Oregon Court of Appeals

2018

January 12 summaries

Columbia Pacific v. City of Portland

“Nondiscriminatory local laws that have only ‘incidental’ effects on interstate commerce are valid unless ‘the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.’” Pike v. Bruce Church, Inc., 397 US 137, 142, 90 S Ct 844 (1970).

Area(s) of Law:
  • Constitutional Law

Daniels v. Allstate Fire and Casualty Co.

To invoke the statutory safe harbor protection under ORS 742.061(3) an insurer must have, in writing, “accepted coverage and the only issues are the liability of the underinsured motorist and the damages due the insured.” Additionally, the insurer must have "consented to submit the case to binding arbitration." ORS 742.061(3)(a)-(b).

Area(s) of Law:
  • Insurance Law

Pilling v. Travelers Ins. Co.

“[ . . . ] the association of two or more persons to carry on as co-owners a business for profit creates a partnership, whether or not the person intended to create a partnership.” ORS 67.055.

Area(s) of Law:
  • Workers Compensation

Rains v. Stayton Builders Mart, Inc.

“When the legislature does not limit the duty that a defendant owes a plaintiff but does limit the size or nature of the remedy, the legislative remedy need not restore all the damages that the plaintiff sustained to pass constitutional muster, . . . but a remedy that is only a paltry fraction of the damages that the plaintiff sustained will unlikely be sufficient.” Quid pro quo and other factors could be used to help in the determination. Horton v. OHSU, 359 Or 168, 220-21,376 P3d 998 (2016).

Area(s) of Law:
  • Remedies

Sharma v. Providence Health & Services-Oregon

Under Hernandez-Nolt v. Washington County, 283 Or App 633, 641, rev den, 361 Or 543 (2017), to succeed on a wrongful discharge claim using a constructive discharge theory, a plaintiff must prove "that the employer’s motive for the constructive discharge was the plaintiff’s exercise of a job-related right or an important public duty."

Area(s) of Law:
  • Employment Law

State v. Robertson

Under ORS 163.575(1)(b), endangering a minor’s welfare exists when a minor enters or remains in a place where a “principal or substantial use of the place involves unlawful drug activity.” State v. Gonzalez-Valenzuela, 358 OR 451, 473 (2015).

Area(s) of Law:
  • Criminal Law

State v. T. W. W.

“Whether a person is a danger to others is determined by his condition at the time of the hearing as understood in the context of his history.” State v. L.R., 283 Or App 618, 625, 391 P3d 880 (2017). In order to authorize involuntary commitment based on a person’s inability to meet his basic needs as a result of a mental disorder, the evidence must show that it is unlikely the person will survive in near short term. State v. S.R., 267 Or App 618, 619, 341 P3d 160 (2014).

Area(s) of Law:
  • Civil Commitment

State v. Urig

“[W]hether an officer unlawfully extends a stop depends on whether the officer makes [an] unrelated inquiry instead of expeditiously proceeding with the steps necessary to complete the stop.” State v. Aung, 265 Or App 374, 379, 335 P3d 351, rev den, 356 Or 575 (2014).

Area(s) of Law:
  • Criminal Procedure

Dickson v. TriMet

The time to give notice of intent to file a tort claim begins when a litigant knows the facts of an injury; not when a litigant becomes aware of the legal significance of those facts. Doe v. Lake Oswego School District, 353 Or 321, 297 P3d 1287 (2013) (citing Kaseberg v. Davis Wright Tremaine, LLP, 351 Or 270, 278, 265 P3d 777 (2011)).

Area(s) of Law:
  • Tort Law

PIH Beaverton LLC v. Red Shield Insurance Co.

If there is doubt as to whether “allegations of a complaint against the insured state a cause of action that is defined within the coverage of a liability policy sufficient to compel the insurer to defend the action,” the court will resolve the doubt in the insured’s favor. West Hills Development Co. v. Chartis Claims, 360 Or 650, 653 (2016); Blohm et al v. Glens Falls Ins. Co., 231 Or 410, 415-16 (1962).

Area(s) of Law:
  • Insurance Law

State v. Burnham

Evidence obtained under invalid or overbroad portions of a warrant may be suppressed while evidence obtained under the rest of the warrant may be admissible. State v. Vermaas, 116 Or App 413, 416, 841 P2d 664 (1992), rev den, 316 Or 142 (1993).

Area(s) of Law:
  • Criminal Procedure

Van Winkel and Van Winkel

In determining what is just and proper in the distribution of marital assets, the trial court focuses “on equitable considerations, including such matters as . . . the extent to which a party has integrated a separately acquired asset into the common financial affairs of the marital partnership through commingling.” ORS 107.105(1)(f); Kunze and Kunze, 337 Or. 122,135-36, 92 P.3d 100 (2004). “[A]cts of commingling may convert a separately acquired asset into a joint asset of the marital partnership,” Kunze, at 139.

Area(s) of Law:
  • Family Law

February 17 summaries

State v. Beeman

A law prohibiting the actual possession of a firearm is legally valid under intermediate scrutiny so long as the law is “substantially related to an important governmental objective.” District of Columbia v. Heller, 554 US 570 (2008).

Area(s) of Law:
  • Constitutional Law

State v. Cowdrey

An officer's conduct during a traffic stop that extends "beyond that reasonably related to the traffic violation, must be justified on some basis other than the traffic violation." State v. Rodgers/Kirkeby, 347 Or 610, 623 (2010).

Area(s) of Law:
  • Criminal Procedure

State v. Cowdrey

An officer's conduct during a traffic stop that extends "beyond that reasonably related to the traffic violation, must be justified on some basis other than the traffic violation." State v. Rodgers/Kirkeby, 347 Or 610, 623 (2010).

Area(s) of Law:
  • Criminal Procedure

State v. Davis

A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: (1) irregularity in the proceedings of the court, jury, or adverse party, or any other of the court, or abuse of discretion, by which such party was prevented from having a fair trial; (2) misconduct of the jury of prevailing party; and (4) newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at trial. ORCP 64 B(1), B(2), and B(4).

Area(s) of Law:
  • Criminal Procedure

State v. Decker

A traffic stop extension requires reasonable suspicion of a specific crime or type of crime. State v. Maciel-Figueroa, 361 Or 163, 182, 389 P3d 1121 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. Hedgpeth

Common knowledge that a person's blood alcohol content dissipates over time is, without additional evidence, is insufficient to prove that at a specific point in time, a person's alcohol level was above, below, or the same as it was later recorded to be. State v. Miller, 289 Or App 353, 359, P3d (2017).

Area(s) of Law:
  • Evidence
  • , Criminal Law

State v. Salsman

A trial court needs to conduct an OEC 403 evidence balancing test that fulfills the requirements of State v. Mayfield, 302 Or 631 (1987).

Area(s) of Law:
  • Evidence

Berger v. State Farm Mutual Automobile Insurance Company

Under ORS 742.061(2), the assertion that medical services are not reasonable and necessary brings the dispute outside of the safe-harbor. Under ORS 742.061(3), subsequent pleadings will not forfeit safe-harbor protection.

Area(s) of Law:
  • Insurance Law

DLCD v. City of Klamath Falls

Under OAR 660-015-0000(14), change to an Urban Growth Boundary must be based on both (1) a need to accommodate 20-year long range population forecasts, and (2) a need for housing, employment opportunities, livability or uses such as public facilities, streets and roads, schools, parks, or open spaces.

Area(s) of Law:
  • Land Use

Kuralt v. SAIF

Under ORS 656.265, in order to survive a claim for worker compensation, a worker must have good cause for failing to submit a timely notice with a subjective belief which must be "induced by some actual occurrence which is susceptible to such an interpretation by him." Riddel v. Sears, Roebuck & Co., 8 Or App 438, 494 P2d 901 (1972).

Area(s) of Law:
  • Workers Compensation

Minor v. SAIF

Worker's Compensation Board orders are reviewed as provided in ORS 183.482(7) and (8). Courts review for substantial evidence, which "exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c). In reviewing for substantial evidence, a court must also determine whether the board's analysis comports with substantial reason. To satisfy that requirement, the board must "provide a rational explanation of how its factual findings lead to the legal conclusions on which the order is based." Arms v. SAIF, 268 Or App 761, 767, 343 P3d 659 (2015).

Area(s) of Law:
  • Workers Compensation

State v. Cole

Under ORS 164.215(1), A person commits the crime of burglary in the second degree when a person "enters or remains unlawfully in a building with the intent to commit a crime therein." If the building is a dwelling, however, the crime is elevated from second-degree burglary to burglary in first degree. ORS 164.225(1).

Area(s) of Law:
  • Criminal Law

State v. Easley

A court must (1) “consciously conduct the required balancing” of the Mayfield test for admissibility of evidence; and (2) “allow for meaning review of that balancing.” State v. Ydrogo, 289 Or App 488, 492, ___ P3d ___ (2017) (emphasis omitted).

Area(s) of Law:
  • Evidence

State v. Moreno-Hernandez

Under ORS 151.505 and 161.665, a court can award attorney fees when there is objective, non-speculative evidence that Defendant has the ability to pay. State v. Pendergrapht, 251 Or App 630, 633, 284 P3d 573 (2012). The three prerequisites for compensatory fines under ORS 137.101(1): criminal activities; a victim who incurred objectively verifiable economic damages that the victim could recover in a civil action; and causal relationship between the two. State v. Alonso, 284 Or App 512, 516, 393 P3d 256 (2017).

Area(s) of Law:
  • Criminal Law

State v. Page

A charging instrument must show on its face that the requirements of ORS 132.560 have been met for a demur to be denied. State v. Poston, 277 Or App 137, 370 P3d 904 (2016).

Area(s) of Law:
  • Criminal Law

U.S. Bank National Assn. v. McCoy

The business records exception to hearsay under OEC 803(6) does not permit "a party to substitute testimony regarding the contents of records for the records themselves."

Area(s) of Law:
  • Evidence

Wingard v. Oregon Family Council, Inc.

Under ORS 31.150(3), a plaintiff must present “substantial evidence to support a prima facie case” to have an anti-SLAPP motion denied; this means that a plaintiff “must submit sufficient evidence from which a reasonable trier of fact could find that the plaintiff met its burden of production.” Handy v. Lane County, 360 Or 605, 385 P3d 1016 (2016).

Area(s) of Law:
  • Tort Law

March 38 summaries

Ciecko v. DLCD

Under ORS 196.471(3), the Land Conservation and Development Commission must return recommended Territorial Sea Plan amendments to the Ocean Policy Advisory Council, allowing 155 days for revision of the proposed amendments.

