Brooke Boyes

Oregon Supreme Court (9 summaries)

Swanson v. Rosenblum

Under Whitsett v. Kroger, the “subject matter” of a ballot measure for purposes of ORS 250.035(2)(a) is the “actual major effect” of the measure or, “if the measure has more than one major effect, all such effects.”

Area(s) of Law:
  • Ballot Titles

OHSU v. Oregonian Publishing Co., LLC

HIPAA protects the privacy and confidentiality of “individually identifiable health information” created or received by a health care provider that relates to an individual’s health condition and identifies the individual. 45 CFR § 160.103. The HIPAA Privacy Rule, however, permits disclosure of protected health information where such disclosure is required by state law. 45 CFR § 164.512(a)(1). While Oregon Public Records Law gives every person the right to inspect public records, it exempts individually identifiable health information from disclosure. ORS 192.420(1); ORS 192.502(9)(a); 192.553; ORS 192.556 (11)(a).

Area(s) of Law:
  • Preemption

Oil Re-Refining Co. v. Environmental Quality Comm. 

A strict liability standard applies to the Department of Environmental Quality’s enforcement actions for simple violations of substantive standards.

Area(s) of Law:
  • Administrative 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

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

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. 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

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

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

Oregon Court of Appeals (58 summaries)

Vasquez v. Double Press Mfg., Inc.

Under Horton v. OHSU, for a statutorily substituted remedy under ORS 31.710(1) to be “substantial” as required by the remedy clause in Article I, section 10 of the Oregon Constitution, the remedy need not restore all damages that the plaintiff sustained to pass constitutional muster; however, a remedy that is only a “paltry fraction” of the damages the plaintiff sustained will unlikely be sufficient.

Area(s) of Law:
  • Remedies

State v. Rivera-Ortiz

“A jury may perceive expert testimony as scientific if it rests on a scientific underpinning unfamiliar to the jury, or is phrased in scientific terms.” State v. Beltran-Chavez, 286 Or App 590, 600 (2017).

Area(s) of Law:
  • Evidence

State v. Roberts

In determining whether evidence is admissible over an OEC 403 objection, a trial court must expressly consider the evidence’s relevance, probative value, and risk of unfair prejudice. State v. Brown, 272 Or App 424, 431-32, rev den, 358 Or 145 (2015).

Area(s) of Law:
  • Evidence

State v. Zielinski

An actor’s personal characteristics are relevant to “the actor’s situation,” and are thereby admissible to support the defense of EED, whereas an actor’s personality characteristics are not. State v. Ott, 297 Or 375, 395-96 (1984)

Area(s) of Law:
  • Evidence

Department of Human Services v. T.L.

A juvenile court must make permanency plan determinations under ORS 419B.476(2)(a), in accordance with the bases of the court’s initial jurisdiction that are “expressly stated or fairly implied.”  Dept. of Human Services v. N.T., 247 Or App 706, 715-16 (2012).

Area(s) of Law:
  • Juvenile Law

State v. Brunnemer

A trial court abuses its discretion when it overrules a defendant’s objection to a prosecutor’s improper argument if the argument is “likely to prejudice the jury unfairly,” and the trial court does not take action sufficient to cure the prejudice. State v. Logston, 270 Or App 296, 303 (2015) (quoting State v. Bolt, 108 Or App 746, 749, (1991))

Area(s) of Law:
  • Criminal Procedure

State v. Hurtado

A statement is a confession if made “for the purpose of acknowledging that the speaker is guilty of some criminal offense." A statement is an admission if "made for some purpose other than to acknowledge guilt, and if it is not so closely related to the . . . confession as to become part of it.” See State v. Manzella, 306 Or 303, 315-316 (1988).

Area(s) of Law:
  • Criminal Procedure

State v. Clardy

The knowledge component of a defendant’s waiver of the right to counsel can be satisfied if the totality of the circumstances demonstrates the defendant understood the risks of self-representation; the intent component can be demonstrated by a defendant’s conduct. See State v. Howard, 172 Or App 546, 553, rev den, 332 Or 305 (2001); State v. Langley, 351 Or 652, 669 (2012).

Area(s) of Law:
  • Constitutional Law

Harvey v. SAIF

When the Board is determining whether the findings of a Claimant’s attending physician are more accurate than those of medical arbiter under OAR 436-035-0007(5), the Board must provide substantial reason, as well as substantial evidence, on how its factual findings lead to the legal conclusions on which the order is based. Hicks v. SAIF, 196 Or App 146 (2004).

Area(s) of Law:
  • Workers Compensation

State v. Washington

The phrase “passive resistance” means “noncooperation with a lawful order of a peace officer that does not involve active conduct.”  State v. McNally, 361 Or 314, 339, 392 P3d 721 (2017),.

