Archive for October, 2011

ORCP Controls FED Absent Express Statement

Balboa Apartments v. Patrick, 351 Or 205 (2011)

Holding:   The question of service of an amended complaint in a FED action is controlled by the ORCP, not the FED statute.

1)    When the question is one of statutory construction, “we examine the text of the statute in context and, where appropriate, legislative history and pertinent canons of statutory construction.” citing State v. Gaines. at p. 209.

2)  The various FED statutes show that the legislature knows how to specify FED procedures that differ from the general rules set out in the ORCP. Since no special rules are mentioned as to dealing with amended complaints, those in the ORCP control. at p. 212.

Statutory Contract Needs Unambiguous Terms

Arken v. City of Portland, 351 Or 113 (2011)

Holding:   The 2003 PERS reform legislation did not violate the contractual rights of certain PERS employees, the theory of promissory estoppel did not lie, and, plaintiff’s wage claims were spurious.

1)    “In interpreting the terms of a statute, the court will examine the text and context of the statute and consider the legislative history of the statute where that legislative history is useful in determining the meaning of the terms used.” citing State v. Gaines. at p. 133.

2)   When discerning legislative intent, the Court focuses on the intent of that particular legislature and that particular time and discounts subsequent events. at p. 133.

3)    It is particularly important to focus on the correct legislature when analyzing statutes to determine whether they constitute a statutory contract. at p 133.

4)    The text of the statute is best evidence of legislative intent. at p. 134.

5)    Fact that Supreme Court subsequently struck down one portion of the statute, has no effect on analyzing legislative intent, as subsequent events are to be discounted. at p. 134, ftn 15.

6)     Context and legislative history support the textual analysis. at p. 134.

7)  Only statutory terms that “unambiguously evince[ ] an underlying promissory, contractual legislative intent” (cite omitted) become part of a statutory contract. at p. 136.

8)     Courts disfavor holding that a statute is repealed by implication. at p. 137.

9)   Changes in the bill as it moves through the legislative process provide clues as to legislative intent. at p. 137.

10)   Respondents’ textual arguments place too much emphasis on specific words used. at p. 152.

11)  Much of the legislative history presents generalities about the overall intent of the legislation, which is of little help in discerning the precise parameters of a certain section. at p. 154.

12)   The PERS reform legislation changed frequently during the session, and, legislative history addressing versions of the bill the legislature did not enact are of little use. at p. 155.

13)   The legislative history directly relevant to Section 14b “is confusing and conflicting, and in any event, not enlightening.” Thus, it is entitled to little weight. at pp. 155-56.

14)   Cardinal rule of statutory construction that Courts are to avoid statutory interpretations that render parts of the statute redundant is not applicable here as the two statutory provisions are addressed to different concerns, one section looking forward and the other looking back. at pp. 156-57.

15)   Originally, the bill said the methods of recovering overpayment were “in lieu of, and not in addition to” any other authority available to PERB. Fact that the legislature deleted this language is insufficient to overcome the clear meaning of the mandatory term that PERS “shall” use the new methods. at pp. 158-59.

16)   Section 14b of the relevant bill stated that PERB “shall” use one of the two methods set out therein to recover overpayments. Fact that neither method will allow for total recovery is unimportant. The Court will not redraft statute even to avoid absurd results. at pp. 159-60.

Context Does not Include Later-Enacted Laws

State v. Neff, 246 OrApp 186 (2011)

Holding:   In traffic stop, where the police officer had informed the driver that he (the officer) was recording the conversation, the driver did not have to announce that he was recording the conversation, as well.

1)   “Our goal is to determine the intended meaning of * * * statutes by examining their text in context, along with relevant legislative history, and, if necessary, other aids to construction.” citing State v. Gaines. at p. 191.

2)   Generally, but not always, when the lawmakers employ “the passive voice with regard to an action that a statute either authorizes or requires (e.g., ‘may be established,’ ‘shall be made’), that usage indicates an intention to avoid specifying a particular actor to whom the statute’s command is directed.” at p. 191.

3)   Where the statute’s text does not conclusively inform the meaning of the statute, Courts turn to the context. at p. 191.

4)   “Statutory context includes earlier-enacted statutes, but does not include later-enacted statutes, including later-enacted subsections” of the statute at bar. at p. 192.

5)   Fact that subsections (a), (b), and (d) use the active voice, while (c) uses the passive voice, indicates that (c) applies to the conversation, in general, rather than any participant, in particular. at p. 193.

6)   Textual ambiguity not required before legislative history can be considered. citing State v. Gaines. at p. 194, ftn 1.

7)   Where text, context and legislative history provide no assistance, Courts must turn to maxims of statutory construction. at p. 194.

“Intent to Defraud” has Multiple Meanings

State v. Reynolds, 246 OrApp 152 (2011)

Holding:   Where Defendant signed a lease and, after missing some agreed-on payments, promised to “get back on track,” but, after a period of months, was evicted and left owing a disputed amount of money, there was no evidence from which to infer a conscious effort to steal by deception.

1)   When attempting to ascertain legislative intent, Courts “first look at the text and context of the statute, and will consider legislative history if it appears useful to the court’s analysis.” at p. 158.

2)  When analyzing a statute’s text, Courts give “words of common usage their ‘plain, natural and ordinary meaning.’” cite omitted. at p. 159.

3)   The phrase “intent to defraud” means different things in different statutes. at p. 159, ftn 4 and accompanying text.

4)   Prior case law supports the statutory interpretation announced in this case. at p. 159.

Existing Case law & Statutes Irrelevant, Here

Sheptow v. Geico General Ins. Co., 246 OrApp 18 (2011)

Holding:   With limited exceptions, people who use an insured motor vehicle with consent of the insured are entitled to Personal Injury Protection (PIP) benefits.

1)   “In interpreting statutes, out task is to attempt to discern the intent of the legislature. citing State v. Gaines. We begin by considering the text and context of the statute. Id. We then turn to any pertinent legislative history that the parties have offered and, if necessary, applicable cannons of construction. Id.” at p. 22.

2)   Neither the Court’s prior interpretation of the PIP statute, at p. 23-25, nor the legislative history of that statute, at p. 24, ftn 6, are relevant here because both predate the amendment of the general insurance statute expanding the requirement for PIP coverage to permissive users.

“Wages” are Compensation for Performance

Young v. State, 246 OrApp 115 (2011)

Holding:   To allow recovery of interest on an award of post-judgment interest would allow collection of “compounding,” as opposed to “simple” interest, in violation of the controlling statute.

1)   “In interpreting a statute, our task is to determine the legislature’s intended meaning by examining the text of the statute in context, along with any helpful legislative history and, if necessary, other aids to construction.” at p. 119.

2)   The common understanding of the word wages is “compensation for performance of service by an employee,” and, unpaid post-judgment interest doesn’t fit within that definition. at p. 122.