United States Supreme Court (1 summary)
Pugin v. Garland
An offense may "relat[e] to obstruction of justice" under §1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending.
Area(s) of Law:- Immigration
United States Supreme Court Certiorari Granted (5 summaries)
United States v. Texas
Challenges to an agency's exercise of enforcement discretion are not the kind redressable by federal courts.
Area(s) of Law:- Constitutional Law
United States v. Washington
40 U.S.C §3172’s federal waiver of immunity does not “clearly and unambiguously” authorize a state to enact a discriminatory law that facially singles out the Federal Government for unfavorable treatment.
Area(s) of Law:- Constitutional Law
Johnson v. Arteaga-Martinez
8 U.S.C. §1231(a)(6) does not require the Government to offer noncitizens detained for more than six months bond hearings in which the Government must prove by clear and convincing evidence that the noncitizen poses a flight risk or a danger to the community.
Area(s) of Law:- Immigration
Kemp v. United States
Federal Rule of Civil Procedure 60(b) motions alleging a legal error by a judge are subject to the 1-year limitation.
Area(s) of Law:- Civil Procedure
ZF Automotive US, Inc. v. Luxshare, Ltd.
A party lacking governmental involvement does not constitute a “foreign or international tribunal” under 28 U.S.C. §1782.
Area(s) of Law:- Civil Procedure
9th Circuit Court of Appeals (30 summaries)
Project Veritas v. Schmidt
Making an audio or video recording qualifies as speech entitled to the protection of the First Amendment. See Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184, 1203–04 (9th Cir. 2018). A law is content based if it “single[s] out any topic or subject matter for differential treatment.” City of Austin v. Reagan Nat’l Ad. of Austin, LLC, 142 S. Ct. 1464, 1472 (2022). If a general prohibition, considered by itself, is content neutral, it can be “saved” as constitutional if it qualifies as a valid time, place, or manner restriction. Such a restriction must (1) be content neutral, (2) survive intermediate scrutiny review, and (3) “leave open ample alternative channels for communication of the information.” Hoye v. City of Oakland, 653 F.3d 835, 844 (9th Cir. 2011) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)); see also Regan v. Time, Inc., 468 U.S. 641, 648 (1984).
Area(s) of Law:- Constitutional Law
Figueroa Ochoa v. Garland
“[N]o court shall have jurisdiction to review . . . any judgment regarding the granting of relief under” immigration laws governing the cancellation of removal and adjustment of status. 8 U.S.C. § 1252(a)(2)(B)(i). “Judgment,” interpreted as “any authoritative decision,” “is the only [interpretation] that fits § 1252(a)(2)(B)(i)’s text and context.” Patel v. Garland, 142 S. Ct. 1614, 1622 (2022).
Area(s) of Law:- Immigration
Mayes v. Biden
A plaintiff seeking a permanent injunction must establish: “(1) actual success on the merits; (2) that it has suffered an irreparable injury; (3) that remedies available at law are inadequate; (4) that the balance of hardships justify a remedy in equity; and (5) that the public interest would not be disserved by a permanent injunction.” Indep. Training & Apprenticeship Program v. Cal. Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013) (internal citations omitted).
Area(s) of Law:- Administrative Law
Hill v. Xerox Business Services, LLC
A party waives its right to compel arbitration when (1) it has knowledge of the right, and (2) it acts inconsistently with that right.
Area(s) of Law:- Alternative Dispute Resolution
D.O. v. Escondido Union School Dist.
A delay in proposing an autism assessment plan does not by itself constitute a procedural violation of IDEA. A procedural violation of IDEA constitutes a denial of FAPE if there are “procedural inadequacies that result in the loss of educational opportunity, or seriously infringe [on] the parents’ opportunity to participate in the IEP formulation process, or . . . cause[] a deprivation of educational benefits.” Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001).
Area(s) of Law:- Disability Law
Langer v. Kiser
“[N]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182. A facility is “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock . . . roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. § 36.104. Courts cannot use the doctrine of standing to keep meritorious ADA cases out of federal courts simply because they are brought by serial litigants.
