January 13 summaries
Birdnest Mobile Estates, LLC v. MCH Prop. Mgmt., LLC
鈥淲here the bargained for but not obtained insurance would have covered the damages at issue in the case, the party who agreed but failed to obtain such insurance waived its claim against the contractual counterparty.鈥 Koch v. Spann, 193 Or App 608 (2004).
Area(s) of Law:- Contract Law
PGE v. Alfalfa Solar I, LLC
We look at the text of the relevant provisions in the context of the entire agreement. If the meaning is clear from that examination our analysis ends. Yogman v. Parrott, 325 Or 358, 361, 937 P2d 1019 (1997).听 The provisions unambiguously provide that a PPA between PGE and a QF... (2) any such term starts on the date of contract execution; (3) the fixed price option is available only for the first 15 years of that term starting on the effective date of contract execution; and (4) for a contract with a term that is longer than 15 years, the fixed price is available only for the first 15 years of the term.
Area(s) of Law:- Administrative Law
Providence Health & Services v. Mancuso
It is an unlawful practice if in the course of a person鈥檚 business, vocation, or occupation the person 鈥渄isparages the real estate, goods, services, property or business of a customer or another by false or misleading representations of fact.鈥 ORS 646.608(1)(h).
Area(s) of Law:- Insurance Law
State v. Powers
In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by [other binding authorities]. OEC 404(4).
Area(s) of Law:- Evidence
State v. Garlinghouse
Under OEC 702, expert testimony 鈥渕ust assist a trier of fact to understand the evidence or determine an issue of fact that it may not be able to understand or determine as well on its own.鈥 State v. Jesse, 360 Or 584, 594 (2016).
Area(s) of Law:- Evidence
State v. Hadd
"If a defendant is in custody or compelling circumstances, then 'police must give Miranda warnings.'鈥 State v. Roble-Baker, 340 Or 631, 638 (2006). "In determining whether the circumstances were compelling, our 'overarching inquiry is whether the officers created the sort of police-dominated atmosphere that Miranda warnings were intended to counteract.'鈥 Id. at 641.
Area(s) of Law:- Criminal Procedure
State v. Meiser
"Ordinarily, when the legislature uses different terms, we assume that the legislature intends those terms to have different meanings." Norwood v. Premo, 287 Or App 443, 451 (2017).
Area(s) of Law:- Criminal Law
Douglas County v. Fish and Wildlife Commission
An order is 鈥渁ny agency action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of an agency.鈥 ORS 183.310(6)(a). A rule is (1) any agency directive, standard, regulation or statement (2) of general applicability (3) that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency. ORS 183.310(9).
Area(s) of Law:- Administrative Law
Jaimez v. Rosales
Under ORS 20.075(1), the Court was required to consider various factors when deciding whether to award attorney fees, including the conduct of the parties, the reasonableness of their claims and defenses, the deterrence of good faith and meritless claims, the parties' diligence during the proceeding and settlement, the amount of fees for the prevailing party, and any other relevant factors.
Area(s) of Law:- Family Law
James et al. v. PacifiCorp, Inc.
Appellate review of class certification may be granted when preliminary qualifications regarding the case are met and judicial discretion allows for it. ORS 19.225 (1976).
Area(s) of Law:- Appellate Procedure
Lawson v. Cain
The Unnecessary Rigor Clause听鈥渋s addressed specifically to the treatment of persons arrested, or confined in jail,鈥 so 鈥渢here can be no argument that rights under this guarantee are forfeited by conviction of crime or under lawful police custody.鈥 Sterling, 290 Or at 619.
Area(s) of Law:- Habeas Corpus
Ride PDX, LLC v. Tee & B, LLC
The Court agreed with Defendants that the record did not support a particular statement having been made and modified the opinion to delete the last two sentences of the first full paragraph at 322 Or App at 180, accordingly.
Area(s) of Law:- Civil Law
State v. Hejazi
In determining whether a threat constitutes menacing, the court considers whether the harm was imminent or "moments away." State v. C.S., 365 P3d 535 (2015). Similarly, contact for the purpose of stalking must involve threats that instill fear of imminent and serious personal violence, which are likely to be followed by unlawful acts. State v. Rangel, 977 P2d 379 (1999).
Area(s) of Law:- Criminal Law
February 23 summaries
Flores v. Escalona
Under ORS 107.105(1)(f), the Court must consider whether a division of property is just and proper in all circumstances when deciding whether an unequal distribution of real property is warranted.
Area(s) of Law:- Family Law
State v. Boggs
A culpable mental state other than knowledge attaches to the property value element of theft in the first degree.听State v. Shedrick, 370 Or 255 (2022).听鈥淸T]he mens rea of criminal negligence includes two components: (1) A failure of the person 鈥榯o be aware of a substantial and unjustifiable risk that the circumstance exists,鈥 ORS 161.085(10); and (2) a risk of 鈥榮uch nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.鈥澨齀d.
Area(s) of Law:- Criminal Procedure
State v. Cantwell
In determining whether the fingerprint record created in the booking process is exempt from the hearsay rule by the public records exception, the court considered that it was created as part of the usual routine booking process and did not include the exercise of discretion or judgment by the booking officer. State v. Smith, 675 P2d 510 (1984).
Area(s) of Law:- Criminal Law
State v. Sells
ORS 161.125(1) provides, "voluntary intoxication 'shall not, as such, constitute a defense to a criminal charge'[.]鈥 Further, evidence of voluntary intoxication "may be offered whenever it is relevant to negat[e] an element of the crime charged.鈥 Id.
Area(s) of Law:- Criminal Procedure
State v. Wagnon
A medical charge is considered reasonable if it is at or below the market rate for the services, drugs, or other items provided. State v. Workman, 455 P3d 566 (2019).
Area(s) of Law:- Criminal Law
Hanson & Hanson Joint Revocable Living Tr. v. Sliger
鈥淎 landlord may not terminate or fail to renew a tenancy, serve notice to terminate a tenancy, bring or threaten to bring an action for possession. . . . because a tenant is, or has been, a victim of domestic violence, sexual assault, or stalking.鈥 ORS 90.499.
Area(s) of Law:- Landlord Tenant
Dept. of Human Services v. W.L.J.-E.
Under ORS 418B.504, a court may terminate parental rights if a parent's conduct or condition is seriously detrimental to the child, and it is improbable that the child will be able to return home within a reasonable time due to the conduct or conditions not likely to change
Area(s) of Law:- Family Law
Haidar v. Psychiatric Security Review Board
In determining whether there was sufficient evidence to support the denial of the request for discharge from PSRB's jurisdiction, the Court considered the evidentiary records to determine if they would make a reasonable person come to those findings. Rinne v. PSRB, Rinne v. PSRB, 443 P3d 731 (2019).
Area(s) of Law:- Administrative Law
Marshall v. Meyers
鈥淸W]e now hold that, when a petitioner seeks post-conviction relief, on Sixth Amendment grounds, from a judgment of conviction which was based on a nonunamimous verdict and which became final before the Supreme Court鈥檚 Ramos decision issued, the petitioner is entitled to relief - assuming that none of the procedural defenses in the Post-Conviction Hearings Act have been raised and sustained.鈥 Watkins v. Ackley, 370 Or 604 (2022).
Area(s) of Law:- Post-Conviction Relief
State v. Dent
The framework required for issuing a warrant upon an affidavit is 鈥(1) whether there is reason to believe that the facts are true, and (2) whether the facts and circumstances disclosed by the affidavit, if true, are sufficient to establish probable cause to justify the search requested.鈥 State v. Goodman, 328 Or 318 (1999). Charges are cross-related if they 鈥渁rise out of the same act or transaction.鈥 State v. Dulfu, 363 Or 647, 669 (2018).听鈥淸T]wo charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge.鈥 Id.
Area(s) of Law:- Criminal Law
State v. Meighan
In order for sexual assault diagnosis to be admissible, it must tell the jury something that it could not determine as well on its own by showing that the physical evidence meaningfully corroborates the diagnosis, the expert 鈥渟ignificantly relied on the physical evidence in making the diagnosis, and the diagnosis involves a complex factual determination that a lay person cannot make as well as an expert. State v. Beauvais, 357 Or 524, 354 P.3d 680 (2015).
Area(s) of Law:- Criminal Law
State v. Thomas
In order to assess double jeopardy claims, the Court considered various factors, including whether the conduct involved in both offenses was continuous and uninterrupted, whether it was linked temporally and spatially, and whether it served a single criminal objective. State v. Wilder, 471 P3d 798 (2020).
Area(s) of Law:- Criminal Law
State v. Thomas
ORS 813.131(5)(b) provides: 鈥淎 chemical analysis of a person鈥檚 urine is valid if analysis is performed in an accredited or licensed toxicology laboratory.鈥 鈥淪o long as the jury is correctly instructed that a finding of guilty cannot be made on less than proof beyond a reasonable doubt, it cannot be error to also instruct them that they may use their powers to reason and common sense, and may draw reasonable inferences from the evidence.鈥 State v. Hines, 84 Or App 681 (1987).
Area(s) of Law:- Criminal Procedure
Bd. of Cnty. Commissioners of Columbia Cnty. v. Rosenblum
Under ORS 搂 33.710 鈥淸there] are no justiciability limitations on the exercise of judicial power in public actions or cases involving matters of public interest.鈥 Couey v. Atkins, 357 Or. 460 (2015).
Area(s) of Law:- Civil Procedure
Frost v. State
The Court agreed that their use of听State v. Fults, 343 Or 515, 520 (2007) and听State v. Berndt, 282 Or App 73, 80 (2016),听rev den, 361 Or 311 (2017) could cause confusion between post-conviction relief petitions and the petition for reconsideration and removed this sentence in their previous opinion.
Area(s) of Law:- Post-Conviction Relief
Kizer Excavating Co. v. Stout Building Contractors, LLC
鈥淐laims in quantum meruit can proceed on two distinct theories: a theory based on a promise to pay for services 鈥渋mplied in fact,鈥 which 鈥渞etains a contractual character,鈥 or a theory based on an obligation 鈥榠mplied at law鈥 as necessary to avoid unjust enrichment.鈥 In re Klamp, 363 Or 62, 418 P3d 733 (2018).
Area(s) of Law:- Contract Law
Lee (House of R.E.A.P.) v. Secretary of State
ORS 65.067 does not prohibit the reinstatement of administratively dissolved corporations sole which are otherwise eligible for reinstatement under ORS 65.654.
Area(s) of Law:- Corporations
Randall v. Valk
鈥淎 notice that fails to comply with statutory requirements for its contents is invalid.鈥 See Hickey v. Scott, 370 Or 97 (2022).
Area(s) of Law:- Landlord Tenant
State v. Richey
OEC 401 provides a "very low" bar for the admission of evidence.听State v. Titus, 328 Or 475, 480-81 (1999). "Relevant evidence is evidence that matters - and thus makes a difference - to the case in which it is offered."听State v. Richey, 324 Or App 290 (2023).
Area(s) of Law:- Evidence
Twigg v. Admiral Ins. Co.
鈥淚n order for the duty to indemnify to arise, the insured must be liable for harm or injury that is covered by the policy.鈥 Ledford v. Gutoski, 319 Or 397, 405听(1994).听The Supreme Court has held, "there can be no 鈥榓ccident,鈥 within the meaning of [an insurance]听policy, when the resulting damage is merely a breach of contract.鈥 Oak Crest Const. Co. v. Austin Mutual Ins. Co., 329 Or 620,听626 (2000).
