January 35 summaries
Jennewein v. MCIMetro Access Transmission Services
"Foreseeability plays a role in at least two overlapping common-law negligence determinations: (1) whether the defendant's conduct unreasonably created a foreseeable risk of harm to a protected interest of the plaintiff such that the defendant may be held liable for that conduct—formerly described in terms of 'duty' and 'breach' as measures of negligent conduct; and (2) whether, because the risk of harm was reasonably foreseeable, the defendant may be held liable to the plaintiff for the particular harm that befell the plaintiff." Piazza v. Kellim, 360 Or 58, 70 (2016).
Area(s) of Law:- Tort Law
McNichols v. Dept. of Fish and Wildlife
A plaintiff, unable to establish actual injury, has no standing under either ORS 183.480 or ORS 28.020 factor tests.
Area(s) of Law:- Administrative Law
Stanton v. Medellin
Under the ORLTA effective at the time of the landlord/tenant agreement, "neither the ORLTA nor public policy prohibit a landlord from bargaining away the landlord’s ability to terminate a tenancy..."
Area(s) of Law:- Landlord Tenant
State v. Buswell
Plaintiffs can recover the value of accrued sick time when they have used that earned employment benefit due to tortious injury and, consequently, are no longer able to avail themselves of that time, which otherwise would have been available for alternate uses. Under Oregon law, a plaintiff in a civil case would be entitled to damages for used sick leave under that same theory of economic loss.
Area(s) of Law:- Remedies
State v. M. T.
To establish a mentally ill person “is a danger to herself,” the state must establish that the person is likely to cause life-threatening physical harm to herself in the near future. State v. B. B., 240 Or App 75, 82-83, 245 P3d 697 (2010). Further, the “threat of serious physical harm” must be “particularized” and “highly probable.” State v. M. A., 276 Or App 624, 628-29, 371 P3d 495 (2016).
Area(s) of Law:- Civil Commitment
State v. S. A. R.
“A person is ‘dangerous to self’ for [the] purposes [of ORS 426.005(1)(f)(A)] if the person’s mental disorder puts her at a non speculative risk of serious physical harm or death in the near future, absent commitment.” State v. S.E.R., 297 Or App 121, 122, 441 P3d 254 (2019).
Area(s) of Law:- Civil Commitment
State v. T. T.
Officers must have reasonable suspicion that a person has committed or is about to commit a “specific type of crime”; reasonable suspicion based on “nonspecific criminal activity” is not sufficient to initiate or extend a stop. State v. Maciel-Figueroa, 361 Or 163, 180-81, 389 P3d 1121 (2017).
Area(s) of Law:- Juvenile Law
Davison and Schafer
Under the best-interests analysis of ORS 107.137(1), a court may consider lifestyle choices, such as moves, only if the choices “will or may cause damage to the child.” Miller and Miller, 269 Or App 436, 443, 345 P3d 472 (2015) (emphasis in original). Increased difficulty to the noncustodial parent’s ability to co-parent is “not relevant to the determination of damage.” Id. at 444. If a parent is a full-time student, imputation of full-time income is not appropriate. Bouris and Bouris, 276 Or App 637, 639, 369 P3d 1186 (2016).
Area(s) of Law:- Family Law
State v. Bowen
"The reasonable-suspicion standard ‘is met when an officer can point to specific and articulable facts that give rise to a reasonable inference that the defendant committed…a specific crime...’ State v. Maciel-Figueroa, 361 Or 163, 165, 389 P3d 1121 (2017). The officer must have a subjective belief that is objectively reasonable under the totality of the circumstances. State v. Kreis, 365 Or 659, 665, 451 P3d 954 (2019).”
Area(s) of Law:- Criminal Procedure
Stewart v. Albertson's, inc.
“However, we now interpret ORS 646.638 to provide that a violation by the defendant entitles the plaintiff to recover compensatory damages or $200, whichever is greater; the jury can also award punitive damages if it finds deterrence is called for and the defendant's conduct is particularly aggravated.” Crooks v. Payless Drug Stores, 285 Or 481, 490 (1979).
Area(s) of Law:- Remedies
Waveseer of Oregon, LLC v. Deschutes County
"ORS 215.416(8)(a) generally does not permit a county to develop land use approval standards and criteria through quasi-adjudicative decision-making; the standards must be reasonably discernible from provisions of the code itself." Zirker v. City of Bend, 233 Or App 601, 610, 227 P3d 1174, rev den, 348 Or 415 (2010).
Area(s) of Law:- Land Use
Olson and Olson
The phrase “reasonably incurred” as used in ORS 107.105(1)(j) is intended to qualify only “costs and expenses.” Therefore, an award of attorney fees under that provision is not limited to fees actually incurred.
Area(s) of Law:- Attorney Fees
State v. Ceccoi
"[A] proponent may still 'need to establish "unavailability" by showing pursuit of "other reasonable means."' . . . In determining what, if any, further efforts are required, the totality of the circumstances" applies. State v. Iseli, 366 Or 151, 173 (2020)(quoting OEC 804(1)(e)).
Area(s) of Law:- Evidence
State v. E. J. J.
In order to commit someone “based on dangerousness to others, there must be a causal connection between” the person’s mental disorder and his allegedly dangerous behavior; the person must be “highly likely to engage” in actual, “future violence towards others.” State v. D. A. H., 241 Or App 391, 398, 250 P3d 423 (2011); State v. S. E. R., 297 Or App 121, 122, 441 P3d 254 (2019). To commit someone based on inability to provide for basic personal needs, the State must show that the inability to provide will place the person in danger of serious physical harm in the near future. State v. M. A. E., 299 Or App 231, 240, 448 P3d 656 (2019).
Area(s) of Law:- Civil Commitment
State v. Jordan
“The test for voluntariness is whether, under the totality of the circumstances, the consent was given by an act of a defendant’s free will as opposed to resulting from express or implied coercion.” State v. Jepson, 254 Or App 290, 294, 292 P3d 660 (2012).
Area(s) of Law:- Criminal Procedure
State v. Kennedy
Evidence to show the bias of a witness is always relevant. State v. Crum, 287 Or App 541, 551-52, 403 P3d 405 (2017).
Area(s) of Law:- Evidence
State v. Meiser
The standard for a “defendant seeking to establish a GEI defense “must show that, at the time of the crime, as a result of a mental disease or defect (which does not include a personality disorder…), the defendant lacked the substantial capacity to appreciate the criminality of his conduct or to conform that conduct to the requirements of law.” State v. Shields, 289 Or App 44, 47, 407 P3d 940 (2017), rev den, 362 Or 794 (2018).
Area(s) of Law:- Criminal Law
State v. Mosley
Requiring a party to preserve an issue in the trial court serves several purposes: it permits a trial court to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made and it also “fosters full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it.” Peeples v. Lampert, 345 Or 209, 291-20, 181 P3d 637 (2008).
Area(s) of Law:- Appellate Procedure
State v. Smith
It was an error for the trial court to join cases where separate incidents involved different victims, different locations, and more than one month between. The misjoinder was reversible error in one conviction, but harmless in the other conviction had the cases been tried separately.
Area(s) of Law:- Criminal Procedure
Vaughn v. Vaughn
“As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Area(s) of Law:- Civil Procedure
C. R. v. Eugene School Dist. 4J
A special motion to strike under ORS 31.150 must “be filed within 60 days after service of the complaint” or at any later time, in the court’s discretion. ORS 31.152(1). Claims may be stricken if “based on written or oral statements” made during or in connection with a “proceeding authorized by law,” an “issue of public interest,” or in furtherance of “constitutional right of free speech” in connection with an issue of public interest. ORS 31.150(2).
Area(s) of Law:- Civil Law
Johnson v. Keiper
“A plaintiff in a medical malpractice case must offer expert testimony that, to a reasonable medical probability, the alleged breach of the standard of care caused the plaintiff’s injuries.” Cleland v. Wilcox, 273 Or 883, 887-88, 543 P2d 1032 (1975). However, certainty of the degree of harm is not by definition required to prove causation. Hansen v. Bussman, 274 Or 757, 759, 549 P2d 1265 (1976).
Area(s) of Law:- Tort Law
King v. Board of Parole
The Board of Parole’s order must “articulate[] the reasoning that leads from the facts to the conclusion drawn.” Dixon v. Board of Parole and Post-Prison Supervision, 257 Or App 273, 286, 306 P3d 715 (2013) (quoting Salosha, Inc. v. Lane County, 201 Or App 138, 143, 117 P3d 1047 (2005).
Area(s) of Law:- Parole and Post-Prison Supervision
Simington Gardens, LLC v. Rock Ridge Farms, LLC
Trespass in ORS 105.815 refers to the unauthorized injury to or severance of timber or produce.
Area(s) of Law:- Tort Law
State ex rel Maney v. Hsu
Under the plain wording of the statute, the “trigger” for the requirement of a rehabilitation hearing “is the imposition of a minimum period of confinement.” State ex rel Engweiler v. Felton, 350 Or 592, 260 P3d 448 (2011).
Area(s) of Law:- Criminal Procedure
State v. Almahmood
Article I, section 9, of the Oregon Constitution, is not a limit on officer authority to approach individuals and request cooperation or information, as long as officer conduct would not “be reasonably perceived as coercive in the sense that it would cause [that individual] to reasonably believe that the officer is intentionally restraining the [individual’s] liberty or freedom of movement in a significant way—that is, in a way that exceeds the bounds of ordinary social encounters between private citizens.” State v. Backstrand, 354 Or 392, 400 (2013).
Area(s) of Law:- Criminal Procedure
State v. Cazee
To establish probable cause, “an officer may consider the facts in light of the officer’s training, knowledge, and experience, but that experience cannot itself supply the facts.” State v. Aguilar, 307 Or App 457, 469, 478 P3d 558 (2020).
Area(s) of Law:- Criminal Procedure
State v. Fockler
"[T]his court has not held that a trial court must recite on the record how it evaluated the probative and prejudicial value of evidence and how it balanced the two. Rather, as Turnidge demonstrates, a court will make a sufficient record under Mayfield if the trial court's ruling, considered in light of the parties' arguments, demonstrates that the court balanced the appropriate considerations." State v. Anderson, 363 Or 392, 406 (2018) (discussing State v. Turnidge, 359 Or 364 (2016) and State v. Mayfield, 302 Or 631 (1987)).
Area(s) of Law:- Evidence
State v. Goguen
Under the officer safety exception, objectively reasonable is determined by evaluating “‘any of the circumstances confronted by the officer either individually or collectively . . . that the defendant posed an immediate threat to’” the officer or others. State v. Thomas, 276 Or App 334, 337 (2016) (quoting State v. Bates, 304 Or 519, 525 (1987)). For reasonable suspicion of criminal acts, “the officer must have a subjective belief that the person stopped has committed, or is about to commit, a crime, and that belief must be objectively reasonable under the totality of the circumstances.” State v. Kreis, 365 Or 659, 665 (2019).
Area(s) of Law:- Criminal Procedure
State v. Heaston
Enacting SB 302 shows the legislature’s intent that the phrase “controlled substances” generally would not include cannabis, and that the legislature made the purposeful decision to either amend or not amend statutes that previously referenced “controlled substances” but did not reference cannabis.
Area(s) of Law:- Criminal Law
State v. Hernandez
When considering whether an affidavit establishes probable cause for a search, reviewing courts look at the “totality of the circumstances presented in the affidavit” and the inferences that an issuing magistrate could reasonably draw from those circumstances. State v. Miser, 303 Or App 347, 352, 463 P3d 599, rev den, 366 Or 827 (2020). The “paramount consideration” of a request for a bench trial is “whether a bench trial will fully protect a defendant’s rights.” State v. Austin, 274 Or App 114, 120, 360 P3d 603 (2015).
Area(s) of Law:- Criminal Procedure
State v. Jensen
A criminal defendant is liable in restitution for all the economic damages that “result from” the defendant’s crime. State v. Ramos, 358 Or 581, 587, 368 P3d 446 (2016) (paraphrasing ORS 137.106(1)).
Area(s) of Law:- Criminal Law
State v. Moore
“The appellate decision becomes effective when the appellate judgment issues, and that appellate judgment is effective in itself, without any action of the lower court.” International Brotherhood v. Oregon Steel Mills, Inc., 180 Or App 265, 271-271, 44 P3d 600 (2002).
Area(s) of Law:- Civil Procedure
State v. Rideout
Under ORS 137.690, a person who has been convicted of more than one “major felony sex crime” is subject to a mandatory minimum term of 25 years. If, pursuant to the Supreme Court’s decision in Ramos, one of the two convictions is reversed, the trial court will no longer have the authority to impose a mandatory minimum sentence of 25 years under ORS 137.690 on the remining conviction.
Area(s) of Law:- Sentencing
State v. Thompson
"Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict? The correct focus of the inquiry regarding affirmance despite error is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a fact-finder, would regard the evidence of guilt as substantial and compelling." State v. Davis, 336 Or 19, 32 (2003).
Area(s) of Law:- Criminal Procedure
February 28 summaries
Ellis v. Kyker
“[A] new development may be considered a legally sufficient change in circumstances only if it is shown that the change has ‘injuriously affected the child’ or affected the custodial parent’s ‘ability or inclination to care for the child in the best possible manner.’” Botofan-Miller, 365 Or 504, 520-21 (2019)(quoting Boldt and Boldt, 344 Or 1,9 (2008)).
Area(s) of Law:- Family Law
H.L.P. v. Jones
"To obtain an SPO under Oregon’s civil stalking statute, a petitioner must establish the following elements by a preponderance of the evidence: '(1) That the respondent engaged in "repeated and unwanted contact" with the petitioner; (2) that the petitioner was subjectively alarmed or coerced by the contact and that such alarm or coercion was objectively reasonable; (3) that the petitioner subjectively experienced apprehension about personal safety as a result of the contact and that such apprehension was objectively reasonable; and (4) that the respondent acted with the requisite mental state.'” Retherford v. Wafula, 305 Or App 344, 352, 471 P3d 786 (2020).
Area(s) of Law:- Civil Stalking Protective Order
Kirresh v. Gill
ORS 93.910 provides, “Whenever a contract for transfer or conveyance of an interest in real property provides a forfeiture remedy . . . default under the contract may be enforced only after notice . . . .” In conjunction, ORS 93.930(1) provides, “When a contract for conveyance of real property has been forfeited in accordance with its terms . . . .”
Area(s) of Law:- Civil Procedure
State v. Barden
Under OEC 901, the proponent must present “some evidence sufficient to support a finding that the matter in question is what its proponent claims so as to admit the evidence to the jury—for the jury remains the ultimate arbiter on authenticity, veracity, and reliability of evidence.”
Area(s) of Law:- Evidence
State v. Henderson
ORS 137.540(2) grants a trial court broad discretion in imposing special conditions of probation, but those conditions must be “reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both.” State v. Gaskill, 250 Or App 100, 102-03, 279 P3d 275 (2012).
Area(s) of Law:- Civil Stalking Protective Order
State v. Horner
Reversal of unanimous verdicts after a jury instruction allowing nonunanimous verdicts is not required. State v. Ciraulo, 367 Or 350, 353, 478 P3d 502 (2020). In light of Ramos, accepting “nonunanimous guilty verdicts for a nonpetty offense constitutes plain error.” State v. Ulery, 366 Or 500, 464 P3d 1123 (2020).
Area(s) of Law:- Criminal Procedure
State v. Merrill
Ramos established that Sixth Amendment requires that all jury verdicts for serious criminal offenses be unanimous. However, error may merit reversal only if the error substantially injured the rights of the petitioner. See State v. Ulery, 366 Or 500, 504 (2020). If an erroneously instructed jury still returns a unanimous verdict, then the error does not merit reversal. State v. Flores Ramos, 367 Or 292, 334 (2020).
Area(s) of Law:- Criminal Law
State v. Nelson
Concerns addressed by the instruction are not present when the testimony of accomplice witnesses does not shift blame. State v. Simson, 308 Or. 102, 110 (1989).
Area(s) of Law:- Evidence
State v. Peterson
“When legal disputes are encompassed in the arguments for and against a motion for judgment of acquittal, we resolve them as we would any other legal question.” State v. Turnidge, 359 Or. 364, 455 (2016).
Area(s) of Law:- Civil Procedure
State v. Pryor
During questioning, a promise may be found to be improper inducement if the questioner “communicates the idea of a temporal benefit or disadvantage… in exchange for a confession,” and that offer is then accepted in order to get the benefit. State v. Chavez-Meza, 301 Or App 373, 387 (2019); State v. Simmons, 302 Or App 133, 139 (2020).
Area(s) of Law:- Criminal Procedure
State v. Pusztai
“Generally, we will affirm a judgment, even after concluding that a trial court erred in sentencing, when the record shows that the trial court could have imposed the same total sentence without the error, and we are ‘completely confident’ that the trial court would impose the same sentence if the case were remanded for resentencing.” State v. Ortega-Gonsalez, 287 Or App 526, 530, 404 P3d 1081 (2017) (quoting State v. Calderon-Ortiz, 222 Or App 1, 8, 191 P3d 808 (2008), rev den, 345 Or 618 (2009)).
Area(s) of Law:- Criminal Procedure
State v. S. S.
Under ORS 426.005(1)(f)(A), an individual may be involuntarily committed if the individual: (1) engaged in behavior that “caused or risked serious harm” and (2) the behavior is likely to recur. State v. T. Y., 285 Or App 21, 24, 396 P3d 986 (2017); State v. S. R. J., 281 Or App 741, 751, 386 P3d 99 (2016).
Area(s) of Law:- Civil Commitment
Thompson v. Portland Adventist Medical Center
“[T]o toll the limitations period, a plaintiff’s mental condition ‘must have been such as to have actually barred her from knowing that [the defendant] had harmed her.’” Gaspar v. Village Missions, 154 Or App 286, 292 (1998) (emphasis in original). The severity of a plaintiff’s mental condition to qualify for such a bar is a factual question. Roberts v. Drew, 105 Or App 251, 255 (1991).
Area(s) of Law:- Civil Procedure
Forbus v. Board of Parole
“[S]entencing for aggravated murder is provided for solely by ORS 163.105 and is not covered under the guidelines.” State v. Davilla, 157 Or App 639, 647, 972 P2d 902 (1998), rev den, 334 Or 76 (2002).
Area(s) of Law:- Parole and Post-Prison Supervision
J.N.D v. Dehkordi
"Any person who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief under ORS 107.700 (Short title) to 107.735 (Duties of State Court Administrator), if the person is in imminent danger of further abuse from the abuser." ORS 107.710(1).
Area(s) of Law:- Family Law
McDonnell v. Premo
“Although the Post-Conviction Hearing Act does not explicitly list summary judgment as a procedure available to challenge claims, the Act does not preclude it.”
Area(s) of Law:- Post-Conviction Relief
State v. Avdeyev
A witness may not call a complaint witness a victim because it “may undermine the presumption of defendant’s innocence because it assumes defendant’s guilt.” State v. Sperou, 365 Or 121, 133, 442 P3d 581 (2019). However, a prosecutor using the term “victim” in reference to a complaining witness is allowed only in appropriate contexts, or “the trial court has the discretion to fashion an appropriate remedy, ‘subject to the defendant’s right to a fair trial'” if the usage is improper. Id. at 136.
Area(s) of Law:- Evidence
State v. Burris
“ORS 166.270(4) states an affirmative defense to the felony offense described in ORS 166.270. That affirmative defense explicitly applies only to the felony offense described in ORS 166.270(1), and there is no similar provision with respect to the misdemeanor offense of unlawful possession of a weapon set forth in ORS 166.250.”
Area(s) of Law:- Criminal Procedure
State v. Dean
Under Article I, section 12, of the Oregon Constitution, police may continue speaking with a defendant who has invoked the rights to remain silent or to counsel only to ask questions or make statements that are “normally attendant to arrest and custody.” State v. Schmidtke, 290 Or App 880, 885, 417 P3d 563 (2018). Any statements obtained in violation of those rights must be suppressed.
Area(s) of Law:- Constitutional Law
State v. Skeen
"Crime victims are entitled to restitution for ‘economic damages’ caused by defendant’s crime” ORS 137.106. “’[E]conomic damages’ are objectively verifiable out-of-pocket losses that a person could recover against the defendant in a civil action arising out of the defendant’s criminal activities.” State v. Herfurth, 283 Or App 149, 154, 388 P3d 1104 (2016), rev den, 361 Or 350 (2017).
