Oregon Court of Appeals

2015

January 26 summaries

Baker v. Premo

Trial counsel agreeing to change the terms of a plea agreement in such a way that increases the total sentence is not enough to prove constitutionally inadequate assistance of counsel if the sentencing court would have imposed the same sentence.

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

Dept. of Human Services v. A.L.

Under ORS 419B.100(1)(c), parents entrusting the primary care of their children with paternal grandparents who do not pose a current threat is not a basis for asserting jurisdiction over children.

Area(s) of Law:
  • Juvenile Law

State v. Baiz

When a car is parked, immobile, and unoccupied at the time of a police encounter, then the car is not “mobile”, as required by the automobile exception to the warrant requirement for a police search.

Area(s) of Law:
  • Criminal Procedure

State v. Gibson

Probable cause has two aspects: the officer must subjectively believe that a crime has been committed, and that belief must be objectively reasonable under the totality of the circumstances. The facts that determine whether there is objective probable cause are the facts known by the arresting officer at the time of the arrest.

Area(s) of Law:
  • Criminal Procedure

State v. Kirkland

A trial court may conduct additional fact-finding relevant to the amount of a restitution during the sentencing phase of trial. However, a defendant can only be required to pay restitution for conduct which he was convicted of or admitted to doing.

Area(s) of Law:
  • Remedies

Wade v. Brockamp

Failure of counsel to object to a faulty jury instruction may prejudice defendant and suffice to prove ineffective assistance of counsel.

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

State v. Ross Bros. & Co., Inc.

When a party does not file an amended answer to an amended complaint, and fails to raise substantive legal arguments at trial, then they have not preserved those substantive legal arguments for appeal.

Area(s) of Law:
  • Appellate Procedure

Neidhart v. Page

Notwithstanding any acceptance of partial payment, even if the right to terminate tenancy is waived based on nonpayment of rent a subsequent default gives new ground to terminate the tenancy.

Area(s) of Law:
  • Landlord Tenant

Smith v. Board of Parole

Neither due process nor Oregon's APA require parole consideration hearings under ORS 144.228 to allow subpoenas for witnesses at the hearing.

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

Smith v. Mills

There is no Oregon statutory entitlement (under ORS 144.315, ORS 183.413, and ORS 183.445), or Constitutional entitlement (under Oregon Constitution Article 1, section 10, or the 14th Amendment of the US Constitution) to subpoena witnesses for parole consideration hearings.

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

State ex rel Stewart v. City of Salem

Under ORS 34.210(2), a trial court has discretion to award attorney fees to a “prevailing party” and may consider the entirety of the circumstances of the litigation when determining whether to award attorney fees on remand. Additionally, the trial court has discretion to determine the reasonableness of a party’s legal position under ORS 20.075(1)(b) and may consider the totality of the circumstances of litigation under ORS 20.075(1)(e) prior to awarding attorney fees on remand.

Area(s) of Law:
  • Attorney Fees

State v. Baucum

OEC 702, and State v. O’Key require that scientific evidence presented by an expert be generally accepted, peer reviewed, with an acceptable error rate and variability, and retrograde extrapolation satisfies all of these requirements.

Area(s) of Law:
  • Evidence

State v. Heilman

Under Article I, sec. 9, of the Oregon Constitution, facts as perceived by an officer that do not constitute a violation of the law do not give rise to probable cause.

Area(s) of Law:
  • Criminal Procedure

State v. J. C. N.-V.

Under 419C.349(3), a juvenile defendant may be waived into circuit court and tried as an adult when the defendant is aware of the nature, degree of participation, and consequences of the alleged criminal act.

Area(s) of Law:
  • Juvenile Law

State v. Lee

Based on the text, context, and legislative history of the term "tampering," for the purposes of ORS 164.345(1), to "tamper" requires conduct that alters, rearranges, or changes property in a way that has an adverse effect on the property or its use.

Area(s) of Law:
  • Criminal Procedure

State v. Nistler

Under ORS 131.125(8), the statute of limitations for aggravated first-degree theft is three years, unless a theory of continuing criminal action is set forth in the indictment, which may toll the statute of limitations.

Area(s) of Law:
  • Criminal Law

State v. Slatton

ORS 164.055(1)(a) and (d) are not separate statutory provisions for the purposes of merging convictions.

Area(s) of Law:
  • Criminal Law

State v. Sundberg

Under OEC 401, an explanation as to why an alleged victim may have described her anatomy inconsistently is relevant explain her testimony.

Area(s) of Law:
  • Evidence

State v. T.C.

For a court to grant conditional release from an involuntary-commitment order, that the committed person must prove that the conditional release would be in their best interest, and that they would be adequately supervised by an able caretaker.

Area(s) of Law:
  • Civil Commitment

State v. Urbaschak

Erroneously admitted evidence that is not cumulative and relates to a central disputed issue is not harmless error.

Area(s) of Law:
  • Appellate Procedure

Vukanovich v. Kine

In regards to a Judgment Not Withstanding the Verdict, the Court will look to see if there is any evidence to support the jury’s verdict. If there is, the JNOV will not be sustained.

Area(s) of Law:
  • Civil Procedure

Davis and Davis

Under ORS 107.105, if the property at issue is a personal injury settlement, the equal contribution presumption is overcome when the injured spouse can prove that the other spouse did not have a part in the settlement and failed to claim damages for consortium.

Area(s) of Law:
  • Family Law

Dowell v. Oregon Mutual Ins. Co.

Under ORS 742.524(1)(a), personal injury protection (PIP) medical benefits do not include a covered individual’s transportation costs incurred when attending medical appointments or obtaining medication.

Area(s) of Law:
  • Insurance Law

State v. J.M.M.

Mere presence during the planning and commission of a crime, or acquiescence alone, is insufficient to find a defendant guilty of aiding and abetting a crime under ORS 161.155(2)(b).

Area(s) of Law:
  • Criminal Law

State v. Velykoretskykh

Notice of suspension, like a return of service, was not testimonial.

Area(s) of Law:
  • Evidence

State v. Young

Even if the officer-safety exception justifies initial seizure, once passengers are seated on the curb and backup has arrived, there’s no plausible reason why safety concerns would require reentry to the vehicle or removal of property.

Area(s) of Law:
  • Criminal Procedure

February 45 summaries

Arms v. SAIF

To properly analyze a claim, the court must first determine whether a claimant has a compensable injury and whether he sought medical services for a condition that was “caused in material part by” that injury. If it was, the court is to consider whether any of the limitations identified in ORS 656.245(1)(a) apply — namely, the limitations set out in ORS 656.225 and the limitations for consequential or combined conditions.

Area(s) of Law:
  • Workers Compensation

Cox v. Howton

In order for a post-conviction court to grant relief due to inadequate counsel, it must be shown that the attorney’s error was the but-for cause of the client’s decision.

Area(s) of Law:
  • Criminal Procedure

Deardorff v. Farnsworth

Estoppel cannot be used to negate an express exclusion in an insurance policy, unless it is through interpretation of an ambiguous provision.

Area(s) of Law:
  • Insurance Law

Lake Oswego Preservation Society v. City of Lake Oswego

Under ORS 197.772(3), a successor in interest to property imposed with a historic designation may remove that designation, even if the particular owner was not the owner at the time of the designation. LUBA has jurisdiction to hear appeals regarding removal of historic designations.

Area(s) of Law:
  • Land Use

Real v. Nooth

In determining whether a sentence is disproportionate under Article I, section 16, of the Oregon Constitution, the Court considers three factors: a comparison of the severity of the penalty and the gravity of the crime; a comparison of the penalties imposed for other, related crimes; and the criminal history of defendant.

Area(s) of Law:
  • Criminal Law

State v. J.L.S.

Conviction under ORS 162.375 must be supported by evidence that defendant initiated a false report, rather than mere evidence that a defendant initiated a process that later resulted in that person giving false information about a true incident to police.

Area(s) of Law:
  • Juvenile Law

State v. Larson

When determining whether to set aside a conviction under ORS 137.225, a court may only consider the circumstances and behavior manifested by a criminal defendant's conduct for the 10-year period after conviction.

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

State v. Nascimento

Under ORS 164.377(4), “Without authorization” applies to a machine limited to one function, and authorization given to use such machine for that one function, which does not constitute general authorization to use the machine for other functions outside of what was indicated.

Area(s) of Law:
  • Criminal Law

State v. Nguyen

When determining whether a father has access to resources outside of his regular income, the court must make findings based on facts supported by evidence in the record and not merely on the testimony of the mother.

Area(s) of Law:
  • Family Law

State v. Reed

The proponent of scientific evidence must demonstrate that the proposed evidence is based on scientifically valid principles and that it is pertinent to the issue to which it is directed

Area(s) of Law:
  • Evidence

State v. Soto

Under ORS 138.050(1), a Defendant may not appeal an imposition of fines and fees for DUII within the statutorily allowable amount where the trial court misunderstood the law with respect to its discretion to reduce or waive some of the fees.

Area(s) of Law:
  • Criminal Law

State v. Tucker

Under ORS 137.225, the second public indecency (or similar) conviction, which amounts to a “sex crime” as defined in ORS 181.805, is ineligible to be set aside.

Area(s) of Law:
  • Criminal Law

State v. Wheeler

Under both ORS 151.505(3) and 161.665(4), a court may not order a convicted criminal defendant to pay his court-appointed attorney fees, unless the defendant can or may be able to pay them.

Area(s) of Law:
  • Sentencing

Washington v. Board of Parole

Under the parole matrix system, the Board of Parole and Post-Prison Supervision has statutory authority to determine whether those prison terms would be served consecutively or concurrently, and may revisit or recalculate earlier opinions.

Area(s) of Law:
  • Sentencing

5 Star, Inc. v. Atlantic Casualty Ins. Co.

Under ORS 701.105(2003), in order to show unlawful contract reformation, a plaintiff must show that a new insurer agreed to the terms of a former insurance policy to be bound by that former policy. To prove negligent procurement of insurance, a plaintiff must show that defendant insurance agent was an agent of the particular insurer under ORS 744.078(4).

Area(s) of Law:
  • Insurance Law

In the Matter of the Marriage of Morgan and Morgan

OAR 137-050-0715(7)(b)(2012) states that in making a child support determination, a parent with a "verified disability" will have their income calculated as their actual income rather than their "presumed" income.

Area(s) of Law:
  • Family Law

Johnson v. Jones

The intent requirement to incur liability for a battery claim is met when a defendant transmits a sexually transmitted infection which they are aware of, but do not disclose their diagnosis to their sexual partner.

Area(s) of Law:
  • Tort Law

Leonard v. Moran Foods

On review of a grant of summary judgment, the court's review is limited to the record that exists at the time of the court's ruling on the motions for summary judgment.

Area(s) of Law:
  • Civil Procedure

State of Oregon v. Marsh & McLennan Companies, Inc.

ORS 59.135 does not possess a rebuttable presumption component concerning fraud in reliance, nor is there a federal preemption problem concerning the dormant Commerce Clause because Oregon law does not require those elements as proof.

Area(s) of Law:
  • Constitutional Law

State v. Antoine

As long as the State’s election of criminal acts it was prosecuting at trial does not introduce a new theory, element, or crime it is permissible.

Area(s) of Law:
  • Criminal Procedure

State v. Islam

Awarding restitution for stolen property is adequate when the theft occurs in retail space.

Area(s) of Law:
  • Criminal Law

State v. Mercer

The rule for initiative measures requires that a proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith.

Area(s) of Law:
  • Criminal Procedure

State v. Starr

Admissible hearsay statements do not violate the state constitution’s Confrontation Clause if the declarant is available and the statements have adequate indicia of reliability.

Area(s) of Law:
  • Evidence

State v. Tegland

Where erecting a structure in a public space is illegal and the person has been so informed and told that the structure must be removed, there is no reasonable expectation of privacy associated with the space.

Area(s) of Law:
  • Criminal Procedure

Steel Capital Steel, LLC v. Williams

Under ORCP 26 A, a court must allow a reasonable time for the substitution of a real party in interest once the objection has been raised. The denial of an ORCP 71 B motion may not be considered on appeal unless a new or amended notice of appeal is filed, where a party received a general judgment, filed an ORCP 71 B motion for relief, filed a notice of appeal of the general judgment, and the ORCP 71 B motion was denied.

Area(s) of Law:
  • Civil Procedure

Taylor v. Portland Adventist Medical Center

ORS 19.250(2) does not apply where a trial court judge determines to let a subsequent trial proceed following a mistrial in the same matter. The trial court judge is not making a judgment nor does the trial court's order “'effectively determine[] the action so as to prevent a judgment in the action.' It merely allows for another trial,” thus making a denial to a motion for dismissal unappealable.

Area(s) of Law:
  • Appellate Procedure

Zielinski v. State of Oregon

There is a rebuttable presumption that the elements of the doctrine of laches have been sufficiently proven, and therefore apply, when an analogous statute of limitations for an action at law has been exceeded.

Area(s) of Law:
  • Civil Procedure

A.M.M. v. Hoeffer

A Petitioner to meet the burden of proof for a permanent stalking protective order (SPO), petitioner must tie their fear and alarm to an apprehension regarding personal safety.

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

Lenn v. Baldwin

Jury instructions which are correct statements of law and not likely to create an erroneous impression in the minds of jurors are not grounds to remand.

Area(s) of Law:
  • Appellate Procedure

Oakleigh-McClure Neighbors v. City of Eugene

Notice of intent to appeal is effectively filed, for purposes of determining the timeliness of a motion to intervene under ORS 197.830(7) by a person required under OAR 661-010-0015(2) to be served with the notice, on the date of that service.

Area(s) of Law:
  • Land Use

State v. Korth

To show that a criminal defendant had knowledge, the evidence must show beyond a reasonable doubt that he had knowledge of the particular crime for which he is charged.

Area(s) of Law:
  • Criminal Procedure

State v. Kuschnick

Even if officers lawfully extended a stop to investigate the passenger’s involvement in another crime, once that investigation end and the officers are prepared to give defendant his citation, the officers violated Article I, section 9, when they do not issue the citation and instead continued to seize defendant without justification.

Area(s) of Law:
  • Constitutional Law

State v. Patterson

When a court revokes probation on a felony conviction the court is not imposing sentencing on the original conviction, but rather is it sanctioning the defendant for having violated the condition of his or her probation.

Area(s) of Law:
  • Sentencing

Hagberg v. Coursey

To prove ineffective assistance of counsel, a criminal defendant must show that counsel failed to bring an argument based on law that existed at the time of trial, and it is not sufficient to show that the argument would later be deemed meritorious.

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

Hickey v. Hickey

The historical statutory context of ORS 60.952 is that it was enacted to reflect judicial practice and that practice has been to avoid penalizing controlling shareholders’ ownership interests in a manner that significantly departing from what was required to relieve minority shareholders from the oppressive conduct; and also to avoid increasing any value or benefit from a minority shareholders’ interest beyond what minority shareholders could reasonably expect or the fair value of the shares.

Area(s) of Law:
  • Corporations

Hostetler and Hostetler

ORS 107.105(1)(f) establishes a rebuttable presumption that spouses have contributed equally to marital property and asks the court to make just and proper property divisions in light of that presumption. ORCP 68 (C)(4)(g) states that a trial court is required to make attorney fee award findings only when a party makes a written request for them.

Area(s) of Law:
  • Family Law

Htaike v. Sein

If there is no statutory basis to bring an action to recover usurious interests paid, equitable relief may be available.

Area(s) of Law:
  • Civil Procedure

JRP Construction Enterprises, Inc. v. Department of Consumer Business Services

Director's dismissal of ALJ decision for attorneys’ fees concerning litigating the insurance pre-authorization under ORS 656.704(2)(a) was improper because the use of moot was ambiguous in this context and the issue concerning attorney’s fees must be reconsidered.

Area(s) of Law:
  • Workers Compensation

Providence Health System v. Walker

Whether a board's action is reasonable depends on the underlying facts and, based on those facts, whether the conclusion the board made constitutes an error of law.

Area(s) of Law:
  • Workers Compensation

State v. Beck

A trial court does not err when it denies a motion to suppress if the then admitted statements are harmless.

Area(s) of Law:
  • Criminal Procedure

State v. Chandler

Arguments not preserved in the trial court, and not accompanied by a request for plain-error review, will not be considered for the first time on appeal.

Area(s) of Law:
  • Appellate Procedure

State v. English

A person who is aware of, and consciously disregards, a substantial and unjustifiable risk that an injury will occur acts recklessly, not knowingly.

Area(s) of Law:
  • Criminal Law

State v. Hernandez

Evidence as to whether a witness has a personal interest in a case is relevant, and failure to admit such evidence may not be harmless error if the jury is not fully informed of the facts necessary to assess the credibility of that witness.

Area(s) of Law:
  • Evidence

Stoeckert v. Nooth

Under ORS 138.580 and Ogle v. Nooth, 355 Or. 570 (2014), in order to receive a hearing, a petitioner for post-conviction relief need only show prima facie evidence “sufficient to submit the case to the factfinder” that, if true, would permit the court to rule in favor of the petitioner.

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

WSB Investment, LLC v. Pronghorn Development Company, LLC

Under ORS 65.369(1), gross negligence or intentional misconduct must be shown to hold a defendant nonprofit director liable for any breach of fiduciary duty under ORS 65.357(1). Summary judgment may be avoided in cases where breach of the statutory duty of loyalty is shown by a violation of duties contained in the declaration and bylaws of a homeowners association.

Area(s) of Law:
  • Corporations

March 49 summaries

Dept. of Human Services v. T.L.

To preserve a claim of inadequate assistance of appointed trial counsel, a parent in a dependency proceeding must first seek to resolve that issue in the juvenile court by moving, under ORS 410B.923(1), for the court to modify or set aside the judgment or order related to the claim.

Area(s) of Law:
  • Civil Procedure

Miller v. Miller

If all factors are equal and without a factual showing of detriment to the child, preference under ORS 107.137 must be given to the primary caregiver.

Area(s) of Law:
  • Family Law

State v. Eastman

To "reasonably suspect," an officer must subjectively believe that the person being stopped has committed a crime, and that belief must be objectively reasonable.

Area(s) of Law:
  • Criminal Procedure

State v. Hazlett

An expert witness who is a pharmacologist and an anesthesiologist is qualified to testify in regards to a defendant's ability to form criminal intent. A contradictory trial court determination on that issue would not prove to be harmless error for charges that require the state to prove that the defendant acted knowingly or intentionally.

Area(s) of Law:
  • Criminal Law

State v. Hiner

When proving a sex offender failed to report, under former ORS 181.599(1)(d), the state must prove that a sex offender both left a previous residence and completed a move into a new residence while failing to comply with reporting requirements. The 2009 amendment to this statute (currently numbered ORS 181.812(1)(d)) requires the state to prove only that the sex offender moved from a previous residence and failed to comply with reporting requirements.

Area(s) of Law:
  • Criminal Law

State v. Johnson

The Court of Appeals lacks jurisdiction when a defendant plead guilty, and the trial court's sentence does not exceed the maximum sentence allowable by law.

Area(s) of Law:
  • Appellate Procedure

State v. Lunetta

When the evidence has a tendency to connect defendant to the charged crimes independent of any accomplice testimony, the accomplice testimony is corroborated.

