Oregon Court of Appeals

2020

January 20 summaries

State v. Arnold

"[T]he rules for personal service under ORCP 7 'do not require actual in-hand delivery, or a face-to-face encounter with an acknowledgement of identity from the person to be served,' because '[t]o so require would allow a defendant to defeat service simply by refusing to identify himself or accept the papers.'" Business & Prof. Adj. Co. v. Baker, 62 Or App 237, 240-41, 659 P2d 1025 (1983).

Area(s) of Law:
  • Civil Procedure

State v. M. J. M.

Once a court finds a person is mentally ill by clear and convincing evidence, if the court finds that person is “willing and able to participate in treatment on a voluntary basis” and they “will probably do so” the court must order their release under ORS 426.130(1)(a)(A)(i)-(ii).

Area(s) of Law:
  • Civil Commitment

The Bank of New York Mellon v. Lash

To maintain an FED action, the entry must have been by force and the holding of the property must have also been by force. ORS 105.110; Kerr v. Jones, 193 Or App 682, 687, 91 P3d 828 (2004).

Area(s) of Law:
  • Property Law

Central Oregon Landwatch v. Deschutes County

An amendment to a county’s acknowledged comprehensive plan, which did not directly or indirectly influence the misclassification of a land, cannot be a basis for requiring review of the amendment in a goal noncompliance claim. Urquhart v. Lane Council of Governments, 80 Or App 176, 180-82, 721 P2d 870 (1986).

Area(s) of Law:
  • Land Use

Friends of Yamhill County v. Yamhill County

In a specialized zoning context, "'incidental and subordinate to' means more than that the accessory use occurs less frequently than the primary use," and in statutory context, ORS 215.283(4)(d) was intended to spark a comparison on the nature, intensity, and economic value of proposed agri-tourism events rather than solely relying on frequency of activities.

Area(s) of Law:
  • Land Use

State v. Lorenzo

“Disobedience to a subpoena or a refusal to be sworn or to answer as a witness may be punished as contempt by a court before whom the action is pending or by the judge or justice issuing the subpoena. Upon hearing or trial, if the witness is a party and disobeys a subpoena or refuses to be sworn or to answer as a witness, such party’s complaint, answer, or reply may be stricken.” ORCP 55 G; “Except for offenses based on municipal or county ordinance, in a criminal action the State of Oregon is the plaintiff and the person prosecuted is the defendant.” ORS 131.025.

Area(s) of Law:
  • Criminal Procedure

Walton v. Myrick

"ORS 138.550(3) places a ‘limit on successive post-conviction proceedings’ and is meant to disallow ‘serial litigation’ of post-conviction claims." Bogle v. State of Oregon, 363 Or 455, 458, 476-477, 423 P3d 715 (2018). "The fact that a represented petitioner failed in his or her effort o raise additonal claims in the original post-conviction proceeding . . . will not justify the filing of a new, successive post-conviction petition under ORS 138.550(3)." Id. at 477-78.

Area(s) of Law:
  • Post-Conviction Relief

Yann v. Bowser

In reviewing the trial court's grant of summary judgment for legal error, the Court determines “whether there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Evans v. City of Warrenton, 283 Or App 256, 258, 388 P3d 1167 (2016); ORCP 47 C.

Area(s) of Law:
  • Post-Conviction Relief

Restore Oregon v. City of Portland

Under ORS 197.850(9)(1), LUBA orders are reviewed to determine if the decision was "unlawful in substance or procedure."

Area(s) of Law:
  • Land Use

Shriners Hospitals for Children v. Cox

“We balance four factors in determining whether a court permissibly exercised its discretion [over a petitioned leave to amend]: ‘(1) the nature of the proposed amendments and their relationship to the existing pleadings; (2) the prejudice, if any, to the opposing party; (3) the timing of the proposed amendments and related docketing concerns; and (4) the colorable merit of the proposed amendment.” Ramsey v. Thompson, 162 Or App 139, 145, 986, P2d 54 (1999) rev den 329, Or 589 (2000).

Area(s) of Law:
  • Civil Procedure

State v. Keyes

"[A] 'sentence imposed' under ORS 137.717 is a sentence initially imposed upon conviction, and not a sentence imposed at the time the probation is revoked." State v. Orcutt, 280 Or App 439, 446, 380 P3d 1105 (2016), rev den, 361 Or 525 (2017).

Area(s) of Law:
  • Sentencing

State v. Mast

"Whether post-Miranda statements must be suppressed when the Miranda warnings are belatedly given turns on whether the state has established that the warnings were 'effective.'" State v. Vondehn, 348 Or 462, 480, 236 P3d 691 (2010). "To determine whether belatedly administered Miranda warnings are effective, we consider 'all relevant circumstances.'" Id. at 482.

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. F. Y. D.

ORS 419B.100(1)(c) provides that "a juvenile court has jurisdiction in a dependency case when a child’s ‘condition or circumstances are such as to endanger the welfare’ of the child.” “A child is endangered if the child is exposed to conditions or circumstances that ‘present a current threat of serious loss or injury.’” Dept. of Human Services v. A. L., 268 Or App 391, 397, 342 P3d 174 (2015).

Area(s) of Law:
  • Juvenile Law

Schnitzer v. Schnitzer

"Dictionary definitions… ‘do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which they are used.'” State v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011).

Area(s) of Law:
  • Family Law

State v. Barrett

The Court may "decline to address constitutional questions where the record was 'too inconclusive to justify the adoption of the constitutional rule urged by defendant.'" City of Portland v. Juntunen, 6 Or App 632, 635, 488 P2d 806 (1971).

Area(s) of Law:
  • Constitutional Law

State v. Guynn

“A person commits the offense of ‘following too closely’ if the person ‘[d]rives a motor vehicle so as to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon, and condition of, the highway.” ORS 811.485(1)(a). “A driver has the duty [to all cars] to not follow the preceding car so closely as to create an ‘unreasonable risk’ to others under the driving conditions present.” Garland v. Wilcox, 220 Or 325 (1960).

Area(s) of Law:
  • Traffic Infractions

State v. J.W.

"A person may be committed to DHS for care, treatment, or training if the court determines that (1) the person has an intellectual disability; (2) because of the intellectual disability, the person is either (a) dangerous to self, (b) dangerous to others, or (c) unable to provide for personal needs and not receiving care as is necessary for the person’s health, safety, or rehabilitation; and (3) voluntary treatment and training or conditional release is not in the person’s best interest. ORS 427.290.”

Area(s) of Law:
  • Civil Commitment

State v. Kirkpatrick

“[A]n offense in another jurisdiction is only considered comparable to an Oregon felony sex crime if the two have ‘elements that are the same * * * or nearly the same.’” State v. Carlton, 361 Or 29, 43, 388 P3d 1093 (2017).

Area(s) of Law:
  • Sentencing

State v. McCarthy

The automobile exception requires “(1) that the automobile is mobile at the time it is stopped by police or other governmental authority, and (2) that probable cause exists for the search of the vehicle.” State v. Brown, 301 Or. 268, 274, 721 P2d 1357 (1986).

Area(s) of Law:
  • Criminal Law

State v. Swartz

“[A] person commits the crime of IPO ‘if the person, knowing that another person is a peace officer[,] … [r]efuses to obey a lawful order by the peace officer,’” ORS 162.247(1). Passive resistance means any “noncooperation with a lawful order of a peace officer that does not involve active conduct.” State v. McNally, 361 Or 314, 339 P3d 721 (2017).

Area(s) of Law:
  • Criminal Law

February 26 summaries

Dept. of Human Services v. L. J. W.

“ORS 419B.337(2) grants the court the authority to order a parent to submit to a psychological evaluation to help design services needed, if there is ‘a rational connection between the service to be provided and the basis for jurisdiction.’”  State ex rel Juv. Dept. v. G. L., 220 Or App 216, 223, 185 P3d 483, rev den, 345 Or 158 (2008).

Area(s) of Law:
  • Juvenile Law

M & T Partners, Inc. v. Miller

Under ORS 197.829, LUBA "'shall affirm a local government interpretation of its comprehensive plan and land use regulations,' unless LUBA finds that specified conditions are satisfied."

Area(s) of Law:
  • Land Use

Reister v. City of Portland Bureau of FPDR

“An ‘FPDR Two Member whose employment with the Bureau of Fire or Police terminates after completing five Years of Service shall be eligible to receive the benefit on vested termination.’ That benefit ‘shall be the FPDR Two Member’s retirement benefit accrued […] to the date of the FPDR Two Member’s termination of employment’ and ‘shall be payable monthly for the life of the FPDR Two Member commencing on Earliest Retirement Date.’" Portland City Charter § 5-305(b), (c).

Area(s) of Law:
  • Administrative Law

State v. Gallegos

“Plain error is an error that is (1) one of law; (2) obvious, i.e., not reasonably in dispute; and (3) apparent on the record.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013).

Area(s) of Law:
  • Remedies

State v. Simmons

“A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats.” ORS 136.425(1). "Any communication made with the idea of some 'temporal benefit or disadvantage' for the criminal defendant is enough to run afoul with the statute." State v. Linn, 179 Or 499, 504-07, 173 P2d 305 (1946); State v. Bell, 281 Or App 208, 383, P3d 327 (2016).

Area(s) of Law:
  • Criminal Procedure

Anantha v. Clarno

The proposed measures must satisfy the two-part framework: 1) whether a “unifying principle” can be identified, embracing a single subject, and if so 2) whether “other matters” contained within are “properly connected” to that principle. State ex rel Caleb v. Beesley, 326 Or 83, 91-93, 949 P2d 724 (1997).

Area(s) of Law:
  • Ballot Titles

Dayton v. Jordan

“In order to subdivide or partition any property, the declarant shall include on the face of the subdivision or partition plat, if a partition plat is required, a declaration […] stating that the declarant has caused the subdivision or partition plat to be prepared and the property subdivided or partitioned in accordance with the provisions of this chapter […] any public or private easements created, or any other restriction made, shall be stated in the declaration.” ORS 92.075(1).

Area(s) of Law:
  • Property Law

Miller v. Elisea

"[T]he inquiry into the admissibility of evidence of medical causation focuses on the differential diagnosis and whether the particular use of the differential diagnosis to determine causation has met the general test of scientific validity." Jennings v. Baxter Healthcare Corp., 331 Or 285, 307, 14 P3d 596 (2000). 

Area(s) of Law:
  • Evidence

State v. Drew

"A wound on the forehead and scalp that is four to six inches in length and half an inch wide after five staples had been used to close it is a 'disfigurement' as the term is ordinarily used," and, if it is "readily apparent to others, qualifies as 'serious.'" State v. Kinsey, 293 Or App, 208, 213, 426 P3d 674 (2018). 

Area(s) of Law:
  • Sentencing

Vukanovich v. Kine

When neither party requests a de novo review, and the case does not appear to warrant doing so due to exceptional circumstances, the court reviews a trial court's legal conclusions for errors of law and its factual findings to determine whether the findings are supported by evidence in the record. ORAP 5.40(8)(c); Vukanovich v. Kine, 268 Or App 623, 633, 342 P3d 1075 (Vukanovich II), adh'd to as modified on recons, 271 Or App 133, 349 P3d 567 (2015 (Vukanovich III). 

Area(s) of Law:
  • Civil Procedure

Dept. of Human Services v. P. W.

“ORS 419B.387 authorizes the juvenile court to order a parent to submit to a psychological evaluation, but only after ‘the establishment of a need for treatment or training at the evidentiary hearing.’” Dept of Human Services v. D.R.D., 298 Or App 788, 799, 450 P3d 1022 (2019); see also Dept. of Human Services v. T.L.H., 300 Or App 606, 453. P3d 556 (2019).

Area(s) of Law:
  • Juvenile Law

Growing Green Panda v. Dept. of Human Services

“When an agency has interpreted its own rules, ‘we give significant deference to that interpretation and are required to affirm it if it is “plausible,” [as long as it’s consistent with itself, its context or other source of law].’” Boatwright v. Dept. of Human Services, 293 Or App 301, 304-305 (2018).

Area(s) of Law:
  • Administrative Law

State v. Middleton

“The test for whether an encounter is a ‘seizure’ is whether the officer ‘intentionally and significantly restricts, interferes with, or otherwise deprives an individual’s liberty or freedom of movement,’ or whether ‘a reasonable person under the totality of the circumstances would believe that [that] has occurred.’” State v. Fair, 353 Or 588, 594, 302 P3d 417 (2013).

Area(s) of Law:
  • Criminal Procedure

Stau v. Taylor

Under Article I, section 11, of the Oregon Constitution, a party may prove that trial counsel rendered inadequate assistance if they prove (1) a performance element, or a failure to exercise reasonable professional judgement, and (2) a prejudice element, that the party suffered prejudice as a result of the inadequacy. See Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

Area(s) of Law:
  • Post-Conviction Relief

Int. Assn. Machinist, Woodworkers Local W-246 v. Heil

"When determining whether the offer of judgment under ORCP 54(E) was more favorable than the judgment, the court must compare both amounts." Mulligan v. Hornbuckle, 227 Or App 520, 523, 206 P3d 1078 (2008).

