�����Ƶ

Lombardo v. St. Louis

On summary judgment, courts must apply “careful, context-specific analysis” in excessive force cases.

• Civil Procedure

TransUnion LLC v. Ramirez

To possess standing in a class action suit seeking damages against a private defendant in federal court, a plaintiff must be concretely harmed by a defendant’s violation; risk of future harm is insufficient to establish standing.

• Civil Procedure

United States v. Arthrex, Inc.

Under the Appointments Clause of the U.S. Constitution, Administrative Patent Judges are principal officers who must be appointed by the president with the advice and consent of the Senate.

• Constitutional Law

Mike Brown v. Ervine Davenport

May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

• Habeas Corpus

State v. Owen

Under ORS 163.175, a person commits second-degree assault if the person “[i]ntentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon,” and under ORS 161.095(2), no culpable mental state attaches to the result element of second-degree assault.

• Criminal Law

WaterWatch of Oregon v. Water Resources Dept.

Under ORS 543A.305, when conversion from a hydroelectric water right to an in-stream water right would not injure existing water rights, conversion is required.

• Water Rights

Collins v. Yellen

The restriction of the President’s authority to remove the director of the Federal Housing Finance Agency violates the separation of powers principle.

• Constitutional Law

Josephine County v. PERB

Under ORS 238.225, the Public Employees Retirement Board may set county Public Employees Retirement System (PERS) liability level at a level that would fund those liabilities.

• Administrative Law

State v. Benson

Under Article I, section 12, of the Oregon Constitution, “[n]o person shall be * * * compelled in any criminal prosecution to testify against himself.” Moreover, under ORS 136.425(1) a “confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats.”

• Constitutional Law

State v. Ashbaugh

Under Article I, section 11, of the Oregon Constitution, before denying a defendant the right to waive counsel, a trial court must engage in colloquy with the defendant to assess whether their waiver of counsel is knowing and voluntary and that the defendant “understand[s] the risks of self-representation.” State v. Meyrick, 313 Or 125, 133, (1992).

• Constitutional Law

State v. Lucas

Under ORS 137.545(1)(a), trial courts possess discretionary authority to extend probation, but reversal is appropriate where the record establishes that a court had “extended defendant’s probation as a means of avoiding a hearing,” rather than having done so based on assessment of public safety or rehabilitation considerations. See State v. Baker, 235 Or App 321, 325, 230 P3d 969 (2010).

• Sentencing

Wilson v. Laney

Under OEC 803, a startling event, rather than the will of the declarant, provides the requisite spontaneity to support the “excited utterance” exception to hearsay because the “pain, excitement or horror of the event had stilled the powers of reflection and had enabled the event itself to speak through the tongue of the declarant.” State v. Hutchison, 222 Or 533, 537, 353 P2d 1047 (1960).

• Post-Conviction Relief

Gillett v. Tucker

“Expressions of opinion may be considered misrepresentations of fact where the parties are 'on unequal footing and do not have equal knowledge or means of knowledge.’” Frank v. Fitz Enterprises, Inc., 106 Or App 183, 186, 806 P2d 720 (1991).

• Contract Law

Gutierrez v. Board of Parole

In determining justiciability, the court considers whether the court’s decision in the matter will have “some practical effect on the rights of the parties.” Dept. of Human Services v. A. B., 362 Or 412 (2018). To prevent mootness, a collateral consequence must exceed “mere speculation” and “have a significant probability of actually occurring[.]” Johnson v. Premo, 302 Or App 578, 592 (2020).

• Civil Procedure

State v. Chase

Under ORS 131.135, in consideration of the totality of the circumstances and considering any circumstance, a warrant is “executed without unreasonable delay” to “commence” the prosecution when the state is “aware of a defendant’s location but fails to take any action to executive the warrant” or “takes only de minimis action.” State v. Washington, 266 Or App 133, 150 (2014), rev den, 356 Or 767 (2015).

• Criminal Law

State v. Keene

When a defendant is convicted of a lesser-included offense but lacks actual notice that a lesser-included offense is under consideration, her conviction is the product of a due process violation. State v. Barrie, 227 Or App 378, 206 P3d 256 (2009).

• Constitutional Law

State v. Pitz

Under ORS 135.335(3), when a defendant enters a conditional guilty, reserving the right on appeal to “a review of an adverse determination of any specified pretrial motion,” and subsequently prevails on appeal, the defendant may withdraw the plea.

