Oregon Supreme Court

2016

January 0 summaries

February 5 summaries

State v. Simonov

The consent element of ORS 164.135(1) is a conduct element, as opposed to a circumstance element, which requires a minimum culpable mental state of knowing, meaning the State must prove the defendant knew that the owner of the vehicle he used, rode in, or otherwise exercised control over did not give consent.

Area(s) of Law:
  • Criminal Law

Shell v. Schollander Companies, Inc.

The statute of repose in ORS 12.135(1) applies to contracts to construct, alter, or repair an improvement to real property where a “contractee” accepts the property as “substantially complete,” while the statute of repose in ORS 12.115(1) applies generally to claims for negligence that do not derive from a contract to construct, alter, or repair an improvement to land.

Area(s) of Law:
  • Civil Procedure

State v. Kirschner

The American Rule would not apply to bar the victim’s recovery of restitution for wages lost (ORS 137.106) while the victim appeared to testify as long as the State establishes that the costs “resulted from” Defendant’s criminal activity and were reasonably foreseeable.

Area(s) of Law:
  • Remedies

State v. Ramos

“Economic damages” awarded as restitution under ORS 137.106 must be the result of reasonably foreseeable risks of harm, and victim’s attorney fees and litigation costs may constitution “economic damages” under ORS 137.106.

Area(s) of Law:
  • Remedies

State v. Suppah

Evidence of a misrepresentation to a police officer under ORS 807.620 will not be suppressed, even if the untruthful statement is elicited during an unlawful stop if the misrepresentation is unconnected with the unlawful stop in only a “but for” sense.

Area(s) of Law:
  • Criminal Procedure

March 13 summaries

Dept. of Human Services v. T. L.

A parent can raise a claim of inadequate assistance of counsel when a judgment changes the permanent plan for his children from reunification with a parent to permanent plans of guardianship and APPLA.

Area(s) of Law:
  • Juvenile Law

In re Miller

Rule 2.1(D) of the Oregon Code of Judicial Conduct does not apply to judicial candidates.

Area(s) of Law:
  • Professional Responsibility

Johnson v. Gibson

Under the Oregon Public Use of Lands Act, government employees or agents are not "owners" as defined by ORS 105.672(4), and are consequently not subject to recreational immunity from tort lawsuits.

Area(s) of Law:
  • Tort Law

Kendoll v. Rosenblum

A ballot title must conform to the requirements of ORS 250.035(2)(a)-(d); if it fails to conform, it may be referred for modification.

Area(s) of Law:
  • Ballot Titles

Neumann v. Liles

The relevant test for whether allegedly defamatory statements are entitled to First Amendment protection is whether a reasonable fact finder could conclude that the statement touching on a matter of public concern implies an assertion of objective fact.

Area(s) of Law:
  • Tort Law

Rowlett v. Fagan

Lawyers cannot be held to have breached a duty of care in a malpractice action by failing to raise claims that are colorable, but not viable, because in order to prove malpractice a client must show he had, “a valid cause of action or defense, which, had it not been for the attorney’s alleged negligence, would have brought about a judgment favorable to the client in the original action.”

Area(s) of Law:
  • Tort Law

State v. Lazarides

When moving to dismiss an appeal of a criminal conviction, under ORAP 8.05(3), the state is required to show that the defendant had absconded from post-prison supervision prior to the ruling, and that the defendant was under "abscond status" at the time of the ruling.

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

Unger v. Rosenblum

ORS 250.035(2)(a) is applied to the general wording of an Initiative Petition when identifying the subject matter appropriately for a ballot title caption rather than inferences made from the general wording.

Area(s) of Law:
  • Ballot Titles

Deckard v. Bunch

ORS 471.565(2) does not create a cause of action for statutory tort liability against third-party social hosts that is independent from common-law tort liability.

Area(s) of Law:
  • Tort Law

State v. Agee

The court amended its decision in State v. Agee, 358 Or 325 (2015) to reflect that defendant waived his first objection, which is why the court held that the trial court erred with regard to the second and third objections.

