( 109 summaries )

Oregon Supreme Court Updates

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State v. Ofodrinwa

Criminal Law: Pursuant to ORS 163.425, a person commits the crime of second-degree sexual abuse when "that person subjects another person to sexual intercourse and the victim does not consent thereto." The phrase "does not consent" refers to the victim's lack of capacity to consent due to age, as well as to the lack of actual consent.

(Filing Date: 04-25-2013)

Matar and Harake

: Under ORS 107.104 and ORS 107.135(15), a non-modification agreement in regards to child support, made in a stipulated divorce judgement, does not violate the law or contravene public policy.

(Filing Date: 04-18-2013)

James v. Clackamas County

Contract Law: A contract right to payment from a specified fund ceases to exist when that right is contingent upon money contained in that fund and that money is exhausted.

(Filing Date: 04-11-2013)

Howell v. Boyle

Remedies: Under the "remedy clause," Article 1 Section 10 of the Oregon Constitution, the legislature can limit the amount a plaintiff can recover in tort. Only a limitation that leaves plaintiff "wholly without" a remedy, or one that is not "substantial" is prohibited by the clause.

(Filing Date: 03-14-2013)

CenturyTel, Inc. v. Dept. of Revenue

Tax Law: The Court will uphold an administrative rule defining a statutory term where the definition is consistent with the term as defined by the statute.

(Filing Date: 03-07-2013)

Cocchiara v. Lithia Motors, Inc.

Contract Law: An employee may be able to prove that he reasonably relied on an offer of employment for a job that is terminable at-will under the theories of promissory estopple and fraudulent misrepresentation.

(Filing Date: 03-07-2013)

Crystal Communications, Inc. v. Dept. of Revenue

Tax Law: The gain attributed to a public utilities' sale of assets in a liquidation may reasonably be determined by the Department of Revenue as apportionable "business income" consistent with the term's statutory definition found in ORS 314.610(1).

(Filing Date: 03-07-2013)

Doe v. Lake Oswego School District

Tort Law: For a tort claim to accrue, a plaintiff must have discovered "not only the conduct of the defendant, but also the tortious nature of that conduct." Whether the nature of the defendant's act is generally known is a question of fact. The circumstances to consider include: plaintiff's status as a minor, the relationship between the parties, and the nature of the harm suffered.

(Filing Date: 03-07-2013)

Lindell v. Kalugin

Civil Procedure: Under ORCP 44A, the burden to establish good cause supporting a limitation or condition imposed on discovery is on the party requesting the limitation or condition. In a mandamus proceeding, the Court is limited to reviewing the trial court's decision for clear error.

(Filing Date: 03-07-2013)

State v. Harrell/Wilson

Constitutional Law: When determining jury waiver provisions in Article I, section 11, of the Oregon Constitution, the jury waiver provision is a substantive right and granting the waiver request is precedent upon analyzing judicial economy, defendant's rights, and speed against a waiver request. The prosecution's position may play a role in the decision as long as it relates to one of the three aforementioned factors; it may not be the sole factor.

(Filing Date: 02-28-2013)

Strawn v. Farmer's Insurance Company of Oregon

Attorney Fees: When determining the amount of a reasonable attorney fee award in a case that involves both a statutory fee-shifting award and a common-fund award, a court may consider utilizing both the lodestar and overall percentage method.

(Filing Date: 02-22-2013)

In re Barnack

Professional Responsibility: Following the misconduct of a judge, the Commission of Judicial Fitness and Disability and the accused may submit stipulated facts and an appropriate sanction to the Supreme Court under ORS 1.420 to ORS 1.430, and the Court can approve such stipulation pursuant to ORS 1.430(2).

(Filing Date: 02-07-2013)

State v. Hemenway

Civil Procedure: When considering equitable factors to determine whether a vacatur is an appropriate remedy, the factor that a party caused the mootness by their own involuntary action, such as death during an appeal, should weigh in favor of vacatur.

(Filing Date: 02-04-2013)

Assn of Oregon Corrections Employees v. State

Labor Law: When an employer asserts an affirmative defense to a charge that it changed the status quo unilaterally, the Employment Labor Relations Board (ERB) may consider the contract terms to evaluate whether the union waived the right to bargain about such changes. This means the ERB is not required to first consider the terms of the contract under the status quo rubric before determining if a waiver exists.