Area(s) of Law:- Criminal Law
State v. Smith
“[W]hen a party objects to testimony as improper vouching, a court must determine whether the testimony provides an opinion on truthfulness or, instead, provides a tool that the factfinder could use in assessing credibility. That determination does not necessarily require an assessment of whether that specific tool is permitted under the rules of evidence.” State v. Black (Black II), 364 Or. 579, 593 (2019).
Area(s) of Law:- Evidence
State v. Soto-Navarro
"When conducting an investigation during a lawful stop, 'activities' of law enforcement must 'be reasonably related to that investigation and reasonably necessary to effectuate it.'" State v. Arreola-Botello, 365 Or. 695 (2019) (quoting State v. Watson, 353 Or 768, 781 (2013)).
Area(s) of Law:- Criminal Procedure
State v. O’Hare
The possession of “tools of the trade” might, in some circumstances, be sufficient to support a conviction for delivery of methamphetamine under ORS 475.890, depending on what those tools were, how many were possessed, and the surrounding context. However, to conclude that so little—mere possession of things that could be used to deliver drugs—could support a delivery conviction would “unlawfully punish a defendant for the status of being a drug dealer rather than for the act of transferring or attempting to transfer controlled substances.”
Area(s) of Law:- Criminal Law
State v. Poston
“All convictions for serious offenses that were based on nonunanimous verdicts involved constitutional error - a violation of the defendant’s Sixth Amendment right to jury unanimity.” State v. Flores Ramos, 367 Or. 292, 295 (2020).
Area(s) of Law:- Criminal Procedure
Varde v. Run! Day Camp For Dogs, LLC
"An appellate court cannot exercise appellate jurisdiction over an appeal unless a statute authorizes an appeal from the judgment or order that the trial court entered.” Rauda v. Oregon Roses, Inc., 329 Or 265, 268, 986 P2d 1157 (1999). ORS 19.245 outlines when an appeal from a stipulated judgment may occur: when specifically provided by the judgment and when an “appeal presents a justiciable controversy.”
Area(s) of Law:- Civil Procedure
State v. Lasheki
Under ORS 161.067(3), “criminal charges based on multiple violations of the same statutory provision will not merge if a ‘sufficient pause’ separates these violations.” Additionally, “a ‘pause’ occurs between two statutory violations only if the defendant’s commission of one violation ends before the second violation begins.” State v. Ortiz-Rico, 303 Or App 78, 85, 462 P3d 741 (2020).
Area(s) of Law:- Criminal Law
State v. Benson
To establish that there was a violation of due process, a defendant must show "there was 'substantial, actual prejudice, ' and the focus of that inquiry is on ‘whether the delay violated our society’s fundamental conceptions of justice, fair play, and decency.” State v. Stokes, 350 Or 44, 64, 248 P3d 953 (2011).
Area(s) of Law:- Criminal Procedure
March 50 summaries
Bowers v. Board of Parole
The party asserting that a matter has become moot bears the burden of demonstrating that a court’s decision no longer has the required practical effect. State v. K.J.B., 362 Or. 777, 786 (2018). This includes establishing that any collateral effects that have been identified either do not exist or are legally insufficient. State v. K.J.B., 362 Or. 777, 786 (2018).
Area(s) of Law:- Civil Procedure
Rohrer v. Oswego Cove, LLC
Under ORS 659.199, a plaintiff may bring a claim if they “reported evidence of unlawful activity and were terminated.” Hall v. State of Oregon, 274 Or App 445, 451, 366 P3d 345 (2015). A common law wrongful termination claim may be brought if ORS 659A.199 does not apply or provide an appropriate remedy.
Area(s) of Law:- Employment Law
State v. Arivett
“[T]he smell of marijuana generally no longer has the significance it once had as a basis for reasonable suspicion, in light of decriminalization. A strong odor can signal the presence of marijuana, but not necessarily the presence in a quantity that is illegal for persons 21 and older to lawfully possess.” State v. T.T., 308 Or. App. 408, 437 (2021).
Area(s) of Law:- Criminal Procedure
State v. Deshaw
Evidence of uncharged acts can be admitted to establish a timeline of events in appropriate circumstances. State v. Grubb, 279 Or App 458, 460, 468, 379 P3d 715, rev den, 360 Or 423 (2016). Admittance of “highly inflammatory” uncharged-misconduct evidence is not harmless if it affected the verdict. State v. Wright, 283 Or App 160, 178, 387 P3d 405 (2015).
Area(s) of Law:- Evidence
State v. K. R. B.
“One circumstance in which we will not and cannot exercise our discretion to correct a plain error is when that error is harmless.” State v. Kerne, 289 Or App 345, 349-50, 410 P3d 369 (2017), rev den, 363 Or 119 (2018).
Area(s) of Law:- Criminal Procedure
State v. Morgan
“Although the state necessarily must prove that the person charged with committing a crime is, in fact, the person who committed the crime, that does not mean that the state is required to prove that a particular person sitting at counsel table with defense counsel is the person who is charged with a crime.” See ORS 132.540.
Area(s) of Law:- Criminal Law
State v. R.L.M.
Under ORS 426.005(1)(f)(B) and for the purposes of a basic-needs civil commitment, the evidence must establish not only that a person’s inability to attend to a basic need risks the person suffering an adverse medical consequence, but also how soon that adverse consequence is likely to occur.
Area(s) of Law:- Evidence
State v. Russell
A trial court must evaluate "the nature of a defendant’s offenses * * * as well as the defendant’s willingness to commit more than a single offense" to decide whether it should impose consecutive sentences under subsection (5)(a). State v. Martinez, 270 Or. App. 423, 429 (2015).
Area(s) of Law:- Sentencing
State v. Shelnutt
“‘The restriction on the possession of firearms by a felon has a well-established, historical, and obvious relationship to public safety. Even under intermediate scrutiny, ORS 166.270 is substantially related to an important governmental objective.’” State v. Beeman, 290 Or App 429, 417 P3d 541, rev den, 363 Or 119 (2018).
Area(s) of Law:- Constitutional Law
State v. Shields
"Under OAR 213-004-0011(1), prior out-of-state convictions are to be included in a defendant’s criminal history only 'if the elements of the offense would have constituted a felony or Class A misdemeanor under Oregon law.'"
Area(s) of Law:- Criminal Law
State v. Zimmerman
The aid-and-abet statute, ORS 161.155, “applies only to conduct prior to or during the commission of a crime”; aid-and-abet theories of criminal liability do not apply after a crime has been committed. State v. Barboe, 253 Or App 367, 375, 290 P3d 833 (2012), rev den, 353 Or 714 (2013). Under ORS 164.015, the theft-by-taking theory requires a defendant to exercise dominion or control and physically move the property of another. State v. Spears, 223 Or App 675, 699, 196 P3d 1037 (2008).
Area(s) of Law:- Criminal Law
Hisey v. Patrick
"The presumption of adversity applies where 'the person claiming the easement by prescription is a stranger to the landowner.'" Wels v. Hippe, 360 Or at 579.
Area(s) of Law:- Property Law
Johnson and Johnson
The standard for a change of circumstances for the purposes of custody modification is: (1) “the custodial parent is no longer competent to care for the child” or (2) the custodial parent’s continued care and custody is “inimical to the child’s welfare.” Merges v. Merges, 94 Or 246, 254, 186 P 36 (1919). The “primary purpose” of this requirement is “to avoid repeated litigation over custody and to provide a stable environment for children.” Ortiz and Ortiz, 310 Or 644, 649, 801 P2d 767 (1990).
Area(s) of Law:- Family Law
State v. Bradley
In State v. Herfurth, 307 Or App 534, 478 P3d 601 (2020), the court allowed the defendant to raise new arguments in his third appeal on the basis of a nonunimaous verdict because the legal landscape in Oregon had changed significantly changed and the defendant raised other claims that were not frivolous in each appeal.
Area(s) of Law:- Criminal Procedure
State v. Burris
"Where the trial court fails to elaborate on the meaning of an element of the charged crime, we have held the arguments of the state at trial combined with the instructions as a whole, can operate together to permit the jury to reach a legally erroneous conclusion." State v. Bistrika, 261 Or. App. 710, 729-30 (2014).
Area(s) of Law:- Criminal Procedure
State v. Goldberg
“One indication of whether a government action intrudes on a person’s privacy right is whether a private individual would offend social and legal norms of behavior by engaging in the same kind of intrusion.” State v. Portrey, 134 Or App 460, 464, 896 P2d 7 (1995).
Area(s) of Law:- Criminal Procedure
State v. Love-Faust
Compelling circumstances are such that viewed as a whole, a reasonable person in defendant’s shoes would feel compelled to reply to an officer’s questions. State v. Dunlap, 215 Or App 46, 57, 168 P3d 295 (2007). The court must ask whether the questioning took place in a “police dominated atmosphere.” State v. Roble-Baker, 340 Or 631, 641, 136 P3d 22 (2006).
Area(s) of Law:- Criminal Procedure
State v. Newton
"[A]s to unanimous verdicts, a trial court’s nonunanimous jury instruction [does] not amount to structural error and [is] harmless beyond a reasonable doubt." State v. Flores Ramos, 367 Or. 292, 319, 334, 478 P.3d 515 (2020).
Area(s) of Law:- Criminal Procedure
State v. Scott
"[With]... the burden on the beneficiary of the error... before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24 (1967).
Area(s) of Law:- Criminal Procedure
Thompson v. Marshall
Under ORS 19.415(2), “the erroneous grant of a directed verdict on a claim does not categorically require reversal; if the verdict on the claims that were submitted to the jury demonstrates that the jury necessarily would have rejected one or more elements of the claim…. then [the court] will not deem the…directed verdict to have substantially affected the plaintiff’s rights.” Yoshida’s Inc. v. Dunn Carney Allen Higgens & Tongue, 272 Or App 436, 458, 356 P3d 121 (2015), rev den, 358 Or 794 (2016).
Area(s) of Law:- Property Law
A. K. F. v. Burdette
A person is substantially limited regarding a major life activity if the impairment is restrictive “as compared to most people in the general population.” ORS 659A.104(3).
Area(s) of Law:- Elder Law
Carrillo v. SAIF
A combined condition involves the combination of two separate conditions. Brown v. SAIF, 361 Or 241, 255-56, 391 P3d 773 (2017); Multifoods Specialty Distribution v. McAtee, 333 Or 629, 634, 43 P3d 1101 (2002).
Area(s) of Law:- Workers Compensation
Sky Lakes Medical Center v. Dept. of Human Services
A court must defer to an agency’s interpretation of its own administrative rule if the interpretation is “plausible” and not “inconsistent with the wording of the rule itself, or with the rule’s context, or with any other source of law.” Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994).
Area(s) of Law:- Administrative Law
Sova v. Vital Auto Brokers, LLC
Certification of title to an automobile is prima facie evidence of rightful ownership. ORS 802.240. If title is established, the burden is on the proponent of title to rebut the prima facie evidence. Brunk v. Horton, 280 Or 239, 242, 570 P2d 382 (1977).
Area(s) of Law:- Contract Law
State v. Chitwood
“[T]he ease with which any error could have been avoided or corrected should be a significant factor in an appellate court’s decision whether to exercise its discretion to correct a plain, but unpreserved, error.” State v. Inman, 275 Or App 920, 935, 366 P3d 721 (2015).
Area(s) of Law:- Criminal Procedure
State v. Gassner
There may be no structural error when a trial court fails to instruct a jury that a nonunanimous verdict is allowable when such error was harmless beyond a reasonable doubt. State v. Flores Ramos, 367 Or 292, 334, 478 P3d 515 (2020).
Area(s) of Law:- Civil Procedure
State v. Heaton
For a choice-of-evils instruction to be presented to the jury, a defendant must show: “(1) his conduct was necessary to avoid a threatened injury; (2) the threatened injury was imminent; and (3) it was reasonable for him to believe that the need to avoid that injury was greater than the need to avoid the injury that the statute that he was found to have violated seeks to prevent.” State v. Boldt, 116 Or App 480, 483, 841 P2d 1196 (1992). Under ORS 161.200(1)(a), "necessary" may be established where there is no reasonable alternative but for a defendant to commit the crime. State v. Paul, 289 Or App 408, 409, 410 P3d 378 (2017).
Area(s) of Law:- Criminal Law
State v. Heine
When the State elects to provide a defendant with a jury trial, then the jury trial must comport with the Due Process Clause. Evitts v. Lucey, 469 US 387, 105 S Ct 830, 83 L Ed 2d 821 1985).
Area(s) of Law:- Criminal Procedure
State v. Lara-Vasquez
A court has no discretion regarding a Measure 11 sentence other than the consideration that a sentence must not be cruel and unusual and must be proportioned to the offense. State v. Rodriguez/Buck, 347 Or 46, 52-57, 217 P3d 659 (2009). A sentence may be cruel and unusual if it “shock[s] the moral sense” of a reasonable person. Id. at 57-58.
Area(s) of Law:- Criminal Procedure
State v. Lara-Vasquez
A punishment which is so disproportionate to the offense as to “shock the moral sense of reasonable people” violates Article I, section 16. State v. Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659 (2009). Courts consider three factors when determining disproportionality: (1) severity of penalty versus gravity of offense; (2) “penalties imposed for other, related crimes”; and (3) criminal history of the defendant. Id.
Area(s) of Law:- Sentencing
State v. Mead
Sexual contact as required for a conviction under ORS 163.427(1)(a)(A) means “any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.” ORS 163.305(6).
Area(s) of Law:- Criminal Law
State v. Ramirez
The harmless error analysis focuses on “the possible influence of the error on the verdict rendered, not whether this court, sitting as a fact-finder, would regard the evidence of guilt as substantial and compelling.” State v. Davis, 336 Or 19, 32, 32 P3d 1111 (2003).
Area(s) of Law:- Evidence
State v. Rashad
An evidentiary error is harmless where the trial court’s verdict clearly establishes unaffected credibility determinations. State v. Reed, 299 Or App 675, 694, 452 P3d 995 (2019), rev den, 366 or 382 (2020).
Area(s) of Law:- Evidence
State v. Stockton
Other misconduct evidence, to be relevant to a defendant’s motive, must “show a common motive among the charged acts and the acts against former partners.” State v. Tena, 362 Or 514, 523-24, 412 P3d 175 (2018).
Area(s) of Law:- Evidence
State v. Tennant
“[A]cquiescence occurs when an individual is not given a reasonable opportunity to choose to consent.” State v. Berg, 223 Or App 387, 392, 196 P3d 547 (2008), adh’d to as modified on recons, 28 Or App 754, 208 P3d 1006, rev den, 346 Or 361 (2009). Additionally, acquiescence may be clear when “a search will occur regardless or whether consent is given.” Id.
Area(s) of Law:- Constitutional Law
T. W. v. C. L. K.
To “avoid affecting the substantial rights of a parent, a juvenile court cannot base its jurisdictional decision on facts that depart from the petition or jurisdictional judgment when neither the petition nor the jurisdictional judgment would put a reasonable parent on notice of what the parent must do to prevent the state from asserting or continuing jurisdiction over the child.” Dept of Human Services v. J.R.L., 256 Or App 437, 448 (2013).
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. D.M.
Under ORS 419B.476(2)(a), a child’s permanency plan may be changed from reunification to adoption when a parent fails to make “sufficient progress” and DHS reunification efforts are “reasonable.”
Area(s) of Law:- Juvenile Law
Laux v. Akebono Brake Corp.
"Evidence must be present that asbestos is contained in the defendant’s product, not just the industry as a whole." See, e.g., Austin, v. A.J. Zinda Co., 196 Or App 262, 269-270, 101 P3d 918 (2004), rev den, 338 Or 374 (2005).
Area(s) of Law:- Civil Procedure
State v. Cano
OEC 609, which allows the impeachment of a witness by certain criminal convictions, prohibits balancing under OEC 403. See, e.g., State v. Venegas, 124 Or App 253, 256; State v. King, 307 Or 332, 337 (2021); State v. Dick, 91 Or App 294, 298-99 (1988).
Area(s) of Law:- Evidence
Dunn v. Board of Parole
"Collateral consequences may prevent a dispute from becoming moot in certain instances." Barnes v. Thompson, 159 Or App 383, 386, 977 P2d 431, rev den, 329 Or 447 (1999).
Area(s) of Law:- Parole and Post-Prison Supervision
Lane v. Marion County D.A.'s Office
The Supreme Court identified three criteria to “guide the determination of whether a decision-making process was quasi-judicial, (1) Was the process, once begun, bound to result in a decision? (2) Was the decision-maker bound to apply pre-existing criteria to concrete facts? (3) Was the decision directed at a closely circumscribed factual situation or a relatively small number of persons?” Hicks v. Cent. Point Sch. Dist., 270 Or App at 544 (2015) (citing Strawberry Hill 4 Wheelers v. Board of Comm’rs, 287 Or at 602-03).
Area(s) of Law:- Civil Procedure
Lobo v. Cain
A post-conviction court must assess whether, the failure to include within the amended petition, petitioner’s additional claims, “counsel has failed to exercise reasonable professional skill and judgment.” Bogle v. State of Oregon, 363 Or 455, 473, 423 P3d 715 (2018).
Area(s) of Law:- Post-Conviction Relief
Oregon Racing, Inc. v. Oregon State Lottery
Under ORS 167.117(21)(b), the terms "house bank" and "house income" encompass their ordinary meanings. Operating a "house bank" includes keeping, selling, and redeeming chips, and "house income" includes income related to securing the premises and soliciting players.
Area(s) of Law:- Business Law
Samson v. Brown
ORS 137.635(1) provides, “The person shall not be eligible for any reduction in sentence pursuant to ORS 421.120 or for any reduction in the term of incarceration pursuant to ORS 421.121.”
Area(s) of Law:- Habeas Corpus
State of Oregon v. Lira
Under Article I, Section 9 and State v. Fair, 353 Or 588, 302 P3d 417 (2013), the “material witness” exception to the warrant requirement does not justify seizure unless the seizure is “reasonably necessary to verify the identity of a material witness or obtain an account of a crime.”
Area(s) of Law:- Criminal Procedure
State V. Bock 310 Or App 329 (2021)
The plain view doctrine does not apply to digital searches because “electronic devices contain ‘unprecedented’ amounts of personal information, and, unlike physical searches, searches of electronic devices require examination of at least some information that is beyond the scope of the warrant.” State v. Mansor, 363 Or 185, 208, 220, 421 P3d 323 (2018).
Area(s) of Law:- Criminal Procedure
State v. Bolton
Under OEC 702, expert evidence is “scientific” when: (1) it is expressly presented to the jury as scientifically grounded; (2) "draws its convincing force from some principle of science"; or (3) "implies a grounding in methods and procedures of science" and is characterized as having the "persuasive appeal of science.” State v. Henley, 363 Or 284, 422 P3d 217 (2018).
Area(s) of Law:- Evidence
State v. Hernandez-Sanchez
A “true Brady violation” occurs when undisclosed evidence is “favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 US 263, 281-82, 119 S Ct 1936, 144 L Ed 2d 286 (1999).
Area(s) of Law:- Evidence
State v. L.D.
A person with a mental illness is a person who is a danger to themselves because of their mental disorder. ORS 426.005(1)(f)(A).
Area(s) of Law:- Civil Commitment
State v. Parkerson
“[I]f there is sufficient evidence to charge a witness of the crime with which a defendant is charged, then the trial court ‘may determine, as a matter of law, that the witness is an accomplice.” State v. Torres, 207 Or App 335, 359-60, 142 P3d 99 (2006) (quoting Oatney, 335 Or at 284)).
Area(s) of Law:- Evidence
April 37 summaries
State v. Gilbreath
ORS 163.411 provides that a person commits unlawful sexual penetration in the first degree if the person penetrates the vagina, anus, or penis of another with any object other than the penis or mouth no “sexual or injurious intent” is required.
Area(s) of Law:- Criminal Law
Banerjee and Fiorillo
ORS 19.270(1) provides that the Court of Appeals only has jurisdiction to hear a case when appellant meets the time and manner requirements of ORS 19.240, 19.250, and 19.255. Generally, this means the notice of appeal is filed and served on the parties within 30 days of the entry of the judgment appealed.
Area(s) of Law:- Appellate Procedure
Burns v. American Family Mutual Ins.
