Willamette Law Online

(29 summaries)

John D. Adams

9th Circuit Court of Appeals

TitleExcerptFilling Date
Kramer v. Toyota Motor Corp.Arbitration: Signatory and nonsignatory entities in a contract are presumptively not in agreement to arbitrate arbitrability if the contract does not specifically include nonsignatory entities in the signatories’ agreement to arbitrate arbitrability. (01-30-2013)
Stengel v. Medtronic, Inc.Preemption: A federal-law duty imposed by the Medical Device Amendments to the Food, Drug, and Cosmetic Act does not preempt a parallel state-law duty of care. (01-10-2013)
Metro One v. CIRTax Law: § 56’s Relief Rule does not allow a taxpayer subject to the Alternative Minimum Tax to offset upwards of 100% of a taxpayer’s income with net operating losses, because the term “carryovers” as used in § 56(d)(1) refers only to “carryforwards.” Thus, taxpayers are not able to use net operating losses carried back to 2001 or 2002 from later tax years under the Relief Rule.(12-19-2012)
Aloe Vera of America, Inc. v. United StatesTax Law: The two-year statute of limitations for a taxpayer’s §7431(a) claim only begins to run when the taxpayer is on inquiry notice from “actual or constructive knowledge” of each disclosure of return information. Additionally, the §7431(b) immunity afforded for good faith mistakes of disclosure does not protect the government from knowingly false releases of information.(11-15-2012)
United States v. Valencia-RiascosEvidence: When a defendant has made an FRE 615 request to exclude an investigative official who is both a witness and victim in the prosecution's case, the court may deny the defendant's request by finding that the investigative official is either a case agent permitted to be present according to FRE 615(b), or the individual is authorized under FRE 615(d) by the Crime Victims' Rights Act to be present in the courtroom despite an FRE 615 objection.(10-11-2012)
United States v. USDC– Northern Mariana Is.Civil Procedure: Where the district court fails to make a factual finding showing the case’s unique circumstances, the court abuses its discretion in ordering the attendance of a government representative with full settlement authority at an initial settlement conference.(09-12-2012)
Jefferson & Co. v. Board of AssessmentCivil Rights § 1983: In an administrative hearing where statutory provisions allow separate county counsel attorneys to represent both the challenged government agency and the administrative panel adjudicating the appeal, the presumption that the adjudicator is unbiased remains as long as screening procedures exist to maintain an ethical wall between the two attorneys’ activities.(08-29-2012)
In re ToberBankruptcy Law: Arizona law allows a debtor to exempt “the cash surrender value of [certain] life insurance policies” and annuity contracts from execution, attachment or sale when the beneficiary is a “surviving spouse, child, parent, brother or sister,” despite the beneficiary not being a dependent of the debtor.(08-10-2012)
Native Village of Eyak v. BlankIndian Law: To properly claim aboriginal fishing rights, a group of Native Americans must show by a preponderance of the evidence that for the area claimed, the group maintained exclusive use of the territory and successfully prevented other individuals or groups from exploiting the benefits of the exclusive territory. Failure to demonstrate a population size reasonably necessary to enforce the exclusivity, in the absence of other evidence of dominion and control of the claimed area, will prevent the court from finding that the Native Americans had the necessary exclusive control of the claimed area.(07-31-2012)
Back v. SebeliusAdministrative Law: A case must be dismissed as moot when no controversy exists because the agency already has in place the administrative appeals process that the plaintiff seeks.(07-05-2012)
Rivera-Peraza v. HolderImmigration: An alien seeking permanent resident status through a waiver of inadmissibility under §1182(h)(1)(B), and who is also subject to §1212.7(d) due to a conviction of a “violent or dangerous crime,” must first meet the threshold discretionary demonstration of hardship as defined by §1182(h)(1)(B), followed by the additional discretionary requirement that the alien and family members face “exceptional and extremely unusual hardship.”(06-29-2012)

Oregon Supreme Court

TitleExcerptFilling Date
State v. Glushko/LittleCriminal 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.(11-10-2011)
State v. SpeedisCriminal 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.(06-30-2011)

