January 27 summaries
Antoine v. Taylor
To obtain relief… a post-conviction petitioner must show ‘that counsel failed to exercise reasonable professional skill and judgment, and that the 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
Dept. of Human Services v R. D.
The Department of Human Services has the burden of proof to show a connection between a parent’s risk-causing conduct and harm to the children, and that the risk is current, not speculative. Dept. of Human Services v. C. J. T., 258 Or App 57, 61–62, 308 P3d 307 (2013).
Area(s) of Law:- Juvenile Law
Dept. of Hum. Servs. v. N.S.C
The Department of Human Services (DHS) and juvenile court relied on ORS 419B.476 which says “’if the court determines that further efforts will make it possible for the ward to safely return home within a reasonable time,’ the court may ‘order that the parent participate in specific services for a specific period of time and make specific progress within that period of time.’”
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. R. O.
To determine if good cause exists, courts "need not identify the universe or totality of considerations that might bear on good cause” because “the trial court’s ‘good cause’ determination [is] ultimately predicated on a consideration that is legally sufficient by itself to establish ‘good cause’ and that is supported by evidence in this record.” Three Affiliated Tribes of Fort Berthold at 553.
Area(s) of Law:- Juvenile Law
Gibson v. ESIS
“[W]hether an agency’s ultimate conclusions from its findings of fact are supported by substantial reason turns on whether the agency’s order supplies a rational connection between the facts and the legal conclusions it draws from them such that the conclusions are sufficiently reviewable by an appellate court.” United Academics of OSU, 315 Or App at 355-56.
Area(s) of Law:- Workers Compensation
Michael v. Pugel
ORCP 71 B(1)(a) allows a court to relieve a party or legal representative from a judgment for: mistake, inadvertence, surprise, or excusable neglect.
Area(s) of Law:- Civil Procedure
Oregon Psychiatric Partners, LLP v. Henry
ORS 653.295(1) provides that a non-competition agreement between an employer and an employee “is voidable and may not be enforced by a court of this state unless” five criteria are met. The five criteria require that the agreement was presented in a certain manner and timeframe, the employee is a person described in ORS 653.020(3), the employer has a protectable interest, the employee’s salary exceeds a certain threshold, and the employer took certain action within 30 days after the employment termination date.
Area(s) of Law:- Employment Law
State v. F. T.
To determine whether an issue is “likely to evade review,” the question is not whether a person in youth’s same circumstances would also fail to obtain appellate review, but “whether the general type or category of challenge at issue is likely to evade being fully litigated.” Eastern Oregon Mining Association v. DEQ, 360 Or 10, 17, 376 P3d 288 (2016)
Area(s) of Law:- Juvenile Law
State v. Juarez-Hernandez
It applies only if either the declarant “testifies at the proceeding and is subject to cross-examination,” or the declarant “is unavailable as a witness” and certain criteria are met. OEC 803(18a)(b).
Area(s) of Law:- Evidence
State v. Leers
To obtain a conviction under ORS 165.572(1) for interference with making a report, the state must prove three elements: (1) that the defendant took an action—removing, damaging or interfering with a telephone; (2) that the action “had the effect of preventing or hindering another person from making a report to 9-1-1”; and (3) that the defendant did so intentionally. 259 Or App at 40.
Area(s) of Law:- Criminal Procedure
Twigg v. Opsahl
Under ORS 18.775, a court may find a garnishee liable for an amount equal to the value of unreported garnishable property held by the garnishee at the time of garnishment. According to ORS 18.615, “garnishable property” includes “monetary obligations owing to the debtor that are then in existence.”
Area(s) of Law:- Bankruptcy Law
Albrecht v. Emmert
“ORCP 68 governs the pleading, proof and award of attorney fees in all cases.” Anderson v. Dry Cleaning To-Your-Door, 249 Or App 104, 108, 275 P3d 181 (2012).
Area(s) of Law:- Attorney Fees
State v. Bales
After an appellate court remands based on an erroneous trial-court ruling, a trial court must not limit itself to considering whether it might again rule similarly (but on a permissible basis), but must also consider what effect its erroneous ruling had at the time it was made and whether the evidentiary record or the parties’ arguments might have developed in a materially different way at that time had the trial court not erred. See State v. Hightower, 368 Or 378, 491 P3d 769 (2021).
Area(s) of Law:- Criminal Law
State v. Keene
When a defendant is convicted of a lesser-included offense but lacks actual notice that a lesser-included offense is under consideration, her conviction is the product of a due process violation. State v. Barrie, 227 Or App 378, 206 P3d 256 (2009).
Area(s) of Law:- Constitutional Law
State v. Pitz
Under ORS 135.335(3), when a defendant enters a conditional guilty, reserving the right on appeal to “a review of an adverse determination of any specified pretrial motion,” and subsequently prevails on appeal, the defendant may withdraw the plea.
Area(s) of Law:- Criminal Procedure
State v. Street
Conduct that puts multiple persons at risk can support separate convictions under ORS 161.067(2). Jones v. State of Oregon, 246 Or App 253, 260 n 3, 265 P3d 75 (2011).
Area(s) of Law:- Criminal Procedure
State v. Pohle
The “suspension of driving privileges is civil and administrative, rather than criminal, in nature.” State v. Phillips, 138 Or App 468, 471, 909 P2d 882, rev den, 323 Or 114 (1996). Under ORS 801.557, a traffic violation is a “traffic offense that is designated as a traffic violation in the statute defining the offense, or any other offense defined in the Oregon Vehicle Code” punishable by a fine, but not imprisonment.
Area(s) of Law:- Criminal Procedure
Watt v. SAIF
Under ORS 656.005(7)(a), an injury is compensable if it arises out of and in the course of employment. The two prongs of the work-connection inquiry—the “arising out of” prong and the “in the course of” prong—must each be evaluated. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994).
Area(s) of Law:- Workers Compensation
Bundy v. Nustar GP LLC
ORS 656.019 “imposes a procedural limitation on when the claims described in the statute can be brought” and does not create an exception to the exclusive remedy provision of ORS 656.018.
Area(s) of Law:- Workers Compensation
Dept. of Human Services v. J. J. J.
Under State ex rel Dept. of Human Services v. G. R., 224 Or App 133 (2008), “the ‘excusable neglect’ standard in ORS 419B.923 must be construed liberally in favor of a parent’s fundamental interest in not having their parental rights ‘irrevocably terminated’ in their absence[,]” and asks whether there are “reasonable grounds to excuse the default.”
Area(s) of Law:- Family Law
I.K. v. Banana Republic, LLC.
A plaintiff under Oregon law can sue for negligent infliction of emotional distress where there is emotional harm from physical impact or violation of a legally protected interest. Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543, 558-561(1982). A legally protected interest is "an independent basis of liability separate from the general duty to avoid foreseeable risk of harm" and must be "of sufficient importance as a matter of public policy to merit protection from emotional impact." Philibert v. Kluster, 360 Or 698, 704-705. The emotional distress must also be one that could have been foreseeable result of the violation of the protected interest. Id.
Area(s) of Law:- Employment Law
Moody v. Oregon Community Credit Union
Although a party to a contract may only bring a breach of contract claim, an exception applies when the tort claim is predicated on a violation of a standard of care that exists independent of the contract. See Georgetown Realty v. The Home Ins. Co., 313 Or 97, 106 (1992).
PNW Metal Recycling, Inc. v. DEQ
Under Smith v. TRCI, 259 Or App 11 (2013) and ORS 183.310(9), an agency directive is a “rule” if it is “(1) of ‘general applicability’ and (2) not ‘necessarily required’ by a statute or validly promulgated rule.”
State v. Black
Hightower requires a trial court to consider if the record could have developed in a materially different way but for the erroneous exclusion.
Area(s) of Law:- Appellate Procedure
State v. Meacham
Attempts to elude an officer may support a conclusion that a person is the subject of an outstanding felony warrant. State v. Maciel-Figueroa, 361 Or 163, 181 (2017).
Area(s) of Law:- Criminal Procedure
State v. Phillips
A defendant is entitled to have the jury instructed on a properly raised defense if there is any evidence to support the presence of each element of the defense.
Area(s) of Law:- Criminal Law
State v. Wilcox
When a party unsuccessfully offers evidence as a whole, without segregating admissible from inadmissible parts of the offer, the trial court’s ruling sustaining an objection will be affirmed on appeal if part of the offer is inadmissible. See State v. Brown, 310 Or 347, 358-59, 800 P2d 259 (1990).
Area(s) of Law:- Criminal Law
February 38 summaries
Cruz-Salazar v. SAIF
By providing a process for claim closure in claims involving combined conditions, ORS 656.268(1)(b) (setting forth procedure for the denial of combined conditions), the legislature had created an exception to the “general rule” that a worker is to be compensated for total impairment that is caused in material part by the compensable injury. Caren, 365 Or at 487.
Area(s) of Law:- Workers Compensation
State v. Campoverde
“[F]or the purposes of Article I, section 9, all investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations. Accordingly, an officer is limited to investigatory inquiries that are reasonably related to the purpose of the traffic stop or that have an independent constitutional justification.” State v. Arreola-Botello, 365 Or 695, 451 P3d 939 (2019).
Area(s) of Law:- Criminal Procedure
State v. Carlson
If a defendant is a cardholder, then, under ORS 137.542(2), the trial court must impose supervision conditions related to usable marijuana, medical cannabinoid products, cannabinoid concentrates, and cannabinoid extracts in the same manner as it would impose supervision conditions related to prescription drugs.
Area(s) of Law:- Criminal Law
State v. Flores
According to ORS 138.035(3), a probation violation judgment is not appealable.
Area(s) of Law:- Appellate Procedure
C.J. v .Flores
ORS 163.763(2) provides that, to obtain a SAPO, a petitioner must prove by a preponderance of the evidence that: ‘(A) The petitioner reasonably fears for the petitioner’s physical safety with respect to the respondent; and (B) The respondent subjected the petitioner to sexual abuse.”’
Area(s) of Law:- Family Abuse Prevention Act
Kaser v. PERS
For the purposes of ORS 238.440, the term “determine” does not necessarily entail a robust investigation. Rather, “determine” is better understood to denote decision-making in which investigation may be incidental but does not play a primary role.
Area(s) of Law:- Employment Law
Phillips Sisson Industries, Inc. v. Hysell
Under the LLC Act, debt repayments are only distributions if they are "in respect of a member's interest." ORS 63.001(6).
Area(s) of Law:- Corporations
Rankin v. Landers
The writ of habeas corpus is appropriate for challenging pretrial detention, including the denial or amount of bail. See Collins v. Foster, 299 Or 90 (1985); Haynes v. Burks, 290 Or 75, 77 n 1, (1980) (both considering denial of pretrial release on writ of habeas corpus).
Area(s) of Law:- Criminal Procedure
Rudder v. Hosack
ORS 465.255 provides that “any owner or operator at or during the time of the acts or omissions that resulted in the release* * * shall be strictly liable for those remedial action costs incurred by the state or any other person that are attributable to or associated with a facility and for damages for injury to or destruction of any natural resources caused by a release.”
Area(s) of Law:- Environmental Law
State v. Benton
Under State v. Samuel, 289 Or App 618 (2017), whether a variance of proof is permissible turns on “whether the variance concerns a material element of the crime and whether the variance prejudiced the defendant” and “whether the defendant was * * * tried on the offense that was indicted by the grand jury.” Under State v. Smith, 310 Or 1 (1990), a citizen becomes a state agent “if the police [are] directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting the informant’s activities.” Under State v. Covington, 291 Or App 514 (2018), to establish a due process violation stemming from “a trial court’s failure to conduct an in camera review,” a defendant must “demonstrate that the items of which he sought review would have been material and favorable to his defense.”
Area(s) of Law:- Criminal Procedure
State v. Brady
Under the Sixth and Fourteenth amendments of the United States Constitution, a defendant's conviction by jury must be unanimous. Ramos v. Louisiana, 140 S. Ct. 1390 (2020). Under ORS 164.055(1)(c), selling is also an act of disposing of property and satisfies the elements of the statutes for first-degree theft if they commit "theft by receiving committed by buying, selling, borrowing or lending on the security of the property", and "[a] person commits theft by receiving if the person . . . disposes of property of another knowing or having good reason to know that the property was the subject of theft." ORS 164.095(1).
Area(s) of Law:- Criminal Law
State v. Reed
For a finding of compelling circumstances, the trial court must determine that the "circumstances of the ... interaction, viewed in their totality ... produce[d] 'the sort of police-dominated atmosphere that Miranda warnings were intended to counteract.'" State v. Roble-Baker, 340 Or 631, 641 (2006).
Area(s) of Law:- Criminal Procedure
State v. Woods
Under State ex rel Maney v. Hsu, 308 Or App 822, 827, 482 P3d 136, rev den, 368 Or 273 (2021), it must “plainly be the case” that subsequent Supreme Court decisions undercut the validity of prior decisions before the Court of Appeals will overrule its precedents.
Area(s) of Law:- Criminal Law
County of Klamath v. Ricard
Courts will “defer to [an] agency’s plausible interpretation of its own rule,” but otherwise will consider the text and context of the rule and “the rule’s adoption history.” Harris v. Dept. of Public Safety Standards, 287 Or App 111, 115, 400 P3d 1032, rev den, 362 Or 94 (2017).
Area(s) of Law:- Administrative Law
Gillett v. Tucker
“Expressions of opinion may be considered misrepresentations of fact where the parties are 'on unequal footing and do not have equal knowledge or means of knowledge.’” Frank v. Fitz Enterprises, Inc., 106 Or App 183, 186, 806 P2d 720 (1991).
Area(s) of Law:- Contract Law
Gutierrez v. Board of Parole
In determining justiciability, the court considers whether the court’s decision in the matter will have “some practical effect on the rights of the parties.” Dept. of Human Services v. A. B., 362 Or 412 (2018). To prevent mootness, a collateral consequence must exceed “mere speculation” and “have a significant probability of actually occurring[.]” Johnson v. Premo, 302 Or App 578, 592 (2020).
Area(s) of Law:- Civil Procedure
Little v. Branch 9 Design and Contracting, LLC
Under ORS 67.105(1), "all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law" and a "partnership is liable for loss or injury caused to a person . . . as a result of a wrongful act . . . of a partner acting in the ordinary course of business of the partnership or with the authority of the partnership." Oregon case law allows for a partner to engage in "enterprise in his own behalf while he is a member of a partnership" but in such a case "the consent of the other partners must be obtained before one partner may engage in a competitive enterprise." Liggett v. Lester, 237 OR 52, 58-59 (1964).
Area(s) of Law:- Business Law
McGuire v. SAIF
A board may make a determination that in reviewing an award of attorney's fee's, it will not consider any evidence that was "not previously made a part of the record.” Daniel L. Demarco, 65 Van Natta 1837, 1847 (2013).