Area(s) of Law:
  • Administrative Law

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

The party that proposes changing a permanency plan to adoption bears the burden of proving that there are no compelling reasons not to proceed with terminating the parent's parental rights. Dept. of Human Services v. S. J. M., 283 Or. App. 367, 392, 388 P.3d 417, 431, rev allowed, 361 Or. 350 (2017).

Area(s) of Law:
  • Family Law

Garcia-Navarro v. State of Oregon

"A trial counsel's obligation is to advise clients that guilty pleas to almost any drug offense will result in 'presumptively mandatory' deportation." Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 1483 (2010).

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

Landwatch Lane County v. LCDC

A local government's "noncompliance" with local land use regulations is a pattern of decisionmaking that is representative of a class of decisions involving the same or related provisions of a land use regulation, the same geographic areas, and the same types of land use. OAR 660-045-0020(10).

Area(s) of Law:
  • Land Use

Morgan v. Valley Property and Casualty Ins. Co.

In order for an exhibit to be admissible under the terms of the Oregon Evidence Code, the exhibit must be considered a business record which includes a “duty to report” requirement. 289 Or App at 455, 461 (citing State v. Cain, 260 Or App 626, 632-34, 320 P3d 600 (2014).

Area(s) of Law:
  • Evidence

State of Oregon v. Hernandez-Zurita

"The 'reasonableness of a petitioner's failure to act on information that is available is simply not enough to trigger the escape clause of ORS 138.510(3).'" Fisher v. Belleque, 237 Or App 405, 411, 240 P3d 745 (2010), rev den, 349 Or 601 (2011).

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

STATE OF OREGON v MANUEL PEREZ

ORS 138.071(1) provides a 30-day deadline to appeal and if the appeal is not filed within this deadline, a court has no jurisdiction over a case because it was not taken in conformity to statutory requirements. State v. Goodin, 1 Or App 559, 560, 465 P2d 487 (1970).

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

State v. Hubbard

ORS 163.115(5) grants the authority to parole “persons with life sentences for murder” regardless of when the crime happened. State v. Haynes, 168 Or. App. 623 (2000).

Area(s) of Law:
  • Criminal Procedure

State v. Meiser

Under ORS 174.120(3), when the last day by which a court may perform an act is a legal holiday, the act must be performed "on the next day that the court is open for the purpose of filing pleadings and other documents."

Area(s) of Law:
  • Civil Procedure

State v. Stavenjord

A variance in a charging document and submitted trial evidence is permissible when the variance is not a material element of the case and the variance will not prejudice the defendant’s trial. State v. Samuel, 289 Or App 618, 626-27 (2017).

Area(s) of Law:
  • Evidence

State v. Steele

Under the Oregon Constitution Article I, section 9, the inevitable discovery doctrine requires the state to prove by a preponderance of the evidence that the evidence acquired in an unlawful search would have been discovered under proper police investigatory procedures. State v. Miller, 300 Or 203, 225 (1985). An inventory policy that requires law enforcement to open closed containers is overbroad. State v. Williams, 227 Or App 453, 457 (2009).

Area(s) of Law:
  • Criminal Procedure

Wilda v. Roe

"ORS 471.565(1) does not prohibit a patron's claim that seeks contribution for payment of the damages of the plaintiff injured by the intoxicated patron."

Area(s) of Law:
  • Tort Law

Eugene Water & Electric Board v. Miller

The use of an easement is not necessarily limited to uses stated in the easement. Courts are to discern the nature and scope of the easement’s purpose and to give effect to that purpose in a practical manner. Bernards et ux v. Link and Haynes, 199 Or 579, 592-93, on reh’g, 199 Or 579, 263 P2d 794.

Area(s) of Law:
  • Land Use

Halvorson v. Real Estate Agency

“If there is evidence creating a relevant fact issue, then no matter how ‘overwhelming’ the moving party’s evidence may be, or how implausible the nonmoving party’s version of the historical facts, the nonmoving party, upon proper request, it entitled to a hearing.” Watts v. Board of Nursing, 282 Or App 705, 714, 386 P3d 34 (2016).

Area(s) of Law:
  • Administrative Law

State v. Harrison

“[T]o prove contempt, the state must establish the existence of a valid court order, the defendant’s knowledge of that order, and the defendant’s willful noncompliance with that order.” State v. Beleke, 287 Or App 417, 421, 403 P3d 481, rev den, 362 Or 208 (2017).

Area(s) of Law:
  • Criminal Law

State v. Hobbs

"The phrase 'a place where unlawful activity involving controlled substances is maintained or conducted,' ORS 163.575(1)(b), refers to a place where a principal or substantial use of the place is to facilitate unlawful drug activity." State v. Gonzalez-Valenzuela, 358, Or. 451, 459, 365 P.3d 116, 120 (2015).

Area(s) of Law:
  • Criminal Law

State v. Miranda

Under ORS 164.225, to survive a motion for a judgment of acquittal for burglary, the State is required “to plead and prove the specific offense that defendant intended to commit when he unlawfully entered or remained in the house.” State v. Frey, 248 Or App 1 (2012), rev den, 354 Or 814 (2014).

Area(s) of Law:
  • Criminal Law

State v. Walls

In order for officers to seize property under Article I, section 9, a “police officer must obtain a warrant that is supported by probable cause unless an exception to the warrant requirement applies,” such as exigent circumstances. State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987). State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991).

Area(s) of Law:
  • Criminal Law

Jones v. Four Corners Rod and Gun Club

Under ORS 20.077, a court must determine the prevailing party on a claim-by-claim basis. The prevailing party is entitled to attorney fees under ORS 653.055(4) or ORS 652.200(2).

Area(s) of Law:
  • Labor Law

SAIF v. Carlos-Macias

Diagnostic services necessary to determine the cause or extent of an already-accepted injury or condition are compensable as defined in ORS chapter 656. SAIF v. Carlos-Macias,262 Or App 629, 631, 325 P3d 827 (2014)

Area(s) of Law:
  • Workers Compensation

State v. Borba

“Article 1, section 11, of the Oregon Constitution guarantees a criminal defendant the right to counsel and the right to self-representation,” State v. Hightower, 361 Or. 412, 416, 393 P.3d 224, 266 (2017); however, “[a] criminal defendant may waive the right to be represented by counsel, but the waiver must be voluntarily or knowingly made.” State v. Meyrick, 313 Or. 125, 132, 831 P.2d 666, 670 (1992).

Area(s) of Law:
  • Criminal Procedure

State v. Bradford

"For police officers to make a stop, they must reasonably suspect-based on specific and articulable facts-that the person committed a specific crime or type of crime or was about to commit a specific crime or type of crime." State v. Maciel-Figueroa, 361 Or 163, 182, 389 P3d 1121 (2017).

Area(s) of Law:
  • Criminal Law

State v. J.R.B.

In conducting a civil commitment hearing, the trial court, to comply with its obligation under ORS 426.100(1)(c), must advise the allegedly mentally ill person of all five possible results of the proceedings listed under ORS 426.130, or conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made. State v. M.T., 244 Or App 299 (2011). See ORS 426.130.

Area(s) of Law:
  • Civil Commitment

State v. Lantz

When two or more counts involve the same conduct or criminal episode, the counts merge unless one of the provisions of ORS 161.067 operates to preclude merger. State v. Nelson, 282 Or App 427, 431, 386 P3d 73 (2016).

Area(s) of Law:
  • Criminal Law

State v. Loving

“Touching separate parts of a victim’s body is not, by itself, sufficient to preclude merge of convictions under ORS 161.067(3).” State v. Nelson, 282 Or. App. 427, 436-42, 386 P.3d 73, 79-82 (2016). “Rather, the State must introduce evidence from which the trier of fact could draw a nonspeculative inference that there was a sufficient pause between the acts constituting sexual abuse.” Id. at 446-47.

Area(s) of Law:
  • Criminal Law

State v. Manning

Under Art. I, sec. 11 of the Oregon Constitution and Sixth Amendment, a defendant is guaranteed a right to make a closing argument based on evidence if it is not based on impermissible speculation that is “insufficient to support an inference when the conclusion to be drawn from it requires too great an influential leap”. State v. Bivins, 191 Or App 460 (2004).

Area(s) of Law:
  • Criminal Procedure

State v. Martin

Trial courts may refuse to give special jury instructions that "destroy the neutral form that instructions should have." St. Paul Mercury Ins. Co. v. Baughman, 61 Or App 534, 538, 657 P2d 1254, rev den, 295 Or 259 (1983).

Area(s) of Law:
  • Criminal Procedure

State v. Rhyne

When a Defendant challenges the validity of their subsequent statement or consent to search, “the State carries the burden of demonstrating that the consent was voluntary and not the product of police exploitation of an illegal search or seizure.” State v. Unger, 356 Or 59, 74-75, 333 P3d 1009 (2014).

Area(s) of Law:
  • Criminal Law

State v. Schmidtke

An officer’s statements amount to unlawful interrogation when “the substance of the [statements made] to defendant and the manner in which those [statements] were [made] demonstrated that they were likely to elicit some type of incriminating response”, where incriminating response refers to any “inculpatory or exculpatory response” that a prosecutor may seek to introduce in a trial. State v. Scott, 343 Or 195 (2007).

Area(s) of Law:
  • Criminal Procedure

State v. Townsend

“The right to confrontation is ‘satisfied when the defense is given a full and fair opportunity to probe and expose [the] infirmities [in the witness’s testimony] through cross-examination[.]’” State v. Quintero, 110 Or App 247, 254, 823 P2d 981 (1991) (en banc) (quoting United States v. Owens, 484 US 554, 558, 108 S Ct 838, 841, 98 L Ed 2d 951 (1988) (internal quotation marks omitted)).

Area(s) of Law:
  • Criminal Procedure

State v. Van Osdol

A valid warrant to search a residence for evidence of "frequenting" in violation of ORS 167.222 has to establish probable cause that (1) someone with legal authority over the residence actually knew of the sale of drugs at the residence and authorized or consented to the use of the house to facilitate those sales, (2) the substantial purpose of the residence was the commercial sale or use of illegal drugs, and (3) evidence of the crime would be found. Lemery v. Leonard, 99 Or 670, 678, 196 P 376 (1921)

Area(s) of Law:
  • Evidence

Stewart and Stewart

To rebut the presumption of equal contribution regarding marital assets, a party must demonstrate that the other party’s contribution to that asset is less than equal. Hixson and Hixson, 235 Or App 217, 227, 230 P3d 946, clarified on recons, 235 Or App 570, 232 P3d 996 (2010).

