Willamette Law Online

(76 summaries)

Logan Leichtman

9th Circuit Court of Appeals

TitleExcerptFilling Date
United States v. WhittemoreCriminal Law: Under 2 U.S.C. § 441f, the source of conduit contributions is the proper focus of the inquiry regardless of the ownership status of the funds at the time of contribution.(01-26-2015)
Sessoms v. GroundsHabeas Corpus: Statements regarding a request for counsel in a custodial interrogation must be taken as a whole to determine whether an ordinary person would regard them as an unambiguous and unequivocal request to have counsel present.(09-22-2014)
Sandoval v. Las Vegas Metro Police Dep'tCivil Rights § 1983: Police officers executing a warrantless search are not entitled to qualified immunity if the search is not supported by an exception to the warrant requirement; however, separation of father and son for forty minutes and killing of family dog during execution of the search does not constitute deprivation of a familial relationship.(07-01-2014)
In Re: Zynga Privacy LitigationCivil Procedure: A claim under the Electronic Communications Privacy Act must make an allegation that the contents of a communication were disclosed in order to survive a motion for dismissal.(05-08-2014)
Tobeler v. ColvinAttorney Fees: Under the Equal Access to Justice Act, an award of attorney’s fees is appropriate where the government’s underlying position was not substantially justified, despite justification for their litigation position.(04-18-2014)
Courthouse News Service v. PlanetCivil Rights § 1983: It is incorrect for a district court to abstain from hearing a case where the plaintiff’s claim presents an important constitutional question and the relief sought would not excessively intrude on sensitive state interests.(04-07-2014)
Peruta v. County of San DiegoConstitutional Law: San Diego’s “good cause” policy allowing concealed public carry of firearms, which does not allow permits for those with ordinary self-defense concerns, is an impermissible abridgment of the Second Amendment to keep and bear arms for the purpose of self-defense.(02-13-2014)
Experience Hendrix v. Hendrixlicensing.comTrademarks: The Washington Publicity Rights Act can grant post-mortem publicity rights even when the person was not domiciled in Washington at the time of death, provided that the action sued on is premised with sufficient relation to the state of Washington.(01-29-2014)
Inhale, Inc. v. Starbuzz Tobacco, Inc.Copyright: Under “useful articles” doctrine of copyright law, the manufacturer of a hookah is not entitled to copyright protection where sculptural elements of design cannot exist independently, or be separately identified, from utilitarian aspects of design.(01-09-2014)
United States v. AndersonCriminal Law: When a defendant fails to timely object to a challenged jury instruction, the flawed instruction will be upheld when it does not rise to the level of plain error; a district court errs when it fails to award restitution based on the victim’s actual loss.(12-19-2013)
United States v. ChovanConstitutional Law: 18 U.S.C. § 922(g)(9), barring a person convicted of a domestic violence misdemeanor from possessing a firearm, does not violate the Second Amendment on its face; a defendant is not entitled to the “civil rights restored” exception if the triggering misdemeanor did not divest defendant of other fundamental rights.(11-18-2013)
Jones v. RyanHabeas Corpus: When new claims not present in the original habeas corpus petition are asserted in a Rule 60(b) motion for relief from judgment, the motion can be construed as a second petition subject to denial for lack of authorization.(10-18-2013)