Area(s) of Law:- Workers Compensation
McKeown v. McKeown
Arbitrators are authorized to decide the law and the facts submitted. Brewer v. Allstate Insurance. Co., 248 Or 558, 561, 436 P2d 547 (1968). Perceived procedural errors during arbitration are not grounds to vacate an award under ORS 36.705(1)(d). Id. at 562.
Area(s) of Law:- Arbitration
State v. Chase
Under ORS 131.135, in consideration of the totality of the circumstances and considering any circumstance, a warrant is “executed without unreasonable delay” to “commence” the prosecution when the state is “aware of a defendant’s location but fails to take any action to executive the warrant” or “takes only de minimis action.” State v. Washington, 266 Or App 133, 150 (2014), rev den, 356 Or 767 (2015).
Area(s) of Law:- Criminal Law
State v. Cotan
A person commits identity theft if they, with the intent to deceive or defraud, obtain, possess, transfer, create, utters, or converts to the person’s own use the personal identification of another person.
Area(s) of Law:- Criminal Law
State v. Martineau
The fact that a verdict was unanimous provides assurance in and of itself that no juror was ignored, and all jurors’ reasonable doubts were resolved.
Area(s) of Law:- Criminal Law
State v. McLaughlin
A burglar must have the intent to commit some other crime once they have entered the premises unlawfully.
Area(s) of Law:- Criminal Law
State v. Swenson
"Unless otherwise specified, a refusal to submit to a urine test, and a license suspension for refusing to submit to a urine test, have the same consequences as a refusal to submit to a breath test and license suspension for refusing to submit to a breath test." ORS 813.132.
Area(s) of Law:- Criminal Law
State v. Yerton
A conviction for criminal mistreatment requires the state to show a defendant caused a “physical injury” to a “dependent person.” ORS 163.205(1)(b). A “physical injury” includes an “impairment of physical condition.” Prevention of breathing qualifies as a “physical injury,” but strangulation does not necessarily give rise to “physical injury” in every case. State v. Merrill, 303 Or App 107, 121, 463 P3d 540 (2020), adh’d to as modified on recons, 309 Or App 68, 481 P3d 441, rev den, 368 Or 402 (2021).
Area(s) of Law:- Criminal Law
State v. Lucas
Under ORS 137.545(1)(a), trial courts possess discretionary authority to extend probation, but reversal is appropriate where the record establishes that a court had “extended defendant’s probation as a means of avoiding a hearing,” rather than having done so based on assessment of public safety or rehabilitation considerations. See State v. Baker, 235 Or App 321, 325, 230 P3d 969 (2010).
Area(s) of Law:- Sentencing
Wilson v. Laney
Under OEC 803, a startling event, rather than the will of the declarant, provides the requisite spontaneity to support the “excited utterance” exception to hearsay because the “pain, excitement or horror of the event had stilled the powers of reflection and had enabled the event itself to speak through the tongue of the declarant.” State v. Hutchison, 222 Or 533, 537, 353 P2d 1047 (1960).
Area(s) of Law:- Post-Conviction Relief
Dept. of Human Services v. A.H.
ORS 419B.476(2)(a) provides that to change a case plan, the court must make certain findings, including the reasonability of DHS’s efforts to transition the ward back into the home.
Area(s) of Law:- Family Law
Sandu v. Kumar
Plaintiff’s failure to list the partnership meant it could not be considered by the bankruptcy trustee, it remains part of the bankruptcy estate.
Area(s) of Law:- Corporations
State v. Ashbaugh
Under Article I, section 11, of the Oregon Constitution, before denying a defendant the right to waive counsel, a trial court must engage in colloquy with the defendant to assess whether their waiver of counsel is knowing and voluntary and that the defendant “understand[s] the risks of self-representation.” State v. Meyrick, 313 Or 125, 133, (1992).
Area(s) of Law:- Constitutional Law
State v. Buell
According to State v. Hubbell, 314 Or App 844, 870, 500 P3d 728 (2021), when ORS 475.005(8) is properly construed, an “attempted transfer” requires proof of an “incomplete or unsuccessful transfer” of a controlled substance from one person to another.
Area(s) of Law:- Criminal Law
State v. D.L.
For purposes of ORS 426.130(1)(a)(C) multiple violent acts or a violent act coupled with additional threats will demonstrate that a person is highly likely to engage in future violence; however, “[a]cts of violence are not required to establish that a person is dangerous; verbal threats may be sufficient, if the evidence provides a foundation for predicting future violent behavior.” State v. J. D., 315 Or App 316, 321, 499 P3d 113 (2021) (citing J. G., 302 Or App at 101 n 3).
Area(s) of Law:- Criminal Procedure
State v. Davis
To be relevant, evidence introduced to impeach a need only have a mere tendency to show bias or interest of the witness.
Area(s) of Law:- Evidence
State v. Gilkey
For the state to establish that a officer has not exceeded the scope of a stop, it must present evidence that (1) the officer perceived a circumstance-specific danger, and that perception was objectively reasonable, and (2) the officer decided that the questions asked were necessary to address that danger, and it is objectively reasonable that those questions would ameliorate or clarify the safety concern. Jimenez, 357 Or at 430.
Area(s) of Law:- Criminal Procedure
State v. Messer
A sentencing court shall allow a defendant to be considered for a sentence reduction or release programs unless there are substantial and compelling reasons to do otherwise.
Area(s) of Law:- Sentencing
State v. Park
A trial court plainly errs when it orders restitution where there is no evidence establishing that the defendant’s criminal conduct resulted in economic damages to the victim. See State v. Tippetts, 239 Or App 429, 244 P3d 891 (2010); State v. Martinez, 250 Or App 342, 280 P3d 399 (2012).
Area(s) of Law:- Criminal Law
State v. Shaw
“[P]rosecutorial knowledge which would bar a second prosecution after a plea of guilty on the first charge has to be knowledge which the prosecutor had or should have had at a time when he was in a position to call the attention of the court to the problem and move for joinder prior to the offer of a guilty plea on the first charge by the defendant and the acceptance of it by the court.” 20 Or App at 337.
Area(s) of Law:- Criminal Procedure
Thoens v. Safeco Ins. Co.
An insurer can be liable for the insured’s attorney’s fees if it leaves the safe harbor provisions of ORS 742.061(3) by injecting other issues that become a matter of live controversy that are not covered in ORS 742.061(3).
Area(s) of Law:- Insurance Law
March 40 summaries
Boyd v. Legacy Health
Under Henderson v. Jantzen Inc., 79 Or App 654 (1986), the mere assertion of a non-discriminatory reason for termination does not destroy a prima facie case for retaliation and wrongful discharge.
Area(s) of Law:- Employment Law
Hernandez v. Berger
When the record supports a lower court's finding that there was an inconsistency between a petitioner's testimony and that of their trial counsel, the Court of Appeals is bound by that factual finding. Davis v. Cain, 304 OrApp 356, 358 (2020).
Area(s) of Law:- Criminal Law
Lewis v. Worley
A settlor of a trust is entitled to attorney’s fees under ORS 20.105(1) if someone brings a claim against the trust without an objectively reasonable basis. "Although [ORS 130.815] says that the court may award fees 'to any party' in an action involving administration of a trust, it cannot justify an award of fees to a party that had no objectively reasonable basis for bringing the claims it did."
Area(s) of Law:- Trusts and Estates
Moody v. Dept. of Human Services
“By running a period of a specified number of days from a date of mailing, the legislature indicates its intention that the period extend exactly that number of days from the date of mailing and no more.” See Quillen, 159 Or App at 9-10.
Area(s) of Law:- Civil Procedure
Sedgwick CMS, Inc. v. Dover
“[T]he third-party statutes, understood together, require that a paying agency is an insurer that is responsible for paying benefits on a compensable claim at the time of settlement with a third-party tortfeasor.” Sedgwick CMS, Inc. v. Dover, 318 Or App 38, 50 (2022).
Area(s) of Law:- Workers Compensation
State v. Baker
Under State v. Williams, 49 Or App 893 (1980), where there is strong evidence that the defendant engaged in the conduct of conviction and the fact-finder acquits the defendant of charges related to a purportedly prejudicial statement, prejudice is minimal.
Area(s) of Law:- Criminal Procedure
State v. J. R.
“‘[A]djudication’ and ‘disposition’ of the allegations are understood to refer to distinct phases of delinquency proceedings,” M. A. S., 302 Or App at 701, and that, had the legislature intended the phrase detention “before adjudication on the merits” to mean detention before both the adjudication and the disposition stages, it would not have chosen to omit the term “disposition” from ORS 419C.145. Cf. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993).
Area(s) of Law:- Juvenile Law
State v. Merritt
“From the fact that the legislature made arrival of the protected party a prerequisite to the enforcement of a foreign restraining order that has not been presented to a sheriff or filed in the circuit court, we infer that the legislature intended that such an order would not be enforceable absent arrival.” See ORS 24.190.
Area(s) of Law:- Criminal Law
State v. Polezhaev
An officer has objective probable cause to arrest someone for possession of heroin if the facts known to the officer make it objectively reasonable to believe that it is more likely than not that the person possesses some amount of heroin. State v. Madden, 315 Or App 787, 795, 502 P3d 746 (2021).
Area(s) of Law:- Criminal Procedure
Stone v. CCXL, LLC
The common law elements of adverse possession are codified by ORS 105.620, requiring that claimants show that they and their predecessors in interest have maintained actual, open, notorious, exclusive, hostile, and continuous possession of the property for a period of at least 10 years.
Area(s) of Law:- Property Law
Evans v. Nooth
To obtain relief under Article I, section 11, of the Oregon Constitution, a post-conviction petitioner must show “that counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).
Area(s) of Law:- Post-Conviction Relief
State v. Alcaraz
A defendant who is approached by a law enforcement officer and asked to produce a fishing license cannot reasonably believe that they are free to leave and are therefore stopped. State v. Almahmood, 308 OrApp 795 (2021).
Area(s) of Law:- Criminal Procedure
State v. S. R.-N.
"[A] constitutionally significant deprivation of due process requires an assessment of the risk that a procedural failure resulted in the commitment." See Mathews v. Elridge, 424 US 319, 335 (1976).
Area(s) of Law:- Civil Commitment
Mohabeer v. Farmers Ins. Exchange
Oregon’s anti-SLAPP statute provides “an expedited procedure for dismissal of certain nonmeritorious civil cases without prejudice at the pleading stage.” Neumann v. Liles, 358 Or 706, 723, 369 P3d 1117 (2016). In the context of a special motion to strike, it is not premature for the court to decide whether prima facie evidence of the elements of the claim has been presented before full discovery or for a party to raise the issue on appeal of the denial of a special motion to strike.
Myhre v. Potter
"[T]he 20-day time limitation on interposing an objection to vacate or modify an arbitration award under ORS 36.705 and ORS 36.710 is not a shield against certain purely procedural objections[.]" "[A] petition to confirm an award initiates a special statutory proceeding that does not contain a limitation on the time period, after an arbitration award, within which the petition must be filed." ORS 18.180.
Area(s) of Law:- Alternative Dispute Resolution
RLF Liquidating, LLC v. McDonald Brothers, Inc.
A motion for leave to amend should be granted if it "would neither change nor add a claim or defense" and "it would not prejudice plaintiff[.]" Ramsey v. Thompson, 162 OrApp 139 (1999).
Area(s) of Law:- Attorney Fees
State v. Avila
For a Miles instruction, the State is required to present evidence that a physical condition makes a defendant more susceptible to the influence of intoxicants. State v. Huck, 100 Or App 193, 197, 785 P2d 785 (1990).
Area(s) of Law:- Criminal Procedure
State v. Banks
The exclusion of lay witness testimony is not harmless when it is admissible under OEC 701 and provides otherwise unavailable information, provides for expert witness impeachment, or provides “evidence from which a jury could infer the defendant’s mental state or level of intoxication.”
Area(s) of Law:- Evidence
State v. Jackson
Under ORS 810.420(2), an officer must be trained on the type of speed measuring device used.
Area(s) of Law:- Traffic Infractions
State v. Melecio
Under State v. Barnes, 66 Or App 896 (1984) and ORS 135.748(1)(e)(B), whether the state has unreasonably delayed the execution of a warrant and trial turn on whether the state has knowledge of or could reasonably found with minimal effort or sufficient due diligence, the defendant’s location.
Area(s) of Law:- Criminal Procedure
State v. Peltier
Under State v. Jacobson, 296 Or App 87 (2019) and State v. Guerrero, 277 Or App 837 (2016), in order to waive a constitutional right, the record must reflect a defendant’s intent to waive the right in question, as well as the defendant’s understanding of the right and consequences of waiver.
Area(s) of Law:- Criminal Procedure
State v. R. J. S.
Juvenile delinquency proceedings are not criminal trials. State v. N. R. L., 249 Or App 321, 324, 277 P3d 564 (2012), aff’d, 354 Or 222, 311 P3d 510 (2013).
Area(s) of Law:- Juvenile Law
State v. Soprych
A prosecutor’s reference to or comment on a defendant’s invocation of a constitutional right, such as the right to counsel, the right to remain silent, or the right to a trial, may prejudice a defendant’s ability to have a fair trial if the jury is likely to draw a negative inference from the exercise of that right. State v. Smallwood, 277 Or 503, 505-06, 561 P2d 600, cert den, 434 US 849, 98 S Ct 160, 54 L Ed 2d 118 (1977).
Dept. of Human Services v. B. F.
Failure to make the findings required by Dept. of Human Services v. W. C. T. is reversible error, even if the order was given before the decision in W. C. T. State v. Jury, 185 OrApp 132, 136 (2002).
Area(s) of Law:- Juvenile Law
State v. Gastiaburu
Proof of how much is paid in medical bills by an insurer is not enough by itself to sufficiently prove that the amount paid is reasonable for determining restitution.
Area(s) of Law:- Remedies
State v. Gonzalez-Coria
"When the police have obtained valid consent from someone with actual authority to search a place, the fact that it is a shared space is irrelevant, unless, at a minimum, a cotenant is present, claims a privacy interest in the space, and expressly objects to the search or refuses consent." Or. Const. Art. I, § 9.
Area(s) of Law:- Criminal Procedure
State v. Greeley
"[T]he right to counsel under Article I, section 11, includes the right to be represented by counsel during all critical stages of a criminal proceeding, unless the defendant voluntarily and intelligently waives that right.”
Area(s) of Law:- Criminal Procedure
State v. Jacoby
To establish probable cause, the officer, at the time of the stop, "must subjectively believe that a violation has occurred, and . . . that belief must be objectively reasonable under the circumstances." State v. Carson, 287 Or App 631, 634 (2017).
Area(s) of Law:- Criminal Procedure
State v. Krieger
An officer is limited to investigatory inquiries that are reasonably related to the traffic stop or must otherwise have an independent constitutional justification.
Area(s) of Law:- Criminal Procedure
State v. Laney
Under State v. Lien/Wilverding, 364 Or 750 (2019), it remains possible to abandon one’s privacy interest in an item based on the totality of the circumstances.
