Willamette Law Online

( 259 summaries )

Oregon Supreme Court Updates

State v. Clemente-Perez

Criminal Law: Under ORS 160.250(1)(b), a person is within a vehicle if the person, or any part of the person’s body, is inside the vehicle while he possesses a concealed, readily accessible handgun. Under ORS 160.250(2)(b), a person’s residence encompasses only the building in which he lives, and does not extend to structures in the house’s curtilage.

(Filing Date: 09-17-2015)

AT&T Corp. v. Dept. of Revenue

Tax Law: Pursuant to ORS 314.665(4), Oregon's codification of the Uniform Division of Income for Tax Purposes Act (UDITPA), “income-producing activity” is determined by “individual exchange[s] between a buyer and a seller..., whether the transmissions are sold individually or are sold in bulk.” Once the income-producing activity is identified, the location of the income-producing activity needs to be ascertained to determine whether it is performed completely within Oregon or “the greater proportion of the income-producing activity is performed in [Oregon], based on costs of performance.”

(Filing Date: 09-11-2015)

City of Seattle v. Dept. of Rev.

Tax Law: An exclusive right of use, and control of, a definable part of a taxable power facility located in Oregon is sufficient to establish a possessory interest in the facility under Oregon tax law. Under Article IV, section 18 of the Oregon Constitution, a measure that possesses the essential features of levying a tax is subject to the requirements of the Origination Clause.

(Filing Date: 09-11-2015)

Greenwood Products v. Greenwood Forest Products

Civil Procedure: Under ORCP 64(B)(4), a trial court may authorize a new trial based on newly discovered evidence only if the proffered evidence is (1) newly discovered; (2) material for the moving party; and (3) unable to have been discovered and produced at trial given the exercise of reasonable diligence of the moving party. In this context, “reasonable diligence” includes the party’s capacity to request a continuance in civil proceedings while pertinent evidence is developed in a concurrent criminal case, and questioning a witness until that witness invokes a privilege to not testify.

(Filing Date: 09-11-2015)

State v. Ashkins

Constitutional Law: Under Article I, section 11, a defendant may ask for a jury concurrence instruction where an indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime; alternative to an instruction, the state may limit the jury’s consideration to a single occurrence. The rule may not apply where evidence is nonspecific and undifferentiated to one of multiple occurrences.

(Filing Date: 09-11-2015)

Bandon Pacific v. Environmental Quality Commission

Environmental Law: A department must consider all reasonably available information when reaching a conclusion as to the magnitude classification of violations.

(Filing Date: 08-26-2015)

Conicienne v. Asante

Civil Procedure: An amended complaint that relates back to the original complaint in that it “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading” is not barred by the statute of limitations according to ORCP 23 C.

(Filing Date: 08-26-2015)

Couey v. Atkins

Constitutional Law: ORS 14.175 allows for moot cases to be deemed justiciable if the plaintiff meets all three necessary elements as defined within the statute. The statute was within the power of the legislature to pass because it did not go beyond the constitutional limitations placed on them in determining the justiciability of cases.

(Filing Date: 07-16-2015)

Rogue Valley Sewer Services v. City of Phoenix

Municipal Law: A franchise fee imposed upon a local government entity by ordinance of a municipality is permissible under the "home-rule" if the ordinance does not violate the state constitution, if it does not violate the criminal laws of the state, and if it is authorized by the municipality's charter; so long as the ordinance does not impose a duty on or impair the power of the local government entity.

(Filing Date: 07-16-2015)

State v. Beauvais

Evidence: Medical evidence of child sexual abuse is admissible in a criminal case if an expert is available to testify as to the probative value and meaning of the evidence.

(Filing Date: 07-16-2015)

State v. Jimenez

Constitutional Law: A routine weapons inquiry is unrelated to a traffic stop and violates Article I, section 9, of the Oregon Constitution where the officer has no reasonable, circumstance-specific suspicion of a safety concern.

(Filing Date: 07-09-2015)

Montara Owners Assn. v. La Noeu Development, LLC

Contract Law: If a construction contract is only partially overbroad under ORS 30.140, then only those overbroad portions are voidable, rather than the entire contract. If no evidence supports a jury instruction on diminution of value, a jury instruction on damages under the economic waste doctrine is harmless.