Area(s) of Law:
  • Attorney Fees

Menten and Deatherage

"ORS 107.105(6) explicitly authorizes parties who have an undivided interest in real property pursuant to a dissolution judgment to maintain a proceeding for the 'partition' of the property." See Abrahram v. Goff, 85 Or App 595, 597, 737 P2d 971 (1987).

Area(s) of Law:
  • Family Law

OR-OSHA v. A & B Sheet Metal Works

"As set forth by a leading treatise, federal law dictates that the agency must show, in the absence of proof of actual exposure, that it is reasonably predictable that employees, by 'operational necessity' or otherwise (including inadvertence) in the course of their work or associated activities (e.g., going to rest rooms) will be in the zone of danger created by the cited condition." OR-OSHA v. Moore Excavation, Inc., 257 Or App 567, 577, 307 P3d 510 (2013).

Area(s) of Law:
  • Administrative Law

Porter v. Veenhuisen

If an action is first filed within the statute of limitations and then “involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action,” a new action based on the same claim or claims may be filed within 180 days of the trial court’s entry of the judgment of dismissal of the original action, notwithstanding that the statute of limitations has run during the interim. ORS 12.220.

Area(s) of Law:
  • Civil Procedure

Portland Fire Fighters' Assn. v. City of Portland

“’Collective bargaining’ means the performance of the mutual obligation of a public employer and the representative of its employees to meet at reasonable times and confer in good faith with respect to employment relations for the purpose of negotiations concerning mandatory subjects of bargaining…” ORS 243.650(4). “Mandatory subjects of bargaining are those that affect employment relations.” ORS 243.650(4). “Employment relations ‘includes, but is not limited to, matters concerning direct or indirect monetary benefits, hours, vacations, sick leave, grievance procedures and other conditions of employment.’” ORS 243.650(7)(a).

Area(s) of Law:
  • Labor Law

State v. Colman-Pinning

“[T]he automobile exception is a subcategory of the warrant exception for exigent circumstances, necessitated by the fact that a vehicle that is mobile can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” State v. Brown, 301 Or 268, 275, 721 P2d 1357 (1986). “The mobility of the vehicle creates a per se exigency, meaning that there is no need to establish other exigencies or that a warrant could not have been quickly obtained.” Id. at 276.

Area(s) of Law:
  • Criminal Procedure

State v. Formby-Carter

“Evidence of defendant’s previous criminal convictions and the underlying facts was relevant and admissible to prove ‘defendant’s mental state, as well as * * * absence of mistake or accident.’” State v. Johns, 301 Or 535, 725 P2d 312 (1986); OEC 404(3).

Area(s) of Law:
  • Evidence

State v. Keys

"In the absence of indictment, preliminary hearing, or waiver, the circuit court lacks jurisdiction to try the defendant and any judgment rendered in that case is void.” Huffman v. Alexander, 197 Or 283, 301, 251 P2d 87 (1952); OR Const, Art VII (Amended), section 5.

Area(s) of Law:
  • Criminal Procedure

State v. Oxford

To determine whether the trial court abused its discretion, the Court took the context of the case into consideration along with other factors. See State v. Evans, 211 Or App 162, 166-68 (2007), aff’d, 344 Or 358 (2008) (Whether the prejudice was so great a mistrial was the only legally acceptable alternative, whether the prejudice was cured by jury instruction, and whether the incident was sufficiently isolated).

Area(s) of Law:
  • Criminal Procedure

State v. Snelgrove

“If the defendant does not comply with the conditions of the release agreement, the court having jurisdiction shall enter an order declaring the entire security amount to be forfeited. [...] If, within 30 days after the court declares the forfeiture, the defendant does not appear or satisfy the court having jurisdiction that appearance and surrender by the defendant was, or still is, impossible and without fault of the defendant, the court shall enter judgment for the state, or appropriate political subdivision thereof, against the defendant…” ORS 135.280(3).

Area(s) of Law:
  • Criminal Procedure

State v. Spieler

“The ‘court’s speaking verdict and other comments must be considered in context, taking into account the circumstances in which the court made its observations.’” State v. Reed, 299 Or App 675, 689, 452 P3d 995 (2019).

Area(s) of Law:
  • Criminal Law

State v. Stacey

Plain-error review has three requirements: (1) the error was one of law; (2) the error was apparent and not reasonably in dispute; and (3) the error appeared on the record. State v. Coverstone, 260 Or App 714, 715, 320 P3d 670 (2014).

Area(s) of Law:
  • Appellate Procedure

March 19 summaries

Dept. of Human Services v. M. E.

“If the involvement of friends and family members sufficiently counters the risk to a child otherwise presented by a parent’s deficits so that the child is safe, dependency jurisdiction is not warranted.” Dept. of Human Services v. J. G. K., 298 Or App 398, 402, 449 P3d 531 (2019).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. T. J.

“‘Under ORS 419B.100(1)(c), jurisdiction is warranted if a child’s condition or circumstances are such as to endanger [that child’s] welfare’—that is, if they ‘give rise to a threat of serious loss or injury.’ DHS must prove that the threat is current, nonspeculative, and causally connected to the allegedly risk-causing conduct or circumstances.” Dept of Human Services v. D.W.M., 296 Or App 109, 117-18, 437 P3d 1186 (2019).

Area(s) of Law:
  • Family Law

Fleming v. SAIF

Under ORS 656.289(4)(b), "[i]insurers or self-insured employers who are parties to an approved disputed claim settlement under this subsection shall not be joined as parties in subsequent proceedings under this chapter to determine responsibility for payment for claim conditions for which settlement has been made."

Area(s) of Law:
  • Insurance Law

Johnson v. Premo

"If the party arguing against mootness can identify practical effects or collateral consequences that flow from the underlying challenged decision, then the party advocating mootness must show that the effects and consequences identified are either legally insufficient or factually incorrect." Garges v.Premo, 362 Or 797, 802, 421 P3d 345 (2018).

Area(s) of Law:
  • Post-Conviction Relief

State v. Brownlee

“A search incident to arrest is valid where an officer has probable cause to make an arrest, the search would likely uncover evidence of the crime of arrest, and the search is reasonable in time, scope, and intensity.” State v. Mazzola, 356 Or 804, 811-12, 345 P3d 424 (2015). “Whether a search incident to arrest is reasonable in scope and intensity is not dependent on an arrestee’s immediate possession, but whether the items searched was immediately associated with the arrestee at the time.” State v. Burgholzler, 185 Or App 254, 260, 59 P3d 582 (2002).

Area(s) of Law:
  • Evidence

State v. Phillips

To determine whether circumstances are compelling for purposes of Miranda warnings, the court asks “whether the questioning occurred in a police-dominated atmosphere.” State v. Turnidge, 359 Or 364, 402, 374 P3d 853 (2016), cert den, 137 S Ct 665 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. Rieker

“…ORS 137.106 did not prevent the court from imposing restitution [beyond the 90-day deadline] in order to provide the victim a remedy by due course of law, after it was discovered that her constitutional right to restitution was violated.” State v. Wagoner, 257 Or App 749, 395 P3d 528 (2013).

Area(s) of Law:
  • Sentencing

Braun and Braun

“When a party seeks modification or termination of spousal support, the trial court ‘must determine whether there has been a substantial, unanticipated change in the economic circumstances since the time of the earlier award.’” Davis and Lallement, 287 Or App 323, 327-328, 401 P3d 1230 (2017). “If there has been, the trial court ‘must determine what amount of support is just and equitable under the totality of the circumstances.’” Id. at 328.

Area(s) of Law:
  • Family Law

M. D. O. v. Desantis

"Each contact 'must give rise to subjective alarm and that alarm must be objectively reasonably, and the contacts, cumulatively, must give rise to subjective apprehension regarding the petitioner's personal safety or the personal safety of a member of the petitioner's immediate family or household, and that apprehension must be objectively reasonably.'" Blastic v. Holm, 248 Or App 414, 418, 273 P3d 304 (2012).

Area(s) of Law:
  • Civil Stalking Protective Order

NV Transport, Inc. v. V & Y Horizon, Inc.

"An interference in another party's contractual or other economic relations is tortious only if it is 'wrongful by some measure beyond the fact of the interference itself,' such as by improper means or improper motive." Northwest Natural Gas Co. v. Chase Gardens, Inc., 328 Or 487, 498, 982 P2d 1117 (1999).

Area(s) of Law:
  • Tort Law

State v. Adams

The Court ruled it would “…not presume an implicit finding where the record does not support it or shows that such a finding was not part of the trial court’s chain of reasoning forming the basis of its ultimate legal conclusion.” See Pereida-Alba v. Coursey, 356 Or 654, 671, 342 P3d 70 (2015).

Area(s) of Law:
  • Criminal Law

State v. Arnold

"To be 'within the immediate view and presence of the court' is to personally witness such conduct." State v. Blackburn, 283 Or App 843, 845, 391, P3d 929 (2017).

Area(s) of Law:
  • Criminal Law

State v. Davilla

Under Miller, when a juvenile faces a de facto life sentence, the sentencer is required to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller v. Alabama, 567 U.S. 460, 479–80 (2012). Failure to do so violates the Eighth Amendment of the United States Constitution.

Area(s) of Law:
  • Sentencing

State v. James

Under the plain meanings of “reliable” and “authority,” the Court understood the phrase to mean a source, widely used within that community, whose propositions or opinions are trustworthy and deserving of the community’s reliance and acceptance.

Area(s) of Law:
  • Criminal Procedure

State v. M. A. S.

Under ORS 419C.450, “adjudication” and “disposition” are distinct phases of delinquency proceedings and adjudication hearings are to determine jurisdiction, thus, presenting restitution evidence at a dispositional hearing is too late.

Area(s) of Law:
  • Juvenile Law

State v. Rockett

"When a trial court is presented with a request to exclude evidence as unfairly prejudicial under OEC 403, the court should (1) consider the quantum of probative value of the evidence and consider the weight or strength of the evidence; (2) determine how prejudicial the evidence is and the extent to which the evidence may distract the jury from the central question whether the defendant committed the charged crime; (3) balance the prosecution's need for the evidence against the countervailing danger of unfair prejudice; and (4) consider whether to admit all the proponent's evidence, none, or some portion of it." State v. Anderson, 363 Or 392, 423 P3d 43 (2018).

Area(s) of Law:
  • Evidence

State v. Smith

Plain-error must be: (1) an error of law, (2) obvious; and, (3) “apparent on the record without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614 (2013).

Area(s) of Law:
  • Criminal Procedure

Baertlein and Stocks

"[W]hether, when a party seeks, pursuant to ORS 107.104, to enforce some stipulated term of the dissolution judgement in the context of modification proceedings under ORS 107.135, attorney fees incurred in those enforcement efforts can be recovered under ORS 107.135(8)." Berry and Huffman, 247 Or App 651, 271 P3d 128 (2012).

Area(s) of Law:
  • Family Law

State v. Camirand

"Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict?" State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).

Area(s) of Law:
  • Evidence

April 30 summaries

Davis v. Kelly

To establish that counsel rendered inadequate assistance, it must be proven that (1) the trial counsel "failed to exercise reasonable professional skill and judgment, and (2) a prejudice element - in this context, that counsel's failure had 'a tendency to affect the result of his trial.'" Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

Area(s) of Law:
  • Post-Conviction Relief

State v. Strickland

“The legal standard for assessing the reasonableness of a person’s belief about the need for force or the extent of force necessary turns on an objective evaluation of the circumstances in which physical force has been used or threatened, and not on the perceptions of the individual defendant.” State v. Bassett, 234 Or App 259, 228 P3d 590 (2010).

Area(s) of Law:
  • Evidence

Dept. of Human Services v. C.S.C.

"If DHS advocates for a change in the child's permanency plan, DHS must establish, by a preponderance of the evidence, both that it has made reasonable efforts towards safely reunifying the family and that the child's parents have nonetheless made insufficient progress for that to occur." Dept. of Human Services v. S.M.H., 283 Or App 295, 305, 388 P3d 1204 (2017).

Area(s) of Law:
  • Family Law

Dept. of Human Services v. M.C.C.

"Reasonable efforts are 'efforts that focus on ameliorating the adjudicated bases for jurisdiction, and that give "parents a reasonable opportunity to demonstrate their ability to adjust their conduct and become minimally adequate parents."'" Dept. of Human Services v. L.L.S., 290 Or App 132, 138, 413 P3d 1005 (2018).

Area(s) of Law:
  • Family Law

Dept. of Human Services v. M. F.

“A juvenile court cannot assert jurisdiction . . . simply because it is concerned that a parent might not be sufficiently attentive . . . DHS must [provide] evidence sufficient to establish that the parent in fact has parenting deficits that create a current threat of serious loss or injury to the child that is reasonably likely to be realized.” Dept. of Human Services v. M. F., 294 Or App 688, 699 (2018).