Area(s) of Law:- Criminal Procedure
State v. Rexroad
Under ORS 164.135, control must be actual and not merely constructive.
Area(s) of Law:- Criminal Law
State v Mashadda
Plain error review requires the error to be “apparent on the record without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). “[W]here the prosecutor presents some evidence to support restitution of a particular amount, and the defendant does not raise an objection to the amount of restitution . . . the trial court does not plainly err in imposing restitution in that amount.” State v. West, 249 Or App 257, 258, 274 P3d 892 (2012) (summarizing State v. Gruver, 247 Or App 8, 17, 268 P3d 760 (2011)).
Area(s) of Law:- Appellate Procedure
McPherson v. Coos Bay-North Bend Water Board
The collection of a public-safety fee by the Coos Bay-North Bend Water Board as an intermediary for the City of North Bend does not violate the city’s charter. Under Western Radio Services Co. v. Verizon Wireless, LLC, 297 Or App 446 (2019), declaratory judgment actions must end in “a declaration as to the rights of the parties.”
Area(s) of Law:- Municipal Law
Rogers v. Corvel Enterprise Comp, Inc.
Under Knaggs v. Allegheny Techs., 223 Or App 91 (2008), a cause of an injury is a material contributing cause of an initial injury if it is “a substantial cause that is more than a minimal cause.”
Area(s) of Law:- Workers Compensation
Schaefer v. Marion County
The statutory definition of "airports" does not include the land adjacent to runways. ORS 836.605(2).
Area(s) of Law:- Land Use
Smith v. Kelly
To be deficient, trial counsel must fail to exercise reasonable professional skill and judgment and as a result of that performance the petitioner suffers prejudice.
Area(s) of Law:- Post-Conviction Relief
Sound-Rite Plastics, Ltd. v. Wright
“Under Washington law, ‘an anticipatory breach occurs when one of the parties to a bilateral contract either expressly or impliedly repudiates the contract prior to the time of performance. A party’s intent not to perform may not be implied from doubtful and indefinite statements that performance may or may not take place.’” Wallace Real Estate Inv., Inc. v. Groves, 124 Wash 2d 881, 898, 881 P2d 1010, 1019 (1994).
Area(s) of Law:- Contract Law
State v. V. L.
“[T]he facts in a juvenile petition that must be proved beyond a reasonable doubt under ORS 419C.400(2) are the facts described in ORS 419C.255(1)(b), and that that set of facts is separate from, and does not include, facts about a youth’s age. Thus, ORS 419C.400(2) does not require facts about a youth’s age to be established beyond a reasonable doubt.” See State v. Stamper, 197 Or App 413, 420, 106 P3d 172, rev den, 339 Or 230 (2005).
Area(s) of Law:- Juvenile Law
Upham v. Hummel
ORS 192.329(2)(b) and (f) provide that a public body's response to a public record request is complete if it asserts that the requested records are exempt from disclosure with a statement that the requester may seek review of the exemption. ORS 192.324(4)(a) provides that if there is no exemption, a "public body may establish fees reasonably calculated to reimburse the public body for the public body's actual cost of making public records available."
Area(s) of Law:- Administrative Law
Wetzel v. Sandlow
When determining the adequacy of a corporation’s capitalization, a court evaluates whether capital is sufficient to cover anticipated liabilities. Klokke Corp. v. Classic Exposition, Inc., 139 Or App 399, 405, 912 P2d 929, rev den, 323 Or 690 (1996). As part of the issue of veil-piercing, plaintiffs have the burden of proof for showing insufficient capitalization. See Rowden v. Hogan Woods, LLC, 306 Or App 658, 680, 476 P3d 485 (2020).
Area(s) of Law:- Business Law
April 34 summaries
Griffin Oak Prop. Invest. v. City of Rockaway Beach
No city official can bind a city to a smaller setback by incorrectly approving a site plan showing a smaller setback. Doney v. Clatsop County, 142 OrApp 497 (1996).
Area(s) of Law:- Land Use
State v. Azar
When determining the legislature’s intent when enacting a statute, courts examine the text, context, and legislative history of the statute. State v. Gaines, 346 Or 160, 171–72, 206 P3d 1042 (2009). A statute that provides a “reasonable degree of certainty” as to the prohibited conduct is not unconstitutionally vague. State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985).
Area(s) of Law:- Criminal Law
State v. Brown
Mere proximity to suspected criminal activity, or association with a suspected or known criminal, is insufficient to support reasonable suspicion. State v. Kingsmith, 256 Or App 762, 772, 302 P3d 471 (2013).
Area(s) of Law:- Criminal Procedure
State v. Dunn
The “preferred means of assuring that the defendant understand[s] the risks of self-representation” is a colloquy on the record. State v. Meyrick, 313 Or 125, 133, 831 P2d 666 (1992). A defendant’s request for self-representation may not be summarily denied by a trial court. State v. Miller, 254 Or App 514, 524, 295 P3d 158 (2013).
Area(s) of Law:- Criminal Procedure
State v. Storm
ORS 137.106 requires (1) criminal activity; (2) economic damages; and (3) a causal relationship between the two. The trial court has "the authority to make [their] own, independent, factual findings as to two of the three elements but "the restitution statute does not grant [a trial court] similar authority to make its own independent factual findings about the criminal act that the defendant committed." State v. Andrews, 295 Or App 195 (2018).
Area(s) of Law:- Sentencing
Wilkins and Wilkins
ORS 107.105(1)(d) provides that the trial court "shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision.” The factors for the court to consider include but are not limited to health and age of the parties; the standard living established during the marriage; work skills and experience of the parties; and any other factors that the court deems just and equitable. ORS 105(a)(d)(C).
Area(s) of Law:- Family Law
Brush and Brush
A trial court’s “just and proper” division of marital property requires consideration of both the statutory factors in ORS 107.105(1)(f) and equitable factors. Kunze and Kunze, 337 Or 122, 135, 92 P3d 100 (2004).
Area(s) of Law:- Family Law
State v. Edwards
Under the Oregon Constitution,“the fact of arrest does not grant an unqualified right to search an arrestee’s person for crime evidence,” State v. Owens, 302 Or 196, 201, 729 P2d 524 (1986), and requirements must be met for the exception to apply.
Area(s) of Law:- Criminal Law
State v. Farr
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. OEC 801(3). To establish first-degree criminal mischief under ORS 164.365(1)(a)(A), the state must prove that the defendant damaged another’s property “[i]n an amount exceeding $1,000.”
Area(s) of Law:- Criminal Law
State v. Miller
Article I, Section 9, prohibits “unreasonable” searches and seizures. A “stop” is a type of seizure that amounts to a “temporary detention” conducted “for investigatory purposes.” Maciel-Figueroa, 361 Or at 169-70. A stop must be justified by a reasonable suspicion of criminal activity. State v. Rodgers/Kirkeby, 347 Or 610, 621, 227 P3d 695 (2010).
Area(s) of Law:- Criminal Law
Sullivan v. SAIF
For a board's order to be supported by substantial evidence, it must point out “what findings the board made and how those findings led the board to its ultimate conclusion—that is, it must be supported by substantial reason.” Armstrong v. Asten-Hill Co., 90 Or App 200, 206, 752 P2d 312 (1988).
Area(s) of Law:- Workers Compensation
Dept. of Human Services v. L.M.K.
“Reasonable efforts” before a permanency hearing must allow enough time for a meaningful assessment of a parent’s progress toward reunification. Dept. of Human Services v. W. M., 310 Or App 594, 598-99, 485 P3d 316 (2021).
Area(s) of Law:- Juvenile Law
Durocher and Durocher
An expert witness’ testimony may be excluded when the witness’s evaluation was not conducted in compliance with the trial court’s order on the subject, even if the testimony is otherwise admissible.
Area(s) of Law:- Evidence
R.S.R. v. Dept. of Human Services
In absence of physical injury, a party may recover emotional and psychological damages if they establish that they have a “special relationship” with the other party. See Lowe v. Philip Morris USA, Inc., 207 Or App 532, 551, 142 P3d 1079 (2006).
Area(s) of Law:- Family Law
State v. Aranda
Under OEC 609(1), “[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted…”
Area(s) of Law:- Constitutional Law
State v. B.Y.
Juvenile courts lack the authority to impose consecutive commitments. Juvenile courts, like adult courts, do not possess the unlimited authority to impose consecutive commitments.
Area(s) of Law:- Juvenile Law
State v. Lee
“[N]o warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Ore. Const. Art. I, § 9.
Area(s) of Law:- Criminal Procedure
State v. McBean
ORS 162.325(1), A person commits the crime of hindering prosecution if they assist a person who has committed a crime punishable as a felony.
Area(s) of Law:- Criminal Procedure
State v. Moore
The amendments made to ORS 131.125 were intended to extend the limitations period in the case of incidents of sexual abuse that had not yet been barred under the previous statute.
Under ORS 161.067(3), a court can enter multiple convictions for criminal conduct involving the same conduct or criminal episode, same victim, and same statutory provision only if the violations are separated from one another by a “sufficient pause” in the defendant’s criminal conduct. State v. Bradley, 307 Or App 374, 380, 477 P3d 409 (2020).
- Criminal Law
State v. Newkirk
The Fourteenth Amendment right to due process was not intended to encompass the same right to a grand jury encompassed by the Fifth Amendment. Hurtado v. California, 110 US 516, (1884).
Area(s) of Law:- Sentencing
State v. Tardie
Search warrant expiration applies to execution, not search completion, and an Officer’s training linked to case facts establishes probable cause for a search warrant. See State v. Monger, 306 Or App 50, 472 P3d 270, rev den, 367 Or 291 (2020); see also State v. Cazee, 308 Or App 748, 482 P3d 140 (2021). Jury is improperly instructed when statutory definition of “knowingly” under ORS 161.085(1) is embellished.
Area(s) of Law:- Criminal Law
State v. Townsend
A person commits second-degree forgery when, "with intent to injure or defraud, the person utters a written instrument which the person knows to be forged,” ORS 165.007(1)(b), and in that context, “utter” means “to issue, deliver, publish, circulate, disseminate, transfer or tender a written instrument or other object to another,” ORS 165.002(7).
Area(s) of Law:- Criminal Law
Wirth v. Wirth
ORS 107.105(1)(d)(C) sets forth a nonexclusive list of factors, including earning capacity, that the court considers when awarding spousal maintenance support. In “assessing earning capacity, the court considers a range of considerations other than actual current income.” Crump and Crump, 138 Or App 362, 366, 908 P2d 839 (1995).
Area(s) of Law:- Family Law
Bialostosky v. Cummings
“‘Public body’ includes every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.” ORS 192.311(4).
Area(s) of Law:- Administrative Law
County of Linn v. State of Oregon
When it has been determined that a particular statutory scheme contains a contractual promise, the “standard of clear and unmistakable intent * * * focuses only on whether the legislature intended a particular * * * provision to be part of that promise.” Moro v. State, 357 Or 167, 203 (2015).
Area(s) of Law:- Contract Law
Donahue v. Nagel
“A promise to convey an interest in real property, no less than the conveyance itself, is subject to the statute of frauds.” Parthenon Construction & Design, Inc. v. Neuman, 166 Or App 172 (2000).
Area(s) of Law:- Property Law
Henretty v. Lewis
“[A] trial court legally errs when it fails to determine which parent is entitled to the statutory primary caregiver preference and then account for that preference in its custody determination.” Dickson and Schwartz, 313 Or App 616, 617-18 (2021).
Area(s) of Law:- Family Law
Monica v. Myers
It is a petitioner’s burden to demonstrate, by a preponderance of the evidence, that (1) counsel failed to exercise reasonable professional skill and judgment; and (2) petitioner was prejudiced as a result. See Trujillo v. Maass, 312 Or 431, 435 (1991).
Area(s) of Law:- Post-Conviction Relief
State v. De Leon Say
In State v. Skillicorn, the Supreme Court clarified that sexual-predisposition evidence is not propensity evidence. State v. Skillicorn, 367 Or 464 (2021).
Area(s) of Law:- Evidence
State v. Donaldson
“A person commits the offense of failure to yield to an emergency vehicle or ambulance if an ambulance or emergency vehicle that is using a visual or audible signal in a manner described under ORS 820.300 and 820.320 approaches the vehicle the person is operating and the person does not do all of the following: (a) yield the right of way to the ambulance or emergency vehicle; (b) immediately drive to a position as near as possible and parallel to the right-hand edge or curb of the roadway clear of any intersection; (c) stop and remain in such position until the emergency vehicle or ambulance has passed.” ORS 811.145.
Area(s) of Law:- Traffic Infractions
State v. Murphy
If a witness unambiguously vouched, it is plain error not to have stricken the testimony, even absent an objection; however, it is a matter of discretion whether to correct this error. See State v. Corkill, 262 Or App 543, 552-53 (2014); State v. Vanornum, 354 Or 614, 629 (2013).
Area(s) of Law:- Criminal Procedure
State v. Renard
When a court properly admits challenged testimony as nonscientific expert opinion, the court need not decide whether the testimony was also admissible as lay opinion. State v. Rambo, 250 Or App 186, (2012).
Area(s) of Law:- Evidence
State v. Smith
“If the law focuses on the forbidden effects, and the proscribed means of causing those effects include expression, then the law is analyzed under the second Robertson category,” determining whether it “appears to reach communication privileged by Article I, section 8, or whether the law can be interpreted to avoid such overbreadth.” State v. Robertson, 293 Or 402, 412 (1982); State v. Rangel, 328 Or 294, 300 (1999). The government cannot discriminate against kinds of speech based on the “ideas or opinion it conveys”. Iancu v. Brunetti, 139 S Ct 2294, 2499 (2019).
Area(s) of Law:- Constitutional Law
State v. Wagner
A witness testifying as an expert must have “the necessary skill and knowledge to arrive at an intelligent conclusion about the subject matter in dispute,” and a dangerous weapon is “any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.” Burton v. Rogue Valley Medical Center, 122 Or App 22, 26 (1993); ORS 161.015(1).
Area(s) of Law:- Criminal Procedure
May 37 summaries
State v. Jackson
“[T]he doctrine of chances, standing alone, is insufficient to make evidence * * * relevant[,]” and requires separate linkage that does not rely on prohibited inferences to the State’s proof of a material fact.
Area(s) of Law:- Evidence
Thomas v. Dillon Family Limited Partnership II
ORS 90.360(2) provides a tenant the right to damages and injunctive relief for a landlord’s noncompliance with the habitability requirements in ORS 90.320 and narrowly describes express and specific limitations for recovery of damages.
Area(s) of Law:- Landlord Tenant
Verardo v. Dept. of Transportation
To qualify for the application of discretionary immunity, the discretionary decision must: (1) be the result of a choice involving the exercise of judgment; (2) involve public policy as opposed to the routine day-to-day decision-making of public officials; and (3) be exercised by a body or person that has the responsibility or authority to make it. Turner v. State of Oregon, 359 Or 644, 652 (2016).
