January 10 summaries
Dept. of Human Services v. C.L.H
In determining whether DHS failed to make reasonable efforts to make reunification possible, the juvenile court must engage in a cost-benefit analysis, considering both the burdens on the state in providing that service and the benefit that might reasonably be expected to flow from that service. DHS may not withhold a potentially beneficial service to an incarcerated parent simply because, in DHS’s estimation, reunification with the child is ultimately unlikely even if the parent successfully engages in the services and programs that DHS provides.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. S. M. H.
Under ORS 419B417(2)(a) the juvenile court is authorized to change the plan from reunification only if DHS proves that (1) it made reasonable efforts to make it possible for the child to be reunified with his or her parent and (2) notwithstanding those efforts, the parent’s progress was insufficient to make reunification possible.
Area(s) of Law:- Family Law
Rehfeld v. Sedgewick Claims Management Servs.
A workers' compensation claimant employed by an employer whose pay scheme does not comply with ORS chapter 656 is entitled to her "assumed wage" as compensation.
Area(s) of Law:- Workers Compensation
State v. Lien/Wilverding
State v. Howard/Dawson, 204 Or App 438 (2006) established that defendants have no possessory interest after the sanitation company picks up the garbage can, but defendants do have a possessory interest before the sanitation company collects the defendants’ garbage can. It does not conclude that a slight deviation from an ordinary collection routine is constitutionally significant.
Area(s) of Law:- Criminal Procedure
Butler Family LP v. Butler Brothers, LLC
Under Huff v. Duncan, the use of the word “successors” in a lease agreement is not required to evidence an intention that a covenant in the original agreement run with the land; a reference to “assigns” is sufficient to evidence that intention.
Area(s) of Law:- Property Law
Smith v. DCBS
A memorandum informing a person of existing law acts as an announcement, not a rule, under the Oregon Administrative Procedures Act, thus, not eligible for judicial review under ORS 183.400.
Area(s) of Law:- Administrative Law
Smith v. Dept. of Corrections
Under ORS 183.310(9)(f), rules of the conduct of inmates are unreviewable by appellate courts; OAR 291-130-0016(3) is such a rule and therefore is unreviewable.
Area(s) of Law:- Administrative Law
State v. Haines
Article 1, section 11, states that the constitutional right to counsel may be waived but the waiver must be voluntarily and knowingly made. To knowingly waive the right to counsel, a defendant must be aware of the right to counsel and also understand the risk inherent in self-representation. It is up to the court to determine whether the waiver of counsel is made knowingly.
Area(s) of Law:- Constitutional Law
State v. Marinez-Garcia
Under the Fifth Amendment, a trial court may not force a defendant to testify, on pain of contempt, as to his true identity, even when the true identity is unknown to the State and trial court.
Area(s) of Law:- Post-Conviction Relief
State v. Rives
A victim's identification satisfies the personal knowledge requirement of OEC 602 if a reasonable factfinder could find that the identification was more likely based on the victim's own perceptions.
Area(s) of Law:- Evidence
February 26 summaries
Bergstrom v. Assoc. for Women’s Health of So. Ore.
Expert testimony does not have to be offered to prove a specific complaint allegation in order to be relevant under OEC 401.
Area(s) of Law:- Evidence
State v. Madden
Under State v. Bates, 304 Or 519 (1987), a seizure under the officer safety warrant exception must be supported by reasonable suspicion based on specific and articulable facts that Defendant posed an immediate threat of serious physical injury to the officer or to others then present.
Area(s) of Law:- Post-Conviction Relief
State v. Runnels
Trial courts must consider whether Defendant is or may be able to pay attorney fees before imposing them.
Area(s) of Law:- Attorney Fees
Behrle v. Taylor
ORS 138.650(1) does not grant either party an additional 10 days after the 30-day period has expired to file notice of cross-appeal.
Area(s) of Law:- Post-Conviction Relief
Hernandez-Nolt v. Washington County
Under the theory of wrongful discharge, employers may incur tort liability for discharging an employee for "fulfilling some important public duty."
Area(s) of Law:- Tort Law
State v. L.R.
Under ORS 426.130(1)(a)(C), threats alone are insufficient to establish that a person is a danger to others due to a mental disorder.
Area(s) of Law:- Civil Commitment
Bell v. Board of Parole and Post-Prison Supervision
Under ORS 144.228(1)(b), “the condition which made the prisoner dangerous is absent or in remission” when a prisoner no longer suffers from or presents the symptoms of a mental disorder that satisfies the terms of the dangerous-offender statute.
Area(s) of Law:- Parole and Post-Prison Supervision
Big River Construction, Inc. v. City of Tillamook
Under ORS 20.220(3)(a), “when an appeal is taken from a general judgment . . . to which an award of attorney fees or costs and disbursements relate, . . . if the appellate court reverses the general judgment, the award of attorney fees or costs and disbursements shall be deemed reversed."
Area(s) of Law:- Attorney Fees
Dept. of Human Services v. S. E. K. H./J. K. H.
Under ORS 419B.337, juvenile courts have the authority to review placement decisions made by the Department of Human Services, but cannot compel the department to place children in specific living arrangements.
Area(s) of Law:- Juvenile Law
Duffour v. Portland Community College
Under ORS 183.482(7), the Court reviews to determine whether “fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure.”
Area(s) of Law:- Civil Procedure
Jones v. Bd. of Parole
Under ORS 144.125, the Board of Parole and Post-Prison Supervision may hold a prisoner past the prisoner's release date only if (1) petitioner has a history of serious misconduct during confinement; (2) petitioner has a PSED that constitutes a danger to the community; or (3) the board deems the petitioner’s release plan to be inadequate.
Area(s) of Law:- Post-Conviction Relief
King v. Board of Parole and Post-Prison Supervision
When the Parole Board making findings not supported by sufficient evidence, the decision must be remanded for reconsideration absent the erroneous factual findings.
Area(s) of Law:- Parole and Post-Prison Supervision
Kuhn v. Dept. of Human Services
A service that is provided with the sole objective of assisting a disabled person to function comparably to a nondisabled person qualifies as a social benefit within the meaning of OAR 411-330-0020(81), even if someone else incidentally benefits from the service.
Area(s) of Law:- Administrative Law
Nationstar Mortgage, LLC v. Niday
Under the Uniform Commercial Code “the current holder of a promissory note, indorsed in a blank, gives [the current holder] the right to enforce the note.”
Area(s) of Law:- Property Law
State v. Stuart
Under ORS 163.125, a jury's determination of the reckless mental state is "subjective and will rarely be susceptible to direct proof; it often must be inferred (or not) from objective facts."
Area(s) of Law:- Criminal Law
Brenner v. Nooth
In a post-conviction relief proceeding, an ineffective assistance of counsel claim must be based on evidence that would have been admissible at the defendant’s criminal trial.
Area(s) of Law:- Post-Conviction Relief
Chavez v. State of Oregon
The ability of a petitioner to prevail on a claim for post-conviction relief, based on new constitutional principles, depends on the retroactivity of the federal constitutional principle at work.
Area(s) of Law:- Post-Conviction Relief
Farmer v. Premo
Under the Oregon Constitution, petitioners who seek “post-conviction relief stemming from a claim of inadequate assistance of appellate counsel for failing to assert a claimed error must establish that a competent appellate counsel would have asserted the claim” in order to establish deficient performance.
Area(s) of Law:- Post-Conviction Relief
Gaylord v. DMV
Evidence of a urinalysis taken in conjunction with a DUII arrest is relevant for the purpose of determining whether a driver's license should be suspended.
Area(s) of Law:- Evidence
Hooton, Wold & Okrent, LLP v. Employment Dept.
Under ORS 657.471(9), simultaneous employment is not required and the reason for eligibility is not limited to the period of time immediately preceding the application for benefits.
Area(s) of Law:- Employment Law
Roadhouse v. Employment Dept.
The standard of review for reviewing the decisions of the Employment Appeals Board is substantial evidence, substantial reason, and errors of law. Franklin v. Employment Dept., 254 Or App 656, 657 (2013).
Area(s) of Law:- Employment Law
State v. Blackburn
Under ORS 33.096, a court may summarily impose a sanction upon a person who commits contempt of court "in the immediate view and presence of the court," including a person present via telephone.
Area(s) of Law:- Civil Procedure
State v. Bliss
The Oregon automobile exception applies to any lawful stop of a moving vehicle if an officer develops probable cause to search for contraband or evidence.
Area(s) of Law:- Criminal Procedure
State v. Gonzalez-Sanchez
A trial court's consideration of evidence under 403 balancing is sufficient where the record indicates the court's "conscious process of balancing the costs of the evidence against its benefits."
Area(s) of Law:- Evidence
State v. Silver
Under ORS 138.222(5)(b), failure to merge multiple counts into a single guilty verdict requires the reversal of a judgment of conviction which triggers an automatic remand for resentencing on all affirmed counts. State v. Skaggs, 275 Or App 557, 560-61, 364 P.3d 355 (2015), rev den, 359 Or 667 (2016).
Area(s) of Law:- Appellate Procedure
State v. Wilson
The officer safety doctrine is supported by an officer’s “reasonable suspicion, based on specific and articulable facts, that an individual ‘might pose an immediate threat of serious physical injury’ to officers or others” State. Bates, 304 Or 519, 524-25 (1987).
Area(s) of Law:- Criminal Law
March 51 summaries
Bayview Loan Servicing, LLC v. Reed
ORS 88.010(1) does not require the entry of a money judgment against a lien debtor where the foreclosure plaintiff does not seek a money judgment against the lien debtor
Area(s) of Law:- Bankruptcy Law
Brockway v. Allstate Property and Casualty Ins. Co.
Under ORS 742.056, an insurance company’s investigation of a loss or claim under an insurance policy does not estop the insurance company from asserting any provision of the policy or defense of the insurer arising from the policy.
Area(s) of Law:- Insurance Law
Dept. of Human Services v. A.F.
To prevail against parents’ motion to dismiss jurisdiction, DHS is required to prove by a preponderance of the evidence that, at the time of the hearing: (1) the facts upon which jurisdiction was based continue, (2) those facts continue to expose the child to a risk of serious loss or injury, and (3) the risk will likely be realized should the court terminate the wardship and dismiss jurisdiction. Dept. of Human Services v. T. L., 279 Or App 673, 678, 379 P3d 741 (2016).
Area(s) of Law:- Juvenile Law
Heathman Hotel v. McCormick & Schmick Restaurant
A contract term is ambiguous if, when examined in the context of the contract as a whole, including the circumstances under which the contract was formed, it is susceptible to more than one plausible interpretation. Milne v. Milne Construction Co., 207 Or App 382, 388, 142 P3d 475 (2006).
Area(s) of Law:- Contract Law
Hobbs v. Harrington
ORS 116.013 gives a probate court the discretionary authority to make a partial distribution “prior to final settlement and distribution.” A probate court can issue a judgment of final distribution without entertaining outstanding petitions for partial distribution.
Area(s) of Law:- Trusts and Estates
Jackson v. Franke
Under Article I, section 11, of the Oregon Constitution, and the Sixth Amendment of the U.S. Constitution, the test for determining whether a petitioner has been denied adequate assistance of counsel is two-pronged: (1) the petitioner must show that his or her counsel performed inadequately; (2) the petitioner must demonstrate that he or she was prejudiced because of counsel’s error. Pereida-Alba v. Coursey, 356 Or 654, 661-62, 342 P3d 70 (2015); Strickland v. Washington, 466 US 668, 686 (1984).
Area(s) of Law:- Post-Conviction Relief
Johnson v. J.G. Wentworth Originations, Inc.
Under California law, “where no interested parties object to the transfer of structured settlement payment rights,” the anti-assignment provision in the structured settlement agreement “do not bar” a court-approved transfer of structured settlement payments.
Area(s) of Law:- Contract Law
Kay v. Employment Dept.
When determining whether a claimant for unemployment benefits had a reasonable alternative to leaving work, the EAB must decide whether that reasonable alternative existed “at the time she left work.”
Area(s) of Law:- Employment Law
Lizarraga-Regalado v. Premo
Counsel's failure to object to the “natural and probable consequences” uniform jury instruction, similar to State v. Lopez-Minjarez, constitutes a failure to exercise reasonable professional skill and judgment.
Area(s) of Law:- Post-Conviction Relief
Robinson v. DeFazio
Under ORS 31.152(3), “[A] court’s discretionary authority to reduce requested attorney fees that are otherwise reasonable, . . . is subject to principled constraints. In particular, there must be a rational nexus between [an ORS 20.075] factor invoked, its underlying circumstances, and the amount of the reduction.” Grisby v. Progressive Preferred Ins. Co., 233 Or App 210, 222, 225 P3d 101 (2010).
Area(s) of Law:- Attorney Fees
State v. Berger
"ORS 137.750 requires a sentencing court to order that a defendant may be considered for release, leave and certain sentencing programs for which the defendant is otherwise eligible unless the court makes a finding on the record that substantial and compelling reasons exist that warrant a contrary result."
Area(s) of Law:- Sentencing
State v. J.T.C.
Under ORS 426.005(1)(e)(A), proving that a person is a “danger to others” due to mental illness requires proof of the likelihood of future violence based on more than a single, isolated incident.
Area(s) of Law:- Civil Commitment
State v. Valdez
When the Court relies on misunderstandings of facts in deciding a case, the Court may otherwise adhere to its previous ruling if additional facts support its ultimate holding.
Area(s) of Law:- Appellate Procedure
State v. Watts
If a defendant was not given a reasonable opportunity to consent to a search, such as when the defendant is told that a search will inevitable occur, then it may be a warrantless search.
Area(s) of Law:- Criminal Law
Thomas v. Wasco County
Under ORS 433.745 and ORS 433.750, an applicant for an outdoor-mass-gathering permit is not required to demonstrate compliance with land use laws. Those statutes do not require a county to consider an applicant’s compliance with land use laws in evaluating an application for an outdoor-mass-gathering.
Area(s) of Law:- Civil Law
Tiner v. Premo
A criminal defendant is entitled to post-conviction relief if the State withholds material evidence that is favorable to the defendant. Brady v. Maryland, 373 US 83 (1963).
Area(s) of Law:- Post-Conviction Relief
West Hills Dev. Co. v. Chartis Claims, Inc.
Under ORS 742.061(1), insureds, but not self-insurers, are entitled to attorney's fees.
Area(s) of Law:- Attorney Fees
Dept. of Human Services v. M.A.H
Under ORS 419B.476(2)(a), DHS makes "reasonable efforts" if it gives a parent a fair opportunity to demonstrate the ability to adjust his or her behavior and act as a "minimally adequate" parent.