Area(s) of Law:
  • Criminal Law

McDermott v. SAIF

Under Schleiss v. SAIF, in the context of a combined condition worker’s compensation claima cognizable preexisting condition is subject apportionment upon the rating of impairment under ORS 656.214 in the benefits award process.

Area(s) of Law:
  • Workers Compensation

State v. Garcia-Rocio

Under OEC 403, although a trial court is not required to make an explicit record of its thoughts about each of the four OEC 403 balancing analysis steps laid out in State v. Mayfield, the record must indicate that the trial court considered the substance of those four steps, and "engage[d] in the conscious process of balancing the costs of the evidence against its benefits."  State v. Conrad, 280 Or App 325, 331 (2016), rev den, 360 Or 851 (2017).  

Area(s) of Law:
  • Evidence

State v. Chelemedos 286 Or App 77 (2017)

ORS 136.290 only provides a mechanism for a defendant to obtain release after being held 60 days; it does not provide that incarceration beyond 60 days is automatically prejudicial.

Area(s) of Law:
  • Criminal Procedure

Carroll v. Dept. of Public Safety Standards 

ORS 183.745(4) allows a person against whom a civil penalty is to be imposed to request a hearing to challenge the penalty, to be conducted as a contested case hearing.

Area(s) of Law:
  • Civil Law

State v. Dizick

Under ORS 138.083(1)(a), a trial court is not required to grant a defendant’s motion to modify an erroneous sentencing term, so long as it articulates a permissible reason for declining to do so. State v. Harding, 225 Or App 386, vac’d on other grounds, 347 Or 368 (2009)

Area(s) of Law:
  • Sentencing

State v. Tyler

To prove that a pedestrian “proceed[ed] along” a roadway within the meaning of ORS 814.070(1), the state must show that the pedestrian’s direction of travel was in a line that is generally parallel to the direction of the roadway where there is an adjacent usable sidewalk or shoulder.

Area(s) of Law:
  • Civil Law

Clark v. Nooth

A determination that the “defendant poses a security concern is necessary before a court requires a defendant to appear in court wearing a restraint, even if the restraint is not visible to the jury.” Sproule v. Coursey, 276 Or App 417, 422, rev den, 359 Or 777 (2016).

Area(s) of Law:
  • Constitutional Law

Coos Waterkeeper v. Port of Coos Bay

Use of the word “project” in ORS 196.825(1) does not require the Department of State Lands to consider post-construction operational effects of a proposed development when determining whether to issue a fill/removal permit in conjunction with that development.

Area(s) of Law:
  • Land Use

DeWolf v. Mt. Hood Ski Bowl, LLC

Under ORCP 64(B)(2), a new trial may be granted for misconduct of the prevailing party if that misconduct materially affected the substantial rights of the moving party. D.C. Thompson and Co. v. Hauge, 300 Or 651 (1986). 

Area(s) of Law:
  • Civil Procedure

Kastle v. Salem Hospital

When faced with a statute of limitations defense, “a complaint does not have to show that the action is timely; it suffices if the complaint does not reveal on its face that the action is not timely.”

Area(s) of Law:
  • Civil Procedure

Heathman Hotel v. McCormick & Schmick Restaurant 

A contract term is ambiguous if, when examined in the context of the contract as a whole, including the circumstances under which the contract was formed, it is susceptible to more than one plausible interpretation. Milne v. Milne Construction Co., 207 Or App 382, 388, 142 P3d 475 (2006).

Area(s) of Law:
  • Contract Law

Kay v. Employment Dept.

When determining whether a claimant for unemployment benefits had a reasonable alternative to leaving work, the EAB must decide whether that reasonable alternative existed “at the time she left work.”

Area(s) of Law:
  • Employment Law

Chavez v. State of Oregon

The ability of a petitioner to prevail on a claim for post-conviction relief, based on new constitutional principles, depends on the retroactivity of the federal constitutional principle at work.

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

Kuhn v. Dept. of Human Services

A service that is provided with the sole objective of assisting a disabled person to function comparably to a nondisabled person qualifies as a social benefit within the meaning of OAR 411-330-0020(81), even if someone else incidentally benefits from the service.

Area(s) of Law:
  • Administrative Law

Butler Family LP v. Butler Brothers, LLC 

Under Huff v. Duncan, the use of the word “successors” in a lease agreement is not required to evidence an intention that a covenant in the original agreement run with the land; a reference to “assigns” is sufficient to evidence that intention.