Area(s) of Law:
  • Family Law

State v. Belden

“Reliance by the state on out-of-court statements in lieu of live testimony is only permitted when offered out of necessity, that is, after the state has ‘exhausted all reasonably available means of producing the witness.’ The state bears the burden to establish unavailability of the witness.” State v. Nielsen, 316 Or 611, 623, 853, P2d 256 (1993); State v. Harris, 362 Or 55, 65, 404 P3d 926 (2017).

Area(s) of Law:
  • Evidence

State v. Omar

Under State v. Smith, 190 Or. App. 576 (2003), when a motion for substitute counsel has been denied, the proper disposition is to vacate the conviction and remand for a hearing. If it is found that the defendant should have received substitute counsel, then the defendant should receive a new trial; if not, the defendant’s conviction should be reinstated.

Area(s) of Law:
  • Criminal Procedure

State v Marmon

An affidavit requires facts be included to show more likely than not that: “(1)…a crime has been, or is currently being, committed, and that (2) evidence of that crime (3) will be found in the place to be searched.” State v. Cannon, 299 Or App 616, 626-27, 450 P3d 567 (2019).

Area(s) of Law:
  • Criminal Procedure

State v Pouncey

The denial of the motion for mistrial is reviewed for abuse of discretion, “asking whether the prosecutor’s unremedied misstatement so affected the jury’s consideration as to deny defendant a fair trial.” Citing State v. Davis, 345 Or 551, 582-83, 201 P3d 185 (2008), cert den, 558 US 873 (2009).

Area(s) of Law:
  • Criminal Law

Summa Real Estate Group, Inc. v. Horst

A directed verdict is to be granted only when the evidence, viewed in the light most favorable to the nonmoving party, is insufficient to allow a factfinder to find the facts necessary to establish each element of the claim at issue. Miller v. Columbia County, 282 Or App 348, 349, 385 P3d 1214 (2016), rev den, 361 Or 238 (2017); The party seeking to recover lost profits bears the burden to prove them. Peterson v. McCavic, 249 Or App 343, 354, 277 P3d 572, rev den, 352 Or 564 (2012). Specifically, the party “must establish with reasonable certainty the existence and amount of lost profits.” Id.

Area(s) of Law:
  • Civil Law

Dept. of Human Services v. M. A. N.

"The juvenile code does not permit decisions to terminate parental rights to hinge on abstract notions of permanency. . . [r]ather, the juvenile code demands a persuasive factual showing that termination of parental rights to a particular child is in that child's best interest, in view of the particular needs and circumstances of the child." Dept. of Human Services v. T. L. M. H., 294 Or App 749, 750, 432 P3d 1186 (2018), rev den, 365 Or 556 (2019).

Area(s) of Law:
  • Family Law

Rudnitskyy v. State

“[P]etitioner has the burden of both production and proof to ‘establish that his or her counsel did not make all significant decisions in the exercise of reasonable professional judgment.’” Pereida-Alba v. Coursey, 356 Or 654, 672 n 14.

Area(s) of Law:
  • Post-Conviction Relief

Sherman v. Dept. of Human Services

"ORS 12.117 allows plaintiffs to bring claims based on child abuse that are potentially decades old, and the statute of ultimate repose in ORS 12.115 has no bearing on the timeliness of those claims;" and "the exception to the statute of ultimate repose is not a 'limitation on the commencement of an action' under ORS 30.275(9)."

State v. Dennis

“A criminal defendant has a right to be present at sentencing. We have repeatedly held that a trial court errs when it imposes fines or fees in a written judgment that it did not pronounce at sentencing.” State v. Baccaro 300 Or App 131, 137, 452 P3d 1022 (2019); State v. Coghill, 298 Or App 818, 819, 448 P3d 1195 (2019).

Area(s) of Law:
  • Sentencing

State v. Fry

“We may affirm a trial court ruling on an alternative basis that was not raised in the trial court when certain conditions are met. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001). However, even when those conditions are met, affirming on an alternative basis that was not raised in the trial court “is a matter of prudential discretion and not compulsion.” Biggerstaff v. Board of County Commissioners, 240 Or App 46, 56, 245 P3d 688 (2010).

Area(s) of Law:
  • Criminal Procedure

State v. Laune

“The primary purposes of the preservation rule are to allow the trial court to consider a contention and correct any error, to allow the opposing party an opportunity to respond to a contention, and to foster a full development of the record.” Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008).

Area(s) of Law:
  • Appellate Procedure

State v. Mayo

A prosecutor is permitted to comment on a defendant’s failure to meet the burden of production or persuasion when an affirmative defense has been raised, State v. Spieler, 269 Or App 623, 641-42, 346 P3d 549 (2015); To establish a defense, the burden of producing evidence rests on the defendant. State v. McCoy, 17 Or App 155, 162, 521 P2d 1074, aff’d on other grounds, 270 Or 340, 27 P2d 725 (1974); ORS 161.055. The prosecutor may comment on a defendant’s failure to present evidence when the defense raises matters, such as alibi, on which, as a practical matter, the defendant bears the initial burden of production, but fails to present any evidence.” Spieler, 269 Or App at 642; see State v. Abram, 273 Or App 449, 456, 359 P3d 431 (2015).

Area(s) of Law:
  • Criminal Law

State v. Schmidt

“[I]n light of the first two of the three principal purposes justifying the court-created inventory exception to the warrant requirement - to protect the owner’s property while in policy custody and to reduce and tend to prevent the assertion of false claims against police - before conducting an inventory of a vehicle in a noncriminal and nonemergency context, where vehicle occupants are present and not under arrest police must ‘give occupants who are present and not under arrest notice that they may retrieve readily removable personal belongings before an inventory is conducted.’” State v. Fulmer, 366 Or 224, 234-35 (2020).

Area(s) of Law:
  • Evidence

State v. Strasser

Excluding evidence is harmless if the finder of fact “would have regarded the evidence as duplicative or unhelpful to its deliberations.” State v. Blaylock, 267 Or App 455, 456 n 1, 341 P3d 758 (2014), rev den, 357 Or 299 (2015) (quoting State v. Perkins, 221 Or App 136, 143, 188 P3d 482 (2008) (internal quotation marks, citations, and ellipses omitted)).

Area(s) of Law:
  • Evidence

State v. Sherriff

Under State v. Arreola-Botello, 365 Or 695 (2019) and for the purposes of Article I, section 9 of the Oregon Constitution, all activities conducted during a traffic stop are part of an ongoing seizure and must be reasonably related to the purpose of the traffic stop or grounded in an independent constitutional justification.

Area(s) of Law:
  • Criminal Procedure

The Bank of New York Mellon v. Brantingham

In the enforcement of a note, “[a] person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.” ORS §73.0301 (UCC § 3-301). “[T]o be entitled to enforce a negotiable instrument as a holder, a party must simply demonstrate that it is in possession of the instrument and that the instrument is payable either to the bearer or to the party itself.” Deutsche Bank and Trust Co. Americas v. Walmsely, Or App 690, 695-96 (2016).

Area(s) of Law:
  • Business Law

Deep Photonics Corporation v. LaChapelle

“[T]he right to jury trial must depend on the nature of the relief requested and not on whether, historically, a court of equity would have granted the relief had the legal issuer been joined with a separate equitable claim.” Foster v. Miramontes, 352 Or 401, 425 (2012). Under Equitable Life Assurance v. McKay, 306 Or 493, 497 (1988), “matters concerned primarily with judicial administration are governed by the law of the forum state.”

Area(s) of Law:
  • Civil Procedure

Meyer v. Sugahara

“The absolute immunity accorded to government prosecutors encompasses not only their conduct of trials but all of their activities that can fairly be characterized as closely associated with the conduct of litigation or potential litigation.” Barrett v. United States, 798 F2d 565, 571-72 (2d Cir 1986) (interpreting U.S. Supreme Court jurisprudence on “absolute immunity”).

Area(s) of Law:
  • Qualified Immunity

NAES Corp. v. SCI 3.2, Inc.

The standard of proof for a claim under the last injurious exposure rule is reasonable medical probability; medical certainty is not required to show an employer was the sole cause of an injury. Liberty Metal Fabricators v. Lynch Co., 295 Or App 809, 813, 435 P3d 810 (2019), adh’d to as modified on recons, 302 Or App 110, 456 P3d 691 (2020).

Area(s) of Law:
  • Workers Compensation

Rodrigues and Gerhards

When a judgment is unambiguous, the judgment is given force by its “clear terms.” Anderson and Anderson, 65 Or. App. 16, 19, 670 P.2d 170 (1983); see Tough and Tough, 259 Or. App. 259, 270, 313 P.3d 326 (2013).

Area(s) of Law:
  • Family Law

State v. Beckner

“[T]o prove that a particular sexual contact was first-degree sexual abuse, the state must prove not only that the defendant subjected the victim to an act of forcible compulsion, but also that that act resulted in the sexual contact that is the focus of the charge, in the sense that it compelled the victim to submit to or engage in the contact.” State v. Marshall, 350 Or 208, 227 253 P3d 1017 (2011).

Area(s) of Law:
  • Criminal Law

State v. Goacher

ORS 163A.140 does not violate Article I, section 20 of the Oregon Constitution because, when certain sex offenders are required to register as opposed to similarly situated sex offenders, there is no separate group benefiting from such unequal treatment.

Area(s) of Law:
  • Criminal Law

State v. Madison

Oregon appellate courts have “authority under [article VII, section 3, of the Oregon Constitution to direct entry of a lesser-included offense that we determine should have been entered by the trial court.” State v. Pittman, 276 Or App 491, 495, 369 P3d 99 (2016); see Or. Const. art. VII, § 3.

Area(s) of Law:
  • Criminal Law

State v. Nygard

“[T]he force that is sufficient to ‘compel’ one person to submit to or engage in a sexual contact against his or her will may be different from that which is sufficient to compel another person to do so.” State v. Marshall, 350 Or 208, 226, 253 P3d 1017 (2011).

Area(s) of Law:
  • Criminal Law

Wright v. Turner

Under ORS 742.504(7)(a) and ORS 742.502(2), uninsured motorist protection is part of coverage under an insurance policy; the burden of proof is on the insured to prove coverage. FountainCourt Homeowners v. FountainCourt Develop., 360 Or 341, 360, 380 P3d 916 (2016).

Area(s) of Law:
  • Insurance Law

May 36 summaries

Towner v. Silverton Health

Under Eads v. Borman, the elements of actual agency are that “the principle ha[s] a right to control the acts of its agent,” and “both parties must also agree that the agent will act on the principal’s behalf.” Eads v. Borman, 234 Or App 324, 227 P3d 826 (2010), aff’d, 351 Or 729, 277 P3d 503 (2012).

Area(s) of Law:
  • Tort Law

Lacey v. Saunders

“Against such party’s personal representative or successors in interest unless the personal representative or successors in interest mail or deliver notice including the information required by ORS 115.003 (3) to the claimant or to the claimant’s attorney if the claimant is known to be represented, and the claimant or his attorney fails to move the court to substitute the personal representative or successors in interest within 30 days of mailing or delivery.” ORCP 34B(2).

Area(s) of Law:
  • Civil Procedure

State/Klamath County v. Hershey

An animal forfeiture claim is most akin to a lien foreclosure claim in general, which was not entitled to a jury trial at the time of the adoption of the Oregon Constitution, and does not include the kind of fact-finding that would customarily be tried to a jury.

Area(s) of Law:
  • Civil Procedure

State v. Altamirano-Juarez

When a judge considers a waiver of a defendant’s right to a jury trial, they must consider “whether a bench trial will fully protect defendant’s rights.” State v. Austin, 274 Or App 114, 119, 360 P3d 603 (2015).

Area(s) of Law:
  • Criminal Law

State v. Clifton

Under ORS 164.015, “A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person: (1) Takes, appropriates, obtains or withholds such property from an owner thereof[.]"

Area(s) of Law:
  • Criminal Law

State v. Johnson

"If a defendant requires a continuance to adequately prepare a defense and would be prejudiced by a denial, then a trial court abuses its discretion by denying a motion for continuance." State v. Hickey, 79 Or App 200 (1986)

Area(s) of Law:
  • Criminal Procedure

State v. Rhamy

"[D]etermination of the reliability of the child victim’s testimony and statements—and, in particular, how various questioning or interviewing techniques call the reliability of that evidence into question—is a matter for the trier of fact at trial, not a matter to be determined by the court in a pretrial hearing." State v. Kelly, 244 Or App 105, 109-110, 260 P3d 551 (2011); State v. Bumgarner, 219 Or App 617, 632-34, 184 P3d 1143, rev den, 345 Or 175 (2008), cert den, 555 US 1101, adh’d to as modified on recons, 229 Or App 92, 209 P3d 857 (2009).

Area(s) of Law:
  • Criminal Procedure

State v. Stowell

“[I]f the state seeks to hold a defendant liable either as the principal or as an aider and abettor and if a party requests an appropriate instruction, the trial court should instruct the jury that at least 10 jurors must agree on each legislatively defined element necessary to find the defendant liable under one theory or the other.” State v. Phillips, 354 Or 598, 606 (2013).