Area(s) of Law:- Juvenile Law
Diesel v. Jackson County
A county's prohibition of marijuana production on lands zoned rural residential may not be inconsistent with the county’s comprehensive plan.
Area(s) of Law:- Land Use
Kaste v. Land O'Lakes Purina Feed, LLC
When a term in a contract is susceptible to multiple reasonable interpretations, it is ambiguous, and it cannot be a basis on which to grant a directed verdict using one interpretation.
Area(s) of Law:- Contract Law
Portland Columbia Symphony v. Employment Dept.
For the purposes of ORS 670.600(3)(d), whether an individual contributed a “significant investment” is a factor in determining whether an individual is an employee or an independent contractor; if the individual has made a “significant investment” in the business in which the individual works, the factor weighs in favor of determining the individual is an independent contractor.
Area(s) of Law:- Employment Law
Providence Health System Oregon v. Walker
Under ORS 656.268(5)(b) (2009), at the time of the request for a claim closure, a claimant’s refusal to attend an independent medical examination (IME), provides an employer with legitimate doubt as to its obligation to close the claim.
Area(s) of Law:- Workers Compensation
Smith v. Board of Parole and Post-Prison Supervision
Under 144.228(2), "[f]or a parole consideration hearing, the board shall cause to be brought before it and consider all information regarding such person," including the psychiatrist's written report.
Area(s) of Law:- Parole and Post-Prison Supervision
State v. Bement
Under OEC 803(3) evidence offered to show state of mind is excepted from the prohibition on hearsay.
Area(s) of Law:- Evidence
State v. Clark
Scientific testimony is admissible if it is (1) relevant under OEC 401; (2) of some assistance to the trier of fact under OEC 702; and (3) its probative value is not outweighed by the danger of unfair prejudice or jury confusion under OEC 403.
Area(s) of Law:- Evidence
State v. Kennedy
The “officer safety” exception allows officers to take reasonable steps to protect themselves or others if there is a reasonable suspicion, based on specific and articulable facts, that the citizen may pose an immediate threat of serious physical injury.
Area(s) of Law:- Criminal Procedure
Harbert v. Franke
Under Article I, Section 11, of the Oregon Constitution, aside from “extraordinary circumstances,” such as when the error is apparent on the face of the record, “appellate counsel’s failure to raise unpreserved matters does not, and cannot, constitute inadequate assistance.”
Area(s) of Law:- Post-Conviction Relief
J.V.-B. v. Burns
Under FAPA, an order continuing a restraining order must be supported by legally sufficient evidence that the subject of the order presented a "credible threat" to the physical safety of the protected person(s).
Area(s) of Law:- Family Abuse Prevention Act
Kastle v. Salem Hospital
When faced with a statute of limitations defense, “a complaint does not have to show that the action is timely; it suffices if the complaint does not reveal on its face that the action is not timely.”
Area(s) of Law:- Civil Procedure
State v. Byam
Under ORS 137.123(5)(a), the imposition of consecutive sentences is precluded where, in the absence of explicit evidence of multiple intents, the same act was undertaken to achieve the same end and concurrently violated multiple criminal statutes.
Area(s) of Law:- Sentencing
State v. V.T.
Under ORS 426.307(6), continued involuntary civil commitment is appropriate if there is clear and convincing evidence of a particularized and highly probable threat to a person's safety.
Area(s) of Law:- Civil Commitment
Welsh v. Taylor
Under Article I, section 11, of the Oregon Constitution, trial counsel is inadequate where "counsel failed to exercise reasonable professional skill and judgment and [the] petitioner suffered prejudice as a result." Trujilo v. Maass, 312 Or 431 (1991); ORS 138.620(2).
Area(s) of Law:- Post-Conviction Relief
Western Prop. Holdings v. Aequitas Capital Management
The duty of good faith cannot “be construed in a way that changes or inserts terms into a contract. Instead, [t]he law imposes a duty of good faith and fair dealing in contracts to facilitate performance and enforcement in a manner that is consistent with the terms of the contract.” Safeco Ins. Co. v. Masood, 264 Or App 173, 178 (2014).
Area(s) of Law:- Contract Law
State v. Garcia
Under ORS 132.550(7), an indictment must contain a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.
Area(s) of Law:- Criminal Procedure
Vantassel v. SAIF
Under ORS 656.005(24)(c), a condition merely renders a worker more susceptible to injury if the condition increased the likelihood that the affected body part would be injured by some other action or process but did not actively contribute to damaging the body part.
Area(s) of Law:- Workers Compensation
Augustus v. Board of Nursing
"In general, to preserve a contention for appeal or judicial review, a party must provide the lower court or agency with an explanation of his or her objection that is specific enough to ensure that the court or agency is able to consider the point and avoid committing error." Becklin v. Board of Examiners for Engineering, 195 Or App 186, 199- 200 (2004).
Area(s) of Law:- Appellate Procedure
Corona v. Amsberry
Under ORS 138.525(3), “if a post-conviction court dismisses a petition as meritless and, simultaneously, rules that the post-conviction petition can be dismissed for additional, independent reasons, then ORS 138.525(3) precludes any appeal from that judgment.”
Area(s) of Law:- Post-Conviction Relief
Dept. of Human Services v. C. M.
For the purposes of establishing jurisdiction, a child can sleep through episodes of domestic violence and still be "exposed" to it if no one shields or protects the child from the activity unfolding around it.
Area(s) of Law:- Juvenile Law
DeWolf v. Mt. Hood Ski Bowl, LLC
Under ORCP 64(B)(2), a new trial may be granted for misconduct of the prevailing party if that misconduct materially affected the substantial rights of the moving party. D.C. Thompson and Co. v. Hauge, 300 Or 651 (1986).
Area(s) of Law:- Civil Procedure
Masood v. Safeco Ins. Co. of Oregon
Under ORS 20.310(2), costs and disbursement on appeal include “the transcript of testimony or other proceedings, when necessarily forming part of the record on appeal.”
Area(s) of Law:- Attorney Fees
Meier v. Salem-Keizer School Dist.
Under ORS 419B.010(1), the “reasonable cause” standard that triggers a mandatory reporter’s obligation to report child abuse is equivalent to a “reasonable suspicion,” based on inferences that can be drawn from the circumstances.
Area(s) of Law:- Family Law
State v. Alonso
Compensatory fines cannot be imposed if the victim would not have a remedy in a civil action based on the crime.
Area(s) of Law:- Criminal Procedure
State v. Klingler
An affidavit to a search warrant is sufficient where it would support “a neutral and detached” magistrate’s conclusion “that there was probable cause to believe that a search . . . would reveal evidence of” a crime. State v. Heyne/Yunke, 270 Or. App. 601, 605 (2015).
Area(s) of Law:- Criminal Procedure
State v. Washington
Under Article I, Section 9, of the Oregon Constitution, an officer’s suspicion is objectively reasonable if the officer is able to “identify specific and articulable facts that produce reasonable suspicion, based on the officer’s experience, that criminal activity is afoot." State v. Mitchele, 240 Or App 86, 91, 251 P3d 760 (2010).
Area(s) of Law:- Criminal Law
Stop the Dump v. Yamhill County
ORS 215.296(1), as interpreted in Von Lubken v. Hood River County, 118 Or App 246, 250- 51 (1993), only required a cumulative impacts inquiry on a single farm, not multiple farms.
Area(s) of Law:- Land Use
Dept. of Human Services v. M. S.
The party who proposes a change in the permanency plan from reunification to adoption has the burden to prove that the child "could not be returned to [parent] within a reasonable time." Dept. of Human Services v. S. J. M., 283 Or App 367, 394 (2017).
Area(s) of Law:- Juvenile Law
Robbins v. City of Medford
Under ORS 30.265(6)(c), a governmental actor is entitled to discretionary immunity for allegedly negligent conduct only if: (1) the conduct is the product of a decision; (2) the decision must be a policy decision; (3) the decision must have been made by a governmental decision-maker with authority to make that type of policy decision.
Area(s) of Law:- Tort Law
State v. Jenkins
Under Romero, a Defendant must have affidavit supporting a request for DNA testing, and a prima facie showing of actual innocence “necessarily requires the defendant to establish a logical relationship between the presumed exculpatory DNA results and the defendant’s theory of defense in the context of the underlying trial proceedings, as will be required for a later showing of actual innocence.
Area(s) of Law:- Criminal Procedure
State v. Tapp
Under Article I, section 9, an officer has reasonable suspicion to extend a stop for investigatory purposes if the officer suspects the person has committed or was about to commit a specific crime. State v Maciel-Figueroa, 361 Or 163 (2017).
Area(s) of Law:- Criminal Procedure
State v. Woods
In order to award restitution, there must have been "(1) criminal activities, (2) [economic] damages, and (3) a causal relationship between the two." State v. Kirkland, 268 Or App 420 (2015).
Area(s) of Law:- Criminal Law
Stoltz v. Liberty Northwest Ins. Corp.
Under ORS 656.236(a)(1), a claim disposition agreement (CDA) waives or resolves all matters that could arise out of a claim, not just those currently known to arise out of the claim,with the exception of medical services, “unless those rights are expressly reserved.” Rash v. McKinstry Co., 331 Or 665, 20 P3d 197 (2001).
Area(s) of Law:- Workers Compensation
April 36 summaries
Coos Waterkeeper v. Port of Coos Bay
Use of the word “project” in ORS 196.825(1) does not require the Department of State Lands to consider post-construction operational effects of a proposed development when determining whether to issue a fill/removal permit in conjunction with that development.
Area(s) of Law:- Land Use
State v. Rodriguez
In order to award restitution damages under ORS 137.106, the Court must determine the victim’s injuries reasonably foreseeable. State v. Ramos, 358 Or 581, 368 P3d 446 (2016).
Area(s) of Law:- Criminal Law
State v. Wright
Under OAR 213-008-0002(1)(b), it is plain error for a trial court to rely on departure factors which “were already captured as elements of the offense or in a consecutive sentence.”
Area(s) of Law:- Sentencing
Clark v. Nooth
A determination that the “defendant poses a security concern is necessary before a court requires a defendant to appear in court wearing a restraint, even if the restraint is not visible to the jury.” Sproule v. Coursey, 276 Or App 417, 422, rev den, 359 Or 777 (2016).
Area(s) of Law:- Constitutional Law
Cunio v. Premo
Under ORS 138.550, a petitioner may not revive a claim for relief on the same grounds raised in an earlier petition, even if new case law would make the argument successful.
Area(s) of Law:- Post-Conviction Relief
Henley v. Employment Dept.
Under ORS 657.176(2)(c), "good cause" for voluntarily leaving work is "such that a reasonable and prudent person of normal sensitivity, exercising ordinary common sense, would leave work."
Area(s) of Law:- Employment Law
Siefken v. Premo
Under Article 1, Section 11 of the Oregon Constitution, to prove prejudice a petitioner must demonstrate his or her trial counsel’s deficient performance "had a tendency to affect the result of the prosecution.’” Green v. Franke, 357 Or 301, 321 (2015).
Area(s) of Law:- Evidence
State v. Aguilar-Ramos
Under ORS 137.106(1)(a), inattentiveness to the passage of time on the part of a prosecutor does not constitute good cause to impose restitution beyond the 90-day deadline. State v. Martinez, 246 Or. App. 383, 387, rev den, 351 Or. 507 (2011).
Area(s) of Law:- Criminal Procedure
State v. Cockrell
Federal due process and Oregon law does not require (1) the disclosure of a grand jury member's handwritten notes, or (2) an in camera review of those notes in court.
Area(s) of Law:- Evidence
State v. Craig
Under Article I, section 9, of the Oregon Constitution, when officers have an initial lawful basis for a stop, but extend the stop past the point at which the initial lawful reason for the stop has dissipated, the extension “must be justified by at least reasonable suspicion of some other criminal activity.” State v. Sherman, 274 Or App 764, 773 (2015).
Area(s) of Law:- Criminal Procedure
State v. Flores
"In a jury trial, an error is harmless if there is little likelihood that the particular error affected the verdict." State v. Davis, 336 OR 19, 32 (2003).
Area(s) of Law:- Evidence
State v. Hagner
Under OEC 404(3), prior acts evidence is admissible to demonstrate hostile motive if the State establishes a “substantial connecting link” sufficient to show “that the hostility that caused the [prior act] also motivated the charged [offense].”
Area(s) of Law:- Evidence
BP West Coast Products, LLP v. Dept. of Justice
Under ORS 646.930 the service station’s minimum requirement for posting fuel prices does not stop the Attorney general from incorporating rules under ORS 646.608(1)(u) to find and stop “any other unfair or deceptive conduct” regarding fuel prices display.
Area(s) of Law:- Civil Procedure
Cartrette v. Nooth
Under ORS 138.620(2), to obtain post-conviction relief on the ground that his lawyer’s performance did not comport with Article I, section 11, standards, a petitioner must prove facts showing (1) that his counsel failed to exercise reasonable professional skill and judgment, and (2) that petitioner suffered prejudice as a result.
Area(s) of Law:- Post-Conviction Relief
Reeves v. Plett
Under ORCP 71 B(1), as a matter of law, for a party to prove it is entitled to relief from a trial court’s judgment of dismissal on the ground “excusable neglect” the party must demonstrate that it had “a reasonable excuse for failing—on account of neglect . . .—to appear or otherwise defend [its] interests.” Union Lumber Co. v. Miller, 360 Or 767, 778 (2017).
Area(s) of Law:- Evidence
Shearer’s Food v. Hoffnagle
A single document may function as both an acceptance and a denial [of a worker's compensation claim]. Stockdale v. SAIF, 192 Or. App. 289, 84 P.3d 1120 (2004).
Area(s) of Law:- Workers Compensation
State v. Girard
Under ORS 162.155(1)(b), it is a second-degree escape if, after having been convicted of a felony, a defendant escapes from custody imposed as a result of a felony conviction.
Area(s) of Law:- Criminal Law
State v. Miller
Under either Article I, section 9, of the Oregon Constitution or the Fourth Amendment of the U.S. Constitution, disclosing incriminating medical test results that are acquired incidentally to treatment pursuant to ORS 676.260(1) does not implicate a constitutionally protected privacy interest.
Area(s) of Law:- Criminal Procedure
State v. Towai
Under Article 1, Section 9, of the Oregon Constitution, an “inventory” (1) must be conducted pursuant to a policy that has been adopted by “politically accountable officials”; (2) the officer performing the inventory must not deviate from the “established policy or procedures of that particular law enforcement agency”; and (3) if those requirements are met, then a must “assure that such policies and procedures . . . do not violate constitutional guarantees. State v. Atkinson, 298 Or. 1, 8-10 (1984).
