Oregon Court of Appeals

2014

January 23 summaries

1000 Friends of Oregon v. LCDC

LCDC had not adequately explained why inclusion of certain land in a UGB was supported by substantial reason and consistent with Statewide Land Use Planning Goals 9 and 14 and other rules.

Area(s) of Law:
  • Land Use

Delgado v. Del Monte Fresh Produce, N. A., Inc.

"Employers" under ORS 653.010(3) may be liable for penalty wages on summary judgment under ORCP 61 B.

Area(s) of Law:
  • Remedies

DHS v. J.G.

When a juvenile court makes an "active efforts" finding at a permanency hearing in which it changes an Indian child's permanency plan from return to parent to establishment of a durable guardianship, section 1912(d) of ICWA does not require the juvenile court to renew that "active efforts" finding at a later proceeding in which the court effects that guardianship placement under ORS 419B.366

Area(s) of Law:
  • Juvenile Law

State v. A. D. G.

Under ORS 419B.923(7), the juvenile court may enter default judgment, terminating an individual's parental rights, only when that person is absent from the hearing or trial on termination petition.

Area(s) of Law:
  • Juvenile Law

State v. Lane

OAR 213-012-0040(2) limits a trial court’s authority to impose consecutive prison terms when there is a single probation violation.

Area(s) of Law:
  • Sentencing

State v. Martin

For an arrest for unlawful prostitution procurement activity (UPPA), the officer must have a substantial objective basis for believing that, more likely than not, the defendant had engaged in conduct constituting a substantial step in furtherance of an act of prostitution.

Area(s) of Law:
  • Criminal Procedure

Assn. of Acupuncture v. Bd. of Chiropractic Examiners

The State Board of Chiropractic Examiners is limited to making rules that fall within the definition of the practice of "chiropractic" as defined by ORS 684.010(2). Rules made outside the scope of that authority will be found invalid.

Area(s) of Law:
  • Administrative Law

Central Oregon Intergovernmental Council v. Albert

The Worker's Compensation Board is required to use evidence on the record to determine whether a claimant has been released to his post-injury job, such as medical records, claimant's own description of work history, employer's Regular Duty Job analysis, and evidence about claimant's post injury capacity.

Area(s) of Law:
  • Workers Compensation

Chou v. Farmers Ins. Exchange

Under ORS 20.310, parties must only include as costs those that were necessarily incurred in appearing for the appeal, exclusive of computerized legal research.

Area(s) of Law:
  • Attorney Fees

Emerson v. Kusano

In the case of mutual mistake as to policy limits in a settlement agreement, in absence of clear and convincing evidence that the parties would have agreed to the actual policy limits, rather than what they mistakenly believed them to be, there is no antecedent agreement, and there is nothing to which the contract may be reformed.

Area(s) of Law:
  • Contract Law

Flaig v. Emert

ORS 115.145 and ORS 115.165 do not authorize the summary determination of counterclaims by a personal representative.

Area(s) of Law:
  • Trusts and Estates

Rhoades v. Beck

Subsequent discovery of a lien will not negate a settled upon contract for full and final release of Defendant when there is evidence objectively establishing the existence of an agreement.

Area(s) of Law:
  • Contract Law

Root v. Klamath County

To reverse a LUBA decision, the evidence must be so at odds with LUBA's evaluation that it is reasonable to infer that LUBA either misunderstood or misapplied its scope of review.

Area(s) of Law:
  • Land Use

State v. Brewer

In order to justify the imposition of a downward departure sentence, ORS 137.712(2)(d)(B) requires a defendant to prove that representation of being armed with a dangerous weapon did not reasonably put the victim in fear of imminent significant physical injury.

Area(s) of Law:
  • Sentencing

State v. Cain

When a business record is maintained in the ordinary course of business, and there is a duty to report, the document qualifies as admissible hearsay under OEC 803(6). Additionally, it is a plain error to impose post-judgment interest on restitution awarded for non-economic damages.

Area(s) of Law:
  • Evidence

State v. Danielson

Implied consent does not apply to officers opening an almost completely closed bedroom door; therefore, police officers' observations made after doing so are considered an unlawful search.

Area(s) of Law:
  • Criminal Procedure

State v. Wieboldt

Advising a defendant of the lawful consequences that may flow from his or her decision to engage in a certain behavior ensures that the defendant makes an informed choice whether to engage in that behavior or not. Thus, a statement of the lawful consequences of refusal to submit to breath, blood, or urine tests is not unconstitutionally coercive.

Area(s) of Law:
  • Criminal Procedure

Howe v. Greenleaf

A statutory presumption exists that parcels of land which have a road as a boundary include up to the center line of the road unless the title to the road is clearly held by another party.

Area(s) of Law:
  • Property Law

State v. Delong

When an individual consents to a search following a custodial interrogation where Miranda warnings were not given, that consent is not a knowing and voluntary waiver of the individual's rights under the Oregon Constitution.

Area(s) of Law:
  • Criminal Procedure

State v. Egeland

When refusal to give a requested jury instruction results in a jury conviction that would have likely been affected by the rejected instruction, the court may have committed harmful error.

Area(s) of Law:
  • Evidence

State v. Neal

When a defendant is not brought to trial in accordance with ORS 135.763 to ORS 135.765 (Oregon's speedy trial provisions) and none of the exceptions under ORS 135.765(2) apply, a court is obligated to dismiss the case upon motion by defendant.

Area(s) of Law:
  • Criminal Procedure

State v. S.N.R.

For a party to be found grossly negligent for falling asleep while driving, there must have been such prior warning that there was a likelihood they would fall asleep that continuing driving would constitute a conscious and reckless disregard of the possible consequences.

Area(s) of Law:
  • Juvenile Law

State v. Coverstone

When a trial court imposes court-appointed attorney fees upon a defendant despite no indication on the record of the defendant's ability to pay those fees, it is a "plain error" pursuant to ORAP 5.45(1).

Area(s) of Law:
  • Sentencing

February 29 summaries

Stevens v. City of Island City

Under ORS 197.835(9)(a)(C), LUBA can only reverse or remand the decision of the local government if the decision is not supported by substantial evidence in the record.

Area(s) of Law:
  • Land Use

Campbell v. Tardio

A dismissal of an award of custody does not change the date of "commencement of the proceeding" for purposes of determining the "home state" of the child under ORS 109.741(1).

Area(s) of Law:
  • Family Law

Green v. Franke

To be entitled to post-conviction relief on the basis of inadequate assistance of counsel, a petitioner must show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result. The Oregon Constitution does not give a criminal defendant the right to a perfect defense, but it requires that the lawyer do those things reasonably necessary to diligently and conscientiously advance the defense.

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

Relling v. Khorenian

A multiplicity of access points to a landlocked parcel defeats an easement of necessity claim.

Area(s) of Law:
  • Property Law

State v. Adame

If a defendant understands that a refusal to perform verbal field sobriety tests cannot be used against him in a court of law, the defendant is not "compelled" to provide testimonial evidence for the purposes of the self-incrimination clause.

Area(s) of Law:
  • Criminal Procedure

State v. Bax

When an indictment uses the language of a specific intent, required by a statute, the court should not charge a defendant with lesser-included offenses that have different specific intent or elements than the statute

Area(s) of Law:
  • Criminal Law

State v. Davis

Second-degree burglary convictions affirmed and reversed based on whether buildings were "not open to the public" as defined in ORS 164.205(3)(a).

Area(s) of Law:
  • Criminal Law

State v. Gruver

A court cannot convict a defendant on a charge for which the defendant was not indicted, unless the conviction is for an offense that is a lesser-included offense within the offense charged in the indictment.

Area(s) of Law:
  • Criminal Law

State v. Hikes

A trial court may take into account a defendant’s attitude at sentencing, as well as his extensive criminal history when determining eligibility for sentence modification programs.

Area(s) of Law:
  • Sentencing

State v. Nugent

In a criminal trespass case, even if the court erred by giving a single instruction rather than a double instruction, the error does not require reversal if the instruction did not mislead the jury.

Area(s) of Law:
  • Criminal Procedure

State v. Ohotto

Testimony on the rate of dissipation of alcohol in the blood is improper lay opinion where the deputy testifying merely read training manuals on alcohol dissipation, took a training course, and conducted routine DUII investigations.

Area(s) of Law:
  • Evidence

State v. Richardson

A photograph depicting a fully-clothed child touching a person's leg who is engaged in sexual activity with a naked woman constitutes first-degree encouraging child sexual abuse under ORS 163.684. Additionally, a photograph that depicts a fully-clothed child standing near two people who are in a sexual situation constitutes using a child a in a display of sexually explicit conduct under ORS 163.670.

Area(s) of Law:
  • Criminal Law

Barkers Five, LLC v. LCDC

LCDC order acknowledging designation of urban and rural reserves in the Metro area was unlawful in substance because it (1) approved Washington County’s misapplication of rural reserve factors, (2) incorrectly found Multnomah County’s consideration of rural reserve factors sufficient, and (3) failed to review designation of Stafford as urban reserve for substantial evidence.

Area(s) of Law:
  • Land Use

Brand Energy Services, LLC v. OR-OSHA

OR-OSHA rule 29 CFR section 1926.451(g)(1), requiring employees working on scaffolds to be protected by fall-protection systems, does not apply to employees dismantling a scaffold. However, 29 CFR section 1926.451(g)(2) does apply.

Area(s) of Law:
  • Workers Compensation

D.W.C. v. Carter

Under ORS 30.866, a stalking protective order requires a petitioner have subjective alarm, that alarm to be objectively reasonable, and that alarm to be the result of multiple qualifying contacts.

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

Gambee v. Oregon Medical Board

Under ORS 677.190(1)(b)(A), a doctor that puts his/her patients at a risk of harm greater than the standard treatment does not qualify as “alternative medical treatment.”

Area(s) of Law:
  • Administrative Law

Haggerty and Haggerty

The trial court erred when it failed to determine whether the parties had entered into a valid settlement agreement.

Area(s) of Law:
  • Family Law

Leach v. Scottsdale Indemnity Co.

An insurer's duty to defend arises when a claim against its insured could, without amendment, impose liability for conduct covered by the policy. An insurer's duty to indemnify arises only where the insured is actually liable for harm or injury covered by the policy.

Area(s) of Law:
  • Insurance Law

Singh v. Sidhu

For a party to successfully argue for the reversal of a court's judgment on the basis of a jury's lack of evidence for their conclusion, the party must show that the jury substantially affected their rights.

Area(s) of Law:
  • Civil Procedure

State v. Clemente-Perez

A person’s “place of residence” under ORS 166.250(2)(b) may encompass temporary structures and outdoor areas adjacent to temporary structures if used for daily living activities. The courts look to evidence of a person’s actual use to determine if it is used for daily living activities.

Area(s) of Law:
  • Criminal Law

State v. Gray

A court's failure to properly instruct a jury on the requisite culpable mental state required to commit the charged crime will result in plain error, which does not require preservation for appellate review.

Area(s) of Law:
  • Criminal Procedure

State v. Stinstrom

Administrative seizures are not subject to the inventory exception if the item is not already lawfully possessed by the officer.

Area(s) of Law:
  • Criminal Procedure

Wright v. Turner

The term "accident", as used in statutorily prescribed insurance contracts, is interpreted by legislative intent. Furthermore, whether more than one "accident" has occurred is ordinarily a question of fact reserved for the factfinder.

Area(s) of Law:
  • Insurance Law

Dept of Human Services v. A.E.F.

Juvenile statutes authorize a court to order a parent to participate in a psychological evaluation if the evaluation bears a rational relationship to the bases the court found for taking jurisdiction over the child.

Area(s) of Law:
  • Juvenile Law

Dept of Human Services v. N.B

A marked improvement in mental health condition is not necessarily sufficient to overcome the Court's wardship as to children.

Area(s) of Law:
  • Family Law

Eclectic Investment, LLC. v. Patterson

The distinction between active and passive negligence is but one factor to consider when determining whether or not indemnification among co-defendants is proper.

Area(s) of Law:
  • Tort Law

State v. Hawkins

Under ORS 138.230, an error is not harmless when a defendant is denied their right to an acquittal and their right to have the judgment reflect that acquittal.

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

Utility Reform Project v. PUC

The PUC is not required to order a return of overpayment of taxes to ratepayers where the utility did not earn a reasonable return on investment.

Area(s) of Law:
  • Administrative Law

Wilson v. Gutierrez

A benefit that is conferred not as a gift but as expected substituted payment can support a finding of unjust enrichment.

Area(s) of Law:
  • Remedies

March 33 summaries

C.M.V. v. Ackley

In order for a FAPA restraining order to be upheld, a party seeking to maintain the order must make a showing, with evidence, that conduct of the other presented imminent danger of further abuse and a credible threat to physical safety.

Area(s) of Law:
  • Civil Law

Dept. of Human Servs. v. D. A. S., Jr.

Under ORS 107.097(3)(a), to continue jurisdiction over a juvenile, the party asserting jurisdiction must present evidence that the juvenile would be exposed to a current threat of serious loss or injury.

Area(s) of Law:
  • Juvenile Law

Head v. Head

The court may not grant relief in the form of modifying a trust instrument's terms, if modification was not reasonably contemplated by the parties and substantially departs from the pleadings and legal theories.

Area(s) of Law:
  • Trusts and Estates

State v. Burton

In cases litigated prior to State v. Mills, 354 Or 350 (2013), a defendant may challenge venue through a motion for judgment of acquittal.

Area(s) of Law:
  • Criminal Law

State v. Daniels

A prosecutor can obtain recordings of inmate conversations from the Department of Corrections for discovery and must disclose the recordings to the defendant if the recordings are in the prosecutor's possession or control.

Area(s) of Law:
  • Criminal Procedure

State v. Ferguson

For purposes of ORS 135.703 and ORS 135.705, the ‘person injured’ who must participate in a valid civil compromise is the person or persons directly injured by the acts criminalized by the statute under which a defendant is charged.

Area(s) of Law:
  • Criminal Procedure

State v. Lopez

Under ORS 137.106, restitution must be imposed within 90 days after sentencing or otherwise extended by the court for good cause and Defendant must be given an opportunity to be heard before the court on the imposition, amount, or distribution of the restitution.

Area(s) of Law:
  • Criminal Law

State v. Weilert

Given the state of the law at the time of defendant's trial, it would be unfair to hold that Defendant forfeited the opportunity to challenge venue prior to trial.

Area(s) of Law:
  • Appellate Procedure

Fox v. Employment Department

A decision under OAR 471-030-0038 denying unemployment benefits for misconduct will not stand unless there are clear findings on intent. Conduct that amounts to an irreparable breach of trust does not remove the need to examine intent.

Area(s) of Law:
  • Employment Law

Fleming v. Board of Parole and Post-Prison Supervision

Petitioner must first raise issues on administrative review in order for them to subsequently be considered on judicial review.

