January 27 summaries
Estate of Strickland v. Nevada County
“Of all the use-of-force factors, the ‘most important’ is whether the suspect posed an immediate threat to the officer or a member of the public.” Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010).
Area(s) of Law:- Civil Rights § 1983
Coopman v. City of Eugene
Under ORS 197.175(2)(a), “cities and counties ‘shall amend and revise’ their comprehensive plans ‘in compliance with’ the statewide planning goals.”
Area(s) of Law:- Land Use
Kragt v. Board of Parole
While the Court may choose to decline to award costs outlined in ORS 20.310(1) when the case is dismissed for mootness or otherwise, a dismissal based on the merits will typically result in the Court awarding fees to the prevailing party. DeYoung/Thomas v. Board of Parole, 332 Or 266, 276, 27 P3d 110 (2001).
Area(s) of Law:- Attorney Fees
Oregon Health Authority
Under ORS 33.096, “a court may summarily impose a sanction upon a person who commits a contempt of court in the immediate view and presence of the court.”
Area(s) of Law:- Civil Law
State v. Pitts
A defendant must engage in "physical force or physical conduct which is immediately likely to produce the use of such force" in order to be convicted disorderly conduct in the second degree. State v. Cantwell, 66 Or App 848,
Area(s) of Law:- Criminal Law
State v. Waldrup
Courts may give a Miles instruction - allowing a jury to find that a defendant was intoxicated by alcohol even if they were below the legal limit - if they were "in such a physical condition that [they were] more susceptible to the influence of intoxicants" and if there is evidence that the defendant ingested either medication or a controlled substance. State v. Avila, 318 Or App 284, 286 (2022).
Area(s) of Law:- Criminal Law
Johnson v. Landwatch Lane County
Absent allegations or findings of fraud, LUBA was bound to enforce and prioritize the finality of the 2012 LLV and LUBA correctly determined that the county's reliance on LC 14.090(8)(a)(iv) was impermissible.
Area(s) of Law:- Land Use
Calderon v. Dept. of Human Services
“‘[F]ounded determinations are not determinations that petitioner in fact abused the [child] in the ways that were alleged, but rather that DHS had ‘reasonable cause to believe’ that he had done so… the evidence in the record, an objectively and subjectively reasonable person could believe that petitioner had abused the [child] in the ways alleged. Querbach v. Dept. of Human Services, 369 Or 786, 804 (2022).”
Area(s) of Law:- Juvenile Law
In re Trout and Eitzen
“When determining whether a substantial change of circumstances exists to warrant modification or termination of spousal support, the trial court must ‘consider income opportunities and benefits of the respective parties from all sources[.]’” ORS 107.135(4)(a). To make that determination, “the trial court must consider whether the new spouse’s income is actually available to the remarried party.” Davis v. Lallement, 287 Or App 323, 329 (2017)
Area(s) of Law:- Family Law
Kasliner v. Dept. of Human Services
A circuit court must produce “special findings of fact” when it reverses an agency’s order in other than a contested case. ORS 183.484(6).
Area(s) of Law:- Juvenile Law
Mantle v. SAIF Corp.
ORS 656.327(1)(a) provides, in relevant part: “If an injured worker, an insurer or self-insured employer the Director of the Department of Consumer and Business Services believes that the medical treatment … that the injured worker has received, is receiving, will receive or is proposed to receive is excessive, inappropriate, ineffectual or in violation of rules regarding the performance of medical services, the injured worker, insurer or self-insured employer must request administrative review of the treatment by the director prior to requesting a hearing on the issue and so notify the parties.” ORS 656.327(2) provides, in relevant part: “The worker is not obligated to pay for medical treatment determined not to be compensable under this section.”
Area(s) of Law:- Workers Compensation
State v. Miles
“When considering merger and interpreting ORS 161.067(1), a court must answer three questions: ‘(1) Did defendant engage in acts that are the same conduct or criminal episode, (2) did defendant’s acts violate two or more statutory provisions, and (3) does each statutory provision require proof of an element that the others do not.’” State v. Serbin, 324 Or App 792, 795 (2023). “If the answer to the first two factors is affirmative, but the answer to the third is negative, merger is required. Id."