Area(s) of Law:- Criminal Procedure
Wolff v. Board of Psychologist Examiners
Under OAR 137-003-0580, summary determination is appropriate if there is no genuine issue of any material fact that is relevant to resolving a legal issue when viewing the evidence in the light most favorable to the nonmoving party.
Area(s) of Law:- Civil Procedure
Alsaedi v. Conroy
In order to recover attorney fees for property damage claims under ORS 20.080, the injured party must include all the required information about the damaged property or prove the information was unavailable or unreasonable to obtain.
Area(s) of Law:- Attorney Fees
Benavente v. Thayer
Under ORCP 54 E, once a claiming party files an accepted offer of judgment there is “nothing for the court to do but to enter what the parties have agreed upon,” see State ex rel State Scholarship Com’n v. Magar, 288 Or 635, 642, 607 P2d 167 (1980).
Area(s) of Law:- Civil Procedure
Dept. of Human Services v. D. I. R.
There must be sufficient evidence on the record to support the juvenile court’s determination concerning the possibility to return a child home in reasonable time. Dept. of Human Services v. S. J. M., 283 Or App 367, 394, 388 P3d 417, rev allowed, 361 Or 350 (2017).
Area(s) of Law:- Juvenile Law
Farnworth v. Rossetto
A municipality does not assume any duty that is not expressly stated in its statutes. Indian Creek Development Co. v. City of Hood River, 203 Or App 231, 237-239, rev den, 340 OR 158 (2006).
Area(s) of Law:- Tort Law
Gutale v. State of Oregon
Under ORS 153.510(3)(a), a petitioner's subjective lack of awareness of the legal consequences of a plea will not delay the time in which a petition must be filed.
Area(s) of Law:- Criminal Procedure
Lunsford v. NCH Corp.
ORS 30.905(3)(b) (2008) does not violate the remedy clause of Article I, Section 10 or the jury clause of Article I, Section 17, because “[i]t is a permissible constitutional legislative function to balance the possibility of outlawing legitimate claims against the public need that at some definite time there be an end to potential litigation.” Sealey v. Hicks, 309 Or 387, 396, 788 P2d 435 (1990).
Area(s) of Law:- Tort Law
Repwest Ins. Co. v. Portland Adventist Medical Center
It is reversible error to submit questions of coverage to the jury in absence of factual questions.
Area(s) of Law:- Insurance Law
State v. Brooks
Under ORS 137.030(1), "[T]he right conferred on a defendant . . . includes the right to have his sentence pronounced in open court.” State v. Jacobs, 200 Or App 665, 671, 117 P3d 290 (2005).
Area(s) of Law:- Criminal Procedure
State v. Dizick
Under ORS 138.083(1)(a), a trial court is not required to grant a defendant’s motion to modify an erroneous sentencing term, so long as it articulates a permissible reason for declining to do so. State v. Harding, 225 Or App 386, vac’d on other grounds, 347 Or 368 (2009)
Area(s) of Law:- Sentencing
State v. Hogeland
Under ORS 136.425(1), “[a] confession or admission of a defendant . . . cannot be given in evidence against the defendant when it [is] made under the influence of fear produced by threats.” To determine whether a person's admissions were voluntary, the Court examines whether a person’s capacity for self-determination is critical impaired, under the totality of the circumstances. State v. Ruiz-Piza, 262 Or. App. 563, 573, 325 P.3d 802 (2014).
Area(s) of Law:- Criminal Procedure
State v. Kimbrough
Defendant's conduct of (1) soliciting his cellmate to "find someone" who would commit murder for payment, and (2) providing that cellmate a note with specific instructions on how to commit the murders was enough to establish that Defendant's conduct was a "substantial step" towards the commission of a crime. Therefore, defendant's attempted murder convictions upheld.
Area(s) of Law:- Criminal Law
State v. Servatius
Under ORS 133.076, the state must prove that, at the time of a required appearance, defendant knew of their obligation to appear in court.
Area(s) of Law:- Criminal Law
State v. Tyler
To prove that a pedestrian “proceed[ed] along” a roadway within the meaning of ORS 814.070(1), the state must show that the pedestrian’s direction of travel was in a line that is generally parallel to the direction of the roadway where there is an adjacent usable sidewalk or shoulder.
Area(s) of Law:- Civil Law
State v. Wiborg
Under ORS 165.570(1), the state must prove that a defendant “understood that he was using the 9-1-1 system to report activities that he did not reasonably believe required prompt emergency service ‘in order to preserve life or property.’” In re Strickland, 339 Or 595, 601 (2005) (quoting ORS 165.570(1)).
Area(s) of Law:- Criminal Law
State v. T.Y.
Under ORS 426.005(1)(f), to establish that a person is dangerous to self “the state must present evidence that the person’s mental disorder would cause him or her to engage in behavior that is likely to result in physical harm to himself or herself in the near term.” State v. B.B., 240 Or App 75, 82 (2010).
Area(s) of Law:- Evidence
Woods v. Franke
Under ORS 138.530(1)(a), a petitioner is entitled to post-conviction relief if they establish a substantial denial of state or federal constitutional rights in proceedings which resulted in the petitioner’s conviction, which renders the conviction void.
Area(s) of Law:- Post-Conviction Relief
May 15 summaries
State v. Wilson
A person whose intends to preserve a constitutionally protected privacy interest, must manifest an intention to exclude the public by erecting barriers to entry, using fences or by posting signs. State v. Dixson/Digby, 307 Or 195, 211-12, 766 P2d 1015 (1988).
Area(s) of Law:- Constitutional Law
State v. Anderson
An officer may obtain self-incriminating statements after a person invoked the right to remain silent if that person is not in custody and no compelling circumstances exist. State v. Davis, 350 Or 440, 256 P3d 1075 (2011). Officers may continue to ask questions after a person invokes the right to remain silent if the response is voluntary. State v. Turnidge, 359 Or 364, 374 P3d 853 (2016).
Area(s) of Law:- Criminal Procedure
Carroll v. Dept. of Public Safety Standards
ORS 183.745(4) allows a person against whom a civil penalty is to be imposed to request a hearing to challenge the penalty, to be conducted as a contested case hearing.
Area(s) of Law:- Civil Law
D.M.G. Tepper
Under Article I, section 8, of the Oregon Constitution, an SPO may not be based on expressive contacts—those that involve speech—unless the speech is a threat that “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.” State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999).
Area(s) of Law:- Civil Stalking Protective Order
Eamon Enterprises, LLC v. Kilcup
Under ORS 90.396, an act that is “outrageous in the extreme” is similar in degree to an act that would (1) put another at risk of substantial personal injury; (2) an act that substantially damages the landlord’s premises; or (3) any materially fraudulent information on rental agreement.
Area(s) of Law:- Property Law
Fisher v. Angelozzi
"There are three components to a true Brady violation…the evidence at issue must be favorable to the accused… evidence must have been suppressed by the state…and prejudice must have ensued." Strickler v. Greene, 527 US 263, 281-282, 119 S Ct 1936, 144 L Ed 2d 286 (1999).
Area(s) of Law:- Post-Conviction Relief
Lenn v. Lane County
Under Measure 49, a county must not apply “in a manner that has the effect of prohibiting the establishment of the dwelling, lot or parcel authorized under [Measure 49] unless the standards are reasonably necessary to avoid or abate a nuisance, to protect public health or safety or to carry out federal law.” Or Laws 2007, ch 424, § 11(1).
Area(s) of Law:- Property Law
M.D.D. v Alonso
Under ORS 107.718(1), “a petitioner seeking a restraining order must present evidence to establish that [within 180 days after then incident) the respondent’s conduct created an imminent danger of further abuse and that the respondent was a credible threat to the physical safety of the petitioner.” Kelley v. Stutzman, 281 Or App 388, 391-92, (2016).
Area(s) of Law:- Family Abuse Prevention Act
Maney v. Angelozzi
Under Article I, section 11, of the Oregon Constitution “[e]xcessive intervention by a trial judge substantially diminishes the effectiveness of the adversary system and may deprive a litigant of [the] right to an impartially administered trial.” State v. Mains, 295 Or 640, 664, 669 P2d 1112 (1983).
Area(s) of Law:- Post-Conviction Relief
State v. Litscher
In order to qualify for plain error review, an unpreserved argument must establish three elements: the argument must (1) identify an error “of law”; (2) the error must be “obvious and not reasonably in dispute; (3) the error must be “apparent on the record without requiring the court to choose among competing inferences.” Even when error is plain, an appellate court may still determine whether or not to exercise its discretion to review it. State v. Vanornum, 354 Or 614, 629-30 (2013).
Area(s) of Law:- Post-Conviction Relief
State v. Sheikh-Nur
ORS 138.225(5)(b) states that "[i]f the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts."
Area(s) of Law:- Criminal Law
U.S. Bank National Association v. Vettrus
Under ORCP 47(c), the moving party “bears the burden of persuasion at trial as well as “the burden of producing evidence to establish that [claim] as a matter of law at the summary judgment stage.” Wieck v. Hostetter, 274 Or App 457, 470 (2015).
Area(s) of Law:- Civil Procedure
White v. Premo
Under ORS 138.550, successive petitions for post-conviction relief are procedurally barred from raising the same grounds for relief asserted in a previous petition. Cunio v. Premo, 284 Or App 698 (2017).
Area(s) of Law:- Post-Conviction Relief
State v. Ambriz-Arguello
When appealing a conviction for evidentiary error, petitioner must show based on the totality of the record that the court’s error affected a substantial right, and the jury’s verdict. State v. Kayfes, 213 Or App 543, 555, 162 P3d 308, rev den, 343 Or 690 (2007).
Area(s) of Law:- Criminal Procedure
State v. Jones
Under OEC 404(3) evidence of prior acts that bear on a person’s character is permissible, if the evidence is offered for a non-character purpose, and a theory of relevance for the nonpropensity purposes of 404(3) are met.
Area(s) of Law:- Evidence
June 42 summaries
Akins v. SAIF 286 Or App 70 (2017)
Under ORS 656.267, a workers’ compensation claimant is allowed to obtain acceptance of conditions that are not included in the scope of an insurer’s acceptance of the claimant’s claim, which must “[s]pecify what conditions are compensable,” ORS 656.262(6)(b)(A), that are “new” or “omitted” in regards to a notice of acceptance.
Area(s) of Law:- Workers Compensation
Anderson v. Background Check Unit 286 Or App 27 (2017)
Under OAR 407-007-00330(7)(a): “The [subject individual] must participate in the administrative review. Participation may include, but is not limited to, providing additional information or additional documents requested by the BCU with a specified amount of time.”
Area(s) of Law:- Administrative Law
Courter v. City of Portland 280 Or App 39 (2017)
Under Article I, section 18, “whenever the government permanently physically occupies the property of a citizen, that physical occupation is a taking.”
Area(s) of Law:- Constitutional Law
Dept. of Human Services v. J. R. D. 286 Or App 55 (2017)
Under ORS 419B.150(3, “A rehearing before a judge of the juvenile court may be determined on the same evidence introduced before the referee … but, in any case, additional evidence may be presented.”
Area(s) of Law:- Juvenile Law
Huntsinger v. BNSF Railway Co.286 Or App 84 (2017)
Under 49 U.S.C. § 20701, “when a railroad carrier’s customary processes for preparing an outbound locomotive for departure are complete, and the locomotive will not undergo further comprehensive inspections, it is appropriate to regard the railroad carrier as having allowed the locomotive to be put ‘in use.’”
Area(s) of Law:- Tort Law
Sako v. Taylor 286 Or App 9 (2017)
In order to establish prejudice, it must be shown that counsel's performance "had a tendency to affect the result of the prosecution." Green v. Franke, 357 Or 301, 321 (2015).
Area(s) of Law:- Post-Conviction Relief
Sheil and Sheil 286 Or App 34 (2017)
An agreement to waive the right to seek modification of spousal support is enforceable if it does not violate public policy. McInnis and McInnis, 199 Or. App. 223, 110 P.3d 639 (2005), rev dismissed, 338 Or. 681 (2005).
Area(s) of Law:- Family Law
State v. Chelemedos 286 Or App 77 (2017)
ORS 136.290 only provides a mechanism for a defendant to obtain release after being held 60 days; it does not provide that incarceration beyond 60 days is automatically prejudicial.
Area(s) of Law:- Criminal Procedure
State v. Edwards 286 Or App 99 (2017)
Under ORS 137.123(5)(b), “[a] single act produces only one set of harms, even if the act constitutes multiple offenses.” State v. Rettmann, 218 Or App 179, 186 (2008).
Area(s) of Law:- Sentencing
State v. Garcia-Cisneros
ORS 811.705 requires a driver to know of an accident causing injury, it does not imply an assumption that a driver must return to the scene after learning of the accident at a later time.
Area(s) of Law:- Criminal Law
Williams v. CBS Corp., 286 Or App 1 (2017)
“[W]hen one corporation purchases all of the assets of another corporation, the purchasing corporation does not become liable for the debts and liabilities of the selling corporation,” unless one of four recognized exceptions are met. Tyree Oil, Inc. v. BOLI, 168 Or App 278, 282 (2000).
Area(s) of Law:- Corporations
City of Lebanon v. Milburn
Under ORS 133.643(a), “an individual from whose person, property or premises things have been seized may move the appropriate court to return things seized to the person or premises from which they were seized.”
Area(s) of Law:- Property Law
Curzi v. Oregon State Lottery
Under ORS 30.275(2)(b), the time period by which a plaintiff must provide notice of his or her tort claims to defendants “begins to run when the plaintiff knows[,] or in the exercise of reasonable care should have known[,] facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.” Uruo v. Clackamas County, 166 Or App 133, 143, (2000) (emphasis added; internal quotation marks omitted).
Area(s) of Law:- Tort Law
Gadalean v. SAIF
Under ORS 656.005(30), a “worker” is “any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of an employer."
Area(s) of Law:- Workers Compensation
Oregon Health Authority v. Cue
38 USC section 5301(a)(1) does not preclude a state hospital from seeking reimbursement for the past costs of maintenance and care from a deceased veteran's benefits.
Area(s) of Law:- Trusts and Estates
Petrillo v. PERB
Under ORS 239.715(2), "Any person who receives a payment from the Public Employees Retirement Fund and who is not entitled to receive that payment, including a member of the system who receives an overpayment, holds the improperly made payment in trust subject to the board’s recovery of that payment under this section or by a civil action or other proceeding.”
