State v. Driver

728 October 8, 2026 No. 44 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Adverse Party, v. ZACKERY MAX DRIVER, Defendant-Relator. (CC 25CR23005) (SC S072990) En Banc Original proceeding in mandamus.* On petition for a peremptory or alternative writ of man- damus filed June 1, 2026; considered and under advisement on July 14, 2026. Sara Del Rubin, Assistant Attorney General, Salem, filed the memorandum in opposition for plaintiff-adverse party. Also on the memorandum were Dan Rayfield, Attorney General, and Paul L. Smith, Solicitor General. Lindsey Burrows, Burrows Appellate Law LLC, Portland, filed the petition for writ of mandamus for defendant-relator. PER CURIAM The petition for writ of mandamus is denied. James, J., dissented and filed an opinion, in which Masih, J., joined. ______________ * On petition for a writ of mandamus from an order of Washington County Circuit Court, Kathleen J. Proctor, Judge. Cite as 375 Or 728 (2026) 729 PER CURIAM. The petition for a writ of mandamus is denied.1 JAMES, J., dissenting. In this criminal case, defendant asserts that the state violated Oregon law in securing a felony indictment. ORS 132.320(7)(a) provides that “inadmissible hearsay of persons other than the peace officer who compiled the offi- cial report may not be presented to a grand jury.” Defendant argues that, based on the witnesses listed on the indictment, it is apparent the state relied on a single officer to convey various out-of-court statements from multiple alleged vic- tims. The state doesn’t dispute that the officer did so, only that such statements were either not hearsay, or that some exception applied. Relator sought relief from the trial court, but none came. Relator then petitioned this court for an alternative writ of mandamus. Today, we deny that petition for mandamus relief. Mandamus is an extraordinary remedy and, as such, is not appropriate in the vast majority of circumstances. It is also discretionary. I do not fault my colleagues for declining to exercise their discretion to allow the petition in this case. This case has imperfections. Even so, I see value in us tak- ing up this case and write to explain my thinking. When I read this record, I see a trial court uncertain if it has authority to act, even if it concludes that defendant has established that the state relied on inadmissible hearsay. I am concerned that our denial here may reinforce that uncer- tainty. As I will detail, a series of our decisions involving a separate statute—ORS 135.510, which lists two situations in which a court must set aside an indictment—have seemingly painted courts into a corner, and now, those decisions may have courts conclude that there is apparently nothing to be done, nor any mechanism by which courts can give effect to the intent of the legislature on the subject of the grand jury’s 1 As we have previously observed, “It is the prerogative of any member of this court to express their thoughts in separate opinions. Those separate opinions should not be taken as any indication of how the court, as a whole, would address an issue in a future case, nor as an invitation by the court for litigants to under- take such arguments.” State v. DeWitt Simons, 375 Or 70, 93 n 12, 587 P 3d 311 (2026). 730 State v. Driver use of inadmissible hearsay. But it seems to me that our prior decisions may be distinguishable, and there are arguments we have yet to take up that there may be inherent authority for a trial court to set aside an indictment for violation of ORS 132.320(7)(a). As such, I would exercise my discretion to issue the alternative writ to consider those issues and to clarify the authority of trial courts in these circumstances. I. BACKGROUND On October 27, 2025, the state charged defendant by way of grand jury indictment with, among other things, 25 counts of promoting prostitution. None of the victims tes- tified at the grand jury proceedings. Instead, according to the indictment, only one witness testified: a police officer. At the time it secured the indictment, no explicit hearsay exception applied for human trafficking. As part of pretrial motions practice following the indictment, defendant argued to the trial court that the offi- cer’s grand jury testimony was hearsay, which the grand jury is prohibited by statute from hearing. Although defendant alleged that the indictment was obtained through improper hearsay testimony, he did not ask the trial court to set aside the indictment, likely believing that such relief was pre- cluded in light of our decision in State v. Stout, 305 Or 34, 38, 749 P2d 1174 (1988), where, interpreting ORS 135.510(1), we held that “[t]his court has long held that the grounds listed in ORS 135.510 for setting aside an indictment are exclusive.” Those grounds are largely procedural and do not include the use of inadmissible evidence. See id. at 41 (acknowledging that prosecutors generally may not use hearsay testimony in grand jury proceedings but refusing to set aside an indict- ment obtained based on hearsay testimony). So, instead of asking the trial court to set aside the indictment, defendant asked the trial court for a pre- liminary hearing to determine whether there was probable cause to support the charge. When an individual is charged on an information, rather than an indictment, the district attorney must make a showing of probable cause to sup- port the charge at a preliminary hearing before a judge. Or Const, Art VII (Amended), § 5(5). Defendant argued that the Cite as 375 Or 728 (2026) 731 relief for an improperly obtained indictment should be a pre- liminary hearing.1 Having established the relief that he was seeking, defendant then argued that the trial court should review the grand jury transcripts in camera to determine whether, in fact, the state had relied on improper hearsay testimony. The use of grand jury transcripts is limited by statute. Most relevantly, ORS 132.270(2)(c) provides that the transcripts may be released only for good cause: “Unless the court orders otherwise for good cause shown, the prosecuting attorney and the defense attorney may not copy, disseminate or republish the audio recording, the notes or report of a shorthand reporter, or a transcript prepared from the audio recording, notes or report, released pursuant to this subsection, except to provide a copy to an agent of the prosecuting attorney or defense attorney for the limited purpose of case preparation.” Defendant argued under that statute that there was good cause for the trial court to review the transcripts in this case. Anticipating the state’s objection to that use of the transcripts under ORS 132.270(7)(b)—which provides that grand jury transcripts “[m]ay not be used to challenge the indorsement of an indictment as ‘a true bill’ or the proceed- ings that led to the indorsement”—defendant argued that, to the extent that ORS 132.270(7)(b) limits his ability to prove a violation, then the statute violates the remedies clause under Article I, section 10, of the Oregon Constitution. In its response, the state in fact relied on ORS 132.270(7)(b), arguing that defendant was attempting to use the transcripts to challenge the grand jury proceedings. The state pointed out that, regardless of how defendant framed the relief he was seeking, he was trying to set aside the indictment based on the use of hearsay testimony, contrary to long-standing interpretation of the governing statutes. The state also argued that there is no good cause to review the transcripts if there is no relief. The trial court denied defendant’s motion. In doing so, the trial court found no good cause to review the transcripts 1 In the alternative to a preliminary hearing, defendant asked the court to release him from custody. But he didn’t develop that as an argument. 732 State v. Driver for the purpose of challenging the indictment. The trial court entered a written order denying the motion, which states, “The Court does not find good cause to release the grand jury proceeding/transcript to the court for the purpose of setting aside the indictment in this case. The transcript of the grand jury proceedings in this case was received at the motions hearing as an offer of proof and is labeled as defen- dant’s exhibit 108. The court declines to find that ORS 132. [2]70[2] is unconstitutional and further does not find suf- ficient, or any grounds, to set aside the indictment in this case.” Defendant timely petitioned this court for a writ of mandamus to challenge that order. Although the trial court’s good cause determination is likely reviewed for abuse of dis- cretion, the trial court’s ruling appears to be premised on a legal conclusion—namely, whether defendant was, in effect, seeking dismissal and whether that remedy is available for the alleged violation, if established. And that brings us to the question that lies at the heart of this dispute: If a trial court believes there has been a violation of ORS 132.320(7) (a), can a trial court grant a remedy? II. ANALYSIS A. Grand Juries and Hearsay The grand jury is an ancient mechanism—one cen- tral to our democratic system and our Anglo-American rule of law—whose “function as an accusatory body serves a cru- cial role in protecting individual liberties.” State v. Burleson, 342 Or 697, 703, 160 P3d 624 (2007). It is “an institution in which a group of ordinary citizens must approve of the initi- ation of the state power to accuse citizens of major crimes.” Id. Consequently, it “serves as a brake on the state’s poten- tial abuse of the accusatory process.” Id. Whether grand juries should indict based on hear- say has long been a subject of debate.3 Hearsay is inherently 2 The order refers to ORS 132.370, rather than ORS 132.270. That was a typographic error introduced by defendant’s briefing. Despite the misattribution, the statute defendant challenged was ORS 132.270. 