Area(s) of Law:
  • Evidence

State v. Nichols

A court can look to the cumulative “specific and articulable facts” as set out in State v. Holdorf where even if the individual “specific and articulable facts” in and of themselves are not to a level of reasonable suspicion, if under the totality of the circumstances the facts indicate a level of reasonable suspicion, then there is sufficient reasonable suspicion for an investigatory stop.

Area(s) of Law:
  • Criminal Procedure

Toohey v. Aviation Adventures, LLC

The purpose of ORS 656.027 is to identify "subject workers" whose work-related injuries are covered by Oregon's Workers' Compensation Law, not to identify coworkers who can be sued despite the exclusive-remedy provisions in ORS 656.018. "Subject worker" is direct at types of workers who are eligible for benefits under a parallel federal statutory compensation scheme for work-related injuries.

Area(s) of Law:
  • Workers Compensation

West v. Multnomah Cnty.

Under the template test, a dwelling must continue to exist, as a dwelling, at the time the test is applied; to be considered a dwelling, the structure must have the functional necessities that make use as a dwelling possible.

Area(s) of Law:
  • Land Use

Godinez v. SAIF

An agency is entitled to deference when it makes a plausible interpretation of its own rule, even when the interpretation is made in the course of applying the rule, so long as it is not inconsistent with the wording of the rule or other source law.

Area(s) of Law:
  • Administrative Law

Magno-Humphries, Inc. v. Apex Label & Systems, Inc.

No matter claimed as error will be considered on appeal unless the claim of error is assigned as error in the opening brief in accordance with ORAP 5.45(1). To assign error, the appellant must "identify precisely the ruling that is being challenged." The challenged ruling should be quoted or contained in the excerpt of record.

Area(s) of Law:
  • Appellate Procedure

State v. Davis

OEC 412 is intended to protect victims of sexual abuse from having “degrading or embarrassing disclosure of intimate details about [their] private lives” and the prejudicial effect of such details will be weighed against the probative value of the proffered evidence.

Area(s) of Law:
  • Evidence

State v. Hodges

Under ORS 165.800(1), the state must prove Defendant obtained, transferred, created, uttered or converted to his own use the personal identification of another person with the intent to deceive or defraud, and may use circumstantial evidence and reasonable inference to do so.

Area(s) of Law:
  • Criminal Law

State v. Swinney

An officer's expert testimony regarding sexual grooming and abuse is relevant under OEC 401, admissible under OEC 702, and does not constitute an impermissible comment for a victim's credibility.

Area(s) of Law:
  • Evidence

Sundermier v. State

ORS 238.364 provides a remedy meant to approximate a rebate of income tax paid, and not a windfall in excess of what a member would have received if the benefit had been tax exempt.

Area(s) of Law:
  • Remedies

Becker v. Hoodoo Ski Bowl Developers, Inc.

Release of liability provisions may render contracts unconscionable where the factors, outlined in Bagley v. Mt. Bachelor, Inc., (favoring enforcement of the release) are outweighed by relevant countervailing considerations.

Area(s) of Law:
  • Contract Law

Dept. of Human Services v. D.H.

Evidence is insufficient to support a grant of jurisdiction to the juvenile court when there is no evidence that a child has been harmed, or was at risk of harm.

Area(s) of Law:
  • Evidence

Fick v. Oregon Dept. of Fish and Wildlife

An agency is not required to act in a manner directly inconsistent with the purpose of its rules in furtherance of lessening the economic impact of the rules on small businesses, and does not violate ORS 183.540 by declining to do so.

Area(s) of Law:
  • Administrative Law

Johnson v. Premo

To prevail on a claim of inadequate assistance of counsel, a petitioner must prove by a preponderance of the evidence that legal counsel failed to exercise reasonable professional skill and judgment based on the law at the time counsel acted and that deficient performance had a tendency to affect the outcome of the prosecution.

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

State of Oregon v. D.C. (a youth)

Based on victim testimony, furtive movements by Defendant to distance himself from stolen property, and Defendant's consent to search the bag, there was a reasonable basis established for probable cause to search a backpack.

Area(s) of Law:
  • Criminal Procedure

State v. Andersen

The automobile exception to the warrant requirement of the Oregon Constitution, Article I, Section 9, requires that the officer executing the search must have witnessed the vehicle in motion in connection with the crime.

Area(s) of Law:
  • Civil Procedure

State v. Bassett

A sentence of bench probation which restricts a defendant's right to travel anywhere a person night be engaged in hunting is impermissibly overbroad.

Area(s) of Law:
  • Sentencing

State v. Mays

In order to find a prosecutor engaged in prosecutorial misconduct, the requisite scienter must be shown; specifically, the facts must show the prosecutor intended to cause a mistrial or reversal, or was indifferent to the possibility.

Area(s) of Law:
  • Criminal Procedure

State v. McMullin

ORS 136.420 is not violated by out-of-court statements as long as the defendant’s state confrontational rights are met. Further, a law dealing with multiple subjects satisfies Article IV of the Oregon Constitution if it contains a “unifying principle logically connecting all provisions.”

Area(s) of Law:
  • Criminal Procedure

State v. Patterson

Custody imposed as a result of a post-prison supervision violation after incarceration for a sentence that has been served is not escape from custody imposed as a result of felony conviction.

Area(s) of Law:
  • Criminal Law

State v. Pierce

Under OEC 1002, a live camera feed, for purposes of best evidence, is more akin to a phone conversation than it is a recorded video feed.

Area(s) of Law:
  • Evidence

State v. Pusztai

Unauthorized use of a vehicle is not a prosecution for theft so a jury instruction regarding the “honest claim of right” defense is not warranted.

Area(s) of Law:
  • Criminal Law

State v. Rascon

ORS 136.420 and OEC 403 do not preclude admission of videotaped out-of-court statements or testimony where the declarant testifies and is subject to cross-examination, satisfying the requirements of Article I, section 11, of the Oregon Constitution.

Area(s) of Law:
  • Evidence

State v. Schnur

Under OEC 404(3), it is not plain error for a trial court to instruct the jury that it may use evidence of a past guilty plea when determining whether a defendant committed actus reus of the charged crime.

Area(s) of Law:
  • Evidence

State v. Simonov

A conviction under ORS 164.135(1)(a) for unauthorized use of a vehicle may only be reached if the jury finds that defendant knowingly used the vehicle without the consent of its owner.

Area(s) of Law:
  • Criminal Law

State v. Spieler

Defendant's confession in order to cooperate with police was not improper. Prosecutors closing remarks concerning defense's inability to admit evidence, as evidence of defendant’s guilt, was improper.

Area(s) of Law:
  • Criminal Procedure

State v. Stone

The fact that police question a person as a suspect in a crime does not inherently create a compelling setting for Oregon constitutional purposes.

Area(s) of Law:
  • Criminal Procedure

State v. Tilly

To establish the forcible compulsion element of first-degree sexual abuse, the State must prove the nexus between the forcible compulsion and the predicate sexual act.

Area(s) of Law:
  • Criminal Law

State v. Underhill

A defendant’s statements during a polygraph test must be made voluntarily in order to be admissible.

Area(s) of Law:
  • Evidence

State v. Valerio

“Accomplice liability is both created by and limited by ORS 161.155” in that criminal liability of an accomplice can be attached to a crime that is intended but the statute does not extend the liability to the natural and probable consequence of the intended crime.

Area(s) of Law:
  • Criminal Law

Wels v. Hippe

To establish a prescriptive easement a party must show adverse use of land, meaning that the use of the property is not subordinate to the owner, is or may be wrongful, and is open and notorious.

Area(s) of Law:
  • Property Law

Bridge City Fam. Med. Clinic v. Kent & Johnson, LLP

A term can become part of a contract even if someone does not expressly manifest assent to the specific term if the other party could reasonably have understood that term to have been accepted. Contracts can include both what has been stated and what is necessarily to be implied from what has been stated.

Area(s) of Law:
  • Contract Law

Dept. of Human Services v. C. M. K.

Patterns of drug abuse and failures to complete counseling all demonstrate a pattern that is likely to repeat itself and thus a court can find future detriment to children.

Area(s) of Law:
  • Juvenile Law

De Zafra v. Farmers Insurance Company

Under ORS 742.504, an insurer must “pay all sums that the insured . . . is legally entitled to recover . . . from the owner or operator of an uninsured vehicle because of bodily injury sustained by the insured caused by accident and arising out of the ownership, maintenance or use of an uninsured vehicle,” which does not restrict a claimant to coverage for injury caused only directly by the use of a motor vehicle.

Area(s) of Law:
  • Insurance Law

Grants Pass Imaging & Diagnostic Center v. Marchini

The term "member," as used in an LLC Operating Agreement, means only an active or current member of the LLC, not a former member.

Area(s) of Law:
  • Contract Law

SAIF v. Traner

Under ORS 656.262, when a workers' compensation claimant requests acceptance of a new or omitted medical condition, the insurer must clearly either accept or deny the claim within 60 days, or else the insurer may be required to pay the claimant's attorney fees even if no compensation or penalties are assessed.

Area(s) of Law:
  • Workers Compensation

State v. Bartlett

Where defendant's acts do not deprive a service provider of a right to payment, under ORS 164.125 there is no theft of property and therefore a robbery has not been committed.

Area(s) of Law:
  • Criminal Law

State v. Boyd

Reinitiation of interrogation by a defendant after claiming his right to an attorney constitutes voluntarily and knowingly waiving his Miranda rights.

Area(s) of Law:
  • Criminal Procedure

State v. Ferguson

Pursuant to Article I, section 9 of the Oregon Constitution, a police officer may lawfully extend a routine traffic stop if he, given the totality of the circumstances, has a reasonable suspicion of further criminal activity and if his subsequent investigations are reasonably connected to that criminal activity.

Area(s) of Law:
  • Criminal Procedure

State v. Lusareta

Though State v. Mills asserts that, under Article I, section 11, of the Oregon Constitution, a criminal defendant “has a waivable constitutional right to object to improper venue by way of a pretrial motion”, if the law at the time of trial allows for objection of venue to be raised after the trail has begun, it is permitted to be considered an allowable objection.

Area(s) of Law:
  • Criminal Law

State v. Rice

Under Article I, section 9, of the Oregon Constitution, the state has the burden of showing that the time required to acquire a warrant would have sacrificed evidence, thereby creating an exigent circumstance.

Area(s) of Law:
  • Criminal Procedure

State v. Ritz

To justify a warrantless entry into a residence under the doctrine of exigent circumstances, the state has the burden to prove that the time it would have taken to obtain a warrant would have sacrificed evidence.

Area(s) of Law:
  • Criminal Procedure

State v. Schiller-Munneman

Under State v. Davis, defendant’s right to silence is not implicated when defendant is not in custody or under compelling circumstances, and a non-response is not a statement or non-verbal conduct and therefore is not hearsay.

Area(s) of Law:
  • Evidence

April 50 summaries

Couch Investments, LLC v. Peverieri

An arbitrator does not exceed its authority under ORS 36.695(3) to order "just and appropriate" remedies when the arbitration agreement fails to lay out express award guidelines.

Area(s) of Law:
  • Arbitration

Jeld Wen, Inc. v. Cooper

Employer dismissed employees claim for workers compensation without sufficient evidence to support employers claim that the current condition of the injury could not be used as evidence to assess the original injury.

Area(s) of Law:
  • Workers Compensation

Landye Bennett Blumstein, LLP v. Jeffrey S. Mutnick, PC

A partnership agreement should be analyzed for clear language, and if ambiguous, extrinsic evidence can be employed.

Area(s) of Law:
  • Contract Law

Logan v. Logan

The trial court has discretion to determine the amount and duration of spousal support that will be just and equitable. The Court of Appeals will not disturb that discretionary determination unless there was a misapplication of law under ORS 107.105.

Area(s) of Law:
  • Family Law

Ooten v. Clackamas Cnty.

Under OAR 660-004-0018(2)(c), the word “and” is used conjunctively, meaning that all requirements of the rule would need to be satisfied to establish whether proposed amendment and zone changes would require a new exception to Statewide Planning Goals 3 & 4.

Area(s) of Law:
  • Land Use

State v. Del Real-Gavez

When the State’s argument depended on witness credibility, the jury should hear evidence of “motive to fabricate a disclosure against defendant,” by that witness.

Area(s) of Law:
  • Evidence

State v. Hunt

Under ORS 163.670(1), “permits” means “allows” or “makes possible” and does not require an authority to forbid. True vouching testimony supplants the jury’s assessment of credibility, requiring the court to sua sponte strike the testimony.

Area(s) of Law:
  • Criminal Law

State v. Kreft

Speech does not qualify as the kind of “behavior” necessary to satisfy the elements of ORS 166.025(1)(a) and the statute only encompasses acts of physical violence. Asking someone for the time is not aggressive enough to be deemed behavior that would be likely to produce the use of physical force by an objectively reasonable person under this statute.

Area(s) of Law:
  • Criminal Law

State v. Thomas

When the court allows the State to improperly admit a "vouching" statement it is harmless error if the statement may actually bolster the defense's theory of the case.

Area(s) of Law:
  • Evidence

Stave v. Bailey

When a victim satisfies the first condition under OEC 803(18a)(b) – testifying and being subject to cross-examination – whether she was “unavailable” is irrelevant to admissibility of her out-of-court statements.

Area(s) of Law:
  • Evidence

Dept. of Human Services v. E.L.G.

A no-contact order between incestuous parents in a juvenile dependency case may only prohibit sexual contact under ORS 163.525, rather than no-contact whatsoever.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. M. U. L.

State v. Geist, does not allow for inadequate assistance of counsel to be raised for the first time on appeal in this scenario because T. L. held that ORS 419B.923 provides other remedies to challenge the adequacy of dependency counsel.

Area(s) of Law:
  • Juvenile Law

Harkness v. Platten

In determining the likelihood of success in the case underlying a malpractice case: a principal (Mortgage Brokerage) is not vicariously liable for the acts of their agent for acting with apparent authority by giving financial advice and brokering hard-money loans because the principal did not take an affirmative step giving that agent the appearance of such authority solely by giving the title of "loan officer" to the agent.

Area(s) of Law:
  • Tort Law

Smith v. Providence Health and Services - Oregon

In order to survive a motion of dismissal for failure to state a claim, some semblance of a claim must be presented. A loss of chance claim fails on that notion because it cannot establish that defendant's conduct was the likely cause of plaintiff's injuries, and because Oregon does not recognize loss of chance as a cognizable theory of relief at common law.

Area(s) of Law:
  • Civil Law

State v. Driver

It is a violation of the right of a criminal defendant to have a speedy trial where the State itself delayed a trial for twenty months by not providing discovery.

Area(s) of Law:
  • Criminal Procedure

State v. Jones

In order to preserve error defendant must give the judge an opportunity to adequately explain reasoning for a ruling.

Area(s) of Law:
  • Appellate Procedure

State v. Logston

A defendant who immediately objects to the prosecutor’s argument, but whose objection is overruled, need not engage in futile efforts to obtain a curative instruction or a mistrial.

Area(s) of Law:
  • Criminal Law

State v. Luxford

Under ORS 163.275, by forcing the victim to relinquish car keys that she had a legal interest in, defendant compelled the victim to engage in conduct from which she had a legal right to abstain.

Area(s) of Law:
  • Criminal Law

State v. Pergande

It is plain error for a trial court not to strike testimony of a witness that is an explicit comment on the credibility of another witness.

Area(s) of Law:
  • Criminal Procedure

State v. Quigley

In order to prevail on an argument that evidence would have been inevitably discovered, the State must show that the officer would have sought defendant’s consent to search and that she would have consented, even without an unlawful extension of the stop.

Area(s) of Law:
  • Criminal Procedure

State v. Stewart

Under the Oregon Constitution, Article VII, section 3, an appellate court is required to affirm a conviction, even if an evidentiary error occurred, if there is little possibility that the error negatively impacted the verdict. The evidence in question needs to be weighed as to whether it is “merely cumulative” or “qualitatively different” from other evidence presented in the case that led to the conviction.

Area(s) of Law:
  • Criminal Procedure

Gonzalez v. Standard Tools and Equipment Co.

Oregon does not recognize the product line liability exception to the general rule of successor liability.

Area(s) of Law:
  • Tort Law

Smith v. Psychiatric Security Review Board

OAR 859-050-0010 was a validly adopted administrative rule under the guiding statutes ORS 183.413 and ORS 161.346 because the rule included a non-exhaustive, incomplete list of prehearing notice requirements that did not exclude other items that may be required under other statutes.

Area(s) of Law:
  • Administrative Law

State v. Dickens

To establish an affirmative defense to a charge of manufacturing marijuana under ORS 465.856(1), a defendant must provide some evidence to the three specific requirements of ORS 475.319(1). Analysis of the evidence provided is to be highly deferential to the defendant.

Area(s) of Law:
  • Evidence

State v. Larrance

Under ORS 138.083, the trial court abused its discretion when it failed to amend an entire sentence which had been determined using an erroneous understanding of the law.

Area(s) of Law:
  • Sentencing

State v. Maack

Under ORS 137.540(2), a trial court “may impose any special conditions of probation that are reasonably related to the crime of conviction” to facilitate the probationer’s rehabilitation or for public safety. A probation condition is valid as long as it restricts a probationer's behavior “to a permissible degree” as it reasonably relates to the purposes of probation, even if an alternate, narrower version of the condition could be imposed.

Area(s) of Law:
  • Criminal Law

State v. Martinez

Under ORS 137.123(5)(a), a trial court may impose consecutive sentences for attempted aggravated murder and the aggravating crime if it can be shown that the aggravating crime was not just an incidental crime but rather an indication of a defendant’s willingness to commit more than one criminal offense.

Area(s) of Law:
  • Criminal Law

State v. Streeter

Revised statute ORS 181.812(1)(d), failure of sex offender to report a new residence within 10 days, does not require the State to prove either the exact moment the 10 days lapses or the exact location of the defendant at that time, as was required under former statute ORS 181.599(1)(d).

Area(s) of Law:
  • Criminal Law

Teegarden v. State of Oregon

A settlement agreement barring a party from filing any further actions against another party does not preclude an action for intentional torts when the settlement agreement was induced with a material misrepresentation.

Area(s) of Law:
  • Contract Law

Turner v. Dept. of Transportation

Under the Oregon Tort Claims Act, the two-year statute of limitations may not begin to run until a plaintiff reasonably knows both that the governmental conduct caused harm and that the conduct was negligent or intentionally harmful. Under ORS 30.265(6)(c), governmental immunity applies only where a body or person that has responsibility or authority to exercise judgment over a public policy decision actually demonstrates that it took the action necessary to effectuate the decision, not merely weighs the costs and benefits.

Area(s) of Law:
  • Tort Law

Ajir v. Buell

Under ORS 278.215(2), a self-insured public body is obligated to provide the UM/UIM coverage according to ORS 742.500 to ORS 742.504 unless there is a signed, written election that lowers the limit.

Area(s) of Law:
  • Insurance Law

Dept. of Human Services v. J.A.M.

Under ORS 419B.504, when a parent is addicted to drugs and that drug abuse is deemed to be seriously detrimental to the child, the result of continued use of drugs (even those when prescribed by doctors if obtained by “doctor shopping”) can be enough to lead a court to conclude that the conditions will not be changed in a reasonable period of time. This is especially true when the parent is considered by professionals to be in denial of their drug addiction.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. R.S.