Area(s) of Law:
  • Criminal Law

State v. Walker

Under ORS 135.715, an error in an accusatory instrument does not require dismissal of charges unless the error would "prejudice of the substantial rights of the defendant upon the merits.”

Area(s) of Law:
  • Traffic Infractions

City of Corvallis v. State of Oregon

ORS 222.127, which allows a city’s legislative body to annex certain territory within its boundary “without submitting the proposal to the electors of the city” if specific conditions are met, does not violate the “home rule” provisions of the Oregon Constitution.

Area(s) of Law:
  • Municipal Law

Coleman v. SAIF

Under ORS 656.267(1), a new medical condition claim can be initiated “at any time,” hindered by ORS 656.267(2)(a) which states: only properly initiated claims “related to an initially accepted claim” are subject to the time restraints of ORS 656.262. When new medical condition claims are instituted before the first claim has been accepted, the procedure for those additional claims is “just like any other claim,” which means the 60 day turn around does not apply. Johansen v. SAIF, 158 Or. App. 672, 681, 976 P.2d 84, adh’d to on recons, 160 Or. App. 579, 987 P.2d 524, rev den, 329 Or 527 (1999).

Area(s) of Law:
  • Workers Compensation

Department of Human Services v. M. T. J.

"[T]he juvenile court 'cannot simply ignore' serious parental deficiencies' that become apparent during a permanency hearing but that were not the basis upon which jurisdiction was sought." Dept. of Human Services v. N. M. S., 246 Or App 284, 297-98, 266 P3d 107 (2011).

Area(s) of Law:
  • Family Law

Dep’t of Human Services v. A.J.G.

"[I]n order to justify continued jurisdiction, the department has to prove by a preponderance of the evidence that conditions or circumstances related to father's conduct or condition give rise to a current threat of serious loss or injury to the child." In re T.P., 255 Or App 51, 56 (2013).

Area(s) of Law:
  • Juvenile Law

Kerr v. Board of Psychologist Examiners

“Voluntary disclosure of privileged material does not waive the privilege if the disclosure is itself privileged.” State v. Bassine, 188 Or App 228, 233, 71 P3d 72 (2003).

Area(s) of Law:
  • Administrative Law

SAIF v. Williams

“[T]o prove the existence and compensability of a new or omitted medical condition, the claimant must prove that his or her injury was the “material contributing cause” of the disability or need for treatment of the new or omitted condition. Schleiss v. SAIF, 354 Or 637, 643-44 (2013).

Area(s) of Law:
  • Workers Compensation

State v. Carrillo

The authority of third-party consent to a search “rests . . . on mutual use of the property by persons, generally having joint access or control for most purposes . . . it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection[.]” State v. Jenkins, 179 Or App 92, 101, 39 P3d 868 (2002).

Area(s) of Law:
  • Criminal Law

State v. De Verteuil

"Hall 'subsequently limited the reasoning in Barber . . . to personal effects, such as household furniture' and Barber’s reasoning is 'limited to situations where fair market value is not equivalent to just compensation for the loss incurred.'" Hayes Oyster Co., 170 Or App at 227-28.

Area(s) of Law:
  • Criminal Procedure

State v. Gatto

The standard to discern whether all privacy interests subject to Article I, section 9, have been given up is “whether the defendant’s statements and conduct demonstrated that he [or she] relinquished all constitutionally protected interests in the articles of property.” State v. Cook, 332 Or. 601, 608, 34 P.3d 156 (2001).

Area(s) of Law:
  • Criminal Procedure

State v. Spencer

Under OEC 901, the approach to establishing authenticity for recordings is flexible and depends on the circumstances presented and the nature of the proffered evidence. See State v. Sassarini, 300 Or App 106, 452 P3d 457 (2019). In assessing whether a proponent presented a prima facie case of authenticity, a court considers traditional factors rather than strict requirements.

Area(s) of Law:
  • Evidence

Waters v. Kippel Water Inc.

Under ORS 20.105(1) "a trial court shall award reasonable attorney fees to a party who prevails against a claim if the court determines that there 'was no objectively reasonable basis for asserting the claim.'"

Area(s) of Law:
  • Attorney Fees

Davis v. Cain

“In general, witness vouching in Oregon is considered prejudicial, so much so in fact that it sometimes requires intervention by the trial court even when parties fail to object to it.” State v. Sperou, 365 Or 121, 140, 442 P3d 581 (2019).

Area(s) of Law:
  • Post-Conviction Relief

Green Thumb Landscape and Maintenance v. BOLI

Under ORS 183.482(8)(c), the Court will review the Bureau of Labor and Industries' (BOLI’s) "factual findings for substantial evidence." The Court "does not reweigh the evidence or 'examine the record to determine whether evidence supports a view of the facts different from those found by the agency.'" Multnomah County Sheriff’s Office v. Edwards, 361 Or 761, 776, 399 P3d 969 (2017). "Rather, an agency’s findings of fact are binding on [the court] unless those findings are not supported by substantial evidence in the record viewed as a whole. Id.

Area(s) of Law:
  • Appellate Procedure

J. C. R. v. McNulty

"[W]hen conduct is expressive, the Supreme Court has held that the Oregon Constitution requires a “communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.” J. C. R. v. McNulty, 304 Or App 286, 291 (quoting State v. Rangel, 328 OR 294, 303, 977 P2d 379 (1999)).

Area(s) of Law:
  • Civil Stalking Protective Order

McMillan v. Kelly

Under Oregon law, a defendant may only be convicted as an accomplice to a crime the defendant has the specific intent to facilitate, assist, or promote; the defendant may not be convicted of every crime which is a natural and probable consequence to the specific crime. Specific intent is required for conviction based on accomplice liability. State v. Lopez-Minjarez, 350 Or 576, 582, 260 P3d 439 (2011).

Area(s) of Law:
  • Criminal Law

State v. Edwards

A lawful arrest does not, in and of itself, allow for the lawful exploratory seizure of all personal property on the arrestee’s person. The fact of arrest authorizes the seizure of limited categories of personal effects related to the probable cause for the arrest and even more limited categories of unrelated effects.

Area(s) of Law:
  • Criminal Law

State v. McCray

“If an officer threatens only to do something that the officer is legally permitted to do, the coercion caused by the threat is not constitutionally objectionable.” State v. Hirsch, 267 Or 613, 622, (1974). “In determining whether a defendant was involuntarily induced to give consent by a promise of leniency, the court considers whether the defendant reasonably understood that a promise of leniency was made and reasonably relied on the promise of leniency to give consent. State v. Marshall, 254 Or App 419, 432-33 (2013).”

Area(s) of Law:
  • Criminal Law

State v. Sunderman

“[E]vidence of a person’s past or even routine drug use, without additional evidence, does not give rise to the reasonable inference that the person currently possesses drugs.” State v. Oller, 277 Or App 529, 538, 371 P3d 1268 (2016).

Area(s) of Law:
  • Criminal Law

State v. Frick

A trial court errs when it imposes fines or fees in a written judgment that it did not include at the sentencing hearing. State v. Toombs, 302 Or App 173, 174, 460 P3d 533 (2020). Payment of fines or fees is allowed during a period of imprisonment if the court finds that the defendant has assets to pay the amounts; the defendant may challenge this finding in the trial court. ORS 161.675(1); State v. Ciraulo, 301 Or App 849, 459 P3d 960 (2020).

Area(s) of Law:
  • Sentencing

State v. Gutierrez

Under the Sixth Amendment, hearsay statements that are testimonial in nature are prohibited unless the person who made the statement is unavailable and the defendant previously had an opportunity to cross-examine the person. Crawford v. Washington, 541 US 36 (2004). The curative admissibility doctrine allows one party to counter inadmissible testimony elicited by the other party by introducing its own otherwise inadmissible testimony. State v. Apodaca, 291 Or App 268, 274-75, 420 P3d 670 (2018).

Area(s) of Law:
  • Criminal Law

State v. Silver

"In addition to and not in lieu of any other sentence it may impose, a court may require a defendant convicted under ORS 167.315 to 167.333, 167.340, 167.355 or 167.365 to forfeit any rights of the defendant in the animal subjected to the violation, and to repay the reasonable costs incurred by a government agency, a humane investigation agency or its agent or a person prior to judgment in caring for each animal associated with the criminal proceeding." ORS 167.350(1) (2013).

Area(s) of Law:
  • Wildlife Law

Rookstool-Moden Realty, LLC v. Gallagher

“To preserve an argument in a bench trial that the evidence is insufficient as a matter of law, a party is required to move for a judgment of dismissal under ORCP 54 B(2) or make ‘a timely equivalent assertion.’” Marshall v. Cannady, 291 Or App 802, 808, 423 P3d 143 (2018).

Area(s) of Law:
  • Property Law

1000 Friends of Oregon v. Linn County

Under Siporen v. City of Medford, 349 Or 247, 262, 243 P3d 776 (2010), LUBA is required “to defer to the county’s plausible interpretations of its own comprehensive plan.”

Area(s) of Law:
  • Land Use

Cargal and Long-Cargal

“A spousal support award may be modified when there has been a substantial and unanticipated change in the parties’ economic circumstances since the time of the earlier award” and whether it is "just and equitable, under the totality of circumstances.” Harp and Harp, 214 Or App 520, 523-24, 167 P3d 457 (2007). In weighing a party’s capacity to meet the demands of a support award, the court may consider what a party is currently being given, earning capacities, and prospective future earnings. Id.; see also ORS 107.135(4)(a).

Area(s) of Law:
  • Family Law

Garland and Garland

Under ORS 165.540, for a residence exception to apply to the evidence the “location of the performance of the act of recording” must take place inside the home. See State v. Rainey, 294 Or App 284, 288-90 (2018).

Area(s) of Law:
  • Family Law

Rider v. Carranza

"We ascertain the legislature’s intentions by examining the text of the statute in its context, along with any relevant legislative history, and, if necessary, canons of construction.” State v. Cloutier, 351 Or 68, 75, 261 P3d 1234 (2011) (citing State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009)).

Area(s) of Law:
  • Landlord Tenant

Dept. of Human Services v. L.A.K.

Under ORS 419B.100(1)(c), jurisdiction over a child by the juvenile court will continue if the basis for jurisdiction “continue[s] to pose a current threat of serious loss or injury, and there [is] a reasonable likelihood that the threat will be realized.” Dept. of Human Services v. J. V.-G., 277 Or App 201, 212 (2016). Furthermore, at the time the “basis for jurisdiction has ceased to exist, then the juvenile court must terminate wardship and dismiss the case.” State v. A. L. M., 232 Or App 13, 16 (2009).

Area(s) of Law:
  • Family Law

June 23 summaries

State v. Rolfe

In Oregon, two situations require a concurrence instruction: (1) “when a statute defines one crime but specifies alternative ways in which that crime can be committed” and (2) “when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime.” State v. Pipkin, 354 Or 513, 516-17, 316 P3d 255 (2013).

Area(s) of Law:
  • Civil Stalking Protective Order

State v. Fields

“Serious physical injury” means physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. K. H. H.

The interpretation of “reasonable time” is evaluated as a matter of law and thus must be looked at for abuse of discretion. State ex rel Juv. Dept. v. D.J., 215 Or. App. 146, 154-155, 168 P.3d 798 (2007).

Area(s) of Law:
  • Family Law

Jackson v. Franke

An attorney will not be found to be constitutionally inadequate and ineffective if there is an unforeseeable shift in the case law.

Area(s) of Law:
  • Post-Conviction Relief

State v. Barton

"When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations." ORS 161.067(1).

Area(s) of Law:
  • Criminal Procedure

State v. Perdew

In order for a court to award restitution, there must be evidence that shows that “medical expenses were ‘necessarily incurred.’” ORS 31.710(2)(a).

Area(s) of Law:
  • Criminal Law

State v. Zachery

"When a criminal episode violates only one statutory provision and involves only one victim, repeated violations are separately punishable if they are separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” ORS 161.067(3).

Area(s) of Law:
  • Criminal Law

Mata v. Dept. of Transportation

"An agency conducting a contested case hearing may modify a finding of historical fact made by the administrative law judge assigned from the Office of Administrative Hearings only if the agency determines that there is clear and convincing evidence in the record that the finding was wrong. For the purposes of this section, an administrative law judge makes a finding of historical fact if the administrative law judge determines that an event did or did not occur in the past or that a circumstance or status did or did not exist either before the hearing or at the time of the hearing." ORS 183.650(3).

Area(s) of Law:
  • Administrative Law

Nichols v. Persson

For state claims, when claimants assert counsel’s investigation was inadequate, prejudice means that there is “more than a mere possibility” that a “reasonable investigation” would have yielded a different result at trial. See Richardson v. Belleque, 362 Or 236, 268 (2017).

Area(s) of Law:
  • Post-Conviction Relief

State v. Parsons

Under Ramos, the damage caused by a defendant and thus would be applied in a restitution award to the plaintiff, would need to be a “reasonable foreseeable” consequence of the defendant’s actions. State v. Ramos, 358 Or. 581, 596-597, 368 P.3d 446 (2016).