3 See, e.g., Beverly A. Patterson, The Prosecutor’s Unnecessary Use of Hearsay Evidence Before the Grand Jury, 61 Wash U LQ 191 (1983); The Grand Jury Reform Act of 1978: Hearings on S.3405 Before the Subcomm on Administrative Practice Cite as 375 Or 728 (2026) 733 unreliable; that is why its use is prohibited at trial, absent an exception. And those exceptions are, themselves, designed to address discrete circumstances in which those statements are deemed to be more reliable. To illustrate, consider that a grand jury indictment based on hearsay could permit the following: a single grand jury witness testifies that “Mary told me that David told her, that Susan told him, that Bill told her that he saw the defendant steal the item.” Indicting based on that testimony alone obviously carries significant risk. Weighing that potential risk against such counter- vailing interests as minimizing trauma to victims, efficiency, and expediency, the majority of jurisdictions have chosen to permit the presentation of hearsay testimony before grand juries. Oregon has not. Indeed, Oregon is among a small number of states that have chosen to prohibit, in some man- ner, presentation of inadmissible hearsay to the grand jury. Specifically, Oregon permits otherwise inadmissible hear- say to be presented to the grand jury in a single circum- stance. By its terms, ORS 132.320(7)(a) prohibits “inadmis- sible hearsay of persons other than the peace officer who compiled the official report.” Thus, police officers may testify as to the hearsay of some other police officers, but inadmis- sible hearsay of all nonofficer witnesses is prohibited. We first construed the grand jury hearsay prohi- bition in State v. McDonald, 231 Or 24, 34, 361 P2d 1001 (1961). There, despite the clear prohibition of the statute, we concluded that the legislature simply could not have meant what it said: “The defendant construes ORS 132.320 * * * in its strict lit- eral sense. It should be remembered that a grand jury is an investigating and accusatory body consisting, not of law- yers and jurists, but of laymen who have no power to deter- mine the guilt of an accused, and we cannot, therefore, believe it was the intention of the legislature to require that the grand jury should hear only such testimony as and Procedure of the Senate Comm on the Judiciary, 95th Cong, 2d Sess. 154 (1978); John G. Cook, Constitutional Rights of the Accused: Pretrial Rights 488-90 (1972); Peter Arenella, Reforming The Federal Grand Jury and The State Preliminary Hearing to Prevent Conviction Without Adjudication, 78 Mich L Rev 463, 496-99 (1980); Leonard B. Boudin, The Federal Grand Jury, 61 Geo LJ 1, 25-29 (1972). 734 State v. Driver would be competent in a court of law. We doubt that there are many grand juries which have not been subjected to hearsay testimony during their investigations. This stat- ute is admonitory in character only, not mandatory, advis- ing the grand jury to disregard incompetent evidence in returning an indictment and to consider evidence only of such character that it may be used in the trial to support a conviction of the accused.” Id. The legislature responded by adopting OEC 101 (4)(b), which provides that most of the evidence code, including the rules governing witnesses and hearsay, does not apply to “[p]roceedings before grand juries, except as required by ORS 132.320.” OEC 101(4)(b) (emphasis added). And to remove all doubt, the commentary to that rule spe- cifically identified the offending language in McDonald to the effect that the rules of evidence were merely admonitory, adding, “The Legislative Assembly disapproves this case law. It intends that the statute mean what it says.” OEC 101 Commentary (1981). The legislative intent to preclude the presentation of hearsay evidence to the grand jury remains resolute. In 2017, for example, the Oregon Legislature took up the issue of the recordation of grand jury proceedings. At that point in time, Oregon was an outlier among a shrinking number of jurisdictions that did not record grand jury proceedings. Two bills were