclose any hint of a contrary intent. We can discern no basis for concluding that the voters understood that provision as disregarding those rules and establishing a permanent shield against legislative annulment.
    We conclude, then, that the voters who enacted Article IV, section 33, of the Oregon Constitution, understood that a sentence that at one point had been "approved by the people" might cease to be so, depending on how the legal rules that ordinarily govern such questions applied to the legislative circumstances. Accordingly, to resolve the question of whether the 2017 legislature reduced sentences that were "approved by the people," we must consider the legal rules concerning the effect of legislative amendments as they existed when Article IV, section 33, was adopted. As it turns out, those rules have not changed in the interim.
    One strand of law that is relevant concerns the legislative powers of the legislature vis-à-vis those of "the people." From the time that the people's initiative and referendum powers were first enshrined in Oregon's Constitution in 1902, this court has recognized that the legislature and "the people" are coequal and coordinate legislative bodies, "either of which in a manner provided by law may undo the work of the other." Kiernan v. Portland , 57 Or. 454, 480, 112 P. 402 (1910) ; see also State ex rel. Carson v. Kozer , 126 Or. 641, 644, 270 P. 513 (1928) (while "the people" may use the referendum process set out in Article IV, section 1, to amend or repeal any law enacted by the legislature, the legislature may conversely amend or repeal any law enacted by the people). That means that any statute that originally was enacted by the people can later be repealed or amended by the legislature-although, of course, such repeal or amendment must be done "in a manner provided by law." Kiernan , 57 Or. at 480, 112 P. 402.
    Another strand of relevant law concerns the extent to which a statutory amendment to an existing statute becomes part of the existing statute or, instead, is seen as a new enactment that displaces the existing statute. Long before Article IV, section 33 was adopted, it was well established in this court's case law that, when a section of a statute is amended in accordance with the requirement set out in Article IV, section 22, of the Oregon Constitution (i.e ., the requirement that the section amended "shall be set forth and published at full length"), only the changed or additional wording is considered a new enactment. In State v. McGinnis , 56 Or. 163, 108 P. 132 (1910), for example, this court announced that,
    "[w]hatever the rule may be in other jurisdictions, it is settled in this State that where a section of an act is amended 'so as to read as follows,' and the later law sets forth the changes contemplated, the parts of the old section that are incorporated in the new are not to be treated as having been repealed and re-enacted, but are to be considered as portions of the original statute, unless there is a clear declaration to the contrary, in the absence of which it is only the additions that have been made to the original section that are to be regarded as a new enactment ."
    Id . at 165, 108 P. 132 (citing Allison v. Hatton , 46 Or. 370, 372, 80 P. 101 (1905), Eddy v. Kincaid , 28 Or. 537, 41 P. 156 (1895), and other cases) (emphasis added). See also Jones v. General Motors Corp. , 325 Or. 404, 417-18, 939 P.2d 608 (1997) (post-Ballot Measure 10 (1994) statement of the same rule). In accordance with that rule from McGinnis , it is clear that, when the legislature lawfully amends a statute that was enacted by "the people," the parts of the amendment that constitute a change from the original statute are deemed to be new enactments by the legislature, while those that simply are copied from the original statute into the amendment remain part and parcel of that earlier, voter-approved statute.
    But those basic rules about how an enactment by the legislature displaces an existing, voter-approved provision do not fully resolve the issue that is before us. Here, the legislature's 2009 bill contained one section, section 8, that changed the voter-approved sentences set out in ORS 137.717 and another section, section 11, that returned ORS 137.717 to its original wording-and it is unclear to which section the McGinnis rule should be applied. Before conceding the issue before this court, the state had argued to the trial court that section 11 was the proper and necessary focus. It insisted that section 8 reflected a mere suspension of the sentences that the voters had approved in Measure 57-that the legislature clearly had not intended in section 8 to repeal or amend those Measure 57 sentences, but only to phase them in. And, the state added, because the sentences provided in section 11 did not differ in any material respect from those in the Measure 57 version, and because they continued in effect after the two-year suspension contemplated by section 8 had elapsed, the McGinnis rule requires that the sentences be considered part of that earlier voter-approved (Measure 57) statute. Defendant, on the other hand, focuses on section 8, arguing that, once it replaced the 18-month presumptive sentence for first-degree theft that the voters had approved in Measure 57 with a reduced, 13-month sentence, and did so by the required supermajority, the voter-approved sentence ceased to be the law and, under the rule of McGinnis , the prevailing 13-month sentence was a new enactment by the legislature. According to defendant, when the legislature then provided in section 11 that the new 13-month presumptive sentence would be replaced after two years with an 18-month presumptive sentence, that change also was a new enactment by the legislature: Although the presumptive sentence provided in section 11 matched the presumptive sentence that the voters previously had approved for first-degree theft in Measure 57, it had been enacted by the legislature, not "the people."