Area(s) of Law:
  • Family Law

Brown v. City of Grants Pass

“A statute displaces a local ordinance if it ‘unambiguously expresses an intention to preclude local government from regulating’ in the same area as that governed by the statutes.” Rogue Valley Sewer Services v. City of Phoenix, 357 Or. 437, 450, 353 P.3d 581, 588 (2015).

Area(s) of Law:
  • Municipal Law

Johnson v SAIF

Under OAR 436-035-0013, the compensation award for an injury may be reduced when a portion of the injury is attributable to a "legally cognizable preexisting condition" that has been accepted and denied by the insurer.

Area(s) of Law:
  • Workers Compensation

LandWatch Lane County v. Lane County

Under interpretation of the statutory text, “there is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to give expression to its wishes.” State v. Branch, 362 Or 351 (2018).

Area(s) of Law:
  • Land Use

Schroeder v. Clackamas County Bank

ORS 20.105 provides that a court can award reasonable attorney fees only if it determines that the nonprevailing party had “no objectively reasonable bases for asserting the claim.” A party’s claim is not objectively reasonable if it “is entirely devoid of legal or factual support, either at the time it is made or in light of additional evidence or changes in the law as litigation proceeds.” Williams v. Salem Women’s Clinic, 245 Or App 476, 482, 263 P3d 1072 (2011).

Area(s) of Law:
  • Attorney Fees

State v. Crider

“For a single criminal act or criminal episode to give rise to more than one statutory violation, 3 three requirements must be satisfied: ‘(1) defendant must have engaged in acts that are ‘the same criminal conduct or episode’; (2) defendant’s acts must have violated two or more ‘statutory provisions’; and (3) each ‘statutory provision must require proof of an element that the others do not.’” State v. Parkins, 346 Or 333, 348, 211 P3d 262 (2009) (quoting State v. Crotsley, 308 Or 272, 278, 779 P2d 600 (1989)).”

Area(s) of Law:
  • Criminal Law

Thorson v. Bend Memorial Clinic

The standard for judgment as matter of law states for a moving party, “that standard is satisfied when, viewing the evidence in the record and all reasonable inferences that may be drawn from it in favor of the nonmoving party, no reasonable factfinder could return a verdict for the nonmoving party.” Chapman v. Mayfield, 358 Or 196, 204, 361 P3d 566 (2015).

Area(s) of Law:
  • Tort Law

April 40 summaries

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

When a juvenile court wants to establish jurisdiction over a child they must show “sufficient evidence” and “establish a nexus” related to the “conditions or circumstances that endanger the [child’s] welfare.” ORS 419B.100(1)(c). Dept. of Human Services v. A. W., 276 Or App 276, 278, 367 P3d 556 (2016). Dept. of Human Services v. C.J.T., 258 or App 57, 62, 308 P3d 307 (2013).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. S.A.B.O

To endanger the child's welfare, the circumstances must create a current threat of serious loss or injury to the child and there must be a reasonable likelihood that the threat will be realized." Dept. of Human Services v. S. P., 249 Or. App. 76, 84, 275 P.3d 979, 984 (2012).

Area(s) of Law:
  • Juvenile Law

Dixon v. Board of Nursing

The standard of proof set in ORS 183.450(5) is synonymous with the preponderance of evidence standard. Therefore, the standard of proof in agency proceedings is the preponderance of the evidence standard.

Area(s) of Law:
  • Administrative Law

Gordon v. State Mortuary and Cemetery Board

“[W]hen a court’s decision or ruling is premised on alternative grounds, a party challenging that ruling generally must take issue with all independent and alternative grounds on which it is based to obtain relief.” Cf. Strawn v. Farmers Ins. Co., 350 Or 336, 366, 258 P3d 1199, adh’d to on recons, 350 Or 521, 256 P3d 100 (2011).

Area(s) of Law:
  • Appellate Procedure

Kiltow v. SAIF

"A worker cannot be both ‘permanently’ and ‘temporarily’ disabled at the same time.” Gwynn v. SAIF, 304 Or 345, 351, 745 P2d 775 (1987), and SAIF v. Grover, 152 Or App 476, 480, 954 P2d 820 (1998),

Area(s) of Law:
  • Workers Compensation

Klamath Tribute Center v. Mortuary and Cemetery Bd.

When courts are required to interpret federal regulation, a federal court looks to the plain meaning of the wording or the administrative interpretation, if neither are present, “the court considers such factors as the overall purpose of the governing statute, the overall purpose of the regulation, the history of the regulation, and the practical consequences of suggested interpretations to determine the intent of the enacting body.” Hagan v. Gemstate Manufacturing., Inc., 328 Or 535, 545, 982 P2d 1108 (1999).

Area(s) of Law:
  • Administrative Law

Service Employees International Union Local 503, Oregon Public Employees Union v. University of Oregon

“It is well settled that a public employer’s obligation to collectively bargain in good faith under ORS 243.672(1)(e) includes promptly providing and exlusive representative with requested information that has ‘some probable or potential relevance to a grievance or other contractual matter.’” Association of Oregon Corrections Employees v. State of Oregon, Department of Corrections, Case No. UP-7-98, 18 PECBR 64, 70 (1999).

Area(s) of Law:
  • Employment Law

South Valley Bank & Trust v. Colorado Dutch, LLC

Pursuant to ORS 18.165, “If a judgment with lien effect under ORS 18.150, 18.152 or 18.158 is entered or recorded in a county before a conveyance, or a memorandum of a conveyance, of real property of the debtor is recorded in that county, the conveyance of the judgment debtor’s interest is void as against the lien of the judgment unless: (a) The grantee under the conveyance is a purchaser in good faith for a valuable consideration . . .”

Area(s) of Law:
  • Property Law

State v. Aguirre - Lopez

Under Article I, Section 9 of the Oregon Constitution, law enforcement officer inquiries during a traffic stop must be reasonably related to the traffic stop and to the duration of the stop. State v. Dawson, 282 Or App 335, 386 P3d 165 (2016)

Area(s) of Law:
  • Criminal Procedure

State v. Davis

Out of court statements may be relevant, not for their truth, but to provide context, and therefore do not qualify as hearsay. State v. Chandler, 360 Or 323, 380 P3d 932 (2016).

Area(s) of Law:
  • Evidence

State v. G. V. L.

Under ORS 419B.100(1)(c), juvenile courts have jurisdiction over children “[w]hose condition or circumstances are such as to endanger the welfare of the child.”

Area(s) of Law:
  • Juvenile Law

State v. Horton

Under ORS 165.800(1), intent to defraud requires that a defendant act with specific intent which looks at a “conscious objective of causing the injury to another’s legal rights or interest."

Area(s) of Law:
  • Criminal Procedure

State v. Roberts

A trial court errs as a matter of law when it “fails to conduct OEC 403 balancing when requested to do so or if it fails to make a record that reflects that the court has conducted the requested OEC 403 balancing.” State v. Garcia-Rocio, 286 Or App 136 (2017).

Area(s) of Law:
  • Evidence

State v. Sawyer

For a trial court to show that it complied with Mayfield's OEC 403 balancing requirements, it must "(1) demonstrate that the court consciously conducted the required balancing and (2) allow for meaningful review of that balancing." Ydrogo, 289 Or App 488, 492 (2017).

Area(s) of Law:
  • Evidence

State v. Walker

“In determining whether a case presents a ‘proper occasion’ to give the instruction described in ORS 10.095(3), the court must ‘determine, from all the testimony, whether or not there has been sufficient evidence for the jury to decide that at least one witness consciously testified falsely.’” State v. Roman, 288 Or. App. 441, 445, 406 P.3d 1119, 1121-22 (2017).

Area(s) of Law:
  • Criminal Law

Tressel v. Williams

When interpreting an express easement, the court must “look first to the words of the easement, viewing them in the context of the entire document.” Kell v. Oppenlander, 154 Or App 422, 426, 961 P2d 861 (1998).

Area(s) of Law:
  • Property Law

Truong v. Premo

When a trial court’s exercise of discretion “flows from a mistaken legal premise, its decision may be legally impermissible because it was guided by the wrong substantive standard.” Lopez v. Nooth, 287 Or App 731, 734, 403 P3d 484 (2017).

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

C.I.C.S. Employment Services v. Newport Newspapers

Under ORS 31.152(1), "Oregon’s anti-SLAAP statutes requires a defendant to file a special motion to strike within 60 days from service of the complaint, although the trial court may exercise its discretion to permit a late filing." See ORS 31.152(1).

Area(s) of Law:
  • Administrative Law

Melissa Louise Stephens v. Rob Persson, Coffee Creek Correctional Facility

In order to establish that counsel provided inadequate counsel for purposes of Article I, section 11, one must prove two elements: (1) a performance element: that trial counsel “failed to exercise reasonable professional skill and judgment”; and (2) a prejudice element: that “petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

Area(s) of Law:
  • Criminal Law

Rush v. Corvallis School Dist. 509J

“A public body that owes a particular duty of care (such as that owed by a school district to its students who are required to be on school premises during school hours) has wide policy discretion in choosing the means by which to carry out that duty.” Mosley v. Portland School Dist. No. 1J, 315 Or. 85, 92, 843 P.2d 415, 419 (1992).

Area(s) of Law:
  • Tort Law

State v. Apodaca

“Evidence of a defendant’s prior bad act that otherwise would be inadmissible under OEC 404(3) may be admissible under that rule for the non-character purpose of impeaching the defendant’s testimony” State v. Grey, 175 Or App 235, 250, 28 P3d 1195 (2001), rev den, 333 Or 463 (2002).

Area(s) of Law:
  • Evidence

State v. Mendoza-Lopez

Preservation is required to ensure that party positions are clearly presented and “it will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 346 Or 333 (2009).

Area(s) of Law:
  • Criminal Law

State v. Mendoza-Sanchez

Excluding expert testimony that relates to facts presented that would raise doubt to the central issue in the case is not harmless error.

Area(s) of Law:
  • Evidence

State v S. F.

Under ORS 426.130(1)(a), "in order to justify an involuntary commitment, the state must prove, by clear and convincing evidence, that the individual is 'a person with mental illness.'"

Area(s) of Law:
  • Civil Commitment

Engweiler v. Board of Parole

The United States Supreme Court's explicit statement prevails: “entitlement, if any, to eventual release will be to parole.” State v. Turner, 235 Or App 462, 466, 234 P.3d 993 (2010).