Area(s) of Law:- Criminal Procedure
Dept. of Human Services v. G. O.
“[T]he key inquiry in determining whether conditions or circumstances warrant jurisdiction is whether, under the totality of the circumstances, there is a reasonable likelihood of harm to the welfare of the child.” Dept. of Human Services v. C.Z., 236 Or App 436, 440 (2010). “The risk of physical violence to a child under one year of age is a threat of serious harm that supports juvenile court jurisdiction.” See, e.g., Dept. of Human Services v. T. J., 302 Or App 531, 538-39, (2020).
Area(s) of Law:- Juvenile Law
In re Gott-Dinsmore and Dinsmore
“In the absence of evidence of ‘uncontroverted circumstances’ constraining actual income, reliance on evidence of the obligor’s work history, experience and skills, and past income is not necessarily speculative and can support a determination of earning capacity.” In re Cortese and Cortese, 260 Or App 291, 296-97 (2013).
Area(s) of Law:- Family Law
State v. Cowan
ORS 803.550(1)(c) states in part that “[a] person commits the offense of illegal alteration or illegal display of a registration plate if the person knowingly … [o]perates any vehicle that is displaying a registration plate the is illegally altered … or illegally displayed[.]” ORS 803.550(2)(a) states in part that “[a] registration plate is illegally altered … if the plate has been altered, modified, covered or obscured in any manner including but not limited to … [a]ny change of the color, configuration, numbers, letters, or material of the plate.”
Area(s) of Law:- Evidence
State v. Morgan
“[W]hen introducing statements made by a defendant in conjunction with a polygraph examination, [the state] may not introduce evidence that the statements were made in the context of a polygraph examination or details of the polygraph examination.” State v. Harberts, 315 Or 408, 413 (1993). “[W]hen the issue in the case for which the polygraph evidence is being offered is entirely independent of the questions that were the subject of the polygraph, the evidence may be admissible.” Id. at 414.
Area(s) of Law:- Evidence
DHS v. M.D.L.
Under ORS 419B.875(2)(c), a party has a right to be represented by counsel at a permanency hearing.
Area(s) of Law:- Juvenile Law
Newmann v. Highberger
“First, under the state constitution, a petitioner must show that trial counsel ‘failed to exercise reasonable professional skill and judgment,’ and under the federal constitution, that ‘counsel’s performance fell below an objective standard of reasonableness.’” Smith v. Kelly, 318 Or App 567, 568-69 (2022). “Second, under both constitutions, a petitioner must show that counsel’s inadequate performance caused prejudice. Id. at 568.
Area(s) of Law:- Post-Conviction Relief
State v. Hamilton
When a person refuses to consent to a search, that refusal invokes the person’s constitutional right to insist that the government obtain a warrant, and thus evidence of the refusal may not be admitted at trial as evidence of their guilt. However, refusals to perform breath tests may be admitted as evidence of guilt if the state proves that law enforcement’s requests to perform the tests could be understood only as a request to submit to the physical act, and not as a request that defendant provide constitutionally significant consent to the tests. Banks, 364 Or at 342.
Area(s) of Law:- Criminal Law
Tylka v. Clackamas County
A LUBA order is unlawful in substance if it represents a mistaken interpretation of applicable law. 1000 Friends of Oregon v. Clackamas County, 320 Or App 444, 452-53, (2022). “Where LUBA properly articulates its substantial-evidence standard of review. . .we will not reverse its determination unless there is no evidence to support the finding or if the evidence in the case is ‘so at odds with LUBA’s evaluation that a reviewing court could infer that LUBA has misunderstood or misapplied its scope of review.’” Stevens, 260 Or App at 772 (citing Younger v. City of Portland, 305 Or 346, 359 (1988).