United States v. FirstIndian Law: A tribal court misdemeanor conviction can serve as a predicate offense for unlawful possession of a firearm under 18 U.S.C. § 922(g)(9) when the defendant was provided the right to counsel that was required in the misdemeanor trial, even if that right as given in a tribal court does not meet the constitutional federal minimum.(10-01-2013)
United States v. Arqueta-RamosCriminal Procedure: When taking pleas en masse as part of an “Operation Streamline” proceeding, a court must still confirm individually with each defendant that the defendant is aware of her rights.(09-20-2013)
C.B. v. City of SonoraCivil Rights § 1983: A jury verdict obtained after re-deliberation and long, unscripted, and potentially misleading or confusion discussions between the district judge and the jurors warrants a new trial.(09-12-2013)
Detrich v. RyanHabeas Corpus: Under Martinez v. Ryan, a court reviewing a Habeas Corpus petition can apply an exception to the “cause” and “prejudice” rule to excuse procedural default when a defendant makes a claim of ineffective assistance of counsel.(09-03-2013)
United States v. ReedCriminal Law: Assimilation of state’s drugged driving law with federal DUI regulation is proper where there is a gap in the federal law relating to drugged driving and the defendant was driving on a federal road within that state.(08-22-2013)
United States v. LeeCriminal Law: A district court must use sentencing guidelines as a starting point rather than using a predetermined sentence and working backwards to make their desired sentence fit within the guidelines.(08-07-2013)
Pyramid Lake Paiute Tribe v. NevadaWater Rights: Diversion of water to wetlands to support growth of plants used by wildlife in a waterfowl habitat is not “irrigation” for purposes of compliance with the federal court decree concerning water rights in the Newlands Project area in Nevada.(07-30-2013)
United States v. GarciaCriminal Law: A jury instruction for involuntary manslaughter is improper where it fails to require the jury to find that the defendant acted with gross negligence and that omission is harmful to the defendant.(07-19-2013)
In the Matter of: MarshallBankruptcy Law: When assigned for the interest of efficiency, a bankruptcy court judge presiding over a Chapter 11 case acts within his discretion when denying a motion for recusal after having presided over a case with a similar factual background and same principal parties.(06-28-2013)
Fournier v. SebeliusAdministrative Law: Denial of dental coverage for Medicare beneficiaries does not constitute a violation of beneficiaries’ right to equal protection under the Fifth Amendment when denial is based on reasonable interpretation by the Secretary of Health and Human Services of an ambiguous statute.(05-31-2013)
Labatad v. Corrections Corp. of AmericaCivil Rights § 1983: Summary judgment is properly granted for prison officials when a prisoner fails to show deliberate indifference to the substantial risk of attack stemming from temporarily housing him with an inmate belonging to a rival prison gang.(05-01-2013)
Blum v. Merrill Lynch Pierce Fenner & SmithCivil Procedure: A motion to intervene in a long-concluded case is not untimely when the purpose of the motion is to seek modification of a protective order; the order can be modified to prevent the destruction of documents relevant to pending litigation.(04-11-2013)