Area(s) of Law:- Qualified Immunity
Aung v. Cain
If “a defendant is restrained in a manner that is not visible to the jury, prejudice will not be presumed.” Sproule v. Coursey, 276 Or App 417, 425 (2016).
Area(s) of Law:- Post-Conviction Relief
Harmon v. Oregon Medical Board
Under ORS 676.175(1), the OMB is required to keep confidential and not disclose to the public “any information obtained by the board as part of an investigation of a licensee or applicant, including complaints concerning licensee or applicant conduct and information permitting the identification of complainants, licensees or applicants[.]”
Area(s) of Law:- Administrative Law
McNeil v. Geico Casualty Company, Inc.
In safe harbor provisions for UM/UIM claims, “damages due the insured” “refers to the type of damages that would be payable in that type of case, namely, the damages that the insured would be ‘legally entitled to recover’ from the uninsured or underinsured motorist.” Spearman v. Progressive Classic Ins. Co., 361 Or 584, 593 (2017).
Area(s) of Law:- Insurance Law
State v. Bryars
A verbal encounter rises to the level of a seizure “when the content of the questions, the manner of asking them, or other actions that police take (along with the circumstances in which they take them) would convey to a reasonable person that the police are exercising their authority to coercively detain the citizen[.]” State v. Backstrand, 354 Or 392, 412 (2013).
Area(s) of Law:- Criminal Procedure
State v. Parkerson
Whether a defendant “comes within *** ORS 161.735 is a question of fact to be determined by the court upon consideration of the presentence report, the psychiatric report, the evidence in the case or any evidence produced at the presentence hearing.” State v. Nickell, 302 Or 439, 443 (1986).
Area(s) of Law:- Criminal Procedure
State v. Preston-Mittasch
Under ORS 137.545 (5)(a), the court may revoke probation and either (A) impose the suspended sentence, or (B), “[i]f no other sentence has been imposed,” impose any other sentence that originally could have been imposed.
Area(s) of Law:- Sentencing
Atkinson v. Board of Parole and Post-Prison Supervision
The mere possibility that petitioner’s parole status could have changed from active to inactive at an earlier date is not a legally sufficient collateral consequence that would prevent dismissal of the case. Smith v. Board of Parole, 305 Or App 773, 776, rev den, 367 Or 387 (2020).
Area(s) of Law:- Criminal Law
Dept. of Human Services v. C. A. C.
The relevance threshold is “very low,” State v. Hampton, 317 Or 251, 855 P2d 621 (1993), and that the juvenile court may consider historical medical records, including mental health records, along with all the evidence as it determines whether to assert dependency jurisdiction.
Area(s) of Law:- Juvenile Law
Frehoo, Inc. v. Bureau of Lab. and Indus. of Oregon
To show a hostile workplace, an employee who is subjected to verbal or physical conduct of a sexual nature which was unwelcome and resulted in severe or pervasive conditions which alter their employment create an abusive work environment. The court looks at the totality of circumstances.
Area(s) of Law:- Employment Law
Hofer v. OHSU
Absolute privilege, a complete bar to liability for defamation, generally applies in governmental settings to statements made by public officials in the course of their public duties. Lowell v. Medford School Dist. 549C, 313 Or App 599, 604-05 (2021); Johnson v. Brown, 193 Or App 375, 380 (2004). To recover damages from one’s physician for emotional harm absent a physical injury, the physician’s standard of care must include a “specific duty to be aware of and guard against particular adverse psychological reactions or consequences to medical procedures.” Curtis v. MRI Imaging Services II, 327 Or 9, 14-15 (1998).
Area(s) of Law:- Tort Law
Jaynes v. Cain
Under the Oregon Constitution, to be entitled to post-conviction relief based on a claim of inadequate assistance of counsel, “a petitioner must prove two elements: first, that trial counsel failed to exercise reasonable professional skill and judgment, and second, that the petitioner suffered prejudice as a result of counsel’s inadequacy.”
Area(s) of Law:- Criminal Law
Lankford v. Cain
To receive relief, trial counsel’s failure to investigate must result in more than a mere possibility that the proceeding would have ended in a different result.
Area(s) of Law:- Post-Conviction Relief
Rojo-Garfias v. State
“When the law is not succinct and straightforward a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” See Padilla, at 559 US at 369.
Area(s) of Law:- Immigration
State v. Abbott
In the absence of a Meyrick colloquy, a trial court’s acceptance of a defendant’s waiver of counsel is proper if, when considering the totality of the circumstances, the record reflects that the defendant “substantially appreciates the material risks of self-representation in [their] case.” State v. Jackson, 172 Or App 414, 423 (2001).
Area(s) of Law:- Criminal Procedure
State v. Buchnoff
Under ORS 162.205(1)(a), “a person commits the crime of failure to appear in the first degree if the person knowingly fails to appear as required after having by court order been released from custody or a correctional facility under a release agreement or security release upon the condition that the person will subsequently appear personally in connection with a charge against the person of having committed a felony.”
Area(s) of Law:- Criminal Law
State v. Carr
The Sixth Amendment right to a jury trial requires a unanimous jury verdict to convict a defendant for a serious offense. Ramos v. Louisiana, ___ US ___ (2020).
Area(s) of Law:- Criminal Law
State v. Chemxananou
The “witness false in part” instruction provides “[t]hat a witness false in one part of the testimony of the witness may be distrusted in others[.]” ORS 10.095(3).
Area(s) of Law:- Criminal Law
State v. Haley
Under State v. Macon, 249 Or App 260 (2012), whether a particular space is a “building” under ORS 164.215 depends “on whether the area was self-contained from its parent building, including secure physical access, separate function, and separate occupation."
Area(s) of Law:- Criminal Law
State v. Houston
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” and information about the purpose and interest of an organization associated with a testifying interviewer is relevant to the jury’s evaluation. OEC 401; State v. Valle, 255 Or App 505, 809 (2013).
Area(s) of Law:- Criminal Procedure
State v. Marks
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.” See ORS 161.067(1).
Loss of reputation is considered “economic damages,” when the damages are objectively verifiable. See ORS 137.103(2); ORS 31.705(2)(a).
- Criminal Law
Taylor v. State Hospital
OAR 309-114-0010(1)(b)(C) authorizes “[i]nvoluntary administration of significant procedures with good cause.” OAR 309-114-0010(2)(a) provides that the Oregon State Hospital may consider a person incapable of consenting to significant procedures "only if the person currently demonstrates an inability to reasonably comprehend and weigh the risks and benefits of the proposed procedure…or no treatment at all.”
Area(s) of Law:- Administrative Law
Underwood v. City of Portland
“At the summary judgment stage, issue preclusion applies as a matter of law only if it can be conclusively established from the record that “all the Nelson requirements [are] sat-isfied.” Barackman v. Anderson, 338 Or 365, 372 (2005).
Area(s) of Law:- Criminal Law
Albany & Eastern Railroad Company v. Martell
Under Halperin v. Pitts, 352 Or 482 (2012) and the statute’s structure, ORS 20.080(2) permits attorney fee awards to defendants prevailing on equitable counterclaims, provided other requirements of the statute are met.
Area(s) of Law:- Attorney Fees
Clark v. University of Oregon
Unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff. Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987).
Area(s) of Law:- Tort Law
I.R.S. v. Hanington
The definition of abuse in the Elderly Persons and Persons with Disabilities Abuse Prevention Act is not constitutionally overbroad and does not require construction applying a heightened standard as in State v. Rangel, 328 Or 294 (1999).
Area(s) of Law:- Constitutional Law
Santoro v. Eagle Crest Estate Homesite Owners Assn.
“When one party to a contract is given discretion in the performance of some aspect of the contract, the parties ordinarily contemplate that that discretion will be exercised for particular purposes. If the discretion is exercised for purposes not contemplated by the parties, the party exercising discretion has performed in bad faith.” Best v. U. S. National Bank, 303 Or 557, 563, 739 P2d 554 (1987).
Area(s) of Law:- Property Law
State v. Actkinson
A person is not eligible for a downward departure sentence if they were on parole, probation, or post-prison supervision for a crime as listed in ORS 137.717(1)–including first degree theft–at the time of committing the crime at issue. ORS 137.717(6)(a).
Area(s) of Law:- Criminal Law
State v. Bostwick
Under ORS 162.355, a person falsely simulates the legal process when they intentionally transmit "fake, imitation, counterfeit, or pretend document that appears to be, in both form and substance, a genuine legal document."
Area(s) of Law:- Criminal Procedure
State v. Davis
To determine whether to admit evidence of uncharged acts of sexual misconduct in trials for sex crimes, the court must use the LeMay factors test, which considers: “(1) the similarity of the uncharged misconduct; (2) the temporal proximity of the uncharged acts to the charged acts; (3) the frequency of the prior acts; (4) the existence or nonexistence of intervening circumstances; and (5) the need for the evidence in addition to the testimony.” State v. Terry, 309 Or App 459, 465 (2021).
Area(s) of Law:- Evidence
State v. Jackson
With an Alford plea, a defendant does not admit guilt “but admits that sufficient evidence exists to convict him of the offense.” United States v. Ramirez-Gonzalez, 755 F3d 1267, 1273 (11th Cir 2014).
Area(s) of Law:- Parole and Post-Prison Supervision
State v. Nees
Article I, section 11, guarantees a criminal defendant the right to counsel. However, a defendant may waive that right if they do so knowingly and intentionally. State v. Langley, 351 Or 652, 669, 273 P3d 901 (2012).
Area(s) of Law:- Criminal Law
State v. Nolen
Under OEC 404(3), “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,’” is barred.
Area(s) of Law:- Evidence
State v. Waterman
Under ORS 164.365(1)(a)(A), a conviction of first-degree criminal mischief requires proof, among other elements, that Defendant "[d]amage[d] ... property of another***[i]n an amount exceeding $1,000[.]"
Area(s) of Law:- Criminal Law
Wedemeyer v. Nike Ihm, Inc.
ORCP 68 C(2)(a) provides: “A party seeking attorney fees shall allege the facts, statute, or rule that provides a basis for the award of fees in a pleading filed by that party. Attorney fees may be sought before the substantive right to recover fees accrues."
Area(s) of Law:- Attorney Fees
June 47 summaries
Dept. of Human Services v. K. J. V.
Pursuant to ORS 418.270(4), “a relinquishment becomes irrevocable once a child is placed in the physical custody of people for the purpose of adoption, unless ‘fraud or duress is affirmatively proved.’”
Area(s) of Law:- Juvenile Law
DHS v. M.H. and T. H.
ORS 419B.809(6) allows a juvenile court to direct that a petition be amended. See ORS 419B.809(6). “A court is bound by the juvenile court’s findings so long as there is any evidence in the record to support them.” Dept. of Human Services v. J.F.D., 255 Or App 742 (2013).
Area(s) of Law:- Juvenile Law
Johnson-Chandler v. The Reed Institute
“Good cause” is evaluated on a reasonable worker standard; if the worker knew enough facts that a reasonable worker could conclude that worker’s compensation liability was a reasonable possibility then notice to the employer would be appropriate. Juan Estrada, 69 Van Natta 71, 74 (2017).
Area(s) of Law:- Workers Compensation
State v. Finley
ORS 419C.370 provides: “(1) The juvenile court may enter an order directing that all cases involving: (a) Violation of a law or ordinance relating to the use or operation of a motor vehicle, boating laws or game laws be waived to criminal or municipal court[.]”
Area(s) of Law:- Criminal Law
State v. McKibben
“A person is “seized” for purposes of Article I, Section 9 in either one of two situations: “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh, 349 Or 297, 316 (2010) (emphasis in original; footnote omitted).
Area(s) of Law:- Criminal Law
State v. Moala
A photograph illustrating nonverbal behavior intended to constitute an assertion—a "statement," OEC 801(1)(b)—that is intended to prove the truth of the claim in the statement is hearsay.
Area(s) of Law:- Evidence
State v. Reyes Prado
“[P]robable cause is not a necessary prerequisite to asking a defendant for consent to perform field sobriety tests in the context of a DUII stop.” State v. Ramos, 149 Or. App. 269, 272 (1997) (emphasis in original). “In contrast, if an officer compels a defendant to participate in field sobriety tests, the officer must have probable cause, in conjunction with a recognized exception to the warrant requirement…to do so.” State v. Nagel, 320 Or 24 (1994).
Area(s) of Law:- Criminal Law
State v. Rodriguez
An officer’s initiation of a stop must be based on an objectively reasonable inference of illegal activity by that person, under the totality of the circumstances existing at the time of the stop. State v. Dampier, 244 Or App 547, 551, 260 P3d 730 (2011).
Area(s) of Law:- Criminal Procedure
Aponte v. State of Oregon
“Under Perez . . . the relevant question for escape-clause purposes is ‘whether a claim reasonably could have been raised from counsel’s perspective; petitioner’s age and other personal characteristics have no role in the analysis.’” Perez v. Cain, 367 Or 96, 113, 473 P.3d 540, 549 (2020).
Area(s) of Law:- Post-Conviction Relief
Dep't of Hum. Servs. v. M.E.M.
"On a motion to dismiss dependency jurisdiction, DHS bears the burden of proving by the preponderance of the evidence there is a present, credible threat of actual harm to the child and demonstrating 'a nexus between the allegedly risk-causing conduct and the harm to the child.'" DHS v. JM, 267 P.3d 402 (Or. Ct. App. 2015); DHS v. CJT, 308 P.3d 307 (Or. Ct. App. 2013).
Area(s) of Law:- Juvenile Law
Dep’t of Hum. Servs. v. J. H.
“[W]here one is holding over after expiration of his term under claim or color of right, his official acts are those of a de facto officer, and are valid as to the public and third persons,and cannot be collaterally assailed.” Hamlin v. Kassafer, 15 Or. 456 (1887).
Area(s) of Law:- Juvenile Law
OR-OSHA v. Loy Clark Pipeline, Co.
OAR 438-085-0526 provides: “(1) Unless otherwise provided by the Administrative Law Judge, amendments to the citation and to the request for hearing, including affirmative defenses, shall be allowed up to the date and time set for hearing. (2) An amendment made by OR-OSHA under this rule may not allege a new violation or increase a penalty.”
Area(s) of Law:- Administrative Law
State v. Delaurent
District attorneys are not law enforcement officers for the purpose of the wiretapping statute, ORS 165.540.
Area(s) of Law:- Criminal Law
State v. Garcia
The trial court has discretion to dismiss criminal charges before trial, and scientific evidence is admissible if it is relevant under OEC 401, if it would assist the trier of fact under OEC 702, and if its probative value is not substantially outweighed by the danger of unfair prejudice under OEC 403. State v. Stough, 148 Or App 353, 355 (1997); Jennings v. Baxter Healthcare Corp., 331 Or 285, 381 (2000).