Area(s) of Law:- Insurance Law
Dep't. of Human Services v. Lindsey
The Court explained that in determining the protected activity under the Anti-SLAPP statute, the court must engage in a two-step burden shifting process. First, the court must determine whether the defendant has met its initial burden to show that the claim against which the motion is made arises out of one or more protected activities described in subsection (2) of the statute. Second, if the defendant meets its burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. Young v. Davis, 314 P3d 350 (2013).
Area(s) of Law:- Civil Law
State v. Brunkal
To preserve an issue for appeal, the appellant must provide the trial court with a specific objection that affords the court an opportunity to analyze any alleged error. State v. Wyatt,听331 Or 335, 344-46 (2000).
Area(s) of Law:- Criminal Procedure
State v. Donato
鈥淎n order given under ORS 162.247(1)(b) is 鈥榣awful鈥 if it is authorized by, and is not contrary to, substantive law.鈥 State v. Kreis, 365 Or 659 (2019). 鈥淸T]he term lawful order in ORS 162.247(1)(b) does not create an opening for unequal or discretionary application鈥 and 鈥渓eaves nothing to the ad hoc judgment of an individual police officer.鈥 State v. Navickas, 271 Or App 447 (2015).
Area(s) of Law:- Criminal Procedure
March 38 summaries
J.W.V. v. J.L.W.
Under ORS 109.350(1),the standard for granting a petition for adoption provides, "the court is satisfied as to the identity and relations of the persons, that the petitioner is of sufficient ability to bring up the child and furnish suitable nurture and education, having reference to the degree and condition of the parents, and that it is fit and proper that such adoption... be effected."
Area(s) of Law:- Family Law
WaterWatch of Oregon, Inc. v. Water Resources Department
Legislative direction to use existing data and sister-agency advice in coming to a conclusion does not preclude using existing data to project future data.
Area(s) of Law:- Administrative Law
Cockey v. Mead
When it comes to legal malpractice claims, a court must consider the time when a cause of action accrues to determine when the statute of limitations starts running. The limitation period starts when the client knows or should have known every fact necessary to support their right to judgment.听Kaseberg v. Davis Wright Tremaine, LLP,听351 Or 270, 277 (2011).
Area(s) of Law:- Civil Law
Dept. of Human Services v. J.A.
鈥淎n appeal is moot when 鈥榯he court鈥檚 decision no longer will have a practical effect on the rights of the parties.鈥欌 Dept. of Human Services v. G.D.W., 353 Or 25, 292 P3d 548 (2012).
Area(s) of Law:- Juvenile Law
Hartt v. City of Keizer
Actual bias is a question of fact to be determined by the court from all of the circumstances, including the prospective juror鈥檚 demeanor, apparent intelligence, and candor during voir dire. State v. Villeda, 324 Or App 502, 507 P3d 1213 (2023).
Area(s) of Law:- Civil Procedure
State v. Aguilera
"ORS 135.703 is intended to allow civil compromise for Class C felonies that are capable of being punished as misdemeanors by operation of ORS 161.705."
Area(s) of Law:- Criminal Procedure
State v. Cage
An officer has authority to stop a person if they "reasonably suspect - based on specific articulable facts - that the person committed a specific crime or type of crime or was about to commit a specific crime or type of crime." (quoting,听State v. Maciel-Figueroa, 316 Or 163, 182 (2017).听Reasonable suspicion cannot be established from evidence acquired after a stop.听State vl. Ellis,听252 Or App 382, 389听(2012).听When relying solely on a 9-1-1 report, the report must have an 鈥渋ndicia of reliability.鈥澨齋tate v. Villegas-Varela, 132 Or App 112, 115 (1994.)
Area(s) of Law:- Criminal Procedure
State v. Serrano
Under State v. Mansor, 363 Or. 185 (2018), individual privacy interests prevent the state from using evidence outside the scope of the original warrant.
Area(s) of Law:- Constitutional Law
State v. Vanorden
ORS 166.070(1)(c), defines aggravated harassment as 鈥渋ntentionally propelling saliva at the public safety officer, and the saliva comes into physical contact with the public safety officer[.]"
Area(s) of Law:- Criminal Law
State v. Villeda
鈥淎ctual bias is a question of fact to be determined by the court from all of the circumstances, including the prospective juror鈥檚 demeanor, apparent intelligence, and candor during voir dire.鈥 State v. Barone, 328 Or 68, 74 (2000). 鈥淭he fact that a prospective juror has formed opinions about matters relevant to the case is not itself cause to exclude that juror based upon actual bias.鈥 Id. 鈥淸R]ehabilitation [of a biased prospective juror] occurs with evidence sufficient to allow the trial court to find that the juror has an unqualified and unequivocal commitment to serving fairly and without bias.鈥 State v. Carter, 205 Or App 460, (2006).
Area(s) of Law:- Civil Procedure
Yamhill County v. Real Property
Under Article XV, section 10 of the Oregon Constitution, forfeiture of real property is criminal punishment, therefore forfeiture proceedings must be consolidated with criminal proceedings to avoid the Fifth Amendment prohibition against double jeopardy.
Area(s) of Law:- Constitutional Law
City of Springfield v. Kellim
鈥淸T]he government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.鈥 Ward v. Rock Against Racism, 491 US 781, 791 (1989).
Area(s) of Law:- Criminal Law
Dept. of Human Services v. R.W.C.
Juvenile courts may order psychological evaluations as part of the Department of Human Service's treatment plan for parents of children under the court's jurisdiction in cases of adoption as well as reunification under ORS 419B.387.
Area(s) of Law:- Juvenile Law
Pulley v. Herndon
ORS 109.119 鈥渇ocuses on whether present circumstances cause present detriment to the child,鈥 and the circumstances must 鈥減ose a serious present risk of psychological, emotional, or physical harm.鈥 O鈥橠onnell-Lamont and Lamont, 337 Or 86, 112-13, 91 P3d 721 (2004), cert den, 543 US 1050 (2005).
Area(s) of Law:- Family Law
State v. Gabr
Motions to suppress rightfully made when evidence at trial is tainted by illegal search and seizure. Additionally, arguments materially altering the record may not be allowed at appeals when unpreserved below.
Area(s) of Law:- Criminal Law
State v. Neill
Where defendant and the state enter a plea agreement, and pursuant that agreement, agree to a stipulated sentence in the event probation is violated, that sentence is precluded from appeals under ORS 138.105(9) because defendant had explicitly agreed to that sentence in the event of that condition.
Area(s) of Law:- Appellate Procedure
State v. True
An encounter with an officer cannot be considered a seizure unless the officer's actions would lead a reasonable person to believe that they were not free to leave. State v. Leiby, 293 Ore. App. 293 (Or. Ct. App. 2018). Regarding breath test validity, "[n]othing in the rule requires that a DUII suspect be allowed to rinse his mouth during the pre-test waiting period... the rule prohibits it." State v. Goddard, 87 Ore. App. 130, 131 (Or. Ct. App. 1987).
Area(s) of Law:- Criminal Law
Hoover v. Industrial Scrap Corp.
In determining attorney fees, a court should review the factors in ORS 20.075(1) and (2) which includes conduct of parties during the transaction and reasonableness of claims and defenses asserted by parties.
Area(s) of Law:- Attorney Fees
State v. Copeland
[T]he less-satisfactory evidence instruction must be supported by a showing that (1) the evidence the state did not present was reasonably available, and (2) the evidence was stronger than other evidence the state offered. State v. Hendershott, 131 Or App 531, 535-36, 887 P2d 351 (1994), rev den, 320 Or 587 (1995).
Area(s) of Law:- Evidence
State v. Hall
Article I, section 9, is implicated if a private person under-takes a search or seizure at the state鈥檚 behest. [T]he state asks a private person to search 鈥溾榓 particular place or thing, and if the private person acts because of and within the scope of the state鈥檚 request,鈥欌 the private person鈥檚 actions implicate Article I, section 9. State v. Sines, 359 Or 41, 50, 379 P3d 502 (2016).
Area(s) of Law:- Criminal Procedure
State v. Halvorson
鈥淓conomic damages鈥 do not include attorney fees that a victim chooses to incur in order to obtain restitution in a criminal matter. Fox II,听370 Or 456, 469-70 (2022).
Area(s) of Law:- Attorney Fees
State v. Johnson
A case becomes moot when the Court鈥檚 decision 鈥渨ill no longer have a practical effect on the rights of the parties.鈥 State v. K.J.B., 362 Or 777, 785, 416 P3d 291 (2018).
Area(s) of Law:- Criminal Law
State v. P.B.S.
鈥淎n error is 鈥榩lain鈥 when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences.鈥 State v. Vanornum, 345 Or 614, 629, 317 P3d 889 (2013).
Area(s) of Law:- Civil Commitment
State v. Parra-Sanchez
If a defendant uses a child to create a display of sexually explicit conduct, then, under ORS 163.670, there must be an objective examination of the characteristics from the perspective of the viewer of the display.
Area(s) of Law:- Criminal Law
State v. Rytting
ORS 162.205 provides: 鈥(1) A person commits the crime of failure to appear in the first degree if the person knowingly fails to appear as required after: (a) Having by court order been released from custody or a correctional facility under a release agreement or security release upon the condition that the person will subsequently appear personally in connection with a charge against the person of having committed a felony; or (b) Having been released from a correctional facility subject to a forced release agreement under ORS 169.046 in connection with a charge against the person of having committed a felony...鈥
Area(s) of Law:- Criminal Law
State v. Serbin
State v. Hubbell, 314 Or. App. 844 (2021) held that the crimes of possession and delivery merge because the crime of delivery cannot be committed without the crime of possession.
Area(s) of Law:- Criminal Law
State v. Soprych
Whether a defendant consents to a warrantless search turns on what the defendant intended to authorize police to search.听State v. Cross, 316 Or. App. 506, 512-13 (2021);听See also,听State v. Blair, 361 Or. 527 (2017).
State v. Stone
It is legal error after Owen to fail to instruct the jury "that the defendant must act with a culpable mental state as to the injury element" to be found guilty of second-degree assault. State v. Hatchell, 322 Or App 315, 519 P3d 563 (2022).
Area(s) of Law:- Criminal Law
State v. Vesa
A valid warrant must 鈥渄escribe with specificity the information related to the alleged criminal conduct which there is probable cause to believe will be found on the electronic device鈥. State v. Mansor, 363 Or. 185, 218 (2018).
Area(s) of Law:- Criminal Law
Bush v. City of Prineville
In order to designate an appellant as the prevailing party for purposes of awarding costs, ORAP 13.05(3) requires that "the court reverses or substantially modifies the judgment . . . Otherwise, the respondent is the prevailing party."
Area(s) of Law:- Appellate Procedure
Champion v. Employment Dep't
A board鈥檚 order will be remanded if the 鈥渙rder 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.鈥 ORS 183.482(8)(c).
Area(s) of Law:- Employment Law
Denning v. Board of Parole
Similarly to how the Fifth Amendment does not permit a witness to fail to comply with a subpoena to appear as a witness but rather requires them to invoke their privilege on a question-by-question basis, a sex offender subject to random polygraph examinations may not disregard such examinations based on the Fifth Amendment.