Oregon Supreme Court

TitleExcerptFilling Date
McCann v. RosenblumBallot 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. (04-24-2014)

Oregon Court of Appeals

TitleExcerptFilling Date
Ramirez v. Northwest Renal ClinicCivil Procedure: Notice of voluntary dismissal does not require a court ruling to be effective, and is thus sufficient to dismiss an action without prejudice despite pendency of the grant of a motion for summary judgment.(04-16-2014)
Dept. of Human Services v. R.S.Juvenile Law: An agency's initial jurisdiction in juvenile court is not subject to collateral attack in a later proceeding; the only proper jurisdictional challenge is to the court's continuing jurisdiction.(03-26-2014)
Barkers Five, LLC v. LCDCLand Use: LCDC order acknowledging designation of urban and rural reserves in the Metro area was unlawful in substance because it (1) approved Washington County’s misapplication of rural reserve factors, (2) incorrectly found Multnomah County’s consideration of rural reserve factors sufficient, and (3) failed to review designation of Stafford as urban reserve for substantial evidence.(02-20-2014)

Land Use Board of Appeals

TitleExcerptFilling Date
Seabreeze Associates Limited v. Tillamook CountyLand Use: Statewide Planning Goal 10 (Housing) applies to rural unincorporated communities if residential lands in those communities were used in the county’s inventory of buildable lands required by Goal 10.(04-16-2015)
LO 138 LLC v. City of Lake OswegoMunicipal Law: The definition of “village character” in the Lake Oswego Downtown Redevelopment Design District does not create mandatory approval standards beyond those contained in the Lake Oswego Code.(04-15-2015)
Smith v. City of GearhartMunicipal Law: Under Gearhart Zoning Ordinance 12.060(7), the city council must make a decision on review that includes findings and if remanded, a statement explaining the reasons; not reaching a vote constitutes failure to make the decision.(04-01-2015)
Smalley v. Benton CountyLand Use: Under ORS 215.306, “on-site filming” which does not require approval in EFU zones does not include the filming of events for documentary purposes where the event is the primary purpose and the filming of the event is secondary, particularly when the recording is not created for public distribution.(03-17-2015)
Mackenzie v. City of PortlandAppellate Procedure: When a petitioner withdraws a petition for appeal, the arguments made in that appeal are waived with respect to a different petitioner who attempts to incorporate those arguments without having preserved the issue themselves.(03-10-2015)
Rogue Advocates v. Jackson CountyLand Use: When a hearings officer’s decision is not required to specify the precise nature and extent of a nonconforming use, findings that would be relevant to a future application are dicta which do not provide a basis for reversal or remand on a challenge to the sufficiency of the evidence.(03-06-2015)
H.T. Rea Farming Corp. v. Umatilla CountyLand Use: When a county has amended its development code to conform to provisions of an Oregon Administrative Rule, the county must apply its own development code rather than the rule in permit approvals; failure to specifically provide for expansion of a use in its own development code is not grounds for the county to rely solely on the Rule for approval.(02-19-2015)
Squier v. Multnomah CountyLand Use: Repeal and re-adoption of county ordinances acknowledged to be in compliance with statewide planning goals, that do not materially alter the provisions of those ordinances, do not “de-acknowledge” those ordinances from compliance with those goals.(02-04-2015)
Oregon Coast Alliance v. City of BrookingsLand Use: The appropriate time for a determination of whether development allowed under proposed zoning will comply with statewide planning goals is when the zoning is adopted.(01-06-2015)
Phillips v. City of Happy ValleyAppellate Procedure: Under ORS 197.830(3), an extension for the deadline of filing a notice of intent to appeal is not available when the city provided notice of a hearing and then adopted an ordinance consistent with the notice and hearing.(01-06-2015)
Carver v. Washington CountyAppellate Procedure: Under OAR 661-010-0010(3), the date of decision for purposes of filing a notice of intent to appeal is the signing date of the decision despite a different date contained in the notice of decision sent to a party.(01-02-2015)
SCAN v. City of SalemLand Use: Under Salem Revised Code 133, minimum and maximum parking requirements are to be calculated based on the needs of the development and buildings to be served by the parking spaces; an entire campus under common ownership does not constitute a “single development” for purposes of this calculation.(12-31-2014)
Weston Kia v. City of GreshamMunicipal Law: When a code revision omits language which changes the scope of its application, intentionally or otherwise, it is error for a hearings officer to reinsert the language that is now missing while interpreting the code.(12-31-2014)