(Filing Date: 06-18-2015)

State v. Delong

Criminal Procedure: A defendant's voluntary consent to a search may be sufficient to demonstrate that an officer's failure to give a Miranda warning did not affect, or only had a tenuous connection, to evidence discovered during the search.

(Filing Date: 06-18-2015)

Eclectic Investment, LLC v. Patterson

Tort Law: The Supreme Court may allow reconsideration of a decision where it based its conclusion on an analysis not identified by the parties to the suit, but where that analysis produces the same result it will adhere to its opinion.

(Filing Date: 06-11-2015)

Green v. Franke

Post-Conviction Relief: In post-conviction proceedings where petitioner argues inadequate representation at trial which resulted in prejudice to the case, the proper standards to apply are (1) whether trial counsel’s acts or omissions constituted inadequate assistance of counsel when viewed in light of counsel’s trial strategy; and (2) whether trial counsel’s acts or omissions, with consideration of trial strategy, “could have tended to affect” the outcome of the case.

(Filing Date: 06-04-2015)

In re Herman

Professional Responsibility: Disbarment is an appropriate sanction for violation of RPC 8.4(a)(3) when the offending acts are intentionally dishonest and fraudulent and there are few mitigating factors.

(Filing Date: 05-14-2015)

In re Jagger

Professional Responsibility: 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.

(Filing Date: 05-14-2015)

State v. Medina

Criminal Law: For the purpose of ORS 165.800 (Oregon's identity theft statute), signing a document with a false name does not amount to "utter[ing]" or “convert[ing] to [his] own use” another person’s personal identification.

(Filing Date: 05-14-2015)

Moro v. State of Oregon

Employment Law: The legislature cannot enact laws that would retroactively disable a defined benefit of government employee pension plans (PERS), and to do so would be in violation of the Oregon Constitution. The legislature can, however, prospectively change those benefits.

(Filing Date: 04-30-2015)

State v. Lykins

Sentencing: Under ORS 162.285, the victim of the crime of tampering with a witness is the state in its official capacity as administrator of justice. Under OAR 213-008-0002, a convicted defendant is subject to aggravated sentencing when the direct victim of the substantive crime is “particularly vulnerable.”

(Filing Date: 04-23-2015)

Sather v. SAIF

Workers Compensation: Under ORS 656.218, a worker’s estate may receive an award of benefits if the worker died prior to a final determination of benefits and in the absence of persons otherwise eligible to receive them, but if the estate is not satisfied, it cannot pursue a claim.

(Filing Date: 04-09-2015)

Willamette Estates II, LLC v. Dept. of Revenue

Tax Law: Under OAR 150-306.115, an assessor may petition DOR to correct a discrepancy in the tax rolls. Further, while taxpayer was allowed to challenge the value of component parts of property separately, that does not limit DOR’s authority to correct errors in the tax rolls.

(Filing Date: 04-09-2015)

Powerex Corp. v. Dept. of Revenue

Tax Law: Under ORS 314.665, both natural gas and electricity are considered tangible personal property for income tax purposes as they can be perceived with the senses and may be physically located within the state.

(Filing Date: 03-26-2015)

Towe v. Sacagawea

Tort Law: When multiple factual conclusions could be reached from the record, comparing negligence among multiple actors is a jury question, and summary judgement should be denied.

(Filing Date: 03-26-2015)

State v. Williams

Evidence: Evidence is relevant when it is logically related to an issue in a case; if it makes more probable the underlying allegations of misconduct, it is relevant.

(Filing Date: 03-19-2015)

Eclectic Investment, LLC v. Patterson et al.

Tort Law: the Astoria rule of common-law indemnity is a factor determined in the totality of the circumstances, and common-law indemnity is not consistent with severally distributed liability.

(Filing Date: 03-18-2015)

State v. Dickerson

Property Law: Wildlife is property of the State because the State’s interest in wildlife is both a legal interest derived from common law, and is codified in Oregon Code 39-201(1930).