Under ORS 419.476(2)(a), in order to permit a child to return to a parent's home from foster care, a juvenile court must determine that a parent has made "reasonable efforts" and "sufficient progress" in creating a safe environment for the child.

Area(s) of Law:
  • Juvenile Law

Dunn v. City of Milwaukie

Under Oregon's Discovery Rule and ORS 30.275, the timeline to file a claim begins as soon as a harm is cognizable, and is not tolled to the date that the full extent of the harm is recognized.

Area(s) of Law:
  • Tort Law

Gustafson v. Board of Accountancy

Under ORS 183.650, the Board of Accountancy has the authority to modify an ALJ’s proposed order if those modifications are adequately explained.

Area(s) of Law:
  • Administrative Law

Hicks v. Central Point School District

Under ORS 279B.033, the required estimate of a potential contractor’s personnel costs is mandatory.

Area(s) of Law:
  • Municipal Law

Hinchman v. UC Market, LLC

Where a party’s theory is susceptible to proof through expert opinion evidence based on appropriate facts, a party’s offer of an ORCP 47 E affidavit is sufficient to create a genuine issue of fact to defeat summary judgment.

Area(s) of Law:
  • Civil Procedure

State v. Black

Under ORS 161.067, where one act satisfies more than one element of a single crime, a defendant’s single criminal act cannot be converted into multiple crimes.

Area(s) of Law:
  • Criminal Law

State v. Burris

Under ORS 161.067--the Anti-Merger statute, guilty verdicts do not merge if the same conduct violates two or more statutory provisions and each provision requires proof of an element the other does not.

Area(s) of Law:
  • Criminal Law

State v. Freih

Under ORS 161.200, in order for a defendant to raise the affirmative defense of "choice-of-evils" against a charge of failure to appear in court, the defendant must be under threat of imminent psychological harm on the date (or shortly after) the defendant failed to appear.

Area(s) of Law:
  • Criminal Law

State v. Ibabao

Under ORS 163.225, the asportation element of second degree kidnapping is not satisfied when the victim's movements are incidental to another crime or when moving a victim between rooms in a house, because their starting and ending locations are not qualitatively different.

Area(s) of Law:
  • Criminal Law

State v. Munoz

In a murder trial, a defendant is not prejudiced by a trial court’s failure to provide a concurrence instruction when two alternative factual ways of proving the “causes” element of the crime exist.

Area(s) of Law:
  • Criminal Procedure

State v. Norton

Article I, Section 9, of the Oregon Constitution protects individuals from incriminating evidence when the individual initiates the contact with the officer and the conversation morphs into a seizure, even when that evidence is given with consent.

Area(s) of Law:
  • Criminal Procedure

State v. Sherman

Constructive possession of a controlled substance occurs when the defendant exercises control, or has the right to exercise control, over the substance. However, merely being proximately close to the substance does not indicate constructive possession. Evidence needs to be established connecting defendant to his right to control the substance and that evidence can be circumstantial, including defendant's own statements.

Area(s) of Law:
  • Criminal Law

Gibson v. Morris

The Court of Appeals will not overturn a trial court's finding of fact regarding what a party knew or should have known unless, as a matter of law, there is only a single possible conclusion on the evidence and the trial court did not reach it.

Area(s) of Law:
  • Tort Law

Hendrickson Trucking, Inc. v. ODOT

Under OAR 137-003-0528, if an issue of fact is in dispute, ODOT must provide a hearing to determine whether good cause exists for a late petition for reassessment of road-use taxes.

Area(s) of Law:
  • Administrative Law

Murphy v. Oregon Medical Board

Petitioner was not given adequate notice of the allegations against him when the complaint failed to specify which specific part of the statute the board alleged he violated. Petitioner was prejudiced when the board based its final order on two theories not argued at the contested case hearing.

Area(s) of Law:
  • Administrative Law

State v. Clink

The protections of Article I, sec. 9 of the Oregon Constitution against unreasonable seizures can be overcome by an officer's reasonable suspicion based on the totality of the circumstances.

Area(s) of Law:
  • Criminal Procedure

State v. G. A. K.

Evidence was insufficient to support involuntary commitment where the State failed to prove by clear and convincing evidence that appellant was unable to provide for her basic needs due to a mental disorder.

Area(s) of Law:
  • Civil Commitment

State v. Heyne / Yunke

In providing a search warrant, a reasonable magistrate may believe that marijuana and marijuana-related items will be found at a defendant’s residence when the defendant lists the residence on an expired medical-marijuana card after he is pulled over and found to possess a large amount of marijuana without proof of a current medical-marijuana card.

Area(s) of Law:
  • Evidence

May 47 summaries

Bernard v. S.B., Inc.

Under ORS 653.295(1)(a)(A), a noncompetition agreement that is not presented to an employee at least two weeks prior to the start of employment is voidable, and may be enforced by a court unless a party takes steps to void the agreement.

Area(s) of Law:
  • Contract Law

DeHarpport v. W.E.J.

Under ORS 124.005 et seq., whether a defendant had probable cause to initiate a proceeding is a question for a court only if the facts are undisputed.

Area(s) of Law:
  • Civil Procedure

Dept. of Human Services v. A.S.-M.

In a hearing for the termination of parental rights, a guardian ad litem deemed to have been inappropriately appointed for a parent deprives the parent of the opportunity to be heard at a meaningful time and in a meaningful manner. This runs afoul of the Fourteenth Amendment of the US Constitution and creates a fundamentally unfair proceeding, despite any evidence tending to show the unfitness of the parent.

Area(s) of Law:
  • Juvenile Law

Eicks v. Teacher Standards and Practices Commission

Under ORS 342.175(1)(b) and OAR 584-020-0035(3)(a), an application for a school counseling and psychologist license may only be denied for “gross neglect of duty” when there is a nexus between the applicant's questioned conduct and professional responsibilities.

Area(s) of Law:
  • Administrative Law

State v. Ardizzone

Under OEC 404(3), a trial court does not abuse its discretion by admitting evidence of past criminal convictions offered to prove a criminal defendant's intent, so long as the trial court properly balances the relevance and prejudicial impact of the evidence.

Area(s) of Law:
  • Criminal Law

State v. Brock

The “automobile exception” allows an officers to conduct a warrantless search of a vehicle provided that the vehicle is (1) mobile at the time it is first encountered by police and (2) there is probable cause for the search. Probable cause to search a vehicle is based on an officer's subjective belief that evidence of the crime exists, and that belief must also be objectively reasonable under the circumstances.

Area(s) of Law:
  • Evidence

State v. Shapiro

Under ORS 164.215 and ORS 164.043, an emergency room waiting area is not considered "open to the public" if a security guard is present.

Area(s) of Law:
  • Criminal Law

State v. Williams

In determining the validity of a search warrant on appeal, a court may only consider the facts alleged in the affidavit in support of the warrant. The alleged facts must establish a probability that it is more likely than not evidence will be found at the place to be searched.

Area(s) of Law:
  • Criminal Law

Stevenson v. Board of Parole

Mastriano v. Board of Parole held that an order which denies the review or reconsideration of a previous order is not considered a final order subject to judicial review. Additionally, a petition which is substantively different, but, in effect, duplicates the request made in a previous petition that was denied, is not subject to judicial review.

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

Altenhofen and Vanden-Busch

Defendant may be held in contempt for failure to pay child support if able to afford a portion of the ordered amount but fails to pay.

Area(s) of Law:
  • Family Law

Cirina and Cirina

When dividing property in a divorce proceeding, marital debts are divided evenly between the two parties.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. R.K.

Under ORS 419B.500 and 419B.504, to terminate parental rights a court must find (1) the parent has engaged in conduct or is characterized by a condition that is seriously detrimental to the child, (2) integration of the child into the parent's care is improbable within a reasonable time, and (3) termination is in the best interests of the child. To determine a “serious condition” the court must focus on the detrimental effects of the parent’s conduct or condition and not just the seriousness of the parents conduct. It is child specific.

Area(s) of Law:
  • Family Law

English v. Liberty Northwest Ins. Corp.

Under ORS 656.005(7)(a)(A), the compensability of a consequential condition depends on its relationship to the compensable injury, which must be its major contributing cause, and not on the “accepted conditions” from the original injury.

Area(s) of Law:
  • Workers Compensation

F. C. L. v. Agustin

The Fourteenth Amendment's right to due process gives defendants protection from overly coercive statements from the trial court about the risks of giving false testimony.

Area(s) of Law:
  • Constitutional Law

Knappenberger v. Davis-Stanton

ORS 12.150 tolls the statute of limitations for defendants who cannot be served with process in state, and does not implicate the Commerce Clause when a defendant moves out of state for non-commercial reasons.

Area(s) of Law:
  • Civil Law

Madrone and Madrone

ORS 109.243 applies to unmarried same-sex couples who have a child through artificial insemination if the partner of the biological parent consented to the insemination and the couple would have chosen to marry had that choice been available to them.

Area(s) of Law:
  • Family Law

Neidhart v. Page

Defendant's petition for reconsideration was granted and resulted in the correction of a misstatement of the trial court's award. Nevertheless, Defendant's argument was rejected for being insufficiently developed for review.

Area(s) of Law:
  • Landlord Tenant

Nordbye v. BRCP/GM Ellington

In an action for declaratory relief for an owner's violation of restrictions in a declaration resulting from participation in the federal Low-Income Housing Tax Credit Program, a plaintiff's claim becomes moot where the plaintiff is no longer a qualified low-income tenant.

Area(s) of Law:
  • Civil Procedure

SAIF v. DeMarco

Under ORS 656.005(7)(a)(A), a new/omitted condition is compensable if the major contributing cause of that consequential condition is a compensable injury.

Area(s) of Law:
  • Workers Compensation

SAIF v. Durant

Under ORS 656.005(7)(a), a determination that a workplace injury is a consequential condition does not violate the Last Injurious Exposure Rule if the prior condition was determined both compensable and the major contributing cause of the current condition.

Area(s) of Law:
  • Workers Compensation

State v. Barker

Under Article I, section 9 of the Oregon Constitution, a warrantless search must be supported by probable cause, which is comprised of two components: the subjective believe of the officer that a crime was committed, and that belief must be objectively reasonable under the circumstances.

Area(s) of Law:
  • Criminal Law

State v. Combest

Police department's investigation of criminal activity on a public file sharing network not considered a "search" which would trigger a privacy interest on the behalf of a user of the network.

Area(s) of Law:
  • Criminal Law

State v. Craine

Under OEC 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than without the evidence. Curative admissibility doctrine provides that when one party offers inadmissible evidence, which is received, the opponent may then offer similar facts whose only claim to admission is that they negate or explain the prior inadmissible evidence.

Area(s) of Law:
  • Evidence

State v. Epps

Under ORS 813.011, a defendant convicted of DUII who has been previously convicted of DUII at least twice in the prior 10 years may not have a suspended or reduced sentence from the mandatory 90-day incarceration.

Area(s) of Law:
  • Sentencing

State v. Jaimes-Pineda

Under OEC 401, a trail court may exercise its discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of confusing the jury or complicating the trial. Appellate courts review a trial court’s decision to exclude evidence for abuse of discretion.

Area(s) of Law:
  • Criminal Procedure

State v. Kim

Under Article I, Section 11 of the Oregon Constitution, the right to effective counsel at a criminal trial may only be waived if the record reflects that the defendant “voluntarily and intelligently” waived his right to an attorney.

Area(s) of Law:
  • Constitutional Law

State v. Ross

The Court may exercise plain error review of unpreserved issues on appeal when they are errors of law, which are not reasonably in dispute, and the error is apparent in the record. The Court may decline to use its discretion to review plain errors when the errors were harmless.

Area(s) of Law:
  • Criminal Law

Vukanovich v. Kine

When the trial court grants JNOV, the proper procedural course, if the appellate court reverses the JNOV, is to remand to the trail court to determine whether there is additional evidence to support the alleged claim.

Area(s) of Law:
  • Appellate Procedure

Vukasin v. Liberty Northwest Insurance Corporation

ORS 656.245(1)(a) allows compensation for medical services that are causally related to a compensable workplace injury. This does not include services for accepted conditions that can be shown to have been resolved or cured and occurred again later, unrelated to a workplace injury.

Area(s) of Law:
  • Workers Compensation

American Civil Liberties Union v. City of Eugene

Under ORS 181.854(4) of the Oregon Public Records Law, records of an internal investigation of a police officer's conduct are generally protected from disclosure if that investigation does not result in discipline. A trial court properly denies such requests when it properly balances the competing interests of the public and the public office by favorably presuming disclosure is required.

Area(s) of Law:
  • Administrative Law

Department of Human Service v. A. B.

Under ORS 419B.100(1)(c), the Court must analyze the totality of the child’s circumstances, including whether she is being cared for by someone other than the parents. DHS must prove a nexus between the parents’ risky conduct and risk of harm to the child when the child is in the care of another in order to exercise jurisdiction over the child.

Area(s) of Law:
  • Juvenile Law

Johnson v. Johnson

UNDER UTCR 7.020(3), a trial court cannot dismiss an action due to the plaintiff not filing a proposed order for want of prosecution, because no UTCR requires a proposed order be filed.

Area(s) of Law:
  • Civil Procedure

State v. Barnthouse

Article I, Section 9 of the Oregon Constitution, the state may not use evidence obtained as a result of an unlawful seizure. An unlawful seizure occurs when there is a significant interference with an individual's possessory interest that is not authorized by warrant or justified by an exception.

Area(s) of Law:
  • Constitutional Law

State v. Bautista

Under OEC 801(4)(a)(B), it is not an exception to hearsay if the motive to fabricate testimony arose before the prior consistent statement was made.

Area(s) of Law:
  • Evidence

State v. Cervantes

Testimony cannot be preemptively denied on the sole basis that it may be inadmissible before the trier of fact unless exceptional circumstances arise which would allow for such preemption to occur.

Area(s) of Law:
  • Criminal Procedure

State v. Crisafi

Under ORS 813.215(h), the exception to diversion is valid even if the accused is ineligible for the commercial driver license he or she already has been granted.

Area(s) of Law:
  • Criminal Law

State v. Hunt

An appellate court may reverse judgment requiring defendant to pay attorney's fees if the trial court erred in its assessment of defendant's ability to pay those fees.

Area(s) of Law:
  • Criminal Law

State v. Johnson

A criminal defendant may appeal a judgment of conviction based on the sentence for a felony on showing of claim of error if probation was revoked.

Area(s) of Law:
  • Criminal Law

State v. Makin

ORS 163.547 does not require proof of presence of children in a vehicle during a specific sale of controlled substances. Defendants have a waiveable pre-trial right to argue improper venue, which is not waived if defendant filed his opening brief before Mills was decided.

Area(s) of Law:
  • Criminal Law

State v. Munoz-Juarez

Under ORS 167.067(1) and (2), where a defendant violates multiple statutory provisions or violates one statutory provision but involves multiple victims, there are separately punishable offenses.

Area(s) of Law:
  • Sentencing

State v. Taylor

Under ORS 164.205(2), a “dwelling” is any roofed structure that is mostly enclosed by walls and is regularly or intermittently inhabited by a person who resides in the building at night. Entry into such a building qualifies as entry into a dwelling for purposes of the crime of burglary under ORS 164.225.

Area(s) of Law:
  • Criminal Law

Corkum v. Bi-Mart Corp.

Under ORS 656.005(24)(c), a condition renders the worker more susceptible to an injury when it is a passive contribution (e.g. age, gender, weight) which does not have its own independent, active pathological impact on the body part.

Area(s) of Law:
  • Employment Law

State v. Helms

Trial court plainly erred when it assigned attorney fees to the Defendant without determining whether Defendant was able to pay those fees.

Area(s) of Law:
  • Criminal Law

State v. Luster

ORS 475.319(1) states, in relevant part, that a defendant may raise an affirmative defense to the criminal possession of marijuana if they have been diagnosed with a debilitating medical condition within 12 months of their arrest, and have been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms.

Area(s) of Law:
  • Criminal Law

State v. McHaffie

Consideration of all the circumstances together can create sufficient specific and articulable facts for an officer to have had reasonable suspicion to make a lawful stop.

Area(s) of Law:
  • Criminal Procedure

Sternberg v. Lechman-Su

A claim for professional negligence may not be dismissed as time-barred where a question of fact remains regarding whether the claim accrued within the time allowed under the statute of limitations.

Area(s) of Law:
  • Tort Law

Weiker v. Douglas County School Dist. No. 4

Under ORS 656.245(1)(a), medical treatment is only compensable when its purpose is to cure a condition caused in material part by a previously accepted, compensable condition.

Area(s) of Law:
  • Workers Compensation

June 55 summaries

Barbera v. State of Oregon

Misrepresentation by an attorney regarding post-conviction time-lines does not allow for an excuse in timely filing of petitions for post-conviction relief. Moreover, petitions for post-conviction relief do not require a notary signature.

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

Bova v. City of Medford

Under ORS 243.303(2), local governments are obligated to provide some health insurance to both current and retired employees, but may be relieved from such obligation to retired employees if the local government can show that providing healthcare insurance is unduly burdensome to the city because of cost or other circumstances.

Area(s) of Law:
  • Municipal Law

Doyle v. City of Medford

ORS 243.303(2) does not create a tort-based private right of action, but an adversely-affected retired local government employee may seek remedy through the Declaratory Judgments Act, as well as supplemental relief including economic damages for the cost of obtaining substitute health insurance.

Area(s) of Law:
  • Municipal Law

Gram and Gram

On a motion to clarify a dissolution judgment, a trial court is permitted to interpret ambiguous portions of a dissolution judgment. A provision in a judgment is ambiguous if it is capable of more than one reasonable interpretation. A trial court may not modify the property provisions of the judgment under the guise of interpreting them. A trial court will have modified the judgment if additional terms or obligations are added.

Area(s) of Law:
  • Civil Procedure

Haynes v. Board of Parole

ORS 183.400 authorizes only facial challenges to agency rules, and does not allow constitutional challenges in particular circumstances.

Area(s) of Law:
  • Administrative Law

Johnson v. Premo

A party to a judgment by the Court of Appeals may petition to modify the written opinion to correct factual errors. If the petition is correct, the Court may allow the modification.

Area(s) of Law:
  • Appellate Procedure

K.M.V. v. Williams

Under ORS 30.866, issuance of a stalking protective order requires at least two contacts that cause both subjective and objective reasonable alarm or coercion that occur within two years of filing the petition for the order.

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

Kiltow v. SAIF

A decision by the Workers' Compensation Appellate Review Unit that an insurer prematurely closed a claim does not have a preclusive effect on the Court of Appeals or the Workers' Compensation Board. Furthermore, an insurer does not act unlawfully by removing a condition from a claim if it is determined that the condition was never part of the compensable injury.

Area(s) of Law:
  • Workers Compensation

Lunsford v. NCH Corporation

ORS 30.905(3)(b) does not violate the remedy clause because wrongful death actions were not recognized by the common law in 1875.

Area(s) of Law:
  • Elder Law

McKeachie v. Coursey

Under 138.640, a judgment granting or denying post-conviction relief must contain (1) identification of claims for relief the court considered and separate rulings on each claim; (2) declaration for each claim whether denial is based on petitioner's failure to utilize or follow available state procedures or failure to establish merits of his claim; and (3) apparent legal bases for denial of relief.