Area(s) of Law:- Administrative Law
State v. Cook
Under ORS 163.195(1), to determine whether a defendant was aware that his actions were creating a substantial risk of serious physical injury, and that defendant consciously disregarded that risk, “[r]easonable inferences are permissible; speculation and guesswork are not.” State v. Bivins, 191 Or App 460, 462 (2004).
Area(s) of Law:- Criminal Law
State v. Garcia-Rocio
Under OEC 403, although a trial court is not required to make an explicit record of its thoughts about each of the four OEC 403 balancing analysis steps laid out in State v. Mayfield, the record must indicate that the trial court considered the substance of those four steps, and "engage[d] in the conscious process of balancing the costs of the evidence against its benefits." State v. Conrad, 280 Or App 325, 331 (2016), rev den, 360 Or 851 (2017).
Area(s) of Law:- Evidence
State v. Gerety
Under Article I, section 9, of the Oregon Constitution and the Fourth Amendment of the United States Constitution, the State must demonstrate its attempts to get a warrant and how those attempts either did not work or would not have worked within a reasonable time given the procedures available to the officers. State v. Sullivan, 265 Or App 62, 333 P3d 1201 (2014).
Area(s) of Law:- Criminal Procedure
State v. Haddon
The anti-merger statute, ORS 161.067(1), provides that when a given conduct or "criminal episode" violates two or more criminal statutes, and one these statutes require establishing an element not present in the other, each violation is to be treated as a "separately punishable offense."
Area(s) of Law:- Criminal Law
State v. Khoshnaw
Under ORAP 5.45(4)(a)(iii), an assignment of error challenging an evidentiary ruling, must quote or summarize the evidence that appellant claims was erroneously admitted or excluded; If an assignment of error challenges the exclusion of evidence, appellant also must identify in the record where the trial court excluded the evidence and where the offer of proof was made.
Area(s) of Law:- Criminal Procedure
State v. Newton
Under Article I, section 9, of the Oregon Constitution, to transform an encounter between an officer and a citizen into a "seizure," . . . “some exercise of coercive authority by the officer, such as retention of the identification after examination and a continuation of investigatory activities, is required.”
Area(s) of Law:- Criminal Procedure
State v. Savinskiy
“Article 1, Section II, can also foreclose interrogation of a defendant without his or her attorney present when the interrogation is regarding uncharged conduct and occurs after the defendant has retained counsel for a previously charged offense, if the charged and uncharged conduct is ‘sufficiently related.’” State v. Prieto-Rubio, 359 Or. 36-37 (2016).
Area(s) of Law:- Criminal Procedure
State v. Turudic
Under ORS 811.700(1)(a), a driver commits a misdemeanor crime if they fail to "affirmatively provide" the other driver or passenger the name and address of the driver and the registration number of the vehicle . . . and the name and address of any other occupants . . ."
Area(s) of Law:- Criminal Law
State v McColly
A person “fails to appear in the second degree” if he or she knowingly does not appear after being “released from custody or a correctional facility"under a court ordered release agreement. ORS 162.195(1)(a).
Area(s) of Law:- Criminal Law
White v. Premo
Under ORS 138.550(2) and ORS 138.550(3), when a petitioner has appealed and files a petition for post-conviction relief, the petitioner must raise all grounds that could reasonably be asserted at that time. Kinkel v. Persson, 276 Or App 427, rev allowed, 359 Or 525 (2016).
Area(s) of Law:- Post-Conviction Relief
Humphrey v. OHSU
Payment by a public body for any part of a claim can constitute notice. ORS 30.275(3)(d). A “person who makes an advance payment … with written notice of the date of expiration of the period of limitation for the commencement of an action … does not suspend the running of such period of limitation." ORS 12.155(1).
Area(s) of Law:- Civil Procedure
Persels & Associates, LLC v. DCBS
ORS 697.612(3)(b) provides an exemption to the registration requirement for attorneys who provide a debt management service only “incidentally in the practice of law.”
Area(s) of Law:- Consumer Credit
State v. Long
The state must prove either that the defendant inflicted substantial pain on or impaired the physical condition of the alleged victim in order to convict the defendant of fourth-degree assault constituting domestic violence. ORS 161.015(7); ORS 163.160(1)(a).
Area(s) of Law:- Criminal Procedure
State v. Stevens
When searches are conducted by or with the aid of probation officers, “mere ‘pressure’” to not violate probation alone is insufficient to establish coercion. State v. Davis, 133 Or App 467, 475-76, 891 P2d 1373, rev den, 321 Or 429 (1995).
Area(s) of Law:- Criminal Procedure
Adams v. Presnell
When an agent injured a principle, agent’s negligence cannot be imputed to a principal based upon principal’s negligence unless the principal’s negligence was actual. Sheehan v. Apling, 227 Or 594, 363 P2d 575 (1961).
Area(s) of Law:- Tort Law
Dept. of Human Services v. L. S. H.
Jurisdiction of a child is permissible when a parent admits to an allegation, even if the allegation is “ambiguous and susceptible to multiple interpretations” if one of those interpretations would allow DHS to present evidence that is sufficient to prove jurisdiction is necessary. Dept. of Human Services v. D.D., 238 Or App 134, 140-141, 241 P3d 1177, 1181 (2010), rev den, 349 Or 602 (2011).
Area(s) of Law:- Juvenile Law
Dominguez and Fields
Under OEC 611(1), a trial court, may “exercise reasonable control over the mode and order of interrogating witness and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time and protect witnesses from harassment or undue embarrassment.”
Area(s) of Law:- Evidence
Guembes v. Roberts
Pursuant to ORS 19.270, the Court of Appeals has jurisdiction to decide the merits of an appeal in the absence of a new or amended notice to appeal if the initial notice was filed prematurely. Assoc. Unit Owners of Timbercrest Condo. v. Warren, 242 Or App 425, 436-37, 256 P3d 146 (2011), aff’d on other grounds, 352 Or 583, 288 P3d 958 (2012).
Area(s) of Law:- Appellate Procedure
Marandas Family Trust v. Pauley
ORS 20.080 does not require a plaintiff to serve any insurer that “might” have an obligation to the claim, but only insurers known to have an obligation.
Area(s) of Law:- Attorney Fees
McDermott v. SAIF
Under Schleiss v. SAIF, in the context of a combined condition worker’s compensation claima cognizable preexisting condition is subject apportionment upon the rating of impairment under ORS 656.214 in the benefits award process.
Area(s) of Law:- Workers Compensation
Merrill v. A. R. G.
“Proof that a defendant had probable cause is a complete defense to a claim for malicious prosecution.” Mathre v. Multnomah County, 35 Or App 75, 79, 581 P2d 88 (1978).
Area(s) of Law:- Civil Law
Quesnoy v. Dept. of Rev.
ORS 18.345(1)(k) exempts from a creditors' ability to garnish, payments or property, up to $10,000 in value, received as an award of damages for the “personal bodily injury’ of [a] debtor.”
Area(s) of Law:- Civil Procedure
State v. Adams
“There are three prerequisites for ordering a compensatory ne under ORS 137.101: (1) criminal activities, (2) economic damages, and (3) a causal relationship between the two.” State v. Alonso, 284 Or App 512, 516, 393 P3d 256 (2017).
Area(s) of Law:- Criminal Law
State v. Velasquez
A person could be guilty of initiating a false report under ORS 162.375 if a "sufficient nexus" exists between a defendant's statements and the initial false report.
Area(s) of Law:- Criminal Law
Oregon Wild v. Port of Portland
"A law is classified under the 'first category' if it is 'written in terms directed to the substance of any "opinion or any "subject" of communication'". State v. Robertson, 293 Or. at 412
Area(s) of Law:- Constitutional Law
Reinert v. Clackamas County
For purposes of ZDO 1307.16(K), “substantial similarity” between applications depends upon whether there are material differences in the content of both applications with respect to application of the approval criteria. Reinert v. Clackamas County, 286 Or. App. 431, 438 (2017).
Area(s) of Law:- Land Use
July 29 summaries
Dept. of Human Services v. A. B.
Under the Interstate Compact on the Placement of Children, “the term ‘foster care’ . . . describes arrangements of such duration as to be integral parts of the rearing process, as opposed to arrangements that are presumptively temporary or for limited purposes.”
Area(s) of Law:- Juvenile Law
Harvey v. SAIF
When the Board is determining whether the findings of a Claimant’s attending physician are more accurate than those of medical arbiter under OAR 436-035-0007(5), the Board must provide substantial reason, as well as substantial evidence, on how its factual findings lead to the legal conclusions on which the order is based. Hicks v. SAIF, 196 Or App 146 (2004).
Area(s) of Law:- Workers Compensation
Hughes-Kuda and Kuda
ORS 107.105(1)(d)(C) provides a set of factors that a trial court considers when determining the appropriate amount and duration of spousal support to be awarded. This list includes, but is not limited to, the duration of the marriage; age and health of the parties; any standard of living established during marriage; and the relative income and earning capacity of the parties, in addition to other proscribed factors.
Area(s) of Law:- Family Law
Nicita v. City of Oregon City
Under ORS 197.850(9)(a), when a petitioner asserts a substantial evidence issue, the role of the Court of Appeals is “to ensure that LUBA has followed the proper “substantial evidence” standard . . . not to assess whether the local government erred in making a finding, but to determine whether LUBA properly exercised its review authority.” Root v. Klamath County, 260 Or App 665, 670 (2014).
Area(s) of Law:- Land Use
State v. Beltran-Chavez
If evidence will be perceived by a jury as scientific and, therefore, have an "unusually high degrees of persuasive power," a court must ensure that the "persuasive appeal is legitimate." State v. Okey, 321 Or 285, 291 (1995).
Area(s) of Law:- Evidence
State v. Carrillo
Under OAR 213-012-0020 2(b), a sentence for a single criminal episode is limited to 200 percent of the presumptive maximum term for the primary offense, except by departure. State v. Miller, 317 Or 297, 305 (1993).
Area(s) of Law:- Sentencing
State v. Davis
Under Article I, section 9, of the Oregon Constitution, when a stop is initially lawful, “it may endure only for the time it takes an officer to complete an investigation that is reasonably related to the basis for the stop.” State v. Sherman, 274 Or. App. 764, 773 (2015).
Area(s) of Law:- Criminal Procedure
State v. Jones
ORS 811.505(1)(a) provides in part that "[a] person commits the offense of failure to stop when emerging from an alley, driveway or building” if the driver does not stop when before crossing a sidewalk or sidewalk area."
Area(s) of Law:- Criminal Law
State v. Mendoza
“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.” State v. Pendergrapht, 251 Or App 630, 634 (2012).
Area(s) of Law:- Attorney Fees
State v. Ortega
Under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, when a defendant requests to exercise his or her right to self-representation, the trial court must make a determination on the record (1) whether the defendant’s request for self-representation is “an intelligent and understanding decision”; and (2) “whether granting the defendant’s request would disrupt the judicial process.” State v. Miller, 254 Or App 514, 522-23 (2013).
Area(s) of Law:- Constitutional Law
State v. Washington
The phrase “passive resistance” means “noncooperation with a lawful order of a peace officer that does not involve active conduct.” State v. McNally, 361 Or 314, 339, 392 P3d 721 (2017),.
Area(s) of Law:- Criminal Law
State v. Dye
The court has the ability to make an informed ruling when it divides an offer of proof into separate parts, invites arguments about that division, and then rules on the admissibility of those individual parts. State v. Ryel, 182 Or App 423, 435, 51 P3d 8 (2002), rev den, 335 Or 255 (2003).
Area(s) of Law:- Evidence
Doe v. Silverman
ORS 12.117 extends the statute of limitations if a plaintiff alleges a defendant had “actual, and not merely constructive, knowledge of child abuse.” Lourim v. Swensen, 147 Or App 425, 444, 936 P2d 1011 (1997) (Lourim I), aff’d in part and rev’d in part, 328 Or 380, 977 P2d 1157 (1999) (Lourim II).
Area(s) of Law:- Civil Procedure
State v. Clardy
The knowledge component of a defendant’s waiver of the right to counsel can be satisfied if the totality of the circumstances demonstrates the defendant understood the risks of self-representation; the intent component can be demonstrated by a defendant’s conduct. See State v. Howard, 172 Or App 546, 553, rev den, 332 Or 305 (2001); State v. Langley, 351 Or 652, 669 (2012).
Area(s) of Law:- Constitutional Law
State v. Gray
Evidence is relevant “so long as the inference desired by the proponent is reasonable, even if the evidence could also support a contradictory inference.” State v. Hanson, 280 Or App 196, 205 (2016).
Area(s) of Law:- Evidence
State v. Hershey
A warrantless search is justified under the emergency aid doctrine when police officers have an objectively reasonable belief based on articulable facts that it is immediately necessary to render aid to a person or animal. State v. Fessenden, 258 Or App 639, 649, 310 P3d 1163 (2013), aff’d on other grounds sub nom State v. Fessenden/ Dicke, 355 Or 759, 333 P3d 278 (2014).
Area(s) of Law:- Criminal Law
State v. Marks
“Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person and are … connected together or constitut[ed] parts of a common scheme or plan.” ORS 132.560(1)(b)(C).
Area(s) of Law:- Criminal Procedure
State v. Holsclaw
"‘Premises where persons under 18 years of age regularly congregate’ means schools, child care centers, playgrounds, other places intended for use primarily by persons under 18 years of age and places where persons under 18 years of age gather for regularly scheduled educational and recreational programs.” ORS 163.476(2)(a)(2013).
Area(s) of Law:- Criminal Law
A.M. v. N.E.D.
Under ORS 19.205, prejudgment orders granted pursuant ORS 109.324(1) are not appealable.
Area(s) of Law:- Juvenile Law
Aaroe and Aaroe
A "court should increase or decrease spousal support only to the degree necessary to enable the parties to adjust to the new circumstances." Thomas and Thomas, 181 Or. App. 128, 134 (2002).
Area(s) of Law:- Family Law
Federal Home Loan Mortage Corp. v. Smith
Under ORS 86.797(1), “the participation of a ‘trustee’ is so fundamental to a ‘trustee’s sale’ that a sale cannot foreclose and terminate an individual’s property interest unless that sale is conducted by an actual trustee.” Wolf v. GMAC Mortgage, LLC, 276 Or App 541 (2016) (emphasis added).
Area(s) of Law:- Trusts and Estates
Schmidt v. Noonkester
Under ORS 124.110(1)(a), an action for financial elder abuse may be brought “[w]hen a person wrongfully takes or appropriates money or property of a vulnerable person."