(Filing Date: 03-12-2015)

Schoenheit v. Rosenblum

Ballot Titles: Under ORS 250.035, a certified ballot title must sufficiently notify voters and petition signers of the title’s potential impact.

(Filing Date: 03-05-2015)

State v. Mazzola

Criminal Procedure: Field Sobriety Tests (FSTs) are searches for which a warrant generally is required under the Oregon Constitution Article I, section 9; an exception to the warrant requirement is a search conducted with probable cause or under exigent circumstances.

(Filing Date: 03-05-2015)

State v. Nix

Appellate Procedure: Appeals under ORS 138.222(4) are only available in felony cases; writs of mandamus must be specifically requested, or in exceptional circumstances, may be allowed where the required information is available; and Oregon appellate decisions rendered without appellate authority must be vacated.

(Filing Date: 03-05-2015)

In re Ellis/ Rosenbaum

Professional Responsibility: The Bar must prove disciplinary actions by clear and convincing evidence, which means the trust of the facts asserted is highly probable.

(Filing Date: 02-20-2015)

State v. Hickman

Appellate Procedure: The Oregon Supreme Court's earlier opinion in State v. Hickman is modified to correct a factual error, and the previous decision is affirmed.

(Filing Date: 02-05-2015)

Pereida Alba v Coursey

Post-Conviction Relief: Defense counsel’s choice to pursue an “all or nothing” strategy may avoid the risk of being convicted of a lesser offense when defendant would otherwise go free.

(Filing Date: 01-15-2015)

State v. Sagdal

Criminal Procedure: Article I, sec. 11 of the Oregon Constitution does not mandate a jury of ten persons; rather, it provides for nonunanimous verdicts by ten of twelve jurors.

(Filing Date: 01-15-2015)

Epler v. Epler

Family Law: When a change in custody would not be in the best interests of the child, there is no harm in holding a parent to the change-in-circumstances rule.

(Filing Date: 12-26-2014)

Oregon Occupational Safety & Health Division v. CBI Services, Inc.

Administrative Law: Under ORS 654.086(2), “could not . . . know” is an inexact term given its ordinary meaning of what an employer is capable of knowing under the circumstances, and the interpretation of “reasonable diligence” is delegated to the agency to be determined considering the circumstances of each case and within the range discretion allowed by statute.

(Filing Date: 12-26-2014)

State v. Avila-Nava

Criminal Procedure: In determining whether a defendant's words constituted an unequivocal invocation of the right against self-incrimination under Article I, section 12, a reviewing court must consider those words, in context of the totality of the circumstances existing at the time of and preceding their utterance, to determine whether a reasonable officer would have understood that the defendant was invoking that right.

(Filing Date: 12-26-2014)

Walton v. Board of Parole and Post-Prison Supervision

Post-Conviction Relief: Judicial review of a "murder review" conducted by the Board of Parole and Post Prison Supervision is moot when the judicial review would have no practical effect on an inmate's release date.

(Filing Date: 12-24-2014)

Bagley v. Mt. Bachelor

Contract Law: A liability release is unconscionable and unenforceable if both its procedural and substantive elements are so against public policy that they protect negligent premises-management and allocate all negligent damages upon a paying customer with no bargaining power.

(Filing Date: 12-18-2014)

Kennedy v. Wheeler

Civil Procedure: The law does not require a jury to award any specific amount of economic or noneconomic damages as a prerequisite to entry of a valid judgment for a plaintiff when the same nine out of twelve jurors do not agree on the specific amounts of economic and noneconomic damages awarded.

(Filing Date: 12-11-2014)

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)

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)

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)

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)

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)

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)

State v. Walker

Criminal Law: Casual and informal associations of individuals, as well as organizations with formal structures, can constitute an "enterprise" within the meaning of ORS 166.715(2); the key is whether the association or entity is engaged in ongoing, coordinated criminal activity and undertakes a purposeful venture, undertaking, or activity through a pattern of criminal activity.

(Filing Date: 08-21-2014)

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)

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)

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)

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)

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 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)

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)

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)

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)

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)

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)

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)

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)

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)

Wright v. Turner

Insurance Law: The term "accident", as used in statutorily prescribed insurance contracts, is interpreted by legislative intent. Furthermore, whether more than one "accident" has occurred is ordinarily a question of fact reserved for the factfinder.

