Archive for September, 2011

“Plain Reading” not so Plain in Final Analysis

State v. Cloutier, 351 Or 68 (2011)

Holding:   Defendent who pled “no contest” can’t appeal eventual sentence based on a Due Process claim.

1)   “We ascertain the legislature’s intentions by examining the text of the statute in its context, along with relevant legislative history, and, if necessary, cannons of construction.” citing State v. Gaines. at p. 75.

2)   Defendant’s proposed construction based on “plain reading” of the statute, “while not wholly implausible * * * becomes untenable when considered in the light of other indicia of legislative intent, in particular,” other parts of the same statute, related statutes and prior judicial constructions. at p. 76.

3)  The common meanings of the word exceed is to “enlarge beyond” and the word maximum is “an upper limit.” Thus, it is awkward to include by implication the Due Process Clause in a sentence using those two words, as the clause sets no maximum sentence in the ordinary sense of the word. at p. 95.

4)   Courts cannot construe statutes by interpreting words in a vacuum. “Dictionaries, after all, do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which their used. (cite omitted).” at p. 96.

5)   A statute’s context includes “other provisions of the same statute, the session laws, and related statutes. (cite omitted).” at p. 96.

6)   The fact that a proposed interpretation results in some redundancy is not necessarily fatal. However, “an interpretation that renders a statutory provision redundant should give us pause * * *.” at pp. 97-98.

7)   In the absence of evidence to the contrary, the legislature is presumed to use terms in related statutes consistently. (cite omitted)” at p. 99.

Courts Identify Class the Law Meant to Protect

State v. Mullen, 245 OrApp 671 (2011)

Holding:   The victims of identity theft includes those who suffer a risk of loss from the exposure of their identification to misuse, even if no actual fraud occurs

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. 675.

2)   Phrase “another person” simply distinguishes “the perpetrator of the crime from the person whose identity is misappropriated. It does not * * * indicate that the person is merely a secondary or collateral subject of the statute. (cites omitted)” at p. 676.

3)   Where a criminal statute does not expressly identify who qualifies as a victim, “the court examines the statute to identify the gravamen of the crime and determine the class of persons whom the legislature intended to directly protect * * *. (cite omitted).” at p 677.

4)   Legislative history provides “some support” for the construction arrived at after a plain reading, and, therefore, is worthy of notice. at p. 678.

5)   The staff measure summaries can provide evidence of legislative intent. at p. 678.

Context Includes Changes in Law Over Time

Klutschkowski v. PeaceHealth, 245 OrApp 524 (2011)

Holding:   Even though one subsection of the statute seems to allow a fee award for preparation of daily transcript fees, the other subsections confine such fees to transcripts prepared for an appeal. Confining all subsections to transcripts prepared for appeal is confirmed by looking at the evolution of the statute “over the last 30 years.”

1)   When construing a statute “we are guided by the principles of interpretation” set out in PGE v. BOLI “as amplified” in State v. Gaines. at p. 549.

2)   “‘In general terms, (when construing a statute) ‘we attempt to determine the meaning of the statute most likely intended by the legislature, examining the text in context along with any legislative history offered by the parties and, if necessary, relevant canons of construction.’ (cite omitted).” at p. 549.

3)   Part of a statute’s context is changes in the statute over time. at p. 549.

Specific Words Elucidate Legislative Intent

State v. Drown, 245 OrApp 447 (2011)

Holding:   There was insufficient evidence presented, as to the dental problems of some of the children, that the pain from lack of dental care rose to the level of criminal mistreatment.

1)  “To resolve (a) question of statutory intent, we first turn to the text” of the relevant statute. citing State v. Gaines and PGE v. Bureau of Labor and Industries. at p. 462.

2)   In the absence of a statutory definition, words of common usage are given their “plain, natural, and ordinary meaning.” at p. 462.

3)   In this context, “necessary and adequate” means failure “to provide for a dependent’s most basic needs * * * for safety and survival.” at p. 462.

4)   The words chosen by a bill’s sponsor, and, explained during committee debate, can be parsed to reveal legislative intent. at p. 463.

Exact Same Word can Mean Different Things

Green v. Douglas County, 245 OrApp 430 (2011)

Holding:   Open-siding pole buildings are the type of buildings allowed in Exclusive Farm Zones.

1)   “We glean (the legislature’s) intent from the text, context and legislative history of the statute, resorting, if necessary, to maxims of statutory construction.” citing, State v. Gaines. at p. 444.

2)   A dictionary definition of a given term should be rejected if a more particular meaning is suggested by the statutory context. at p. 444.

3)  If different subsections of a statute advance different objectives, it is error to automatically use one subsection to help define terms used in a different subsection. at p. 445.

Changes in Text of Local tax law Inadequate

Proctor v. City of Portland, 245 OrApp 378 (2011)

Holding:   The 2008 changes to Portland’s business tax, which had lain dormant since the 1987 legislation outlawing the assessment (then, labeled a fee) were insufficient to remove the tax from the sweep of the state statute.

1)  The meaning of business license tax as used in the relevant statute is “inextricably intertwined” with the use of that term in other statutes which originated in the same 1978 bill. at p. 383.

2)   Discussions between legislative committee members and the city’s representatives, as well as those representative’s testimony, helps illuminate legislative intent. at pp 386-90.

3)   Despite the cosmetic changes in the city’s code – such as changing the nomenclature of the assessment from “fee” to “tax” – “the city is subjecting plaintiffs to precisely the same harm that the 1987 legislature intended to prevent.” at p. 392.