Area(s) of Law:
  • Administrative Law

Gomez and Gomez

In awarding child custody, a court must first determine what party is entitled the statutory preference in favor of the primary caregiver under ORS 107.137(1).

Area(s) of Law:
  • Family Law

Ibarra v. Barnes

In-chambers conversations held off the record may create an insufficient record for the Court of Appeals to review on appeal.

Area(s) of Law:
  • Family Law

Sherwood Park Business Center, LLC. v. Taggart

If a trial court declares a member's expulsion from an LLC and the remaining members exercise their option to purchase the expelled member's share, the interest owed for the purchase begins to accrue on the date the trial court enters its judgment.

Area(s) of Law:
  • Corporations

State v. Barnes

Erroneously admitted testimony admissible if there is "little likelihood" it affected the verdict.

Area(s) of Law:
  • Evidence

State v. Negrete

In order for a factfinder to find the essential elements of a crime beyond a reasonable doubt, the evidence must be sufficient under the totality of the circumstances.

Area(s) of Law:
  • Criminal Procedure

Tolle v. Franke

A petition for post-conviction relief that meets the requirements of ORS 138.580 should not be dismissed.

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

Cannon v. Dept. of Justice

Plaintiff commences a timely action under the Oregon Tort Claims Act, and ORS 30.275(2)(b), when he files an action within 180 days of injury and serves Defendant within 60 days of filing.

Area(s) of Law:
  • Civil Procedure

Clackamas River Water v. Holloway

Under ORS 31.150(1)(3), Oregon's anti-SLAPP statute, a defendant's successful special motion to strike canooot then "proceed to trial."

Area(s) of Law:
  • Civil Law

Dept. of Human Services v. I.S.

Under ORS 419B.100(1)(c), juvenile dependency jurisdiction is proper when "condition or circumstances are such as to endanger the welfare" of the child. If a court does not find that a parent has exposed children to reasonable likelihood of harm, then the conditions of jurisdiction have not been met.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. R.S.

An agency's initial jurisdiction in juvenile court is not subject to collateral attack in a later proceeding; the only proper jurisdictional challenge is to the court's continuing jurisdiction.

Area(s) of Law:
  • Juvenile Law

Frontgate Properties, LLC v. Bennett

Under the doctrine of merger, any inconsistency between the terms of a contract of purchase for real estate and there terms of the deed are governed by the deed, but this does not apply when, through fraud or relievable mistake, the grantee has been induced to accept something different from what was agreed upon by the parties.

Area(s) of Law:
  • Contract Law

Mesta v. Franke

The Oregon Constitution does not require appellate counsel to put forth every possible argument in the small chance a subsequent change in law will make the argument effective at a later date.

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

State v. Beauvais

Simply because evidence subsequently becomes irrelevant after the state's dismissal of charges relating to another defendant, is not sufficient to demonstrate prejudice.

Area(s) of Law:
  • Evidence

State v. Berry

To raise a timely double jeopardy claim, the defendant must raise the claim before the second trials starts if all of the facts that are required to prove double jeopardy are well-known.

Area(s) of Law:
  • Criminal Procedure

State v. Bistrika

Jury instructions which insert an irrelevant issue into a case constitute a reversible error.

Area(s) of Law:
  • Criminal Law

State v. J.C.L.

A warrantless seizure of a youth's computer and hard drive can be justified by the exigent circumstances exception to the warrant requirement.

Area(s) of Law:
  • Criminal Procedure

State v. King

Under ORS 161.067(3), a single criminal episode of assault may be multiple violations when an assault is commenced, stops, and begins again. The pause must constitute a sufficient opportunity to renounce criminal intent.

Area(s) of Law:
  • Criminal Law

State v. Licari

A denial for a continuance is measured on an abuse of discretion standard, while looking at the particular circumstances of the case and the reasons presented to the court at the time of denial.

Area(s) of Law:
  • Criminal Procedure

State v. Lobo

In a criminal case, when a error that was not exclusionary of any new evidence occurs and would not affect the verdict, it is a harmless error and is not reversible. Additionally, OEC 803(18a)(b) does not requires the trial court to hold a pretrial conference to determine the availability of a witness where the hearsay declarant testifies and is subject to cross-examination.

Area(s) of Law:
  • Criminal Law

State v. Poitra

The state of mind of an arresting officer is not relevant to a self-defense analysis and risks confusing the jury, which instead must evaluate the defendant's reasonable belief as to the circumstances.

Area(s) of Law:
  • Criminal Law

State v. Rivera

Court remands for resentencing in the absence of factual findings on proportionality of a Measure 11 sentence as required by State v. Rodriguez/Buck.

Area(s) of Law:
  • Sentencing

State v. Roelle

Under ORS 132.560(3), when a jury can easily separate whether a defendant is guilty of two separate types of crimes, joinder is not necessary to prevent prejudice.

Area(s) of Law:
  • Criminal Procedure

State v. Smith

Under ORS 163.670(1), compelling or inducing a child to engage in sexually explicit conduct may be inferred by a factfinder from sexually explicit photographs in which a child’s facial expression conveys that the child has been persuaded or influenced to participate. A jury can infer from the nature of photographs, and the context of other evidence, that they are sexually explicit.

Area(s) of Law:
  • Evidence

April 45 summaries

Aleali v. City of Sherwood

A deficiency in pre-hearing notice invoking delayed appeal rights, under ORS 197.830(3), is determined solely by state law procedures, and not by local law.

Area(s) of Law:
  • Land Use

Bova v. City of Medford

Under ORS 243.303(2), the Supreme Court has rejected the argument that "if there are providers available who are willing to provide [health insurance] coverage that includes retirees, the city must provide that coverage, regardless of cost or other circumstances" and reasons that the statute was not intended to be “unduly burdensome”; Under ORS 659A.030(1)(b), a plaintiff’s complaint must plead age discrimination based on a theory of disparate impact.

Area(s) of Law:
  • Employment Law

Bradley v. State of Oregon

Under ORS 376.185(1), a court shall not unreasonably withhold its consent to a landowner's petition for a way of necessity. Whether consent is unreasonably withheld is measured by whether the withholding was arbitrary or capricious.

Area(s) of Law:
  • Land Use

Croghan v. Don's Dugout, LLC

When a party believes that a verdict is inconsistent it must (1) object to the verdict before the jury is discharged, and (2) request jury clarification of the matter under ORCP 59 G(4).

Area(s) of Law:
  • Civil Procedure

Dept. of Human Services v. J.M.

In a permanency hearing, evidence relating to a child's original unexplained injury is not irrelevant as an attack on DHS's jurisdiction because it may be probative in the remedial steps parents must make toward reunification.

Area(s) of Law:
  • Juvenile Law

Sellwood-Moreland Improv. League v. City of Portland

Unless the Plan District’s code expressly precludes density transfers between sites in multi-dwelling zones, the density transfer will be allowed to preserve development opportunities for new housing and to reduce development pressure on environmentally sensitive sites.

Area(s) of Law:
  • Land Use

State v. Andrews

In order to preserve an assignment of error, Defendant must argue at trial that testimony must be proven by a preponderance of the evidence.

Area(s) of Law:
  • Evidence

State v. Arnold

In order to admit evidence of a prior bad act, the state must show that the acts were "so distinctive that both crimes can be attributable to one criminal. In other words, the modus operandi must be unusual."

Area(s) of Law:
  • Evidence

State v. Lewallen

Under ORS 138.083, a court is not required to grant a motion to correct an alleged error with a hearing, rather, the court has discretionary authority to grant or deny such relief.

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

State v. Medina

Under ORS 165.800, signing a false name to a police document, which is then used to discover the signer’s true name, constitutes converting and uttering the “personal identification of another person… with intent to deceive.”

Area(s) of Law:
  • Criminal Law

State v. Peters

Asking a person lawfully stopped for a traffic violation the location of a known associate that is at large does not constitute an unlawful extension of the stop via Article 1, Section 9 of the Oregon Constitution.

Area(s) of Law:
  • Criminal Procedure

State v. Prieto-Rubio

Police must notify a Defendant's attorney before interviewing him or her about separate but factually related offenses when he or she has obtained representation in one of the cases.

Area(s) of Law:
  • Criminal Law

State v. Shumate

Remand denied where defendant failed to identify flaws in original sentencing proceeding. For a court order to be appealable, it must resolve all charges brought in the case.

Area(s) of Law:
  • Criminal Procedure

State v. Webb

A structure is a "building" under ORS 164.205(1) if it has been adapted for carrying on a business.

Area(s) of Law:
  • Criminal Law

Rogue Valley Sewer Services v. City of Phoenix

Where a city's charter broadly confers all authority not denied by state or federal law, it confers on the city the power to impose local taxes and to regulate matters subject to municipal regulation.

Area(s) of Law:
  • Municipal Law

State v. Andrade

Ballot Measure 11 and ORS 137.700 convictions of first-degree rape and first-degree sodomy do not require that the court impose consecutive mandatory minimum sentences.

Area(s) of Law:
  • Sentencing

State v. Goetzinger

Bruising to an infant child alone does not constitute sufficient evidence to show medical care was necessary under ORS 163.200.

Area(s) of Law:
  • Evidence

State v. Rodriguez-Perez

Under Article I, section 9, of the Oregon Constitution, officers’ reasonable suspicion must is examined for what is objectively reasonable. An individual appearing agitated while his brother is being searched is not enough to warrant reasonable suspicion.

Area(s) of Law:
  • Criminal Procedure

Adair Homes, Inc. v. Dunn Carney

A court resorts to the general policy in favor of arbitration only when a contract is ambiguous and there is no extrinsic evidence of the parties' intent.

Area(s) of Law:
  • Contract Law

Blankenship v. Smalley

Under ORS 67.040, a business partner’s actions will be binding on his partner unless the other party had actual knowledge or notice of that partner’s lack of authority to bind his partner.

Area(s) of Law:
  • Civil Law

City of Beaverton v. Pack

When reviewing the sufficiency of a jury instruction, the Court will review all instructions given to determine whether the jury was properly informed of the applicable requirements of the crime charged.

Area(s) of Law:
  • Criminal Procedure

Ramirez v. Northwest Renal Clinic

Notice of voluntary dismissal does not require a court ruling to be effective, and is thus sufficient to dismiss an action without prejudice despite pendency of the grant of a motion for summary judgment.

Area(s) of Law:
  • Civil Procedure

Sohn v. Thi

Under ORCP 54 A, dismissal of a case is to be with prejudice where the plaintiff’s dismissed action and prior action was (1) against the same defendant and (2) for the same claim.

Area(s) of Law:
  • Civil Procedure

State v. Durando

If conviction would have occurred despite the evidence in question being suppressed then it is considered a harmless error; however, unlawfully obtained evidence that is the sole evidence leading to a conviction will be suppressed.

Area(s) of Law:
  • Criminal Procedure

State v. Newcomb

Under Article I, section 9 of the Oregon Constitution governing privacy rights with respect to personal effects, extraction and testing of a dog's blood is a "search" because those actions constitute a physical invasion of a defendant's personal property which reveal otherwise concealed evidence.

Area(s) of Law:
  • Criminal Procedure

C.J.L. v. Langford

In order for an Stalking Protective Order to be issued, under ORS 30.866, a petitioner must show that speech-based contacts instill a fear of imminent and serious personal violence from the speaker, are unequivocal, and are objectively likely to be followed by unlawful acts, such that the addressee believes the actor intends and is able to carry them out. Threats that are hyperbole, rhetorical excesses, and impotent expressions of anger or frustration are insufficient, even if they alarm the addressee.

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

Cardona and Cardona

Under ORS 107.105(1)(f)(A), a pension is marital property which, as long as the presumption of equal contribution has not been rebutted, should be divided evenly upon marital dissolution.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. S. C. P.

In a hearing to determine Mother's motion to set aside relinquishments, an attorney should be provided in order to ensure the procedural protections required for a fundamentally fair hearing.

Area(s) of Law:
  • Family Law

Dickson v. Dickson

In situations in which a party puts itself in a position of needing to seek the services of a different attorney before or during trial, a court does not abuse its discretion in denying a motion for a continuance.

Area(s) of Law:
  • Civil Procedure

Lewis v. Beyer

Under OAR 860-022-0041, the “automatic adjustment clauses” determined by the Public Utility Commission only apply to taxes levied on or after January 1, 2006. Furthermore, attorney’s fees are not appropriate in this case under ORS 183 (Administrative Procedures Act).

Area(s) of Law:
  • Administrative Law

State ex rel Gary Schrodt v. Jackson County

The text and context of ORS 215.402(2) reflect the legislature intended the phrase "application for discretionary approval of a proposed development of land" to include requests for discretionary approval of a proposed use of land.

Area(s) of Law:
  • Land Use

State v. Barajas

Appellate tag lines must be read in the context of the opinion as a whole.

Area(s) of Law:
  • Criminal Procedure

State v. Bistrika

Evidence of independent crimes that threaten the safety of police officers do not need to be suppressed even if evidence is obtained as a result of unlawful police conduct.

Area(s) of Law:
  • Evidence

State v. Doyle

To determine whether an initial violation of Miranda is cured before the start of a second interview, the court should consider the time between the first and second interview, whether Miranda rights were read before the second interview, and whether those rights were understood and intelligibly waived prior to the second interview.

Area(s) of Law:
  • Criminal Procedure

State v. Fox

Under ORS 162.005(2), a member of the Oregon National Guard qualifies as a public servant for the purposes of a sexual coercion charge.

Area(s) of Law:
  • Criminal Law

State v. Pearson

Under Article I, section 9 of the Oregon Constitution, which governs privacy rights with respect to personal effects, an officer unlawfully extends a traffic stop if he inquires about the presence of a weapon once the officer’s source of suspicion has been dispelled.

Area(s) of Law:
  • Criminal Procedure

State v. Whitlow

A court will balance the actual prejudice caused to a defendant by the state’s pre-indictment and speedy trial delay with the state’s justification for that delay in deciding whether or not to grant dismissal of charges.

Area(s) of Law:
  • Criminal Procedure

State v. Wiggins

If a dog sniff produces incriminating evidence, that would not have happened but for an unlawful search, it is the unattenuated product of that illegality and should be suppressed.

Area(s) of Law:
  • Criminal Procedure

Bazzaz v. Howe

Evidence that may be "relevant and essential" to a causation based defense, which requires a finding of fact that cannot have been made by a judge on summary judgment, is admissible, so long as the jury is not making a determination on the causation issue.

Area(s) of Law:
  • Evidence

State v. Corkill

A court does not have a duty to sua sponte exclude testimony where the questioning leading to this testimony did not present "vouching" concerns.