advanced in the 2017 regular session, Senate Bill (SB) 496, and SB 505, and testimony carried over between them. The Oregon District Attorneys Association (ODAA) opposed the initial proposals and presented an amendment at the outset seeking to trade its support for grand jury recor- dation in exchange for certain procedural changes—impor- tantly among them, the elimination of ORS 132.320(7)(a). See Written Testimony, SB 496 and SB 505, Senate Committee on Judiciary, Mar 8, 2017 (statement of Walt Beglau on behalf of the ODAA) (enumerating ODAA’s con- cerns that, as drafted, SB 496 and SB 505 will disadvantage prosecutors); SB 496 (2017), -1 amendments (Mar 6, 2017) (proposing to amend ORS 132.320 to permit grand juries Cite as 375 Or 728 (2026) 735 to return indictments based entirely on hearsay statements related by a peace officer); SB 505 (2017), -1 amendments (Mar 6, 2017) (same). SB 496 and 505 were the subject of multiple hearings, and it was made demonstrably clear to the legislature—in charts, graphs, and testimony—that ORS 132.320(7)(a) was a minority rule. Once again, the Oregon Legislature kept it—rejecting the amendment and mandating the recording of grand juries with no changes to ORS 132.320(7)(a). It is abundantly clear to me that the Oregon Legislature has made a deliberate choice to limit the pre- sentation of hearsay evidence to grand juries, even though that is a minority rule nationally. It is also clear that the legislature does not view its prohibition as advisory. Indeed, faced with a concerted effort to repeal that requirement, it has declined to do so repeatedly and recently. So, if a court concludes that the statute has been violated, is there really nothing that court can do? B. The Inherent Supervisory Authority of a Court Over the Grand Jury The grand jury sits as part of the judicial branch of government. As we recently clarified in State v. Wall, 374 Or 407, 413-14, 578 P3d 1215 (2025): “It is the court that draws grand jurors ‘from the jurors in attendance upon the circuit court at a particular jury service term.’ ORS 132.010; see also ORS 132.020 (describ- ing duties of the court in empaneling the grand jury); ORS 132.030 (permitting judge or clerk of the court to excuse a grand juror from service); ORS 132.050 (requiring the court to appoint a foreman and an alternate foreman of the grand jury); ORS 132.060 (requiring administration of grand juror oaths ‘under the direction of the court’); ORS 132.070 (requiring the court to charge the grand jury and ‘give it such information as the court deems proper con- cerning the nature of its powers and duties’). “The court resolves disputes about the grand jury pro- ceedings, advises the grand jury on the law, and performs other functions with respect to the grand jury. See ORS 132.370(1) (‘When the grand jury is in doubt whether the facts, as shown by the evidence before it, constitute a crime 736 State v. Driver in law or whether the same has ceased to be punishable by reason of lapse of time or a former acquittal or convic- tion, it may make a presentment of the facts to the court, without mentioning the names of individuals, and ask the court for instructions concerning the law arising thereon.’); ORS 132.070 (the court charges the grand jury and gives it ‘such information as the court deems proper concerning the nature of the [grand jury’s] power and duties’); ORS 132.090(2) - (3) (the court may permit parents, guardians, guards, medical or other special attendant or nurse or qual- ified interpreters to be present in the grand jury room); ORS 132.250(2)(b) (the court may appoint and permit a certified court reporter to attend all proceedings of the grand jury); ORS 132.320(3) (the court may authorize the grand jury to receive an affidavit of a witness after good cause has been shown for the witness’ inability to appear); and ORS 132.120 (the court discharges or continues the grand jury in session for such period of time as the judge deems advisable).” (Emphasis in original). Because the grand jury sits within the judicial branch, we have a special supervisory role over it. Other courts have concluded that that relationship gives rise to a court’s common-law authority to fashion a remedy in the face of grand jury presentation issues. The United States Supreme Court has said, in the context of the federal court system, that “ ‘guided by considerations of justice,’ and in the exercise of supervisory powers, * * * courts may, within lim- its, formulate procedural rules not specifically required by the Constitution or the Congress.” United States v. Hasting, 461 US 499, 505-06, 103 S Ct 1974, 76 L Ed 2d 96 (1983) (quot- ing