(Filing Date: 01-17-2013)

Morgan v. Sisters School District #6

Civil Procedure: To properly have standing, three considerations must be met: (1) there must be "some injury or other impact upon a legally recognized interest beyond an abstract interest in the correct application or the validity of a law;" (2) the injury must be real or probable, not hypothetical or speculative; and (3) the court's decision must have a practical effect on the rights that the plaintiff is seeking to vindicate.

(Filing Date: 01-17-2013)

State v. Hemenway

Evidence: The Supreme Court disavowed the minimum factual nexus test in "State v. Hall" because of the test's uneven interpretation throughout the state and established a new test. Once the defendant established there was an illegal stop and challenged his consent to search, the state shall demonstrate: 1) the consent was voluntary and; 2) that the consent was not due to the illegal stop.

(Filing Date: 01-10-2013)

Bresee Homes, Inc. v. Farmers Ins. Exchange

Insurance Law: An insurer may owe a duty to defend its insured and summary judgment is inappropriate when the date of breach is insufficient to determine whether the completed operations hazard exception applies.

(Filing Date: 12-31-2012)

In re Clark

Professional Responsibility: Under BR 10.7, a prevailing party is entitled to costs and disbursements. Additionally, the purpose of BR 10.7 is to attempt to settle disputes before a hearing, and allowing a waiver of the timeliness requirement would undermine this purpose.

(Filing Date: 12-28-2012)

Synectic Ventures I, LLC v. EVI Corp.

Corporations: A managing member of a Limited Liability Company (LLC) may not enter into agreements in which there exists a personal conflict of interest unless the operating agreement explicitly allows him or her to enter into such agreements. If the managing member does enter into an agreement with a conflict of interest, there is a breach of the duty of loyalty and the LLC is not bound by the agreement as the managing member no longer had the authority to enter into it.

(Filing Date: 12-20-2012)

Weldon v. Board of Licensed Professional Counselors and Therapists

Administrative Law: The text of ORS 676.210 grants courts statutory power to enter injunctions. It does not deprive the court's ability to enter stays of an agency's order suspending a health care professional's occupational license and therefore does not impede on the courts inherent judicial powers.

(Filing Date: 12-20-2012)

Dept. of Human Services v. G. D. W.

Evidence: Under EOC 801(4)(b)(A), an individual's out-of-court statement cannot be used as a statement of a party opponent unless there is evidence that the individual declared an adverse position to a party in the hearing.

(Filing Date: 12-13-2012)

State ex rel Portland Habilitation Center, Inc. v. Portland State University

Remedies: Under ORS 34.110 a relator is not entitled to mandamus relief if a plain, speedy, and adequate remedy at law is available.

(Filing Date: 12-13-2012)

State v. Marsh & McLennon Companies

Civil Law: ORS 59.137, allowing a party to recover damages from fraud or misrepresentation in a sale or purchase of securities, requires a party to show some sort of reliance, but the party may rely on the "fraud-on-the-market" doctrine to do so.

(Filing Date: 12-13-2012)

Downer v. Dept. of Revenue

Tax Law: Tax assessments will be upheld where a tobacco distributor purchases tobacco for redistribution from a business on a tribal reservation in Washington.

(Filing Date: 12-06-2012)

State v. Bray

Appellate Procedure: Placing evidence on the record as a sealed exhibit for appellate review does not qualify as discovery.

(Filing Date: 11-30-2012)

Hope Presbyterian Church of Rogue River v. Presbyterian Church USA

Property Law: Under the neutral principles approach to church property, an church affiliate holds its property in an irrevocable trust for the national organization when the national organization's constitution and the affiliate's own documents declare their intent that the property is held in trust.

(Filing Date: 11-29-2012)

PSU Association of University Professors v. PSU

Employment Law: Pursuant to ORS 659A.030(1)(f), a public university may not discontinue employee grievance procedures when a public employee's contract mandates such procedures, even when the employee seeks statutory discrimination relief.

(Filing Date: 11-29-2012)

State v. Lawson

Evidence: The Classen Test of eyewitness testimony has been revised. The state must show that the eyewitness has personal knowledge of all the facts to which he will testify, and prove that the identification was rationally based on the witness' first hand perceptions and will be helpful to the trier of fact.

(Filing Date: 11-29-2012)

State v. Sanchez-Alfonso

Evidence: Whether evidence is sufficiently reliable to admit under OEC 702 requires an expert to explain what his or her expertise is, how the information is gathered, how the information is used in reaching his or her conclusion, and what scientific basis supports each step of that process.