Area(s) of Law:
  • Criminal Law

State v. Dalessio

Under State v. Moore/Coen, a defendant's trial testimony is considered tainted by the erroneous admission of unconstitutionally-obtained statements even if Defendant did not move to exclude his pretrial statement during his first trial.

Area(s) of Law:
  • Criminal Procedure

State v. Davis

Under Article I, section 9 of the Oregon Constitution, police inventory procedures may constitute an unlawful search if they have no precise or meaningful limitations.

Area(s) of Law:
  • Evidence

State v. Miller

Although ORS 137.540(2) allows a court to impose special provisions of probation when reasonably related to the crime of conviction or the needs of the petitioner for the protection of the public or reformation of the probationer, no provision exists for the forfeiture of property as a condition of probation.

Area(s) of Law:
  • Criminal Procedure

State v. Villanueva-Villanueva

In the absence of overwhelming evidence of guilt, erroneously admitted hearsay evidence that significantly reinforces the declarant's testimony at trial constitutes error requiring reversal of the defendant's conviction.

Area(s) of Law:
  • Evidence

State v. Ruiz-Piza

A confession induced through fear is a strong indicator of involuntariness when considered as part of the totality of the circumstances during a suppression hearing.

Area(s) of Law:
  • Criminal Procedure

May 36 summaries

Brown v. SAIF

The correct test in determining a combined condition claim is whether claimant's work-related injury incident is the major contributing cause of the combined condition.

Area(s) of Law:
  • Workers Compensation

DHS v. T.L.

The Court of Appeals will not address arguments not preserved for appeal in the lower court.

Area(s) of Law:
  • Civil Procedure

Dunmire v. Bd. of Parole & Post-Prison Supervision

Where a petitioner shows collateral consequences that stem from a board’s decision to impose incarceration based on legally incorrect premises the petition for judicial review is moot.

Area(s) of Law:
  • Appellate Procedure

IAFF, Local 3564 v. City of Grants Pass

Passage of the PECBA, which permits employees to bargain collectively with their public employers, did not nullify the ORS 652.080 mandate that firefighters’ authorized vacation or sick leave time shall be considered as time on regular duty for the purpose of calculating overtime entitlement.

Area(s) of Law:
  • Labor Law

SAIF v. Carlos-Marcia

Diagnostic services related to discovery of the cause of complaints of pain can be reasonable and necessary expenses, even if the results of the testing reveal that the condition was unrelated to the compensable condition.

Area(s) of Law:
  • Workers Compensation

Sather v. SAIF

Under ORS 656.218(3), an estate is not among the persons entitled to pursue a claim for worker's compensation.

Area(s) of Law:
  • Workers Compensation

State v. Cherry

When a jail deputy, pursuant to an invalid administrative inventory policy, removes items from defendant's pocket, the evidence discovered as a result of the search must be suppressed.

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. J. B. V.

When DHS seeks to change a ward’s permanency plans, DHS must prove that it made reasonable efforts to effect reunification, and that the parent did not make sufficient progress to allow the child’s safe return home, despite DHS's efforts.

Area(s) of Law:
  • Family Law

Rowlett v. Fagan

A properly stated negligence claim cannot be dismissed on the merits after an answer has already been filed before trial.

Area(s) of Law:
  • Civil Procedure

State v. Kenny

Under ORS 133.076(1), the phrase "issued under" merely describes the type of citation created and does not create an additional element of the offense; in establishing "knowingly" under the same statute, "logically relevant" testimony under OEC 401 is permitted, including testimony of a defendant.

Area(s) of Law:
  • Criminal Law

State v. Vanburen

Under ORS 98.005, in order for an officer to conduct a warrantless search of a closed bag, the officer’s subjective belief that the property is lost must be objectively reasonable—only then may the officer search the property to identify its owner.

Area(s) of Law:
  • Evidence

State v. Wilcher

A defendant’s right to be heard “by himself” is fully exercised by testifying under oath as a witness, and does not include the right to make an unsworn statement to the jury during the case-in-chief.

Area(s) of Law:
  • Criminal Law

Bova v. City of Medford

Where a trial court ruling awards a plaintiff costs and attorney fees with respect to contempt and age discrimination claims, and the Court of Appeals affirms one of those claims and reverses the other, the award of costs and attorney’s fees should also be reversed with respect to the claim that is reversed.

Area(s) of Law:
  • Attorney Fees

City of Eugene v. Comcast of Oregon II, Inc.

Registration fees on revenue for internet service providers are barred under the Internet Tax Freedom Act (ITFA); but licensing fees are not a tax under the ITFA.

Area(s) of Law:
  • Tax Law

Friends of the Hood River Waterfront v. City of Hood River

ORS 197.175(2) represents a mandatory requirement to identify the 100-year floodplains in connection with a project on a site where the floodplains have not yet been identified; however, nothing in the text or context of that provision expressly requires that identification to take the form of a map prepared by the applicant.

Area(s) of Law:
  • Land Use

Fuentes v. Tillett

Under ORS 125.480, intermediate accounting orders are final only as to the conservator's liability with respect to matters that were actually presented to, and considered by, the probate court when it approved the intermediate accountings.

Area(s) of Law:
  • Civil Law

State v. Beasley

An individual is not “stopped” when an officer engages in “mere conversation” with the individual absent an explicit or implicit show of authority that objectively restricts the individual’s liberty; an individual is not “seized” when an officer requests and checks the individual’s identification with the consent of the individual, and retains the identification for a reasonable period of time to examine it.

Area(s) of Law:
  • Criminal Law

State v. Cuevas

The admission of evidence, while denied for one purpose, may be admitted for an unrelated purpose, so long as it remains within the purpose or scope of what is being examined. When determining a sentence, courts are to use the “shift-to-I” rule; however, the courts failure to do so may not necessarily be a reversible error.

Area(s) of Law:
  • Evidence

State v. Hernandez

The focus in determining whether an issue has been adequately preserved in a particular case is whether a party has given opponents and the trial court enough information to be able to understand the contention and to fairly respond to it.

Area(s) of Law:
  • Criminal Procedure

State v. Jimenez

An officer may not investigate matters unrelated to a stop absent reasonable suspicion of that unrelated matter, an unavoidable lull in the inquiry process, or some exception to the warrant requirement.

Area(s) of Law:
  • Criminal Procedure

State v. Mannix

Pursuant to ORS 136.220, a juror who is committed to becoming related to a primary witness does not have implied bias. Pursuant to ORAP 5.45, a party may not raise claims of error that are not preserved on the trial court record, even if it is a plain error.

Area(s) of Law:
  • Appellate Procedure

State v. Pichardo

When consent is given to a search after questioning that unlawfully extends a stop, evidence obtained must be suppressed.

Area(s) of Law:
  • Criminal Procedure

Vanecek v. Angelozzi

The petitioner has the burden to prove, by a preponderance of the evidence, that the trial counsel failed to provide adequate representation by exercising professional skill and judgment and that the petitioner suffered prejudice as a result.

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

Yale Holdings, LLC v. Capital One Bank

Summary judgment is only appropriate when the terms of a deed are unambiguous.

Area(s) of Law:
  • Property Law

Dept. of Human Services v. G.N.

In reviewing a juvenile court's judgment, the court views the evidence, as supplemented and buttressed by permissible derivative inference, in the light most favorable to the juvenile court's disposition and asses whether, when so viewed, the record was legally sufficient to permit that outcome.

Area(s) of Law:
  • Family Law

Nielsen v. Employment Dept.

Under ORS 657.176(2)(c) (see also OAR 471-030-0038(4)), a former employee seeking unemployment benefits who resigns her position rather than confront her employer or file a BOLI complaint can still qualify for those benefits, as long as it was reasonable for her to do so.

Area(s) of Law:
  • Employment Law

Schmidt v. Slader

Direct causation, rather than reasonable foreseeability, is the sine qua non of respondeat superior liability. Evidence regarding acts that are the outgrowth of and within the scope of employment ought to be obtained and presented to the court.

Area(s) of Law:
  • Tort Law

State v. Ashkins

A jury instruction requiring all jurors to agree on which occurrence constituted a crime is not required when the evidence shows multiple occurrences of the offense and does not give jurors the ability to factually distinguish one occurrence from another in a manner that could lead to differing conclusions about the commission of the crime.

Area(s) of Law:
  • Criminal Law

State v. Brown

When an incorrect legal standard is applied to a motion to dismiss in a trial court, and the correct legal standard would require findings of fact not already made, then that decision may be vacated.

Area(s) of Law:
  • Criminal Procedure

State v. Campbell

Whether a police-citizen interaction rises beyond a mere encounter to the level of a seizure under Article I, section 9, depends on whether a reasonable person would believe that an officer has intentionally and significantly restricted, interfered with, or otherwise deprived a citizen of his or her liberty or freedom of movement; for police to seize an individual under Article I, section 9, an individual must have an objectively reasonable perception that police are exercising coercive authority; asking for identification is not enough to show coercive authority.

Area(s) of Law:
  • Criminal Procedure

State v. Ellis

The speedy trial delay period is measured from the date of the most recent accusatory instrument where prior accusatory instruments were dismissed, even when a new accusatory instrument is issued before the previous one is dismissed. This is measured from the initial filing date of the original instrument when that instrument was amended but not dismissed. A net delay of approximately 12 months due to insufficiency of judges is not unreasonable.

Area(s) of Law:
  • Criminal Law

State v. Gardner

Even if a search violates Article I, section 9 of the Oregon Constitution, because it resulted in constitutionally tainted information being included in a warrant application, it does not compel the conclusion that a search conducted pursuant to that warrant was invalid.

Area(s) of Law:
  • Criminal Procedure

State v. Olson

Under OEC 404(3), a court considers six factors to determine whether evidence of prior acts may be admitted to demonstrate intent in a criminal trial.

Area(s) of Law:
  • Evidence

State v. Richards

Where erroneously excluded evidence relates to the central factual issue, rather than a tangential issue, and thereby is more likely to effect the trier of fact’s determination, the evidentiary error is not harmless.

Area(s) of Law:
  • Evidence

State v. Straughan

A defendant’s motion to dismiss on speedy trial grounds should be granted when the delay caused by the state is both unexpected and unreasonable.

Area(s) of Law:
  • Criminal Procedure

State v. Straughan

Under former ORS 135.747 (2011), an unjustified delay of trial for nearly seven months out of 21 months of delay in general is unreasonable, and must be dismissed without showing of "sufficient reason" to continue the case.

Area(s) of Law:
  • Criminal Law

June 32 summaries

Amerivest Financial, LLC v. Malouf

When the expected profits of investment transactions are the result of management and control by a company’s own officers, the investment transactions are not “investment contracts” for the purposes of securities fraud under ORS 59.137.

Area(s) of Law:
  • Corporations

Dept. of Human Services v. W. A. C.

To determine whether jurisdiction over a minor is proper, the inquiry is based on “whether, under the totality of circumstance, there is a reasonable likelihood of harm to the welfare of the child.”

Area(s) of Law:
  • Family Law

State v. Kelly

Pursuant to ORAP 5.45, Appellate courts have broad discretion to determine the prejudice of a plain error committed in the circuit court. Furthermore, sentencing guidelines may be discretionary with regards to unranked offenses. Finally, unspecified pleadings which are subsequently substantiated by discovery are not in error.

Area(s) of Law:
  • Appellate Procedure

State v. Sines

When the state is sufficiently involved in a search or seizure conducted by a private party, state constitutional protection is triggered.

Area(s) of Law:
  • Criminal Procedure

Alfieri v. Solomon

While communications in mediation an settlement may not be admitted into evidence under ORS 36.222, communications afterwards may. Under ORCP 23, a plaintiff must be allowed to amend his complaint once as a matter of right.

Area(s) of Law:
  • Civil Procedure

Benson and Benson

When property is purchased with one spouse's pre-marital assets, the court's task is to determine each spouse's contribution to the acquisition of the house; to assess whether, in light of those contributions, the presumption of equal contribution has been rebutted; and, if so, to evaluate the just and proper distribution of the assets in the light of factors considered by the court.

Area(s) of Law:
  • Property Law

Chapman v. Mayfield

In order to show violence resulted from an establishment negligently serving alcohol to a visibly intoxicated person, a plaintiff must show that the violent act was a reasonably foreseeable result of service though sufficient evidence.

Area(s) of Law:
  • Tort Law

Chernaik v. Kitzhaber

Under the Uniform Declaratory Judgments Act, a complaint can be justiciable when it seeks a judicially issued declaration regarding duties that the state may have under a legal doctrine.

Area(s) of Law:
  • Civil Procedure

Dept. of Human Services v. S. R. C.

The fact that a juvenile was in foster care at the time of the state's amended petition, alleging that there is a serious risk of harm to the child, is not sufficient to dismiss an allegation.

Area(s) of Law:
  • Juvenile Law

In re Hall and Buth-Hall

Under ORS 107.407 and ORS 107.412(2), a person relying on spousal support must show a reasonable effort to become self-sufficient by exercising reasonable options, even if those options turn out to be fruitless.

Area(s) of Law:
  • Family Law

State v. Burciaga

Under O.R.S. 163.205(1)(a), a parent commits a crime of criminal mistreatment in the first degree if that parent withholds essential attention that is necessary to provide for a child’s basic bodily needs and survival.

Area(s) of Law:
  • Criminal Law

State v. Fernaays

Where remand of a sentencing hearing would not materially promote the “ends of justice” the Court of Appeals has the ability to decline to exercise its discretion to remedy the statutory error.

Area(s) of Law:
  • Sentencing

State v. Nelson

Under ORS 166.240, an object must be "designed and intended primarily as weapons to inflict bodily injury or death" to qualify as a weapon or similar instrument.

Area(s) of Law:
  • Criminal Law

State v. Pierce

If a judge does not have personal knowledge of the matter in controversy then the judge does not violate the “neutral and detached” requirement of Oregon and federal law when granting search warrants.

Area(s) of Law:
  • Criminal Procedure

State v. Simkins

Offense surcharge imposed on crimes not falling under the time frame of the statute constitutes error.

Area(s) of Law:
  • Criminal Law

State v. Verardo

When a defendant proffers exculpatory hearsay statements for the truth of the matter asserted during his case-in-chief, defendant is subject to impeachment under OEC 806, even where the State had offered the statements in the first instance as statements of a party opponent under OEC 801(4)(b)(A).

Area(s) of Law:
  • Evidence

Camacho v. SAIF

A claimant's statements in medical reports constitute prima facie evidence under ORS 656.310(2) if those statements were for the purpose of medical diagnosis or treatment; otherwise, a claimant's statements in medical reports are hearsay to which the board may afford whatever weight it deems appropriate under the circumstances. Additionally, the agency shall seek the services of an interpreter whenever one is necessary to perform an adjudicative function.

Area(s) of Law:
  • Workers Compensation

Dept. of Human Services v. B.A.