Area(s) of Law:
  • Criminal Procedure

WaterWatch of Oregon v. Water Resources Department

Under ORS 543A.305(8), “’use under a hydroelectric water right’ is not limited to the use of water for hydroelectric purposes but encompasses other beneficial uses authorized by a hydroelectric water right, including in-stream use under a lease of that right.”

Area(s) of Law:
  • Water Rights

Aguilar v. Badger

“[T]he rationale for the change-in-circumstances rule is that, unless the parent who seeks a change in custody establishes that the facts that formed the basis for the prior custody determination have changed materially by the time of the modification hearing, the prior adjudication is preclusive with respect to the issue of the best interests of the child under the extant facts.” State ex rel Johnson v. Bail, 325 Or 392, 397, 938 P2d 209 (1997)

Area(s) of Law:
  • Family Law

Arrowood Indemnity Co V. Fasching

The business records exception to the rule against hearsay extends to "[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness." Rule 803(6) (ORS 40.460).

Area(s) of Law:
  • Evidence

Ghiglieri v. Tomalak

To determine if reasonable necessity for an implied easement exists, the court is to consider “what a reasonable grantee would be justified in expecting as a part of his bargain when he purchases land under the particular circumstances.” Dressler et al v. Isaacs et al, 217 Or. 586, 598-599, 343 P.2d 714 (1959).

Area(s) of Law:
  • Property Law

Oregon AFSCME Council 75 v. OJD - Yamhill County

Under ORS 243.650(1), the Employment Relation Board (ERB) may certify a labor organization as the exclusive representative of a group of public employees if ERB determines that the group would comprise an “appropriate bargaining unit.” That determination requires comparative analysis of the community interest factor in ORS 243.682(1)(a) and, if the record lacks substantial evidence or substantial reason, the Court has discretion to set aside or remand ERB’s order. ORS 183.482(7)(c).

Area(s) of Law:
  • Administrative Law

Partney v. Russell

"A pure easement appurtenant is one where the land of one person, the servient tenement, is subjected to some use or burden for the benefit of the lands of another person, the dominant tenement." Bloomfield v. Weakland, 224 Or App 433, 445 (2008).

Area(s) of Law:
  • Property Law

State v. Bates

[U]nder ORS 163.684, “the legislature intended a visual recording of sexually explicit conduct involving a child to be synonymous with “a visual recording that depicts a child in an act of sexually explicit conduct.”

Area(s) of Law:
  • Criminal Law

State v. M. C. D.

In order to continue an involuntary commitment, the State must show that a person will be put at a “nonspeculative risk of serious physical harm” due to an inability to “provide for his or her basic personal needs” if released. State v. M. A. E., 299 Or App 231, 240, 448 P3d 656 (2019). Neither homelessness nor a likely inability to obtain or prepare food is sufficient to support continued commitment. State v. C. M. C., 301 Or App 206, 213, 454 P3d 30 (2019); State v. S. T., 294 Or App 683, 685-87, 432 P3d 378 (2018).

Area(s) of Law:
  • Civil Commitment

State v. Montiel-Delvalle

To determine whether a defendant manifested an intention to relinquish a constitutionally protected interest in property, courts will consider six factors set in State v. Ipsen, 288 Or App 395, 406 P3d 105 (2017). To defeat a motion to suppress, a defendant’s relinquishment of constitutionally protected rights in property need not be permanent.

Area(s) of Law:
  • Constitutional Law

State v. Sanchez-Cacatzun

Under Article VII (Amended), section 3, of the Oregon Constitution, an appellate court must affirm a conviction, notwithstanding any error, if there is “little likelihood that the particular error affected the verdict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).

Area(s) of Law:
  • Criminal Procedure

Couey v. Clarno

ORS 250.048(10) restricts conduct, not expression, and therefore is not subject to a challenge for facial invalidity under Article I, sections 8 and 26

State v. Moore

For a sentence to be upheld, “[t]he record must affirmatively show that the court sentenced the defendant solely upon the facts of the case and his personal history, and not as punishment for his refusal to plead guilty.” State v. Fitzgibbon, 114 Or. App. 581, 587, 839 P.2d 154 (1992) (citing State v. Smith, 52 Or. App. 681, 629 P.2d 420 (1981)).

Area(s) of Law:
  • Criminal Procedure

State v. Music

"Article I, section 11, enumerates a number of rights that attach '[i]n all criminal prosecutions.' Among those rights is that the accused is entitled 'to be heard by himself and counsel.' This court has long held that the right 'to be heard by' oneself includes the right to self-representation at trial." State v. Hightower, 361 Or 412, 416 (2017)

Area(s) of Law:
  • Criminal Law

July 29 summaries

Chang v. Chun

The tort of trespass is considered strict-liability and occurs when a person intentionally goes on another’s land. Berschauer v. State Dept. of Gen. Admin., 1 Wash App 2d 1044, 2017 WL 6343652 (2017). It follows that if damages occur from the emotional distress one suffers as a result of trespass, one may recover under trespass damages. Id. at 7.

Area(s) of Law:
  • Tort Law

Kamps-Hughes v. City of Eugene

Once certain factors have been met, ORS 197.312(5)(a) requires “the development of at least one [ADU] for each detached single family dwelling,” hindered only by sitting and design specific regulations.

Area(s) of Law:
  • Land Use

Stachlowski v. 1000 Broadway Building LP

Under ORS 130.640(1), “a trustee is entitled to trustee fees paid ‘out of trust property for [e]expenses that were properly incurred in the administration of the trust.”

Area(s) of Law:
  • Trusts and Estates

State v. Alatorre

“[T]he existence of valid third-party consent depends either on the third party’s common authority over the property based on her or his own property interest." State v. Bonilla, 358 Or 475, 486 (2015)

Area(s) of Law:
  • Criminal Procedure

State v. Boekelheide

“[T]he court will refuse to adopt the meaning that would lead to an absurd result that in inconsistent with the apparent policy of the legislation as a whole.” State v. Vasquez-Rubio, 323 Or 275, 283, 917 P2d 494 (1996).

Area(s) of Law:
  • Criminal Law

State v. Bunch

For purposes of Article I, section 9, of the Oregon Constitution, a disclaimer of ownership of an item may—but does not necessarily—demonstrate an abandonment of all constitutionally protected interests in the item.

Area(s) of Law:
  • Constitutional Law

State v. Guzman-Vera

"[W]illfulness can be shown through proof that the defendant knew about the order but chose to ignore it, and then failed to comply with the order’s requirements in that state of elective ignorance: 'A party cannot ignore a court order and then claim that the act of ignoring it is not willful.'" Dept. of Rev. v. Carpet Warehouse, 296 Or 400, 407, 676 P2d 299 (1984); see Pamplin v. Victoria, 138 Or App 563, 566-67, 909 P2d 1245.

Area(s) of Law:
  • Family Abuse Prevention Act

State v. H.K.D.S.

Article I, Section 9 establishes the right “to be secure in [our] persons…against unreasonable search, or seizure,” and case law further establishes that “warrantless searches are per se unreasonable unless they fall within one of the few specifically established and limited exceptions to the warrant requirement.” State v. Biss, 363 Or 426, 430-1, 326 P3d 559 (2014).

Area(s) of Law:
  • Juvenile Law

State v. Lynch

Under Article I, section 42, of the Oregon Constitution, “a victim may not be granted restitution if that would result in a reduction of the criminal defendant’s rights afforded by the federal constitution.” State v. Barrett, 350 Or 390, 255 P3d 472 (2011). Because a defendant relinquishes many important constitutional rights when he elects to resolve his case by plea, it would be “fundamentally unfair to deprive [him] of the benefit of the bargain struck.”

Area(s) of Law:
  • Criminal Procedure

State v. Martinez

“Warrantless searches are per se unreasonable, unless the state establishes the applicability of an exception;” an exception to warrantless searches are “(1) to protect a police officer’s safety; (2) to prevent destruction of evidence; or (3) to discover evidence of the crime of arrest.” State v. Bonilla, 358 Or 475, 480, 366 P3d 331 (2015); State v. Delfino, 281 Or App 725, 727, 386 P3d 133 (2016), rev den, 361 Or 525 (2017).

Area(s) of Law:
  • Criminal Law

State v. Ramirez

In order to overcome a warrantless search on the officer safety exception, the state must prove that an officer’s subjective safety threats are objectively reasonable under the totality of the circumstances. State v. Hendricks, 213 Or. App. 360, 364, 160 P.3d 1014, rev den, 343 Or. 467 (2007).

Area(s) of Law:
  • Criminal Procedure

Berger v. Safeco Ins. Co.

ORS 742.061(3) only disqualifies a defendant from the fee exemption if the defendant raises “issues” outside the scope of the safe harbor. Robinson v. Tri-Met, 277 Or App 60, 72, 370 P3d 864 (2016), rev den, 361 Or 886 (2017).

Area(s) of Law:
  • Insurance Law

Hollister

ORS 33.460 provides a legal "change of sex” is appropriate when an applicant can “attest” that they have received “treatment” that is fitting “for the purpose of affirming gender identity.”

Area(s) of Law:
  • Appellate Procedure

LNV Corp. v. Fauley

Under ORS 18.948(2), “an objector to an execution sale of real property” must establish that: (1) the sale was “not conducted in the manner” prescribed by law and (2) “that as a result” the objector “suffered damage.” Further, a trial court’s confirmation order under ORS 18.948 is appealable.

Area(s) of Law:
  • Property Law

Lycette v. Kaiser Foundation Health Plan

Whether an attorney engaged in “deliberate misconduct” within the context of ORS 20.125 is a factual determination that will be reviewed “for any evidence in the record.” Unless the court reviewing the award finds an abuse of discretion, it will not modify the trial court’s decision.

Area(s) of Law:
  • Attorney Fees

Owen v. City of Portland

"A state statute will displace the local rule where the text, context, and legislative history of the statute ‘unambiguously expresses an intention to preclude local governments from regulating in the same area as that governed by the statute.” Gunderson, LLC v. City of Portland, 352 Or 648, 663, 290 P3d 803 (2012)

Area(s) of Law:
  • Property Law

State v. Perez-Cardenas

Reconsideration of a claim may be sought when “there has been a change in the statutes or case law since the decision of the Court of Appeals.” ORAP 6.25(1)(c).

Area(s) of Law:
  • Criminal Procedure

State v. Savage

"Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ” State v. Mozorosky, 277 Or 493, 498 (1977) (quoting Ashe v. Swenson, 397 US 436, 444 (1970)) (internal citations omitted).

Area(s) of Law:
  • Criminal Procedure

Vergara v. Patel

“If a plaintiff states a name other than defendant’s, but serves the correct entity with a copy of the original complaint, and the correct entity should have understood from the pleadings that it is the entity intended to be sued, then an amendment of the pleadings to correct the misnomer….is not a change in party.” Harmon v. Fred Meyer, 146 Or App 295, 298, 933 P2d 361 (1997).

Area(s) of Law:
  • Tort Law

Boswell v. State of Oregon

To demonstrate inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, Petitioner must prove (1) that trial counsel failed to exercise reasonable professional skill and judgment and (2) that Petitioner suffered prejudice as a result. Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

Area(s) of Law:
  • Constitutional Law

Cerner Middle East Limited v. Belbadi Enterprises LLC

"A court of this state having jurisdiction of the subject matter has jurisdiction over a party served in an action pursuant to Rule 7 under any of the following circumstances. . . [i]n any action, whether arising within or without this state, against a defendant who when the action is commenced. . . [i]s a corporation created by or under the laws of this state." ORCP 4(A)(3).

Area(s) of Law:
  • Corporations

Johnston v. Gordon Trucking-Heartland Express

"The worker must prove that employment conditions were the major contributing cause of the disease." ORS 656.802 (2)(a).

Area(s) of Law:
  • Workers Compensation

State v. Kelly

The State has the burden of showing that, in the officer’s subjective belief, getting a warrant was unreasonable due to dissipating evidence and that belief is objectively reasonable, rooted in the officer’s “contemporaneous perspective based on information known or reasonably discernible in the totality of the circumstance.” Martinez-Alvarez, 245 Or. App. 369, 376, 263 P.3d 1091 (2011).

Area(s) of Law:
  • Criminal Procedure

Torres v. Persson

“To obtain relief on a claim of inadequate assistance of counsel, petitioner must establish, by a preponderance of the evidence, that petitioner's trial counsel did not exercise the professional skill and judgment required by Article I, Section 11, of the Oregon Constitution and that petitioner suffered prejudice as a result."

Area(s) of Law:
  • Post-Conviction Relief

Waste Not of Yamhill County v. Yamhill County

Uses "may be approved only where the local governing body or its designee finds that the use will not: (a) Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use; or (b) Significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use." ORS 215.296(1)

Area(s) of Law:
  • Land Use

Durham v. Laney

In order to “support a claim for medical habeas relief,” a prisoner must allege facts which show that he or she “has a serious medical need that has not been treated in a timely and proper manner and that prison officials have been deliberately indifferent to the prisoner’s serious medical needs.” Billings v. Gates, 323 Or 167, 180-81, 916 P2d 291 (1996).

