Wednesday, June 27th, 2012 at 7:49 pm
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.
Tuesday, June 26th, 2012 at 8:05 pm
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.
Monday, June 25th, 2012 at 8:18 pm
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.
Sunday, June 24th, 2012 at 8:26 pm
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.
Saturday, June 23rd, 2012 at 8:32 pm
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.
Sunday, May 27th, 2012 at 12:15 am
State v. McDowell, 352 Or 27 (2012)
Holding: Defendant was arrested and held for 236 days. On the day of trial, the Circuit Court dismissed the charges. Several days later, the State reindicted on the same charges and arrested Defendant again. For purposes of the statute limiting pre-trial custody, the clock began running the first time the defendant was arrested.
1) “Our task is to discern what the legislature contemplated in enacting (the statute), examining the text in context and, where appropriate, legislative history and other aids to construction.” citing State v. Gaines. at p. 30.
2) “Context may include other statutes enacted simultaneously with the statute at issue, (cite omitted), as well as prior versions of the same statute.” at pp. 30-31.
3) The statute says that if defendant’s custody is interrupted, the time he or she is not in custody after the interruption must be excluded from the 60-day limit. “That implies that the time which the defendant was in custody before the interruption does count.” at p. 32.
Saturday, May 26th, 2012 at 6:23 pm
Noble v. Dept. of Fish and Wildlife, 250 OrApp 252 (2012)
Holding: The ODFW correctly construed its rule regarding fish passage requirements, and, the rule is consistent with the fish passage statute.
1) Courts employ the same methodology to construe administrative rules as they do to construe statutes. at p. 259.
2) “At the first level of analysis, we examine the text and context of the rule to discern the intent of the agency (cite omitted).” at p. 259.
Friday, May 25th, 2012 at 6:35 pm
American Energy, Inc. v. City of Sisters, 250 OrApp 243 (2012)
Holding: City ordinance imposing a local fuel tax was enacted the day it was approved by the city council, not the day is was subsequently approved by the people at a citizen referendum election.
1) “We (construe statutes) by examining the text of a statute in context, along with any relevant legislative history, to discern the legislative intent.” citing State v. Gaines. at p. 247.
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. citing PGE v. BOLI, at p. 247.
Thursday, May 24th, 2012 at 7:05 pm
Blachana, LLC v. Bureau of Labor and Industries, 250 OrApp 80 (2012)
Holding: BOLI erred in finding that Blachana, which operated a restaurant and bar, was a “successor to the business” of NW Sportsbar, and, therefore, liable for wage claims brought against the former business.
1) “(W)e determine the legislature’s intended meaning of the relevant statutory text (cite omitted) by examining the text and context of the statute, including any relevant legislative history, and, if ambiguity remains after that examination, resorting to applicable statutory construction canons.” citing State v. Gaines. at p. 85.
2) Courts give statutory terms their “plain, natural, and ordinary meaning unless the text or context indicates that another meaning was intended.” at p. 86.
3) “We give words that have well-defined legal meaning those meanings.” at p. 86.
4) If there are no statutory definitions provided, Courts “look to definitions from dictionaries in use at the time the statute was enacted * * *.” at p. 86.
5) Legislature’s use of the word “or” suggests that the lawmakers intended that the two clauses contained in the sentence are “intended to be disjunctive and distinctive.” If the Court concludes that this is so, it should avoid an interpretation that renders the clauses repetitive. at pp. 87-88.
6) The common law “sometimes is helpful in providing a backdrop against which the statute was enacted.” at p. 88.
Friday, April 27th, 2012 at 7:44 pm
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.
Thursday, April 26th, 2012 at 8:00 pm
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.
Monday, April 23rd, 2012 at 8:26 pm
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.
Sunday, April 22nd, 2012 at 8:30 pm
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.
Tuesday, March 27th, 2012 at 3:33 pm
State v. Everett, 249 OrApp 139 (2012)
Holding: “(A) person commits the crime of solicitation when that person solicits an intermediary to procure a third party to commit the intended crime so long as the intermediary is aware of that intended crime.”
1) To discern the legislature’s intent, a Court first looks “at the text and context of the statute, and will consider legislative history if it appears useful to the court’s analysis.” citing State v. Gaines. at p. 143.
2) The Commentary to Criminal Law Revision Commission’s Proposed Oregon Criminal Code, Final Draft and Report is central to divining the legislative history of the criminal statutes. at p. 145.
Monday, March 26th, 2012 at 3:39 pm
State v. Christian, 249 OrApp 1 (2012)
Holding: A Portland City ordinance prohibiting most people from carrying a loaded firearm into a public place is not void on its face when measured against the 2nd Amendment or Article I, section 27 of the Oregon Constitution.
1) The Portland Code’s declaration that it should be “construed so as to render it consistent with state criminal law” means courts can apply definitions found in state law to terms not defined in the code. at p. 5.