4. Analysis of the Precedents Cited
Except for the court’s citation concerning separate opinions, the precedents below appear in Justice James’s dissent. They inform his proposed inquiry, not an adopted merits analysis by the court.
A. The status of the dissent
State v. DeWitt Simons
The per curiam opinion cites State v. DeWitt Simons, 375 Or 70, 93 n 12 (2026), for the proposition that individual justices may express views in separate opinions, but those views neither predict the court’s future resolution nor constitute a court-sanctioned invitation to litigate them. This citation supplies an explicit interpretive limit: Justice James’s discussion cannot be treated as recognition of inherent dismissal authority.
B. Oregon’s grand jury function and hearsay restriction
State v. Burleson
State v. Burleson, 342 Or 697, 703 (2007), describes the grand jury as a body of ordinary citizens whose approval is required before the state initiates major criminal accusations. Its protective function is to restrain potential abuse of the accusatory process.
Justice James uses that characterization to explain why evidentiary safeguards matter before trial. A later determination of guilt or innocence does not necessarily eliminate the significance of an unlawfully initiated prosecution.
State v. McDonald
In State v. McDonald, 231 Or 24, 34 (1961), the court treated the grand jury evidence restriction as admonitory rather than mandatory. It reasoned that grand jurors are lay investigators, not judges deciding guilt, and doubted that the legislature intended strict compliance with trial admissibility rules.
Justice James contrasts that approach with the subsequent adoption of OEC 101(4)(b). The legislative commentary expressly disapproved the pertinent case law and stated that the legislature intended the statute to mean what it said. The dissent therefore treats the prohibition’s mandatory character as a deliberate legislative choice rather than a merely aspirational instruction.
The opinion does not, however, contain a new majority ruling formally reconsidering State v. McDonald. Its significance here is historical: it shows how the legislature responded to an earlier judicial narrowing of the restriction.
C. The asserted exclusivity of statutory dismissal grounds
State v. Stout
State v. Stout, 305 Or 34, 38 (1988), is the central obstacle to Driver’s position. It declared that the grounds in ORS 135.510 for setting aside an indictment are exclusive. Because improper hearsay was not among those grounds, the court refused to set aside the indictment.
That decision avoided resolving the effect of OEC 101(4)(b) on State v. McDonald. Instead, it shifted the inquiry from whether hearsay was prohibited to whether the legislature had supplied a dismissal remedy.
Justice James suggests that the exclusivity statement might be broader than necessary because the court was not asked to examine inherent supervisory authority. He therefore raises the possibility of distinguishing or limiting the decision. That is a proposed argument, not a determination that the exclusivity statement is nonbinding.
State v. Whitney
State v. Whitney, 7 Or 386, 388 (1879), supplied the foundation for the exclusivity proposition in State v. Stout. It interpreted an earlier criminal-code provision identifying two circumstances in which an indictment must be set aside and declared them the only permissible grounds.
The challenged defect involved an unauthorized person’s appearance before the grand jury. Because the relevant prohibition was outside the provisions incorporated into the dismissal statute, the court rejected relief.
Justice James emphasizes the brevity of that reasoning and the absence of an inquiry into inherent judicial authority. His concern is that a conclusion about what a statute authorizes may have become a broader conclusion about every possible source of judicial power.
D. Judicial supervision and its limits
State v. Wall
State v. Wall, 374 Or 407, 413–14 (2025), identifies the grand jury’s institutional connection to Oregon’s courts. Courts participate in selecting and excusing grand jurors, appointing forepersons, administering oaths, instructing grand juries, resolving legal questions, authorizing certain participants and evidence, and determining the duration of service.
For Justice James, those responsibilities support investigating whether supervision includes an inherent power to remedy unlawful evidentiary presentations. But the institutional relationship described in State v. Wall does not itself establish a dismissal remedy.
United States v. Hasting and McNabb v. United States
United States v. Hasting, 461 US 499, 505–06 (1983), quoting McNabb v. United States, 318 US 332, 341 (1943), recognizes that federal courts may, within limits and guided by considerations of justice, formulate procedural rules not expressly required by the Constitution or Congress.
The dissent identifies three purposes of supervisory authority discussed in United States v. Hasting: remedying violations of recognized rights, preserving judicial integrity, and deterring illegal conduct. These purposes offer an analogy for enforcing Oregon’s statutory grand jury safeguards.
The analogy remains conditional. Federal supervisory doctrine does not automatically establish the existence or scope of a corresponding Oregon power.
United States v. Williams
United States v. Williams, 504 US 36, 50 (1992), provides the counterweight: any federal judicial power to formulate grand jury procedural rules on the court’s own initiative is very limited.
Justice James acknowledges that limitation. His narrower suggestion is that enforcing an existing, explicit legislative prohibition may warrant consideration even where courts cannot freely create new grand jury procedures.