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

Piazza v. Kellim

Under Oregon tort law, a plaintiff must plead and prove foreseeability of harm from third-party criminal action by showing (1) the defendant’s conduct caused a foreseeable risk; (2) the risk was to an interest of a kind that the law protects against negligent invasion; (3) the defendant’s conduct was unreasonable considering the risk; (4) the conduct caused the plaintiff’s harm; and (5) the plaintiff was within the class of persons and the harm was within the general type of potential injuries that made the defendant’s conduct negligent.

Area(s) of Law:
  • Tort Law

State v. Battles

A trial court may reinstate an award of attorney fees following remand from an appeal, where Defendant did not contest them in the original appeal and offered no evidence the original award of the fees was plain error.

Area(s) of Law:
  • Attorney Fees

State v. Gibbons

Under Article I, Section 20 of the Oregon Constitution, a police officer's decision to randomly "run" the plates of a car is constitutional if that officer's decision resulted from a confluence of training, time, and opportunity, and that officer would have "run" the plates from any other passing driver.

Area(s) of Law:
  • Criminal Procedure

State v. Heater

Analysis for admissibility of evidence obtained after illegal police activity has been extended by recent decisions to include not only temporal proximity and mitigating circumstances, but also an analysis of the totality of the circumstances, including the nature of the illegal conduct and its purpose and flagrancy.

Area(s) of Law:
  • Criminal Law

State v. Love

Under the statute governing disorderly conduct, ORS 166.025, "public" refers to something that affects "the people as an organized community" or "the people as a whole," not a "public place."

Area(s) of Law:
  • Criminal Law

State v. M.S.P.

Under ORS 426.130, when the evidence is legally insufficient that a person is a danger to himself, he may not be committed as a person with mental illness.

Area(s) of Law:
  • Civil Commitment

State v. McRae

Trial court's denial to admit evidence of police officer's prior inconsistent statement not a grave enough error to warrant reversal of judgement if the difference in statements is not "qualitatively different" enough to warrant reversal.

Area(s) of Law:
  • Evidence

State v. Navickas

Evaluating a “lawful order” pertaining to ORS 162.247(1)(b) should be done independently of the circumstances giving rise to the order given. The standard is whether a rational trier of fact could find that the order was given by one who had the authority to give such order and the lawfulness of said order could be found in substantive law.

Area(s) of Law:
  • Criminal Law

State v. Velazquez-Valleo

A judgment ordering a defendant to pay attorney fees may be reversed on appeal where circumstances of the defendant's case render him or her unable to pay court-ordered attorney fees, even if the error was unpreserved below.

Area(s) of Law:
  • Attorney Fees

State v. Williams

Whether an encounter between a citizen and an officer qualifies as a stop is an issue of fact, determined by the totality of the circumstances. A citizen-officer encounter constitutes a stop when the officer’s words and/or actions would cause a reasonable person to believe that he is not free to end the encounter or go about his daily affairs until the officer indicates he is free to do so or issues a citation.

Area(s) of Law:
  • Criminal Law

Delta Property Co., LLC v. Lane County

Under ORS 197.829, the Land Use Appeals Board must give deference to a county’s plausible interpretation of its land use code, and must consider whether any exceptions may apply.

Area(s) of Law:
  • Land Use

Hamlin v. Hamlin

A trial court may use extrinsic evidence when reforming a decedent’s will when both parties seek reformation before the court, and each party offers a different intention for the will’s reformation.

Area(s) of Law:
  • Trusts and Estates

Ray Klein, Inc. v. Wader

When a trial court dismisses a claim upon a plaintiff's request, the defendant has a right to continue with a counterclaim under ORCP 54A(2). If the trial court has the discretion to dismiss the counterclaim as well, it must create a sufficient record to reflect its discretionary decision.

Area(s) of Law:
  • Civil Procedure

S. St. Helens, LLC v. City of St. Helens

Under ORS 197.835(9)(a)(C), LUBA may only reverse a local government’s land use decision if the decision was based on facts that are not supported by substantial evidence in the whole record. If a reasonable person could make the disputed finding based on the entirety of the record, it is supported by substantial evidence.

Area(s) of Law:
  • Land Use

State v. Hunt

When at an arraignment where the court has impermissibly adjudged a defendant's waiver of counsel, in which the defendant proceeds into a community service program under terms that she does not fully comprehend, the error is not harmless and a new arraignment must be provided for the defendant with the community service option still available to her.

Area(s) of Law:
  • Constitutional Law

State v. Johnson

Trial court ordering payment of court-appointed attorney fees without determining Defendant's ability to pay such fees was plain error.

Area(s) of Law:
  • Criminal Law

State v. Kimmons

Pursuant to Rodgers/Kirkeby, “a stop is unlawfully extended, effectuating an unconstitutional seizure, where 'an officer, without letting the person know expressly or by implication that he or she is free to leave, detains the person beyond the time reasonably required to investigate the initial basis for the stop and to issue a citation, without the requisite reasonable suspicion.'”

Area(s) of Law:
  • Criminal Procedure

State v. Price

Under ORS 137.106(5), a judge must grant a restitution hearing if the "defendant objects to the imposition, amount or distribution of the restitution."

Area(s) of Law:
  • Criminal Procedure

State v. R.D.S.

A trial court in a civil commitment proceeding must advise the allegedly mentally ill person directly regarding the rights guaranteed by ORS 4216.100. When the court fails to do this, it is plain error and the Court can hear the issue despite a failure to preserve.

Area(s) of Law:
  • Civil Commitment

State v. Vargas

Under ORS 138.222(2)(a), the appellate court is only precluded from reviewing challenges to convictions that address the length of the sentence when the sentence is within its presumptive range.

Area(s) of Law:
  • Criminal Law

State v. Williams

Trial court plainly erred when it failed to determine whether Defendant was capable of paying attorney's fees before imposing fees.

Area(s) of Law:
  • Criminal Law

Tseng v. Tseng

Under ORS 130.710(1), after a settlor’s death, a trustee of a revocable trust must provide information about the administration of the trust during the settlor’s lifetime to qualified beneficiaries of the trust such that those beneficiaries have the material facts necessary to protect their interests.

Area(s) of Law:
  • Trusts and Estates

Dept. of Human Services v. M.E.M.

A trial court errs by entering a default judgment against a mother in a juvenile dependency case when that mother fails to appear in person at the dependency hearing but appears over the phone.

Area(s) of Law:
  • Juvenile Law

Fossen v. Clackamas County

When a plaintiff brings claims of false arrest and false imprisonment, the false imprisonment claim will not be dismissed along with the false arrest claim where the false imprisonment claim arises after a valid arrest.

Area(s) of Law:
  • Tort Law

McManus v. Auchincloss

The public policy underlying ORS 659.550 is "to encourage all employees with a good-faith belief that their employer had committed a crime involving child abuse to report that belief to law enforcement," even if the employee is not required by law to report such information.

Area(s) of Law:
  • Employment Law

Mitchell and Mitchell

Lower court in marriage dissolution hearing abused its discretion by not considering Husband's agreement to pay for children's college education when awarding monthly spousal maintenance, and by not providing an explanation for the chosen amount of required life insurance policy.

Area(s) of Law:
  • Family Law

Moyer and Moyer

A life insurance obligation must be commensurate with the support award it secures, and so when the support award is reduced or eliminated the life insurance obligation must be appropriately adjusted.

Area(s) of Law:
  • Family Law

Mullen v. Meredith Corp.

Oregon's Anti-SLAPP statute, ORS 31.150, gives defendants ground to strike a civil claim when their conduct was in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or issue of public interest, even if that conduct is not necessary to the exercise of free speech.

Area(s) of Law:
  • Tort Law

Myers v. Brockamp

Under ORS 138.640(1), to be legally sufficient, a judgment denying post-conviction relief must, at a minimum, follow the three-prong test elicited in Datt v. Hill, 347 Or 672, 676 (2010) with respect to each claim. Failure to do so compels a remand without reaching the merits of petitioner's claim for relief.

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

State v. Anton

Evidence is properly suppressed when it is obtained through an unlawful seizure. A seizure occurs when an officer announces that a defendant's fishing tags will be inspected, that seizure is unlawful if it is not supported by reasonable suspicion.

Area(s) of Law:
  • Criminal Procedure

State v. Bradford

When a defendant raises self-defense at a trial alleging assault and harassment, it is improper to give the jury a defense of premises instruction.

Area(s) of Law:
  • Criminal Law

State v. Davidson

Two consecutive, presumptive "true life" sentences imposed under ORS 137.719(1) against a recidivist defendant violates Article I, Section 16 of the Oregon Constitution, when that defendant has five convictions of public indecency for public masturbation without any sexually violent behavior or conduct.

Area(s) of Law:
  • Sentencing

State v. Ene

Evidence is properly suppressed when it is obtained through an unlawful seizure. A seizure occurs when an officer announces that a defendant's fishing tags will be inspected, that seizure is unlawful if it is not supported by reasonable suspicion.

Area(s) of Law:
  • Criminal Procedure

State v. Lamoreaux

Under Article 9 Section 1 of the Oregon State Constitution, the scope of a lawful, consented to search is determined by examining two factors; (1) the specific words used by the officer in requesting the search, and (2) whether a reasonable person in Defendant’s shoes would have understood that the officer intended to search for specific items. The second factor is satisfied when the officer is aware that Defendant is on probation and Defendant knows that items related to same crime as on probation for will turn up in a search.

Area(s) of Law:
  • Criminal Law

State v. lopez-lopez

Under Article I, section 9, of the Oregon Constitution subjecting a person to a breath test is a search and seizure that requires a warrant or an exception. Consent is an exception. In assessing voluntariness, you examine the totality of the circumstances to determine if a defendant’s consent was the of the defendant’s free will or was the result of express or implied coercion.

Area(s) of Law:
  • Evidence

State v. Paskar

It is a violation of Article I section 9 of the Oregon Constitution to obtain evidence through the exploitation of an unlawful search. Additionally, reasonable suspicion in regards to one crime does not provide officers with an excuse to extend a stop and conduct an investigation into a separate crime.

Area(s) of Law:
  • Constitutional Law

State v. Rhee

Under Oregon’s merger statute, ORS 161.067(1), in order to determine whether statutory provisions require “proof of an element that the others do not,” a court should examine only the statutory elements of each offense, not the factual circumstances alleged in the indictment. When a statute contains alternative forms of a single crime, a court should look to the indictment to determine which form is charged for merger analysis.

Area(s) of Law:
  • Criminal Law

State v. Trujillo

Expert testimony that "retrograde extrapolation" is a practice that is accepted in the field of forensic science is sufficient to admit evidence of "retrograde extrapolation" in DUII cases.

Area(s) of Law:
  • Evidence

Department of Human Services v. M. A. H.

Under ORS 419B.100(1)(c), dependency jurisdiction is only granted when there is a current threat of serious loss or injury to the child at the time of the jurisdiction hearing.

Area(s) of Law:
  • Juvenile Law

Dosanjh v. Namaste Indian Restaurant, LLC

Parties in civil actions are entitled to a jury instruction on their theory of the case if the requested instruction correctly states the law, is based on the pleadings, and is supported by the evidence. An error at the trial court is only grounds for reversal if it substantially affects the rights of a party such that when the instruction is considered in the totality of the evidence and the parties’ theories of the case, there is some likelihood that the jury reached a legally erroneous result.

Area(s) of Law:
  • Civil Procedure

Hadley v. Extreme Technologies, Inc.

Ambiguities in contract provisions are questions of law, and the trial court erred in this breach of contract case when it instructed the jury that it was the jury's job to determine the meaning of an ambiguous contract provision.

Area(s) of Law:
  • Contract Law

Miller v. Shenk

Under 28.110, all necessary parties must be joined to an action both to protect interested parties and the certainty of the judgment.

Area(s) of Law:
  • Land Use

State v. Hayes

A facts-based argument is not grounds for reversal because when there is evidence from which the facts could be decided in more than one way, the Court is required to presume that the trial court decided the facts in a manner consistent with its ultimate conclusion.

Area(s) of Law:
  • Evidence

State v. Ragibov

Under OEC 803(4), hearsay statements contained in medical records are admissible in court to prove the truth of the matter asserted if three requirements are met: (1) the statement must be made for the purpose of medical diagnosis or treatment; (2) the statement must describe medical history, symptoms, pain or sensations, or the cause or eternal source of the injury; and (3) the statement must be reasonably pertinent to diagnosis or treatment.

Area(s) of Law:
  • Evidence

U.S. Bank v. Pohrman

To determine whether an employee's injury sustained during a paid break is compensable, the Worker's Compensation Board must first determine whether the employee was injured during the scope of employment, and then must determine whether employee was on a "personal mission" or if the personal comfort doctrine applies.

Area(s) of Law:
  • Workers Compensation

July 49 summaries

Abraham v. Board of Parole

Under ORS 144.335(1), when a person aggrieved by a board order fails to timely seek judicial review of the order, and subsequently seeks reconsideration, any denial of review is not a final order for the purpose of judicial review.

Area(s) of Law:
  • Administrative Law

Dept. of Human Services v. D.L.O.

A six-month time lapse between evidentiary proceedings and a judgment asserting jurisdiction over juveniles may raise a question of fact sufficient to show that,at the time of the judgment, the children's welfare may not be endangered by their conditions and circumstances.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. D.L.O.

A six-month time lapse between evidentiary proceedings and a judgment asserting jurisdiction over juveniles may raise a question of fact sufficient to show that,at the time of the judgment, the children's welfare may not be endangered by their conditions and circumstances.

Area(s) of Law:
  • Juvenile Law

Hucke v. BAC Home Loans Servicing, L.P.

Under ORS 86.722, a correction deed that sets aside a trustee's deed is meant to serve as a step in unwinding a foreclosure sale, and does not unilaterally reverse the sale. Transfers of promissory notes do not have to be recorded before nonjudicial foreclosure sales can proceed.

Area(s) of Law:
  • Property Law

Lewis v. Board of Parole

Under ORS 144.335(1), an agency's denial of a petition for reconsideration of a final order is not itself a final order for purposes of judicial review.

Area(s) of Law:
  • Administrative Law

Maney v. Board of Parole

The process for a murder review hearing by the Board of Parole under ORS 163.105 satisfies the Fourteenth Amendment Due Process Clause.

Area(s) of Law:
  • Constitutional Law

State v. Burt

Where a trial court sentences a defendant to a certain number of months in prison and a certain number of months of post-prison supervision, but gives credit for "time actually served," that sentence is unlawfully indeterminate for failure to state the length of the incarceration and the post-prison supervision.

Area(s) of Law:
  • Sentencing

State v. Carter

If a trial court's sentence exceeds the statutory maximum sentence, the Court of Appeals may exercise its discretion to remand for resentencing if the record does not indicate that the trial court will, for certain, impose the same sentence.

Area(s) of Law:
  • Sentencing

State v. Garcia

A criminal defendant may not be ordered to pay court-appointed attorney fees absent a determination that the defendant has the ability to pay them.

Area(s) of Law:
  • Attorney Fees

State v. McHenry

To support probable cause for entering a house without a warrant, the officer must have some evidence that it is more likely than not that a crime has been committed. In the context of furnishing alcohol to minors, the officer must know more than the facts that there is a party and minors have alcohol in order to have probable cause to enter a house.

Area(s) of Law:
  • Criminal Law

State v. Nickerson

A mere discussion of Defendant's ability to have a job is insufficient to conclude Defendant's ability to pay court-appointed attorney fees.

Area(s) of Law:
  • Criminal Law

State v. Spencer

A conviction under ORS 166.610 and ORS 161.270 for felon in possession of a firearm with a firearm may not be sustained if the defendant's felony has been reduced to a misdemeanor at the time of the conviction under ORS 166.610 and ORS 161.270.

Area(s) of Law:
  • Criminal Law

Stewart Title Guaranty Co. v. DCBS

Under Oregon common law, issue preclusion applies where an issue of ultimate fact essential to the decision arises in a subsequent proceeding that was determined by a valid and final judgment in a prior proceeding between the same parties.

Area(s) of Law:
  • Civil Procedure

State v. Dentel

For there to be plain error on the record,the error must be (1) one of law; (2) obvious and not reasonably in dispute; and (3) revealed on the face of the record, so that the court does not need to go outside the record to find error, and the facts constituting the error are irrefutable.

Area(s) of Law:
  • Appellate Procedure

Dept. of Human Services v. B. M. C.

In a dependency proceeding, where DHS is dismissed as a party through a guardianship judgment, DHS may not move to set aside that agreement because they lack standing to do so.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. K. L.

ORS 419B.823 and 419B.824 are modeled after ORCP 7 D, and require that parties to a dependency proceeding receive notice reasonably calculated under the factual circumstances to apprise them of the action and afford the opportunity to present objections.

Area(s) of Law:
  • Juvenile Law

Edwards v. Board of Parole

Under ORS 144.125(3), Parole Board may delay a prisoner's release date upon a finding that a prisoner has a "present severe emotional disturbance," even if the statutorily required psychological evaluation found to the contrary, so long as the Board's decision was based on substantial evidence in the report.

Area(s) of Law:
  • Criminal Law

Johnson & Lechman-Su, PC v. Sternberg

Issue preclusion may not be used against a party in a current proceeding where the issue was not fully litigated due to the prior case being reversed and remanded on appeal.

Area(s) of Law:
  • Civil Procedure

Rivas v. Board of Parole

A constitutionally adequate parole-exit interview conducted pursuant to ORS 144.125(3) does not include the right to call witnesses or cross-examine people who provided information to the board to be constitutionally adequate.

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

Sanchez v. State of Oregon

In a petition for post-conviction relief, a trial court has broad discretion in its control of court proceedings. Abuse of this discretion can only be found in instances where the control of the court proceedings was deemed to have been applied in a manner which prejudiced the petitioner.

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

Sather v. SAIF

The Workers' Compensation Board must determine whether an otherwise compensable injury, not the accepted conditions, has ceased to be the major contributing cause of the worker's disability or need for treatment for an accepted combined condition.

Area(s) of Law:
  • Workers Compensation

State v. Booth

Evidence obtained during an unlawfully extended traffic stop is inadmissible.

Area(s) of Law:
  • Evidence

State v. Holland

Under Article I, section 9 of the Oregon Constitution, police searches of peer-to-peer file sharing sites is not an illegal search and does not violate a defendant's rights.

Area(s) of Law:
  • Criminal Law

State v. McNally

Jury instructions are to be granted if there is a evidence to support it and if the proposed instruction accurately states the law.

Area(s) of Law:
  • Criminal Procedure

State v. S.A.N.

Under ORS 426.005(1)(e), where the State failed to prove by clear and convincing evidence that a person is dangerous to others due to a mental disorder, a judgment of involuntary commitment must be reversed.

Area(s) of Law:
  • Civil Commitment

Dept. of Human Services v. D.M.H.

In order to establish continuing jurisdiction over the wardship of a child, the trial court asserting jurisdiction must show through facts in the record that, at the time of the hearing, the child's circumstances and conditions give rise to a current and continuing threat of harm.

Area(s) of Law:
  • Juvenile Law

Estate of Michelle Schwartz v. Phillip Morris USA, Inc.

