January 23 summaries
1000 Friends of Oregon v. LCDC
LCDC had not adequately explained why inclusion of certain land in a UGB was supported by substantial reason and consistent with Statewide Land Use Planning Goals 9 and 14 and other rules.
Area(s) of Law:- Land Use
Delgado v. Del Monte Fresh Produce, N. A., Inc.
"Employers" under ORS 653.010(3) may be liable for penalty wages on summary judgment under ORCP 61 B.
Area(s) of Law:- Remedies
DHS v. J.G.
When a juvenile court makes an "active efforts" finding at a permanency hearing in which it changes an Indian child's permanency plan from return to parent to establishment of a durable guardianship, section 1912(d) of ICWA does not require the juvenile court to renew that "active efforts" finding at a later proceeding in which the court effects that guardianship placement under ORS 419B.366
Area(s) of Law:- Juvenile Law
State v. A. D. G.
Under ORS 419B.923(7), the juvenile court may enter default judgment, terminating an individual's parental rights, only when that person is absent from the hearing or trial on termination petition.
Area(s) of Law:- Juvenile Law
State v. Lane
OAR 213-012-0040(2) limits a trial court’s authority to impose consecutive prison terms when there is a single probation violation.
Area(s) of Law:- Sentencing
State v. Martin
For an arrest for unlawful prostitution procurement activity (UPPA), the officer must have a substantial objective basis for believing that, more likely than not, the defendant had engaged in conduct constituting a substantial step in furtherance of an act of prostitution.
Area(s) of Law:- Criminal Procedure
Assn. of Acupuncture v. Bd. of Chiropractic Examiners
The State Board of Chiropractic Examiners is limited to making rules that fall within the definition of the practice of "chiropractic" as defined by ORS 684.010(2). Rules made outside the scope of that authority will be found invalid.
Area(s) of Law:- Administrative Law
Central Oregon Intergovernmental Council v. Albert
The Worker's Compensation Board is required to use evidence on the record to determine whether a claimant has been released to his post-injury job, such as medical records, claimant's own description of work history, employer's Regular Duty Job analysis, and evidence about claimant's post injury capacity.
Area(s) of Law:- Workers Compensation
Chou v. Farmers Ins. Exchange
Under ORS 20.310, parties must only include as costs those that were necessarily incurred in appearing for the appeal, exclusive of computerized legal research.
Area(s) of Law:- Attorney Fees
Emerson v. Kusano
In the case of mutual mistake as to policy limits in a settlement agreement, in absence of clear and convincing evidence that the parties would have agreed to the actual policy limits, rather than what they mistakenly believed them to be, there is no antecedent agreement, and there is nothing to which the contract may be reformed.
Area(s) of Law:- Contract Law
Flaig v. Emert
ORS 115.145 and ORS 115.165 do not authorize the summary determination of counterclaims by a personal representative.
Area(s) of Law:- Trusts and Estates
Rhoades v. Beck
Subsequent discovery of a lien will not negate a settled upon contract for full and final release of Defendant when there is evidence objectively establishing the existence of an agreement.
Area(s) of Law:- Contract Law
Root v. Klamath County
To reverse a LUBA decision, the evidence must be so at odds with LUBA's evaluation that it is reasonable to infer that LUBA either misunderstood or misapplied its scope of review.
Area(s) of Law:- Land Use
State v. Brewer
In order to justify the imposition of a downward departure sentence, ORS 137.712(2)(d)(B) requires a defendant to prove that representation of being armed with a dangerous weapon did not reasonably put the victim in fear of imminent significant physical injury.
Area(s) of Law:- Sentencing
State v. Cain
When a business record is maintained in the ordinary course of business, and there is a duty to report, the document qualifies as admissible hearsay under OEC 803(6). Additionally, it is a plain error to impose post-judgment interest on restitution awarded for non-economic damages.
Area(s) of Law:- Evidence
State v. Danielson
Implied consent does not apply to officers opening an almost completely closed bedroom door; therefore, police officers' observations made after doing so are considered an unlawful search.
Area(s) of Law:- Criminal Procedure
State v. Wieboldt
Advising a defendant of the lawful consequences that may flow from his or her decision to engage in a certain behavior ensures that the defendant makes an informed choice whether to engage in that behavior or not. Thus, a statement of the lawful consequences of refusal to submit to breath, blood, or urine tests is not unconstitutionally coercive.
Area(s) of Law:- Criminal Procedure
Howe v. Greenleaf
A statutory presumption exists that parcels of land which have a road as a boundary include up to the center line of the road unless the title to the road is clearly held by another party.
Area(s) of Law:- Property Law
State v. Delong
When an individual consents to a search following a custodial interrogation where Miranda warnings were not given, that consent is not a knowing and voluntary waiver of the individual's rights under the Oregon Constitution.
Area(s) of Law:- Criminal Procedure
State v. Egeland
When refusal to give a requested jury instruction results in a jury conviction that would have likely been affected by the rejected instruction, the court may have committed harmful error.
Area(s) of Law:- Evidence
State v. Neal
When a defendant is not brought to trial in accordance with ORS 135.763 to ORS 135.765 (Oregon's speedy trial provisions) and none of the exceptions under ORS 135.765(2) apply, a court is obligated to dismiss the case upon motion by defendant.
Area(s) of Law:- Criminal Procedure
State v. S.N.R.
For a party to be found grossly negligent for falling asleep while driving, there must have been such prior warning that there was a likelihood they would fall asleep that continuing driving would constitute a conscious and reckless disregard of the possible consequences.
Area(s) of Law:- Juvenile Law
State v. Coverstone
When a trial court imposes court-appointed attorney fees upon a defendant despite no indication on the record of the defendant's ability to pay those fees, it is a "plain error" pursuant to ORAP 5.45(1).
Area(s) of Law:- Sentencing
February 29 summaries
Stevens v. City of Island City
Under ORS 197.835(9)(a)(C), LUBA can only reverse or remand the decision of the local government if the decision is not supported by substantial evidence in the record.
Area(s) of Law:- Land Use
Campbell v. Tardio
A dismissal of an award of custody does not change the date of "commencement of the proceeding" for purposes of determining the "home state" of the child under ORS 109.741(1).
Area(s) of Law:- Family Law
Green v. Franke
To be entitled to post-conviction relief on the basis of inadequate assistance of counsel, a petitioner must show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result. The Oregon Constitution does not give a criminal defendant the right to a perfect defense, but it requires that the lawyer do those things reasonably necessary to diligently and conscientiously advance the defense.
Area(s) of Law:- Post-Conviction Relief
Relling v. Khorenian
A multiplicity of access points to a landlocked parcel defeats an easement of necessity claim.
Area(s) of Law:- Property Law
State v. Adame
If a defendant understands that a refusal to perform verbal field sobriety tests cannot be used against him in a court of law, the defendant is not "compelled" to provide testimonial evidence for the purposes of the self-incrimination clause.
Area(s) of Law:- Criminal Procedure
State v. Bax
When an indictment uses the language of a specific intent, required by a statute, the court should not charge a defendant with lesser-included offenses that have different specific intent or elements than the statute
Area(s) of Law:- Criminal Law
State v. Davis
Second-degree burglary convictions affirmed and reversed based on whether buildings were "not open to the public" as defined in ORS 164.205(3)(a).
Area(s) of Law:- Criminal Law
State v. Gruver
A court cannot convict a defendant on a charge for which the defendant was not indicted, unless the conviction is for an offense that is a lesser-included offense within the offense charged in the indictment.
Area(s) of Law:- Criminal Law
State v. Hikes
A trial court may take into account a defendant’s attitude at sentencing, as well as his extensive criminal history when determining eligibility for sentence modification programs.
Area(s) of Law:- Sentencing
State v. Nugent
In a criminal trespass case, even if the court erred by giving a single instruction rather than a double instruction, the error does not require reversal if the instruction did not mislead the jury.
Area(s) of Law:- Criminal Procedure
State v. Ohotto
Testimony on the rate of dissipation of alcohol in the blood is improper lay opinion where the deputy testifying merely read training manuals on alcohol dissipation, took a training course, and conducted routine DUII investigations.
Area(s) of Law:- Evidence
State v. Richardson
A photograph depicting a fully-clothed child touching a person's leg who is engaged in sexual activity with a naked woman constitutes first-degree encouraging child sexual abuse under ORS 163.684. Additionally, a photograph that depicts a fully-clothed child standing near two people who are in a sexual situation constitutes using a child a in a display of sexually explicit conduct under ORS 163.670.
Area(s) of Law:- Criminal Law
Barkers Five, LLC v. LCDC
LCDC order acknowledging designation of urban and rural reserves in the Metro area was unlawful in substance because it (1) approved Washington County’s misapplication of rural reserve factors, (2) incorrectly found Multnomah County’s consideration of rural reserve factors sufficient, and (3) failed to review designation of Stafford as urban reserve for substantial evidence.
Area(s) of Law:- Land Use
Brand Energy Services, LLC v. OR-OSHA
OR-OSHA rule 29 CFR section 1926.451(g)(1), requiring employees working on scaffolds to be protected by fall-protection systems, does not apply to employees dismantling a scaffold. However, 29 CFR section 1926.451(g)(2) does apply.
Area(s) of Law:- Workers Compensation
D.W.C. v. Carter
Under ORS 30.866, a stalking protective order requires a petitioner have subjective alarm, that alarm to be objectively reasonable, and that alarm to be the result of multiple qualifying contacts.
Area(s) of Law:- Civil Stalking Protective Order
Gambee v. Oregon Medical Board
Under ORS 677.190(1)(b)(A), a doctor that puts his/her patients at a risk of harm greater than the standard treatment does not qualify as “alternative medical treatment.”
Area(s) of Law:- Administrative Law
Haggerty and Haggerty
The trial court erred when it failed to determine whether the parties had entered into a valid settlement agreement.
Area(s) of Law:- Family Law
Leach v. Scottsdale Indemnity Co.
An insurer's duty to defend arises when a claim against its insured could, without amendment, impose liability for conduct covered by the policy. An insurer's duty to indemnify arises only where the insured is actually liable for harm or injury covered by the policy.
Area(s) of Law:- Insurance Law
Singh v. Sidhu
For a party to successfully argue for the reversal of a court's judgment on the basis of a jury's lack of evidence for their conclusion, the party must show that the jury substantially affected their rights.
Area(s) of Law:- Civil Procedure
State v. Clemente-Perez
A person’s “place of residence” under ORS 166.250(2)(b) may encompass temporary structures and outdoor areas adjacent to temporary structures if used for daily living activities. The courts look to evidence of a person’s actual use to determine if it is used for daily living activities.
Area(s) of Law:- Criminal Law
State v. Gray
A court's failure to properly instruct a jury on the requisite culpable mental state required to commit the charged crime will result in plain error, which does not require preservation for appellate review.
Area(s) of Law:- Criminal Procedure
State v. Stinstrom
Administrative seizures are not subject to the inventory exception if the item is not already lawfully possessed by the officer.
Area(s) of Law:- Criminal Procedure
Wright v. Turner
The term "accident", as used in statutorily prescribed insurance contracts, is interpreted by legislative intent. Furthermore, whether more than one "accident" has occurred is ordinarily a question of fact reserved for the factfinder.
Area(s) of Law:- Insurance Law
Dept of Human Services v. A.E.F.
Juvenile statutes authorize a court to order a parent to participate in a psychological evaluation if the evaluation bears a rational relationship to the bases the court found for taking jurisdiction over the child.
Area(s) of Law:- Juvenile Law
Dept of Human Services v. N.B
A marked improvement in mental health condition is not necessarily sufficient to overcome the Court's wardship as to children.
Area(s) of Law:- Family Law
Eclectic Investment, LLC. v. Patterson
The distinction between active and passive negligence is but one factor to consider when determining whether or not indemnification among co-defendants is proper.
Area(s) of Law:- Tort Law
State v. Hawkins
Under ORS 138.230, an error is not harmless when a defendant is denied their right to an acquittal and their right to have the judgment reflect that acquittal.
Area(s) of Law:- Post-Conviction Relief
Utility Reform Project v. PUC
The PUC is not required to order a return of overpayment of taxes to ratepayers where the utility did not earn a reasonable return on investment.
Area(s) of Law:- Administrative Law
Wilson v. Gutierrez
A benefit that is conferred not as a gift but as expected substituted payment can support a finding of unjust enrichment.
Area(s) of Law:- Remedies
March 33 summaries
C.M.V. v. Ackley
In order for a FAPA restraining order to be upheld, a party seeking to maintain the order must make a showing, with evidence, that conduct of the other presented imminent danger of further abuse and a credible threat to physical safety.
Area(s) of Law:- Civil Law
Dept. of Human Servs. v. D. A. S., Jr.
Under ORS 107.097(3)(a), to continue jurisdiction over a juvenile, the party asserting jurisdiction must present evidence that the juvenile would be exposed to a current threat of serious loss or injury.
Area(s) of Law:- Juvenile Law
Head v. Head
The court may not grant relief in the form of modifying a trust instrument's terms, if modification was not reasonably contemplated by the parties and substantially departs from the pleadings and legal theories.
Area(s) of Law:- Trusts and Estates
State v. Burton
In cases litigated prior to State v. Mills, 354 Or 350 (2013), a defendant may challenge venue through a motion for judgment of acquittal.
Area(s) of Law:- Criminal Law
State v. Daniels
A prosecutor can obtain recordings of inmate conversations from the Department of Corrections for discovery and must disclose the recordings to the defendant if the recordings are in the prosecutor's possession or control.
Area(s) of Law:- Criminal Procedure
State v. Ferguson
For purposes of ORS 135.703 and ORS 135.705, the ‘person injured’ who must participate in a valid civil compromise is the person or persons directly injured by the acts criminalized by the statute under which a defendant is charged.
Area(s) of Law:- Criminal Procedure
State v. Lopez
Under ORS 137.106, restitution must be imposed within 90 days after sentencing or otherwise extended by the court for good cause and Defendant must be given an opportunity to be heard before the court on the imposition, amount, or distribution of the restitution.
Area(s) of Law:- Criminal Law
State v. Weilert
Given the state of the law at the time of defendant's trial, it would be unfair to hold that Defendant forfeited the opportunity to challenge venue prior to trial.
Area(s) of Law:- Appellate Procedure
Fox v. Employment Department
A decision under OAR 471-030-0038 denying unemployment benefits for misconduct will not stand unless there are clear findings on intent. Conduct that amounts to an irreparable breach of trust does not remove the need to examine intent.
Area(s) of Law:- Employment Law
Fleming v. Board of Parole and Post-Prison Supervision
Petitioner must first raise issues on administrative review in order for them to subsequently be considered on judicial review.
