Robert D. Durham

This case involved petitioners challenging the Attorney General's certified ballot title for Initiative Petition 18 (2012), which proposes to prohibit estate, inheritance, and certain property transfer taxes. The Oregon Supreme Court reviewed whether the ballot title substantially complied with statutory requirements under ORS 250.035(2). The court determined that the caption inaccurately suggested the measure affects all estates rather than only those over $1 million, and the "yes" and "no" statements failed to clearly inform voters about the current tax threshold. Consequently, the court referred the ballot title to the Attorney General for modifications to the caption and result statements.

electionstaxes

This case concerns petitioners' challenge to the Attorney General's certified ballot title for Initiative Petition 12 (2012), a proposed state constitutional amendment that would require elections officials to count all qualified voters' signatures on initiative or referendum petitions and would limit the effect of anti-fraud laws on signature counting. The court reviewed the ballot title under ORS 250.085(5) to determine whether it substantially complied with ORS 250.035, after summarizing the constitutional and statutory framework governing signature collection, verification, and counting for initiatives and referendums. The court agreed in part with petitioners' objections to the caption, result-of-vote statements, and summary, finding inaccuracies such as an implication that the measure prevents enactment of new laws, and therefore referred the ballot title to the Attorney General for modification.

elections

In State v. Sierra, a defendant was convicted by a jury of first-degree kidnapping and two counts of second-degree kidnapping, among other crimes. On appeal, the Oregon Supreme Court previously affirmed the first-degree conviction but reversed the second-degree ones due to insufficient evidence, remanding for further proceedings. Upon the state's petition for reconsideration, the court clarified that the remand must include resentencing on the remaining convictions, as required by ORS 138.222(5)(b), which mandates such resentencing when an appellate court reverses some felony convictions but affirms others.

criminal lawprocedure

This criminal case involved defendant’s challenge to his kidnapping convictions after he used a crossbow to force three store employees to move within a convenience store following a confrontation. The trial court denied his motion for judgment of acquittal, and the Court of Appeals affirmed all convictions. On review, the Oregon Supreme Court affirmed the first-degree kidnapping conviction of one victim, finding sufficient evidence that the defendant moved him from outside to inside the store with intent to interfere with his liberty. It reversed the two second-degree kidnapping convictions, holding that the evidence was insufficient to show the victims were taken from one place to another, as their movement occurred entirely within the same store area behind the diesel desk.

criminal law

The case involved a personal injury claim by Alan Cler against Oregon Hematology Oncology Associates, PC, alleging that one of its nurses negligently administered intravenous chemotherapy, causing severe tissue damage when the drug leaked from his vein. At trial, the defense mentioned in opening statements an oncology nurse expert who would testify that the care met the standard, but did not call that expert; instead, during closing argument, defense counsel described facts about the expert's availability and anticipated testimony that were not in the evidentiary record. The trial court overruled objections to those statements, the jury found for the defendant, and the Court of Appeals affirmed. The Oregon Supreme Court reversed, holding that the trial court abused its discretion by permitting the defense to present facts outside the record during closing argument. The court concluded that the statements were not a permissible invited response to plaintiffs' comments about the missing witness and required a new trial.

proceduretorts & liability

This case arose from a post-dissolution custody dispute in which father moved under ORS 107.135(1)(a) to modify the judgment awarding mother sole custody of the children; the trial court denied the motion, the Court of Appeals affirmed, and this court denied father's petition for review. Mother then petitioned this court for attorney fees incurred in opposing the petition for review, asserting that father had acted in bad faith. The court denied the fee petition, holding that it lacked authority to award fees because ORS 107.135(8) authorizes fees only at the trial level and ORS 19.440's extension of fee authority to "an appeal" does not encompass a denied petition for review, which is not an appeal that results in affirmance or reversal of a judgment. The court reasoned that the legislature knows how to provide explicit authority for fees after denial of review, as it did for costs under ORS 20.310(1), and no such provision exists here.

family lawprocedure

This case arose from a marriage dissolution proceeding in which the wife appealed the trial court's judgment seeking increased spousal support; the Court of Appeals modified the support amount and affirmed otherwise. After the husband petitioned the Supreme Court for review and the wife filed a response, the Supreme Court denied review. The wife then petitioned for attorney fees of $1,890 and costs of $8.40. The court awarded the costs under ORS 20.310(1), which authorizes costs to the prevailing party when review is denied, but denied the attorney fees request. It reasoned that ORS 107.105(5) permits attorney fees only in the context of an "appeal," and based on the statute's enactment history following the creation of the Court of Appeals, a denial of a petition for review does not qualify as such an appeal.

