Archive for July, 2011

Court not Bound by Opinion of Hands-On Prof

State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491 (2011)

Holding:   Supreme Court will not retreat from well-rehearsed notion that whether a hearsay statement is sufficiently corroborated is a matter for the jury.

1)     When construing a statute, a court is free to consider legislative history not presented by either side, but, produced sua sponte. at p. 509, ftn 5.

2)   Suggestions by Prof. Kirkpatrick, and, the Court of Appeals, that comments to the Oregon Evidence Code show a contrary legislative intent than that divined by the Supreme Court misread the applicable legislative history. at p. 509, ftn 5.

Use of the Word Right in Agreement sets Floor

Confederated Tribes v. Dept. of Fish and Wildlife, 244 OrApp 535 (2011)

Holding:    State free to allow harvesting of more animals than the floor set in hunting and fishing agreement.

1)    “* * * (to interpret a statute, the court examines the text and context and may consider pertinent legislative history offered by the parties to the extent the court considers it useful).” explaining State v. Gaines. at p. 540.

2)    The use of the word right in the hunting and fishing agreement between the tribe, the federal government and the state creates a floor as to the amount and timing of animal harvesting the state must allow. This does not, however, restrict the state from allowing the tribe to take additional animals during additional seasons. Indeed, the wording of the agreement expressly contemplates such discretion. at pp. 543-45.

Judicial Review Requires Ample Elucidation

1000 Friends of Oregon v. LCDC, 244 OrApp 239 (2011)

Holding:   LCDC failed to provide enough explanation for its finding that the city’s reliance on “market choice” was sufficient for adding excess industrial lands to Urban Growth Boundary.

1)   “Our determination of the legislature’s intent * * * is guided primarily by the text and context of the statute, in light of any pertinent legislative history.” citing, State v. Gaines. at p. 255.

2)   When analyzing a statute’s text, Courts give “words of common usage their ‘plain, natural and ordinary meaning.’” cite omitted. at p. 255.

3)   The textual analysis includes prior construction of statutory terms. at p. 255.

4)   A statute’s context includes “the entire enactment of which it was a part, cite omitted, as well as related statutes on the same subject.” cite omitted. at p. 255.