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United States v. Palomar-Santiago, Refugio

Whether a defendant automatically satisfies all three of the prerequisites under 8 U.S.C. 1326(d) solely by showing that he was removed for a crime that would not be considered a removable offense under current circuit law, even if he cannot independently demonstrate administrative exhaustion or deprivation of the opportunity for judicial review.

• Immigration

AMG Capital Mgmt., LLC v. FTC

Whether § 13(b) of the Federal Trade Commission Act ("FTCA"), by authorizing “injunction[s],” also authorizes the Federal Trade Commission (the "Commission") to demand monetary relief such as restitution—and if so, the scope of the limits or requirements for such relief.

Niz-Chavaz, Agusto v. Barr, Att’y Gen.

Whether, to serve notice in accordance with section 1229(a) and trigger the stop-time rule, the government must serve a specific document that includes all the information identified in section 1229(a), or whether the government can serve that information over the course of as many documents and as much time as it chooses.

• Immigration

State v. Phillips

The text of OEC 609(3)(a) suggests that the legislature intended the exception to function as a two-part inquiry... The first step is to determine ‘the date of the conviction' and the date of 'release of the witness from the confinement imposed for that conviction.’ The second step is to ask whether ‘[a] period of more than 15 years has elapsed since’ the later of those two dates. OEC 609(3)(a). If the answer to that second question is ‘no,’ then the conviction falls within the statutory window of admissibility.”

• Evidence

Gould v. Deschutes County

“[W]hen ORS 19.260(1)(a)(B) refers to a class of delivery ‘calculated to achieve delivery within three calendar days,’ it is referring to a class that is designed or purposefully estimated by the delivery service to achieve delivery in that time period….the class of delivery need not be one that is designed or estimated to achieve delivery as a class and in all circumstances within three calendar days; rather, the class of delivery must be designed to achieve delivery of the particular notice of appeal within that time period.”

• Appellate Procedure

State v. Flores Ramos

A structural error is a “structural defect affecting the framework within which the trial proceeds,” and a reversal of the conviction is the result. Arizona v. Fulminante, 499 US 279, 310, 111 S Ct 1246, 113 L Ed 2d 302 (1991). “When a federal constitutional error is not structural, the conviction can be affirmed only if the error ‘was harmless beyond a reasonable doubt.’” Fulminante, 499 US at 307-08.

• Criminal Law

Friends of Columbia Gorge v. Energy Fac. Siting Coun.

Under ORS 183.497(1)(a), “the court may…allow a petitioner reasonable attorney’s fees and costs if the court finds in favor of the petitioner.” Under ORS 20.075(1)-(2), “what counts as ‘reasonable attorney fees' is an exercise of judicial discretion based on the statutory factors” that are listed.

• Attorney Fees

State v. Morales

“[F]unds paid by and belonging to a third party cannot be the sole basis for a finding that a defendant has the 'ability to pay' court-ordered costs” because the trial court must still go through an inquiry to see if the defendant has the ability to pay fees or costs under ORS 161.665.

• Criminal Law

Linn County v. Brown

Under Article XI, section 15(2)(c), of the Oregon Constitution, a “program” is “specific ‘services’ that a ‘local government’ is to ‘perform’ for ‘persons, government agencies or the public generally’” and does not include a statutory policy enacted by the legislature.

• Constitutional Law

State v. Bradley

In State v. Herfurth, 307 Or App 534, 478 P3d 601 (2020), the court allowed the defendant to raise new arguments in his third appeal on the basis of a nonunimaous verdict because the legal landscape in Oregon had changed significantly changed and the defendant raised other claims that were not frivolous in each appeal.

• Criminal Procedure

Thompson v. Marshall

Under ORS 19.415(2), “the erroneous grant of a directed verdict on a claim does not categorically require reversal; if the verdict on the claims that were submitted to the jury demonstrates that the jury necessarily would have rejected one or more elements of the claim…. then [the court] will not deem the…directed verdict to have substantially affected the plaintiff’s rights.” Yoshida’s Inc. v. Dunn Carney Allen Higgens & Tongue, 272 Or App 436, 458, 356 P3d 121 (2015), rev den, 358 Or 794 (2016).

• Property Law

Rohrer v. Oswego Cove, LLC

Under ORS 659.199, a plaintiff may bring a claim if they “reported evidence of unlawful activity and were terminated.” Hall v. State of Oregon, 274 Or App 445, 451, 366 P3d 345 (2015). A common law wrongful termination claim may be brought if ORS 659A.199 does not apply or provide an appropriate remedy.

