Sheptow v. Geico General Ins. Co., 246 OrApp 18 (2011)

Holding:   With limited exceptions, people who use an insured motor vehicle with consent of the insured are entitled to Personal Injury Protection (PIP) benefits.

1)   “In interpreting statutes, out task is to attempt to discern the intent of the legislature. citing State v. Gaines. We begin by considering the text and context of the statute. Id. We then turn to any pertinent legislative history that the parties have offered and, if necessary, applicable cannons of construction. Id.” at p. 22.

2)   Neither the Court’s prior interpretation of the PIP statute, at p. 23-25, nor the legislative history of that statute, at p. 24, ftn 6, are relevant here because both predate the amendment of the general insurance statute expanding the requirement for PIP coverage to permissive users.

Young v. State, 246 OrApp 115 (2011)

Holding:   To allow recovery of interest on an award of post-judgment interest would allow collection of “compounding,” as opposed to “simple” interest, in violation of the controlling statute.

1)   “In interpreting a statute, our task is to determine the legislature’s intended meaning by examining the text of the statute in context, along with any helpful legislative history and, if necessary, other aids to construction.” at p. 119.

2)   The common understanding of the word wages is “compensation for performance of service by an employee,” and, unpaid post-judgment interest doesn’t fit within that definition. at p. 122.

State v. Cloutier, 351 Or 68 (2011)

Holding:   Defendent who pled “no contest” can’t appeal eventual sentence based on a Due Process claim.

1)   “We ascertain the legislature’s intentions by examining the text of the statute in its context, along with relevant legislative history, and, if necessary, cannons of construction.” citing State v. Gaines. at p. 75.

2)   Defendant’s proposed construction based on “plain reading” of the statute, “while not wholly implausible * * * becomes untenable when considered in the light of other indicia of legislative intent, in particular,” other parts of the same statute, related statutes and prior judicial constructions. at p. 76.

3)  The common meanings of the word exceed is to “enlarge beyond” and the word maximum is “an upper limit.” Thus, it is awkward to include by implication the Due Process Clause in a sentence using those two words, as the clause sets no maximum sentence in the ordinary sense of the word. at p. 95.

4)   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 p. 96.

5)   A statute’s context includes “other provisions of the same statute, the session laws, and related statutes. (cite omitted).” at p. 96.

6)   The fact that a proposed interpretation results in some redundancy is not necessarily fatal. However, “an interpretation that renders a statutory provision redundant should give us pause * * *.” at pp. 97-98.

7)   In the absence of evidence to the contrary, the legislature is presumed to use terms in related statutes consistently. (cite omitted)” at p. 99.

State v. Mullen, 245 OrApp 671 (2011)

Holding:   The victims of identity theft includes those who suffer a risk of loss from the exposure of their identification to misuse, even if no actual fraud occurs

1)   In construing a statute, “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. 675.

2)   Phrase “another person” simply distinguishes “the perpetrator of the crime from the person whose identity is misappropriated. It does not * * * indicate that the person is merely a secondary or collateral subject of the statute. (cites omitted)” at p. 676.

3)   Where a criminal statute does not expressly identify who qualifies as a victim, “the court examines the statute to identify the gravamen of the crime and determine the class of persons whom the legislature intended to directly protect * * *. (cite omitted).” at p 677.

4)   Legislative history provides “some support” for the construction arrived at after a plain reading, and, therefore, is worthy of notice. at p. 678.

5)   The staff measure summaries can provide evidence of legislative intent. at p. 678.

Klutschkowski v. PeaceHealth, 245 OrApp 524 (2011)

Holding:   Even though one subsection of the statute seems to allow a fee award for preparation of daily transcript fees, the other subsections confine such fees to transcripts prepared for an appeal. Confining all subsections to transcripts prepared for appeal is confirmed by looking at the evolution of the statute “over the last 30 years.”

