Archive for December, 2011

ORCP Interpreted Using Standard Method

A.G. v. Guitron, 351 OR 465 (2011)

Holding:   ORCP 44C requirement that “claimant shall deliver to the requesting party a copy of all written reports * * * relating to the injury” (emphasis mine) was not limited to the reports of treating physicians, but included reports prepared by medical experts hired as litigation experts.

1)   Rules of Civil Procedure are subject to the usual method of statutory construction, meaning “we look to its context as well as its text, and * * * to the extent we deem appropriate, we may also consider legislative history.” at p. 471.

2)   The context of a specific ORCP includes the statutes that form the predecessors to the rule. at p. 471.

3)  Where the state bar drafted the language that, unchanged, became the statute, testimony of the bar’s representatives is a prime indicator of the legislature’s intent. at pp. 473-478.

4)   Unless the legislature amends the relevant portion of the ORCP upon enactment, it is the intent of the Council on Court Procedure that governs the interpretation of the rule. at p. 479.

5)   “The words of statutes and rules of civil procedure are the best indication of the intent of those who promulgate them.” Accordingly, contextual clues and legislative history must be strong to overcome unambiguous language like “all written reports * * * relating to the injury” (emphasis mine). at p. 484.

There Must be Some Plausible Support in Text

Brasher’s Cascade Auto Auction, Inc. v. Leon, 247 OrApp 535 (2011)

Holding:   The statutory phrase “inventory financing security interest” encompasses “float agreements,” which allow auction customers to purchase vehicles on credit.

1)   A statutory phrase is construed by examining the text and context of the statute, as well as “the legislative history that the parties have proffered and giving that history such weight, if any, as it appears to merit.” citing State v. Gaines. at p. 540.

2)  Where a phrase is not statutorily defined, a Court reviews “the plain, natural, and ordinary meaning of its component terms.” at p. 540.

3)   The word inventory is defined by Webster’s as “the quantity of good or materials on hand: STOCK, SUPPLY.” at p. 540.

4)   Webster’s defines the verb financing as “* * * to sell on credit : to supply on credit * * *.” at p. 540.

5)   “Finally, the Vehicle Code defines a ‘security interest’ as ‘an interest in a vehicle reserved * * * (to secure) payment or performance of an obligation * * *.’” at pp. 540-41.

6)   “Whatever the legislative history might show about the legislature’s intentions, these intentions must be reflected in actual statutory wording that, when reasonably construed, is capable of carrying out such an intention.” No such showing is made, here, “and we do not discern” how such a showing could be made. at p. 542.

7)   Legislatures often enact broadly worded statutes that address more than the specific issue which led to the statute. at p. 542.

Different Version of the Word Provides Clue

State v. Hesedahl, 247 OrApp 285 (2011)

Holding:   Being within spitting distance and verbally encouraging a person committing an assault constitutes aid.

1)   “We discern legislative intent by considering the text, context, and any helpful legislative history of the statute.” citing State v. Gaines. at p. 289.

2)   Neither Webster’s nor Black’s include verbal encouragement in their definition of aid, but use of the verb aided, “when accompanied by the companion’s proximity, encompassed verbal encouragement.” at p. 289.

3)   Other sections of the criminal code, supported by the Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report, and, court decisions, define an aider as someone “actually present, within sight, and able to aid.” at p. 290.

Statutory Definition so Redundant it’s Useless

Thrifty Payless, Inc. v. Cole, 247 OrApp 232 (2011)

Holding:   For purposes of the workers’ comp statutes, a worker’s “regular” work includes the overtime the worker regularly worked, on a volunteer basis, before the injury.

1)   The relevant statute is so redundant that the statutory definition of the phrase regular work is to be disregarded. at p. 236, ftn 3.

2)   If no statutory definition is available, Courts give words of common usage their “plain, natural, and ordinary meaning[s].” at p. 236.