Area(s) of Law:
  • Property Law

State v. Bond

When an indictment alleges the “attempts to use unlawfully against another” variant of unlawful use of a weapon (UUW), and not the alternative and disjunctive “or carries or possesses with intent to use unlawfully against another” variant of that offense, failure to merge a count of UUW with a count of first or second-degree assault constitutes plain error.

Area(s) of Law:
  • Criminal Law

State v. K.J.B.

Under State v. Parkins, in close cases, whether an issue has been sufficiently preserved for appeal turns on whether the policies behind the rule, “e.g., procedural fairness to the parties and the trial court, judicial economy, and full development of the record,” have been sufficiently served.

Area(s) of Law:
  • Evidence

Watts v. Board of Nursing

Under OAR 137-003-0580(9), no express “penalty of perjury” clause is required for an affidavit to be valid.

Area(s) of Law:
  • Administrative Law

Osuna-Bonilla v. Teacher Standards and Practices Comm.

Under Reguero v. Teacher Standards and Practices, the Administrative Procedures Act allows hearsay evidence to be admissible as any other evidence, so long as it meets the statutory test of reliability under ORS 183.450(1).

Area(s) of Law:
  • Administrative Law

State v. Wenning

Under ORS 138.060, the State may appeal an order made prior to trial dismissing or setting aside the accusatory instrument, or suppressing the evidence.

Area(s) of Law:
  • Evidence

Herinckx v. Sanelle

Under Egelhoff v. Egelhoff, the Employee Retirement Income Security Act (ERISA) preempts any State law that impermissibly connects with ERISA by way of (1) governing a central matter of plan administration, or (2) interfering with nationally uniform plan administration.

Area(s) of Law:
  • Trusts and Estates

DiNicola v. Service Employees Int’l Union Local 503

Under ORS 65.224, a non-profit corporation is required to make available to members a list of members’ “names, addresses, and membership dates,” along with the “number of votes each member is entitled to vote at the meeting” if there are classes of members.

Area(s) of Law:
  • Labor Law

Kness and Kness

Under ORS 107.137(1), the “best interests” standard requires a court to give weight to the preference of the child’s primary caregiver when determining if a child can move with one parent to a new location.

Area(s) of Law:
  • Family Law

State v. Wright

When the State advances competing theories of liability on a defendant’s acts as principal or as an aider-and-abettor, a jury must be instructed that at least 10 jurors must agree that the defendant is liable under one theory or the other.

Area(s) of Law:
  • Criminal Procedure

State v. Snyder

Under Article I, section 9 of the Oregon Constitution, to satisfy the automobile exception to the warrant requirement during a search involving a drug-detection dog, the State must prove that the dog’s alert was sufficiently reliable to provide probable cause to search the automobile.

Area(s) of Law:
  • Criminal Procedure

Porter and Porter

Under Rudder and Rudder, the relevant factors to determine whether a prenuptial agreement was voluntarily executed include the proximity of the document’s presentation to the time of the wedding; any surprise in its presentation; the presence or absence of legal counsel; inequality of bargaining power; disclosure of assets; understanding of rights waived; and awareness of the intent of the document.

Area(s) of Law:
  • Family Law

State v. Presock

A probationer has the right to discovery only for the evidence used against him.

Area(s) of Law:
  • Evidence

State v. Berg

An appellate court may affirm an erroneous order as harmless error if the alternate argument raised on appeal would have produced a record materially similar to the record produced under the erroneous order.

Area(s) of Law:
  • Criminal Procedure

State v. Rankins

Within the meaning of the Commercial Drug Offense statute, ORS 475.900, the term “records” means “intentionally retained notations” maintained in furtherance of an enterprise conducted over a period of time.

Area(s) of Law:
  • Criminal Law

State v. Conrad

A court’s decision to admit evidence after conducting OEC 403 balancing meets the Mayfield requirements even if the court does not expressly follow the Mayfield analysis, so long as the record shows the court considered the substantive matters prescribed in Mayfield.

Area(s) of Law:
  • Evidence

State v. Ritter

Under ORS 165.800, in order to convert the personal identification of another person to one’s own use via “appropriation,” a Defendant must take, acquire, or claim that personal identification by possessing or controlling it without the consent or permission of the person it identifies.

Area(s) of Law:
  • Criminal Law

Dayton v. Jordan

Under Cheney v. Mueller, evidence of prior use of real property is one of many factors to be considered in determining whether an implied easement exists, and “cannot of itself establish an easement.”

Area(s) of Law:
  • Property Law

Kennison v. Dyke

Under ORS 109.119(3)(b), before granting visitation rights to a person who has an ongoing personal relationship with a child, a court is required to determine whether that person rebutted, by clear and convincing evidence, the statutory presumption found in ORS 109.119(2)(a) that the child’s guardian acted in the best interest of the child in initially denying visitation rights to that person.