Reading v. Douglas CountyLand Use: Statewide Planning Goal guidelines are advisory in nature and are not a source of mandatory approval criteria, and a challenge based on failure to satisfy specific language in the guidelines will fail.(12-24-2014)
Rushing v. City of SalemLand Use: City of Salem’s decision to approve demolition of Howard Hall by Salem Hospital was reasonable and supported by sufficient evidence, challenges merely pointed to conflicting evidence without support of its own.(12-17-2014)
Devin Oil Co. Inc. v. Morrow CountyMunicipal Law: Where an ordinance extending the time period of a permit does not expressly state or otherwise suggest that it is intended to apply retroactively, a permit that has expired cannot be revived by filing an application for extension within the new time period.(12-09-2014)
Dion v. Baker CountyAppellate Procedure: When a local body determines that an issue has been waived, the issue is not considered preserved for LUBA review unless a successful challenge to the original determination of waiver has been brought.(12-09-2014)
Tolbert v. Clackamas CountyAppellate Procedure: A standard which requires a county to determine whether a modification is consistent with “all provisions [of the code] in effect on the date the modification request is submitted” does not require assessment of all aspects of the proposal not affected by the modification absent issues that could not have been raised under the previous proposal.(12-05-2014)
Del Rio Vineyards LLC v. Jackson CountyLand Use: A prior land use decision requiring an easement for mining access does not authorize or approve the use of an existing haul road absent specific description of the haul road in conjunction with the easement requirement.(12-02-2014)
Ooten v. Clackamas CountyLand Use: Under OAR 660-004-0018, a previously taken statewide planning goal exception does not remove the subject property from the necessity of further exceptions to redesignate and rezone from Rural Residential Farm Forest to Rural Industrial.(11-20-2014)
Landwatch Lane County v. Lane CountyLand Use: ORS 215.213 governs the approval of nonfarm dwellings on land zoned Exclusive Farm Use contained in “marginal lands” counties; ORS 215.284 only applies to non-marginal lands counties.(11-12-2014)
McLaughlin v. Douglas CountyLand Use: Under ORS 215.283(1)(c), a “utility facility necessary for public service” is not required to be one that serves local or county residents; ORS 215.275(6) includes interstate natural gas pipelines regulated by the Federal Energy Regulatory Commission in the definition of “utility facility necessary for public service.”(11-12-2014)
Carver v. Washington CountyMunicipal Law: A roadway does not need to meet the “adequacy” requirement of a specified width of 22 paved feet under Washington County Community Development Code 501-8.1B(2)(b) if the applicant can show that the inadequate facility meets the criteria set forth in 501-6.1(A)-(D).(10-28-2014)
Hess et al v. City of CorvallisMunicipal Law: Documents that are not sufficiently described cannot be incorporated into findings of fact, and cannot be relied upon as findings to support a decision when specific challenges are raised with regard to the adequacy of those findings.(10-28-2014)
Knapp v. Jackson CountyAppellate Procedure: Under ORS 197.763(3)(b) and 197.835(4)(a), “applicable criteria” that are required to be listed in a notice of hearing do not include submittal or pre-application requirements.(10-14-2014)
West v. Multnomah CountyMunicipal Law: In order to be considered to “continue to exist” for purposes of forest template dwelling approval, a dwelling must be in a state of habitability; a dilapidated structure that has been vacant for eighteen years is not sufficient.(09-30-2014)
Kaimanu v. Washington CountyLand Use: When a development code sets out differing requirements such as setback and parking based on usage to which the structure is put, the nonconforming status of the structure does not foreclose violations of those requirements based on use.(09-16-2014)
Columbia Riverkeeper v. Columbia CountyLand Use: Lack of specificity in identifying proposed uses for the purposes of a Goal 2 reasons exception is not fatal to approval under OAR 660-004-0022(3), but specificity is vital to justify reasons based on these uses for purposes of OAR 660-004-0020.(08-27-2014)
Rogue Advocates v. Jackson CountyMunicipal Law: Approval of floodplain development permits while related appeal was pending was error requiring reexamination of the application under more formal notice and participation procedures.(08-26-2014)
Oakleigh-McClure Neighbors v. City of EugeneMunicipal Law: Under Eugene Code 9.8320(3), “screening” for a planned unit development requires the use of visual impediments such as berms, closely planted vegetation, or walls; open space is not sufficient to satisfy this requirement.(08-21-2014)
