Archive for November, 2011

Territorial Code Borrowed Mostly From Iowa

State v. Glushko/Little, 351 Or 297 (2011)

Holding:   For purposes of the speedy trial statute: a) Consent means express agreement, and cannot be inferred from a failure to appear; and, b) A delay which results from Defendant’s actions, such as leaving the state to avoid prosecution, is reasonable, even if the state fails to aggressively effectuate prosecution.

1)   “* * * we strive to ascertain the meaning of the statute most likely intended by the legislature that adopted it, by examining the statute’s text, in context, and where appropriate, relevant legislative history and cannons of statutory construction.” citing State v. Gaines. at p. 305.

2)   Much of Oregon’s territorial code was borrowed from Iowa. at p. 306.

3)   Placement of additional words in a statutory phrase, set off by comas, suggests that the additional words relate to the initial phrase. at p. 306.

4) The interpretation of this statute adopted in this case is consistent with other contemporary, and related statutory provisions. at p. 307.

5)  Nothing in the text or legislative history suggests that the amendments by the 1959 legislature intended to change the substance of the speedy trial statute. at p. 309.

6)   It is unclear what relevance a dictionary of British usage has to demonstrating what the Oregon Legislature intended by its statutes. at p. 311.

7)   When consulting a dictionary for statutory interpretation, it is important to confine the search for definition to the article of speech actually used. For instance, if the statute uses the word as a noun, it is error to offer a definition of the word when used as a verb. at p. 311.

8)   “(S)tatutes are not interpreted by culling dictionaries for favorable definitions. at p. 311.

9)   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 pp. 311-12.

10)  When statutory amendments didn’t change the phrasing at issue, “legislative views about the portions not amended are not pertinent.” at p. 312.

Definitions Imported From Another Section

State v. Swanson, 351 Or 286 (2011)

Holding:   Statute allowing juries to consider lessor-included crimes does not allow them to consider lessor-included violations. Thus, Defendant charged with reckless driving – a misdemeanor – not entitled to instructions as to the elements of careless driving – a violation.

1)   While the lessor-included statute does not define “crime,” other statutes define “crime” and “violation” as two different things. Thus, fact that the lessor-included statute uses the term “crime” but not “violation” would seem “at first blush to compel a conclusion that the legislature intended the statute to reach crimes but not violations.” at p. 289.

2)   When attempting to determine the legislature’s intent, a Court looks “to the intent of the legislature that enacted the statute, and we also consider any later amendments or statutory changes that were intended by the legislature to modify or otherwise alter the meaning of the original terms of the statute.” at p. 290.

3)   While, in general, definition of a term in one area of the ORS does not necessarily control its meaning in another area, (cites omitted) “* * * it is clear from the legislative history of the 1973 (criminal procedure) code that the drafters intended to import into the 1973 code the 1971 definitions * * *.” at p. 293-94.

Same Methodology used to Interpret all Codes

State v. Smith, 246 OrApp 614 (2011)

Holding:   Where the tribe’s code permits it, a non-tribal officer in “hot pursuit” can make an arrest, on reservation, for traffic offenses committed by a tribal member off reservation.

1)   When interpreting codes other than the Oregon Revised Statutes – i.e. administrative rules, city ordinances, tribal codes – Courts use the usual framework for statutory construction. at p. 619.

2)   “In statutory construction, we begin by examining the text and context of the statute, in light of any useful legislative history. (cite omitted). If the drafters’ intent remains unclear after examining text, context and legislative history, ‘the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.’ (cite omitted). We may not, however, ‘insert what has been omitted, or * * * omit what has been inserted[.]’” (cite omitted). at p. 619.

Court of Appeals Will Correct Plain Error

State v. Earls, 246 OrApp 578 (2011)

Holding:   Term “federal courts” in repeat offender statute does not include military courts; Merging convictions for purposes of sentencing is not the same as merging convictions; and, Trial court’s failure to merge the convictions represented plain error, and, even though Defendant didn’t raise the merger issue at trail, Court of Appeals will consider the error and exercise its discretion to correct it.

1)   Generally, undefined statutory terms are given their plain, natural and ordinary meaning. However, where such terms have a well-defined legal meaning, Courts adopt the specialized definition. at p. 582.

2)   Term federal court is a legal term of art with a specialized meaning, and, is defined by Black’s Law Dictionary as “(a) court having federal jurisdiction.” at p. 582.

3)   Review of federal constitution and case law shows that courts-martial do not exercise the same jurisdiction as that conferred upon Article III federal courts. at pp. 582-84.

Construction Cannot Lead to Absurd Results

State v. Newman, 246 OrApp 334 (2011)

Holding:   DUII is a strict liability offense; Defendant’s metal state was irrelevant; therefore, trial court correctly ruled that Defendant had no right to present evidence that he was “sleep-driving.”

1)  “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. 337.

2)   According to the 1990 Oregon Supreme Court, no text in any Oregon DUII statute, no Oregon appellate decision, nor, any testimony before any legislative committee has ever suggested that the crime of DUII requires proof of a culpable mental state. at pp. 338-39.

3)   Courts will not adopt a statutory construction that leads to absurd results. at p. 340.