Brasher’s Cascade Auto Auction, Inc. v. Leon, 247 OrApp 535 (2011)

Holding:   The statutory phrase “inventory financing security interest” encompasses “float agreements,” which allow auction customers to purchase vehicles on credit.

1)   A statutory phrase is construed by examining the text and context of the statute, as well as “the legislative history that the parties have proffered and giving that history such weight, if any, as it appears to merit.” citing State v. Gaines. at p. 540.

2)  Where a phrase is not statutorily defined, a Court reviews “the plain, natural, and ordinary meaning of its component terms.” at p. 540.

3)   The word inventory is defined by Webster’s as “the quantity of good or materials on hand: STOCK, SUPPLY.” at p. 540.

4)   Webster’s defines the verb financing as “* * * to sell on credit : to supply on credit * * *.” at p. 540.

5)   “Finally, the Vehicle Code defines a ‘security interest’ as ‘an interest in a vehicle reserved * * * (to secure) payment or performance of an obligation * * *.’” at pp. 540-41.

6)   “Whatever the legislative history might show about the legislature’s intentions, these intentions must be reflected in actual statutory wording that, when reasonably construed, is capable of carrying out such an intention.” No such showing is made, here, “and we do not discern” how such a showing could be made. at p. 542.

7)   Legislatures often enact broadly worded statutes that address more than the specific issue which led to the statute. at p. 542.

State v. Hesedahl, 247 OrApp 285 (2011)

Holding:   Being within spitting distance and verbally encouraging a person committing an assault constitutes aid.

1)   “We discern legislative intent by considering the text, context, and any helpful legislative history of the statute.” citing State v. Gaines. at p. 289.

2)   Neither Webster’s nor Black’s include verbal encouragement in their definition of aid, but use of the verb aided, “when accompanied by the companion’s proximity, encompassed verbal encouragement.” at p. 289.

3)   Other sections of the criminal code, supported by the Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report, and, court decisions, define an aider as someone “actually present, within sight, and able to aid.” at p. 290.

Thrifty Payless, Inc. v. Cole, 247 OrApp 232 (2011)

Holding:   For purposes of the workers’ comp statutes, a worker’s “regular” work includes the overtime the worker regularly worked, on a volunteer basis, before the injury.

1)   The relevant statute is so redundant that the statutory definition of the phrase regular work is to be disregarded. at p. 236, ftn 3.

2)   If no statutory definition is available, Courts give words of common usage their “plain, natural, and ordinary meaning[s].” at p. 236.

3)  Webster’s defines regular as meaning “steady or uniform in course, practice, or occurrence : not subject to unexplained or irrational variation : steadily pursued * * *.” at p. 236.

4)  Webster’s defines work as “* * * the labor, task, or duty that affords one his accustomed means of livelihood * * *.” at p. 236.

5)  Webster’s defines job as “* * * a regular remunerative employment : POSITION, SITUATION * * * a specific duty, role, or function : work customarily performed * * *.” at p. 236.

6)   “All of these definitions indicate that a worker’s ‘regular work’ consist of the paid labor, task, duty, role, or function that the worker performs for an employer on a recurring or customary basis.” at p. 237.

State v. Trivitt, 247 OrApp 199 (2011)

Holding:   JG, a former boyfriend, obtained an FAPA restraining order against Trivitt. Trivitt placing a sign at the end of JG’s new girlfriend’s driveway informing the new girlfriend that JG suffered from Genital Herpes did not constitute a violation of the restraining order which prohibited, among other things, “interfering” with the protected person.

1)   “When construing a statute, we examine its text in context and in light of any pertinent legislative history in order to determine the legislature’s intent.” citing State v. Gaines. at p. 203.

2)   The legislature is generally presumed to be aware of existing judicial decisions, and, to have enacted the statute with those decisions in mind. at p. 205.

3)  In the early 1990’s, the Court of Appeals, citing Webster’s, announced that, for purposes of the FAPA statute, the definition of interfere included “to take part in the concerns of others.” at p. 204.

4)  The legislature subsequently adopted a statutory definition of interfere more narrow than that of the Court, viz: “(T)o interpose in a manner that would reasonably be expected to hinder or impede a person in the petitioner’s situation.” at p. 204.