Area(s) of Law:
  • Criminal Procedure

Conroy v. Rosenblum

The proposed ballot title for Initiative Petition 62 must be returned to the Attorney General because several aspects of the proposed change in the law are not adequately disclosed in he title.

Area(s) of Law:
  • Ballot Titles

Nearman/Miller v. Rosenblum

Under ORS 250.035, a ballot title must contain a caption, summary, and result statements of the measure. The caption must reasonably identify the subject matter of the measure, which includes the actual effect of the measure, ORS 250.035(2)(a); the summary must provide voters with enough information to know what will happen if the measure is approved, ORS 250.035(2)(d); and the result statements must explain in simple and understandable terms the result of approving the measure. ORS 250.035(2)(b).

Area(s) of Law:
  • Ballot Titles

Scott v. Dept. of Rev

A party dissatisfied with a Magistrate Division decision may appeal by filing a complaint in the Regular Division of the Tax Court within 60 days after the date of entry of the written decision. ORS 305.501(5)(a). ORS 305.419(1) specifies that a condition precedent for appealing a tax decision is the payment of the tax assessed, and all penalties and interest due, on or before the filing of the complaint. However, ORS 305.419(3) provides an alternative to that condition, if the taxpayer establishes that payment of the taxes would be an undue hardship.

Area(s) of Law:
  • Tax Law

April 7 summaries

State v. Prieto-Rubio

Under Article 1, section 11 of the Oregon Constitution, a criminal defendant’s right to counsel is violated if, when questioning the defendant about an uncharged criminal offense, it is objectively, reasonably foreseeable that the questioning will lead to incriminating evidence concerning the offense for which the defendant has obtained counsel.

Area(s) of Law:
  • Criminal Procedure

Vaandering v. Rosenblum

Under ORS 250.035(2)(a-c), a ballot title must describe all major effects of a ballot measure, including the important results in “yes” and “no” vote scenarios and all significant effects of the measure in the summary.

Area(s) of Law:
  • Ballot Titles

Espinoza v. Evergreen Helicopters, Inc.

Motions to dismiss an action for forum non conveniens must satisfy a two-step process: (1) there must be an adequate alternative forum, and (2) the private and public interests must weigh heavily in favor of the alternative forum to meet "the ends of justice."

Area(s) of Law:
  • Civil Procedure

State v. Sines

Privacy interests protected by Article I, section 9, “is an interest against the state,” and “is not an interest against private parties.” Article I, section 9, is a restriction on government searches and seizures, not private ones.

Area(s) of Law:
  • Evidence

Baker v. Croslin

A person licensed by the Oregon Liquor Control Commission, holding a permit from the commission, or social host is not liable for damages caused by intoxicated patrons or guests unless the plaintiff proves by clear and convincing evidence that the licensee, permittee, or social host served alcohol to the patron while visibly intoxicated.

Area(s) of Law:
  • Tort Law

Couch Investments, LLC v. Peverieri

Under ORS 36.695 an arbitrator can order remedies that the arbitrator considers just and appropriate under the circumstances of the arbitration proceeding.

Area(s) of Law:
  • Remedies

Cross v. Rosenblum

The Attorney General’s certified ballot title must include a caption that reasonably identifies the subject matter even if the subject matter would be obvious to voters, the consequences are adequately described, and the limitations are described.

Area(s) of Law:
  • Ballot Titles

May 10 summaries

Horton v. OHSU

The cap on damages in the Oregon Tort Claims Act, ORS 30.265(1) and ORS 30.271(3)(a), does not violate the remedy clause, Article I, section 10, or the jury trial clause, Article I, section 17, of the Oregon Constitution.

Area(s) of Law:
  • Remedies

Northwest Natural Gas Co. v. City of Gresham

An increase in licensing fees may be valid if it is a “privilege tax” and the utilities operate “without a franchise” under ORS 221.450.

Area(s) of Law:
  • Tax Law

State v. Turnidge

Under OEC 404(3), 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Area(s) of Law:
  • Evidence

State v. Turnidge (S059156)

Even if evidence of a defendant’s motive is only circumstantial, the evidence is relevant and not speculative if a jury reasonably and logically could draw an inference of the defendant's motive from the circumstantial evidence alone.