Area(s) of Law:- Parole and Post-Prison Supervision
Manning v. Kelly
The prohibition on vouching ensures 鈥渢hat the jury鈥檚 role in assessing witness credibility is not usurped by another witness鈥檚 opinion testimony.鈥 State v. Chandler, 380 P.3d 932, 936 (2016).
Area(s) of Law:- Post-Conviction Relief
Martin v. Dept. of Human Services
A circuit court鈥檚 role in reviewing a founded disposition under ORS 183.484(5) is to determine 鈥渨hether substantial evidence in the record 鈥榲iewed as a whole鈥 supports the agency鈥檚 determinations and that the standard is based on whether that record 鈥榳ould permit a reasonable person to make that finding.鈥欌 Querbach v. Dept. of Human Services, 369 Or 786, 789-90 (2022).
Area(s) of Law:- Family Law
State v. Champagne
The court鈥檚 balancing fell within the permissible range of the court鈥檚 discretion, particularly in light of the state鈥檚 need to cross-examine Bourg, the limitations imposed on B鈥檚 testimony, and the use of a limiting instruction. See Powers, 323 Or App at 567-68 (holding that, in light of the LeMay factors, the court acted within its discretion to admit evidence of past abuse to show sexual purpose).
Area(s) of Law:- Criminal Law
State v. Leake
鈥淔irearms carried openly in belt holsters are not concealed within the meaning of [statute for unlawful possession of a firearm].鈥 ORS 166.250(3). However, holsters that are concealed by clothing can be considered concealed weapons.
Area(s) of Law:- Criminal Law
State v. Perez
A trial court has discretion to order physical restraint of a defendant if there is sufficient evidence of a substantial risk of dangerous or disruptive behavior including the risk of assaultive conduct toward other persons and the risk of an attempted escape from custody. State v. Washington, 355 Or 612, 628, 330 P.3d 596 (2014).
Area(s) of Law:- Criminal Procedure
Sunny Oaks, Inc. v. Dep鈥檛 of Hum. Servs.
The court may remand for further agency action only 鈥渨hen the petitioner demonstrates that the agency鈥檚 failure to adhere to the rule or rules compromised the petitioner鈥檚 ability to have a fair hearing.鈥 Gleason v. Oregon Racing Comm., 233 Or App 164, 169, 225 P3d 123 (2010).
Area(s) of Law:- Administrative Law
April 26 summaries
State v. Baker
鈥淐riminal negligence requires that a defendant 鈥榝ail[ed] to be aware of a substantial and unjustifiable risk鈥 such that the 鈥榝ailure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.鈥欌 ORS 161.085(10).
Area(s) of Law:- Criminal Law
Cantu v. Progressive Classic Ins. Co.
鈥淚nsurance policy provisions in the written contract that are less favorable in any respect to the insured or the beneficiary are unenforceable. A policy may exclude or soften an authorized term that disfavors insureds or add a term that is neutral or favors insureds without violating the statute.鈥 ORS 742.504
Area(s) of Law:- Insurance Law
Davis & Galm, LLC v. Neve
鈥淸U]nder Oregon law, 鈥榯he plaintiff鈥檚 concrete stake in the outcome must continue throughout the pendency of the case.鈥 [Couey v. Atkins, 357 Or 460, 469 (2006)]. If plaintiffs鈥 concrete stake in the outcome evaporates after initiation of the action, the case becomes moot and must be dismissed for want of justiciability. Id.鈥
Area(s) of Law:- Civil Procedure
Dep't of Human Services v. L.B.
鈥淎ctive efforts鈥 are those that are 鈥渁ffirmative, active, thorough, timely, and intended to maintain or reunite an Indian child with the Indian child's family,鈥 and require a higher standard than reasonable efforts. ORS 419B.645(1),(3).
Area(s) of Law:- Juvenile Law
Petix v. Gillingham
"Declaratory judgement actions are generally not the proper subject of a motion to dismiss, unless there is 'want of a justiciable controversy'." Doe v. Medford School District, 549C, 232 Or App 38 at 45 (2009)
Area(s) of Law:- Civil Procedure
State v. Ortiz
"Evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power. The function of the court is to ensure that the persuasive appeal is legitimate." State v. O'Key, 321 Or 285, 291, 899 P2d 663 (1995).
Area(s) of Law:- Evidence
State v. Redding
鈥淎 lane is an area of a highway designated for a particular use by a single line of vehicles, and to which specific driving duties apply.鈥 State v. Thomas, 104 Or App 126, 129, (1990).
Area(s) of Law:- Criminal Law
Aaron v. Kelly
To establish that trial counsel rendered inadequate assistance under Article I, section 11 of the Oregon Constitution, one must prove that 1) counsel 鈥溾榝ailed to exercise reasonable professional skill and judgment,鈥欌 and 2) that Defendant 鈥溾榮uffered prejudice as a result of counsel鈥檚 inadequacy.鈥欌 Johnson v. Premo, 360 Or 688, 699, 399 P3d 431 (2017). Similarly, under a Sixth Amendment argument, one must to prove that 1) 鈥溾榯rial counsel鈥檚 performance fell below an objective standard of reasonableness,鈥欌 and 2) but for counsel鈥檚 errors, there was a reasonable probability that the result would have been different. Strickland v. Washington, 466 US 668, 694, 104 S Ct 2052, 80 L Ed 2d 674 (1984)
Area(s) of Law:- Criminal Law
ADL v. Lane
鈥淭o properly exercise discretion, a court must inquire into the nature of and reasons for a party鈥檚 continuance request and evaluate its merits." State v. Keerins, 145 Or App 491, 494, 932 P2d 65 (1996).
Area(s) of Law:- Family Law
Crombie v. Board of Parole and Post-Prison Supervision
鈥淭he necessity of special conditions must be determined in reference to the statutory objectives that are repeated throughout the statutes, namely, the protection of public safety and the reformation of the offender.鈥 Martin v. Board of Parole, 327 Or 147, 159, 957 P2d 1210 (1998).
Area(s) of Law:- Parole and Post-Prison Supervision
Friends of Yamhill County v. Yamhill County
"[A] 'dwelling' or 'residence' requires use as a home. A home is occupied by a group of people sharing a household - not by individuals and groups who share no social or legal relationship - on a long-term or permanent basis - not in a transitory way." 1000 Friends of Oregon v. Clackamas County, 309 Or App 499 at 453, 483 P3d 706,rev den, 368 Or 347 (2021).
Area(s) of Law:- Land Use
Hargreaves v. Matteucci
ORS 34.340 permits a court to issue a writ of habeas corpus upon a petition of the party for whose relief it is intended, "or of some other person in behalf of the party."
Area(s) of Law:- Criminal Procedure
State v. Pierpoint
A legal error constitutes a plain error if it is 鈥渟o prejudicial that an instruction to disregard [it] would not have been sufficiently curative to assure the court, in its consideration of all the circumstances, that the defendant received a fair trial.鈥 State v. Chitwood, 370 Ore. 305, 312 (2023).
Area(s) of Law:- Criminal Procedure
State v. Robintree
The Court "must affirm a defendant's conviction despite evidentiary error if there is little likelihood that the particular error affected the verdict." State v. Jones, 274 Or App 723, 728, 362 P3d 899 (2015).
Area(s) of Law:- Evidence
State v. Wimmer
"A person commits the crime of private indecency if they expose the genitals of the person with the intent of arousing the sexual desire of the person or another person and: (a) the person is in a place where another person has a reasonable expectation of privacy.鈥 ORS 163.467(1)(a). A place where another has a reasonable expectation of privacy 鈥渋ncludes, but is not limited to, residences, yards of residences, working areas, and offices.鈥 ORS 163.467(4).
Area(s) of Law:- Criminal Law
Giltner v. SAIF Corp.
The insurer must make the requested lump sum payment unless the award 鈥渉as not become final by operation of law.鈥 ORS 656.230(1)(b). An award of PPD in a notice of closure generally becomes final by operation of law 鈥60 days after its issuance.鈥 SAIF v. Coburn, 159 Or App 413 (1999).
Area(s) of Law:- Workers Compensation
Sarepta Therapeutics, Inc v. OHA
Under 42 USC section 1396r-8(d)(5), a state can 鈥渞equire, as a condition of coverage or payment for a covered outpatient drug . . . the approval of the drug before its dispensing for any medically accepted indication[.]鈥
Area(s) of Law:- Administrative Law
Sodaro v. Boyd
"A substantial-factor instruction is not required in all multiple causation cases." Haas v. Estate of Mark Steven Carter, 370 Or 742, 525 P3d 451 (2023).
Area(s) of Law:- Tort Law
State v. Baca
"[T]he legislature intended ORS 164.775 to 'punish and deter the discarding as refuse of an object in or within 100 yards of the waters of the state, regardless of any utility that the object might have in a different context.'"听State v. Essex, 215 Or App 527, 531, 170 P3d 1094 (2007).
Area(s) of Law:- Criminal Law
State v. Ovalle
鈥淸ORS 14.210(1)(c)] provides: 鈥楢 judge shall not act as judge if the judge is related to any party, or to the attorney for any party, or to the partner or office associate of any such attorney, by consanguinity or affinity within the third degree.鈥欌
Area(s) of Law:- Post-Conviction Relief
State v. Priester
鈥淎 criminal defendant has the right to have their sentence announced in open court.鈥 ORS 137.030(1). A probation condition is unconstitutionally vague under the Due Process Clause if people with common intelligence would 鈥渘ecessarily guess at its meaning鈥 or if it would 鈥渁llow[] those who enforce it to do so in an arbitrary or discriminatory manner.鈥 State v. Farris, 312 Or App 618, 624, (2021).
Area(s) of Law:- Criminal Law
State v. Severson
鈥淯nder its 鈥榩ossession theory of UUW,鈥 the state had to prove, beyond a reasonable doubt, the defendant 鈥榩ossessed the [weapon] with the intent either (1) to employ the [weapon] to inflict harm or injury or (2) to employ the [weapon] to threaten immediate harm or injury.'鈥 State v. McAuliffe, 276 Or. App. 259, 265 (2016). Also, 鈥淸a] person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury鈥 ORS 163.190(1).
Area(s) of Law:- Criminal Law
State v. Wiltse
A person commits third-degree assault if the person recklessly causes a 鈥渟erious physical injury鈥 by means of a dangerous or deadly weapon. ORS 163.165(1)(a).
Area(s) of Law:- Criminal Law
Steltz v. Cain
鈥淸ORS 34.355 provides 鈥榙iscretionary and implicit authority鈥 for the court to appoint counsel for indigent petitioners in habeas cases. Combs v. Baldwin, 161 Or App 270, 276, 984 P2d 366 (1999).鈥 Under State v. Kacin, 237 Or. App. 66, 73, 240 P3d 1099 (2010), the Court held that the habeas court 鈥渕ust provide enough information to enable appellate court to engage in meaningful review of the court's exercise of discretion.鈥
Area(s) of Law:- Habeas Corpus
JGB Enterprises, LLC, dba Twisted River Saloon v. Oregon Liquor and Cannabis Commission
Where a licensee requested a late hearing, licensee must show good cause, which requires more than "the proceedings in total" suggest licensee would request that hearing. Additionally, ORS 471.333(3), which limits the Oregon Liquor and Cannabis Commission (OCCL)'s discretion in suspending licenses in certain circumstances, may still suspend licenses where licensee violated health and safety guidelines set by Oregon Health Authority (OHA) or executive orders.