5)  When there is no statutory definition of words used in the statute, the legislature is presumed to have intended the the terms have their “plain, natural, and ordinary meaning. citing, PGE v. BOLI. at p. 205.

6)   Webster’s defines interpose, among other things, to mean “to put (oneself) between.” at p. 205.

7)  Webster’s defines hinder as “to do harm to : impair, damage” or “to make slow or difficult the course or progress of.” at p. 205.

8)  Webster’s defines impede to mean “to interfere with or get in the way of the progress of : hold up : block.” at p. 205.

9)  While it is not wholly implausible to suggest that the statutory definition of interfere includes nonphysical interference, the fact that the legislature failed to include in the statutory definition the more expansive judicial definition which already existed suggests that the legislature intended the more narrow meaning. at p. 205.

10)  To define interfere so broadly as to preclude someone from simply revealing personal information about the protected person could potentially run afoul of the constitutional protection of free speech. And, the avoidance cannon counsels that if there are two plausible constructions, one constitutional and the other not, Courts should avoid the unconstitutional construction. at p. 205-06.

Jones v. Douglas County, 247 OrApp 56 (2011)

Holding:   A general law which derails an active appeal by creating a statute of repose that applies retroactively not per se unconstitutional.

1)   Whether a statute applies retroactively, as well as prospectively, is a question of legislative intent to be decided by application of the standard principles of legislative construction. pp. 76-80.

State v. Gruver, 247 OrApp 8 (2011)

Holding:   The “restitution schedule” provided by the prosecutor at sentencing offered no support for the amounts sought. However, defendant failed to preserve the error at the sentencing hearing.  Evidence produced at trial supported the award, though, so the error was not plain and the Appeals Court had no discretion to examine the correctness of the award.

1)   While prior case law is, generally, part of a statute’s text and context, these prior cases will be ignored if the prior cases failed to apply the standard principles of statutory construction laid out in State v. Gaines. at p. 12.

2)   Additionally, reliance on decisions based on a former version of the statute are particularly unavailing where the current version of the statute contains requirements not found in the former. at p. 16.

State v. Glushko/Little, 351 Or 297 (2011)

Holding:   For purposes of the speedy trial statute: a) Consent means express agreement, and cannot be inferred from a failure to appear; and, b) A delay which results from Defendant’s actions, such as leaving the state to avoid prosecution, is reasonable, even if the state fails to aggressively effectuate prosecution.

1)   “* * * we strive to ascertain the meaning of the statute most likely intended by the legislature that adopted it, by examining the statute’s text, in context, and where appropriate, relevant legislative history and cannons of statutory construction.” citing State v. Gaines. at p. 305.

2)   Much of Oregon’s territorial code was borrowed from Iowa. at p. 306.

3)   Placement of additional words in a statutory phrase, set off by comas, suggests that the additional words relate to the initial phrase. at p. 306.

4) The interpretation of this statute adopted in this case is consistent with other contemporary, and related statutory provisions. at p. 307.

5)  Nothing in the text or legislative history suggests that the amendments by the 1959 legislature intended to change the substance of the speedy trial statute. at p. 309.

6)   It is unclear what relevance a dictionary of British usage has to demonstrating what the Oregon Legislature intended by its statutes. at p. 311.

7)   When consulting a dictionary for statutory interpretation, it is important to confine the search for definition to the article of speech actually used. For instance, if the statute uses the word as a noun, it is error to offer a definition of the word when used as a verb. at p. 311.

8)   “(S)tatutes are not interpreted by culling dictionaries for favorable definitions. at p. 311.

9)   Courts cannot construe statutes by interpreting words in a vacuum. “Dictionaries, after all, do not tell us what words mean, only what words can mean, depending on their context and the particular manner in which their used. (cite omitted).” at pp. 311-12.

10)  When statutory amendments didn’t change the phrasing at issue, “legislative views about the portions not amended are not pertinent.” at p. 312.

State v. Swanson, 351 Or 286 (2011)

Holding:   Statute allowing juries to consider lessor-included crimes does not allow them to consider lessor-included violations. Thus, Defendant charged with reckless driving – a misdemeanor – not entitled to instructions as to the elements of careless driving – a violation.