Area(s) of Law:
  • Evidence

State v. Waterhouse

To convict a defendant of third degree theft under ORS 1664.043, the State need only show the property stolen had some value and is not required to prove the exact value of the property.

Area(s) of Law:
  • Criminal Law

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

Under 47 USC § 542(b), a state or local government may require fair and reasonable compensation from telecommunications providers, including cable operators, to the extent that they provide telecommunications services.

Area(s) of Law:
  • Civil Law

Conroy v. Rosenblum

The Attorney General must revise and re-file Initiative Petition 62 because it was vague, overbroad, and confusing in its caption, and inconsistent between its caption and its result statements.

Area(s) of Law:
  • Ballot Titles

Rains v. Stayton Builders Mart, Inc.

Article I, Section 17 of the Oregon Constitution does not restrict the legislature’s ability to impose a statutory damage cap on specific claims.

Area(s) of Law:
  • Disability Law

State v J. C. N.-V.

Under ORS 419C.352 and 419C.349, a youth under 15 who allegedly committed murder may be waived into adult court only if, at the time of the conduct, he or she “was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved.”

Area(s) of Law:
  • Juvenile Law

Turner v. Dept. of Transportation

Where a discretionary immunity defense is given by a government agency, alternatives to the agency's actions are a matter of material fact.

Area(s) of Law:
  • Civil Procedure

June 21 summaries

DCBS v. Muliro

Under ORS 656.210(2)(b)(A), to be eligible for supplemental temporary disability benefits, a claimant must prove that an employee's first employer and insurance company received actual notice of the claimant's secondary employment, and the notice requirement may not be imputed by preexisting knowledge.

Area(s) of Law:
  • Workers Compensation

Goodwin v. Kingsmen

Claims for negligence and negligence per se arising from physical damage to real property are subject to the two year statute of limitations under ORS 12.110(1), and not the six year statute of limitations for damage to legal interests in real property under ORS 12.080(3).

Area(s) of Law:
  • Property Law

Harkness v. Platten

Under the apparent authority theory of agency, when an employer gives an employee actual authority to perform certain tasks, that actual authority may create the appearance of authority to perform other related tasks, thus creating an agency relationship in which the employee acts within the scope of employment when performing the “other related tasks.”

Area(s) of Law:
  • Employment Law

State v. Althouse

Under ORS 138.222(2)(a), any presumptive sentence prescribed by the Oregon Criminal Justice Commission may not be reviewed on direct appeal. In reviewing a challenge to a presumptive sentence under Article I, section 16 of the Oregon Constitution courts considers three factors: (1) a comparison of the severity of the penalty and the gravity of the crime, (2) a comparison of the penalties imposed for other, related crimes, and (3) the criminal history of the defendant.

Area(s) of Law:
  • Sentencing

State v. Newcomb

An individual does not have possessory rights or search and seizure rights over an animal that is lawfully seized with probable cause.

Area(s) of Law:
  • Criminal Procedure

Bank of America, N.A. v. Payne

Without a validly appointed trustee, there is no “trustee” for purposes of the OTDA, and therefore can be no valid trustee’s sale with the power to foreclose another person’s property interests.

Area(s) of Law:
  • Property Law

Grabhorn v. Washington County

A Land Use Board of Appeal's decision may not lack substantial evidence when the date of lawful nonconforming presence is in dispute, if there would not have been a lawful presence under either date presented by petitioner.

Area(s) of Law:
  • Land Use

Hardin v. Popoff

Under ORS 138.510, a petitioner is required to file for post-conviction relief within two years of entry of the judgment of conviction, unless the grounds for relief could not reasonably have been raised during that period. A claim can reasonably be raised even if the underlying principle has not previously been analyzed in the petitioner's situation.

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

Lee v. Am. Family Mut. Ins. Co.

The phrase "all issues of law and fact" in ORS 36.425(2) includes the amount of attorney fees. ORS 36.425(6) does not preclude discussion of the matter of attorney fees at trial, but rather creates an expedited process when "solely" the question of attorney fees remain in question after arbitration.