Area(s) of Law:- Criminal Law
State v. Glickert
“The ‘critical question’ that distinguishes ‘relaxed conversation’ from ‘coercive questioning’ is … whether, given all the circumstances, a reasonable person would believe that their freedom of movement [is] being significantly restricted.” State v. Reyes-Herrera, 500 P.3d 1 at 61-62 (Or. 2021).
Area(s) of Law:- Evidence
State v. Horn-Garcia
Informing the jury of the consequences of a particular verdict does not in and of itself violate a defendant’s due process rights under the Sixth and Fourteenth Amendments or deprive the defendant of a fair trial, and “[a] trial court does not err in refusing to give a requested instruction ‘if the substance of the requested jury instruction, even if correct, was covered fully by other jury instructions given by the trial court.’” State v. Amini, 174 Or App 370, 383 (2001); State v. Harrison, 292 Or App 232. 240 (2018).
Area(s) of Law:- Criminal Law
State v. Morris
“A stop is lawful if the officer had an actual subjective belief that the person stopped committed a specific crime or was about to commit a specific crime, and the officer’s subjective belief was objectively reasonable based on the totality of the circumstances at the time of the stop.” State v. Maciel-Figueroa, 361 Or. 163, 165-6 (2017).
Area(s) of Law:- Evidence
State v. Raygosa
Under State v. Kammeyer, 226 Or App 210, an error is invited when a party is “actively instrumental in bringing about an alleged error.”
Area(s) of Law:- Criminal Law
State v. Reyes Castro
The preservation rule requires parties to present their challenges to a trial court prior to an appeal, and “restitution may be awarded under ORS 137.106 if defendant’s crime was a factual cause of the victim’s economic damages and those damages were the reasonably foreseeable consequence of the crime.” Peeples v. Lampert, 345 Or 209, 219 (2008); State v. Gerhardt, 360 Or 629, 636 (2016).
Area(s) of Law:- Criminal Law
State v. Westom
While the dictionary “establishes that, at its core, contact [used as a noun] involves a direct communication or a meeting,” “contact” can, in context, have a broader meaning. Boyd v. Essin, 170 Or App 509, 516. Knowledge, proximity, and the duration of the contact are factors to consider in assessing the term’s meaning.
Area(s) of Law:- Parole and Post-Prison Supervision
Tenorio v. Bowser
A petitioner may raise a challenge to the constitutional adequacy of their counsel’s assistance on post-conviction review. See ORS 138.530(1)(a). “To prevail on a post-conviction claim of inadequate assistance of counsel, the burden is on the petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Lambert v. Palmateer, 182 Or App 130, 135 (2002).
Area(s) of Law:- Post-Conviction Relief
Timber Town Living v. Dept. of Human Services
Violation severity is defined by ORS 4 41.731(2)(b), which creates four levels of severity: (1) a Level 1 violation “results in no actual harm or in potential for only minor harm”; (2) a Level 2 violation “results in minor harm or potential for moderate harm”; (3) a Level 3 violation “results in moderate harm or potential for serious harm”; and (4) a Level 4 violation “results in serious harm or death.”
Area(s) of Law:- Elder Law
DHS v. J.D.
When a juvenile court relies on facts concerning an “underlying cause” for jurisdiction, the underlying cause must be sufficiently identified in the jurisdictional judgment to provide a parent with the information needed to address the issue. Dep’t. of Human Services v. C.E., 288 Or App 649, 658 (2017).
Area(s) of Law:- Juvenile Law
DHS v. J.N.A.
To terminate a parent’s rights, a court must determine a parent unfit within the meaning of ORS 419B.504 and that it is in the best interests of the child to terminate rights pursuant to ORS 419B.500.
Area(s) of Law:- Juvenile Law
DHS v. R.H.
Per ORAP 5.45(3), “Each assignment of error must identify precisely the legal, procedural, factual, or other ruling that is being challenged.”
Area(s) of Law:- Juvenile Law
Neal v. Neal
To prevail on an appeal motion to reopen a probate estate, the petitioner must offer arguments addressing a lower court’s abuse of discretion in the matter. Neal v. Neal, 320 Or App 398 (2022).
Area(s) of Law:- Trusts and Estates
Precision Castparts Corp. - PCC Structurals v. Cramer
“An insurer’s conduct is not unreasonable if the insurer had a legitimate doubt about its liability.” Liberty Northwest Ins. Corp. v. Olvera-Chavez, 267 Or App 55 (2014).
Area(s) of Law:- Employment Law
Stancliff and Stancliff
In determining whether relocation is in the children’s best interests, a court must consider all of the relevant factors in ORS 107.137(1), bearing in mind that no one factor is dispositive. Sjomeling v. Lasser, 251 Or App 172, 188 (2012).
Area(s) of Law:- Family Law
State v. Dippre
A defendant commits the inchoate crime of attempted delivery of a controlled substance when that person takes a substantial step towards transferring a controlled substance. ORS 161.405(1).
Area(s) of Law:- Criminal Law
State v. Jacob
A motion in limine does not preserve OEC 403 objections to specific testimony at trial. State v. Pergande, 270 Or App 280, 282-83, 348 P3d 245 (2015).
Area(s) of Law:- Evidence
State v. M.D.M.
The “well-settled principle” that an issue generally must be raised in the trial court to be considered on appeal “applie[s] equally to civil commitment cases.” State v. K.J.B., 282 Or App 862, 867-68 (2016), aff’d, 362 Or 777 (2018); see also State v. Wyatt, 331 Or 335 (2000).
Area(s) of Law:- Civil Procedure
State v. McLarrin
A confession alone is insufficient to convict a defendant, and even so, “there must be some proof, aside from the confession, as to the relevant facts.” State v. Chatelain, 347 Or 278, 287 (2009).
Area(s) of Law:- Evidence
State v. Portulano
The Fourth Amendment, as the Court articulated its requirements in Missouri v. McNeely, 569 US 141 (2013), requires the state to establish, under a totality of the circumstances approach, specific facts establishing exigency.
Area(s) of Law:- Criminal Law
State v. Riverman
A defendant “may be ordered to pay restitution for a victim’s objectively verifiable monetary losses, including ‘reasonable’ medical and hospital charges that were ‘necessarily incurred.’” State v. Dickinson, 298 Or App 679, 680 (2019); ORS 31.705; ORS 137.103(2)(a) (generally adopting the definition of “economic damages” in ORS 31.705).
Area(s) of Law:- Criminal Law
Wave Form Systems, Inc. v. Hanscom
Under Aguire v. Albertson’s, 201 Or App 31 (2005) and Restatement (Second) of Judgments § 26(1)(a), parties that acquiesce to a split claim “waive[] the ability to assert the defense of claim preclusion[,]” even in the context of sequential proceedings.
Area(s) of Law:- Civil Procedure
1000 Friends of Or. v. Clackamas Cnty.
Short-term rental use of "dwellings" and "residences" on resource land is neither explicitly nor implicitly permitted pursuant to state law.
Area(s) of Law:- Land Use
Dept. of Human Services v. T.B.-L
“To establish a basis for juvenile court jurisdiction for purposes of ORS 419B.100(1)(c), the state must prove, by a preponderance of the evidence, that a child’s welfare is endangered because, under the totality of the circumstances, there is a current threat of serious loss or injury to the child that is reasonably likely to be realized.” Dept. of Human Services v. K. C. F., 282 Or. App 12, 19 (2016).
Area(s) of Law:- Family Law
Harmon v. State of Oregon
“Several factors are commonly examined to determine if a particular duty can be considered judicial or quasi-judicial for the purpose of extending immunity to the official performing the action.” Praggastis v. Clackamas County, 305 Or 419, 426 (1988). Those factors include “whether the official’s actions are functionally comparable to judicial actions or involve decisions normally performed by judges in their judicial capacity, whether the action depends on legal opinions or discretionary judgments comparing the facts of a present situation with general legal questions, and whether the acts in question are primarily concerned with the official’s role as a judicial or quasi-judicial officer.” Id.
Area(s) of Law:- Tort Law
State v. Ochoa-Perez
ORS 162.315, resisting arrest, does not require that a defendant intentionally create a substantial risk of harm.
Area(s) of Law:- Criminal Procedure
State v. Travis
Courts should determine whether the evidence is relevant for non-propensity purpose(s) under OEC 404(3) and, if so, determine if the probative value outweighs the potentially prejudicial value under OEC 403. If evidence is not relevant for non-propensity purpose(s), then a trial court must determine if the evidence is relevant under OEC 404(4) and further weigh the probative versus prejudicial value pursuant to OEC 403.
Area(s) of Law:- Evidence
Dept. of Human Services v. A. H.
“In determining whether a parent was on notice that his or her progress would be assessed based upon particular facts, we look to the petition, the jurisdictional judgment, and documentation attached to the jurisdictional judgment providing the parent notice as to the conditions for reunification.” Dept. of Human Services v. C. E., 288 Or App 649, 656-57, 406 P3d 211 (2017).
Area(s) of Law:- Juvenile Law
Homes Assoc. of Cedar Hills v. Craig
If “a contract is ambiguous, and there is relevant competing extrinsic evidence to resolve the ambiguity, ascertaining the meaning of the contract involves a question of fact and the dispute over the contract’s meaning cannot be resolved on summary judgment.” Adair Homes, Inc. v. Dunn Carney, 262 Or App 273, 278 (2014). If there is no relevant competing extrinsic evidence, the court applies “established maxims of construction to determine the meaning of the disputed provisions.” Cryo-Tech, Inc. v. JKC Bend, LLC, 313 Or App 413, 423-24 (2021).
Area(s) of Law:- Contract Law
Martineau v. McKenzie-Willamette Medical Center
“[Jury i]nstructions which mislead or confuse are ground for a reversal or a new trial.” Estate of Michelle Schwarz v. Philip Morris Inc., 235 P3d 668, adh’d to on recons, 246 P3d 479 (2010) (quoting Williams et al. v. Portland Gen. Elec., 247 P2d 494 (1952).
Area(s) of Law:- Civil Procedure
McCorquodale v. Oxford House, Inc.
Under ORCP 15 D, a court “may, in its discretion, and upon any terms as may be just, allow any pleading to be made, or allow any motion after the time limited by the procedural rules.”
Area(s) of Law:- Arbitration
Shepard Investment Group LLC v. Ormandy
The legislature would have chosen specific language if it was their intention to allow a tenant to recover either one month’s rent or twice the amount wrongfully charged for each violation. Therefore, the tenant can recover twice the amount he was wrongfully charged for the entire year
Area(s) of Law:- Landlord Tenant
State v. Hilding
Defendant did not withhold attention from C because it was Defendant’s abusive attention that posed the safety risk. A person can not withhold necessary care from a dependent person by continuing to care for them.
Area(s) of Law:- Criminal Law
State v. Palacios-Romero
The less-satisfactory-evidence instruction is to be given when (1) “other evidence was reasonably available on a fact in issue” and (2) “there is a basis for the jury to conclude that the other evidence is a stronger and more satisfactory than the evidence offered,” and in determining whether a defendant knowingly and voluntarily waived the right to be present, the court can consider its own knowledge of what transpired during trial, defense counsel’s statements, the court’s own judicial experience in matters of this kind, and “a certain measure of common sense.” State v. West, 289 Or App 415, 418 (2017); State v. Harris, 291 Or 179, 185-86 (1981).
Area(s) of Law:- Criminal Procedure
July 15 summaries
Central Oregon Landwatch v. Deschutes County
ORS 215.284(2) “In counties not [within the Willamette Valley] a single-family residential dwelling not provided in conjunction with arm use may be established, subject to approval of the governing body or its designee, in any area zoned for exclusive farm use upon a finding that: (c) The dwelling will be sited on a lot or parcel created before January 1, 1993.”
Area(s) of Law:- Land Use
Dept. of Hum. Servs v. J. H.
ORS 419B.498(1)(a) requires DHS to file a petition to terminate parental rights and proceed with adoption when a child or ward has been in substitute care under the responsibility of the department for 15 months of the most recent 22 months unless some exception applies.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. R.C.
“When the permanency plan at the time of a permanency hearing is reunification, the juvenile court is authorized to change the plan away from reunification only if DHS proves that (1) it made reasonable efforts to make it possible for the child to be reunified with his or her parent and (2) notwithstanding those efforts, the parent’s progress was insufficient to make reunification possible.” ORS 419B.476(2)(a); Dept. of Human Services v. R. B., 263 Or App 735, 745 (2014).
Area(s) of Law:- Family Law
Frost v. State of Oregon
“After the response of the defendant to the petition, the court shall proceed to a hearing on the issues raised. If the defendant’s response is by demurrer or motion raising solely issues of law, the circuit court need not order that petitioner be present at such hearing, as long as petitioner is represented at the hearing by counsel. At the hearing upon issues raised by any other response, the circuit court shall order that petitioner be present.” ORS 138.620(1).
Area(s) of Law:- Post-Conviction Relief
State v. McWoods
“To bring a Batson challenge,” defendant must first “make a prima facie showing that a peremptory strike was based on race or gender.” State v. Curry, 298 Or App 377, 381, (2019), adh’d to on recons, 302 Or App 640, 461 P3d 1106 (2020). “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging . . . jurors within an arguably targeted class.” Id. at 382 (quoting Batson v. Kentucky, 476 US 79, 97 (1986)).
Area(s) of Law:- Criminal Procedure
State v. Moscote-Saavedra
ORS 161.067(3) states that the criminal acts “. . . must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.”
Area(s) of Law:- Sentencing
State v. Williams
Based on the factors in State v. Jarnagin, 351 Or 703, 716, 277 P3d 535 (2012), the State did not meet its burden to prove that Defendant’s consent to a DNA sample was not the result of the Miranda violation.
Area(s) of Law:- Criminal Procedure
State v. Meyers
"A statute is not vague simply because the state can choose to prosecute a person under different statutes with different penalties." United States v. Batchelder, 442 US 114, 123-26, (1979).
Area(s) of Law:- Constitutional Law
State v. Zielinski
“[E]vidence is relevant so long as it increases or decreases, even slightly, the probability of the existence of a fact that is of consequence to the determination of the action.” State v. Barone, 329 Or 210, 238, 986 P.2d 5 (1999).
Area(s) of Law:- Evidence
Williams v. Laney
“Another witness’s description of the complaining witness as a ‘victim’ conveys an opinion that the complaining witness is telling the truth.” State v. Sperou, 442 P.3d. 581 (2019).
Area(s) of Law:- Post-Conviction Relief
A. B. v. The Oregon Clinic
Covered entities may disclose protected health information (PHI) without a patient’s consent to other covered entities where it is “necessary to prevent or lessen a serious and imminent threat” to a person or the public. 45 CFR § 164.512(j); see also ORS 192.558(2)(b) (allowing disclosure of PHI otherwise permitted or required by state or federal law).
Area(s) of Law:- Tort Law
Dept. of Human Services v. L.M.B.