Area(s) of Law:- Disability Law
Opara v. Yellen
After a plaintiff establishes a prima facie case for discrimination either based on the McDonnell Douglas factors or by offering direct or circumstantial evidence of discriminatory motive, “‘[t]he burden . . . shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action.’” E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (second brackets in original) (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000)). Once an employer articulates some legitimate, nondiscriminatory reason for the challenged action, the employee must show that the articulated reason is pretextual.
Area(s) of Law:- Employment Law
United States v. Lillard
The Sixth Amendment guarantees the right to “be represented by an otherwise qualified attorney whom the defendant can afford to hire, or who is willing to represent the defendant even though he is without funds[.]” Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989). An illegally excessive sentence violates a defendant’s substantial rights even if it runs concurrent with an equal or longer, valid sentence.
Area(s) of Law:- Post-Conviction Relief
Perez-Portillo v. Garland
The test for whether an individual produced sufficient evidence to overcome the presumption of service by regular mail is “practical and commonsensical rather than rigidly formulaic,” and that in many cases the only proof may be the individual’s statement as well as circumstantial evidence. Sembiring v. Gonzales, 499 F.3d 981, 988 (9th Cir. 2007).
Area(s) of Law:- Immigration
Sauk-Suiattle Indian Tribe v. City of Seattle
“Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States court of appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. . . . Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.” 16 U.S.C. § 825l(b) (emphasis added).
Area(s) of Law:- Civil Procedure
Owino v. CoreCivic, Inc.
One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable [“numerosity”]; (2) there are questions of law or fact common to the class [“commonality”]; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [“typicality”]; and (4) the representative parties will fairly and adequately protect the interests of the class [“adequacy”]. Fed. R. Civ. P. 23(a).
Area(s) of Law:- Civil Procedure
Johnson v. Ryan
When analyzing an inmate’s procedural due process claim, the court engages in a two-step analysis, considering whether: (1) the inmate was deprived of a constitutionally protected liberty or property interest, and (2) that deprivation was accompanied by sufficient procedural protections. United States v. 101 Houseco, LLC, 22 F.4th 843, 851 (9th Cir. 2022). In order to determine whether the procedural protections provided are sufficient at the second step, the court looks at (1) the private interest affected; (2) the risk of an erroneous deprivation and the probable value of any additional or substitute procedural safeguards; and (3) the government’s interest. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). To establish a property interest in a benefit, “a person clearly must have. . . a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1974). Although “[a] state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right,” Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 463 (1981), a plaintiff does not have an independent right to those procedures. See Dist. Att’y’s Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 67–68 (2009). A First Amendment claim in the context of incarcerated individuals has five elements: (1) adverse action by a state actor against the inmate (2) because of (3) that prisoner’s protected conduct, and the action (4) chilled the inmate’s exercise of his First Amendment rights and (5) did not reasonably advance a legitimate correctional goal. Chavez v. Robinson, 12 F.4th 978, 1001 (9th Cir. 2021). To establish a retaliatory motive, an inmate “must show that his protected conduct was the substantial or motivating factor behind the defendant’s conduct.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quotations omitted).
Area(s) of Law:- Constitutional Law
United States v. Kirst
“An administrative investigation is a ‘proceeding’ within the meaning of 18 U.S.C. [§] 1505.” United States v. Vixie, 532 F.2d 1277, 1278 (9th Cir. 1976) (per curiam). Wrongful intent “may be inferred from circumstantial evidence.” United States v. Dearing, 504 F.3d 897, 901 (9th Cir. 2007)
Area(s) of Law:- Criminal Procedure
Rodriguez Diaz v. Garland
When evaluating alleged due process violations, courts weigh three factors: “first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The private interest of a detained alien under § 1226(a) is lower than that of a detained U.S. citizen, and the governmental interests are significantly higher in the immigration detention context. In all events, “[d]ue process does not . . . require two hearings.” Goldberg v. Kelly, 397 U.S. 254, 267 n.14 (1970).