(Filing Date: 11-29-2012)

Gunderson, LLC, v. City of Portland, et al.,

Land Use: Requiring industrial landowners in the "North Reach" area of the Willamette River to submit development plans for approval by a River Review process to ensure the goals of the 1973 Willamette River Greenway plan is within the power of the City of Portland.

(Filing Date: 11-08-2012)

State v. Leistiko

Appellate Procedure: On a petition for reconsideration, the Supreme Court may decline to address an issue if the issue was not raised in a lower court.

(Filing Date: 11-08-2012)

State v. Lewis

Criminal Law: Criminal negligence does not require that a defendant’s conduct be seriously blameworthy, rather, it requires that a defendant fail to be aware of a substantial and unjustifiable risk which constitutes a gross deviation from a reasonable standard of care under the circumstances.

(Filing Date: 11-08-2012)

State v. Sarich

Evidence: Under OEC 601, an inquiry regarding whether an individual is competent enough to testify involves gathering whether that person has the ability to perceive, recollect, and communicate in a worthwhile manner.

(Filing Date: 11-01-2012)

Assoc. Unit Owners of Timbercrest Condo v. Warren

Appellate Procedure: A motion for reconsideration of a summary judgement does not constitute a motion for a new trial within the meaning of ORS 19.255(2) and ORCP 64.

(Filing Date: 10-18-2012)

State v. Pitt

Evidence: Prior bad act evidence is not admissible to bolster a victim's credibility in identifying her abuser if there is ongoing contact between the victim and defendant. Prior bad act evidence is also not admissible to prove intent until facts establishing the charged conduct have been introduced.

(Filing Date: 10-18-2012)

In re Walton

Professional Responsibility: The Oregon Supreme Court independently determines sanctions for reciprocal discipline proceedings when the lawyer's conduct also violates Oregon's professional rules.

(Filing Date: 10-11-2012)

State v. Burgess

Criminal Procedure: The State is precluded from raising a legal theory on appeal that was not argued at the trial level because the defendant may have developed the record differently had the issue been addressed at trial.

(Filing Date: 10-11-2012)

State v. Rogers

Criminal Procedure: An empaneling of an anonymous jury requires a finding that there are strong and particular grounds for jury identity protection. When the State relies on a defendant's history as a basis for its decision to impose capital punishment, it must demonstrate a close link between that history and defendant's future dangerousness.

(Filing Date: 10-11-2012)

Halperin v. Pitts

Attorney Fees: Pursuant to ORS 20.080(2), defendants who prevail in small tort actions do not need to have delivered a prelitigation demand letter in order to obtain attorney fees.

(Filing Date: 10-04-2012)

Hazell v. Brown

Constitutional Law: Campaign finance reform laws, contained within Measure 47, limiting campaign contributions, are inoperable until such time that the Oregon Constitution is amended to grant these provisions a constitutional basis.

(Filing Date: 10-04-2012)

Burke v. DLCD

Land Use: Under ORS 195.328(18), the word “owner” as it is used in section 6 of Measure 49, includes all individuals who are either an owner in fee title, purchaser under land sale contract, or a trustee in the property.

(Filing Date: 09-27-2012)

Ann Sacks Tile and Stone, Inc. v. Dept. of Rev.

Civil Procedure: Supreme Court lacked jurisdiction over the case because taxpayers filed a notice of appeal using electronic service, which was contrary to ORCP 9 G.

(Filing Date: 09-20-2012)

M.K.F. v. Miramontes

Civil Procedure: Under ORS 30.866, if a plaintiff seeks both an injunctive order and a judgment for compensatory money damages, the parties are entitled to a jury trial on the claim for money damages.

(Filing Date: 09-20-2012)

State v. Blok

Appellate Procedure: The Court may exercise their discretion to dismiss an alternative writ if it is not presented in the relator's brief or petition.

(Filing Date: 09-20-2012)

Morgan v. Amex Insurance Company

Attorney Fees: ORS 742.001 does not limit the scope of ORS 742.061 to only those insurance policies delivered or issued for delivery in Oregon.

(Filing Date: 09-14-2012)

State v. Mullins

Appellate Procedure: The 30 day statute of limitations for filing an appeal of a judgment under ORS 138.071(4) begins to run at the time an attorney of record for the defendant has notice of a judgment.