Area(s) of Law:- Elder Law
Slater v. SAIF
Under ORS 656.245(1)(a)), Insurers “are responsible for medical services ‘for conditions'—that is, ordinary conditions—that are ‘caused in material part’ by compensable workplace injuries.” SAIF v. Sprague, 346 Or 661, 664, 217 P3d 644 (2009).
Area(s) of Law:- Workers Compensation
State v. Geyer
“Preservation requires that an issue must first be presented to the trial court in order to be considered on appeal . . . . [T]he preservation rule is a practical one, and close calls . . . inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 346 Or. 333, 341, (2009) (internal quotation marks omitted).
Area(s) of Law:- Appellate Procedure
State v. Hurtado
A statement is a confession if made “for the purpose of acknowledging that the speaker is guilty of some criminal offense." A statement is an admission if "made for some purpose other than to acknowledge guilt, and if it is not so closely related to the . . . confession as to become part of it.” See State v. Manzella, 306 Or 303, 315-316 (1988).
Area(s) of Law:- Criminal Procedure
State v. Mejia
An issue is preserved for review if it is presented clearly in a written motion, notwithstanding a party’s failure to reiterate all of its arguments at a subsequent hearing. State v. Walker, 350 Or 540 (2011)
Area(s) of Law:- Appellate Procedure
State v. Najar
Under Article I, section 9, of the Oregon Constitution, a seizure occurs “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010).
Area(s) of Law:- Criminal Procedure
State v. Sigfridson
To satisfy its burden under the inevitable discovery doctrine, the state was required to show by a preponderance of evidence "(1) that certain proper and predictable investigatory procedures would have been utilized in the instant case, and (2) that those procedures inevitably would have resulted in the discovery of the evidence in question.” State v. Miller, 300 Or 203, 226 (1985).
Area(s) of Law:- Criminal Procedure
State v. T. Z.
Under ORS 426.005(1)(f)(C), in order to be lawfully recommitted, a person be (1) over 18 years old and, (2) "[have] a chronic mental illness” per ORS 426.495"; (3) "been twice committed in the past three years by state authority; (4) “exhibiting symptoms or behavior substantially similar to those that preceded and led to one or more [commitments]”; and (5) "[that] unless treated, will continue, to a reasonable medical probability, to physically or mentally deteriorate."
Area(s) of Law:- Civil Commitment
August 19 summaries
Bradford v. Premo
Under ORS 138.640(1), the “clear statement rule” requires judgments denying relief in post-conviction cases must: “(1) identify the claims for relief that the court considered and make separate rulings on each claim; (2) declare, with regard to each claim, whether the denial is based on a petitioner’s failure to utilize or follow available state procedures or a failure to establish the merits of the claim; and (3) make the legal bases for denial of relief apparent.” Datt v. Hill, 347 Or 672, 685 (2010).
Area(s) of Law:- Post-Conviction Relief
Celano and Celano
Under ORS 107.105(1)(f), in order to overcome the presumption of equal contributions, a spouse must show by preponderance of the evidence that the other spouse did not contribute equally to the asset at issue during the marriage. Kunze and Kunze, 337 Or 122, 134 (2004).
Area(s) of Law:- Family Law
Home Forward v. Graham
If the action at issue is not listed in ORS 90.396, the court must compare the action with the listed actions to determine if it rises to the level of “outrageous in the extreme.” Emon Enterprises, LLC v. Kilcup, 285 Or App 639, 642, 395 P3d 78 (2017).
Area(s) of Law:- Landlord Tenant
State v. Brunnemer
A trial court abuses its discretion when it overrules a defendant’s objection to a prosecutor’s improper argument if the argument is “likely to prejudice the jury unfairly,” and the trial court does not take action sufficient to cure the prejudice. State v. Logston, 270 Or App 296, 303 (2015) (quoting State v. Bolt, 108 Or App 746, 749, (1991))
Area(s) of Law:- Criminal Procedure
State v. Gensitskiy
Under ORS 161.067(2), “[w]hen the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.”
Area(s) of Law:- Criminal Law
State v. Malm
Under ORS 137.225(3), if the 'circumstances and behavior' of an applicant from the date of an arrest to the date of the hearing on a motion for setting aside the record of that arrest preclude an applicant from being granted relief, the court shall enter an appropriate order.
Area(s) of Law:- Criminal Procedure
State v. Miller
Under OEC 803(5), "the making of a record for the purposes of OEC 803(5) requires the witness’s knowledge that the statement is being memorialized in order to ensure that the statement carries greater trustworthiness than any other hearsay statement.”
Area(s) of Law:- Evidence
State v. Moreno
There is no error in a trial court’s refusal to give a jury instruction that is incomplete. State v. Wan, 251 Or App 74, 83 (2012).
Area(s) of Law:- Criminal Law
State v. Norgren
A waiver of Miranda rights must be made knowingly and intelligently with full awareness of the consequences of the waiver. State ex rel Juv. Dept. v. Deford, 177 Or App 555, 572-73, 34 P3d 673 (2001).
Area(s) of Law:- Criminal Procedure
State v. Uroza-Zuniga
Under Article XI, section 2, of the Oregon Constitution, Oregon’s municipalities may not enact ordinances that “conflict” with state laws. City of Portland v. Jackson, 316 Or 143, 146 (1993).
Area(s) of Law:- Criminal Procedure
State v. Warren
Under Article VII (Amended), section 3, whether improper joinder of charges affected the verdict depends on whether joinder led to the admission of evidence that would not have been admissible but for the joinder . . . and, if so, whether that evidence affected the verdict on those charges.” State v. Poston, 277 Or App 137, 145 (2016).
Area(s) of Law:- Criminal Procedure
State v. Wooten
ORS 164.405(1) has two different subsections that address the same coercive effect and threat of violence but nonetheless creates only a single crime of second degree robbery. State v. Behen, 230 Or App 31, 34, 213 P3d 851 (2009)
Area(s) of Law:- Criminal Law
Nacey v. Board of Massage Therapists
Under OAR 137-003-0580, summary determination is appropriate only if the evidence, when viewed in the light most favorable to the nonmoving party, establishes that “there is ‘no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought,’ and the party filing the motion[] ‘is entitled to a favorable ruling as a matter of law.’” Wolff v. Board of Psychologist Examiners, 284 Or App 792, 800 (2017)
Area(s) of Law:- Administrative Law
Certain Underwriters v. Mass. Bonding and Ins. Co.
As long as appeal is pending, finality does not attach piecemeal to the parts of a judgment or order that are not placed in direct controversy by the parties’ arguments on appeal. Liberty Northwest Ins. Corp. v. Koitzsch, 155 Or App 494, 500 (1998).
Area(s) of Law:- Insurance Law
Docken v. Myrick
Two elements must be established to prove inadequate counsel: (1) an attorney "failed to exercise reasonable professional skill and judgment," and (2) "counsel's failure had a tendency to affect the result of the trial." Montez v. Czerniak, 355 OR 1, 7 (2014).
Area(s) of Law:- Post-Conviction Relief
Doe v. Silverman
Under ORS 12.117 (2009), the amended statute of limitation applies “to all applicable causes of action, no matter when the cause of action arose, except in cases where a judgment was entered prior to the effective date of ORS 12.117 (2009).”
Area(s) of Law:- Tort Law
State v. Gutierrez-Medina
Under ORS 137.106, comparative fault is not a factor in the restitution analysis from a criminal conviction. State v. Ramos, 358 Or 581, 368 P3d 446 (2016).
Area(s) of Law:- Criminal Law
State v. Pack
A joinder is harmful to a defendant if (1) the evidence under both cases would have been admissible in individual, separate trials for each case and (2) the evidence admitted improperly affected the verdict. State v. Clardy, 286 Or App 745, 772-73 (2017); State v. Marks, 286 Or App 775 (2017).
Area(s) of Law:- Criminal Procedure
State v. Reich
During a traffic stop, an officer may not ask about matters unrelated to the reason of the stop “instead of expeditiously proceeding with the steps necessary to complete the stop.” State v Nims, 248 Or App 708, 713, 274 P3d 235, rev den, 352 Or 378 (2012).
Area(s) of Law:- Criminal Procedure
September 30 summaries
Folz v. ODOT
Under ORS 659A.203(1), it is unlawful for any public employer to threaten to take, or actually take, disciplinary action against an employee for her disclosure of evidence which she reasonably believes is indicative of her employer's violation of a federal, state, or local law. For purposes of the statute, "disclosure" is to include official reports within the agency or department. Bjurstrom v. Oregon Lottery, 202 Or App 162, 169, 120 P3d 1235 (2005).
Area(s) of Law:- Employment Law
Gaines v. Employment Dept.
“In determining whether the board’s order is supported by substantial reason, [the court] consider[s] whether that order articulate the reasoning that leads from the facts found to the conclusions drawn.” Walker v. Providence Health System Oregon, 254 Or App 676, 686, 298 P3d 38, rev den, 353 Or 714 (2013).
Area(s) of Law:- Employment Law
Owen v. Taylor
In order to establish that trial counsel rendered inadequate assistance of counsel, a petitioner must prove two elements: (1) that counsel “failed to exercise reasonable professional skill and judgment,” and (2) that “petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).
Area(s) of Law:- Post-Conviction Relief
State v. Balero
Revealing personal information about another person to a third party others does not constitute “interference” for purposes of the FAPA. State v. Trivitt, 247 Or. App. 199, 203, 268 P.3d 765 (2011).
Area(s) of Law:- Family Abuse Prevention Act
State v. Burnham
The affidavit of a search warrant must substantiate probable cause to search the contents of each individual electronic device included in the warrant. State v. Friddle, 281 Or App 130, 381 P3d 979 (2016); State v. Mansor, 279 Or App 778, 381 P3d 930 (2016), rev allowed, 360 Or 752 (2017).
Area(s) of Law:- Wildlife Law
State v. Carson
A driver impedes traffic under ORS 811.130 if a by a preponderance of the evidence, a trier of fact can find the driver “altered the normal movement of traffic.” State v. Chen, 266 Or App 683, 688, 338 P3d 795 (2014).
Area(s) of Law:- Criminal Law
State v. Sanelle
A statement that is “tenuous or equivocal in isolation may be a sufficient request for counsel when evaluated in the context of all of the circumstances.” State v. Brooke, 276 Or App 885, 892 (2016).
Area(s) of Law:- Criminal Procedure
State v. Villar
An argument may be preserved for appeal if it is apparent from the record that the trial court should have known the reasoning behind a general objection to the admissibility of evidence. Williamson v. Southern Pacific Transp. Co., 284 Or 11, 16, 584 P2d 753 (1978).
Area(s) of Law:- Evidence
Department of Human Services v. T.L.
A juvenile court must make permanency plan determinations under ORS 419B.476(2)(a), in accordance with the bases of the court’s initial jurisdiction that are “expressly stated or fairly implied.” Dept. of Human Services v. N.T., 247 Or App 706, 715-16 (2012).
Area(s) of Law:- Juvenile Law
Jensen v. Hilsboro Law Group, PC
A party opposing a motion for summary judgment must proffer evidence for any issue raised that they would also have the burden of persuasion for at trial. Two Two v. Fujitec America, Inc., 355 Or 319, 324 (2014).
Area(s) of Law:- Civil Procedure
Lopez v. Nooth
When ruling on a motion for substitution of counsel in a post-conviction proceeding, a court must determine whether existing counsel is “suitable,” per ORS 138.590. Appointed counsel may be substituted “pursuant to the policies, procedures, standards, and guidelines of the Public Defense Services Commission.” ORS 138.590(4).
Area(s) of Law:- Post-Conviction Relief
State v. Carpenter
A person can conceal another “through an act or omission with the intent to induce law enforcement to believe that the fugitive is not present.” State v. Turley, 202 Or App 49-50, 120 P3d 1229 (2005), rev den, 340 Or 157 (2006).
Area(s) of Law:- Criminal Law
State v Garcia-Rocio
Under ORS 163.411, unlawful sexual penetration in the first degree is considered a Class A Felony and is subject to ORS 144.103 and 161.605, which limit the aggregate of prison sentence and post-prison supervision to a maximum of 20-years.
Area(s) of Law:- Sentencing
Wille v. Board of Parole
Simply because a reasonable person could come to a different conclusion does not suggest that the board’s implicit finding is not supported by substantial evidence. Weems/Roberts v. Board of Parole, 347 Or. 586, 602-03, 227 P.3d 671 (2010).
Area(s) of Law:- Parole and Post-Prison Supervision
Winstead v. State of Oregon
ORS 138.510(3) provides an exception for untimely post-conviction relief claims if the petitioner could not have reasonably raised the initial claim. When counsel fails to file a timely petition, the petitioner must notify the court of the failure in order to qualify for the exception in ORS 138.510(3). Church v. Gladden, 244 Or 308, 417 P2d 993 (1966).
Area(s) of Law:- Post-Conviction Relief
Mendacino v. Board of Parole
ORS 144.280 and OAR 255-062-0016 are not unconstitutional ex post facto laws because neither give the board the authority to defer parole beyond the period determined at the time of the offense or give additional reasons to defer parole. Morrison v. Board of Parole, 277 Or App 861, 863, 374 P3d 948, rev den, 360 Or 465 (2016); ORS 144.335(3).
Area(s) of Law:- Parole and Post-Prison Supervision
Murray and Murray
Under ORS 107.137(2), identifying one parent as the primary caregiver is not outcome-determinative in child custody cases and must be weighed with all relevant statutory factors to determine what custody arrangement represents the child’s best interests. Courts may consider parent work schedules, distance between parents’ homes, and the logistics of proposed parenting plans in fostering strong contacts with both parents. Miller and Miller, 269 Or App 436, 437, 345 P3d 472 (2015).
Area(s) of Law:- Family Law
State v. Chambers
Under ORS 813.260(2), a probation officer shall monitor a person’s progress under a diversion agreement and shall report her successful completion of or failure to comply with the treatment program to the court.
Area(s) of Law:- Criminal Procedure
State v. Hinkle
Juvenile adjudications are treated in the same manner as adult convictions, in regards to the sex offender reporting requirements laid out in former ORS 181.599 (2011). Failure to report as a sex offender is a felony offense if "the crime for which the person is required to report is a felony," former ORS 181.599(3)(b) (2011).
Area(s) of Law:- Criminal Law
State v. Sines
Parents retain property rights in the items, including clothing, they provide their children. Hoblyn v. Johnson, 55 P3d 1219 (Wyo, 2002). When searching items without a warrant, the state may examine without invading a person’s privacy interests if the contents in in open view or if the item “by its very nature announce[s] [its] contents.” Walter v. United States, 447 US 649, 654, 100 S Ct 2395 (1980).