Area(s) of Law:- Immigration
Punchbowl, Inc. v. AJ Press, LLC
Under the Rogers test, the defendant must first “make a threshold legal showing that its allegedly infringing use is part of an expressive work protected by the First Amendment.” Gordon v. Drape Creative, Inc., 909 F.3d 257, 264 (9th Cir. 2018). If the defendant meets this burden, the Lanham Act does not apply unless “the defendant’s use of the mark (1) is not artistically relevant to the work or (2) explicitly misleads consumers as to the source or the content of the work.” Id.
Area(s) of Law:- Trademarks
Unicolors, Inc. v. H&M Hennes & Mauritz, L.P.
A party seeking to invalidate a copyright registration under § 411(b) must demonstrate that (1) the registrant submitted a registration application containing inaccuracies, (2) the registrant knew that the application failed to comply with the requisite legal requirements, and (3) the inaccuracies in question were material to the registration decision by the Register of Copyrights. Roberts v. Gordy, 877 F.3d 1024, 1030 (11th Cir. 2017). A copyright registration certificate is relevant evidence of the validity of the copyright in question. United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011). A remittitur must reflect the maximum amount sustainable by the proof. But where the method the jury used to calculate its award can be ascertained by a review of the verdict, the judge is responsible for preserving the jury’s findings to the greatest extent possible by using that method of calculation in determining the remittitur amount.
Area(s) of Law:- Copyright
Magassa v. Mayorkas
§ 1981 prohibits intentional discrimination and promises “[a]ll persons” the right to “make and enforce contracts.” 42 U.S.C. § 1981(a). The statute provides that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.” Id. § 1981(c). When evaluating procedural due process claims, the Court weighs the plaintiff’s “(1) liberty [or property] interests; (2) the risk of an erroneous . . . deprivation through the current traveler redress procedures, and the probable value of additional or substitute procedural safeguards; and (3) the government’s interest in national security, including the administrative burdens that additional procedural requirements would entail.” Kashem v. Barr, 941 F.3d 358, 364, 377 (9th Cir. 2019).
Area(s) of Law:- Administrative Law
Jones v. Ryan
IAC claims require the defendant to show that (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s failure to investigate and present evidence of a defendant’s mental defect constitutes deficient performance. Williams v. Taylor, 529 U.S. 362, 396 (2000). Additionally, the failure to “make even [a] cursory investigation” into available means of obtaining additional funding for expert witnesses may amount to deficient performance under Strickland. See Hinton v. Alabama, 571 U.S. 263, 274 (2014).
Area(s) of Law:- Post-Conviction Relief
Green v. Miss United States of America
The First Amendment ensures that “Congress shall make no law . . . abridging the freedom of speech,” which includes “various forms of entertainment and visual expression as purely expressive activities.” U.S. Const. amend. I.; Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010). These protections extend to theatrical productions that “frequently mix[] speech with live action or conduct,” and beauty pageants fall within this ambit. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975).
Area(s) of Law:- Constitutional Law
United States v. Kabir
USSG § 3B1.1(c) provides that a defendant’s offense level will be adjusted two levels upward if he “was an organizer, leader, manager, or supervisor” in a non-extensive criminal activity involving fewer than five participants. “Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008).
Area(s) of Law:- Sentencing
Michaels v. Davis
(1) If a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent,” officers must cease the interrogation. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). The Miranda rights invocation must be “unambiguous.” Davis v. United States, 512 U.S. 452, 459 (1994). (2) Ineffective assistance of counsel claims require that “counsel’s performance was deficient,” and that the “deficient performance prejudiced [defendant’s] defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). (3) The dispositive question when defendants complain of conflicts with their attorneys that are conflicts of their own making is whether counsel provided adequate counsel according to standards established in Strickland. See Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc). (4) To be competent to stand trial, a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational and factual understanding of the proceedings against him.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (alterations in original).
