Willamette Law Online

Oregon Supreme Court

2014

( 6 summaries )

January

Blachana, LLC v. Bureau of Labor and Industries

Labor Law: Under ORS 652.414(3) and ORS 652.301(1), the correct test to determine a “successor employee” for the purpose of Wage Security Fund reimbursement is whether it conducts essentially the same business as conducted by its predecessor, using a nonexclusive list of factors set out by the Bureau of Labor and Industries to determine whether a company conducts “essentially the same business.”

(Filing Date: 01-16-2014)

In re McCarthy

Professional Responsibility: A 90-day suspension from the practice of law is an appropriate sanction for an attorney who has been found to have knowingly violated RPC 1.1, RPC 1.4(a), RPC 1.4(b), RPC 1.15-1(c).

(Filing Date: 01-16-2014)

Moro v. State of Oregon

Constitutional Law: Based on the rule of necessity, a judge may participate in decision making pertaining to the Public Employee Retirement System (PERS) despite having a substantial economic interest therein.

(Filing Date: 01-16-2014)

McCann/Harmon v. Rosenblum

Ballot Titles: Under ORS 250.035, a ballot title must include a caption, results statements, and summery which adequately describe the effects of voting one way or another, and reasonably identify the subject matter. Where more specific language is available, it should be used to describe the ballot title in a simple and understandable way that adequately describes the effects a ballot title would have on current law.

(Filing Date: 01-30-2014)

Rice v. Rabb

Tort Law: Claims for conversion and replevin "accrue" under ORS 12.080(4) when plaintiff knows or reasonably should know the elements of such claims.

(Filing Date: 01-30-2014)

State v. Zolotoff

Criminal Procedure: ORS 136.460(2) prescribes the order of jury deliberations but does not preclude a trial court from informing jurors on the elements of relevant lesser-included offenses in advance of their deliberations on the greater charged offense, in addition, ORS 136.460(2) does not preclude the jury from contemplating the law as it applies to lesser-included offenses when deliberating about the charged offense.

(Filing Date: 01-30-2014)

( 5 summaries )

February

Chase and Chase

Family Law: After an initial judgment is entered requiring payment of child support in future recurring installments, interest on unpaid installments is postjudgment, not prejudgment interest, and is governed by paragraph (2)(b), not paragraph (2)(c), of ORS 82.010.

(Filing Date: 02-13-2014)

McCann/Harmon v. Rosenblum

Ballot Titles: Under ORS 250.035, a ballot title must include a caption, results statements, and summary which adequately describe the effects of voting one way or another, and reasonably identify the subject matter. Where more specific language is available, it should be used to describe the ballot title in a simple and understandable way that adequately describes the effects a ballot title would have on current law.

(Filing Date: 02-13-2014)

Milne v. Rosenblum

Ballot Titles: A measure's subject is reasonably identified if it states or describes the subject accurately and in terms that will not confuse or mislead potential petition signers and voters.

(Filing Date: 02-13-2014)

State v. Supanchick

Evidence: The principle of forfeiture by wrongdoing ensures that a defendant cannot manipulate the availability of witnesses. A defendant gives up his right to confront evidence from a witness when defendant has made that witness unavailable by wrongdoing.

(Filing Date: 02-13-2014)

State v. Moore

Appellate Procedure: When the Court of Appeals does not consider all alternative bases for affirmance, the Supreme Court can remand the case back to the Court of Appeals for reconsideration.

(Filing Date: 02-27-2014)

( 4 summaries )

March

Herald and Steadman

Family Law: A court may consider the existence or absence, but not the value, of anticipated Social Security benefits as factors relevant to a just and proper division of property pursuant to ORS 107.105(f).

(Filing Date: 03-20-2014)

Montez v. Czerniak

Post-Conviction Relief: In post-conviction proceedings, petitioner bears the burden of proving inadequate assistance of counsel. Counsel’s trial strategy must be unreasonable, without appropriate consideration for risks and benefits, for petitioner to prevail.