McNabb v. United States, 318 US 332, 341, 63 S Ct 608, 87 L Ed 819 (1943) (brackets omitted)). Although the United States Supreme Court directs federal courts to invoke their inherent supervisory authority sparingly, it has approved of the practice in service of “threefold” purposes: (1) “to imple- ment a remedy for violation of recognized rights,” (2) “to pre- serve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury,” and (3) “as a remedy designed to deter illegal conduct.” Hasting, 461 US at 505 (internal citations omitted). Elsewhere, the Court has noted that “any power federal courts may have to fash- ion, on their own initiative, rules of grand jury procedure is Cite as 375 Or 728 (2026) 737 a very limited one.” United States v. Williams, 504 US 36, 50, 112 S Ct 1735, 118 L Ed 2d 352 (1992). The possibility that Oregon courts possess inherent supervisory authority over grand juries is an idea that we have never explored in our decisions concerning grand jury hearsay.4 If Oregon courts were found to enjoy an equivalent inherent authority, even a limited exercise of that authority could plausibly include the ability to enforce the legislature’s unambiguous intent to preclude grand juries from being presented hearsay evidence. Following the legislature’s reminder that it did not view its prohibition on grand jury hearsay as advisory, we took up the issue again in State v. Stout, where we avoided the import of the legislative commentary to OEC 101(4)(b) by shifting the focus onto a different statute: “[W]e need not consider the effect of OEC 101(4)(b) on State v. McDonald, supra, because another consideration dis- poses of this case. ORS 135.510 provides: “ ‘(1) The indictment shall be set aside by the court upon the motion of the defendant in either of the follow- ing cases: “ ‘(a) When it is not found, indorsed and presented as prescribed in ORS 132.360 [number of jurors required to concur], 132.400 to 132.430 [indorsement of indict- ment as ‘a true bill’; filing and inspection of indictment; prohibition against disclosing any fact concerning an indictment not subject to public inspection; indorsement of indictment as ‘not a true bill’] and 132.580 [requiring names of grand jury witnesses to be on indictment]. “ ‘(b) When the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon.’ ” 305 Or at 38 (bracketed information in Stout). Then, we held, “[t]his court has long held that the grounds listed in ORS 135.510 for setting aside an indictment are exclusive.” Id. Stout located support for that proposition in State v. Whitney, 7 Or 386, 388 (1879). On that issue, here is the entirety of Whitney’s reasoning: 4 I do not foreclose that there may be many other things that we have not considered concerning this issue. 738 State v. Driver “Section 115 of the Criminal Code provides that ‘the indict- ment must be set aside by the court upon the motion of the defendant in either of the following cases:— “ ‘1. When it is not found indorsed and presented as prescribed in chapter 7 of this Code. “ ‘2. When the names of the witnesses examined before the grand jury are not inserted at the foot of the indict- ment, or indorsed, thereon.’ “These, we hold, are the only two cases for which an indict- ment can be set aside; and as the section prohibiting any person, other than the district attorney, from appearing before the grand jury is not in chapter 7, there was no error in the ruling of the court.” Whitney, 7 Or at 388. Thus, Stout summarily held that, because the legislature had not included violations of ORS 132.320(7)(a) among the bases for setting aside an indict- ment under ORS 135.510, courts therefore lacked the ability to set aside an indictment for that reason. There are plausible arguments that Stout may not control here, or perhaps, that its reach is limited. As an ini- tial matter, it does not appear that the issue of exclusivity was properly before us, in either Whitney or Stout. From my review of those cases and the briefing (where it survives), we were never presented with the question of inherent advisory authority, nor asked to declare the statute exclusive. The sole question was whether the statute—not some other source of authority—permitted the court to set aside the indictment. So viewed, Stout’s passing remark about exclusivity was not necessary to the holding in that case and could perhaps be classified as dictum. Further, ORS 135.510 speaks to when an “indict- ment shall be set aside by the court upon the motion of the defendant.” ORS 135.510 (emphasis added). “The term ‘shall’ is a command expressing what is mandatory.” Bacote v. Johnson, 333 Or 28, 33, 35 P3d 1019 (2001). Although