Area(s) of Law:
  • Sentencing

Metje/Parks v. PERS

“ORS 238.715(2) provides that recovery could be made by civil action or ‘other proceeding.’ The statute does not define ‘other proceeding,’ but an administrative proceeding plainly qualifies as an ‘other proceeding.’” Metje/Parks v. PERS, 291 Or. App. 338, 346 (2018).

Area(s) of Law:
  • Civil Procedure

Meyers v. SAIF

Under ORS 656.005(30), a "'worker' means any person who engages to furnish services for a remuneration, subject to the direction and control of an employer[.]"

Area(s) of Law:
  • Workers Compensation

Molette v. Nooth

Under ORS 137.719, adjudications that are not defined as sentences do not count as sentences for the purposes of imposing life imprisonment on defendants with at least two prior felony sentences for sex crimes.

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

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

In deciding whether a subject is proper for summary determination, “a discretionary sanction is not a proper subject for summary determination, because whether an agency should impose a particular sanction is not a question of law.” King v. Dept. of Public Safety Standards, 289 Or App 314, 412 P3d 1183 (2017).

Area(s) of Law:
  • Administrative Law

O’Hara v. Premo

“To prevail on a post-conviction claim of inadequate assistance of counsel, the burden is on the petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Lambert v. Palmateer, 182 Or App 130, 135, 47 P3d 907 (2002), adh’d to as modified on recons, 187 Or App 528, 69 P3d 725, rev den, 336 Or 125 (2003).

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

Payne v. Kersten

The granting of summary judgment based on issue preclusion happens only when, “it can be conclusively determined from the record that all of the requirements for issue preclusion are satisfied.” See Johnson & Lechman-Su, P.C., 272 Or App at 246.

Area(s) of Law:
  • Civil Law

Robin v. Teacher Standards and Practices Comm.

Under ORS 183.650(2) and the implementing rule, OAR 137-003-0665(3), an agency must “identify the modifications and provide an explanation to the parties to the hearing as to why the agency made the modifications” if the agency “modifies the form of order issued” or “changes the outcome or the basis for the order”.

Area(s) of Law:
  • Administrative Law

SAIF v. Massari

An injury occurs in the course of employment if it takes place during a period of employment, at a place where the worker reasonably may be expected to be, and while the worker is fulfilling duties of the employment or doing something reasonably incidental to the employment. Fred Meyer, Inc. v. Hayes, 325 Or 592, 598, 943 P2d 197 (1997).

Area(s) of Law:
  • Workers Compensation

Shicor v. Board of Speech Language Path. and Aud.

It is “well established that due process does not require a formal separation of the investigative functions from the adjudicative or decision-making functions of an administrative agency, nor does it preclude those who perform the latter from participating in the investigative phase.” Fritz v. OSP, 30 Or App 1117, 1121, 569 P2d 654 (1977) (citing Withrow v. Larkin, 421 US 35, 95 S Ct 1456, 43 L Ed 2d 712 (1975)).

Area(s) of Law:
  • Administrative Law

State v. Bush

“To ensure that a person’s waiver is knowing and voluntary, article 1, section 12 of the Oregon Constitution requires that the police inform a person subjected to custodial interrogation that he has a right to remain silent . . . and any statements the person makes may be used against the person in a criminal prosecution.” State v. Vondehn, 348 Or. 462, 474, 236 P.3d 691, 699 (2010).

Area(s) of Law:
  • Criminal Procedure

State v. O’Dell

The officer-safety exception to the warrant requirement applies when officers face an “objectively reasonable threat.” State v. Kennedy, 284 Or App 268, 272-73, 392 P3d 382 (2017). “To be objectively reasonable, the state must prove that ‘the officer’s safety concerns [are] based on facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the officer’s safety.” State v. Smith, 277 Or App 298, 303, 373 P3d 1089, rev den, 360 Or 401 (2016).

Area(s) of Law:
  • Criminal Procedure

Kutz v. Lee

When bringing an action under the Oregon Tort Claims Act, “No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claims is given as required by this section. For claims other than wrongful death, the notice period is 180 days. An action arising from any act or omission of a public body or an officer, employee, or agent of a public body within the scope of OTCA shall be commenced within two years after alleged loss or injury." ORS 30.275(1), (2)(b), (9).

Area(s) of Law:
  • Land Use

Robles v. SAIF

Under ORS 183.482(a) and (c), a court may affirm, reverse, or remand orders if it finds that the agency erroneously interpreted the provision, or set aside orders that do not have substantial evidence supporting the finding of fact.

Area(s) of Law:
  • Workers Compensation

State v. Krieger

“When the trial court has excluded testimony, the proponent of the disputed evidence must make an offer of proof. State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988). . .Error is not always sufficient to warrant reversal. We will affirm a judgment of conviction notwithstanding the erroneous admission or exclusion of evidence if there is little likelihood that the error affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).”

Area(s) of Law:
  • Evidence

State v. Murga

“Because punitive contempt is quasi-criminal in nature, an accusatory instrument is required. ORS 33.065(4), (5); see State v. Hauskins, 251 Or. App. 34, 39, 281 P.3d 669, 673 (2012). An accusatory instrument is a ‘grand jury indictment, an information or a complaint.’”

Area(s) of Law:
  • Criminal Law

May 42 summaries

Bora Architects/Allgood v. Tillamook

Under ORS 215.427(4), the deadline will always run from the date that the application was submitted, regardless of action or inaction on the part of the county.

Area(s) of Law:
  • Land Use

State v. Covington

When determining if an in camera review is required, the defendant must “demonstrate that the items of which he sought review would have been material and favorable to his defense” and the trial court must decide whether to undertake that review considering “the facts and circumstances of the particular case, the volume of materials at issue, the relative importance of information sought, and whether such information might be available from non-privileged sources.” State v. Cockrell, 284 Or App 674 (2017), State v. Lammi, 278 Or App 690 (2017).

Area(s) of Law:
  • Criminal Law

State v. Peterson

“An out-of-court statement about the credibility of a witness is subject to the categorical prohibition against vouching evidence only if the statement is offered the truth of credibility opinion that it expresses.” State v. Chandler, 360 Or. 323, 334, 380 P.3d 932, 938 (2016). Additionally, a court may enter separate convictions when “the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an elements that others do not.” ORS 161.067(1).

Area(s) of Law:
  • Constitutional Law

State v. Warren

“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,” but can be admissible to prove other purposes such as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistaken accident.” OEC 404(3). The evidence must be in similar to the charged crime (true plan) to establish that the defendant formed a plan and used the other evidence as steps to perform that plan.

Area(s) of Law:
  • Evidence

State v. Wilson

A police officer’s unaided observation of a persons conduct, from a lawful vantage point, should not be suppressed as the product of an unlawful search when, “persons conduct themselves in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort.” State v. Louis, 296 Or 57, 61, 672 P2d 708 (1983).

Area(s) of Law:
  • Criminal Law

Timmerman v. Herman

Under ORS 90.370(1)(b), Tenants are entitled to possession when when “the damages awarded the tenant on her counterclaims exceed[] the amount of unpaid rent the landlord claimed was due.” L & M Investment Co. v. Morrison, 44 Or App 309, 313, 605 P2d 1347, rev den, 289 Or 275 (1980).

Area(s) of Law:
  • Landlord Tenant

Troubled Asset Solutions v. Wilcher

Reformation is “an equitable remedy by which a court may revise the written expression of an agreement to conform to the intentions of the parties to it.” A & T Siding, Inc., 358 Or at 42. “There is a strong presumption that a deed expresses what the parties had in mind, and the burden of overcoming the presumption rests on the party seeking reformation.” Murray v. Laugsand, 179 Or App 291, 300, 39 P3d 241 (2002)

Area(s) of Law:
  • Property Law

Blevins v. Oregon Health Authority

When submitting a final administrative order, “an administrative agency must state its factual findings and articulate a ‘rational connection between the facts it finds and the legal conclusions its draws from them,’” in order to meet the substantial reason rule. Drew v. PSRB, 322 Or 491, 499-500, 909 P2d 1211 (1996).

Area(s) of Law:
  • Administrative Law

Bowerman v. Lane County

Under ORS 92.190, local governments “may use procedures other than replatting procedures in ORS 92.180 and 92.185 to adjust property lines as described in ORS 92.010(12)” with the only limitation being that the procedures “must provide for recording of approved property line adjustments.”

Area(s) of Law:
  • Land Use

Hartvigson v. SAIF

Under ORS 656.308(2)(d), a claimant may receive attorney fees when an employer initially denies responsibility for an injury and then rescinds that denial. Brown v. SAIF, 361 Or 241, 280-81, 391 P3d 773 (2017).

Area(s) of Law:
  • Employment Law

State of Oregon v. T.W.

In order to prove that a person is a danger to himself, the state must show that their “mental disorder will cause him to behave in a way that is likely to result in actual serious physical harm to himself in the near future.However, the required expectation of actual serious physical harm must be established by more than mere speculation or conjecture.” State v. L. D., 247 Or App 394, 399, 270 P3d 324 (2011)

Area(s) of Law:
  • Civil Commitment

State v. Goennier

In the case of a warrantless search, “it is the state’s burden to show that the search was supported by probable cause. Probable cause exists if the facts on which the officers relied would ‘lead a reasonable person to believe that seizable things will probably be found in the location to be searched.’” State v. Anspach 298 Or 375, 381, 692 P2d 602 (1984).

Area(s) of Law:
  • Criminal Procedure

State v. McDonald

Restitution can be award at Trial Court "'[w]hen a person is convicted of a crime . . . that has resulted in economic damages.'" ORS. 137.106(1)(a). By a preponderance of the evidence, the state must prove, "'(a) criminal activities, (2) economic damages, and (3) a causal relationship between the two.'" State v. Kirkland, 268 Or App 420, 424, 342 P3d 163 (2015).

Area(s) of Law:
  • Remedies

State v. Miller

Under the holding of State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009), a punishment may be declared unconstitutional if it is so disproportionate when compared to the offense so as to "shock the moral sense" of reasonable people.

Area(s) of Law:
  • Criminal Law

State v. Ritz

When it comes to exigent circumstances, “the mere possibility that defendant could make a break if he were so inclined” does not give rise to exigency “when there is no indication that he is, in fact, so inclined.” State v. Peller, 287 Or 255 (1979).