• Employment Law

State v. Benson

To establish that there was a violation of due process, a defendant must show "there was 'substantial, actual prejudice, ' and the focus of that inquiry is on ‘whether the delay violated our society’s fundamental conceptions of justice, fair play, and decency.” State v. Stokes, 350 Or 44, 64, 248 P3d 953 (2011).

• Criminal Procedure

State v. Lasheki

Under ORS 161.067(3), “criminal charges based on multiple violations of the same statutory provision will not merge if a ‘sufficient pause’ separates these violations.” Additionally, “a ‘pause’ occurs between two statutory violations only if the defendant’s commission of one violation ends before the second violation begins.” State v. Ortiz-Rico, 303 Or App 78, 85, 462 P3d 741 (2020).

• Criminal Law

State v. Avdeyev

A witness may not call a complaint witness a victim because it “may undermine the presumption of defendant’s innocence because it assumes defendant’s guilt.” State v. Sperou, 365 Or 121, 133, 442 P3d 581 (2019). However, a prosecutor using the term “victim” in reference to a complaining witness is allowed only in appropriate contexts, or “the trial court has the discretion to fashion an appropriate remedy, ‘subject to the defendant’s right to a fair trial'” if the usage is improper. Id. at 136.

• Evidence

State v. Skeen

"Crime victims are entitled to restitution for ‘economic damages’ caused by defendant’s crime” ORS 137.106. “’[E]conomic damages’ are objectively verifiable out-of-pocket losses that a person could recover against the defendant in a civil action arising out of the defendant’s criminal activities.” State v. Herfurth, 283 Or App 149, 154, 388 P3d 1104 (2016), rev den, 361 Or 350 (2017).

• Criminal Law

State v. Pryor

During questioning, a promise may be found to be improper inducement if the questioner “communicates the idea of a temporal benefit or disadvantage… in exchange for a confession,” and that offer is then accepted in order to get the benefit. State v. Chavez-Meza, 301 Or App 373, 387 (2019); State v. Simmons, 302 Or App 133, 139 (2020).

• Criminal Procedure

King v. Board of Parole

The Board of Parole’s order must “articulate[] the reasoning that leads from the facts to the conclusion drawn.” Dixon v. Board of Parole and Post-Prison Supervision, 257 Or App 273, 286, 306 P3d 715 (2013) (quoting Salosha, Inc. v. Lane County, 201 Or App 138, 143, 117 P3d 1047 (2005).

• Parole and Post-Prison Supervision

State v. Cazee

To establish probable cause, “an officer may consider the facts in light of the officer’s training, knowledge, and experience, but that experience cannot itself supply the facts.” State v. Aguilar, 307 Or App 457, 469, 478 P3d 558 (2020).

• Criminal Procedure

State v. Meiser

The standard for a “defendant seeking to establish a GEI defense “must show that, at the time of the crime, as a result of a mental disease or defect (which does not include a personality disorder…), the defendant lacked the substantial capacity to appreciate the criminality of his conduct or to conform that conduct to the requirements of law.” State v. Shields, 289 Or App 44, 47, 407 P3d 940 (2017), rev den, 362 Or 794 (2018).

• Criminal Law

State v. Bowen

"The reasonable-suspicion standard ‘is met when an officer can point to specific and articulable facts that give rise to a reasonable inference that the defendant committed…a specific crime...’ State v. Maciel-Figueroa, 361 Or 163, 165, 389 P3d 1121 (2017). The officer must have a subjective belief that is objectively reasonable under the totality of the circumstances. State v. Kreis, 365 Or 659, 665, 451 P3d 954 (2019).”

• Criminal Procedure

McNichols v. Dept. of Fish and Wildlife

A plaintiff, unable to establish actual injury, has no standing under either ORS 183.480 or ORS 28.020 factor tests.

• Administrative Law

Clackamas County Employees’ Assn. v. Clackamas County

Under ORS 243.672(1)(a), to determine if an employer violates an employee rights in regards to labor organizing, you must apply the relevant test which is “whether, objectively viewed, the action that the employer took under the particular circumstances would chill union members generally in their exercise of protected rights.” Portland Assn. Teachers v. Mult. School Dist. 1, 171 Or App 616, 624, 16 P3d 1189 (2000).

• Employment Law

Dept. of Human Services v. D.L.

DHS has the burden of proof to maintain jurisdiction and, where the parent “has not internalized better techniques,” evidence that “links the ‘lack of insight to the risk of harm” will satisfy that burden. Dept. of Human Services v. J.M., 275 Or App 429, 441 364 P3d 705 (2015), rev den, 358 Or 833 (2016).