The United States Supreme Court has identified three guideposts to determine whether a punitive damages award violates due process: (1) the degree of reprehensibility of the defendant’s action; (2) the disparity between the actual harm caused by the conduct and the punitive damages award; and (3) the difference between the punitive damages award and the civil and/or criminal penalties authorized or imposed in comparable cases.

Area(s) of Law:
  • Remedies

Fine and Fine

The trial court has discretion in determining what property division is "just and proper in all circumstances," unless the trial court has "misapplied the statutory and equitable considerations that ORS 107.105(1)(f) requires."

Area(s) of Law:
  • Family Law

Southcentral Association of Neighbors v. City of Salem

Adjacent parcels under common ownership are not necessarily one development, and therefore one "lot," simply because they are owned by the same entity for the purposes of applying Salem Revised Code 130.270.

Area(s) of Law:
  • Land Use

State v. Brown

A trial court’s judgment assessing fees for court-appointed attorney services must be supported with evidence in the record that the defendant “is or may be” able to pay the fees.

Area(s) of Law:
  • Attorney Fees

Boardmaster Corp. v. Glass

ORS 479.820 does not allow a county to disconnect electrical service because a failure to obtain a permit is not necessarily a failure to comply with minimum safety standards. Therefore, a grant of summary judgment for a malpractice claim based on a contrary understanding of that statute is inappropriate.

Area(s) of Law:
  • Professional Responsibility

Dept. of Human Services v. C.A.

Evidence of substance abuse by a parent, and that parent's lack of sole custody, are not sufficient to prove that a child's circumstances and conditions present a non-speculative risk to the child's safety.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. J.C.H.

The Court did not reach the question of whether Father would be deprived of constitutionally sufficient notice if DHS terminated parental rights based on different grounds from those upon which DHS originally established jurisdiction. Instead, the Court found that DHS had proven some of the original allegations by clear and convincing evidence. Affirmed.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. J.L.M.

Generalized assumptions about a mother's narcolepsy and father's alleged methamphetamine abuse are insufficient evidence for a juvenile court to assert jurisdiction over a child.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. K. M. J.

Under ORS 419B.923(1)(b), the concept of excusable neglect encompasses 'a parent’s reasonable, good faith mistake as to the time or place of a dependency proceeding.'

Area(s) of Law:
  • Family Law

Dept. of Human Services v. M.P.P.

Termination of parental rights requires clear and convincing evidence that it is warranted by both the conduct of the parent and the best interests of the child.

Area(s) of Law:
  • Juvenile Law

Durette v. Virgil

Under OEC 401, if experts in a field typically rely on studying photographs and particular statistical data, then that methodology of analysis will be sufficient to avoid excluding the testimony. An expert may be qualified to testify to scientific evidence under OEC 702, even where that expert is unlicensed by the applicable regulatory body.

Area(s) of Law:
  • Evidence

Hartwell v. Board of Parole

According to OAR 255-30-025(4), a prisoner does not have to choose between an assistant and another person speaking on their behalf at an exit interview hearing if the prisoner needs assistance communicating to the Board.

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

Luton v. Willamette Valley Rehabilitation Center

A diagnosed medical condition arising out of workplace exposure is properly analyzed as an occupational disease rather than a workplace injury, if the onset of the particular condition, rather than the specific symptoms, arises over a gradual period of time.

Area(s) of Law:
  • Workers Compensation

S. J. R. v. King

Under ORS 30.866(1)(a) a person seeking a stalking protective order must show evidence of two or more qualifying contacts.

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

Smith v. Board of Parole

Administrative rules OAR 255-030-0025 and OAR 255-030-0026 are valid in accordance with the policies of the Board of Parole.

Area(s) of Law:
  • Administrative Law

Smith v. OHSU Hospital and CLinic

ORS 30.275(9) does not bar application of ORS 12.160 (2005) to OTCA claims, because ORS 12.160 does not provide a limitation on the commencement of an action but instead provides for tolling the time allowed for the commencement of an action.

Area(s) of Law:
  • Civil Procedure

State v. Brown

Other acts evidence that is offered for non-propensity purposes—i.e., to prove motive, intent, identity, or lack of mistake or accident—generally will be admissible as long as the particular facts of the case do not demonstrate a risk of unfair prejudice that outweighs the probative value of the evidence.

Area(s) of Law:
  • Evidence

State v. Cox

After the state urged the jury to use character evidence and inflammatory facts not in evidence to find Defendant guilty of the charged crimes, the trial court’s jury instruction that the jury could not consider character traits unrelated to the charged crimes, without identifying those traits, was insufficient to cure the prejudice to Defendant.

Area(s) of Law:
  • Criminal Law

State v. Horner

A reviewing court may only review an unpreserved assignment of error as one “apparent on the record” if (1) the error is of law; (2) it is not in reasonable dispute; and (3) if the error is contained in the four corners of the record such that the court need not choose between possible inferences to find it.

Area(s) of Law:
  • Criminal Procedure

State v. McKee

When a property owner manifests and intention to exclude the public from private property outside the curtilage of a residence, a police officer may only enter the property with a warrant or under an exception to the warrant requirement; mere reasonable suspicion a crime is being committed is not enough.

Area(s) of Law:
  • Constitutional Law

State v. Nacoste

A criminal Defendant may cross-examine a testifying alleged victim concerning the victim's juvenile adjudication history if used to show bias or motive in the alleged victim's reporting or to show victim's attempt to curry favor with prosecution.

Area(s) of Law:
  • Evidence

Thoens v. Safeco Ins. Co. of Oregon

The plaintiff should be allowed the opportunity by the court to present evidence as to whether the motorist was underinsured.

Area(s) of Law:
  • Civil Law

Yoshida's, Inc. v. Dunn Carney Allen Higgins & Tongue LLP

Under ORS 36.222, email communications are confidential and protected from admission as evidence unless an exception applies. Additionally, where no material distinction is made between an equivalent Wisconsin statute, and the mediation communications arose out of a Wisconsin case, ORS 36.222 is properly applied to prevent admission of the email communications.

Area(s) of Law:
  • Contract Law

August 48 summaries

Johnson v. State Board of Higher Education

Under the Oregon Tort Claims Act (OTCA), the state is not obligated to defend a public employee against tort claims if, after investigation, the state determines that alleged tort arises from an incident outside of the course and scope of employment and the employee does not raise a question of fact challenging the state's determination.

Area(s) of Law:
  • Tort Law

State v. Blan

Under ORS 163.165, direct physical contact with the dangerous weapon is not required to satisfy the “by means of” prong of third-degree assault.

Area(s) of Law:
  • Criminal Law

State v. Davenport

The officer-safety exception to the warrant requirement of search and seizure does not apply to situations in which a suspect is cooperative and does not cause the officer to reasonably suspect that the suspect poses a serious risk or harm.

Area(s) of Law:
  • Evidence

State v. G.R.M.

Evidence that a complaining witness instigated physical altercations with a criminal defendant is sufficient for a jury to potentially find that witness biased and may be used as evidence for the purpose of impeachment.

Area(s) of Law:
  • Evidence

State v. Harris

Under ORS 138.697(1), a circuit court order granting DNA testing is not “limited” by a condition that a defendant may not collaterally attack his or her convictions if no exculpatory evidence is found.

Area(s) of Law:
  • Evidence

State v. Leahey

Under the Article I, Section 9 of the Oregon Constitution, a passenger of a vehicle is not subject to an unlawful stop when officers request that the defendant wait outside the car during a search. Further, under the same section, a passenger who consents to a patdown search and a search of a duffel bag is not subject to an unlawful search.

Area(s) of Law:
  • Criminal Procedure

State v. Lindemann

Under ORS 153.633(1), a trial court may not impose additional $60 fees upon a defendant if that court has already imposed penalty fees related to the convictions.

Area(s) of Law:
  • Criminal Law

State v. Pierce

When a trial court announces a defendant's sentence on the record and decides what programs they are eligible for under ORS 137.750, the defendant must voice an objection at that point in order to preserve a claim of error that the defendant is eligible for more programs.

Area(s) of Law:
  • Sentencing

State v. Radtke

Under Article I, section 9 of the Oregon Constitution, whether a person has been seized depends on whether a reasonable person would believe an officer intentionally and significantly restricted, interfered with, or otherwise deprived the person of his or her liberty or freedom of movement, which is a fact-specific inquiry dependent on examination of the totality of the circumstances.

Area(s) of Law:
  • Evidence

State v. Tiscornia

A trial court commits plain error by imposing attorney fees on defendant when the court used only work history and no other information regarding whether the defendant “is or may be able” to pay attorney fees.

Area(s) of Law:
  • Criminal Law

State v. Wiggins

A trial court errs by instructing the jury on first-degree criminal mischief when the dollar amount of damaged property does not rise to the necessary level.

Area(s) of Law:
  • Criminal Law

State v. Williams

A motion to sever will only be granted under ORS 132.560(3) if the "defendant is substantially prejudiced by a joinder of offenses."

Area(s) of Law:
  • Criminal Procedure

Weems v. Winn

A trial court must follow the statutory methodology in ORS 107.137 in determining child custody.

Area(s) of Law:
  • Family Law

Berg v. Nooth

A prosecutor’s “extrinsic” promises not to prosecute third parties in order to induce a guilty plea was not unconstitutional as a matter of law.

Area(s) of Law:
  • Criminal Law

DeAngeles and DeAngeles

When considering a spousal award for maintenance support, it is "improper to award support for a period of time that is defined by a contingency the occurrence of which is a matter of mere speculation."

Area(s) of Law:
  • Family Law

Dept. of Human Services v. E.N.

Parental rights may be terminated if a parent is determined to be unfit as a parent, if integration of the child into the parent's care is improbable due to conduct or conditions not likely to change, and if termination is in the best interests of the child.

Area(s) of Law:
  • Family Law

Eastern Oregon Mining Association v. DEQ

Under ORS 14.175, when a permit issued by an Oregon agency expires, and a new permit is issued that is the same as the expired permit, a challenge to the expired permit may be dismissed as moot, where the issues are not likely to evade judicial review in a future challenge to the new permit.

Area(s) of Law:
  • Administrative Law

Gattucio v. Averill

For the purpose of determining liability under ORS 124.115, a "person" refers to the defendant entity itself, not to natural persons acting on behalf of the entity.

Area(s) of Law:
  • Tort Law

Hoogendam and Hoogendam

A Stipulated General Judgment of Dissolution of Marriage entered by the trial court is only binding when it (1) accurately reflects the agreed-upon terms of the parties; (2) is signed by both parties; and (3) incorporates documents and terms that are agreed upon by the parties on the record.

Area(s) of Law:
  • Family Law

Hooper v. Division of Medical Assistance Programs

Under ORS 14.175, a case that might otherwise be ruled as moot can still be heard if it meets the three requirements laid out in the statute.

Area(s) of Law:
  • Civil Procedure

Moorehead v. TriMet

In a slip and fall negligence case, absent proof of an owner’s knowledge of a foreign substance on a floor, a plaintiff invitee’s action will fail. Without such proof, whether or not the foreign substance created an unreasonable risk of harm is not relevant.

Area(s) of Law:
  • Tort Law

Ornduff v. Hobbs

An attorney fee statement described in ORCP 68 qualifies as a “motion” or “pleading” under ORCP 15 D, and a court may grant a party permission to file the fee statement after the expiration of the ORCP 68 C(4)(a) filing period.

Area(s) of Law:
  • Civil Procedure

State v, Rabanales-Ramos

A police officer does not have probable cause to perform a traffic stop under ORS 811.507 when that officer has only observed a driver looking at a lighted device intermittently over a period of ten seconds, and the officer does not observe the driver to be pushing buttons, talking, or holding the phone to the ear.

Area(s) of Law:
  • Criminal Procedure

State v. Benning

A violation of a defendant’s rights under Article I, section 9, of the Oregon Constitution requires an analysis using the Unger factors including temporal proximity; mitigating circumstances; intervening circumstances (without using the Dempster/Snyder rule, which is no longer good law); purpose and flagrancy of the unlawful police conduct; and the nature, extent, and severity of the constitutional violation.

Area(s) of Law:
  • Evidence

State v. Fowler

Arguments made on appeal that were not made before the trial court cannot be the basis for the Court’s opinion unless the Court finds that the record would have developed materially the same under the new argument as under the actual argument made to the trial court.

Area(s) of Law:
  • Appellate Procedure

State v. Hendricks

Under ORS 163.160, “physical injury” can be satisfied by impairment of a physical condition depending on three factors: (1) the nature of the affected bodily function or organ; (2) the degree of effect and; (3) its duration.

Area(s) of Law:
  • Criminal Law

State v. Hess

When expert testimony that is proffered has no bearing on the capability of a criminal Defendant to perform a certain act, when that performance is the sole matter in question, it is irrelevant and should be excluded.

Area(s) of Law:
  • Criminal Law

State v. Kawamoto

Under ORS 163.225, a defendant may be found guilty of kidnapping by way of "secret confinement" of a victim in a place where the victim is "unlikely to be found" by individuals who would reasonably be expected to assist the victim, even when the victim's location is known by the defendant's accomplices. Under ORS 163.411, unlawful sexual penetration by way of forcible compulsion is reasonably found when an extended episode of violence, or threats of future violence, precedes the penetration.

Area(s) of Law:
  • Criminal Procedure

State v. Lang

Marijuana smoke smell coming from a defendant’s residence is not enough to establish probable cause of criminal mischief for a search warrant.

Area(s) of Law:
  • Criminal Law

State v. McPhail

The defenses of self-defense and choice of evils require an imminence element to be satisfied. Imminence will be found when the proponent of the defense is faced with a direct threat of immediate injury at the time. Preemptively arming oneself to prevent violence at an unknown point in the future does not satisfy the imminence element.

Area(s) of Law:
  • Criminal Law

State v. Mitchell

Under the Fourth Amendment, whether the causal connection between unlawful seizure of a defendant and the subsequent discovery of evidence is sufficiently attenuated by the intervening discovery of an outstanding warrant so as to purge the taint of the illegality depends on the temporal proximity between the unlawful police conduct and the discovery of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the unlawful police conduct.

Area(s) of Law:
  • Evidence

State v. Reeves

The law of “case doctrine” states that when a ruling has been made in a particular case by an appellate court, while it may be overruled in other cases, it is binding upon both the inferior court in any further proceedings in the same litigation and upon the appellate court itself in any subsequent appeal.

Area(s) of Law:
  • Appellate Procedure

State v. Thunderbird

A convicted defendant seeking DNA testing pursuant to ORS 138.690 to 138.698 must identify specific evidence to be tested that was gathered during the prosecution process.

Area(s) of Law:
  • Criminal Law

West Hills Development Co. v. Chartic Claims

If an injured claimant can recover under the allegations made in the complaint upon any basis for which the insurer affords coverage, that insurer is obligated to defend the insured. Additionally, even if not specifically alleged, extrinsic evidence proving the insured-insurer relationship existed, can be used.

Area(s) of Law:
  • Insurance Law

Bandon Pacific v. Environmental Quality Commission

A department must consider all reasonably available information when reaching a conclusion as to the magnitude classification of violations.

Area(s) of Law:
  • Environmental Law

Borum v. Employment Dept.

For the purposes of overpayment of unemployment compensation, a claimant may be considered “at fault” in bringing about the overpayment, and its repayment cannot be waive if the claimant mistakenly provided inaccurate information on a benefits application. Affirmed.

Area(s) of Law:
  • Employment Law

Conicienne v. Asante

An amended complaint that relates back to the original complaint in that it “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading” is not barred by the statute of limitations according to ORCP 23 C.

Area(s) of Law:
  • Civil Procedure

Dept. of Human Services v. T.M.S.

In juvenile dependency cases, it is not sufficient for a parent seeking reunification to use cooperation with provided services as basis for reversal of a court's decision to change a permanency plan from reunification to adoption.

Area(s) of Law:
  • Family Law

SAIF v. Traner

Under ORS 656.262(11), if an insurer or self-insured employer unreasonably denies a workers’ compensation claim, and the denial is overturned, then the insurer or self-insured employer is obligated to pay the claimant’s attorney fee, even if no compensation is awarded.

Area(s) of Law:
  • Workers Compensation

State v. Althof

Under OEC 702, a detective will qualify as an expert to give testimony at trial where the detective has extensive background, knowledge and experience in the area of delayed reporting of sexual abuse even though he holds no advanced degree in that area.

Area(s) of Law:
  • Evidence

State v. Brown

Under Article I, section 9, of the Oregon Constitution and the Fourth Amendment, just because a defendant temporarily sets down a piece of property does not mean it is abandoned for purposes of conducting a warrantless search of that property.

Area(s) of Law:
  • Constitutional Law

State v. Hawkins

Under ORS 151.505(3) and ORS 161.665(4), a trial court commits plain error by requiring a criminal defendant to pay court-appointed attorney fees unless the court finds the defendant can or will be able to pay them.

Area(s) of Law:
  • Attorney Fees

State v. Jay

A prosecutor's mention of questions that an arresting officer asked Defendant during the arrest are considered sufficiently incidental to statements made by Defendant. Accordingly, they are properly excluded from evidence.

Area(s) of Law:
  • Evidence

State v. Logan

When objecting to character evidence, an objection must also be made regarding the limiting instruction in order to argue that issue on appeal.

Area(s) of Law:
  • Appellate Procedure

State v. Maciel-Figueroa

An informant’s assertion that a defendant threatened to break the property of another was not enough to establish reasonable suspicion of assault or criminal mischief, and evidence gained pursuant to this information is therefore inadmissible.

Area(s) of Law:
  • Criminal Law

State v. Miles

To satisfy the subjective belief element of first-degree sexual abuse (ORS 164.245) the victim need only consider the area of their body that was touched to be one that is ordinarily to be touched by people who are intimately close to them. For a three year old, this included body parts where her parents would touch her such as her hips and legs.

Area(s) of Law:
  • Criminal Law

State v. Strye

A defendant does not need to admit to harmful acts in order for a jury to consider whether, if the defendant committed the alleged acts, that the defendant did so in self-defense.

Area(s) of Law:
  • Criminal Law

State v. Vanorum

A trial court plainly errs by using ambiguous jury instructions in a criminal trial, particularly where the Oregon Supreme Court has previously ruled that the jury instruction is an improper statement of law. Such an error is sufficiently plain and harmful that the Court of Appeals can exercise its discretion to reverse the conviction and remand for a new trial.

Area(s) of Law:
  • Criminal Procedure

September 55 summaries

Kiryuta v. Country Preferred Ins. Co.

When a defendant insurance company files a safe-harbor provision but takes steps to pursue litigation outside of damages sought by the plaintiff insured, the safe-harbor provision is nullified.

Area(s) of Law:
  • Insurance Law

Scheffel v. Oregon Beta Chapter of Phi Kappa Psi Fraternity

A fraternity and its local chapter may have a duty to protect social guests against reasonably foreseeable intentional acts of a third party, where the negligence of the local chapter placed a person at an unreasonable risk of intentional criminal conduct and the fraternity may have undertaken supervision and control of the local chapter.

Area(s) of Law:
  • Tort Law

State v. Abram

Under ORS 166.250, a firearm carried in belt holster is not “concealed” and the State must prove beyond a reasonable doubt that the defendant was not carrying a firearm openly in a belt holster.