Courts do not have authority to decide moot cases; a case is moot when it involves a matter that no longer is a controversy between the parties.

Area(s) of Law:
  • Appellate Procedure

State v. Bisby

A criminal defendant has the right to object to improper venue, but only in a pretrial motion as it is not a material allegation under Article I, § 11 of the Oregon Constitution.

Area(s) of Law:
  • Criminal Procedure

State v. Blevins

Under former ORS 135.747, a delay of 21 months for a trial, 11 of which were unjustified, is unreasonable.

Area(s) of Law:
  • Criminal Procedure

State v. Cale

Criminal charges may not be merged where "sufficient pause" between acts is not present.

Area(s) of Law:
  • Criminal Law

State v. Charles

A totality of the circumstances test is to be used when determining whether actions constituted a show of authority such that a reasonable person would have believed that the officer had intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement.

Area(s) of Law:
  • Criminal Procedure

State v. Fletcher

An issue can be preserved for appeal when the party asserting error had requested that the jury hear his argument, but was prevented by the trial court from advancing that argument.

Area(s) of Law:
  • Criminal Procedure

State v. George

Under ORS 811.540, the term “flee” applies to any instance where an individual knowingly avoids compliance with the requests of a pursuing officer.

Area(s) of Law:
  • Criminal Law

State v. Lambert

The administrative seizure exception applies when the seizure is "specifically authorized by law," and suspicions of criminal activity "play no part" in the officer's decision to seize the property; a tent falls within the burglary statute if the tent was modified for use in a business.

Area(s) of Law:
  • Criminal Procedure

State v. Marker

Under ORS 163.305(5), a person who is asleep is “physically helpless.”

Area(s) of Law:
  • Criminal Law

State v. Martinez

A request for legal counsel is evaluated under the totality of the circumstances and may be based on what a reasonable officer would have believed. Asking to speak to an attorney only in direct response to an offer of privacy to call an attorney prior to a breath test would not have been understood by a reasonable officer as an invocation of defendant’s right to counsel.

Area(s) of Law:
  • Criminal Procedure

State v. Ritchie

Under ORS 138.071, if a defendant fails to appeal a judgment within 30 days, he cannot appeal a supplemental judgment entered afterwards because the same issues could have been raised after the first judgment was entered.

Area(s) of Law:
  • Criminal Procedure

State v. Shutoff

Under ORS 136.040, a criminal defendant has a right to be present at his trial. This right may be waived, but that requires sufficient evidence to support finding that defendant intentionally relinquished his right.

Area(s) of Law:
  • Criminal Procedure

Union Lumber Co. v. Miller

Failure by an arbitrator and opposing counsel to serve documents related to arbitration and judgment as required by law are mistakes that require a court to set aside a judgment under ORCP 71B.

Area(s) of Law:
  • Alternative Dispute Resolution

Dept. of Human Services v. R.B.

A juvenile court may change a child permanency plan when its original jurisdictional judgment would put a reasonable parent on notice that the bases for the that decision would be used in a change of permanency plan.

Area(s) of Law:
  • Family Law

State v. Geren

An officer's reading of the statutory rights and consequences of refusing to submit to blood, breath, or urine testing does not render a defendant's consent to such testing involuntary; telling a defendant that his refusal may be used against him is not unconstitutional.

Area(s) of Law:
  • Criminal Procedure

July 44 summaries

Dept. of Human Services v. E. M.

Under ORS 419B.100(1)(c), to obtain exclusive jurisdiction of a child in juvenile court, a nexus between a current risk causing circumstance and risk of harm to the child must be established.

Area(s) of Law:
  • Juvenile Law

Easton v. SAIF

Workers' Compensation Board compensability determinations for proposed diagnostic procedures should refer to Claimant’s compensable injury.

Area(s) of Law:
  • Workers Compensation

Greenwood Products v. Greenwood Forest Products

To justify a new trial under ORCP 64 B(4), newly discovered evidence must meet the following six requirements: (1) it must be such as will probably change the result if a new trial is granted; (2) it must be such as, with reasonable diligence, could not have been discovered before or during the trial; (3) it must be such that it cannot, with reasonable diligence, be used during trial; (4) it must be material to an issue; (5) it must not be merely cumulative; and (6) it must not be merely impeaching or contradicting of former evidence.

Area(s) of Law:
  • Appellate Procedure

Safeco Ins. Co. v. Masood

While there is an implied duty to act in good faith, no additional contract terms may be added to a contract unilaterally, including the inclusion of a confidentiality agreement.

Area(s) of Law:
  • Contract Law

State v. Acuna

A stop is legal if the officer, under the circumstances, has reason to believe suspect has engaged in unlawful activity; all circumstances are considered to determine whether the encounter with police has risen to the level of "compelling" and thus required the reading of Miranda rights.

Area(s) of Law:
  • Criminal Procedure

State v. Buchalski

When any legal errors made by the lower court are found to be harmless, the Court will affirm the decision of the lower court.

Area(s) of Law:
  • Appellate Procedure

State v. E. D.

Under ORS 426.005(1)(e), in order to justify an involuntary civil commitment, the state must prove by clear and convincing evidence that a person has a mental disorder and that, because of that disorder, the person is a danger to self, a danger to others, or unable to meet his basic needs.

Area(s) of Law:
  • Civil Commitment

State v. Hernandez-Fabian

A defendant's awareness of statements and their substance does not compensate for the State's failure to comply with notice requirements in OEC 803(18a)(b).

Area(s) of Law:
  • Criminal Procedure

State v. Lange

When an officer ordered defendant out of a restroom, that constituted a stop because a reasonable person in defendant's position would have believed that his freedom of movement was intentionally restricted.

Area(s) of Law:
  • Criminal Law

State v. Moore

Under the Article I, § 9 of the Oregon Constitution, an officer has a reasonable suspicion if he subjectively believes that the person has committed a crime; that belief, however, must be objectively reasonable in light of the totality of the circumstances.

Area(s) of Law:
  • Criminal Procedure

State v. Rose

Under ORS 136.583, a search warrant issued in Oregon can be executed in another state so long as the criminal matter is triable in Oregon and “exercise of jurisdiction over the recipient is not inconsistent with the Oregon Constitution or Constitution of the United States.”

Area(s) of Law:
  • Criminal Procedure

State v. Salas-Juarez

If a defendant fails to preserve error in trial, the Court may exercise its discretion whether to consider an error raised on appeal to be a plain error sua sponte.

Area(s) of Law:
  • Appellate Procedure

State v. Thacker

Under Article I, section 9, of the Oregon Constitution, police physically confining a vehicle in a driveway from driving away qualifies as a stop.

Area(s) of Law:
  • Criminal Procedure

State v. Zamora-Martinez

The test to determine whether a seizure has occurred "is an objective one: Would a reasonable person believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement."

Area(s) of Law:
  • Criminal Procedure

State v. E.D.

Under ORS 426.005(1)(e), a single violent act and vague threats are not sufficient to qualify as clear and convincing evidence for the purposes of involuntary civil commitment.

Area(s) of Law:
  • Civil Commitment

Baker v. Croslin

Under ORS 471.565, the key factor in assessing a social host's liability is how much control the host had over the consumption of alcohol; when a host has no control over alcohol consumption, he is not liable.

Area(s) of Law:
  • Tort Law

State v. Bell

The state can extend a defendant's probation sentence for failure to make payments conditional to the probation, regardless of the reason for the failure to pay.

Area(s) of Law:
  • Criminal Law

State v. Cross

Under ORS 137.751, a trial court is no longer required to find “substantial and compelling reasons” to deny a defendant eligibility for alternative incarceration programs and early release.

Area(s) of Law:
  • Sentencing

State v. Goodenough

For offenses committed after January 1, 2009, defendants' eligibility for AIPs must be analyzed under ORS 137.751(1) rather than ORS 137.750(1), the former statute used for AIP eligibility analysis.

Area(s) of Law:
  • Criminal Law

State v. Mendoza

Under Article I, section 12, of the Oregon Constitution, a person’s refusal to consent to something that he or she is not required to do is not admissible at trial.

Area(s) of Law:
  • Criminal Procedure

State v. Paniagua-Montes

Under ORS 135.455, if alibi evidence is offered by a witness who is not the defendant, proper notice must be provided; if proper notice is not provided, such evidence must be excluded unless there is good cause.

Area(s) of Law:
  • Evidence

US Bank, NA v. Eckert

Under former ORS 86.735, the appointment of a successor trustee to a deed of trust needs to be recorded with the county where the relevant property is located.

Area(s) of Law:
  • Property Law

City of Portland v. Huffman

The correct time to assert the doctrine of issue preclusion is before the issue is relitigated, since all information is known before the trial court.

Area(s) of Law:
  • Civil Procedure

Heller v. BNSF Railway Company

To maintain a claim under the Federal Employer’s Liability Act, the plaintiff must show that they knew or had reason to know of the injury within three-years of bringing the claim and must have sufficient facts to show that the injury was caused by work related activities.

Area(s) of Law:
  • Tort Law

State v. Cline

An officer's act of directing a person to alter the person's course of travel or to otherwise direct the person's movements may often constitute a "show of authority" that effectuates a seizure, but that is not a per se rule of Oregon constitutional law; instead, the officer's directive must be examined in the context of the encounter in which it was made.

Area(s) of Law:
  • Criminal Law

State v. Durando, III

Ordinary preservation analysis asks whether an appellant gave “the trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made.”

Area(s) of Law:
  • Appellate Procedure

State v. Ferraro

A trial court abuses its discretion when it fails to grant a continuance to a criminal defendant who has not had adequate opportunity to retain counsel, nor adequate time to mount a defense.

Area(s) of Law:
  • Criminal Procedure

State v. Michel

Under the Fourth Amendment of the U.S. Constitution, and Article I, Section 9 of the Oregon Constitution, a renter does not have a reasonable expectation of privacy within the common area of a public storage facility.

Area(s) of Law:
  • Constitutional Law

State v. O'Dell

Defendant's charges of felon in possession of a firearm should be merged if Defendant was found in constructive possession of the firearms and there is not sufficient evidence to show an interruption in the possession.

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. A.B.

In a juvenile case to determine a parent’s jurisdiction of children, a single positive urinalysis taken prior to the trial is not sufficient to establish a substance abuse issue when accompanied by other negative urinalysis taken at the time of the trial.

Area(s) of Law:
  • Juvenile Law

SAIF Corporation v. Camarena

A physician does not need to explicitly state that a course of treatment is curative in order for that treatment to be compensable as long as a reasonable person can determine the curative purpose, and the treatment is supported by substantial evidence.

Area(s) of Law:
  • Workers Compensation

State v. Below

Under ORS 151.505 and ORS 161.665, a trial court may order a defendant to pay court-appointed attorney fees and other costs. However, in order for a court to do so, there must be evidence that defendant is, or may be, able to pay the fees and costs.

Area(s) of Law:
  • Attorney Fees

State v. Easton

A police officer may take reasonable steps to protect herself or others, including conducting a warrantless search or seizure, "if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present"; the state bears the burden of establishing that, based on the totality of the circumstance at the time, "the officer subjectively believed that a defendant posed an immediate threat of serious physical injury and that the officer's belief was objectively reasonable."

Area(s) of Law:
  • Criminal Procedure

State v. Graves

To preserve an error for appeal, a party must provide the trial court with an argument that is specific enough to ensure that the court can identify its alleged error with enough clarity to consider and correct it immediately, if correction is warranted.

Area(s) of Law:
  • Appellate Procedure

State v. Lee

It is not an illegal seizure of property if the officer does so in a reasonable attempt to protect himself or if he has a reasonable suspicion that the citizen poses an immediate threat of serious physical injury.

Area(s) of Law:
  • Criminal Procedure

State v. Ramirez-Hernandez

The state bears the burden of proving that a defendant "is or may be able to pay" attorney fees; mere speculation as to a defendant's ability to pay is insufficient.

Area(s) of Law:
  • Criminal Procedure

State v. Shipe

Evidence must be legally sufficient to prove beyond a reasonable doubt that a defendant "knowingly" acted; there must not be too great an inferential leap.

Area(s) of Law:
  • Evidence

State v. Smith

Under ORS 161.370, trial courts have the authority to commit defendants to hospitals for treatment designed to restore their competence to stand trial.

Area(s) of Law:
  • Criminal Procedure

State v. Todd

When a trial court presents a defendant with the option to continue with their present lawyer or proceed pro se, it must determine that the defendant fully understands the risks of pro se representation, and has intentionally relinquished their right to counsel.

Area(s) of Law:
  • Criminal Procedure

Wright v. Nooth

In regards to findings of fact, such as with a defendant’s waiver to testify on their own behalf, the Appellate Court will defer to the post-conviction court’s records. Additionally, in order to find error in counsel’s decision not to object to testimony, the testimony must have been of a kind that would have likely provided evidence that would have altered the outcome of the proceeding.

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

State v. Anderson

Under ORS 163.415, the requirement that the victim not give consent is not a mens rea issue.

Area(s) of Law:
  • Criminal Law

State v. Cook

Erroneous admission of hearsay evidence is unacceptable only when the error is harmful in that it has a possible influence on the verdict rendered. When the erroneously admitted hearsay evidence is central to the parties’ theory of the case and their credibility, the error will be considered harmful and influential to the rendered verdict.

Area(s) of Law:
  • Evidence

The Foster Group, Inc. v. City of Elgin, Oregon

A taking occurs when the government takes physical possession of land, not when the idea of taking the land became known. The discovery rule comes into effect when a plaintiff should have known the harm took place.

Area(s) of Law:
  • Tort Law

State v. Dierks

Mere identification made in the course of a lawful police-citizen encounter does not in and of itself constitute a seizure.

Area(s) of Law:
  • Criminal Procedure

August 43 summaries

Fountaincourt Homeowners’ Assn. v. Fountaincourt Development, LLC

When an insurer covers negligence performed by an insured, and that insured is legally obligated to pay damages for negligence, then the insurer is obligated to pay those damages. Attorney fees will not be awarded if the motion to assert a right to get them comes after entry of a judgment on the merits.

Area(s) of Law:
  • Insurance Law

R & R Tree and Landscape, Inc. v. DCBS

In order for payroll records to be "verifiable" under OAR 836-042-0060(1), the records must include a description of the duties performed by the employee without the need for additional explanation or interpretation and must be supported by original entries from other records prepared by the employee or the employee's direct manager or supervisor.

Area(s) of Law:
  • Administrative Law

State v. Burciaga

Request for reconsideration in light of factual errors made in Court's previous opinion.

Area(s) of Law:
  • Criminal Law

State v. Frier

A person who has been ordered to serve time in county jail as a condition of probation has been sentenced to a "term of imprisonment" for purposes of ORS 813.010(6)(c). Accordingly, that person would not be subject to the mandatory minimum $2,000 fine set forth in that statutory subsection; however, if the court wished to exercise its discretion under ORS 161.635(1)(a) in choosing to impose a fine not exceeding $6,250 for a Class A misdemeanor, it could do so.