family lawprocedure

The case concerned Nicholas Coffey, a registered geologist, who challenged an order from the Board of Geologist Examiners revoking his certificate after finding negligence, gross negligence, and violations of professional conduct rules in three hydrogeology reports. The Board had escalated from proposed suspension and penalties to revocation following additional complaints. Coffey argued the Board lacked authority to revoke without first adopting rules on sanction selection per Megdal v. Board of Dental Examiners, that its negligence definitions were insufficient, and that some findings lacked substantial reason. The Oregon Supreme Court affirmed the revocation, interpreting the relevant statutes (including ORS 672.675) to grant the Board disciplinary power without an implied requirement for additional pre-adjudication rulemaking on sanctions or community standards of care.

business & regulatoryprocedure

The case involved a parolee who sought judicial review of a Board of Parole order denying his rerelease after a parole revocation, arguing violations of due process and board rules. Before the Court of Appeals decided the case, the petitioner was released on parole, leading the court to dismiss the petition as moot and award the board its costs and disbursements as the prevailing party. The petitioner argued that former ORS 144.335(12) barred such an award in judicial reviews of board orders. The Oregon Supreme Court held that the statute did not prohibit the award of costs, as general appellate cost provisions in ORS chapter 20 applied absent an explicit prohibition, and affirmed the Court of Appeals' decision.

criminal lawprocedure

This case involves petitions challenging the ballot title and explanatory statement for Ballot Measure 66, a referendum on legislation (HB 2649) that would raise personal income taxes on high earners to fund education, health care, public safety, and other services. The Oregon Supreme Court reviewed whether the ballot title prepared by a joint legislative committee substantially complied with statutory requirements under ORS 250.035, focusing on challenges to the caption, 'yes' and 'no' vote results, and summary regarding accurate descriptions of tax changes, unemployment benefit exemptions, and revenue maintenance. The court determined that parts of the ballot title failed to comply, particularly in phrasing about maintaining budgeted funds given the referendum's effect on the underlying law, and referred the ballot title to the Attorney General for modification while certifying the explanatory statement as compliant. The core reasoning centered on statutory standards for ballot titles and the constitutional impact of the referendum process on the measure's description.

electionstaxes

This case concerns petitions challenging the ballot title and explanatory statement for Referendum 302 (2009), designated as Ballot Measure 67, which would enact increased corporate minimum taxes, higher marginal tax rates on corporate income over certain thresholds, and raised filing fees for business documents. The Oregon Supreme Court consolidated the petitions and reviewed the materials under modified statutory procedures requiring substantial compliance with ORS 250.035, focusing on accuracy in the caption, vote result statements, and summary. Petitioners contended that phrasing about maintaining budgeted funds and tax impacts was misleading or incomplete. The court determined that the ballot title failed to substantially comply in key respects and referred it to the Attorney General for modification, while certifying the explanatory statement to the Secretary of State.

electionstaxesbusiness & regulatory

In Dawson/Fletcher v. Board of Parole, petitioners sought judicial review of parole board orders denying their requests to reopen and reconsider earlier final orders regarding parole release and conditions. The board moved to dismiss, arguing that such denial orders are not "final orders" under ORS 144.335 and thus not subject to review, citing precedents like Esperum and Mastriano. The Court of Appeals dismissed the petitions, and the Oregon Supreme Court affirmed, holding that while the board may constructively reopen orders under its rules, no such reopening occurred here. The core reasoning was that reviewing mere denials of reconsideration would undermine the statutory 60-day filing deadline for challenging initial orders, and the board's actions did not alter the earlier final orders on the merits.

criminal lawprocedure

This case concerns a juvenile delinquency proceeding in which the state sought to admit hearsay statements made by a three-year-old alleged victim of sexual abuse during an evaluation at the CARES Northwest program. The Oregon Supreme Court addressed whether those statements qualified as "testimonial" under the Sixth Amendment's Confrontation Clause, following Crawford v. Washington, which bars such evidence unless the declarant is unavailable and the accused had a prior opportunity to cross-examine. The court held that the statements were testimonial because CARES acted as a proxy for law enforcement, conducting a structured interview coordinated with police and child welfare officials to gather evidence for potential prosecution rather than primarily for medical treatment. The court therefore affirmed the Court of Appeals' ruling that the juvenile court erred by admitting the statements.

criminal lawcivil rightsprocedure

Comcast challenged two city administrative orders increasing permit fees for work affecting public ways, claiming the fees violated Eugene Code provisions requiring cost recovery and consideration of comparable fees, and sought declaratory relief plus recovery of excess payments via a money had and received claim. The trial court granted summary judgment to the city on grounds including failure to provide timely notice under ORS 30.275 of the Oregon Tort Claims Act, but the Court of Appeals reversed. The Oregon Supreme Court affirmed the reversal, holding that the OTCA notice requirement did not apply because the claims were not tort actions against a public body but instead sought to enforce city code limits on fees and obtain restitution of overpayments.