(Filing Date: 08-23-2012)

State v. Haynes

Appellate Procedure: In order to preserve an issue for appeal with a single word or phrase, it must be used in a context that allows the court and the other parties to understand that it refers to a particular legal or factual argument and the essential contours around the full argument.

(Filing Date: 08-16-2012)

In re Avera

Professional Responsibility: Under the Oregon Code of Judicial Conduct 2-101, a judge's performance of judicial duties shall take precedence over all other activities and the judge shall not neglect the business of the court.

(Filing Date: 08-02-2012)

State v. Klein

Evidence: Under ORS 133.721 an aggrieved person who has standing to move to suppress evidence obtained pursuant to a body-wire is a party to an intercepted communication or a person against whom the interception was directed.

(Filing Date: 08-02-2012)

Mead v. Legacy Health System

Tort Law: When a physician has not personally seen a patient, whether an implied physician-patient relationship is created depends on whether the physician knows or reasonably should know that he or she is diagnosing a patient’s condition or is treating the patient.

(Filing Date: 07-26-2012)

In re Obert

Professional Responsibility: A suspension of 6 months from the practice of law is reasonable for the violation of 7 Rules of Professional Conduct stemming from the misappropriation of client funds and failure to provide competent representation.

(Filing Date: 07-19-2012)

State v. Leistiko

Evidence: Prior acts are admissible if they are "sufficiently relevant" to show the defendant acted with intent in the charged offense. However, the admissibility of the prior act is dependent on the circumstances. A single act will likely not qualify, but a complex act may qualify.

(Filing Date: 07-19-2012)

State v. Powell

Evidence: Under ORS 136.425(1), incriminatory statements that are made under promises of leniency are inadmissible as evidence.

(Filing Date: 07-19-2012)

Willemsen v. Invacare Corporation

Civil Procedure: In light of the U.S. Supreme Court Opinion, J. McIntyre Machinery, Ltd. v. Nicastro, personal jurisdiction is established when a company has a "regular course of sales," or a "regular...flow" of sales within the forum state.

(Filing Date: 07-19-2012)

Clackamas County Assessor v. Village at Main Street Phase II, LLC

Attorney Fees: The Tax Court may only consider the factors specified in ORS 20.075(1) when exercising its discretion to award attorney fees. Additionally, when considering whether or not an enforcing agency has a reasonably interpretation of a statute, a tax court should consider whether and how it has been construed by the Supreme Court.

(Filing Date: 06-28-2012)

SAIF v. DeLeon

Attorney Fees: Under ORS 656.382(2), when a claimant obtains an award of attorney fees and the insurer initiates a review, it is the final decision and tribunal that determines whether the award should be disallowed or reduced.

(Filing Date: 06-28-2012)

State v. Bowen

Appellate Procedure: Entry of a corrected judgment on remand does not trigger the alternative sentencing procedures provided in ORS 138.012(2)(a).

(Filing Date: 06-28-2012)

State v. McBride

Criminal Law: Under ORS 163.575(1)(b), the state must prove that the defendant engaged in affirmative conduct which authorized or made it possible for minors to be present during the course of illegal drug activity.

(Filing Date: 06-28-2012)

Weber Coastal Bells Limited Partners v. Metro

Land Use: Language in a land use final order on remand which contradicts the LUBA holding is surplusage and without legal effect. A party automatically has standing before the Supreme Court by virtue of participation in LUBA hearings.

(Filing Date: 06-28-2012)

Doe v. Corp. of Presiding Bishop

Constitutional Law: Article I, section 10 of the Oregon Constitution places it within the discretion of the trial court to vacate its own protective orders as well as to may release redacted copies of exhibits to the public.

(Filing Date: 06-14-2012)

In re Goff

Attorney Fees: A decision of the Oregon State Bar Disciplinary Panel will be upheld if the record clearly and convincingly demonstrates that a violation occurred.

(Filing Date: 06-14-2012)

State v. Bray

Criminal Procedure: Under ORS 147.537(8), an interlocutory appeal from a contested court order must be brought within 7 days from the issuance of the order.

(Filing Date: 06-07-2012)

State v. Moss

Appellate Procedure: For purposes of ORAP 8.05(3), the word "surrender" means a voluntary act, not an act in response to force or compulsion.