Area(s) of Law:- Administrative Law
Gomez and Gomez
In awarding child custody, a court must first determine what party is entitled the statutory preference in favor of the primary caregiver under ORS 107.137(1).
Area(s) of Law:- Family Law
Ibarra v. Barnes
In-chambers conversations held off the record may create an insufficient record for the Court of Appeals to review on appeal.
Area(s) of Law:- Family Law
Sherwood Park Business Center, LLC. v. Taggart
If a trial court declares a member's expulsion from an LLC and the remaining members exercise their option to purchase the expelled member's share, the interest owed for the purchase begins to accrue on the date the trial court enters its judgment.
Area(s) of Law:- Corporations
State v. Barnes
Erroneously admitted testimony admissible if there is "little likelihood" it affected the verdict.
Area(s) of Law:- Evidence
State v. Negrete
In order for a factfinder to find the essential elements of a crime beyond a reasonable doubt, the evidence must be sufficient under the totality of the circumstances.
Area(s) of Law:- Criminal Procedure
Tolle v. Franke
A petition for post-conviction relief that meets the requirements of ORS 138.580 should not be dismissed.
Area(s) of Law:- Post-Conviction Relief
Cannon v. Dept. of Justice
Plaintiff commences a timely action under the Oregon Tort Claims Act, and ORS 30.275(2)(b), when he files an action within 180 days of injury and serves Defendant within 60 days of filing.
Area(s) of Law:- Civil Procedure
Clackamas River Water v. Holloway
Under ORS 31.150(1)(3), Oregon's anti-SLAPP statute, a defendant's successful special motion to strike canooot then "proceed to trial."
Area(s) of Law:- Civil Law
Dept. of Human Services v. I.S.
Under ORS 419B.100(1)(c), juvenile dependency jurisdiction is proper when "condition or circumstances are such as to endanger the welfare" of the child. If a court does not find that a parent has exposed children to reasonable likelihood of harm, then the conditions of jurisdiction have not been met.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. R.S.
An agency's initial jurisdiction in juvenile court is not subject to collateral attack in a later proceeding; the only proper jurisdictional challenge is to the court's continuing jurisdiction.
Area(s) of Law:- Juvenile Law
Frontgate Properties, LLC v. Bennett
Under the doctrine of merger, any inconsistency between the terms of a contract of purchase for real estate and there terms of the deed are governed by the deed, but this does not apply when, through fraud or relievable mistake, the grantee has been induced to accept something different from what was agreed upon by the parties.
Area(s) of Law:- Contract Law
Mesta v. Franke
The Oregon Constitution does not require appellate counsel to put forth every possible argument in the small chance a subsequent change in law will make the argument effective at a later date.
Area(s) of Law:- Post-Conviction Relief
State v. Beauvais
Simply because evidence subsequently becomes irrelevant after the state's dismissal of charges relating to another defendant, is not sufficient to demonstrate prejudice.
Area(s) of Law:- Evidence
State v. Berry
To raise a timely double jeopardy claim, the defendant must raise the claim before the second trials starts if all of the facts that are required to prove double jeopardy are well-known.
Area(s) of Law:- Criminal Procedure
State v. Bistrika
Jury instructions which insert an irrelevant issue into a case constitute a reversible error.
Area(s) of Law:- Criminal Law
State v. J.C.L.
A warrantless seizure of a youth's computer and hard drive can be justified by the exigent circumstances exception to the warrant requirement.
Area(s) of Law:- Criminal Procedure
State v. King
Under ORS 161.067(3), a single criminal episode of assault may be multiple violations when an assault is commenced, stops, and begins again. The pause must constitute a sufficient opportunity to renounce criminal intent.
Area(s) of Law:- Criminal Law
State v. Licari
A denial for a continuance is measured on an abuse of discretion standard, while looking at the particular circumstances of the case and the reasons presented to the court at the time of denial.
Area(s) of Law:- Criminal Procedure
State v. Lobo
In a criminal case, when a error that was not exclusionary of any new evidence occurs and would not affect the verdict, it is a harmless error and is not reversible. Additionally, OEC 803(18a)(b) does not requires the trial court to hold a pretrial conference to determine the availability of a witness where the hearsay declarant testifies and is subject to cross-examination.
Area(s) of Law:- Criminal Law
State v. Poitra
The state of mind of an arresting officer is not relevant to a self-defense analysis and risks confusing the jury, which instead must evaluate the defendant's reasonable belief as to the circumstances.
Area(s) of Law:- Criminal Law
State v. Rivera
Court remands for resentencing in the absence of factual findings on proportionality of a Measure 11 sentence as required by State v. Rodriguez/Buck.
Area(s) of Law:- Sentencing
State v. Roelle
Under ORS 132.560(3), when a jury can easily separate whether a defendant is guilty of two separate types of crimes, joinder is not necessary to prevent prejudice.
Area(s) of Law:- Criminal Procedure
State v. Smith
Under ORS 163.670(1), compelling or inducing a child to engage in sexually explicit conduct may be inferred by a factfinder from sexually explicit photographs in which a child’s facial expression conveys that the child has been persuaded or influenced to participate. A jury can infer from the nature of photographs, and the context of other evidence, that they are sexually explicit.
Area(s) of Law:- Evidence
April 45 summaries
Aleali v. City of Sherwood
A deficiency in pre-hearing notice invoking delayed appeal rights, under ORS 197.830(3), is determined solely by state law procedures, and not by local law.
Area(s) of Law:- Land Use
Bova v. City of Medford
Under ORS 243.303(2), the Supreme Court has rejected the argument that "if there are providers available who are willing to provide [health insurance] coverage that includes retirees, the city must provide that coverage, regardless of cost or other circumstances" and reasons that the statute was not intended to be “unduly burdensome”; Under ORS 659A.030(1)(b), a plaintiff’s complaint must plead age discrimination based on a theory of disparate impact.
Area(s) of Law:- Employment Law
Bradley v. State of Oregon
Under ORS 376.185(1), a court shall not unreasonably withhold its consent to a landowner's petition for a way of necessity. Whether consent is unreasonably withheld is measured by whether the withholding was arbitrary or capricious.
Area(s) of Law:- Land Use
Croghan v. Don's Dugout, LLC
When a party believes that a verdict is inconsistent it must (1) object to the verdict before the jury is discharged, and (2) request jury clarification of the matter under ORCP 59 G(4).
Area(s) of Law:- Civil Procedure
Dept. of Human Services v. J.M.
In a permanency hearing, evidence relating to a child's original unexplained injury is not irrelevant as an attack on DHS's jurisdiction because it may be probative in the remedial steps parents must make toward reunification.
Area(s) of Law:- Juvenile Law
Sellwood-Moreland Improv. League v. City of Portland
Unless the Plan District’s code expressly precludes density transfers between sites in multi-dwelling zones, the density transfer will be allowed to preserve development opportunities for new housing and to reduce development pressure on environmentally sensitive sites.
Area(s) of Law:- Land Use
State v. Andrews
In order to preserve an assignment of error, Defendant must argue at trial that testimony must be proven by a preponderance of the evidence.
Area(s) of Law:- Evidence
State v. Arnold
In order to admit evidence of a prior bad act, the state must show that the acts were "so distinctive that both crimes can be attributable to one criminal. In other words, the modus operandi must be unusual."
Area(s) of Law:- Evidence
State v. Lewallen
Under ORS 138.083, a court is not required to grant a motion to correct an alleged error with a hearing, rather, the court has discretionary authority to grant or deny such relief.
Area(s) of Law:- Post-Conviction Relief
State v. Medina
Under ORS 165.800, signing a false name to a police document, which is then used to discover the signer’s true name, constitutes converting and uttering the “personal identification of another person… with intent to deceive.”
Area(s) of Law:- Criminal Law
State v. Peters
Asking a person lawfully stopped for a traffic violation the location of a known associate that is at large does not constitute an unlawful extension of the stop via Article 1, Section 9 of the Oregon Constitution.
Area(s) of Law:- Criminal Procedure
State v. Prieto-Rubio
Police must notify a Defendant's attorney before interviewing him or her about separate but factually related offenses when he or she has obtained representation in one of the cases.
Area(s) of Law:- Criminal Law
State v. Shumate
Remand denied where defendant failed to identify flaws in original sentencing proceeding. For a court order to be appealable, it must resolve all charges brought in the case.
Area(s) of Law:- Criminal Procedure
State v. Webb
A structure is a "building" under ORS 164.205(1) if it has been adapted for carrying on a business.
Area(s) of Law:- Criminal Law
Rogue Valley Sewer Services v. City of Phoenix
Where a city's charter broadly confers all authority not denied by state or federal law, it confers on the city the power to impose local taxes and to regulate matters subject to municipal regulation.
Area(s) of Law:- Municipal Law
State v. Andrade
Ballot Measure 11 and ORS 137.700 convictions of first-degree rape and first-degree sodomy do not require that the court impose consecutive mandatory minimum sentences.
Area(s) of Law:- Sentencing
State v. Goetzinger
Bruising to an infant child alone does not constitute sufficient evidence to show medical care was necessary under ORS 163.200.
Area(s) of Law:- Evidence
State v. Rodriguez-Perez
Under Article I, section 9, of the Oregon Constitution, officers’ reasonable suspicion must is examined for what is objectively reasonable. An individual appearing agitated while his brother is being searched is not enough to warrant reasonable suspicion.
Area(s) of Law:- Criminal Procedure
Adair Homes, Inc. v. Dunn Carney
A court resorts to the general policy in favor of arbitration only when a contract is ambiguous and there is no extrinsic evidence of the parties' intent.
Area(s) of Law:- Contract Law
Blankenship v. Smalley
Under ORS 67.040, a business partner’s actions will be binding on his partner unless the other party had actual knowledge or notice of that partner’s lack of authority to bind his partner.
Area(s) of Law:- Civil Law
City of Beaverton v. Pack
When reviewing the sufficiency of a jury instruction, the Court will review all instructions given to determine whether the jury was properly informed of the applicable requirements of the crime charged.
Area(s) of Law:- Criminal Procedure
Ramirez v. Northwest Renal Clinic
Notice of voluntary dismissal does not require a court ruling to be effective, and is thus sufficient to dismiss an action without prejudice despite pendency of the grant of a motion for summary judgment.
Area(s) of Law:- Civil Procedure
Sohn v. Thi
Under ORCP 54 A, dismissal of a case is to be with prejudice where the plaintiff’s dismissed action and prior action was (1) against the same defendant and (2) for the same claim.
Area(s) of Law:- Civil Procedure
State v. Durando
If conviction would have occurred despite the evidence in question being suppressed then it is considered a harmless error; however, unlawfully obtained evidence that is the sole evidence leading to a conviction will be suppressed.
Area(s) of Law:- Criminal Procedure
State v. Newcomb
Under Article I, section 9 of the Oregon Constitution governing privacy rights with respect to personal effects, extraction and testing of a dog's blood is a "search" because those actions constitute a physical invasion of a defendant's personal property which reveal otherwise concealed evidence.
Area(s) of Law:- Criminal Procedure
C.J.L. v. Langford
In order for an Stalking Protective Order to be issued, under ORS 30.866, a petitioner must show that speech-based contacts instill a fear of imminent and serious personal violence from the speaker, are unequivocal, and are objectively likely to be followed by unlawful acts, such that the addressee believes the actor intends and is able to carry them out. Threats that are hyperbole, rhetorical excesses, and impotent expressions of anger or frustration are insufficient, even if they alarm the addressee.
Area(s) of Law:- Civil Stalking Protective Order
Cardona and Cardona
Under ORS 107.105(1)(f)(A), a pension is marital property which, as long as the presumption of equal contribution has not been rebutted, should be divided evenly upon marital dissolution.
Area(s) of Law:- Family Law
Dept. of Human Services v. S. C. P.
In a hearing to determine Mother's motion to set aside relinquishments, an attorney should be provided in order to ensure the procedural protections required for a fundamentally fair hearing.
Area(s) of Law:- Family Law
Dickson v. Dickson
In situations in which a party puts itself in a position of needing to seek the services of a different attorney before or during trial, a court does not abuse its discretion in denying a motion for a continuance.
Area(s) of Law:- Civil Procedure
Lewis v. Beyer
Under OAR 860-022-0041, the “automatic adjustment clauses” determined by the Public Utility Commission only apply to taxes levied on or after January 1, 2006. Furthermore, attorney’s fees are not appropriate in this case under ORS 183 (Administrative Procedures Act).
Area(s) of Law:- Administrative Law
State ex rel Gary Schrodt v. Jackson County
The text and context of ORS 215.402(2) reflect the legislature intended the phrase "application for discretionary approval of a proposed development of land" to include requests for discretionary approval of a proposed use of land.
Area(s) of Law:- Land Use
State v. Barajas
Appellate tag lines must be read in the context of the opinion as a whole.
Area(s) of Law:- Criminal Procedure
State v. Bistrika
Evidence of independent crimes that threaten the safety of police officers do not need to be suppressed even if evidence is obtained as a result of unlawful police conduct.
Area(s) of Law:- Evidence
State v. Doyle
To determine whether an initial violation of Miranda is cured before the start of a second interview, the court should consider the time between the first and second interview, whether Miranda rights were read before the second interview, and whether those rights were understood and intelligibly waived prior to the second interview.
Area(s) of Law:- Criminal Procedure
State v. Fox
Under ORS 162.005(2), a member of the Oregon National Guard qualifies as a public servant for the purposes of a sexual coercion charge.
Area(s) of Law:- Criminal Law
State v. Pearson
Under Article I, section 9 of the Oregon Constitution, which governs privacy rights with respect to personal effects, an officer unlawfully extends a traffic stop if he inquires about the presence of a weapon once the officer’s source of suspicion has been dispelled.
Area(s) of Law:- Criminal Procedure
State v. Whitlow
A court will balance the actual prejudice caused to a defendant by the state’s pre-indictment and speedy trial delay with the state’s justification for that delay in deciding whether or not to grant dismissal of charges.
Area(s) of Law:- Criminal Procedure
State v. Wiggins
If a dog sniff produces incriminating evidence, that would not have happened but for an unlawful search, it is the unattenuated product of that illegality and should be suppressed.
Area(s) of Law:- Criminal Procedure
Bazzaz v. Howe
Evidence that may be "relevant and essential" to a causation based defense, which requires a finding of fact that cannot have been made by a judge on summary judgment, is admissible, so long as the jury is not making a determination on the causation issue.
Area(s) of Law:- Evidence
State v. Corkill
A court does not have a duty to sua sponte exclude testimony where the questioning leading to this testimony did not present "vouching" concerns.