Area(s) of Law:- Administrative Law
May 26 summaries
State v. H.D.E.
鈥淚n assessing the impact of potential evidentiary error in a bench trial, 鈥榯he court鈥檚 speaking verdict and other comments must be considered in context, taking into account the circumstances in which the court made its observations and the extent to which the court鈥檚 explanation of its verdict sheds light on how it viewed the evidence.鈥欌 State v. Reed, 299 Or App 675, 689, 452 P3d 995 (2019), rev den, 366 Or 382 (2020).
Area(s) of Law:- Evidence
Baker v. State
鈥淲here the state has not asserted and proved any of the procedural defenses set out in the PCHA, a court must grant post-conviction relief for any denial of a constitutional right that is both consequential and offensive.鈥 Watkins v. Ackley, 370 Or 604, 630-31 (2022).
Area(s) of Law:- Constitutional Law
Hathaway v. B & J Property Investments, Inc.
鈥淥RS 12.125 states that 鈥榌a]n action arising under a rental agreement or [ORTLA] shall be commenced within one year.鈥欌 ORS 12.010 states that statute of limitations for actions brought under ORS chapter 12 are tolled 鈥渁fter the cause of action shall have accrued.鈥 Under Rice v. Rabb, 354 Or 721 (2014), 鈥淸a] claim 鈥榓ccrue[s]鈥 under ORS 12.010 when the 鈥減laintiff obtained knowledge, or reasonably should have obtained knowledge鈥 of the claim.鈥
Area(s) of Law:- Landlord Tenant
Kizer Excavating Co. v. Stout Building Contractors, LLC
Plaintiff did, in fact, argue that the argument made in Defendant's first assignment of error was not preserved.
Area(s) of Law:- Appellate Procedure
Kragt v. Board of Parole
"[W]hen a party requests to file a supplemental brief, the party should clearly state the reasons for the request and what the party wants to address in the supplemental brief, including notifying the court if the party intends to raise a new assignment of error or make a distinct new argument on an existing assignment of error." Kragt v. Board of Parole, 325 Or App 688, 694 (2023).听
Area(s) of Law:- Parole and Post-Prison Supervision
State v. Acosta
Under听Shedrick, "the property-value element of theft carries, at a minimum, the culpable mental state of criminal negligence."听State v. Shedrick, 370 Or 255 (2022). Further, "a jury instruction that omits an element of an offense constitutes a constitutional error."听Neder v. United States, 527 US 1, 8 (1999).
Area(s) of Law:- Criminal Procedure
State v. D.B.O.
ORS 419C.478(1) states that an order placing a juvenile in the legal custody of the Oregon Youth Authority 鈥渟hall include written findings describing why it is in the best interests of the adjudicated youth to be placed with the youth authority or department.鈥 Also, "[a] juvenile court鈥檚 failure to include findings is legal error." State ex rel Juv. Dept. v. C.N.W., 212 Or App 551, 552, 159 P3d 333 (2007).
Area(s) of Law:- Juvenile Law
State v. Howard
ORS 166.075(2) provides: 鈥淎s used in this section and ORS 166.085, 鈥榓buse鈥 means to deface, damage, defile or otherwise physically mistreat in a manner likely to outrage public sensibilities.鈥
Area(s) of Law:- Criminal Law
State v. Perkins
鈥淸A] trial court鈥檚 failure to deliver [jury] instructions . . . that the defendant acted with a culpable mental state with respect to the value of the property he took [is erroneous].鈥 State v. Shedrick, 370 Or. 255, 270 (2022).
Area(s) of Law:- Criminal Procedure
State v. Wampler
鈥淩easonable suspicion has a subjective and an objective component: an officer has reasonable suspicion when the officer subjectively believes that the person has committed a crime and that belief is objectively reasonable in light of the totality of the circumstance.鈥 State v. Moore, 264 Or App 86, 89, 331 P3d 1027 (2014).
Area(s) of Law:- Criminal Procedure
Wecker v. Salem Clinic, P.C.
In reviewing summary judgment, the court will 鈥溾榬eview a trial court鈥檚 grant of summary judgment for errors of law and will affirm if there are no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law.鈥 Thompson v. Portland Adventist Medical Center, 309 Or. App. 118, 121 (2021). "'No genuine issue of material fact exists if no objectively reasonable juror could return a verdict for the adverse party." ORCP 47 C.
Area(s) of Law:- Civil Procedure
Guzek v. Bd. of Parole
Under ORS 144.228(1)(b), 鈥淭he board is to set a release date for any person who was originally sentenced . . . as a dangerous offender when [it can] affirmatively find that 鈥榯he condition which made the prisoner dangerous is absent or in remission.鈥欌
Area(s) of Law:- Parole and Post-Prison Supervision
M. F. v. Baker
Under ORS 30.866, "if the contact in question amounts to communication by speech or writing, only a threat will be sufficient to 鈥榗ause apprehension or fear resulting from the perception of danger,鈥 as ORS 163.730 requires.鈥 State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999).
Area(s) of Law:- Civil Stalking Protective Order
Preble v. Centennial School Dist., No. 287
"Where a worker offers evidence that work was the major contributing cause of a combined condition, but the ALJ or board finds that evidence less persuasive than the employer鈥檚 contrary evidence, the worker has 'failed to establish that a work-related incident was the major contributing cause of the worker鈥檚 injury' such that the worker may pursue a civil action under the limitations set out in ORS 656.019." Preble v. Centennial School Dist., No. 287.
Area(s) of Law:- Workers Compensation
A.B.A. v. Wood
The Court does not possess inherent authority to set aside a judgement for intrinsic fraud upon the court. ORCP 71(c).
Area(s) of Law:- Civil Stalking Protective Order
KKMH Properties, LLC v. Shire
鈥淚f the violation described in the notice can be cured by the tenant by a change in conduct, repairs, payment of money or otherwise, the rental agreement does not terminate if the tenant cures the violation by the designated date. The designated date must be: (A) At least 14 days after delivery of the notice鈥︹ ORS 90.392(4)(a).
Area(s) of Law:- Landlord Tenant
State v. Brown
Under State v. Garrett, 300 Or App 671 (2019), to determine if offenses are of the same or similar character, the Court will consider 鈥渇actors such as the temporal proximity of the acts, similarities in the elements of the offenses, whether there will be similar evidence or evidentiary overlap, and whether the charges involve the same or similar victims, locations, intent, modus operandi, or acts.鈥 Under State v. Dewhitt, 276 Or App 373 (2016), 鈥渙ffenses are 鈥榗onnected together or constituting parts of a common scheme or plan鈥 when they are 鈥榣ogically related, and there is a large area of overlapping proof between them.鈥欌
Area(s) of Law:- Criminal Law
State v. Clowdus
鈥淔or purposes of [determining whether there is any evidence to support a defense], the 鈥榪uantum鈥 of evidence is irrelevant, State v. Brown, 306 Or 599, 603 n 3, 761 P2d1300 (1988), as is the existence of contrary evidence, State v. Costanzo, 94 Or App 516, 518 n 1, 766 P2d 415 (1988). 鈥榌T]he court鈥檚 role is not to weigh the evidence, but merely to determine if any evidence would support the defense.鈥 Costanzo, 94 Or App at 518 n 1.鈥
Area(s) of Law:- Criminal Law
State v. Solis
鈥淸A] trial court鈥檚 overruling of an objection to improper prosecutorial argument is reviewed for an abuse of discretion.鈥 State v. Mayo, 303 Or. App. 525, 530, 465 P3d 267 (2020).
Area(s) of Law:- Criminal Law
State v. Vannoy
鈥淯nder Article I, section 9, of the Oregon Constitution, 鈥榓 seizure occurs when (1) a police officer intentionally and significantly interferes with an individual鈥檚 liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that his or her liberty or freedom of movement has been significantly restricted.鈥 State v. Arreola-Botello, 365 Or 695, 701 (2019).
Area(s) of Law:- Criminal Procedure
State v. Williams
鈥淸T]he burden of proving jurisdictional facts in Oregon criminal cases ultimately lies with the state.鈥 State v. Hill, 277 Or. App. 751, 766 (2016).
Area(s) of Law:- Criminal Procedure
Wright v. Lutzi
Where an obvious clerical error causes a judgment to be internally inconsistent and ambiguous on its face, we may look at the record to determine the court鈥檚 true intent and instruct the trial court to modify the judgment accordingly. State v. Sullivan, 29 Or App 55, 58, 562 P2d 560 (1977).
Area(s) of Law:- Family Law
Dep鈥檛 of Hum. Servs. v. J.E.D.V.
鈥淭he test for parental unfitness focuses on 鈥榯he detrimental effect of the parent鈥檚 conduct or condition on the child, not just the seriousness of the parent鈥檚 conduct or condition in the abstract.'鈥 State ex rel SOSCF v. Stillman, 333 Or. 135, 146 (2001).
Area(s) of Law:- Family Law
Peabody v. SAIF Corp.
Absent statutory language indicating otherwise, 鈥渁 party entitled to recover attorney fees incurred in litigating the merits of a fee-generating claim also may receive attorney fees incurred in determining the amount of the resulting fee award.鈥 TriMet v.听Aizawa, 326 Or 1, 3, 403 P3d 753 (2017).
Area(s) of Law:- Workers Compensation
State v. Morales
鈥淥RS 161.095 provides 鈥 a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state鈥 (internal quotations omitted).
Area(s) of Law:- Criminal Law
State v. Zamora
A defendant cannot be convicted of both sexual abuse and using a child in display of sexually explicit conduct "unless a reasonable juror could find that the defendant caused the child to participate...in sexually explicit conduct for the defendant to observe, as opposed to the observation being incidental to the...abuse."听State v. Clay, 301 Or App 599, 605, 457 P3d 330 (2019).
Area(s) of Law:- Criminal Law
June 31 summaries
State v. J.H.
When determining witness competency under OEC 601, 鈥淸t]he proper inquiry is not whether the person is able to perceive and communicate in any capacity, but rather 鈥榳hether [the] person has sufficient ability to perceive, recollect, and communicate so it is worthwhile for the person to testify.鈥欌 State v. Sarich, 352 Or 601, 616, 291 P3d 647 (2012).
Area(s) of Law:- Juvenile Law
Lavelle-Hayden v. Emp. Dep鈥檛
鈥淯nder the Free Exercise Clause of the First Amendment, a state generally cannot deny unemployment benefits to a worker if the misconduct was the result of the worker adhering to a sincerely held religious belief.鈥 Sherbert, 374 US at 403.
Area(s) of Law:- First Amendment
Douglas County v. Fish and Wildlife Commission
OAR 635-600-6775(6)(b) explicitly allows the Oregon Fish and Wildlife Commission to start and end hatchery programs.