ORS 135.510 declares when a court must set aside an indictment, it does not necessarily follow that a court lacks authority to set aside an indictment in other cir- cumstances. As a general matter of text and grammar, a statute mandating a particular result in a specific set of Cite as 375 Or 728 (2026) 739 circumstances, without more, does not axiomatically fore- close discretionary authority to impose that same result for other, unenumerated circumstances. One could argue that, to accomplish that result, ORS 135.510 would need to say, “[t]he indictment shall only be set aside * * * in either of the following cases.” Stout’s interpretation of ORS 135.510 as exclusive may require inserting a word into the stat- ute that is omitted, a practice this court generally forgoes. “[I]n constitutional as well as statutory interpretation, ‘courts are not to insert what has been omitted, or to omit what has been inserted.’ ” Linn County v. Brown, 366 Or 334, 342, 461 P3d 966 (2020) (citing AAA Oregon/Idaho Auto Source v. Dept. of Rev., 363 Or 411, 418, 423 P3d 71 (2018)); see Note, Reconciling Textualism with Agency Prioritization Among Clear Statutory Mandates, 137 Harv L Rev 2276, 2281 (2024) (“[A] court that interprets a statutory ‘shall’ provision as mandatory regardless of the circumstances overreads the text. * * * The traditional approach is to see that text as an unconditional mandate for all circumstances * * *. That reading, however, implicitly adds additional lan- guage to the statute.”). True, we have said that “whenever a statute lim- its a thing to be done in a particular form, it necessarily includes in itself a negative, viz., that the thing shall not be done otherwise.” Scott v. Ford, 52 Or 288, 296, 97 P 99 (1908) (internal citation omitted). That is an expression of the maxim expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). See 19 Cyclopedia of Law and Procedure 23-27 (William Mack ed 1905). However, that maxim is not without detractors: “The rule that the expression of one thing is the exclu- sion of another is in direct contradiction to the habits of speech of most persons. To say that all men are mortal does not mean that all women are not, or that all other animals are not. There is no such implication, either in usage or in logic, unless there is a very particular emphasis on the word men. It is neither customary nor convenient to indi- cate such emphasis in statutes, and without this indica- tion, the first comment on the rule is that it is not true.” Max Radin, Statutory Interpretation, 43 Harv L Rev 863, 873-74 (1929-30). 740 State v. Driver At a minimum, we have also cautioned that expres- sio unius is not a rule of law but is instead a potential tool to understanding legislative intent. See, e.g., Sunshine Dairy v. Peterson, 183 Or 305, 324, 193 P2d 543 (1948) (the maxim expressio unius “is not a rule of thumb, but only one of many guides to construction”). That is, the maxim “is to be applied with caution and merely as an auxiliary rule to determine the legislative intention.” Cabell v. City of Cottage Grove, 170 Or 256, 281, 130 P2d 1013 (1942); see also Frank E. Horack Jr., 2 Sutherland Statutory Construction § 4917, 418 (3d ed 1943) (warning that the maxim “requires great caution in its application, and in all cases is applicable only under cer- tain conditions”). Courts must not “render to it fealty that is akin to a navigator’s respect for the pole star.” Vaughn v. Langmack, 236 Or 542, 574, 390 P2d 142 (1964) (Rossman, J., dissenting). Here, application of the maxim to ORS 135.510 requires an inquiry into purpose and legislative intent that we have yet to undertake in our case law. We also have yet to engage in a comparison of our reasoning to other jurisdictions. For example, in People v. Thomas, 66 NYS 191 (NY Gen Term 1900), the defendant sought to set aside an indictment because the only evidence presented to the grand jury was based on hearsay. The court acknowledged “the inherent power of the court to set aside indictments improperly found,” as established by other New York court decisions,5 but in this case it reaffirmed that authority in light of section 313 of the New York criminal code, which, like the predecessor to ORS 135.510, outlined a limited number of grounds upon which the court “must” set aside an indictment upon motion of the defendant.6 Id. 5 See, e.g., People v. Molineux, 57 NYS 936, 937-39 (NY Gen Sess 1899) (explaining that “[i]t is within the power of the court to entertain a motion to inspect the minutes of the grand jury, and it is addressed to its discretion,” and “[i]f the indictment was found without sufficient legal evidence to sustain it, it is not an indictment in contemplation of law, and cannot stand”). 