• Criminal Procedure

Creekside Homeowners Assn. v. Creekside Golf Course

Under ORS 28.020, when a development’s CC&Rs do not require maintenance of a golf course nor prohibit residential development, a claim of waste cannot be sustained.

• Contract Law

State v. Arriaga-Mendoza

Under ORS 811.175(1), the material time period for a Driving While Suspended charge is not a specific date, but rather, “during a period when the person’s driving privileges or right to apply for driving privileges have been suspended or revoked[.]”

• Criminal Law

Neel v. Lee

“A statutory claim for financial abuse has four elements: there must be (1) a taking or appropriation (2) of money or property (3) that belongs to an elderly or incapacitated per-son, and (4) the taking must be wrongful.” Church v. Woods, 190 Or App 112, 117, 77 P3d 150 (2003).

• Civil Procedure

Bo and Lia Holdings LLC v. 2021 Morrison LLC

Prescriptive easements permit a “person to acquire an interest in land without paying the owner for it,” Wels v. Hippe, 360 Or 569, 578, (2016), modified on recons, 360 Or 807, (2017), and protect “established patterns of land possession” by “rewarding the long-time user of property, fulfilling expectations fostered by long use, and conforming titles to actual use of the property.” Albany & Eastern Railroad Co. v. Martell, 366 Or 715, 720 (2020).

• Property Law

Dept. of Human Services v. C. C.

Under ORS 419B.815 and ORS 419B.816, “once a parent has failed to personally appear at a hearing for which the parent had proper notice… the juvenile court may choose to either immediately proceed with a hearing on the dependency petition or postpone that hearing to a later date. If the court takes the latter course, nothing [in the statutes] requires the court to notify that parent of the newly set hearing date.”

• Juvenile Law

State v. Edgtton

Under State v. Hightower, 361 Or 412, 393 P3d 224 (2017), the court must make a record reflecting the competing interests of a defendant and the court before denying a defendant’s request to proceed pro se.

• Constitutional Law

Oregon Restaurant and Lodging Assn. v. City of Bend

Under ORS 320.350, a local government “may not decrease the percentage of total local transient lodging tax revenues that are actually expended to fund tourism promotion or tourism-related facilities on or after July 2, 2003.”

• Tax Law

Manley v. McKinney

Under Beal v. Beal, 282 Or 115, 123, 577 P2d 507 (1978), upon distribution of non-marital property after dissolution, courts “should distribute the property based upon the express or implied intent of th[e] parties,” account for unequal down payment and post-separation payments, and if the moved-out party was effectively excluded from using the property, the “party who stayed must pay the fair rental value of the property.”

• Property Law

Deep Photonics Corp. v. LaChapelle

Under the Oregon Rules of Civil Procedure and case law “the word ‘claim’ can mean the legal basis for a cause of action or the particular relief that a party seeks—or it can mean both the legal basis and the relief sought, together.” See M. K. F. v. Miramontes, 352 Or 401, 287 P3d 1045 (2012).

• Corporations

State of Oregon v. Sanchez-Chavez

The “ultimate question” to determine if a consecutive sentence is permitted under ORS 137.123 “is whether the record includes discrete facts supporting an inference that the defendant acted with a willingness to commit multiple offenses.” State v. Tajipour, 299 Or App 219, 450 P3d 523 (2019), rev’don other grounds, 366 Or 551, 466 P3d 58 (2020).

• Sentencing

Patel v. Siddhi Hospitality, LLC

When reviewing a contract, the court “examine[s] first the test of the disputed provisions in the context of the document as whole. If the document’s meaning is clear, [the Court’s] analysis typically ends.” Yogman v. Parrott, 325 Or 358, 361-64, 937 P2d 1019 (1997).

• Contract Law

State of Oregon v. M.P.

Under the 2017 Amendments to ORS 45.400, it is the “trial court’s decision whether to allow telephonic testimony in nonjury proceedings a matter of trial court discretion. Accordingly, when such a decision is challenged on appeal, [the Court] review[s] for abuse of discretion.”

• Civil Commitment

State v. F.J.M.

A psychological evaluation is authorized under ORS 419B.387 “if the court finds in an evidentiary hearing that treatment or training is needed by a parent to correct the circumstances that resulted in wardship or to prepare the parent to resume the care of the ward.”

• Juvenile Law

Sause and Schnitzer

Under ORS 109.239 (1977), amended by Or Laws 2017, ch 651, § 4, “a mere genetic connection that a gamete donor has to a resulting child does not, in its own right, confer parental status.”

