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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Cortez v. Nacco Materials Handling Group, 248 Or 435 (2012)

Holding:   While an LLC, acting as an employer, is shielded from lawsuits by the exclusive remedy provision of the workers’ comp statutes, that protection does not extend to members of the LLC.

1)  “In determining legislative intent, we consider the statutory text, context, and any relevant legislative history.” citing State v. Gaines. at p. 440.

2)   A Court cannot insert in the statute what has been omitted, or omit what has been inserted. citing a pre-Gaines case not named PGE v. B.O.L.I. at p. 440.

3)   If the legislature had intended to include members of an LLC in the exclusive remedy statutes, a review of other LLC statutes shows that it knew how to do so, expressly. at pp. 441-42.

4)   Case law supports the reasoning adopted, here. at p. 442.

5)   CLE materials are not authority of any kind. at p. 444.

6)   “Generally, commentary from a uniform act that the Oregon legislature has enacted is relevant” indicator of legislative intent. at p. 444.

Oregon AFSCME Council 75 v. Hood River County, 248 OrApp 293 (2012)

Holding:   The county committed an unfair labor practice when it refused to deduct from each paycheck a percentage, rather than a set amount.

1)   A Court construes statutes by examining “the text of the statute in context, along with any helpful legislative history provided by the parties and, if necessary, by applying relevant canons of statutory construction. citing State v. Gaines and PGE v. B.O.L.I. at p. 298.

2)  Where there is no statutory definition, Courts give terms their plain and ordinary meanings. at p. 298.

3)   Among the terms Webster’s uses to define amount is the word sum. at p. 299.

4)  Webster’s defines sum as, among other things, “an indefinite or specified amount of money.” at p. 299.

5)   Furthermore, the statute requires the county to deduct an “amount of money indicated” in a written request from the union. Webster’s defines the verb indicate as pointing “toward with more or less exactness.” This argues against amount being defined as a sum certain. at p. 299.

Derkatsch v. Thorp, Purdy, Jewett, 248 OrApp 185 (2012)

Holding:   While the relevant statute authorized fees from the protected person’s resources for efforts expended during the successful protective proceeding, the statute did not authorize payment of fees for efforts expended in a separate case on behalf of that person prior to the protection order being entered.

1)  Courts resolve issues of statutory construction “by examining the statutory text and context, any pertinent legislative history, and, if necessary, applying maxims of construction.” citing State v. Gaines and PGE v. B.O.L.I. at p. 193.

2)   Paragraphs two (2) and three (3) of the statute require court approval before payment for the services described in those paragraphs. Paragraph one (1) does not require prior approval. This difference in wording in no way prohibits a Court from ordering payment of funds pursuant to paragraph one (1). at pp. 194-95.

3)   Even if the benefits of the separate law suit accrued to the protected person after she received that status, a plain reading of the statute prohibits payment under that statute for work done on a separate law suit prior to the protection order being entered. at p. 197, ftn 6.

Butcher v. SAIF Corp., 247 OrApp 684 (2012)

Holding:   Paragraph 1(a) of the relevant workers’ comp statute authorizes payment only where the curative treatment is prescribed “in lieu of hospitalization.” Paragraph 1(b) of the same statute lacks the “in lieu of hospitalization” language, and, therefore, benefits are authorized whenever curative treatment is prescribed for any reason.

1)   Courts begin the task of statutory construction by examining the text of the relevant statute in context. citing State v. Gaines. at p. 687.

2)   “Context includes other provisions of the statute, applicable case law interpreting those provisions, and prior legislative changes to the statute.” citing a pre-Gaines Oregon Supreme Court case not named PGE v. B.O.L.I. at p. 687.

3)   Sometimes, use of the definite article “the” indicates a legislative intent to refer to a previous part of the statute, but not always. at p. 690.

4)   If the legislature had intended the two (2) paragraphs to mean exactly the same thing, it is likely that the legislature would have used exactly the same language. Here, the wording of the two (2) paragraphs is substantially different, suggesting that the legislature intended different meanings. at p. 690-91.

A.G. v. Guitron, 351 OR 465 (2011)

Holding:   ORCP 44C requirement that “claimant shall deliver to the requesting party a copy of all written reports * * * relating to the injury” (emphasis mine) was not limited to the reports of treating physicians, but included reports prepared by medical experts hired as litigation experts.

1)   Rules of Civil Procedure are subject to the usual method of statutory construction, meaning “we look to its context as well as its text, and * * * to the extent we deem appropriate, we may also consider legislative history.” at p. 471.

2)   The context of a specific ORCP includes the statutes that form the predecessors to the rule. at p. 471.

3)  Where the state bar drafted the language that, unchanged, became the statute, testimony of the bar’s representatives is a prime indicator of the legislature’s intent. at pp. 473-478.

4)   Unless the legislature amends the relevant portion of the ORCP upon enactment, it is the intent of the Council on Court Procedure that governs the interpretation of the rule. at p. 479.

5)   “The words of statutes and rules of civil procedure are the best indication of the intent of those who promulgate them.” Accordingly, contextual clues and legislative history must be strong to overcome unambiguous language like “all written reports * * * relating to the injury” (emphasis mine). at p. 484.