Area(s) of Law:
  • Criminal Law

State v. Justice

Under ORS 135.432(4), a trial court abuses its discretion by denying a guilty plea pursuant to a plea agreement which lessens the defendant's charge from a misdemeanor to a violation, when that trial court's decision is based solely on policies prohibiting such practices, and the decision is not granted individualized "due consideration."

Area(s) of Law:
  • Criminal Law

Van Patten v. State of Oregon

If the statutory language is plain, a case must be determined according to the terms of the statute; however, where a term is ambiguous the phrases must be determined within the context of the current proceedings. It is unclear where there even exists a Due Process right to privacy, but if such a right exists it must be considered in light of the specific provisions of the challenged act and any intrusions must be weighed against the public interest.

Area(s) of Law:
  • Constitutional Law

Emerson v. Mt. Bachelor, Inc.

In determining whether a defendant committed "grossly negligent" conduct, summary judgment is inappropriate where the plaintiff can show that the defendant has acted with indifference to the probable consequences of a dangerous instrumentality, that, with slight diligence should have been observed.

Area(s) of Law:
  • Tort Law

Lucht v. Mulino Hangar Cafe & Roadhouse, LLC

A trial court may not sua sponte dismiss a case where it had set a deadline for resolution but subsequently granted Plaintiff leave to amend the complaint, removing the plaintiff's ability to comply with the deadline.

Area(s) of Law:
  • Civil Procedure

Oil Re-Refining Co. v. Dept. of Environ. Quality

Under 40 CFR § 263.20(a)(1) or ORS 466.095(1)(c), when charging an entity with a violation of permit regulations regarding the transport and treatment of hazardous waste, the mental state of a charged entity at the time of the violation is irrelevant.

Area(s) of Law:
  • Environmental Law

Private Capital Group, LLC v. Harris

Under ORS 18.954, supplemental judgments granting an additional award cannot be ordered after a sheriff’s sale of property at issue. Any additional bid over the award amount must be disbursed.

Area(s) of Law:
  • Consumer Credit

Schultz v. Franke

To review for attachment under ORS 138.580 plain error applies when the petition meets three requirements: the error is an error of law, the legal point is obvious and not reasonably in dispute, and the record is sufficiently well-developed that a court “need not go outside the record or choose between competing inferences” to address the error.

Area(s) of Law:
  • Appellate Procedure

State v. Brumbach

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

Area(s) of Law:
  • Evidence

State v. Flores-Celestino

Trial court's error in determining its authority to vacate its own judgment not considered sufficiently "obvious" for the purpose of plain error review.

Area(s) of Law:
  • Appellate Procedure

State v. Gordon

Under Art. I, section 9 of the Oregon Constitution, a traffic stop is unlawful unless the officer has probable cause to believe the driver committed a violation. Probable cause is established where the officer subjectively believes a violation occurred and if that belief is objectively reasonable under the circumstances.

Area(s) of Law:
  • Criminal Procedure

State v. Howe

Pursuant to ORS 161.067(3) a defendant's multiple count assault convictions must be merged. To prevent merging, the state must show that there was a sufficient pause in the defendant's conduct to permit an opportunity for defendant to renounce the criminal intent of his conduct, and that, despite this pause, defendant continued to engage in criminal activity.

Area(s) of Law:
  • Sentencing

State v. Murphy

Police officer’s subjective belief that Driver had violated ORS 811.315 (obstructing the flow of traffic) by driving in the left lane at 32 MPH in a 35 MPH zone is objectively unreasonable. Reversed and remanded.

Area(s) of Law:
  • Criminal Law

Department of Human Services v. K.W.

Under ORS 419B.923(1), the juvenile court has discretion to set aside a default termination of parental rights judgment if it had been entered into improperly, but only under certain circumstances.

Area(s) of Law:
  • Family Law

Rhodes v. U.S. West Coast Taekwondo Assn., Inc.

In a negligence action, a former employer may be liable for harm caused by negligent training and supervision of employees and unsafe operating policies, where by express agreement employees were to be hired by the new employer taking over operations.

Area(s) of Law:
  • Tort Law

Sanger v. Employment Dept.

The Employment Appeals Board is required to review de novo appeals regarding unemployment benefits.

Area(s) of Law:
  • Administrative Law

State v. Alexander

For third degree assault, extreme indifference to the value of human life is satisfied by intoxicated driving plus other erratic, reckless conduct that demonstrates a state of mind where an individual cares little about the risk of death of a human being.

Area(s) of Law:
  • Criminal Law

State v. Crosswhite

Under ORS 167.325(1), an individual has "custody or control" over an animal if that individual has authority to guide or manage an animal, or direct or restrain the animal.

Area(s) of Law:
  • Criminal Law

State v. Gerhardt

When determining whether restitution for a victim arising from criminal conduct of a defendant, the court should look to when the conduct causing restitution owed occurred and whether it is a direct result of the initial criminal conduct and not latter criminal conduct stemming from the initial criminal conduct.

Area(s) of Law:
  • Remedies

State v. Mattheisen

Under Article I, section 12 of the Oregon Constitution, officers must give a suspect Miranda warnings when questioning occurs under compelling circumstances. Courts look to four factors to determine whether a situation is compelling: (1) the location of the encounter; (2) the length of the encounter, (3) the amount of pressure exerted on the defendant; and (4) the defendant’s ability to terminate the encounter.

Area(s) of Law:
  • Constitutional Law

State v. Rodriguez-Moreno

A defendant’s confession that leads to a felony murder conviction is voluntarily given where detectives told Defendant that they needed to know what happened to a child in order for the doctors to treat her, because, given the totality of the circumstances, the detective’s statement did not cultivate coercive circumstances.

Area(s) of Law:
  • Criminal Law

State v. Sokell

Under ORS 181.805, sexual abuse is defined as “sexual abuse in any degree” as well as “any attempt to commit” sexual abuse in any degree. A sentence’s duration is not “proportioned to the offense” when the length of the sentence would shock the moral sense of a reasonable person under the circumstances.

Area(s) of Law:
  • Sentencing

State v. Sullivan

A trial court may not impose restitution arising out of dismissed charges when the defendant did not admit the charged criminal conduct. Under ORS 138.222(5), when a trial court errs in imposing restitution a case may only be remanded if there are permissible alternatives a trial court could adopt upon resentencing.

Area(s) of Law:
  • Remedies

State v. Watchman

Under ORS 151.505(3) and ORS 161.665(4), a trial court commits reversible error by imposing attorney fees on a defendant if it does not indicate on the record that the defendant can pay those attorney fees.

Area(s) of Law:
  • Attorney Fees

State v. Waters

DEQ's lack of authority to issue a permit is not a valid defense to not owning a permit. Suction dredging does not cause a discharge requiring an NPDES permit.

Area(s) of Law:
  • Environmental Law

AS 2014-11 5W LLC v. Kaplan Landlord, LLC

Under ORCP 47(C), summary judgment is only appropriate if there are no genuine issues of material fact and the non-moving party is entitled to judgment as a matter of law. There are no genuine issues of material fact if, when viewing the record in the light most favorable to the non-moving party, no reasonable juror could return a verdict for the non-moving party on the matter of the summary judgment motion.

Area(s) of Law:
  • Civil Procedure

Eklof v. Steward

Under ORS 138.550(3) it is the petitioner's duty to submit evidence that the grounds for relief asserted could not have been reasonably raised in the original petition.

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

Hamlin v. PERB

Under ORS 238.465, Public Employee Retirement System participants can have their retirement accounts divided after a judgment to an estate.

Area(s) of Law:
  • Administrative Law

State ex rel O'Connor v. Helm / Clackamas County

Where a party files a petition for a writ of mandamus to compel a final order, ORS 34.740 does not require a court grant a motion to amend that effectively converts the petition for a writ of mandamus into a declaratory judgment action.

Area(s) of Law:
  • Civil Procedure

State v. Kurtz

Under ORS 151.505(3), a defendant pays a court-appointed attorney fee only if they can "or may be able to” pay them. A court lacks authority to impose court-appointed attorney fees unless the court finds on the record that the person is or may be able to pay those costs.

Area(s) of Law:
  • Criminal Procedure

State v. Opitz

An appellate court may reverse judgment requiring defendant to pay attorney fees if the trial court erred in its assessment of defendant's ability to pay those fees; an appellate court does not have authority to exercise discretion when the trial court refuses to order defendant eligible for sentence modification.

Area(s) of Law:
  • Sentencing

State v. Sanchez

Under Article 1, section 9 of the Oregon Constitution, when an individual's right to be protected against unreasonable searches and seizures is violated, the court must look to the totality of circumstances in determining whether to suppress evidence collected thereafter. An individual’s consent does not automatically break the causal chain between the illegal search and seizure and evidence collected.

Area(s) of Law:
  • Evidence

Blachana, LLC v. BOLI

Article I, section 8 of the Oregon Constitution does not protect coercive speech found to violate ORS 659A.403, 659A.406, and 659A.409.

Area(s) of Law:
  • Constitutional Law

B. R. v. Department of Human Services

If a trial court allows a parent to appear at the hearing over the telephone, they must allow the parent to participate, including testifying against DHS's case against them.

Area(s) of Law:
  • Juvenile Law

C. P. v. Librande

Appellants have the responsibility to provide the appellate court with a sufficient record of the trial court proceeding. Absent a transcript of a trial proceeding, the appellate court may not have enough factual information to judge the appeal.

Area(s) of Law:
  • Appellate Procedure

Department of Human Services v. J. C. H.

On reconsideration, the Court removed reference to one allegation by DHS against a parent that did not support the trial court's jurisdictional decision.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. J.R.

In order for the juvenile court to assume jurisdiction over a minor, the court must find that there is current serious, nonspeculative threat of harm to the child that is reasonably likely to be realized.

Area(s) of Law:
  • Juvenile Law

J.A.W. v. Employment Department

The unemployment insurance extended benefit statutes, ORS 657.321 – 657.329, do not specify a time limitation for filing for extended benefits, and applying the time limitation specified for filing for regular benefits could lead to an inconsistent result where an applicant was unable to file for or ineligible to receive the extended benefits.

Area(s) of Law:
  • Administrative Law

MT & M Gaming, Inc. v. City of Portland

Under ORS 28.020, to seek relief under the Uniform Declaratory Judgments Act, a plaintiff must establish that his or her rights, status, or other legal relations are affected by the relevant instrument.

Area(s) of Law:
  • Standing

Philbert v. Kluser

Affirmed without discussion.

Area(s) of Law:
  • Tort Law

State v. Adams

Interfering with a peace officer (ORS 162.247) requires proof of defendant’s intent to interfere with officer’s lawful duties respecting a third party.

Area(s) of Law:
  • Criminal Law

State v. Austin

Under the Oregon Supreme Court’s decision in Harrell/Wilson, a judge’s discretion to consent to a defendant’s Article I, section 11 right to request to waive a jury trial exits primarily to ensure that a defendant’s rights at trial are protected by ensuring the defendant is adequately represented and not improperly influenced. A judge may also consider judicial economy and speed.

Area(s) of Law:
  • Criminal Law

State v. Barger

The Court of Appeals has discretion to reverse trial court's imposition of attorney fees where the trial court did not determine the defendant's ability to pay attorney fees.

Area(s) of Law:
  • Sentencing

State v. Belander

When a person is convicted of a crime that results in economic damages, they can forced to pay restitution, which is a specific amount that equals the full amount of the victim’s economic damages as determined by the court. Economic damages include objectively verifiable monetary losses including reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.

Area(s) of Law:
  • Remedies

State v. Castillo-Lima

A police officer's search of a criminal suspect's pockets must be supported by something more than reasonable suspicion. Further, in making snap decisions in the heat of the moment, police officers are to be granted considerable latitude to take reasonable safety precautions.

Area(s) of Law:
  • Criminal Law

State v. D.Z.

When a trial court's written order is inconsistent with its oral findings, it may be vacated and remanded for entry of a correct written order, where the written form is highly susceptible to clerical error.

Area(s) of Law:
  • Civil Procedure

State v. Haugen

The Lawson/James framework gives the three requirements for addressing challenges to eyewitness identification reliability.

Area(s) of Law:
  • Evidence

State v. McGrattan

A warrantless search may be conducted under the emergency aid doctrine only where entry is necessary to render immediate aid to persons, or to assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.

Area(s) of Law:
  • Evidence

State v. Morgan

The automobile exception authorizes warrantless searches when officers have probable cause to search a vehicle that is mobile at the time that the police encounter it in connection with a crime; any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant.

Area(s) of Law:
  • Evidence

State v. Turner

A defendant's motion to sever claims may be denied if crimes against multiple victims are “sufficiently simple and distinct to mitigate the dangers created by joinder"; Court of Appeals may reverse trial court's imposition of attorney fees if the court did not discuss defendant's ability to pay those fees.

Area(s) of Law:
  • Criminal Law

State v. Vennell

For an officer to have reasonable suspicion to conduct a search, the smell of drugs on the suspect can meet the objective prong of the reasonable suspicion test.

Area(s) of Law:
  • Criminal Procedure

State v. Worth

Pursuant to ORS 161.737(1), a dangerous offender’s determinate sentence can be considered a departure sentence which would be governed by the “400%” rule set forth for sentencing purposes in OAR 213-008-0007(3). OAR 213-012-0020(5)’s rules apply to consecutive presumptive sentences. “The ultimate result is that the “shift-to-I” and “200%” rules have no direct application to dangerous offender sentences and are implicated only derivatively if a trial court imposes a dangerous offender determinate term in excess of the guidelines presumptive sentence.”

Area(s) of Law:
  • Sentencing

Swank v. Terex Utilities, Inc.

Under ORCP 4 D, a trial court has specific jurisdiction over a defendant if there is a nexus between the forum state, that defendant, and the subject matter of the litigation. Under ORCP 4 A, a trial court lacks general jurisdiction over a defendant if the plaintiff fails to show that defendant had “substantial and not isolated” contacts within the forum state.

Area(s) of Law:
  • Civil Procedure

October 38 summaries

Barrett v. Peters (A155789)

Under the Interstate Corrections Compact (ORS 421.245 to ORS 421.254), a petition for a writ of habeas corpus by a plaintiff under Oregon legal custody who is serving a sentence in a Florida prison properly names the Oregon director of the Department of Corrections, and can seek relief from conditions of confinement that are unconstitutional under the Oregon Constitution.

Area(s) of Law:
  • Habeas Corpus

Barrett v. Peters (A156271)

Individuals who are under the legal custody of the State of Oregon, but are incarcerated in Florida pursuant to the Interstate Corrections Compact (ORS 421.245 to ORS 421.254), retain the right to seek habeas corpus relief in Oregon for constitutionally deficient conditions of confinement in Florida.

Area(s) of Law:
  • Habeas Corpus

State v. Heise-Fay

Compelling circumstances are when a suspect is placed in a position that a reasonable person in that position would feel compelled to answer a police officer’s questions. Compelling circumstances are determined through a totality of the circumstances based on a four factor test set forth in State v. Roble-Baker, 340 Or 631, 641 (2006).

Area(s) of Law:
  • Criminal Procedure

State v. J.S.

ORS 426.005(1)(e)(B) provides that for a person to be involuntarily committed there must be evidence that the person is unable to provide basic personal needs and is not already receiving such care.

Area(s) of Law:
  • Evidence

State v. Mulvaine

Under the new standard announced in State v. Mills, under Article I, section 11 of the Oregon Constitution, the State does not have to prove appropriate venue beyond a reasonable doubt, and a defendant must challenge venue in a pretrial motion.

Area(s) of Law:
  • Criminal Law

State v. Nutt

ORS 153.633 provides that up to $60 of fines paid by criminal defendants are allocated to the state; the statute is not intended to impose an additional $60 fine on criminal defendants.

Area(s) of Law:
  • Sentencing

State v. Ramirez-Reyes

Under ORS 151.505(3), a trial court commits plain error by imposing $5,000 in court-appointed attorney fees without considering whether the defendant "is or may be able to pay" the fees.

Area(s) of Law:
  • Criminal Law

Sullivan v. Popoff

An attorney's decision not to raise certain objections does not automatically call into question the reasonable professional skill and judgment of defense counsel under the Oregon Post-Conviction Relief Act.

Area(s) of Law:
  • Criminal Procedure

Early v. Employment Department

When determining unemployment benefits, employees are not required to have exhausted every single option after every issue in order to show that they left voluntarily but with good cause; the standard is whether a reasonable and prudent person with the same characteristics and qualities as the employee would have considered the situation so grave that he or she had no reasonable alternative but to voluntarily leave work.

Area(s) of Law:
  • Employment Law

Goodman v. SAIF Corp.

Upon review of a denied claim for a new injury based on a combined condition, the Workers Compensation Board must determine whether the new injury has ceased to be a major contributing cause of or need for treatment for the combined condition.

Area(s) of Law:
  • Workers Compensation

Hardy v. Land Board

Under ORS 274.400 to 274.412 and OAR ch. 141, div. 121, the State may claim ownership of navigable waterways by demonstrating with substantial evidence the use or susceptibility to use of the waterway, or segment thereof, as a highway of commerce at the time of statehood.

Area(s) of Law:
  • Land Use

Lambert v. Premo

The Court of Appeals will not review an unpreserved request for a delayed appeal where the petitioner, on advice of his attorney, requested relief in the form of remand for a new trial and resentencing rather than for delayed appeal.

Area(s) of Law:
  • Criminal Procedure

Multi/Tech Eng. Svcs. v. Innovative Des. & Constr.

In order to prove a perfected construction lien under ORS 87.010(5), a litigant must show that sufficient notice of the lien rights was provided to the opposing party before foreclosing on that lien.

Area(s) of Law:
  • Property Law

Severy v. Board of Parole

The Board of Parole must may conduct a hearing, using whatever procedures it deems appropriate, to set each prisoner’s release date according to the matrix in effect when he committed his crime.

Area(s) of Law:
  • Sentencing

State v. Huffman

Motion to suppress evidence was properly denied where, under the specific facts of a traffic stop, Officer had reasonable suspicion that Defendant had committed a drug-related crime.

Area(s) of Law:
  • Criminal Procedure

State v. Kelly

Under ORS 163.575, the evidence must prove beyond a reasonable doubt that children were present at the time alleged illegal activity occurred. Under Article I, section 9 of the Oregon Constitution, an officer may only perform a warrantless search where probable cause exists, such that the arresting officer subjectively believes that it is more likely than not that the suspect committed a crime and if that subjective belief is objectively reasonable under the totality of the circumstances

Area(s) of Law:
  • Criminal Law

State v. Mross

The standard of determining whether content is a "lewd exhibition" is whether a reasonable fact finder could find, beyond a reasonable doubt, that the content was created "with the intent of stimulating the lust or sexual desires of the person who views it."

Area(s) of Law:
  • Criminal Law

State v. Zepeda

Pursuant to ORS 161.665(4), the State must bear the burden of proof establishing that the defendant has or might acquire resources to pay for court-appointed attorney fees to be imposed.

Area(s) of Law:
  • Criminal Law

Wall Street Management & Capital, Inc. v. Crites

"Where a guarantor signs a guaranty outside the creditor's presence and without having first received a direct request from the creditor asking that the guarantor do so, the guarantor has merely made an offer to the credit to form a contract" and acceptance by the creditor would be necessary to form a contract.