• Family Law

State v. Ramirez

Under ORS 809.235(1)(b), an out-of-state conviction “cannot serve as a predicate offense unless the offense requires proof that the person’s impaired driving was causally related to the person’s use of an intoxicant.”

• Criminal Law

State v. Sorrow

Under 164.055, theft “requires a thief to intend permanent or virtually permanent loss to the owner of the possession and use of property.” State v. Christine, 193 Or App 800, 809, 93 P3d 82, rev den, 337 Or 476 (2004).

• Criminal Law

State v. Yaeger

Under Article I, section 12 of the Oregon Constitution and the Fifth Amendment, persons on Post Prison Supervision (PPS) maintain the right against self-incrimination; under Article I, section 9 of the Oregon Constitution and the Fourth Amendment, a person on PPS who “invokes a constitutional right” may be subject to a PPS violation, “but that does not obviate any constitutional right” to voluntary consent standards.

• Criminal Procedure

State v. Allen

Under OEC 403, although “needless presentation of cumulative evidence” may be excluded if its probative value is substantially outweighed by the threat of prejudice, a defendant’s stipulation to “particular facts does not automatically render all other evidence touching on the same facts cumulative.”

• Evidence

State v. Taplin

Privacy is limited within the context of a jail cell. See State v.�� Lien/Wilverding, 364 Or 750, 760, 441 P3d 185 (2019). “[P]rivacy�� interests�� can�� be�� recognized�� only�� by�� their�� association�� with�� a private place where the claimant has the right to exclude others.” State v. Cromb, 220 Or App 315, 325, 185 P3d 1120, rev den, 345 Or 381 (2008)

Box v. Oregon State Police

Under ORS 30.265(6)(f), Apparent Authority Immunity “applies to public actors who, acting without bad faith or malice, rely on their plausible interpretation of laws that turn out to be unconstitutional, invalid, or inapplicable” which does not include “preshooting tactical decisions” and “OSP’s preshooting supervisory decisions.”

• Tort Law

Allied Structural v. CCB

“Except as provided in subsections (4) and (5) of this section, any person who violates any provision of this chapter or any rule adopted by the Construction Contractors Board shall�� forfeit�� and�� pay�� into�� the�� General�� Fund�� of�� the�� State Treasury a civil penalty in an amount determined by the board of not more than $5,000 for each offense.” ORS 701.992(1).

• Administrative Law

State v. Hughes

Under 803.540, the presence of single, dealer vehicle plate on the rear of a vehicle does not establish an objectively reasonable belief that a vehicle is being operated in violation of the law and fails to establish probable cause; when “no lawful basis” for a traffic stop exists, evidence collected must be suppressed.

• Criminal Procedure

State v. Scott

Under State v. Morales, 367 Or 222, 476 P3d 954 (2020), “when a non-spouse third party posts security for the benefit of a defendant, the security funds cannot be considered when determining a defendant’s ability to pay attorney fees unless the record demonstrates that the deposit carried a donative intent or was actually of the defendant’s own money.”

• Criminal Law

Department of Human Services v. W.M.

Under ORS 419B.476(1), when a parent’s ability to obtain required training for reunification with a child is interrupted by the COVID pandemic, DHS’s “reasonable efforts” to reunify must entitle parents to “efforts that extend long enough to allow them a reasonable opportunity to become minimally adequate parents.”

• Juvenile Law

State of Oregon v. Phillip Mark Gregg

Non-unanimous jury instructions are plain error. However, when the jury poll is unanimous, the error is considered to be “harmless beyond a reasonable doubt.” State v. Ramos, 367 Or 292, 320 (2020).

• Criminal Law

State v. Mock

Under Article I, Section 9 of the Oregon Constitution, police cannot obtain reasonable suspicion to conduct a search during a traffic stop unless their inquiry questions are reasonably related to the initial infraction; without reasonable suspicion, subsequently collected evidence must be suppressed.

• Criminal Procedure

State of Oregon v. Lira

Under Article I, Section 9 and State v. Fair, 353 Or 588, 302 P3d 417 (2013), the “material witness” exception to the warrant requirement does not justify seizure unless the seizure is “reasonably necessary to verify the identity of a material witness or obtain an account of a crime.”

• Criminal Procedure

Dept. of Human Services v. D.M.

Under ORS 419B.476(2)(a), a child’s permanency plan may be changed from reunification to adoption when a parent fails to make “sufficient progress” and DHS reunification efforts are “reasonable.”

• Juvenile Law