David Burleson

9th Circuit Court of Appeals (9 summaries)

Cal. Rest. Ass’n v. City of Berkeley

“EPCA’s preemption clause establishes that, once a federal energy conservation standard becomes effective for a covered product, ‘no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product[.]’ 42 U.S.C. § 6297(c).”

Area(s) of Law:
  • Preemption

York County v. HP, Inc

“[A] defendant establishes that a complaint is time-barred under §1658(b)(1) if it conclusively shows that either (1) the plaintiff could have pleaded an adequate complaint based on facts discovered prior to the critical date and failed to do so, or (2) the complaint does not include any facts necessary to plead an adequate complaint that were discovered following the critical date.”

Area(s) of Law:
  • Business Law

City of Los Angeles v. FAA

“NEPA requires that a federal agency consider every significant aspect of the environmental impact of a proposed action … [and] inform the public that it has indeed considered environmental concerns in its decision-making process.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003).

Area(s) of Law:
  • Administrative Law

Buero v. Amazon.com Services, Inc.

According to the Oregon Supreme Court, “Oregon law aligns with federal law regarding what activities are compensable. Therefore, under Oregon law, as under federal law, time that employees spend on the employer’s premises waiting for and undergoing mandatory security screenings before or after their work shifts is compensable only if the screenings are either (1) an integral and indispensable part of the employees’ principal activities or (2) compensable as a matter of contract, custom, or practice.”

Area(s) of Law:
  • Employment Law

Wide Voice, LLC v. FCC

“Under § 706, [the court] must determine whether the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A)

Area(s) of Law:
  • Administrative Law

No On E v. David Chiu

“The district court applied exacting scrutiny, which requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Citizens United v. FEC, 558 U.S. 310, 366–67 (2010).

Area(s) of Law:
  • First Amendment

US v. Farias-Contreras

“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York , 404 U.S. 257, 262 (1971).

Area(s) of Law:
  • Criminal Law

Clarkson v. Alaska Airlines, Inc.

“USERRA § 4316(b)(1) requires employers to provide employees who take military leave with the same non-seniority rights and benefits as their colleagues who take comparable non-military leaves.”

Area(s) of Law:
  • Labor Law

Ctr. for Biological Diversity v. Haaland

“An agency action is ‘final’ only if it both (1) ‘mark[s] the consummation of the agency’s decision-making process—it must not be of a merely tentative or interlocutory nature,’ and (2) is ‘one by which rights or obligations have been determined, or from which legal consequences will flow.’ Bennett v. Spear, 520 U.S. 154, 177–78 (1997).”

Area(s) of Law:
  • Administrative Law

Oregon Court of Appeals (25 summaries)

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

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

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

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

Dorn-Privett v. Brown

“Under ORS 161.067(1), referred to as the “anti-merger” statute, “[w]hen the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”

Area(s) of Law:
  • Post-Conviction Relief

Indoor Billbd. / Northwest, Inc. v. TheLaundryList.com

An Oregon trial court may exercise personal jurisdiction “over a properly served defendant ‘[i]n any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant,’ so long as, at the time the alleged injury occurred, the defendant either carried on ‘[s]olicitation or service activities … within this state,’ ORCP 4 D(1), or ‘[p]roducts, materials, or things distributed, processed, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of trade,’ ORCP 4 D(2).”

Area(s) of Law:
  • Civil Procedure

Free Oregon, Inc. v. Oregon Health Authority

“[I]n reviewing a rule challenge under [ORS 183.400], we may declare the rule invalid only if we conclude that it violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures.” BP West Coast Products, LLP v. Dept. of Justice, 284 Or App 723 (2017).

Area(s) of Law:
  • Administrative Law

In Re Noor & Chowdhury

The sanctions of striking pleadings and dismissal in ORCP 46 B(2)(c) are “appropriate only when it is ‘just’ and only when there is willfulness, bad faith, or other fault of like magnitude by the disobedient party.” Pamplin v. Victoria, 319 Or 429, 436-37 (1994).

Area(s) of Law:
  • Family Law

J.S. v. Hudgins

“When [an SPO] petition is based solely on expressive communication—like verbal statements or text messages—at least two of those communications ‘must rise to the level of a threat to be considered … qualifying unwanted contact[s].” A. M. M. v. Hoefer, 269 Or App 218, 223 (2015). “Qualifying threats are communications that ‘instill[ ] in the addressee a fear of imminent and serious personal violence from the speaker, [are] unequivocal, and [are] objectively likely to be followed by unlawful acts.” State v. Rangel, 328 Or 294, 303 (1999).

Area(s) of Law:
  • Civil Stalking Protective Order

Gilbride v. Smith

The “primary consideration in a child custody proceeding is the best interests of the child.” DHS v. T.G.H., 305 Or App 783, 791 (2020). Thus, “consistent with the statutory framework governing child custody, the court’s primary consideration in exercising discretion under ORS 107.425(2) must be how the relevant factors implicate the child’s best interests.”