(Filing Date: 03-20-2014)

Peace River Seed Co-Op v. Proseeds Marketing

Contract Law: An aggrieved seller who has resold goods can recover the difference between contract price and market price under ORS 72.7080(1), even when market price damages would exceed resale damages under ORS 72.7060.

(Filing Date: 03-20-2014)

State v. Lopes

Remedies: Trial courts have the authority to order hospitals to involuntarily medicate defendants for the purpose of restoring trial competency so long as the order complies with due process.

(Filing Date: 03-20-2014)

( 8 summaries )

April

Westfall v. State

Sovereign Immunity: Under ORS 30.265(6)(c), government employees responsible for applying policies enacted by high-level officials are protected by discretionary immunity when following the explicit orders of their superiors.

(Filing Date: 04-10-2014)

Purdy v. Deere and Company

Appellate Procedure: ORS 19.415(2) does not preclude instructional or evidentiary errors from the gambit of potential claims for reversal.

(Filing Date: 04-17-2014)

State v. Serrano

Criminal Law: Defendant's failure to preserve an argument regarding the sufficiency of evidence will lead to an affirmation of conviction. Also, where defendant does not object to testimony in a penalty-phase hearing and that testimony would not deny defendant a fair penalty-phase hearing, the trial court is not obligated to strike that testimony.

(Filing Date: 04-17-2014)

Department of Human Services v. S.M.

Juvenile Law: Under ORS 419B.372 and ORS 419B.376, the Department of Human Services has the legislative authority to immunize children while acting as the children’s legal custodian.

(Filing Date: 04-24-2014)

Kohring v. Ballard

Civil Procedure: Under ORS 14.080(2), wherever a corporation or partnership conducts “regular, sustained business activity” is where its normal and ordinary business activities are sustained, which requires evaluation of the quantitative nature of the corporation or partnership’s activity and the frequency of that activity.

(Filing Date: 04-24-2014)

McCann v. Rosenblum

Ballot Titles: Inaccurate phrasing in Initiative Petition 47, which seeks to change current system of state-licensed liquor stores, is subject to modification to enhance precision and to reduce negative perception.

(Filing Date: 04-24-2014)

PIH Beaverton, LLC v. Super One, Inc.

Civil Law: Posting and filing a completion notice pursuant to ORS 87.045 does not necessarily establish that the owner has accepted construction of the improvement as complete for occupation as required by ORS 12.135, but will be considered along with evidence that must demonstrate written consent or assent to construction as sufficiently complete for its intended use or occupancy; ORS 12.135 will only be satisfied by establishing the date on which the construction was fully complete, not the date on which it was sufficiently complete for its intended use or occupancy.

(Filing Date: 04-24-2014)

Sunset Presbyterian Church v. Brockamp & Jaeger, Inc.

Contract Law: In a construction contract specifying the issuance of a Certificate of Substantial Completion as a deadline for the accrual of claims, summary judgment is not appropriate if the date of completion is contested; while evidence of being used for its intended purpose is evidence of completion, that does not eliminate the need for a Certificate of Substantial Completion.

(Filing Date: 04-24-2014)

( 13 summaries )

May

Bates v. Rosenblum

Ballot Titles: Under ORS 250.085, the Supreme Court may either refer an errant ballot title to the Attorney General for modification, or correct it, certifying the resulting ballot title to the Secretary of State.

(Filing Date: 05-08-2014)

Dixon v. Rosenblum

Ballot Titles: Under ORS 250.085, the Court reviews ballot petitions for accuracy. Ballot titles found to be inaccurate are referred to the Attorney General for modification.

(Filing Date: 05-08-2014)

Dunn v. City of Milwaukie

Property Law: To show a government taking of property under the Oregon Constitution, Art. 1, Sec. 18, a plaintiff must show that an inevitable result of the government’s actions was the invasion of the plaintiff's property.

(Filing Date: 05-08-2014)

Two Two v. Fujitec America, Inc.