Area(s) of Law:- Post-Conviction Relief
Ochoa v. Davis
(1) A juror in a capital case is properly excluded for cause where the juror’s views on capital punishment would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985) (cleaned up). (2) Ineffective assistance of counsel claims require that “counsel’s performance was deficient,” and that the “deficient performance prejudiced [defendant’s] defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In the penalty phase of a capital case, a defendant must show “a reasonable probability that at least one juror” would have voted for a life sentence. Wiggins v. Smith, 539 U.S. 510, 537 (2003). (3) Intellectual disability is defined according to 3 factors: “significantly subaverage intellectual functioning”; “deficits in adaptive functioning”; and “onset of these deficits during the developmental period.” Hall v. Florida, 572 U.S. 701, 710 (2014).
Area(s) of Law:- Post-Conviction Relief
United States v. Rodriguez
When a defendant files a motion under 28 U.S.C. § 2255, “a hearing is mandatory whenever the record does not affirmatively manifest the factual or legal invalidity of the petitioner’s claims.” Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982).
Area(s) of Law:- Post-Conviction Relief
United States v. Wright
If property is no longer needed as evidence, the government must prove a “legitimate reason” to retain that property by: establishing that the property is contraband; establishing that the project is subject to forfeiture; or rebutting the presumption that the defendant is entitled to lawful possession of the property. United States v. Gladding, 775 F.3d 1149, 1152 (9th Cir. 2014); United States v. Van Cauwenberghe 827 F.2d 424, 433-34 (9th Cir. 1987).
Area(s) of Law:- Criminal Procedure
Spirit of Aloha Temple v. County of Maui
A law that “makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint.” Epona v. County of Ventura, 876 F.3d 1214, 1222 (9th Cir. 2017).
Area(s) of Law:- First Amendment
Vo v. Choi
When declining to exercise supplemental jurisdiction for a state-law claim under 28 U.S.C. § 1367(c)(4), a district court must: (1) sufficiently explain “why the circumstances of the case are exceptional” under § 1367(c)(4); and (2) show that “the balance of the Gibbs values provides compelling reasons for declining jurisdiction in such circumstances.” Arroyo v. Rosas, 19 F.4th 1202, 1210–11 (9th Cir. 2021).
Area(s) of Law:- Civil Procedure
Hernandez Avilez v. Garland
Noncitizens subject to mandatory detention under § 1226(c) are not statutorily eligible for release on bond during the judicial phase of the proceedings, except under the narrow circumstances defined by § 1226(c)(2).
Area(s) of Law:- Immigration
Klamath Irrigation Dist. v. Shasta View Irrigation Dist.
A party is a “required party” if: “that [party] claims an interest relating to the subject of the action and . . . disposing of the action in [their] absence may . . . as a practical matter impair or impede [their] ability to protect the interest.” Fed. R. Civ. P. 19(a)(1)(B)(i). To determine whether a suit should proceed among existing parties where a required party cannot be joined, courts consider: potential prejudice, possibility to reduce prejudice, adequacy of a judgment without the required party, and adequacy of a remedy with dismissal. Fed. R. Civ. P. 19(b).
Area(s) of Law:- Civil Procedure
Metlakatla Indian Community v. Dunleavy
When evaluating off-reservation rights, the Court is required to infer rights that support a reservation’s purpose. See Winters v. United States, 207 U.S. 564, 576-77 (1908).
Area(s) of Law:- Indian Law
Tingley v. Ferguson
“States may regulate professional conduct, even though that conduct incidentally involves speech.” National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2372 (2018).
Area(s) of Law:- Constitutional Law
Oregon Court of Appeals (58 summaries)
Bridge Creek Ranch v. Water Resources Dept.
A permit for storage, in and of itself, does not constitute or include the right to use stored water; it is the secondary permit that applies the water to beneficial use. Cookinham v. Lewis, 58 Or 484, 492, reh’g denied, 58 Or 495 (1911); see also Nevada Ditch Co. v. Bennett, 30 Or 59, 89 (1896). The holder of the storage certificate and the holder of the certificate for use of the water together create the appropriation and the beneficial use. See also Nevada Ditch Co., 30 Or at 98.
Area(s) of Law:- Water Rights
Bundy v. NuStar GP LLC
“If, after consideration of text, context, and legislative history, the intent of the legislature remains unclear, then the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.” PGE v. Bureau of Labor and Industries, 317 Or 606, 612 (1993).