An insurer is liable for arbitration-related attorney fees under ORS 742.061(1) if the insurer refuses to pay the damages awarded during binding arbitration.
Area(s) of Law:- Insurance Law
Department of Human Services v. K.S.S.
To change a permanency plan from reunification to adoption, “the proponent of the change must prove that, despite DHS’s reasonable efforts to reunify the parent with his or her child, the parent has not made sufficient progress for the ward to safely return home.” Dept. of Human Services v. C. E., 288 Or App 649, 656, 406 P3d 211 (2017) (internal quotation marks omitted); ORS 419B.476(2)(a).
Area(s) of Law:- Family Law
Dept. of Human Services v. C. C.
A child’s welfare is at risk, and thus the juvenile court has jurisdiction, if the child is unprotected from circumstances that present a “current threat of serious loss or injury and there is a reasonable likelihood that the threat will be realized.” Dept. of Human Services v. C. J. T., 258 Or App 57, 61, 308 P3d 307 (2013). Whether an issue has been preserved turns on “whether the policies underlying the preservation rule have been adequately met.” State v. Parkins, 346 Or 333, 341, 221 P3d 262 (2009).
Area(s) of Law:- Juvenile Law
McCoin v. PSRB
Under ORS 161.341, a person may be discharged from the board’s jurisdiction even if the person has a mental disease or defect, if that person “no longer presents a substantial danger to others.”
Area(s) of Law:- Civil Commitment
McMullin v. Amsberry
To establish a violation of adequate counsel it must be shown that counsel “failed to exercise reasonable professional skill and judgement,” and second, 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
Royal Blue Organics v. City of Springfield
In reviewing whether LUBA’s decision was “unlawful in substance,” ORS 197.850(9)(a), we review the pertinent city code provisions to determine whether LUBA interpreted them consistently with the ordinary principles of statutory, or code, construction.
Area(s) of Law:- Land Use
State of Oregon v. Phillip Mark Gregg
Non-unanimous jury instructions are plain error. However, when the jury poll is unanimous, the error is considered to be “harmless beyond a reasonable doubt.” State v. Ramos, 367 Or 292, 320 (2020).
Area(s) of Law:- Criminal Law
State v. Johns
A court’s acceptance of a nonunanimous verdict is plainly erroneous and a court may use its discretion to correct such error. State v. Ulery, 366 Or 500, 464 P3d 1123 (2020).
Area(s) of Law:- Criminal Procedure
State v. Mock
Under Article I, Section 9 of the Oregon Constitution, police cannot obtain reasonable suspicion to conduct a search during a traffic stop unless their inquiry questions are reasonably related to the initial infraction; without reasonable suspicion, subsequently collected evidence must be suppressed.
Area(s) of Law:- Criminal Procedure
State v. Paye
Under ORS 161.067, when a conviction is predicated on an ongoing course of conduct, other charges involving the same conduct in the same period must merge unless otherwise barred by statute.
Area(s) of Law:- Criminal Procedure
State v. Pryor
Pursuant ORS 137.172, a trial court retains authority after entry of judgment to modify the judgment in order to remedy any clerical errors or erroneous terms. State v. Johnson, 242 Or App 279, 285, 255 P3d 547, rev den, 350 Or 530 (2011).
Area(s) of Law:- Criminal Procedure
State v. Ralston
When determining whether a defendant was denied a speedy trial under Article I, Section 10 of the Oregon Constitution, courts must consider three factors: (1) the length of the delay; (2) the reasons for the delay; and (3) the prejudice to the defendant. State v. Emery, 318 Or 460, 472, 869 P2d 859 (1994).
Area(s) of Law:- Constitutional Law
State v. Tat
An error does not qualify as plain error if the record contains competing inferences that the party may have had a strategic purpose for not objecting to sworn testimony.
Area(s) of Law:- Criminal Procedure
Bruntz-Ferguson v. Liberty Mutual Ins.
Under the work-connection test, in order to be compensable, an injury must “arise out of” and be “in the course of” employment. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994).
Area(s) of Law:- Employment Law
Department of Human Services v. W.M.
Under ORS 419B.476(1), when a parent’s ability to obtain required training for reunification with a child is interrupted by the COVID pandemic, DHS’s “reasonable efforts” to reunify must entitle parents to “efforts that extend long enough to allow them a reasonable opportunity to become minimally adequate parents.”
Area(s) of Law:- Juvenile Law
Glenn v. Glenn
Pursuant ORS 105.615, title vests in a cotenant when the cotenant has maintained continuous adverse possession of a property for 20 years and has satisfied all property taxes accrued against the property during that time.
Area(s) of Law:- Property Law
Jenkins v. Cain
“For claims of ineffective counsel based on failure to investigate, establishing the performance prong is a fact specific endeavor, which must consider the ‘context of the legal proceeding at issue.’” Snyder v. Amsberry, 306 Or. App. 439, 449-450 (2020).
Area(s) of Law:- Civil Procedure
State v. Brass
Pursuant ORS 137.123(5)(b), a court can sentence a person consecutively for an offense if the crime caused or threatened loss, harm, or injury to a different victim than was harmed or threatened by other offenses committed during a single criminal episode.
Area(s) of Law:- Criminal Procedure
State v. C.P.
Under ORS 427.245(1), “for a person held under a warrant of detention, the hearing must occur within seven judicial days after the court issues a citation.”
Area(s) of Law:- Civil Commitment
State v. Payne
A passenger in a traffic stop is lawfully seized when there is "something more” than a mere traffic violation. State v. T.T., 308 Or App 408, 418, 479 P3d 598 (2021). Safety concerns are a legitimate justification for seizure when the totality of circumstances show: (1) there are “specific and articulable facts” that establish a “reasonable suspicion” that the person poses an “immediate threat to the officer’s or another person’s safety,” and (2) the officer’s actions were reasonable. State v. Madden, 363 Or 703, 713, 427 P3d 157 (2018).
Area(s) of Law:- Criminal Procedure
State v. Peek
Under State v. Sholedice/Smith, 364 Or 146, 162 (2018), removing “property obstructing a public thoroughfare” outside the owner’s presence does not interfere with the owner’s property rights to constitute a seizure. Under State v. Faulkner, 102 Or App 417, 420-21 (1990), using a flashlight to see what one could otherwise see in daylight does not constitute a search.
Area(s) of Law:- Criminal Procedure
State v. Robinson
“Under Article I, section 9, ‘an extension of a traffic stop to conduct a criminal investigation must be justified by reasonable suspicion of criminal activity.’ ” State v. Arivett, 309 Or App 480, 485, ___ P3d ___ (2021).
Area(s) of Law:- Criminal Law
Department of Human Services v. D.C.B.
“Placement in foster care” within the meaning of the Interstate Compact on the Placement of Children (ICPC) means “living arrangements that are substitutes for parental care.” Therefore, ICPC mandates are inapplicable when a child resides with their parent.
Area(s) of Law:- Juvenile Law
Gladd v. Lucarelli
A FAPA restraining order is available upon a showing that (1) the Petitioner has been the victim of abuse committed by the Respondent within the 180 days preceding the filing of the petition, (2) there is an imminent danger of further abuse to the Petitioner, and (3) the Respondent represents a credible threat to the physical safety of the Petitioner or the Petitioner’s child. ORS 107.718(1)
Area(s) of Law:- Criminal Procedure
Hickey v. Scott
Under ORS 90.394(3), “a notice of termination for nonpayment of rent must specify the dollar amount that the landlord claims is necessary to cure[,]” not the actual amount owed.
Area(s) of Law:- Landlord Tenant
Lincoln Loan Co. v. Estate of George Geppert
Under ORS 88.120(c), foreclosure of a mortgage is allowed if no lien or right of a third party has attached to the property after the expiration of the 10-year period.
Area(s) of Law:- Property Law
State v. Etzel
Scientific knowledge cannot assist the trier of fact if it is not 'scientifically valid.' State v. O'Key, 321 Ore. 285, 293, 899 P2d 663 (1995).
Area(s) of Law:- Criminal Law
State v. Etzel
Under OEC 702, whenever scientific or other specialized knowledge is used to assist a jury in understanding evidence or determining a fact in issue, a qualified expert witness may testify thereto. However, only scientifically valid knowledge can assist the jury, therefore, when evidence is scientific in nature, the state must “comply with the standards for admission of scientific evidence.” State v. Henley, 363 Or 284, 422 P3d 217 (2018).
Area(s) of Law:- Evidence
State v. Henley
When evaluating the scientific validity of testimony under OEC 702, some subject matter may require a more flexible evaluation, utilizing criteria like 1) whether the testimony is generally accepted in the field, 2) whether there is supporting literature for the testimony, and 3) whether the testimony is inordinately novel or subjective. State v. Perry, 347 Or 110, 122, 218 P3d 95 (2009).
Area(s) of Law:- Criminal Law
State v. Hooper
“[T]he trial court is required to instruct the jury that, to convict, it must determine that the state has proved beyond a reasonable doubt that [the] defendant acted with a culpable mental state.” State v. Gray, 261 Or App 121, 322 P3d 1094 (2014).
Area(s) of Law:- Criminal Procedure
State v. Jasperse
OEC 403 allows relevant evidence to be excluded if its probative value is substantially outweighed by the danger of confusion of the issues or needless presentation of cumulative evidence.
Area(s) of Law:- Criminal Law
State v. Slater
Under State v. Mays, 294 Or App 229 (2018), the reliance on replacement cost to establish the value of stolen items must be supported by evidence of a nonexistent or insufficiently reliable marketplace to “provide a valuation.”
Area(s) of Law:- Criminal Law
State v. Harris
A conviction of reckless endangerment of another person requires: (1) the defendant to have carried out an act; (2) the defendant’s actions created a “substantial risk of serious physical injury to another person;” (3) the defendant’s actions were a gross deviation from a sensible standard of care; (4) the defendant was aware of the risk; and (5) the defendant’s actions were a conscious disregard of the risk. State v. Nelson, 224 Or App 398, 402-03, 198 P3d 439 (2008).
Area(s) of Law:- Criminal Law
State v. Moore
The reasonable suspicion standard “is met when an officer can point to specific and articulable facts that give rise to a reasonable inference that the defendant committed or was about to commit a specific crime or type of crime.” State v. Maciel-Figueroa, 361 Or 163, 165, 389 P3d 1121 (2017).
Area(s) of Law:- Criminal Procedure
State v. Oxford
The scope of the consent defines the scope of the intrusion under Article I, section 9, of the Oregon Constitution. State v. Wyman, 59 Or App 542, 545, 651 P2d 195 (1982). Consent to administer emergency aid does not necessarily give an officer consent to remain or reenter premises once that function has ceased, and consent to enter initially for one purpose does not mean that different officers can enter for a different purpose. See State v. Will, 131 Or App 498, 503, 885 P2d 715 (1994).
Area(s) of Law:- Criminal Procedure
May 46 summaries
Angeney v. DMV
Under ORS 813.410(6), a suspension is valid where a person committed a DUII, refused a breath test after being “informed under ORS 813.100 of rights and consequences as described under ORS 813.130,” and the person was given written notice of intent to suspend.
Area(s) of Law:- Administrative Law
Allied Structural v. CCB
“Except as provided in subsections (4) and (5) of this section, any person who violates any provision of this chapter or any rule adopted by the Construction Contractors Board shall forfeit and pay into the General Fund of the State Treasury a civil penalty in an amount determined by the board of not more than $5,000 for each offense.” ORS 701.992(1).
Area(s) of Law:- Administrative Law
Allman v. Allman
ORS 205.460 is “not available against a person lawfully conducting business as [a]n institution, a national bank, an out-of-state bank or an extranational institution . . . a savings bank, a federal savings bank or a subsidiary of an entity described in this paragraph[.]” ORS 205.460(7)(a).
Area(s) of Law:- Property Law
Dept. of Human Services v. H. C. W.
A Tribe’s right to define its own membership for Tribal purposes has long been recognized as central to its existence as an independent political community. Santa Clara Pueblo v. Martinez, 436 US 49, 72 n 32, 98 S Ct 1670, 56 L Ed 2d 106 (1978).
Area(s) of Law:- Indian Law
Hernandez v. Catholic Health Initiatives
Anyone qualifying as a "person" under ORS 659A.001(9) may be an aider or abettor of an unlawful employment practice in a way that subjects them to liability under ORS 659A.030(1)(g).
Area(s) of Law:- Employment Law
State v. Acosta
The identity of a declarant regarding an out-of-court statement is an issue of conditional relevance evaluated under the standards for identity as a condition precedent to admissibility under OEC 901. If the party presenting an out-of-court statement as evidence presents a prima facie case that their opponent is the declarant, the court must admit and instruct the jury to consider that evidence only if the jury determines that the opponent was the declarant. State v. Park, 140 Or App 507, 511, 916 P2d 334, rev den, 323 Or 690 (1996).
Area(s) of Law:- Evidence
State v. Bledsoe
The crime of interference with a peace officer under ORS 162.247(1)(b) states that a person commits the crime by knowingly “refus[ing] to obey a lawful order” given by an officer. The exception under ORS 162.247(3)(b) states that passive resistance “does not apply.”
Area(s) of Law:- Criminal Law
State v. Escudero
Absent an independent constitutional justification, a drug-detecting dog generally cannot, consistent with Article I, section 9, sniff a car for drugs during a traffic stop. State v. Soto-Navarro, 309 Or. App. 218, 223 (2021).
Area(s) of Law:- Constitutional Law
State v. Greinier
“[A] person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose.” ORS 161.209.
Area(s) of Law:- Criminal Law
State v. Hughes
Under 803.540, the presence of single, dealer vehicle plate on the rear of a vehicle does not establish an objectively reasonable belief that a vehicle is being operated in violation of the law and fails to establish probable cause; when “no lawful basis” for a traffic stop exists, evidence collected must be suppressed.
Area(s) of Law:- Criminal Procedure
State v. Johnson
According to ORS 136.425(2), the state must corroborate a confession with “some other proof” that “the jury could draw an inference that tends to prove: (1) the injury or harm specified in the crime occurred and (2) that this injury or harm was caused by someone’s criminal activity.” State v. Moreno, 276 Or App 102, 108, 366 P3d 839, rev den, 359 Or 525, cert den, 137 S Ct 342 (2016).
Area(s) of Law:- Criminal Law
State v. Scott
Under State v. Morales, 367 Or 222, 476 P3d 954 (2020), “when a non-spouse third party posts security for the benefit of a defendant, the security funds cannot be considered when determining a defendant’s ability to pay attorney fees unless the record demonstrates that the deposit carried a donative intent or was actually of the defendant’s own money.”
Area(s) of Law:- Criminal Law
State v. Shevyakov
Asking for consent to search, including requesting that a suspect perform FSTs, constitutes impermissible interrogation unless the law precludes the use of the person’s refusal against that person at trial.
Area(s) of Law:- Criminal Law
Anderson v. Sullivan
Although a court may deny fees on fees in connection with unsuccessful aspects of a fee request, it is legally incorrect to say that a party "cannot" recover any fees on fees unless all of the requested fees were awarded.
Area(s) of Law:- Landlord Tenant
Box v. Oregon State Police
Under ORS 30.265(6)(f), Apparent Authority Immunity “applies to public actors who, acting without bad faith or malice, rely on their plausible interpretation of laws that turn out to be unconstitutional, invalid, or inapplicable” which does not include “preshooting tactical decisions” and “OSP’s preshooting supervisory decisions.”
Area(s) of Law:- Tort Law
E.H. v. Byrne
“A brief period of consensual kissing” does not establish a “sexually intimate relationship” for the purposes of a sexual abuse protective order. Under ORS 163.765(1), whether a person reasonably fears for their personal safety is determined by examining the totality of the circumstances and does not require multiple contacts between the parties.
Area(s) of Law:- Civil Law
Housing Land Advocates v. LCDC
Under OAR 660-015-0000(14), the totality of the circumstances may be considered when determining whether a local government has taken steps to “reasonably accommodate” housing needs within an existing urban growth boundary.
Area(s) of Law:- Land Use
Murdoch v. DMV
Under ORS 813.100(1), “an officer need not inform a driver of his rights and consequences before asking him to submit to [a breath] test.” Under Hays v. DMV 230 Or App 559 (2009), only the DMV may modify the rights and consequences to be read to drivers in enforcing implied consent.
Area(s) of Law:- Administrative Law
Purdy v. Deere & Co./Norton
Not all instructional errors mandate reversal. An erroneous jury instruction is a reversible error only if, considering the record as a whole, it substantially affects a right of the parties by enabling the jury to reach an erroneous result. Wallach v. Allstate, 344 Or 314, 180 P3d 19 (2008).
Area(s) of Law:- Civil Procedure
Reed v. Kelly
To prevail on a post-conviction claim based on the right to adequate assistance of counsel, a petitioner must establish, by a preponderance of the evidence, that counsel failed to exercise reasonable professional skill and judgment, and as a result, the petitioner suffered prejudice because of counsel’s inadequacy. Delgado-Juarez v. Cain, 307 Or App 83, 475 P3d 883 (2020).
Area(s) of Law:- Post-Conviction Relief
State v. Berglund
A "court's sentencing authority exists solely by virtue of a statutory grant of power and therefore cannot be exercised in any manner not specifically authorized." State v. Coventry, 290 Or App. 463, 464 (2018). However, a claim is not precluded by this rule when a proceeding for violating a condition of probation is initiated “during the probation period.” State v. Ludwig, 218 Or 483, 492 (1959).
Area(s) of Law:- Criminal Procedure
State v. Damper
Receipt of a nonunanimous verdict is plain error that an appellate court should exercise its discretion to review, it is an error that cannot be found harmless.
Area(s) of Law:- Criminal Procedure
State v. Phillips
Under OEC 404(3) “evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith,” but allows such evidence for reasons such as proof of motive, the proponent bears the burden of showing relevance.
Area(s) of Law:- Evidence
State v. Tinoco-Camarena
Under OEC 404(3), “evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith,” but allows such evidence for reasons such as proof of intent.
Area(s) of Law:- Evidence
A.J.T v. Croft
Following a contested hearing, under the FAPA, the record must include evidence (1) of past abuse committed by the respondent (within 180 days of filing), (2) that the petitioner reasonably fears for her physical safety, and (3) that the respondent represents a credible threat to the petitioner’s safety or the safety of her child. ORS 107.716(3).
Area(s) of Law:- Family Abuse Prevention Act
Appleyard v. Port of Portland
“[A]n invitee’s failure to exercise reasonable care for his or her own safety may be the basis of a comparative-fault defense if the invitee’s negligence relates and contributes to the harm or risk of harm created by the defendant’s negligence.” Appleyard v. Port of Portland, 311 Or App 498 (2021).
Area(s) of Law:- Tort Law
Luttropp and Luttropp
“Social Security benefits are not marital property and are not subject to outright division in dissolution actions,” because, “federal law preempts any state law that authorizes the assignment or transfer” of those benefits. Herald and Steadman, 355 Or 104, 112, 322 P3d 546 (2014), cert den, 574 US 1073 (2015).
Area(s) of Law:- Family Law
Lyons v. Beeman
The parol evidence rule, ORS 147.740 explains that “a binding, completely integrated, written agreement supersedes or discharges all agreements, written or oral, that were made before the completely integrated agreement, to the extent that the prior agreements are within the scope of the completely integrated agreement.”
Area(s) of Law:- Contract Law
State v. Allen
Under OEC 403, although “needless presentation of cumulative evidence” may be excluded if its probative value is substantially outweighed by the threat of prejudice, a defendant’s stipulation to “particular facts does not automatically render all other evidence touching on the same facts cumulative.”
Area(s) of Law:- Evidence
State v. Busch
No error exists if there are adequate grounds in the record to support the reliability of statements admitted under the domestic violence hearsay exception. State v. Wilcox, 180 Or App 557, 562, 43 P3d 1182, rev den, 334 Or 632 (2002).
Area(s) of Law:- Evidence
State v. McClour
In order to survive an MJOA, evidence must be present so that the factfinder “could reasonably infer that the [stolen item] possessed ‘some value,’ the minimum needed to define it as ‘property’ ” for purposes of third-degree theft.” State v. Waterhouse, 359 Or 351, 361-62, 373 P3d 131 (2016).
Area(s) of Law:- Criminal Procedure
State v. Shaw
A defendant’s possession of a methamphetamine pipe, without more, is insufficient to support probable cause for an arrest for possession of methamphetamine. State v. Sunderman, 304 Or App 329, 467 P3d 52 (2020).