In determining whether terminating a child’s legal relationship with a parent is in the child’s best interest, the following considerations are to be made: (1) the strength of the bond between the parent and child; (2) whether severing that bond will help or harm the child; (3) the benefits to the child of terminating parental rights; and (4) the risk of harm to the child posed by termination. Dept. of Human Services v. T. M. D., 365 Or 143, 163-66 (2019). The burden of proof as to what is in a child’s best interest is clear-and-convincing evidence. Id.
Area(s) of Law:- Family Law
Golden Rule Farms v. Water Resources Dept.
Where an agency provides a process for raising issues to it, the doctrine of exhaustion of administrative remedies requires a party to present the issue to the agency through that process before a court will consider it. Tuckenberry v. Board of Parole, 365 Or 640, 646 (2019).
Area(s) of Law:- Alternative Dispute Resolution
State v. Cave
Whether evidence is admitted as propensity evidence under OEC 404(4) or nonpropensity evidence under OEC 404(3) has a “significant effect” on the OEC 403 balancing test, as 404(4) propensity evidence’s prejudicial effect generally substantially outweighs its probative value. State v. Baughman, 361 Or 386, 405 (2017).
Area(s) of Law:- Evidence
State v. Wagner
“On appeal, defendant does not challenge the scientific validity and reliability of Dorsey’s testimony. The only issue on appeal related to Dorsey’s testimony is her qualification to offer proffered expert testimony under OEC 702.”
Area(s) of Law:- Evidence
August 23 summaries
Pringle Square, LLC v. Berrey Family, LLC
Equitable doctrines do not apply to legal claims made by defendants in interpleader actions.
Area(s) of Law:- Civil Procedure
Dept. of Human Services v. J. L. S.
An out-of-court statement is typically hearsay, and thus inadmissible, if it is offered to prove the truth of the matter it asserts. OEC 801(3); OEC 802. Evidentiary errors are harmless and do not warrant reversal “if there is little likelihood that the particular error affected the verdict.” Dept. of Human Services v. G. D. W., 353 Or 25, 39 (2012).
Area(s) of Law:- Family Law
In re Weatherspoon & Stevens
“The court shall not order joint custody, unless both parents agree to the terms and conditions of the order” ORS 107.169(3)
Area(s) of Law:- Family Law
Johnson and Henderson Partnership v. Henderson
The party alleging that a partnership exists must show that there is “some evidence” of some of the factors in ORS 67.055(4)(a) for the factfinder to find that a partnership exists, and the question of “whether a partnership exists based on the evidence in the record will usually be a question for the jury.” Wirth v. Sierra Cascade, LLC 234 Or App 740, 761-65 (2010).
Area(s) of Law:- Business Law
State v. Pyle
Article I, section 11, of the Oregon Constitution provides a defendant with a right to “have compulsory process for obtaining witnesses in his favor,” and unless an otherwise lawful subpoena is quashed or modified by the trial court, it must be given effect.
Area(s) of Law:- Criminal Procedure
Bohr v. Tillamook County Creamery Assn.
Plaintiff must prove they purchased the product in reliance on the alleged false marketing, pursuant to ORS 646.608 (b) and (d). A business engages in unlawful practice if it, “(b) causes likelihood of confusion or of misunderstanding as to the source of goods, and (d) uses deceptive representations or designations of geographic origin in connection with goods.”
Area(s) of Law:- Business Law
Eaton
ORCP 12 A provides that “[a]ll pleadings shall be liberally construed with a view of substantial justice between the parties.” ORCP 12 B provides that “[t]he court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.”
Area(s) of Law:- Civil Procedure
Hanley Engineering v. Weitz & Company
The Full Faith and Credit Clause requires a valid final judgment in one state, rendered by a court with jurisdiction over a person and subject matter governed by the judgment be recognized in all states. However, it does not require states to adopt practices of other states regarding enforcement for judgments.
Area(s) of Law:- Civil Procedure
K. R. M. v. Baker
ORS 107.716(3)(a) provides that a court may continue a FAPA order if the court determines that: “(B) The petitioner reasonably fears for the petitioner’s physical safety” and ORS107.104(1)(b)(2) provides an exception to enforcing a stipulated agreement when enforcement “would clearly contravene public policy.”
Area(s) of Law:- Family Abuse Prevention Act
Marteeny v. Brown
Under ORS 144.650, “[w]hen an application for a pardon, commutation, or remission is made to the Governor, a copy of the application . . . shall be served upon: (a) [t]he district attorney . . . [and] the district attorney . . . shall (a) [n]otify the victim of the crime.”
Area(s) of Law:- Post-Conviction Relief
Nationstar Mortgage, LLC v. Hinkle
“In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.” ORCP 34 E.
Area(s) of Law:- Civil Procedure
State v. Hoffman
Medical reports containing blood alcohol results are not self-authenticating and requires a witness to testify as to the medical blood draws chain of custody or proper authentication. State v. Martin, 207 Or App 31, 41 (2020).
Area(s) of Law:- Criminal Law
State v. Tow
Under ORS 162.315(2)(c), “‘Resists’ means the use or threatened use of violence . . . or any other means that creates a substantial risk of physical injury to any person and includes . . . behavior clearly intended to prevent being taken into custody.”
Area(s) of Law:- Criminal Law
State v. Benson
Under Article I, section 12, of the Oregon Constitution, “[n]o person shall be * * * compelled in any criminal prosecution to testify against himself.” Moreover, under ORS 136.425(1) a “confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats.”
Area(s) of Law:- Constitutional Law
State v. Hershey
Article I, section 17 of the Oregon Constitution guarantees the right to a jury trial in civil cases that historically used jury trials before the Oregon Constitution was enacted and “cases ‘of like nature.’” Horton v. Or. Health & Sci. Univ., 376 P3d 998 (Or. 2016).
Area(s) of Law:- Civil Procedure
State v. Omar
“If [a] trial court determines that the record could have developed in a materially different way if the error had not occurred, then a defendant is entitled to a new trial.” State v. Hightower, 368 Or 378, 387 (2021).
Area(s) of Law:- Criminal Procedure
Torres v. SAIF
An injury is compensable when it arises “out of and in the course of employment requiring medical services or resulting in disability or death” and “if the work is a material contributing cause of the injury.” ORS 656.005(7)(a); Coleman v. SAIF, 203 Or App 442, 446 (2005). “However, when an otherwise compensable injury combines with a preexisting condition to cause or prolong a disability or the need for treatment, the combined condition is compensable only if the otherwise compensable injury is the major contributing cause of the disability or need for treatment.” SAIF v. Harrison, 299 Or App 104, 106 (2019) (citing ORS 656.005(7)(a)(B)).
Area(s) of Law:- Workers Compensation
Towey v. City of Hood River
"LUBA is entitled to deference in the interpretation of its own administrative rule[s] if its interpretation is plausible and not inconsistent with the rule, the rule’s context, or any other source of law.” Maguire v. Clackamas County, 250 Or App 146, 162 (2012).
Area(s) of Law:- Administrative Law
Anthony V. Albertazzi, P. C. v. Jones
ORS 82.010(2) applies to all judgments; an arbitration award is not a “judgment” as contemplated by the statute.
Area(s) of Law:- Remedies
Justice v. Vercher
The courts will reconsider a common-law rule or doctrine when (1) “an earlier case was inadequately considered or wrong when it was decided,” (2) “surrounding statutory law or regulations have altered some essential legal element assumed in the earlier case,” or (3) “the earlier rule was grounded in and tailored to specific factual conditions and some essential factual assumptions of the rule have changed.” G. L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59 (1988).
Area(s) of Law:- Standing
Morrison v. Chierichetti
ORS 107.105 ultimately requires courts to distribute marital assets as may be just and proper under all the circumstances, and this inquiry must consider factors such as the preservation of assets; the achievement of economic self-sufficiency for both spouses; the particular needs of the parties and their children; and the extent to which a party has integrated a separately acquired asset into the common financial affairs of the parties through commingling. Fuernsteiner-Perin and Perin, 211 Or App 23, 31 (2007); Kunze and Kunze, 337 Or 122, 136 (2004).
Area(s) of Law:- Family Law
State v. Pilon
“In assessing the proper remedy for a discovery violation, prejudice becomes the threshold issue. Wolfe, 273 Or at 524-25. In King, we noted that the prejudice inquiry must focus on the extent of surprise and the impact of the violation on trial preparation.”
Area(s) of Law:- Criminal Procedure
State v. Simmons
“A person commits the crime of theft of services if: (a) With intent to avoid payment therefor, the person obtains services that are available only for compensation, by force, threat, deception or other means to avoid payment for the services.” ORS 164.125(1).
Area(s) of Law:- Criminal Law
September 23 summaries
Klamath Irrigation District v. Oregon Water Resources Dept.
Under ORCP 29 B, if, after weighing whether the absent party would be subject to a prejudicial judgment, the extent a prejudicial judgment can be avoided, whether a judgment would be adequate, and whether the Plaintiff has another adequate remedy available, a judgment cannot be made “in equity and good conscience,” the party would be indispensable.
Area(s) of Law:- Water Rights
Portland Fire Fighters' Assn. v. City of Portland
Waiving a statutory right requires an “intentional relinquishment or abandonment of a known right or privilege… demonstrated by a clear, unequivocal, and decisive act of the party showing such a purpose.” Waterway Terminals v. P. S. Lord, 242 Or 1, 26, 406 P.2d 556 (1965).
Area(s) of Law:- Contract Law
State v. Dearmitt
ORS 136.765 provides that a sentencing court imposing an upward departure sentence cannot “rely on aggravating facts . . . not included either in the indictment or in written notice to the defendant.” State v. Davilla, 280 Or App 43, 62, 380 P3d 1003 (2016).
Area(s) of Law:- Sentencing
State v. Martin
“[T]he doctrine of the law of the case is inapplicable in light of new facts or evidence bearing on the legal issue in question.” State ex rel. Orbanco Real Estate Serv. v. Allen, 720 P.2d 365 (1986).
Area(s) of Law:- Evidence
State v. McCormack/Senter
The imposition of OAR 635-041-0025(3) to restrict the use of gill nets by treaty fishers fishing in usual and accustomed sites may be beneficial to its conservation interest but not necessary.
Area(s) of Law:- Tribal Law
State v. Williams
For testimony to be admissible, “[i]t must be relevant OEC 401; it must possess sufficient indicia of scientific validity and be helpful to the jury, OEC 702; and its prejudicial effect must not outweigh its probative value, OEC 403.” State v. Southard, 218 P.3d 104 (Or. 2009).
Area(s) of Law:- Evidence
State v. Yaeger
Overruling Gardner, the Supreme Court stated, “the trial court had not determined whether, despite the ultimate validity of the warrant, the State would have inevitably discovered the challenged evidence absent the unlawful seizure of the defendant's residence”. State v. DeJong, 368 Or 640, 497 P3d 710 (2021).
Area(s) of Law:- Criminal Law
Unit Owners of Cornell Meadows Condo v. Jensen
“[M]oney judgment for unpaid assessments may be maintained without foreclosing or waiving the lien securing the claim for unpaid assessments. A judgment entered on the action does not extinguish the lien.” ORS 100.450(4). This amended statute and the pre-amendment statute do not prevent foreclosure of a lien if a prior personal judgment was made.
Area(s) of Law:- Property Law
Allison v. Dolich
Under ORS 659A.030(1), unlawful employment practices occur when “any person, whether an employer or an employee, [] aid[s], abet[s], incite[s], compel[s], or coerce[s] the doing of any [forbidden acts].”
Area(s) of Law:- Employment Law
Department of Human Services v. H.K.
When family reunification is the desired outcome for a permanency hearing, DHS must show it “has made reasonable efforts for the ward to safely return home.” ORS 419B.476(2)(a). It was not sufficient that DHS only facilitated one in-person family therapy session with the mother.
Area(s) of Law:- Family Law
Garcia-Ascencio v. Gonzalez
A finding that the guidelines support amount is “unjust or inappropriate” is necessary before a court is authorized to consider rebuttal factors and deviate from the guidelines. St. Sawer and St. Sawer, 196 Or App 175 (2004).
Area(s) of Law:- Family Law
State v. Allen
(1) “[T]he ‘knowingly’ culpable mental state does not apply to the injury element.” State v. Owen, 369 Or 288, 321 (2022). (2) “[T]he result element—physical injury—in the crime of second-degree assault carries, at a minimum, a culpable mental state of criminal negligence and…a trial court errs when it fails to instruct the jury that a defendant must act with a culpable mental state as to the element of causing physical injury. Owen, 369 Or at 321-23.
Area(s) of Law:- Criminal Law
State v. Givens
“ORS 161.370(10) provides for discharge of a defendant who “remains committed” under ORS 161.370(9)." Therefore, under ORS 161.370(13) the trial court is not required to dismiss the refiled charges if a defendant is not presently committed to the state hospital.
Area(s) of Law:- Criminal Law
State v. Wallace
“The ability to consent consists of two related concepts: (1) understanding the nature of sexual conduct and (2) exercising judgment and making choices based on that understanding." Reed, 339 Or at 244.
Area(s) of Law:- Criminal Law
Farnsworth v. Meadowland Ranches, Inc.
Quiet title was properly granted to Plaintiff because Defendant failed to prove the existence of the easement on the merits. Defendant's strongest argument was denied because Defendant did not provide enough evidence to show, "Meadowland engaged in “open and known” acts of public dedication... that would give rise to an implied dedication."
Area(s) of Law:- Property Law
Fern Hollow Farms, Inc. v. Linn County
Development rights conferred by an authorization under section 6 of Measure 49 are not subject to “a land use regulation enacted by the state or county that has the effect of prohibiting the partition or subdivision, or the dwelling.” Measure 49, § 6(8).
Area(s) of Law:- Land Use
State v. Hamilton
When an issue is not preserved at trial, review of that issue is limited to plain-error review where the error is considered “plain” if the legal point is obvious, not reasonably in dispute, and the error is apparent on the record without the court having to choose among competing inferences. See ORAP 5.45(1); State v. Vanornum, 354 Or 614, 629 (2013). A trial court has “discretionary authority to revoke probation” based on the “finding of a new crime or other violation of the conditions of probation.” State v. Kelemen, 296 Or App 184 (2019).
Area(s) of Law:- Criminal Law
Gould v. Deschutes County
“A LUBA order is unlawful in substance if it represents a mistaken interpretation of the applicable law.” Kine v. Deschutes County, 313 Or App 370, 370-71, 496 P3d 1136 (2021).
Area(s) of Law:- Land Use
Roriguez v. Union Pac. R.R. Co.
Summary judgment does not present an opportunity to assert a theory of liability that is not in the pleadings. Permapost Products Co. v. Osmose, Inc., 200 Or App 699, 705 (2005).
Area(s) of Law:- Tort Law
State v. C.P.
A victim’s participatory right under the Oregon Constitution does not encompass a right to discovery, a right to present evidence, a right to cross-examine the adjudicated youth, or the power to, in effect, control the prosecution of the case against the youth.