1)   When construing a statute “we are guided by the principles of interpretation” set out in PGE v. BOLI “as amplified” in State v. Gaines. at p. 549.

2)   “‘In general terms, (when construing a statute) ‘we attempt to determine the meaning of the statute most likely intended by the legislature, examining the text in context along with any legislative history offered by the parties and, if necessary, relevant canons of construction.’ (cite omitted).” at p. 549.

3)   Part of a statute’s context is changes in the statute over time. at p. 549.

State v. Drown, 245 OrApp 447 (2011)

Holding:   There was insufficient evidence presented, as to the dental problems of some of the children, that the pain from lack of dental care rose to the level of criminal mistreatment.

1)  “To resolve (a) question of statutory intent, we first turn to the text” of the relevant statute. citing State v. Gaines and PGE v. Bureau of Labor and Industries. at p. 462.

2)   In the absence of a statutory definition, words of common usage are given their “plain, natural, and ordinary meaning.” at p. 462.

3)   In this context, “necessary and adequate” means failure “to provide for a dependent’s most basic needs * * * for safety and survival.” at p. 462.

4)   The words chosen by a bill’s sponsor, and, explained during committee debate, can be parsed to reveal legislative intent. at p. 463.

Green v. Douglas County, 245 OrApp 430 (2011)

Holding:   Open-siding pole buildings are the type of buildings allowed in Exclusive Farm Zones.

1)   “We glean (the legislature’s) intent from the text, context and legislative history of the statute, resorting, if necessary, to maxims of statutory construction.” citing, State v. Gaines. at p. 444.

2)   A dictionary definition of a given term should be rejected if a more particular meaning is suggested by the statutory context. at p. 444.

3)  If different subsections of a statute advance different objectives, it is error to automatically use one subsection to help define terms used in a different subsection. at p. 445.

Proctor v. City of Portland, 245 OrApp 378 (2011)

Holding:   The 2008 changes to Portland’s business tax, which had lain dormant since the 1987 legislation outlawing the assessment (then, labeled a fee) were insufficient to remove the tax from the sweep of the state statute.

1)  The meaning of business license tax as used in the relevant statute is “inextricably intertwined” with the use of that term in other statutes which originated in the same 1978 bill. at p. 383.

2)   Discussions between legislative committee members and the city’s representatives, as well as those representative’s testimony, helps illuminate legislative intent. at pp 386-90.

3)   Despite the cosmetic changes in the city’s code – such as changing the nomenclature of the assessment from “fee” to “tax” – “the city is subjecting plaintiffs to precisely the same harm that the 1987 legislature intended to prevent.” at p. 392.

State v. Rowland, 245 OrApp 240 (2011)

Holding:   If Defendant is jailed for parole violation, the 15-year clock is reset for purposes of using that conviction for impeachment purposes.

1)   “In construing a statute, 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. 244.

2)   Use of article the doesn’t necessarily refer to a single occurrence. Sometimes, the is used as a “function word” to limit application of a noun to that of “a succeeding element in the sentence * * *.” at p. 245.

3)  The controlling statute prohibits, for impeachment purposes, introduction of prior convictions more than 15 years after “the release of the witnesses from the confinement imposed for that conviction * * *. “‘For’ in this context most likely means ‘because of’ or ‘on account of. (emphasis mine).’” cite omitted. at pp. 244-45.

4)   Where the text, context and legislative history don’t answer or address the question at bar, the Court must resort to relevant maxims of construction. at p. 247.

5)   “The relevant maxim here is that ‘we are to construe the language of the statute in a manner that is consistent with its purpose * * *.” cite omitted. at p. 247.

Marolla v. DPSST, 245 OrApp 226 (2011)

Holding:   Police standards board free to adopt rule that officers fired for cause should always lose their certification.

1)   The task of statutory construction “requires us to examine the text of (the statute) in context, along with any relevant legislative history, and, if necessary, applicable canons of construction.” citing, State v. Gaines. at p. 230.