Area(s) of Law:- Criminal Law
State v. Dalessio
Under State v. Moore/Coen, a defendant's trial testimony is considered tainted by the erroneous admission of unconstitutionally-obtained statements even if Defendant did not move to exclude his pretrial statement during his first trial.
Area(s) of Law:- Criminal Procedure
State v. Davis
Under Article I, section 9 of the Oregon Constitution, police inventory procedures may constitute an unlawful search if they have no precise or meaningful limitations.
Area(s) of Law:- Evidence
State v. Miller
Although ORS 137.540(2) allows a court to impose special provisions of probation when reasonably related to the crime of conviction or the needs of the petitioner for the protection of the public or reformation of the probationer, no provision exists for the forfeiture of property as a condition of probation.
Area(s) of Law:- Criminal Procedure
State v. Villanueva-Villanueva
In the absence of overwhelming evidence of guilt, erroneously admitted hearsay evidence that significantly reinforces the declarant's testimony at trial constitutes error requiring reversal of the defendant's conviction.
Area(s) of Law:- Evidence
State v. Ruiz-Piza
A confession induced through fear is a strong indicator of involuntariness when considered as part of the totality of the circumstances during a suppression hearing.
Area(s) of Law:- Criminal Procedure
May 36 summaries
Brown v. SAIF
The correct test in determining a combined condition claim is whether claimant's work-related injury incident is the major contributing cause of the combined condition.
Area(s) of Law:- Workers Compensation
DHS v. T.L.
The Court of Appeals will not address arguments not preserved for appeal in the lower court.
Area(s) of Law:- Civil Procedure
Dunmire v. Bd. of Parole & Post-Prison Supervision
Where a petitioner shows collateral consequences that stem from a board’s decision to impose incarceration based on legally incorrect premises the petition for judicial review is moot.
Area(s) of Law:- Appellate Procedure
IAFF, Local 3564 v. City of Grants Pass
Passage of the PECBA, which permits employees to bargain collectively with their public employers, did not nullify the ORS 652.080 mandate that firefighters’ authorized vacation or sick leave time shall be considered as time on regular duty for the purpose of calculating overtime entitlement.
Area(s) of Law:- Labor Law
SAIF v. Carlos-Marcia
Diagnostic services related to discovery of the cause of complaints of pain can be reasonable and necessary expenses, even if the results of the testing reveal that the condition was unrelated to the compensable condition.
Area(s) of Law:- Workers Compensation
Sather v. SAIF
Under ORS 656.218(3), an estate is not among the persons entitled to pursue a claim for worker's compensation.
Area(s) of Law:- Workers Compensation
State v. Cherry
When a jail deputy, pursuant to an invalid administrative inventory policy, removes items from defendant's pocket, the evidence discovered as a result of the search must be suppressed.
Area(s) of Law:- Criminal Law
Dept. of Human Services v. J. B. V.
When DHS seeks to change a ward’s permanency plans, DHS must prove that it made reasonable efforts to effect reunification, and that the parent did not make sufficient progress to allow the child’s safe return home, despite DHS's efforts.
Area(s) of Law:- Family Law
Rowlett v. Fagan
A properly stated negligence claim cannot be dismissed on the merits after an answer has already been filed before trial.
Area(s) of Law:- Civil Procedure
State v. Kenny
Under ORS 133.076(1), the phrase "issued under" merely describes the type of citation created and does not create an additional element of the offense; in establishing "knowingly" under the same statute, "logically relevant" testimony under OEC 401 is permitted, including testimony of a defendant.
Area(s) of Law:- Criminal Law
State v. Vanburen
Under ORS 98.005, in order for an officer to conduct a warrantless search of a closed bag, the officer’s subjective belief that the property is lost must be objectively reasonable—only then may the officer search the property to identify its owner.
Area(s) of Law:- Evidence
State v. Wilcher
A defendant’s right to be heard “by himself” is fully exercised by testifying under oath as a witness, and does not include the right to make an unsworn statement to the jury during the case-in-chief.
Area(s) of Law:- Criminal Law
Bova v. City of Medford
Where a trial court ruling awards a plaintiff costs and attorney fees with respect to contempt and age discrimination claims, and the Court of Appeals affirms one of those claims and reverses the other, the award of costs and attorney’s fees should also be reversed with respect to the claim that is reversed.
Area(s) of Law:- Attorney Fees
City of Eugene v. Comcast of Oregon II, Inc.
Registration fees on revenue for internet service providers are barred under the Internet Tax Freedom Act (ITFA); but licensing fees are not a tax under the ITFA.
Area(s) of Law:- Tax Law
Friends of the Hood River Waterfront v. City of Hood River
ORS 197.175(2) represents a mandatory requirement to identify the 100-year floodplains in connection with a project on a site where the floodplains have not yet been identified; however, nothing in the text or context of that provision expressly requires that identification to take the form of a map prepared by the applicant.
Area(s) of Law:- Land Use
Fuentes v. Tillett
Under ORS 125.480, intermediate accounting orders are final only as to the conservator's liability with respect to matters that were actually presented to, and considered by, the probate court when it approved the intermediate accountings.
Area(s) of Law:- Civil Law
State v. Beasley
An individual is not “stopped” when an officer engages in “mere conversation” with the individual absent an explicit or implicit show of authority that objectively restricts the individual’s liberty; an individual is not “seized” when an officer requests and checks the individual’s identification with the consent of the individual, and retains the identification for a reasonable period of time to examine it.
Area(s) of Law:- Criminal Law
State v. Cuevas
The admission of evidence, while denied for one purpose, may be admitted for an unrelated purpose, so long as it remains within the purpose or scope of what is being examined. When determining a sentence, courts are to use the “shift-to-I” rule; however, the courts failure to do so may not necessarily be a reversible error.
Area(s) of Law:- Evidence
State v. Hernandez
The focus in determining whether an issue has been adequately preserved in a particular case is whether a party has given opponents and the trial court enough information to be able to understand the contention and to fairly respond to it.
Area(s) of Law:- Criminal Procedure
State v. Jimenez
An officer may not investigate matters unrelated to a stop absent reasonable suspicion of that unrelated matter, an unavoidable lull in the inquiry process, or some exception to the warrant requirement.
Area(s) of Law:- Criminal Procedure
State v. Mannix
Pursuant to ORS 136.220, a juror who is committed to becoming related to a primary witness does not have implied bias. Pursuant to ORAP 5.45, a party may not raise claims of error that are not preserved on the trial court record, even if it is a plain error.
Area(s) of Law:- Appellate Procedure
State v. Pichardo
When consent is given to a search after questioning that unlawfully extends a stop, evidence obtained must be suppressed.
Area(s) of Law:- Criminal Procedure
Vanecek v. Angelozzi
The petitioner has the burden to prove, by a preponderance of the evidence, that the trial counsel failed to provide adequate representation by exercising professional skill and judgment and that the petitioner suffered prejudice as a result.
Area(s) of Law:- Post-Conviction Relief
Yale Holdings, LLC v. Capital One Bank
Summary judgment is only appropriate when the terms of a deed are unambiguous.
Area(s) of Law:- Property Law
Dept. of Human Services v. G.N.
In reviewing a juvenile court's judgment, the court views the evidence, as supplemented and buttressed by permissible derivative inference, in the light most favorable to the juvenile court's disposition and asses whether, when so viewed, the record was legally sufficient to permit that outcome.
Area(s) of Law:- Family Law
Nielsen v. Employment Dept.
Under ORS 657.176(2)(c) (see also OAR 471-030-0038(4)), a former employee seeking unemployment benefits who resigns her position rather than confront her employer or file a BOLI complaint can still qualify for those benefits, as long as it was reasonable for her to do so.
Area(s) of Law:- Employment Law
Schmidt v. Slader
Direct causation, rather than reasonable foreseeability, is the sine qua non of respondeat superior liability. Evidence regarding acts that are the outgrowth of and within the scope of employment ought to be obtained and presented to the court.
Area(s) of Law:- Tort Law
State v. Ashkins
A jury instruction requiring all jurors to agree on which occurrence constituted a crime is not required when the evidence shows multiple occurrences of the offense and does not give jurors the ability to factually distinguish one occurrence from another in a manner that could lead to differing conclusions about the commission of the crime.
Area(s) of Law:- Criminal Law
State v. Brown
When an incorrect legal standard is applied to a motion to dismiss in a trial court, and the correct legal standard would require findings of fact not already made, then that decision may be vacated.
Area(s) of Law:- Criminal Procedure
State v. Campbell
Whether a police-citizen interaction rises beyond a mere encounter to the level of a seizure under Article I, section 9, depends on whether a reasonable person would believe that an officer has intentionally and significantly restricted, interfered with, or otherwise deprived a citizen of his or her liberty or freedom of movement; for police to seize an individual under Article I, section 9, an individual must have an objectively reasonable perception that police are exercising coercive authority; asking for identification is not enough to show coercive authority.
Area(s) of Law:- Criminal Procedure
State v. Ellis
The speedy trial delay period is measured from the date of the most recent accusatory instrument where prior accusatory instruments were dismissed, even when a new accusatory instrument is issued before the previous one is dismissed. This is measured from the initial filing date of the original instrument when that instrument was amended but not dismissed. A net delay of approximately 12 months due to insufficiency of judges is not unreasonable.
Area(s) of Law:- Criminal Law
State v. Gardner
Even if a search violates Article I, section 9 of the Oregon Constitution, because it resulted in constitutionally tainted information being included in a warrant application, it does not compel the conclusion that a search conducted pursuant to that warrant was invalid.
Area(s) of Law:- Criminal Procedure
State v. Olson
Under OEC 404(3), a court considers six factors to determine whether evidence of prior acts may be admitted to demonstrate intent in a criminal trial.
Area(s) of Law:- Evidence
State v. Richards
Where erroneously excluded evidence relates to the central factual issue, rather than a tangential issue, and thereby is more likely to effect the trier of fact’s determination, the evidentiary error is not harmless.
Area(s) of Law:- Evidence
State v. Straughan
A defendant’s motion to dismiss on speedy trial grounds should be granted when the delay caused by the state is both unexpected and unreasonable.
Area(s) of Law:- Criminal Procedure
State v. Straughan
Under former ORS 135.747 (2011), an unjustified delay of trial for nearly seven months out of 21 months of delay in general is unreasonable, and must be dismissed without showing of "sufficient reason" to continue the case.
Area(s) of Law:- Criminal Law
June 32 summaries
Amerivest Financial, LLC v. Malouf
When the expected profits of investment transactions are the result of management and control by a company’s own officers, the investment transactions are not “investment contracts” for the purposes of securities fraud under ORS 59.137.
Area(s) of Law:- Corporations
Dept. of Human Services v. W. A. C.
To determine whether jurisdiction over a minor is proper, the inquiry is based on “whether, under the totality of circumstance, there is a reasonable likelihood of harm to the welfare of the child.”
Area(s) of Law:- Family Law
State v. Kelly
Pursuant to ORAP 5.45, Appellate courts have broad discretion to determine the prejudice of a plain error committed in the circuit court. Furthermore, sentencing guidelines may be discretionary with regards to unranked offenses. Finally, unspecified pleadings which are subsequently substantiated by discovery are not in error.
Area(s) of Law:- Appellate Procedure
State v. Sines
When the state is sufficiently involved in a search or seizure conducted by a private party, state constitutional protection is triggered.
Area(s) of Law:- Criminal Procedure
Alfieri v. Solomon
While communications in mediation an settlement may not be admitted into evidence under ORS 36.222, communications afterwards may. Under ORCP 23, a plaintiff must be allowed to amend his complaint once as a matter of right.
Area(s) of Law:- Civil Procedure
Benson and Benson
When property is purchased with one spouse's pre-marital assets, the court's task is to determine each spouse's contribution to the acquisition of the house; to assess whether, in light of those contributions, the presumption of equal contribution has been rebutted; and, if so, to evaluate the just and proper distribution of the assets in the light of factors considered by the court.
Area(s) of Law:- Property Law
Chapman v. Mayfield
In order to show violence resulted from an establishment negligently serving alcohol to a visibly intoxicated person, a plaintiff must show that the violent act was a reasonably foreseeable result of service though sufficient evidence.
Area(s) of Law:- Tort Law
Chernaik v. Kitzhaber
Under the Uniform Declaratory Judgments Act, a complaint can be justiciable when it seeks a judicially issued declaration regarding duties that the state may have under a legal doctrine.
Area(s) of Law:- Civil Procedure
Dept. of Human Services v. S. R. C.
The fact that a juvenile was in foster care at the time of the state's amended petition, alleging that there is a serious risk of harm to the child, is not sufficient to dismiss an allegation.
Area(s) of Law:- Juvenile Law
In re Hall and Buth-Hall
Under ORS 107.407 and ORS 107.412(2), a person relying on spousal support must show a reasonable effort to become self-sufficient by exercising reasonable options, even if those options turn out to be fruitless.
Area(s) of Law:- Family Law
State v. Burciaga
Under O.R.S. 163.205(1)(a), a parent commits a crime of criminal mistreatment in the first degree if that parent withholds essential attention that is necessary to provide for a child’s basic bodily needs and survival.
Area(s) of Law:- Criminal Law
State v. Fernaays
Where remand of a sentencing hearing would not materially promote the “ends of justice” the Court of Appeals has the ability to decline to exercise its discretion to remedy the statutory error.
Area(s) of Law:- Sentencing
State v. Nelson
Under ORS 166.240, an object must be "designed and intended primarily as weapons to inflict bodily injury or death" to qualify as a weapon or similar instrument.
Area(s) of Law:- Criminal Law
State v. Pierce
If a judge does not have personal knowledge of the matter in controversy then the judge does not violate the “neutral and detached” requirement of Oregon and federal law when granting search warrants.
Area(s) of Law:- Criminal Procedure
State v. Simkins
Offense surcharge imposed on crimes not falling under the time frame of the statute constitutes error.
Area(s) of Law:- Criminal Law
State v. Verardo
When a defendant proffers exculpatory hearsay statements for the truth of the matter asserted during his case-in-chief, defendant is subject to impeachment under OEC 806, even where the State had offered the statements in the first instance as statements of a party opponent under OEC 801(4)(b)(A).
Area(s) of Law:- Evidence
Camacho v. SAIF
A claimant's statements in medical reports constitute prima facie evidence under ORS 656.310(2) if those statements were for the purpose of medical diagnosis or treatment; otherwise, a claimant's statements in medical reports are hearsay to which the board may afford whatever weight it deems appropriate under the circumstances. Additionally, the agency shall seek the services of an interpreter whenever one is necessary to perform an adjudicative function.
Area(s) of Law:- Workers Compensation
Dept. of Human Services v. B.A.
Courts do not have authority to decide moot cases; a case is moot when it involves a matter that no longer is a controversy between the parties.