Area(s) of Law:- Administrative Law
State v. Carachuri
“Restitution is to be imposed when ‘a reasonable person in the defendant’s position would have foreseen that some-one in the victim’s position could reasonably incur damages of the same general kind that the victim incurred,’ and such losses resulted from the defendant’s criminal conduct.” State v. Ramos, 358 Or 581, 594 (2016).
Area(s) of Law:- Criminal Law
State v. Dietrich
“[T]he rules of accretion and avulsion are straightforward: ‘[I]f the change be gradual, the boundary of the upland will follow the water; if it be sudden, the boundary remains as before.’ State Land Board v. Sause et al, 217 Or 52, 80 (1959). “ORS 93.310(2) provides that ‘permanent and visible or ascertained boundaries or monuments’ prevail over conflicting ‘measurement[s], either of lines, angles or surfaces.’”
Area(s) of Law:- Property Law
State v. H. N.
A law infringing on rights protected under the Second Amendment is valid when consistent with this nation’s historical tradition of firearm regulation. New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 US 1, 17,142 S Ct 2111, 213 L Ed 2d 387 (2022).
Area(s) of Law:- Constitutional Law
State v. K.G.
Counsel for an alleged mentally ill person in a civil commitment proceeding is not required to be present for an interview by the civil commitment investigator.
Area(s) of Law:- Civil Commitment
State v. Long-Ellis
Under ORS 137.225(1)(a), the term, “fully complied with and performed the sentence of the court” means fully satisfying the terms of parole and not just avoiding subsequent parole violations.
Area(s) of Law:- Criminal Law
State v. Snyder
A continuance is only warranted if unanticipated circumstances come about from a discovery violation. State v. Sassarini, 300 Or App 106, 117, 452 P3d 457 (2019).
Area(s) of Law:- Criminal Procedure
State v. Tacia
“To prove constructive possession of a controlled substance, the state must show that the defendant exercised control over or had the right to control the substance.” State v. Sosa-Vasquez, 158 Or App 445, 448 (1999). “The state must link the defendant’s proximity to the substance with a right to control it, and defendant’s ‘own statements can prove the necessary link.’” State v. Fry, 191 Or App 90, 93 (2003).
Area(s) of Law:- Criminal Law
January 14 summaries
State v. McCombs
A defendant’s statement can only be used to corroborate the defendant’s confession if it is made for some other purpose other than to acknowledge guilt, and if it not so closely related to the confession as to become part of it.
Area(s) of Law:- Criminal Law
State v. Thompson
(1) ORS 161.485(2) provides “[a] person shall not be convicted of more than one [attempt] offense . . . for conduct designed to commit or to culminate in the commission of the same crime.” The application of ORS 161.485 is “akin to merger,” because a defendant can be guilty of “multiple inchoate crimes pertaining to a single substantive offense but cannot have more than one such conviction entered.” State v. Kimbrough, 364 Or 66, 73, 431 P3d 76 (2018). (2) ORS 161.067(1), provides that guilty verdicts may not merge if “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.” The difference between first-degree robbery and second-degree robbery is that first-degree robbery requires more than second-degree robbery, preventing a downward merger into second-degree robbery. See State v. Burris, 270 Or App 512, (2015). (3) An error is plain when, among other thing, it is “obvious and not reasonable in dispute, and apparent on the record without requiring the court to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013).
Area(s) of Law:- Criminal Law
Gage v. Fred Meyer Stores - Kroger Co.
“In a case where a Final Order is issued following a Recommended Order, a petition for reconsideration should be limited to: ‘A claim of factual error.’” OAR 115-010-0100(3)(c)(A).
Area(s) of Law:- Appellate Procedure
State v. Brockway
“In reviewing the denial of a motion for continuance, we determine the propriety of the motion by examining the circumstances of the case and the reasons presented to the court at the time that it denied the request.” State v. Stull, 281 Or App 662, 667 (2016). “If the trial court’s decision ‘is within the range of legally correct choices and produces a permissible, legally correct outcome, then the trial court did not abuse its discretion.’” State v. Ferraro, 264 Or App 271, 281 (2014).