Area(s) of Law:- Criminal Procedure
State v. Stephens
Because a blood draw is a search for purposes of the Fourth Amendment, a warrantless blood draw may only be conducted if an exception to the warrant requirement applies. An exigency exception exists when BAC evidence is dissipating and some factor creates pressing health, safety, or law enforcement needs that necessarily take priority over a warrant application. Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019).
Area(s) of Law:- Criminal Procedure
State v. Taplin
Privacy is limited within the context of a jail cell. See State v. Lien/Wilverding, 364 Or 750, 760, 441 P3d 185 (2019). “[P]rivacy interests can be recognized only by their association with a private place where the claimant has the right to exclude others.” State v. Cromb, 220 Or App 315, 325, 185 P3d 1120, rev den, 345 Or 381 (2008)
State v. Trenary-Brown
The “failure to give a concurrence instruction is not harmless when, given the evidence and the parties’ theories, jurors could have based their verdicts on different occurrences.” State v. Teagues, 281 Or App 182, 194, 383 P3d 320 (2016).
Area(s) of Law:- Appellate Procedure
Ceaser v. Dept. of Human Services
Under ORS 183.310 to 183.690, “[r]eview of a contested case shall be confined to the record, and the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion.”
Area(s) of Law:- Administrative Law
Much v. Doe
“An application for an order is a motion. Every motion, unless made during trial, shall be in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” ORCP 14.
Area(s) of Law:- Civil Procedure
State v. Jones
Under ORS 138.105(5)(a) and (b) the appellate court can only review a conviction when (1) “the trial court’s adverse determination of a pretrial motion reserved a conditional plea of guilty or no contest under ORS 135.335” and (2) “[if] the trial court erred by not merging determinations of guilt of two or more offenses, unless the entry of separate convictions results from an agreement between the state and the defendant.”
Area(s) of Law:- Appellate Procedure
State v. McIntyre
Police unlawfully expanded the scope of the traffic stop even though they did not unlawfully extend duration, this case is analogous to State v. Hallam, 307 Or App 796 (2020).
Area(s) of Law:- Evidence
State v. Miller
When there is no direct evidence of substantial pain, the trial court must decide whether the evidence would allow a rational jury to reasonably conclude that the victim experienced considerable pain and whether the duration of such pain was more than short-lived. State v. Guzman, 276 Or App 208, 215, 366 P3d 816 (2016).
Area(s) of Law:- Criminal Law
State v. Modrzejewski
Under Article VII (Amended), section 3, of the Oregon Constitution, the Court can determine what judgment should have been entered and remand with instructions to enter a judgment for a different conviction.
Area(s) of Law:- Criminal Law
State v. Payton
The Oregon Supreme Court decided in State v. Henderson that “because the defendant developed the intent to commit an additional crime—and did commit an additional crime—while unlawfully present in the house” the defendant was guilty of first-degree burglary. 366 Or 14, 455 P3d 503, (2019).
Area(s) of Law:- Criminal Law
State v. Tharp
“[A]n inference cannot be "supported by mere speculation" but "must be reasonable, based on the record.” See Aguirre-Rodriguez II, 367 Or. at 623
Area(s) of Law:- Criminal Law
State v. Vinson
For accomplice liability to attach, the defendant (1) must have the requisite mens rea and (2) must perform the requisite actus reus. The Court determined the evidence presented did not prove either intent or the requisite action needed to establish guilt as an accomplice.
Area(s) of Law:- Criminal Law
State v. Yaeger
Under Article I, section 12 of the Oregon Constitution and the Fifth Amendment, persons on Post Prison Supervision (PPS) maintain the right against self-incrimination; under Article I, section 9 of the Oregon Constitution and the Fourth Amendment, a person on PPS who “invokes a constitutional right” may be subject to a PPS violation, “but that does not obviate any constitutional right” to voluntary consent standards.
Area(s) of Law:- Criminal Procedure
Ungerman and Ungerman
A parent seeking to change custody must demonstrate that since the original judgment, circumstances relevant to the proper care of the child have changed and that it would be in the child’s best interest to change custody. The relevant circumstances must be material and have “injuriously affected” the child or have “affected the custodial parent’s ‘ability or inclination to care for the child in the best possible manner.’” Botofan-Miller and Miller, 365 Or 504, 520, 446 P3d 1280 (2019) (quoting Boldt and Boldt, 344 Or 1, 9, 176 P3d 388 (2008)).
Area(s) of Law:- Family Law
June 50 summaries
State v. Craigen
Questioning a defendant, outside of counsel, about new criminal conduct is not prohibited by Article I, section 11 when that conduct is: (1) different in nature from pending charges, (2) separated by a substantial amount of time from the pending charges, and (3) investigated by different officers than those that investigated the criminal activity responsible for the pending charges. State v. Craigen, 295 Or App 17, 432 P3d 274 (2018).
Area(s) of Law:- Criminal Procedure
State v. Rodriguez-Aquino
Confessions are presumptively involuntary and the burden lies with the interrogator to prove, by a preponderance of the evidence, that a defendant’s will was not overcome by the inducement held out by the interrogator. State v. Vasquez-Santiago, 301 Or App 90, 106, 456 P3d 270 (2019); State v. Powell, 352 Or 210, 222, 282 P3d 845 (2012).
Area(s) of Law:- Criminal Procedure
Edwards v. Cavenham Forest Industries
Compensation may be recovered for medical services for conditions caused in material part by the original injury or for conditions consequential to the original injury, where the original injury is the major contributing cause of the consequential condition. ORS 656.245(1)(a).
Area(s) of Law:- Workers Compensation
Hercenberger v. Hercenberger
ORS 33.105(1) provides several options for a court to impose remedial sanctions. If a trial court has other lawful means to enforce a judgment, such as those provided by ORS 33.105(1)(f), any error in enforcing the judgment in the manner it chose is therefore harmless.
Area(s) of Law:- Civil Law
MAT Inc. v. American Tower Asset Sub, LLC.
Evidence of privileged communications pertaining to alleged fraudulent concealment meets the threshold provided by State v. Bray. 281 Or App 584, 616, 383 P3d 883 (2016), aff'd 363 Or 226, 422 P3d 250 (2018).
Area(s) of Law:- Contract Law
Sause and Schnitzer
Under ORS 109.239 (1977), amended by Or Laws 2017, ch 651, § 4, “a mere genetic connection that a gamete donor has to a resulting child does not, in its own right, confer parental status.”
Area(s) of Law:- Family Law
State v. C. A. M.-D.
Restitution is appropriate when the state presents evidence that the criminal activities have caused economic damages. State v. McClelland, 278 Or App 138, 141, 372 P3d 614, rev den, 360 Or 423 (2016). A causal connection requires that the defendant’s criminal conduct be a “but for” cause of the victim’s damages and that the damages were a reasonably foreseeable result of the defendant’s criminal conduct. State v. Emerine, 308 Or App 211, 216-17, 480 P3d 308 (2020).
Area(s) of Law:- Criminal Law
State v. Phillips
Pursuant to ORS 144.791, the trial court must obtain a PSI before sentencing a defendant for a felony sexual offense. State v. Biles, 87 Or 63, 68, 597 P2d 808 (1979).
Area(s) of Law:- Criminal Procedure
State v. Ramirez
Under ORS 809.235(1)(b), an out-of-state conviction “cannot serve as a predicate offense unless the offense requires proof that the person’s impaired driving was causally related to the person’s use of an intoxicant.”
Area(s) of Law:- Criminal Law
State v. Sheikhuna
The State needs only to prove that Defendant was aware of the assaultive nature of his conduct and that his conduct in fact caused the injury. State v. Barnes, 329 Or. 327, 337-38 (1999).
Area(s) of Law:- Criminal Law
State v. Sorrow
Under 164.055, theft “requires a thief to intend permanent or virtually permanent loss to the owner of the possession and use of property.” State v. Christine, 193 Or App 800, 809, 93 P3d 82, rev den, 337 Or 476 (2004).
Area(s) of Law:- Criminal Law
Stewart v. Board of Parole
Under ORS 183.482(8)(c), “substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”
Area(s) of Law:- Administrative Law
Strand v. Garvin
According to ORS 107.135(1), a party seeking to modify a judgment as to parenting time must serve the notice on the other party in the manner provided under ORCP 7, and within 30 days of service, the served party must file a written response with the court. ORS 107.135(4). An error may arise when a trial court fails to “make a record reflecting an exercise of discretion”, further, the court must "supply . . . enough information to enable appellate courts to engage in meaningful review of the court’s exercise of discretion.” Ray Klein, Inc. v. Wade, 358 Or 374 (2015).
Area(s) of Law:- Civil Procedure
State v. Alvarado
Under the Mayfield test, evidence must be logically relevant and have a probative value substantial enough to outweigh any attendant danger of unfair prejudice. Mayfield, 302 Ore. at 645.
Area(s) of Law:- Criminal Procedure
State v. Anotta
Pursuant to ORS 137.010, it is error for the court to impose that fee outside the defendant's presence because doing so prevents the defendant from arguing for such a suspension. State v. Baccaro, 300 Or. App. 131, 137 (2019).
Area(s) of Law:- Criminal Law
State v. Bilton
It is well settled that a trial court errors when imposing a DUII fee without first announcing it at sentencing.
Area(s) of Law:- Criminal Procedure
State v. Coats
A “sufficient pause” for purposes of ORS 161.067(3) means a “temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent.” State v. Huffman, 234 Or App 177, 184, 227 P3d 1206 (2010).
Area(s) of Law:- Criminal Procedure
State v. Gayman
Operators of motor assisted scooters are not generally subject to the provisions of the vehicle code that apply to motor vehicles and their operators because motor assisted scooters are not physically capable of operating in the same manner as a motor vehicle, and the vehicle code reflects that distinction.
Area(s) of Law:- Criminal Law
State v. Macy
“It is error for a trial court to impose a fine or fee as part of a sentence on a misdemeanor conviction in a judgment when that fine or fee was not previously announced in open court at the defendant’s sentencing hearing.” State v. Tison, 292 Or App 369, 374 (2018).
Area(s) of Law:- Criminal Procedure
State v. Phillips
Protective measures taken by police officers must be proportionate to the perceived threat, reasonable suspicion would develop if a Defendant took some substantial step towards the end alleged.
Area(s) of Law:- Criminal Procedure
State v. Tatman
A person commits the crime of endangering the welfare of a minor when the person subjects a child to prolonged presence in a location where “a principal or substantial use of the place is to facilitate unlawful drug activity.” State v. Gonzalez-Valenzuela, 358 OR 451, 473 (2015).
Area(s) of Law:- Criminal Law
Kelly v. State Farm Fire and Casualty Co.
ORS 742.208 requires that fire insurance policies contain the provision that concealment, misrepresentation, or fraud of material facts by the insured voids the entire policy. A misrepresentation is material if it is “relevant and germane to the insurer’s investigation as it was then proceeding.” Callaway v. Sublimity Ins. Co., 123 Or App 18, 23 (1993).
Area(s) of Law:- Insurance Law
OR-OSHA v. United Parcel Service, Inc.
Under OAR 437-001-0025, OR-OSHA’s only express interpretive constraints are those that OR-OSHA, itself, mandates, but “rules shall be liberally construed to accomplish the preventative purposes expressed in the [OSEA].”
Area(s) of Law:- Administrative Law
Patel v. Siddhi Hospitality, LLC
When reviewing a contract, the court “examine[s] first the test of the disputed provisions in the context of the document as whole. If the document’s meaning is clear, [the Court’s] analysis typically ends.” Yogman v. Parrott, 325 Or 358, 361-64, 937 P2d 1019 (1997).
Area(s) of Law:- Contract Law
Sachdev v. Oregon Medical Board
Administrative procedures are reviewed for constitutional violations by balancing the individual and governmental interests. Morrissey v. Brewer, 408 US 471, 481 (1972). When issuing a final order, “the rational connection between the facts and the legal conclusion it draws from them” must be clearly articulable. Ross v. Springfield School Dist. No. 19, 294 Or 357, 370 (1982).
Area(s) of Law:- Administrative Law
Schaefer v. Oregon Aviation Board
LUBA has an obligation to adopt findings of compatibility only "when it adopts the final facility plan." OAR 738-130-0055(6). Any previously approved versions of a Master Plan must be part of the record before LUBA. OAR 661-010-0025(1)(b). Whether an airport is a "rural airport" as described by ORS 836.642 is a completely different question than whether the proposed land uses are rural or urban.
Area(s) of Law:- Land Use
Senvoy, LLC v. Employment Department
“A party must provide the trial court with an explanation of [its] objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately.” State v. Vanornum, 354 Or 614, 632 (2013).
Area(s) of Law:- Civil Procedure
Service Employees Int'l Union Local 503 v. U of O
The Employment Relations Board "must assess the third Colton factor in its own right... without reference to [its] ultimate conclusion that the totality of the circumstances weighs in favor of disclosure under" ORS 243.672(1)(e). Oregon School Employees Association, Chapter 68 v. Colton School District 53, Case No. C-124-81 R 5, 6 PECBR 5027, 5031 (1982).
Area(s) of Law:- Labor Law
State of Oregon v. M.P.
Under the 2017 Amendments to ORS 45.400, it is the “trial court’s decision whether to allow telephonic testimony in nonjury proceedings a matter of trial court discretion. Accordingly, when such a decision is challenged on appeal, [the Court] review[s] for abuse of discretion.”
Area(s) of Law:- Civil Commitment
State v. Dart
ORS 161.200 requires that a defendant’s perception of a threat be reasonable as gauged by an objective “reasonable person” standard and not a subjective, defendant specific standard for the choice of evils defense.
Area(s) of Law:- Criminal Procedure
State v. Estrada-Robles
Since the trial court’s decision in 2019, the U.S. Supreme Court ruled on Ramos v. Louisiana, 590 140 S Ct 1390 (2020), which declared non-unanimous verdicts to violate the Sixth Amendment.
Area(s) of Law:- Criminal Procedure
State v. F.J.M.
A psychological evaluation is authorized under ORS 419B.387 “if the court finds in an evidentiary hearing that treatment or training is needed by a parent to correct the circumstances that resulted in wardship or to prepare the parent to resume the care of the ward.”
Area(s) of Law:- Juvenile Law
Charlton v. Ed Staub And Sons Petroleum, Inc.
“Aid-or-abet liability under ORS 659A.030(1)(g) is no limited to employers and employees. Anyone qualifying as a ‘person’ under ORS 659A.001(9) may be an aider or abettor of an unlawful employment practice in a way that subjects them to liability.” Hernandez v. Catholic Health Initiatives, 311 Or App 70, 80-81 (2021).
Area(s) of Law:- Employment Law
Department of Human Services v. M.O.B.
Under ORS 419B.387, a juvenile court may order a parent to undergo a psychological evaluation as a part of necessary treatment or training for which a predetermined need exists, even when it is unclear what, if anything, the evaluation will reveal.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. J. D. R.
"DHS's efforts are not reasonable when they are not sufficiently aimed at alleviating the specific controlling jurisdictional basis." Dept. of Human Services v. L.A.K., 306 Or App 706, 716, 474 P3d 925 (2020).
Area(s) of Law:- Juvenile Law
Mahanoy Area Sch. Dist. v. B.L.
Schools have the authority to regulate some off-campus student speech without violating the First Amendment.
Area(s) of Law:- Constitutional Law
State v. Postlethwait
ORS 161.067(1) provides, “when the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”
Area(s) of Law:- Criminal Procedure
State v. Reid
The officer’s testimony that defendant “failed,” when viewed in the context of testimony about standardized tests, would have led the jury to believe that the tests had been scientifically calibrated to detect impairment. State v. Beltran-Chavez, 286 Or App 590 (2017).
Area(s) of Law:- Evidence
State v. Tellez-Suarez
"In determining whether there was an invocation [of the right to counsel] at all, and if so, whether it was equivocal or unequivocal, [the court] look[s] to 'the defendant's words, in light of the totality of the circumstances at and preceding the time they were uttered, to ascertain whether a reasonable officer would have understood that the defendant was invoking that right.'" State v. Avila-Nava, 356 Or 600, 609, 341 P3d 714 (2014).
Area(s) of Law:- Criminal Procedure
State v. Thomas
ORS 138.105(9) bars review when a "[sentence is] imposed pursuant to agreement [between the defendant and the state], it [is] a specific sentence, and the trial court imposed that agreed-upon specific sentence." State v. Silsby, 282 Or App 104, 110-13, 386 P3d 172 (2016), rev den, 360 Or 752 (2017).
Area(s) of Law:- Criminal Procedure
Dept. of Human Services v. C. W.
To change a permanency plan from reunification to anything else, under ORS 419B.476, DHS must prove by a preponderance of the evidence both: (1) that DHS made "reasonable efforts" to reunify the child with mother; and (2) that, notwithstanding those efforts, mother's progress was not sufficient to allow reunification. Dept. of Human Services v. V. A. R., 301 Ore. App. 565, 567, 456 P3d 681 (2019).
Area(s) of Law:- Family Law
Pistol Resources, LLC v. McNeely
The material terms of an easement agreement are explicitly "to obtain the right to use the existing roads and to construct and use roads across lands of the other for forest management purposes and for the purpose of transporting logs and other forest products, agricultural products and minerals" and desired to "grant, one to the other, such rights." Sander v. Nicholson, 306 Ore. App. 167, 174, 473 P3d 1113, rev den, 367 Ore. 290, 476 P.3d 1255 (2020).
Area(s) of Law:- Property Law
Pohlman v. Cain
“Preservation principles apply in the context of post-conviction relief and, as a general rule, arguments not made to the post-conviction court in support of a claim will not be considered on appeal.” Hale v. Belleque, 255 Or App 653, 660, 298 P3d 596, adh’d to on recons, 258 Or App 587, 312 P3d 533, rev den, 354 Or 597 (2013).
Area(s) of Law:- Post-Conviction Relief
State of Oregon v. Sanchez-Chavez
The “ultimate question” to determine if a consecutive sentence is permitted under ORS 137.123 “is whether the record includes discrete facts supporting an inference that the defendant acted with a willingness to commit multiple offenses.” State v. Tajipour, 299 Or App 219, 450 P3d 523 (2019), rev’don other grounds, 366 Or 551, 466 P3d 58 (2020).
Area(s) of Law:- Sentencing
State v. Allen
“In Lawson/James, the court held that the threshold inquiry from Classen—whether there had been suggestive police procedures—was unnecessary as a preliminary and independent inquiry: ‘There is no reason to hinder the analysis of eyewitness reliability with purposeless distinctions between suggestiveness and other sources of unreliability.’” State v. Wesley, 254 Or App 697, 711, 295 P3d 1147, rev den, 354 Or 62 (2013)(quoting Lawson/James, 352 Or at 747).
Area(s) of Law:- Criminal Law
State v. Farris
A probation condition violates the Oregon Constitution if its terms are not sufficiently explicit to inform those subjects to them as to what conduct will render them in violation of the condition.
Area(s) of Law:- Parole and Post-Prison Supervision
State v. Hollins
Observations by an officer, with articulable, relevant training and experience of a hand-to-hand transaction near a "hot spot" for drug and weapon activity objectively support reasonable suspicion. State v. Walker, 277 Or App. 397, 402, 372 P3d 540, rev den, 360 Or 423 (2016).
Area(s) of Law:- Criminal Procedure
State v. Lasheski
Post-opinion dismissal motions are disfavored by the court and will be granted only when the appellant presents a compelling reason for dismissal.
Area(s) of Law:- Appellate Procedure
State v. Lora
Evidence found during a warrantless search must be obtained in a reasonable manner and as such, evidence found pursuant to an unlawful seizure is inadmissible.
Area(s) of Law:- Criminal Procedure
State v. Perez-Salas
Where a building consists of separate units, including but not limited to, separate apartments, offices, or rented rooms, each unit, in addition to being a part of the same building, is a separate building.
Area(s) of Law:- Criminal Law
July 49 summaries
City of Eugene v. Adams
Neither the Eighth Amendment nor Article I, section 16, prohibit the enforcement of criminal trespass laws against the homeless. "Vague, unspecified, or generalized potential harms are insufficient" to prove that the injury the defendant sought to avoid was imminent; the defendant must show "'that the threat of injury existed at the time that defendant committed his offense.'" State v. Freih, 270 Or App 555, 557, 348 P3d 324 (2015).