(Filing Date: 02-21-2014)

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)

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)

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)

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)

Schleiss v. SAIF

Workers Compensation: Accelerated aging and a mild degenerative condition are not legally cognizable preexisting conditions, and do not trigger apportionment of claimant's impairment in a true combined condition claim.

(Filing Date: 12-27-2013)

State v. Phillips

Criminal Procedure: At least 10 jurors must agree on each legislatively-defined element of a crime.

(Filing Date: 12-27-2013)

State v. Vanornum

Civil Procedure: ORCP 59 H, which provides that "a party may not obtain review on appeal" of an asserted error in giving or failing to give an instruction unless the party objected in a specified manner, does not control preservation of instructional error for purposes of appellate court review.

(Filing Date: 12-27-2013)

State v. Link

Criminal Procedure: When some of a defendant's convictions are remanded, the trial court must grant defendant a sentencing proceeding.

(Filing Date: 12-26-2013)

Robinson v. Harley-Davidson Motor Co.

Civil Procedure: In regards to personal jurisdiction, the appropriate standard for determining if the "arising out of or relating to" requirement supports the exercise of specific jurisdiction is the but-for and foreseeability of litigation test.

(Filing Date: 12-19-2013)

Engweiler v. Persson

Habeas Corpus: ORS 421.121 permits reduction of terms of incarceration by earned-time credits; ORS 144.125 requires prerelease functions prior to entitlement to habeas corpus relief.

(Filing Date: 12-12-2013)

State v. Moore

Criminal Procedure: A police officer does not coerce a defendant into submitting to the statutorily required tests when the officer gives the defendant accurate information about the lawful adverse consequences that might result from a refusal

(Filing Date: 12-12-2013)

State v. Pipkin

Criminal Procedure: When determining whether a jury concurrence is required, a court must first determine the legislature's intent in enacting the criminal statute. If the legislature intended two ways of proving a single element, jury concurrence is not required, so long as Article I, section 11 of the constitution is not violated.

(Filing Date: 12-12-2013)

Tektronix, Inc. v. Dept. of Rev.

Tax Law: Under ORS 314.665(6)(a), the term intangible assets does not mean only “liquid assets,” and instead carries its ordinary legal meaning. The receipts from the sale of intangible assets that are not derived from a taxpayer’s primary business activity must be excluded from the sales factor under ORS 314.665(6)(a).

(Filing Date: 12-12-2013)

Dept. of Human Services v. D. J.

Juvenile Law: ORS 419B.875(2) provides in part that the rights of the parties include, but are not limited to the right to call witnesses, cross-examine witnesses and participate in hearings. A party’s right to participate includes the right to testify on the party’s own behalf.

(Filing Date: 11-27-2013)

State v. Anderson

Criminal Procedure: By itself, a request for identification made by an officer in the course of a lawful encounter with a citizen is not a seizure. A seizure occurs if an officer physically restrains a citizen’s liberty in a significant way, or engages in a “show of authority” that reasonably conveys a significant restriction on a person’s freedom to terminate the encounter.

(Filing Date: 11-21-2013)

State v. Backstrand

Criminal Procedure: A mere request for identification made by an officer in the course of an otherwise lawful encounter does not, in and of itself, result in a seizure.

(Filing Date: 11-21-2013)

State v. Highley

Criminal Procedure: An officer's mere request for and verification of identification is not a seizure. The encounter may become a seizure only when the manner and content of police questions, cause a reasonable person to conclude that the police are exercising their authority to coercively detain the citizen.

(Filing Date: 11-21-2013)

Rasmussen v. Rosenblum

Ballot Titles: Pursuant to ORS 250.035(2), a statement describing the result of a "yes" vote in a ballot caption must be simple, understandable, and not more than 25 words.

(Filing Date: 10-17-2013)

State v. Campbell

Criminal Procedure: When a defendant drives unlawfully while simultaneously possessing illegal contraband, there is only one “criminal episode” and joinder of the charges is permitted.