Area(s) of Law:
  • Arbitration

State v. Altabef

In a prosecution for child sexual abuse, if a trial court determines that other acts evidence is relevant for a non-propensity purpose under OEC 404(3), the court is required, on a proper motion, to conduct due process balancing to weigh the probative value of the evidence against its potential to unduly prejudice the defendant before admitting it.

Area(s) of Law:
  • Evidence

State v. Davis

Under the doctrine of chances, for prior acts to be probative of intent the acts must bear something close to a point-by-point correspondence to the alleged crimes.Simply because the act has occurred more than once does not allow for any inference of a defendant's present guilt.

Area(s) of Law:
  • Evidence

State v. Hudman

Evidence is admissible under OEC 404(3) if it is relevant for a purpose other than to prove the person’s disposition or propensity to commit particular acts and that the person had acted in conformity with that disposition or propensity. To determine whether other-act evidence is relevant to show that a defendant engaged in the charged criminal conduct with the requisite intent, the trial court must consider the five factors set out in Johns, including whether “the physical elements of the [other] act and the [charged] act are similar.” If the answer to any of the five Johns questions is negative, then the evidence is not admissible as evidence of intent.

Area(s) of Law:
  • Criminal Law

State v. Jensen

Sexual offenses may not be expunged if another violation has occurred within 10 years, even if arising from the same event. ORS 137.225(8)(b); ORS 137.225(6).

Area(s) of Law:
  • Criminal Law

State v. K.A.M.

A juvenile offender's age and homeless status are not relevant to determine whether a police interaction constituted a stop. A stop does not occur when, without some other show of authority, a law enforcement official asks to see identification or to search for contraband.

Area(s) of Law:
  • Juvenile Law

State v. Koontz

Under State v. Garcia, when the State charges a defendant for interfering with a peace officer based on an express theory that defendant resisted the arrest of another officer, that charge is improper, and may be challenged through a motion for judgment of acquittal.

Area(s) of Law:
  • Criminal Law

State v. Rivera-Waddle

Conditions of a defendant's probation must be explicitly imposed by the sentencing court.

Area(s) of Law:
  • Criminal Procedure

State v. Vaughn-France

Under ORS 163.225(1)(b), "secretly confines the person in a place where the person is not likely to be found,” means that a defendant confines a victim in a place where it is not probable that the person will be located, either accidentally or through searching. It is a fact-specific inquiry which takes into account the circumstances of the place, the victim, and the defendant's actions.

Area(s) of Law:
  • Criminal Law

Wingett v. Silbernagel

Under ORS 31.605(4), a trial court may not hold two individuals jointly liable when a jury has found them severally liable. Under ORS 471.565(2), there is no right of action against a social host who serves alcohol to a visibly intoxicated person.

Area(s) of Law:
  • Civil Law

Dept. of Rev. v. River’s Edge Investments, LLC

Under ORS 308.232, and OAR 150-308.205-(A)(3), the “especial property” rule, a property’s real market value, and final value for tax purposes, is not determined by averaging the figures of the various appraisal methods, but by comparing the approaches used and comparing their reliability in context. The weight to be accorded each method is a question of fact for the Tax Court.

Area(s) of Law:
  • Tax Law

Oakmont, LLC, v. Dept. of Rev.

The Department of Revenue has supervisory jurisdiction where facts indicate the taxpayer and assessor would agree that error in tax assessment occurred. OAR 150-306.115(4)(b)(A) does not require that the assessor is aware of facts which would clearly affect the market value of the property.

Area(s) of Law:
  • Administrative Law

State v. Islam

A retail seller of goods that have been stolen may recover, as restitution, the reasonable value of those goods on the market to which the seller would resort to replace those goods at the time and place of conversion, together with any additional losses that the state proves the victim sustained.

Area(s) of Law:
  • Remedies

July 6 summaries

DIRECTV, Inc. v. Dept. of Rev.

Under ORS 308.505(3), “data transmission services” means “services that provide the means to send data from one computer or computer-like device to another across a transmission network . . . [w]hether the data that the customer receives is data directed to it by the service provider itself or by some third party” is not a factor in this analysis.