E. Statutory interpretation: mandatory does not necessarily mean exclusive
Bacote v. Johnson
Bacote v. Johnson, 333 Or 28, 33 (2001), states that “shall” expresses a mandatory command. Justice James uses that proposition to distinguish required action from the full range of permissible action: ORS 135.510 says when an indictment must be set aside, but does not expressly say those are the only circumstances in which it may be set aside.
Linn County v. Brown and AAA Oregon/Idaho Auto Source v. Dept. of Rev.
Linn County v. Brown, 366 Or 334, 342 (2020), citing AAA Oregon/Idaho Auto Source v. Dept. of Rev., 363 Or 411, 418 (2018), invokes the principle that courts should not insert omitted language or remove enacted language when interpreting statutes or constitutional provisions.
The dissent applies that principle to the missing word “only.” Reading ORS 135.510 as saying that an indictment “shall only be set aside” in its enumerated circumstances might, in his view, add a restriction the legislature did not express. Whether context and legislative purpose nevertheless support exclusivity remains unresolved.
Scott v. Ford
Scott v. Ford, 52 Or 288, 296 (1908), recognizes that a statute limiting an act to a particular form may implicitly prohibit other forms. This supports the interpretive maxim expressio unius est exclusio alterius: expressly identifying one thing can imply exclusion of others.
Justice James acknowledges that reasoning but questions whether it should control a provision specifying mandatory remedies without expressly eliminating discretionary authority.
Sunshine Dairy v. Peterson and Cabell v. City of Cottage Grove
Sunshine Dairy v. Peterson, 183 Or 305, 324 (1948), describes the maxim as one interpretive guide rather than a mechanical rule. Cabell v. City of Cottage Grove, 170 Or 256, 281 (1942), likewise requires cautious use as an aid to determining legislative intent.
These decisions support the dissent’s call for examination of statutory purpose instead of assuming that enumeration alone extinguishes other judicial powers.
Vaughn v. Langmack
The dissent quotes Justice Rossman’s dissent in Vaughn v. Langmack, 236 Or 542, 574 (1964), cautioning against treating the maxim as an infallible navigational guide. Because the quoted passage comes from a separate opinion, it supplies persuasive criticism, not a controlling holding.
F. Comparative authority concerning inherent dismissal powers
People v. Thomas
People v. Thomas, 66 NYS 191 (NY Gen Term 1900), provides the dissent’s most developed comparative example. The New York statute required dismissal in two specified situations and included the restrictive phrase “but in no other.”
Nevertheless, the court distinguished mandatory dismissal from discretionary authority. It read the statute as requiring action only in the listed circumstances, without eliminating inherent power to set aside indictments for other adequate reasons. It also stated that removing inherent powers of a court of general jurisdiction requires clear and unequivocal legislative language.
The court illustrated its reasoning through a hypothetical indictment returned without the required grand jury participation or concurrence. Those numerical requirements belonged to the New York provisions discussed there; they are not presented as Oregon standards.
The analogy is historically relevant because Oregon’s early criminal procedure drew substantially from New York’s code. It remains persuasive comparative material, not an Oregon holding.
People v. Molineux
People v. Molineux, 57 NYS 936, 937–39 (NY Gen Sess 1899), supports the New York tradition invoked in People v. Thomas. It recognized discretionary judicial inspection of grand jury minutes and stated that an indictment unsupported by sufficient legal evidence could not stand.
Its relevance extends to both sides of Driver’s procedural problem: judicial access to the evidentiary record and authority to act on defects revealed by that record.
People v. Lawson
People v. Lawson, 67 Ill 2d 449 (1977), recognized authority to dismiss a charge for a clear denial of due process even though that ground was absent from the statutory list. The Illinois court connected that authority to the trial court’s responsibility to ensure a fair trial.
This demonstrates that a statutory enumeration need not invariably exhaust judicial dismissal powers. Its limits are equally important: the case involved an unequivocal due process violation, not a holding that every statutory grand jury evidentiary violation requires dismissal.
State v. Manley
State v. Manley, 197 Iowa 46 (1924), considered an indictment allegedly supported in part by hearsay. The court did not definitively recognize inherent authority beyond statutory dismissal grounds, and declined relief because the circumstances did not require exercise of any such power.
Justice James reads the decision as leaving the underlying authority question open. It therefore offers only qualified support: the possible existence of a power does not establish that a particular evidentiary defect warrants its use.
State v. Baughman and State v. Olson
State v. Baughman, 111 Iowa 71 (1900), reserved the inherent-power question until a case necessarily required its resolution. State v. Olson, 249 Iowa 536, 547 (1957), assumed the power for purposes of analysis but found no proper case for exercising it.
Together with State v. Manley, these authorities reinforce the distinction between recognizing judicial power and determining when relief is justified. They do not establish an automatic remedy for grand jury hearsay.
G. The difficulty of obtaining review after trial
State v. Guse
State v. Guse, 237 Or 479, 482 (1964), states that examining the sufficiency of grand jury evidence after trial serves no useful purpose: acquittal makes the matter moot, while conviction makes it irrelevant.