Tort Law: An ORCP 47 E affidavit which states an expert will testify to causation is sufficient to raise a question of fact and avoid summary judgment. ORS 30.920, Oregon's strict liability statute, does not apply to apply to service transactions.

(Filing Date: 05-08-2014)

Noble v. Dept. of Fish and Wildlife

Wildlife Law: OAR 635-412-0035(1) clearly requires fish passage throughout the year, whether the flow within the stream falls within the the design streamflow range.

(Filing Date: 05-15-2014)

State v. Babson

Constitutional Law: A Legislative Administration Committee (LAC) guideline prohibiting overnight stay on the Capitol grounds does not violate rights to expression and assembly found in Article 1, Sections 8 and 26, or the Oregon Constitution.

(Filing Date: 05-15-2014)

Brumwell v. Premo

Professional Responsibility: An attorney’s client may obtain a protective order concerning communications not reasonably needed by the attorney to defend himself against breach of duty allegations.

(Filing Date: 05-30-2014)

Crimson Trace Corp. v. Davis Wright Tremaine LLP

Professional Responsibility: Attorney-client privilege, as defined in OEC 503, applies to communications between lawyers in a firm and in-house counsel. The appropriate remedy when a discovery order erroneously requires disclosure of privileged information is mandamus.

(Filing Date: 05-30-2014)

Hall v. State of Oregon

Land Use: Government regulation of the use of property or planning for the eventual taking of property for use that reduces the property's value generally does not result in a de facto taking; however, there are two generally recognized exceptions to that general rule: (1) when a regulation or planning action deprives the owner of all economically viable use of the property, or (2) a physical government occupation or invasion of property rights substantially has interfered with the owner's use and enjoyment of the property.

(Filing Date: 05-30-2014)

Longo v. Premo

Post-Conviction Relief: By codifying the common-law lawyer-client privilege, the legislature has given clients a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between clients and their lawyers. The remedy for release of such information is mandamus.

(Filing Date: 05-30-2014)

McCann v. Rosenblum

Ballot Titles: Use of the term "tax" when describing money collected by the government was appropriate in a ballot measure, but referring to a "wholesale sales tax" was not because it could be confused with a retail sales tax.

(Filing Date: 05-30-2014)

State v. A.J.C.

Criminal Procedure: The school safety exception applies where the school has "reasonable suspicion that there w[ere] imminent health or safety threats or risk to the students [of] the school"; an imminent safety threat needs to be supported by specific and articulable facts but is accompanied by additional considerations for this exception including the confined close-quarters of a school campus and the heightened standard of care to students and adults in the environment.

(Filing Date: 05-30-2014)

State v. Bowen

Post-Conviction Relief: Defendant should have sought reconsideration of the disposition of the Supreme Court rather than waiting for the order to be issued to the trial court and then assigning error to the trial court's compliance with those terms.

(Filing Date: 05-30-2014)

( 6 summaries )

June

In re Sione

Professional Responsibility: In determining whether reciprocal discipline is appropriate, the Court must determine whether the misconduct in the state the discipline was imposed constitutes misconduct under the Oregon Rules of Professional Conduct and, if so, what sanction is appropriate for such misconduct.

(Filing Date: 06-12-2014)

Montez v. Czernaik

Post-Conviction Relief: A petition for reconsideration is allowed to correct an error of misidentified witnesses in a previous opinion.

(Filing Date: 06-12-2014)

Ogle v. Nooth

Post-Conviction Relief: ORS 138.580 requires a petitioner to attach materials, including the petitioners own averments of fact, that address each element of each asserted ground of relief and that, if presumed true, would permit the post-conviction court to determine that the petitioner was entitled to post-conviction relief on that ground.

(Filing Date: 06-12-2014)

State v. Washington

Sentencing: Under ORS 138.012, all death sentences come before the Supreme Court on automatic and direct appeal. In this case, all of defendant's assignments of error were rejected.

(Filing Date: 06-19-2014)

In re Spencer

Professional Responsibility: A lawyer, acting as a real estate broker and lawyer for his client, violates RCP 1.8(a) if he does not advise his client to seek outside legal advice about the problems of dual representation, and does not obtain written consent.

