Archive for August, 2012

Notice to Trial Atty Controls Timing of Appeal

State v. Mullins, 352 Or 343 (2012)

Holding:     When Defendant has hired a separate attorney to handle his appeal, but, the original trial attorney has not withdrawn and still appears at post-judgment proceedings, notice to original attorney that a supplemental judgment has been entered begins the 30-day clock on the right to appeal the supplemental judgment.

1)    “(W)hen construing statutes, court first considers statutory text and context, and, to extent useful to court’s analysis, legislative history.” explaining State v. Gaines. at p. 349.

2)     Prior case law interpreting the statute is part of a statute’s context. at p. 349.

3)     When key verb in a statute is passive, no particular actor is designated. at p. 349.

4)    The actual words of the statute are the most persuasive evidence of legislative intent. at p. 362.

Passive Voice Frustrates Textual Analysis

State v. Klien, 352 Or 302 (2012)

Holding:     Defendant had no standing to challenge the body-wire order which, in turn, produced evidence which led to his conviction.

1)    Courts determine the meaning of a statutory phrase “by examining the text and context of the statute – including related statutes and case law – and then looking to legislative history as necessary.” referencing State v. Gaines. at p. 309.

2)    Since the statutory definition – “a person against whom the interception was directed” – is written in the passive voice, who or what does the directing is not ascertainable from text. at p. 309.

3)   The legislative history of the statute supports the interpretation of the statute suggested by the “text and context” examination. at p. 310.

4)   Where legislative history reveals that intent was to harmonize state electronic surveillance law with federal law, “we treat pre-existing U.S. Supreme Court decisions * * * as indicative of the legislature’s intent * * *.” at p. 310-11.

Repeated Phrase Given Exact Same Meaning

McCollum v. DCLD, 252 OrApp 147 (2012)

Holding:   DCLD erred in not allowing owners to add one additional homesite to their rural Jackson County property.

1)   “We decide the meaning of a statute from the text, context, and useful legislative history of the provision.” citing State v. Gaines. at p. 156.

2)   When related statutory provisions that were enacted as part of the same law use an identical phrase, courts give the phrase the same meaning in both instances. at p. 156.

3)   Staff Measure Summaries are valid indicators of legislative intent. at p. 158.

Committee Counsel’s Statement Shows Intent

Berry and Huffman, 251 OrApp 744 (2012)

Holding:   Where stipulated judgment of divorce provided that each party would pay his or her own attorney fees, attorney fees could not be awarded in action to enforce the stipulated judgment, this even though ORS 107.104 allows a court to enforce a stipulated judgment by imposing “any remedy” available for such enforcement.

1)   When construing a statute, courts seek to determine legislative intent. citing PGE v. BOLI. at p. 748.

2)   When construing a statute, “we examine the text, context, and, any useful legislative history to ascertain what the legislature most likely intended.” citing State v. Gaines. at p. 748.

3)   Courts are responsible for construing the statute correctly, even if neither party proffers the correct interpretation. at p. 748.

4)  Statement of committee counsel as to what the drafters of the bill intended is legitimate part of legislative history. at p. 750.

Pamphlet Provides Intent Behind Referred Act

Ericsson v. DCLD, 251 OrApp 610 (2012)

Holding:    DCLD did not err in denying landowners in rural Washington County right to “home sites” under Ballot 47.

1)   Courts discern the meaning of statutory phrases “from the text, context, and useful legislative history of the provision.” citing State v. Gaines & PGE v. BOLI. at p. 621.

2)   Where the statute is the result of a referral, the legislative history is the “record of its popular adoption, including the ballot title and explanatory statement in the voters’ pamphlet.” at p. 621.

3)   If there is no statutory definition, Courts give common words their ordinary meaning and consult contemporary dictionaries to divine what is ordinary. at p. 621.

4)   Each part of a statute is construed with an eye toward other parts “in an attempt to produce a harmonious whole.” at p. 624.

Rule Implied in one Statute, not Chapter-Wide

Rice v. Rabb, 251 OrApp 603 (2012)

Holding:   The statute of limitations on actions for the taking of personal property does not incorporate a “discovery rule” – staying the running of the clock until the Plaintiff has actual or constructive notice of the injury – if such discovery rule is not expressly included.

1)   Questions of legislative intent are resolved “using the usual methodology set forth in State v. p. 606.

2)   Fact that this particular statute of limitations, which has no express discovery rule, references one that does, shows that when the legislature intends to include such a rule, it knows how to do so. at pp. 606-07.

3)   Even though the Supreme Court found, by implication, a discovery rule in one of the statutes in the chapter, that doesn’t mean the same is true for all the statutes in the chapter. at p. 608.

Agency Must Construe all Relevant Statutes

May Trucking Co. v. Employment Dept., 251 OrApp 555 (2012)

Holding:   The department failed to consider the entire statutory scheme when allowing claim for unemployment benefits, and, sought to too narrowly limit the issues the employer could raise in opposition.

1)   “(O)ur task is to determine the legislature’s intent by examining the text of the statute in context, as well as, if necessary, legislative history and applicable cannons of statutory construction.” citing State v. Gaines. at p. 559.

2)   An agency’s methodology must show an “understanding of how the statutes work together.” at p. 563.

Staff Summaries can Show Legislative Intent

State v. Nix, 251 OrApp 449 (2012)

Holding:   Each individual animal was a “victim,” which prohibited the merger of twenty (20) separate violations of animal neglect statutes, even though they all arose out of the same span of time.

1)   Courts construe meaning of statute “by examining its text in context along with relevant legislative history and, if necessary, other aids to construction.” citing State v. Gaines. at p. 453.

2)   Courts are obligated to construe the statute correctly, and, therefore, are not confined to the meanings proffered by the parties. at p. 453.

3)   Where a criminal statute does not expressly identify who is the victim if the statute is violated, courts examine “the statute to identify the gravamen of the crime” to determine the class of persons the legislature intended to protect. at p. 454.

4)   Where a definitional statute expressly designate the statutes to which it applies, that definition is inapplicable to statutes not listed. at p. 456.

5)   In this case, both the staff measure summary and testimony of non-legislative drafters support tentative conclusions drawn after a text and context analysis. at p. 461-62.