• Juvenile Law

State v. Benson

This is because “land mapped as a wildlife could never be designated and zoned NR-5.” The court found that “LUBA’s reading of those provisions to bar a plan amendment and zone change” is only “one plausible interpretations of those provisions,” but it is not the only one. Under Siporen v. City of Medford, 349 Or 247, 262, 243 P3d 776 (2010),

• Criminal Law

State v. Smith

Under ORS 162.247(1)(b), a “lawful order” must be given by a peace officer, and—in the case at hand—it has to be supported by reasonable suspicion.

• Criminal Law

State v. Ruiz-Espinosa

Under Article I, section 9, to show a defendant was unreasonably seized three standards must be met: (1) the state has the burden to establish that the officer acted lawfully; (2) the state must meet the Middleton test previously stated from the Defendant’s argument; and (3) the court must determine “whether the officer’s stated basis for extending the detention is objectively reasonable.”

• Criminal Law

State v. McNall

The court of appeal's role is not re-weighing evidence to determine guilt because as long as the rational factfinder could conclude the state proved all the elements of the crime, the judicial system gives the jury the responsibility to decide guilt. State v. Miller (A134139), 226 Or App 52, 55 (2009).

• Criminal Law

Dept. of Human Services v. L.A.K.

Under ORS 419B.100(1)(c), jurisdiction over a child by the juvenile court will continue if the basis for jurisdiction “continue[s] to pose a current threat of serious loss or injury, and there [is] a reasonable likelihood that the threat will be realized.” Dept. of Human Services v. J. V.-G., 277 Or App 201, 212 (2016). Furthermore, at the time the “basis for jurisdiction has ceased to exist, then the juvenile court must terminate wardship and dismiss the case.” State v. A. L. M., 232 Or App 13, 16 (2009).

• Family Law

Garland and Garland

Under ORS 165.540, for a residence exception to apply to the evidence the “location of the performance of the act of recording” must take place inside the home. See State v. Rainey, 294 Or App 284, 288-90 (2018).

• Family Law

1000 Friends of Oregon v. Linn County

Under Siporen v. City of Medford, 349 Or 247, 262, 243 P3d 776 (2010), LUBA is required “to defer to the county’s plausible interpretations of its own comprehensive plan.”

• Land Use

Sander v. Nicholson

Under Oregon case law a “party who suffers interference with the right to use an easement may bring a tort claim;” “equitable claim, seeking an injunction;” or an “equitable action to enforce those obligations as servitude that run with the land to bind successors in interest.” See Landauer v. Steelman, 275 Or 135, 141, 549 P2d 1256 (1976); Andrews v. North Coast Development, 270 Or 24, 36, 526 P2d 1009 (1974); Fitzstephens v. Watson, et al, 218 Or 185, 206-10, 344 P2d 221 (1959).

• Property Law

State v. C.H.

“The state must prove a causal connection between appellant’s mental disorder and her inability to provide for her basic needs.” State v. M. G., 147 Or App 187, 192, 935 P2d 1224 (1997).

• Civil Commitment

Tarr v. Multnomah County

Under ORS 215.441, “[t]he legislature intended to require counties to allow the reasonable use of land for customary religious activities, if the land is located in an area in which state law and local zoning law allow for a place of worship."

• Land Use

State v. Ryan

“[S]erious intellectual disability that has been determined requires evaluation of defendant’s relative culpability as part of the gravity of the offense in determining proportionality.” See Or Cont, Art I, sec 16.

Swint v. City of Springfield

“OAR 436-060-0150(5)(h) and (6) establish specific time frames for the payment of temporary disability benefits generally, and following an ALJ’s order. . . . Therefore, we evaluate each obligation separately in determining which of the multiple issues raised by claimant's hearing request are timely and may be addressed.” Armando Morin, 68 Van Natta 1760, 1764 (2016).

• Workers Compensation

State v. Odneal

“[T]he state may prove ‘a defendant’s knowledge with circumstantial evidence and reasonable inferences flowing from that evidence,' ” the inference that is made “must be one that a rational factfinder can be convinced follows beyond a reasonable doubt from the underlying facts.” State v. Bell, 220 Or App 266, 270, 185 P3d 541 (2008).