(Filing Date: 06-26-2014)

State v. Everett

Criminal Law: Delivering information that would have caused a murder to occur is sufficient to support a solicitation charge.

(Filing Date: 06-26-2014)

( 2 summaries )

July

State v. Hickman

Criminal Procedure: A first identification of defendant occurring in the courtroom falls under the OEC 403 inquiry described in Lawson/James.

(Filing Date: 07-10-2014)

State v. McClure

Criminal Law: The text, context, and legislative history of the resisting arrest statute requires that ORS 133.005(1) be interpreted to encompass arrest for a probation violation.

(Filing Date: 07-10-2014)

( 10 summaries )

August

J.A.H. v. Heikkila

Appellate Procedure: ORCP 9B specifies how an appellant must serve a party when that party is represented; the appellant must serve the party's attorney.

(Filing Date: 08-07-2014)

State v. Fessenden/Dicke

Criminal Procedure: The seizure of a malnourished horse in plain view without a warrant was valid under both the exigent circumstances, and emergency aid exceptions to the warrant requirement of the Fourth Amendment of the United States Constitution, and Article I § 9 of the Oregon Constitution.

(Filing Date: 08-07-2014)

State v. Holdorf

Criminal Law: An officer who stops a defendant can rely on factual information provided to him by other officers to establish “reasonable suspicion.” An officer’s observation that defendant appeared to be under the influence of methamphetamine, based on the officer’s training and experience, is sufficient to establish “reasonable suspicion” that defendant had committed the crime of possession of methamphetamine.

(Filing Date: 08-07-2014)

State v. Nix

Criminal Law: "Victim" as used in ORS 161.067, Oregon's "anti-merger" statute, is determined by reference to the underlying substantive statute that is violated.

(Filing Date: 08-07-2014)

State v. Ziska/Garza

Criminal Law: A person commits the crime of unlawful use of a weapon if he uses that weapon to threaten the victim even without any intent to harm the victim.

(Filing Date: 08-07-2014)

Johnson v. Premo

Civil Procedure: Nothing in the Church opinion may be understood to state an exception to the requirement of ORS 9.320 that represented parties ordinarily must appear through counsel; Church says that if a post-conviction attorney fails to assert a ground for relief, the petitioner must bring that fact to the attention of the court to avoid the effect of ORS 138.550(3).

(Filing Date: 08-14-2014)

Sea River Properties, LLC v. Parks

Property Law: Accreted land attaches to the property on which it begins to accrete. Adverse possession requires actual use of land – payment of property taxes is a manifestation of actual use, but is not itself actual use.

(Filing Date: 08-14-2014)

State v. Lorenzo

Criminal Procedure: Evidence obtained with consent to search is valid despite prior unlawful police conduct when defendant’s consent is not the result of police exploitation of their unlawful conduct.

(Filing Date: 08-28-2014)

State v. Musser

Criminal Procedure: Evidence obtained from a voluntary consent search must be suppressed when the prior police conduct is unlawful.

(Filing Date: 08-28-2014)

State v. Unger

Criminal Procedure: A defendant's voluntary consent to search, following unlawful police conduct, may nevertheless require suppression of evidence obtained during the search if the police exploited their unlawful conduct to gain that consent. In exploitation analysis, Courts must consider the totality of the circumstances including the nature of the illegal conduct, as well as its purpose and flagrancy, without unduly emphasizing any single consideration.

(Filing Date: 08-28-2014)

( 2 summaries )

September

Jenkins v. Board of Parole and Post Prison Supervision

Parole and Post-Prison Supervision: The 1999 amendments to ORS 144.335(3) did not alter the requirement of providing a substantial reason, under the substantial evidence review standard of scrutiny the Board of Parole is subjected to, for postponing the release of prison inmates.

(Filing Date: 09-18-2014)

Village at Main St. Phase II, LLC v. Dept. of Revenue

Tax Law: Under ORS 305.287, the word “appeal” applies to any appeal to a property tax reviewing body, not solely the Magistrate Division. New issues of valuation may be raised on appeal.

