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    When Defendant has hired a separate attorney to handle his appeal, but, the original trial attorney has not withdrawn and still appears at post-judgment proceedings, notice to original attorney that a supplemental judgment has been entered begins the 30-day clock on the right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

Commentary is Important Indicator of Intent

California Casualty Indemnity v. Federated Mutual, 251 OrApp 371 (2012)

Holding:   Arbitration is the sole avenue for resolving any inter-insurer reimbursement matters involving PIP benefits.

1)    “When construing a statute we examine the text of a statute in context, along with any relevant legislative history, to discern the legislature’s intent.” citing State v. Gaines. at p. 374.

2)    The legislative commentary on PIP benefits is an important part of the legislative history. at p. 377.

3)    “There is no indication in the text, context, or legislative history * * * that the legislature intended to devise an inter-insurer reimbursement scheme where some disputes would be subject to mandatory arbitration, and others, by implied omission, could be litigated in a circuit court action.” at p. 377.

Subsequent Decisions not Part of Textual Test

State v. McDaniel, 251 OrApp 345 (2012)

Holding:   Fact that police attracted Defendant by posting a fictitious ad on craigslist offering to trade sex for drugs did not amount to entrapment.

1)   We “determine the intended meaning of (a) statute by examining its text in context, along with legislative history and, if necessary, other aids to construction.” citing State v. Gaines. at p. 352.

2)  Where there is no statutory definition, Courts give common words their “ordinary” meaning and consult contemporary dictionaries to divine what is ordinary. at p. 352.

3)   A statute’s context includes the state of the common law at the time of its enactment. at p. 353.

4)  “Later judicial decisions, because they were not available for consideration by the legislature at the time of enactment, do not bear on the meaning of the statutory text.” at p. 353.

5)   Commentary to the 1971 revision of the criminal code, and, the federal cases referenced therein, provide important legislative history. at pp. 354-57.

6)   Past court decisions interpreting the statute, even if they didn’t employ the State v. Gaines methodology, are part of a statute’s context. at pp. 358-59.

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.

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