January 17 summaries
Mouktabis v. Oregon City Police Dept.
The party who bears the burden of producing evidence on an element of a claim or defense has the burden of producing evidence on that issue on summary judgment. O’Dee v. Tri-County Metropolitan Trans. Dist., 212 Or App 456, 460-61, 157 P3d 1272 (2007).
Area(s) of Law:- Qualified Immunity
Rennie and Rennie
Under ORS 109.119, if a third party seeks "custody, guardianship, right of visitation or other right," the court must determine whether the presumption has been rebutted according to the type of relief sought and the parties’ present circumstances.
Area(s) of Law:- Family Law
State v. Dumdei
“Prosecutorial statements that were improper but curable are not an appropriate subject of plain-error review”
Area(s) of Law:- Criminal Procedure
State v. Mattila
A court may not award restitution for lost wages without evidence proving the causal connection between the ordered restitution and the economic damages resulting from the crime.
Area(s) of Law:- Remedies
State v. N.G.
If a person is a danger to themselves or is unable to meet their basic needs in a way that creates an imminent risk of harm due to their mental illness, that person may be civilly committed.
Area(s) of Law:- Civil Commitment
State v. Zweygartt
Court Finds Defendant Abandoned Privacy Interest in Smartphone; Merger Required on Two Counts
Area(s) of Law:- Criminal Law
Progressive Universal Ins. Co. v. Voyles
Under ORS 742.502, lower UM/UIM limits bind all insureds when elected by any named insured.
Area(s) of Law:- Insurance Law
State v. Carlton
“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.” ORS 161.067(1).
Area(s) of Law:- Criminal Law
State v. E. K. C.
ORS 426.090 requires a citation to “be served upon the person by delivering a duly certified copy of the original thereof to the person in person prior to the hearing.”
Area(s) of Law:- Civil Procedure
State v. Harrington
Misjoinder is harmless if there is little likelihood it affected the verdict.
Area(s) of Law:- Criminal Procedure
Kummer v. Fred Meyer Stores, Inc.
In order to survive summary judgment under a constructive knowledge theory for a premises liability claim, the plaintiff must produce evidence that shows how long the hazard was there for.
Area(s) of Law:- Tort Law
Dept. of Human Services v. S.E.D.
Under ORS 419B.476(2)(a), the juvenile court must determine, based on the record as of the hearing, whether DHS has made reasonable efforts and whether the parent has made sufficient progress for a safe return to their care possible, when the permanency plan at the time of the hearing is reunification.
Area(s) of Law:- Juvenile Law
Hertz v. Clackamas County Sheriff's Office
Under ORS 166.274, a petitioner seeking relief from a felony firearm restriction requires clear and convincing evidence that they no longer pose a safety risk, taking into account the original offense and their post conviction conduct, not just the amount of time since the offense.
Area(s) of Law:- Post-Conviction Relief
State v. Hutchinson
“When conducting the OEC 403 analysis, a trial court should consider how the proffered evidence would have fared under OEC 404(3) to determine whether the evidence would have been admissible under that rule for “one or more nonpropensity purposes”
Area(s) of Law:- Criminal Law
State v. Johnson
Failure to give the jury instruction on culpable mental state for the value element of criminal mischief is a reversible error by the trial court because the value element is a material element that requires mental state under ORS 161.095.
Area(s) of Law:- Criminal Law
State v. Kyei
“The trial court needs to evaluate the error, along with the explicit and implicit instructions from the appellate court, and consider the impact of the error on the record. If the 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, 491 P3d 769 (2021).
Area(s) of Law:- Criminal Law
State v. Villasenor-Sibrian
“For purposes of Article I, section 9, a search occurs when governmental action invades a protected privacy interest.”
Area(s) of Law:- Criminal Law
February 24 summaries
Potter v. Baxter
To establish minimum contacts with the State of Oregon, “the [petitioner’s] claims must arise out of or relate to the [respondent’s] contacts with the forum state."
Area(s) of Law:- Civil Procedure
State v. Franzen
Speculation that missing evidence may be more helpful is insufficient to require a less satisfactory evidence instruction to the jury.
Area(s) of Law:- Criminal Procedure
State v. J. K.
In determining whether a person poses a danger to others, we assess “whether the evidence presented was sufficient to prove that a person is a danger to others as a result of his condition at the time of the hearing as understood in the context of his history."
Area(s) of Law:- Civil Procedure
State v. T.J.L.
OYA placement is appropriately ordered by a court when the “best interest” of the youth is taken into consideration alongside the circumstances.