3)  Webster’s defines regular as meaning “steady or uniform in course, practice, or occurrence : not subject to unexplained or irrational variation : steadily pursued * * *.” at p. 236.

4)  Webster’s defines work as “* * * the labor, task, or duty that affords one his accustomed means of livelihood * * *.” at p. 236.

5)  Webster’s defines job as “* * * a regular remunerative employment : POSITION, SITUATION * * * a specific duty, role, or function : work customarily performed * * *.” at p. 236.

6)   “All of these definitions indicate that a worker’s ‘regular work’ consist of the paid labor, task, duty, role, or function that the worker performs for an employer on a recurring or customary basis.” at p. 237.

Courts Avoid Unconstitutional Constructions

State v. Trivitt, 247 OrApp 199 (2011)

Holding:   JG, a former boyfriend, obtained an FAPA restraining order against Trivitt. Trivitt placing a sign at the end of JG’s new girlfriend’s driveway informing the new girlfriend that JG suffered from Genital Herpes did not constitute a violation of the restraining order which prohibited, among other things, “interfering” with the protected person.

1)   “When construing a statute, we examine its text in context and in light of any pertinent legislative history in order to determine the legislature’s intent.” citing State v. Gaines. at p. 203.

2)   The legislature is generally presumed to be aware of existing judicial decisions, and, to have enacted the statute with those decisions in mind. at p. 205.

3)  In the early 1990’s, the Court of Appeals, citing Webster’s, announced that, for purposes of the FAPA statute, the definition of interfere included “to take part in the concerns of others.” at p. 204.

4)  The legislature subsequently adopted a statutory definition of interfere more narrow than that of the Court, viz: “(T)o interpose in a manner that would reasonably be expected to hinder or impede a person in the petitioner’s situation.” at p. 204.

5)  When there is no statutory definition of words used in the statute, the legislature is presumed to have intended the the terms have their “plain, natural, and ordinary meaning. citing, PGE v. BOLI. at p. 205.

6)   Webster’s defines interpose, among other things, to mean “to put (oneself) between.” at p. 205.

7)  Webster’s defines hinder as “to do harm to : impair, damage” or “to make slow or difficult the course or progress of.” at p. 205.

8)  Webster’s defines impede to mean “to interfere with or get in the way of the progress of : hold up : block.” at p. 205.

9)  While it is not wholly implausible to suggest that the statutory definition of interfere includes nonphysical interference, the fact that the legislature failed to include in the statutory definition the more expansive judicial definition which already existed suggests that the legislature intended the more narrow meaning. at p. 205.

10)  To define interfere so broadly as to preclude someone from simply revealing personal information about the protected person could potentially run afoul of the constitutional protection of free speech. And, the avoidance cannon counsels that if there are two plausible constructions, one constitutional and the other not, Courts should avoid the unconstitutional construction. at p. 205-06.

Retroactive Statute can Derail Active Appeal

Jones v. Douglas County, 247 OrApp 56 (2011)

Holding:   A general law which derails an active appeal by creating a statute of repose that applies retroactively not per se unconstitutional.

1)   Whether a statute applies retroactively, as well as prospectively, is a question of legislative intent to be decided by application of the standard principles of legislative construction. pp. 76-80.

Prior Cases Will, Sometimes, be Ignored

State v. Gruver, 247 OrApp 8 (2011)

Holding:   The “restitution schedule” provided by the prosecutor at sentencing offered no support for the amounts sought. However, defendant failed to preserve the error at the sentencing hearing.  Evidence produced at trial supported the award, though, so the error was not plain and the Appeals Court had no discretion to examine the correctness of the award.

1)   While prior case law is, generally, part of a statute’s text and context, these prior cases will be ignored if the prior cases failed to apply the standard principles of statutory construction laid out in State v. Gaines. at p. 12.

2)   Additionally, reliance on decisions based on a former version of the statute are particularly unavailing where the current version of the statute contains requirements not found in the former. at p. 16.