(Filing Date: 06-07-2012)

State v. McDowell

Criminal Procedure: For purposes of ORS 136.290, which limits the time a defendant may be held in custody pending his trial to 60 days after the arrest, if the accusatory instrument is dismissed and the defendant is re-arrested and re-indicted on the same charges shortly thereafter, the time in custody is measured from the date of the original arrest.

(Filing Date: 05-24-2012)

State v. Eumana-Moranchel

Evidence: When there is a delay between a DUII arrest and a breath or blood test, the State may offer expert testimony explaining retrograde extrapolation to establish a defendant's blood alcohol content (BAC) was over the limit at the time defendant was driving.

(Filing Date: 05-10-2012)

Eads v. Borman

Tort Law: An entity may be held vicariously liable for a physician’s negligence on the theory of apparent agency when: (1) the entity holds out the physician as an agent delivering medical services on behalf of the entity subject to oversight and control of the entity; and (2) the injured plaintiff reasonably relied on these representations, which led him to believe the entity was the provider of care.

(Filing Date: 04-26-2012)

State v. Jarnagin

Criminal Procedure: Statements from an interrogation administered without a Miranda warning that provide the basis for a voluntary reenactment sufficiently taint the reenactment such that it is unconstitutional. Additionally, notifying the defendant of his Miranda rights after initial interrogations will not be held as an invalid reading of rights if there was a substantial break in time and change of circumstances from previous interrogations.

(Filing Date: 04-26-2012)

State v. Miskell/Sinibaldi

Criminal Procedure: Under ORS 133.726(7)(b), an exigency exception to the ex parte order requirement for surveillance must be demonstrated by evidence that swift action is necessary to prevent harm to persons or property, the escape of a suspect, destruction of evidence or the like.

(Filing Date: 04-26-2012)

State v. Langley

Criminal Procedure: The Court cannot infer an intentional and knowing waiver of the right to counsel and compel a defendant to proceed pro se when the defendant never expressly waived the right, but rather remained silent when given the choice of affirmatively accepting his current counsel or proceeding pro se.

(Filing Date: 03-29-2012)

Green v. Kroger

Ballot Titles: Under ORS 250.085, the Supreme Court may review arguments concerning language that was removed from the title after the comment period had ended. Further, the language "corporate income" is misleading when it is meant to refer solely to taxable income.

(Filing Date: 03-15-2012)

State v. Cabanilla

Criminal Law: Under ORS 813.100, the statute is satisfied if the officer informs the driver of the rights and consequences of refusing a breath or blood test in English, even if he is primarily a Spanish speaker.

(Filing Date: 03-01-2012)

Greenwood Products v. Greenwood Forest Products

Appellate Procedure: The Court held the Court of Appeals’ reversal incorrectly relied on the “no obligation” provision of the asset purchase agreement in question. That particular issue was not raised in the trial court and therefore was not preserved for appeal.

(Filing Date: 02-24-2012)

Paul v. Providence Health System-OR

Tort Law: Plaintiffs cannot recover for speculative, future financial harm or emotional distress related to a risk of loss when a current injury has not been claimed.

(Filing Date: 02-24-2012)

Dept. of Human Services v. J.R.F.

Family Law: The Supreme Court has an obligation to consider relevant context when interpreting a statute, regardless of whether it was cited by any party. The relevant context includes ORS 419B.090(4) which provides that the due process rights of parents are always implicated in the construction and application of the provisions of ORS chapter 419.

(Filing Date: 02-16-2012)

Girod v. Kroger

Ballot Titles: As written, ballot titles must be accurate, state the scope of their effect, and comply with ORS 250.035(2).

(Filing Date: 02-16-2012)

Weber Coastal Bells v. Metro

Land Use: Metro did not exceed its statutory authority when it approved a land use order on the basis of political necessity because the act that granted it authority for such approval did not state otherwise.

(Filing Date: 02-16-2012)

Carson v. Kroger

Ballot Titles: A "no" vote result statement under ORS 250.035(2) must be a simple and understandable statement under 25 words that describes the result of a "no" vote, or a rejection of the measure.

(Filing Date: 01-12-2012)

In re Marandas

Civil Law: An attorney may refuse to disclose the details of a settlement agreement due to confidentiality concerns if there is a basis in law and fact for such a claim and the actions taken do not prejudice the administration of justice.