    Boiled down to its essence, the foregoing controversy pits a debatable inference as to what the legislature intended when it enacted its 2009 amendments to ORS 137.717 (that it intended to suspend the presumptive sentences the voters had approved in Measure 57 for a brief period of time, but ultimately to retain them as sentences that had been "approved by the people") against what the legislature actually did. We note, with regard to the latter point, that the specific mechanism that the legislature employed in H.B. 3508 (2009) was to amend the voter-approved version of ORS 137.717 and then, in the same bill, to amend that newly amended version to read as ORS 137.717 originally had, to become effective two years hence. According to the Oregon Legislature's Bill Drafting Manual , that "double amending" process is an acceptable way to enact a temporary change to a law, especially when "temporary changes to a permanent provision are extensive or when a separate, temporary section may cause confusion." See generally Legislative Counsel Committee, Bill Drafting Manual § 12.7(c) (17th ed. 2014).
    The state's now-abandoned argument with regard to the legislature's intent concentrates on material in the preamble to the legislature's 2009 bill, H.B. 3508, and on representations made by legislators and their staff during committee hearings on the bill. The state correctly observed that the bill's preamble and legislative history are replete with evidence that the legislature intended only to temporarily reduce the voter-approved sentences set out in ORS 137.717, and then, only for the ultimate purpose of "phasing in" those voter-approved sentences. The preamble describes the impetus for the bill in terms of "the State of Oregon need[ing] to phase in the implementation of * * * Measure 57 in order to achieve the goal of reducing property crime in Oregon." Or. Laws 2009, ch. 660, Preamble (emphasis added). A budget report and summary of the bill prepared for the Joint Committee on Ways and Means referred to the savings that would be realized from the "phase-in of Measure 57." Budget Report and Measure Summary, Joint Committee on Ways and Means, H.B. 3508-A, June 18, 2009, 3 (emphasis added). The staff summary of an earlier bill, H.B. 2335 (2009), which had supplied the wording for section 8 of H.B. 3508, had referred to that bill's purpose of "[p]hasing in Measure 57, not eliminating it." Staff Measure Summary, Senate Judiciary Committee, H.B. 2335-B, June 3, 2009, 1-2 (emphasis added). And various legislators spoke of the bill as "phasing in" Measure 57. See, e.g. Audio Recording, Joint Subcommittee on Public Safety, H.B. 3508, June 18, 2009, at 24:00 (statement of Sen. Vicki Walker). The state deduced from the foregoing materials that the legislature enacted the 2009 amendments to ORS 137.717 with a specific intention of "respecting both the will of the voters [as expressed in Measure 57] and the necessities of the state's budget" by suspending and then phasing in the sentences provided therein. In keeping with that intent, the state concluded, the sentences that were in place after the phase-in was completed were the very sentences that had been "approved by the people" in Measure 57.
    That argument is insufficiently precise about what legislators and their staff meant when they spoke of "phasing in" Measure 57. While the cited material might support a legislative intent to "phase in" sentences that were as long as the ones that the voters had approved in Measure 57, they do not support an intent to restore the sentences to their former status as sentences that were approved by the people and thus subject to the two-thirds majority requirement of Measure 57. And in any event, as a factual matter, the sentences set out in section 11 of the legislature's 2009 bill are not the sentences that the people adopted in Measure 57; they are sentences that the legislature adopted.
    Although the sentences that the legislature adopted are the same length as the sentences that the people adopted, and they account for prior convictions in the same way, it was the legislature and not the people who put them in place. And, when the legislature enacted the 2009 bill, including both sections 8 and 11, it did so by the required two-thirds majority.
    Under the ordinary rules that determine the effects of legislative amendments on existing statutes (which, we have concluded, the voters who adopted Article IV, section 33, intended to apply), the sentences that the legislature included in the 2009 amendments to ORS 137.717 were newly enacted by a two-thirds majority of the legislature and were not a part of Measure 57, a measure that the people had approved in 2008. It follows that Article IV, section 33, does not apply to the resulting sentences, and that the legislature could validly reduce them by a simple majority in both houses-and did so when it enacted H.B. 3078 (2017). The trial court erred in concluding otherwise.
    The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for resentencing.