1)   While the lessor-included statute does not define “crime,” other statutes define “crime” and “violation” as two different things. Thus, fact that the lessor-included statute uses the term “crime” but not “violation” would seem “at first blush to compel a conclusion that the legislature intended the statute to reach crimes but not violations.” at p. 289.

2)   When attempting to determine the legislature’s intent, a Court looks “to the intent of the legislature that enacted the statute, and we also consider any later amendments or statutory changes that were intended by the legislature to modify or otherwise alter the meaning of the original terms of the statute.” at p. 290.

3)   While, in general, definition of a term in one area of the ORS does not necessarily control its meaning in another area, (cites omitted) “* * * it is clear from the legislative history of the 1973 (criminal procedure) code that the drafters intended to import into the 1973 code the 1971 definitions * * *.” at p. 293-94.

State v. Smith, 246 OrApp 614 (2011)

Holding:   Where the tribe’s code permits it, a non-tribal officer in “hot pursuit” can make an arrest, on reservation, for traffic offenses committed by a tribal member off reservation.

1)   When interpreting codes other than the Oregon Revised Statutes – i.e. administrative rules, city ordinances, tribal codes – Courts use the usual framework for statutory construction. at p. 619.

2)   “In statutory construction, we begin by examining the text and context of the statute, in light of any useful legislative history. (cite omitted). If the drafters’ intent remains unclear after examining text, context and legislative history, ‘the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.’ (cite omitted). We may not, however, ‘insert what has been omitted, or * * * omit what has been inserted[.]’” (cite omitted). at p. 619.

State v. Earls, 246 OrApp 578 (2011)

Holding:   Term “federal courts” in repeat offender statute does not include military courts; Merging convictions for purposes of sentencing is not the same as merging convictions; and, Trial court’s failure to merge the convictions represented plain error, and, even though Defendant didn’t raise the merger issue at trail, Court of Appeals will consider the error and exercise its discretion to correct it.

1)   Generally, undefined statutory terms are given their plain, natural and ordinary meaning. However, where such terms have a well-defined legal meaning, Courts adopt the specialized definition. at p. 582.

2)   Term federal court is a legal term of art with a specialized meaning, and, is defined by Black’s Law Dictionary as “(a) court having federal jurisdiction.” at p. 582.

3)   Review of federal constitution and case law shows that courts-martial do not exercise the same jurisdiction as that conferred upon Article III federal courts. at pp. 582-84.

State v. Newman, 246 OrApp 334 (2011)

Holding:   DUII is a strict liability offense; Defendant’s metal state was irrelevant; therefore, trial court correctly ruled that Defendant had no right to present evidence that he was “sleep-driving.”

1)  “We examine the text of the statute in context, along with any relevant legislative history, to discern the legislature’s intent.” citing State v. Gaines. at p. 337.

2)   According to the 1990 Oregon Supreme Court, no text in any Oregon DUII statute, no Oregon appellate decision, nor, any testimony before any legislative committee has ever suggested that the crime of DUII requires proof of a culpable mental state. at pp. 338-39.

3)   Courts will not adopt a statutory construction that leads to absurd results. at p. 340.

Balboa Apartments v. Patrick, 351 Or 205 (2011)

Holding:   The question of service of an amended complaint in a FED action is controlled by the ORCP, not the FED statute.

1)    When the question is one of statutory construction, “we examine the text of the statute in context and, where appropriate, legislative history and pertinent canons of statutory construction.” citing State v. Gaines. at p. 209.

2)  The various FED statutes show that the legislature knows how to specify FED procedures that differ from the general rules set out in the ORCP. Since no special rules are mentioned as to dealing with amended complaints, those in the ORCP control. at p. 212.

Arken v. City of Portland, 351 Or 113 (2011)

Holding:   The 2003 PERS reform legislation did not violate the contractual rights of certain PERS employees, the theory of promissory estoppel did not lie, and, plaintiff’s wage claims were spurious.

1)    “In interpreting the terms of a statute, the court will examine the text and context of the statute and consider the legislative history of the statute where that legislative history is useful in determining the meaning of the terms used.” citing State v. Gaines. at p. 133.

2)   When discerning legislative intent, the Court focuses on the intent of that particular legislature and that particular time and discounts subsequent events. at p. 133.