Area(s) of Law:
  • Family Law

Vicente v. Nooth

In order to comply with ORS 138.640(1), a judgment denying claims for post-conviction relief must, at minimum, (1) identify the claims for relief that the court considered and make separate rulings on each claim; (2) declare, with regard to each claim, whether the denial is based on a petitioner’s failure to utilize or follow available state procedures or a failure to establish the merits of the claim; and (3) make the legal bases for denial of relief apparent.

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

State v. Simmons

A trial court, when faced with a motion for a judgment of acquittal, is required to (1) view disputed facts in the light most favorable to the state, (2) consider all reasonable inferences of guilt and innocence arising from the undisputed facts, and (3) inquire whether “any” rational juror could find defendant guilty beyond a reasonable doubt, based on consideration of disputed and undisputed facts and the reasonable inferences arising from them.

Area(s) of Law:
  • Civil Procedure

Gilmour v. Linn County

Under Collins v. Klamath County, a local government’s interpretation of a land use regulation that implements state law is not entitled to deference under ORS 197.829.

Area(s) of Law:
  • Land Use

State v. Stubblefield

Under State v. Cook, a warrantless search does not violate a defendant’s rights under Article I, section 9, of the Oregon Constitution when that defendant’s words or conduct demonstrate abandonment of the searched property.

Area(s) of Law:
  • Criminal Procedure

State v. Clarke

Under State v. Hampton, relevant evidence of motive is admissible to prove a defendant committed the physical element of a charged act if it makes more probable the fact that a defendant physically committed a crime than if such a motive were not established. Under State v. Brock, if the record establishes that a trial court consciously balanced the costs of admitting prior acts evidence against its benefits, there was due process balancing as required by OEC 403.

Area(s) of Law:
  • Evidence

Allen v. SAIF

Under ORS 656.005(7)(a)(A), in order for a claimant with an injury determined to be a “consequential condition” arising out of an earlier compensable injury to recover, that claimant must prove that the earlier compensable injury was the major contributing cause of the subsequent injury.

Area(s) of Law:
  • Workers Compensation

International Longshore and Warehouse Union, Locals 8 & 40 v. Port of Portland

The Employment Relations Board does not have jurisdiction to hear complaints under the Public Employee Collective Bargaining Act unless they are based off a public employer's illegal acts.

Area(s) of Law:
  • Administrative Law

State v. F. H.

Under State v. A.D.S., an involuntary civil commitment cannot be based on apprehensions, speculations, and conjecture that an appellant cannot care for his basic needs.

Area(s) of Law:
  • Civil Commitment

Nationstar Mortgage, LLC v. Peper

Under Brandrup v. ReconTrust Co., a mortgage or deed of trust will always be attached to the promissory note that it secures. Under Niday v. GMAC Mortgage, LLC, the original lender (or any successor) of a trust deed is the beneficiary, notwithstanding what the trust deed purports to designate.

Area(s) of Law:
  • Trusts and Estates

Wal-Mart Associates, Inc. v. Lamb

Upon awarding attorney fees to a claimant under OAR 438-015-0010(4), an Administrative Law Judge or Board is required to explain in its order each of the enumerated factors listed under OAR 438-015-0010(4) as they contribute to the decision to award attorney fees.

Area(s) of Law:
  • Administrative Law

State v. Blair

Under State v. DeLong, the scope of voluntary consent is determined by what a reasonable person would have understood the search to include, given the exchange between the officer and the suspect, in light of the totality of the circumstances surrounding the voluntary consent.

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. K.G.A.B.

Under ORS 419B.824(6)(c), DHS may serve a parent or guardian by service of newspaper publication in the county where the action was commenced if DHS shows a written motion and affidavit from which it can be determined that DHS was unable to accomplish service through any other method.

Area(s) of Law:
  • Juvenile Law

State v. Beltran-Solas

An accused criminal defendant, after being appointed legal counsel under Article 1, Section 11 of the Oregon Constitution, cannot be interrogated about the crime charged without the counsel’s representation.

Area(s) of Law:
  • Criminal Law

Multnomah County Sheriff’s Office v. Edwards

Under ORS 408.230 (the veterans’ preference law), a public employer’s application process for hiring and promotion decisions must utilize a coherent, stable method for giving special consideration to disabled veterans.

Area(s) of Law:
  • Administrative Law

State v. M.L.N.

Under ORS 426.130(1)(a), in order to civilly commit a person, the State must prove by clear and convincing evidence that the person is mentally ill.

Area(s) of Law:
  • Civil Commitment