Area(s) of Law:- Appellate Procedure
State v. Bisby
A criminal defendant has the right to object to improper venue, but only in a pretrial motion as it is not a material allegation under Article I, § 11 of the Oregon Constitution.
Area(s) of Law:- Criminal Procedure
State v. Blevins
Under former ORS 135.747, a delay of 21 months for a trial, 11 of which were unjustified, is unreasonable.
Area(s) of Law:- Criminal Procedure
State v. Cale
Criminal charges may not be merged where "sufficient pause" between acts is not present.
Area(s) of Law:- Criminal Law
State v. Charles
A totality of the circumstances test is to be used when determining whether actions constituted a show of authority such that a reasonable person would have believed that the officer had intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement.
Area(s) of Law:- Criminal Procedure
State v. Fletcher
An issue can be preserved for appeal when the party asserting error had requested that the jury hear his argument, but was prevented by the trial court from advancing that argument.
Area(s) of Law:- Criminal Procedure
State v. George
Under ORS 811.540, the term “flee” applies to any instance where an individual knowingly avoids compliance with the requests of a pursuing officer.
Area(s) of Law:- Criminal Law
State v. Lambert
The administrative seizure exception applies when the seizure is "specifically authorized by law," and suspicions of criminal activity "play no part" in the officer's decision to seize the property; a tent falls within the burglary statute if the tent was modified for use in a business.
Area(s) of Law:- Criminal Procedure
State v. Marker
Under ORS 163.305(5), a person who is asleep is “physically helpless.”
Area(s) of Law:- Criminal Law
State v. Martinez
A request for legal counsel is evaluated under the totality of the circumstances and may be based on what a reasonable officer would have believed. Asking to speak to an attorney only in direct response to an offer of privacy to call an attorney prior to a breath test would not have been understood by a reasonable officer as an invocation of defendant’s right to counsel.
Area(s) of Law:- Criminal Procedure
State v. Ritchie
Under ORS 138.071, if a defendant fails to appeal a judgment within 30 days, he cannot appeal a supplemental judgment entered afterwards because the same issues could have been raised after the first judgment was entered.
Area(s) of Law:- Criminal Procedure
State v. Shutoff
Under ORS 136.040, a criminal defendant has a right to be present at his trial. This right may be waived, but that requires sufficient evidence to support finding that defendant intentionally relinquished his right.
Area(s) of Law:- Criminal Procedure
Union Lumber Co. v. Miller
Failure by an arbitrator and opposing counsel to serve documents related to arbitration and judgment as required by law are mistakes that require a court to set aside a judgment under ORCP 71B.
Area(s) of Law:- Alternative Dispute Resolution
Dept. of Human Services v. R.B.
A juvenile court may change a child permanency plan when its original jurisdictional judgment would put a reasonable parent on notice that the bases for the that decision would be used in a change of permanency plan.
Area(s) of Law:- Family Law
State v. Geren
An officer's reading of the statutory rights and consequences of refusing to submit to blood, breath, or urine testing does not render a defendant's consent to such testing involuntary; telling a defendant that his refusal may be used against him is not unconstitutional.
Area(s) of Law:- Criminal Procedure
July 44 summaries
Dept. of Human Services v. E. M.
Under ORS 419B.100(1)(c), to obtain exclusive jurisdiction of a child in juvenile court, a nexus between a current risk causing circumstance and risk of harm to the child must be established.
Area(s) of Law:- Juvenile Law
Easton v. SAIF
Workers' Compensation Board compensability determinations for proposed diagnostic procedures should refer to Claimant’s compensable injury.
Area(s) of Law:- Workers Compensation
Greenwood Products v. Greenwood Forest Products
To justify a new trial under ORCP 64 B(4), newly discovered evidence must meet the following six requirements: (1) it must be such as will probably change the result if a new trial is granted; (2) it must be such as, with reasonable diligence, could not have been discovered before or during the trial; (3) it must be such that it cannot, with reasonable diligence, be used during trial; (4) it must be material to an issue; (5) it must not be merely cumulative; and (6) it must not be merely impeaching or contradicting of former evidence.
Area(s) of Law:- Appellate Procedure
Safeco Ins. Co. v. Masood
While there is an implied duty to act in good faith, no additional contract terms may be added to a contract unilaterally, including the inclusion of a confidentiality agreement.
Area(s) of Law:- Contract Law
State v. Acuna
A stop is legal if the officer, under the circumstances, has reason to believe suspect has engaged in unlawful activity; all circumstances are considered to determine whether the encounter with police has risen to the level of "compelling" and thus required the reading of Miranda rights.
Area(s) of Law:- Criminal Procedure
State v. Buchalski
When any legal errors made by the lower court are found to be harmless, the Court will affirm the decision of the lower court.
Area(s) of Law:- Appellate Procedure
State v. E. D.
Under ORS 426.005(1)(e), in order to justify an involuntary civil commitment, the state must prove by clear and convincing evidence that a person has a mental disorder and that, because of that disorder, the person is a danger to self, a danger to others, or unable to meet his basic needs.
Area(s) of Law:- Civil Commitment
State v. Hernandez-Fabian
A defendant's awareness of statements and their substance does not compensate for the State's failure to comply with notice requirements in OEC 803(18a)(b).
Area(s) of Law:- Criminal Procedure
State v. Lange
When an officer ordered defendant out of a restroom, that constituted a stop because a reasonable person in defendant's position would have believed that his freedom of movement was intentionally restricted.
Area(s) of Law:- Criminal Law
State v. Moore
Under the Article I, § 9 of the Oregon Constitution, an officer has a reasonable suspicion if he subjectively believes that the person has committed a crime; that belief, however, must be objectively reasonable in light of the totality of the circumstances.
Area(s) of Law:- Criminal Procedure
State v. Rose
Under ORS 136.583, a search warrant issued in Oregon can be executed in another state so long as the criminal matter is triable in Oregon and “exercise of jurisdiction over the recipient is not inconsistent with the Oregon Constitution or Constitution of the United States.”
Area(s) of Law:- Criminal Procedure
State v. Salas-Juarez
If a defendant fails to preserve error in trial, the Court may exercise its discretion whether to consider an error raised on appeal to be a plain error sua sponte.
Area(s) of Law:- Appellate Procedure
State v. Thacker
Under Article I, section 9, of the Oregon Constitution, police physically confining a vehicle in a driveway from driving away qualifies as a stop.
Area(s) of Law:- Criminal Procedure
State v. Zamora-Martinez
The test to determine whether a seizure has occurred "is an objective one: Would a reasonable person believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement."
Area(s) of Law:- Criminal Procedure
State v. E.D.
Under ORS 426.005(1)(e), a single violent act and vague threats are not sufficient to qualify as clear and convincing evidence for the purposes of involuntary civil commitment.
Area(s) of Law:- Civil Commitment
Baker v. Croslin
Under ORS 471.565, the key factor in assessing a social host's liability is how much control the host had over the consumption of alcohol; when a host has no control over alcohol consumption, he is not liable.
Area(s) of Law:- Tort Law
State v. Bell
The state can extend a defendant's probation sentence for failure to make payments conditional to the probation, regardless of the reason for the failure to pay.
Area(s) of Law:- Criminal Law
State v. Cross
Under ORS 137.751, a trial court is no longer required to find “substantial and compelling reasons” to deny a defendant eligibility for alternative incarceration programs and early release.
Area(s) of Law:- Sentencing
State v. Goodenough
For offenses committed after January 1, 2009, defendants' eligibility for AIPs must be analyzed under ORS 137.751(1) rather than ORS 137.750(1), the former statute used for AIP eligibility analysis.
Area(s) of Law:- Criminal Law
State v. Mendoza
Under Article I, section 12, of the Oregon Constitution, a person’s refusal to consent to something that he or she is not required to do is not admissible at trial.
Area(s) of Law:- Criminal Procedure
State v. Paniagua-Montes
Under ORS 135.455, if alibi evidence is offered by a witness who is not the defendant, proper notice must be provided; if proper notice is not provided, such evidence must be excluded unless there is good cause.
Area(s) of Law:- Evidence
US Bank, NA v. Eckert
Under former ORS 86.735, the appointment of a successor trustee to a deed of trust needs to be recorded with the county where the relevant property is located.
Area(s) of Law:- Property Law
City of Portland v. Huffman
The correct time to assert the doctrine of issue preclusion is before the issue is relitigated, since all information is known before the trial court.
Area(s) of Law:- Civil Procedure
Heller v. BNSF Railway Company
To maintain a claim under the Federal Employer’s Liability Act, the plaintiff must show that they knew or had reason to know of the injury within three-years of bringing the claim and must have sufficient facts to show that the injury was caused by work related activities.
Area(s) of Law:- Tort Law
State v. Cline
An officer's act of directing a person to alter the person's course of travel or to otherwise direct the person's movements may often constitute a "show of authority" that effectuates a seizure, but that is not a per se rule of Oregon constitutional law; instead, the officer's directive must be examined in the context of the encounter in which it was made.
Area(s) of Law:- Criminal Law
State v. Durando, III
Ordinary preservation analysis asks whether an appellant gave “the trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made.”
Area(s) of Law:- Appellate Procedure
State v. Ferraro
A trial court abuses its discretion when it fails to grant a continuance to a criminal defendant who has not had adequate opportunity to retain counsel, nor adequate time to mount a defense.
Area(s) of Law:- Criminal Procedure
State v. Michel
Under the Fourth Amendment of the U.S. Constitution, and Article I, Section 9 of the Oregon Constitution, a renter does not have a reasonable expectation of privacy within the common area of a public storage facility.
Area(s) of Law:- Constitutional Law
State v. O'Dell
Defendant's charges of felon in possession of a firearm should be merged if Defendant was found in constructive possession of the firearms and there is not sufficient evidence to show an interruption in the possession.
Area(s) of Law:- Criminal Law
Dept. of Human Services v. A.B.
In a juvenile case to determine a parent’s jurisdiction of children, a single positive urinalysis taken prior to the trial is not sufficient to establish a substance abuse issue when accompanied by other negative urinalysis taken at the time of the trial.
Area(s) of Law:- Juvenile Law
SAIF Corporation v. Camarena
A physician does not need to explicitly state that a course of treatment is curative in order for that treatment to be compensable as long as a reasonable person can determine the curative purpose, and the treatment is supported by substantial evidence.
Area(s) of Law:- Workers Compensation
State v. Below
Under ORS 151.505 and ORS 161.665, a trial court may order a defendant to pay court-appointed attorney fees and other costs. However, in order for a court to do so, there must be evidence that defendant is, or may be, able to pay the fees and costs.
Area(s) of Law:- Attorney Fees
State v. Easton
A police officer may take reasonable steps to protect herself or others, including conducting a warrantless search or seizure, "if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present"; the state bears the burden of establishing that, based on the totality of the circumstance at the time, "the officer subjectively believed that a defendant posed an immediate threat of serious physical injury and that the officer's belief was objectively reasonable."
Area(s) of Law:- Criminal Procedure
State v. Graves
To preserve an error for appeal, a party must provide the trial court with an argument that is specific enough to ensure that the court can identify its alleged error with enough clarity to consider and correct it immediately, if correction is warranted.
Area(s) of Law:- Appellate Procedure
State v. Lee
It is not an illegal seizure of property if the officer does so in a reasonable attempt to protect himself or if he has a reasonable suspicion that the citizen poses an immediate threat of serious physical injury.
Area(s) of Law:- Criminal Procedure
State v. Ramirez-Hernandez
The state bears the burden of proving that a defendant "is or may be able to pay" attorney fees; mere speculation as to a defendant's ability to pay is insufficient.
Area(s) of Law:- Criminal Procedure
State v. Shipe
Evidence must be legally sufficient to prove beyond a reasonable doubt that a defendant "knowingly" acted; there must not be too great an inferential leap.
Area(s) of Law:- Evidence
State v. Smith
Under ORS 161.370, trial courts have the authority to commit defendants to hospitals for treatment designed to restore their competence to stand trial.
Area(s) of Law:- Criminal Procedure
State v. Todd
When a trial court presents a defendant with the option to continue with their present lawyer or proceed pro se, it must determine that the defendant fully understands the risks of pro se representation, and has intentionally relinquished their right to counsel.
Area(s) of Law:- Criminal Procedure
Wright v. Nooth
In regards to findings of fact, such as with a defendant’s waiver to testify on their own behalf, the Appellate Court will defer to the post-conviction court’s records. Additionally, in order to find error in counsel’s decision not to object to testimony, the testimony must have been of a kind that would have likely provided evidence that would have altered the outcome of the proceeding.
Area(s) of Law:- Post-Conviction Relief
State v. Anderson
Under ORS 163.415, the requirement that the victim not give consent is not a mens rea issue.
Area(s) of Law:- Criminal Law
State v. Cook
Erroneous admission of hearsay evidence is unacceptable only when the error is harmful in that it has a possible influence on the verdict rendered. When the erroneously admitted hearsay evidence is central to the parties’ theory of the case and their credibility, the error will be considered harmful and influential to the rendered verdict.
Area(s) of Law:- Evidence
The Foster Group, Inc. v. City of Elgin, Oregon
A taking occurs when the government takes physical possession of land, not when the idea of taking the land became known. The discovery rule comes into effect when a plaintiff should have known the harm took place.
Area(s) of Law:- Tort Law
State v. Dierks
Mere identification made in the course of a lawful police-citizen encounter does not in and of itself constitute a seizure.
Area(s) of Law:- Criminal Procedure
August 43 summaries
Fountaincourt Homeowners’ Assn. v. Fountaincourt Development, LLC
When an insurer covers negligence performed by an insured, and that insured is legally obligated to pay damages for negligence, then the insurer is obligated to pay those damages. Attorney fees will not be awarded if the motion to assert a right to get them comes after entry of a judgment on the merits.
Area(s) of Law:- Insurance Law
R & R Tree and Landscape, Inc. v. DCBS
In order for payroll records to be "verifiable" under OAR 836-042-0060(1), the records must include a description of the duties performed by the employee without the need for additional explanation or interpretation and must be supported by original entries from other records prepared by the employee or the employee's direct manager or supervisor.
Area(s) of Law:- Administrative Law
State v. Burciaga
Request for reconsideration in light of factual errors made in Court's previous opinion.
Area(s) of Law:- Criminal Law
State v. Frier
A person who has been ordered to serve time in county jail as a condition of probation has been sentenced to a "term of imprisonment" for purposes of ORS 813.010(6)(c). Accordingly, that person would not be subject to the mandatory minimum $2,000 fine set forth in that statutory subsection; however, if the court wished to exercise its discretion under ORS 161.635(1)(a) in choosing to impose a fine not exceeding $6,250 for a Class A misdemeanor, it could do so.