Area(s) of Law:
  • Criminal Procedure

State v. Stinnett

Prejudice can be present in three ways: "'excessive pretrial incarceration, anxiety and concernt of the defendant, and impaired defense." State v. Emery, 318 Or 460, 473-74, 869 P2d 859 (1994).

Area(s) of Law:
  • Criminal Procedure

Coos County Airport Dist. v. Special Districts Ins.

If contract term interpretations are ambiguous and without plain meaning when examined in context of the policy as a whole, the Court will construe the remaining plausible interpretations against the drafter and in favor of the insured. Hoffman Construction Co. v. Fred S. James & Co., 313 Or 464, 469, 836 P2d 703 (1992).

Area(s) of Law:
  • Insurance Law

Fred Meyer Stores, Inc. v. DeBoard

Under ORS 656.266(2)(a), the burden of proving that an injury or occupational disease is on the worker, and once a worker establishes an otherwise compensable injury, the employer bears the burden of proof to establish that the injury is not a major contributing cause of the disability.

Area(s) of Law:
  • Workers Compensation

Holt and Atterbury

" A person who establishes emotional ties with a child that creates a child-parent relationship may petition or file for custody, intervene for placement or guardianship of the child. ORS 109.119(1). To decide if a presumption has been rebutted, the Court can look to, but not limited to, the following evidence: "the legal parent is unwilling or unable to care adequate for the child; the petition or intervenor is or recently has been the child's caretaker; circumstances detrimental to the child exist if relief is denied; the legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or the legal parent has unreasonably denied or limited contact between the child and the petition or intervenor." ORS 109.119(4)(b).

Area(s) of Law:
  • Family Law

Jewell v. SAIF

When a condition causing the claimant’s symptoms establishes that the condition developed gradually over time, the claimant has not experienced an injury, and the claim must be analyzed as an occupational disease. Luton v. Willamette Valley Rehabilitation Center, 272 Or App 487, 490, 356 P3d 150 (2015)

Area(s) of Law:
  • Workers Compensation

Marshall v. Cannady

In order “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.’” Justice and Crum, 265 Or App 635 (2014).

Area(s) of Law:
  • Evidence

Neikes v. Ticor Title Company of Oregon

The existence and amount of [the] damages must be established with reasonable certainty. If the trier of fact must resort to speculation, conjecture or surmise, a claim of damages with fail. Newell v. Weston, 150 Or. App. 562, 582, 946 P2d 691 (1997) rev den, 327 Or 317 (1998)

Area(s) of Law:
  • Civil Law

State ex rel Smith v. Hitt

“Term limits are not qualifications but, rather permissible exercise[s] of state power to regulate the ‘Times, Places and Manner of holding Elections’” U.S. Term Limits, Inc. v. Thornton, 514 US 779, 828, 832-33, 115 S Ct 1842, 131 L Ed 2d 881 (1995). “Where a state constitution provides for certain officials and names the qualifications for such officers, the legislature is without authority to prescribe additional qualifications unless the constitution, either expressly or by implication, gives the legislature such power.” State ex rel. Powers v. Welch, 198 Or 670, 672-73, 259 P2d 112 (1953).

Area(s) of Law:
  • Election Law

State v. Blueback

When the Department of Transportation issues license plates, ORS 803.525 requires that a vehicle be issued two license plates and, when taken in conjuncture with ORS 803.540(1)(b), require that the “vehicle’s driver display two plates.”

Area(s) of Law:
  • Criminal Procedure

State v. Guffey

“Oregon cases interpreting Brady have required defendant to make some showing, beyond mere speculation, that the evidence he seeks will be favorable to him and material to his guilt or innocence.” State v. Spada, 33 Or. App. 257, 259, 576 P.2d 33, 34 (1978).

Area(s) of Law:
  • Evidence

State v. McMillin

When determining who is the victim of a crime, “the court examines the statute to identify the gravamen of the crime and determine the class of person whom the legislature intended to directly protect by ay of the criminal proscription. State v. Moncada, 241 Or App 202, 250 P3d 31 (2011), rev den, 351 Or 545 (2012). Under ORS 161.165(1), “a person is not criminally liable for the conduct of another constituting a crime if” the “person is a victim of that crime.”

Area(s) of Law:
  • Criminal Law

State v. Pucket

Oregon distinguishes between laws that focus on the content of speech or writing and laws that focus on the pursuit or accomplishment of forbidden results. State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992), cert den, 508 US 974 (1993).

Area(s) of Law:
  • Constitutional Law

State v. Rosales

“An officer may not conduct investigations unrelated to the stop’s mission ‘in a way that prolongs the stop, absent reasonably suspicion.’ A dog sniff is aimed at detecting ‘ordinary criminal wrongdoing’ and is ‘not ordinary incent of a traffic stop.’” Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015).

Area(s) of Law:
  • Criminal Procedure

State v. Smith

The “record must support a nonspeculative inference that there is a causal relationship between the defendant’s criminal activities and the victim’s economic damages.” State v. Akerman, 278 Or App 486, 490, 380 P3d 309 (2016).

Area(s) of Law:
  • Sentencing

Timothy C. Guild v. SAIF Corporation

“If the board’s finding is reasonable in the light of countervailing as well as supporting evidence, then the finding is supported by substantial evidence.” Elsea v. Liberty Mutual Ins., 277 Or App 475, 476, 371 P3d 1279 (2016); ORS 656.298; ORS 183.482(7) - (8).; ORS 183.482(8)(c) (“Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”).

Area(s) of Law:
  • Workers Compensation

State v. Lewis

A person has to commit second-degree online sexual corruption and take substantial steps to meet the child to commit first-degree sexual corruption. ORS 163.433. To commit second-degree sexual corruption " (1) a person who is 18 years of age or older (2) for the purpose of arousing or gratifying the sexual desire of the person or another person (3) knowingly uses an online communication to solicit a child to engage in sexual contact or sexually explicit conduct and (4) offers or agrees to physically meet with the child." ORS 163.432(1). To solicit means "to invite, request, seduce, lure, entice, persuade, prevail upon, coax, coerce or attempt to do so." ORS 163.431(5).

Area(s) of Law:
  • Criminal Law

State v. Rives

“Where an eyewitness has been exposed to suggestive police procedures, the trial court has a ‘heightened role as an evidentiary gatekeeper because “traditional” methods of testimony reliability–like cross-examination–can be ineffective at discrediting unreliable or inaccurate eyewitness identification evidence.’” Lawson/James, 352 Or. 724, 758, 291 P.3d 673, 694-95 (2012).

Area(s) of Law:
  • Evidence

Woodroffe v. State of Oregon

It is improper for a trial court to grant summary judgment on an issue that is not raised in the moving party’s motion. Eklof v. Steward, 360 Or 717, 736, 385 P3d 1074 (2016).

Area(s) of Law:
  • Civil Law

1000 Friends of Oregon v. Jackson County

Under Goal 3 under OAR 660-004-0022(3)(2): Resource land used for the development of industrial businesses outside of urban growth boundaries may be appropriate if there is a "significant comparative advantage due to its location (e.g., near existing industrial activity, an energy facility, or product available from other rural activities, which would benefit the county economy and cause only minimal loss of productive resource lands."

Area(s) of Law:
  • Land Use

Albar and Najjar

“A court may exercise personal jurisdiction over a nonresident consistent with constitutional due process guarantees only if the nonresident has purposefully established sufficient ‘minimum contacts’ with the forum state ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’” International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 US 310, 316, 66 S Ct 154, 90 L Ed 95 (1945).

Area(s) of Law:
  • Family Law

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

“Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time * * * the best interests of the child(ren) generally will require termination of that parent’s parental rights.” State ex rel Juv. Dept v. Geist, 310 Or. 176, 189, 796 P.2d 1193 (1990).

Area(s) of Law:
  • Family Law

Hoag Living Trust v. Hoag

"A party who relies on partial performance must show, '[1] the existence of an agreement that is clear and unambiguous in its terms, [2] that the partial performance unequivocally and exclusively refers to the agreement, and [3] that there are equitable grounds for enforcing the agreement.' Burgdorf v. Weston, 259 Or App 755, 758, 316 P3d 303 (2013)."

Area(s) of Law:
  • Trusts and Estates

Nemecek v. Taylor

“Whether a petitioner has demonstrated prejudice is a question of law that, in turn, may depend on predicate findings of fact.” Hayward v. Belleque, 248 Or App 141 (2012). “If the post-conviction court failed to make findings of fact on all the issues and there is evidence from which such facts could be decided more than one way we will presume that the facts were decided consistently with the post-conviction court’s conclusions of law.” Everett v. Premo, 279 Or App 470 (2016).

Area(s) of Law:
  • Criminal Law

Nicole McLaughlin v. Kenneth Wilson, M.D.

Pursuant to ORS 659A.030(1)(f), “(1) It is an unlawful employment practice: (f) [f]or any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so.”

Area(s) of Law:
  • Employment Law

Portland Metro. Assn. of Realtors v. City of Portland

"A case becomes moot when a court’s decision will no longer have a practical effect on the rights of the parties” which requires the moving party “to identify any collateral consequences that he or she contends has the effect of producing the required practical effects of a judicial decision” and demonstrate that “any of those identified collateral consequences either does not exist or is legally insufficient.” State v. K. J. B., 362 Or 777 (2018)

Area(s) of Law:
  • Administrative Law

Scharfstein v. BP West Coast Products, LLC

Under ORS 646.608(1)(u), the Attorney General has rulemaking authority for protecting consumers from “any other unfair or deceptive conduct in trade or commerce.” BP West Coast Products, LLP v. Dept. of Justice, 284 Or App 723, 725, 396 P3d 244, rev den, 361 Or 800 (2017).

Area(s) of Law:
  • Administrative Law

State v. Davis-Pinney

In similar situations where the trial court erroneously prohibited merger, “the Court vacated convictions where the trial court erroneously concluded that ORS 161.067(3) precluded merger and remanded for the trial court to consider the potential applicability of ORS 161.067(2).” State v. Reeves, 250 Or App 294, 280 P3d 994 (2012).

Area(s) of Law:
  • Sentencing

June 32 summaries

Aguilar v. State of Oregon

Post-conviction relief is awarded by a court when a petitioner “establish[es] a ‘substantial denial’ of state or federal constitutional right” which would establish the conviction void. ORS 138.530(1)(a).

