Andrew Witek

Oregon Supreme Court (9 summaries)

State v. Baughman

Under OEC 403, the trial court must conduct a balancing test in a criminal action where the state presents evidence of uncharged acts in order to prove a defendant’s tendency to commit crimes under OEC 404(4), or a nonpropensity purpose under 404(3), and defendant objects to the evidence being admitted.

Area(s) of Law:
  • Evidence

Figueroa v. BNSF Railway Co.

Foreign corporations do not automatically consent to the general jurisdiction of Oregon by complying with ORS 60.731(1) and appointing an agent of the company upon which process is served.

Area(s) of Law:
  • Civil Procedure

Dowell v. Oregon Mutual Ins. Co.

Under ORS 742.524(1)(a) the phrase “expenses of medical services” includes (1) the cost of professional services provided by licensed or certified healthcare providers and (2) medications and medical supplies and equipment that have prescribed for the injured motorist that they treat.

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

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

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. 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

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

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

Oregon Court of Appeals (61 summaries)

State v. T.Y.

Under ORS 426.005(1)(f), to establish that a person is dangerous to self “the state must present evidence that the person’s mental disorder would cause him or her to engage in behavior that is likely to result in physical harm to himself or herself in the near term.” State v. B.B., 240 Or App 75, 82 (2010).

Area(s) of Law:
  • Evidence

Woods v. Franke

Under ORS 138.530(1)(a), a petitioner is entitled to post-conviction relief if they establish a substantial denial of state or federal constitutional rights in proceedings which resulted in the petitioner’s conviction, which renders the conviction void.

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

Wolff v. Board of Psychologist Examiners

Under OAR 137-003-0580, summary determination is appropriate if there is no genuine issue of any material fact that is relevant to resolving a legal issue when viewing the evidence in the light most favorable to the nonmoving party.

Area(s) of Law:
  • Civil Procedure

BP West Coast Products, LLP v. Dept. of Justice

Under ORS 646.930 the service station’s minimum requirement for posting fuel prices does not stop the Attorney general from incorporating rules under ORS 646.608(1)(u) to find and stop “any other unfair or deceptive conduct” regarding fuel prices display.

Area(s) of Law:
  • Civil Procedure

State v. Jenkins

Under Romero, a Defendant must have affidavit supporting a request for DNA testing, and a prima facie showing of actual innocence “necessarily requires the defendant to establish a logical relationship between the presumed exculpatory DNA results and the defendant’s theory of defense in the context of the underlying trial proceedings, as will be required for a later showing of actual innocence.

Area(s) of Law:
  • Criminal Procedure

State v. Washington

Under Article I, Section 9, of the Oregon Constitution, an officer’s suspicion is objectively reasonable if the officer is able to “identify specific and articulable facts that produce reasonable suspicion, based on the officer’s experience, that criminal activity is afoot." State v. Mitchele, 240 Or App 86, 91, 251 P3d 760 (2010).

Area(s) of Law:
  • Criminal Law

State v. Garcia

Under ORS 132.550(7), an indictment must contain a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.

Area(s) of Law:
  • Criminal Procedure

Vantassel v. SAIF

Under ORS 656.005(24)(c), a condition merely renders a worker more susceptible to injury if the condition increased the likelihood that the affected body part would be injured by some other action or process but did not actively contribute to damaging the body part.

Area(s) of Law:
  • Workers Compensation

State v. Clark

Scientific testimony is admissible if it is (1) relevant under OEC 401; (2) of some assistance to the trier of fact under OEC 702; and (3) its probative value is not outweighed by the danger of unfair prejudice or jury confusion under OEC 403.

Area(s) of Law:
  • Evidence

State v. Berger

"ORS 137.750 requires a sentencing court to order that a defendant may be considered for release, leave and certain sentencing programs for which the defendant is otherwise eligible unless the court makes a finding on the record that substantial and compelling reasons exist that warrant a contrary result."

Area(s) of Law:
  • Sentencing

Thomas v. Wasco County

Under ORS 433.745 and ORS 433.750, an applicant for an outdoor-mass-gathering permit is not required to demonstrate compliance with land use laws. Those statutes do not require a county to consider an applicant’s compliance with land use laws in evaluating an application for an outdoor-mass-gathering.

Area(s) of Law:
  • Civil Law

Farmer v. Premo

Under the Oregon Constitution, petitioners who seek “post-conviction relief stemming from a claim of inadequate assistance of appellate counsel for failing to assert a claimed error must establish that a competent appellate counsel would have asserted the claim” in order to establish deficient performance.