Oregon Court of Appeals

TitleExcerptFilling Date
State v. HooverCriminal Law: In the absence of a statutory definition for “penetration” in the crime of sexual penetration, the act merely requires proof that the victim's vagina, rather than external genitalia, was penetrated, however slightly.(06-20-2012)
State v. McMullenCriminal Procedure: The fleeting nature of a suspect’s blood alcohol level is an allowable exigent circumstance that will ordinarily permit a warrantless blood draw when an officer has probable cause to believe the defendant is under the influence of intoxicants.(05-31-2012)
State v. WestCriminal Procedure: A trial court properly denies a defendant’s request to exclude breath test results when there is an absence of satisfactory foundational requirements for scientific evidence; breath test results are admissible when the procedures of ORS 813.160(1) and associated rules have been followed.(05-31-2012)
Hoekstre v. DLCDLand Use: Remedies afforded by section 6 of Ballot Measure 49 (2007) allow a claimant to receive relief under sections 6(2) or 6(3), but these subsections cannot be combined to afford a cumulative remedy.(05-09-2012)
State v. N. R. L.Juvenile Law: Despite recent amendments to ORS 419C.450, restitution continues to function as an element of the penal system. Therefore, it does not require a jury trial that would be afforded by Article I, section 17 of the Oregon Constitution.(04-11-2012)
State v. GilbertSentencing: When a sentencing court does not make an oral or written ruling that a sentence will be served consecutively with another sentence, ORS 137.123(1) requires that the sentences run concurrently, and the reference in ORS 138.083(1)(a) to amending an “erroneous term” cannot be employed by the sentencing court to amend the sentence due to an unexpressed intention at the time of the original judgment for the sentences to run consecutively.(03-14-2012)
Dept. of Human Services v. T. M. M.Family Law: A parent’s future availability as a fit parental resource when assessed at the termination of parental rights hearing must be reasonable when weighed against the specific and immediate needs of the parent’s children.(02-29-2012)
Steele v. Water Resources CommissionWater Rights: For a petitioner to properly challenge an agency’s final order, petitioner must show that erroneous factual findings or erroneous interpretations of conclusions of law in the agency’s final order produced an improper result that is within the court’s authority to review.(02-15-2012)
Lucke v. DPSSTAdministrative Law: An order for summary determination favorable to the moving party shall be issued if evidence in the record for the case shows that there is no genuine issue of any material fact that is relevant to resolution of the legal issue as to which a decision is sought.(01-25-2012)
Brasher’s Cascade Auto Auction, Inc. v. LeonContract Law: For the purposes of ORS 822.045(2), an “inventory financing security interest” occurs when a dealer finances the acquisition of vehicles for the dealer’s stock by creating an interest, held by the supplier, in the vehicles, which secures the obligation owed by the dealer.(12-29-2011)
Davis v. Nye Ditch Users Improvement Dist.Property Law: An improvement district created according to ORS Chapter 554 has, by implication of its power to carry out its statutory purpose, the right to gain access to its works on members' property for necessary improvements and repairs.(12-14-2011)
Dubray v. SAIF Corp.Workers Compensation: A final order that upholds the termination of the claimant’s eligibility for vocational training must be based on substantial reason, thus showing when the claimant received the warning and that the warning was written.(10-26-2011)
Snyder v. Interstate Distributor Co.Workers Compensation: An employer may demonstrate a claimant's lack of diligence by showing that the claimant failed to request a timely hearing to review a claim denial, and the claimant’s lack of diligence cannot be shown by inaction prior to the injury.(10-19-2011)
Pewther v. C CorpContract Law: The presumption of joint liability between co-owners in property presupposes that the co-owners maintain a joint tenancy, not a tenancy in common; and obligations will not be assumed to continue when it would be implausible under the terms of the contract following a termination of the tenant’s interest.(09-28-2011)
Holbert and NoonFamily Abuse Prevention Act: For a restraining order, the imminence requirement of abuse is met when the threatened injury is part of the respondent’s pattern of threatening behavior and articulated to be near at hand, impending or menacingly near.(09-08-2011)
State v. PotterCriminal Procedure: When questioning a defendant about a case other than that which the defendant has invoked the right to counsel for, the prosecutor must contact the defendant’s attorney before attempting to interview the defendant on a factually related matter.(08-10-2011)