Area(s) of Law:- Juvenile Law
State v. Escobar
“[E]yewitness identification evidence . . . must include, at minimum, proof under OEC 602 that the proffered eyewitness has personal knowledge of the matters to which the witness will testify, and proof under OEC 701 that any identification is both rationally based on the witness’s first-hand perceptions and helpful to the trier of fact.” State v. Lawson/James, 352 Or 724 (2012).
Area(s) of Law:- Evidence
State v. N. J. D. A.
Before questioning, police must give Miranda warnings to a person who is in full custody or in circumstances that create a setting which judges would and officers should recognize to be compelling.” State v. Roble-Baker, 340 Or 631, 638, 136 P3d 22 (2006).
Area(s) of Law:- Criminal Procedure
State v. Powell
The court cannot admit evidence if the proponent’s theory of relevance requires the factfinder to employ propensity reasoning. State v. Skillicorn, 367 Or 464, 479 P3d 254 (2021).
Area(s) of Law:- Criminal Procedure
October 25 summaries
Crosbie v. Asante
In an unlawful discrimination or retaliation suit, a plaintiff must show that a “protected trait or their involvement in a protected activity was a substantial factor” in the employer’s decision to take adverse action. Ossanna v. Nike Inc., 290 Or App 16, 28 (2018). “Cat’s paw” allows satisfaction of the causation element where the decision-maker was influenced by another person who instead was personally biased against the employee. Id. at 210.
Area(s) of Law:- Employment Law
Larsen v. Selmet, Inc.
ORCP 26 A allows a court to dismiss an action brought by someone other than the real party in interest without allowing substitution of the real party in interest. However, if the plaintiff made an honest and understandable mistake, the court may allow substitution.
Area(s) of Law:- Civil Procedure
Miller v. Agripac, Inc.
Where “injury to the person of another [is] committed in a ‘wanton’ manner, meaning the doing of an intentional act of an unreasonable character in disregard of a risk known to the actor, or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow. . . contributory negligence is no defense.” Cook v. Kinzua Pine Mills Co. et al, 207 Or 34, 58-59 (1956).
Area(s) of Law:- Tort Law
Myers v. Owners of Certain Real Property
Where a deed provision does not expressly limit the use of adult residential facilities, or in effect allow only other types of residential uses, but instead “uniformly limits all or nearly all development of the property,” that provision is not in violation of ORS 93.270(1)(b)(B). ORS 93.272(5).
Area(s) of Law:- Property Law
Ride PDX v. Tee & B, LLC
“Even when defendant’s objectives are not improper, for instance the pursuit of competition or other legitimate interests, defendant may still be liable for using improper means to achieve those objectives.” Top Service Body Shop v. Allstate Ins. Co., 283 Or 201, 209 (1978).
Area(s) of Law:- Tort Law
State v. Covell
ORS 137.633(1) does not allow room for a sentencing court to deny earned discharge
Area(s) of Law:- Sentencing
State v. Giron-Cortez
ORS 161.610 requires that the state show a mental state, in any given case, the mental state will depend on the underlying charge.
Area(s) of Law:- Criminal Law
State v. Martin
Under ORS 131.505d(4), “criminal episode” is defined as “continuous and uninterrupted conduct that is so joined in time, place or circumstances that such conduct is directed to the accomplishment of a single criminal objective.” A criminal objective, “refers to the pursuit of some object or attainment of some goal beyond the successful commission of the acts constituting the offense charged.” State v. Cloutier, 286 Or 579, 599 (1979).
Area(s) of Law:- Criminal Law
Gould v. Deschutes County
ORS 197.829(1) requires LUBA to defer to a local government’s interpretation of its own land use regulations unless the interpretation is inconsistent with the express text of the regulation, the purpose of the regulation, the underlying policy implemented by the regulation, or a state law that the regulation purportedly carries out. See Kaplowitz v. Lane County, 285 Or App 764, 773 (2017).
Area(s) of Law:- Land Use
Hill v. Gold
(1) ORS 60.952(6) allows the court to order the election to buy the stock of the shareholders who filed the claim rather than to pursue litigation when faced with an ORS 60.952 (1) claim. (2) A discount is appropriate if the sale of shares is because of misconduct and the price is determined on their fair value rather than fair market value. Cook v. Fresh Express Foods Corp., 169 Or App 101, 115 (2000).
Area(s) of Law:- Business Law
State v. Grant
(1) Generally, a court has no authority to review a conviction when a defendant pleads guilty. See ORS 138.105(5); see, e.g., State v. Jones, 311 Or. App. 685, 688-89 (2021). (2) A judgment imposing sanctions and continuing probation is not appealable. See ORS 138.035(3); see e.g., State v. Flores, 317 Or. App. 288, 292 (2022).
Area(s) of Law:- Criminal Law
State v. Hatchell
When refusing a jury instruction the court must determine, “whether the record viewed in the light most favorable to the proponent of the instruction, supported giving the instruction.” State v. Owen, 369 Or 288, (2022).
Area(s) of Law:- Criminal Procedure
State v. Tellez-Suarez
A court will affirm the judgment below if it is determined that there was little likelihood that the error affected the verdict. State v. Owen, 369 Or 288 (2022).
Area(s) of Law:- Criminal Law
Dep't. of Human Servs. v. T. S. M.
Parties to dependency proceedings have a right to participate in hearings. See ORS 419B.875(2)(c). However, the juvenile court possesses the power “to provide for orderly conduct of proceedings before it * * *.” See ORS 1.010(3).
Area(s) of Law:- Juvenile Law
Deschutes County v. Leak
OAR 436-035-0400 (2018) requires an evaluation of the worker’s permanent condition, specifically including the effects of the permanent changes on activities of daily life and deterioration in work settings, not merely the worker’s current symptoms at the time of claim closure.
Area(s) of Law:- Workers Compensation
Floor Solutions, LLC v. Johnson
A “court shall vacate an award made in the arbitration proceeding if [a]n arbitrator exceeded the arbitrator’s powers[.]” ORS 36.705(1)(d). A court may not disturb an arbitration award if the issues that were arbitrated were within the scope of the parties’ agreement. Seller v. Salem Womens Clinic, Inc., 154 Or App 522, 527 (1998), rev den 328 Or 40 (1998).
Area(s) of Law:- Arbitration
Maxfield v. Cain
In determining whether a failure to present mitigation evidence at sentencing resulted in prejudice, the totality of the mitigation evidence should be weighed against aggravating evidence to determine whether there was more than a mere possibility that the information could have tended to affect the outcome. The Court engaged in a two-step analysis.
Area(s) of Law:- Post-Conviction Relief
State v. Beckner
Pursuant to ORS 137.010(3), when a judgment of conviction is vacated and a new sentence is imposed on a lesser included offense of the same crime, a defendant must receive deduction from the maximum and minimum terms of the new sentence for periods of detention and imprisonment already served.
Area(s) of Law:- Sentencing
State v. Straub
Admissions of probation violations, unlike guilty pleas, do not automatically trigger sentencing; therefore, a colloquy to ensure a knowing and intelligent waiver in the context of a probation revocation hearing is not required. United States v. Segal, 549 F2d 1293 (9th Cir. 1977).
Area(s) of Law:- Criminal Procedure
Dep’t of Hum. Servs. v. N.H.
To terminate a parent’s rights on the basis of unfitness, a court must find, by clear and convincing evidence, that (1) the parent is “unfit by reason of conduct or condition seriously detrimental to the child or ward”; (2) “integration of the child . . . into the home of the parent . . . is improbable within a reasonable time”; and (3) termination is in the child’s best interest. ORS 419B.504; ORS 419B.500. A court cannot consider a parent’s disability alone as a basis to terminate parental rights, but it may consider evidence of a parent’s conduct, even when the conduct is based on or caused by a disability, if that conduct interferes with the parent’s ability to provide proper care for the child for extended periods of time.
Area(s) of Law:- Juvenile Law
Peters v. C21 Investments, Inc.
"The parties’ agreement must be the specific place of origin or the source of the legal action to trigger application of the venue agreement.” Black v. Arizala, 337 Or. 250, 267 (2004).
Area(s) of Law:- Civil Procedure
State v. Elbinger
“For the purposes of Article I, section 9, a seizure occurs when (1) a police officer intentionally and significantly interferes with an individual’s liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that his or her liberty or freedom of movement has been significantly restricted.” State v. Arreola-Botello, 365 Or 695, 701 (2019). If an officer does not have reasonable suspicion when a stop occurs, then the stop is unlawful, and all evidence discovered as a result of the unlawful police action is presumed tainted by the violation and must be suppressed. State v. Newton, 286 Or App 274, 288-89 (2017).
Area(s) of Law:- Criminal Procedure
State v. Harris
“The unavailability exception to the confrontation guarantee should not be “granted routinely” and applies only when a witness is “truly unavailable to testify” so that the state’s reliance on prior out-of-court statements is “genuinely necessary.”” State v. Herrera, 286 Or 349, 355 (1979).
Area(s) of Law:- Criminal Procedure
State v. Lugo
A person is physically helpless when that person “is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” ORS 163.305(4).
Area(s) of Law:- Criminal Procedure
Wang v. Board of Massage Therapists
(1) “A court lacks subject matter jurisdiction under the Uniform Declaratory Judgments Act if some other exclusive remedy exists to address the dispute” and “[w]hen the dispute at issue involves an agency’s action, or refusal to act, the review provisions of the APA provide the sole and exclusive means of obtaining judicial review, and an action for declaratory relief is not available.” Salibello v. Board of Optometry, 276 Or App 363, 367 (2016). (2) ORS 676.165(5) provides that “[i]nvestigatory information obtained by an investigator and the report issued by the investigator shall be exempt from public disclosure.” However, “[i]f a health professional regulatory board votes to issue a notice of intent to impose a disciplinary sanction, the board shall disclose to the licensee or applicant all information obtained by the board in the investigation of the allegations in the notice.” ORS 676.175(3).
Area(s) of Law:- Administrative Law
November 18 summaries
State v. Sullivan
"To determine whether an officer's belief was objectively reasonable, we consider the totality of the circumstances presented to the officer and reasonable inferences that may be drawn from those circumstances. State v. Keller, 280 Or. App. 249, 253 (2016). For traffic infractions, an officer's subjective belief is objectively reasonable, "if...the facts as the officer perceived them actually satisfy the elements of a traffic infraction." State v. Tiffin, 202 Or. App. 199, 204 (2005).
Area(s) of Law:- Criminal Procedure
Winamaki v. Umpqua Bank
“A contract term is ambiguous if, when examined in the context of the contract as a whole and the circumstances of contract formation, it is susceptible to more than one plausible interpretation.” Adair Homes, Inc. v. Dunn Carney Allen Higgins & Tongue, LLP, 262 Or App 273, 277, (2014).
Area(s) of Law:- Contract Law
Freeborn v. Dow
“[T]he doctrine of merger does not categorically apply when [a] deed constitutes only part performance of a preexisting contract.”
Area(s) of Law:- Property Law
Ramos v. Potkowksi
“Boundary-by-agreement is a common law doctrine with three elements; (1) There must have been an initial and mutual uncertainty about the true location of the boundary; (2) There must have been a resolution to the uncertainty by either an express or implied agreement mutually agreed upon by both parties to recognize the boundary line permanently; and (3) Evidence of the agreement by subsequent action by parties such as a written agreement, or occupying the property up to the borderline in the case of an oral agreement.” Powers Ranch Company v. Plum Creek Marketing, 243 Or App 371 (2011).”
Area(s) of Law:- Property Law
Rinne v. Matteucci
Under ORS 34.620, habeas corpus is not an alternative remedy to judicial review by which a person may directly challenge an order, judgment, or process of a competent tribunal.
Area(s) of Law:- Habeas Corpus
State v. Cuffy
To impeach by contradiction, it is necessary to state a precise fact statement to which the rebuttal evidence contradicts. State v. Hayes, 117 Or App 202, 205-06 (1992), rev den, 316 Or 528 (1993). The “state [is] entitled to introduce contradictory testimony [that] relate[s] to the circumstances of the crime.” State v. Gibson, 338 Or 560, 572 cert den, 546 US 1044 (2005).
Area(s) of Law:- Evidence
State v. Didlot
“[C]onfessions made by a defendant in custody that were induced by the influence of hope or fear, applied by a public officer having the prisoner in his charge, are inadmissible against the defendant.” State v. Jackson, 364 Or 1, 21 (2018) (internal quotation marks omitted). A defendant is induced if “the defendant has been told something that communicates the idea of a temporal benefit or disadvantage attached to confessing” State v. Pryor, 309 Or App 12, 19 (quoting State v. Chavez-Meza, 301 Or App 373, 387). Under State v. Center, a promise of help need not be tied to prosecutorial leniency; rather, a promise of some benefit, by itself, could suffice to improperly compel a confession. 314 Or App 813, 823 (2021).
Area(s) of Law:- Evidence
State v. Johnson
“An encounter rises to a seizure when (1) a law enforcement officer intentionally and significantly interferes with an individual’s liberty or freedom of movement, or (2) a reasonable person under the totality of circumstances would believe that his or her liberty or freedom of movement has been significantly restricted.” State v. Ashbuagh, 349 Or 297 (2010).
Area(s) of Law:- Criminal Law
State v. Orman
Article I, Section 9, of the Oregon Constitution protects individuals’ rights against unreasonable searches or seizures. When an encounter advances from a conversation to the point of an investigatory stop, and thus a seizure of the individual, the stop must be accompanied by reasonable suspicion. State v. Backstrand, 354 Or 392, 399 (2013) (citing State v. Fair, 353 Or 588, 593-94 (2013)). Absent reasonable suspicion, a stop is unlawful, and all evidence discovered as a result of the unlawful police action is presumptively tainted by the violation and must be suppressed. State v. Newton, 286 Or App 274, 288 (2017).
Area(s) of Law:- Criminal Procedure
State v. Thier
Under Article I, section 9, a seizure occurs when “(1) a law enforcement officer intentionally and significantly interferes with an individual’s liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that his or her liberty or freedom of movement has been significantly restricted.” State v. Reyes-Herrera, 369 Or 54, 58 (2021).
Area(s) of Law:- Criminal Procedure
Urban Renewal Comm. of Oregon City v. Williams
“[T]he validity of local action depends, first, on whether it is authorized by the local charter or by a statute, or if taken by initiative, whether it qualifies as ‘local, special (or) municipal legislation’ under [A]rticle IV, section 1(5); second, on whether it contravenes state or federal law.” La Grande/Astoria v. PERB, 281 Or 137, 142, 284 Or 173 (1978). A new city charter amendment contravenes state law when the local rule is incompatible with the legislative policy. Id. If the local rule is incompatible with the legislative policy, the local rule is preempted.
Area(s) of Law:- Preemption
Barrett v. Bd. of Parole and Post-Prison Supervision
“In reviewing a rule challenge we may declare the rule invalid only if we conclude that it violates the constitutional provision, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures.” Assn. of Acupuncture v. Bd. of Chiropractic Examiners, 260 Or App 676 P3d 575 (2014).