Area(s) of Law:
  • Contract Law

Adams and Adams

Under OAR 137-050-0760, a parent's actual and potential income are the only two things allowed to be considered in determining income for support, not the income of other individuals in the house.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. A. W. (A158694)

A parent’s failure to appear for a status conference does not equate with a parent’s failure to appear for a hearing for a termination of parental rights, and therefore a parent’s failure to appear for a status conference is not grounds for default judgment under ORS 419B.820(7).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. A. W. (A159213)

Cases will be dismissed from the Court of Appeals as moot, even if otherwise justiciable, when the Court’s decision would no longer have a practical effect on or concerning the rights of the parties.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. E. J. E.

Parental rights may be terminated based on unfitness of a parent due to conduct or condition seriously detrimental to the child under ORS 419B.504 where it is in the best interests of the child under ORS 419B.500.

Area(s) of Law:
  • Juvenile Law

Gonzalez-Aguilera v. Premo

In reviewing a claim for plain error, the Oregon Court of Appeals has the ability to use their discretion to correct the error.

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

Hall v. State of Oregon

Oregon whistleblower statutes require subjective good faith; an employee may have been wrongfully discharged when he filed a police report against his employer if the filing was objectively reasonable within the circumstances.

Area(s) of Law:
  • Employment Law

L.D. v. T.J.T.

To support jurisdiction over a 19-year-old adult, it must be proven that the original bases for jurisdiction still pose a current threat of serious loss or injury that is reasonably likely to be realized.

Area(s) of Law:
  • Juvenile Law

State v. Raymond

Under Article I, section 9, of the Oregon Constitution, an exigent circumstance exists where an officer has probable cause to believe that alcohol and/or a controlled substance will be found in a suspect’s blood or urine.

Area(s) of Law:
  • Criminal Law

State v. Walker

Under ORS 151.505 and ORS 161.665, a defendant cannot be ordered to pay court-appointed attorney fees unless the court makes a determination that the defendant is or may be able to pay the fees, and includes evidence on the record as to that determination.

Area(s) of Law:
  • Attorney Fees

Taylor v. Peters

An Oregon inmate who is incarcerated in Colorado under the Western Interstate Corrections Compact (WICC) properly names the Oregon Department of Corrections as a defendant in a petition for a writ of habeas corpus.

Area(s) of Law:
  • Criminal Procedure

Wieck v. Hostetter

Where the substantial terms of a contract have been agreed on and there is nothing left for future settlement, the fact that the contract has not yet been put into writing does not leave the transaction incomplete and without binding force unless the parties had a positive agreement that it should not be binding until so reduced to writing and formally executed.

Area(s) of Law:
  • Contract Law

State ex rel Willamette Cmty. Hlth. Sols. v. Lane Cty.

Under ORS 215.429(4), either a governing body or a designee may permit or deny a land use permit application. An applicant may not file a mandamus action to compel the government body to act if either the governing body or a designee has responded to the application, even if the response was issued after the 150-day limit.

Area(s) of Law:
  • Land Use

State v. Carcamo-Tellez

Pursuant to ORS 137.225 the court must grant a motion to set aside certain convictions unless findings by clear and convincing evidence are made that “granting the motion would not be in the best interests of justice.” Unstipulated information asserted by counsel without any other proof is not considered evidence.

Area(s) of Law:
  • Civil Procedure

State v. D.B.L.

An order of civil commitment under ORS 426.130 must be supported by legally sufficient evidence.

Area(s) of Law:
  • Civil Commitment

State v. E.K.I.

An order committing a person for not more than 180 days under ORS 426.130 must be supported by legally sufficient evidence.

Area(s) of Law:
  • Civil Commitment

State v. Sjogren

When stopping a person for trespass, an officer’s reasonable suspicion must be supported by facts that would lead a reasonable person to realize the property was not open to the public.

Area(s) of Law:
  • Evidence

State v. Smith

"Use" in ORS 166.220(1)(a) includes both the actual use of physical force and the threat of immediate use of physical force.

Area(s) of Law:
  • Criminal Law

Stone v. Employment Department

When holding a part time employment position, an employee must continue to actively seek full time employment according to ORS 657.155(1)(c) if the employee wishes to continue to receive unemployment benefits during that time period.

Area(s) of Law:
  • Employment Law

Zimmerman v. LCDC

Under ORS 197.175(1) a city must exercise zoning authority consistent with state statutes and applicable LCDC rules articulating statewide development goals. A city’s efforts to comply with LCDC goals is sufficient where it uses the best available data in creating its economic development plan.

Area(s) of Law:
  • Land Use

November 33 summaries

Dept. of Human Services v. J. R.

A parent's alcohol abuse may be a sufficient basis for the juvenile court to assert jurisdiction, where the totality of the circumstances pose a "serious threat of loss or injury."

Area(s) of Law:
  • Juvenile Law

Dudrov v. State of Oregon

ORS 138.640(1) imposes a clear-statement rule on judgments in post-conviction proceedings.

Area(s) of Law:
  • Criminal Law

Gonzales v. Taylor

Under ORS 138.640 and Datt v. Hill, a judgment in a post-conviction relief proceeding must clearly state the grounds on which the matter was decided, and whether the matter presented a state or federal question. A “clear statement” must (1) identify the claims on which a petitioner asked for relief and make a separate ruling on each claim, (2) state whether each claim for relief is procedurally or legally insufficient, and (3) make apparent the legal basis for denial of relief by identifying each element the court determines a petitioner did not meet.

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

Handy v. Lane County

Under ORS 192.690, to "meet" means something less restrictive than just contemporaneous meetings. The determinative factors for whether a violation of the Public Meetings Law has occurred is whether a sufficient number of officials are involved, what they discuss, and the purpose for which they discuss it.

Area(s) of Law:
  • Municipal Law

SAIF v. Bales

ORS 656.386(1)(a) requires the insurer to pay the claimant’s attorney fees in various circumstances, including when the insurer denies a claim for compensation and the claimant’s attorney is instrumental in obtaining rescission of the denial.

Area(s) of Law:
  • Workers Compensation

Sate v. Nesbit

Under ORS 137.717(1)(a)(A) (2009), where an indictment contains multiple counts of similar conduct, before a court can use the sentence for one count as a “previous conviction” for purposes of sentencing for the other counts, the State bears the burden to prove that the counts could be tried separately without violating double jeopardy principles.

Area(s) of Law:
  • Sentencing

Smith v. Dept. of Corrections

In notice and comment rulemaking, complaints against a fiscal impact statement may only be considered if they show how the fiscal impact of the rule would affect factors not considered by the agency promulgating a rule.

Area(s) of Law:
  • Administrative Law

Soderstrom v. Premo

Under ORS 138.640 and Datt v. Hill, a judgment in a post-conviction relief proceeding must clearly state the grounds on which the matter was decided. A “clear statement” must (1) identify the claims on which a petitioner asked for relief and make a separate ruling on each claim, (2) state whether each claim for relief is procedurally or legally insufficient, and (3) make apparent the legal basis for denial of relief by identifying each element the court determines a petitioner did not meet.

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

State v. Betcher

Oregon's non-vouching rule prohibits the admission at trial of evidence of one witness's opinion about another witness's credibility expert or otherwise.

Area(s) of Law:
  • Criminal Law

State v. Crummett

If charges are properly joined, the party seeking severance of those charges bears the burden of showing that the joinder will effectuate substantial prejudice to the defendant and the court is not to presume it. The party must be specific in demonstrating how the joinder will lead to prejudice and the arguments must relate to specific facts of the defendant’s case.

Area(s) of Law:
  • Criminal Procedure

State v. Flagg

A court may not impose attorney fees on a criminal defendant without discussion of the defendant's ability to pay those fees.

Area(s) of Law:
  • Attorney Fees

State v. Furrillo

Under the automobile exception to a warranted search, a backpack of a passenger can be included as a container that can be searched if the backpack is in the vehicle at the time probable cause for the search arose.

Area(s) of Law:
  • Evidence

State v. Graham

A court may not impose attorney fees on a criminal defendant without discussion of the defendant's ability to pay those fees.

Area(s) of Law:
  • Attorney Fees

State v. Romero

Under ORS 138.692 and State v. Johnson, when making a motion for DNA testing after conviction, a defendant must (1) include an affidavit asserting his innocence, identifying the evidence to be tested and putting forth a theory of defense that the DNA testing would support, and (2) make a prima facie showing of actual innocence that is more than a mere assertion of innocence.

Area(s) of Law:
  • Sentencing

State v. Saranpaa

The rial court erred when it imposed attorney fees on Defendants in the written judgment but not during Defendants’ hearings.

Area(s) of Law:
  • Criminal Procedure

State v. Scruggs

A strip search culminating in a highly intrusive search into a suspect's genital or anal areas is justifiable under the search incident to arrest exception only where the search is reasonable in time, scope, and intensity.

Area(s) of Law:
  • Criminal Procedure

State v. Steele

Under Article I, Section 9, of the Oregon Constitution, a police officer must have a "reasonable suspicion," which may include "reasonable safety concerns," to conduct a pat-down search during an investigation.

Area(s) of Law:
  • Constitutional Law

7455 Incorporated v. Tuala Northwest, LLC

A third party does not have standing to bring a prescriptive easement claim.

Area(s) of Law:
  • Civil Procedure

Loucks v. Beaver Valley's Back Yard Garden Products

Under ORS 652.150, an employer is not required to pay a penalty for failure to timely pay unpaid wages to the estate of a deceased employee, because ORS 652.150 merely applies employers who fail to timely pay employees who have quit.

Area(s) of Law:
  • Employment Law

Rowen v. Gonenne

Trial court in medical malpractice case acted properly when it: (1) included a study presented to a center’s quality management committee, as it was not a written report “to a peer review body”; (2) excluded a 2010 study because its probative value was outweighed by the danger of unfair prejudice, as it contained information not available to Defendants in 2009; and (3) permitted Defendants to question Plaintiff’s surgeon about the circumstances of unrelated surgeries because it was relevant to establish causation.

Area(s) of Law:
  • Civil Law

State v. Abbott

A witness, expert or otherwise, may not give an opinion on whether he believes a another witness is telling the truth. This general prohibition against asking one witness to comment on the credibility of another applies on cross-examination where a prosecutor asks a criminal defendant whether a law enforcement officer is lying.

Area(s) of Law:
  • Criminal Procedure

State v. Febuary

The doctrine of "presumption of vindictiveness" only applies when a criminal defendant is resentenced to a longer or otherwise more severe total sentence.

Area(s) of Law:
  • Sentencing

State v. Jones

A trial court’s error in excluding evidence in a criminal trial is harmless if, based on other, properly allowed evidence, the judgment rendered would be the same as if the questioned evidence were excluded. A trial court’s error in sentencing is harmless if the ultimate sentence is lawful and error has no practical effect on a criminal defendant.

Area(s) of Law:
  • Appellate Procedure

State v. Morgan

Under ORS 164.405(1)(b), to qualify as “another person actually present”, that person does not need to know that a crime has been committed or intend to aid a defendant in commission of that crime. Rather, the person must merely be in proximity to the victim to be an added threat.

Area(s) of Law:
  • Criminal Law

State v. Navaie

A trial court may rely on circumstantial evidence when determining whether evidence is hearsay or not hearsay (statement of party opponent) in an OEC 104(1) hearing. Proponents of disputed evidence does not need to show that the testifying witness personally witnessed the party making the statement.

Area(s) of Law:
  • Evidence

State v. Satterfield

A defendant having “good reason to know” is insufficient to convict the defendant of theft by receiving, ORS 164.095(1), which, as interpreted by State v. Korelis, requires actual knowledge or belief that property was stolen.

Area(s) of Law:
  • Criminal Law

State v. Sherman

A passenger is not automatically seized during a traffic stop and the determination of his seizure is whether there was a significant “show of authority” by the police. Moreover, while voluntary consent given by the defendant is an important consideration, it does not cure any unlawful conduct committed by the police. The voluntary consent should be reviewed alongside “the nature of the unlawful [police] conduct, including its purpose and flagrancy, the temporal proximity between the unlawful conduct and consent, and the presence of intervening or mitigating circumstances.”

Area(s) of Law:
  • Criminal Procedure

Wohrman v. Rogers

ORS 63.165 grants limited immunity from personal liability to members of an LLC for obligations undertaken by the LLC, even where the LLC is administratively dissolved and the obligation does not arise from business activities to wind up or liquidate the LLC's business.

Area(s) of Law:
  • Corporations

State v. Davenport

A typographical error did not affect the Court’s reasoning or disposition; therefore, reconsideration was allowed to correct the error and the opinion was adhered to as modified.

Area(s) of Law:
  • Appellate Procedure

State v. Jesse

Under OEC 702, where a defendant offers expert testimony that explains a connection between the defendant’s behavior and the expert’s opinion of the defendant’s mental health issues, the evidence could help the jury assess the defendant’s behavior and should not be excluded on the basis of a lack of nexus.

Area(s) of Law:
  • Evidence

Blachana, LLC v. BOLI

If a party requests reconsideration of an opinion published by the Court of Appeals based on an erroneous factual finding, the Court will review its decision, and, if necessary, modify its opinion. The Court will then adhere to its opinion as modified.

Area(s) of Law:
  • Appellate Procedure

R.M.C. v. Zekan

Under ORS 30.866(1), a stalking protective order is obtainable only where a petitioner can show that the respondent's conduct causes the petitioner to fear for personal safety.

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

State ex rel Rosenblum v. Johnson & Johnson

Under the Oregon Unlawful Trade Practices Act, a material risk that a product has a latent defect is exactly the kind of inherent feature of a product implicated. The risk itself is a "fact" for the purposes of the UTPA, and its nondisclosure is actionable.

Area(s) of Law:
  • Tort Law

December 91 summaries

Dept. of Human Services v. M. C. C.

Participating in dependency proceedings for more than two years without raising an objection to the sufficiency of service under the Hague Service Convention waives the objection.

Area(s) of Law:
  • Civil Procedure

Federal National Mortgage Association v. Goodrich

Under the Oregon Trust Deeds Act, the Mortgage Electronic Recording System (MERS) is neither a lender nor a successor to a lender, and therefore cannot be a proper beneficiary. A non-judicial foreclosure by an assignee of MERS is invalid where there was no recording of the assignment in the county in which the property is located.

Area(s) of Law:
  • Civil Procedure

Santoscoy v. DMV

An agency did not fail to give a license applicant notice for the reason his license was suspended where the applicant failed to raise the notice issue until he brought it up his reply brief.

Area(s) of Law:
  • Administrative Law

Southard v. Larkins

A court will not invalidate a marriage unless timely evidence proves that the marriage was invalid. A trial court has jurisdiction and authority to exercise its discretion in awarding custody of children in a marriage dissolution.

Area(s) of Law:
  • Family Law

State v. Adams

Former ORS 137.290(2)(b) (2009) does not apply to cases of DUII and other like cases that have been codified outside of chapter 163.

Area(s) of Law:
  • Criminal Procedure

State v. Amsbary

Where the State failed to prove an officer subjectively believed the defendant’s small black pouch was or contained a dangerous or deadly weapon, and that belief was objectively reasonable, the seizure of the evidence did not meet the officer safety exception to the warrant requirement of Article I, section 9, of the Oregon Constitution and must be suppressed absent rebuttal of the presumption that the evidence was tainted by the violation.

Area(s) of Law:
  • Constitutional Law

State v. Burkette

In assessing the reasonableness of a delay, the court will examine the attendant circumstances including the “reasons for the delay, the length of the total delay attributable to the state, and the length of any portion of the delay that was unjustified.” Delays attributable to a lack of judicial resources “will, at some point, become unreasonable.”

Area(s) of Law:
  • Criminal Procedure

State v. C. S.

The word imminent as used in ORS 163.190 means "near at hand, impending, or menacingly near."

Area(s) of Law:
  • Criminal Law

State v. Carlton

Trial court did not err in imposing a true life sentence (ORS 137.719) on a defendant based on the conclusion that the defendant’s previous felony under California law (CPC 288) was comparable to an Oregon statute. Affirmed.

Area(s) of Law:
  • Criminal Law

State v. King

Under ORS 138.222(5)(a), where a trial court has amended a judgment adding a restitution award after the 90-day period allowed, the proper disposition of the case on appeal is not reversal but remand for resentencing if the trial court expressed a desire to have the defendant compensate the victim and the court could impose a compensatory fine that would be paid to the victim.

Area(s) of Law:
  • Sentencing

State v. Perez-Morales

Trial court committed plain error in ordering a defendant to pay court appointed attorney fees without first considering his ability to pay.

Area(s) of Law:
  • Criminal Procedure

State v. Pichardo

State v. Unger and the companion cases have modified the analysis set forth in State v. Hall say that, “when a defendant seeks to suppress evidence discovered during a consent search that followed unlawful police conduct, ‘the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the consent was not the product of police exploitation of the illegal stop or search.’”

Area(s) of Law:
  • Criminal Procedure

State v. Roy

A trial court may err when it fails to give a jury instruction informing the jury that at least 10 jurors must concur as to the specific crime or crimes the defendant intended to commit where a party does not request the instruction; however, on appeal, the Court may decline to consider and correct the alleged error where the defendant did not object to the instruction and the jury verdict met the concurrence requirement anyway.

Area(s) of Law:
  • Criminal Procedure

State v. Simonsen

When considering an assignment of error under the plain error doctrine, if case law and the statute do not clearly provide an certain outcome, the trial court will not be held to have committed plain error.

Area(s) of Law:
  • Criminal Procedure

State v. Templeton

Under ORS 138.694, it is not necessary to file for and be granted a petition for assistance of counsel prior to filing a motion for which the assistance of counsel was requested.

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

State v. Wasyluk

A trial court may exercise its discretion when responding to improper opinion statements by an attorney. When the improper statements are accidental and immediately addressed, it is not an abuse of discretion to issue a cautionary instruction instead of granting a mistrial.

Area(s) of Law:
  • Criminal Procedure

Asbill v. Angelozzi

Under ORS 138.640(1), if a judgment document denying post-conviction relief is sufficient even where it does not explicitly state the court’s findings underlying the reasons for denying relief, but makes reference to oral findings on the record which provide a sufficient basis for denying relief.

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

Dept. of Human Services v. J. M.

To support juvenile court jurisdiction following a motion to dismiss, the court must find that there is a current threat of serious loss or injury to the child and a reasonable likelihood that the threat will be realized, with burden on DHS. The risk of harm must be non-speculative and present at the time of the hearing.

Area(s) of Law:
  • Family Law

Federal Express Corp. v. Estrada

Under ORS 656.265(4)(c), the employee must know that he or she has been injured and have good cause for not reporting within the 90 day period.

Area(s) of Law:
  • Employment Law

Gibson v. Bankofier

To survive summary judgment in proving financial abuse of a vulnerable person under ORS 124.110(1)(a), a plaintiff must show facts to prove that defendant wrongfully took or appropriated money or property from a vulnerable person.

Area(s) of Law:
  • Trusts and Estates

Gutierrez v. Nooth

Under the Fifth Amendment, in order to implicate a defendant’s right to counsel while being questioned, a defendant must know he is speaking to a police officer. Under the Sixth Amendment, a defendant’s right to counsel attaches only once a prosecution has commenced, and encompasses only those crimes formally charged or crimes that, while not formally charged, would be the same under the test in Blockburger v. United States, that whether two charges relate to one act is whether each statutory violation requires proof of a fact that the other does not.