6 The New York statute provided: “The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other: “(1) When it is not found, indorsed, and presented as prescribed in sections two hundred and sixty-eight and two hundred and seventy-two; “(2) when a person has been permitted to be present during the session of a grand jury, while the charge embraced in the indictment was under Cite as 375 Or 728 (2026) 741 at 192-93. In fact, the language of the New York statute was quite like the version of ORS 135.510 that this court ana- lyzed in Whitney, which is unsurprising given that Oregon’s original criminal code was based largely on the work of an 1854 Oregon territorial commission who adopted the entire 1850 New York Code, as well as updates to that code under- taken in New York.7 The Thomas court began by construing the mean- ing of the word “must”: “There is no doubt of the power of the legislature to ‘prescribe a practice in criminal procedure which must be regarded by the courts, and which must be taken as exclu- sive of any practice the courts may seek to adopt in conflict with it.’ The question is, has the legislature, by this section, taken away the inherent power of the court to set aside indictments for reasons other than those mentioned in it? The word ‘must’ is mandatory. It means ‘obliged,’ ‘required,’ and imports a physical or moral necessity. The word ‘may,’ when used in a statute which imposes an imperative duty, is construed to mean ‘must,’ but the word ‘must’ has never been construed to mean ‘may.’ It is peremptory. It excludes all discretion, and imposes upon the court an absolute duty to perform the requirements of the statute in which it is employed. Section 313, therefore, imposes upon the court, in the two cases therein referred to, the absolute duty to dismiss an indictment.” Thomas, 66 NYS at 193. Thomas recognized a court’s inherent authority to set aside an indictment despite the absolute duty to dismiss an indictment in the two enumerated scenarios: consideration, except as provided in sections two hundred and sixty-two, two hundred and sixty-three and two hundred and sixty-four.” NY Crim Proc Code § 313 (1897). 7 In The Sources of the Alaska and Oregon Codes, 2 UCLA-Alaska L Rev 15, 27 (1972), Frederic E. Brown explained that “part of the Oregon Statutes relating to the manner of commencing and prosecuting actions at law, are taken, word for word, from the New York Code.” In fact, “the codes of evidence and of crim- inal procedure added by [Judge Matthew P.] Deady in 1862 derive from [New York legal reformer David Dudley] Field’s final drafts.” Id. at 32. Brown noted that when the two men corresponded in later years, “Field requested samples of indictments used in Oregon, apparently because Oregon had a generation of experience with the codes before they were finally enacted in New York.” Id. at 33. 742 State v. Driver “But do the words ‘but in no other’ deprive the court of the power, to be exercised according to its discretion, to set aside indictments for other adequate reasons? Transposing the language of this section, it would read: ‘In the two fol- lowing cases, but in no other, the court must set aside the indictment.’ Substitute for the word ‘must’ its definition and transposed it will read thus: ‘In the two following cases, but in no other, the court is obliged [required] to set aside the indictment.’ As to these two cases mentioned in this section the court has no discretion. There is an absolute require- ment that in such cases the indictment shall be set aside. The provision is peremptory. The court must perform the duty imposed by this section, and, because of the limitation expressed in the words ‘but in no other,’ is not commanded to set aside an indictment for any other reasons than those expressed in the statute. This section, however, does not interfere with the discretionary power of the court to set aside an indictment for other sufficient reasons. While this section imposes upon the court a necessity to act in a certain way in either of the cases therein stated, it goes no further than to declare that such necessity, obligation, or require- ment is not imposed upon the court in any other case; and the court still, as heretofore, has control and authority over its own records, and may still exercise its inherent right to set aside indictments for reasons other than those stated in sec- tion 313. It is only by the employment of clear and unequiv- ocal language that the inherent powers of a court of general jurisdiction can be taken away by legislative enactment.” Id. at 