Area(s) of Law:- Criminal Law
City of Portland v. Building Codes Div.
Under ORS 455.77(2), investigative authority, which is authorized under subsection (1), covers a violation or omission by enforcement of codes when . . . .”
Area(s) of Law:- Municipal Law
Moir v. Ozeruga
A notice of appeal must be served and filed within 30 days after the judgment appealed from is entered in the register, the timeline is extended only for corrected portions and portions affected by the correction. There can only be one prevailing party for each claim for the purposes of claiming attorney fees.
Area(s) of Law:- Civil Procedure
Pedro v. SAIF
As defined by ORS 656.005(7)(a)(B), a combined condition is one that entails two separate conditions which combine and occur “[i]f an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment,” and injury in this context refers to a medical condition, not an accident. Brown v. SAIF, 361 Or 241, 272 (2017).
Area(s) of Law:- Workers Compensation
State v. Camphouse
"Where the evidence permit[s] a finding that defendant committed the charged offense on any one or more of several instances, defendant [is] entitled to an instruction that jurors ha[ve] to agree on which instance [is] the basis for their verdict." State v. Slaviak, 296 Or App 805, 810-11, 440 P3d 114 (2019). However, failure to provide such an instruction is harmless if "there is little likelihood that, if it had been given the concurrence instruction[,] ... the jury would have reached a different result." State v. Ashkins, 357 Or 642, 659, 357 P3d 490 (2015)
Area(s) of Law:- Criminal Procedure
State v. Cervantes
ORS 164.245 does not contain a “clarity requirement” for notice of property from which a person is excluded.
Area(s) of Law:- Criminal Law
State v. Mull
To be found guilty of theft by receiving, the state must prove that defendant must have known or believed that the property was stolen. Circumstantial evidence may be relied on to make reasonable inferences but, if the conclusion requires too great of an inferential leap, then it will be insufficient.
Area(s) of Law:- Criminal Law
State v. Philips
On review of the court’s jury instruction for legal error, “[a] trial court commits reversible error when it incorrectly instructs a jury on a material element . . . And that instructional error allows the jury to reach a legal erroneous outcome,” such as jury unanimity under the due process requirement for conviction. State v. Harper, 296 Or App 125, 126 (2019).
Area(s) of Law:- Criminal Procedure
State v. Reasoner
There is no constitutional requirement that all delegations of legislative power must be accompanied by a statement of standards circumscribing its exercise.’ Warren v. Marion County, 222 Or 307, 313, 353 P2d 257 (1960). Rather, the procedure established for the exercise of that power must furnish adequate safeguards against the arbitrary exercise of the delegated power.
Area(s) of Law:- Juvenile Law
State v. Turay
After finding that valid search commands can be severed and assessed independently from invalid search commands, the trial court must hold a hearing so that it "can determine what evidence is admissible pursuant to the valid portions of the warrant and what evidence must be suppressed because it was obtained based on the invalid portion of the warrant." State v. Frischman, 298 Or App 186, 188-89, 445 P3d 946, rev den, 365 Or 721 (2019).
Area(s) of Law:- Criminal Procedure
The Foundation of Human Understanding v. Masters
It is within the trial court’s discretion to decline requests to supplement the summary judgment record after the court has rendered its decision. Williams v. Haverfield, 82 Or App 553, 559, 728 P2d 924 (1986).
Area(s) of Law:- Civil Procedure
Tokarski v. Wildfang
When a director acted in a way that was clearly prohibited by the governing documents, or failed to take an action that was clearly required by the governing documents, a factfinder could find that the director acted with reckless disregard to the corporation's best interest, as that interest has been defined by the corporation's governing documents, and, thus, with reckless disregard to the attendant breach of fiduciary duty. WSB Investments, LLC v. Pronghorn Devel. Co., LLC, 269 Or App 342, 362 (2015).
Area(s) of Law:- Contract Law
Waterfront Pearl Condo. Owners v. Waterfront Pearl
An “injury” is discovered when a plaintiff knows or should have known of the existence of three elements: (1) harm; (2) causation; and (3) tortious conduct. The statute of limitations starts running when the plaintiff knows or should have known facts that would make a reasonable person aware of a substantial possibility that each of the elements exists. The plaintiff must be aware of the conduct and the “tortious nature” of the conduct.
Area(s) of Law:- Tort Law
Yee v. Yee
ORS 116.213 provides: “Upon the filing of receipts or other evidence satisfactory to the court that distribution has been made as ordered in the general judgment, the court shall enter a supplemental judgment of discharge. Except as provided in ORS 115.004, the discharge so entered operates as a release of the personal representative from further duties and as a bar to any action against the personal representative and the surety of the personal representative . . ."
Area(s) of Law:- Trusts and Estates
Beneficial Oregon, Inc. v. Bivins
ORS 86A.183(1)(c) prohibits mortgage loan originators from failing to account to persons interested in money or property received in connection with a mortgage loan.
Area(s) of Law:- Consumer Credit
Bowers v. Betschart
When two or more amendments to a county charter are submitted to the electors of the county at the same election, they shall be so submitted that each amendment shall be voted on separately.
Area(s) of Law:- Constitutional Law
Burley v. Clackamas County
ORS 30.272 provides that under the Oregon Torts Claim Act (OTCA), the award against local governments is capped and not to exceed $666,700 for each occurrence.
Area(s) of Law:- Tort Law
J.D.B. v. Muller
To support the issuance of an SPO, a petitioner must establish at least two unwanted contacts which each must cause subjective and objectively reasonable alarm or coercion.
Area(s) of Law:- Civil Stalking Protective Order
Kine v. Deschutes County
"When ... a subdivision plat overlays an entire tract of land ... that plat operates on the entirety of the tract, vacating any preexisting plot lines unless the plat says otherwise." Weyerhauser Real Estate Development Co. v. Polk County, 246 Or App 548, 559, 267 P3d 855 (2011).
Area(s) of Law:- Land Use
Ortega v. Martin
ORS 105.682 limits an owner's liability for injuries on land if the owner "directly or indirectly permits" the public to use the land for recreational purposes; "an owner can 'directly or indirectly permit' the use of its land for the purpose of the recreational immunity statutes, even if the public already has a right to use the land for that purpose." McCormick v. State Parks and Recreation Dept., 366 Or 452, 473 (2020).
Area(s) of Law:- Tort Law
Patton v. Cox
"We must affirm despite trial court error if there is little likelihood that the error affected the verdict." State v. Parkerson, 310 Ore. App. 271, 278, 484 P3d 356 (2021). "To make that determination, the court considers the instructions as a whole and in the context of the evidence and record at trial, including the parties' theories of the case with respect to the various charges and defenses at issue." Id. (internal quotation marks omitted).
Area(s) of Law:- Contract Law
State v. Altabef
When balancing under OEC 403, the trial court engages in four parts of that process—analyzing the probative value or strength of the evidence, determining the prejudicial nature of the evidence, balancing the prosecution’s need for the evidence against the countervailing potential for prejudice, and ruling as to what portion of the evidence is admissible. State v. Mayfield, 302 Or 631, 634 (1987).
Area(s) of Law:- Evidence
State v. Belleque
A defect in an indictment or a defective waiver of an indictment or preliminary hearing does not divest a trial court of subject matter jurisdiction.
Area(s) of Law:- Criminal Procedure
State v. Brown
“Preservation rules are 'pragmatic as well as prudential,' and they are intended to promote the administration of justice, not subvert it.” Peeples v. Lampert, 345 Or 209, 220, 191 P3d 637 (2008).
Area(s) of Law:- Constitutional Law
State v. Canepa
A defendant's history of drug possession, acknowledgment of recent drug use, and association with a potential criminal associate are not sufficiently specific so as to give rise to reasonable grounds to request the defendant's consent to search their vehicle. State v. Maciel-Figueroa, 361 Or 163, 179, 389 P3d 1121 (2017).
Area(s) of Law:- Criminal Procedure
State v. D.A.
A person may be involuntarily committed for mental health treatment for up to 180 days if, after a hearing, the court determines that he or she is a “person with mental illness”, which includes a “person who, because of a mental disorder,” is “[d]dangerous to self or others” by clear and convincing evidence. ORS 426.130(1)(a)(C); ORS 426.005(1)(f)(A). A person’s condition at the time of hearing as well as the context of the person’s history is understood to determine whether a person is a danger to others. See, e.g., State v. L.R., 283 Or App 618, 625 (2017).
Area(s) of Law:- Civil Commitment
State v. Evans
The crime of initiating a false report under ORS 162.375 requires that a person “knowingly initiate a false alarm or report that is transmitted to a . . . law enforcement agency . . . that deals with injuries involv[ing] danger to life or property.” However, the statute only prohibits false statements that would initiate an investigation, not any false statements to police. State v. McCrorey, 216 Or App 301, 306 (2007).
Area(s) of Law:- Criminal Law
State v. Fox
Restitution is statutorily required when the defendant has been convicted of criminal activity, the victim suffered economic damages, and there exists a causal relationship between the criminal activity and the economic damages. State v. Aguirre-Rodriguez, 367 Or 641, 620 (2020). The burden of proof is on the state to present sufficient evidence that the bills were reasonable and necessary, however, under McClelland, medical bills alone are not sufficient to meet the standard for establishing restitution and the testimony provided regarding medical bills is analogous as they are not medical professionals.
Area(s) of Law:- Criminal Law
State v. Sjogren
A building, as defined by ORS 164.205(1), can be a structure that is mostly enclosed and adapted to accommodate business operations.
Area(s) of Law:- Civil Law
Yeatts v. Polygon Northwest Co.
“An error in failing to give a requested instruction ‘is harmless if there is little likelihood that the error affected the verdict.’” Summerfield v. OLCC, 366 Or 763, 781, 472 P3d 231 (2020) (quoting Ossanna, 365 Or at 219). “Conversely, an error in failing to give an instruction is prejudicial if it ‘probably created an erroneous impression of the law in the minds of the jury and if that erroneous impression may have affected the outcome of the case.’” Id. (quoting Ossanna, 365 Or at 219).
Area(s) of Law:- Employment Law
Cyro-Tech, Inc. v. JKC Bend, LLC.
Oregon subscribes to the objective theory of contracts. That means that the lease’s meaning is determined based on the parties’ objective manifestations of intent to agree to the same express terms. Dalton v. Robert Jahn Corp., 209 Or App 120, 132, 146 P3d 399 (2006), rev den, 342 Or 416 (2007).
Area(s) of Law:- Landlord Tenant
Kalenius v. City of Corvallis
The “firefighter’s presumption” allows a firefighter to establish the compensability of “cardiovascular-renal disease” as an occupational disease without presenting direct evidence of causation by employment.
Area(s) of Law:- Employment Law
Peterson Mach. Co. v. May
"Equity has no power to compel a man who changes employers to wipe clean the slate of his memory." Peerless Pattern Co. v. Pictorial Rev. Co., 147 AD 715, 717, 132 NYS 37 (NY App Div 1911).
Area(s) of Law:- Employment Law
SAIF v. Summer
An injury takes place in the course of employment if it occurs “while the worker reasonably is fulfilling the duties of the employment or is doing something reasonably incidental to it.” Fred Meyer, Inc. v. Hayes, 325 Or 592, 598, 943 P2d 197 (1997).
Area(s) of Law:- Workers Compensation
Springleaf Home Equity, Inc. v. Jones
It is premature for a trial court to deny attorney fees where a defendant has pleaded a claim for attorney fees and was entitled to them as a matter of law.
Area(s) of Law:- Civil Procedure
State v. Geddeda
ORS 161.665(4) provides, in part, that “[t]he court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.”
Area(s) of Law:- Attorney Fees
State v. Leinweber
OAR 257-030-0130 requires that a breath test operator “is certain that the subject has not * * * vomited, or regurgitated * * * for at least fifteen minutes before taking the test.”
Area(s) of Law:- Criminal Procedure
State v. Witt
Evidence of general wrongdoing or suspicious behavior, standing alone, will not ordinarily be sufficient to permit a reasonable inference that a defendant knew they were using a stolen car.
Area(s) of Law:- Criminal Law
Criminal Justice Reform Clinic v. Board of Parole
OAR 255-032-0005(4) and (5) allow for the consideration of youth as a mitigating factor and, therefore, do not facially violate the Eighth Amendment. ORS 161.620 does not require that the board rules mandate immediate parole eligibility for juveniles. Engweiler v. Board of Parole, 343 Or. 536, 548, 175 P.3d 408 (2007) (Engweiler I).
Area(s) of Law:- Criminal Procedure
Dept. of Human Services v. T. H.
Under ORS 19.415(3)(b), "the Court of Appeals, acting in its sole discretion, may try the cause anew upon the record or make one or more factual findings anew upon the record." Unless there is evidence that would support a different outcome in a juvenile dependency case, under ORS 19.415(3)(b) the Court of Appeals may deny de novo review of factual findings made by the juvenile court.
Area(s) of Law:- Family Law
Keffer v. A. R. M.
In 2003, the legislature altered the provisions of the juvenile dependency code and removed all references to the probate code under ORS 419B.366, thereby making guardianship proceedings under the juvenile dependency code self-contained.
Area(s) of Law:- Family Law
Lowell v. Medford School Dist. 549C
Absolute privilege is extended to all employees of public entities, regardless of the rank of title or responsibilities, as an affirmative defense to defamation suits so long as the statements were made in the performance of their duties. Shearer v. Lambert, 274 Or 449, 547 P2d 98 (1976).
Area(s) of Law:- Employment Law
Manley v. McKinney
Under Beal v. Beal, 282 Or 115, 123, 577 P2d 507 (1978), upon distribution of non-marital property after dissolution, courts “should distribute the property based upon the express or implied intent of th[e] parties,” account for unequal down payment and post-separation payments, and if the moved-out party was effectively excluded from using the property, the “party who stayed must pay the fair rental value of the property.”
Area(s) of Law:- Property Law
Rushton v. Oregon Medical Board
Reports of expert witnesses obtained by health professional regulatory boards in the course of investigation are not disclosed to the licensee or applicant. ORS 676.175(3).
Area(s) of Law:- Administrative Law
State v. C.L.
To permit commitment on the basis of dangerousness to others, the state must establish "that actual future violence is highly likely." State v. M. A., 276 Or App at 629. “Past acts, including verbal acts, can justify a finding of dangerousness, if they ‘form a foundation for predicting future dangerousness.’” M. R., 225 Or App at 574.
Area(s) of Law:- Appellate Procedure
State v. J.D.J
In order to demonstrate that an individual in incapable of caring for their own wellbeing, the State must "prove that the person 'is unable to provide for his or her basic personal needs in a way that leaves the person at nonspeculative risk of serious physical harm—meaning that the person's safe survival will be compromised—in the near future.'" State v. R. L. M., 309 Or App 545, 548-49(2021) (quoting State v. M. A. E., 299 Or App 231, 240 (2019)).
Area(s) of Law:- Civil Commitment
State v. Martin
If cross examination does not increase the reliability of a statement admitted pursuant to a firmly rooted hearsay exception, then, by definition, allowing confrontation would not provide defendant a meaningful opportunity to test the veracity of the evidence for purposes of due process. See Morrissey, 408 U.S. at 484.
Area(s) of Law:- Evidence
State v. Porter
ORS 137.123(5) provides the court with discretion to impose consecutive sentences for separate convictions arising out of continuous and uninterrupted conduct so long as there's an indication of willingness to commit more than one criminal offense or the criminal offense caused or created a greater or qualitatively different loss, injury or harm during the conduct.
Area(s) of Law:- Criminal Law
State v. Ramirez-Carmona
“In reviewing the voluntariness of a defendant’s consent to a search, we consider whether, under the totality of the circumstances, the consent was given by an act of free will or was the result of coercion, express or implied.” State v. Moore, 354 Or 493, 505 (2013).
Area(s) of Law:- Criminal Law
August 16 summaries
Gala v. Board of Chiropractic Examiners
Final order of the Board of Chiropractic Examiners not overturned where the Board's determinations were supported by substantial evidence and not legally erroneous.
Area(s) of Law:- Administrative Law
Merrick v. City of Portland
An order that makes the determination of a third-party binding does not absolve a trial court of further responsibility in resolving a matter. Under ORS 192.431(3), the determination of a third-party made binding by a trial court is a permissible basis upon which to determine the prevailing party for purposes of awarding attorney's fees.
Area(s) of Law:- Alternative Dispute Resolution
State v. Jackson
Under ORS 161.067(1), merger is required when elements of one offense are subsumed by another.
Area(s) of Law:- Criminal Law
State v. Jackson
ORS 161.067 prevents merger when two or more provisions of criminal law are violated, and each provision necessitates proof of an additional element that the others do not.
Area(s) of Law:- Criminal Law
State v. S.E.
Under State v. K.S., 223 Or App 476 (2008), a court need not wait for a person to physically harm anyone “before finding [that person] to be a danger to others.”
Area(s) of Law:- Civil Commitment
Dept. of Human Services v. D. F. R. M.
Under ORS 419B.368, the party seeking to terminate parental rights must show, by way of clear and convincing evidence, that the termination of parental rights is in the best interest of the child.
Area(s) of Law:- Juvenile Law
Oregon Restaurant and Lodging Assn. v. City of Bend
Under ORS 320.350, a local government “may not decrease the percentage of total local transient lodging tax revenues that are actually expended to fund tourism promotion or tourism-related facilities on or after July 2, 2003.”
Area(s) of Law:- Tax Law
State v. Butler
When a defendant repeatedly creates new profiles shortly after being blocked by a victim, and the content of the messages posted by those profiles could lead to the inference that it was more likely than not that defendant was attempting to contact the victim, the conduct likely amounts to contact for purposes of conditions of no-contact. See State v. Crombie, 267 Or App 705, 711, 341 P3d 841 (2014).
Area(s) of Law:- Criminal Law
Borough v. Caldwell
“[A] plaintiff who has won or lost a declaratory judgment action ‘may * * * bring a subsequent action for other relief, subject to the constraint of the determinations made in the declaratory action,’ because ‘a declaratory action determines only what it actually decides and does not have a claim preclusive effect on other contentions that might have been advanced.’” Restatement (Second) of Judgments §33 comment c (“Effects as to matters not declared”); see also Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co., 547 F3d 48, 56 (1st Cir 2008).
Area(s) of Law:- Trusts and Estates
Harcourts Integrity Team Real Estate Services LLC v. Ralph
“A trial court is required to ‘make special findings of fact and state its conclusions of law on the record regarding the issues material to the award or denial of attorney fees’ where a party makes a request by ‘including a request for findings and conclusions in the caption of the statement of attorney fees or cots and disbursements, objection, or response filed pursuant to’ ORCP 68.” Harcourts Integrity Team Real Estate Services LLC. v. Ralph, 497 P3d 1253 (Or. App. 2021).
Area(s) of Law:- Civil Procedure
Mendoza v. Xtreme Truck Sales, LLC
If a plaintiff rejects a defendant’s offer of judgment and then “fails to obtain a judgment more favorable than the offer,” the defendant, and not the plaintiff, is entitled to costs and fees. See generally Mathis v. St. Helens Auto Center, Inc., 367 Or 437, 448-50, 478 P3d 946 (2020).
Area(s) of Law:- Civil Procedure
Riverbend Landfill Co. v. Yamhill County
A LUBA order is unlawful in substance “if it represent[s] a mistaken interpretation of the applicable law.” Mountain West Investment Corp. v. City of Silverton,175 Or App 556, 559, 30 P3d 420 (2001).
Area(s) of Law:- Land Use
SAIF v. Blankenship
An injury is compensable under ORS 656.005(a) if it “arises out and in the course of the employment." “An injury ‘arises out of’ the employment if it arises from the nature of the claimant’s work or from a risk to which the work environment exposes the worker.” Fred Meyer, Inc., v. Hayes, 325 Or 592, 598 (1997).
Area(s) of Law:- Workers Compensation
SAIF v. Chavez-Cordova
“Personal risks are risks that have no employment connection and that arise from conditions or circumstances that are personal to the worker. Sheldon v. U. S. Bank, 364 Or 831, 834 (2019).
Area(s) of Law:- Workers Compensation
Smith v. Dept. of Corrections
“[I]t is not this court’s function to speculate as to what a party’s argument might be [or] to make or develop a party’s argument when that party has not endeavored to do so itself.” Beall Transport Equipment Co. v. Souther Pacific, 186 Or App 696, 700-01 n 2, 64 P3d 1193, adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259 (2003).