Area(s) of Law:- Criminal Law
State v. Hockersmith
Under Article I, section 9 of the Oregon Constitution, a warrantless inventory search of a vehicle incident to a lawful impounding is not permitted, unless the search is conducted pursuant to a properly authorized administrative program.
Area(s) of Law:- Criminal Procedure
State v. McCullough
The emergency aid exception requires an officer to believe entry is immediately necessary to aid someone who is suffering, or someone who is being imminently threatened with suffering.
Area(s) of Law:- Criminal Procedure
State v. Ringler
A trial court does not abuse its discretion by denying repeated motions for continuance when the record reflects that the moving party has not established good cause for a continuance.
Area(s) of Law:- Criminal Procedure
State v. Suppah
Under the Hall test, if there is a causal connection between unlawful police conduct and the discovery of evidence, the evidence cannot be admitted unless the State proves that its discovery was independent of, or only tenuously connected to, the illegal stop.
Area(s) of Law:- Criminal Law
Bova v. City of Medford
The Court has no reason to reverse an award of attorney fees from invalid supplemental judgments; and, the “substantial benefit” doctrine is not applicable unless an important constitutional right applying to all citizens is asserted.
Area(s) of Law:- Attorney Fees
Field v. Coursey
As determined by ORAP 5.45(1), generally no argument of error may be asserted in an appellate court that has not been preserved in the lower court.
Area(s) of Law:- Appellate Procedure
Munson v. Valley Energy Investment Fund
Under ORCP 21(A)(1), a trial court errs when it rules based on necessarily decided disputed issues of material fact.
Area(s) of Law:- Civil Procedure
Nationwide Ins. Co. of America v. Tri-County Metro. Trans. District (TRIMET)
An insurer who makes an outright payment to its insured is subrogated to the insured’s claim, and a subrogated insurer becomes the real party in interest under ORCP 21(A)6.
Area(s) of Law:- Insurance Law
Rains v. Stayton Builders Mart, Inc.
Settlement agreements that make reference to insurance are properly excluded under OEC 411, and do not automatically, as a matter of law, destroy diversity between parties. ORS 31.710(1) is properly applied to cap plaintiffs’ noneconomic damages claim but not plaintiffs’ loss of consortium claim.
Area(s) of Law:- Insurance Law
State v. Brown
Arguments that a defendant intends to raise on appeal must be preserved at the trial level.
Area(s) of Law:- Appellate Procedure
State v. Etzel
For the purposes of second-degree burglary, that a door is unlocked is not dispositive of the building not being a public space.
Area(s) of Law:- Criminal Law
State v. Hamel-Spencer
Defendant has the burden to prove that multiple offenses are the result of a single criminal episode and that the first prosecutor is aware of the multiple offenses to demonstrate double jeopardy.
Area(s) of Law:- Criminal Procedure
State v. Hockeman
Under the privacy interests implied in Article I, Section 9 of the Oregon State Constitution, when a property owner intends to exclude visitors from any portion of the property, that part of the property should have viewable signs that when approaching, the visitor can reasonably see and infer the property owner's intent to exclude.
Area(s) of Law:- Criminal Procedure
State v. Kinney
A trial court may deny self-representation on an anticipated disruption of the judicial process.
Area(s) of Law:- Appellate Procedure
State v. Osorno
An inadvertent revelation that Defendant invoked her right to remain silent was grounds to grant motions for mistrial and a new trial.
Area(s) of Law:- Criminal Procedure
State v. Pass
Because the elements of second-degree sexual assault and third-degree sodomy were congruent in this case as charged, the trial court committed a plain error by failing to merge these counts.
Area(s) of Law:- Criminal Law
State v. Symons
Under ORS 125.025(1), a court having jurisdiction over a protective proceeding has broad authority to protect the welfare of protected persons, even over the statutory obligations of the LTCO.
Area(s) of Law:- Disability Law
State v. Thompson
Whether a seizure has occurred is a fact specific inquiry into the totality of the circumstance of a particular case; the state has the burden of justifying a warrantless seizure of evidence, and that the seizure was not the fruit of an unlawful stop.
Area(s) of Law:- Criminal Procedure
State v. V.B.
Under ORS 426.100(1), an allegedly mentally ill person must be advised of her statutory rights by the trial court. Failure to do so constitutes a plain error.
Area(s) of Law:- Civil Commitment
V.L.M. v. Miley
A stalking protective order must be supported by evidence that contacts caused a subjective fear for personal safety and that such a fear was objectively reasonable.
Area(s) of Law:- Civil Stalking Protective Order
Perry v. Hernandez
As a general matter, when a party prevails on a claim for which attorney fees are authorized and a claim for which they are not, the trial court must apportion the fees incurred for each claim; however, there is an exception to that rule when the claims involve common issues: that exception is based on the premise that attorney fees should not be subject to apportionment when the party entitled to fees would have incurred roughly the same amount of fees, irrespective of the additional claim or claims.
Area(s) of Law:- Landlord Tenant
Regency Centers, L.P. v. Washington County
A Washington County Traffic Control Master Plan allowed, but did not require, the County to leave a traffic signal in place at the intersection of Tualatin Sherwood Road and Petitioners' driveways. The final order of the Land Use Board of Appeals properly held jurisdiction over the decision, and did not err in substance under ORS 197.850(9)(a) in remanding the decision to the County to determine whether the traffic signal must be left in place.
Area(s) of Law:- Land Use
Romayor v. Dept. of Public Safety Standards
Retroactive application of a rule is not automatically impermissible, and the question is one of intent of the agency.
Area(s) of Law:- Employment Law
State v. Austin
ORS 162.295 requires that, in the absence of a pending proceeding at the time of the tampering, a person must have knowledge of a proceeding that is about to be instituted. Knowledge of a proceeding that is about to be instituted is not the same as a hope for a proceeding to be instituted at some indefinite point in the future.
Area(s) of Law:- Criminal Procedure
State v. Campbell
Pursuant to ORS 161.067(3), where the there is not sufficient evidence for a reasonable factfinder to conclude that there is no pause for reflection “to afford the defendant an opportunity to renounce the criminal intent,” the conduct should reflect a single conviction.
Area(s) of Law:- Criminal Procedure
State v. Causey
If an out-of-court statement's relevance depends on the truth of the content of the messages, the messages were hearsay and not admissible.
Area(s) of Law:- Evidence
State v. Clements
Where a criminal defendant agreed to a plea deal, but the State's sentencing recommendation was denied and the criminal defendant then fled for many years, what is the trial court bound to. Here, the defendant asserts three assignments of error.
Area(s) of Law:- Criminal Procedure
State v. Moore
Under ORS 136.432.1, a court cannot suppress relevant evidence, even if obtained in violation of statutory provision, unless there is an exception under the United States Constitution or the Oregon Constitution; the rules of evidence governing privileges and the admission of hearsay; or, the rights of the press.
Area(s) of Law:- Criminal Procedure
State v. Ramirez
Review of a trial court’s refusal to give a requested jury instruction for errors of law are reviewed in light of facts most favorable to defendant.
Area(s) of Law:- Appellate Procedure
State v. Russum
If a prosecutor makes an accidental intrusion into the defendant’s privileged communications with his client, the defendant bears the burden of proving that his constitutional rights have been prejudiced.
Area(s) of Law:- Constitutional Law
State v. Sullivan
Under Article I, section 9, of the Oregon Constitution, a warrantless home entry by police is not lawful unless there is an exigent circumstance making the entry necessary; and, for the entry to be lawful, the State must be able to make some showing of the feasibility of obtaining a warrant.
Area(s) of Law:- Criminal Law
State v. Tooley
Under ORS 131.505(4), multiple murders committed in furtherance of an overarching criminal objective are part of the same criminal episode, despite a gap in time between the commission of each murder.
Area(s) of Law:- Criminal Law
State v. Wabinga
Reasonable suspicion does not require that the facts observed by the officer indicate illegal activity, but only that those facts support a reasonable inference of illegal activity.
Area(s) of Law:- Criminal Procedure
State v. Walker
Casual and informal associations of individuals, as well as organizations with formal structures, can constitute an "enterprise" within the meaning of ORS 166.715(2); the key is whether the association or entity is engaged in ongoing, coordinated criminal activity and undertakes a purposeful venture, undertaking, or activity through a pattern of criminal activity.
Area(s) of Law:- Criminal Law
16th Group, LLC v. Lynch Mechanical Construction, LLC
Under ORS 20.077, attorney fees are awarded to a prevailing party on a “claim-by-claim” basis.
Area(s) of Law:- Attorney Fees
Kleinsasser and Lopes
Pursuant to ORS 109.119, the Court "shall grant custody" to a third party who establishes a child-parent relationship, "if to do so is in the best interest of the child."
Area(s) of Law:- Family Law
State v. Davis
Under Article I, Section 11 of the Oregon Constitution, a defendant has the right for a jury to find all elements of the charged offense beyond a reasonable doubt. Issue preclusion, therefore, cannot be used to definitively establish essential facts to obtain a conviction because it hinders a jury's duty to deliberate and find every element of a crime.
Area(s) of Law:- Civil Procedure
State v. Goecks
An affidavit for a search warrant must contain a connection between the defendant and the illegal activity to be considered to have probable cause.
Area(s) of Law:- Criminal Procedure
State v. Goldman
If nonappearance on a citation constitutes "mistake, inadvertence, surprise or excusable neglect" under ORS 153.820(7), an individual is relieved from the doubling of fines.
Area(s) of Law:- Civil Law
September 39 summaries
American Federation of State, County and Municipal Employees, Council 75, Local 2043 v. City of Lebanon
Under ORS 243.672(1), certain actions by an employer or employer's agent are considered unfair labor practices. A city councilor was found not to be a city's agent.
Area(s) of Law:- Municipal Law
Broadway Cab LLC v. Employment Department
Unemployment taxes are properly assessed for employee taxicab drivers who receive remuneration for services provided to benefit their employer, where the taxicab drivers do not qualify as independent contractors under ORS 670.600(3).
Area(s) of Law:- Tax Law
Burcham v. Franke
An attorney's failure to challenge a lack of "consent" to consume alcohol being defined, by opposing counsel, as evident from the victim being 16 years old was inadequate assistance of counsel.
Area(s) of Law:- Post-Conviction Relief
Oregon v. Hunt
ORS 131.615. The reasonable suspicion of an officer to ask someone for identification and run a warrant check reasonably related to an investigation is justified if the officer has a reasonable suspicion that that person has committed a crime.
Area(s) of Law:- Evidence
State v. Abraham
Under OEC 401, when a defendant--after the alleged crime--makes a statement of intent to commit that same crime in the future cannot be admitted as evidence of intent.
Area(s) of Law:- Evidence
State v. Duvall
Trial court that assumes the jury has an understanding of a legal definition and then fails to give that definition to the jury risks having the trial remanded.
Area(s) of Law:- Criminal Procedure
State v. Gallegos
A trial court does not abuse its discretion by denying a motion for continuance when a Defendant cannot show that an eyewitness could "be produced."
Area(s) of Law:- Evidence
State v. Hall
Under former ORS 135.747 and in cases where that statute still governs, a court must determine whether a delay in a trial was acceptable by determining the extent to which the delay was justified.
Area(s) of Law:- Criminal Procedure
State v. Lucero
Evidence showing the legality of legal proceedings resulting in an eviction is not admissible at trial when those proceedings are final and have no consequence regarding the legality of Defendant's entry or whether Defendant was aware that the entry was otherwise licensed or privileged.
Area(s) of Law:- Evidence
State v. Turntine
The words "previously convicted" in ORS 163.160(3)include those offenders found guilty of previously assaulting the same victim, even if a formal judgment of conviction has not yet been entered on the previous assault.
Area(s) of Law:- Criminal Law
C. J. R. v. Fleming
The standard set by ORS 30.866(1) also applies to non-expressive contact. In order for a non-expressive contact to apply, the petitioner must prove that the communication instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.
Area(s) of Law:- Civil Stalking Protective Order
Federal National Mortgage Assn. v. Bellamy
Prima facie evidence, in the form of a trustee’s deed, is sufficient to show forcible entry and wrongful detainer (FED) if the evidence is unchallenged and confirmed though the adverse party’s admission.
Area(s) of Law:- Property Law
Hopper v. SAIF
For a claimant to prevail after denial on a claim for failure to cooperate, the claimant must prove one of three things: (1) that claimant, in fact, "fully and completely cooperated with the investigation"; (2) that claimant "failed to cooperate for reasons beyond the [claimant's] control"; or (3) that SAIF's "investigative demands were unreasonable"; to satisfy number (2), the claimant must prove that any failure to cooperate was because of--in other words, causally connected to--reasons beyond the worker's control.
Area(s) of Law:- Workers Compensation
State v. Aung
If two officers or more are at the scene of a lawful stop, then while one officer is writing a citation or conducting a records check, another officer may investigate matters unrelated to the initial stop without unlawfully extending the stop.
Area(s) of Law:- Criminal Procedure
State v. Bennett - McCall
Automobile and officer safety exceptions applied to searches incident to an arrest for the sale of drugs where, with probable cause, officers searched defendants’ vehicle and a backpack found within; neither exception applied to a later search of the same backpack where defendants posed no immediate threat to officer safety and officers were in control of defendant’s backpack.
Area(s) of Law:- Evidence
State v. Carlon
To avoid error, trial courts should ensure that when answering a jury's question, further instructions are applicable to the charges at hand and not further focusing the jury on irrelevant issues.
Area(s) of Law:- Criminal Procedure
State v. Davis
Crimes which occur at different times do not merge if there has been the opportunity to renounce criminal intent.
Area(s) of Law:- Criminal Procedure
State v. Magna/Rivera
Courts may look to several factors to determine whether a defendant’s consent to a search was voluntary or a result of coercion, including: “whether physical force was used or threatened”; “whether weapons were displayed”; “whether the consent was obtained in public”; “whether the person who gives consent is the subject of an investigation”; and “whether the atmosphere surrounding the consent [was] antagonistic or oppressive[.]”
Area(s) of Law:- Criminal Law
State v. McKarge
Under ORS 135.230(4)(c), the portion of the definition of "family or household members" that refers to "persons related by * * * marriage," is limited to "[a]dult persons related by * * * marriage" and does not apply to a minor child.
Area(s) of Law:- Criminal Law
State v. Miller
In order to initiate a valid DUII search under the state and U.S. Constitutions, a police officer must have probable cause, a subjective belief that is objectively reasonable, that the driver being searched was driving under the influence of intoxicants; the officer may rely on a totality of the circumstances, including his own experience and judgment, to form this probable cause.