Area(s) of Law:- Juvenile Law
State v. Vinge
A statute does not facially violate the Second Amendment so long as it is consistent with the historical tradition of firearm regulation, such as limitations on concealed carry.
Area(s) of Law:- Constitutional Law
Dalton and Dalton
When dividing marital real property upon dissolution, the court must divide the equity in the property not just the market value of the real property
Area(s) of Law:- Family Law
State v. Bonczkowski
Under OEC 401, evidence is relevant if it has any tendency to make a fact of significance more or less probable; under OEC 403, a claim that relevant evidence should be inadmissible is waived if not raised during trial.
Area(s) of Law:- Evidence
State v. Howard
In arguing to the jury, a prosecutor “must not inappropriately characterize the jury’s factfinding function in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard or burden of proof."
Area(s) of Law:- Criminal Law
State v. Humphrey
Reasonable suspicion exists when an officer can point to specific and articulable facts that give rise to a reasonable inference that the defendant committed or was about to commit a specific crime or type of crime.
Area(s) of Law:- Criminal Procedure
State v. Oldfield
When determining whether a culpable mental state applies to an element within a statute, courts look at 1) the text of the statute, 2) the nature of the element at issue, 3) the legislative history of the statute, and 4) whether proof of the mental state would frustrate the purpose of the statute.
Area(s) of Law:- Criminal Procedure
State v. Rodriguez
Under Article I, Section 12 of the Oregon Constitution, Miranda warnings are required when a person is in custody or subjected to compelling circumstances equivalent to custody.
Area(s) of Law:- Criminal Procedure
1000 Friends of Oregon v. City of Portland
In this appeal, the issue is whether LUBA’s order to transfer the case to circuit court was “unlawful in substance or procedure” ORS 197.850(9)(a). Under judicial review, the Court found that the city approved the permit under “clear and objective land use standards” and was not subject to LUBA jurisdiction.
Area(s) of Law:- Land Use
Lum v. Lee
A case becomes moot when a court’s decision will no longer have a practical effect on the rights of the parties.
Area(s) of Law:- Family Law
Mohiadeen v. Washington County Sheriff’s Office
An applicant is not eligible for an Oregon concealed handgun license if they have ever been convicted of a felony, unless that conviction was expunged under Oregon law or an equivalent out of state law.
Area(s) of Law:- Criminal Procedure
Murphy v. City of Cannon Beach
A limitation on recreational liability under ORS 105.682 applies if the principal purpose for entry upon the land is for recreational purposes.
Area(s) of Law:- Tort Law
State v. Acree
“The test to determine whether the omission of an element from the trial court’s instruction was harmless ‘is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’… Under the state standard, the question is whether there is 'little likelihood that the particular error affected the verdict’” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).
Area(s) of Law:- Criminal Law
State v. Dacquisto
“Defendant appeals from a conviction of felon in possession of a restricted weapon. Defendant assigned error to the trial court’s denial of his motion to suppress evidence obtained during an officer safety-search.”
Area(s) of Law:- Criminal Law
State v. Juttner
If a defendant’s invocation is unequivocal, then the interrogation must cease immediately; however, if the invocation is equivocal, an officer is permitted to either “(1) stop the interrogation or (2) ask the defendant neutral follow-up questions intended to clarify the equivocal nature of the defendant’s statement.” State v. Joaquin, 307 Or App 314, (2020). Moreover, “any questioning not reasonably designed to clarify the equivocal nature of the statement is impermissible.” State v. Schrepfer, 288 Or App 429 (2017).
Area(s) of Law:- Criminal Procedure
State v. Pool
There are three prerequisites to an order of restitution: (1) criminal activities, (2) economic damages, and (3) a causal relationship between the two.” State v. Pumphrey, 266 Or App 729, 733, 338 P3d 819 (2014).
Area(s) of Law:- Civil Law
State v. S. G.
A “person with a mental illness” includes someone who suffers from a “mental disorder,” and, as a result of that disorder, is a danger to self. ORS 426.005(1)(f)(A).
Area(s) of Law:- Civil Law
Department of Human Services v. A.S.
A permanency judgment that does not provide “all of the dots" in writing... undercuts the long line of cases that have required explicit written findings." Dept. of Human Services v. R. A. H., 299 Or App 215 (2019).
Area(s) of Law:- Juvenile Law
State v. Pine
A defendant must object to contested probation conditions at sentencing if he is aware of them or he otherwise loses the opportunity to raise them on appeal.
Area(s) of Law:- Post-Conviction Relief
State v. Scofield
The emergency aid exception applies when officers have an “objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or to assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.” State v. Baker, 350 Or 641, 649, 260 P3d 476 (2011).