Area(s) of Law:
  • Tax Law

Eastern Oregon Mining Association v. DEQ

In cases involving challenges to administrative "orders in other than a contested case," the issue is not moot if a permit expires during the life of the litigation, as these challenges of the kind that are likely to evade future review.

Area(s) of Law:
  • Administrative Law

Kiryuta v. Country Preferred Ins. Co

An insurer is not entitled to a safe harbor for attorney fees under ORS 742.061(3), when an arbitration agreement limits the issues to be arbitrated, and the insurer raises an affirmative defense to the award that exceeds the scope of that agreement.

Area(s) of Law:
  • Attorney Fees

Piazza v. Kellim

In a negligence action, foreseeability requires a trier of fact, preferably a jury, to be able to find from concrete facts that a reasonable person in the position of Defendant reasonably would have foreseen that the person or location and circumstances poses a risk of criminal harm to persons.

Area(s) of Law:
  • Civil Law

State v. Nascimento

Under ORS 164.377(4), a defendant may be convicted of a computer crime if the defendant used the computer in question "without authorization." The phrase "without authorization" refers to the "use" or "access" of the computer, not use of the computer for a particular purpose.

Area(s) of Law:
  • Criminal Law

Etter v. Dept. of Rev.

Under 49 USC § 40116, the term “regularly” indicates that the assigned duties must be normal, typical, or routine.

Area(s) of Law:
  • Tax Law

August 5 summaries

Lake Oswego Preservation Society v. City of Lake Oswego

Under ORS 197.772, a property owner may exercise its right to remove a historic designation from its property if it meets two requirements: (1) “establish that it was the owner of the property at the time that it was designated;” and (2) “establish that the designation was imposed on the property by the local government.”

Area(s) of Law:
  • Land Use

SAIF v. Thompson

Under ORS 656.802(4), a claimant must prove: (1) claimant was employed for five or more years as a firefighter for a political division; (2) claimant’s death, disability, or impairment of health was caused by one of the listed diseases; (3) a physical exam failed to reveal that the condition or impairment preexisted employment. If the elements are proven, a rebuttable presumption is available that the condition resulted from the firefighter’s employment and is an occupational disease.

Area(s) of Law:
  • Workers Compensation

Yeatts v. Polygon Northwest Co.

The Oregon Employer Liability Law (ELL) imposes a greater duty of care on employers than common law negligence imposes; circumstances giving rise to ELL liability can exist without also supporting liability in negligence.

Area(s) of Law:
  • Tort Law

State v. Davis

A defendant commits the crime of escape in the third degree when he escapes custody either "during the course of an arrest or when police attempt to restrain that person pursuant to their authority to make such an arrest." Police officers yelling, "Stop, police!" is akin to a stop and not an arrest.

Area(s) of Law:
  • Criminal Law

Wyers v. American Medical Response Northwest, Inc.

A person does not need to have actual knowledge of abuse to be liable under ORS 124.100(5), which permits an action to be brought against a person who "permit[s]" abuse against a victim.

Area(s) of Law:
  • Civil Law

September 8 summaries

American Civil Liberties Union v. City of Eugene

The public has a particularly strong interest in police department personnel investigations arising out of use of force complaints. However, a public body may separate material that is exempt from disclosure (such as personal identifying information) from material that is not exempt and make the nonexempt material available for inspection.

Area(s) of Law:
  • Administrative Law

State v. Makin

Under ORS 163.547(1)(a), leaving children in a vehicle where controlled substances are possessed with an intent to deliver them, as opposed to actually delivering them while the children were present, does not constitute child neglect in the first degree.

Area(s) of Law:
  • Criminal Law

Habitat for Humanity v. Dept. of Rev.

Under ORS 307.130(2)(a), whether property is “actually and exclusively occupied or used” in the taxpayer’s charitable work depends on the nature of the taxpayer’s work and the relationship between the work and the property.

Area(s) of Law:
  • Tax Law

FountainCourt Homeowners v. FountainCourt Develop.