Area(s) of Law:- Criminal Procedure
State v. Muhammad
A defendant cannot be required to pay restitution for pecuniary damages arising out of criminal activity for which s/he was not convicted or which he did not admit having committed.
Area(s) of Law:- Criminal Law
State v. Patnesky
Under ORS 162.247, the passive resistance exception to the crime of interfering with a peace officer only applies to actions “commonly associated with governmental protest or civil disobedience.”
Area(s) of Law:- Criminal Law
State v. Russell
The implication by a party, stopped by police, that he is in possession of a weapon was reasonable grounds an officer’s safety concerns.
Area(s) of Law:- Criminal Procedure
State v. Strickland
A waiver of the right against self-incrimination applies to a defendant’s submission of an affidavit at a motion hearing.
Area(s) of Law:- Criminal Procedure
State v. Worthington
Reasonable suspicion to make a stop must be supported by the totality of the circumstances and the police officer’s application of his experience to interpret those circumstances.
Area(s) of Law:- Criminal Procedure
Chalmers v. Concrete Bob, Inc.
Interpretation of a contract is matter of law, but where the trial court's interpretation depends on factual determinations, those are accepted if supported by any competent evidence.
Area(s) of Law:- Contract Law
Lay v. Raymond
When a party has the right to partition, then the court must follow the statutory procedure for partition under ORS 105.205 and ORS 105.255.
Area(s) of Law:- Property Law
ODOT v. Alderwoods (Oregon), Inc.
Evidence of diminution in value was properly excluded in determining the compensation award for loss of access due to highway construction.
Area(s) of Law:- Property Law
SAIF v. Tono
Under ORS 656.039(5), workers’ compensation for state-funded home care workers is not limited to state-funded activities.
Area(s) of Law:- Workers Compensation
State ex rel Schrodt v. Jackson County
A court may use its discretion to award attorney's fees to deter intervenors from taking unreasonable positions on appeal and encouraging compliance with the rules of appellate practice while, at the same time, not discouraging the pursuit of meritorious appeals by intervenors who become involved in mandamus proceedings as a result of local governments' derelictions of duty.
Area(s) of Law:- Attorney Fees
State ex rel Simons v. Simons
In determining whether a defense of nonparentage may be raised, the law that governs is the law of the state where parentage is asserted to have been previously determined.
Area(s) of Law:- Family Law
State v. Baker
It is important to consider “whether all elements of one offense are subsumed within the elements of the other offense” when determining whether two counts should merge as one. While “underlying factual circumstances of the crime” might seemingly overlap to a degree, the statutory duplication of all elements are what analysis hinges on.
Area(s) of Law:- Criminal Procedure
State v. Cook
ORS 164.235(1) requires both possession and intent to use a burglary tool to commit or facilitate a forcible entry or theft by physical taking. The intent element cannot be proven merely by proving the possession element.
Area(s) of Law:- Criminal Law
State v. Scott
Evidence that a complainant assaulted a defendant ten years prior is relevant to a determination of self-defense by a factfinder.
Area(s) of Law:- Evidence
State v. Washington
In Owens, 302 Or at 200, the Court established that the permissible scope and intensity of a search incident to arrest does not turn on whether or not a particular criminal offense is a traffic offense; rather, it turns on whether the space searched was in the immediate control of the arrestee before the arrest, and on whether that space (and the containers therein) reasonably could conceal evidence of the crime of arrest. State v. Brody, 69 Or App 469, 686 P2d 451 (1984) was overruled to the extent that it held that the scope and intensity of a permissible search incident to arrest turns on whether or not the offense of arrest is a traffic offense.
Area(s) of Law:- Criminal Procedure
State v. Wright
Under State v. Backstrand, and other cases, briefly holding a person’s identification card does not necessarily mean that a person is stopped; rather, a stop can take place when a request for identification is done in conjunction with other police conduct.
Area(s) of Law:- Criminal Procedure
Justice and Crum
In order to properly preserve an issue for appeal, the matter must be clearly and unequivocally objected before judgment is entered, rather than a party waiting on an adverse or undesirable judgment.
Area(s) of Law:- Appellate Procedure
Shell v. Schollander Companies, Inc.
This Court previously concluded that ORS 12.135 “applies to any action, 'in contract, tort, or otherwise,' regardless of the type of damages sought, so long as the action arises out of the specified construction-related circumstances.” The Court further concludes that these claims need to arise out of a construction contract.
Area(s) of Law:- Tort Law
State v. Purrier
The jury’s task is to weigh evidence, judge the credibility of witnesses and the reliability of their testimony, and to resolve conflicts in the evidence.
Area(s) of Law:- Evidence
October 59 summaries
Flores-Salazar v. Franke
Failure to request a jury instruction for a lesser offense does not necessarily entail inadequate assistance of counsel, particularly when accompanied by a strong defense and as part of a tactical decision.
Area(s) of Law:- Post-Conviction Relief
Gordon v. Teacher Standards and Practices Commission
A plaintiff must exhaust all administrative remedies, including requesting an agency hearing, before objecting to the substance of an administrative order before the court.
Area(s) of Law:- Administrative Law
Herrera v. C & M Victor Company
To prove a defamation per se claim, the plaintiff only needs to show that the statement was published and was per se harmful. This is distinguished from an ordinary defamation claim that requires proof of “special harm,” defined as “the loss of something having economic or pecuniary value.”
Area(s) of Law:- Tort Law
Housing Authority of Jackson County v. City of Medford
A petition, the resolution of which would not have a practical effect on either party to it, must be dismissed for being not being justiciable, and therefore moot.
Area(s) of Law:- Land Use
Norris v. R & T Manufacturing, LLC
Under ORS 95.230(1)(a), a transfer of all business assets to a newly formed company is fraudulent when the transfer is made for the purpose of avoiding payment of a judgment, where the new company conducted business nearly identical to the old company, and no other reason existed for transferring assets other than to avoid paying the judgment.
Area(s) of Law:- Corporations
State v. Gonzales
A police officer cannot rely on the "good-faith exception" to the Fourth Amendment of the U.S. Constitution to impound a car that does not impede traffic or pose a threat to safety when that police officer should have been on notice that the "community-caretaker exception" does not apply.
Area(s) of Law:- Criminal Procedure
State v. Lambert
Revisiting a previous decision where the case was vacated and remanded for the trial court to sort out the inevitable discovery of evidence after an illegal search, the Court held that their decision to vacate and remand was error and, under Article I, Section 9, of the Oregon Constitution, evidence obtained after a person's rights are violated is tainted evidence.
Area(s) of Law:- Criminal Procedure
State v. Newcomer
To prove that a defendant knowingly failed to appear on a criminal citation, ORS 133.076, the state has the burden of proof to prove that the defendant knew of his or her obligation to appear.
Area(s) of Law:- Criminal Law
State v. Truong
The party offering the scientific evidence at issue has the burden of establishing that it is scientifically valid.
Area(s) of Law:- Evidence
State v. Vanderzanden
A jury instruction that follows the statute must not construe the statutory language contrary to caselaw.
Area(s) of Law:- Criminal Law
Stoecklin and A. L. C.
The party petitioning the court for the name change of a child has the burden to establish the name change is in the best interest of the child.
Area(s) of Law:- Family Law
Adams v. West Coast Trust
The probate court did not abuse its discretion by declining to reconsider an order approving the sale of mineral rights.
Area(s) of Law:- Trusts and Estates
Department of Human Services v. H.H.
When one parent, who otherwise appears to be a fit parent, allows their children to be home alone with a parent who has caused harm to a child, the totality of the circumstances tend to show that there will be a reasonable likelihood of additional harm to the child.
Area(s) of Law:- Juvenile Law
Espinoza v. Evergreen Helicopters, Inc.
The inconvenient forum doctrine is available in Oregon and should be applied by weighing private and public interest factors. In order to dismiss, a defendant must show the factors are strongly in favor of dismissal.
Area(s) of Law:- Civil Procedure
Lewis v. Beyer
Without changing the analysis or outcome, the Court offers clarification on a few matters of a prior decision of the same name.
Area(s) of Law:- Remedies
Norris v. R & T Manufacturing, LLC
Oregon courts adhere to the "American rule" of attorney fees, under which courts generally will not award attorney fees to the prevailing party absent statutory or contractual authorization.
Area(s) of Law:- Attorney Fees
Patton v. Mutual of Enumclaw Insurance Co.
If a homeowner's insurance policy contains ambiguous provisions relating to the time-frame in which an insured may recover, those provisions are held against the drafter of the policy.
Area(s) of Law:- Insurance Law
Spurger v. SAIF
Under OAR 436-035-0019 a worker is entitled to chronic condition impairment value if the worker is "significantly limited" in the repetitive use of certain body parts.
Area(s) of Law:- Workers Compensation
State v. Campbell
The factors that the court considers in determining whether to correct an unpreserved plain error include the ends of justice in the particular case, the gravity of the error, and whether the policies underlying the preservation requirement were served in another way; one of the policies underlying the preservation requirement is that of allowing the opposing party the opportunity to respond to the asserted error.
Area(s) of Law:- Appellate Procedure
State v. Canfield
When a police officer requests identification from a person, the request alone, without more, does not constitute a stop for purposes of Article I, section 9 of the Oregon Constitution.
Area(s) of Law:- Criminal Procedure
State v. Carle
Because the sender of a text message has no reasonable expectation of privacy in the digital copy of a text message delivered to a recipient’s cell phone, a “search” of the sender does not occur under Article I, section 9, or the Fourth Amendment, where police discovered a text message from Defendant on a recipient’s cell phone.
Area(s) of Law:- Evidence
State v. Coffman
Warrantless entrance onto residential curtilage is likely a trespass, unless the resident has given implied or express consent. When determining implied consent to enter the curtilage of a home that consists of multiple units, the Court looks at the physical layout of the units and the residents' use of the area to see whether an objective member of the public would understand that there is an implied consent to enter.
Area(s) of Law:- Criminal Procedure
State v. Gensler
Under ORS 132.560(3), charging instruments that have been consolidated may be severed upon motion if the defendant is substantially prejudiced by the joinder of offenses.
Area(s) of Law:- Criminal Law
State v. Moulton
In order to survive a motion to suppress evidence, the State must prove that a police officer’s warrantless search or seizure was constitutionally justified by an exception to the warrant requirement.
Area(s) of Law:- Constitutional Law
State v. Washington
Removal of a victim to a different location as part of a rape is considered the separate offense of kidnapping if the intent behind the move was to limit the victim's freedom and isolate the victim.
Area(s) of Law:- Criminal Law
Weldon v. Bd. of Lic. Pro. Counselors and Therapists
Under ORS 183.650(3), an agency may only modify the ALJ’s finding of fact when there is “clear and convincing evidence” that the finding was incorrect. If a party challenges this modification then the court will review the finding of fact de novo and remand to the agency if the court finds that the modification was an error.
Area(s) of Law:- Administrative Law
Westfall v. Oregon Department of Corrections
Arguments not presented to the trial court in the first instance cannot be raised on appeal.
Area(s) of Law:- Appellate Procedure
Dept. of Human Services v. M.H.
Under ORS 419B.500 and ORS 419.498(3), a termination of parental rights petition will be based upon the most recent permanency plan determination since it is based on the current circumstances of the child.
Area(s) of Law:- Juvenile Law
Horizon Air Industries, Inc. v. Davis-Warren
Under ORS 656.005(7)(a), to establish a compensable injury a claimant must prove that an injury was suffered in the course of employment and that the injury resulted in death, disability, or was severe enough to require medical services, including medical services with only a diagnostic or prophylactic purpose.
Area(s) of Law:- Workers Compensation
Horizon Air Industries, Inc. v. Davis-Warren
Under ORS 656.005(7)(a), to establish a compensable injury a claimant must prove that an injury was suffered in the course of employment and that the injury resulted in death, disability, or was severe enough to require medical services, including medical services with only a diagnostic or prophylactic purpose.
Area(s) of Law:- Workers Compensation
Kraai v. Bur. of Fire and Police Dis. & Ret. Fund
Under the Fire and Police Disability and Retirement Fund Rule (FPDR) § 5.7.03(D), a disability claim for an aggravated injury must be submitted within 30 days of objective findings of medical evidence or an expert medical opinion indicating the worsening of the prior work injury.
Area(s) of Law:- Disability Law
State v. Berrellez
Under Art. I, sec. 10 of the Oregon Constitution and former ORS 135.747 (2011), a defendant’s defense is not unreasonably prejudiced by an 8-year delay due to evasion of police, destruction of non-valuable case notes, and the death of a witness.
Area(s) of Law:- Criminal Procedure
State v. Fujimoto
When the same conduct satisfies more than one theft statute that do not each contain an element that the other does not, the theft offenses will merge into one offense.
Area(s) of Law:- Criminal Law
State v. Parker
The guiding principle in determining whether an encounter is a constitutionally significant seizure is whether the officer had manifested a “show of authority” that intentionally and significantly restricts an individuals’ liberty.
Area(s) of Law:- Criminal Law
State v. Phillips
A notice of the introduction into evidence of hearsay statements under OEC 803(18a)(b) need not set out verbatim the statements that the State intends to offer.
Area(s) of Law:- Criminal Procedure
State v. Reineke
Where the prosecution impermissibly references a defendant’s invocation of his right to remain silent, the defendant’s right to a fair trial is prejudiced.
Area(s) of Law:- Criminal Procedure
State v. Stanton
Under Oregon's "anti-merger" statute--ORS 161.067--a trial court, before issuing separate convictions arising from one incident, must determine if either (1) there were separate victims, or (2) there was sufficient pause between crimes committed against one victim.
Area(s) of Law:- Criminal Law
State v. Underwood
For hearsay to qualify as an excited utterance, three requirements must be satisfied: (1) a startling event or condition must have occurred; (2) the statement must have been made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement must relate to the startling event or condition.
Area(s) of Law:- Evidence
State v. Waterhouse
Evidence that a stolen item has some market is sufficient to prove the value element of theft in the third-degree, even if that value is speculative.
Area(s) of Law:- Criminal Law
State v. Wilson
Admitting testimony from an officer trained as a drug-recognition expert (DRE) in the absence of an adequate scientific foundation is not in error because the testimony constitutes nonscientific expert opinion evidence.
Area(s) of Law:- Evidence
Association of Oregon Corrections Employees v. DOC
The statutory obligations of the Public Employees Benefit Board are not compatible with the State’s bargaining obligations under the Public Employees Collective Bargaining Act.
Area(s) of Law:- Employment Law
Dept. of Human Services v. J. M.
In order to show a change in plan is a "foster care placement" within the meaning of ICWA, a "significant shift in legal rights" must occur.