Area(s) of Law:- Administrative Law
Botts Marsh, LLC v. City of Wheeler
Under听Gutoski v. Lane County, 155 Or App 369, a LUBA remand would be improper only 鈥渋f (1) the applicant had at least minimally adequate notice of the local government鈥檚 interpretation of its standards in time to submit responsive materials in support of its application鈥 and 鈥(2) the applicant has not shown that it could have put in more evidence with adequate notice.鈥 鈥淚f the local government鈥檚 interpretation 鈥榩lausibly accounts for the text and context鈥 of the provision, then LUBA and [the Court] must defer to that interpretation鈥 Siporen v. City of Medford, 349 Or. 247 (2010).
Area(s) of Law:- Land Use
Curry v. Highberger
Counsel is inadequate when a petitioner establishes by a preponderance of the evidence that 鈥渃ounsel failed to exercise reasonable professional skill and judgment, and that the petitioner suf-fered prejudice as a result of counsel鈥檚 inadequacy.鈥 Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).
Area(s) of Law:- Post-Conviction Relief
Dep't of Hum. Servs. v. T.B.
ORS 419B.385 states that 鈥淸t]he court may order the parent or guardian [subject to the jurisdiction of the juvenile court] to assist the court in any reasonable manner in providing appropriate education or counseling of the ward.鈥 (Emphasis added.)
Area(s) of Law:- Juvenile Law
Gramada v. SAIF Corp.
鈥淎 finding of impairment requires (1) that there is a loss of use or function of the body part or system, and (2) that the loss is due to the compensable injury.鈥 Robinette v. SAIF, 369 Or 767, 781-82 (2022) (citing ORS 656.214). 鈥淓ach loss of use or function is to be considered separately, and a loss is 鈥榙ue to the compensable injury鈥 when the accepted condition is found to be a material cause of the loss.鈥 Johnson v. SAIF, 369 Or 707, 603 (2022); Robinette, 369 Or at 784.
Area(s) of Law:- Workers Compensation
State v. J.D.B.
Even in juvenile proceedings, 鈥渋t is a fundamental violation of due process for the state to withhold evidence that is favorable to an accused where the evidence is material to either guilt or punishment.鈥 Brady v. Maryland, 373 US 83, 87 S Ct 1194, 10 L Ed 2d 215 (1963).
Area(s) of Law:- Juvenile Law
State v. Parras
A statute restricting Second Amendment rights is only constitutional if consistent with the nation鈥檚 history of regulating firearms. New York Rifle & Pistol Assn. v. Bruen, 597 US ___, 142 S Ct 2111, 213 L Ed 2d 387 (2022).
Area(s) of Law:- Constitutional Law
State v. Stone
鈥淪econd-degree assault under ORS 163.175(1)(a) requires 鈥榌i]ntentionally or knowingly caus[ing] serious physical injury to another[.]鈥欌 鈥溾橻S]erious physical injury,鈥 鈥 is defined in ORS 161.015(8) to mean 鈥榩hysical 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.鈥欌
Area(s) of Law:- Criminal Law
Cent. Or. Landwatch v. Deschutes Cnty.
Under Deschutes County Code (DCC) 22.36.010(B)(1), 鈥渁 land use permit is void two years after the date the discretionary decision becomes final if the use approved in the permit is not initiated within that time period.鈥
Area(s) of Law:- Land Use
Dept. of Human Services v. M.G.J.
鈥淚f the case plan at the time of the hearing is to reunify the family, [the court shall] determine whether [DHS] has made reasonable efforts or, if the ward is an Indian child, active efforts as described in ORS 419B.645 to make it possible for the ward to safely return home and whether the parent has made sufficient progress to make it possible for the ward to safely return home. In making its determination, the court shall consider the ward鈥檚 health and safety the paramount concerns.鈥 ORS 419B.476(2)(a).
Area(s) of Law:- Juvenile Law
Maltais v. Peacehealth
When reviewing a judgment dismissing a complaint, the court accepts as true the facts alleged in the complaint and draws all reasonable inferences from those allegations in favor of the plaintiff.听Tomlinson v. Metropolitan Pediatrics, LLC, 362 Or 431, 434 (2018). The court must "determine whether upon the facts alleged no reasonable factfinder could decide one or more elements of liability" in favor of the plaintiff.听Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17 (1987).
Area(s) of Law:- Tort Law
Smith v. Johnson
鈥淓ven where a trial court has discretion to reach a certain outcome, it may not rely on a mistaken legal premise to reach that outcome.鈥 Anderson v. Sullivan, 311 Or App 406, 413, 492 P3d 118, rev den, 368 Or 702 (2021).
Area(s) of Law:- Landlord Tenant
State v. Cleaver
ORS 163.467 states that a 鈥減erson commits the crime of private indecency if the person exposes the genitals of the person with the intent of arousing the sexual desire of the person or another person and, inter alia, the person is in a place where another person has a reasonable expectation of privacy.鈥
Area(s) of Law:- Criminal Law
State v. D.B.O.
ORS 163.415 provides that a person commits third-degree sexual abuse when they have sexual contact with someone who does not consent with the purpose of sexual arousal. 鈥淚t is necessary for the state to establish a purpose of sexual arousal [beyond a reasonable doubt] in order to complete proof of the crime.鈥 State v. Fitch, 47 Or App 205, 208, 613 P2d 1108 (1980).
Area(s) of Law:- Juvenile Law
State v. Eggers
Conviction of 鈥渁 misdemeanor that has, as an element of the offense, the use . . . of physical force,鈥 qualifies the court to prohibit possession of a firearm or ammunition. ORS 166.255(3)(e).
Area(s) of Law:- Sentencing
State v. Ezell
OEC 404(4) states that 鈥渋n criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by 鈥 [inter alia, OEC 403] (evidence is inadmissible if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice).鈥
Area(s) of Law:- Evidence
State v. M.T.F.
ORS 163.208 states: 鈥淎 person commits the crime of assaulting a public safety officer if the person intentionally or knowingly causes physical injury to the other person, knowing the other person to be a peace officer and while the other person is acting in the course of official duty.鈥
Area(s) of Law:- Criminal Law
State v. Miles
Asportation can only be shown 鈥渨hen the defendant changes the position of the victim such that, as a matter of situation and context, the victim鈥檚 ending place is qualitatively different from the victim鈥檚 starting place,鈥 State v. Sierra, 349 Or 506, 513, 254 P3d 149 (2010), adh鈥檇 to as modified on recons, 349 Or 604, 249 P3d 759 (2011), however, that movement 鈥渕ust not be 鈥榦nly 鈥渋ncidental鈥濃 to another crime.鈥 Id. at 514.
Area(s) of Law:- Criminal Law
State v. Taylor
To admit evidence of other acts under OEC 404(3), the proponent must 鈥渁rticulate the chain of inferences that makes the evidence relevant to [an identified] purpose and explain how that chain of inferences does not depend on the actor鈥檚 character.鈥 State v. Jackson, 368 Or 705, 733, 498 P3d 788 (2021).
Area(s) of Law:- Evidence
State v. Skotland
At trial, the state cannot comment on a defendant鈥檚 failure to produce evidence when the evidence is 鈥渞elated to the defendant鈥檚 lack of knowledge.鈥 (internal quotations omitted) State v. Mayo, 303 Or App 525, 534, 465 P3d 267 (2020).
Area(s) of Law:- Criminal Procedure
State v. Wesley
鈥淎fter [State v. Hubbell, 314 Or App 844, 870-871, (2021)], where a person has taken a substantial step toward delivery of a controlled substance, but has not yet attempted the transfer itself, the person will have committed the inchoate crime of attempted delivery of a controlled substance, rather than delivery.鈥
Area(s) of Law:- Criminal Law
Andlovec v. Spoto
鈥淸F]or purposes of ORS 20.105(1), a claim, defense, or ground for appeal or review is meritless when it is entirely devoid of legal or factual support at the time it was made.鈥 Mattiza v. Foster, 311 Or 1, 8, 803 P2d 723 (1990) (footnotes omitted).
Area(s) of Law:- Attorney Fees
Bellshaw v. Farmers Ins. Co.
ORS 746.290(2)(b) requires insurers to provide notice of all of the provisions of ORS 746.280 when a relevant policy is issued. The obligation under ORS 746.290(2)(b) attaches at the time a policy is issued, not at the time a claim is made under the policy.
Area(s) of Law:- Insurance Law
State v. Brosy
Under ORS 163.185(8), a person is guilty of second-degree assault if they 鈥渒nowingly cause physical injury to another by means of a dangerous weapon." 鈥淎 鈥榙angerous weapon is any weapon, device, instrument, material, or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.鈥 ORS 163.185(1)
Area(s) of Law:- Criminal Law
State v. Gonzalez
To determine whether sentencing is proportional, courts examine 鈥(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.鈥 State v. Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659 (2009).
Area(s) of Law:- Sentencing
State v. Halvorson
鈥淸I]nvited error is no basis for reversal.鈥 State v. Harris, 362 Or 55, 67, (2017).
Area(s) of Law:- Appellate Procedure
Williamson v. Zielinski
鈥淭he burden of proof to establish that a testator had testamentary capacity is upon the proponent of the will 鈥 [h]owever when a will is executed in due form [the proponent if the will] is entitled to the benefit of a presumption that the testator is competent.鈥 Clauder v. Morser, 204 Or 378, 386 (1955). "A contestant of a will ... bears the burden to establish the existence of 鈥榓 suspicion of undue influence,鈥 meaning that (1) a 鈥榗onfidential relationship鈥 exists between the testator and the beneficiary, 鈥榮uch that the beneficiary held a position of dominance over the testator鈥; and (2) there are 鈥榮uspicious circumstances surrounding the procurement or execution of the will.鈥 Knutsen v. Krippendorf, 124 Or App 299, 308 (1993).
Area(s) of Law:- Trusts and Estates
Clark v. Eddie Bauer LLC
When consumers purchase a product based on a retailer's misrepresentations of price history or comparative prices, an ascertainable loss may occur under the meaning of the Unlawful Trade Practices Act. ORS 646.638(1).
Bush v. City of Prineville
鈥淸U]pon appeal of a judgment in an action or suit in which one or more claims are asserted for which the prevailing party may receive an award of attorney fees, the appellate court in its discretion may designate as the prevailing party a party who obtains a substantial modification of the judgment.鈥 ORS 20.077(3)
Area(s) of Law:- Appellate Procedure
July 24 summaries
State v. An Ngoc Le
鈥淓vidence used 鈥榯o demonstrate the sexual predisposition鈥 of a defendant towards a 鈥榩articular victim鈥 is admissible 鈥榯o show the sexual inclination of [the] defendant towards the victim.鈥欌 State v. McKay, 309 Or 305, 308, 787 P2d 479 (1990). The factors to be considered in determining whether a sentence would be unconstitutionally disproportionate are: 鈥(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; (3) the criminal history of the defendant.鈥 State v. Rodriguez/Buck, 437 Or 46, 58, 217 P2d 659 (2009).
Area(s) of Law:- Criminal Law
Craven and Craven
Marital assets are subject to a statutory presumption of equal contribution. ORS 107.105(1)(f)(C).
Area(s) of Law:- Family Law
DeHart v. Tofte
Under ORS 31.150, a defendant can succeed on an anti-SLAPP motion to strike after demonstrating that the defendant鈥檚 actions were in furtherance of free speech that related to a matter of public interest and that the plaintiffs had not provided evidence to support a prima facie case for their claim.