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

Duffour v. Portland Community College

Under ORS 183.482(7), the Court reviews to determine whether “fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure.”

Area(s) of Law:
  • Civil Procedure

Hernandez-Nolt v. Washington County

Under the theory of wrongful discharge, employers may incur tort liability for discharging an employee for "fulfilling some important public duty."

Area(s) of Law:
  • Tort Law

State v. Haines

Article 1, section 11, states that the constitutional right to counsel may be waived but the waiver must be voluntarily and knowingly made. To knowingly waive the right to counsel, a defendant must be aware of the right to counsel and also understand the risk inherent in self-representation. It is up to the court to determine whether the waiver of counsel is made knowingly.

Area(s) of Law:
  • Constitutional Law

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

Under ORS 419B417(2)(a) the juvenile court is authorized to change the plan from reunification only if DHS proves that (1) it made reasonable efforts to make it possible for the child to be reunified with his or her parent and (2) notwithstanding those efforts, the parent’s progress was insufficient to make reunification possible.

Area(s) of Law:
  • Family Law

State v. Herfurth

Restitution statutes establish that a trial court is required to order a defendant to pay a victim restitution for the full amount of the victim’s economic damages, unless the victim consents to a lesser amount.

Area(s) of Law:
  • Remedies

State v. Griswold

A compensatory fine requires that the victim must have a remedy by a civil action for the injuries he suffered as a result of defendant’s crime and that punitive damages have not been previously decided in a civil case arising out of the same act and transaction.

Area(s) of Law:
  • Remedies

Manley v. City of Coburg

Under ORCP 47, a party is entitled to summary judgment if the pleadings, deposition, affidavits, declarations, and admissions on file show that there is no genuine issue as to any material fact and the moving party is entitled to prevail as a matter of law.

Area(s) of Law:
  • Civil Procedure

McBride v. State Farm Mutual Automobile Ins. Co.

ORS 742.524 states that the PIP claim is presumed to be reasonable and necessary unless the medical provider receives notice of the denial within that 60 calendar day period. Plaintiff’s failure to attend a medical examination required by the insurance policy is a “condition of forfeiture” of rights under that policy.

Area(s) of Law:
  • Insurance Law

State v. Jenkins

Any error in admitting a hearsay statement about the plaintiff’s identity was harmless and the trial court did not err in admitting the officer’s testimony because it contained no verbal or nonverbal hearsay.

Area(s) of Law:
  • Criminal Law

State v. Tate

Under ORS 138.222(5) the defendant should be able to present arguments related to the true life sentence being imposed.

Area(s) of Law:
  • Criminal Law

State v. Lacey

The Sixth amendment requires a trial court to delay the trial when a self-represented Defendant’s misconduct causes the court to remove the Defendant from the courtroom. The trial court cannot proceed in the Defendant’s absence unless the trial court has either secured the Defendant’s waiver of his right to representation at trial or taken some course of action that protects the Defendant’s right to representation.

Area(s) of Law:
  • Constitutional Law

State v. Nicholson

Under ORS 33.015(b) a defendant who acts based on a good faith belief that a judicial order has been dismissed can’t be deemed to have acted “with knowledge that it was forbidden conduct.”

Area(s) of Law:
  • Criminal Law

State v. Gordon

Under ORS 164.215(1) a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime. “Enter and remain unlawfully” means to enter the premises when the premises are not open to the public and when entrant is not licensed or privileged to do so, ORS 164.205(3)(a).

Area(s) of Law:
  • Criminal Law

State v. Nichols

Under ORS 137.101(1) the court is authorized to order the state to share a portion of a penalty fine with a victim of an offense.

Area(s) of Law:
  • Criminal Law

State v. Breshears

Under ORS 161.067, merger of criminal convictions is controlled by the elements of the crimes as charged, not by particular facts that the State might prove to establish those elements.

Area(s) of Law:
  • Criminal Procedure

State v. Bray

The validity of an extension of a traffic stop is based on a totality of circumstances. To be lawful, an extension of a traffic stop to conduct a criminal investigation must be justified by reasonable suspicion of criminal activity.

Area(s) of Law:
  • Criminal Law

Village at North Pointe Condo. Assn. v. Bloedel Constr.

Under ORS 20.077 or ORAP 13.05(3) the Court cannot designate the plaintiff as the prevailing party because the plaintiff did not obtain a “substantial modification” of any judgment appealed.