(Filing Date: 01-12-2012)

A.G. v. Guitron

Civil Procedure: Civil Procedure: ORCP 44C requires plaintiffs to produce all written reports of any examinations relating to the injuries of the claim upon request by defendant, regardless of whether their treating physician, or an expert retained solely for litigation performs the examination.

(Filing Date: 12-30-2011)

Petock v. Asante

Workers Compensation: For the purposes of determining reinstatement and reemployment rights of an employee recovering from a workers' compensation injury, the proper questions to ask are 1) did the claimant suffer a compensable injury, and 2) did the injury occur within the three-year statute of limitations period.

(Filing Date: 12-30-2011)

Robinson v. Public Employees Retirement Board

Employment Law: Concerning the PERS statutory contract - when a court invalidates a statutory mechanism, the Legislative Assembly remains free to provide a remedy for those who have lost payments they would have received pursuant to the mechanism.

(Filing Date: 12-30-2011)

State v. Rainoldi

Criminal Law: The crime "felon in possession of a firearm" does not require a culpable mental state; if it did, it would encourage ignorance of whether a person is a felon or not, and frustrate the purpose of the statute, which is to keep firearms away from criminals.

(Filing Date: 12-30-2011)

White v. Public Employees Retirement Board

Trusts and Estates: When a trustee has a fiduciary duty, his or her actions will be reviewed based on the reasonableness of his or her decision-making, rather than purely weighing the costs versus the benefits.

(Filing Date: 12-30-2011)

Girod v. Kroger

Ballot Titles: A ballot title’s caption must be specific enough for voters to identify the major effects of the proposed measure.

(Filing Date: 12-08-2011)

Williams v. RJ Reynolds Tobacco Company

Tort Law: The State of Oregon need not be a party to a claim, or hold an interest in a claim, because its right to a 60% share of punitive damages results from the operation of law, and not from any claim it is involved with. Thus, because the state's right to 60% of punitive damages does not constitute a claim, it is not a "released claim" subject to the Master Settlement Agreement.

(Filing Date: 12-02-2011)

Rasmussen v. Kroger

Ballot Titles: Ballot initiatives that substantively change existing law must directly address in the ballot title the substantive change the initiative proposes to address. Additionally, the measure must address the substantive effect of a "yes" or "no" vote.

(Filing Date: 11-23-2011)

State v. Haugen

Appellate Procedure: The Court is permitted to issue a writ of mandamus when a judge of a lower court has not followed the statutorily required procedures. Once the judge sufficiently complies with the writ, the Court may dismiss the writ.

(Filing Date: 11-21-2011)

Kaseberg v. Davis Wright Tremaine, LLP

Tort Law: A jury could find that when a lawyer informs their client that a breach of contract occurred, an objectively reasonable person would not suspect their attorney committed legal malpractice, thus causing their client's damages.

(Filing Date: 11-10-2011)

State v. Glushko/Little

Criminal Procedure: When a defendant’s failure to appear for a hearing results in the delay of prosecution without the defendant’s consent, the delay may be considered reasonable. The state is not obliged to dismiss the charges against the defendant, despite failing to use every available means to locate them.

(Filing Date: 11-10-2011)

State v. Swanson

Criminal Procedure: A jury's authority to find a defendant guilty of a crime, the commission of which is necessarily included in that with which the defendant is charged, extends only to an offense for which a prison sentence is authorized.

(Filing Date: 11-10-2011)

ZRZ Realty v. Beneficial Fire and Casualty Ins.

Attorney Fees: The 2005 amendment to ORS 742.001 that created an exemption for surplus lines insurance policies to the rule that in certain instances plaintiffs may collect attorney fees from an insurance company, does not apply to claims filed before the effective date of the amendment.

(Filing Date: 11-10-2011)

Friends of Yamhill County v. Board of Commissioners

Land Use: To determine the expense ratio in a Measure 49 vested rights pathway exemption, the court considers the following questions: What is the expected cost of the project? What is the expense ratio? Is the expense ratio substantial? As to the last question, ‘substantial’ is relative to the cost of the project, where a small ratio may equal millions of dollars.

(Filing Date: 10-20-2011)

Arken v. City of Portland

Employment Law: When the Supreme Court strikes down the two provisions in a law specifying how the Public Employee Retirement Board will collect excess benefits paid in 1999, PERB may, instead, exercise its authority under ORS 238.715 and issue an order to recover the funds.