Area(s) of Law:
  • Criminal Law

State v. Hockersmith

Under Article I, section 9 of the Oregon Constitution, a warrantless inventory search of a vehicle incident to a lawful impounding is not permitted, unless the search is conducted pursuant to a properly authorized administrative program.

Area(s) of Law:
  • Criminal Procedure

State v. McCullough

The emergency aid exception requires an officer to believe entry is immediately necessary to aid someone who is suffering, or someone who is being imminently threatened with suffering.

Area(s) of Law:
  • Criminal Procedure

State v. Ringler

A trial court does not abuse its discretion by denying repeated motions for continuance when the record reflects that the moving party has not established good cause for a continuance.

Area(s) of Law:
  • Criminal Procedure

State v. Suppah

Under the Hall test, if there is a causal connection between unlawful police conduct and the discovery of evidence, the evidence cannot be admitted unless the State proves that its discovery was independent of, or only tenuously connected to, the illegal stop.

Area(s) of Law:
  • Criminal Law

Bova v. City of Medford

The Court has no reason to reverse an award of attorney fees from invalid supplemental judgments; and, the “substantial benefit” doctrine is not applicable unless an important constitutional right applying to all citizens is asserted.

Area(s) of Law:
  • Attorney Fees

Field v. Coursey

As determined by ORAP 5.45(1), generally no argument of error may be asserted in an appellate court that has not been preserved in the lower court.

Area(s) of Law:
  • Appellate Procedure

Munson v. Valley Energy Investment Fund

Under ORCP 21(A)(1), a trial court errs when it rules based on necessarily decided disputed issues of material fact.

Area(s) of Law:
  • Civil Procedure

Nationwide Ins. Co. of America v. Tri-County Metro. Trans. District (TRIMET)

An insurer who makes an outright payment to its insured is subrogated to the insured’s claim, and a subrogated insurer becomes the real party in interest under ORCP 21(A)6.

Area(s) of Law:
  • Insurance Law

Rains v. Stayton Builders Mart, Inc.

Settlement agreements that make reference to insurance are properly excluded under OEC 411, and do not automatically, as a matter of law, destroy diversity between parties. ORS 31.710(1) is properly applied to cap plaintiffs’ noneconomic damages claim but not plaintiffs’ loss of consortium claim.

Area(s) of Law:
  • Insurance Law

State v. Brown

Arguments that a defendant intends to raise on appeal must be preserved at the trial level.

Area(s) of Law:
  • Appellate Procedure

State v. Etzel

For the purposes of second-degree burglary, that a door is unlocked is not dispositive of the building not being a public space.

Area(s) of Law:
  • Criminal Law

State v. Hamel-Spencer

Defendant has the burden to prove that multiple offenses are the result of a single criminal episode and that the first prosecutor is aware of the multiple offenses to demonstrate double jeopardy.

Area(s) of Law:
  • Criminal Procedure

State v. Hockeman

Under the privacy interests implied in Article I, Section 9 of the Oregon State Constitution, when a property owner intends to exclude visitors from any portion of the property, that part of the property should have viewable signs that when approaching, the visitor can reasonably see and infer the property owner's intent to exclude.

Area(s) of Law:
  • Criminal Procedure

State v. Kinney

A trial court may deny self-representation on an anticipated disruption of the judicial process.

Area(s) of Law:
  • Appellate Procedure

State v. Osorno

An inadvertent revelation that Defendant invoked her right to remain silent was grounds to grant motions for mistrial and a new trial.

Area(s) of Law:
  • Criminal Procedure

State v. Pass

Because the elements of second-degree sexual assault and third-degree sodomy were congruent in this case as charged, the trial court committed a plain error by failing to merge these counts.

Area(s) of Law:
  • Criminal Law

State v. Symons

Under ORS 125.025(1), a court having jurisdiction over a protective proceeding has broad authority to protect the welfare of protected persons, even over the statutory obligations of the LTCO.

Area(s) of Law:
  • Disability Law

State v. Thompson

Whether a seizure has occurred is a fact specific inquiry into the totality of the circumstance of a particular case; the state has the burden of justifying a warrantless seizure of evidence, and that the seizure was not the fruit of an unlawful stop.

Area(s) of Law:
  • Criminal Procedure

State v. V.B.

Under ORS 426.100(1), an allegedly mentally ill person must be advised of her statutory rights by the trial court. Failure to do so constitutes a plain error.

Area(s) of Law:
  • Civil Commitment

V.L.M. v. Miley

A stalking protective order must be supported by evidence that contacts caused a subjective fear for personal safety and that such a fear was objectively reasonable.

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

Perry v. Hernandez

As a general matter, when a party prevails on a claim for which attorney fees are authorized and a claim for which they are not, the trial court must apportion the fees incurred for each claim; however, there is an exception to that rule when the claims involve common issues: that exception is based on the premise that attorney fees should not be subject to apportionment when the party entitled to fees would have incurred roughly the same amount of fees, irrespective of the additional claim or claims.

Area(s) of Law:
  • Landlord Tenant

Regency Centers, L.P. v. Washington County

A Washington County Traffic Control Master Plan allowed, but did not require, the County to leave a traffic signal in place at the intersection of Tualatin Sherwood Road and Petitioners' driveways. The final order of the Land Use Board of Appeals properly held jurisdiction over the decision, and did not err in substance under ORS 197.850(9)(a) in remanding the decision to the County to determine whether the traffic signal must be left in place.

Area(s) of Law:
  • Land Use

Romayor v. Dept. of Public Safety Standards

Retroactive application of a rule is not automatically impermissible, and the question is one of intent of the agency.

Area(s) of Law:
  • Employment Law

State v. Austin

ORS 162.295 requires that, in the absence of a pending proceeding at the time of the tampering, a person must have knowledge of a proceeding that is about to be instituted. Knowledge of a proceeding that is about to be instituted is not the same as a hope for a proceeding to be instituted at some indefinite point in the future.

Area(s) of Law:
  • Criminal Procedure

State v. Campbell

Pursuant to ORS 161.067(3), where the there is not sufficient evidence for a reasonable factfinder to conclude that there is no pause for reflection “to afford the defendant an opportunity to renounce the criminal intent,” the conduct should reflect a single conviction.

Area(s) of Law:
  • Criminal Procedure

State v. Causey

If an out-of-court statement's relevance depends on the truth of the content of the messages, the messages were hearsay and not admissible.

Area(s) of Law:
  • Evidence

State v. Clements

Where a criminal defendant agreed to a plea deal, but the State's sentencing recommendation was denied and the criminal defendant then fled for many years, what is the trial court bound to. Here, the defendant asserts three assignments of error.

Area(s) of Law:
  • Criminal Procedure

State v. Moore

Under ORS 136.432.1, a court cannot suppress relevant evidence, even if obtained in violation of statutory provision, unless there is an exception under the United States Constitution or the Oregon Constitution; the rules of evidence governing privileges and the admission of hearsay; or, the rights of the press.

Area(s) of Law:
  • Criminal Procedure

State v. Ramirez

Review of a trial court’s refusal to give a requested jury instruction for errors of law are reviewed in light of facts most favorable to defendant.

Area(s) of Law:
  • Appellate Procedure

State v. Russum

If a prosecutor makes an accidental intrusion into the defendant’s privileged communications with his client, the defendant bears the burden of proving that his constitutional rights have been prejudiced.

Area(s) of Law:
  • Constitutional Law

State v. Sullivan

Under Article I, section 9, of the Oregon Constitution, a warrantless home entry by police is not lawful unless there is an exigent circumstance making the entry necessary; and, for the entry to be lawful, the State must be able to make some showing of the feasibility of obtaining a warrant.

Area(s) of Law:
  • Criminal Law

State v. Tooley

Under ORS 131.505(4), multiple murders committed in furtherance of an overarching criminal objective are part of the same criminal episode, despite a gap in time between the commission of each murder.

Area(s) of Law:
  • Criminal Law

State v. Wabinga

Reasonable suspicion does not require that the facts observed by the officer indicate illegal activity, but only that those facts support a reasonable inference of illegal activity.

Area(s) of Law:
  • Criminal Procedure

State v. Walker

Casual and informal associations of individuals, as well as organizations with formal structures, can constitute an "enterprise" within the meaning of ORS 166.715(2); the key is whether the association or entity is engaged in ongoing, coordinated criminal activity and undertakes a purposeful venture, undertaking, or activity through a pattern of criminal activity.

Area(s) of Law:
  • Criminal Law

16th Group, LLC v. Lynch Mechanical Construction, LLC

Under ORS 20.077, attorney fees are awarded to a prevailing party on a “claim-by-claim” basis.

Area(s) of Law:
  • Attorney Fees

Kleinsasser and Lopes

Pursuant to ORS 109.119, the Court "shall grant custody" to a third party who establishes a child-parent relationship, "if to do so is in the best interest of the child."

Area(s) of Law:
  • Family Law

State v. Davis

Under Article I, Section 11 of the Oregon Constitution, a defendant has the right for a jury to find all elements of the charged offense beyond a reasonable doubt. Issue preclusion, therefore, cannot be used to definitively establish essential facts to obtain a conviction because it hinders a jury's duty to deliberate and find every element of a crime.

Area(s) of Law:
  • Civil Procedure

State v. Goecks

An affidavit for a search warrant must contain a connection between the defendant and the illegal activity to be considered to have probable cause.

Area(s) of Law:
  • Criminal Procedure

State v. Goldman

If nonappearance on a citation constitutes "mistake, inadvertence, surprise or excusable neglect" under ORS 153.820(7), an individual is relieved from the doubling of fines.

Area(s) of Law:
  • Civil Law

September 39 summaries

American Federation of State, County and Municipal Employees, Council 75, Local 2043 v. City of Lebanon

Under ORS 243.672(1), certain actions by an employer or employer's agent are considered unfair labor practices. A city councilor was found not to be a city's agent.

Area(s) of Law:
  • Municipal Law

Broadway Cab LLC v. Employment Department

Unemployment taxes are properly assessed for employee taxicab drivers who receive remuneration for services provided to benefit their employer, where the taxicab drivers do not qualify as independent contractors under ORS 670.600(3).

Area(s) of Law:
  • Tax Law

Burcham v. Franke

An attorney's failure to challenge a lack of "consent" to consume alcohol being defined, by opposing counsel, as evident from the victim being 16 years old was inadequate assistance of counsel.

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

Oregon v. Hunt

ORS 131.615. The reasonable suspicion of an officer to ask someone for identification and run a warrant check reasonably related to an investigation is justified if the officer has a reasonable suspicion that that person has committed a crime.

Area(s) of Law:
  • Evidence

State v. Abraham

Under OEC 401, when a defendant--after the alleged crime--makes a statement of intent to commit that same crime in the future cannot be admitted as evidence of intent.

Area(s) of Law:
  • Evidence

State v. Duvall

Trial court that assumes the jury has an understanding of a legal definition and then fails to give that definition to the jury risks having the trial remanded.

Area(s) of Law:
  • Criminal Procedure

State v. Gallegos

A trial court does not abuse its discretion by denying a motion for continuance when a Defendant cannot show that an eyewitness could "be produced."

Area(s) of Law:
  • Evidence

State v. Hall

Under former ORS 135.747 and in cases where that statute still governs, a court must determine whether a delay in a trial was acceptable by determining the extent to which the delay was justified.

Area(s) of Law:
  • Criminal Procedure

State v. Lucero

Evidence showing the legality of legal proceedings resulting in an eviction is not admissible at trial when those proceedings are final and have no consequence regarding the legality of Defendant's entry or whether Defendant was aware that the entry was otherwise licensed or privileged.

Area(s) of Law:
  • Evidence

State v. Turntine

The words "previously convicted" in ORS 163.160(3)include those offenders found guilty of previously assaulting the same victim, even if a formal judgment of conviction has not yet been entered on the previous assault.

Area(s) of Law:
  • Criminal Law

C. J. R. v. Fleming

The standard set by ORS 30.866(1) also applies to non-expressive contact. In order for a non-expressive contact to apply, the petitioner must prove that the communication instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.

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

Federal National Mortgage Assn. v. Bellamy

Prima facie evidence, in the form of a trustee’s deed, is sufficient to show forcible entry and wrongful detainer (FED) if the evidence is unchallenged and confirmed though the adverse party’s admission.

Area(s) of Law:
  • Property Law

Hopper v. SAIF

For a claimant to prevail after denial on a claim for failure to cooperate, the claimant must prove one of three things: (1) that claimant, in fact, "fully and completely cooperated with the investigation"; (2) that claimant "failed to cooperate for reasons beyond the [claimant's] control"; or (3) that SAIF's "investigative demands were unreasonable"; to satisfy number (2), the claimant must prove that any failure to cooperate was because of--in other words, causally connected to--reasons beyond the worker's control.

Area(s) of Law:
  • Workers Compensation

State v. Aung

If two officers or more are at the scene of a lawful stop, then while one officer is writing a citation or conducting a records check, another officer may investigate matters unrelated to the initial stop without unlawfully extending the stop.

Area(s) of Law:
  • Criminal Procedure

State v. Bennett - McCall

Automobile and officer safety exceptions applied to searches incident to an arrest for the sale of drugs where, with probable cause, officers searched defendants’ vehicle and a backpack found within; neither exception applied to a later search of the same backpack where defendants posed no immediate threat to officer safety and officers were in control of defendant’s backpack.

Area(s) of Law:
  • Evidence

State v. Carlon

To avoid error, trial courts should ensure that when answering a jury's question, further instructions are applicable to the charges at hand and not further focusing the jury on irrelevant issues.

Area(s) of Law:
  • Criminal Procedure

State v. Davis

Crimes which occur at different times do not merge if there has been the opportunity to renounce criminal intent.

Area(s) of Law:
  • Criminal Procedure

State v. Magna/Rivera

Courts may look to several factors to determine whether a defendant’s consent to a search was voluntary or a result of coercion, including: “whether physical force was used or threatened”; “whether weapons were displayed”; “whether the consent was obtained in public”; “whether the person who gives consent is the subject of an investigation”; and “whether the atmosphere surrounding the consent [was] antagonistic or oppressive[.]”

Area(s) of Law:
  • Criminal Law

State v. McKarge

Under ORS 135.230(4)(c), the portion of the definition of "family or household members" that refers to "persons related by * * * marriage," is limited to "[a]dult persons related by * * * marriage" and does not apply to a minor child.

Area(s) of Law:
  • Criminal Law

State v. Miller

In order to initiate a valid DUII search under the state and U.S. Constitutions, a police officer must have probable cause, a subjective belief that is objectively reasonable, that the driver being searched was driving under the influence of intoxicants; the officer may rely on a totality of the circumstances, including his own experience and judgment, to form this probable cause.