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

Air Rescue Systems Corp. v. Lewis

“To establish contempt of court based on ORS 33.015(2)(b), plaintiffs [must] prove that ‘(1) there was a facially valid court order, (2) the defendant knew of the order and (3) the defendant voluntarily failed to comply with the order.’” State v. Graham, 251 Or. App. 217, 220, 284 P.3d 515 (2012).

Area(s) of Law:
  • Civil Law

Arms v. SAIF

“Whether for purposes of the compensability of medi¬cal treatment, a claimant’s condition is analyzed as a consequential condition only under ORS 656.245 or as an “ordinary” condition under ORS 656.245 and ORS 656.225 makes little difference; in either case, treatment of the worsened pre-existing condition is compensable if the accepted work injury or its treatment was the major contributing cause of the worsened condition.”

Area(s) of Law:
  • Workers Compensation

Brim v. Lewis

Under ORCP 67 F, after an action is commenced, a judgment may be given upon stipulation that may be in writing signed by the parties, their attorneys, or their authorized representatives; or otherwise assented to by all parties in open court.

Area(s) of Law:
  • Civil Procedure

Department of Human Services v. K.D.S.

Under ORS 419B.918(1) and ORS 419B.918(7), a court may exercise discretion in its decisions, however the court “is obligated to make a record of that exercise” and must “describe the basic reasons for its discretionary decisions” that enables “appellate courts to engage in meaningful review of the court’s exercise of discretion.” Olson and Olson, 218 Or App 1 (2008); State v. Kacin, 237 Or App 66 (2010).

Area(s) of Law:
  • Family Law

Mall v. Horton

“An expert may be qualified under OEC 702 by “knowledge, skill, experience, training, or education.” State v. Woodbury, 289 Or App 109, 115, 408 P3d 267 (2017)

Area(s) of Law:
  • Evidence

Snook v. Swan

Under ORS 31.150, when a party files a special motion to strike, a two-step burden-shifting process is applied. First, the filing party must have met its burden of showing that the claim arises out of statements or conduct protected by ORS 31.150(2), and second, the party bringing the claim must establish that there is a probability that they will prevail on the claim by presenting substantial evidence to support a prima facie case.

Area(s) of Law:
  • Civil Procedure

Spurger v. SAIF

Under OAR 436-035-0019(l)(i), “chronic condition impairment” occurs when a worker is significantly limited in the repetitive use of a body part. “significant impairment” includes those injuries which create important and meaningful limitations on the use of that body part. Godinez v. SAIF, 269 Or App 578, 346 P3d 530 (2015).

Area(s) of Law:
  • Workers Compensation

State v. Gollas-Gomez

Defendants have a constitutional right to an impartial jury. Or Const, Art I, §11; US Cont, Amend VI. Defendants, consistent with the state and federal constitution, have a right to challenge a juror based on “actual bias.” ORCP 57 D(1)(g). Certain views, beliefs, or experiences does not equate to actual bias, but “’out of fact that those views are likely to impair the juror’s performance of his or her duties.’” State v. Barone, 328 Or 68, 78, 969 P2d 1013 (1998). The “totality of the potential juror’s voir dire testimony” must be considered in looking at whether a juror would be impaired to perform his or her duties because of his or her views. State v. Lotches, 331 Or 455, 474, 17 P3d 1045 (2000), cert den, 534 US 833 (2001).

Area(s) of Law:
  • Criminal Procedure

State v. Gonzales

In the absence of overwhelming evidence of guilt, courts have held that “where erroneously admitted hearsay evidence significantly reinforces the . . . testimony at trial, the admission of those statement constitutes error requiring reversal of the defendant’s conviction.” State v. Wood, 253 Or App 97, 101, 289 P3d 348 (2012).

Area(s) of Law:
  • Evidence

State v. Harrison

To be a concealed weapon under ORS 166.250(1)(b) “an object need not be completely hidden from view Instead, a weapon may also be ‘concealed’ within the meaning of the statute even if it is recognizable for what it is if there is also evidence of an imperfect attempt to prevent it from being discovered or recognized.” State v. Turner, 221 Or App 621, 627, 191 P3d 697 (2008).

Area(s) of Law:
  • Criminal Law

State v. Noorzai

“[W]henever a piece of evidence is offered there must be certain minimum assurances that the evidence is what it purports to be, what it is offered as being [,] and what its value depends on.” Legislative Commentary to OEC 901, reprinted in Laird C. Kirkpatrick, Oregon Evidence 901.02, at 947 (6th ed 2013).

Area(s) of Law:
  • Evidence

Dept. of Human Services v. T. F.

“Under ORS 109.751(1), a court can take temporary emergency jurisdiction if the child is in the state and is in immediate need of the court’s protection from mistreatment or abuse.” State v. L.P.L.O., 280 Or. App. 292, 306, 381 P.3d 846 (2016). “Temporary emergency jurisdiction is an ‘extraordinary jurisdiction reserved for extraordinary circumstances.’” Id

Area(s) of Law:
  • Juvenile Law

Middleton v. Premo

Under ORS 138.550(2), “post-conviction relief is available only if the ground for relief ‘was not asserted and could not reasonably have been asserted in the direct appellate review proceeding.’”

Area(s) of Law:
  • Appellate Procedure

Ogle v. Nooth

A post-conviction court may grant relief relating to matters that are “within the scope of [the] pleaded claims,” Reynolds v. Lampert, 170 Or App 780, 787, 13 P3d 1038 (2000), or “directly traceable to the allegations of the petition.” Abbott v. Baldwin, 178 Or App 289, 291, 36 P3d 516 (2001), rev den, 334 Or 75, cert den, 537 US 901 (2002).

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

State of Oregon v. Jonathan William Harrell

“In reviewing a trial court’s admission of eyewitness identification evidence, we defer to the court’s findings of fact as long as they are supported by any evidence in the record; we review the trial court’s evidentiary ruling for legal error.” State v. Engle, 278 Or App 54, 55, 373 P3d 1191, rev den, 360 Or 465 (2016)

Area(s) of Law:
  • Criminal Procedure

State v. Bastow

ORS 136.425(2) states that "[A] confession alone is not sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed." However, because a "probation revocation hearing occurs after convictions that result from criminal proceedings" ORS 136.425(2) is not applicable.

Area(s) of Law:
  • Criminal Law

State v. Gonzalez

In determining whether a guest has a privacy right when in someone else’s home, “the scope of an invitation to be on or to use property is inherently a fact-based inquiry that is affected by property-law principles.” State v. Howard/Dawson, 342 Or 635, 642, 157 P3d 1189 (2007).

Area(s) of Law:
  • Criminal Law

State v. L. O. W.

“The statutory requirement that physicians give notice ‘immediately’ of an involuntary hold, taken together with the requirement that courts commence proceedings ‘immediately’ upon receiving such notice, plainly contemplate that commitment actions must proceed rapidly following the initial deprivation of a person’s liberty, consistent with the extraordinary nature of such a deprivation.” ORS 426.234(2)-(4); cf. also Addington v. Texas, 441 US 418, 425, 99 S. Ct. 1804 (1979).

Area(s) of Law:
  • Constitutional Law

State v. Smith

“Under Article I, section 9, of the Oregon Constitution, two components comprise probable cause: an officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances.” State v. Vasquez-Villagomez, 346 Or 12, 23, 203 P3d 193 (2009).

Area(s) of Law:
  • Criminal Law

State v. Tison

When the trial court’s judgment exceeds the amount allowable by law, the Court is to direct the trial court to impose the proper disposition under law. ORS 138.040.

Area(s) of Law:
  • Sentencing

State v. Werner

Under 813.011(1), the word “convicted” refers to the date of conviction, where its interpretation is supported by Measure 73, which “makes DUII a Class C felony if defendant [was] previously convicted of DUII, or statutory counterpart, at least twice in prior 10 years.” Shilo Inn v. Multnomah County, 334 Or 11 (2002).

Area(s) of Law:
  • Criminal Law

Arlene J. Hurtley v. Chad J. Hurtley

In interpreting the dissolution judgment, we seek to give effect to the intent of the trial court when it entered it. Neal and Neal, 181 Or App 361, 366, 45 P3d 1011 (2002).

Area(s) of Law:
  • Family Law

Fox v. Real Estate Agency

An agency, in this case, the ALJ, can alternate facts determined by another agency when there is clear and convincing evidence that the original finding was wrong. ORS 183.650. When those new findings are challenged in judicial review, the court must not determine whether the evidence supports the alteration of fact, but instead becomes a factfinder itself. ORS 183.650.

Area(s) of Law:
  • Administrative Law

Merchants Paper Co. v. Newton

"Under the discovery rule, a legal malpractice claim accrues when a person knows or, in the exercise of reasonable care, should know, that there is a substantial possibility that the person has an actionable injury. Kaseberg v. Davis Wright Tremaine, LLP, 351 Or 270, 278, 232 P3d 980 (2011)."

Area(s) of Law:
  • Tort Law

Portfolio Recovery Association v. Sanders

“The threshold question in a choice-of-law problem is whether the laws of the different states actually conflict.” Spirit Partners, LP v. Stoel Rives LLP, 212 Or App 295, 301, 157 P3d 1194 (2007).

Area(s) of Law:
  • Civil Procedure

State v. Howard

When it comes to a restitution award, the State must prove that there were “(1) criminal activities, (2) economic damages, and (3) a causal relationship between the two.” State v. Kirkland, 268 Or App 420 (2015). It is “plain error, in fact—for a trial court to impose restitution based on activities that occurred outside the period of time covered by the defendant’s plea agreement.” State v. Muhammad, 265 Or App 412 (2014).

Area(s) of Law:
  • Sentencing

State v. Hudspeth

When deciding whether there is a Confrontation Clause violation, as a general matter, “so long as the defendant is given the full and fair opportunity for cross-examination, a witness’s lack of memory of the statements or of the veracity of the statements does not give rise to a Confrontation Clause violation.” State v. Townsend, 290 Or App 919, 922 417 P3d 571 (2018).

Area(s) of Law:
  • Criminal Procedure

State v. Sim

Evidence admitted over a defendant’s OEC 403 objection is not unfairly prejudicial simply because it is harmful to the defense. State v. Shaw, 338 Or 586, 614, 113 P3d 898 (2005). Rather, unfair prejudice in the context of OEC 403 means “’an undue tendency to suggest decisions on an improper basis, commonly although not always an emotional one.’” State v. White, 71 Or App 299, 303, 692 P2d 167 (1984), rev den, 298 Or 705 (1985). “The critical inquiry in deter¬mining whether evidence is unfairly prejudicial is whether the evidence improperly appeals to the preferences of the trier of fact for reasons that are unrelated to the power of the evidence to establish a material fact.” State v. Sewell, 257 Or App 462, 468-69, 307 P3d 464, rev den, 354 Or 389 (2013).