Area(s) of Law:- Civil Procedure
State v. C. V.-I.
ORS 426.307(6) allows a court to continue a person's involuntary commitment if the court determines that "the individual is still a person with mental illness by clear and convincing evidence and is in need of further treatment." The state must prove that the person is "unable to provide for his or her basic personal needs in a way that leaves the person at a non speculative risk of 'serious physical harm' . . . in the near future." State v. M.A.E., 299 Or App 231, 240 (2019).
Area(s) of Law:- Civil Commitment
September 97 summaries
Friends of Columbia Gorge v. Energy Fac. Siting Coun.
Orders denying requests for contested case proceedings are final orders on the contested case requests. ORS 183.310(b)(6). A request for a contested case proceeding is not itself a contested case; they are “other than contested cases.” ORS 183.310(2)(a); ORS 183.484.
Area(s) of Law:- Civil Procedure
Hersey v. Leon
Oregon law states that “[a]n appellant bears the burden of providing a record sufficient to demonstrate that error occurred.” Ferguson v. Nelson, 216 Or App 541 (2007).
Area(s) of Law:- Property Law
Lemus v. Potter
An amendment to substitute the correct defendant for the named defendant in an automobile accident case changes the party against whom the claim is asserted and relates back only if all three conditions set out in ORCP 23 C are satisfied. Hamilton v. Moon, 130 Or App 403, 405, 882 P2d 1134, rev den, 320 Or 492 (1994).
Area(s) of Law:- Civil Procedure
Mouktabis v. Amarou
A guardian ad litem is not a party to an action based solely upon his or her guardian ad litem status. Christman v. Scott, 183 Or 113, 117-18, 191 P2d 389 (1948). Non-attorney guardians ad litem who appear pro se are engaging in the unlawful practice of law; only members of the Oregon State Bar may appear on behalf of another. ORS 9.160(1); ORS 9.320.
Area(s) of Law:- Juvenile Law
Mouktabis v. Amarou
A guardian ad litem may be but is not required to be an attorney, they do not “step into the shoes” of the represented person for all purposes, nor do they become an attorney by serving as guardian ad litem.
Area(s) of Law:- Appellate Procedure
Nevius v. Palomares
To determine whether plaintiff stated a claim, there must be allegations which are legally sufficient to establish the existence of a justiciable controversy, a challenge becomes moot when a court decision will not have a practical effect on the rights of parties.
Area(s) of Law:- Civil Procedure
Nevius v. Palomares
The voluntary cessation doctrine renders a case moot only when it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Already, LLC v. Nike, Inc., 568 US 85, 91, 133 S Ct 721 (2013).
Area(s) of Law:- Property Law
Sexton v. Sky Lakes Md. Center
An injury is not compensable unless the injury is the major contributing cause of the consequential condition; or if an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment it is only compensable is the otherwise compensable injury is the major contributing cause of disability.
Area(s) of Law:- Workers Compensation
Sexton v. Sky Lakes Medical Center
“[R]equiring a previous acceptance of a preexisting condition that [an] employer determined not to be compensable would be illogical, even in the case of a new or omitted condition, because the ‘employer would be required to accept a claim for which no benefits are due.’” Tektronix, Inc. v. Nazari, 117 Or App 409, 844 P2d 258 (1992), adh’d to as modified on recons, 120 Or App 590, rev den, 318 Or 27 (1993).
Area(s) of Law:- Workers Compensation
State v. Bonome
Oregon law demands that a waiver of counsel be done “knowingly and intelligently.” Typically, this standard is met when the court conducts a colloquy with the defendant explaining the risks of proceeding without representation. Additionally, under Ailes v. Portland Meadows, Inc., the court can exercise its discretion to correct plain errors that serve the “ends of justice.”
Area(s) of Law:- Criminal Law
State v. Doyle
In Ramos, the United States Supreme Court held that the Sixth Amendment requires a unanimous jury verdict to convict.
Area(s) of Law:- Constitutional Law
State v. Edgtton
Under State v. Hightower, 361 Or 412, 393 P3d 224 (2017), the court must make a record reflecting the competing interests of a defendant and the court before denying a defendant’s request to proceed pro se.
Area(s) of Law:- Constitutional Law
State v. Fitzgerald
For an error to be considered on appeal, it must be preserved. See Peeples v. Lampert, 345 Or 209, 219-21 (2008).
Area(s) of Law:- Criminal Law
State v. Fitzgerald
The ability to appeal a trial court’s ruling rests on the whether the issue was preserved at trial.
Area(s) of Law:- Criminal Procedure
State v. Lebanno
“In the formation of probable cause, the stacking of inferences to achieve probable cause is impermissible.” State v. Goennier, 291 Or App 694, 699, 422 P3d 391, rev den, 363 Or 481 (2018).
Area(s) of Law:- Criminal Law
State v. Lebanno
Arrests must be supported by probable cause, probable cause is when an officer subjectively believes that a crime has been committed and the person arrested has committed it, subjective belief must be objectively reasonable.
Area(s) of Law:- Criminal Procedure
State v. Lipka
To determine whether a warrantless search is lawful, it must be “reasonable to believe that evidence reasonably related to the crime of arrest could be concealed in the location being searched.” State v. Hernandez, 299 Ore. App. 544, 550-51 (2019).
Area(s) of Law:- Criminal Procedure
State v. Lipka
“The test for validity of a search incident to arrest is the reasonableness of the search in light of the circumstances of the particular case.” State v. Hernandez, 299 Or App 544, 551, 449 P3d 878 (2019), rev den, 366 Or 292 (2020).
Area(s) of Law:- Criminal Law
State v. Martin
Under State v. Jackson, 268 Or App 139, a person is unconstitutionally seized when an officer communicates to the person that they are the subject of an investigation “that could result in the person’s citation or arrest at that time and place” without reasonable suspicion that the person violated the law.
Area(s) of Law:- Criminal Procedure
State v. Ritter
Under State v. Cannon, 299 Or App 616 (2019), probable cause to search one device for child pornography does not categorically extend to other devices owned by the same individual.
Area(s) of Law:- Criminal Procedure
State v. Vasquez-Gonzalez
It is the State’s burden to show that a defendant “knowingly, intelligently, and voluntarily waived his Miranda rights.” State v. Ward, 367 Or 188, 191, 475 P3d 420 (2020). The knowing and intelligent inquiry “focuses primarily on a defendant’s state of mind.” State v. Norgren, 287 Or App 165, 169, 401 P3d 1275 (2017), rev dismissed, 363 Or 40 (2018).
Area(s) of Law:- Criminal Law
Walton v. Neskowin Regional Sanitary Authority
A six-year statute of limitations applies to inverse condemnation claims and the statute beings to run when the physical taking occurs.
Area(s) of Law:- Property Law
Walton v. Neskowin Regional Sanitary Authority
Under ORS 12.080, takings claims have a six-year statute of limitations; the statute of limitations begins to run when the physical occupation begins. Suess Builders v. City of Beaverton, 294 Or 254, 268, 656 P2d 306 (1982); The Foster Group, Inc. v. City of Elgin, Oregon, 264 Or App 424, 442, 332 P3d 354 (2014).
Area(s) of Law:- Land Use
Braymen v. Water Resources Dept.
Courts may consider extrinsic evidence when assessing whether a stipulated judgment is ambiguous. Van Atta v. Stephanie Fry, Inc., 295 Or App 465, 473, 434 P3d 575 (2018). Voluntarily engaging in conduct that violates the terms of a judgment, with knowledge of the terms, amounts to contempt. Chang v. Chun, 305 Or App 144, 152, 470 P3d 410 (2020).
Area(s) of Law:- Contract Law
Canales-Robles v. Laney
An untimely petition for post-conviction relief may be excused if, within the two-year limitation period the applicable law is established, and the petitioner could have reasonably asserted the applicable legal ground for relief.
Area(s) of Law:- Post-Conviction Relief
Canales-Robles v. Laney
ORS 138.510(3) provides: “A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the [date that the conviction became final], unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition.”
Area(s) of Law:- Post-Conviction Relief
Chaimov v. Dept. of Admin. Services
The lawyer-client privilege, articulated in OEC 503, applies to public entities. Including communications between the Department of Administrative Services and the Office of the Legislative Counsel.
Area(s) of Law:- Administrative Law
Chaimov v. Dept. of Admin. Services
As the Supreme Court said in Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 487-88, 326 P3d 1181 (2014), although the statutory privilege “requires the existence of an ‘attorney-client relationship’ in some sense” (emphasis added), the existence of a sufficient relationship for the privilege is determined exclusively by reference to the statutory privilege rule itself—not by reference to other sources of law defining an attorney-client relationship.
Area(s) of Law:- Professional Responsibility
City of Portland v. Gonzalez
All investigative activities conducted during a traffic stop have subject-matter and durational limitations, officers’ activities during a traffic stop must be reasonably related to the purpose of the stop or supported by an independent constitutional justification.
Area(s) of Law:- Criminal Procedure
City of Portland v. Gonzalez
Officers’ activities during a traffic stop must be reasonably related to the traffic stop or be supported by an independent constitutional justification.
Area(s) of Law:- Criminal Procedure
Dept. of Human Services v. A. D. G.
ORS 419B.521 provides that a court may issue a TPR if (1) the parent is unfit by conduct or condition seriously detrimental to the ward, (2) integration of the child into the home is improbable in a reasonable amount of time, and (3) if termination is in the best interests of the child.
Area(s) of Law:- Family Law
Dept. of Human Services v. A. D. G.
To terminate parental rights under ORS 419B.504, a juvenile court must find, by clear and convincing evidence, that (i) the parent is unfit by reason of conduct or condition seriously detrimental to the child; (ii) that integration of the child into the home of the parent or parents is improbable within a reasonable amount of time due to conduct or conditions not likely to change, and; (iii) that termination is in the child’s best interest.
Area(s) of Law:- Family Law
Dept. of Human Services v. D.E.A.
A juvenile court may change a child’s permanency plan away from reunification only if DHS proves, among other things, that DHS made “active efforts” to make it possible for the child to be reunited with the parent and, notwithstanding those efforts, the parent’s progress was insufficient to make reunification possible. Dept. of Human Services v. D. L. H., 251 Or App 787, 798, 284 P3d 1233, adh’d to as modified on recons, 253 Or App 600, 292 P3d 565 (2012), rev den, 353 Or 445 (2013).
Area(s) of Law:- Juvenile Law
Diens v. Bonome
“Under the discovery rule, the statute of limitations began to run on petitioner's claim when petitioner knew '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 of a claim (harm, causation, and tortious conduct) exist[ed].' McLean, 189 Ore. App. at 424-25.
Area(s) of Law:- Trusts and Estates
Laack v. Botello
In accordance with Phan, the striking of pleadings and the dismissal of claims as a sanction is not within the court’s authority under ORS 1.010 and must be statutorily authorized. 185 OR App at 633.
Area(s) of Law:- Civil Procedure
Laack v. Botello
Under Phan v. Morrow, 185 Or App 628, 633, 60 P3d 1111 (2003), “the striking of pleadings and the dismissal of claims as a sanction is not within the court’s authority under ORS 1.010 and must be statutorily authorized.”
Area(s) of Law:- Civil Procedure
Lufkin v. Dept. of Human Services
“The general rule in Oregon is that, although waivers of constitutional and statutory rights may be expressed through contract terms, those terms must clearly indicate an intention to renounce a known privilege or power.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or 170, 295 P3d 38 (2013).
Area(s) of Law:- Contract Law
Lufkin v. DHS
“The general rule in Oregon is that, although waivers of constitutional and statutory rights may be expressed through contract terms, those terms must clearly indicate an intention to renounce a known privilege or power.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 OR 170, 183, 295 P3d 38 (2013) (internal quotation marks omitted).
Area(s) of Law:- Contract Law
Nelson v. Liberty Ins. Corp
For purposes of estoppel by silence, “the duty to speak does not arise until the party against whom estoppel is urged knows or should know that the failure to speak will likely mislead the other party to act to his or her detriment.” Pfaendler, 195 Or App at 570.
Area(s) of Law:- Property Law
Nelson v. Liberty Mutual Insurance Company
Under Pfaendler v. Bruce, 195 Or App 561 (2004), a duty to speak giving rise to estoppel by silence develops when “the party to speak against whom estoppel is urged knows or should know that the failure to speak will likely mislead the other party to act to his or her detriment.”
Area(s) of Law:- Contract Law
NW Metals, Inc. v. DMV
A dismantler may face penalties if they “[a]cquire[] a motor vehicle or major component part without obtaining a certificate of sale.” ORS 822.137(2)(a).
Area(s) of Law:- Administrative Law
NW Metals, Inc. v. Driver & Motor Vehicle Servs. Div.
A single legal entity cannot take physical possession of a vehicle from itself, nor can it take possession of a vehicle's ownership record from itself. See OAR 735-152-0000(1).
Area(s) of Law:- Business Law
Padilla v. State Farm Mutual Automobile Ins. Co.
ORS 742.526(1) governs the “excess” relationship between multiple applicable insurance policies (“The personal injury protection benefits with respect to * * * “(b) Passengers injured while occupying the insured motor vehicle shall be primary.)
Area(s) of Law:- Insurance Law
Padilla v. State Farm Mutual Automobile Ins. Co.
ORS 742.524(1)(b) provides that PIP benefits are subject to a maximum payment period “in the aggregate of 52 weeks.” Black’s Law Dictionary states that “aggregate” means “to collect into a whole.”
Area(s) of Law:- Insurance Law
Reynolds v. Dept. of Human Services
Under ORS 183.484(4), an agency may withdraw a final order “in an other than contested case” for reconsideration at any time after the filing of a petition for judicial review, before the date set for hearing, without permission from the court.
Area(s) of Law:- Civil Procedure
Sherertz v. Brownstein, Rask, Sweeney, Kerr, Grim, Desylvia, & Hay, LLP
Under Hale v. Groce, 304 Or 281, an attorney is liable for economic losses to a third party beneficiary only where the attorney made “an actual promise to [a] client * * * to achieve a particular objective that will benefit [the] specified third party.”
Area(s) of Law:- Tort Law
Skinner and Skinner
ORS 82.010(2)(c), which refers to prejudgment interest, applies only to some judgments, spousal support judgments do not accrue prejudgment interest.
Area(s) of Law:- Family Law
State v. Allen
According to Savinskiy, the Article 1, section 11 protections do not attach to police investigation into “new criminal activity in progress.” State v. Savinskiy, 364 Or 802, 411 P3d 557, adh’d to as modified on recons, 365 Or 463, 445 P3d 307 (2019).
Area(s) of Law:- Criminal Procedure
State v. Allen
Under Savinskiy, “the Article I, section 11, right to counsel on pending charges does not guarantee that the State will provide notice to a defendant’s attorney before questioning the Defendant about new, uncharged and ongoing criminal conduct.”
Area(s) of Law:- Criminal Procedure
State v. Craig
ORS 137.719 provides that if a defendant has been sentenced for two prior felony sex crimes, the presumptive sentence is life without the possibility of parole.
Area(s) of Law:- Sentencing
State v. Craig
Convictions for felony sex crimes must result in a sentence to count towards a defendant’s eligibility for life without parole under ORS 137.719(1). Gordon v. Hall, 232 Or App 174, 221 P3d 763 (2009).
Area(s) of Law:- Sentencing
State v. D.F.U.
To preserve a challenge on appeal, an appellant must raise the issue before the trial court with enough specificity to allow the court to consider the issue and rule on it.
Area(s) of Law:- Evidence
State v. D. F. U.
“To preserve a challenge to the legal sufficiency of the evidence, an appellant must raise the issue before the trial court with enough specificity to allow the court to consider the issue and rule on it." See, e.g., State v. Barboe, 253 Or App 367, 373-74 (2012), rev den, 353 Or 714 (2013).
Area(s) of Law:- Civil Commitment
State v. Hsieh
When dealing with animal neglect, exigent circumstances exist when “a person fails to provide the ‘minimum care’ required by statute, ORS 167.310(9), and the failure results in imminent ‘physical injury,’ ORS 167.310(10), or imminent ‘serious physical injury,’ ORS 167.310(13).”
Area(s) of Law:- Criminal Law
State v. Hsieh
Exigency exists when a person fails to provide the “minimum care” required by statute, and that failure results in imminent physical injury; an officer’s beliefs must be grounded in specific and articulable facts.
Area(s) of Law:- Criminal Procedure
State v. Kiesau
“The rule against prosecutorial vouching—i.e., prosecutors giving their personal opinions on the credibility of witnesses—is rooted in the principle “that counsel’s credibility opinions are not evidence and are sometimes based on facts not in evidence—thus, they tend to distract the jury from its duty to base its verdict on the evidence at trial.” State v. Sperou, 365 Or 121, 129, 442 P3d 581 (2019).
Area(s) of Law:- Criminal Procedure
State v. Kiesau
It is impermissible vouching for a prosecutor to give their personal opinion of the credibility of their witnesses because the opinions are typically based on facts not in evidence which distracts the jury. See State v. Serous, 365 Or 121, 129 (2019).
Area(s) of Law:- Evidence
State v. Kindred
Behavior means some legal conformity with the public law and cannot include social conformity. State v. Langan, 301 Or 1, 718 P2d 719 (1986).
Area(s) of Law:- Criminal Procedure
State v. Kindred
A trial court may deny a qualified person’s request to set aside a conviction only if it determines (i) that the person violated public law after their date of conviction and; (ii) that the violation warrants denial of the request. State v. Larson, 268 Or App 802, 344 P3d 59 (2015).
Area(s) of Law:- Criminal Procedure
State v. Larson
ORS 137.123 generally bars consecutive sentences except under certain circumstances.
Area(s) of Law:- Sentencing
State v. Larson
The Court must have evidence that the defendant intended to commit multiple criminal acts, typically shown by temporal or qualitative deference to impose consecutive sentences. State v. Porter, 313 Or App 565 (2021).
Area(s) of Law:- Sentencing
State v. Shelby
Miranda warnings are required before questioning when police question a defendant under circumstances that Miranda warnings were intended to counteract.
Area(s) of Law:- Criminal Procedure
State v. Shelby
[P]olice officers must provide Miranda-like warnings to a defendant who is in custody or in compel-ling circumstances prior to questioning. See State v. Roble-Baker, 340 Or 631, 638, 136 P3d 22 (2006). In determining whether a defendant is subject to compelling circumstances, the court examines ‘whether the officers created the sort of police-dominated atmosphere that Miranda warnings were intended to counteract.’ Id. At 641.”
Area(s) of Law:- Criminal Law
State v. Threlkeld
A witness is qualified as an expert when the witness has developed superior knowledge based on experience, and the competency of the expert must be assessed in relation to the specific subject about which the expert is asked.
Area(s) of Law:- Evidence
State v. Threlkeld
“[A]n expert on a given subject is a person who ‘has acquired certain habits of judgment based on experience of special observation that enable[] him or her to draw from the facts inferences that are uniquely beneficial to the [factfinder].” Mall v. Horton, 292 OR App 319, 324, 423 P3d 730, rev den, 363 Or 744 (2018).
Area(s) of Law:- Criminal Law
W.A.S. v. Teacher Standards and Practices Comm.
The appearance of unfairness, without more, is insufficient to establish a due process violation in an agency proceeding. To prevail, the plaintiff must demonstrate “actual bias on the part of the decision-maker” or some other actual unfairness. Shicor v. Board of Speech Language Path. and Aud., 291 Or App 369, 420 P3d 638 (2018).
Area(s) of Law:- Administrative Law
W. A. S. v. Teacher Standards and Practices Comm.
In an agency proceeding, lacking the appearance of fairness is not enough to reverse, a petitioner must show actual bias by the decision maker.
Area(s) of Law:- Administrative Law
Bean v. Cain
Oregon law assumes that it is reasonable for a petitioner to rely on his attorney to timely file, meeting their “most basic professional obligations.” Winstead v. State of Oregon, 287 Or App 737, 740 (2017).
Area(s) of Law:- Post-Conviction Relief
Birchall v. Miller
Under Nordbye v. BCRP/GM Ellington, 271 Or App 168 (2015), a "potential claim for prevailing-party based attorney fees" cannot support a forcible entry and detainer case where there is no longer a live dispute about possessory rights.