Area(s) of Law:
  • Habeas Corpus

State v. Kyger

When a person takes “a substantial step toward murder of more than one person” during a single criminal episode, but is unsuccessful in killing anyone, that person has committed the crime of attempted aggravated murder. State v. Quintero, 110 Or App 247, 256-257, 823 P2d 981 (1991), modified on other grounds on recons, 114 Or App 142, 834 P2d 496 (1992), rev den, 314 Or 392 (1992).

Area(s) of Law:
  • Criminal Law

State v. Brown

The reckless driving statute provides: “A person commits the offense of reckless driving if the person recklessly drives a vehicle upon a highway * * * in a manner that endangers the safety of persons or property.” ORS 811.140(1).

Area(s) of Law:
  • Criminal Law

State v. Odneal

“[T]he state may prove ‘a defendant’s knowledge with circumstantial evidence and reasonable inferences flowing from that evidence,' ” the inference that is made “must be one that a rational factfinder can be convinced follows beyond a reasonable doubt from the underlying facts.” State v. Bell, 220 Or App 266, 270, 185 P3d 541 (2008).

Area(s) of Law:
  • Criminal Law

August 22 summaries

Fanagyon v. State of Oregon

"[A] judgment denying claims for post-conviction relief must, at a minimum: (1) identify the claims for relief that the court considered and make separate rulings on each claim; (2) declare, with regard to each claim, whether the denial is based on a petitioner's failure to utilize or follow available state procedures or a failure to establish the merits of the claim; and (3) make the legal bases for denial of relief apparent." Datt v. Hill, 347 Or 672, 685 (2010)

Area(s) of Law:
  • Post-Conviction Relief

State v. Colpo

"A person commits the crime of criminal mistreatment in the first degree if: The person, in violation of a legal duty to provide care for a dependent person or elderly person, or having assumed the permanent or temporary care, custody or responsibility for the supervision of a dependent person or elderly person, intentionally or knowingly: Causes physical injury or injuries to the dependent person or elderly person." ORS 163.205(1)(b)(A).

Area(s) of Law:
  • Criminal Law

State v. McCarthy

“If in determining that a person is financially eligible for appointed counsel under ORS 151.485 . . . the court shall enter a limited judgment requiring that the person . . . the amount that it finds the person is able to pay without creating substantial hardship in providing basic economic necessities to the person or the person’s dependent family.” ORS 151.487(1).

Area(s) of Law:
  • Criminal Procedure

Swint v. City of Springfield

“OAR 436-060-0150(5)(h) and (6) establish specific time frames for the payment of temporary disability benefits generally, and following an ALJ’s order. . . . Therefore, we evaluate each obligation separately in determining which of the multiple issues raised by claimant's hearing request are timely and may be addressed.” Armando Morin, 68 Van Natta 1760, 1764 (2016).

Area(s) of Law:
  • Workers Compensation

Baker v. Board of Parole

The Coding Rules allow prior offenses to be counted as both “non-sexual violence” and a “sexual offense” when the same victim is effected in both convictions. Coding Rules at 60.

Area(s) of Law:
  • Parole and Post-Prison Supervision

Hardegger v. Amsberry

The possibility of a murder review hearing by the parole board [...] years in the future is not a constitutionally adequate substitute for the consideration of youth at the time of sentencing. State v. Link, 27 Or App 126, 158 (2019)

Area(s) of Law:
  • Post-Conviction Relief

J. S. E. v. Cubic

It is a respondent’s burden to demonstrate “that the concerns that underlay the issuance of the original SPO have sufficiently abated that the order should be set aside.” Benaman v. Andrews, 213 Or App 467, 476, 162 P3d 280 (2007).

Area(s) of Law:
  • Civil Stalking Protective Order

Smith v. Board of Parole

“[I]n order to prevent a case from being considered moot, a collateral consequence must be something beyond mere speculation,” that is, “a collateral consequence must have a significant probability of actually occurring; a speculative or merely possible effect is not enough.” Johnson v. Premo, 302 Or App 578, 592, 461 P3d 985, rev den, 366 Or 569 (2020).

Area(s) of Law:
  • Parole and Post-Prison Supervision

State v. Kini

If business records are ever admitted without implicating a defendant’s confrontation rights, the admissibility will be limited to those records that reflect only facts and not any types of opinions, exercises of judgment, or investigative facts that trigger the confrontation right.

Area(s) of Law:
  • Evidence

State v. Ryan

“[S]erious intellectual disability that has been determined requires evaluation of defendant’s relative culpability as part of the gravity of the offense in determining proportionality.” See Or Cont, Art I, sec 16.

Dept. of Human Services v. N. L. B.

"ORS 419B.100(1)(c) grants a juvenile court jurisdiction over a child '[w]hose condition or circumstances are such as to endanger the welfare of the person or of others[.]' Whether the “conditions or circumstances” warrant jurisdiction requires us to consider if, under the totality of the circumstances, there is a reasonable likelihood of harm to the welfare of the child." In re N.S., 258 Or App 624, 633-34 (2013).

Area(s) of Law:
  • Juvenile Law

State v. C.H.

“The state must prove a causal connection between appellant’s mental disorder and her inability to provide for her basic needs.” State v. M. G., 147 Or App 187, 192, 935 P2d 1224 (1997).

Area(s) of Law:
  • Civil Commitment

State v. Granberg

“Jurisdiction [over a defendant] does not attach until there is an indictment, preliminary hearing, or knowing waiver.” State v. Keys, 302 Or App 514, 526 (2020).

Area(s) of Law:
  • Criminal Procedure

State v. Krieger

"Under Article I, section 10, [the Court] consider[s] three factors in evaluating a speedy trial claim: (1) the length of the delay; (2) the reasons for the delay; and (3) the resulting prejudice to the defendant." State v. Mende, 304 Or 18, 21, 741 P2d 496 (1987).

Area(s) of Law:
  • Criminal Procedure

State v. Monger

"[A] search warrant shall be executed between the hours of 7 a.m. and 10 p.m. and within five days from the date of issuance." ORS 133.565(3).

Area(s) of Law:
  • Criminal Procedure

Tarr v. Multnomah County

Under ORS 215.441, “[t]he legislature intended to require counties to allow the reasonable use of land for customary religious activities, if the land is located in an area in which state law and local zoning law allow for a place of worship."

Area(s) of Law:
  • Land Use

Golik v. CBS Corp.

Under ORCP 64 B(2), “[a] former judgment may be set aside and a new trial granted in an action where there has been [jury trial] on the motion of the party aggrieved for [...] causes materially affecting the substantial rights of such party: [m]isconduct of the jury or prevailing party.”

Area(s) of Law:
  • Civil Procedure

Morris v. Dental Care Today, P. C

A claim under the Oregon Unlawful Trade Practices Act must “commence within one year” of discovery of “the unlawful method, act or practice;” the statute of limitations “begins to run when the plaintiff knows or should have known of the allegedly unlawful conduct.” ORS 646.638(6); Pearson v. Philip Morris, Inc., 358 Or 88, 137, 361 P3d 3 (2015). “Once a defendant moves for summary judgment,” the plaintiff must “produce evidence showing she can” meet her burden of proof. Sternberg v. Lechman-Su, 299 Or App 450, 456, 450 P3d 37 (2019).

Area(s) of Law:
  • Civil Law

Sander v. Nicholson

Under Oregon case law a “party who suffers interference with the right to use an easement may bring a tort claim;” “equitable claim, seeking an injunction;” or an “equitable action to enforce those obligations as servitude that run with the land to bind successors in interest.” See Landauer v. Steelman, 275 Or 135, 141, 549 P2d 1256 (1976); Andrews v. North Coast Development, 270 Or 24, 36, 526 P2d 1009 (1974); Fitzstephens v. Watson, et al, 218 Or 185, 206-10, 344 P2d 221 (1959).

Area(s) of Law:
  • Property Law

State v. N. S.

A court may commit someone to the Oregon Health Authority if, due to mental illness, the person is “unable to provide for basic personal needs that are necessary to avoid” physical harm serious enough to require treatment in the near, but not immediate, future. ORS 426.130(1)(a)(C); ORS 426.005(1)(f)(B); State v. M. A. E., 299 Or App 231, 239-240, 488 P3d 656 (2019).

Area(s) of Law:
  • Civil Commitment

State v. Nichols

“A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time.” Restatement § 914.

Area(s) of Law:
  • Remedies

State v. Rapp

Under Oregon law, a person acts knowingly with respect to criminal conduct described by statute if the person “acts with an awareness that the conduct of the person is of a nature so described.” ORS 161.085(8).

Area(s) of Law:
  • Criminal Law

September 22 summaries

Dement Ranch v. Curry County Board of Commissioners

ORS 607.020 was repealed by the legislature in 2019. However, nothing in the text of the 2017 version of ORS 607.020(5) implied a contiguity requirement when annexing into an existing livestock district.

Area(s) of Law:
  • Land Use

Dept. of Human Services v. K. G. T.

“[W]hen a parent complains that DHS has not provided adequate services, a court making ‘reasonable efforts’ determination must consider not only the burdens that the state would shoulder in providing those services, but also what benefit might reasonably be expected to flow from them.” Dept. of Human Services v. M. K., 257 Or. App. 416, 416, 306 P.3d 763 (2013).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. R. A. C.-R.

Where there is no feasible way to supply a program to a parent, DHS is not required to provide such a service in an effort to reunify a parent with a child because this would leave a child in limbo. See Dept. of Human Services v. K. G. T., 306 Or. App. 368, 381, _ P.3d _ (2020).

Area(s) of Law:
  • Juvenile Law

Gillette v. Cain

A waiver hearing transferring a juvenile into adult court is not sufficient consideration of an offender’s youth to constitutionally impose a mandatory sentence of life without parole; the sentencer must consider the offender’s youth. Miller v. Alabama, 567 US 460, 486-89, 132 S Ct 2455, 183 L Ed 2d 407 (2012); State v. Link, 297 Or App 126, 155, 441 P3d 664, rev allowed, 365 Or 556 (2019).

Area(s) of Law:
  • Post-Conviction Relief

Lowell v. Wright

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

Area(s) of Law:
  • First Amendment

Mayfield and Mayfield

Under ORS 109.744(1)(a), to conclude that it does not have continuing jurisdiction in a child-custody case, a trial court must determine: (1) the children do not have “a significant connection with Oregon” and (2) substantial evidence concerning the “care, protection, training and personal relationships” of the children are “no longer available in Oregon.” Under ORS 109.761, an Oregon court may consider “all relevant factors” to determine that “it is an inconvenient forum under the circumstances” and another court “is a more appropriate forum.”

Area(s) of Law:
  • Family Law

State v. Ankeny

The U.S. Supreme Court has reasoned that although “the officer lawfully stopped defendant for the purposes of investigation reasonably related to the apparent traffic infraction of operating a vehicle without license plates,” upon seeing the temporary permit, “the justification of any investigation was vitiated. Plain and simple, the officer had no statutory authority to proceed further. That authority ended with the officer’s discovery that the traffic infraction he was investigating had not actually occurred.” State v. Farley, 308 Or 91, 94 P2d 835 (1989).

Area(s) of Law:
  • Criminal Law

Alvarado-Depineda v. SAIF

When ambiguities are present in medical information regarding a claimant, it is the insurer’s duty to pursue clarification. Walker v. Providence Health Systems Oregon, 267 Or. App. 87, 407-408 P.3d 91 (2014) (Walker I), modified on recons, 269 Or. App. 404, 344 P.3d 1115 (2015) (Walker II).

Area(s) of Law:
  • Workers Compensation

Easley v. Bowser

To establish a claim for habeas relief, a prisoner must establish that prison officials have not treated the prisoner in a timely manner and “have been deliberately indifferent to the prisoner’s serious medical” needs; deliberate indifference requires something “more than an honest difference of medical opinion about correct diagnosis and necessary treatment.” Billings v. Gates, 323 Or 167, 180-81, 916 P2d 291 (1996).

Area(s) of Law:
  • Habeas Corpus

Minckler v. Minckler

“Modification of a spousal support award is proper if (1) the original purpose of the award has been fulfilled, or (2) subsequent changes have substantially affected one party’s ability to pay or the other party’s need for support.” Harless and Harless, 276 Or App 49, 53, 366 P3d 403 (2016) and there is consideration of the governing statute, ORS 107.135(4)(a)(A), states that “[t]he court *** shall consider income opportunities and benefits of the respective parties from all sources.”

Area(s) of Law:
  • Family Law

Snyder v. Amsberry

"ORS chapter 138 contemplates two different courses for resolving post-conviction petitions. On the one hand, a court may appoint counsel, hold a hearing, and, if appropriate, permit amendments to the petition. . . Having followed that course, a court may dismiss the petition with prejudice. . . On the other hand, a trial court may dismiss a meritless petition before appointing counsel and without a hearing but only if it dismisses without prejudice." Ware v. Hall, 342 Or 444, 453 (2007).