Area(s) of Law:- Criminal Procedure
State v. Von Flue
Under Article 1, Section 9 of the Oregon Constitution, a warrantless search is considered unreasonable unless an exception to the warrant requirement can be established. State v. Meharry, 342 Or 173, 177 (2006). The automobile exception allows an officer to "search a car without a warrant, if the officer has probable cause to believe the car contains evidence of a crime and the car is mobile at the time they stop it." State v. Anderson, 361 OR 187, 189 (2017).
Area(s) of Law:- Criminal Procedure
State v. Zielinski
An actor’s personal characteristics are relevant to “the actor’s situation,” and are thereby admissible to support the defense of EED, whereas an actor’s personality characteristics are not. State v. Ott, 297 Or 375, 395-96 (1984)
Area(s) of Law:- Evidence
Black v. Coos County
Under the Public Employee Collective Bargaining Act, (PECBA), public employers and employees are required to enter into collective bargaining agreements, and to resolve disputes pertaining to allegations of unfair labor practices through the Employment Relations Board, (ERB). ORS 243.650 to 243.782.
Area(s) of Law:- Employment Law
Buchwalter-Drumm v. Dept. of Human Services
Under the Oregon Tort Claims Act, a minor’s actual or imputed knowledge begins the statutorily required notice period, however, a minor’s claim is not tolled by an adult relative until they become a guardian ad litem. Banda v. Danner, 87 Or App 69, 73 (1987), aff’d 307 Or 302 (1988).
Area(s) of Law:- Tort Law
Garcia-Solis v. Farmers Ins. Co.
Under ORS 656.245(1), “[d]iagnostic services can only be compensable if they are required for a determination or severity of an already accepted compensable injury, but “diagnostic services for the purpose of establishing the compensability of a new or consequential condition are not compensable.” Counts v. International Paper Co., 146 Or App 268, 271 (1997).
Area(s) of Law:- Workers Compensation
Iverson's Unlimited, Inc. v. Winco Foods, LLC
On summary judgment, “a reasonable jury could reach . . . a contrary conclusion, but . . . the question is not which conclusion is most likely but whether an issue of fact exists that permits jury resolution.” Two Two v. Fujitec America, Inc., 355 Or 319, 332 (2014).
Area(s) of Law:- Civil Procedure
Maidens v. Nooth
ORS 138.510(3) requires that a petition for post-conviction relief be brought within two years from the date of the final interlocutory judgment, unless the court determines that the contested grounds for relief in a subsequent petition could not have been reasonably raised in the original petition.
Area(s) of Law:- Post-Conviction Relief
State v. MacDonald
Per ORS 163.705(1), it is a crime to "intentionally or recklessly [engage] in conduct prohibited by [a stalking protective order.]"
Area(s) of Law:- Civil Stalking Protective Order
State v. Snyder
“A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” ORS 161.405(1).
Area(s) of Law:- Criminal Procedure
State v. Woods
Under Article I, section 9 of the Oregon Constitution, “[t]o search lost property, officers need to have a good faith, subjective belief that the property is lost and that belief needs to be ‘objectively reasonable under the circumstances.’” State v. Vanburen, 262 Or App 715, 722 (2014).
Area(s) of Law:- Criminal Procedure
October 34 summaries
Beaudry v. SAIF
When a traveling employee is on a “distinct departure on a personal errand” the employee is no longer considered to be within the course and scope of employment. SAIF v. Scardi, 218 Or App 403, 180 P3d 56, rev den, 345 Or 175 (2008)
Area(s) of Law:- Employment Law
State v. B.H.C.
ORS 419C.453(1) provides, “[p]ursuant to a hearing, the juvenile court may order a youth offender placed in a detention facility for a specific period of time not to exceed eight days...”
Area(s) of Law:- Juvenile Law
State v. Ixcolin-Otzoy
To preserve an argument for appeal, a party must proffer a precise and narrow explanation of the objection to the trial court so that it may have ample opportunity to address any errors. State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000).
Area(s) of Law:- Appellate Procedure
State v. M. L. S.
A failure to provide all information proscribed by ORS 427.265 may be harmless error if the party received all if that information from an alternative source. State v. S. J. F., 247 Or App 321, 326-28, 269 P3d 83 (2011).
Area(s) of Law:- Civil Commitment
State v. M.M.
The purpose of ORS 426.100(1) is to provide a person facing a civil commitment the benefits of a full and fair hearing. Due to the nature of a civil commitment, a court’s failure to provide a person with information in accordance with ORS 426.100(1) is subject to plain error review. State v. M. L. R., 256 Or App 566, 569, 303 P3d 954 (2013).
Area(s) of Law:- Civil Commitment
State v. Roberts
In determining whether evidence is admissible over an OEC 403 objection, a trial court must expressly consider the evidence’s relevance, probative value, and risk of unfair prejudice. State v. Brown, 272 Or App 424, 431-32, rev den, 358 Or 145 (2015).
Area(s) of Law:- Evidence
Yi v. City of Portland
When a condition is found to be compensable after claim closure, an employer is required to reopen a claim and reevaluate as opposed to modifying of a notice of closure. ORS 656.262(7)(c).
Area(s) of Law:- Employment Law
Hunsinger v. Graham
To establish a claim for third party liability under ORS 124.100(5), a party must provide sufficient evidence of defendant’s actual knowledge or constructive knowledge that abuse of a vulnerable person occurred. Wyers v. American Medical Response Northwest, Inc., 360 Or 211, 377 P3d 570 (2016).
Area(s) of Law:- Elder Law
Skille v. Martinez
Under ORS 30.275(2)(b), the 180-day notice requirement begins to run when a plaintiff knew or should have known of the tortious nature of the conduct. Whether a plaintiff knew or should have known is a question of fact for the jury to determine how a reasonable person in the circumstances of the plaintiff would have acted in the same or similar situation. Doe v. Lake Oswego School District, 353 Or 321, 334-35 (2013).
Area(s) of Law:- Civil Procedure
State v. Johnson
Under ORS 135.432(3), a defendant must be given a reasonable opportunity to withdraw his or her plea if the trial court changes the terms of a sentencing agreement after already having accepted them.
Area(s) of Law:- Sentencing
State v. Robinson
Under ORS 161.309(3), a defendant may file notice to present an insanity defense “at any time” before trial, if just cause for not filing it at the time of plea is provided.
Area(s) of Law:- Criminal Procedure
Alne v. Nooth
Pursuant to Article I, section 11 of the Oregon Constitution, in order to be granted post-conviction relief on the basis of inadequate counsel, "a petitioner must prove, by a preponderance of the evidence, that his trial counsel did not exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result of counsel’s inadequate performance." Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991).
Area(s) of Law:- Post-Conviction Relief
Dischinger Orthodontics v. Regence BlueCross BlueShield
When a claim for declaratory judgment under ORS 28.020 is based on the same underlying facts as a claim barred by ORS 65.084(1), the standing limitations of the more specific statute prevail under ORS 174.020(2).
Area(s) of Law:- Standing
K. A. L. v. Hinkle
If it is determined that a person has intentionally or recklessly engaged in two or more unwanted contacts with a person, which alarms the recipient in an objectively reasonable manner, a trial court may issue a stalking protective order. ORS 163.738(2)(a)(B)(i). The recipient of the unwanted contacts must have a "reasonable apprehension regarding his or her personal safety." ORS 163.738(2)(a)(B)(iii). However, when the contacts are merely expressive, (i.e. spoken or written communications), Article 1, Section 8 of the Oregon Constitution requires a showing that "those expressive contacts constitute[d] 'threats.'" State v. Rangel, 328 Or 294, 303 (1999).
Area(s) of Law:- Evidence
National Maintenance Contractors v. Employment Dept.
Under the test provided in Avanti, if a franchisor retains direction and control over the means (i.e. tools of the trade) and manner (i.e. the method) that a franchisee utilizes in its operations, the franchisee is not an independent contractor. Avanti Press v. Employment Dept. Tax Section, 248 OR App 450, 463 (2012).
Area(s) of Law:- Employment Law
Rockbridge Capital v. City of Eugene
LUBA may remand a decision to a local governing body when that issue has been raised under a local ordinance. Smith v. Douglas County, 93 Or App 503, 763 P2d 169 (1988), aff’d, 308 Or 191, 777 P2d 1377 (1989); OAR 661-010-0071. Adecision by LUBA to remand to a local governing body is not “unlawful in substance” if the issues are properly raised before the local governing bodies. ORS 197.850(9)(a).
Area(s) of Law:- Land Use
State v. Allen
The particularity requirement of ORS 133.565 (2)(c) and the Article I, Section 9 of the Oregon Constitution requires a warrant to have (1) a clearly described place to search as to allow officers to seize items with “a reasonable degree of certainty” and (2) the search warrant must “be drawn in such a way as to preclude seizures and searches not supported by probable cause.” State v. Mansor, 279 Or App 778, 792-93, 381 P3d 930 (2016), rev allowed, 360 Or 752 (2017).
Area(s) of Law:- Civil Procedure
State v. Lomax
“[W]hen the state advances competing theories of liability based on a defendant’s acts as a principal and as an aider or abettor, the jury must be instructed that they must agree on each legislatively defined element necessary to find the defendant liable under one theory or the other.” State v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013).
Area(s) of Law:- Criminal Law
State v. Morris
A court’s failure to comply with sentencing procedures “does not require reversal and remand for resentencing unless the error ‘prejudiced the defendant in request to a substantial right.’” State v. Dawson, 252 Or App 85, 90 (2012) (quoting ORS 131.035).
Area(s) of Law:- Sentencing
State v. Ortiz-Saldana
A conviction for witness tampering must be based on evidence that a defendant intended to induce a person “not to testify or to testify falsely” in a hypothetical future criminal proceeding. The intent must be understood from Defendant’s mindset when making the threats. State v. Bailey, 346 Or 551 (2009).
Area(s) of Law:- Criminal Law
State v. R. W. G.
A claim of error is preserved when the legal insufficiency of the evidence is argued before the court. This is different from a closing argument only persuading a factfinder that the evidence does not favor the other party beyond a reasonable doubt. State v. Forrester, 203 Or App 151, 155, 125 P3d 47 (2005), rev den, 341 Or 141 (2006).
Area(s) of Law:- Appellate Procedure
State v. Riley
“The state must prove that the violation of [a] defendant’s rights had such a tenuous factual link to the disputed evidence that the unlawful police conduct cannot be properly viewed as the source of that evidence.” State v. Benning, 273 Or App 183, 194, 359 P3d 357 (2015).
Area(s) of Law:- Criminal Procedure
State v. Rivera-Ortiz
“A jury may perceive expert testimony as scientific if it rests on a scientific underpinning unfamiliar to the jury, or is phrased in scientific terms.” State v. Beltran-Chavez, 286 Or App 590, 600 (2017).
Area(s) of Law:- Evidence
State v. Rosling
Per ORS 811.370(1)(a), "drivers [are required] to operate their vehicles 'as nearly as practicable entirely within a single lane.'”
Area(s) of Law:- Criminal Law
State v. Walsh
As a general rule, "[an appellate court] will not consider an argument on appeal that has not been raised in the trial court." State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011). In order to determine whether an issue has been preserved for appeal, a court will look to “whether a party has given opponents and the trial court enough information to be able to under the contention and to fairly respond to it.” State v. Blasingame, 267 Or App 686, 691, 341 P3d 182 (2014), rev den, 357 Or 299 (2015).
Area(s) of Law:- Appellate Procedure
State v. Walsh
Under ORS 132.560(1)(b), a charging instrument may typically charge one offense, but may provide for multiple offenses if they were executed by the same person(s), and are "of the same or similar character," occurred during "the same act or transaction," or are connected by "a common scheme or plan." If the requirements of ORS 132.560 are not met, and evidence of the improperly joined charge(s) is unlikely to have been admissible in a separate trial, the error is harmless if there is "little likelihood that the inadmissible evidence would [affect] the verdict in that separate trial." State v. Poston, 277 Or App 137, 145, (2016).
Area(s) of Law:- Criminal Law
American Wholesale Products v. Allstate Ins. Co.
A liability provision that indemnifies a defendant from it’s own negligence must be clearly and unequivocally expressed. Estey v. MacKenzie Engineering Inc., 324 Or 372, 927 P2d 86 (1996).
Area(s) of Law:- Contract Law
State v. Ipsen
Issue preclusion is permissible in a criminal proceeding when: (1) the issue is identical to that in a prior proceeding; (2) that issue was litigated and was "essential to a final decision on the merits;" (3) the precluded party had “a full and fair opportunity to be heard;” (4) the precluded party was party to-, or "in privity with a party to the earlier proceeding;" and (5) the court will give preclusive effect to the prior proceeding. State v. Gipson, 234 Or App 316, 320-321 (2010).
Area(s) of Law:- Criminal Law
State v. Ipsen
In determining whether an individual intended to abandon property, a court will weigh: (1) if defendant was separated from the property because of illegal police intrusion, State v. Bernabo, 224 Or App 379, 387 (2008); (2) if defendant left the property in a public area, id.; (3) if defendant intentionally hid the property, id. at 388; (4) if defendant left the property under circumstances where someone will likely inspect it upon discovery, State v. Belcher, 89 Or App 401, 404 (1988); (5) if defendant placed the property in plain view, State v. Brown, 348 Or 293, 300 (2010); and (6) if defendant gave up his right to "control the disposition of the property." id. at 304.
Area(s) of Law:- Criminal Law
State v. M.M.A.
In order to prove criminal liability under ORS 163.165(1)(e), the state must prove the defendant either directly inflicted physical injury, or “engaged in conduct so extensively intertwined with infliction of the injury that such conduct can be found to have produced the injury.” State v. Pine, 336 Or 194, 201, 82, P3d 130 (2003).
Area(s) of Law:- Criminal Law
State v. Roman
When deciding whether to provide a jury with Uniform Jury Instruction 1029, the “witness-false-in-part” instruction, a court must “determine, from all the testimony, whether or not there has been sufficient evidence for the jury to decide that at least one witness consciously testified falsely.” Ireland v. Mitchell, 226 Or 286, 293. It is permissible to give the instruction based on contradictory physical evidence alone, if that evidence could cause a reasonable judge to determine that a jury could conclude, "that the defendant’s testimony did not ring true.” id. at 294.
Area(s) of Law:- Criminal Law
State v. Schrepfer
Article I, section 12 of the Oregon Constitution provides two avenues for law enforcement's response to a suspect's invocation of their right against compelled self-incrimination: if the invocation is unequivocal, the questioning must stop immediately, State v. Boyd, 360 Or 302, 318 (2016); if equivocal, the officer must stop the interrogation to clarify whether the suspect intended to invoke this right. State v. Charboneau, 323 Or 38, 54 (1996).