Area(s) of Law:- Appellate Procedure
State v. C. A. C.
ORS 426.005(1)(f)(a) allows for civil commitment of someone who, because of a mental disorder, is dangerous to themselves or others.
The standard is defined by a highly probable threat of future harm that requires threatening statements to be accompanied by some overt act. State v. J.P., 295 Or App 228, 234, 433 P3d 452 (2018).The burden is clear and convincing evidence. State v. M.G., 296 Or App 714, 718, 440 P3d 123 (2019).
- Civil Commitment
State v. Carter
A trial court errs if it gives a jury instruction that is at odds with a general rule of Oregon law or inconsistent with a specific application of that rule in prior Oregon case law. Montara Owners Assn. v. La Noue Development, LLC, 57 Or 333, 347-48, 353 P3d 563 (2015).
Area(s) of Law:- Criminal Procedure
State v. Dikeos
Evidence that possessed an exculpatory value that was apparent before the evidence was destroyed and was of such a nature that it might be expected to play a significant role in the suspect’s defense was material, exculpatory evidence and would thus implicate a defendant’s due process rights.
Area(s) of Law:- Criminal Law
State v. Page
“In civil cases involving temporary damage to real property, the appropriate measure of damage is the total cost of restoring the property to its original condition.” McCormick v. City of Portland, 191 Or App 383, 390-91 (2004).
Area(s) of Law:- Criminal Procedure
State v. Page
Restitution may be ordered when it is reasonably foreseeable that the damages were "the kind of harm to which a defendant may be held liable." State v. Ramos, 358 Or 581, 595, 368 P3d 446 (2016).
The appropriate calculation of damages to real property is the cost to return the property to its original state. McCormick v. City of Portland, 191 Or App 383, 82 P3d 1043 (2004).
- Criminal Law
State v. Postlethwait
“OEC 803(25), [] authorizes the admission of certain documents containing out-of-court statements, while providing that ‘the defendant may subpoena’ the declarant at no cost. That language impermissibly shifted the responsibility to secure the declarant’s attendance at trial to defendant, which is directly at odds with defendant’s right to confront her accusers and to ‘meet the witnesses face to face.’ Or Const, Art I, § 11.”
Area(s) of Law:- Evidence
State v. R. D. M.
The timing requirement in ORS 419C.450(1)(a) requires the state to present its restitution evidence ‘prior to or at the time of adjudication’.
- Juvenile Law
State v. Cassidy
“Business facility” is a term that can be broadly construed to encompass real property that is used by and is necessary for the operation of a particular business venture.
Area(s) of Law:- Criminal Law
State v. Tayborne
To establish that a defendant is not licensed or privileged to enter premises not open to the public when the defendant has been permitted or invited to enter, the state must prove two elements: (1) The person extending the permission or invitation lacked actual authority to do so, and (2) the defendant knew or believed that the person lacked such authority. State v. Hartfield, 290 Or 583, 595, 624 P2d 588 (1981).
[E]ntering a building to commit a crime is not burglary if the person has permission to be in the building. State v. McLaughlin, 317 Or App 596, 607, 505 P3d 1088 (2022).
- Criminal Law
State v. Biggs
"Testimony by a witness with knowledge that a matter is what it is claimed to be" is sufficient to authenticate evidence. OEC 901(2)(a).
Area(s) of Law:- Evidence
March 3 summaries
Lowes v. Thompson
Oregon’s anti-SLAPP statute ORS 31.150 protects free speech in public matters, but these rights can be waived by contract.
Area(s) of Law:- First Amendment
State v. Slay
Under OEC 403, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
Area(s) of Law:- Evidence
Ward and Ward
In “exceptional cases” the Court will undertake de novo review of a trial court’s decision, applying the factors described in ORAP 5.40(8)(d). Dept. of Human Services v. D.W.M., 296 Or App 109, 111, 437 P3d 1186 (2019) (citing ORAP 5.40(8)(c)).
Area(s) of Law:- Appellate Procedure