Area(s) of Law:- Landlord Tenant
Callais v. Henricksen
To recover attorney’s fees under ORS 20.080(1), a plaintiff must satisfy four requirements: (i) the plaintiff must file an action pleading damages of $10,000 or less; (ii) the plaintiff must prevail in that action; (iii) the plaintiff must issue written demand on the defendant for payment of their claim at least thirty days prior to commencing the action; and (iv) the judgment obtained by the plaintiff must be greater than any pre-filing settlement offer made by the defendant. Johnson v. Swaim, 343 Or 423, 172 P3d 645 (2007).
Area(s) of Law:- Tort Law
Dancingbear v. SAIF
ORS 656.383(1) provides that a workers compensation claimant’s attorney is entitled to a fee award if the attorney “is instrumental in obtaining temporary disability compensation benefits [under ORS 656.268].
Area(s) of Law:- Workers Compensation
Hejazi v. Gifford
ORS 30.643(1) applies to all fee waivers and deferrals in civil actions brought by an “adult in custody. . . against a public body.” When a plaintiff fails to apply the proper statute in their briefing, the rules of appellate procedure require the court to affirm. Smith v. Dept. of Corrections, 314 Or App 1, 3 (2021).
Area(s) of Law:- Appellate Procedure
Kyei v. Division of Child Support
An order terminating existing license suspensions stemming from a child support judgment does not prevent future child support enforcement orders.
Area(s) of Law:- Family Law
Oregon Tech AAUP v. Oregon Institute of Technology
Under the Public Employee Collective Bargaining Act (PECBA), “[p]ublic employees have the right to form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations.” ORS 243.662.
Area(s) of Law:- Employment Law
State v. Anderson
Under OEC 608, “split reputation evidence is admissible” because it “permits reputation evidence for ‘truthfulness or untruthfulness.’"
Area(s) of Law:- Evidence
State v. Burnett
The Court must affirm the conviction notwithstanding the omission of a concurrence instruction if there is “little likelihood that the error affected the verdict.” State v. Ashkins, 357 Or 642, 660 (2015).
Area(s) of Law:- Criminal Law
State v. Delaney
“A defendant cannot establish substantial prejudice [under ORS 132.560(3)] ‘if the evidence pertaining to the separate charges is “mutually admissible in separate trials or is sufficiently simple and distinct to mitigate the dangers created by joinder[.]”’” State v. Tidwell, 259 Or App 152, 155, 313 P3d 345 (2013), rev den, 355 Or 142 (2014).
Area(s) of Law:- Criminal Procedure
State v. K. M.
An involuntary civil commitment requires more than the mere diagnosis of a mental disorder or threats to others. State v. C. H., 306 Or App 63, 67, 473 P3d 60 (2020). The State must prove, by clear and convincing evidence, “that actual future violence is highly likely.” State v. M. A., 276 Or App 624, 629, 371 P3d 495 (2016).
Area(s) of Law:- Civil Commitment
State v. Larson
“[W]hen it is clear from the record that a condition of probation is to take effect immediately, the validity of the condition does not depend on entry of the judgment.” State v. Quackenbush, 116 Or App 453, 455-56, 841 P2d 671 (1992).
Area(s) of Law:- Criminal Procedure
State v. Simmons
Under State v. Nicholson, 282 Or App 51 (2016), “[a] defendant who acts based on a good faith belief that a judicial order has been dismissed cannot be deemed to have acted [willfully]” within the meaning of ORS 33.015(2).
Area(s) of Law:- Criminal Procedure
Indian Ridge I, LLC v. Lenahan
Lis Pendens can be filed to notify of a lawsuit “in which the title to or any interest in or lien upon real property is involved, affected, or brought in question.” ORS 93.740.
Area(s) of Law:- Property Law
Partsafas and Partsafas
“Any decision to set child support above the guidelines cap must, at a minimum, be based primarily on the child’s needs, as set out in specific supporting findings.” Stringer v. Brandt, 128 Or App 502, 507, 877 P2d 100 (1994). Disparity in income cannot serve as a reason for rebutting the presumptive amount because relative incomes of the parents is a factor in determining the presumptive amount in the first place. Larkin and Larkin, 146 Or App 310, 313, 932 P2d 115 (1997).
Area(s) of Law:- Family Law
Schneider v. Water Resources Dept.
Pursuant to Gafur v. Legacy Good Samaritan Hospital and Medical Center, 344 Or 525, 185 P3d 446 (2008), the courts will give deference to the plausible interpretations of a statute by a government agency, so long as that interpretation is not inconsistent with “the wording of the rule, its context, or any other source of law.”
Area(s) of Law:- Administrative Law
State v. A. R. H.
When determining whether a youth failed to meet the burden of proof under ORS 163A.030, an appellate court must determine whether “no court could find itself unpersuaded that” a youth is rehabilitated and no longer presents a threat to public safety. State v. A. L. M., 305 Or App 389, 404–05, 469 P3d 244, rev den, 367 Or 218 (2020).
Area(s) of Law:- Juvenile Law
State v. Allen
In the context of Article I, section 9, of the Oregon Constitution, investigative activities and inquiries during a traffic stop must be reasonably related to the purpose of the stop or be supported by an independent constitutional justification. See State v. Arreola-Botello, 365 Or 695, 712, 451 P3d 939 (2019). An officer’s deployment of a drug-detection dog during a traffic stop for failing to signal continuously for at least 100 feet before turning—without any independent constitutional justification—is a violation of this requirement.
Area(s) of Law:- Criminal Procedure
State v. Gaona-Mandujano
ORS 137.540(2) gives the trial court discretion to impose any special conditions of probation “that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both.”
Area(s) of Law:- Criminal Law
State v. Kulick
To prove constructive possession, the state must prove that a defendant knowingly exercised control over, or had the right to control, the contraband.” State v. Evans, 161 Or App 86, 89, 983 P2d 1055 (1999). However, a defendant’s “mere presence in the proximity of a controlled substance is not a sufficient basis from which to draw an inference of constructive possession.” State v. Fry, 191 Or App 90, 93, 80 P3d 506 (2003).
Area(s) of Law:- Criminal Procedure
State v. Powe
Under ORS 163.275(1), coercion is the use of the fear of a specified consequence to “influence or persuade a victim to alter his or her course of conduct—to do something that the victim otherwise would not have done or to not do something which the victim otherwise would have done.” State v. Pedersen, 242 Or App 305, 312, 255 P3d 556, rev den, 351 Or 254 (2011).
Area(s) of Law:- Criminal Law
State v. Sylva
“A defendant is the movant in seeking to have [their] conviction set aside under ORS 137.225, and it is [their] burden to show that [they meet] the criteria of that statute.” State v. Langan, 301 Or 1, 5, 718 P2d 719 (1986).
Area(s) of Law:- Criminal Procedure
Willms v. AmeriTitle, Inc.
[T]he statute of limitations for civil ORICO claims under ORS 166.725(11)(a) is five years, but the action can be brought either five years “after the conduct in violation [of ORICO] terminates” or within five years after the action “accrues.”
Area(s) of Law:- Civil Law
Dept. of Human Services v. W. C. T.
Under ORS 419B.337, ORS 419B.387, and case law, a court may order a psychological evaluation of a parent if the following are true after an evidentiary hearing: (1) “the evaluation is rationally related to the jurisdictional findings,” (2) evaluation is a “predicate component to the determination of treatment and training,” (3) treatment or training is needed to “ameliorate the jurisdictional findings or to facilitate the child’s return,” and (4) “the parent’s participation” in the treatment or training is “in the best interests of the child.” See State ex rel Juv. Dept. v. G. L., 220 Or App 216, 224, 185 P3d 483, rev den, 345 Or 158 (2008) (allowing trial court to order psychological evaluation under ORS 419B.337(2)).
Area(s) of Law:- Juvenile Law
Mooney v. Oregon Health Authority
We long have held that the repeal or replacement of an administrative rule means an ORS 183.400 challenge seeking to invalidate the displaced rule is moot. See Reid v. DCBS, 235 Or App 397, 401, 232 P3d 994 (2010) (so holding); see also Hay v. Dept. of Transportation, 301 Or 129, 133-34, 719 P2d 860 (1986) (expiration of rule mooted ORS 183.400 challenge to the rule).
Area(s) of Law:- Administrative Law
State v. Camirand
“The [Supreme Court] observed that references to facts outside the record can be prejudicial in two ways: First, they encourage the jury to speculate about evidence beyond that presented at trial; and, second, they ‘provide a preemptive explanation for the state’s failure to present evidence that the jury might expect it to present.’”State v. Banks, 367 Or 574, 481 P3d 1275 (2021).
Area(s) of Law:- Criminal Law
State v. Center
As the Supreme Court has explained, “the purpose of the common-law rule and the statute that now embodies it,” i.e., ORS 136.425(1), “is to exclude potentially false—and thus unreliable—confessions from evidence.” State v. Powell, 352 Or 210, 222, 282 P3d 845 (2012).
Area(s) of Law:- Criminal Law
State v. Hubbell
An “attempt” under ORS 161.405(1) requires an act that is “strongly corroborative of the actor’s criminal purpose” such that it “(1) advance[s] the criminal purpose charged and (2) provide[s] some verification of the existence of that purpose.” State v. Walters, 311 Or 80, 85, 804 P2d 1164, cert den, 501 US 1209 (1991)
Area(s) of Law:- Criminal Procedure
State v. Wulf
ORS 811.365(1)(a) prohibits U-turns in any intersection with an electrical traffic control signal (unless “posted otherwise,” which was not the case here).
Area(s) of Law:- Criminal Law
State v. Gocan
The Oregon Supreme Court has announced that “a ‘proper occasion’ to give the witness-false-in-part instruction exists when, considering the testimony and other evidence a party has brought to the court’s attention in support of the requested instruction, the trial court concludes that sufficient evidence exists for the jury to decide that at least one witness consciously testified falsely and that the false testimony concerns a material issue.” State v. Payne, 366 Or 588, 600, 468 P3d 445 (2020).
Area(s) of Law:- Evidence
October 39 summaries
Johnson v. Premo
Witness testimony not provided to the trier of fact could have a tendency to affect the verdict even if the testimony only coincides with other evidence.
Area(s) of Law:- Post-Conviction Relief
Koenig v. State Farm Mutual Automobile Ins. Co.
An award of economic damages including damages paid by PIP in an undetermined amount does not prevent a PIP offset in a UIM claim. Wade v. Mahler, 167 Or App 350, 355-58, 1 P3d 485, rev den, 331 Or 334 (2000).
Area(s) of Law:- Insurance Law
Mouktabis v. M.A.
Statements made as part of a judicial proceeding are absolutely privileged, meaning that they cannot form the basis for a defamation claim. Chard v. Galton, 277 Or 109, 112, 559 P2d 1980 (1977).
Area(s) of Law:- Tort Law
State v. Jones
For an appellate court to uphold a trial court’s ruling on the basis that it was “right for the wrong reason,” (1) the facts of record must be sufficient to support the alternative basis for affirmance; (2) the trial court’s ruling must be consistent with the view of the evidence under the alternative basis for affirmance; and (3) the record must materially be the same one that would have developed had the prevailing party raised the alternative basis for affirmance below. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001).
Area(s) of Law:- Evidence
State v. Martinez
OEC 404(3) bars the use of other-acts evidence “to prove that a person has a propensity to engage in certain types of behavior and that the person acted in conformance with that propensity on a particular occasion.” State v. Skillicorn, 367 Or 464, 476, 479 P3d 254 (2021). When other-acts evidence is offered under OEC 404(3), the proponent must articulate a theory of relevance that does not logically depend on propensity reasoning. See State v. Levasseur, 309 Or App 745, 753, 483 P3d 1167, clarified and adh’d on recons, 312 Or App 733, 489 P3d 630 (2021).
Area(s) of Law:- Evidence
Walker v. Oregon Travel Information Council
Under Greist v. Phillips, 322 Or 281, 295, 906 P2d 798 (1995), factual findings made by a jury do not prevent a court from making different factual findings in a separate matter in equity.
Area(s) of Law:- Civil Procedure
Dalbeck v. Bi-Mart Corp.
Under ORS 659A.403, places of public accommodation may not discriminate against anyone aged 18 or older based on their age unless there is a statute expressly allowing such discrimination.
Area(s) of Law:- Civil Law
Department of Human Services v. J. L. J.
To preserve an error for appeal, “‘a party must provide the trial court with an explanation of [his or her] objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately.’” Senvoy, LLC v. Employment Dept., 312 Or App 387, 388-39, ___ P3d ___ (2021) (quoting State v. Vanornum, 354 Or 614, 632, 317 P3d 889 (2013)).
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. H. M. I. F.
In assessing whether a permanency plan should be changed from reunification, “both DHS’s efforts and a parent’s progress are evaluated by reference to the facts that formed the bases for juvenile court jurisdiction.” Dept. of Human Services v. N. T., 247 Or App 706, 715, 271 P3d 143 (2012).
Area(s) of Law:- Family Law
Dept. of Human Services v. T. N. M.
A juvenile court may assert jurisdiction over a child under ORS 419B.100(1)(c) when it finds that, considering the totality of the circumstances, the child’s conditions or circumstances endanger the child’s welfare. When a parent’s alleged risk-causing conduct is at issue, DHS has the burden of demonstrating a nexus between the parent’s conduct and the threatened harm to the child. Dept. of Human Services v. L. E. F., 307 Or App 254, 258, 476 P3d 119 (2020), rev den, 367 Or 559 (2021).
Area(s) of Law:- Family Law
Ebright and Ebright
Under ORS 107.105(1)(f), which provides, in part, that “the court may provide in the judgment . . . [f]or the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances.”
Area(s) of Law:- Family Law
Harned v. Amsberry
As stated in Jones v. Mississippi, in sentencing a juvenile homicide offender, “a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” After Jones, so long as the court is allowed to consider relevant mitigating circumstances and has the discretion to impose a lesser sentence than life without parole, no more is required.
Area(s) of Law:- Post-Conviction Relief
State v. Buell
Under State v. Korth, 269 Or App 238 (2015), a defendant charged with theft-by-receiving must have particularized knowledge or believe that the goods are stolen and “[p]ossession [of] or proximity to stolen goods * * * does not, on its own, allow for a finding that a person actually knows or believes that they are stolen.”
Area(s) of Law:- Criminal Law
State v. Halvorson
Double jeopardy may be triggered by an “ostensibly civil proceeding” if that proceeding is “so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.” Hudson v. United States, 522 US 93, 99, (1997). Under ORS 137.106(1)(a), if the victim in a criminal case has suffered economic damages, the defendant must repay those damages in full.
Area(s) of Law:- Remedies
State v. Henry
For restitution award purposes, a trial court may not find that an amount paid was reasonable based solely on the fact of payment by CVCP. State v. J. M. E., 299 Or App 483, 489, 451 P3d 1018 (2019). Medical costs that are at or below the market rate are considered reasonable. State v. Workman, 300 Or App 622, 623-24, 455 P3d 566 (2019).
Area(s) of Law:- Remedies
State v. Osborn
A defendant can be restrained at trial if they pose an “immediate and serious risk of dangerous or disruptive behavior.” State v. Moore, 45 Or App 837, 839-40 (1980). Further, the trial court’s decision to restrain a defendant must be supported by developing a record of the basis for choosing to exercise its discretion.
Area(s) of Law:- Criminal Law
State v. Phillips
The term “vehicle” in ORS 164.135(1)(a) covers items such as trailers and conduct such as towing. State v. Eastep, 361 Or 746, 756–57, 399 P3d 979 (2017). The failure to include a “lesser-included offense can impermissibly enhance the risk of an unwarranted conviction” when (1) the “element that elevates the lesser-included offense to the greater one is doubtful” and (2) “there must be substantial evidence of a serious lesser offense.” Perida-Alba v. Coursey, 356 Or 654, 665, 342 P3d 70 (2015).
Area(s) of Law:- Criminal Law
Dept. of Human Services v. J. S. E. S.
The determination to terminate parental rights under ORS 419B.500 is focused on the needs of the child. Dept. of Human Services v. T. M. D., 365 Or 143, 166, 442 P3d 1100 (2019).
Area(s) of Law:- Family Law
State v. Carter
Lay opinion testimony is not relevant to prove the truth or falsity of a person’s statement. See State v. Chandler, 360 Or 323, 334, 380 P3d 932 (2016). “If there is little likelihood that the error affected the verdict, [an appellate court] will not reverse on the basis of that error.” State v. Nguyen, 293 Or App 492, 498, 429 P3d 410 (2018).
Area(s) of Law:- Evidence
State v. Montgomery
Under ORS 163.545, whether a child is “unattended” for purposes of child neglect turns on whether there was or was not a responsible person present who can take care of the child’s needs. That determination is made considering the totality of the circumstances, including the child’s age, the location where the child is left, and the period of time the child was left.
Area(s) of Law:- Criminal Law
State v. Perrodin
Under State v. Jennings, 220 Or App 1 (2008) and State v. Dodge, 223 Or App 130 (2008), when a defendant challenges an arrest based on a facial deficiency to a warrant, the state must either produce the warrant or defend the arrest as a valid warrantless arrest supported by probable cause.
Area(s) of Law:- Criminal Procedure
Barnes & Brennan
Under State v. Saunders, 294 Or App 102 (2018), “when a party has invited the trial court to rule in a certain way under circumstances suggesting that the party will be bound by the ruling or * * * will not later seek a reversal in the basis of that ruling” the party cannot then complain based on that invited error.
Area(s) of Law:- Attorney Fees
Bo and Lia Holdings LLC v. 2021 Morrison LLC
Prescriptive easements permit a “person to acquire an interest in land without paying the owner for it,” Wels v. Hippe, 360 Or 569, 578, (2016), modified on recons, 360 Or 807, (2017), and protect “established patterns of land possession” by “rewarding the long-time user of property, fulfilling expectations fostered by long use, and conforming titles to actual use of the property.” Albany & Eastern Railroad Co. v. Martell, 366 Or 715, 720 (2020).
Area(s) of Law:- Property Law
Dept. of Human Services v. C. C.
Under ORS 419B.815 and ORS 419B.816, “once a parent has failed to personally appear at a hearing for which the parent had proper notice… the juvenile court may choose to either immediately proceed with a hearing on the dependency petition or postpone that hearing to a later date. If the court takes the latter course, nothing [in the statutes] requires the court to notify that parent of the newly set hearing date.”
Area(s) of Law:- Juvenile Law
Ingle v. Matteucci
The “escape clause” exists to give a person extra time to file a petition for post-conviction relief in “extraordinary circumstances,” personal characteristics are not currently relevant to the escape clause.
Area(s) of Law:- Post-Conviction Relief
Markstrom v. Guard Publishing Co.
Under Laack v. Botello, 314 Or App 268 (2021), without statutory authorization courts lack the inherent authority required to strike pleadings or claims, which ORS 1.010 does not provide. Under ORCP 46, a court may impose sanctions only for the narrowly described conduct contained in the rule.
Area(s) of Law:- Civil Procedure
State v. Bates
Imposing conditions of probation in a judgment that have not been announced in open court at sentencing constitutes reversible error generally entitling a defendant to resentencing.
Area(s) of Law:- Sentencing
State v. Fitzgerald
A trial court must have ample opportunity to address a request made to the court in order to preserve an issue on appeal.
Area(s) of Law:- Criminal Procedure
State v. Hackett
Testimony that outlines the severe nature of a person's kicking an animal and throwing rocks at the animal is alone sufficient to support a reasonable inference that the animal experienced pain that was more than fleeting or momentary. State v. Colpo, 305 Or. App. 690, 695, 472 P.3d 277, rev. den., 367 Or. 290, 476 P.3d 1255 (2020).
Area(s) of Law:- Criminal Law
State v. Hassan
Evidence to prove motive is relevant if it has the tendency to make the motive more or less likely and the evidence is based on a rational relationship between the issues to be proven and the motive.
Area(s) of Law:- Evidence
State v. Huynh
Under ORS 136.785(3), enhancement facts must be found by the jury “equal to or greater than the number of jurors that was required to find the defendant guilty of the crime.”
Area(s) of Law:- Sentencing
State v. J.D.
Under State v. J.G., 302 Or App 97 (2020) and State v. Bodell, 120 Or App 548 (1993), a person can be found “dangerous to others” for purposes of ORS 426.005(1)(f)(A) based on verbal threats without acts of violence “if the evidence provides a foundation for predicting future violent behavior.”