Area(s) of Law:- Juvenile Law
Gordon v. Board of Parole
In 1977 Oregon adopted a "matrix" standard in place of the former "discretionary" system which eventually gave rise to a new development for board review. Under the new system, the board could only consider the current psychological condition rather than the entire record. To determine what standard to use, a dispositive issue is when the inmate elected to enroll in the system.
Area(s) of Law:- Criminal Procedure
Smith v. Franke
In order to constitute inappropriate vouching for a minor, a witness’s testimony in regards to the minor’s ability to distinguish between truth and lie is insufficient.
Area(s) of Law:- Criminal Law
State v. Lewis
For a conviction of assault in the fourth degree, the state must show the victim suffered physical injury in the form of "impairment of physical condition or substantial pain."
Area(s) of Law:- Criminal Law
State v. McCrary
An in-trial Horizontal Gaze Nystagmus test is an unlawful search without a warrant or exception to the warrant requirement because Nystagmus is not an observation made or commonly understood by the public.
Area(s) of Law:- Criminal Procedure
E.T. v. Belete
Assaultive acts and statements within a church was legally sufficient to prove objective alarm, warranting entry of a stalking protective order.
Area(s) of Law:- Civil Stalking Protective Order
Evergreen West Business Center, LLC v. Emmert
When expenses are incurred in good faith, without being part of a calculated breach, those expenses should not be reimbursed as damages.
Area(s) of Law:- Remedies
Hamilton v. Pacific Skyline, Inc.
Under ORS 656.262(11)(a), a claimant is entitled to penalties and attorney fees where a Board’s determination is not supported by substantial reason.
Area(s) of Law:- Workers Compensation
Riverview Condominium Assn. v. Cypress Ventures
ORCP 22 does not run afoul of constitutional ripeness issues by authorizing an accelerated timeline for deciding minimally contingent third-party claims.
Area(s) of Law:- Civil Procedure
Riverview Condominium Assn. v. Cypress Ventures
When an injury to the "interest of another in real property" is raised under ORS 12.080 the statute of limitations will be six-years.
Area(s) of Law:- Property Law
State v. Chen
Under ORS 475.860, a reasonable jury could convict a defendant on a charge of delivery of marijuana when presented with evidence of their frequent presence at a grow operation, transportation of marijuana trimmings, and large amounts of drugs on the property. These factors considered cumulatively create a logical inference that a defendant intends to sell the marijuana, which constitutes delivery.
Area(s) of Law:- Criminal Law
State v. Chen
Stopping in the middle of the road causing vehicles to slow and swerve is impeding the normal and reasonable movement of traffic.
Area(s) of Law:- Traffic Infractions
State v. James
It must be shown that Defendant controlled the supply of alcohol that minors consumed to sustain a conviction for furnishing alcohol to minors.
Area(s) of Law:- Criminal Law
State v. Meek
A letter, as a form of “written communication” is not considered an “object” under ORS 163.750(1)(c).
Area(s) of Law:- Criminal Law
State v. Rudnitskyy
Under Art. I, Sec. 9 of the Oregon Constitution, or the Fourth Amendment of the U.S. Constitution, a police "stop" occurs when a reasonable person would believe that an officer either physically restrains a citizen's liberty in a significant way, or engages in a "show of authority" that reasonably conveys to the person a significant restriction on that person's freedom.
Area(s) of Law:- Criminal Procedure
State v. Stapp
Evidence of prior, uncharged misconduct, is not admissible to prove the character of a person in order to show that the person acted in conformity therewith; such evidence of prior acts may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of prior, uncharged misconduct may also be used to impeach the credibility of the defendant's testimony.
Area(s) of Law:- Evidence
State v. Thomas
For a trial court to properly exercise its discretion to deny a motion for continuance, it must inquire into the nature, and evaluate the merits, of a defendant’s complaints.
Area(s) of Law:- Criminal Procedure
State v.Zibulsky
Named account holders of joint bank accounts are not culpable for identity theft under ORS 185.800 for using accounts within their legal rights as joint bank account holders.
Area(s) of Law:- Criminal Law
November 31 summaries
State v. Hite
Under Article I, Section 9 of the Oregon Constitution, an administrative inventory search policy must not be overly broad nor allow for officer discretion outside the stated policy.
Area(s) of Law:- Criminal Procedure
State v. Marquez-Vela
A witness cannot testify to the credibility or truthfulness of another witness. The trier of fact must make these determinations.
Area(s) of Law:- Criminal Procedure
State v. Pumphrey
Under ORS 137.106, a Defendant must pay restitution for economic damages incurred by violating a stalking protective order so long as there is a “but for” causal relationship between the criminal activity and the resulting the economic damages.
Area(s) of Law:- Criminal Law
Clatsop County District Attorney v. City of Astoria
A city attorney has all the powers of a district attorney with respect to a violation of any offense created by statute that is subject to the jurisdiction of a municipal court and committed or triable in that city.
Area(s) of Law:- Criminal Procedure
Dept. of Human Services v. M.D.
When an Indian child is involved, DHS must show that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful.
Area(s) of Law:- Indian Law
Isayeva v. Employment Dept.
In evaluating whether an instance of workplace misconduct was an “isolated instance of poor judgment,” the proper standard is not whether an employer “could” conclude that the continued relationship impossible, but whether an employer would have so concluded.
Area(s) of Law:- Administrative Law
Leung v. Employment Dept.
Under OAR 471-040-0010(2), the phrase "gaining knowledge that the person needed or was entitled to such [language] assistance" "refers to the department's knowledge or awareness, obtained by any means, that the person needed or was entitled to oral or written language assistance."
Area(s) of Law:- Administrative Law
Saunders v. Nooth
Where a defense attorney in a post-conviction relief appeal does not renew a pretrial motion to suppress the evidence at trial, the attorney does not fail to provide adequate assistance of counsel.
Area(s) of Law:- Post-Conviction Relief
State v. Bafus
Whether it is a reversible “error of law apparent on the written record,” ORAP 5.45(1), when a trial court held a bench trial and convicted defendant without first obtaining a written waiver of her right to a jury trial.
Area(s) of Law:- Criminal Procedure
State v. Enyeart
Defendant could not be convicted of interfering with a peace office as a lesser-included offense of eluding a police officer because the intentional mental state of ORS 162.247(1)(b) is not subsumed in the knowing mental state of ORS 811.540(1)(b)(A) and the charging instrument did not expressly allege that Defendant had intentionally refused to obey a lawful order.
Area(s) of Law:- Criminal Law
State v. Garrison
Under OEC 403 and OEC 404, character evidence admitted will not be considered to be an abuse of a trial courts discretion where it is deemed to have little prejudicial effect and the jury has been offered a curative jury instruction. A curative instruction will be assumed to be followed by the jury unless there is an “overwhelming possibility” that the jury was incapable of following it.
Area(s) of Law:- Evidence
State v. Glazier
If the trial court commits an error in sentencing that requires resentencing, the appellate court will remand the entire case for resentencing. ORS 138.222(5)(a).
Area(s) of Law:- Criminal Procedure
State v. Taylor
Under ORS 138.050, the Court of Appeals does not have jurisdiction when defendant's claim is not a claim that the fee exceeds the maximum allowable by law or is unconstitutionally cruel and unusual.
Area(s) of Law:- Appellate Procedure
Deckard v. Bunch
Under ORS 471.565, a statutory liability is created for social hosts who serve visibly intoxicated persons.
Area(s) of Law:- Tort Law
Liberty Northwest Ins. Corp. v. Vera-Chavez
Under ORS 656.268(1) and ORS 656.268(10), after a claimant has completed an authorized training program, a disability claim can only be closed when the worker is medically stationary and there is sufficient information to determine disability.
Area(s) of Law:- Workers Compensation
PUC v. Employment Department
Under ORS 657.176(2)(c), a claimant is not entitled to unemployment insurance benefits when that claimant’s good cause for voluntarily leaving is based on medical necessity with no reasonable alternative and when the claimant has medical leave available through employment.
Area(s) of Law:- Employment Law
State v. Behee
Under ORS 166.270(2), objects described as “ninja climbing claws” are not “metal knuckles” because their intended purpose is tree climbing, not punching.
Area(s) of Law:- Criminal Law
State v. K.M.
It is not sufficient for a client to be informed by their attorney as to the possible outcomes of a hearing to determine mental illness and possible involuntary confinement. The trial judge must advise the alleged mentally ill person of their rights pursuant to ORS 426.100.
Area(s) of Law:- Civil Commitment
State v. Welsh
Under ORS 137.123(5), consecutive sentences must only be granted for convictions arising out of continuous and uninterrupted courses of conduct if the court finds that the violation was not merely an incidental violation, but actually an indication of defendant’s willingness to commit a separate crime, or that the offense created a risk of causing greater harm or injury to the victim.
Area(s) of Law:- Sentencing
Ventana Partners, LLC v. LaNoue Development, LLC
Whether an underlying claim has been settled before a party tenders their defense to a title insurer is a genuine issue of material fact.
Area(s) of Law:- Property Law
Walker v. Providence Health System Oregon
Under ORS 656.262(11)(a), unreasonable delay in accepting a claim for a "major depression and panic disorder" was grounds for imposition of penalties and attorney fees.
Area(s) of Law:- Workers Compensation
Davis v. State
ORS 12.220 applies to claims against the state notwithstanding the preemptive language of ORS 30.275(9), and the savings statute applies when some claims were dismissed with and without prejudice.
Area(s) of Law:- Civil Procedure
Dept. of Human Services v. S.W.
Father's failure to participate with DHS in its efforts to reunify him with his daughter did not undermine the reasonableness of those efforts.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. T.S.
To determine whether Department of Human Services (DHS) established reasonable efforts to reunify both the mother and the father, the efforts should be viewed through the totality of the case. DHS needs to endeavor to reunify both parents, even if it appears that only one will eventually be reunified.
Area(s) of Law:- Family Law
Gordon v. Board of Parole and Post-Prison Supervision
Under the matrix system, once the board sets an inmate's initial parole release date, the board may postpone that date only if, among other reasons, the inmate has a present severe emotional disturbance such as to constitute a danger to the health and safety of the community.
Area(s) of Law:- Parole and Post-Prison Supervision
Nay v. Dept. of Human Services
Amended provisions OAR 461-135-0835(1)(e)(B)(iii) and OAR 461-135-0832(10)(b)(B)(viii) are invalid because they exceed the statutory authority granted by ORS 416.350 and 42 USC sec. 1396p.
Area(s) of Law:- Administrative Law
Sherwood Park Business Center, LLC v. Taggart
Under ORS 20.083 and 20.096, where a losing party is a stranger to an agreement that contains an attorney fee provision, the losing party shall not be subject to an assessment of fees against it even where it asserts a reciprocal right to fees. A party’s conduct that is merely an attempt to extract himself from litigation post-bankruptcy and that is not voluntary affirmative action shall not subject him to assessment of attorney fees against him for further litigation regarding the discharged debts.
Area(s) of Law:- Attorney Fees
State v. Lusk
The Court of Appeals should exercise their discretion to correct plain error left unpreserved at trial when a defendant is convicted of a crime that the State did not sufficiently prove, and correcting the error would not undermine procedural fairness policy of the preservation rule.
Area(s) of Law:- Appellate Procedure
State v. Ramos
Expenses arising out of the insurance company’s investigation of a fraudulent claim are pecuniary damages and recoverable in restitution under ORS 137.106, which allows restitution in criminal cases.
Area(s) of Law:- Remedies
State v. Ryder
Under ORS 161.155(2)(b) and 163.165(1)(e), the least degree of collusion is enough to sustain a conviction of aiding and abetting a crime; however, mere presence during the crime is not enough to sustain such a conviction.
Area(s) of Law:- Criminal Law
State v. Sparks
Under ORS 163.545, certain offenses concerning the welfare of children apply only to parents or persons in loco parentis to children. The child-neglect statute similarly applies to such individuals; it also applies, to "temporary custodians," those who are not "lawfully charged with" the care, custody, or support of a child but who nevertheless have "control" of the child.
Area(s) of Law:- Criminal Law
December 71 summaries
Assn. of Oregon Corrections Employees v. State of Oregon
Waiver of right to bargain does not occur unless a written notice of proposed changes is issued and there is no demand to bargain.
Area(s) of Law:- Employment Law
K.E.A. v. Halvorson
Under ORS 30.866(1)(c), a stalking protective order shouldn’t have been issued when a respondent drives through a petitioner’s neighborhood three times and only makes contact with members of petitioner’s household as a response, despite respondent’s history of infrequent incidents of anger and aggression towards others.
Area(s) of Law:- Civil Stalking Protective Order
Liberty Oaks Homeowners Assn. v. Liberty Oaks, LLC
In a construction defect claim, the subcontractors were not liable as a third party respondent under ORCP 22 C, where the subcontractors’ liability was contingent upon the developers’ liability to the plaintiff.
Area(s) of Law:- Standing
Ouma v. Skipton
Medical expert testimony is not necessary to establish causation for a broken tooth, because it is a simple injury which layperson is competent to testify to establish causation.
Area(s) of Law:- Tort Law
SAIF v. Thompson
Under ORS 656.802(4), the “clear and convincing” standard of proof required to rebut the firefighter’s presumption under Workers Comp law does not require the defendant to prove an alternative cause of the condition, only that it’s asserted claim is “highly probable.”
Area(s) of Law:- Workers Compensation
State v. Bonilla
A third party’s actual authority to consent to search a residence does not extend to a search personal property, like a passenger’s rights against search of their personal belongings when a driver consents to a search of the vehicle.
Area(s) of Law:- Criminal Procedure
State v. Klein
Conviction for first-degree criminal trespass requires a showing by the State that Defendant was not licensed or privileged to enter the dwelling.
Area(s) of Law:- Criminal Law
State v. Koch
Evidence acquired after a Miranda violation should be inadmissible, and its admission is grounds for reversal.
Area(s) of Law:- Criminal Procedure
State v. Oregon
A court should suppress evidence obtained during a traffic stop when the officer obtained this evidence by extending the scope of the stop beyond that which reasonably relates to the traffic infraction.
Area(s) of Law:- Criminal Procedure
W.M. v. Muck
Under ORS 30.866(3), a child overhearing a conversation she assumes to be about her father in an abstract though unpleasant way is not sufficient to subjectively place her in apprehension of her father’s safety when the comment was made during a telephone call to someone else, on the declarant’s property, while not attempting to contact or even look at the child.
Area(s) of Law:- Civil Stalking Protective Order
???Portland Fire Fighters’ Assn. v. City of Portland
Under ORS 243.672(1)(g), it is an unfair labor practice for a party to fail to comply with the results of an agreed-upon binding arbitration.