Area(s) of Law:
  • Post-Conviction Relief

Rogowski v. Safeco Ins. Co.

An insurer’s duty to defend its insured is determined by comparing the four corners of the complaint to the four corners of the insurance policy. West Hills Development Co. v. Chartis Claims, 360 Or 650, 653, 385 P3d 1053 (2016). Under that so-called “four-corners” or “eight-corners” rule, “[t]he insurer has a duty to defend if the complaint provides any basis for which the insurer provides coverage,” even if the complaint also asserts claims that fall outside the policy’s coverage. Ledford v. Gutoski, 319 Or 397, 403, 877 P2d 80 (1994) (emphasis in original).

Area(s) of Law:
  • Insurance Law

S.L.S. v. Tippery

“For the imminent-danger requirement to be met, the trial court had to make a finding—supported by evidence—that respondent is reasonably likely to abuse petitioner in the near future.” Hess v. Hess, 305 Or App 801, 806, P3d (2020).

Area(s) of Law:
  • Family Abuse Prevention Act

State v. M.J.F.

For a person to be found a danger to self under ORS 426.005(1)(f), they must have a mental disorder, and as a result, that disorder causes them to engage in behavior likely to result in harm to self in the near future. A present intent to commit suicide coupled with actions demonstrating that the mental disorder has resulted in harm to self is sufficient to show a danger to self.

Area(s) of Law:
  • Civil Commitment

Stokes v. Cain

"[There is no] per se rule. The proper question [for ruling on motions to withdraw] to ask is whether, given the circumstances involved, defense counsel adequately performed 'those functions of professional assistance which an accused relies upon counsel to perform on his behalf.'" State v. Davis, 345 Or 551, 581-82 (2008) (quoting Krummacher v. Gierloff, 290 Or 867, 872 (1981).

Area(s) of Law:
  • Post-Conviction Relief

Wanting and Wanting

Courts must take into consideration the statutory preference of awarding custody to a child’s primary caregiver. Nice v. Townley, 248 Or App 616, 622-623, 274 P3d 227 (2012); ORS 197.137.

Area(s) of Law:
  • Family Law

Muthukan and Easterbrook

In distributing property acquired before the marriage on dissolution of the marriage, the court is to consider only what is “just and proper in all the circumstances.” Kunze and Kunze, 337 Or 122, 135, 92 P3d 100 (2004).

Area(s) of Law:
  • Family Law

OR-OSHA v. Stahlbush Island Farms, Inc.

Under OAR 437-001-0145, a safety violation’s penalty is determined by its “probability” and “severity” ratings. The probability rating is “[t]he probability of an accident that could result in an injury or illness from a violation” and is based on a number of factors listed under OAR 437-001-0135.

Area(s) of Law:
  • Administrative Law

Running v. Kelly

“[A] petitioner must show more than it is possible that the outcome of the prosecution would have been different if counsel had performed reasonably, but need not show that it is more likely than not that the outcome would have changed.” Stomps v. Persson, 305 Or. App. 47, 56, 469 P.3d 218 (2020).

Area(s) of Law:
  • Post-Conviction Relief

Warren v. Smart Choice Payments, Inc.

“A partially integrated writing supersedes or discharges all prior agreements, written or oral, to the extent that the prior agreements are inconsistent with the partial integration.” Warren v. Smart Choice Payments, Inc., 306 Or App 634, 640 (2020).

Area(s) of Law:
  • Contract Law

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

"Barring exceptional circumstances, the requirement for a question-by-question invocation is necessary for the court to determine whether the privilege applies, by evaluating whether 'the answer to that particular question would subject the witness to a real danger of * * * crimination[,]' as opposed to 'a mere imaginary possibility of increasing the danger of prosecution.'" State v. Rodriguez, 301 Or App 404, 412 (2019) (quoting Rogers v. United States, 340 U.S. 367, 374-75 (1951))

Area(s) of Law:
  • Juvenile Law

Rowden v. Hogan Woods, LLC

Finding causation under the “major contributing cause standard”—a stricter standard than under common law—does not permit preclusive effect regarding the issue of causation in the course of a negligence action. Smothers v. Gresham Transfer, Inc., 332 Or 83, 134, 23 P3d 333 (2001), overruled on other grounds by Horton v. OSHU, 359 Or 168, 376 P3d 998 (2016).

Area(s) of Law:
  • Civil Procedure

October 12 summaries

Central Lincoln People's Utility District v. Oregon Department of Energy

...any failure to comply with ORS 469.421(8)(b)’s “full accounting” requirement in 2014 is different from the error exhibited in the 2016 ESA orders because 2015 legislative action functioned as an intervening event, and required 2016 ESA order to be issued in light of procedural flaws.

Area(s) of Law:
  • Municipal Law

Dept. of Human Services v. S. S.

DHS must show the jurisdictional judgment has no “practical effect on the rights of the parties” by rebutting the parent’s showing of “continuing practical effects or collateral consequences that, in the parent’s view, render the appeal justiciable.” Dept. of Human Services v. A. B., 362 Or 412, 426, 412 P3d 1169 (2018).

Area(s) of Law:
  • Family Law

Robinette v. Saif Corporation

“[i]n general, the workers’ compensation laws require specific written notice whenever an employer intends to deny compensation.” Caren v. Providence Health System Oregon, 365 Or 466, 484, 446 P3d 67 (2019). This notion is applicable to claims that do not blend “the work injury and the preexisting condition.”

Area(s) of Law:
  • Workers Compensation

State v. Hunt

Under ORS 138.035(3), “new or modified condition[s] of probation” does not include sanctions; sanctions imposed on a probationer by a trial court are not appealable under ORS 138.035(3).

Area(s) of Law:
  • Sentencing

State v. Vierria

Where a defendant is deprived of otherwise available options for reducing the burden associated with paying mandatory fees due to the court’s imposition of those fees outside the defendant’s presence, the error is not harmless. See, e.g., State v. Postlethwait, 303 Or App 163, 164, 459 P3d 964, rev den, 366 Or 827 (2020)

Area(s) of Law:
  • Criminal Procedure

State v. Zook

ORS 813.225(4) provides, “[t]he court may grant a petition for an extension [...] if the court finds that the defendant made a good faith effort to complete the conditions of the diversion agreement and that the defendant can complete the conditions of the diversion agreement within the requested extended diversion period.”

Area(s) of Law:
  • Criminal Law

State v. LGS-S

[T]he State was required by ORS 419C.450 to present its restitution evidence before the court concluded the adjudicatory hearing.” State v. L.G.S.-S., 307 Or App 208, 212 (2020).

Area(s) of Law:
  • Juvenile Law

Nyland v. City of Portland

"There is no applicable 'comprehensive [and exclusive] pattern for judicial review,' as there was in Bay River. Cf. Bay River, 26 Or App at 720.

Area(s) of Law:
  • Civil Procedure

State ex rel Kine v. Deschutes County

"Under our reasoning in Clark, which separated the proposed decision to extend boundaries from any subsequent potential decision about the use of land in question, a request for determination of lot-of-record status, even if a necessary antecedent to the approval of subsequently proposed development, does not constitute a request for the approval of a proposed development of land."

Area(s) of Law:
  • Municipal Law

State v. Bradley

Under ORS 161.067(3), a sufficient pause “occurs when there is a temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his [...] criminal intent.”

Area(s) of Law:
  • Criminal Law

State v. Carrera

"The consideration of prior juvenile adjudications in sentencing does not violate the sixth amendment, but, if the existence of a juvenile adjudication is offered as an enhancement factor to increase a criminal sentence, its existence must be proved to a trier of fact or admitted by a defendant for sentencing purposes following an informed and knowing waiver." State v. Harris, 339 Or 157, 175 (2005).

Area(s) of Law:
  • Criminal Procedure

State v. Martin

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” OEC 901(1). “Showing that the blood sample was a valid blood draw from defendant involves laying a traditional chain of custody foundation[.]” State v. Owens, 207 Or App 31, 41, 139 P3d 984 (2006), rev den, 342 Or 503 (2007).

Area(s) of Law:
  • Appellate Procedure

November 11 summaries

State v. McNall

The court of appeal's role is not re-weighing evidence to determine guilt because as long as the rational factfinder could conclude the state proved all the elements of the crime, the judicial system gives the jury the responsibility to decide guilt. State v. Miller (A134139), 226 Or App 52, 55 (2009).

Area(s) of Law:
  • Criminal Law

State v. Pierce

Under OEC 611, a trial court may exercise discretion to “reasonably control the presentation of evidence” but that discretion is not fundamentally fair if the court “effectively prevent[s] a party from presenting his or her case.”

Area(s) of Law:
  • Evidence

State v. Davidson

“Nothing in the text of OAR 213- 008-0003(2) precludes its application to departure sentences imposed under ORS 137.719(2).”

Area(s) of Law:
  • Criminal Procedure

Ekloff v. Persson

Four Ramsey considerations a post-conviction court may review to determine whether to allow amendment are: “(1) the nature of the proposed amendments and their relationship to the existing pleadings; (2) the prejudice, if any, to the opposing party; (3) the timing of the proposed amendments and related docketing concerns; and (4) the colorable merit of the proposed amendments.” Eklof v. Persson, 307 Or App 585, 589 (2020).

Area(s) of Law:
  • Post-Conviction Relief

Jones v. Willamette United Football Club

A permit application must be based upon “standards and criteria which shall be set forth in the zoning ordinance” or other relevant county regulation. ORS 215.416(8)(a).

Area(s) of Law:
  • Land Use

State v. Deshaw

A sex offender is required to report a change of residence within 10 days of that change; the term “‘change of residence’…refer[s] to the date of moving out of the current residence.” ORS 163A.010(3)(a)(B); State v. Cox, 219 Or App 319, 323 182 P3d 259 (2008).

Area(s) of Law:
  • Criminal Law

State v. Herfurth

“There can be no question either that the Sixth Amendment's unanimity requirement applies to state and federal criminal trials equally. This Court has long explained that the Sixth Amendment right to a jury trial is ‘fundamental to the American scheme of justice’ and incorporated against the States under the Fourteenth Amendment.” Ramos v. Louisiana, 140 S Ct 1390, 1397-98 (2020) (internal citation omitted).

Area(s) of Law:
  • Constitutional Law

State v. Kinstler

“[A] ‘proper occasion’ to give the statutory witness-false-in-part instruction exists when, considering the testimony and other evidence viewed in the light most favorable to the party requesting the instruction, the trial court concludes that sufficient evidence exists for the jury to decide that at least one witness consciously testified falsely and that the false testimony concerns a material issue.” State v. Payne, 366 Or 588, 468 P3d 445 (2020).

Area(s) of Law:
  • Evidence

State v. McQueen

ORS 163.700 provides that “a person commits the crime of invasion of personal privacy in the second degree if: [t]he person knowingly makes or records a photograph, motion picture . . . without the consent of the other person; and the person being recorded has a reasonable exception of privacy concerning the intimate area.”

Area(s) of Law:
  • Criminal Law

M. W. V. H. v. Van Hoff

To receive an SPO, the victim must show that it was “objectively reasonable for a person in the victim’s situation to have been alarmed or coerced.” ORS 30.866(1)(a),(b). Further, the conduct must have caused “reasonable apprehension,” referring to the victim’s own personal safety. ORS 30.866(1)(c).

Area(s) of Law:
  • Civil Stalking Protective Order

State v. Moore

After an amendment made in 2013, ORS 137.106 now “does not require the court to determine the amount of restitution or enter a restitution judgment within any specific time.” State v. Taylor, 300 Or App 626, 629-30, 455 P3d 609 (2019), rev den, 366 Or 493 (2020). Moreover, ORS 137.106(1)(a) allows the time for the prosecutor’s presentation of restitution information to be extended for “good cause.”

Area(s) of Law:
  • Criminal Law

December 43 summaries

Callen and Callen

"[I]f a court considers a party’s objective reasonableness in pursuing settlement as a basis to award a discretionary attorney fee, it must make that assessment ‘in the light of the parties’ circumstances and knowledge at the time the settlement was tendered and rejected and not by some post hoc reference to the result actually obtained." Erwin v. Tetreault, 155 Or App 205, 214, (1998).

Area(s) of Law:
  • Attorney Fees

Magno, LLC v. Bowden

Under ORS 19.245(2), a defendant may not challenge a default judgment. Under ORS 18.235(7), if a court determines an applicant is entitled to relief, “the court shall issue an order providing that” a money award has been satisfied in full.

Area(s) of Law:
  • Remedies

Neal v. Behind the Gates, LLC, et al.

A bankruptcy petition operates as a stay of “the commencement [...] of a judicial [...] proceeding against the debtor[.]” 11 USC §362(a)(1), without exception.

Area(s) of Law:
  • Bankruptcy Law

State v. Garibay

“A person commits the crime of unlawful use of a weapon (UUW) if the person ‘[a]ttempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapons.’” ORS 166.220(1)(a).