Area(s) of Law:
  • Criminal Procedure

State v. Muhammad

A defendant cannot be required to pay restitution for pecuniary damages arising out of criminal activity for which s/he was not convicted or which he did not admit having committed.

Area(s) of Law:
  • Criminal Law

State v. Patnesky

Under ORS 162.247, the passive resistance exception to the crime of interfering with a peace officer only applies to actions “commonly associated with governmental protest or civil disobedience.”

Area(s) of Law:
  • Criminal Law

State v. Russell

The implication by a party, stopped by police, that he is in possession of a weapon was reasonable grounds an officer’s safety concerns.

Area(s) of Law:
  • Criminal Procedure

State v. Strickland

A waiver of the right against self-incrimination applies to a defendant’s submission of an affidavit at a motion hearing.

Area(s) of Law:
  • Criminal Procedure

State v. Worthington

Reasonable suspicion to make a stop must be supported by the totality of the circumstances and the police officer’s application of his experience to interpret those circumstances.

Area(s) of Law:
  • Criminal Procedure

Chalmers v. Concrete Bob, Inc.

Interpretation of a contract is matter of law, but where the trial court's interpretation depends on factual determinations, those are accepted if supported by any competent evidence.

Area(s) of Law:
  • Contract Law

Lay v. Raymond

When a party has the right to partition, then the court must follow the statutory procedure for partition under ORS 105.205 and ORS 105.255.

Area(s) of Law:
  • Property Law

ODOT v. Alderwoods (Oregon), Inc.

Evidence of diminution in value was properly excluded in determining the compensation award for loss of access due to highway construction.

Area(s) of Law:
  • Property Law

SAIF v. Tono

Under ORS 656.039(5), workers’ compensation for state-funded home care workers is not limited to state-funded activities.

Area(s) of Law:
  • Workers Compensation

State ex rel Schrodt v. Jackson County

A court may use its discretion to award attorney's fees to deter intervenors from taking unreasonable positions on appeal and encouraging compliance with the rules of appellate practice while, at the same time, not discouraging the pursuit of meritorious appeals by intervenors who become involved in mandamus proceedings as a result of local governments' derelictions of duty.

Area(s) of Law:
  • Attorney Fees

State ex rel Simons v. Simons

In determining whether a defense of nonparentage may be raised, the law that governs is the law of the state where parentage is asserted to have been previously determined.

Area(s) of Law:
  • Family Law

State v. Baker

It is important to consider “whether all elements of one offense are subsumed within the elements of the other offense” when determining whether two counts should merge as one. While “underlying factual circumstances of the crime” might seemingly overlap to a degree, the statutory duplication of all elements are what analysis hinges on.

Area(s) of Law:
  • Criminal Procedure

State v. Cook

ORS 164.235(1) requires both possession and intent to use a burglary tool to commit or facilitate a forcible entry or theft by physical taking. The intent element cannot be proven merely by proving the possession element.

Area(s) of Law:
  • Criminal Law

State v. Scott

Evidence that a complainant assaulted a defendant ten years prior is relevant to a determination of self-defense by a factfinder.

Area(s) of Law:
  • Evidence

State v. Washington

In Owens, 302 Or at 200, the Court established that the permissible scope and intensity of a search incident to arrest does not turn on whether or not a particular criminal offense is a traffic offense; rather, it turns on whether the space searched was in the immediate control of the arrestee before the arrest, and on whether that space (and the containers therein) reasonably could conceal evidence of the crime of arrest. State v. Brody, 69 Or App 469, 686 P2d 451 (1984) was overruled to the extent that it held that the scope and intensity of a permissible search incident to arrest turns on whether or not the offense of arrest is a traffic offense.

Area(s) of Law:
  • Criminal Procedure

State v. Wright

Under State v. Backstrand, and other cases, briefly holding a person’s identification card does not necessarily mean that a person is stopped; rather, a stop can take place when a request for identification is done in conjunction with other police conduct.

Area(s) of Law:
  • Criminal Procedure

Justice and Crum

In order to properly preserve an issue for appeal, the matter must be clearly and unequivocally objected before judgment is entered, rather than a party waiting on an adverse or undesirable judgment.

Area(s) of Law:
  • Appellate Procedure

Shell v. Schollander Companies, Inc.

This Court previously concluded that ORS 12.135 “applies to any action, 'in contract, tort, or otherwise,' regardless of the type of damages sought, so long as the action arises out of the specified construction-related circumstances.” The Court further concludes that these claims need to arise out of a construction contract.

Area(s) of Law:
  • Tort Law

State v. Purrier

The jury’s task is to weigh evidence, judge the credibility of witnesses and the reliability of their testimony, and to resolve conflicts in the evidence.

Area(s) of Law:
  • Evidence

October 59 summaries

Flores-Salazar v. Franke

Failure to request a jury instruction for a lesser offense does not necessarily entail inadequate assistance of counsel, particularly when accompanied by a strong defense and as part of a tactical decision.

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

Gordon v. Teacher Standards and Practices Commission

A plaintiff must exhaust all administrative remedies, including requesting an agency hearing, before objecting to the substance of an administrative order before the court.

Area(s) of Law:
  • Administrative Law

Herrera v. C & M Victor Company

To prove a defamation per se claim, the plaintiff only needs to show that the statement was published and was per se harmful. This is distinguished from an ordinary defamation claim that requires proof of “special harm,” defined as “the loss of something having economic or pecuniary value.”

Area(s) of Law:
  • Tort Law

Housing Authority of Jackson County v. City of Medford

A petition, the resolution of which would not have a practical effect on either party to it, must be dismissed for being not being justiciable, and therefore moot.

Area(s) of Law:
  • Land Use

Norris v. R & T Manufacturing, LLC

Under ORS 95.230(1)(a), a transfer of all business assets to a newly formed company is fraudulent when the transfer is made for the purpose of avoiding payment of a judgment, where the new company conducted business nearly identical to the old company, and no other reason existed for transferring assets other than to avoid paying the judgment.

Area(s) of Law:
  • Corporations

State v. Gonzales

A police officer cannot rely on the "good-faith exception" to the Fourth Amendment of the U.S. Constitution to impound a car that does not impede traffic or pose a threat to safety when that police officer should have been on notice that the "community-caretaker exception" does not apply.

Area(s) of Law:
  • Criminal Procedure

State v. Lambert

Revisiting a previous decision where the case was vacated and remanded for the trial court to sort out the inevitable discovery of evidence after an illegal search, the Court held that their decision to vacate and remand was error and, under Article I, Section 9, of the Oregon Constitution, evidence obtained after a person's rights are violated is tainted evidence.

Area(s) of Law:
  • Criminal Procedure

State v. Newcomer

To prove that a defendant knowingly failed to appear on a criminal citation, ORS 133.076, the state has the burden of proof to prove that the defendant knew of his or her obligation to appear.

Area(s) of Law:
  • Criminal Law

State v. Truong

The party offering the scientific evidence at issue has the burden of establishing that it is scientifically valid.

Area(s) of Law:
  • Evidence

State v. Vanderzanden

A jury instruction that follows the statute must not construe the statutory language contrary to caselaw.

Area(s) of Law:
  • Criminal Law

Stoecklin and A. L. C.

The party petitioning the court for the name change of a child has the burden to establish the name change is in the best interest of the child.

Area(s) of Law:
  • Family Law

Adams v. West Coast Trust

The probate court did not abuse its discretion by declining to reconsider an order approving the sale of mineral rights.

Area(s) of Law:
  • Trusts and Estates

Department of Human Services v. H.H.

When one parent, who otherwise appears to be a fit parent, allows their children to be home alone with a parent who has caused harm to a child, the totality of the circumstances tend to show that there will be a reasonable likelihood of additional harm to the child.

Area(s) of Law:
  • Juvenile Law

Espinoza v. Evergreen Helicopters, Inc.

The inconvenient forum doctrine is available in Oregon and should be applied by weighing private and public interest factors. In order to dismiss, a defendant must show the factors are strongly in favor of dismissal.

Area(s) of Law:
  • Civil Procedure

Lewis v. Beyer

Without changing the analysis or outcome, the Court offers clarification on a few matters of a prior decision of the same name.

Area(s) of Law:
  • Remedies

Norris v. R & T Manufacturing, LLC

Oregon courts adhere to the "American rule" of attorney fees, under which courts generally will not award attorney fees to the prevailing party absent statutory or contractual authorization.

Area(s) of Law:
  • Attorney Fees

Patton v. Mutual of Enumclaw Insurance Co.

If a homeowner's insurance policy contains ambiguous provisions relating to the time-frame in which an insured may recover, those provisions are held against the drafter of the policy.

Area(s) of Law:
  • Insurance Law

Spurger v. SAIF

Under OAR 436-035-0019 a worker is entitled to chronic condition impairment value if the worker is "significantly limited" in the repetitive use of certain body parts.

Area(s) of Law:
  • Workers Compensation

State v. Campbell

The factors that the court considers in determining whether to correct an unpreserved plain error include the ends of justice in the particular case, the gravity of the error, and whether the policies underlying the preservation requirement were served in another way; one of the policies underlying the preservation requirement is that of allowing the opposing party the opportunity to respond to the asserted error.

Area(s) of Law:
  • Appellate Procedure

State v. Canfield

When a police officer requests identification from a person, the request alone, without more, does not constitute a stop for purposes of Article I, section 9 of the Oregon Constitution.

Area(s) of Law:
  • Criminal Procedure

State v. Carle

Because the sender of a text message has no reasonable expectation of privacy in the digital copy of a text message delivered to a recipient’s cell phone, a “search” of the sender does not occur under Article I, section 9, or the Fourth Amendment, where police discovered a text message from Defendant on a recipient’s cell phone.

Area(s) of Law:
  • Evidence

State v. Coffman

Warrantless entrance onto residential curtilage is likely a trespass, unless the resident has given implied or express consent. When determining implied consent to enter the curtilage of a home that consists of multiple units, the Court looks at the physical layout of the units and the residents' use of the area to see whether an objective member of the public would understand that there is an implied consent to enter.

Area(s) of Law:
  • Criminal Procedure

State v. Gensler

Under ORS 132.560(3), charging instruments that have been consolidated may be severed upon motion if the defendant is substantially prejudiced by the joinder of offenses.

Area(s) of Law:
  • Criminal Law

State v. Moulton

In order to survive a motion to suppress evidence, the State must prove that a police officer’s warrantless search or seizure was constitutionally justified by an exception to the warrant requirement.

Area(s) of Law:
  • Constitutional Law

State v. Washington

Removal of a victim to a different location as part of a rape is considered the separate offense of kidnapping if the intent behind the move was to limit the victim's freedom and isolate the victim.

Area(s) of Law:
  • Criminal Law

Weldon v. Bd. of Lic. Pro. Counselors and Therapists

Under ORS 183.650(3), an agency may only modify the ALJ’s finding of fact when there is “clear and convincing evidence” that the finding was incorrect. If a party challenges this modification then the court will review the finding of fact de novo and remand to the agency if the court finds that the modification was an error.

Area(s) of Law:
  • Administrative Law

Westfall v. Oregon Department of Corrections

Arguments not presented to the trial court in the first instance cannot be raised on appeal.

Area(s) of Law:
  • Appellate Procedure

Dept. of Human Services v. M.H.

Under ORS 419B.500 and ORS 419.498(3), a termination of parental rights petition will be based upon the most recent permanency plan determination since it is based on the current circumstances of the child.

Area(s) of Law:
  • Juvenile Law

Horizon Air Industries, Inc. v. Davis-Warren

Under ORS 656.005(7)(a), to establish a compensable injury a claimant must prove that an injury was suffered in the course of employment and that the injury resulted in death, disability, or was severe enough to require medical services, including medical services with only a diagnostic or prophylactic purpose.

Area(s) of Law:
  • Workers Compensation

Horizon Air Industries, Inc. v. Davis-Warren

Under ORS 656.005(7)(a), to establish a compensable injury a claimant must prove that an injury was suffered in the course of employment and that the injury resulted in death, disability, or was severe enough to require medical services, including medical services with only a diagnostic or prophylactic purpose.

Area(s) of Law:
  • Workers Compensation

Kraai v. Bur. of Fire and Police Dis. & Ret. Fund

Under the Fire and Police Disability and Retirement Fund Rule (FPDR) § 5.7.03(D), a disability claim for an aggravated injury must be submitted within 30 days of objective findings of medical evidence or an expert medical opinion indicating the worsening of the prior work injury.

Area(s) of Law:
  • Disability Law

State v. Berrellez

Under Art. I, sec. 10 of the Oregon Constitution and former ORS 135.747 (2011), a defendant’s defense is not unreasonably prejudiced by an 8-year delay due to evasion of police, destruction of non-valuable case notes, and the death of a witness.

Area(s) of Law:
  • Criminal Procedure

State v. Fujimoto

When the same conduct satisfies more than one theft statute that do not each contain an element that the other does not, the theft offenses will merge into one offense.

Area(s) of Law:
  • Criminal Law

State v. Parker

The guiding principle in determining whether an encounter is a constitutionally significant seizure is whether the officer had manifested a “show of authority” that intentionally and significantly restricts an individuals’ liberty.

Area(s) of Law:
  • Criminal Law

State v. Phillips

A notice of the introduction into evidence of hearsay statements under OEC 803(18a)(b) need not set out verbatim the statements that the State intends to offer.

Area(s) of Law:
  • Criminal Procedure

State v. Reineke

Where the prosecution impermissibly references a defendant’s invocation of his right to remain silent, the defendant’s right to a fair trial is prejudiced.

Area(s) of Law:
  • Criminal Procedure

State v. Stanton

Under Oregon's "anti-merger" statute--ORS 161.067--a trial court, before issuing separate convictions arising from one incident, must determine if either (1) there were separate victims, or (2) there was sufficient pause between crimes committed against one victim.

Area(s) of Law:
  • Criminal Law

State v. Underwood

For hearsay to qualify as an excited utterance, three requirements must be satisfied: (1) a startling event or condition must have occurred; (2) the statement must have been made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement must relate to the startling event or condition.

Area(s) of Law:
  • Evidence

State v. Waterhouse

Evidence that a stolen item has some market is sufficient to prove the value element of theft in the third-degree, even if that value is speculative.

Area(s) of Law:
  • Criminal Law

State v. Wilson

Admitting testimony from an officer trained as a drug-recognition expert (DRE) in the absence of an adequate scientific foundation is not in error because the testimony constitutes nonscientific expert opinion evidence.

Area(s) of Law:
  • Evidence

Association of Oregon Corrections Employees v. DOC

The statutory obligations of the Public Employees Benefit Board are not compatible with the State’s bargaining obligations under the Public Employees Collective Bargaining Act.