Area(s) of Law:- Labor Law
City of Portland v. Portland Firefighters' Assn.
The duty of the Employment Relations Board, under ORS 240.115 and 240.086(2), is to review and enforce arbitration decisions, and may, pursuant to ORS 243.676(2)(c), take action to enforce those decisions.
Area(s) of Law:- Arbitration
Clark v. Oregon
A petitioner for post-conviction relief must prove prejudice either under Cuyler v. Sullivan, or Oregon Rules of Professional Conduct 1.7(a)(2) to prove ineffective assistance of counsel.
Area(s) of Law:- Post-Conviction Relief
DCBS v. Muliro
An injured worker seeking supplemental disability has the burden of satisfying the requirements of ORS 656.210(2)(b); when the worker does not provide the necessary information, the entity responsible for processing the claim is not obligated to independently seek that information out.
Area(s) of Law:- Insurance Law
Entrepreneurs Foundation v. Employment Dept.
An “ALJ may have an obligation to assist a litigant in following up on potentially favorable lines of factual inquiry, [but] that duty does not remove a party's obligation to raise issues for preservation purposes.”
Area(s) of Law:- Administrative Law
Goodwin v. Kingsmen Plastering, Inc.
For injury to an interest in real property, the six-year statute of limitations in ORS 12.080(3) governs, and accrues upon the discovery of a claim.
Area(s) of Law:- Civil Procedure
Kroetch v. Employment Dept.
Where the Employment Appeals Board decision fails to explain a credibility determination for whether there is good cause for a late filing it is without substantial reason.
Area(s) of Law:- Administrative Law
State v. Blaylock
Evidence of prior bad acts is admissible to prove lack of mistake when a defendant claims self defense under OEC 404(3).
Area(s) of Law:- Evidence
State v. Digesti
Under ORS 163.305(2), which defines forcible compulsion necessary for first-degree sexual assault, the compulsive physical force exhibited against the victim need not be applied directly to the physical body but need only be sufficient to compel the victim to submit to the sexual conduct.
Area(s) of Law:- Criminal Law
State v. Ghim
An individual has no protected privacy interest in business records held by a third-party service provider
Area(s) of Law:- Constitutional Law
State v. Lomchanthala
A defendant is not entitled to a jury instruction defining a “voluntary act” unless some evidence has been presented that would show his acts were involuntary.
Area(s) of Law:- Criminal Procedure
State v. Olendorff
After an arrest, if a request by arrestee is made to hand over personal belongings to another person and no exception pursuant to an arrest warrant exists at the time of the arrest, then the officer is to release said personal belongings to the other person as requested.
Area(s) of Law:- Criminal Procedure
Brown v. Guard Publishing Co.
Under ORS 192.410, a public records request is only exempt from disclosure when there is enough specificity about the contents of the contract to determine whether all of the information within it was exempt from disclosure; it does not protect other material in the contract that may be reasonably severed from the exempt material.
Area(s) of Law:- Civil Law
Colombia Riverkeeper v. Clatsop County
The County Board denying an application, after LUBA issued a final action approving an application based on the board’s prior approval, cannot be “for the purposes of avoiding the requirements of ORS 215.427.” As that was not the case, ORS 197.835(10)(a)(B) did not require LUBA to reinstate the board's original decision.
Area(s) of Law:- Land Use
S.L.L. v. MacDonald
While a conditional threat alone is not sufficient to satisfy the immediacy element for granting a stalking protective order (SPO), the context of the threat and other evidence can sufficiently establish an immediate threat for a court to grant an SPO.
Area(s) of Law:- Civil Stalking Protective Order
State v. Harrison
When a claimed “plain error” is associated with a trial court not having sua sponte interrupted a line of questioning, the existence of any error does not depend solely on whether the lawyer’s questions or the elicited answers would have been inadmissible if they had been objected to.
Area(s) of Law:- Appellate Procedure
State v. Nelson
Under ORS 166.023(1), a defendant who responds to a friend’s social network account about an emergency at a school is not considered to have initiated or circulated a report. Also, such behavior does not qualify as having knowingly done so.
Area(s) of Law:- Criminal Law
State v. S.R.
When petitioning for civil commitment as a result of mental illness, the state is not obligated to wait until a person is on the threshold of dying to petition for said commitment, but still needs to show that the person is so unable to care for their basic needs as a result of a mental disorder that they are “at risk of death in the near future.”
Area(s) of Law:- Civil Commitment
State v. Traylor
Under ORS 137.123(5)(a) the fact that defendant was more destructive of property than he needed to be in the manner in which he conducted the burglary permits the inference that defendant was willing to commit the separate offense of criminal mischief in addition to the offense of burglary.
Area(s) of Law:- Criminal Law
Copeland Sand & Gravel, Inc. v. Estate of Angeline Dillard
Where there is a dispute over the meaning of a mineral reservation contained in a deed, the term must be analyzed using the three Yogman factors.
Area(s) of Law:- Contract Law
Dept. of Human Services v. L.C.
To have continued jurisdiction over a child there needs to be current threat of danger or serious loss of injury that is based in facts, and not speculation. The factual basis “cannot be based on a parent's past problems, absent evidence that the problems persist and endanger the child.”
Area(s) of Law:- Family Law
Hall v. Speer
Application for benefits, coupled with a doctor’s report and correspondence with an insurer, are not sufficient “proof of loss” to require the payment of attorney fees.
Area(s) of Law:- Attorney Fees
Intel Corp. v. Batchler
Under ORS 656.268(10) and ORS 656.340(12), with each accepted claim for a work-compensable injury, an injured worker must be compensated for a minimum of 16 months, and may also be compensated for a maximum of 21 months with agreement from a self-insured employer.
Area(s) of Law:- Workers Compensation
McDonald v. MacDonald
When an attorney fee agreement includes language that allows for a court to determine particular statutory factors in determining attorney legal fees, an appeal arising from an issue with an adverse ruling by the court in regards to those legal fees will not be considered to have been preserved.
Area(s) of Law:- Attorney Fees
P.M.H. v. Landolt
To satisfy ORS 30.866, it is not sufficient to prove that someone is in reasonable objective apprehension of their or their family’s personal safety when someone sends letters or gifts to a child through third parties at their school.
Area(s) of Law:- Civil Stalking Protective Order
Simonsen v. Premo
Advice to plead guilty in a capital case without first securing a guarantee that the State will not seek the death penalty is not categorically inadequate assistance of counsel.
Area(s) of Law:- Post-Conviction Relief
State v. Bigsby
Under ORS 138.040, a judgment is not appealable where the trial court had already accepted an unqualified, written guilty plea and the parties did not make an effort to withdraw the unqualified plea and try the disputed issue.
Area(s) of Law:- Appellate Procedure
State v. Blasingame
On appeal, a court has the discretion to recognize challenges that were neither raised nor preserved at trial, but this discretion should only be exercised cautiously.
Area(s) of Law:- Appellate Procedure
State v. Clemons
There are three factors to determine causal connection in considering evidence tainted under the fourth amendment: the temporal proximity between unlawful police conduct and the discovery of the evidence; the presence of intervening circumstances, and "particularly, the purpose and flagrancy of the official misconduct."
Area(s) of Law:- Criminal Procedure
State v. Cook
An erroneous attorney fee award is not reversible if the error is unpreserved for appeal, not plain on the face of the record, and invited by the appellant.
Area(s) of Law:- Attorney Fees
State v. Crombie
Defendant may not address the victim of a FAPA order in a pleading, which may include some statements addressed to the court if it is clear they were intended for the victim.
Area(s) of Law:- Family Abuse Prevention Act
State v. Evans
Burglary is accomplished if a person enters or remains unlawfully, in a dwelling, with the intent to commit a crime therein.
Area(s) of Law:- Criminal Law
State v. Kreiss
The 2005 amendments to ORS 137.106 awards "economic damages" as set out in ORS 31.170(2)(a), meaning “objectively verifiable monetary loss”, and not just those that would have been awarded in a civil action.
Area(s) of Law:- Remedies
STATE v. LILE
The right to counsel under Article 1, section 11 of the Oregon Constitution includes the right to privacy when communicating with an attorney through the attorney’s representative.
Area(s) of Law:- Criminal Procedure
State v. Mejia-Espinoza
A court cannot impose fees based on pure speculation that a defendant has funds to pay the fees or may acquire them in the future. The State bears the burden of proving that the defendant is or may be able to pay attorney fees.
Area(s) of Law:- Attorney Fees
State v. R. L. W.
Pursuant to ORS 427.290, the State must prove, by clear and convincing evidence, that a person has an intellectual disability so that he is incapable of caring for himself or is a danger to himself or to others.
Area(s) of Law:- Civil Commitment
US Bank NA v. Eckert
The Oregon Trust Deed Act, ORS 86.803 contemplates post-sale challenges to trustees’ sale in forcible entry and wrongful detainer actions, and Oregon Courts have recognized the validity of post-sale challenges.
Area(s) of Law:- Property Law
Walton v. Board of Parole and Post-Prison Supervision
Judicial review of a "murder review" conducted by the Board of Parole and Post Prison Supervision is moot when the judicial review would have no practical effect on an inmate's release date.
Area(s) of Law:- Post-Conviction Relief
Dept. of Human Services v. A.F.
In a juvenile court jurisdictional hearing, the conditions and circumstances that give rise to jurisdiction over the children must exist at the time of the hearing.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. E. M.
Juvenile court has the authority to postpone a hearing or make other procedural accommodations to protect the parent’s right to participate when a parent is unable to or prevented from personally appearing due to parent’s incarceration, physical condition, mental illness, or need to be in another courthouse at the same time as the parent’s scheduled hearing.
Area(s) of Law:- Juvenile Law
Hall v. Dept. of Corrections
Judicial review of an administrative rule is limited to its challenge on the face of the rule and not “as applied.”
Area(s) of Law:- Administrative Law
Sawyer v. Real Estate Agency
A license may be revoked and discipline assigned under ORS 696.775 and 696.301 even if the license has expired, so long as revocation of the license that existed at the time the Notice was issued as an appropriate sanction and is within the Real Estate Agency's discretion.
Area(s) of Law:- Administrative Law
Scott v. Liberty Northwest Ins. Corp.
An authorization of temporary disability benefits is legally sufficient under ORS 656.262(4) when an objectively reasonable insurer would understand contemporaneous medical reports to signify approval excusing the worker from work.
Area(s) of Law:- Administrative Law
Sexton v. Persson
To determine whether a sentence is constitutionally proportional under Article I, section 16, of the Oregon Constitution, a court should consider the actual sentence imposed for the offense with the maximum sentence allowed for the greater-included offense.
Area(s) of Law:- Post-Conviction Relief
State, acting by and through the Oregon Health Authority v. Cue
The time limitations to bring a claim under ORS 115.005 are waived when the representative of an estate fails to satisfy the notice condition of ORS 115.005(3)(b).
Area(s) of Law:- Civil Procedure
State v. Buckles
Under ORS 138.050(1), except as otherwise provided in ORS 135.335, concerning conditional pleas, a defendant who has plead guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition: (a) exceeds the maximum allowable by law; or (b) is constitutionally cruel and unusual.
Area(s) of Law:- Appellate Procedure
State v. Camacho-Garcia
Under Article I, section 16, of the Oregon Constitution, a defendant’s sentence of 75 months under ORS 137.700(2)(a)(P) for repeated, skin-to-skin sexual touching of his live-in girlfriend’s daughter under 14 years of age was not disproportionate, evaluated using the three Rodriguez/Buck factors to find the sentence would not shock the moral sense of a reasonable person.
Area(s) of Law:- Sentencing
State v. Jackson
Evidence obtained pursuant to an unlawful search should be inadmissible - even if said evidence is acquired from a consented search that resulted from unlawful search.
Area(s) of Law:- Criminal Procedure
State v. Menefee
In order to waive the right to counsel, a defendant must express clear intent to do so, under the specific circumstances of the particular case. However, when someone chooses to represent themselves and they are thrown out of court for being disruptive, the defendant has not automatically waived their overall right to representation.
Area(s) of Law:- Criminal Procedure
State v. Nunes
A single criminal episode of possession during which a defendant felon has continuous actual or constructive possession of a firearm is not subject to the ORS 161.067 "anti-merger statute."
Area(s) of Law:- Criminal Procedure
State v. Paniagua
Under OEC 608(1), a defense witness may not offer character testimony if that witness has insufficient contact with the individual against whom the testimony is directed.
Area(s) of Law:- Evidence
State v. Rodriguez-Rodriguez
An indictment can be sustained even if an essential element or fact was communicated only by implication or context.
Area(s) of Law:- Criminal Procedure
State v. Rudnick
It is a plain error to expose a defendant to six months of additional supervision; if such an error can be easily remedied, the Court may exercise its discretion to correct it.
Area(s) of Law:- Sentencing
State v. Urie
Under ORS 813.011(3), a 90-day jail sentence must be imposed upon conviction of a Class C felony and a court does not have authority to reduce or suspend this sentence in any way.
Area(s) of Law:- Sentencing
State v. Wendt
When a defendant has not suffered prejudice, and delays in trial are the result of good faith, or factors outside of the parties' control, then a defendant's state and federal constitutional right to speedy trial is not violated.
Area(s) of Law:- Constitutional Law
Sunset Presbyterian Church v. Anderson Construction Co.
ORS 30.140 only requires a subcontractor to defend a general contractor to the extent that plaintiff's allegations implicate the subcontractor's work; and similarly plaintiff's petition for attorney’s fees must divide attorney’s fees between allegations or claims.
Area(s) of Law:- Civil Procedure
Thompson v. Belleque
Claims of constitutionally deficient representation must be supported by specific facts in the record not only showing representation was deficient, but also that it tended to affect the outcome of the trial.
Area(s) of Law:- Post-Conviction Relief
Waterwatch of Oregon, Inc. v. Water Resources Dept.
Under ORS 537.230(2)(c), the Water Resources Department must find that undeveloped portions of permits are subject to conditions that preserve from decline the continued existence, or endurance, of listed fish species in the affected waterway.
Area(s) of Law:- Environmental Law
Williams v. Gaylord
Under ORS 31.735(1), attorneys may recover a 40% statutory share of damages, regardless of whether there is additional recovery.
Area(s) of Law:- Attorney Fees
Wyers v. American Medical Response Northwest, Inc.
ORS 124.100(5) requires that the defendant know of the existence of the requisite circumstance at the time of the alleged "permitting." An action is deemed permitted when the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical abuse.
Area(s) of Law:- Tort Law
Yeatts v. Polygon Northwest Company
For a general contractor to be liable for the negligence of a subcontractor under Oregon's Employer Liability law, they must be engaged in a "common enterprise".
Area(s) of Law:- Tort Law