Archive for August, 2011

“The” Doesn’t Always Refer to a Single Episode

State v. Rowland, 245 OrApp 240 (2011)

Holding:   If Defendant is jailed for parole violation, the 15-year clock is reset for purposes of using that conviction for impeachment purposes.

1)   “In construing a statute, we examine the text of the statute in context, along with any relevant legislative history, to discern the legislature’s intent.” citing, State v. Gaines. at p. 244.

2)   Use of article the doesn’t necessarily refer to a single occurrence. Sometimes, the is used as a “function word” to limit application of a noun to that of “a succeeding element in the sentence * * *.” at p. 245.

3)  The controlling statute prohibits, for impeachment purposes, introduction of prior convictions more than 15 years after “the release of the witnesses from the confinement imposed for that conviction * * *. “‘For’ in this context most likely means ‘because of’ or ‘on account of. (emphasis mine).’” cite omitted. at pp. 244-45.

4)   Where the text, context and legislative history don’t answer or address the question at bar, the Court must resort to relevant maxims of construction. at p. 247.

5)   “The relevant maxim here is that ‘we are to construe the language of the statute in a manner that is consistent with its purpose * * *.” cite omitted. at p. 247.

DPSST Not Required to Consider Suspension

Marolla v. DPSST, 245 OrApp 226 (2011)

Holding:   Police standards board free to adopt rule that officers fired for cause should always lose their certification.

1)   The task of statutory construction “requires us to examine the text of (the statute) in context, along with any relevant legislative history, and, if necessary, applicable canons of construction.” citing, State v. Gaines. at p. 230.

2)   The text of the controlling statute grants DPSST the option of suspending or revoking the certification of police officers discharged for cause, but, nothing in the text of the statute requires the agency to consider both options in every, or, any, case. at p. 231.

3)   When the legislature intends to require an entity to consider, in every case, between “multiple options or factors,” it knows how to do so. at p. 231.

4)   A single, uncontradicted statement by an agency head as to the reason for the statute can be used to elucidate legislative intent. at pp. 231-32.

“Plain Reading” Trumps Legislative History

State v. Grierson, 245 OrApp 195 (2011)

Holding:   Plain reading of an unambiguous statute trumps a construction supported only by resort to legislative history.

1)   Courts do not apply the “underlying principles” of a statute as illuminated by legislative history. “(W)e construe the enacted text.” citing State v. Gaines. at p. 200.

2)   The state fails to identify any text that “could plausibly support” the construction it seeks to advance by resort to legislative history. at pp. 200-01.

“Specifying” Means Describing Time Exactly

Greenway v. Parlanti, 245 OrA 144 (2011)

Holding:   Applicable statute requires landlord terminating a rental agreement to serve notice specifying the date and time of termination. A notice which declares that the agreement will terminate 24 hours after service is not specific or explicit

1)   “Generally, we seek to ascertain the intent of the legislature by examining the text and context of the statute at issue as well as any helpful legislative history offered by the parties.” citing, State v. Gaines. at p. 148.

2)   “When construing a statute, we give “words of common usage their plain and ordinary meaning.” cite omitted. at p. 148.

3)   When construing a statute, Courts are to ascertain what is “contained therein, not to omit what is inserted or insert what has been omitted.” referencing ORS 174.010. at p. 148.

4)   A statute is unambiguous if the text only supports a single plausible interpretation. at p. 149.

5)   “In common usage, ‘specifying’ is defined as ‘to mention in a specific or explicit manner: tell or state precisely or in detail.’” (cite omitted). at p. 149.

Legislative History Endorses “Plain Reading”

State v. Durham, 245 OrApp 58 (2011)

Holding:   Diversion is not available for all types of criminal possession of marijuana.

1)   “To determine the intent of the legislature * * * we first examine the text of the statutes in context and then look to any helpful legislative history offered by the parties.” citing, State v. Gaines. at p. 61.

2)   A plain reading of the statute outlawing possession of marijuana shows that it defines three separate crimes. In turn, a plain reading of the marijuana diversion statute shows that diversion is only available to defendants violating the offense described in subsection 3. at p. 62.

3)   “Ordinarily, only statutes enacted simultaneously with or before a statute at issue are pertinent context for interpreting that statute.” cite omitted. at p. 63.

4)   Legislative history can be used to support the construction that results from a plain reading of the statute. at p. 64.

5)   A single comment by a member of a single committee that crafted the bill can be used to elucidate legislative intent. at p. 64.

“Inconsistent” Reading Means “Implausible”

Setnicker v. Polk County, 244 OrApp 618 (2011)

Holding:   Court will not disturb local government’s reading of it’s own ordinances if such reading is “plausible.”

1)   ORS 197.829(1)(a) directs that LUBA is to affirm a local government’s application of land use regulations unless such interpretation is “inconsistent with the express language of the * * * regulation.” This “depends on whether the interpretation is plausible” after application of the standard rules of construction. cite omitted. at p. 633.

2)   “* * * when a governing body is responsible for enacting an ordinance, it may be assumed to have a better understanding than LUBA or the courts of its intended meaning.” cite omitted. at p. 634.