(Filing Date: 10-17-2013)

State v. Mills

Criminal Procedure: Article I Section 11 of the Oregon Constitution does not require the State to prove venue as a material element of a crime.

(Filing Date: 10-17-2013)

Buehler v. Rosenblum

Ballot Titles: A ballot title must comply with ORS 250.035(2)(a) and reasonably identify the subject matter, which means that it would give effect to the actual major effect(s) if the measure was put into law. Additionally, a summary of the ballot title, under ORS 250.035(2)(d,) must be a concise and impartial statement of not more than 125 words that summarizes the state measure and its major effect.

(Filing Date: 10-03-2013)

Homestyle Direct, LLC v. DHS

Administrative Law: The validity of an administrative rule is irrelevant if the agency seeks to enforce the obligation as a contract term.

(Filing Date: 10-03-2013)

In re Phinney

Professional Responsibility: Disbarment is an appropriate sanction when a lawyer engages in serious criminal conduct and when a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.

(Filing Date: 10-03-2013)

State v. Algeo

Constitutional Law: A crime victim's ability to petition the Oregon Supreme Court for alleged constitutional violations does not extend to alleged statutory violations. Additionally, Article I, section 42(1)(d), does not confer upon a victim the right to receive “restitution” in the full amount of economic damages as that term is defined by ORS 137.106.

(Filing Date: 10-03-2013)

State v. Benoit

Criminal Procedure: The Oregon Constitution does not support the state transforming what begins as a criminal proceeding into a noncriminal proceeding without the defendant's consent.

(Filing Date: 10-03-2013)

State v. Fuller

Criminal Law: Violations do not preclude a defendant from asserting a right to a jury trial pursuant to Oregon Constitution Article 1, section 11.

(Filing Date: 10-03-2013)

State v. N.R.L.

Juvenile Law: ORS 419C.450, the juvenile restitution statute, is not considered civil in nature and does not entitle a defendant to a jury trial under Article 1, Section 17 of the Oregon Constitution.

(Filing Date: 10-03-2013)

Trees v. Ordonez

Tort Law: A non-physician may be able to establish the standard of care needed in a medical malpractice case involving a physician to overcome a motion for directed verdict so long as that person is an expert in the area.

(Filing Date: 10-03-2013)

Zimmerman v. Allstate Property and Casualty Ins.

Insurance Law: Determining if notice of “proof-of-loss” of a UIM claim is sufficient is a pragmatic and functional inquiry that must be satisfied by the record. Additionally, a letter accepting coverage and offering arbitration is sufficient to trigger the "safe harbor" of ORS 742.061(3).

(Filing Date: 10-03-2013)

Klutschkowski v. PeaceHealth

Constitutional Law: A statutory cap on a jury's award of noneconomic damages is unconstitutional if the plaintiff's cause of action was recognized by the common law in place when Oregon's Constitution was adopted.

(Filing Date: 09-26-2013)

Hagler v. Coastal Farm Holdings, Inc.

Tort Law: Under the doctrine of res ipsa loquitur, when a plaintiff does not supply evidence showing the injury was more likely than not caused by negligence on the part of the defendant, summary judgment in favor of the defendant is appropriate.

(Filing Date: 09-12-2013)

State v. Reinke

Sentencing: A defendant may be subject to an enhanced sentence absent a grand jury’s consideration of the enhancement factors.

(Filing Date: 09-12-2013)

State v. Savastano

Constitutional Law: A prosecutor’s decision will comply with Article 1, section 20 of the Oregon Constitution as long as there is a rational explanation for the differential treatment that is reasonably related to his or her official task or to the person’s individual situation.

(Filing Date: 09-12-2013)

Towers v. Rosenblum

Labor Law: When creating a ballot title that has the effect, if adopted by the voters, of creating "free riders" the ballot title caption must identify the actual major effect.

(Filing Date: 09-12-2013)

In Re Peter Carini

Professional Responsibility: Violation of RPC 8.4(a)(4) occurs if the Bar proves the attorney's conduct did or could have had a prejudicial effect on the administration of justice. Prejudice to administration of justice may arise from several acts that cause some harm or a single act that causes substantial harm to the administration of justice.