Area(s) of Law:
  • Employment Law

Dept. of Human Services v. J. M.

In order to show a change in plan is a "foster care placement" within the meaning of ICWA, a "significant shift in legal rights" must occur.

Area(s) of Law:
  • Juvenile Law

Gordon v. Board of Parole

In 1977 Oregon adopted a "matrix" standard in place of the former "discretionary" system which eventually gave rise to a new development for board review. Under the new system, the board could only consider the current psychological condition rather than the entire record. To determine what standard to use, a dispositive issue is when the inmate elected to enroll in the system.

Area(s) of Law:
  • Criminal Procedure

Smith v. Franke

In order to constitute inappropriate vouching for a minor, a witness’s testimony in regards to the minor’s ability to distinguish between truth and lie is insufficient.

Area(s) of Law:
  • Criminal Law

State v. Lewis

For a conviction of assault in the fourth degree, the state must show the victim suffered physical injury in the form of "impairment of physical condition or substantial pain."

Area(s) of Law:
  • Criminal Law

State v. McCrary

An in-trial Horizontal Gaze Nystagmus test is an unlawful search without a warrant or exception to the warrant requirement because Nystagmus is not an observation made or commonly understood by the public.

Area(s) of Law:
  • Criminal Procedure

E.T. v. Belete

Assaultive acts and statements within a church was legally sufficient to prove objective alarm, warranting entry of a stalking protective order.

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

Evergreen West Business Center, LLC v. Emmert

When expenses are incurred in good faith, without being part of a calculated breach, those expenses should not be reimbursed as damages.

Area(s) of Law:
  • Remedies

Hamilton v. Pacific Skyline, Inc.

Under ORS 656.262(11)(a), a claimant is entitled to penalties and attorney fees where a Board’s determination is not supported by substantial reason.

Area(s) of Law:
  • Workers Compensation

Riverview Condominium Assn. v. Cypress Ventures

ORCP 22 does not run afoul of constitutional ripeness issues by authorizing an accelerated timeline for deciding minimally contingent third-party claims.

Area(s) of Law:
  • Civil Procedure

Riverview Condominium Assn. v. Cypress Ventures

When an injury to the "interest of another in real property" is raised under ORS 12.080 the statute of limitations will be six-years.

Area(s) of Law:
  • Property Law

State v. Chen

Under ORS 475.860, a reasonable jury could convict a defendant on a charge of delivery of marijuana when presented with evidence of their frequent presence at a grow operation, transportation of marijuana trimmings, and large amounts of drugs on the property. These factors considered cumulatively create a logical inference that a defendant intends to sell the marijuana, which constitutes delivery.

Area(s) of Law:
  • Criminal Law

State v. Chen

Stopping in the middle of the road causing vehicles to slow and swerve is impeding the normal and reasonable movement of traffic.

Area(s) of Law:
  • Traffic Infractions

State v. James

It must be shown that Defendant controlled the supply of alcohol that minors consumed to sustain a conviction for furnishing alcohol to minors.

Area(s) of Law:
  • Criminal Law

State v. Meek

A letter, as a form of “written communication” is not considered an “object” under ORS 163.750(1)(c).

Area(s) of Law:
  • Criminal Law

State v. Rudnitskyy

Under Art. I, Sec. 9 of the Oregon Constitution, or the Fourth Amendment of the U.S. Constitution, a police "stop" occurs when a reasonable person would believe that an officer either physically restrains a citizen's liberty in a significant way, or engages in a "show of authority" that reasonably conveys to the person a significant restriction on that person's freedom.

Area(s) of Law:
  • Criminal Procedure

State v. Stapp

Evidence of prior, uncharged misconduct, is not admissible to prove the character of a person in order to show that the person acted in conformity therewith; such evidence of prior acts may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of prior, uncharged misconduct may also be used to impeach the credibility of the defendant's testimony.

Area(s) of Law:
  • Evidence

State v. Thomas

For a trial court to properly exercise its discretion to deny a motion for continuance, it must inquire into the nature, and evaluate the merits, of a defendant’s complaints.

Area(s) of Law:
  • Criminal Procedure

State v.Zibulsky

Named account holders of joint bank accounts are not culpable for identity theft under ORS 185.800 for using accounts within their legal rights as joint bank account holders.

Area(s) of Law:
  • Criminal Law

November 31 summaries

State v. Hite

Under Article I, Section 9 of the Oregon Constitution, an administrative inventory search policy must not be overly broad nor allow for officer discretion outside the stated policy.

Area(s) of Law:
  • Criminal Procedure

State v. Marquez-Vela

A witness cannot testify to the credibility or truthfulness of another witness. The trier of fact must make these determinations.

Area(s) of Law:
  • Criminal Procedure

State v. Pumphrey

Under ORS 137.106, a Defendant must pay restitution for economic damages incurred by violating a stalking protective order so long as there is a “but for” causal relationship between the criminal activity and the resulting the economic damages.

Area(s) of Law:
  • Criminal Law

Clatsop County District Attorney v. City of Astoria

A city attorney has all the powers of a district attorney with respect to a violation of any offense created by statute that is subject to the jurisdiction of a municipal court and committed or triable in that city.

Area(s) of Law:
  • Criminal Procedure

Dept. of Human Services v. M.D.

When an Indian child is involved, DHS must show that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful.

Area(s) of Law:
  • Indian Law

Isayeva v. Employment Dept.

In evaluating whether an instance of workplace misconduct was an “isolated instance of poor judgment,” the proper standard is not whether an employer “could” conclude that the continued relationship impossible, but whether an employer would have so concluded.

Area(s) of Law:
  • Administrative Law

Leung v. Employment Dept.

Under OAR 471-040-0010(2), the phrase "gaining knowledge that the person needed or was entitled to such [language] assistance" "refers to the department's knowledge or awareness, obtained by any means, that the person needed or was entitled to oral or written language assistance."

Area(s) of Law:
  • Administrative Law

Saunders v. Nooth

Where a defense attorney in a post-conviction relief appeal does not renew a pretrial motion to suppress the evidence at trial, the attorney does not fail to provide adequate assistance of counsel.

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

State v. Bafus

Whether it is a reversible “error of law apparent on the written record,” ORAP 5.45(1), when a trial court held a bench trial and convicted defendant without first obtaining a written waiver of her right to a jury trial.

Area(s) of Law:
  • Criminal Procedure

State v. Enyeart

Defendant could not be convicted of interfering with a peace office as a lesser-included offense of eluding a police officer because the intentional mental state of ORS 162.247(1)(b) is not subsumed in the knowing mental state of ORS 811.540(1)(b)(A) and the charging instrument did not expressly allege that Defendant had intentionally refused to obey a lawful order.

Area(s) of Law:
  • Criminal Law

State v. Garrison

Under OEC 403 and OEC 404, character evidence admitted will not be considered to be an abuse of a trial courts discretion where it is deemed to have little prejudicial effect and the jury has been offered a curative jury instruction. A curative instruction will be assumed to be followed by the jury unless there is an “overwhelming possibility” that the jury was incapable of following it.

Area(s) of Law:
  • Evidence

State v. Glazier

If the trial court commits an error in sentencing that requires resentencing, the appellate court will remand the entire case for resentencing. ORS 138.222(5)(a).

Area(s) of Law:
  • Criminal Procedure

State v. Taylor

Under ORS 138.050, the Court of Appeals does not have jurisdiction when defendant's claim is not a claim that the fee exceeds the maximum allowable by law or is unconstitutionally cruel and unusual.

Area(s) of Law:
  • Appellate Procedure

Deckard v. Bunch

Under ORS 471.565, a statutory liability is created for social hosts who serve visibly intoxicated persons.

Area(s) of Law:
  • Tort Law

Liberty Northwest Ins. Corp. v. Vera-Chavez

Under ORS 656.268(1) and ORS 656.268(10), after a claimant has completed an authorized training program, a disability claim can only be closed when the worker is medically stationary and there is sufficient information to determine disability.

Area(s) of Law:
  • Workers Compensation

PUC v. Employment Department

Under ORS 657.176(2)(c), a claimant is not entitled to unemployment insurance benefits when that claimant’s good cause for voluntarily leaving is based on medical necessity with no reasonable alternative and when the claimant has medical leave available through employment.

Area(s) of Law:
  • Employment Law

State v. Behee

Under ORS 166.270(2), objects described as “ninja climbing claws” are not “metal knuckles” because their intended purpose is tree climbing, not punching.

Area(s) of Law:
  • Criminal Law

State v. K.M.

It is not sufficient for a client to be informed by their attorney as to the possible outcomes of a hearing to determine mental illness and possible involuntary confinement. The trial judge must advise the alleged mentally ill person of their rights pursuant to ORS 426.100.

Area(s) of Law:
  • Civil Commitment

State v. Welsh

Under ORS 137.123(5), consecutive sentences must only be granted for convictions arising out of continuous and uninterrupted courses of conduct if the court finds that the violation was not merely an incidental violation, but actually an indication of defendant’s willingness to commit a separate crime, or that the offense created a risk of causing greater harm or injury to the victim.

Area(s) of Law:
  • Sentencing

Ventana Partners, LLC v. LaNoue Development, LLC

Whether an underlying claim has been settled before a party tenders their defense to a title insurer is a genuine issue of material fact.

Area(s) of Law:
  • Property Law

Walker v. Providence Health System Oregon

Under ORS 656.262(11)(a), unreasonable delay in accepting a claim for a "major depression and panic disorder" was grounds for imposition of penalties and attorney fees.

Area(s) of Law:
  • Workers Compensation

Davis v. State

ORS 12.220 applies to claims against the state notwithstanding the preemptive language of ORS 30.275(9), and the savings statute applies when some claims were dismissed with and without prejudice.

Area(s) of Law:
  • Civil Procedure

Dept. of Human Services v. S.W.

Father's failure to participate with DHS in its efforts to reunify him with his daughter did not undermine the reasonableness of those efforts.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. T.S.

To determine whether Department of Human Services (DHS) established reasonable efforts to reunify both the mother and the father, the efforts should be viewed through the totality of the case. DHS needs to endeavor to reunify both parents, even if it appears that only one will eventually be reunified.

Area(s) of Law:
  • Family Law

Gordon v. Board of Parole and Post-Prison Supervision

Under the matrix system, once the board sets an inmate's initial parole release date, the board may postpone that date only if, among other reasons, the inmate has a present severe emotional disturbance such as to constitute a danger to the health and safety of the community.

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

Nay v. Dept. of Human Services

Amended provisions OAR 461-135-0835(1)(e)(B)(iii) and OAR 461-135-0832(10)(b)(B)(viii) are invalid because they exceed the statutory authority granted by ORS 416.350 and 42 USC sec. 1396p.

Area(s) of Law:
  • Administrative Law

Sherwood Park Business Center, LLC v. Taggart

Under ORS 20.083 and 20.096, where a losing party is a stranger to an agreement that contains an attorney fee provision, the losing party shall not be subject to an assessment of fees against it even where it asserts a reciprocal right to fees. A party’s conduct that is merely an attempt to extract himself from litigation post-bankruptcy and that is not voluntary affirmative action shall not subject him to assessment of attorney fees against him for further litigation regarding the discharged debts.

Area(s) of Law:
  • Attorney Fees

State v. Lusk

The Court of Appeals should exercise their discretion to correct plain error left unpreserved at trial when a defendant is convicted of a crime that the State did not sufficiently prove, and correcting the error would not undermine procedural fairness policy of the preservation rule.

Area(s) of Law:
  • Appellate Procedure

State v. Ramos

Expenses arising out of the insurance company’s investigation of a fraudulent claim are pecuniary damages and recoverable in restitution under ORS 137.106, which allows restitution in criminal cases.

Area(s) of Law:
  • Remedies

State v. Ryder

Under ORS 161.155(2)(b) and 163.165(1)(e), the least degree of collusion is enough to sustain a conviction of aiding and abetting a crime; however, mere presence during the crime is not enough to sustain such a conviction.

Area(s) of Law:
  • Criminal Law

State v. Sparks

Under ORS 163.545, certain offenses concerning the welfare of children apply only to parents or persons in loco parentis to children. The child-neglect statute similarly applies to such individuals; it also applies, to "temporary custodians," those who are not "lawfully charged with" the care, custody, or support of a child but who nevertheless have "control" of the child.

Area(s) of Law:
  • Criminal Law

December 71 summaries

Assn. of Oregon Corrections Employees v. State of Oregon

Waiver of right to bargain does not occur unless a written notice of proposed changes is issued and there is no demand to bargain.

Area(s) of Law:
  • Employment Law

K.E.A. v. Halvorson

Under ORS 30.866(1)(c), a stalking protective order shouldn’t have been issued when a respondent drives through a petitioner’s neighborhood three times and only makes contact with members of petitioner’s household as a response, despite respondent’s history of infrequent incidents of anger and aggression towards others.

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

Liberty Oaks Homeowners Assn. v. Liberty Oaks, LLC

In a construction defect claim, the subcontractors were not liable as a third party respondent under ORCP 22 C, where the subcontractors’ liability was contingent upon the developers’ liability to the plaintiff.

Area(s) of Law:
  • Standing

Ouma v. Skipton

Medical expert testimony is not necessary to establish causation for a broken tooth, because it is a simple injury which layperson is competent to testify to establish causation.

Area(s) of Law:
  • Tort Law

SAIF v. Thompson

Under ORS 656.802(4), the “clear and convincing” standard of proof required to rebut the firefighter’s presumption under Workers Comp law does not require the defendant to prove an alternative cause of the condition, only that it’s asserted claim is “highly probable.”

Area(s) of Law:
  • Workers Compensation

State v. Bonilla

A third party’s actual authority to consent to search a residence does not extend to a search personal property, like a passenger’s rights against search of their personal belongings when a driver consents to a search of the vehicle.

Area(s) of Law:
  • Criminal Procedure

State v. Klein

Conviction for first-degree criminal trespass requires a showing by the State that Defendant was not licensed or privileged to enter the dwelling.

Area(s) of Law:
  • Criminal Law

State v. Koch

Evidence acquired after a Miranda violation should be inadmissible, and its admission is grounds for reversal.

Area(s) of Law:
  • Criminal Procedure

State v. Oregon

A court should suppress evidence obtained during a traffic stop when the officer obtained this evidence by extending the scope of the stop beyond that which reasonably relates to the traffic infraction.

Area(s) of Law:
  • Criminal Procedure

W.M. v. Muck

Under ORS 30.866(3), a child overhearing a conversation she assumes to be about her father in an abstract though unpleasant way is not sufficient to subjectively place her in apprehension of her father’s safety when the comment was made during a telephone call to someone else, on the declarant’s property, while not attempting to contact or even look at the child.

