Archive for June, 2012

Synonyms Bolster Court’s Construction

State v. McBride, 352 Or 159 (2012)

Holding:   Child endangerment statute makes it illegal to permit a person under 18 to enter or remain in place where unlawful drug activity is occurring. Defendant didn’t own the house, and, the children were the offspring and guest of the person who did, and, Defendant didn’t do anything to affirmatively make the children’s presence possible. Thus, defendant didn’t permit them to be there, and trial court should have granted motion for acquittal.

1)   “To determine the legislature’s intent * * * we consider the statute’s text, context and legislative history.” citing State v. Gaines. at p. 164.

2)  The commentary to the 1971 overhaul of the criminal code supports the conclusion drawn from examining the text. at pp. 164-65.

3)  Courts will look at the definitions of synonyms to bolster its choice of which definition more closely matches legislative intent. at p. 166.

“The” Doesn’t Always Refer to a Single Thing

SAIF v. DeLeon, 352 Or 130 (2012)

Holding:   Injured worker received an 11 percent permanent partial disability. SAIF requested a hearing before an administrative law judge (ALJ), who agreed with SAIF and reduced the permanent partial disability to zero. Claimant appealed, and, the Workers’ Comp. Board reinstated the 11 percent award. Claimant allowed attorney fees for efforts before the ALJ, even though she lost, because she was successful on appeal.

1)  The initial examination when construing a statute is the text itself. citing State v. Gaines. at p. 133.

2)   Use of definite article “the” does not necessarily rule out the notion that it may take multiple tribunals before the question is resolved. Here, the use of “the” is grammatically correct either way the statute is interpreted. at p. 138.

3)  Concentration on the tense of the word “be” does not support SAIF’s position. By changing the way the sentence is constructed, use of the present tense can mean many things. at p. 139.

4)   “Legislative inaction in response to a judicial interpretation of a statute does not amount to an endorsement of the court’s interpretation. at p. 141.

Fact That Text is Silent Creates the Ambiguity

Mark Lathan Excavation, Inc. v. Deschutes County, 250 OrApp 543 (2012)

Holding:   In 1995, County allowed surface mining of a certain property, but neither the “Program to Meet the Goal” (PTMG) nor the assessment of the “Economic, Social, Environmental and Energy” (ESEE) consequences as to the decision expressly addressed mining of a hillside that was part of the property. County was correct in requiring a Post Acknowledgment Plan Amendment before the hillside could be mined.

1)   Ambiguity does not require confusion as to the meaning of a particular word or phrase. Sometimes, fact that the text is silent creates the ambiguity. at p. 555.

2)   Here, the existing ESEE is part of the legislative history, and legislative history may be used “to convince a court that superficially clear language actually is not so plain at all–that is, that there is a kind of latent ambiguity in the statute.” quoting State v. Gaines. at p. 556.

Scope of Preemption Question of Construction

Homebuilders Assoc. Of Metro. Portland v. Metro, 250 OrApp 437 (2012)

Holding:   Metro ordinance extending a construction excise tax and enlarging the uses of that tax revenue did not amount to imposition of a new construction excise tax of the kind prohibited by a 2007 state statute.

1)   Staff Measure Summaries are legitimate indicators of legislative intent. at p. 443.

2)   The scope of the preemptive effect of a state law is a question of statutory construction, and questions “of statutory construction (are) resolved by resort to the familiar methodology set forth in State v. Gaines, (cite omitted), starting with the statutory text in context.” at p. 443.

3)  While the general rule is that undefined terms are given their plain and ordinary meanings as shown by contemporary general dictionaries, “the word ‘tax’ is most often used in a legal context. Thus, we look first to its technical legal meaning.” at p. 444.

Parallel Subsections Given Parallel Readings

State v. Johnson, 250 OrApp 429 (2012)

Holding:   A blasting cap, still in its commercial packaging and outfitted with a metal shunt to act as a safety, qualified as a bomb within the statute prohibiting unlawful possession of a destructive device.

1)   When construing statutes “we examine the text of a statute in context, along with any relevant legislative history, to discern the legislative intent.” citing State v. Gaines. at p. 433.

2)  Two parallel subsections of the same statute should, typically, be given parallel readings. at p. 434.