Area(s) of Law:- Tort Law
Fields v. City of Newport
Landowners who grant public access to their land for recreational use are immune from liability for injury that 鈥渁rises out of the use of the land for recreational purposes.鈥 ORS 105.682(1). 鈥淭he activity of crossing a parcel of land, by itself, is not a recreational purpose.鈥 Liberty v. State Dept. of Transportation, 342 Or 11, 21-22 (2006).
Area(s) of Law:- Civil Law
Hoover v. Industrial Scrap Corp.
A party need not prevail on all assignments of error in order to be a prevailing party.
Area(s) of Law:- Attorney Fees
IBEW Local 89 v. Wallan
ORS 183.480(1) allows 鈥渁ny person adversely affected or aggrieved by an order鈥 to seek judicial review if they can show one or more of the following: (1) the petitioner has 鈥渟uffered an injury to a substantial interest resulting directly from the challenged governmental action鈥; (2) the petitioner 鈥渟eeks to further an interest that the legislature expressly wished to have considered鈥; or (3) the petitioner has 鈥渟uch a personal stake in the outcome of the controversy as to assure concrete adverseness to the proceeding.鈥 People for Ethical Treatment v. Inst. Animal Care, 312 Or 95, 101-02 (1991).
Area(s) of Law:- Civil Procedure
Mandell v. Miller
To obtain relief, petitioners must establish that there was a 鈥渟ubstantial denial鈥 of their constitutional rights in the proceedings that resulted in their conviction. ORS 138.530(1)(a).
Area(s) of Law:- Post-Conviction Relief
Rinne v. Psychiatric Security Review Board
鈥淪ubstantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.鈥 ORS 183.482(8)(c). Substantial reason exists where the agency has articulated a rational connection between the facts and the legal conclusion that the agency draws from them. Dorn v. Teacher Standards and Practices Comm., 316 Or App 241, 243 (2021).
Area(s) of Law:- Civil Commitment
State v. Little
Probable cause has two components: (1) at the time of the stop, the officer must subjectively believe that a violation has occurred; and (2) that belief must be objectively reasonable under the circumstances. State v. Derby, 301 Or App 134, 138 (2019).
Area(s) of Law:- Traffic Infractions
State v. Rockafellor
The Confrontation Clause is 鈥減rimarily concerned with ensuring the reliability of evidence offered by witnesses, and ensuring that a defendant and jury have adequate access to witnesses 鈥 [n]o element of the right to confrontation promises the defendant that his entire face will be literally seen.鈥 Furthermore, 鈥淸w]hen an inherently prejudicial security measure is at issue, a trial court must make a determination that such restraints are justified by a state interest specific to that particular trial.鈥 Deck v. Missouri, 544 US 622, 629 (2005); State v. Guzek, 358 Or 251, 263 (2015).
Area(s) of Law:- Constitutional Law
Yocum v. Pockett
A court may use a parent鈥檚 potential income instead of that parent鈥檚 actual income 鈥(1) if one spouse contends that the other鈥檚 earning capacity exceeds his or her actual income as established at trial, the former bears the burden of establishing that fact and (2) the burden can be sustained only by reference to nonspeculative evidence of present earning capacity, and mere reliance on attenuated earning history is legally insufficient.鈥 Andersen and Andersen, 258 Or App 568, 584, 310 P3d 1171 (2013).
Area(s) of Law:- Family Law
Calef v. Employment Department
鈥淎n individual shall be eligible to receive a payment of disaster unemployment assistance with respect to a week of unemployment if: (i) the individual is not eligible for compensation (as defined in 搂 625.2(d)) for such week under any other Federal or State law, except that an individual determined ineligible because of the receipt of disqualifying income shall be considered eligible for such compensation." 20 CFR section 625.4(i).
Area(s) of Law:- Employment Law
K.E.B. v. Bradley
"In sum, to renew a FAPA restraining order, it is no longer necessary for the trial court to find an 鈥榠mminent danger of further abuse.鈥欌
Area(s) of Law:- Family Abuse Prevention Act
State v. Hampton
Only crimes directly listed by name under subsection (1) of ORS 137.717 meet the criteria for disqualifying a defendant from a downward depature in sentencing under ORS 137.717(6)(a).
Area(s) of Law:- Sentencing
State v. Moore
A defendant is guilty of second-degree disorderly conduct under ORS 166.025(1)(d) as long as there is a risk of causing public inconvenience, annoyance, or alarm. State v. Hund, 76 Or App 89, 91-92, 708 P2d 621 (1985), rev den, 300 Or 477 (1986).
Area(s) of Law:- Criminal Law
Service Employees Int鈥檒 Union Local 503 v. U of O
To determine whether 鈥渢he duty to provide an exclusive representative with requested information that has some probable or potential relevance to a grievance or other contractual matter鈥 has been fulfilled under The Public Employee Collective Bargaining Act (PECBA), the Employment Relations Board must decide whether the nature and content of the information, under the totality of the circumstances, requires the disclosure. Service Employees Int鈥檒 Union Local 503 v. U of O, 312 Or App 377, 380-81, 494 P3d 993 (2021).
State v. Koelzer
Under ORS 809.235(1)(b), a person鈥檚 driving privileges shall be permanently revoked 鈥渋f the person is convicted for a third or subsequent time of driving while under the influence of intoxicants in violation of ORS 813.010 or its 鈥渟tatutory counterpart鈥 in another jurisdiction.鈥
Area(s) of Law:- Criminal Law
Shepard Investment Group LLC v. Ormandy
When a landlord violates procedural conditions to utilize pass-through billing, a tenant may recover 鈥渁n amount equal to one month鈥檚 periodic rent or twice the amount wrongfully charged to the tenant, whichever is greater.鈥 ORS 90.315(4)(f).
Area(s) of Law:- Landlord Tenant
Dept. of Human Services v. C. H.
鈥淸I]n determining whether DHS made reasonable efforts, we consider a parent鈥檚 lack of cooperation, but we evaluate such lack of cooperation within the context of DHS鈥檚 conduct and the case circumstances.鈥 Dept. of Human Services v. R.W., 277 Or App 37, 44 (2016). 鈥淚n determining whether the parent has made sufficient progress, the juvenile court gives the highest priority to a child鈥檚 health and welfare.鈥 Dept. of Human Services v. M. K., 285 Or App 448, 460, rev den, 361 Or 885 (2017).
Area(s) of Law:- Juvenile Law
D.S.
鈥淭he rule that statutes in derogation of common law are to be strictly construed does not apply to the adoption laws of this state.鈥 ORS 109.268(1). The principal purpose of adoption is to effectuate 鈥渢he protection and promotion of the child鈥檚 best interest.鈥 F. v. C., 24 Or App 601, 608-09, cert den, 429 US 907 (1976).
Area(s) of Law:- Family Law
Davoodian v. Rivera
鈥淎 special motion to strike may be made against any claim in a civil action that arises out of any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.鈥 ORS 31.150(2)(d).
Area(s) of Law:- Civil Law
DHS v. M.M.
鈥淭o establish jurisdiction, the Department of Human Services (DHS) must prove that the child鈥檚 conditions or circumstances 鈥榩resent a current threat of serious loss or injury鈥 that is nonspeculative and reasonably likely to be realized.鈥 DHS v. C.J.T., 258 Or App 57, 61-62 (2013).
Area(s) of Law:- Juvenile Law
Duckworth v. Duckworth
鈥淥regon circuit courts have subject matter jurisdiction to decide title disputes.鈥 While circuit courts 鈥渁re free to resolve title disputes in FED actions,鈥 they 鈥渁re not necessarily required to.鈥 See Bunch v. Lowry, 313 Or App 398, 399 n 1 (2021).
Area(s) of Law:- Property Law
State v. Horton
鈥淲hether a plain error occurred does not turn on the law at the time of trial, but rather depends on the law at the time of the appellate decision.鈥 State v. McKinney/Shiffer, 369 Or 325, 333 (2022). 鈥淸N]ot instructing the jury on a mental-state requirement for the value element of criminal mischief is plain error.鈥 See State v. Morales, 326 Or App 177, 181 (2023); State v. Waterman, 319 Or App 695, 702 (2022).
Area(s) of Law:- Criminal Procedure
August 21 summaries
City of Salem v. Stadeli
The firefighter鈥檚 presumption is a rebuttable presumption that employment contributed to the employee's condition or injury. It shifts the burden of production and persuasion onto the employer. To rebut the presumption, the employer must show that the employee鈥檚 work was not a fact in consequence 鈥渙f any amount鈥 in causing the employee鈥檚 condition. City of Salem v. Stadeli, 327 Or App 396, __P3d__ (2023). The employer will generally have to 鈥渦n[-]persuade[]鈥 a tribunal that work was a fact in consequence to the employee鈥檚 condition. Id.
Area(s) of Law:- Employment Law
Blakeley v. Quality Loan Service Corp. of WA
ORS 86.797(2) plainly bars 鈥渁n action for a deficiency鈥 against 鈥渢he grantor, the grantor鈥檚 successor in interest, or another person obligated on鈥 the relevant note; however, given the text and context of the statute, that does not encompass a nonjudicial or judicial foreclosure of a trust deed.
Area(s) of Law:- Property Law
Cazun v. State
When it is 鈥渢ruly clear鈥 that removal from this country will result from a guilty plea, a trial counsel must advise a client that deportation is presumptively mandatory. Padilla v. Kentucky, 559 US 356, 369, (2010)
Area(s) of Law:- Post-Conviction Relief
Person v. Board of Parole
鈥淸T]o grant parole consideration under ORS 144.228 (1987), the board must find that the person鈥檚 severe personality disorder indicating a propensity toward continuing dangerous criminal activity is absent or in remission.鈥
Area(s) of Law:- Parole and Post-Prison Supervision
State v. Babcock
State v. Chitwood established that a prosecutor's comments must be "so prejudicial" that any sue sponte instruction by the court would be insufficient to safeguard a defendant's right to a fair trial.
Area(s) of Law:- Criminal Law
State v. Durant
Improper yet curable statements are not subject to plain error review as 鈥渢he defendant was not denied a fair trial.鈥 State v. Durant, 327 Or. App. 363, 365 (2023).
Area(s) of Law:- Criminal Procedure
State v. Humphrey
"An error is 'plain' when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences." State v. Humphrey, 327 Or.App. 344, 348 (2023).
Area(s) of Law:- Criminal Law
Albrecht v. Emmert
"[C]ourts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed." ORS 28.010. "The purpose of [a declaratory action] is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered." ORS 28.120.
Area(s) of Law:- Civil Procedure
Esquire Investments, Inc. v. Summers
鈥淧reservation rules are pragmatic as well as prudential. What is required of a party to adequately present a contention to the trial court can vary depending on the nature of the claim or argument; the touchstone in that regard, ultimately, is procedural fairness to the parties and to the trial court.鈥 Peeples v. Lampert, 345 Or 209, 220 (2008).
Area(s) of Law:- Appellate Procedure
State v. Hargrove
鈥淸A] warrant to search a digital device 鈥榤ust identify, as specifically as reasonably possible in the circumstances, the information to be searched for . . .鈥欌 State v. Mansor, 421 P.3d 323, 326 (2018) (quoting Or. Const. art. 1, 搂 9).
Area(s) of Law:- Evidence
Wolfston v. Eastside Bend, LLC.