Area(s) of Law:
  • Criminal Law

Tri-Met v. Walnut Hill, LLC

"'Common ownership’ is not established simply because an LLC owns one parcel and the owners of the LLC own the neighboring parcel.” Dept. of Transportation v. Pilothouse 60, LLC, 220 Or. App. 203, 213, 185, P.3d 487, rev den, 345 Or. 417 (2008).

Netherton v. Aerotek Inc.

When deciding apportion impairment, the board is not limited to closures. McDermott v. SAIF, 286 Or App 406, 398 P3d 964 (2017).

Area(s) of Law:
  • Workers Compensation

Wright v. PERB

Although ORS 238.450(4) states “that a member is entitled to judicial review under ORS 183.484 of a written decision made by PERS on a disputed benefits computation under ORS 238.450, that provision can confer jurisdiction on a circuit court only if the decision constitutes a ‘final order’ as that term is defined in ORS 183.310(6)(b). See ORS 183.480(3).

Area(s) of Law:
  • Administrative Law

July 33 summaries

Bayview Loan Servicing v. Chandler & Newville

When deciding whether a party is entitled to pursue foreclosure in order to resolve another party’s interest, previous court’s have held, “where a first mortgagee acquires the mortgagor’s interest, the first mortgage does not merge with it so as to elevate the second mortgage to a position of a first and only mortgage. See W.J. Seufert Land Co v. Greenfield, 273 Or 408, 412, 541 P2d 814 (1975).

Area(s) of Law:
  • Property Law

Conte v. City of Eugene

In determining the sufficiency of an appearance, “a person need not assert a position on the merits of the proposed land use action. A bare, neutral appearance, such as a letter requesting that the local government accept the letter as an appearance and provide notice of the decision, is sufficient. Nonetheless, the person must, at a minimum, submit a document . . . that the local government would reasonably recognize as an appearance by that person.” Century Properties, LLC v. City of Corvallis, 51 Or LUBA 572, 586, aff’d, 207 Or App 8, 139 P3d 990 (2006).

Area(s) of Law:
  • Land Use

Department of Human Services v. J.H.

Under ORS 419B.100(1)(c), the juvenile court may assert jurisdiction only where the evidence is sufficient to establish “a current threat of serious loss or injury that is likely to be realized” which is to be based on “the totality of the children’s circumstances or conditions.” Dept. of Human Services v. A. W., 276 Or App 276 (2016). Dept. of Human Services v. A. L., 268 Or App 391 (2015)

Area(s) of Law:
  • Juvenile Law

Department of Human Services v. T.L.H.S.

When it comes to a jurisdictional hearing, the juvenile court’s focus must be “on the child’s conditions or circumstances at the time of the hearing and whether the totality of those circumstances demonstrates a reasonable likelihood of harm to the welfare of the child.” Dept. of Human Services v. W. A. C., 263 Or App 382 (2014)

Area(s) of Law:
  • Juvenile Law

Kailash Ecovillage, LLC v. Santiago

“Under ORS 90.155(1), a landlord is permitted to use nail and mail service only if the parties’ rental agreement affords the tenant a ‘reciprocal right’ to use nail and mail service.” American Property Management Corporation v. Nikaia, 230 Or. App. 321, 328, 215 P.3d 906 (2009).

Area(s) of Law:
  • Landlord Tenant

Kay v. Employment Dept.

Under ORS 657.176(2)(c), an individual who “voluntarily left work without good cause” is disqualified from receiving unemployment benefits. “Good cause for voluntarily leaving work under ORS 657.176(2)(c) is such that a reasonable and prudent person of normal sensitivity, exercising ordinary common sense, would leave work.” OAR 471-030-0038(4).

Area(s) of Law:
  • Employment Law

Lizama v. Allstate Fire and Casualty Ins. Co.

Under ORS 742.061(1), "a plaintiff in an action on an insurance policy is generally entitled to attorney fees if 'the plaintiff's recovery exceeds the amount of any tender made by the defendant,'" unless the insurer has accepted coverage in a small subset of situations or if the insurer has consented to submit the case to binding arbitration.

Area(s) of Law:
  • Insurance Law

Mason v. BCK

Summary judgment is appropriate if undisputed facts would compel a jury to return a verdict for the moving party.” Jones v. General Motors Corp., 325 Or 404, 414, 939 P2d 608 (1997).

Area(s) of Law:
  • Civil Procedure

Meyer v. Oregon Lottery

“A government employer ‘can violate its employees’ rights to privacy and intimate association either by impermissibly investigation their private sexual conduct or by taking adverse employment action on the basis of such private conduct.’” Perez v. City of Roseville, 882 F.3d 843, 857 (9th Cir. 2018).

Area(s) of Law:
  • Employment Law

Slaughter and Harris

The Supreme court has a two-step determination for a chance of custody. Since the original judgment or custody/parenting time order, capacity of the moving party or legal custodian’s ability to take care of the child has changed and it would be in the child’s best interest, upon review of the relevant evidence, that custody be changed. The moving party has the burden of proving the change of circumstance. Boldt and Boldt, 344 Or 1, 9, 176 P3d 388 (2008).

Area(s) of Law:
  • Family Law

State v. Wakefield

Under ORS 163.195(1), reckless endangerment occurs when a defendant’s actions put another person within the “zone of danger” of a weapon or projectile. State v. Harbert, 155 Or App 137, 963 P2d 710, rev den, 327 Or 554 (1998).

Area(s) of Law:
  • Criminal Law

State v. Mayo

"To admit evidence under OEC 412, a trial court must conduct a three-step inquiry;" first, determine if the evidence concerns past sexual behavior of the victims, second, determine whether the evidence is offered in the form of an opinion or reputation evidence, and third, balance the probative value with the prejudicial effects.

Area(s) of Law:
  • Criminal Law

State v. Thomas

A trial court properly orders a defendant to pay attorney fees “where the defendant himself has posted a security deposit subject to the express condition that the monies could be used to satisfy the defendant’s financial obligations.” State v. Twitty, 85 Or App 98, 106, 735 P2d 1252, rev den, 304 Or 56 (1987).

Area(s) of Law:
  • Sentencing

Tanner and Tanner

For purposes of calculating child support, OAR 137-050-0710 requires a determination of each parent’s income. OAR 137-050-0715 defines ‘[actual] income’ as . . . a parent’s gross earnings and income from any source, including sources listed in section (4).” OAR 137-050-0715(2).

Area(s) of Law:
  • Family Law

Busch v. McInnis Waste Systems, Inc.

In determining whether the court should apply ORS 31.710(1), the court should consider “the nature of plaintiff’s injuries, the lack of any quid pro quo in ORS 31.710(1), and our conclusion [in Vasquez] that ‘the legislature’s reason for enacting the noneconomic damages cap . . . cannot bear the weight of the dramatic reduction in noneconomic damages that the statute requires for the most grievously injured plaintiffs,’ reducing plaintiffs’ noneconomic damages awards to $500,000 would leave them without a ‘substantial’ remedy as required by Article I, section 10.” Vasquez v. Double Press Mfg., Inc., 288 Or App 503, 406 P3d 225 (2017), rev allowed, 362 Or 665 (2018).

Area(s) of Law:
  • Remedies

Dahlke v. Jubie

“Parties opposing summary judgment have the burden of producing evidence that creates a material issue of fact as to those issues, but only to those issues.” Two Two v. Fujitec America, Inc., 355 Or. 319, 326, 325 P.3d 707 (2014). “That means that issues not ‘raised in the motion’ are not properly before the trial court on summary judgment.” Eklof v. Steward, 360 Or. 717, 731, 385 P.3d 1074 (2016).

Area(s) of Law:
  • Civil Procedure

Nevins v. Board of Parole

Under ORS 183.482(8)(c), the court may set aside or remand orders that are not supported by substantial evidence in the record, based on a reasonable person standard.

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

Sachdev v. Oregon Medical Board

The board must comply with the Oregon Administrative Procedures Act, ORS 677.200, and requires the board to provide the licensee with a notice under the Fourteenth Amendment. Murphy v. Oregon Medical Board, 270 Or App 621, 622, 348 P3d 1173 (2015). ORS 184.415(3)(c) requires the board to provide a “’reference to the particular sections of the statutes and rules involved’” in the allegations.

Area(s) of Law:
  • Administrative Law

State v. Balabon

"Under Article I, section 9, of the Oregon Constitution, warrantless seizures are per se unreasonable unless they fall within 'one of the few "specifically established and well-delineated exceptions" to the warrant requirement.'"

Area(s) of Law:
  • Criminal Procedure

State v. Bowden

ORS 137.540(2) allows the imposition of special conditions “that are supplementary to the general conditions available under ORS 137.540(1)” and it is not intended as a way to override a general condition. State v. Schwab, 95 Or App 593 (1989)

Area(s) of Law:
  • Sentencing

State v. C.H.

Under ORS 425.275(4), the county in which the trial visit occurred has sole jurisdiction over all proceedings stemming from the visit.

Area(s) of Law:
  • Civil Procedure

State v. Garrett

In deciding whether an instruction is coercive, the court reviews the words to determine whether it: “(1) encourages the minority of the jury to reconsider its views in light of the majority’s position; (2) is not balanced by an emphasis on adhering to conscientiously held opinions; (3) refers to the necessity or expense of a retrial; and, most of all, (4) informs the jury that it has an obligation to continue deliberating until it reaches a verdict or that the court will not declare a mistrial as the result of a deadlocked jury.” State v. Marsh, 260 Or 416, 443, 490 P2d 491 (1971), cert den, 406 US 974 (1972).

Area(s) of Law:
  • Criminal Law

State v. Holt

OEC 404(4) requires trial courts to conduct balancing under OEC 403 rather than a “narrower, ‘due process’ standard for evaluating the admissibility of evidence.” State v. Baughman, 361 Or 386, 393 P3d 1132 (2017).

Area(s) of Law:
  • Evidence

State v. S.-Q. K.

“Adjudicatory hearings”, according to the legislative history, were intended to be a “one shot” disposition, meaning that one “could not first give one disposition and later give another for the same act, stating a range of possible dispositions are available to the court upon the first try and the court just has to choose the right one so it “encompasses a juvenile court probation violation hearing”. DCBS v. Muliro, 359 Or 736 (2016).