2)   The text of the controlling statute grants DPSST the option of suspending or revoking the certification of police officers discharged for cause, but, nothing in the text of the statute requires the agency to consider both options in every, or, any, case. at p. 231.

3)   When the legislature intends to require an entity to consider, in every case, between “multiple options or factors,” it knows how to do so. at p. 231.

4)   A single, uncontradicted statement by an agency head as to the reason for the statute can be used to elucidate legislative intent. at pp. 231-32.

State v. Grierson, 245 OrApp 195 (2011)

Holding:   Plain reading of an unambiguous statute trumps a construction supported only by resort to legislative history.

1)   Courts do not apply the “underlying principles” of a statute as illuminated by legislative history. “(W)e construe the enacted text.” citing State v. Gaines. at p. 200.

2)   The state fails to identify any text that “could plausibly support” the construction it seeks to advance by resort to legislative history. at pp. 200-01.

Greenway v. Parlanti, 245 OrA 144 (2011)

Holding:   Applicable statute requires landlord terminating a rental agreement to serve notice specifying the date and time of termination. A notice which declares that the agreement will terminate 24 hours after service is not specific or explicit

1)   “Generally, we seek to ascertain the intent of the legislature by examining the text and context of the statute at issue as well as any helpful legislative history offered by the parties.” citing, State v. Gaines. at p. 148.

2)   “When construing a statute, we give “words of common usage their plain and ordinary meaning.” cite omitted. at p. 148.

3)   When construing a statute, Courts are to ascertain what is “contained therein, not to omit what is inserted or insert what has been omitted.” referencing ORS 174.010. at p. 148.

4)   A statute is unambiguous if the text only supports a single plausible interpretation. at p. 149.

5)   “In common usage, ‘specifying’ is defined as ‘to mention in a specific or explicit manner: tell or state precisely or in detail.’” (cite omitted). at p. 149.

State v. Durham, 245 OrApp 58 (2011)

Holding:   Diversion is not available for all types of criminal possession of marijuana.

1)   “To determine the intent of the legislature * * * we first examine the text of the statutes in context and then look to any helpful legislative history offered by the parties.” citing, State v. Gaines. at p. 61.

2)   A plain reading of the statute outlawing possession of marijuana shows that it defines three separate crimes. In turn, a plain reading of the marijuana diversion statute shows that diversion is only available to defendants violating the offense described in subsection 3. at p. 62.

3)   “Ordinarily, only statutes enacted simultaneously with or before a statute at issue are pertinent context for interpreting that statute.” cite omitted. at p. 63.

4)   Legislative history can be used to support the construction that results from a plain reading of the statute. at p. 64.

5)   A single comment by a member of a single committee that crafted the bill can be used to elucidate legislative intent. at p. 64.

Setnicker v. Polk County, 244 OrApp 618 (2011)

Holding:   Court will not disturb local government’s reading of it’s own ordinances if such reading is “plausible.”

1)   ORS 197.829(1)(a) directs that LUBA is to affirm a local government’s application of land use regulations unless such interpretation is “inconsistent with the express language of the * * * regulation.” This “depends on whether the interpretation is plausible” after application of the standard rules of construction. cite omitted. at p. 633.

2)   “* * * when a governing body is responsible for enacting an ordinance, it may be assumed to have a better understanding than LUBA or the courts of its intended meaning.” cite omitted. at p. 634.

State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491 (2011)

Holding:   Supreme Court will not retreat from well-rehearsed notion that whether a hearsay statement is sufficiently corroborated is a matter for the jury.

1)     When construing a statute, a court is free to consider legislative history not presented by either side, but, produced sua sponte. at p. 509, ftn 5.

2)   Suggestions by Prof. Kirkpatrick, and, the Court of Appeals, that comments to the Oregon Evidence Code show a contrary legislative intent than that divined by the Supreme Court misread the applicable legislative history. at p. 509, ftn 5.