193-94. After concluding that the statute did not foreclose a court from invoking its inherent authority to set aside an indictment for reasons other than those enumerated in the relevant statute, the court then applied that rationale to a hypothetical scenario in which a grand jury indicted an individual without the requisite number of jurors: “Section 224 of the Code of Criminal Procedure declares that the presence of at least 16 members of a grand jury is necessary for the transaction of business. Section 268 pro- vides that an indictment cannot be found without the con- currence of at least 12 grand jurors. Suppose an indictment is in fact found by a grand jury composed of less than 16, or that less than 12 concur in the finding of an indictment; may it not be set aside on motion, notwithstanding the Cite as 375 Or 728 (2026) 743 terms of section 313? The question cannot be raised upon the trial, because a plea of not guilty concedes the validity of the indictment. It cannot be raised by demurrer, because such defect would not appear upon the face of the indict- ment, and because, moreover, it is not embraced within sec- tion 323 of the Code. If it may not be set aside upon motion, a person may be put upon trial, and subjected to all the expense, trouble, and ignominy incident thereto without any charge ever having been legally preferred against him. There can be no question, it seems to me, that in such case the court may set the indictment aside.” Id. at 194. Like Thomas, other courts, either explicitly or implic- itly, have also recognized the inherent authority of courts to set aside an indictment in the face of a statute providing only limited grounds for doing so. In People v. Lawson, 67 Ill 2d 449, 453, 367 NE 2d 1244, 1246 (1977), for example, the Illinois Supreme Court addressed that question after the state appealed a trial court’s dismissal of indictments on due process grounds. The state highlighted how section 114-1 of the Code of Criminal Procedure of 1963, whose language is a bit broader than ORS 135.510, provided that a court could only dismiss a charge on certain select grounds, and a viola- tion of due process was not among them. Id. at 454, 367 NE 2d at 1246. The court distinguished the prior cases in which it held that the trial court may not dismiss an indictment for a reason not enumerated in the statute on the grounds that those cases did not concern a clear denial of due process. Id. at 455, 367 NE 2d at 1246. Rather, the court reasoned, “Because the trial court has the obligation to insure a fair trial, it would seem only reasonable that, where there has been an unequivocally clear denial of due process such as actual and substantial prejudicial delay before an indict- ment or arrest, the trial court has the inherent authority to dismiss.” Id. Accordingly, the court concluded, “a trial court has authority to dismiss an indictment, information or com- plaint on the basis of denial of due process even though that is not one of the grounds listed in section 114-1 of the Code of Criminal Procedure of 1963.” Id. at 455, 367 NE 2d at 1246. Similarly, in State v. Manley, 197 Iowa 46, 196 NW 724, 725 (1924), the defendant moved to quash an indictment 744 State v. Driver on the grounds that the grand jury had relied, in part, on hearsay evidence. At the time, Iowa law prescribed no par- ticular remedy for a grand jury indictment obtained through incompetent evidence. Accordingly, the court understood the question before it as whether “the court has an inher- ent power to set aside an indictment on other grounds than those enumerated in the statute; that to hold otherwise would be to put a construction upon the statute that would render it obnoxious to constitutional provisions.” Id. Ultimately, the court declined to recognize such authority, concluding that the violation in question did not warrant it: “The proposition [that the court has an inherent power to set aside an indictment on other grounds than those enumerated in the statue] might, for the mere sake of argu- ment, be conceded without aiding the defendant, though this court has for many years adhered to the rule that an indictment can only be set aside on grounds enumerated in the statute. The fact that the grand jury received incom- petent evidence, or even acted on insufficient evidence, is not one of the grounds for setting it aside found in the stat- ute. The power and authority, or even the duty in a proper case, to do a thing may exist, but it should be exercised only when the circumstances require it. If it be true, as insisted by counsel, that the court possesses an inherent power to set aside an indict