Justice James reasons that similar reasoning might obstruct later review of the remedial-authority question. That possibility strengthens his preference for considering mandamus before trial. He describes mandamus as a plausibly necessary avenue, not as an established exclusive remedy for this category of claim.
H. Legislative history and secondary authorities
The dissent also cites scholarship discussing grand jury hearsay and reform by Beverly A. Patterson, John G. Cook, Peter Arenella, and Leonard B. Boudin, along with congressional hearing materials. Those sources supply policy context rather than binding rules.
Max Radin’s discussion of statutory interpretation challenges the assumption that naming one category logically excludes all others. The cited Cyclopedia of Law and Procedure and Sutherland Statutory Construction materials explain the exclusion maxim and caution against overuse. A Harvard Law Review note similarly examines how reading mandatory language can implicitly add qualifications or consequences not expressly enacted.
Frederic E. Brown’s historical account of Oregon’s codes supports the relevance of the New York comparison. Legislative testimony and proposed amendments from 2017 support Justice James’s conclusion that Oregon consciously retained its grand jury hearsay restriction despite prosecutorial proposals to relax it.
5. Legal Reasoning and the Unresolved Questions
A. A legislative prohibition without a clear judicial remedy
The dissent’s central concern is an enforcement gap. Oregon prohibits specified grand jury hearsay, yet existing dismissal precedent may prevent courts from correcting an indictment obtained through that prohibited evidence.
Justice James emphasizes two legislative developments. First, the commentary accompanying OEC 101 rejected the view that the restriction was merely advisory. Second, in 2017 the legislature retained the restriction while requiring grand jury recording, notwithstanding proposals from the Oregon District Attorneys Association to permit broader officer-relayed hearsay.
Those developments support the seriousness of the prohibition. They do not, by themselves, establish which remedy follows from its violation. That distinction is precisely why the dissent sought fuller review.
B. Mandatory statutory grounds and discretionary judicial power
The proposed interpretation separates two propositions:
- ORS 135.510 requires dismissal when its specified conditions are met.
- A court might possess an independent power permitting dismissal in additional circumstances.
Those propositions can coexist unless the statute excludes the independent power. Justice James questions whether earlier cases established that exclusion after considering all relevant sources of authority.
This is not an argument that courts may disregard legislative limits. It is an argument about whether the legislature actually imposed the asserted limit and whether prior decisions examined that question adequately.
C. Transcript restrictions create a second barrier
Even a recognized remedy would leave a separate evidentiary-access problem. ORS 132.270(7)(b) prohibits using transcripts to challenge a true-bill endorsement or the proceedings leading to it. Driver’s request for judicial inspection therefore required analysis beyond whether good cause existed.
Driver’s constitutional challenge attempted to overcome that barrier. Neither the per curiam disposition nor the dissent resolved its merits. Nor did the Supreme Court decide whether requesting a preliminary hearing, rather than dismissal, avoided the statutory restriction.
D. The circuit court’s legal premise matters
Justice James observed that a good-cause determination would likely be reviewed for abuse of discretion, but that the circuit court appeared to rely on a legal premise: no meaningful relief was available.
A discretionary decision based on an incorrect understanding of judicial authority presents a different problem from an ordinary discretionary refusal. Whether the premise was incorrect remained unanswered, but its apparent role explains why the dissent considered clarification valuable.
E. Preliminary hearings are not an established substitute
Oregon’s constitutional preliminary-hearing requirement concerns prosecutions initiated by information. Driver sought to use that mechanism to obtain a judicial probable-cause determination notwithstanding the existing indictment.
The decision does not establish an entitlement to such a substitute hearing. The state’s objection—that the request effectively challenged the indictment—also remained unresolved by the Supreme Court.
F. The 2026 hearsay amendment complicates relief
After Driver’s indictment, Oregon Laws 2026, chapter 71, section 1, added ORS 40.460(27). The new exception potentially covers victim statements concerning specified commercial-sex-related offenses, including promoting prostitution.
The exception requires, among other things, that the statement:
- Be made by a victim within 24 hours before or after engaging in, offering, or agreeing to engage in the commercial sex act;
- Be electronically or writtenly recorded, or made to one of the specified officials or emergency responders; and
- Have sufficient indications of reliability.
Reliability must be assessed from all surrounding circumstances. Listed considerations include personal knowledge, independent corroboration, timing, leading questions, and subsequent statements. Recantation alone is insufficient to deny admission without other indications of unreliability.
The amendment may make some statements admissible at trial that were more likely inadmissible when the indictment was obtained. It does not establish that Driver’s particular statements satisfy the exception.
Justice James expressly declined to decide whether later trial admissibility would render the earlier grand jury use harmless. Neither retroactive validation of the indictment nor an automatic entitlement to relief can be inferred from the decision.