St. Paul Fire v. McCormick & Baxter Creosoting established that even if property damage begins to occur before the insurance policies are in effect, the policies are “triggered” when the damage is ongoing during the policy periods.

Area(s) of Law:
  • Insurance Law

State v. Boyd

Under Article 1, section 12 of the Oregon Constitution, the police interrogated defendant in violation of his state constitutional right to counsel and the incriminating statements that resulted should have been suppressed. The officer should have known that further questioning of Defendant’s was reasonably likely to elicit from Defendant an incriminating response.

Area(s) of Law:
  • Constitutional Law

State v. Chandler

A person’s out-of-court statement about the credibility of a witness or nonwitness complainant is subject to the categorical prohibition against vouching evidence only if the statement is offered for the truth of the credibility opinion that it expresses.

Area(s) of Law:
  • Evidence

State v. Davidson

The constitutionality of a sentence based on repeated sex offense convictions “depend[s] on the seriousness of repetitive sexual conduct of th[e] kind [punished] and the danger that it forecasts for others unless the defendant is segregated from society.” State v. Althouse, 359 Or. 668, 685 (quoting Jensen v. Gladden, 231 Or. 141, 144-45 (1962)) (internal quotes omitted).

Area(s) of Law:
  • Sentencing

State v.Sokell

For purposes of evaluating of as-applied proportionality challenges to sentences imposed pursuant to ORS 137.719(1), there are three factors: (1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.

Area(s) of Law:
  • Sentencing

October 4 summaries

State v. Barnthouse

Under Article I, section 9, a person has a protected possessory interest in property even though he cannot assert control over it; that is, even though the person does not have actual or constructive possession of the property.

Area(s) of Law:
  • Constitutional Law

Barrett v. Peters

Under the Interstate Corrections Compact, ORS 421.245, Article IV, Section 5, an inmate may bring a pettion of habeas corpus in Oregon if he is confined in another state, and a receiving state under the ICC shall not deprive any inmate so confined of any legal rights which inmate would have had if confined Oregon.

Area(s) of Law:
  • Habeas Corpus

Taylor v. Peters

Under the Western Interstate Corrections Compact, ORS 421.284, an inmate incarcerated outside of Oregon may bring a petition for habeas corpus in Oregon, and the director of the Department of Corrections is the appropriate defendant for those claims.

Area(s) of Law:
  • Habeas Corpus

Moro v. Oregon

Self-appointed attorneys may collect attorney fees under the common-fund and substantial-benefit doctrine.

Area(s) of Law:
  • Attorney Fees

November 3 summaries

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

Under the Uniform Declaratory Judgment Act, a person has standing if that person can show the law about which the plaintiff seeks a judgment injures or impacts the plaintiff's "legally recognized interest."

Area(s) of Law:
  • Standing

State v. Jesse

Expert testimony is properly excluded if it does not provide evidence that is helpful to the trier of fact.

Area(s) of Law:
  • Evidence

Wels v. Hippe

To establish that the use of an existing road is adverse, a plaintiff must show that (1) the use of the road interfered with the owner's’ use of the road or (2) that the use of the road was undertaken under a claim of right, of which the owners were aware.

Area(s) of Law:
  • Property Law

December 4 summaries

Jimerson v. Rosenblum

A ballot summary that is not concise and impartial must be modified to comply with ORS 250.035.

Area(s) of Law:
  • Election Law

West Hills Development Co. v. Chartis Claims

The duty of an insurer to defend the insured against claims will be determined by comparing the insurance contract to the complaint under the Four Corners approach to contract interpretation.

Area(s) of Law:
  • Insurance Law

Nay v. Dept. of Human Services

Under ORS 183.400(b), an administrative agency cannot amend a rule in a way which “depart[s] from a legal standard expressed or implied in the particular law being administered.”

Area(s) of Law:
  • Administrative Law

Eklof v. Steward

Under Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634 (2001), an appellate court may affirm a trial court’s ruling on an alternative basis if, among other things, it can conclude that the record is materially "the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below.”

Area(s) of Law:
  • Appellate Procedure