(Filing Date: 09-18-2014)

( 11 summaries )

October

Comcast, Corp. v. Dept. of Revenue

Tax Law: Under ORS 308.515(1)(h), cable television and internet access are “data transmission services,” and property so used belongs to “communication” business subject to central assessment.

(Filing Date: 10-02-2014)

Cortez v. Nacco Material Handling Group, Inc.

Corporations: ORS 63.165 immunizes members and managers of an LLC from vicarious liability for the debts, obligations, and liabilities of that LLC. LLC members and managers, however, remain personally liable for acts and omissions to the extent those acts or omissions would be actionable against the member or manager if that person were acting in an individual capacity.

(Filing Date: 10-02-2014)

Doyle v. City of Medford

Tort Law: ORS 243.303(2) creates a duty that local governments make the health insurance available to current employees also available to retired employees. A declaratory judgement, rather than a private right of action, should enforce this duty.

(Filing Date: 10-02-2014)

Gearheart, et al. v. Public Utility Comm’n of Oregon, et al.

Administrative Law: The Public Utility Commission of Oregon had the authority on remand to reexamine previous rates, order a refund to post-2000 ratepayers, and allow PGE to recover interest on the facility investment.

(Filing Date: 10-02-2014)

Association of Oregon Corrections Employees v. DOC

Employment Law: The statutory obligations of the Public Employees Benefit Board are not compatible with the State’s bargaining obligations under the Public Employees Collective Bargaining Act.

(Filing Date: 10-22-2014)

City of Damascus v. Brown

Municipal Law: HB 4029 constitutes an unconstitutional delegation of power because it delegates the power to determine the city's boundary out of the hands of the legislature and city, and into the hands of “self-interested private landowners” without procedural safeguards.

(Filing Date: 10-22-2014)

Smith v. Franke

Post-Conviction Relief: In order to constitute inappropriate vouching for a minor, a witness’s testimony in regards to the minor’s ability to distinguish between truth and lie is insufficient.

(Filing Date: 10-22-2014)

State v. Wilson

Evidence: Though truth vouching testimony must be stricken sua sponte by the trial court, testimony regarding the manner in which a victim communicates information is admissible because it is most closely related to the victim’s demeanor and not related to whether the witness in fact believed the victim testimony.

(Filing Date: 10-22-2014)

Triangle Holdings, II, LLC v. Stewart Title Guaranty Company

Insurance Law: Under ORS 742.061(1), an insured has not obtained “recovery” against an insurer where the insured accepted payment by the insurer and summary judgment was granted. “Recovery” is obtained by an insured only when a money judgment is granted against the insurer.

(Filing Date: 10-22-2014)

Miller v. City of Portland

Municipal Law: Whether the duties of fire fighters' new job assignments were the "required duties" for the job classifications that the fire fighters' previously held is a question of material fact.

(Filing Date: 10-30-2014)

State v. McAnulty

Criminal Procedure: Statements improperly obtained and used during sentencing were in violation of Defendant’s rights, but were harmless where statements subsequently obtained and admitted were more serious. The jury would have found the improperly admitted statements duplicative or unhelpful.

(Filing Date: 10-30-2014)

( 2 summaries )

November

State v. Bailey

Criminal Procedure: The per se rule of State v. Dempster that “the discovery and execution of a valid arrest warrant necessarily attenuate the taint of preceding unlawful police conduct,” specifically with evidence found upon search incident to said arrest, is overturned in light of Brown v. Illinois' factor test. Officers still may lawfully arrest and then search a defendant.

(Filing Date: 11-06-2014)

Glasgow v. Dept. of Revenue

Tax Law: Under ORS 305.410(1), the Oregon Tax Court has exclusive jurisdiction over cases arising under Oregon tax laws; to argue the contrary is a frivolous claim, as is maintaining that wages are not “income.”

(Filing Date: 11-20-2014)