(Filing Date: 08-15-2013)

State v. Christian

Constitutional Law: Ordinance prohibiting possession of a loaded firearm in public is not an unconstitutional denial of the right to bear arms in self-defense. Additionally, the Court will not consider overbreadth challenges in Article I, Section 27 cases.

(Filing Date: 08-15-2013)

State v. Stark

Criminal Procedure: For the purposes of ORS 166.207(3)(a), the felon-in-possession statute, a defendant whose previous felony conviction has been reduced to a misdemeanor is excluded, but only if that reduction was in effect before a defendant was charged as a felon in possession.

(Filing Date: 08-15-2013)

PGE v. Ebasco Services, Inc.

Civil Procedure: A default judgment awarding monetary relief where the underlying complaint did not state the specific amount of money or damages sought violates ORCP 67 C. Such a defect does not render the default judgment void and subject to collateral attack, but instead renders the judgment voidable and not subject to collateral attack.

(Filing Date: 07-25-2013)

State v. Copeland

Evidence: Family Abuse Prevention Act certificate of service of a restraining order is an official record and is not testimonial evidence.

(Filing Date: 07-25-2013)

State v. MacBale

Evidence: In OEC 412(4) hearings to determine the admissibility of evidence of a sex crime victim's past sexual behavior, excluding the public is permissible under both the Oregon and United States Constitutions.

(Filing Date: 07-25-2013)

State v. Watson

Criminal Procedure: When officers detain a person for violating a traffic law, it is reasonable to determine whether the person is licensed to continue on his or her way after the encounter ends unless the detention becomes unreasonably lengthy.

(Filing Date: 07-05-2013)

Gable v. State

Post-Conviction Relief: A post-conviction claim for relief based on inadequate assistance of counsel must be proven by a preponderance of the evidence.

(Filing Date: 06-27-2013)

Haugen v. Kitzhaber

Constitutional Law: A reprieve is effective regardless of whether the reprieve is accepted or rejected by the grantee.

(Filing Date: 06-20-2013)

Brandrup v. ReconTrust Co.

Consumer Credit: Under the Oregon Trust Deed Act, (1) MERS cannot act as the “beneficiary” under the OTDA unless it is a lender’s successor in interest; (2) a “beneficiary” under OTDA is lender owed the obligation secured by the trust deed; (3) OTDA does not require that assignments resulting from the transfer of a promissory note be recorded before a non-judicial foreclosure; and (4) MERS cannot hold or transfer legal title to a trust deed because it holds neither a beneficial interest nor the legal interest of the trustee.

(Filing Date: 06-06-2013)

Niday v. GMAC Mortgage, LLC

Consumer Credit: For the purposes of the Oregon Deed Trust Act (ODTA), a beneficiary on a trust deed is the party that is entitled to repayment of the note. A party named as beneficiary, but lacking that entitlement, has no right to appoint a successor trustee after sale of the promissory note.

(Filing Date: 06-06-2013)

Con-Way Inc. & Affiliates v. Dept. of Rev.

Tax Law: Under ORS 317.090(2) a taxpayer may satisfy its tax liability by claiming its "Business Energy Tax Credit."

(Filing Date: 05-31-2013)

Elk Creek Management Co. v. Gilbert

Landlord Tenant: ORS 90.385 requires the tenant to prove that the landlord would not have taken the prohibited action but for the tenant’s protected activity, but does not require that the landlord intend to injure the tenant in response to the tenant injuring the landlord.

(Filing Date: 05-31-2013)

State v. Fair

Criminal Procedure: Temporary detention of an individual is constitutional if: (1) there is a reasonable belief that an offense involving danger of forcible injury to a person recently has been committed nearby; (2) there is a reasonable belief that the person has knowledge that may aid the investigation of the suspected crime; and (3) the detention is reasonably necessary to obtain or verify the identity of the person, or to obtain an account of the crime.

(Filing Date: 05-31-2013)

State v. Newman

Criminal Law: ORS 161.095(1) requires proof that the driving element of DUII is a voluntary act for criminal liability to attach.

(Filing Date: 05-31-2013)

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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