Area(s) of Law:
  • Appellate Procedure

State v. Werner

Under 164.125 a person commits the crime of second-degree burglary if the person enters or remains unlawfully in a building with intent to commit a crime therein. However, the mere fact that a crime was committed is an insufficient basis for finding that the entry or remaining was without privilege or authority. The commission of a crime does not convert a lawful entry into an unlawful remaining.

Area(s) of Law:
  • Criminal Law

State v. Friddle

A warrant may not authorize a search that is broader than the supporting affidavit supplies probable cause to justify. A warrant can be over broad as to sought after items not supported by probable cause.

Area(s) of Law:
  • Civil Procedure

Plotkin v. SAIF

Oregon’s anti-SLAPP statute, ORS 31.150, creates an expedited process for dismissal of certain non-meritorioius civil cases without prejudice at the pleading stage. Although the trial court’s threshold determination that plaintiff’s claim is susceptible to an anti-SLAPP motion to strike was correct.

State v. Herrera

An appeal does not fall under ORS 138.053(3) because a defendant challenges only the entry of the judgment of conviction. ORS 138.050 controls because the essence of defendant’s arguments concern whether conviction should be entered, therefore the appeal must be dismissed.

Area(s) of Law:
  • Criminal Law

Austin v. Premo

In a post-conviction appeal, Petitioner must raise a substantial question of law as to both elements in order to avoid summary affirmance. A substantial question of law is a question of law that is important, having solid or firm foundation being soundly based or presenting probable facts or circumstances sufficient to support a reasonable legal hypothesis.

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

Goodsell v. Eagle-Air Estates Homeowners Assn.

ORS 94.719 establishes attorney fee entitlement for the prevailing party of legal proceedings involving a homeowner’s association. ORS 94.719 is a compulsory fee statute that applies if there is a single prevailing party on each claim at the end of litigation.

Area(s) of Law:
  • Attorney Fees

State v. Voyles

Proper search of real property requires a separate and independent analysis of the search of the real property and seizure of the personal property within it, and the different interests they implicate.

Area(s) of Law:
  • Criminal Procedure

State v. Cazarez-Hernandez

When analyzing the legitimacy of a Miranda warnings, the Court’s inquiry is whether the concepts have been expressed rather than whether the words have been accurately translated. The warning must convey that the Defendant has the right to remain silent and to consult with counsel and that any statements that the person makes may be used against the person in a criminal prosecution.

Area(s) of Law:
  • Criminal Procedure

State v. Hanson

An error does not qualify for plain error review if the record contains a competing inference that the party may have a strategic purpose for not objecting and the competing inference is plausible.

Area(s) of Law:
  • Appellate Procedure

Lopez-Becerra v. State of Oregon

Under ORS 138.640(1), a post-conviction judgment requires that the court: identify the claims for relief considered and make separate rulings on each claim; declare whether the denial is based on petitioner’s failure to utilize or follow available state procedures or a failure to establish the merits of the claim; make the legal bases for denial of relief apparent.

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

State v. Bevil

Under ORS 163.205(1)(b)(D), the first-degree criminal mistreatment statute makes it a Class C felony for any person who has assumed the care of an elderly person to take the elderly person’s money or property for any use or purpose not in the due care and lawful execution of the person’s responsibility.

Area(s) of Law:
  • Criminal Law

Graydog Internet, Inc. v. Giller

Under ORS 60.952(6) the filing of a third party complaint constitutes “the filing of a proceeding.” “Proceeding” means a civil, criminal, administrative or investigatory action and a "filing" can only be attributed to the filing of the subsequent complaint containing a claim.

Area(s) of Law:
  • Corporations

Market Transport, Ltd. v. Employment Dept.

ORS 657.047 provides an exemption from the definition of "employment" for services performed by persons who (1) lease "their equipment" to a for-hire carrier; (2) perform transportation services for the for-hire carrier; and (3) personally operates, furnishes and maintains the equipment. The driver is an employee of the person furnishing and maintaining the vehicle and not an employee of the for-hire carrier.

Area(s) of Law:
  • Employment Law

Wells Fargo Bank, NA v. Haas

Summary judgment that forecloses a defendant’s interest in a manufactured dwelling is not appropriate if it is not clear if the manufactured home is a real property interest secured by the trust deed.

Area(s) of Law:
  • Bankruptcy Law

Brush and Brush

An amendment to ORS 107.105(1)(f) removed separately held property acquired by inheritance from presumption of equal contributions. A domestic relations case is "pending" until a written decision is entered, even if a judge has ruled from the bench.

