Elizabeth Schultz

Oregon Supreme Court (5 summaries)

State v. Carlton

Under ORS 137.719(3)(b)(B), “comparable offenses” from other states requires “close element matching” between respective out of state and Oregon statutes for any out of state convictions to be relied on in sentencing.

Area(s) of Law:
  • Sentencing

In re Sanai

Accused lawyer was not denied due process of law in Oregon State Bar Disciplinary Board’s reciprocal disbarment hearing or in the underlying disciplinary hearing in Washington where he was not able to subpoena the authors of numerous judicial orders and opinions admitted to evidence in the disciplinary hearings.

Area(s) of Law:
  • Professional Responsibility

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

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

In re Jagger

Attorney’s violation of RPC 1.1 and RPC 1.2(c), by knowingly facilitating a client in violating a restraining order, resulted in 90-day suspension from the practice of law.

Area(s) of Law:
  • Professional Responsibility

Oregon Court of Appeals (89 summaries)

Meier v. Salem-Keizer School Dist.

Under ORS 419B.010(1), the “reasonable cause” standard that triggers a mandatory reporter’s obligation to report child abuse is equivalent to a “reasonable suspicion,” based on inferences that can be drawn from the circumstances.

Area(s) of Law:
  • Family Law

J.V.-B. v. Burns

Under FAPA, an order continuing a restraining order must be supported by legally sufficient evidence that the subject of the order presented a "credible threat" to the physical safety of the protected person(s).

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

State v. Bement

Under OEC 803(3) evidence offered to show state of mind is excepted from the prohibition on hearsay.

Area(s) of Law:
  • Evidence

Brockway v. Allstate Property and Casualty Ins. Co.

Under ORS 742.056, an insurance company’s investigation of a loss or claim under an insurance policy does not estop the insurance company from asserting any provision of the policy or defense of the insurer arising from the policy.

Area(s) of Law:
  • Insurance Law

State v. J.T.C.

Under ORS 426.005(1)(e)(A), proving that a person is a “danger to others” due to mental illness requires proof of the likelihood of future violence based on more than a single, isolated incident.

Area(s) of Law:
  • Civil Commitment

State v. Stuart

Under ORS 163.125, a jury's determination of the reckless mental state is "subjective and will rarely be susceptible to direct proof; it often must be inferred (or not) from objective facts."

Area(s) of Law:
  • Criminal Law

Bergstrom v. Assoc. for Women’s Health of So. Ore.

Expert testimony does not have to be offered to prove a specific complaint allegation in order to be relevant under OEC 401.

Area(s) of Law:
  • Evidence

State v. Runnels

Trial courts must consider whether Defendant is or may be able to pay attorney fees before imposing them.

Area(s) of Law:
  • Attorney Fees

State v. Rives

A victim's identification satisfies the personal knowledge requirement of OEC 602 if a reasonable factfinder could find that the identification was more likely based on the victim's own perceptions.

Area(s) of Law:
  • Evidence

Dept. of Human Services v. S.S.

Under ORS 419B.498(2)(b), supporting a continued relationship with parents can, under some circumstances, constitute a compelling reason to determine that filing a petition to terminate parental rights would not be in the best interests of a child.

Area(s) of Law:
  • Family Law

Grimstad v. Knudsen

Plaintiff may prove an unjust enrichment claim without showing that Plaintiff conferred a benefit on Defendant, but instead by showing that Defendant received a benefit from a third party.

Area(s) of Law:
  • Trusts and Estates

Willamette Landing Apartments v. Burnett

Under ORS 91.090, acceptance of a post-judgment value for use and occupation of premises because of a court-ordered stay during appeal does not operate to reinstate a lease.

Area(s) of Law:
  • Landlord Tenant

State v. Walraven

State challenge to Defendant’s conditional release following a second-look hearing was rendered moot when Defendant’s underlying aggravated murder conviction was vacated.

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

Kotler and Winnett

Trial court must clarify whether it looked at and rejected Wife’s evidence during marital dissolution or whether the evidence was overlooked.

Area(s) of Law:
  • Family Law

Landis v. Limbaugh

Recreational immunity under ORS 105.682 does not apply to land that is generally available for public use.