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

      Article IV, section 33, of the Oregon Constitution was adopted through the initiative process in 1994, as Ballot Measure 10. It provides:
      "Notwithstanding the provisions of section 25 of this Article [which requires a 'majority of all members elected to each house' to pass a bill in the legislature], a two-thirds vote of all members elected to each house shall be necessary to pass a bill that reduces a criminal sentence approved by the people under section 1 of this Article [which authorizes 'the people' to legislate through the initiative process]."

      Defendant had four prior convictions of the relevant kind-three for theft in the second degree, ORS 164.045, and one for unauthorized use of a vehicle, ORS 164.135.

      ORS 19.405 provides that, when the Court of Appeals has jurisdiction over an appeal, it may certify the appeal to the Supreme Court in lieu of deciding the appeal itself. S.B. 1543 (Oregon Laws 2018, ch. 120, § 14) confers jurisdiction on the Supreme Court, in certain types of appeals, to determine whether H.B. 3078 (2017) violates the Oregon Constitution. It further provides that the court's disposition of such appeals should be expedited.

      If the state had lost below, then its concession might result in a lack of adversity and a concern that any opinion this court produced in the matter would be advisory. But it was defendant who lost below and who now appeals. Even if the state, defendant's putative opponent, now concedes that the trial court's decision is in error, defendant's hostility toward the trial court's decision lends sufficient adversity to the case.

      We thus consider arguments raised by plaintiffs in Foote v. State of Oregon (S065883), which was consolidated with the present case for purposes of oral argument.

      Of particular relevance to the present case, Ballot Measure 57 amended ORS 137.717 to provide:
      "(1) When a court sentences a person convicted of:
      "* * * * *
      "(b) Theft in the first degree under ORS 164.055 * * * *, the presumptive sentence is 18 months of incarceration * * * if the person has:
      "* * * * *
      "(B) Two or more previous convictions for any combination of the crimes listed in subsection (2) of this section; or
      "* * * * *
      "(2) The crimes to which subsection (1) of this section applies are:
      "(a) Theft in the second degree under ORS 164.045 ;
      "* * * * *
      "(d) Unauthorized use of a vehicle under ORS 164.135 ;"
      "* * * * *
      "(3)(a) A presumptive sentence described in subsection (1) of this section shall be increased by two months for each previous conviction the person has that:
      "(A) Was for any of the crimes listed in subsection (1) or (2) of this section; and
      "(B) Was not used as a predicate for the presumptive sentence under subsection (1) of this section."

      As relevant to defendant, section 8 thus provided (using the usual convention of setting out new material in bold and omitted material in bracketed italics):
      "ORS 137.717, as amended by [Ballot Measure 57] is amended to read:
      "137.717(1) When a court sentences a person convicted of
      "* * * * *
      "(b) Theft in the first degree under ORS 164.055 * * ** * the presumptive sentence is [18 ] 13 months of incarceration, unless the rules of the Oregon Criminal Justice Commission prescribe a longer presumptive sentence, if the person has:
      "* * * * *
      (B) [Two ] Four or more previous convictions for any combination of the listed in subsection (2) of this section[.]
      "* * * * *
      "[ (3)(a) A presumptive sentence described in subsection (1) of this section shall be increased by two months for each previous conviction the person has that :]
      "[ (A) Was for any of the crimes listed in subsection (1) or (2) of this section; and ]
      "[ (B) Was not used as a predicate for the presumptive sentence under subsection (1) of this section.]"

      As relevant to defendant, section 11 provided: "ORS 137.717, as amended by [Ballot Measure 57], and section 8 of this 2009 Act, is amended to read:
      "* * * * *
      "(b) Theft in the first degree under ORS 164.055 * * * *, the presumptive sentence is [13 ] 18 months of incarceration, unless the rules of the Oregon Criminal Justice Commission prescribe a longer presumptive sentence, if the person has:
      "* * * * *
      "(B) [Four ] Two or more previous convictions for any combination of the crimes listed in subsection (2) of this section.
      "(3)(a) A presumptive sentence described in subsection (1) of this section shall be increased by two months for each previous conviction the person has that:
      "(A) Was for any of the crimes listed in subsection (1) or (2) of this section; and
      "(B) Was not used as a predicate for the presumptive sentence under subsection (1) of this section. "

      Article IV, section 1(1) provides that "[t]he legislative power of the state, except for the initiative and referendum powers reserved to the people , is vested in the Legislative Assembly." Section 1(2) sets out the people's power to propose and then "enact or reject" legislation independently of the Legislative Assembly, and section 1(3) sets out the people's power to "approve or reject" any "Act of the Legislative Assembly" that is referred to them through a referendum petition or order of the Legislative Assembly.

      This court has long recognized that, since Article IV of the Oregon Constitution was amended in 1902, Oregon has had a dual system of legislation and "two law-making bodies, the legislative assembly on the one hand and the people on the other, which in the exercise of legislative powers are coequal and co-ordinate." State ex rel. Carson v. Kozer , 126 Or. 641, 644, 270 P. 513 (1928).

      Thus, to lawfully repeal or amend a criminal sentence that had been approved by the people, the legislature would have to comply with the two-thirds majority requirement in Measure 57.

      Article IV, section 22, of the Oregon Constitution provides in part: "No act shall ever be revised or amended by mere reference to its title, but the act revised, or section amended shall be set forth, and published at full length."