Area(s) of Law:
  • Family Law

L. E. A. v. Taylor

ORS 30.866(2) requires service of the petition and temporary stalking protection order on respondent. A judgment is void for lack of personal jurisdiction where a plaintiff fails to serve the defendant.

Area(s) of Law:
  • Civil Procedure

State v. Keller

Under Article 1, section 9 of the Oregon Constitution, an out of state officer lacks the authority to stop a suspect in Oregon, as the out of state officer acts beyond his jurisdiction to exercise his lawful authority.

Area(s) of Law:
  • Constitutional Law

ACN Opportunity, LLC v. Employment Dept.

Under ORS 657.087(2) petitioners must establish to what extent the IBOs received compensation for in-person solicitations “in the home.” Under ORS 670.600(3) petitioners must establish that its IBOs maintained a business location that was separate from petitioner’s or was in a portion of the IBOs residence that was used primarily for business.

Area(s) of Law:
  • Administrative Law

State v. Rose

Under Article I, section 12 of the Oregon Constitution the police must cease custodial interrogation when a criminal suspect unequivocally invokes his right against self-incrimination.

Area(s) of Law:
  • Criminal Law

State v. Williams

Under ORS 181.812(1)(d) a person is required to report as a sex offender when they move to a new residence and must report both the move and the new address. The reporting requirement is triggered when a defendant has both left the former residence and acquired a new residence.

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. A. S.

For a permanency plan to be changed, ORS 419B.476(2)(a) requires the juvenile court to determine that the Department of Human Services (DHS) made reasonable efforts to make it possible for the ward to safely return home.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. A. E. R.

Under ORS 419B.476(2)(a), the court will not change the plan from reunification to adoption unless DHS proves that it made reasonable efforts to make it possible for the child to return home safely and the parent has not made a sufficient progress for that to occur. Under ORS 419B.875(2), a parent has a statutory right to participate in the hearing including the right to testify, consult with counsel about strategic evidentiary decisions, and to complete the presentation of the evidence.

Area(s) of Law:
  • Family Law

State v. Habibullah

Under ORS 136.440 the state must present evidence that connects a defendant with the commission of the offense and the evidence may not be testimony of an accomplice.

Area(s) of Law:
  • Criminal Law

State v. Hickey

Under ORS 163.205(1)(a) a person withholds necessary and adequate physical care when they withhold care that is absolutely required to meet a dependent’s basic safety and survival needs.

Area(s) of Law:
  • Criminal Law

Rubi v. Nooth

Under Article 1, section 11 of the Oregon Constitution a petitioner is not prejudiced by inadequate counsel if the sentencing court would have sentenced a petitioner the same regardless of the inadequate counsel.

Area(s) of Law:
  • Sentencing

State v. Sexton

Under Article 1, section 9, of the Oregon Constitution a passenger is seized only if there is an imposition through physical force or some showing of authority that restrains the individual's liberty. The Fourth Amendment of the United States Constitution requires a stop to be based a minimal level of objective justification for making the stop.

Area(s) of Law:
  • Criminal Procedure

State v. Bernhardt

Under ORS 163.425(1)(a) for an adult to have deviate sexual intercourse with a minor who is legally incapable of giving consent, the State need not prove the adult exerted control over the minor victim or that the minor victim did not actually consent.

Area(s) of Law:
  • Criminal Law

Rogue Advocates v. Board of Commissioners of Jackson County

A party may not ask a circuit court to disrupt the land use decisional process by asking the court to make a land use decision under the pretext of a circuit court enforcement proceeding.

Area(s) of Law:
  • Land Use

State v. Eastep

ORS 164.135, unauthorized use of a vehicle, does not require that the vehicle over which defendant exercised control was operable.

Area(s) of Law:
  • Criminal Law

State v. Mickow

Under ORS 151.505 and ORS 161.665, a trial court may not require a defendant to pay court-appointed attorney fees unless the court makes factual findings about whether the defendant “is or may be able to pay” the fees.

Area(s) of Law:
  • Attorney Fees

TriMet v. Aizawa

Under ORCP 6, an award of reasonable value of legal services related to the prosecution or defense of an action, known as “fees on fees,” is permissible.

Area(s) of Law:
  • Attorney Fees

State v. Harryman

The questioning of a suspect by the police does not inherently create a compelling circumstance that requires Miranda warnings. The trial court is not required to allow modified jury instructions when the substance of the modified instruction is not necessary or the substance is covered fully by other instructions.

Area(s) of Law:
  • Criminal Law