Archive for April, 2012

Semantic Differences Sometimes Unimportant

State v. Miskell/Sinibaldi, 351 Or 680 (2012)

Holding:   Statutory phrase “circumstances * * * [that] are of such exigency that it would be unreasonable to obtain a court order,” given the legislative history, sought to convey the same requirements as the phrase “exigent circumstances.”

1)   Fact that the legislature allowed police greater leeway when investigating certain crimes does not logically foreclose the possibility that the lawmakers intended the more-stringent standard to apply to other types of crime. at p. 692.

2)  Even though the case could “most likely” be resolved by examining the “text and context” alone, the Court may consider the statute’s legislative history, when such “history is useful to the court’s analysis.” at p. 692-93.

3)   The legislative history dating back decades shows that the lawmakers “understood the phrases to be interchangeable,” even though the two phrases are semantically different. at p. 693.

Existing Cases Come With Borrowed Statute

Page v. Parsons, 249 OrApp 445 (2012)

Holding:   Trial Court did not abuse its discretion by denying plaintiff’s motion for “specified” discovery. Nor, did the Court err “as a matter of law:” a) When it refused to schedule a second opportunity for presentation of oral argument; or, b) When it granted defendant’s motion for attorney fees.

1)  “Plaintiff’s assertions are not supported by the statute’s text, context, or legislative history.” referencing State v. Gaines and PGE v. BOLI. at p. 459.

2)   Although statute sets forth two steps for resolving a special motion to strike, it does not require that the Court hold more than one hearing. Indeed, such a notion runs counter to the statute’s context, which shows a legislative intent that “special motions to strike” be filed early in the process and be heard by the Court in short order. at p. 460.

3)   The statute’s reference to “[a] hearing” undermines any claim that the Court is required to allow multiple hearings before deciding a special motion to strike. at p. 460.

4)   The legislative history reveals an express emphasis of the general rule that when the legislature borrows a statute from another state, it also borrows the existing case law. at p. 461.

Standard Method Used to Construe Rules

Protect Grand Island Farms v. Yamhill County, 249 OrApp 223 (2012)

Holding:   Where a single site contains two layers of aggregate separated by a layer of clay, the average thickness of the aggregate resource includes all the aggregate available, even if the aggregate is “physically discontinuous.”

1)   Courts employ the same methodology to construe administrative rules as they do when construing statutes. at p. 230.

2)  “We examine the text of the rule in context to discern the intent of the body that promulgated the rule.” at p. 230.

3)  Where there is no statutory definition, Courts give common words their “plain and ordinary” meaning, and consult contemporary dictionaries to divine what is plain and ordinary. at pp. 230-31.

4)   Often, use of the definite article “the,” followed by a singular noun, conveys an intent to refer to a one particular thing. However, that is not always the case. at pp. 231-32.

5)  Where application of the “text and context” analysis fails to resolve the issue, and, there is no relevant history surrounding the rule’s adoption, Courts resorts to maxims of construction. at p. 232.

Natural Reading Almost Adds Word to Statute

State v. Bobbitt, 249 OrApp 181 (2012)

Holding:   Oregon’s bank privacy laws allowed banks to disclose financial records to the police when there is suspicion that the law has been violated. This requires that the bank have an independent suspicion, not that it rely on the fact that the police suspect that the law has been violated.

1)   Courts divine legislative intent “by examining the text of the statute in context, as well as, if necessary, legislative history and applicable canons of statutory construction.” citing State v. Gaines. at p. 187.

2)  Where there is no statutory definition, Courts give common words their “plain and ordinary” meaning, and consult contemporary dictionaries to divine what is plain and ordinary. at p. 187.

3)   Where a statute’s context, plus the desire for a “natural reading” compel it, a Court will adopt a construction that almost adds a word to the statute. at pp. 189-93.