ORS 36.705(1)(a) states: 鈥渢he court shall vacate an award made in the arbitration proceeding if 鈥 [t]he award was procured by corruption, fraud or other undue means.鈥
Area(s) of Law:- Arbitration
Yoshida v. Watson
鈥淎 motion [for an order declaring that a money award has been satisfied] . . . must include . . . [t]he date or dates and amounts of any payments on the money award. . . . [and a]ny amount that the person believes remains to be paid.鈥 ORS 18.235(3)(c), (d).
Area(s) of Law:- Civil Law
Blain v. Cain
鈥淚n the posture of a post-conviction proceeding . . . a petitioner must establish a denial of rights of constitutional magnitude 鈥榠n the proceedings resulting in [the] petitioner鈥檚 conviction.鈥欌 ORS 138.530(1)(a).
Area(s) of Law:- Post-Conviction Relief
State v. Brown
鈥淸A] court errs in failing to instruct the jury that the state bears the burden to disprove [a] defense where defendant puts it at issue." See State v. Abram, 273 Or App 449, 456 (2015); ORS 161.055(1) (The State has the burden of proof of disproving a defense beyond a reasonable doubt.); ORCP 59 B (Trial Court must instruct jury of all matters of law necessary to reach its verdict.).
Area(s) of Law:- Criminal Law
State v. Cantrell
鈥淲here a search warrant authorizes the search of multiple electronic devices, the supporting affidavit must supply probable cause 鈥榝or each device that a warrant authorizes to be searched.鈥欌 State v. Cannon, 299 Or App 616, 629 (2019). 鈥淎rticle I, section 9 [of the Oregon Constitution], requires that probable cause exist for each device authorized to be searched in a warrant.鈥 Id. at 632.
Area(s) of Law:- Criminal Procedure
Trunorth Warranty Plans of North Am., LLC v. DCBS
"Determining the intended meaning of a statute is a question of law."听DCBS v. Muliro, 359 Or 736, 742 (2016).
Area(s) of Law:- Business Law
Bacon v. Cain
To succeed on a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, the petitioner must show by a preponderance of the evidence facts demonstrating that (1) counsel failed to exercise reasonable professional skill and judgment, and (2) counsel鈥檚 failure had a tendency to affect the result of his trial. Montez v. Czerniak, 355 Or 1, 7 (2014).
Area(s) of Law:- Post-Conviction Relief
Dept. of Human Services v. T.M.M.
Under ORS 419B.500, the Court鈥檚 de novo standard for review of termination cases, 鈥渨e must be persuaded by the evidence that it is highly probable that termination of mother鈥檚 parental rights is in [the children鈥檚] best interest.鈥 Dept. of Human Services v. T.L.M.H., 294 Or App 749, 750 (2018), rev den, 365 Or 556 (2019).
Area(s) of Law:- Juvenile Law
Mayes v. Ramos
A party may recover fees associated with litigating an attorney fee award, unless 鈥渢he legislature intended to depart from that accepted practice.鈥 Trimet v. Aizawa, 362 Or 1, 14 (2017); see ORCP 68 (denoting procedure for recovering supplemental attorney fees).
Area(s) of Law:- Attorney Fees
State v. Montgomery
Counsel may not express a personal opinion of the witness鈥檚 credibility. State v. Sperou, 365 Or 121, 135 (2019); Heroff v. Coursey, 280 Or App 177, 194 (2016), rev den, 360 Or 851 (2017). 鈥淓vidence of a victim鈥檚 collateral sexual activity is not admissible to show consent to the sexual activity that is the subject of an alleged crime.鈥 State v. Beeler, 166 Or App 275, 285 (2000), rev den, 331 Or 244 (2000).
Area(s) of Law:- Criminal Procedure
State v. Rose
An out-of-jurisdiction offense is a 鈥渟tatutory counterpart鈥 of Oregon DUII only if the elements of the defendant鈥檚 prior convictions are the close equivalent, or 鈥渕atch,鈥 the elements of the Oregon offense. State v. Nelson, 318 Or App 230, 231 (2022).
Area(s) of Law:- Criminal Law
September 28 summaries
Marks v. L.C.D.C.
The IGAs are likely to have a significant impact on land use in Stafford and the surrounding area within the meaning of the significant impact test due to the control over expansion of the UGB and timing of concept planning. See, e.g., Hemstreet v. Seaside Improvement Commission, 93 Or App 73, 75, 761 P2d 533 (1988) (articulating significant impact test).
Area(s) of Law:- Land Use
Mouktabis v. Clackamas County
ORS 31.150 provides a mechanism for a defendant to move to strike certain nonmeritorious claims predicated on speech and petitioning activity potentially entitled to constitutional protection.鈥 Tokarski v. Wildfang, 313 Or App 19, 21, 496 P3d 22, rev den, 368 Or 788 (2021). Accordingly, reports to the police about whether court orders are being violated 听are "matters of public interest" under ORS 31.150(2)(d) because they implicate public safety and effective governance.听
Area(s) of Law:- First Amendment
State v. Forbes
Special conditions of probation must be 鈥渞easonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer[.]鈥 ORS 137.540(2). 鈥淲e will not hold that a probation condition is invalid simply because we can posit an alternative 鈥榤ore narrowly tailored鈥 condition.鈥 State v. Maack, 270 Or App 400, 411 (2015).
Area(s) of Law:- Sentencing
State v. Miller
鈥淰ouching refers to the expression of one鈥檚 personal opinion about the credibility of a witness.鈥 State v. Chandler, 360 Or 323, 330-31 (2016) (internal quotations omitted). 鈥淐redibility determinations are the exclusive province of the jury, so witnesses are categorically prohibited from expressing a view on whether another witness is telling the truth.鈥 State v. Middleton, 294 Or 427, 438 (1983) (internal quotations omitted).
Area(s) of Law:- Evidence
Buchanan v. Buchanan
Courts are not required to determine a predominantly prevailing party in a domestic action for purposes of awarding attorney fees.听Saunders v. Saunders, 975 P2d 927 (1999). Courts are required to consider the financial resources of the parties when awarding attorney fees. Dang and Chun, 242 P3d 680 (2010).听
Area(s) of Law:- Family Law
DHS v. C.E.S.
Under ORS 192.001(c), the State has 鈥渁 responsibility to ensure orderly retention and destruction of all public records, whether current or noncurrent, and to ensure the preservation of public records of value for administrative, legal, and research purposes鈥 (emphasis added).
Area(s) of Law:- Juvenile Law
Martin v. Kelly
Claims that trial counsel failed to provide adequate representation requires evidence that counsel's efforts were (1) constitutionally inadequate, and (2) prejudicial. Trujillo v. Maas, 312 Or 431, 435 (1991).
Area(s) of Law:- Post-Conviction Relief
Newton v. Kelly
A post-conviction claim of actual innocence requires an "exacting standard of proof" from the defendant. Reeves v. Nooth, 432 P3d听1105 (2018). Defense counsel does not render inadequate assistance just because they did not predict that the United States Supreme Court would later decide that conviction by a nonunanimous jury was unconstitutional. Smith v. Kelly, 508 P3d 77 (2022).
Area(s) of Law:- Post-Conviction Relief
ODOT v. Pacific Indemnity Co.
The 鈥渇our corners鈥 rule imposes a duty to defend when the complaint alleges facts, if proved true, which would impose liability covered by the policy. See West Hills Development Co. v. Chartis Claims, 360 Or 650, 653 (2016).
Area(s) of Law:- Insurance Law
Peeler v. Reyes
Under federal law, 鈥渁bsent misrepresentation or other impermissible conduct by state agents 鈥 a voluntary plea of guilty intelligently made in the light of then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.鈥 Brady v. United States, 397 US 742, 756-57 (1970).
Area(s) of Law:- Post-Conviction Relief
Ricard v. Klamath Falls Forest Estates Homeowners' Association
Plaintiffs alleging housing discrimination must either show 鈥渄irect evidence of discriminatory intent鈥 or indirect evidence such that a reasonable factfinder could infer discriminatory intent, like similarly situated individuals not in the protected class claimed by plaintiff treated differently. See Miller v. Racing Commission, 298 Or App 70, 90 (2019); Groshong v. Mutual of Enumclaw Ins. Co., 143 Or App 450, 457 (1996), aff鈥檇, 329 Or 303 (1999).
Area(s) of Law:- Disability Law
Snodgrass v. Miller
In agreeing to a post-conviction waiver, 鈥淸the person] assumes the risk that 鈥榯he law could change in [their] favor,鈥 when the person knowingly and voluntarily agrees to a bargain that includes a waiver of subsequent challenge.鈥 Snodgrass v. Miller, 328 Or. App. 1, 5 (2023).
Area(s) of Law:- Post-Conviction Relief
State v. Cannon
The determination of whether an image is 鈥渙bjectively lewd鈥 鈥渕ust be made through an examination of the characteristics of the exhibition as it would be perceived by a viewer of the display or recording, and not through an examination of the subjective intentions of the child, the intended viewer, or the person creating the display.鈥 Parra-Sanchez, 324 Or. App. 712, 733 (2023).
Area(s) of Law:- Criminal Law
State v. Sell
A fair trial is one in which 鈥渢he verdict is based on the evidence and not on factors external to the proof at trial.鈥 State v. Osorno, 264 Or App 742, 748 (2014). When a defendant claims that the jury could not follow instructions, the defendant must show an 鈥渙verwhelming probability鈥 that the jury failed to do so. State v. Garrett, 292 Or App 860, 868 (2018).
Area(s) of Law:- Criminal Procedure
Wall v. Ash
Generally, 鈥渇or a judgment to effect a preclusion of further litigation [...] it must be a final judgment 鈥榦n the merits.鈥 鈥 Rennie v. Freeway Transport, 294 Or 319, 330 (1982). When parties sign a settlement agreement and the Plaintiff dismisses the underlying action with prejudice, that judgment does not automatically preclude further litigation.
Area(s) of Law:- Contract Law
DHS v. A.C.S.G.
鈥淎n appeal is moot when a decision will no longer 鈥榟ave a practical effect on the rights of the parties[,]" and DHS has that burden of proof. Dept. of Human Services v. G.D.W., 292 P3d 548 (2012). Under ORS 419B.639(2)(a), DHS is only required to send notice of the first scheduled hearing, and any subsequent hearing scheduled to accommodate a request for an extension does not require a new notice.
Area(s) of Law:- Juvenile Law
State v. Coy
鈥淸T]he appropriate time to challenge the existence of the conditions precedent to the issuance of the citation is in a pretrial motion aimed at the efficacy of the charging instrument.鈥 State v. King, 199 Or App 278, 285, rev den, 339 Or 544 (2005).
Area(s) of Law:- Traffic Infractions
State v. H.D.
A court may order a conditional release of a person with mental illness only if the release is requested by the legal guardian, relative or friend of the person who requested to be allowed to care for the person 鈥渄uring the period of commitment in a place satisfactory to the judge,鈥 and who has the ability and adequate financial resources to care for the person. ORS 426.125(1)(a)-(c).
Area(s) of Law:- Civil Commitment
State v. H.D.
A two-year conditional release agreement, the breaking of which may lead to involuntary commitment, does not comport with ORS 426.130(2) which requires that 鈥淸a]ny period of commitment [...] or conditional release under this section shall be for a period of time not to exceed 180 days."