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

???Portland Fire Fighters’ Assn. v. City of Portland

Under ORS 243.672(1)(g), it is an unfair labor practice for a party to fail to comply with the results of an agreed-upon binding arbitration.

Area(s) of Law:
  • Labor Law

City of Portland v. Portland Firefighters' Assn.

The duty of the Employment Relations Board, under ORS 240.115 and 240.086(2), is to review and enforce arbitration decisions, and may, pursuant to ORS 243.676(2)(c), take action to enforce those decisions.

Area(s) of Law:
  • Arbitration

Clark v. Oregon

A petitioner for post-conviction relief must prove prejudice either under Cuyler v. Sullivan, or Oregon Rules of Professional Conduct 1.7(a)(2) to prove ineffective assistance of counsel.

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

DCBS v. Muliro

An injured worker seeking supplemental disability has the burden of satisfying the requirements of ORS 656.210(2)(b); when the worker does not provide the necessary information, the entity responsible for processing the claim is not obligated to independently seek that information out.

Area(s) of Law:
  • Insurance Law

Entrepreneurs Foundation v. Employment Dept.

An “ALJ may have an obligation to assist a litigant in following up on potentially favorable lines of factual inquiry, [but] that duty does not remove a party's obligation to raise issues for preservation purposes.”

Area(s) of Law:
  • Administrative Law

Goodwin v. Kingsmen Plastering, Inc.

For injury to an interest in real property, the six-year statute of limitations in ORS 12.080(3) governs, and accrues upon the discovery of a claim.

Area(s) of Law:
  • Civil Procedure

Kroetch v. Employment Dept.

Where the Employment Appeals Board decision fails to explain a credibility determination for whether there is good cause for a late filing it is without substantial reason.

Area(s) of Law:
  • Administrative Law

State v. Blaylock

Evidence of prior bad acts is admissible to prove lack of mistake when a defendant claims self defense under OEC 404(3).

Area(s) of Law:
  • Evidence

State v. Digesti

Under ORS 163.305(2), which defines forcible compulsion necessary for first-degree sexual assault, the compulsive physical force exhibited against the victim need not be applied directly to the physical body but need only be sufficient to compel the victim to submit to the sexual conduct.

Area(s) of Law:
  • Criminal Law

State v. Ghim

An individual has no protected privacy interest in business records held by a third-party service provider

Area(s) of Law:
  • Constitutional Law

State v. Lomchanthala

A defendant is not entitled to a jury instruction defining a “voluntary act” unless some evidence has been presented that would show his acts were involuntary.

Area(s) of Law:
  • Criminal Procedure

State v. Olendorff

After an arrest, if a request by arrestee is made to hand over personal belongings to another person and no exception pursuant to an arrest warrant exists at the time of the arrest, then the officer is to release said personal belongings to the other person as requested.

Area(s) of Law:
  • Criminal Procedure

Brown v. Guard Publishing Co.

Under ORS 192.410, a public records request is only exempt from disclosure when there is enough specificity about the contents of the contract to determine whether all of the information within it was exempt from disclosure; it does not protect other material in the contract that may be reasonably severed from the exempt material.

Area(s) of Law:
  • Civil Law

Colombia Riverkeeper v. Clatsop County

The County Board denying an application, after LUBA issued a final action approving an application based on the board’s prior approval, cannot be “for the purposes of avoiding the requirements of ORS 215.427.” As that was not the case, ORS 197.835(10)(a)(B) did not require LUBA to reinstate the board's original decision.

Area(s) of Law:
  • Land Use

S.L.L. v. MacDonald

While a conditional threat alone is not sufficient to satisfy the immediacy element for granting a stalking protective order (SPO), the context of the threat and other evidence can sufficiently establish an immediate threat for a court to grant an SPO.

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

State v. Harrison

When a claimed “plain error” is associated with a trial court not having sua sponte interrupted a line of questioning, the existence of any error does not depend solely on whether the lawyer’s questions or the elicited answers would have been inadmissible if they had been objected to.

Area(s) of Law:
  • Appellate Procedure

State v. Nelson

Under ORS 166.023(1), a defendant who responds to a friend’s social network account about an emergency at a school is not considered to have initiated or circulated a report. Also, such behavior does not qualify as having knowingly done so.

Area(s) of Law:
  • Criminal Law

State v. S.R.

When petitioning for civil commitment as a result of mental illness, the state is not obligated to wait until a person is on the threshold of dying to petition for said commitment, but still needs to show that the person is so unable to care for their basic needs as a result of a mental disorder that they are “at risk of death in the near future.”

Area(s) of Law:
  • Civil Commitment

State v. Traylor

Under ORS 137.123(5)(a) the fact that defendant was more destructive of property than he needed to be in the manner in which he conducted the burglary permits the inference that defendant was willing to commit the separate offense of criminal mischief in addition to the offense of burglary.

Area(s) of Law:
  • Criminal Law

Copeland Sand & Gravel, Inc. v. Estate of Angeline Dillard

Where there is a dispute over the meaning of a mineral reservation contained in a deed, the term must be analyzed using the three Yogman factors.

Area(s) of Law:
  • Contract Law

Dept. of Human Services v. L.C.

To have continued jurisdiction over a child there needs to be current threat of danger or serious loss of injury that is based in facts, and not speculation. The factual basis “cannot be based on a parent's past problems, absent evidence that the problems persist and endanger the child.”

Area(s) of Law:
  • Family Law

Hall v. Speer

Application for benefits, coupled with a doctor’s report and correspondence with an insurer, are not sufficient “proof of loss” to require the payment of attorney fees.

Area(s) of Law:
  • Attorney Fees

Intel Corp. v. Batchler

Under ORS 656.268(10) and ORS 656.340(12), with each accepted claim for a work-compensable injury, an injured worker must be compensated for a minimum of 16 months, and may also be compensated for a maximum of 21 months with agreement from a self-insured employer.

Area(s) of Law:
  • Workers Compensation

McDonald v. MacDonald

When an attorney fee agreement includes language that allows for a court to determine particular statutory factors in determining attorney legal fees, an appeal arising from an issue with an adverse ruling by the court in regards to those legal fees will not be considered to have been preserved.

Area(s) of Law:
  • Attorney Fees

P.M.H. v. Landolt

To satisfy ORS 30.866, it is not sufficient to prove that someone is in reasonable objective apprehension of their or their family’s personal safety when someone sends letters or gifts to a child through third parties at their school.

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

Simonsen v. Premo

Advice to plead guilty in a capital case without first securing a guarantee that the State will not seek the death penalty is not categorically inadequate assistance of counsel.

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

State v. Bigsby

Under ORS 138.040, a judgment is not appealable where the trial court had already accepted an unqualified, written guilty plea and the parties did not make an effort to withdraw the unqualified plea and try the disputed issue.

Area(s) of Law:
  • Appellate Procedure

State v. Blasingame

On appeal, a court has the discretion to recognize challenges that were neither raised nor preserved at trial, but this discretion should only be exercised cautiously.

Area(s) of Law:
  • Appellate Procedure

State v. Clemons

There are three factors to determine causal connection in considering evidence tainted under the fourth amendment: the temporal proximity between unlawful police conduct and the discovery of the evidence; the presence of intervening circumstances, and "particularly, the purpose and flagrancy of the official misconduct."

Area(s) of Law:
  • Criminal Procedure

State v. Cook

An erroneous attorney fee award is not reversible if the error is unpreserved for appeal, not plain on the face of the record, and invited by the appellant.

Area(s) of Law:
  • Attorney Fees

State v. Crombie

Defendant may not address the victim of a FAPA order in a pleading, which may include some statements addressed to the court if it is clear they were intended for the victim.

Area(s) of Law:
  • Family Abuse Prevention Act

State v. Evans

Burglary is accomplished if a person enters or remains unlawfully, in a dwelling, with the intent to commit a crime therein.

Area(s) of Law:
  • Criminal Law

State v. Kreiss

The 2005 amendments to ORS 137.106 awards "economic damages" as set out in ORS 31.170(2)(a), meaning “objectively verifiable monetary loss”, and not just those that would have been awarded in a civil action.

Area(s) of Law:
  • Remedies

STATE v. LILE

The right to counsel under Article 1, section 11 of the Oregon Constitution includes the right to privacy when communicating with an attorney through the attorney’s representative.

Area(s) of Law:
  • Criminal Procedure

State v. Mejia-Espinoza

A court cannot impose fees based on pure speculation that a defendant has funds to pay the fees or may acquire them in the future. The State bears the burden of proving that the defendant is or may be able to pay attorney fees.

Area(s) of Law:
  • Attorney Fees

State v. R. L. W.

Pursuant to ORS 427.290, the State must prove, by clear and convincing evidence, that a person has an intellectual disability so that he is incapable of caring for himself or is a danger to himself or to others.

Area(s) of Law:
  • Civil Commitment

US Bank NA v. Eckert

The Oregon Trust Deed Act, ORS 86.803 contemplates post-sale challenges to trustees’ sale in forcible entry and wrongful detainer actions, and Oregon Courts have recognized the validity of post-sale challenges.

Area(s) of Law:
  • Property Law

Walton v. Board of Parole and Post-Prison Supervision

Judicial review of a "murder review" conducted by the Board of Parole and Post Prison Supervision is moot when the judicial review would have no practical effect on an inmate's release date.

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

Dept. of Human Services v. A.F.

In a juvenile court jurisdictional hearing, the conditions and circumstances that give rise to jurisdiction over the children must exist at the time of the hearing.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. E. M.

Juvenile court has the authority to postpone a hearing or make other procedural accommodations to protect the parent’s right to participate when a parent is unable to or prevented from personally appearing due to parent’s incarceration, physical condition, mental illness, or need to be in another courthouse at the same time as the parent’s scheduled hearing.

Area(s) of Law:
  • Juvenile Law

Hall v. Dept. of Corrections

Judicial review of an administrative rule is limited to its challenge on the face of the rule and not “as applied.”

Area(s) of Law:
  • Administrative Law

Sawyer v. Real Estate Agency

A license may be revoked and discipline assigned under ORS 696.775 and 696.301 even if the license has expired, so long as revocation of the license that existed at the time the Notice was issued as an appropriate sanction and is within the Real Estate Agency's discretion.

Area(s) of Law:
  • Administrative Law

Scott v. Liberty Northwest Ins. Corp.

An authorization of temporary disability benefits is legally sufficient under ORS 656.262(4) when an objectively reasonable insurer would understand contemporaneous medical reports to signify approval excusing the worker from work.

Area(s) of Law:
  • Administrative Law

Sexton v. Persson

To determine whether a sentence is constitutionally proportional under Article I, section 16, of the Oregon Constitution, a court should consider the actual sentence imposed for the offense with the maximum sentence allowed for the greater-included offense.

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

State, acting by and through the Oregon Health Authority v. Cue

The time limitations to bring a claim under ORS 115.005 are waived when the representative of an estate fails to satisfy the notice condition of ORS 115.005(3)(b).

Area(s) of Law:
  • Civil Procedure

State v. Buckles

Under ORS 138.050(1), except as otherwise provided in ORS 135.335, concerning conditional pleas, a defendant who has plead guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition: (a) exceeds the maximum allowable by law; or (b) is constitutionally cruel and unusual.

Area(s) of Law:
  • Appellate Procedure

State v. Camacho-Garcia

Under Article I, section 16, of the Oregon Constitution, a defendant’s sentence of 75 months under ORS 137.700(2)(a)(P) for repeated, skin-to-skin sexual touching of his live-in girlfriend’s daughter under 14 years of age was not disproportionate, evaluated using the three Rodriguez/Buck factors to find the sentence would not shock the moral sense of a reasonable person.

Area(s) of Law:
  • Sentencing

State v. Jackson

Evidence obtained pursuant to an unlawful search should be inadmissible - even if said evidence is acquired from a consented search that resulted from unlawful search.

Area(s) of Law:
  • Criminal Procedure

State v. Menefee

In order to waive the right to counsel, a defendant must express clear intent to do so, under the specific circumstances of the particular case. However, when someone chooses to represent themselves and they are thrown out of court for being disruptive, the defendant has not automatically waived their overall right to representation.

Area(s) of Law:
  • Criminal Procedure

State v. Nunes

A single criminal episode of possession during which a defendant felon has continuous actual or constructive possession of a firearm is not subject to the ORS 161.067 "anti-merger statute."

Area(s) of Law:
  • Criminal Procedure

State v. Paniagua

Under OEC 608(1), a defense witness may not offer character testimony if that witness has insufficient contact with the individual against whom the testimony is directed.

Area(s) of Law:
  • Evidence

State v. Rodriguez-Rodriguez

An indictment can be sustained even if an essential element or fact was communicated only by implication or context.

Area(s) of Law:
  • Criminal Procedure

State v. Rudnick

It is a plain error to expose a defendant to six months of additional supervision; if such an error can be easily remedied, the Court may exercise its discretion to correct it.

Area(s) of Law:
  • Sentencing

State v. Urie

Under ORS 813.011(3), a 90-day jail sentence must be imposed upon conviction of a Class C felony and a court does not have authority to reduce or suspend this sentence in any way.

Area(s) of Law:
  • Sentencing

State v. Wendt

When a defendant has not suffered prejudice, and delays in trial are the result of good faith, or factors outside of the parties' control, then a defendant's state and federal constitutional right to speedy trial is not violated.

Area(s) of Law:
  • Constitutional Law

Sunset Presbyterian Church v. Anderson Construction Co.

ORS 30.140 only requires a subcontractor to defend a general contractor to the extent that plaintiff's allegations implicate the subcontractor's work; and similarly plaintiff's petition for attorney’s fees must divide attorney’s fees between allegations or claims.

Area(s) of Law:
  • Civil Procedure

Thompson v. Belleque

Claims of constitutionally deficient representation must be supported by specific facts in the record not only showing representation was deficient, but also that it tended to affect the outcome of the trial.

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

Waterwatch of Oregon, Inc. v. Water Resources Dept.

Under ORS 537.230(2)(c), the Water Resources Department must find that undeveloped portions of permits are subject to conditions that preserve from decline the continued existence, or endurance, of listed fish species in the affected waterway.

Area(s) of Law:
  • Environmental Law

Williams v. Gaylord

Under ORS 31.735(1), attorneys may recover a 40% statutory share of damages, regardless of whether there is additional recovery.

Area(s) of Law:
  • Attorney Fees

Wyers v. American Medical Response Northwest, Inc.

ORS 124.100(5) requires that the defendant know of the existence of the requisite circumstance at the time of the alleged "permitting." An action is deemed permitted when the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical abuse.

Area(s) of Law:
  • Tort Law

Yeatts v. Polygon Northwest Company

For a general contractor to be liable for the negligence of a subcontractor under Oregon's Employer Liability law, they must be engaged in a "common enterprise".

Area(s) of Law:
  • Tort Law