Area(s) of Law:
  • Juvenile Law

State v. Villalta

A court cannot impose fees based on pure speculation that a defendant has funds to pay for the fees or may acquire them in the future.” State v. Pendergrapht, 251 Or App 630, 634, 284 P3d 573 (2012). The state has the burden of proving the defendant’s ability to pay. State v. Kanuch, 231 Or App 20, 24, 217 P3d 1082 (2009).

Area(s) of Law:
  • Attorney Fees

Miller v. SAIF

In determining whether an employee should be compensated under a work-related injury, the court should review the evidence and if, “when, the medical evidence identifies a condition causing the claimant’s symptoms and established that the condition developed gradually over time, the claimant has not experienced an injury, and the claim must be analyzed as an occupation disease.” Jewell v. SAIF, 291 Or App 703, 705, . . . P3d . . . (2018).

Area(s) of Law:
  • Workers Compensation

Patterson and Patterson

In order to modify an award of spousal support, the court must determine that there has been a “substantial, unanticipated change in economic circumstances since the original award” with the other party carrying the burden of proof. Boni and Boni, 208 Or App 592 (2006).

Area(s) of Law:
  • Family Law

State v. Golden

A trial court error is "plain" if "(1) the error is one of law, (2) the error is obvious, not reasonably in dispute, and (3) the error appears on the face of the record, so that we need not go outside the record to identify the error or choose between competing inferences, and the facts constituting the error are irrefutable." State v. Zolotoff, 275 Or App 384, 397, 365 P3d 131 (2015).

Area(s) of Law:
  • Sentencing

State v. Iseli

“A declarant’s hearsay statements are admissible against a party ‘who engaged in, directed or otherwise participated in wrongful conduct that was intended to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable.’” OEC 804(3)(g); see State v. Supanchick, 354 Or 737, 766, 323 P3d 231 (2014).

Area(s) of Law:
  • Evidence

State v. Kelley

“When a party objects to the admission of other acts evidence, a trial court first should determine whether the proffered evidence is relevant for one or more non-propensity purposes, under OEC 404(3). Then the court should determine, at step two, whether the probative value of that evidence is substantially outweighed by the danger of unfair prejudice under OEC 403.” State v. Baughman, 361 Or 386, 388-90, 393 P3d 1132 (2017).

Area(s) of Law:
  • Evidence

State v. Meeker

In determining whether an officer’s objective belief is reasonable, we look at “the totality of the circumstances as they reasonably appeared to the officer at the time” that must be based on “facts specific to the particular person” and cannot be based on “intuition or a generalized fear that the person may pose a threat to the officer’s safety.” State v. Jackson, 190 Or App 194 (2003), rev den, 337 Or 182 (2004).

Area(s) of Law:
  • Criminal Procedure

State v. Richen

Based on York v. Bailey, 159 Or App 341, 347-48, 976 P2d 1181, rev den, 329 Or 287 (1999), modification of a judgment on a basis of evidentiary error requires affirmatively established prejudice in the record; without that record, no reversal will occur.

Area(s) of Law:
  • Criminal Procedure

Velasco v. State of Oregon

In determining whether a defendant has been convicted of a criminal offense, the court should look for “four distinct events: (1) defendant’s act of pleading guilty or a jury’s act in reporting a verdict of guilty; (2) acceptance by the trial judge of the guilty plea or verdict; (3) conviction of the defendant on the plea or verdict; and (4) pronouncement and entry of defendant’s sentence.” State v. McDonnell, 306 Or 579, 581-82, 761 P2d 921 (1988).

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

August 18 summaries

Balzer v. Moore

Under ORS 471.565, a person licensed by the Oregon Liquor Control Commission is not liable for damages caused by intoxicated patrons unless the plaintiff proves by clear and convincing evidence that (1) the licensee provided alcohol to a visibly intoxicated patron, and (2) the plaintiff did not substantially contribute to the intoxication by providing, encouraging, or facilitating the consumption of alcoholic beverages.

Area(s) of Law:
  • Civil Procedure

Cascadia Wildlands v. Oregon Department of State Lands

(1) Under ORS 183.480(1), a person has standing when they are negatively affected by an order; ORS 183.480(1), provides that “a person is ‘aggrieved’ . . . if . . . (1) the person has suffered an injury to a substantial interest resulting directly from the challenged governmental action; (2) the person seeks to further an interest that the legislature expressly wished to have considered; or (3) the person has such a personal stake in the outcome of the controversy as to assure concrete adverseness to the proceeding.” People for Ethical Treatment v. Inst. Animal Care, 312 Or 95, 101-02, 817 P2d 1299 (1991). (2) “[a]lthough [the State Land Board] constituted a part of the administrative department of the government under the constitution, it is nevertheless governed and controlled in the exercise of its functions by the legislature and the laws emanating therefrom.” Robertson v. Low, 44 Or 587, 594, 77 P 744 (1904).

Area(s) of Law:
  • Civil Procedure

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

“’[B]efore it can change a permanency plan to adoption, a juvenile court must be able to find affirmatively from the evidence that there is not’ another permanent plan better suited to meet the child’s health and safety needs.” Dept. of Human Services v. J. M. T. M., 290 Or App 635, 638, 415 P3d 1154 (2018).

Area(s) of Law:
  • Family Law

Ferry v. Board of Parole

Under ORS 144.102(4)(b), “if a person is on post-prison supervision for a sex crime as defined in ORS 163A.005, the board ‘shall include’ thirteen specific conditions in the person’s post-prison supervision conditions. One of those thirteen conditions is [a] prohibition against direct or indirect contact with the victim, unless approved by the victim . . . and the board.” ORS 144.102(4)(b)(G).

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

Integrity Properties of Oregon, LLC v. Elkins

An unpreserved error may be reviewed as plain error if “(1) the error is one of law; (2) the error is apparent, that is, the legal point is obvious, not reasonably in dispute; and (3) the error appears on the face of the record, in that we need not go outside the record or choose between competing inferences to find it.” After meeting those requirements, the Court may decide whether to use its discretionary power based on the totality of the circumstances. State v. Loving, 290 Or App 805, 809, 417 P3d 470 (2018).

Area(s) of Law:
  • Civil Law

McCormick v. State Parks and Recreation Dept.

Under ORS 105.682, “a landowner is entitled to recreational immunity from liability for harm resulting from the recreational use of the owner’s land when . . . the owner ‘directly or indirectly permits any person to use the land for recreational purposes.’” To “permit” is to say that, “an owner must have the authority to make a volitional decision whether or not to allow recreational use on the land in question.” Ortega v. Martin, 293 Or App 180, . . . P3d . . . (2018).

Area(s) of Law:
  • Land Use

Ortega v. Martin

“The immunity provided by ORS 105.682 applies only to an owner of land who ‘directly or indirectly permits any person to use the land for recreational purposes.’” ORS 105.682. “To be entitled to recreational immunity, an owner of an interest in land must have made a volitional decision to open the land to the public for recreational use.” Landis v. Limbaugh, 282 Or App 284, 291, 385 P3d 1139, 1143 (2016).

Area(s) of Law:
  • Land Use

Sitton v. Dept. of Transportation

Under ORS 30.265(6)(a), public bodies, their officers, employees, and agents "acting within the scope of their employment or duties are immune from liability" for any injury or death claim covered by any workers' compensation law.

Area(s) of Law:
  • Qualified Immunity

State v. Haji

An amendment to an indictment is improper when the “omission of the allegations from the original indictment was a defect of ‘form’ within the meaning of Article VII,” with the matter of “form” being one that is not “essential to show that an offense has been committed.” State v. Wimber, 315 Or 103, (1992).

Area(s) of Law:
  • Criminal Procedure

State v. Kinsey

Under ORS 137.712, the court may impose a less than minimum sentence, determined under ORS 137.700, if the court finds that the victim was not “physically injured by means of a deadly weapon; that the victim did not suffer a significant physical injury; and [t]hat the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.”

Area(s) of Law:
  • Criminal Law

State v. M. B.

“A juvenile court probation violation proceeding that is the type of juvenile court ‘adjudicatory hearing,’ within the meaning of ORS 419A.190, bars subsequent proceedings arising out of allegations based on the same conduct.” State v. S.-Q.K., 292 Or App 836, 847-48 (2018).

Area(s) of Law:
  • Juvenile Law

State v. Provancha

Under ORS 137.123(5), when a court orders consecutive sentencing for a defendant found guilty of two incidents occurring from the same continuous conduct, it must indicate whether (a) “the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or (b) the criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense . . . .”

Area(s) of Law:
  • Criminal Law

Cedartech v. Strader

When it comes to substantial performance, the determination is “a question of fact” that is to be decided by the trial court using the preponderance of the evidence standard. American Petrofina v. D & L Oil Supply, 283 Or 183, 195, 583 P2d 521 (1978).

Area(s) of Law:
  • Contract Law

Hill v. City of Portland

“[T]he Fifth and Fourteenth Amendments permit the government to exact a dedication of private property as a condition of approval of a land use permit if the government demonstrates (1) a nexus between a governmental interest that would furnish a valid ground for the denial of the permit and the exaction of property, and (2) that the nature and extent of the exaction are roughly proportional to the effect of the proposed development. Brown v. City of Medford, 251 Or App 42, 47, 283 P3d 367 (2012).

Area(s) of Law:
  • Land Use

SAIF v. Dunn

“An ‘occupation disease’ is defined to include ‘any series of traumatic events or occurrences which requires medical services or results in physical disability or death,’ ORS 656.802, and, ‘prior work injuries may be considered as part of the overall “employment conditions” when evaluating the major contributing cause of an occupation disease.” Hunter v. SAIF, 246 Or App 755, 760, 268 P3d 660 (2011).

Area(s) of Law:
  • Workers Compensation

State v. Ibarra

“In order to meaningfully ‘oppose’ such a motion under ORS 138.225, an appellant must file a response explaining why the arguments in the opening brief do present a substantial question of law, to the end that the state should file a brief and the appeal be orally argued.” State v. Ibarra, 293 Or App 268, 272 (2018).

Area(s) of Law:
  • Criminal Law

State v. Leiby

“A seizure of a person occurs under Article I, section 9, of the Oregon Constitution: (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010) (internal quotation marks omitted).

Area(s) of Law:
  • Criminal Law

State v. McKnight

Under ORS 164.215, "A person commits the crime of first-degree burglary if 'the person enters or remains unlawfully in a building with the intent to commit a crime therein.'"

Area(s) of Law:
  • Criminal Law