Area(s) of Law:- Criminal Procedure
State v. Sippel
When an alternative theory is presented by the prosecution late in the case, the court must instruct the jury that a specific number of jurors must agree on what exact factual events constitute the crime if the prosecution presents more than one theory in its case. State v. Ashkins, 357 Or 642, 659, 357 P3d 490, (2015); State v. Teagues, 281 Or App 182, 194, 383 P3d 320 (2016).
Area(s) of Law:- Criminal Procedure
Vaida v. Howells Custom Cabinets
The Court of Appeals will designate a prevailing party “only if the court reverses or substantially modifies the judgment.” ORAP 13.05.
Area(s) of Law:- Appellate Procedure
November 49 summaries
Benson v. Benson
Under Timm and Timm, 200 Or App 621, 629 (2005), before determining whether a spouse has rebutted the presumption of equal distribution, a court must: (1) identify the portion of the value of the property that is fairly traceable to the spouse’s premarital assets; and (2) identify the portion that is fairly attributable to improvements or appreciation made after the acquisition of the property.
Area(s) of Law:- Family Law
Bibolet v. Employment Dept.
OAR 471-030-0125(5)(c) provides that a "blanket test" is one applied “uniformly to a specified group or class of employees.”
Area(s) of Law:- Employment Law
Botofan-Miller and Miller
To prevail on a claim for change of custody, a parent must first prove that, after the previous judgment of custody, circumstances have changed to make the custodial parent unable to care for the child properly; then, it must be established that, based on the changed circumstances and relevant evidence, the change in custody is in the best interest of the child. Boldt and Boldt, 344 Or 1, 9 (2008).
Area(s) of Law:- Family Law
Cunio v. Board of Parole
Under ORS 144.120(1)(a), the Board of Parole must conduct parole eligibility hearings for juvenile aggravated murderers, which entail reviewing “mitigating evidence submitted by an inmate during a prison term hearing even if that evidence is unrelated to the circumstances surrounding the criminal offenses." Calderon-Pacheco v. Board of Parole, 309 Or 454, 458-59 (1990).
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. C.E.
“When a jurisdictional judgment . . . specifically identifies a potential cause underlying a jurisdictional finding, it can be ‘fairly implied’ that that identified cause will be a referent for measuring the parent’s progress.” Dept. of Human Services v. M. M. B., 253 Or App 431, 440 rev den, 353 Or 280 (2013).
Area(s) of Law:- Family Law
Dept. of Human Services v. C. T.
For testimony to be considered helpful, under OEC 702, “the subject of the testimony must be within the expert’s field, the witness must be qualified, and the foundation for the opinion must intelligibly relate the testimony to the facts.” State v. Brown, 297 OR 404, 409, 687 P2d 751 (1984).
Area(s) of Law:- Family Law
Dept. of Human Services v. H. F. E.
“To be ‘plain’ the error must (1) be an error of law; (2) be obvious, meaning that the legal point is not reasonable in dispute; and (3) appear on the record.” ORAP 5.45(1); State v. Vanornum, 354 OR 614, 629, 317 P3d 889 (2013).
Area(s) of Law:- Family Law
Fenner v. Fenner
"No-contest provisions are valid and enforceable," but should be read narrowly using the express terms contained therein. Frakes v. Nay, 254 Or App 236, 247-248 (2012).
Area(s) of Law:- Trusts and Estates
J.M. v. Oregon Youth Authority
“The only federal court that controls over the Oregon Supreme Court on matters of federal law is the United States Supreme Court.” State v. Moyle, 299 Or 691, 707, 705 P2d 740 (1985). State supreme courts are binding authority on lower state courts when interpreting federal laws. ASARCO Inc. v. Kadish, 490 US 605, 617, 109 S Ct 2037, 104 L Ed 2d 696 (1989).
Area(s) of Law:- Preemption
Nathan v. Dept. of Human Services
In analyzing the affirmative defense of qualified immunity, a court asks whether the facts allege a violation of a constitutional right and whether that right was “clearly established” at the time of the alleged violation. Pearson v. Callahan, 555 US 223, 232 (2009).
Area(s) of Law:- Qualified Immunity
Oatney v. Kelly
“[A] trial counsel perform[s] inadequately [when they] fail to move to suppress [evidence]…used in violation of [an] immunity promised by [a] district attorney.” Oatney v. Premo, 275 Or App 185, 187 (2015).
Area(s) of Law:- Post-Conviction Relief
Schutz v. La Costita III, Inc.
A “complete denial a previous right to claim under the common law by ORS 471.565(1) violated the remedy clause,” Oregon Constitution. Horton v. OHSU, 359 Or 168, 219 (2016).
Area(s) of Law:- Constitutional Law
State v. Coates
ORS 161.635(1) provides that a defendant cannot be ordered to pay more than $6,250 fine for a Class A misdemeanor.
Area(s) of Law:- Criminal Law
State v. Johnson
Under OEC 403, "relevant, evidence may be excluded if its probative value is substantially outweighed by the danger or unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
Area(s) of Law:- Evidence
State v. Powell
A warrantless search is per se invalid, unless it falls into one of the clearly defined warrant requirement exceptions. State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006).
Area(s) of Law:- Criminal Procedure
State v. Sepulveda
“An officer confronted with safety concerns may handcuff a person without converting the stop into an arrest, but the stop is converted into an arrest if the officer continues to use force to restrain the person after the officer’s safety concerns have dissipated.” State v. Hebrard, 244 Or App 593, 598, 260 P3d 759 (2011). After an officer has stopped and handcuffed a person for officer safety, the officer needs probable cause to further detain and search the person. ORS 131.005(1); State v. Sepulveda, 288 Or App 632, 641 (2017).
Area(s) of Law:- Criminal Procedure
State v. Wolf
A defendant may "raise the defense of self-defense" by either (1) providing the state with a pre-trial, written notice; or (2) by the provision of "affirmative evidence by a defense witness in the defendant’s case in chief.” Once the defense of self-defense has been properly raised, the state is burdened with disproving the application of the defense beyond a reasonable doubt. ORS 161.055(3); State v. Boyce, 120 Or App 299, 305-306 (1993).
Area(s) of Law:- Criminal Law
Trail v. Haney
Under ORS 18.005(13), a limited judgment must fit into certain categories, one being “a judgment entered under ORCP 67 B or 67 G.” In order to apply 67 B, “the court must have determined a ‘claim.’ [A] motion for sanctions under ORCP 46 D does not constitute a claim within the meaning of ORCP 67;” therefore, sanctions under ORCP 47 are not appealable. Baugh v. Bryant Limited Partnerships, 98 Or App 419, 423 779 P2d 1071 (1989)
Area(s) of Law:- Civil Procedure
Vasquez v. Double Press Mfg., Inc.
Under Horton v. OHSU, for a statutorily substituted remedy under ORS 31.710(1) to be “substantial” as required by the remedy clause in Article I, section 10 of the Oregon Constitution, the remedy need not restore all damages that the plaintiff sustained to pass constitutional muster; however, a remedy that is only a “paltry fraction” of the damages the plaintiff sustained will unlikely be sufficient.
Area(s) of Law:- Remedies
Chief Aircraft, Inc. v. Grill
To determine whether a defamatory statement that involves a matter of public concern is protected by the First Amendment, the court must make a determination that “a reasonable factfinder could conclude that the statement implies an assertion of objective fact.” That determination is based off a three-part test: (1) whether the general tone of the publication as a whole “negates the impression that the defendant was asserting an objective fact;” (2) whether the defendant’s own language (e.g. figurative or hyperbolic) “negates that impression;” and (3) “whether the statement at issue is susceptible of being proved true or false.” Neumann v. Liles, 358 Or 706, 718-22, 369 P3d 1117 (2016).
Area(s) of Law:- First Amendment
Sherertz v. Brownstein Rask
When considering the provision of a particular jury instruction, "[e]verything which is reasonably capable of confusing or misleading the jury should be avoided." Williams et al. v. Portland Gen. Elec., 195 Or 597, 610 (1952). A jury instruction will not be reversed if there is “little likelihood” that the jury was affected by the error; but if there is “some” or “significant” likelihood, then the jury instruction must be reversed. Purdy v. Deere and Company, 355 Or 204, 226 (2014).
Area(s) of Law:- Civil Procedure
State v. Erickson
Under ORS 164.015, theft is committed when a person “with intent to deprive another of property, takes such property from an owner.”
Area(s) of Law:- Criminal Law
State v. Husk
Under ORS 811.370, a motorist must drive exclusively in a single lane unless there is a valid reason (e.g. a road hazard) that “makes it impracticable,” or he is attempting to switch lanes but is confirming it is safe to do so. State v. McBroom, 179 Or App 120, 125-26, 39 P3d 226 (2002).
Area(s) of Law:- Traffic Infractions
State v. Williams
A defendant may invoke his right to proceed without representation midtrial, however, a court is permitted to deny the motion if it could result in disruption or delay. State v. Hightower, 361 Or 412, 418, 393 P3d 224 (2017). The record must show that “the trial court actually weighed the relevant competing interests involved.” Id at 421.
Area(s) of Law:- Constitutional Law
State v. Zuniga
ORS 137.103(4)(a) defines as a "victim," for the purposes of restitution awards, "[t]he person or decedent against whom the defendant committed the criminal offense, if the court determines that the person or decedent has suffered or did suffer economic damages as a result of the offense."
Area(s) of Law:- Criminal Law
Cannon v. Dept. of Justice
Until a person successfully challenges a conviction, he is not “harmed in a legally cognizable way” by a defense counsel’s malpractice. Stevens v. Bispham, 316 Or 221, 230-31, 851 P2d 556 (1993).
Area(s) of Law:- Civil Law
Lujan v. Myrick
Under ORS 138.520, the post-conviction court has expansive authority to grant relief that is “proper and just” in order to cure any prejudice a criminal defendant has suffered. Hinton v. Hill, 342 Or 222, 149 P3d 1205 (2006)
Area(s) of Law:- Post-Conviction Relief
Oregon Trucking Assns. v. Dept. of Transportation
Under ORS 366.395(1) the Department of Transportation may sell property that is, in the opinion of the department, no longer needed, required, or useful for department purposes.
Area(s) of Law:- Administrative Law
State v. Esquivel
In order to satisfy constitutional requirements, an officer "must provide Miranda warnings to a suspect before interrogating her if she is either in full custody or under compelling circumstances." State v. Magee, 304 Or 261, 265 (1987).
Area(s) of Law:- Criminal Procedure
State v. Perrott
In cases involving alleged DUI offenses, Article I, section 9 of the Oregon Constitution does not relieve the state’s burden of proof for an exigency exception to the warrant requirement, when the only evidentiary support is an officer’s concern about the risk of dissipation in a defendant's blood-alcohol level prior to the officer obtaining a warrant. State v. Ritz, 361 Or 781, 798 (2017).
Area(s) of Law:- Criminal Procedure
State v. Riley
"Accomplice testimony is not sufficient to convict someone unless it is corroborated by other evidence that tends to connect the defendant with the offense alleged.” ORS 136.440(1). "It is not enough that the extrinsic evidence establish general criminality." State v. Foster, 221 Or. App. 108, 113, 188 P.2d 440 (2008). The extrinsic evidence must connect the defendant with the offense independent of any accomplice testimony. State v. Reynolds, 160 Or. 445, 458, 86 P.2d 314 (1939).
Area(s) of Law:- Criminal Law
State v. Rogers
Under former ORS 181.599, failing to report as a sex offender is a felony if the juvenile defendant’s conviction for underlying crimes would have been felony sex crimes, had the defendant been an adult. State v. Hinkle, 287 Or App 786, 788, ___ P3d ___ (2017).
Area(s) of Law:- Juvenile Law
Walker v. Providence Health System Oregon
Under ORS 656.262(11)(a), "[if an] insurer or self-insured employer…unreasonably delays acceptance or denial of a claim [for worker's compensation]…the insurer or self-insured employer shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees assessed under this section."
Area(s) of Law:- Administrative Law
Willamette Water Co. v. WaterWatch of Oregon
ORS 537.230(1) provides that, “[e]xcept for a holder of a permit for municipal use, the holder of water right permit shall prosecute the construction of any work with reasonable diligence and complete the construction within a reasonable time, not to exceed five years from the date of approval.”
Area(s) of Law:- Environmental Law
Dept. of Human Services v. J. C.
A court's wardship can continue only if the court has jurisdiction over the child, and jurisdiction by the court can continue as long as the basis for jurisdiction have not been ameliorated. ORS 419B.366; Dept. of Human Services v. T. L., 279 Or App 673, 678 (2016).
Area(s) of Law:- Juvenile Law
Miller v. Board of Psychologist Examiners
There are five requirements that must be met to apply issue preclusion: “(1) The issue in the two proceedings is identical. (2) The issue was actually litigated and was essential to a final decision and the merits in the prior proceeding. (3) The party sought to be precluded has had a full and fair opportunity to be heard on that issue. (4) The party sought to be precluded was a party or was in privity with a party to the prior proceeding. (5) The prior proceeding was the type of proceeding to which this court will give preclusive effect.” Nelson v. Emerald People’s Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993).
Area(s) of Law:- Administrative Law
State v. Bladorn
Under the Oregon Constitution Article I, section 9, an officer has authority to search for additional weapons incident to an arrest. State v. Anfield, 313 Or 554 (1992).
Area(s) of Law:- Criminal Procedure
State v. Hartley
The hearsay exception under OEC 801(4)(a)(C) does not apply to identifications that “merely follow a declarant’s perception of the person”, but “must result from” the perception. Legislative Commentary to OEC 801, reprinted in Laird C. Kirkpatrick, Oregon Evidence § 801.02[2], 712, 713 (6th ed 2013).
Area(s) of Law:- Evidence
State v. Reinke
A sentence imposed on remand cannot be vindictive. State v. Partain, 349 Or 10, 24-25, 239 P3d 232 (2010). To determine if a sentence imposed on remand is vindictive, the appellate court must examine (1) if the second sentence is more severe than the original based on the total length of time, if so, (2) if the resentencing court articulated “a wholly logical, nonvindicitive reason for the more severe sentence. State v. Sierra, 361 Or 723, 744, 399 P3d 987 (2017).
Area(s) of Law:- Sentencing
State v. Shields
“A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.” ORS 161.295.