Area(s) of Law:
  • Tort Law

State v. Robledo

To increase a defendant’s sentence after appeal, a court must affirmatively state reasons for the longer sentence based on identified facts of which the first sentencing judge was unaware, and the longer sentence cannot be a product of vindictiveness towards the defendant.

Area(s) of Law:
  • Sentencing

State v. Bradley

Trial court’s resentencing was vindictive in violation of Defendant’s due process rights where, on remand from a partially successful appeal, trial court changed Defendant’s remaining sentences from concurrent to consecutive sentences.

Area(s) of Law:
  • Sentencing

State v. Bray

Under the Fourteenth Amendment Due Process Clause, Defendant’s right to compel Prosecution to disclose material and exculpatory information does not extend to information in the hands of a private entity. Where Defendant’s Sixth Amendment Confrontation Clause right is in conflict with Victim’s Fourth Amendment right to be free from unreasonable searches and seizures, the court may conduct an in camera review of evidence in order to protect Victim’s privacy.

Area(s) of Law:
  • Criminal Procedure

State v. Stout

Under the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO)(ORS 166.715), pleadings for inchoate crimes must meet the specificity requirements for completed crimes set out in ORS 166.720(6).

Area(s) of Law:
  • Criminal Procedure

State v. Villagomez

Under ORS 475.900(1)(b)(A), the delivery of controlled substances “for consideration” requires the State to show that a defendant actually received or entered into an agreement to receive some consideration at the time of delivery.

Area(s) of Law:
  • Sentencing

Trautman/Conte v. City of Eugene

Under ORS 197.763(3), notice of a quasi-judicial hearing must describe the proceeding by explaining the nature of the application, the uses that could be authorized, and the criteria that apply to the application, and a general explanation of the requirements for submitting testimony, as well as a warning that a failure to raise an issue will waive it, precluding subsequent review of that issue.

Area(s) of Law:
  • Land Use

Lennar Northwest, Inc. v. Clackamas County

The Clackamas County Comprehensive Plan’s seven factor test for zoning (CCCP Policy 4.R.2) must be applied giving equal weight to each factor.

Area(s) of Law:
  • Land Use

State v. Buyes

Defendants must show substantial prejudice in order to request that a trial court sever separate counts for different victims that are similar in nature.

Area(s) of Law:
  • Criminal Procedure

State v. Gore

When a defendant asserts a "defense of property" defense, the jury must be instructed on the State's duty to disprove the defense beyond a reasonable doubt.

Area(s) of Law:
  • Criminal Law

Vanlaningham and Vanlaningham

When awarding spousal support, trial courts must consider the full amount of spouse’s income, including income in probate.

Area(s) of Law:
  • Family Law

Wilson v. Premo

Petitioner received inadequate assistance of counsel where Attorney failed to request a Boots instruction and the jury convicted Petitioner of 2 counts, and acquitted Petitioner of 2 counts, of the same crime without identifying the occurrence that formed the basis for each count.

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

Putnam v. Angelozzi

Under ORS 138.550(2), a petitioner seeking post-conviction relief may be eligible for relief based on issues not raised on direct appeal.

Area(s) of Law:
  • Appellate Procedure

Kerr v. Bauer

When a case is reversed and remanded to a trial court, that trial court has the ability to make a new decision, consistent with the appellate court's decision, unless the appellate opinion directed a particular outcome.

Area(s) of Law:
  • Appellate Procedure

State v. Hooper

A defendant's appeal will be dismissed under the fugitive dismissal rule if the defendant absconds with conscious intent to hide from or otherwise evade legal process.

Area(s) of Law:
  • Criminal Procedure

Aska and Hasson

A stipulated marriage dissolution judgment can only be entered when both spouses agree to the agreement either in writing or on the record.

Area(s) of Law:
  • Family Law

State v. Graves

Under Article I, section 9 of the Oregon constitution, when a police officer stops a car, the driver is automatically “seized” for the purposes of a search, but any passengers are not; some further showing of authority towards a passenger of the vehicle is required. Encounters that could be described as inquiries or conversations with passengers during a traffic stop are not searches.