• Criminal Law

Owen v. City of Portland

"A state statute will displace the local rule where the text, context, and legislative history of the statute ‘unambiguously expresses an intention to preclude local governments from regulating in the same area as that governed by the statute.” Gunderson, LLC v. City of Portland, 352 Or 648, 663, 290 P3d 803 (2012)

• Property Law

Vergara v. Patel

“If a plaintiff states a name other than defendant’s, but serves the correct entity with a copy of the original complaint, and the correct entity should have understood from the pleadings that it is the entity intended to be sued, then an amendment of the pleadings to correct the misnomer….is not a change in party.” Harmon v. Fred Meyer, 146 Or App 295, 298, 933 P2d 361 (1997).

• Tort Law

Stachlowski v. 1000 Broadway Building LP

Under ORS 130.640(1), “a trustee is entitled to trustee fees paid ‘out of trust property for [e]expenses that were properly incurred in the administration of the trust.”

• Trusts and Estates

State v. H.K.D.S.

Article I, Section 9 establishes the right “to be secure in [our] persons…against unreasonable search, or seizure,” and case law further establishes that “warrantless searches are per se unreasonable unless they fall within one of the few specifically established and limited exceptions to the warrant requirement.” State v. Biss, 363 Or 426, 430-1, 326 P3d 559 (2014).

• Juvenile Law

State v. Martinez

“Warrantless searches are per se unreasonable, unless the state establishes the applicability of an exception;” an exception to warrantless searches are “(1) to protect a police officer’s safety; (2) to prevent destruction of evidence; or (3) to discover evidence of the crime of arrest.” State v. Bonilla, 358 Or 475, 480, 366 P3d 331 (2015); State v. Delfino, 281 Or App 725, 727, 386 P3d 133 (2016), rev den, 361 Or 525 (2017).

• Criminal Law

Rookstool-Moden Realty, LLC v. Gallagher

“To preserve an argument in a bench trial that the evidence is insufficient as a matter of law, a party is required to move for a judgment of dismissal under ORCP 54 B(2) or make ‘a timely equivalent assertion.’” Marshall v. Cannady, 291 Or App 802, 808, 423 P3d 143 (2018).

• Property Law

WaterWatch of Oregon v. Water Resources Department

Under ORS 543A.305(8), “’use under a hydroelectric water right’ is not limited to the use of water for hydroelectric purposes but encompasses other beneficial uses authorized by a hydroelectric water right, including in-stream use under a lease of that right.”

• Water Rights

Jackson v. Franke

An attorney will not be found to be constitutionally inadequate and ineffective if there is an unforeseeable shift in the case law.

• Post-Conviction Relief

State v. Perdew

In order for a court to award restitution, there must be evidence that shows that “medical expenses were ‘necessarily incurred.’” ORS 31.710(2)(a).

• Criminal Law

Davis v. Cain

“In general, witness vouching in Oregon is considered prejudicial, so much so in fact that it sometimes requires intervention by the trial court even when parties fail to object to it.” State v. Sperou, 365 Or 121, 140, 442 P3d 581 (2019).

• Post-Conviction Relief

Kerr v. Board of Psychologist Examiners

“Voluntary disclosure of privileged material does not waive the privilege if the disclosure is itself privileged.” State v. Bassine, 188 Or App 228, 233, 71 P3d 72 (2003).

• Administrative Law

SAIF v. Williams

“[T]o prove the existence and compensability of a new or omitted medical condition, the claimant must prove that his or her injury was the “material contributing cause” of the disability or need for treatment of the new or omitted condition. Schleiss v. SAIF, 354 Or 637, 643-44 (2013).

• Workers Compensation

State v. Altamirano-Juarez

When a judge considers a waiver of a defendant’s right to a jury trial, they must consider “whether a bench trial will fully protect defendant’s rights.” State v. Austin, 274 Or App 114, 119, 360 P3d 603 (2015).

• Criminal Law

State v. Clifton

Under ORS 164.015, “A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person: (1) Takes, appropriates, obtains or withholds such property from an owner thereof[.]"

• Criminal Law

State v. Stowell

“[I]f the state seeks to hold a defendant liable either as the principal or as an aider and abettor and if a party requests an appropriate instruction, the trial court should instruct the jury that at least 10 jurors must agree on each legislatively defined element necessary to find the defendant liable under one theory or the other.” State v. Phillips, 354 Or 598, 606 (2013).

• Criminal Law

State v. Beckner

“[T]o prove that a particular sexual contact was first-degree sexual abuse, the state must prove not only that the defendant subjected the victim to an act of forcible compulsion, but also that that act resulted in the sexual contact that is the focus of the charge, in the sense that it compelled the victim to submit to or engage in the contact.” State v. Marshall, 350 Or 208, 227 253 P3d 1017 (2011).

• Criminal Law