Area(s) of Law:- Criminal Procedure
Cooksley v. Lofland
When the “plaintiff submits a verdict form from which the jury cannot tell whether the damages award includes losses subject to PIP benefits, the court must reduce the damages award by reason of the PIP benefits.” Wade v. Mahler, 167 Or. App. 350, 356, 1 P.3d 485, rev den, 331 Or. 334 (2000).
Area(s) of Law:- Tort Law
Givan v. Department of Human Services
“If a personal representative is not appointed within four months after the filing of the affidavit authorized by ORS 114.515, the interest of the decedent in all of the property described in the affidavit is transferred to the person(s) shown by the affidavit to be entitled thereto, and any other claims against the property are barred.” ORS 114.555.
Area(s) of Law:- Trusts and Estates
S. H.
Per ORS 419B.366(5), a motion for guardianship may be granted only if a juvenile court has "approved a plan of guardianship under ORS 419B.476."
Area(s) of Law:- Juvenile Law
State v. Knapp
For the inevitable discovery exception to the warrant requirement to apply, the State must prove that, even if officers had not conducted a warrantless search, the evidence would have been inevitably discovered through "proper and predictable investigatory procedures." State v. Hensley, 281 Or App 523, 535 (2016).
Area(s) of Law:- Criminal Procedure
State v. McFerrin
“[T]he sole criterion” under OAR 213-012-0040(2) for whether a court can impose consecutive incarceration sanctions is “whether there had been multiple probation violations.” State v. Newell, 238 Or. App. 385, 395 (2010).
Area(s) of Law:- Sentencing
State v. Simrin
ORS 137.225(1)(b) provides in part, that if charges of a crime are dismissed or the person is acquitted, the “arrested person may apply to the court . . . for entry of an order setting aside the record of arrest.”
Area(s) of Law:- Remedies
State v. Warren
For a defendant to waive his right to counsel, the defendant must have knowledge of his right to counsel and waiver of that right was intentionally and knowingly made. State v. Langley, 351 Or 652, 663, 273 P3d 901 (2012). The determination that a defendant intentionally relinquished the right to counsel is based the “particular circumstances of each case.” State v. Menefee, 268 Or APP 154, 171, 341 P3d 229 (2014).
Area(s) of Law:- Criminal Procedure
State v. Welch
Mootness arises when a finding from the court will have “no practical effect on the rights of the parties.” State v. Langford, 260 Or App 61, 66, 317 P3d 905 (2013). A judgment of contempt by itself does not create “sufficient stigma to save an appeal from being moot.” State ex rel State of Oregon v. Hawash, 230 Or App 427, 428, 215 P3d 124 (2009).
Area(s) of Law:- Appellate Procedure
State v. Woodbury
Per OEC 702, a witness can provide testimony “relative to a particular topic” as an expert if that person has the “knowledge, skill, experience, training, or education” to provide that opinion testimony. State v. Rogers, 330 Or 282 (2000); State v. Althof, 273 Or App 342 (2015).
Area(s) of Law:- Evidence
December 37 summaries
City of Cave Junction v. State of Oregon
An appeal is moot when a decision “will no longer have a practical effect on the rights or obligations of a party.” State v. Walraven, 282 Or App 649, 654, 385 P3d 1178 (2016).
Area(s) of Law:- Appellate Procedure
Hasner v. Western Oregon Advanced Health
“If a condition/treatment pair is not on the [Health Evidence Review Commission (“HERC”)] Prioritized List of Health Services and the Division determines the condition/treatment pair has not been identified by the HERC for inclusion on the list, the Division shall make a coverage decision in consultation with the HERC.” OAR 410-130-0200(10).
Area(s) of Law:- Administrative Law
Holbrook v. Amsberry
Only acts or omissions by an attorney that have a “tendency to affect the result of the prosecution” entitle a person to post-conviction relief for ineffective assistance of counsel. Stevens v. State of Oregon, 322 Or 101, 110 (1995). A post-conviction court must consider evidence that would have been proffered had the attorney performed adequately. Lichau v. Baldwin, 333 Or 350, 363 (2002).
Area(s) of Law:- Post-Conviction Relief
Htaike v. Sein
The Court of Appeals held the trial court deprived Defendants an opportunity to be heard by not allowing them to present legal or factual arguments surrounding the underlying claim when it entered a corrected judgment after remand.
Mandes v. Liberty Mutual Holdings
"Under the personal comfort doctrine, a worker remains in the course and scope of employment if he or she engages in an activity that is not his or her appointed work but which is 'personal comfort' activity that bears a sufficient connection to his or her employment.” U.S. Bank v. Pohrman, 272 Or App 31, 46, 354 P3d 722, rev den, 358 Or 70 (2015).
Area(s) of Law:- Workers Compensation
Sparks v. Premo
In order to show entitlement to post-conviction relief, a Defendant must show that counsel failed to “exercise reasonable professional skill and judgment” and that he suffered prejudice as a result. Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).
Area(s) of Law:- Post-Conviction Relief
State v. Black
As a general rule, one witness may not comment on the credibility of another witness, either through direct comments or through statements that are “tantamount” to stating another witness is credible. State v. Chandler, 360 Or 323, 330-331 (2016). Expert testimony is inadmissible under this rule when the primary effect of the testimony is to assist the jury’s assessment of witness credibility. State v. Beauvais, 357 Or 524, 545 (2015).
Area(s) of Law:- Evidence
City of Portland v. Diaz
“An order that is made in the action after a general judgment is entered and that affects a substantial right, including an order granting a new trial, may be appealed [as provided by ORS Chapter 19].” ORS 19.205(3)
Area(s) of Law:- Civil Law
Eugene Water and Electric Board v. PERB
“No person may become a member of the system unless he is in the service of a public employer and has completed six months’ service uninterrupted by a total of more than 30 working days during the six months’ period.” former ORS 237.011(emphasis added).
Area(s) of Law:- Employment Law
Harryman v. Fred Meyer, Inc.
ORS 31.180(1) provides a “complete defense in any civil action for personal injury” if the claimant was injured while “engaged in conduct that at the time would constitute . . . a Class B felony and that felonious conduct was a substantial factor contributing to the injury.”
Area(s) of Law:- Civil Law
King v. Dept. of Public Safety Standards
An ALJ may grant a motion for summary determination when there is no genuine issue as to any material fact that is relevant to the resolution of the legal issue, and issues may be resolved by a motion for summary determination only when a single and particular result can come from the application of the facts to the law. OAR 137-003-0580(6)(a); Hamlin v. PERB, 273 Or App 796, 798 (2015).
Area(s) of Law:- Administrative Law
Kroetch v. Employment Dept.
Under ORS 657.471, a request for an appeal for relief to an employer for unemployment charges can only be made after the eligibility decision has been made. Johnson v. Employment Div., 124 Or App 77, 81 (1993).
Area(s) of Law:- Employment Law
Schwartz and Battini
“A court of another state does not have jurisdiction under subsection (1)(a) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this is the more appropriate forum under ORS 109.761 or 109.764 and: (B) substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships;” ORS 109.741(1)(b).
Area(s) of Law:- Family Law
State v. Benz
“An error is plain if (1) it is one ‘of law,’ (2) it is ‘apparent,’ meaning it is obvious and not reasonably in dispute, and (3) it appears ‘on the face of the record,’ meaning that the court ‘need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.’” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990).
Area(s) of Law:- Appellate Procedure
State v. Kerne
Per Article VII, § 3 of the Oregon Constitution, where a trial court commits an error in rendering its verdict but, upon sufficient review, it is determined that the judgment is essentially the same as it should have been in the absence of the error, the judgment must be affirmed. State v. Davis, 336 Or 19, 28 (2003).
Area(s) of Law:- Criminal Law
State v. Miller
An appellate court must review “the denial of a motion for judgment of acquittal for legal error, viewing the evidence in the light most favorable to the state to determine whether any rational trier of fact could have found the elements of the crimes beyond a reasonable doubt.” State v. Rivera-Ortiz, 288 Or App 284, 285 (2017).
Area(s) of Law:- Criminal Law
State v. Rice
In determining whether to admit evidence of a defendant's past improprieties, a court must look to whether the state has established and shown “some substantial connecting link between the two acts” to determine whether evidence of a prior act could be used to establish motive to commit the charged act. State v. Wright, 283 Or App 160, 171 (2016) (quoting State v. Turnidge, 359 Or 364, 451 (2016)).
Area(s) of Law:- Evidence
State v. Blackstone
An officer must have reasonable suspicion that an individual has committed or is about to commit an unrelated crime based on “specific and articulable facts” that are “objectively reasonable under the totality of the circumstances” in order to extend a lawful traffic stop. State v. Reich, 287 Or. App 292, 298 (2017).
Area(s) of Law:- Criminal Law
State v. Cleland
Under State v. Hite, 266 Or App 710, 720 (2014) a policy requirement, that officers open every closed container that is designed or objectively likely to contain valuables, serves as the constitutionally necessary constraint on the exercise of individual officers’ discretion.
Area(s) of Law:- Criminal Procedure
State v. Cone
Failing to strike impermissible vouching testimony sua sponte does not constitute plain error if the trial court reasonably infers that a lack of objection by the defense may be a strategic decision. State v. Vage, 278 Or App 771, 777 (2016).
Area(s) of Law:- Evidence
State v. Lopez-Minjarez
All jury instructions must be “complete and accurate without error” when submitted to the Court. Estate of Michelle Schwarz v. Philip Morris Inc., 348 Or 442, 454 (2010).
Area(s) of Law:- Civil Procedure
State v. Paul
“If there is any evidence in the record from which the jury could infer the required elements of [the defense], the issue should be submitted to them.” State v. Matthews, 30 Or App 1133, 1136, 569 P2d 662 (1977).
Area(s) of Law:- Criminal Procedure
State v. West
There are two requirements for prevailing on a request for a "less satisfactory evidence" jury instruction, a party must establish that: “other evidence was reasonably available on a fact in issue and that there is a basis for the jury to conclude that the other evidence is stronger and more satisfactory than the evidence offered.” State v. McDonnell, 313 Or 478, 500 (1992).
Area(s) of Law:- Civil Procedure
Adamson v. Oregon Health Authority
In ruling on an administrative rule challenge, a court must assess whether the agency had the authority to enact the form rule being disputed. If the rule is in accordance with the agency's basic authority, the court must determine whether that rule “departed from a legal standard expressed or implied in the particular law being administered, or contravened some other applicable statute.” Nay v. Dept. of Human Services, 360 Or 668, 680-81 (2016); Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565 (1984).
Area(s) of Law:- Administrative Law
Gilderson v. Taylor
Pursuant to ORS 138.525(2)-(3), a judgment dismissing a post-conviction petition for failure to state a claim is a dismissal of the petition as meritless, rendering the judgment not appealable.
Area(s) of Law:- Post-Conviction Relief
Klein v. BOLI
Content neutral regulations that have incidental effects on expression are permissible regulations of public accommodation services rather than regulations directed at expression or regulations of speech. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 US 47, 62, 126 S Ct 1297 (2006). If cake-making involves both expressive and non-expressive components and Oregon’s interest in enforcing the statute is unrelated to the content of the expressive components, then the government’s action is subject to intermediate scrutiny. United States v. O’Brien, 391 US 367, 376 (1968).
Area(s) of Law:- Constitutional Law
Lockett v. Teacher Standards and Practices Comm.
TSPC may revoke or suspend a teaching or administrative license, under ORS 342.175(1)(b), if it is based on “[g]ross neglect of duty:” a breach or substantial deviation of professional duty or responsibilities. ORS 342.175(1)(b); OAR 584-020-0040(4)(n).
Area(s) of Law:- Administrative Law
Morgan v. Valley Property and Casualty Ins. Co.
Under OEC 803(6), a business record is a document that is routinely prepared in the course of a business’s activities and preparer owes a legal duty to report accurately. State v. Cain, 260 Or App 626, 633-34 (2014).
Area(s) of Law:- Evidence
State v. Bales
“A person who has received formal training in prehospital and emergency care, and is licensed to attend any person who is ill or injured or who has a disability. Police officers, firefighters, funeral home employees and other persons serving in a dual capacity one of which meets the definition of ‘emergency medical services provider’ are ‘emergency medical services providers’ within the meaning of this chapter.” ORS 682.025(4).
Area(s) of Law:- Criminal Law
State v. Campbell
The automobile exception under Article 1 section 9 of the Oregon Constitution applies if the automobile is mobile when officers initially encounter the automobile in connection with a crime and the officers have "probable cause to believe that the car contains evidence of a crime." State v. Andersen, 361 Or 187, 189 (2017).
Area(s) of Law:- Criminal Law
State v. E. C.-P.
Under ORS 419C.610, a juvenile court may “modify or set aside any order made by it upon such notice and with such hearing as the court may direct.”
Area(s) of Law:- Juvenile Law
State v. Hickman
When a suspect equivocally invokes their Article 1 Section 12 rights, law enforcement must immediately stop interrogating the suspect in order to ask clarifying questions about the suspect's potential invocation of his or her constitutional rights. State v. Schrepfer, 288 Or App 429, 436 (2017).
Area(s) of Law:- Criminal Law
State v. M. S. S. K.
In order to affirm on an alternative basis: (1) "the facts of record be sufficient to support the alternative basis for affirmance;" (2) "the trial court’s ruling be consistent with the view of the evidence under the alternative basis for affirmance;" (3) "the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below." Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-660 (2001).
Area(s) of Law:- Juvenile Law
State v. Rosette
Restitution awarded after a defendant is convicted of a crime (ORS 137.106) should be calculated based on the recoverable economic damages available in a like civil action that could be brought against the defendant. State v. Islam, 359 Or 796, 800-801, 377 P3d 533 (2016).
Area(s) of Law:- Remedies
State v. Samuel
The state bears the burden to prove an amendment to an indictment is consistent with the grand jury’s findings. State v. Long, 320 Or 361, 370, 885 P2d 696 (1994). A variance is impermissible if it is prejudicial; a variance is prejudicial if it “require[s] a defendant to develop a different argument.” State v. Boitz¸ 236 Or App 350, 356, 236 P.3d 766 (2010).
Area(s) of Law:- Criminal Procedure
State v. Ydrogo
In order for a court’s admission of evidence to satisfy the Mayfield test, the totality of the attendant circumstances must show the record "demonstrate[s] that the court consciously conducted the required balancing," and "allow[s] for meaningful review of that balancing." State v. Garcia-Rocio, 286 Or App 136, 147-150 (2017).
Area(s) of Law:- Evidence
Wells Fargo Bank, N.A. v. Jasper
Per ORCP 9, service of process is typically required to be sent to a party's attorney; if the party is not being represented by counsel, notice must be sent directly to the party.
Area(s) of Law:- Civil Procedure