business & regulatoryprocedure

This case involves a certified question from the Ninth Circuit asking whether, under Oregon Supreme Court rules or practice, federal claims were properly raised for exhaustion purposes when a post-conviction petitioner attached his PCR petition to a Balfour brief in the Court of Appeals, referenced that brief in his petition for review, and did not otherwise identify specific legal questions. The petitioner had been convicted of murder, lost his direct appeal and PCR proceeding, and then sought federal habeas relief, which the district court dismissed for failure to exhaust state remedies. The court reviewed its appellate rules, including ORAP 5.90 governing Balfour briefs and ORAP 9.05 for petitions for review, along with criteria for granting discretionary review in post-conviction matters, to determine if the petitioner's method of presentation alerted the court to the federal nature of the claims.

criminal lawprocedure

This case involves a certified question from federal court regarding whether Oregon's workers' compensation exclusivity provisions bar a wrongful death lawsuit by the personal representative of a deceased employee against her employer. The employee was killed on the job, and the plaintiff alleged the death resulted from the employer's deliberate intention, seeking damages on behalf of the employee's nondependent parents under the state's wrongful death statute. The Oregon Supreme Court held that ORS 656.156(2) removes the exclusive liability bar of ORS 656.018(1)(a), allowing the action to proceed even though nondependent parents are not explicitly listed among the beneficiaries in the workers' compensation exception provision. The court reasoned that the statute's language preserves the right to pursue a separate wrongful death claim under ORS 30.020(1) for such beneficiaries, consistent with its prior precedent in Kilminster v. Day Management Corp., and that related compensation distribution rules do not limit who may benefit from an external tort action.

labor & employmenttorts & liability

This case concerned whether the Oregon Tax Court properly awarded damages and attorney fees to the Department of Revenue after taxpayers filed a 2002 income tax return claiming no income and asserted frivolous arguments in both the magistrate and regular divisions of the tax court. The tax court determined that the taxpayers' positions were frivolous under ORS 305.437 and awarded damages, also granting attorney fees under ORS 20.105. The Oregon Supreme Court reversed, holding that ORS 305.437 did not obligate the magistrate to award damages where the department showed only trivial actual costs, that the taxpayers' position on appeal was not frivolous, and that the department therefore was not entitled to attorney fees as a prevailing party on the damages claim.

taxesprocedure

This case concerned a conflict between two Oregon statutes governing attorney fees in a small-value tort action: ORS 20.080(1), which allows recovery of fees in negligence claims for $5,500 or less if a written demand was made before suit, and ORCP 54 E, which bars fees incurred after a defendant makes an offer of judgment that exceeds the plaintiff's eventual recovery. The plaintiff had sued for diminished-value damages from a car accident, rejected the defendant's offer of judgment, and obtained an arbitration award higher than the defendant's earlier settlement offer but lower than the judgment offer; the trial court and Court of Appeals applied ORCP 54 E to cut off post-offer fees. The Oregon Supreme Court reversed, ruling that ORS 20.080(1) is the more specific provision and therefore operates as an exception to ORCP 54 E, so the offer-of-judgment procedure does not limit the statutory right to fees. The court relied on its earlier decision in Colby v. Larson recognizing a similar conflict and held that the plaintiff could recover reasonable fees for all work, including after the offer.

proceduretorts & liability

This case involves a dispute over whether an automobile insurance policy covers the diminished value of a vehicle after repairs that did not restore it to pre-accident condition. The trial court granted summary judgment to the insurers, but the Court of Appeals reversed, and the Supreme Court affirmed that decision. The court reasoned that, based on the policy language defining "loss" and prior precedents, the insurer must either fully repair the vehicle to its preloss condition or compensate for any remaining diminution in value if repairs are insufficient. The policy's option to repair does not limit liability to the cost of repairs alone when the vehicle cannot be restored.

business & regulatoryproperty

This case involves a petition for reconsideration in an underinsured motorist (UIM) insurance dispute under ORS 742.502(2)(a). The original opinion held that whether a motorist is underinsured is determined by comparing the motorist's liability limits to the policy limits of the insured's uninsured motorist coverage, not to the insured's actual damages, so the insurer was not liable for UIM benefits here. On reconsideration, the petitioner and amicus sought removal of two sentences in the opinion that interpreted the final sentence of the statute regarding calculation of UIM benefits, arguing that portion of the statute was not at issue in the case, which instead addressed only the threshold question of underinsured status. The court agreed, modified the opinion by deleting those sentences (which had described the insurer's maximum liability and the purpose of UIM coverage as filling a gap between policy limits and amounts recovered), and adhered to the decision as modified.

torts & liability