(Filing Date: 10-06-2011)

Balboa Apartments v. Patrick

Civil Procedure: Provided that requirements under ORCP 23 A and ORS 105.135 are both met, plaintiff's failure to serve a summons and amended complaint within one day of paying filing fees is not grounds for dismissal.

(Filing Date: 10-06-2011)

Goodson v. PERS

Employment Law: PERB does not have the statutory authority to promise “Window Retirees” benefits based on a 20% earning credit for 1999, because there was neither a contractual obligation, nor a law entitling them to interest in such a credit such as to claim an impairment of contract or deprivation of due process when PERB acts to recover excess benefits.

(Filing Date: 10-06-2011)

Rasmussen v. Kroger

Ballot Titles: The Supreme Court may review a certified ballot title description in order to ensure that it complies with the guidelines of ORS 250.035, concerning definiteness and specificity.

(Filing Date: 10-06-2011)

State v. Kurokawa-Lasciak

Criminal Procedure: The automobile exception to the warrant requirement defined in State v. Brown does not extend to parked, immobile, and unoccupied vehicles, absent exigent circumstances.

(Filing Date: 10-06-2011)

Lasley v. Combined Transport, Inc.

Tort Law: Under comparative negligence, if a defendant wants to establish that a co-defendant is responsible for more of the fault based on facts not pleaded by the plaintiff, the defendant must plead the new facts as an affirmative defense in their answer.

(Filing Date: 09-22-2011)

State v. Cloutier

Criminal Law: Under ORS 138.050, a defendant who entered a no contest plea is unable to appeal the judgment, unless it is “unconstitutionally cruel and unusual” or “exceeds the maximum allowable by law,” with the maximum referring to the maximum amount allowable to sentence.

(Filing Date: 09-22-2011)

State v. Davis

Evidence: A defendant may introduce evidence of prior injury to demonstrate the possibility the harm did not occur at the time in question. However, such evidence may only be admitted if valid under OEC 701.

(Filing Date: 09-22-2011)

Farmers Ins. Co. v. Mowry

Insurance Law: The court affirmed Collins v. Farmers Ins. Co. as stare decisis that that exclusion clauses within a motor vehicle insurance policy that eliminated coverage of one insured against another insured of the same policy are unenforceable to the extent that they failed to provide the minimum coverage required by law.

(Filing Date: 09-09-2011)

State v. Ryan

Constitutional Law: In order to challenge Oregon’s stalking protective order statute on free speech grounds, a defendant must first successfully challenge the underlying protective order.

(Filing Date: 09-09-2011)

Drollinger v. Mallon

Criminal Law: Exoneration is a prerequisite for bringing a legal malpractice claim against a defendant’s trial lawyer, but not for bringing a legal malpractice claim against post-conviction counsel.

(Filing Date: 09-01-2011)

State ex rel Engweiler v. Felton

Parole and Post-Prison Supervision: The parole board exceeded its statutory authority by creating intermediate hearings for those convicted of juvenile aggravated murder and the parole board has a legal duty to grant parole release hearings to the defendants.

(Filing Date: 09-01-2011)

State v. Baker

Criminal Procedure: To establish whether a police officer satisfied the reasonableness requirement of the four-part “emergency aid exception” test to the warrantless search exception of the Oregon Constitution, the court should examine whether the police officer had an objectively reasonable belief, based on articulable facts that a warrantless entry was needed to aid others, prevent harm from occurring to others, or cease harm to others.

(Filing Date: 09-01-2011)

State v. Lopez-Minjarez

Criminal Law: A trial court errs when it instructs a jury that a defendant may be found criminally responsible for all the natural and probable consequences that arise from aiding and abetting a crime if the defendant has conceded guilt of specific charges which support ignorance of other charges.

(Filing Date: 08-25-2011)

State v. Davis

Criminal Law: The right against self-incrimination prohibits police questioning only when a defendant is in custody or otherwise in compelling circumstances, and the right to counsel bars police questions outside the presence of counsel only once criminal proceedings have begun.

(Filing Date: 06-30-2011)

State v. Speedis

Criminal Law: A trial court does not overstep its sentencing authority when it employs nonenumerated factors to enhance a defendant’s sentence because 1) the state legislature authorized courts to impose a greater prison sentence if aggravating factors existed, and 2) trial courts are guided by two criteria: the seriousness of the offense and the character status of the offender, which confine impermissible vagueness issues.

(Filing Date: 06-30-2011)

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(Filing Date: )