3)    It is particularly important to focus on the correct legislature when analyzing statutes to determine whether they constitute a statutory contract. at p 133.

4)    The text of the statute is best evidence of legislative intent. at p. 134.

5)    Fact that Supreme Court subsequently struck down one portion of the statute, has no effect on analyzing legislative intent, as subsequent events are to be discounted. at p. 134, ftn 15.

6)     Context and legislative history support the textual analysis. at p. 134.

7)  Only statutory terms that “unambiguously evince[ ] an underlying promissory, contractual legislative intent” (cite omitted) become part of a statutory contract. at p. 136.

8)     Courts disfavor holding that a statute is repealed by implication. at p. 137.

9)   Changes in the bill as it moves through the legislative process provide clues as to legislative intent. at p. 137.

10)   Respondents’ textual arguments place too much emphasis on specific words used. at p. 152.

11)  Much of the legislative history presents generalities about the overall intent of the legislation, which is of little help in discerning the precise parameters of a certain section. at p. 154.

12)   The PERS reform legislation changed frequently during the session, and, legislative history addressing versions of the bill the legislature did not enact are of little use. at p. 155.

13)   The legislative history directly relevant to Section 14b “is confusing and conflicting, and in any event, not enlightening.” Thus, it is entitled to little weight. at pp. 155-56.

14)   Cardinal rule of statutory construction that Courts are to avoid statutory interpretations that render parts of the statute redundant is not applicable here as the two statutory provisions are addressed to different concerns, one section looking forward and the other looking back. at pp. 156-57.

15)   Originally, the bill said the methods of recovering overpayment were “in lieu of, and not in addition to” any other authority available to PERB. Fact that the legislature deleted this language is insufficient to overcome the clear meaning of the mandatory term that PERS “shall” use the new methods. at pp. 158-59.

16)   Section 14b of the relevant bill stated that PERB “shall” use one of the two methods set out therein to recover overpayments. Fact that neither method will allow for total recovery is unimportant. The Court will not redraft statute even to avoid absurd results. at pp. 159-60.

State v. Neff, 246 OrApp 186 (2011)

Holding:   In traffic stop, where the police officer had informed the driver that he (the officer) was recording the conversation, the driver did not have to announce that he was recording the conversation, as well.

1)   “Our goal is to determine the intended meaning of * * * statutes by examining their text in context, along with relevant legislative history, and, if necessary, other aids to construction.” citing State v. Gaines. at p. 191.

2)   Generally, but not always, when the lawmakers employ “the passive voice with regard to an action that a statute either authorizes or requires (e.g., ‘may be established,’ ‘shall be made’), that usage indicates an intention to avoid specifying a particular actor to whom the statute’s command is directed.” at p. 191.

3)   Where the statute’s text does not conclusively inform the meaning of the statute, Courts turn to the context. at p. 191.

4)   “Statutory context includes earlier-enacted statutes, but does not include later-enacted statutes, including later-enacted subsections” of the statute at bar. at p. 192.

5)   Fact that subsections (a), (b), and (d) use the active voice, while (c) uses the passive voice, indicates that (c) applies to the conversation, in general, rather than any participant, in particular. at p. 193.

6)   Textual ambiguity not required before legislative history can be considered. citing State v. Gaines. at p. 194, ftn 1.

7)   Where text, context and legislative history provide no assistance, Courts must turn to maxims of statutory construction. at p. 194.

State v. Reynolds, 246 OrApp 152 (2011)

Holding:   Where Defendant signed a lease and, after missing some agreed-on payments, promised to “get back on track,” but, after a period of months, was evicted and left owing a disputed amount of money, there was no evidence from which to infer a conscious effort to steal by deception.

1)   When attempting to ascertain legislative intent, Courts “first look at the text and context of the statute, and will consider legislative history if it appears useful to the court’s analysis.” at p. 158.

2)  When analyzing a statute’s text, Courts give “words of common usage their ‘plain, natural and ordinary meaning.’” cite omitted. at p. 159.

3)   The phrase “intent to defraud” means different things in different statutes. at p. 159, ftn 4 and accompanying text.

4)   Prior case law supports the statutory interpretation announced in this case. at p. 159.