Area(s) of Law:
  • Criminal Law

State v. McKerrall

Under ORS 137.106, restitution must be awarded to victims for economic damages resulting from crimes of which a defendant has been convicted.

Area(s) of Law:
  • Criminal Law

State v. Ruiz-Espinosa

Under Article I, section 9, to show a defendant was unreasonably seized three standards must be met: (1) the state has the burden to establish that the officer acted lawfully; (2) the state must meet the Middleton test previously stated from the Defendant’s argument; and (3) the court must determine “whether the officer’s stated basis for extending the detention is objectively reasonable.”

Area(s) of Law:
  • Criminal Law

Troubled Asset Solutions v. Wilcher

“The rights of the parties are measured by the instrument as originally intended, and the effect of the reformation, as a whole, is to give all the parties all the rights to which they are equitably entitled under the instrument that they intended to execute.” Reformation of Instruments, 66 Am Jur 2d § 9 (2011).

Area(s) of Law:
  • Property Law

Wood v. Taylor

"A person may acquire fee simple title to real property by adverse possession only if: the person entering into possession had the honest belief that the person was the actual owner of the property." ORS 105.620(1)(b).

Area(s) of Law:
  • Property Law

B. M. v. Deaton

ORS 30.866 requires courts to "assess the objective reasonableness of a person's apprehension over personal safety by examining the cumulative effect of the relevant unwanted contacts on that person." P.M.H. ex rel. M.M.H. v. Landolt, 267 Or App 753, 759 (2014).

Area(s) of Law:
  • Civil Stalking Protective Order

State v. Beeson

Determining whether a breath test derived from a violation of Miranda requires a “totality-of-the-circumstances” examination of the facts to determine whether the causal chain between the violation and the test was broken. State v. Swan, 363 Or 121, 131, 420 P3d 9 (2018). This fact-specific analysis may include “the nature of the violation,” the time between the violation and statements, whether the suspect remained in custody, subsequent events that “may have dissipated the taint,” and other circumstances. State v. Jarnagin, 351 Or 703, 716, 277 P3d 535 (2012).

Area(s) of Law:
  • Criminal Procedure

State v. Dykstra

Under ORS 131.525 (1)(b)(B), manifest necessity includes “a legal defect in the proceeding that would make any judgment entered…reversible as a matter of law.” Without a written jury waiver, a trial court “errs in going to trial at all” and any decision made by the court must be reversed on appeal. State v. Barber, 343 Or 525, 530, 173 P3d 827 (2007).

Area(s) of Law:
  • Criminal Procedure

State v. Hallam

During a traffic stop, an officer is precluded from asking investigatory questions that are "unrelated to the original purpose of the investigation" and “without independent constitutional justification.” State v. Arreola-Botello, 365 Or 695, 712 (2019).

Area(s) of Law:
  • Criminal Law

State v. Rusen

OAR 213-012-0040(2)(a) states that “[i]f more than one term of probationary supervision is revoked for a single supervision violation, the sentencing judge shall impose the incarceration sanctions concurrently.”

Area(s) of Law:
  • Criminal Procedure

Jensen v. DMV

"The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c).

Area(s) of Law:
  • Administrative Law

M.A.B. v. Buell

"The court’s task... [in protective order cases is]... to determine whether respondent continued to be a credible threat to petitioner’s physical safety and whether she was in imminent danger of further abuse from respondent. At its core, that task required the court to forecast the future by evaluating past conduct and discerning the likelihood that abuse would occur again: a calculation laden with the peril of uncertainty that is intrinsically human." P.K.W. v. Steagall, 299 Or App 820, 825 (2019).

Area(s) of Law:
  • Family Law

Scott v. Kesselring

Under OEC 401, evidence is pertinent if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Area(s) of Law:
  • Evidence

State v. Daly

The court determined that a “‘proper occasion’ to give the witness-false-in-part instruction exists when, considering the testimony and other evidence a party has brought to the court’s attention in support of the requested instruction, the trial court concludes that sufficient evidence exists for the jury to decide that at least one witness consciously testified falsely and that the false testimony concerns a material issue.” State v. Payne, 366 Or 588, 468 P3d 445 (2020) (Payne II).

Area(s) of Law:
  • Criminal Procedure

State v. McConnell

"A trial court’s pretrial ruling is reviewed for abuse of discretion." State v. Pitt, 352 Or 566, 573-74 (2012).

Area(s) of Law:
  • Appellate Procedure

State v. Smith

Under ORS 162.247(1)(b), a “lawful order” must be given by a peace officer, and—in the case at hand—it has to be supported by reasonable suspicion.

Area(s) of Law:
  • Criminal Law

State v. Taylor

During a traffic stop, an officer is precluded from asking investigatory questions that are unrelated to the original purpose of the investigation and “without independent constitutional justification.” State v. Arreola-Botello, 365 Or 695, 712 (2019).

Area(s) of Law:
  • Criminal Law

Clackamas County Employees’ Assn. v. Clackamas County

Under ORS 243.672(1)(a), to determine if an employer violates an employee rights in regards to labor organizing, you must apply the relevant test which is “whether, objectively viewed, the action that the employer took under the particular circumstances would chill union members generally in their exercise of protected rights.” Portland Assn. Teachers v. Mult. School Dist. 1, 171 Or App 616, 624, 16 P3d 1189 (2000).

Area(s) of Law:
  • Employment Law

Dept. of Human Services v. D.L.

DHS has the burden of proof to maintain jurisdiction and, where the parent “has not internalized better techniques,” evidence that “links the ‘lack of insight to the risk of harm” will satisfy that burden. Dept. of Human Services v. J.M., 275 Or App 429, 441 364 P3d 705 (2015), rev den, 358 Or 833 (2016).

Area(s) of Law:
  • Juvenile Law

Gibson v. Walsh

“For an issue to be preserved for purposes of appeal, it must have been raised with sufficient clarity in the trial court to put the trial court on notice that it needs to rule on the issue and for the opposing party to have an opportunity to address the issue.” Ploplys v. Bryson, 188 Or App 49, 58, 69 P3d 1257 (2003).

Area(s) of Law:
  • Civil Procedure

McClusky v. City of North Bend

Under ORS 659A.001(4)(a), it is the one who reserves the right to control who is the employer, and not the agent acting on behalf of the person or entity who reserves the right to control.

Area(s) of Law:
  • Employment Law

Querbach v. Dept. of Human Services

The standard for founded dispositions of abuse is “reasonable cause to believe” abuse occurred. OAR 413-015-1010. The “reasonable cause” standard is akin to the “reasonable suspicion” standard; on review, the court must only determine “whether a reasonable person could reach” DHS’s determination. A. F. v. Oregon Dept. of Human Services, 251 Or App 576, 583-84, 284 P3d 1189 (2012).

Area(s) of Law:
  • Family Law

State v. Buckendahl

A legislatively specified penalty violates the proportionality clause of Article I, section 16, if the penalty shocks the moral sense of reasonable people because the penalty is so disproportionate when compared to the offense. State v. Rodriguez/Buck, 347 Or 46, 58 (2009). Three non-exhaustive factors that bear on that determination are “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” State v. Rodriguez/Buck, 347 Or 46, 58 (2009).

Area(s) of Law:
  • Sentencing

State v. Chorney-Phillips

In Ramos v. Louisiana, 590 U.S. ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the Supreme Court held that the Sixth Amendment requires a jury to be unanimous in order to convict a defendant of a serious offense. Even in light of that decision, for the court to address a defendant’s assignment of error which turns entirely on the sufficiency of the record to demonstrate jury unanimity “would be contrary to the basic goal of procedural fairness to the parties and to the trial court that motivates the preservation requirement.” State v. Dilallo, 367 Or 340, 348, ___ P3d ___ (2020) (internal citations omitted).

Area(s) of Law:
  • Criminal Law

State v. Dilallo

Considerations that may weigh in the balance in examining preservation of an assignment of error include: “the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.” Ailes v. Portland Meadows, Inc., 312 Or at 382 n 6.

Area(s) of Law:
  • Evidence

State v. Flores Ramos

A structural error is a “structural defect affecting the framework within which the trial proceeds,” and a reversal of the conviction is the result. Arizona v. Fulminante, 499 US 279, 310, 111 S Ct 1246, 113 L Ed 2d 302 (1991). “When a federal constitutional error is not structural, the conviction can be affirmed only if the error ‘was harmless beyond a reasonable doubt.’” Fulminante, 499 US at 307-08.

Area(s) of Law:
  • Criminal Law

State v. Kincheloe

Under the Supreme Court’s decision in Ramos v. Louisiana, 590 U.S. ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the Sixth Amendment requires a jury to be unanimous in order to convict a defendant of a serious offense.

Area(s) of Law:
  • Criminal Law

Harper v. Washburn

The proponent of impeachment evidence must “lay a sufficient foundation for” the evidence’s admission; “reasonable inferences are permissible,” but speculation and guesswork are not. State v. Hubbard, 297 Or 789, 796, 688 P2d 1311 (1984); State v. Bivins, 191 Or App 460, 467, 83 P3d 379 (2004).

Area(s) of Law:
  • Post-Conviction Relief

McCormick v. State Parks & Recreation Dept

"Except as provided in subsections (4) to (7) of this section, the immunities provided by ORS 105.682 (Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products) do not apply if the owner makes any charge for permission to use the land for recreational purposes, gardening, woodcutting or the harvest of special forest products." ORS 105.688(3).

Area(s) of Law:
  • Tort Law

Moore v. City of Eugene

“A land use regulation is defined by Measure 49 to include a “provision of a city comprehensive plan, zoning ordinance or land decision ordinance that restricts the residential use of private real property zoned for residential use.” ORS 195.300(14)(c).

Area(s) of Law:
  • Land Use

Rodriguez v. Keystone RV – Thor Industries

Area(s) of Law:
  • Employment Law

Sanders v. Vigor Fab, LLC

Tort claims are barred in Longshore and Harbor Workers’ Compensation Act (LHWCA) complaints when multiple entities are subject to single management which in turn functionally operates as a “single entity.” Claudio v. United States, 907 F Supp 581, 588 (EDNY 1995). The elements to find a single entity are: (1) operations are interrelated; (2) both entities have central management; (3) labor relations are centrally run; and (4) there is common ownership. Id. at 588.

Area(s) of Law:
  • Workers Compensation

State v. Alapai

Relevant circumstances when considering the efficacy of delayed Miranda warning are (1) “the nature of the violation”; (2) “the amount of time between the violation and any later statements”; (3) “whether the suspect remained in custody before making any later statements”; (4) “subsequent events that may have dissipated the taint of the earlier violation”; and (5) “the use that the state has made of the unwarned statements.” State v. Jarnagin, 351 Or 703, 716, 277 P3d 535 (2012) (internal quotation marks omitted).

Area(s) of Law:
  • Criminal Procedure

State v. Emerine

For the court to order restitution, “the record must support a nonspeculative inference that there is a causal relationship between the defendant’s criminal activities and the victim’s economic damages.” State v. Akerman, 278 Or App 486, 490 (2016).

Area(s) of Law:
  • Criminal Law

State v. Zamora-Skaar

“As Mink made clear, due to Oregon’s statutory scheme, a voluntary non-compliance with a court order, hence, violating a defendant’s due process rights, cannot be blamed on “lack of funds, staff, facilities.” See Oregon Advocacy Center v. Mink, 322 F3d 1101, 1121 (9th Cir 2003).

Area(s) of Law:
  • Criminal Procedure

TPC, LLC v. Water Resources Dept.

ORS chapter 539 vests exclusive subject matter jurisdiction for a stream adjudication to a particular circuit court once the stream adjudication process under that chapter is initiated.

Area(s) of Law:
  • Land Use

Whitehead v. Clarno

"An elector may sign an initiative petition if they meet the requirements of Article II, section 2 of the Oregon Constitution: United States citizenship, age, Oregon residency, and voter registration as provided by law."

Area(s) of Law:
  • Election Law

Gould v. Deschutes County

“[W]hen ORS 19.260(1)(a)(B) refers to a class of delivery ‘calculated to achieve delivery within three calendar days,’ it is referring to a class that is designed or purposefully estimated by the delivery service to achieve delivery in that time period….the class of delivery need not be one that is designed or estimated to achieve delivery as a class and in all circumstances within three calendar days; rather, the class of delivery must be designed to achieve delivery of the particular notice of appeal within that time period.”

Area(s) of Law:
  • Appellate Procedure

Mathis v. St. Helens Auto Center, Inc.

Under the reasoning of Powers v. Quigley, the “reasonable” attorney fee required by ORS 652.200(2) cannot be categorically limited through ORCP 54 E(3). 345 Or 432, 438, 198 P3d 919 (2008).

Area(s) of Law:
  • Employment Law

State v. Chapman

ORS 19.260(1)(a)(B) provides that "the date of filing a notice appeal is the date of mailing or dispatch if the notice is mailed or dispatched by a class of delivery within three calendar days and the party filing notice has proof of the mailing or dispatch date."

Area(s) of Law:
  • Appellate Procedure

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