Area(s) of Law:
  • Criminal Law

State v. Hill

Consistent with the Ninth Circuit’s test, a defendant bears the burden of producing evidence concerning Indian status, and the State bears the burden of proof to show that a defendant is not Indian.

Area(s) of Law:
  • Indian Law

State v. Montwheeler

Under the standard announced in Charles v. Palomo, an objection is made for preservation purposes whenever a party communicates to a trial court that he or she disagrees with the court’s actual or potential ruling. The words "I object" need not be specifically uttered, rather, the party objecting to a trial court's ruling must state its objection with enough specificity to allow the trial court to identify the alleged error for reconsideration, if warranted. Under OEC 402, it is clear error to exclude relevant evidence without a legal basis for exclusion.

Area(s) of Law:
  • Criminal Procedure

Utility Reform Project v. Oregon Public Utility Commission

Under ORS 757.355, recovery of administrative costs for issuing a consumer refund is not considered obtaining profit.

Area(s) of Law:
  • Administrative Law

Grant v. Coursey

For post-conviction relief based on inadequate assistance of counsel, a petitioner must demonstrate that (1) trial counsel failed to exercise reasonable professional skill and judgment, and (2) petitioner suffered prejudice as a result.

Area(s) of Law:
  • Criminal Procedure

Dept. of Human Services v. B. P.

Judgment of juvenile court was reviewable by the Court of Appeals as it was a concluding decision on jurisdiction.

Area(s) of Law:
  • Family Law

DeShaw and Nahar-DeShaw

In a child support modification proceeding, an accountant's testimony that tax returns may be credible and reliable evidence of income that can meet the "any evidence" standard needed to support a trial court finding.

Area(s) of Law:
  • Family Law

Progressive Party of Oregon v. Atkins

Arguing the possibility of a hypothetical administrative rule that Defendant had no plans to adopt does not make a future dispute “likely” as is required to invoke the Tanner exception (ORS 14.175) to to the mootness doctrine.

Area(s) of Law:
  • Administrative Law

DeRoest v. Keystone RV Co.

The Worker’s Compensation Board correctly denied employee’s aggravation claim, based on their interpretation of ORS 656.273, that an aggravation claim requires an “actual worsening” of a condition previously identified in a notice of acceptance.

Area(s) of Law:
  • Workers Compensation

State v. Batistia

Under State v. Bailey and State v. Benning, a trial court should analyze attenuation under the totality of the circumstances rather than using the now outdated Dempster rule.

Area(s) of Law:
  • Criminal Law

Twist Architecture & Design, Inc. v. Board of Architect Examiners

Oregon Board of Architect Examiners erred when it: categorized Twist’s preparation of feasibility studies as the “practice of architecture”, determined that Twist violated ORS 671.020 when it used its logos on its feasibility studies, and determined that Twist violated ORS 671.020 and OAR 806-010-0037(7) when it used the phrase “Licensed in the State of Oregon (Pending).” The Board did not err when it modified the ALJ’s findings of fact, or when it determined that Twist violated the statute by advertising Oregon architectural projects on its website. Reversed and Remanded.

Area(s) of Law:
  • Administrative Law

Robertson v. Greater Albany Public School District No. 8J

Affirmed. Nacoste v. Halton Co., 275 Or App 600, ___ P3d ___ (2015).

Area(s) of Law:
  • Workers Compensation

State v. Kelly

Notice that the State planned to introduce hearsay evidence under OEC 803(18a)(b), given prior to first trial, was held to be sufficient, despite lack of renewed notice at retrial.

Area(s) of Law:
  • Criminal Procedure

Johnson and Johnson

Trial court did not err in using discretion when awarding costs (ORCP 68 B) and deciding not to award an enhanced prevailing party fee (ORS 20.190) to Appellant who prevailed on contested property claim, as both provisions are discretionary. Affirmed.

Area(s) of Law:
  • Civil Procedure

State v. Ferguson

A trial court may err if it fails to merge two counts of felon in possession of a firearm where the crimes involve the same statutory provision, a single victim, and are not separated by sufficient time to justify separate convictions.

Area(s) of Law:
  • Criminal Procedure

State v. McAuliffe

A rational trier of fact could find that a defendant has the requisite intent under ORS 166.220 (intending to use a firearm as a threat) based on a defendant’s verbal statements.