Christensen v. City of PortlandAppellate Procedure: Under OAR 661-010-0067(2) the time limit for filing a petition for review may be extended only by written consent of all parties.(08-06-2014)
Lake Oswego Preservation Society v. City of Lake OswegoLand Use: Under ORS 197.772(3), a request to remove property from the list of historic landmarks may only be initiated by the property owner at the time of designation, not by a successor in interest.(08-05-2014)
Macfarlane v. Clackamas CountyLand Use: Under Zoning and Development Ordinance 406.04(D), a “dwelling” consists of a “detached single-family dwelling” and may not be used to connect to houses through a breezeway to comply with zoning limiting to one dwelling on the property.(08-05-2014)
Pacificorp v. Deschutes CountyLand Use: Definition of a term to include a more expansive meaning for purposes of historic resource designation must be justified by context, technical definitions of the term, dictionary definitions at the time the designation was made, and the nature of historic resources at the time of designation.(08-01-2014)
Goodpasture Partners LLC v. City of EugeneMunicipal Law: Under Eugene Code 9.8370, a modification years later to an approved PUD is consistent with the original condition requiring a performance agreement where the condition leaves the establishment of a timetable to the performance agreement.(07-23-2014)
Parkview Terrace Development LLC v. City of Grant's PassMunicipal Law: Under ORS 197.303, Grant’s Pass Development Code 19.052 (2), (4)-(6), (8)(a) and (e), (9), and (11), cannot be used to deny a proposal for “needed housing” as they are not “clear and objective” approval standards.(07-23-2014)
Save Downtown Canby v. City of CanbyLand Use: City of Canby did not err in approving rezoning from Downtown Canby Overlay Core Commercial to Outer Highway Commercial for purposes of approving a permit to build a fuel station.(07-23-2014)
Carver v. Washington CountyLand Use: In a multi-phase development, to enforce conditioning construction of earlier phases on satisfying conditions applicable to later phases, a challenger must cite a code requirement or other legal standard as the risk of not completing a multi-phase development is always present.(07-16-2014)
McCaffree v. Coos CountyLand Use: Modification of a permit condition for a natural gas pipeline that crosses over estuarine lands does not need to satisfy Estuary Management Plan policies where the policies were not invoked in the establishment of the condition and not implicated by the modification.(07-15-2014)
Morton v. Clackamas CountyMunicipal Law: A hearings officer reviewing a permit application under Clackamas County Zoning and Development Ordinance 1203.01(D) must apply a three-prong inquiry to determine if the use would “limit, impair, or preclude” use of surrounding properties.(07-08-2014)
Egge v. Lane CountyAppellate Procedure: A decision to determine a violation of a permit condition is not a “land use decision” and thus not subject to LUBA’s jurisdiction.(07-02-2014)
Oregon Pipeline Company v. Clatsop CountyMunicipal Law: The threshold for finding bias for county commissioners is high due to the nature of the position mixing executive, legislative, and judicial functions; participation as a party opponent in a related proceeding and bringing a vote unnecessarily shortly after taking office are strong indicators of bias.(06-27-2014)
Lamar Outdoor Advertising Co. v. City of TigardLand Use: Tigard Development Code 18.780.090.D sets out a cumulative list of requirements for approval of variable-message signs; these approvals are not “permits” for the purposes of ORS 227.175(3).(06-04-2014)
Beaumont-Wilshire Neighbors v. City of PortlandLand Use: Oregon Plumbing Speciality Code 1101.5.3.2, granting the Bureau of Development Services Appeals Board authority to approve deviations, does not “impose any express limits on or standards to guide decisions approving such deviations.”(05-28-2014)
Stop the Dump Coalition v. Yamhill CountyAppellate Procedure: OAR 661-010-0030(1) imposes a strict deadline for filing a petition for review 21 days after the date the record is settled by the Board, and is not a “technical violation” waivable at the Board’s discretion.(05-22-2014)
Southwest Medford LLC. v. City of MedfordLand Use: A revision to a previously approved planned unit development seeking to remove a voluntarily agreed-upon condition may be denied if the revision does not comply with all other relevant approval criteria.(05-19-2014)
Kukaska v. Linn CountyLand Use: Under Linn County Code 932.860 and 932.870(a), the determining factor for approval of a medical hardship dwelling is whether the applicant requires daily care; it is not necessary that the applicant meet both age and infirmity requirements.(05-14-2014)
Delta Property Company LLC v. Lane CountyLand Use: Under ORS 215.213(2), a county may restrict mining in marginal lands zoned for exclusive farm use beyond the requirements of the statute by enacting its own legislation to supplement the statute.(05-05-2014)