Area(s) of Law:- Parole and Post-Prison Supervision
Cowles v. Flormoe-Cowles
If a court finds a party in remedial contempt it must be supported by a specific finding of willfulness. Southworth and Southworth, 113 Or App 607, 610 (1991), rev den, 314 Or 574 (1992).
Area(s) of Law:- Family Law
Lewis v. Varde
“On petition of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate under the agreement: (b) If the refusing party opposes the petition, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.”
ORS 36.625(1).
If the parties to an arbitration agreement have not determined a method for appointing an arbitrator, “the court, on the petition of a party to the arbitration proceeding, shall appoint the arbitrator.” ORS 36.645(1).
- Arbitration
State v. C.J.
Under ORS 426.130(1)(a)(C), the court “[m]ay order commitment of the person with mental illness to the Oregon Health Authority for treatment if” they find the person has a mental illness and institutional treatment is in their best interest. ORS 426.005(1)(f)(A) explains that “a person with mental illness” means a person who, because of a mental disorder, is dangerous to self or others.
Area(s) of Law:- Administrative Law
Adelsperger v. Elkside Development LLC
Substantive arguments must be made against a theory on which the pleadings have been implicitly amended in order to preserve such arguments for appeal. Under Bates v. Bankers Life and Casualty Co., 362 Or, 337 (2018), rights under a contract are not “money or property” for the purposes of ORS 124.110(1)(b). Under Church v. Woods, 190 Or.App. 112 (2003) and Northwest Natural Gas Co. v. Chase Gardens, Inc., 328 Or. 487 (1999), “improper motive” under ORS 124.110(1)(a) requires that the actor’s “purpose must be to inflict injury on the plaintiff ‘as such.’”
Area(s) of Law:- Contract Law
State v. Lewis
The court “[r]eviews the denial of an Motion for Judgment of Acquittal for whether a rational fact-finder could find, after viewing the evidence in the light most favorable to the state and making reasonable inferences and credibility choices, that the state proved every element of the offense beyond a reasonable doubt.” State v. Davis, 261 Or App 38, 39, (2014). Reasonable inferences are permissible; mere speculation is not. State v. Bivins, 191 Or App 460, 467, (2004).
Area(s) of Law:- Criminal Procedure
Ybarra v. Dominguez Family Enterprises, Inc.
Cases determining “fair value” under dissenter’s rights statute inform the meaning of “fair value” for purposes of ORS 60.952(5). The appropriateness of applying marketability or minority discount to determination of fair value “necessarily depends on the circumstances of the particular case.”
Area(s) of Law:- Corporations
December 29 summaries
Kinzua Resources, LLC v. Dep't of Environmental Quality
ORS 459.268 states that “…under ORS 459.205 or, if the person who holds or last held the permit fails to comply with this section, the person owning or controlling the property on which the disposal site is located, shall close and maintain the site according to the requirements of this chapter….” (Emphasis added.) The Supreme Court defined “owning or controlling” as “possessing legal authority over the land which the landfill is located.” Kinzua Resources v. DEQ, 366 Or 674, 468 P3d 410 (2020) (Kinzua III).
Area(s) of Law:- Environmental Law
Martinez-Munoz v. Kendal Merchandising
Claim preclusion is subject to an exception when “the decision maker expressly reserves for a party the right to maintain a second action or proceeding at the time the first determination is made, there is no preclusive effect.” Drews v. EBI Cos., 310 Or 134, 141 (1990) (citing Restatement (Second) of Judgments § 20(1)(b) (1982)).
Area(s) of Law:- Workers Compensation
State v. Bordeaux
Violations of ORS 509.006 do not require that the actions taken are completed or intentional, because “attempt to fish” was specifically included as part of the definition of “take.” ORS 506.006(12).
Area(s) of Law:- Criminal Law
State v. Copeland
ORS 165.540(1)(c) does not apply to “[a] person who records a conversation during a felony that endangers human life[.]” ORS 165.540(5)(a).
Area(s) of Law:- Post-Conviction Relief
State v. Karim
“A person commits the offense of use of marijuana in a motor vehicle if the person consumes in any manner a marijuana item while in a motor vehicle when the motor vehicle is upon a highway.” ORS 811.482(2).
Area(s) of Law:- Criminal Law
State v. LaCoe
A court’s authority to revoke probation based on a violation must be filed before the end of the probationary period even if the violation occurred while the probationbwas effective. A sentencing court’s authority to extend probation after its conclusion must be through a deliberate judicial act. State v. Miller, 244 Or App 642
Area(s) of Law:- Criminal Law
State v. Mothershed
A trial court may order restitution upon proof of “(1) criminal activities, (2) economic damages, and (3) a causal relationship between the two.” State v. Smith, 291 Or App 785, 788, 420 P3d 644 (2018); ORS 137.106(1)(a).
Area(s) of Law:- Criminal Procedure
State v. Scatamacchia
In determining whether there is an error, the court must “consider 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.” State v. Payne, 366 Or. 588 (2020).
Area(s) of Law:- Criminal Procedure
Brown v. Glaxosmithkline, LLC. and Providence Health System - Oregon
Considering the plain meaning of a "seller... engaged in the business of selling" a product, is one who transfers ownership of the product to another in exchange for valuable consideration, Hospitals that provide medication in exchange for valuable consideration can be liable for product liability under ORS 30.920.
Area(s) of Law:- Tort Law
Dep't. of Human Services v. T.J.N.
The party moving for dismissal has the burden to establish that a case is moot, which includes establishing (1) that there is a controversy between the parties, and (2) that the “decision being challenged on appeal will have no further practical effect on the rights of the parties.” Dep't. of Human Services v. A. B., 362 Or 412, 426 (2018).
Area(s) of Law:- Family Law
Northwest Public Communications Council v. Qwest
The FCC has made clear that “consistent with section 276 and the Commission’s Payphone Orders, states may, but are not required to, order refunds for any period after April 15, 1997, that a BOC does not have NST-compliant rates in effect.” Clarification Order at ¶ 47 (italics in original). Moreover, the PUC has broad regulatory authority consisting of “powers and duties.” ORS 756.040(1). Within these powers and duties, the PUC can order refunds to “correct legal errors that lead to ‘unjust and unreasonable exactions.’” Gearhart v. PUC, 356 Or 216, 244, 339 P3d 904 (2014) (Gearhart II) (quoting ORS 756.040(1) and ORS 756.062(2)).
Area(s) of Law:- Administrative Law
S.E.G. v. Parker
“ORCP 54 B(3) requires a specific ‘notice and show cause procedure’ that affords a plaintiff 60 days’ notice, followed by ‘an opportunity to show that good cause exists to continue the proceeding as a pending case’ and ‘a determination by the court on the merits of that issue.’” Moore v. Ball, Janik & Novack, 120 Or App 466, 470 (1993). However, a trial court’s authority “to dismiss an action for want of prosecution is an inherent power, and it exists independently of statute or rule of court.” Reed v. First Nat. Bank of Gardiner, 194 Or 45, 55, (1952).
Area(s) of Law:- Civil Procedure
State v. A.B.K.
ORS 426.005(1)(f), provides, in part: “‘Person with mental illness’ means a person who, because of a mental disorder, is one or more of the following: “(A) Dangerous to self or others.”
Area(s) of Law:- Criminal Law
State v. Breedwell
In determining whether a warrant is adequately descriptive, the court must consider, “when otherwise adequately descriptive warrant contains a clerical error, that error does not render the warrant insufficient where the executing officer is aware of that error and uses personal knowledge to remedy the incorrect information in the warrant.” State v. Kauppi, 360 Or 465 (2016). Furthermore, the “officer’s reliance on a magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for belief that the warrant was properly issued.” US v. Leon, 468 US 897 (1984).
Area(s) of Law:- Criminal Law
State v. Walker
Under the Fourteenth Amendment, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 US 51, 58, (1988).
Area(s) of Law:- Criminal Procedure
State v. Wilcox
In determining whether officers seized defendant’s backpack, the court looked to case law and determined it “clearly indicate[s] that a ‘seizure’ of property occurs when police physically remove property from a person’s possession.” State v. Juarez-Godinez, 942 P2d 722 (1997).
Area(s) of Law:- Criminal Law
State v. Wood
ORS 138.105(1) provides, "[o]n appeal by a defendant, the appellate court has authority to review the judgment or order being appealed." "[O]nce final judgment in a criminal case is entered, its validity and regularity are presumed." State v. Jacob, 208 Or App 62, 67 (2006).
Area(s) of Law:- Criminal Procedure
State v. Snodgrass
The legislative history of ORS 166.070(1)(c) shows that the legislature intended to criminalize spitting on a police officer regardless of whether it contacted the officer's skin directly or merely contacted the officer's clothes.
Area(s) of Law:- Criminal Law
Certain Underwriters v. TNA NA Manufacturing, Inc.
“When a contracting party seeks to immunize itself from liability for its own negligence, its intention to do so must be clearly and unequivocally expressed.” American Wholesale Products v. Allstate Ins. Co., 288 Or App 418, 423, 406 (2017). A contract that contains a “broad reference to ‘any liability’ suggests that the parties intended for the provision to limit ‘any liability’ regardless of whether that liability arose in tort or in contract.” Kaste v. Land O’Lakes Purina Feed, LLC, 284 Or App 233, 246 (2017) (quoting Northwest Pine Products v. Cummins Northwest, Inc., 126 Or App 219, 221 (1994)). Additionally, the “separation of the limitations-of-liability section from the warranty section suggests that the parties intended for the limitations to apply to claims beyond warranty claims.” Kaste, 284 Or App 246 (citing Northwest Pine Products, 126 Or App 221).
Area(s) of Law:- Contract Law
Coast 2 Coast Logistics v. Badger Auctioneers
Oregon subscribes to an objective theory of contracts. In ascertaining the meaning of a contract, the court examines the parties’ objective manifestations of intent, as evidenced by their communications and acts. Newton/Boldt v. Newton, 192 Or App 386, 392, rev den, 337 Or 84 (2004), cert den, 543 US 1173 (2005); Cryo-Tech, Inc. v. JKC Bend, LLC, 313 Or App 413, 428 (2021), rev den, 369 Or 211 (2022). When a party prevails in an action that encompasses both a claim for which attorney fees are authorized and a claim for which they are not authorized, the court generally must apportion the fees incurred for each claim. Greb v. Murray, 102 Or App 573, 576 (1990). However, fees need not be apportioned if the claims involve common legal issues. Id. In that situation, the prevailing party is entitled to fees reasonably incurred in association with the claims on which she prevailed, as well as fees incurred on the other claims “if the party entitled to fees would have incurred roughly the same amount of fees, irrespective of the additional claim or claims.” Perry v. Hernandez, 265 Or App 146, 149 (2014). “Ordinarily, a court awards attorney fees to a litigant only if a statute or contract authorizes such an award.” Swett v. Bradbury, 335 Or 378, 381 (2003).
Area(s) of Law:- Contract Law
Guest v. Mannenbach
In determining whether writs of garnishment are delivered to the garnishee, ORS 18.652(1) “allows for delivery of a writ of garnishment by certified mail, return receipt requested” which “only requires that the receipt be returned signed not that it be returned signed by the garnishee personally; and the actual receipt is not required for effective delivery.”
Area(s) of Law:- Civil Procedure
Hill v. Hill
Under ORCP 71A. “A clerical mistake is a mistake or omission that is not a ‘deliberate result or judicial reasoning and determination, regardless of whether it was made by the clerk, by counsel or by the judge.’” Ramis Crew Corrigan & Bachrach, LLP v. Stoelk, 193 Or App 700, 707 (2004) (Quoting Hopkins and Hopkins, 102 Or App 655, 658-59, 796 (1990), rev den, 311 Or 87 (1991).)). “[A] court’s inherent authority to modify a judgment under ORCP 71 C exists only to make technical amendments, to correct trial court error, or to grant relief in “extraordinary circumstances,” such as fraud, duress, breach of fiduciary duty or gross inequity.”
Area(s) of Law:- Civil Procedure
Romero v. Amburn
When deciding whether the discovery rule is applicable to a specific statute of limitations, the Court considers ORS 12.010, which states that actions must be initiated within the prescribed periods in the chapter after the cause of action has accrued, unless a different limitation is specified by statute. Moreover, ORS 12.080(1) mandates that any action for contract or liability, whether expressed or implied, must be initiated within six years of its accrual.
Area(s) of Law:- Contract Law
Schaefer v. Marion County
“The presence of a transportation facility or improvement shall not be a basis for an exception to allow residential, commercial, institutional, or industrial development on rural lands under this division or OAR 660-004-0022 and 660-004-0028.” OAR 660-012-0060(5).
OAR 660-012-0060(5) applies to any exception under OAR 660-004-0022 (for the specified types of development on rural lands), not just a subset of possible exceptions under OAR 660-004-0022.
- Land Use
Schroeder v. Board of Parole
A petitioner must "demonstrate - through something other than speculation - that the change in law created a risk that petitioner's term of incarceration would be extended beyond what it otherwise would have been." Morrison v. Board of Parole, 277 Or App 861, 866 (2016). "In the context of an exit interview, the procedures required by due process are minimal." Swarthout v. Cooke, 562 US 216, 220 (2011) (affirmed in Rivas v. Board of Parole, 272 Or App 248, 253-54 (2015)). "Procedures that permit an inmate to be heard and respond to the evidence against them, and that provide for a statement of reasons for the denial of parole, have been deemed constitutionally sufficient." Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 US 1, 16 (1979).
Area(s) of Law:- Parole and Post-Prison Supervision
State v. Forker
A trial court has broad discretion and as long as a court's decision falls within the range of permissible options available to it in the exercise of "broad discretion," the decision will be upheld. State v. Shaw, 338 Or 586, 615 (2005). "Extrinsic evidence is not admissible to impeach a witness regarding a 'collateral matter.'" State v. Gibson, 338 Or 560, 573 (2005). "A matter is collateral if it is not something that the cross-examining party would be entitled to prove as part of its case." Id.
Area(s) of Law:- Evidence
State v. M. D. D.
ORS 174.120(1) states that the statutory time clock “exclude[es] the first day and include[es] the last day, unless the first day falls upon any legal holiday or on Saturday, in which case the last day is also excluded.”
Area(s) of Law:- Civil Commitment
State v. Taylor
Under ORS 161.07, guilty verdicts must merge when two crimes are committed against the same victims in the same criminal episode, and one is the predicate offense for the other. Martinez v. Cain, 458 P3d 670 (2020).
Area(s) of Law:- Criminal Law
State v. Wagner
Similarly to McCormack, the Court was permitted to sidestep answering whether the state’s authority to enforce hunting regulations against treaty hunters is an issue of subject matter jurisdiction because of the “conservation necessity standard” under the Bronson framework. “[I]f the tribe itself has enacted similar valid laws[,]” the state may enforce regulations against a treaty hunter. State v. Bronson, 122 Or App 493 (1993).
Area(s) of Law:- Wildlife Law