Area(s) of Law:- Workers Compensation
Douglas County v. Fish and Wildlife Commission
An order is “any agency action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of an agency.” ORS 183.310(6)(a). A rule is (1) any agency directive, standard, regulation or statement (2) of general applicability (3) that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency. ORS 183.310(9).
Area(s) of Law:- Administrative Law
State v. Garlinghouse
Under OEC 702, expert testimony “must assist a trier of fact to understand the evidence or determine an issue of fact that it may not be able to understand or determine as well on its own.” State v. Jesse, 360 Or 584, 594 (2016).
Area(s) of Law:- Evidence
Providence Health & Services v. Mancuso
It is an unlawful practice if in the course of a person’s business, vocation, or occupation the person “disparages the real estate, goods, services, property or business of a customer or another by false or misleading representations of fact.” ORS 646.608(1)(h).
Area(s) of Law:- Insurance Law
State v. Powers
In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by [other binding authorities]. OEC 404(4).
Area(s) of Law:- Evidence
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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. 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. 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. 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. 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
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
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
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
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
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
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
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
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
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. 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. 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
Land Use Board of Appeals (6 summaries)
Recht v. City of Depoe Bay
1) Where a local government makes findings based on the assertions of an applicant’s representatives in disregard of evidence to the contrary, and where those findings are based on a record which lacks outcome determinative information, LUBA will hold that they are inadequate. 2) Where local zoning code requires that a variance must be “necessary for the preservation of a property right of the applicant substantially the same as owners of other property in the same zone of vicinity possess,” LUBA will hold that the noncompliance of an existing development alone is not substantial evidence of the existence of a corresponding property right in others to develop in the same manner.
Area(s) of Law:- Land Use
Windlinx Ranch Trust v. Deschutes County
1) LUBA will generally not second guess a land use decision-maker's choice between conflicting expert testimony, so long as it appears to LUBA that a reasonable person could decide as the decision-maker did, based on all of the evidence in the record. Westside Rock v. Clackamas County, 51 Or LUBA 264, 294 (2006); Wal-Mart Stores, Inc. v. City of Bend, 52 Or LUBA 261, 276 (2006). 2) A petitioner's arguments must give a county "fair notice" of an issue. Boldt v. Clackamas County, 107 Or App 619, 623 (1991). 3) Only parcels that are lawfully created may be counted in determining whether the requirements of the forest template dwelling statute have been met. Friends of Yamhill County v. Yamhill County, 229 Or App 188, 198 (2009). 4) Substantial evidence is evidence a reasonable person would rely on in making a decision. Dodd v. Hood River County, 317 Or 172, 179 (1993).
Area(s) of Law:- Land Use
Friends of Marion County v. Marion County
“Even if a commercial activity primarily sells to farm uses, that may not be sufficient to allow the commercial activity to qualify as a commercial activity in conjunction with farm use . . . The products and services provided must be ‘essential to the practice of agriculture.’” City of Sandy v. Clackamas County, 28 Or LUBA 316, 322 (1994). The farm impacts test requires (1) the applicant to identify the surrounding lands, the farms on those lands, the accepted farm practices on each farm, and the impacts of the proposed nonfarm use on each farm practice; (2) the local government to determine whether the proposed nonfarm use will force a "significant" change to, or cost increase in, an accepted farm practice, as that term is ordinarily used; and (3) if there is a significant change, the local government to determine whether the applicant has demonstrated that the nonfarm use meets the test with conditions of approval.
Area(s) of Law:- Land Use
Hendrickson v. Lane County
Counties may not subject temporary hardship dwellings to local criteria that are more restrictive than state statute. Brentmar v. Jackson County, 321 Or 481 (1995); Lane County v. LCDC, 325 Or 569 (1997).
Area(s) of Law:- Land Use
Scott v. Josephine County
Where a private campground on EFU land does not provide electrical service hookups for each individual campsite, it is not a violation of OAR 660-033-0130(19)(b).
Area(s) of Law:- Land Use
Jacobus et. al. v. Klamath
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