Area(s) of Law:
  • Family Law

State v. H.D.

A court may order a conditional release of a person with mental illness only if the release is requested by the legal guardian, relative or friend of the person who requested to be allowed to care for the person “during the period of commitment in a place satisfactory to the judge,” and who has the ability and adequate financial resources to care for the person. ORS 426.125(1)(a)-(c).

Area(s) of Law:
  • Civil Commitment

Peeler v. Reyes

Under federal law, “absent misrepresentation or other impermissible conduct by state agents … a voluntary plea of guilty intelligently made in the light of then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.” Brady v. United States, 397 US 742, 756-57 (1970).

Area(s) of Law:
  • Post-Conviction Relief

State v. Miller

“Vouching refers to the expression of one’s personal opinion about the credibility of a witness.” State v. Chandler, 360 Or 323, 330-31 (2016) (internal quotations omitted). “Credibility determinations are the exclusive province of the jury, so witnesses are categorically prohibited from expressing a view on whether another witness is telling the truth.” State v. Middleton, 294 Or 427, 438 (1983) (internal quotations omitted).

Area(s) of Law:
  • Evidence

State v. Cantrell

“Where a search warrant authorizes the search of multiple electronic devices, the supporting affidavit must supply probable cause ‘for each device that a warrant authorizes to be searched.’” State v. Cannon, 299 Or App 616, 629 (2019). “Article I, section 9 [of the Oregon Constitution], requires that probable cause exist for each device authorized to be searched in a warrant.” Id. at 632.

Area(s) of Law:
  • Criminal Procedure

Wolfston v. Eastside Bend, LLC.

ORS 36.705(1)(a) states: “the court shall vacate an award made in the arbitration proceeding if … [t]he award was procured by corruption, fraud or other undue means.”

Area(s) of Law:
  • Arbitration

Person v. Board of Parole

“[T]o grant parole consideration under ORS 144.228 (1987), the board must find that the person’s severe personality disorder indicating a propensity toward continuing dangerous criminal activity is absent or in remission.”

Area(s) of Law:
  • Parole and Post-Prison Supervision

State v. Wesley

“After [State v. Hubbell, 314 Or App 844, 870-871, (2021)], where a person has taken a substantial step toward delivery of a controlled substance, but has not yet attempted the transfer itself, the person will have committed the inchoate crime of attempted delivery of a controlled substance, rather than delivery.”

Area(s) of Law:
  • Criminal Law

Gramada v. SAIF Corp.

“A finding of impairment requires (1) that there is a loss of use or function of the body part or system, and (2) that the loss is due to the compensable injury.” Robinette v. SAIF, 369 Or 767, 781-82 (2022) (citing ORS 656.214). “Each loss of use or function is to be considered separately, and a loss is ‘due to the compensable injury’ when the accepted condition is found to be a material cause of the loss.” Johnson v. SAIF, 369 Or 707, 603 (2022); Robinette, 369 Or at 784.

Area(s) of Law:
  • Workers Compensation

State v. Brown

Under State v. Garrett, 300 Or App 671 (2019), to determine if offenses are of the same or similar character, the Court will consider “factors such as the temporal proximity of the acts, similarities in the elements of the offenses, whether there will be similar evidence or evidentiary overlap, and whether the charges involve the same or similar victims, locations, intent, modus operandi, or acts.” Under State v. Dewhitt, 276 Or App 373 (2016), “offenses are ‘connected together or constituting parts of a common scheme or plan’ when they are ‘logically related, and there is a large area of overlapping proof between them.’”

Area(s) of Law:
  • Criminal Law

State v. Vannoy

“Under Article I, section 9, of the Oregon Constitution, ‘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).

Area(s) of Law:
  • Criminal Procedure

Hathaway v. B & J Property Investments, Inc.

“ORS 12.125 states that ‘[a]n action arising under a rental agreement or [ORTLA] shall be commenced within one year.’” ORS 12.010 states that statute of limitations for actions brought under ORS chapter 12 are tolled “after the cause of action shall have accrued.” Under Rice v. Rabb, 354 Or 721 (2014), “[a] claim ‘accrue[s]’ under ORS 12.010 when the “plaintiff obtained knowledge, or reasonably should have obtained knowledge’ of the claim.”

Area(s) of Law:
  • Landlord Tenant

Davis & Galm, LLC v. Neve

“[U]nder Oregon law, ‘the plaintiff’s concrete stake in the outcome must continue throughout the pendency of the case.’ [Couey v. Atkins, 357 Or 460, 469 (2006)]. If plaintiffs’ concrete stake in the outcome evaporates after initiation of the action, the case becomes moot and must be dismissed for want of justiciability. Id.”

Area(s) of Law:
  • Civil Procedure

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