Area(s) of Law:- Civil Commitment
State v. M. L.
For a person to be involuntarily committed, the State must establish a "particularized" and "highly probable" threat sufficient to show that the person is a danger to self within the meaning of ORS 426.005(1)(f)(A). State v. S. R. J., 281 Or App 741, 749, 386 P3d 99 (2016).
Area(s) of Law:- Criminal Law
State v. Schumacher
Under State v. Veatch, 223 OR App 444 (2008), testimonial “[r]eference to a defendant’s exercise of a constitutional right” from which a jury is likely to infer guilt “jeopardizes the right to a fair trial[,]” particularly when it goes uncured.
Area(s) of Law:- Criminal Procedure
State v. Thornsberry
Any fact that increases a criminal penalty past a statutory maximum must be a fact found by a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 US 466, 490, 120 S Ct 2348, 147 L Ed 2d 435 (2000).
Area(s) of Law:- Sentencing
United Academics of OSU v. OSU
A substantial reason argument alleging insufficient reference to the record or consideration of the evidence (or "cherry-picking") misconstrues the standard as laid out in Jenkins, which does not require a complete recounting of all evidence. Mendacino v. Board of Parole, 287 Or. App. 822, 838, 404 P.3d 1048 (2017), rev. den., 362 Or. 508, 424 P.3d 724 (2018). While it may be possible to draw different inferences from the evidence, that does not imply that the inferences drawn by the ERB were unreasonable, and the Court is not empowered, under its standard of review, to displace reasonable and reasoned inferences drawn by the Board. City of Roseburg v. Roseburg City Firefighters, 292 Or. 266, 271, 639 P.2d 90 (1981).
Area(s) of Law:- Employment Law
Block v. DEA Properties-2 LLC
Under Miller v. Jones, 256 Or App 392 (2013) and Jantzen Beach Associates v. Jantzen Dynamic Corp., 200 Or App 457 (2005), an appurtenant easement gives the owner of the dominant estate a benefit by virtue of their ownership of the land, is transferred with the land, and is not severable from the ownership of the land.
Area(s) of Law:- Property Law
Kurtz v. Cain
Under State v. Walker, 350 Or 540 (2011), counsel need not engage in detailed, comprehensive analysis in order to “put all on notice about the nature of a party’s arguments” and preserve issues for appeal.
Area(s) of Law:- Post-Conviction Relief
State v. Dickey
Under ORS 153.042(1), an enforcement officer may issue a citation only for conduct occurring in their presence and not the presence of another officer.
Area(s) of Law:- Criminal Law
November 19 summaries
SAIF Corporation v. Coria
Termination of benefits is reasonable if the insurer has “legitimate doubt” about its obligation to pay the claimant, and reasonableness is determined through the evidence accessible to the insurer at the time it terminated the benefits.
Area(s) of Law:- Disability Law
State v. McCall
A warrantless arrest requires the arresting officer to have “probable cause to believe that the person committed” a crime. State v. Owens, 302 Or 196, 211, 729 P2d 524 (1986). A warrantless arrest for UUV requires an officer to have an objective basis to believe a suspect, knowing the vehicle was stolen, “exercise[d] control over or otherwise used the vehicle.” 164.135(1); see State v. Gibson, 268 Or App 428, 433, 342 P3d 168 (2015). A warrantless arrest for PSV requires an officer to have an objective basis to believe a suspect was in possession of a vehicle when the suspect had “reason to believe” the vehicle was stolen. ORS 819.300; State v. Noe, 242 Or App 530, 532, 256 P3d 166 (2011).
Area(s) of Law:- Criminal Procedure
Dept. of Human Services v. D.E.P.
Termination of parental rights must be shown by clear and convincing evidence that it is highly probable that doing so is in the best interest of the child. Dept. of Human Services v. T.L.M.H., 294 Or. App. 749, 750 (2018).
Area(s) of Law:- Family Law
Interiano v. SAIF
Under ORS 656.005(7)(a)(B), two separate conditions must be identified; a “preexisting condition and its symptoms are not separate conditions.” Carrillo v. SAIF, 310 Or App 8, 12, 484 P3d 398, rev den, 368 Or 560 (2021).
Area(s) of Law:- Workers Compensation
Wilsonville Subaru v. City of Wilsonville
Under Wilsonville City Code 11.040(5)(e), developers may request alternative calculations of system development charges based on special or unique factors while the development is “in the process of receiving city approval.”
Area(s) of Law:- Municipal Law
Bondick v. Lane County Circuit Court
When an application for a fee waiver under ORS 21.682 demonstrates a person is eligible, the court must develop the record or provide an explanation if it denies the request. Stanwood v. Multnomah County, 135 Or App 58, 61, 898 P2d 196 (1995).
Area(s) of Law:- Civil Procedure
Central Oregon Landwatch v. Deschutes County
Goal 6, or OAR 660-015-0000(6), is to “maintain and improve the quality of the air, water and land resources of the state.”
Area(s) of Law:- Land Use
Dept. of Fish and Wildlife v. Crook County
While a mitigation plan prepared for ORS 215.446 approval must be “concordant with the Mitigation Policy and not show any substantive conflicting elements,” the plan “need not follow the submittal requirements set out in OAR 635-415-0020(8).”
Area(s) of Law:- Land Use
N. F. M. v. Khalidi
ORS 107.716(3)(a) permits continuation of a restraining order if “petitioner reasonably fears for the petitioner’s physical safety” and “respondent represents a credible threat to the physical safety of the petitioner or the petitioner’s child.”
Area(s) of Law:- Civil Law
Ragaway v. City of Portland
Under ORS 30.265(6), “[e]very public body and its officers, employees and agents acting within the scope of their employment or duties . . . are immune from liability for . . . [a]ny claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”
Area(s) of Law:- Preemption
State v. Taylor
To admit other acts evidence as evidence of a spurious plan, the State must show (1) “not merely a similarity” in results, but concurrence of “common features” that are naturally explained “as caused by a general plan” and (2) “something more than the similarity required for other crimes evidence to be admissible to prove intent.” State v. Leistiko, 352 Or 172, 181, 188–89, 282 P3d 857 (2012).
Area(s) of Law:- Evidence
Dept. of Human Services v. V.M.
UTCR 5.030(1) "pertains only to time limits for responding to motions" and "does not address time limits for filing motions." "If a fact cannot be fairly implied by the original jurisdictional bases, the juvenile court errs if it relies on that fact to continue dependency jurisdiction." See Dept. of Human Services v. G. E., 243 Or App 471, 479 (2011).
Area(s) of Law:- Juvenile Law
Moyer v. Columbia State Bank
If a trial court deems a reply memorandum to be a motion for summary judgement, and the opposing party fails to file a response within 20 days, the court may make its summary judgement ruling without the benefit of the opposing party's response. ORCP 47 C.
Area(s) of Law:- Civil Procedure
SAIF v. Lynn
Under ORS 656.005(7)(a), “[i]f a person is injured at work, that injury is compensable if it “aris[es] out of and in the course of employment.”
Area(s) of Law:- Workers Compensation
State v. Lile
“ORS 137.106 authorizes a trial court to order restitution ‘[w]hen a person is convicted of a crime that has resulted in economic damages.’”
Area(s) of Law:- Criminal Procedure
State v. Madden
Physical restraint without an officer safety justification, regardless of duration, coupled with circumstances that would cause a reasonable person to understand they were not free to leave, convert a stop into an arrest.
Area(s) of Law:- Criminal Procedure
State v. Sanchez
Evidence depicting that Defendant struck the victim, who was an 86-year-old woman, with an open fist and caused "significant, dark-colored bruising" that remained for at least two and a half weeks was sufficient to support a reasonable inference that the victim suffered substantial pain. State v. Miller, 311 Or App 680, 684 (2021).
Area(s) of Law:- Criminal Law
State v. Tate
Unless, during a continuous transaction relating to the search in question, a defendant indicates verbally or by conduct that they wish for their voluntary consent to no longer be valid, it is presumed to continue. State v. Luther, 63 Or App. 86, 89, 663 P2d 1261 (1983).
Area(s) of Law:- Criminal Procedure
Williams and Williams
ORS 107.135(3)(b) states, “If the judgment provided for a termination or reduction of spousal support at a designated age in anticipation of the commencement of pension, Social Security or other entitlement payments, and if the obligee is unable to obtain the anticipated entitlement payments, that inability is sufficient change in circumstances for the court to reconsider its order of support.”
Area(s) of Law:- Family Law
December 41 summaries
State v. Keys
“[B]y entering a plea, without objection, in the presence of counsel, defendant waived the preliminary hearing required” by the Oregon Constitution. State v. Sheppard, 35 Or App 69, 581 P2d 549 (1978), rev den, 285 Or 1 (1979).
Area(s) of Law:- Criminal Procedure
Dept. of Human Services v. T. L. M.
A juvenile court is authorized to order a psychological evaluation only where such an evaluation “is for a service that is rationally related to the findings that bring the child into the court’s jurisdiction.” W. C. T.,314 Or App at 776.
Area(s) of Law:- Juvenile Law
Double Tree Hotel v. Ansarinezhad
The plain and unambiguous text of the ORS 656.256 shows that the only plausible reading of the phrase “notice as required by this section” under subsection (4) is that such notice refers to the “notice of an accident” described in the preceding subsections (1), (2), and (3). 316 Or App 51 (2021).
Area(s) of Law:- Employment Law
Haas v. Estate of Mark Steven Carter
Under UCJI 23.02, when multiple causal factors “operate either independently or together to cause injury,” any one of those factors “may be a cause of the injury” so long as it “was a substantial factor in causing the injury.”
Area(s) of Law:- Tort Law
King v. Gallagher Bassett Ins. Services
The medical causation component of claimant’s mental disorder claim presents a complex medical question that must be resolved on the basis of expert medical evidence. See Uris v. Comp. Dep’t, 247 Or 420, 426, 430 P2d 861 (l967).
Area(s) of Law:- Workers Compensation
Precision Castparts Corp - PCC Structurals v. Cramer
ALJs and the Workers' Compensation Board are not required to evaluate whether the ARU abused its discretion because they conduct de novo review of the ARU's impairment determination. Marvin Wood Products v. Callow, 171 Or App. 175, 180, 14 P3d 686 (2000).
Area(s) of Law:- Workers Compensation
State v. Austin
Under existing United States Supreme Court case law, “it is not obvious or beyond dispute that the federal constitutional right to be convicted only by unanimous jury verdict is the type of ‘relevant’ circumstance that a defendant must know for his waiver of the right to a jury trial to be knowing and intelligent.”
Area(s) of Law:- Criminal Law
State v. C. L. E.
Given the highly specialized and complex nature of juvenile defense, reliance on only interactions with juvenile clients--particularly those with diagnosed mental disabilities--to evaluate competency "reflects an absence of professional skill and judgment." State ex rel Juv. Dept. v. Welch, 12 Or App. 400, 507 P2d 401 (1973).
Area(s) of Law:- Juvenile Law
State v. Halfmoon
Under ORS 137.106(1)(a), a victim has 90 days to file for restitution for damage caused by the person convicted of a crime described in ORS 153.008; however, the 90-day timeline may be extended by the court for good cause.
Area(s) of Law:- Remedies
State v. Wedebrook
If a defendant is "instrumental in bringing about the error", the court is dissuaded from exercising its discretion to correct it. State v. Taylor, 295 Or App 32, 35-36, 433 P3d 486 (2018).
Area(s) of Law:- Criminal Law
Dorn v. Teacher Standards and Practices Comm.
“Our review function under ORS 183.450 ‘is not to substitute a court’s findings of fact for an ALJ’s [or agency’s] findings of fact, when there is substantial evidence in the record for [a] finding. This is true even when there is also substantial evidence to the contrary.’" Gaylord v. DMV, 283 Or App 811, 822, 391 P3d 900 (2017).
Area(s) of Law:- Administrative Law
Neel v. Lee
“A statutory claim for financial abuse has four elements: there must be (1) a taking or appropriation (2) of money or property (3) that belongs to an elderly or incapacitated per-son, and (4) the taking must be wrongful.” Church v. Woods, 190 Or App 112, 117, 77 P3d 150 (2003).
Area(s) of Law:- Civil Procedure
State v. Curiel
Fourth Degree Assault requires “substantial pain” experienced by the victim meaning the pain should not be fleeting or inconsequential. Statements which purport to explain an instance of domestic violence made within 24 hours of the incident are permissible.
Area(s) of Law:- Criminal Law
State v. Laune
The trial court plainly erred in assessing petitioner’s ability to pay attorney fees, it is incorrect to assume bail posted by a non-spouse third party belongs to a defendant. However, under the existing case law at the time of Defendant’s trial the court ruled correctly.
Area(s) of Law:- Criminal Law
State v. Summerlyn
It is plain error to instruct the jury that it can rule non-unanimously, but the unanimous guilty verdict made that error harmless. Departure from sentencing guidelines is permitted where there are compelling reasons to do so.
Area(s) of Law:- Criminal Procedure
State v. Venable
“When determining causation, a trial court must determine whether there is a ‘but-for’ connection between the victim’s damages and the crime and whether the victim’s economic damages were a reasonably foreseeable result of the defendant’s crime.” State v. Andrews, 366 Or 65, 69, 456 P3d 261 (2020).
Area(s) of Law:- Criminal Law
Stedman v. Department of Forestry
The fee for ATV registration is not a ‘charge’” under ORS 105.672(1) “paid ‘in return’ for the use of” particular land that would preclude recreational immunity under 105.688(3).
Area(s) of Law:- Tort Law
Erickson v. R&R Ranches, LLC.
Under Whittle v. Marion County Dist. Court, 108 Or App 463 (1991), ORS 90.255 authorizes attorney fees in any action having “a connection to a dispute under a residential lease or rental agreement subject to ORS chapter 90.”
Area(s) of Law:- Attorney Fees
Davis v. SAIF
Under SAIF v. Sumner, 313 Or App 434 (2021), injury arising from a task within a claimant’s course of employment, done for the employer’s benefit, is compensable even if done while the employee is off work.
Area(s) of Law:- Workers Compensation
Dept. of Hum. Servs. v. Z.M.
Juvenile courts may assert dependency jurisdiction over children whose conditions or circumstances are such as to endanger the welfare of the child or of others.
Area(s) of Law:- Juvenile Law
Moyer v. Columbia State Bank
In order to survive a motion to dismiss a breach of contract claim, plaintiffs must "plead ultimate facts... and not merely state legal conclusions", but are not required under ORCP 18 A to allege evidence. Fearing v. Butcher, 328 Or 367, 371, 977 P2d 1163 (1999).
Area(s) of Law:- Civil Procedure
Smith v. Airbnb, Inc.
As long as interactive computer service providers do not act in manners that transform them into content providers, their immunity under CDA 230 is not foreclosed. Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F3d 1157, 1162 (9th Cir 2008).
Area(s) of Law:- Civil Procedure
State v. Deatley
All investigative activities during a traffic stop are subject to subject matter and durational limitation, all activity must reasonably be related to the traffic stop or supported by an independent constitutional justification.
Area(s) of Law:- Criminal Procedure
State v. G.E.S.
Under ORS 419A.196, the acts from which an adjudication arises are those of the youth and not a third party.
Area(s) of Law:- Juvenile Law
State v. Stewart
In State v. Keller, 40 Or App 143, 145 (1979), the court clarified that "striking, slapping, etc. and comparable acts are not, as a matter of law, offensive physical contact within the meaning of ORS 166.065(1)(a)--instead, it remains a question for the fact-finder in each individual case whether under the specific circumstances the defendant subjected another to offensive physical contact."
Area(s) of Law:- Criminal Procedure
Upham v. Forster
The court has jurisdiction to enjoin public bodies from withholding records and order the production of improperly withheld documents, withholding means to retain and keep in one’s possession and control. Merely receiving the records after a lawsuit has been filed is not enough to “prevail,” Plaintiff did not revive a favorable judgment.
Area(s) of Law:- Civil Procedure
Chinese Consolidated Benevolent Assn. v. Chin
ORS 31.152 does not provide authority under ORCP 54 A(3) to award “any costs and disbursements, including attorney fees, provided by contract, statute, or rule.”
Area(s) of Law:- Civil Procedure
Dept. of Human Services v. E. J.
In order to overcome the privilege codified in ORS 419A.255, the party seeking to introduce evidence has the burden of showing that the contested records were not (1) history and prognosis information and (2) that they were not located in the supplemental confidential file or record of the case. Oregon Law Commission, Juvenile Records Work Group Report 14 (2013).
Area(s) of Law:- Juvenile Law
Miles v. Bi-Mart Corp.
Under ORS 656.005(7)(a), when a person is injured at work, that injury is compensable if it “aris[es] out of and in the course of employment.”
Area(s) of Law:- Workers Compensation
State v. Cross
“The defendant’s intent with respect to the scope of consent is unambiguously expressed, that manifestation of intent is controlling.” Id. at 539; see also State v. Winn, 361 Or 636, 643, 396 P3d 926 (2017).
Area(s) of Law:- Criminal Procedure
State v. Delatore
Under State v. Berrellez, 266 Or App 381 (2014), a delay caused by a defendant’s flight from justice where law enforcement has issued and attempted to follow up on an arrest warrant but “had no information as to the defendant’s location until his arrest[,]” does not provide a basis for dismissal on speedy trial grounds.
Area(s) of Law:- Criminal Procedure
State v. Hawthorne
“An exigent circumstance is “a situation that requires police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect’s escape or the destruction of evidence.” State v. Snow, 337 Or 219, 223, 94 P3d 872 (2004).
Area(s) of Law:- Criminal Procedure
Vannett Properties, LLC v. Lane County
Under Measure 49, “the authority to convert a lot to an authorized home site is not automatically transferred from a claimant to a subsequent owner simply by a sale of a lot.”
Area(s) of Law:- Property Law
Creekside Homeowners Assn. v. Creekside Golf Course
Under ORS 28.020, when a development’s CC&Rs do not require maintenance of a golf course nor prohibit residential development, a claim of waste cannot be sustained.
Area(s) of Law:- Contract Law
Diamond Heating, Inc. v. Clackamas County
Under the economic loss doctrine, Oregon imposes liability for negligence if one unreasonably creates a foreseeable risk of harm to others and the plaintiff can sufficiently allege facts establishing a duty of care beyond reasonable care. See J.H. Kelly, LLC v. Quality Plus Services, Inc., 305 Or App 565, 572 (2020); Paul v. Providence Health Systems-Oregon, 351 Or 587, 591 (2021). "To recover damages for purely economic harm, liability 'must be predicated on some duty of the negligence act to the injured party beyond the common law duty to exercise reasonable care to prevent foreseeable harm.’" Id.
Area(s) of Law:- Tort Law
Kerridge v. Jester
Under Albrich v. Allstate Ins. Co., 152 Or App 416 (1998), “a change in conditions or circumstances is more likely to constitute a valid basis for concluding that the enforcement of the judgment is no longer equitable [under ORCP 71 B(1)(e)] if the change makes enforcement of the judgment unnecessary or somehow thwarts the aim of the judgment.”
Area(s) of Law:- Civil Procedure
Marshall v. PricewaterhouseCoopers, LLP
Under Westwood Construction Co. v. Hallmark Inns, 182 Or App 624 (2002), when a judgment or order in a prior proceeding shows on its face “that a matter was actually determined, the determination is preclusive.”
Area(s) of Law:- Civil Procedure
Scott, Inc. v. City of Ontario
If a proposed land use is conditional within a zoning designation, then the use is not prohibited, and the city may not mark the application as such.
Area(s) of Law:- Land Use
State v. Arriaga-Mendoza
Under ORS 811.175(1), the material time period for a Driving While Suspended charge is not a specific date, but rather, “during a period when the person’s driving privileges or right to apply for driving privileges have been suspended or revoked[.]”
Area(s) of Law:- Criminal Law
Westhaven, LLC v. City of Dayton
The court of appeals only has jurisdiction to hear an appeal from a municipal court not of record when the petitioner challenges the constitutionality of the municipal ordinance for which he was convicted.
Area(s) of Law:- Appellate Procedure
Josephine County v. PERB
Under ORS 238.225, the Public Employees Retirement Board may set county Public Employees Retirement System (PERS) liability level at a level that would fund those liabilities.
Area(s) of Law:- Administrative Law