Area(s) of Law:- Civil Commitment
Woods v. Hendricks
鈥淓xcept as provided in ORS 137.635, 137.700, 137.707, 163.105, 163.107 and 163.115, each adult in custody sentenced to the custody of the Department of Corrections for felonies is eligible for a reduction in the term of incarceration for: (a) appropriate institutional behavior, as defined by rule of the Department of Corrections; and (b) participation in the adult basic skills development program described in ORS 421.084.鈥 ORS 421.121.
Area(s) of Law:- Sentencing
Dept. of Human Services v. R.F.
鈥淭he court may grant the motion for intervention if the person moving to intervene in the case proves by a preponderance of the evidence that: (A) A caregiver relationship exists between the person and the child or ward; (B) The intervention is in the best interests of the child or ward; (C) The reason for intervention and the specific relief sought are consistent with the best interests of the child or ward; and (D) The existing parties cannot adequately present the case.鈥 ORS 419B.116(5)(c)(A) - (D)
Area(s) of Law:- Family Law
Doe v. The First Christian Church of the Dalles, Oregon
OEC 609(1) provides: 鈥淔or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime: (a) Was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted; or (b) Involved false statement or dishonesty.鈥
Area(s) of Law:- Evidence
M.C. v. Quest Global, Inc.
For Oregon to exercise specific personal jurisdiction over a defendant, there must be 鈥渕inimum contacts鈥欌 between the defendant and Oregon. World-Wide Volkswagen Corp. v. Woodson, 444 US 286, 291-92, 100 S Ct 559, 62 L ED 2d 490 (1980).
Area(s) of Law:- Civil Procedure
State v. Johnson
Stalking occurs if a person 鈥渒nowingly alarms or coerces another person or a member of that person鈥檚 immediate family or household by engaging in repeated and unwanted contact with the other person; [i]t is objectively reasonable for a person in the victim鈥檚 situation to have been alarmed or coerced by the contact; and [t]he repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim鈥檚 immediate family or household.鈥 ORS 163.732(1)(a)-(c). Under State v. Rangel, 328 Or 294, 303 (1999), a qualifying threat must 鈥渋nstill[] in the addressee a fear of imminent and serious personal violence from the speaker.鈥
Area(s) of Law:- Criminal Law
State v. Joseph
OEC 803(18a)(b) provides, in part, that: 鈥淎 statement made by a person concerning an act of abuse as defined in ORS 107.705 or 419B.005, is not excluded by ORS 40.455 if the declarant either testifies at the proceeding and is subject to cross-examination, or is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was made.鈥
Area(s) of Law:- Evidence
State v. Keck
To establish that an officer had reasonable suspicion, 鈥淸a] court (1) must find that the officer actually suspected that the stopped person had committed a specific crime or type of crime or was about to commit a specific crime or type of crime, and (2) must conclude, based on the record, that the officer[鈥檚] subjective belief was objectively reasonable under the totality of the circumstances existing at the time of the stop.鈥 State v. Maciel-Figueroa, 361 Or 163, 182, 189 P3d 1121 (2017).
Area(s) of Law:- Criminal Law
State v. McIntire
鈥淸T]here is a critical difference * * * between arguing to the trial court as factfinder that it should be persuaded to decide the case in a particular way and arguing to the court as legal decisionmaker that only one outcome is permitted as a matter of law.鈥 State v. M.D.M., 320 Or. App. 394, 396 (2022) (emphasis in original).
Area(s) of Law:- Evidence
Thomas Creek Lumber v. Dept. of Forestry
The standard for determining if the state unreasonably withholds consent to a way of necessity is when the state acts arbitrarily and capriciously in its denial. Bradley v. Dept. of Forestry, 262 Or App 78, 83, 91-94, (2014).
Area(s) of Law:- Administrative Law
December 19 summaries
Gage v. Fred Meyer Stores - Kroger Co.
The Court undertakes a review for substantial evidence that incorporates substantial reason "to determine whether the [Worker's Compensation] board adequately explained how it got from the factual findings that it made to the legal conclusions that it reached." SAIF v. Harrison, 299 Or App 104, 105 (2019).
Area(s) of Law:- Workers Compensation
Huskey v. Dep't of Corrections
鈥淎rticle I, section 41(3), states, in relevant part, that 鈥榥o inmate has a legally enforceable right to a job or to otherwise participate in work, on-the-job training or educational programs or to compensation for work or labor performed while an inmate of any state, county or city corrections facility or institution.鈥
Area(s) of Law:- Remedies
Jenkinson v. Lane Co.
"Increasing the breadth, or scope, of the county鈥檚 delegated authority is not the same as adding more stringent approval standards for land divisions over which the county had been delegated authority to regulate."
Area(s) of Law:- Land Use
State v. Jeffery
鈥淲hen considering an as-applied constitutional challenge to a sentence, the Supreme Court has identified three nonexclusive factors for courts to consider: 鈥(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.鈥 State v. Rodriguez/Buck, 347 Or 46, 58 (2009).
Area(s) of Law:- Sentencing
State v. Sangrolla
鈥淸T]o the extent that the court on resentencing after an appeal relies on an impermissible consideration in increasing the sentence imposed on particular counts, the defendant establishes that the sentence is vindictive.鈥 State v. Bradley, 281 Or App 696, 704, rev den, 361 Or 645 (2017).
Area(s) of Law:- Criminal Law
Free Oregon, Inc. v. Oregon Health Authority
鈥淸I]n reviewing a rule challenge under [ORS 183.400], we may declare the rule invalid only if we conclude that it violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures.鈥 BP West Coast Products, LLP v. Dept. of Justice, 284 Or App 723 (2017).
Area(s) of Law:- Administrative Law
State v. De Witt Simons
鈥淎 鈥榮earch鈥 occurs for purposes of Article I, section 9, when the government invades a 鈥榩rotected privacy interest.鈥 State v. Meredith, 337 Or 299, 303 (2004).鈥 鈥淸T]o determine whether a prior illegality requires suppression of evidence from a warranted search, the correct approach is not to excise the illegally obtained information from the warrant application and decide whether probable cause still exists; rather, the focus of the inquiry is on 鈥榯he effect that the prior illegality may have had on the authorized search[.]鈥欌 State v. Dejong, 368 Or 640, 654 (2021).
Area(s) of Law:- Criminal Procedure
State v. Gold
鈥淭he Article I, section 12, right to counsel 鈥榓ttaches when a suspect who is in custody or compelling circumstances invokes the right.鈥 State v Swan, 363 Or 121, 124 (2018). Once a suspect has invoked that right, law enforcement 鈥榠nterrogation鈥 must cease. State v. Shevyakov, 311 Or App 82, 87 (2021). 鈥業nterrogation,鈥 for purposes of Article I, section 12, means not just questioning, but any 鈥榩olice statements or conduct likely to elicit some type of incriminating response.鈥 Id.鈥
Area(s) of Law:- Criminal Procedure
Bridge Creek Ranch v. Water Resources Dept.
A permit for storage, in and of itself, does not constitute or include the right to use stored water; it is the secondary permit that applies the water to beneficial use. Cookinham v. Lewis, 58 Or 484, 492, reh鈥檊 denied, 58 Or 495 (1911); see also Nevada Ditch Co. v. Bennett, 30 Or 59, 89 (1896). The holder of the storage certificate and the holder of the certificate for use of the water together create the appropriation and the beneficial use. See also Nevada Ditch Co., 30 Or at 98.
Area(s) of Law:- Water Rights
Jacobus v. Klamath County
"LUBA is entitled to deference in the interpretation of its own administrative rule if its interpretation is plausible and not inconsistent with the rule, the rule's context, or any other source of law." Maguire v. Clackamas County, 250 Or App 146, 162 (2012).
Area(s) of Law:- Land Use
N.W. Natural Gas Co. v. Environ. Quality Comm.
ORS 468A.327(1) provides: Prior to the adoption, amendment or repeal of any rule pursuant to ORS chapter 183 that applies to any facility required to pay fees under ORS 468A.315, the Environmental Quality Commission (EQC) shall include with the notice of intended action required under ORS 183.355(1) a statement of whether the intended action imposes requirements in addition to the applicable federal requirements and, if so, shall include a written explanation of: (a) the commission鈥檚 scientific, economic, technological, administrative or other reasons for exceeding applicable federal requirements; and (b) any alternatives the commission considered and the reasons that the alternatives were not pursued.
Area(s) of Law:- Environmental Law
State v. Harmon
A warrantless search of an individual鈥檚 personal property is an unreasonable interference with that individual鈥檚 privacy interest in the property unless a valid exception to the warrant requirement applies. State v. Bunch, 305 Or App 61, 65 (2020).
Area(s) of Law:- Criminal Procedure
State v. Johnson
Law of the case doctrine applies when the trial court faces an 鈥溾榠ntervening, inconsistent, controlling decision by a higher court鈥 that would require it to abandon the law of the case doctrine with respect to evidence [in the case].鈥 State v. Poston, 309 Or App 377 (2021). "ORS 136.107(2)(b) is viewed in the context of those related statutes that apply generally to sentencing practices, it becomes evident that the statutes work together harmoniously in a manner that results in a constitutional sentence鈥"
Area(s) of Law:- Criminal Procedure
State v. Knowles
For the purpose of ORS 813.011(1)(c), "Cal Veh Code 23152(b) is a conviction that involves 'driving or operating a vehicle while having a [BAC] above California's permissible [BAC]."
Area(s) of Law:- Criminal Law
Dep鈥檛 of Hum. Servs. v. S.J.
Dependency jurisdiction is not warranted if a parent has entrusted the primary care of their child to another caregiver as long as that arrangement does not expose the child to a current risk of harm. See Dept. of Human Services v. A.L., 342 P.3d 174, 179 (2015).
Area(s) of Law:- Family Law
Dorn-Privett v. Brown
鈥淯nder ORS 161.067(1), referred to as the 鈥渁nti-merger鈥 statute, 鈥淸w]hen 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.鈥
Area(s) of Law:- Post-Conviction Relief
Indoor Billbd. / Northwest, Inc. v. TheLaundryList.com
An Oregon trial court may exercise personal jurisdiction 鈥渙ver a properly served defendant 鈥榌i]n any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant,鈥 so long as, at the time the alleged injury occurred, the defendant either carried on 鈥榌s]olicitation or service activities 鈥 within this state,鈥 ORCP 4 D(1), or 鈥榌p]roducts, materials, or things distributed, processed, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of trade,鈥 ORCP 4 D(2).鈥
Area(s) of Law:- Civil Procedure
State v. Johnson
When a witness improperly vouches, striking the offending testimony and giving curative instructions are permissible choices for corrective action, unless they are 鈥渋nsufficient to cure the problem as a matter of law.鈥 State v. Williams, 368 P.3d 459, 464 (2016).
Area(s) of Law:- Evidence
State v. Reed
鈥淎 defendant who acts based on a good faith belief that a judicial order has been dismissed cannot be deemed to have acted 鈥榳ith knowledge that it was forbidden conduct鈥 [and] . . . cannot be deemed to have acted 鈥榳illfully鈥 for purposes of ORS 33.015(2)(b).鈥 State v. Nicholson, 383 P.3d 977, 984 (2016).
Area(s) of Law:- Family Abuse Prevention Act