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

Masood v. Safeco Ins. Co. of Oregon

under Oregon law, “courts determine whether a contract is illegal by determining whether it violates public policy as expressed in relevant constitutional and statutory provisions and in case law, and by considering whether it is unconscionable.” An adjustment is not the only way for a new contact to be formed, but instead, when the parties agree to make a new contract, then a breach of that new agreement by either party could give rise to new legal rights. Evidence of “other crimes, wrongs or acts,” is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.

Area(s) of Law:
  • Contract Law

Oatney v. Premo

Under the inevitable discovery doctrine, the state must show by a preponderance of the evidence that purportedly derivative evidence was obtained wholly from an independent source or that it would inevitably have been discovered. “Derivative evidence” is any evidence obtained by use—evidentiary or nonevidentiary—of the immunized statement.

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

Phillips v. Dept. of Public Safety Standards and Training

When an employment case is heard by an administrator and his findings pertain to allegations of misconduct under OAR 259-008-0070 then the Department of Public Safety Standards and Training must consider that issue resolved in a certification case. However, if the administrator’s decision on allegations of misconduct is not made under OAR 259-008-0070 then the Department of Public Safety Standards and Training is able to review the issues of the case for misconduct under that statute despite the arbitrator’s decision.

Area(s) of Law:
  • Labor Law

State v. Delong

The scope of consent in a search is "determined by reference to what a typical, reasonable person would have understood by the exchange between the officer and the suspect in light of the totality of the circumstances surrounding the grant of consent in a particular case."

Area(s) of Law:
  • Criminal Procedure

State v. Gonzalez

Under OEC 803(3), hearsay statements intended to prove the state of mind of a defendant are admissible.

Area(s) of Law:
  • Evidence

State v. Hightower

Under Article I, section 11, of the Oregon Constitution, and State v. Blanchard, a defendant’s right to waive counsel may be limited where the defendant is unclear or equivocal or if granting the request to waive counsel will be disruptive to the orderly conduct of trial.

Area(s) of Law:
  • Constitutional Law

State v. Johnson

Under ORS 163.160(1)(a), to sustain a conviction of fourth-degree assault, the state must prove that the victim suffered a "physical injury" which is defined as "physical impairment or substantial pain" under ORS 161.015(7). Testimonial evidence that the victim felt a "sting" after the incident, alone, does not imply a "physical injury".

Area(s) of Law:
  • Criminal Law

State v. Kasper

A court may not impose attorney fees without announcing them in the presence of a criminal defendant; an imprisoned criminal defendant does not more disadvantaged than those similarly situated when he is denied the ability to credit time already served to a new sentence.

Area(s) of Law:
  • Sentencing

State v. Kuester

Convictions for separate crimes stemming from the same event may not be merged unless they share all elements in common; an indefinite sentence of post-prison supervision is not permitted by State v. Stalder.

Area(s) of Law:
  • Criminal Law

State v. Lowell

Denial of Defendant’s motion to suppress text messages was improper, because the Fourth Amendment search incident to arrest exception does not apply to digital data stored on cell phones. Reversed and remanded.

Area(s) of Law:
  • Criminal Procedure

State v. Martinez

A clearly made objection to an exhibit as a whole may be preserved but if the defendant does not distinguish between admissible and objectionable statements and the Court finds that any portion of that exhibit is admissible, the objection will no longer stand.

Area(s) of Law:
  • Evidence

State v. R.E.G.

Under ORS 427.290, a complete diagnostic report, including a diagnostic evaluation, is required before a civil commitment hearing can continue against an individual.

Area(s) of Law:
  • Civil Commitment

State v. Sasser

Under former ORS 137.290 (2009), the court was permitted to impose a Mandatory State Amt of 60$ for each conviction. The legislature repealed the law in 2011, and any convictions after that time may not have the Mandatory State Amt imposed.

Area(s) of Law:
  • Sentencing

State v. Zolotoff

Trial court may reconsider all counts of Defendant’s conviction for resentencing when on remand for reconsideration and resentencing for part of a felony package. Reversed and remanded for resentencing.

Area(s) of Law:
  • Criminal Procedure

Cascade Kelly Holdings, LLC v. Dept. of Energy

Plaintiff’s claims for final certification for energy tax credits was moot because the deadline to issue final certification passed while the case was on appeal, and attorney fees were improperly awarded to Plaintiff because ORS 182.090 applies only to attorney fees in civil proceedings brought outside of the APA to which an agency is a party.

Area(s) of Law:
  • Administrative Law

Dept. of Human Services v. M.L.S./K.M.

Without discussing the facts underlying the appeal, the Court affirmed the termination of Mother and Father’s parental rights based on ORS 419B.504, by reason of conduct or condition seriously detrimental to the child.

Area(s) of Law:
  • Family Law

Fort v. Persson

A dismissal without prejudice cannot give rise to claim preclusion.

Area(s) of Law:
  • Habeas Corpus

Hill v. Coursey

A court-appointed attorney is not constitutionally inadequate when the attorney fails to object to testimony of an out-of-court statement detailing an opinion about the credibility of another witness.

Area(s) of Law:
  • Evidence

Hughes v. Ephrem

When assessing a defense to an action for forcible entry and detainer predicated on a quitclaim transfer of the property to another party in a life estate, the trial court must make factual findings regarding the intent of the parties at the time of the transfer.

Area(s) of Law:
  • Property Law

Labor Ready v. Mogensen

While ORS 656.262(7)(a) and ORS 656.267 require "notice of new medical conditions, they do not require notice of diagnoses.” Moreover, “a particular diagnosis is not required to support the compensability of a work-related condition.”

Area(s) of Law:
  • Workers Compensation

Southard and Larkins

In custody proceedings, custody of a child may be granted to a primary caretaker who is a stepparent of a child; a primary caretaker seeking custody of a child may overcome the presumption that a biological parent acts in the best interest of a child if the caretaker may show that the child will face a detriment if removed from the primary caretaker's custody.

Area(s) of Law:
  • Family Law

State v. Monroe

Revoking probation based on one violation is not an abuse of discretion if the condition of probation is "zero tolerance/no structured sanctions."

Area(s) of Law:
  • Criminal Law

State v. Oliver

Under OEC 404(4) as construed by State v. Williams, 357 Or 1 (2015), evidence of other acts by a defendant may be admissible if the evidence is relevant under OEC 401 and its probative value outweighs the danger of unfair prejudice as described in OEC 403.

Area(s) of Law:
  • Evidence

State v. Perez

When a defendant invites an error, such as by agreeing to it before the court has made its final decision, they lose the right to challenge that error on appeal through plain error review.

Area(s) of Law:
  • Appellate Procedure

State v. Pittman

Second-degree robbery is only a lesser included offense of first-degree robbery if the "accusatory instrument recited sufficient facts to satisfy each element of second-degree robbery."

Area(s) of Law:
  • Criminal Law

State v. Skaggs

Under ORS 138.222(5)(b), when an appellate court considers a case with multiple counts including at least one felony, if it reverses the judgment of any count and affirms the others, the case must be remanded to the trial court for resentencing.

Area(s) of Law:
  • Sentencing

State v. Wehr

The trial court may not impose a sentence requiring payment of court-appointed attorney fees without evidence in the record that the defendant is or may be able to pay such fees. With invited error, a party “cannot be heard to complain,” if the party “was actively instrumental in bringing [it] about."

Area(s) of Law:
  • Sentencing

Vaughn and Vaughn

A trial court retains personal jurisdiction over an out-of-state individual in motions captioned in relation to a dissolution judgment.

Area(s) of Law:
  • Family Law

Hutchings v. Amerigas Propane

Under ORS 656.005(25)(c), a worker’s preexisting condition makes him “susceptible” to injury if the condition increases the likelihood that the affected body part will be injured by some other action or process but does not actively contribute to damaging the body part.

Area(s) of Law:
  • Workers Compensation

Nacoste v. Halton Co.

ORS 656.273 does not apply to consequential conditions because those conditions are new medical conditions and distinct from the underlying condition.

Area(s) of Law:
  • Workers Compensation

State v. Corbin

Any error by a trial court if a party does not request a Leistiko instruction and the trial court fails to provide one is not a plain error. Moreover, a trial court need not follow the precise steps of the Mayfield analysis, the court still meets the requirements of Mayfield so long as the record establishes that the trial court considered the elements outlined in Mayfield.

Area(s) of Law:
  • Evidence

State v. Dylla

Court-appointed attorney fees are properly imposed against a defendant if the court finds on the record that the defendant's employment history, prospects for future employment, education level, ability to meet financial obligations, fee amount, and short jail sentence support a reasonable inference that defendant can or will be able to pay off the fee.

Area(s) of Law:
  • Attorney Fees

State v. Gasche

Under OAR 213-012-0020(2)(a)(B), the "shift-to-I" rule applies only when consecutive sentences are imposed for crimes that arise from a single criminal episode.

Area(s) of Law:
  • Sentencing

State v. Martinez

A trial court must make specific findings on the record that reasonable suspicion particular to the suspect existed when denying a criminal defendant's motion to suppress evidence that may have been gained after an unlawful seizure.

Area(s) of Law:
  • Criminal Procedure

State v. Perryman

Under Article I, section 9, of the Oregon Constitution and the Fourth Amendment of the United States Constitution, a warrantless, nonconsensual blood draw is valid under the exigent circumstances exception where the officer had probable cause to believe the defendant was intoxicated, a warrant could not have been obtained significantly faster than the process used under the circumstances, and, under the U.S. Constitution, the procedures used to extract the sample were reasonable.

Area(s) of Law:
  • Constitutional Law

Washington Fed. Savings and Loan v. Cheung

Under OEC 408, evidence of settlement communications is inadmissible if used to prove or show liability of a claim or its amount.

Area(s) of Law:
  • Evidence

Carleton and Carleton

Under OAR 137-050-0715(1), (2) and (4)(f), accelerated depreciation may be excluded from calculation of a party's income when determining support; when neither party presents evidence regarding what portion of depreciation expenses are accelerated, and the court points this out with opportunity to clarify, the court may properly exclude the entire amount if the support formula is properly applied.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. A. H.

Where the cumulative negative effects of a jurisdictional order entered on legally insufficient evidence are substantial enough, a motion to dismiss for mootness may be denied.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. B. K. F.

When a parent successfully challenges a portion of a jurisdictional judgment over a child, the unchallenged portion may remain valid to uphold jurisdiction.

Area(s) of Law:
  • Juvenile Law

Devin Oil Co., Inc. v. Morrow County

Under ORS 197.830(3), a person or party adversely affected by a land use decision that is made without a public hearing has standing to appeal that decision to LUBA. A party is adversely affected by such a decision only when the allowed land use impinges upon that party’s property or personal interests.

Area(s) of Law:
  • Land Use

Emrys v. Farmers Ins. Co. of Oregon

If two parties enter an agreement to insure a property, but identify the wrong property, an antecedent agreement to reform a contract has been met.

Area(s) of Law:
  • Contract Law

Greenwood Products, Inc. v. Greenwood Forest Products, Inc.

On Defendants Greenwood Forest Products, Inc. appeal, its seventh assignment of error regarding expert expenses was remanded to the court for an award of reasonable expert expenses.

Area(s) of Law:
  • Contract Law

Hamilton v. SAIF

The issue of whether a request for hearing is timely is a jurisdictional issue and must be decided by the Worker's Compensation Board as a threshold issue if presented as an issue in the original claim.

Area(s) of Law:
  • Workers Compensation

Heng-Nguyen v. Tigard-Tualatin School District

"A defendant receives actual notice under ORS 30.275(6) when (1) a communication informs the defendant of the time, place, and circumstances of the incident that gave rise to the claim that the plaintiff ultimately asserts and (2) the communication would lead a reasonable person to conclude that the plaintiff intends to assert a claim."

Area(s) of Law:
  • Civil Procedure

J.D. v. Klaptch

Whether a denial of a continuance is improper depends on the particular circumstances of the case and the reasons presented to the court at the time the request is denied.

Area(s) of Law:
  • Civil Procedure

Marquez v. Premo

A denial of post-conviction relief must (1) identify the claims for relief that the court considered and make separate rulings on each claim, (2) declare, with regard to each claim, whether the denial is based on a petitioner's failure to utilize or follow available state procedures or a failure to establish the merits of the claim, and (3) make the legal bases for denial of relief apparent (which can be established through oral findings).

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

Merritt and Alter

A claim that one party to dissolution overpaid child support to the other will fail without proper documentation of such overpayment.

Area(s) of Law:
  • Family Law

Miller v. Board of Parole and Post-Prison Supervision

The Board of Parole and Post-Prison Supervision’s authority over a parolee extends for the remainder of the parolee’s sentence unless and until the Board affirmatively discharges the parolee from parole supervision.

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

Portland Police Assn. v. City of Portland

Oregon appellate court decisions interpreting ORS 243.706(1) hold that “the public policy analysis must be directed at the award, not the [underlying] conduct”; therefore, the board is “not to substitute [its] judgment for the arbitrator’s determination of whether the public employee engaged in the conduct resulting in discipline.” As a condition of enforceability, any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions including but not limited to policies respecting sexual harassment or sexual misconduct, unjustified and egregious use of physical or deadly force and serious criminal misconduct, related to work.

Area(s) of Law:
  • Arbitration

Qwest Corp. v. City of Portland

Under ORS 221.515(1), in order to qualify as a privilege tax, a municipality must tax a telecommunications carrier that actually uses municipal rights-of-way in order to deliver services.

Area(s) of Law:
  • Municipal Law

Rivas-Valles v. Board of Parole

The 60-day deadline set forth in ORS 144.335(4) is only for the filing of a petition for review and not for the service of said petition given that the language of the statute only explicitly refers to the petition in regards to the deadline.

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

Sedgwick Claims Management Services v. Norwood

Employee’s injuries sustained while taking a document to the post office for Employer do not fall under the exception to worker’s compensation compensability for recreational or social activities “primarily for the worker’s personal pleasure.”

Area(s) of Law:
  • Employment Law

SIF Energy, LLC v. Dept. of Energy

ORS 469.215(4) required the Department of Energy to certify up to 110% of the actual costs of an action qualifying for a business energy tax credit. The Oregon legislature spoke clearly on the matter and did not leave room for agency interpretation otherwise.

Area(s) of Law:
  • Administrative Law

State v. Daly

"The appropriate time to challenge the existence of the conditions precedent to the issuance of the citation is in a pretrial motion aimed at the efficacy of the charging instrument."

Area(s) of Law:
  • Civil Law

State v. Fetzer

When a party fails to object to testimony at trial, the argument may not be preserved on appeal, even where the party successfully moved to exclude the substantive evidence upon which the testimony is based.

Area(s) of Law:
  • Appellate Procedure

State v. Gaines

When multiple theories of criminal liability are presented by the state, the trial court must give a jury concurrence instruction, requiring at least 10 jurors to agree on the theory of liability before a defendant can be convicted.

Area(s) of Law:
  • Civil Procedure

State v. Gallo

Under ORS 137.540(2), special conditions of probation are allowed, but cannot be more restrictive than necessary to achieve the goals of probation. A ban on the internet is reasonable for a defendant convicted of sexual abuse after posing as a teenager on the internet and luring an underage girl to a park where he sexually abused her.

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

State v. Inman

In general, a detective's testimony that witness statements remained consistent between interviews is not improper vouching testimony, where the detective is not speculating on the truthfulness of the witness statements.

Area(s) of Law:
  • Evidence

State v. Jones

Evidence of a nonconsensual warrantless search of a defendant's pocket and the subsequent search of a cigarette pack found in the pocket that did not fall under an exception to Article I, section 9, of the Oregon Constitution should have been suppressed.

Area(s) of Law:
  • Evidence

State v. Jones

Under Article I, section 9 of the Oregon Constitution, discovery of an outstanding warrant does not cure an unlawful police stop. Courts must consider three factors to determine whether the evidence obtained from the unlawful stop was sufficiently attenuated from the stop: “(1) the temporal proximity between unlawful police conduct and the discovery of the challenged evidence; (2) the presence of intervening circumstances; and (3) particularly, the purpose and flagrancy of the official misconduct.”

Area(s) of Law:
  • Criminal Procedure

State v. Juarez-Hernandez

Trial court committed plain error in requiring Defendant to pay attorney fees without first considering Defendant’s ability to pay.

Area(s) of Law:
  • Criminal Procedure

State v. L. M. W.

Juvenile court had the authority to either amend or dismiss youth’s delinquency petition.

Area(s) of Law:
  • Juvenile Law

State v. T.Q.N.

Juvenile court had the authority under ORS 419C.261 to rule on youth’s motion for conditional postponement.

Area(s) of Law:
  • Juvenile Law

State v. Taylor

The Confrontation Clause of Article I, section 11, requires the court to allow a defendant to cross-examine a complaining witness about past accusations: (1) when the witness has recanted the accusations; (2) when the defendant demonstrates that those accusations were false; or (3) there is some evidence that the victim has made prior accusations that were false, unless the probative value of the evidence is substantially outweighed by the risk of prejudice, confusion, embarrassment or delay. “A trial court has authority to preclude [cross-examination based on the third category] when it reasonably determines that exploration of the previous incident would essentially require an unhelpful trial within a trial.”

Area(s) of Law:
  • Evidence

State v. Thompson

When an error is unpreserved, a court will address it only if (1) the error is one “of law,” (2) the point of law is “apparent,” and (3) the error appears “on the face of the record.” If the state seeks to hold a defendant liable either as the principal or as an aider and abettor and if a party requests an appropriate instruction, the trial court should instruct the jury that at least 10 jurors must agree on each legislatively defined element necessary to find the defendant liable under one theory or the other

Area(s) of Law:
  • Criminal Law

State v. Williams

Under ORS 162.285(1)(a), tampering with a witness, at the time of an offender’s knowing or intended inducement of a potential witness, an offender’s statement’s must reflect, either directly or by fair inference, that the offender reasonably and specifically believes that the victim will be called to testify at an official proceeding.

Area(s) of Law:
  • Criminal Law

State v. Wixom

DHS records are confidential and, when unrelated to the issue in question, are not subject to in camera review.

Area(s) of Law:
  • Family Law

Tomlinson v. Metropolitan Pediatrics, LLC

Parents of a child medical care providers failed to diagnose with a genetic condition may have a legally cognizable claim of negligence against the providers, where the parents conceived another child with the same genetic condition as the first, because providers failed to give due care to the parents' legally protected interest in making an informed reproductive decision.

Area(s) of Law:
  • Tort Law

Vector Marketing Corp. v. Employment Dept.

Incentive payments for the number of demonstrations performed by Vector’s salespeople are not “commissions” and are therefore not exempt from unemployment insurance tax.

Area(s) of Law:
  • Employment Law

Washington County v. Querbach

In condemnation proceedings, ORS chapter 35 governs over statutory filing requirements listed in ORCP 9 or 17, so that an Offer of Compromise that is unsigned and unfiled when the county makes it, is considered “effective to sever [a] defendant’s entitlement to attorney fees and costs under ORS 35.300(4).”

Area(s) of Law:
  • Civil Procedure