Area(s) of Law:
  • Criminal Law

State v. Strouse

A trial court may properly join a defendant’s marijuana-related and firearm-related charges where the charges are "connected together or constitute parts of a common scheme or plan" as described in ORS 132.560(1)(b)(C).

Area(s) of Law:
  • Criminal Procedure

Currier v. Washman, LLC

Plaintiff bicyclist was an implied licensee on Defendant carwash owner’s property at the time of Plaintiff's injury. The jury properly considered evidence regarding circumstances and community norms in determining injured Plaintiff’s status, and the trial court properly denied Defendant’s motion for directed verdict. Affirmed.

Area(s) of Law:
  • Property Law

Harless and Harless

For a monthly spousal award where there has been a substantial change in circumstances, the trial court was required to modify or terminate the support award based on maintaining the relative positions of the parties.

Area(s) of Law:
  • Family Law

Sedgwick Claims Management Services v. Norwood

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

Area(s) of Law:
  • Employment Law

State v. Juarez-Hernandez

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

Area(s) of Law:
  • Criminal Procedure

State v. L. M. W.

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

Area(s) of Law:
  • Juvenile Law

State v. T.Q.N.

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

Area(s) of Law:
  • Juvenile Law

Vector Marketing Corp. v. Employment Dept.

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

Area(s) of Law:
  • Employment Law

Cascade Kelly Holdings, LLC v. Dept. of Energy

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

Area(s) of Law:
  • Administrative Law

State v. Lowell

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

Area(s) of Law:
  • Criminal Procedure

State v. Zolotoff

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

Area(s) of Law:
  • Criminal Procedure

State v. Carlton

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

Area(s) of Law:
  • Criminal Law

State v. Perez-Morales

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

Area(s) of Law:
  • Criminal Procedure

Rowen v. Gonenne

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

Area(s) of Law:
  • Civil Law

Dept. of Human Services v. J. R.

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

Area(s) of Law:
  • Juvenile Law

State v. Saranpaa

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

Area(s) of Law:
  • Criminal Procedure

Taylor v. Peters

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

Area(s) of Law:
  • Criminal Procedure

Lambert v. Premo

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

Area(s) of Law:
  • Criminal Procedure

State v. Huffman

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

Area(s) of Law:
  • Criminal Procedure

State v. Ramirez-Reyes

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

Area(s) of Law:
  • Criminal Law

State v. Adams

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

Area(s) of Law:
  • Criminal Law

State v. McGrattan

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

Area(s) of Law:
  • Evidence

State v. Rodriguez-Moreno

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

Area(s) of Law:
  • Criminal Law

State v. Murphy

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

Area(s) of Law:
  • Criminal Law

State v. Abram

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

Area(s) of Law:
  • Criminal Law

Borum v. Employment Dept.

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

Area(s) of Law:
  • Employment Law

State v. Maciel-Figueroa

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

Area(s) of Law:
  • Criminal Law

Berg v. Nooth

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

Area(s) of Law:
  • Criminal Law

State v. Lang

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

Area(s) of Law:
  • Criminal Law

State v. Tiscornia

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

Area(s) of Law:
  • Criminal Law

State v. Wiggins

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

Area(s) of Law:
  • Criminal Law

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

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

Area(s) of Law:
  • Family Law

Edwards v. Board of Parole

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

Area(s) of Law:
  • Criminal Law

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

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

Area(s) of Law:
  • Property Law

Hadley v. Extreme Technologies, Inc.

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

Area(s) of Law:
  • Contract Law

Mitchell and Mitchell

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

Area(s) of Law:
  • Family Law

State v. Johnson

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

Area(s) of Law:
  • Criminal Law

State v. Heater

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

Area(s) of Law:
  • Criminal Law

State v. Makin

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

Area(s) of Law:
  • Criminal Law

Knappenberger v. Davis-Stanton

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

Area(s) of Law:
  • Civil Law

State v. Ross

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

Area(s) of Law:
  • Criminal Law

Gibson v. Morris

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

Area(s) of Law:
  • Tort Law

State v. Streeter

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

Area(s) of Law:
  • Criminal Law