Area(s) of Law:- Criminal Procedure
Taylor v. Goodman
A directed verdict “for a defendant on a negligence claim is appropriate only if the court can affirmatively say that there is no evidence from which a jury could find facts necessary to establish each element of the claim."
Area(s) of Law:- Civil Law
March 11 summaries
M. E. v. Kirk
ORS 107.137 includes several factors a court must weigh in determining custody… “sibling relationships are important and must be considered in the custody determination—whether such relationships are of the half or whole blood. [b]ut sibling relationships are not dispositive of custody—whether of the half or whole blood”.
Area(s) of Law:- Family Law
Laack v. Botello
“The award of an enhanced prevailing party fee is a discretionary determination, and it does not require the trial court to have ‘found that [defendant] acted in a reckless manner.’ The court must consider the conduct of the parties, but it is not required to find recklessness. See ORS 20.190(3)(a)."
Area(s) of Law:- Attorney Fees
Neatherlin v. Brown
For a petitioner to succeed on this appeal, they must prove that trial counsel failed to exercise reasonable professional skill and it was a prejudicial error. To prove prejudice in this context, petitioner had to show “more than a mere possibility, but less than a probability that, had trial counsel properly investigated potential mitigating evidence, the sentence would have been different.” Maxfield v. Cain, 322 Or App 405, 409, 520 P3d 890 (2022).
Area(s) of Law:- Post-Conviction Relief
State v. Buck
“ORS 132.560(2) does not limit the trial court to the face of the indictments when determining whether two indictments ‘are found in’ one of the circumstances set out in ORS 132.560(1)(b)(A) to (C)… a common scheme or plan [occurs] when they are ‘logically related, ad there is a large area of overlapping proof between them’”. See State v. Dewhitt, 276 Or App 373, 383 (2016)
Area(s) of Law:- Criminal Procedure
State v. Dearmitt
“A departure sentence is the particular sentence selected by the sentencing court that exceeds the presumptive sentence but is no more than the maximum sentence. And it is that particular sentence, not the abstract decision to depart, that must be supported by facts that the state alleges and proves.”... “Under Blakely, the Sixth Amendment entitles a defendant to have a jury determine any aggravating factor that a court may then use to justify a sentence that exceeds the presumptive range.” Upton, 339 Or at 681.”
Area(s) of Law:- Sentencing
State v. Northey
To determine if an omission of a mental-state instruction is harmless, the court asks whether “there is “some likelihood” that, had it considered the issue, the jury might not have been persuaded that the defendant was criminally negligent as to a substantial risk of physical injury to himself or the officers." State v. Stone, 324 Or App at 695.
Area(s) of Law:- Criminal Law
Townsend v. Townsend
“An attorney remains an attorney for the adverse party for purposes of service of the notice of appeal, unless, prior to the service of the notice of appeal, written notice under ORS 9.390 that the attorney has withdrawn is received by the party serving the notice of appeal.”
Area(s) of Law:- Civil Procedure
Arnold v. Kotek
Plaintiffs challenged the facial constitutionality of the [Measure 114, Reduction of Gun Violence Act] under Article I, section 27, of the Oregon Constitution, which provides that “[t]he people shall have the right to bear arms for the defence [sic] of themselves, and the State[.]”
Area(s) of Law:- Constitutional Law
Justice Resource Center v. Board of Parole
A ‘rule’ is “any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency.” ORS 183.310(9)...“Testimony about law, standing alone, does not function in a self-executing way as law itself.”
Area(s) of Law:- Administrative Law
State v. Ballangrud
A sufficient pause is “a temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent."
Area(s) of Law:- Criminal Law
Zyst v. Kelly
In order to prove ineffective assistance of counsel a party must show that their trial counsel failed to exercise reasonable professional skill and judgment and that they suffered prejudice as a result of their counsel’s inadequacy.
Area(s) of Law:- Post-Conviction Relief
April 0 summaries
May 2 summaries
State v. Pedersen
A critical stage [of criminal proceedings] occurs when a defendant “must take steps or make a choice which is likely to have a substantial effect on the prosecution against him.” State v. Miller, 254 Or 244, 249, 458 P2d 1017 (1969).
Area(s) of Law:- Criminal Procedure
Worley v. Lewis
The doctrine of issue preclusion seeks to prevent relitigation of issues already addressed in a prior litigation and “arises in a subsequent proceeding when an issue of ultimate fact—or an issue of law—has been determined by a valid and final determination in a prior proceeding.’ SPS of Oregon, Inc. v. GDH, LLC, 258 Or App 210, 219, 309 P3d 178 (2013).”
Area(s) of Law:- Civil Procedure